1
EXHIBIT 10.6
CONFORMED COPY
[WITH ▇▇▇▇▇▇▇▇ ▇, ▇,
▇, ▇-▇ ▇▇▇ ▇-▇ CONFORMED
AS EXECUTED]
================================================================================
$38,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
among
STAFF ACQUISITION, INC.,
STAFF CAPITAL, L.P.,
VARIOUS BANKS
and
BANQUE PARIBAS,
as Agent
_____________________________________________
Dated as of November 5, 1993
and
Amended and Restated as of December 8, 1994
_____________________________________________
================================================================================
2
TABLE OF CONTENTS
Page
Section 1. Amount and Terms of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 The Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Minimum Amount of Each Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.03 Notice of Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.04 Disbursement of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.05 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.06 Conversions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.07 Pro Rata Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.08 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.09 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.10 Increased Costs, Illegality, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.11 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.12 Replacement of Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2. Letters Of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.01 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.02 Minimum Stated Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.03 Letter of Credit Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.04 Letter of Credit Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.05 Agreement to Repay Letter of Credit Drawings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.06 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3. Commitment Commission; Fees; Reductions Of Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.01 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.02 Voluntary Termination of Unutilized Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.03 Mandatory Reduction of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4. Prepayments; Payments; Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.01 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.02 Mandatory Repayments and Commitment Reductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.03 Method and Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.04 Net Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 5. Conditions Precedent to the Restatement Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . 23
3
Page
----
5.01 Execution of Agreement; Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.02 Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.03 Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.04 Corporate Documents; Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.05 Employee Benefit Plans; Partnership Agreements; Management Agreements; Employment Agreements;
Collective Bargaining Agreements; Debt Agreements; Material Contracts . . . . . . . . . . . . . . . 24
5.06 Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.07 Pledge Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.08 Security Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.09 Subsidiaries Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.10 Assumption Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.11 Adverse Change, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.12 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.13 Fees, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.14 Subsidiary Notes; Concentration Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.15 Solvency Letter; Insurance Analyses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.16 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.17 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.18 Existing Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.19 Original Credit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.20 Management Investor Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 6. Conditions Precedent to All Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.01 No Default; Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.02 Adverse Change, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.03 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.04 Notice of Borrowing; Letter of Credit Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.05 Subsequent Legal Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7. Representations, Warranties and Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.01 Corporate or Partnership Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.02 Corporate or Partnership Power and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.03 No Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.04 Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.05 Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. . . . . . . . . 34
7.06 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.07 True and Complete Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.08 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.09 Tax Returns and Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.10 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.11 The Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
(ii)
4
Page
----
7.12 Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.13 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.14 Compliance with Statutes, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.15 Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.16 Public Utility Holding Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.17 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.18 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.19 Patents, Licenses, Franchises and Formulas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.20 Restrictions on or Relating to Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.21 Material Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 8. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.01 Information Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(a) Monthly Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(b) Quarterly Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(c) Annual Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(d) Management Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
(e) Budgets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
(f) Officer's Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
(g) Notice of Default or Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
(h) Other Reports and Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
(i) Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
(j) Annual Meetings with Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
(k) Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
8.02 Books, Records and Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
8.03 Maintenance of Property, Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
8.04 Corporate Franchises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
8.05 Compliance with Statutes, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
8.06 Compliance with Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
8.07 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
8.08 End of Fiscal Years; Fiscal Quarters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.09 Performance of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.10 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.11 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.12 Intellectual Property Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.13 Concentration Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.14 Additional Security; Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 9. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
9.01 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc. . . . . . . . . . . . . . . . . . . . . . . . 53
(iii)
5
Page
----
9.03 Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.04 Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
9.05 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
9.06 Advances, Investments and Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
9.07 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
9.08 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
9.09 Minimum EBITDA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
9.10 Minimum Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
9.11 Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
9.12 Consolidated Indebtedness to Consolidated EBITDA . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
9.13 Limitation on Voluntary Payments and Modifications of Indebtedness; Modifications of Partnership
Agreements, Certificates of Limited Partnership and Certain Other Agreements; etc. . . . . . . . . . 59
9.14 Limitation on Certain Restrictions on Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . 59
9.15 Limitation on Issuance of Equity Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
9.16 Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
9.17 Limitation on Creation of Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 10. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
10.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
10.02 Representations, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
10.03 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
10.04 Default Under Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
10.05 Bankruptcy, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
10.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
10.07 Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
10.08 Subsidiaries Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
10.09 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
10.10 Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11. Definitions And Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
11.01 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 12. The Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
12.01 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
12.02 Nature of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
12.03 Lack of Reliance on the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
12.04 Certain Rights of the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
12.05 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
12.06 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
(iv)
6
Page
----
12.07 The Agent in Its Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
12.08 Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
12.09 Resignation by the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 13. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
13.01 Payment of Expenses, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
13.02 Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
13.03 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
13.04 Benefit of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
13.05 No Waiver; Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
13.06 Payments Pro Rata . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
13.07 Calculations; Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE . . . . . . . . . . . . . . . . . . . . . . . . . . 90
13.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
13.10 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
13.11 Headings Descriptive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
13.12 Amendment or Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
13.13 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
13.14 Domicile of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SCHEDULE I Commitments
SCHEDULE II Projections
SCHEDULE III Real Property
SCHEDULE IV Capitalization
SCHEDULE V Material Contracts
SCHEDULE VI Insurance
SCHEDULE VII Existing Liens
Exhibit A-1 Notice of Borrowing
Exhibit A-2 Notice of Conversion
Exhibit A-3 Letter of Credit Request
Exhibit B-1 Term Note
Exhibit B-2 Revolving Note
Exhibit C-1 Form of Opinion of Dechert Price & ▇▇▇▇▇▇
Exhibit C-2 Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Exhibit D Officers' Certificate of Credit Parties
Exhibit E Subsidiary Acknowledgement
Exhibit F Borrower Acknowledgement
Exhibit G Partner Acknowledgement
(v)
7
Page
----
Exhibit H-1 Subsidiary Assumption Agreement
Exhibit H-2 Partner Assumption Agreement
Exhibit I Solvency Certificate
Exhibit J Bank Assignment and Assumption Agreement
(vi)
8
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 5,
1993, and amended and restated as of December 8, 1994, among STAFF CAPITAL,
L.P., a limited partnership organized and existing under the laws of the State
of Delaware (the "Borrower"), STAFF ACQUISITION, INC., a corporation organized
under the State of Delaware and general partner of the Borrower and its
Subsidiaries (the "General Partner"), the financial institutions party hereto
from time to time and BANQUE PARIBAS, as agent (the "Agent"). Unless otherwise
defined herein, all capitalized terms used herein and defined in Section 11 are
used herein as therein defined.
W I T N E S S E T H :
WHEREAS, the Borrower, the General Partner, the Original Banks
and the Agent are parties to a Credit Agreement, dated as of November 5, 1993
(as amended and modified to but not including the Restatement Effective Date,
the "Original Credit Agreement");
WHEREAS, the Borrower and the General Partner have requested
that the Original Credit Agreement be amended and restated and the Banks, the
Original Banks and the Agent are willing to amend and restate the same upon the
terms and conditions set forth below;
NOW, THEREFORE, the parties hereto agree that the Original
Credit Agreement shall be and is hereby amended and restated in its entirety as
follows:
Section 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and
conditions set forth herein, each Bank with a Term Loan Commitment severally
agrees to make, on the Restatement Effective Date, a term loan (each, a "Term
Loan" and, collectively, the "Term Loans") to the Borrower, which Term Loans
(i) except as hereinafter provided, shall, at the option of the Borrower, be
Base Rate Loans or Eurodollar Loans, provided that except as otherwise
specifically provided in Section 1.10(b), all Term Loans comprising the same
Borrowing shall be of the same Type and (ii) shall not exceed for any Bank, in
initial aggregate principal amount, that amount which equals the Term Loan
Commitment of such Bank on such date (before giving effect to any reductions
thereto on such date pursuant to Section 3.03(b)(i) but after giving effect to
any reductions thereto on or prior to such date
9
pursuant to Section 3.03(b)(ii)). Once repaid, Term Loans incurred hereunder
may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth
herein, each Bank with a Revolving Loan Commitment severally agrees at any time
and from time to time on and after the Restatement Effective Date and prior to
the Final Maturity Date, to make a loan or loans (each a "Revolving Loan" and,
collectively, the "Revolving Loans") to the Borrower, which Revolving Loans (i)
shall, at the option of the Borrower, be Base Rate Loans or Eurodollar Loans;
provided that except as otherwise specifically provided in Section 1.10(b),
all Revolving Loans comprising the same Borrowing shall at all times be of the
same Type, (ii) may be repaid and reborrowed in accordance with the provisions
hereof and (iii) shall not exceed for any Bank at any time outstanding that
aggregate principal amount which, when added to the product of (x) such Bank's
Percentage and (y) the aggregate amount of Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of such
Revolving Loans) at such time equals the Revolving Loan Commitment of such Bank
at such time. No more than $5,800,000 in aggregate principal amount of
Revolving Loans may be incurred on the Restatement Effective Date.
1.02 Minimum Amount of Each Borrowing. The aggregate
principal amount of each Borrowing hereunder shall not be less than the Minimum
Borrowing Amount and, if greater, shall be in integral multiples of $100,000.
More than one Borrowing may occur on the same date, but at no time shall there
be outstanding more than five Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. Whenever the Borrower desires to
make a Borrowing hereunder, it shall give the Agent at its Notice Office, prior
to 12:00 Noon (New York time) at least one Business Day's prior written notice
(or telephonic notice promptly confirmed in writing) of each Borrowing of Base
Rate Loans and at least three Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing of
Eurodollar Loans to be made hereunder. Each such notice (each a "Notice of
Borrowing"), except as otherwise expressly provided in Section 1.10, shall be
irrevocable and shall be given by the Borrower in the form of Exhibit A-1,
appropriately completed to specify (i) the aggregate principal amount of the
Loans to be made pursuant to such Borrowing, (ii) the date of such Borrowing
(which shall be a Business Day), (iii) whether the Loans being made pursuant to
such Borrowing shall constitute Term Loans or Revolving Loans and (iv) whether
the Loans being made pursuant to such Borrowing are to be initially maintained
as Base Rate Loans or Eurodollar Loans and, if Eurodollar Loans, the initial
Interest Period to be applicable thereto. The Agent shall promptly give each
Bank which is required to make Loans of the Tranche specified in the respective
Notice of Borrowing notice of such proposed Borrowing, of such Bank's
proportionate share thereof and of the other matters specified in the Notice of
Borrowing.
-2-
10
1.04 Disbursement of Funds. No later than 12:00 Noon (New
York time) on the date specified in each Notice of Borrowing, each Bank with a
Commitment of the respective Tranche will make available its pro rata portion
(determined in accordance with Section 1.07) of each such Borrowing requested
to be made on such date. All such amounts shall be made available in Dollars
and in immediately available funds at the Payment Office of the Agent, and the
Agent will make available to the Borrower at the Payment Office the aggregate
of the amounts so made available by the Banks. Unless the Agent shall have
been notified by any Bank prior to the date of Borrowing that such Bank does
not intend to make available to the Agent such Bank's portion of any Borrowing
to be made on such date, the Agent may assume that such Bank has made such
amount available to the Agent on such date of Borrowing and the Agent may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the
Agent by such Bank, the Agent shall be entitled to recover such corresponding
amount on demand from such Bank. If such Bank does not pay such corresponding
amount forthwith upon the Agent's demand therefor, the Agent shall promptly
notify the Borrower and the Borrower shall immediately pay such corresponding
amount to the Agent. The Agent shall also be entitled to recover on demand
from such Bank or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Agent to the Borrower until the date such
corresponding amount is recovered by the Agent, at a rate per annum equal to
(i) if recovered from such Bank, the cost to the Agent of acquiring overnight
Federal Funds and (ii) if recovered from the Borrower, the rate of interest
applicable to the respective Borrowing, as determined pursuant to Section 1.08.
Nothing in this Section 1.04 shall be deemed to relieve any Bank from its
obligation to make Loans hereunder or to prejudice any rights which the
Borrower may have against any Bank as a result of any failure by such Bank to
make Loans hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the
principal of, and interest on, the Loans made by each Bank shall be evidenced
(i) if Term Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-1 with blanks appropriately
completed in conformity herewith (each a "Term Note" and, collectively, the
"Term Notes") and (ii) if Revolving Loans, by a promissory note duly executed
and delivered by the Borrower substantially in the form of Exhibit B-2, with
blanks appropriately completed in conformity herewith (each a "Revolving Note"
and, collectively, the "Revolving Notes").
(b) The Term Note issued to each Bank shall (i) be executed
by the Borrower, (ii) be payable to the order of such Bank and be dated the
Restatement Effective Date, (iii) be in a stated principal amount equal to the
Term Loans made by such Bank on the Restatement Effective Date and be payable
in the principal amount of Term Loans evidenced thereby, (iv) mature on the
Final Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar
-3-
11
Loans, as the case may be, evidenced thereby, (vi) be subject to mandatory
repayment as provided in Section 4.02 and (vii) be entitled to the benefits of
this Agreement and the Subsidiaries Guaranty and be secured by the Security
Documents.
(c) The Revolving Note issued to each Bank shall (i) be
executed by the Borrower, (ii) be payable to the order of such Bank and be
dated the Restatement Effective Date, (iii) be in a stated principal amount
equal to the Revolving Loan Commitment of such Bank and be payable in the
principal amount of the Revolving Loans evidenced thereby, (iv) mature on the
Final Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the
case may be, evidenced thereby, (vi) be subject to mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this
Agreement and the Subsidiaries Guaranty and be secured by the Security
Documents.
(d) Each Bank will note on its internal records the amount of
each Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation shall not affect the Borrower's obligations in respect of such
Loans.
1.06 Conversions. The Borrower shall have the option to
convert on any Business Day all or a portion at least equal to the Minimum
Borrowing Amount of the outstanding principal amount of the Loans made pursuant
to one or more Borrowings (so long as of the same Tranche) of one Type of Loan
into a Borrowing or Borrowings (of the same Tranche) of the other Type of Loan;
provided that (i) except as otherwise provided in Section 1.10(b), Eurodollar
Loans may be converted into Base Rate Loans only on the last day of an Interest
Period applicable to the Loans being converted and no such partial conversion
of Eurodollar Loans shall reduce the outstanding principal amount of such
Eurodollar Loans made pursuant to a single Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (ii) Base Rate Loans may only be converted
into Eurodollar Loans if no Default or Event of Default is in existence on the
date of the conversion and (iii) no conversion pursuant to this Section 1.06
shall result in a greater number of Borrowings than is permitted under Section
1.02. Each such conversion shall be effected by the Borrower by giving the
Agent at its Notice Office prior to 12:00 Noon (New York time) at least three
Business Days' prior written notice (or telephonic notice promptly confirmed in
writing) (each a "Notice of Conversion") which notice shall be in the form of
Exhibit A-2, appropriately completed to specify the Loans to be so converted,
the Borrowing(s) pursuant to which such Loans were made and, if to be converted
into Eurodollar Loans, the Interest Period to be initially applicable thereto.
The Agent shall give each Bank prompt notice of any such proposed conversion
affecting any of its Loans. Upon any such conversion the proceeds thereof will
be deemed to be applied directly on the day of such conversion to prepay the
outstanding principal amount of the Loans being converted.
-4-
12
1.07 Pro Rata Borrowings. All Borrowings of Term Loans and
Revolving Loans under this Agreement shall be incurred from the Banks pro rata
on the basis of their respective Term Loan Commitments or Revolving Loan
Commitments, as the case may be. It is understood that no Bank shall be
responsible for any default by any other Bank of its obligation to make Loans
hereunder and that each Bank shall be obligated to make the Loans provided to
be made by it hereunder regardless of the failure of any other Bank to make its
Loans hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan from the date of
the Borrowing thereof until the maturity thereof (whether by acceleration or
otherwise) at a rate per annum which shall at all times be equal to the sum of
the Applicable Margin relating thereto plus the Base Rate in effect from time
to time.
(b) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan from the date of the Borrowing
thereof until the maturity thereof (whether by acceleration or otherwise) at a
rate per annum which shall, during each Interest Period applicable thereto, be
equal to the sum of the Applicable Margin relating thereto plus the Quoted Rate
for such Interest Period.
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall, in each case, bear interest at a rate per annum equal to the
greater of (x) 4-1/2% in excess of the Base Rate in effect from time to time
and (y) the rate which is 2% in excess of the rate of interest then applicable
to such Loan, in each case with such interest to be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on each
Quarterly Payment Date, (ii) in respect of each Eurodollar Loan, on the last
day of each Interest Period applicable thereto and, in the case of an Interest
Period in excess of three months, on each date occurring at three month
intervals after the first day of such Interest Period and (iii) in respect of
each Loan, on any repayment (on the amount repaid), at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the Agent shall
determine the Quoted Rate for the Interest Period applicable to Eurodollar
Loans and shall promptly notify the Borrower and the Banks thereof. Each such
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto.
1.09 Interest Periods. At the time it gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Eurodollar Loan
-5-
13
(in the case of the initial Interest Period applicable thereto) or prior to
12:00 Noon (New York time) on the third Business Day prior to the expiration of
an Interest Period applicable to such Eurodollar Loan (in the case of any
subsequent Interest Period), the Borrower shall have the right to elect, by
giving the Agent notice thereof, the interest period (each an "Interest
Period") applicable to such Eurodollar Loan, which Interest Period shall, at
the option of the Borrower, be a one, two, three or six-month period; provided
that:
(i) all Eurodollar Loans comprising a single Borrowing
shall at all times have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan
shall commence on the date of Borrowing of such Loan (including the
date of any conversion thereto from a Borrowing of Base Rate Loans)
and each Interest Period occurring thereafter in respect of such Loan
shall commence on the day on which the next preceding Interest Period
applicable thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan
begins on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided, however, that if any Interest
Period for a Eurodollar Loan would otherwise expire on a day which is
not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire
on the next preceding Business Day;
(v) no Interest Period may be selected at any time when a
Default or Event of Default then exists;
(vi) no Interest Period shall be selected which extends
beyond the Final Maturity Date; and
(vii) no Interest Period in respect of any Borrowing of Term
Loans shall be selected which extends beyond any Scheduled Repayment
Date if, after giving effect to the selection of such Interest Period,
the aggregate principal amount of Term Loans maintained as Eurodollar
Loans which have Interest Periods expiring after such Scheduled
Repayment Date will be in excess of the aggregate principal amount of
Term Loans then outstanding less the aggregate amount of the Scheduled
Repayment on such Scheduled Repayment Date.
-6-
14
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is
prohibited from electing as a result of any of the above clauses, a new
Interest Period to be applicable to such Eurodollar Loans as provided above,
the Borrower shall be deemed to have elected to convert such Eurodollar Loans
into Base Rate Loans effective as of the expiration date of such current
Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event
that any Bank shall have determined (which determination shall, absent manifest
error, be final and conclusive and binding upon all parties hereto but, with
respect to clause (i) below, may be made only by the Agent):
(i) on any Interest Determination Date that, by reason of
any changes arising after the date of this Agreement affecting the
interbank Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in
the definition of Quoted Rate; or
(ii) at any time, that such Bank shall incur increased costs
or reductions in the amounts received or receivable hereunder with
respect to any Eurodollar Loan because of (x) any change since the
date of this Agreement in any applicable law or governmental rule,
regulation, order, guideline or request (whether or not having the
force of law) or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule,
regulation, order, guideline or request, such as, for example, but not
limited to: (A) a change in the basis of taxation of payments to any
Bank of the principal of or interest on the Notes or any other amounts
payable hereunder (except for changes in the rate of tax on, or
determined by reference to, the net income or profits of such Bank
imposed by the jurisdiction in which its principal office or
applicable lending office is located) or (B) a change in official
reserve requirements (but, in all events, excluding reserves required
under Regulation D to the extent included in the computation of the
Quoted Rate) and/or (y) other circumstances since the date of this
Agreement affecting such Bank or the interbank Eurodollar market or
the position of such Bank in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or governmental
rule, regulation or order, (y) impossible by compliance by any Bank in
good faith with any governmental request (whether or not having the
force of law) or (z) impracticable as a result of a contingency
occurring after the date of this Agreement which materially and
adversely affects the interbank Eurodollar market;
-7-
15
then, and in any such event, such Bank (or the Agent, in the case of clause (i)
above) shall promptly give notice (by telephone confirmed in writing) to the
Borrower and, except in the case of clause (i) above, to the Agent of such
determination (which notice the Agent shall promptly transmit to each of the
other Banks). Thereafter (x) in the case of clause (i) above, Eurodollar Loans
shall no longer be available until such time as the Agent notifies the Borrower
and the Banks that the circumstances giving rise to such notice by the Agent no
longer exist, and any Notice of Borrowing or Notice of Conversion given by the
Borrower with respect to Eurodollar Loans which have not yet been incurred
(including by way of conversion) shall be deemed rescinded by the Borrower, (y)
in the case of clause (ii) above, the Borrower shall pay to such Bank, within
two Business Days following written demand therefor, such additional amounts
(in the form of an increased rate of, or a different method of calculating,
interest or otherwise as such Bank in its sole discretion shall determine) as
shall be required to compensate such Bank for such increased costs or
reductions in amounts received or receivable hereunder (a written notice as to
the additional amounts owed to such Bank, showing the basis for the calculation
thereof, submitted to the Borrower by such Bank shall, absent manifest error,
be final and conclusive and binding on all the parties hereto) and (z) in the
case of clause (iii) above, the Borrower shall take one of the actions
specified in Section 1.10(b) as promptly as possible and, in any event, within
the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) shall) either (i) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, by giving the Agent
telephonic notice (confirmed in writing) on the same date that the Borrower was
notified by the affected Bank or the Agent pursuant to Section 1.10(a)(ii) or
(iii), cancel the respective Borrowing, or (ii) if the affected Eurodollar Loan
is then outstanding, upon at least three Business Days' written notice to the
Agent, require the affected Bank to convert such Eurodollar Loan into a Base
Rate Loan; provided that if more than one Bank is affected at any time, then
all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date hereof, any Bank determines
that the introduction or implementation of or any change in applicable law or
governmental rule, regulation, order, any guideline, directive or request
(whether or not having the force of law and including, without limitation,
those announced or published prior to the Restatement Effective Date)
concerning capital adequacy, or any change in interpretation or administration
thereof by any governmental authority, central bank or comparable agency, will
have the effect of increasing the amount of capital required or expected to be
maintained by such Bank based on the existence of such Bank's Commitments
hereunder or its obligations hereunder, then the Borrower shall pay to such
Bank, upon its written demand therefor, such additional amounts as shall be
required to compensate such Bank for
-8-
16
the increased cost to such Bank or the reduction in the rate of return to such
Bank as a result of such increase of capital. In determining such additional
amounts, each Bank will act reasonably and in good faith and will use averaging
and attribution methods which are reasonable; provided that such Bank's
determination of compensation owing under this Section 1.10(c) shall, absent
manifest error, be final and conclusive and binding on all the parties hereto.
Each Bank, upon determining that any additional amounts will be payable
pursuant to this Section 1.10(c), will give prompt written notice thereof to
the Borrower, which notice shall show the basis for calculation of such
additional amounts, although the failure to give any such notice shall not
release or diminish any of the Borrower's obligations to pay additional amounts
pursuant to this Section 1.10(c).
(d) Each Bank agrees that upon the occurrence of any event
giving rise to the operation of Section 1.10 with respect to such Bank, it
will, if requested by the Borrower, use reasonable efforts (subject to overall
policy considerations of such Bank) to designate another lending office for any
Loans affected by such event, provided that such designation is made on such
terms that such Bank and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding or minimizing the
consequence of the event giving rise to the operation of any provisions of such
Section. The Borrower agrees to pay all costs and expenses incurred by such
Bank in utilizing such other lending office. Nothing in this Section 1.10(d)
shall affect or postpone any of the obligations of the Borrower or the right of
any Bank provided in Section 1.10.
1.11 Compensation. The Borrower shall compensate each Bank,
upon its written request (which request shall set forth the basis for
requesting such compensation), for all losses, expenses and liabilities
(including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required
by such Bank to fund its Eurodollar Loans) which such Bank may sustain: (i) if
for any reason (other than a default by such Bank or the Agent) a Borrowing of,
or conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion (whether or not
withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a));
(ii) if any repayment (including any repayment made pursuant to Section 4.02 or
a result of an acceleration of the Loans pursuant to Section 10) or conversion
of any of its Eurodollar Loans occurs on a date which is not the last day of an
Interest Period with respect thereto; (iii) if any prepayment of any of its
Eurodollar Loans is not made on any date specified in a notice of prepayment
given by the Borrower; or (iv) as a consequence of (x) any other default by the
Borrower to repay its Loans when required by the terms of this Agreement or any
Note held by such Bank or (y) any election made pursuant to Section 1.10(b). A
Bank's basis for requesting compensation pursuant to this Section, and a Bank's
calculations of the amount thereof, shall, absent manifest error, be final and
conclusive and binding on all the parties hereto.
-9-
17
1.12 Replacement of Banks. If (x) any Bank becomes a
Defaulting Bank or otherwise defaults in its obligations to make Loans or (y)
as provided in Section 13.12(b) in the case of certain refusals by a Bank to
consent to certain proposed changes, waivers, discharges or terminations with
respect to this Agreement which have been approved by the Required Banks, the
Borrower shall have the right, if no Default or Event of Default then exists,
to replace such Bank (the "Replaced Bank") with one or more Eligible
Transferees, none of whom shall constitute a Defaulting Bank at the time of
such replacement (collectively, the "Replacement Bank"), reasonably acceptable
to the Agent or, at the option of the Borrower, to replace only the Revolving
Loan Commitment (and Revolving Loans outstanding pursuant thereto) of the
Replaced Bank with an identical Revolving Loan Commitment provided by the
Replacement Bank, provided that (i) at the time of any replacement pursuant to
this Section 1.12, the Replacement Bank shall enter into one or more assignment
and assumption agreements pursuant to Section 13.04(b) (and with all fees
payable pursuant to said Section 13.04(b) to be paid by the Replacement Bank)
pursuant to which the Replacement Bank shall acquire all of the Commitments and
outstanding Loans (or, in the case of the replacement of only the Revolving
Loan Commitment, the Revolving Loan Commitment and outstanding Revolving Loans)
of the Replaced Bank and, in connection therewith, shall pay to the Replaced
Bank in respect thereof an amount equal to the sum of (A) an amount equal to
the principal of, and all accrued and unpaid interest on, all outstanding Loans
(or, in the case of the replacement of only the Revolving Loan Commitment, the
outstanding Revolving Loans) of the Replaced Bank and (B) an amount equal to
all accrued, but theretofore unpaid, Fees owing to the Replaced Bank pursuant
to Section 3.01 hereof and (ii) all obligations of the Borrower owing to the
Replaced Bank (other than those specifically described in clause (i) above in
respect of which the assignment purchase price has been, or is concurrently
being, paid) shall be paid in full to such Replaced Bank concurrently with such
replacement. Upon the execution of the respective assignment documentation,
the payment of amounts referred to in clauses (i) and (ii) above and, if so
requested by the Replacement Bank, delivery to the Replacement Bank of the
appropriate Note executed by the Borrower, (x) the Replacement Bank shall
become a Bank hereunder and, unless the respective Replaced Bank continues to
have outstanding Term Loans hereunder, the Replaced Bank shall cease to
constitute a Bank hereunder, except with respect to indemnification provisions
under this Agreement, which shall survive as to such Replaced Bank, and (y) if
so requested by the Borrower, the Replaced Bank shall deliver to the Borrower
for cancellation the Notes evidencing the Commitments and outstanding Loans of
the Replaced Bank acquired pursuant to this Section 1.12.
-10-
18
Section 2. Letters Of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms
and conditions herein set forth, the Borrower may request the Issuing Bank to
issue, at any time and from time to time after the Restatement Effective Date
and prior to the Final Maturity Date, for the account of the Borrower and for
the benefit of any holder (or any trustee, agent or other similar
representative for any such holders) of L/C Supportable Indebtedness of the
Borrower or any of its Subsidiaries, an irrevocable standby letter of credit in
a form customarily used by the Issuing Bank or in such other form as has been
approved by the Issuing Bank in support of said L/C Supportable Indebtedness
(each such Letter of Credit, a "Letter of Credit" and collectively, the
"Letters of Credit"). All Letters of Credit shall be denominated in Dollars.
(b) The Issuing Bank agrees that it will (subject to the
terms and conditions contained herein), after the Restatement Effective Date at
any time and from time to time after the Restatement Effective Date and prior
to the Final Maturity Date, following its receipt of the respective Letter of
Credit Request, issue for the account of the Borrower one or more Letters of
Credit, in support of such L/C Supportable Indebtedness of the Borrower or any
of its Subsidiaries as is permitted to remain outstanding without giving rise
to a Default or Event of Default hereunder; provided, that the Issuing Bank
shall be under no obligation to issue any Letter of Credit if at the time of
such issuance:
(i) any order, judgment or decree of any governmental
authority or arbitrator shall purport by its terms to enjoin or
restrain the Issuing Bank from issuing such Letter of Credit or any
requirement of law applicable to the Issuing Bank or any request or
directive (whether or not having the force of law) from any
governmental authority with jurisdiction over the Issuing Bank shall
prohibit, or request that the Issuing Bank refrain from, the issuance
of letters of credit generally or such Letter of Credit in particular
or shall impose upon the Issuing Bank with respect to such Letter of
Credit any restriction or reserve or capital requirement (for which
the Issuing Bank is not otherwise compensated) not in effect on the
Restatement Effective Date, or any unreimbursed loss, cost or expense
which was not applicable, in effect or known to the Issuing Bank as of
the Restatement Effective Date and which the Issuing Bank in good
▇▇▇▇▇ ▇▇▇▇▇ material to it; or
(ii) the Issuing Bank shall have received notice from any
Bank prior to the issuance of such Letter of Credit of the type
described in the penultimate sentence of Section 2.03(b).
-11-
19
(c) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, but
prior to the issuance of, the respective Letter of Credit) at such time, would
exceed $5,000,000, (ii) each Letter of Credit shall by its terms terminate on
or before the earlier of (x) the date which occurs 12 months after the date of
the issuance thereof (although any Letter of Credit may be renewable for
successive periods of up to 12 months, but not beyond the Final Maturity Date
on terms acceptable to the Issuing Bank) and (y) the Final Maturity Date and
(iii) no Letter of Credit shall be issued the Stated Amount of which, when
added to the Letter of Credit Outstandings at such time and the aggregate
principal amount of all Revolving Loans then outstanding, would exceed an
amount equal to the Total Revolving Loan Commitment then in effect.
(d) Notwithstanding the foregoing, in the event that any Bank
Default exists, the Issuing Bank shall not be required to issue the Letter of
Credit so requested unless the Issuing Bank has entered into arrangements
satisfactory to the Issuing Bank to eliminate the Issuing Bank's risk with
respect to the Bank that is the subject of the Bank Default, including by cash
collateralizing such Bank's Percentage of such Letter of Credit.
2.02 Minimum Stated Amount. The Stated Amount of each Letter
of Credit shall be not less than $100,000 or such lesser amount as is
acceptable to the Issuing Bank.
2.03 Letter of Credit Requests. (a) Whenever the Borrower
desires that a Letter of Credit be issued for its account, the Borrower shall
give the Agent and the Issuing Bank at least 10 days' (or such shorter period
as is acceptable to the Issuing Bank in any given case) written notice prior to
the proposed date of issuance (which shall be a Business Day), which notice
shall be in the form of Exhibit A-3 (each a "Letter of Credit Request"). The
Agent shall promptly transmit copies of each Letter of Credit Request to each
Bank.
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the Borrower that such Letter of
Credit may be issued in accordance with, and will not violate the requirements
of, Section 2.01(c). Unless the Issuing Bank has received notice from any Bank
before it issues a Letter of Credit that one or more of the conditions
specified in Section 5 or 6, as the case may be, are not then satisfied, or
that the issuance of such Letter of Credit would violate Section 2.01(c), then
the Issuing Bank may issue the requested Letter of Credit for the account of
the Borrower in accordance with the Issuing Bank's usual and customary
practices. Upon its issuance of any Letter of Credit, the Issuing Bank shall
promptly notify each Bank of such issuance, which notice shall be accompanied
by a copy of the Letter of Credit actually issued.
-12-
20
2.04 Letter of Credit Participations. (a) Immediately upon
the issuance by the Issuing Bank of any Letter of Credit, the Issuing Bank
shall be deemed to have sold and transferred to each Bank with a Revolving Loan
Commitment, other than the Issuing Bank (each such Bank, in its capacity under
this Section 2.04, a "Participant"), and each such Participant shall be deemed
irrevocably and unconditionally to have purchased and received from the Issuing
Bank, without recourse or warranty, an undivided interest and participation, to
the extent of such Participant's Percentage in such Letter of Credit, each
substitute letter of credit, each drawing made thereunder and the obligations
of the Borrower under this Agreement with respect thereto, and any security
therefor or guaranty pertaining thereto. Upon any change in the Total
Revolving Loan Commitment or the Percentages of the Banks pursuant to Section
13.04, it is hereby agreed that, with respect to all outstanding Letters of
Credit and Unpaid Drawings, there shall be an automatic adjustment to the
participations pursuant to this Section 2.04 to reflect the new Percentages of
the assignor and assignee Bank or of all Banks with Revolving Loan Commitments,
as the case may be.
(b) In determining whether to pay under any Letter of Credit,
the Issuing Bank shall not have any obligation relative to the other Banks
other than to confirm that any documents required to be delivered under such
Letter of Credit appear to have been delivered and that they appear to comply
on their face with the requirements of such Letter of Credit. Any action taken
or omitted to be taken by the Issuing Bank under or in connection with any
Letter of Credit if taken or omitted in the absence of gross negligence or
willful misconduct, shall not create for the Issuing Bank any resulting
liability to the Borrower or any Bank.
(c) In the event that the Issuing Bank makes any payment
under any Letter of Credit and the Borrower shall not have reimbursed such
amount in full to the Issuing Bank pursuant to Section 2.05(a), the Issuing
Bank shall promptly notify the Agent, which shall promptly notify each
Participant of such failure, and each Participant shall promptly and
unconditionally pay to the Agent for the account of the Issuing Bank the amount
of such Participant's Percentage of such unreimbursed payment in Dollars and in
same day funds. If the Agent so notifies, prior to 11:00 A.M. (New York time)
on any Business Day, any Participant required to fund a payment under a Letter
of Credit, such Participant shall make available to the Agent at the Payment
Office of the Agent for the account of the Issuing Bank in Dollars such
Participant's Percentage of the amount of such payment on such Business Day in
same day funds. If and to the extent such Participant shall not have so made
its Percentage of the amount of such payment available to the Agent for the
account of the Issuing Bank, such Participant agrees to pay to the Agent for
the account of the Issuing Bank, forthwith on demand such amount, together with
interest thereon, for each day from such date until the date such amount is
paid to the Agent for the account of the Issuing Bank at the overnight Federal
Funds Rate. The failure of any Participant to make available to the Agent for
the account of the Issuing Bank its Percentage of any payment under any Letter
of Credit shall not relieve any other Participant of its obligation
-13-
21
hereunder to make available to the Agent for the account of the Issuing Bank
its Percentage of any Letter of Credit on the date required, as specified
above, but no Participant shall be responsible for the failure of any other
Participant to make available to the Agent for the account of the Issuing Bank
such other Participant's Percentage of any such payment.
(d) Whenever the Issuing Bank receives a payment of a
reimbursement obligation as to which the Agent has received for the account of
the Issuing Bank any payments from the Participants pursuant to clause (c)
above, the Issuing Bank shall pay to the Agent and the Agent shall promptly pay
each Participant which has paid its Percentage thereof, in Dollars and in same
day funds, an amount equal to such Participant's share (based on the
proportionate aggregate amount funded by such Participant to the aggregate
amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of
the respective participations.
(e) Upon the request of any Participant, the Issuing Bank
shall furnish to such Participant copies of any Letter of Credit issued by the
Issuing Bank and such other documentation as may reasonably be requested by
such Participant.
(f) The obligations of the Participants to make payments to
the Agent for the account of the Issuing Bank with respect to Letters of Credit
issued shall be irrevocable and not subject to any qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of
this Agreement under all circumstances, including, without limitation, any of
the following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the Credit Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower may have at any time against a beneficiary
named in a Letter of Credit, any transferee of any Letter of Credit
(or any Person for whom any such transferee may be acting), the Agent,
any Participant, or any other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying transaction
between the Borrower and/or any of its Subsidiaries and the
beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
-14-
22
(v) the occurrence of any Default or Event of Default.
2.05 Agreement to Repay Letter of Credit Drawings. (a) The
Borrower hereby agrees to reimburse the Issuing Bank, by making payment to the
Agent in immediately available funds at the Payment Office (or by making the
payment directly to the Issuing Bank at such location as may otherwise have
been agreed upon by the Borrower and the Issuing Bank), for any payment or
disbursement made by the Issuing Bank under any Letter of Credit (each such
amount so paid until reimbursed, an "Unpaid Drawing"), immediately after, and
in any event on the date of, such payment or disbursement, with interest on the
amount so paid or disbursed by the Issuing Bank, to the extent not reimbursed
prior to 12:00 Noon (New York time) on the date of such payment or
disbursement, from and including the date paid or disbursed to but excluding
the date the Issuing Bank is reimbursed by the Borrower therefor at a rate per
annum which shall be the Base Rate in effect from time to time plus 4.5%, with
such interest to be payable on demand. The Issuing Bank shall provide the
Borrower prompt notice of each Drawing under any Letter of Credit; provided
that a failure to give any such notice shall in no way effect, impair or
diminish the Borrower's obligations under this Section 2.05(a) or under any
other Section of this Agreement.
(b) The obligations of the Borrower under this Section 2.05
to reimburse the Issuing Bank with respect to Unpaid Drawings (including, in
each case, interest thereon) shall be absolute and unconditional under any and
all circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrower may have or have had against any Bank (including in
its capacity as Issuing Bank or as Participant), including, without limitation,
any defense based upon the failure of any drawing under a Letter of Credit
(each a "Drawing") to conform to the terms of the Letter of Credit or any
nonapplication or misapplication by the beneficiary of the proceeds of such
Drawing; provided, however, that the Borrower shall not be obligated to
reimburse the Issuing Bank for any wrongful payment made by the Issuing Bank
under a Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the Issuing Bank.
2.06 Increased Costs. If at any time after the date hereof,
the Issuing Bank or any Participant determines that the introduction of or any
change in any applicable law or governmental rule, regulation, order, guideline
or request (whether or not having the force of law and including without
limitation those announced or published prior to the Restatement Effective
Date) or in the interpretation or administration thereof by any governmental
authority charged with the interpretation or administration thereof, or
compliance by the Issuing Bank or any Participant with any request or directive
by any such authority (whether or not having the force of law), shall either
(i) impose, modify or make applicable any reserve, deposit, capital adequacy or
similar requirement against letters of credit issued by the Issuing Bank or
participated in by any Participant, or (ii) impose on the
-15-
23
Issuing Bank or any Participant any other conditions relating, directly or
indirectly, to this Agreement or any Letter of Credit, and the result of any of
the foregoing is to increase the cost to the Issuing Bank or any Participant of
issuing, maintaining or participating in any Letter of Credit, or reduce the
amount of any sum received or receivable by the Issuing Bank or any Participant
hereunder or reduce the rate of return on its capital with respect to Letters
of Credit, then, upon demand to the Borrower by the Issuing Bank or any
Participant (a copy of which demand shall be sent by the Issuing Bank or such
Participant to the Agent), the Borrower shall pay to the Issuing Bank or such
Participant such additional amount or amounts as will compensate such Bank for
such increased cost or reduction in the amount receivable or reduction on the
rate of return on its capital. In determining such additional amounts, the
Issuing Bank or such Participant will act reasonably and in good faith and will
use averaging and attribution methods which are reasonable, provided such
Issuing Bank's or Participant's determination of compensation owing under this
Section 2.06 shall, absent manifest error, be final and conclusive and binding
on all the parties hereto. The Issuing Bank or any Participant, upon
determining that any additional amounts will be payable pursuant to this
Section 2.06, will give prompt written notice thereof to the Borrower, which
notice shall include a certificate submitted to the Borrower by the Issuing
Bank or such Participant (a copy of which certificate shall be sent by the
Issuing Bank or such Participant to the Agent), setting forth in reasonable
detail the basis for the calculation of such additional amount or amounts
necessary to compensate the Issuing Bank or such Participant, although failure
to give any such notice shall not release or diminish the Borrower's
obligations to pay additional amounts pursuant to this Section 2.06. The
certificate required to be delivered pursuant to this Section 2.06 shall,
absent manifest error, be final, conclusive and binding on the Borrower.
Section 3. Commitment Commission; Fees; Reductions Of
Commitment.
3.01 Fees. (a) The Borrower agrees to pay to the Agent for
distribution to each Non-Defaulting Bank with a Revolving Loan Commitment a
commitment commission (the "Commitment Commission") for the period from and
including the Restatement Effective Date to, but excluding, the Final Maturity
Date (or such earlier date as the Total Revolving Loan Commitment shall have
been terminated) computed at a rate for each day equal to 1/2 of 1% per annum
on the daily average Unutilized Revolving Loan Commitment of such
Non-Defaulting Bank. Accrued Commitment Commission shall be due and payable
quarterly in arrears on each Quarterly Payment Date and on the Final Maturity
Date or such earlier date upon which the Total Revolving Loan Commitment is
terminated.
(b) The Borrower agrees to pay to the Issuing Bank, for its
own account, a facing fee in respect of each Letter of Credit issued by the
Issuing Bank hereunder (the "Facing Fee") in an amount equal to 1/2 of 1% of
the daily Stated Amount of such Letter
-16-
24
of Credit, such Facing Fee to be due and payable in arrears to the Issuing Bank
in respect of each Letter of Credit issued by it on each Quarterly Payment Date
and on the date of the termination of the Total Revolving Loan Commitment.
(c) The Borrower agrees to pay to the Agent for distribution
to each Non-Defaulting Bank with a Revolving Loan Commitment a fee in respect
of each Letter of Credit issued hereunder (the "Letter of Credit Fee"), for the
period from and including the date of issuance of such Letter of Credit to and
including the date of termination of such Letter of Credit, computed at a rate
per annum equal to 2 1/2% of the daily Stated Amount of such Letter of Credit.
Letter of Credit Fees shall be distributed by the Agent to the Banks on the
basis of their respective Percentages as in effect from time to time. Accrued
Letter of Credit Fees shall be due and payable quarterly in arrears on each
Quarterly Payment Date and on the date of the termination of the Total
Revolving Loan Commitment.
(d) The Borrower shall pay, upon each drawing under, issuance
of, or amendment to, any Letter of Credit, such amount as shall at the time of
such event be the administrative charge which the Issuing Bank is generally
imposing in connection with such occurrence with respect to letters of credit.
(e) The Borrower shall pay to the Agent or the Issuing Bank
(each for its own account) such other fees and other compensation as have been
agreed to in writing by the Borrower and the Agent or the Issuing Bank.
(f) Notwithstanding anything to the contrary contained in
this Agreement or in the Original Credit Agreement, all unpaid Fees under, and
as defined in, the Original Credit Agreement (including without limitation
Commitment Commission (as defined in the Original Credit Agreement)) accrued
prior to the Restatement Effective Date shall be payable on the Restatement
Effective Date.
3.02 Voluntary Termination of Unutilized Commitments. Upon
at least three Business Days' prior written notice (or telephonic notice
confirmed in writing) to the Agent at its Notice Office (which notice the Agent
shall promptly transmit to each of the Banks), the Borrower shall have the
right, without premium or penalty, to terminate the Total Unutilized Revolving
Loan Commitment, in whole or in part; provided that (a) each such reduction
shall apply proportionately to reduce the Revolving Loan Commitment of each
Bank with such a Commitment and (b) any partial reduction pursuant to this
Section 3.02 shall be in integral multiples of at least $250,000.
3.03 Mandatory Reduction of Commitments. (a) The Total
Commitment (and the Term Loan Commitment and the Revolving Loan Commitment of
each Bank) shall terminate on December 15, 1994 unless the Restatement
Effective Date has occurred on or before such date.
-17-
25
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Term Loan Commitment (and the Term
Loan Commitment of each Bank) shall (i) terminate in its entirety on the
Restatement Effective Date (after giving effect to the making of the Term Loans
on such date) and (ii) prior to the termination of the Total Term Loan
Commitment as provided in clause (i) above be reduced from time to time to the
extent required by Section 4.02.
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each Bank) shall terminate on the Final Maturity
Date.
(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each Bank) shall be reduced at the time any
payment is required to be made on the principal amount of Revolving Loans (or
would be required to be made if Revolving Loans were then outstanding) pursuant
to Section 4.02(B)(a), by an amount equal to the maximum amount of Revolving
Loans that would be required to be repaid pursuant to Section 4.02(B)(a)
assuming that Revolving Loans were outstanding in an aggregate principal amount
equal to the Total Revolving Loan Commitment.
(e) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment shall be
reduced by the amount of $3,000,000 on March 31, 1995.
(f) Each reduction to the Total Term Loan Commitment and the
Total Revolving Loan Commitment pursuant to this Section 3.03 shall be applied
proportionately to reduce the Term Loan Commitment or the Revolving Loan
Commitment, as the case may be, of each Bank with such a Commitment.
Section 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. The Borrower shall have the
right to prepay Loans, without premium or penalty, in whole or in part from
time to time on the following terms and conditions: (i) the Borrower shall
give the Agent prior to 12:00 Noon (New York time) at its Notice Office at
least three Business Days' prior written notice in the case of Eurodollar Loans
and one Business Day's prior written notice in the case of Base Rate Loans of
its intent to prepay the Loans, whether Term Loans or Revolving Loans shall be
prepaid, the amount of such prepayment and the Types of Loans to be prepaid
and, in the case of Eurodollar Loans, the specific Borrowing or Borrowings
pursuant to which made, which notice the Agent shall promptly transmit to each
of the Banks; (ii) each prepayment shall be in an aggregate principal amount of
at least the Minimum Borrowing Amount and,
-18-
26
if greater, in integral multiples of $100,000; provided that no partial
prepayment of Eurodollar Loans made pursuant to any Borrowing shall reduce the
outstanding Loans made pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount; (iii) prepayments of Eurodollar Loans made pursuant
to this Section 4.01 may only be made so long as at the time of such prepayment
there shall be no outstanding Base Rate Loans and any compensation required to
be paid to each Bank pursuant to Section 1.11 for all losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other
funds required by such Bank to fund its Eurodollar Loans) which such Bank may
sustain as a result of such prepayment is made at the time of any such
prepayment of Eurodollar Loans; and (iv) each prepayment in respect of any
Loans made pursuant to a Borrowing shall be applied pro rata among such Loans;
provided that at the Borrower's election in connection with any prepayment
pursuant to this Section 4.01, any prepayment in respect of Revolving Loans
shall not be applied to any Revolving Loan of a Defaulting Bank. All
prepayments of Term Loans made pursuant to this Section 4.01 shall reduce in
inverse order of maturity the then remaining Scheduled Repayments.
4.02 Mandatory Repayments and Commitment Reductions.
(A) Requirements:
(a) On any day on which the sum of the aggregate outstanding
principal amount of the Revolving Loans and Letter of Credit Outstandings
exceeds the Total Revolving Loan Commitment as then in effect, the Borrower
shall prepay the principal of Revolving Loans in an amount equal to such
excess. If, after giving effect to the prepayment of all outstanding Revolving
Loans, the aggregate amount of the Letter of Credit Outstandings exceeds the
Total Revolving Loan Commitment as then in effect, the Borrower shall pay to
the Agent at the Payment Office on such date an amount of cash equal to the
amount of such excess (up to a maximum amount equal to the Letter of Credit
Outstandings at such time), such cash to be held as security for all
Obligations hereunder in a cash collateral account to be established by the
Agent.
(b) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, the Borrower shall be
required to repay on each date set forth below (each, a "Scheduled Repayment
Date"), the principal amount of Term Loans set forth below opposite such date
(each such repayment as the same may be reduced as provided in Sections 4.01
and 4.02(B)(a), a "Scheduled Repayment"):
Scheduled Repayment Dates Amount
------------------------- ----------
December 31, 1994 $ 300,000
March 31, 1995 $ 750,000
-19-
27
June 30, 1995 $ 750,000
September 30, 1995 $ 750,000
December 31, 1995 $ 750,000
March 31, 1996 $1,000,000
June 30, 1996 $1,000,000
September 30, 1996 $1,000,000
December 31, 1996 $1,000,000
March 31, 1997 $1,250,000
June 30, 1997 $1,250,000
September 30, 1997 $1,250,000
December 31, 1997 $1,250,000
March 31, 1998 $1,500,000
June 30, 1998 $1,500,000
September 30, 1998 $1,500,000
December 31, 1998 $1,500,000
March 31, 1999 $1,675,000
June 30, 1999 $1,675,000
September 30, 1999 $1,675,000
Final Maturity Date $1,675,000
(c) Subject to and in accordance with Section 4.02(B), on
each date after the Original Effective Date upon which the General Partner, the
Borrower or any of their respective Subsidiaries receives any proceeds from any
sale or issuance of its equity or partnership interests other than in
connection with an Approved Incentive Plan, or from any incurrence of
Indebtedness for borrowed money (other than (i) equity contributions to any
Subsidiary of the Borrower made by the General Partner, the Borrower or any
other Subsidiary of the Borrower, (ii) Indebtedness for borrowed money
permitted to be incurred pursuant to Section 9.05 as such Section is in effect
on the Restatement Effective Date and (iii) additional Indebtedness permitted
to be incurred by the Borrower pursuant to Section 9.05 as such Section may be
modified by the Required Banks from time to time but only to the extent that
the Required Banks expressly waive the applicability of this Section 4.02(A)(c)
with respect to the incurrence of such additional Indebtedness or expressly
permit the proceeds thereof to be used for purposes other than for repayments
pursuant to this Section 4.02(A)(c)), an amount equal to 100% of the cash
proceeds of the respective equity or partnership interest issuance or
incurrence (net of underwriting discounts and commissions and other reasonable
costs associated therewith) shall be applied as a mandatory repayment of
principal of outstanding Loans (or, if the Restatement Effective Date has not
yet occurred, as a mandatory reduction to the Total Term Loan Commitment).
(d) Subject to and in accordance with Section 4.02(B), no
later than 90 days after the last day of each fiscal year of the Borrower, an
amount equal to 75% of Excess
-20-
28
Cash Flow for such fiscal year shall be applied as a mandatory repayment of
principal of the then outstanding Loans.
(e) Subject to and in accordance with Section 4.02(B), on
each date after the Original Effective Date on which the General Partner, the
Borrower or any of their respective Subsidiaries receives proceeds from any
sale of assets (excluding (i) partnership interests, capital stock or
securities issued in connection with an Approved Incentive Plan and (ii) sales
of vehicles and equipment which, in the reasonable judgment of the Borrower
have become obsolete, worn out or uneconomic, in the Ordinary Course of
Business, the proceeds of which are used, or irrevocably committed, to purchase
replacement assets within 90 days from the date of sale so long as the
aggregate amount of Net Sale Proceeds excluded pursuant to this clause (ii)
does not exceed $200,000 in the aggregate in any fiscal year of the Borrower),
an amount equal to 100% of the Net Sale Proceeds thereof shall be applied as a
mandatory repayment of principal of the then outstanding Loans (or, if the
Restatement Effective Date has not yet occurred, as a mandatory reduction to
the Total Term Loan Commitment).
(B) Application:
(a) Each mandatory repayment of Loans pursuant to Sections
4.02(A)(c), (d) and (e) shall be applied (i) first, to prepay the principal of
outstanding Term Loans, which prepayments shall reduce the then remaining
Scheduled Repayments in inverse order of maturity based upon the then remaining
amount of each Scheduled Repayment after giving effect to all prior reductions
thereto, (ii) second, to prepay the principal of outstanding Revolving Loans
(with a corresponding reduction to the Total Revolving Loan Commitment) and
(iii) third, to reduce the remaining Total Revolving Loan Commitment (it being
understood and agreed that the amount of such reduction shall be deemed to be
an application of proceeds for purposes of this Section 4.02(B)(a) even though
cash is not actually applied).
(b) With respect to each repayment of Loans required by this
Section 4.02, the Borrower may designate the Types of Loans which are to be
repaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings of the respective Tranche pursuant to which made; provided that:
(i) repayments of Eurodollar Loans pursuant to this Section 4.02 may only be
made on the last day of an Interest Period applicable thereto unless all
Eurodollar Loans of the respective Tranche with Interest Periods ending on such
date of required repayment and all Base Rate Loans of the respective Tranche
have been paid in full; (ii) if any repayment of Eurodollar Loans made pursuant
to a single Borrowing shall reduce the outstanding Eurodollar Loans made
pursuant to such Borrowing to an amount less than the applicable Minimum
Borrowing Amount, such Borrowing shall immediately be converted into Base Rate
Loans; and (iii) each repayment of any Loans made pursuant to a single
Borrowing shall be applied pro rata among such Loans.
-21-
29
(c) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, all then outstanding Loans shall be repaid in full
on the Final Maturity Date.
4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or any Note
shall be made to the Agent for the account of the Bank or Banks entitled
thereto not later than 12:00 Noon (New York time) on the date when due and
shall be made in Dollars in immediately available funds at the Payment Office
of the Agent. Whenever any payment to be made hereunder or under any Note
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect
to payments of principal, interest shall be payable at the applicable rate
during such extension.
4.04 Net Payments. (a) All payments made by the Borrower
hereunder, or by the Borrower under any Note, will be made without setoff,
counterclaim or other defense. Except as provided in Section 4.04(b), all such
payments will be made free and clear of, and without deduction or withholding
for, any present or future taxes, levies, imposts, duties, fees, assessments or
other charges of whatever nature now or hereafter imposed by any jurisdiction
or by any political subdivision or taxing authority thereof or therein (but
excluding, except as provided in the third succeeding sentence, any tax imposed
on or measured by the net income of a Bank pursuant to the laws of the
jurisdiction in which it is organized or in which the principal office or
applicable lending office of such Bank is located or any subdivision thereof or
therein) and all interest, penalties or similar liabilities with respect
thereto (collectively, "Taxes"). If any Taxes are so levied or imposed, the
Borrower agrees to pay the full amount of such Taxes, and such additional
amounts as may be necessary so that every payment of all amounts due hereunder
or under any Note, after withholding or deduction for or on account of any
Taxes, will not be less than the amount provided for herein or in such Note.
The Borrower will furnish to the Agent within 45 days after the date the
payment of any Taxes is due pursuant to applicable law certified copies of tax
receipts evidencing such payment by the Borrower. The Borrower shall
reimburse each Bank, upon the written request of such Bank, for taxes imposed
on or measured by the net income of such Bank pursuant to the laws of the
jurisdiction or any political subdivision or taxing authority thereof or
therein in which such Bank is organized or in which the principal office or
applicable lending office of such Bank is located as such Bank shall determine
are payable by such Bank in respect of such amounts so paid to or on behalf of
such Bank pursuant to the second preceding sentence. The Borrower agrees to
indemnify and hold harmless each Bank, and reimburse such Bank upon its written
request, for the amount of any Taxes so levied or imposed and paid by such
Bank.
(b) Each Bank which is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for Federal income tax
purposes agrees (i) to provide to the Borrower on or prior to the Restatement
Effective Date (it being understood that any
-22-
30
such forms delivered in connection with the Original Credit Agreement shall be
sufficient for purposes of this Section 4.04(b)) two original signed copies of
Internal Revenue Service Form 4224 or Form 1001 certifying to such Bank's
entitlement to an exemption from United States withholding tax with respect to
payments to be made under this Agreement and under any Note and (ii) that, to
the extent legally entitled to do so, (x) with respect to a Bank that is an
assignee or transferee of an interest under this Agreement pursuant to Section
13.04(b) (unless the respective Bank was already a Bank hereunder immediately
prior to such assignment or transfer), upon the date of such assignment or
transfer to such Bank and (y) with respect to any such Bank, upon the
reasonable request by the Borrower after the Restatement Effective Date, it
will provide to the Borrower two original signed copies of Internal Revenue
Service Form 4224 or Form 1001 (or any successor forms) certifying to such
Bank's entitlement to an exemption from, or reduction in, United States
withholding tax with respect to payments to be made under this Agreement and
under any Note. Notwithstanding anything to the contrary contained in Section
4.04(a), the Borrower shall be entitled, to the extent it is required to do so
by law, to deduct or withhold income or other similar taxes imposed by the
United States (or any political subdivision or taxing authority thereof or
therein) from interest, fees or other amounts payable hereunder (without any
obligation to pay the respective Bank additional amounts with respect thereto)
for the account of any Bank which has not provided to the Borrower such forms
required to be provided to the Borrower by a Bank pursuant to the first
sentence of this Section 4.04(b). Notwithstanding anything to the contrary
contained in the preceding sentence, the Borrower agrees to indemnify each Bank
referred to in the previous sentence in the manner set forth in Section 4.04(a)
in respect of any amounts deducted or withheld by it as described in the
previous sentence as a result of any changes after the Restatement Effective
Date in any applicable law, treaty, governmental rule, regulation, guideline or
order, or in the interpretation thereof, relating to the deducting or
withholding of income or similar Taxes.
Section 5. Conditions Precedent to the Restatement Effective
Date. The occurrence of the Restatement Effective Date pursuant to Section
13.10, the obligation of each Bank to make Loans and the obligation of the
Issuing Bank to issue any Letter of Credit, is subject on the Restatement
Effective Date and at the time of each such Credit Event to the satisfaction of
the following conditions:
5.01 Execution of Agreement; Notes. On the Restatement
Effective Date (i) this Agreement shall have been executed and delivered in
accordance with Section 13.10 and (ii) there shall have been delivered to the
Agent for the account of each of the Banks the appropriate Term Note or
Revolving Note executed by the Borrower in the amount, maturity and as
otherwise provided herein.
5.02 Officer's Certificate. On the Restatement Effective
Date, the Agent shall have received a certificate dated the Restatement
Effective Date signed on behalf of the General Partner by any senior officer of
the General Partner and on behalf of the Bor-
-23-
31
rower by the President, any Executive Vice President or any Vice President of
the Borrower stating that all of the conditions in Sections 5.11, 5.12, 5.16,
6.01, 6.02 and 6.03 have been satisfied on such date.
5.03 Opinions of Counsel. On the Restatement Effective Date,
the Agent shall have received from (i) Dechert Price & ▇▇▇▇▇▇, counsel to the
General Partner, the Borrower and its Subsidiaries, an opinion addressed to the
Agent, the Issuing Bank and each of the Banks and dated the Restatement
Effective Date covering the matters set forth in Exhibit C-1 and (ii) from
▇▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel of the Borrower, an opinion addressed to the
Agent, the Issuing Bank and each of the Banks and dated the Restatement
Effective Date covering the matters set forth in Exhibit C-2, each of which
opinions shall be in form and substance satisfactory to the Agent and the
Required Banks and shall cover such other matters incident to the transactions
contemplated herein as the Agent may reasonably request.
5.04 Corporate Documents; Proceedings. (a) On the
Restatement Effective Date, the Agent shall have received a certificate, dated
the Restatement Effective Date, signed by the President, any Executive Vice
President or any Vice President of each Credit Party (other than limited
partners of the Borrower), and attested to by the Secretary or any Assistant
Secretary of such Credit Party, in the form of Exhibit D with appropriate
insertions, together with copies of the Certificate of Incorporation and
By-Laws or Certificate of Limited Partnership of such Credit Party and the
resolutions or similar evidence of authority of such Credit Party referred to
in such certificate, and the foregoing shall be acceptable to the Agent and the
Required Banks in their sole discretion.
(b) All corporate or partnership and legal proceedings and
all instruments and agreements relating to the transactions contemplated by
this Agreement and the other Credit Documents shall be satisfactory in form and
substance to the Agent and the Required Banks, and the Agent shall have
received all information and copies of all documents and papers, including
records of corporate or partnership proceedings, governmental approvals, good
standing certificates and bring-down telegrams, if any, which the Agent or the
Required Banks reasonably may have requested in connection therewith, such
documents and papers where appropriate to be certified by proper corporate or
governmental authorities.
5.05 Employee Benefit Plans; Partnership Agreements;
Management Agreements; Employment Agreements; Collective Bargaining Agreements;
Debt Agreements; Material Contracts. On the Restatement Effective Date, there
shall have been delivered to the Agent true and correct copies, certified as
true and complete by an appropriate officer of the Borrower of:
-24-
32
(i) all "employee benefit plans" (as defined in Section 3
of ERISA), or other similar plans or arrangements maintained by the
Borrower or any Subsidiary, for the benefit of employees of the
Borrower or any Subsidiary and any profit sharing plans and deferred
compensation plans maintained by the Borrower or any Subsidiary for
the benefit of employees of the Borrower or any Subsidiary
(collectively, the "Employee Benefit Plans");
(ii) all agreements entered into by the General Partner, the
Borrower or any Subsidiary or the partners of any thereof governing
the terms and relative rights of the partnership interests in the
Borrower or any Subsidiary (collectively, the "Partnership
Agreements");
(iii) all agreements with members of, or with respect to the,
management of the Borrower or any Subsidiary other than Employment
Agreements (collectively, the "Management Agreements");
(iv) any employment agreements entered into by the Borrower
or any Subsidiary with any members of senior management of the
Borrower or any Subsidiary (collectively, the "Employment
Agreements");
(v) all collective bargaining agreements applying or
relating to any employee of the Borrower or any Subsidiary
(collectively, the "Collective Bargaining Agreements");
(vi) any agreement evidencing or relating to Indebtedness of
the Borrower or any Subsidiary which is to remain outstanding after
giving effect to the incurrence of Loans on the Restatement Effective
Date and which evidences Indebtedness in excess of $100,000
(collectively, the "Debt Agreements"); and
(vii) all Material Contracts of the Borrower and its
Subsidiaries;
all of which Employee Benefit Plans, Partnership Agreements, Management
Agreements, Employment Agreements, Collective Bargaining Agreements, Debt
Agreements and Material Contracts shall be in form and substance satisfactory
to the Agent and the Required Banks provided, however, that only those Employee
Benefit Plans, Partnership Agreements, Management Agreements, Employments
Agreements, Collective Bargaining Agreements, Debt Agreements and Material
Contracts which were not in existence on the Original Effective Date or, if in
existence on the Original Effective Date, have been materially modified since
such date, shall be required to be delivered pursuant to this Section 5.05.
-25-
33
5.06 Acknowledgments. (a) On the Restatement Effective
Date, each Subsidiary of the Borrower party to the Subsidiaries Guaranty and
the Subsidiaries Security Agreement prior to the Restatement Effective Date
shall have duly authorized, executed and delivered an acknowledgment and
agreement in the form of Exhibit E (the "Subsidiary Acknowledgment"), which
acknowledgment and agreement, among other things, (i) acknowledges this
Agreement and the transactions contemplated hereby, (ii) acknowledges and
agrees that, the "Obligations" (as defined in each of such documents) include
all of the Obligations under this Agreement after giving effect to the
Restatement Effective Date and any increase in the amounts owing to the Banks
or the Agent under this Agreement, (iii) acknowledges and agrees that, after
giving effect to the Restatement Effective Date, each of the Subsidiaries
Guaranty and the Subsidiaries Security Agreement shall remain in full force and
effect in accordance with the respective terms thereof and (iv) contains any
additional information required to be set forth as of the Restatement Effective
Date on any Schedule to the Subsidiaries Security Agreement.
(b) On the Restatement Effective Date, the Borrower
shall have duly authorized, executed and delivered an acknowledgment and
agreement in the form of Exhibit F (the "Borrower Acknowledgment") with respect
to the Borrower Partnership Pledge Agreement, the Borrower Pledge Agreement and
the Borrower Security Agreement, which acknowledgement and agreement, among
other things, (i) acknowledges and agrees that, the "Obligations" (as defined
in each of such documents) include all of the Obligations under this Agreement
after giving effect to the Restatement Effective Date and any increase in the
amounts owing to the Banks or the Agent under this Agreement, (ii) acknowledges
and agrees that, after giving effect to the Restatement Effective Date, each of
the Borrower Partnership Pledge Agreement, the Borrower Pledge Agreement and
the Borrower Security Agreement shall remain in full force and effect in
accordance with the respective terms thereof and (iii) contains any additional
information required to be set forth as of the Restatement Effective Date on
any Schedule to any such document, and the Borrower shall have taken all
actions reasonably requested by the Agent (including, without limitation, the
obtaining of UCC-11's or equivalent reports and the filing of UCC-1's or
UCC-3's) in connection with the granting of liens pursuant to the Borrower
Partnership Pledge Agreement.
(c) On the Restatement Effective Date, the General
Partner and each limited partner of the Borrower party to the Partner Pledge
Agreement shall have duly authorized, executed and delivered an acknowledgement
and agreement in the form of Exhibit G (the "Partner Acknowledgement"), which
acknowledgement and agreement, among other things, (i) acknowledges and agrees
that, the "Obligations" (as defined in such agreement) include all of the
Obligations under this Agreement after giving effect to the Restatement
Effective Date and any increase in the amounts owing to the Banks or the Agent
under this Agreement, (ii) acknowledges and agrees that, after giving effect to
the Restatement Effective Date, the Partner Pledge Agreement shall remain in
full force and
-26-
34
effect in accordance with its terms and (iii) contains any additional
information required to be set forth as of the Restatement Effective Date on
any Schedule to the Partner Pledge Agreement, and each such partner shall have
taken all actions reasonably requested by the Agent (including, without
limitation, the obtaining of UCC-11's or equivalent reports and the filing of
UCC-1's or UCC-3's) in connection with the granting of liens pursuant to the
Partner Pledge Agreement.
5.07 Pledge Agreements. (a) On the Restatement
Effective Date, the Collateral Agent, as Pledgee, shall have in its possession
all the promissory notes constituting Pledged Securities referred to in the
Borrower Pledge Agreement then owned by the Borrower endorsed in blank.
(b) On the Restatement Effective Date, (i) each of the
Partner Pledge Agreement, the Borrower Partnership Pledge Agreement and the
Borrower Pledge Agreement shall remain in full force and effect and (ii) no
filings, recordings, registrations or other actions shall be necessary or
desirable to maintain the perfection and priority of the security interests
granted pursuant to each of such Pledge Agreements in the Pledge Agreement
Collateral covered thereby.
5.08 Security Agreements. (a) On the Restatement
Effective Date, (i) each of the Borrower Security Agreement and the
Subsidiaries Security Agreement shall remain in full force and effect, (ii) no
filings, recordings, registrations or other actions shall be necessary or
desirable to maintain the perfection and priority of the security interests
granted by the original parties to the Borrower Security Agreement or the
Subsidiaries Security Agreement in the Security Agreement Collateral covered
thereby (except to the extent made pursuant to clause (B) or (C) below), and
(iii) in the case of each of the Borrower Security Agreement and the
Subsidiaries Security Agreement, the Banks shall have received:
(A) certified copies of Requests for Information or copies
(Form UCC-11), or equivalent reports, listing all effective financing
statements that name any Credit Party, or a division or other
operating unit of any thereof, as debtor and that are filed in any
jurisdiction where a filing may be necessary or, in the opinion of the
Collateral Agent, desirable to perfect the security interests
purported to be created by such Security Agreement, together with
copies of such other financing statements (none of which shall cover
the Collateral except to the extent evidencing Permitted Liens or for
which the Collateral Agent shall have received termination statements
(Form UCC-3 or such other termination statements as shall be required
by local law) fully executed for filing);
(B) evidence of the completion of all other recordings and
filings of, or with respect to, such Security Agreement as may be
necessary or, in the opinion of
-27-
35
the Collateral Agent, desirable to perfect the security interests
intended to be created by such Security Agreement; and
(C) evidence that all other actions necessary or, in the
opinion of the Collateral Agent, desirable to perfect and protect the
security interests purported to be created by such Security Agreement
have been taken.
5.09 Subsidiaries Guaranty. On the Restatement
Effective Date, the Subsidiaries Guaranty shall be in full force and effect.
5.10 Assumption Agreements. (a) On the Restatement
Effective Date, any Subsidiary of the Borrower that is not already party to the
Subsidiaries Guaranty and the Subsidiaries Security Agreement shall have duly
authorized, executed and delivered a Subsidiary Assumption Agreement
substantially in the form of Exhibit H-1 (as modified, supplemented or amended
from time to time, the "Subsidiary Assumption Agreement") pursuant to which
such Subsidiary shall (i) by execution thereof become party to the Subsidiaries
Guaranty and the Subsidiaries Security Agreement and (ii) take all actions
reasonably requested by the Agent (including, without limitation, the obtaining
of UCC-11's or equivalent reports and the filing of UCC-1's) in connection with
the granting of security interests pursuant to the Subsidiaries Security
Agreement.
(b) On the Restatement Effective Date any partner of the
Borrower that is not already party to the Partner Pledge Agreement shall have
executed and delivered a Partner Assumption Agreement substantially in the form
of Exhibit H-2 (as modified, supplemented or amended from time to time, the
"Partner Assumption Agreement") pursuant to which such limited partner shall
(i) by execution thereof become party to the Partner Pledge Agreement and (ii)
take all actions reasonably requested by the Agent (including, without
limitation, the obtaining of UCC-11's or equivalent reports and the filing of
UCC-1's) in connection with the granting of security interests pursuant to the
Partner Pledge Agreement.
5.11 Adverse Change, etc. On the Restatement Effective
Date nothing shall have occurred since the date of the most recent audited
financial statements of the Borrower (and the Banks shall have become aware of
no facts or conditions not previously known) which the Agent or the Required
Banks shall determine (a) could reasonably be expected to have a materially
adverse effect on the rights or remedies of the Banks or the Agent, or on the
ability of the General Partner, the Borrower or any of its Subsidiaries to
perform their obligations to the Agent and the Banks under this Agreement or
any other Credit Document, (b) could reasonably be expected to have a
materially adverse effect on the performance, business, assets, nature of
assets, liabilities, operations, properties, condition (financial or otherwise)
or prospects of the General Partner or of the Borrower and its Subsidiaries
taken as a whole or (c) indicates the inaccuracy in any material respect of the
-28-
36
information previously provided to the Agent or the Banks (taken as a whole) or
indicates that the information previously provided omitted to disclose any
material information.
5.12 Litigation. On the Restatement Effective Date, no
litigation by any entity (private or governmental) shall be pending or
threatened with respect to this Agreement, any other Credit Document or any
documentation executed in connection herewith or with respect to the
transactions contemplated hereby, or which the Agent or Required Banks shall
determine could reasonably be expected to have a materially adverse effect on
the performance, business, assets, nature of assets, liabilities, operations,
properties, condition (financial or otherwise) or prospects of the General
Partner or of the Borrower and its Subsidiaries taken as a whole.
5.13 Fees, etc. On the Restatement Effective Date, the
Borrower shall have paid in full (a) to the Agent, and the Original Banks all
costs, fees, expenses (including, without limitation, all reasonable legal fees
and expenses) and other consideration payable to the Agent and the Original
Banks under the Original Credit Agreement (whether or not same would otherwise
be due on such date thereunder) and (b) to the Agent and the Banks all costs,
fees and expenses (including, without limitation, all reasonable legal fees and
expenses) and other consideration payable to the Agent and the Banks hereunder
to the extent then due.
5.14 Subsidiary Notes; Concentration Accounts. (a) On
the Restatement Effective Date, all Subsidiary Notes shall be in full force and
effect.
(b) On the Restatement Effective Date, all proceeds of
the loans made pursuant to the Subsidiary Notes shall have been deposited into
the Concentration Account established pursuant to the Borrower Security
Agreement.
(c) The Borrower shall have delivered to the Agent a
Concentration Account Consent Letter with NationsBank and all required
Concentration Account Consent Letters shall be in full force and effect.
5.15 Solvency Letter; Insurance Analyses. On the
Restatement Effective Date, the Borrower shall cause to be delivered to the
Agent and the Banks: (i) a solvency certificate in the form of Exhibit I,
addressed to the Agent and each of the Banks and dated the Restatement
Effective Date, from the chief financial officer of the Borrower as to the
solvency of the Borrower and its Subsidiaries taken as a whole; and (ii)
evidence of insurance, complying with the requirements of Section 8.03, with
respect to the business and properties of the Borrower and its Subsidiaries,
and covering losses relating to employment practices (including termination of
employment, sexual misconduct, harassment and discrimination), and including
without limitation a Guaranteed Cost Insurance Contract with respect to
Workers' Compensation liabilities, in each case in scope, form and
-29-
37
substance satisfactory to the Agent and the Required Banks and, with respect to
property and liability insurance, naming the Collateral Agent as an additional
insured and loss payee and stating that such insurance shall not be cancelled
or revised without 30 days' prior written notice by the insurer to the Agent.
5.16 Approvals. On the Restatement Effective Date,
there shall not exist any judgment, order, injunction or other restraint issued
or filed or a hearing seeking injunctive relief or other restraint pending or
notified with respect to the making of the Loans hereunder.
5.17 Financial Statements. On or prior to a date at
least five days prior to the Restatement Effective Date, the Banks shall have
received the financial statements referred to in Section 7.05(a), prepared in
accordance with generally accepted accounting principles, which financial
statements shall be in form and substance satisfactory to the Agent and the
Required Banks, and shall not disclose any material adverse differences in the
financial condition of the Borrower and its Subsidiaries taken as a whole from
that previously disclosed to the Agent and the Required Banks.
5.18 Existing Indebtedness. On the Restatement
Effective Date, after giving effect to the Loans incurred on the Restatement
Effective Date, neither the Borrower nor any of its Subsidiaries shall have any
Indebtedness or preferred equity interests outstanding except for the Loans and
a guaranty by the Borrower in favor of the Subsidiary Guarantors of amounts
paid by the Subsidiary Guarantors pursuant to the Subsidiaries Guaranty.
5.19 Original Credit Agreement. On the Restatement
Effective Date, all Original Loans thereunder shall have been repaid in full,
together with interest thereon, and all other amounts owing pursuant to the
Original Credit Agreement shall have been repaid in full and, after giving
effect thereto, all outstanding Notes (as defined in the Original Credit
Agreement) issued by the Borrower to the Original Banks under the Original
Credit Agreement shall be deemed cancelled.
5.20 Management Investor Loans. On the Restatement
Effective Date, the Management Investor Loans (as defined in the original
Credit Agreement) shall have been paid in full (other than that extended to
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, which will be partially paid on such date).
Section 6. Conditions Precedent to All Loans. The
occurrence of the Restatement Effective Date pursuant to Section 13.10, the
obligation of each Bank to make Loans and the obligation of the Issuing Bank to
issue any Letter of Credit, is subject, at the time of each such Credit Event
(except as hereinafter indicated), to the satisfaction of the following
conditions:
-30-
38
6.01 No Default; Representations and Warranties. At the
time of each such Credit Event and also after giving effect thereto (i) there
shall exist no Default or Event of Default and (ii) all representations and
warranties contained herein and in the other Credit Documents shall be true and
correct in all material respects with the same effect as though such
representations and warranties had been made on the date of the making of such
Credit Event.
6.02 Adverse Change, etc. Nothing shall have occurred
(and the Banks shall have become aware of no facts or conditions not previously
known) which the Agent or the Required Banks shall determine could reasonably
be expected to have a material adverse effect on the rights or remedies of the
Banks or the Agent, or on the ability of the General Partner, the Borrower or
any Subsidiary to perform their obligations to the Banks or which could
reasonably be expected to have a materially adverse effect on the performance,
business, assets, nature of assets, liabilities, operations, properties,
condition (financial or otherwise) or prospects of the General Partner or of
the Borrower and its Subsidiaries taken as a whole.
6.03 Litigation. At the time of each such Credit Event
and also after giving effect thereto, no litigation by any entity (private or
governmental) shall be pending or threatened with respect to this Agreement or
any other Credit Document executed in connection herewith or the transactions
contemplated hereby or which the Required Banks shall determine could
reasonably be expected to have a materially adverse effect on the performance,
business, assets, nature of assets, liabilities, operations, properties,
condition (financial or otherwise) or prospects of the General Partner or of
the Borrower and its Subsidiaries taken as a whole.
6.04 Notice of Borrowing; Letter of Credit Request. (a)
Prior to the making of each Loan, the Agent shall have received a Notice of
Borrowing meeting the requirements of Section 1.03(a).
(b) Prior to the issuance of each Letter of Credit, the
Agent and the Issuing Bank shall have received a Letter of Credit Request
meeting the requirements of Section 2.03.
6.05 Subsequent Legal Opinions. If, at the time of any
Credit Event subsequent to the Restatement Effective Date, the Agent or the
Required Banks shall have determined that any facts, circumstances or
conditions might exist which could reasonably be expected to adversely affect
either (x) the ability of counsel to issue at such time the legal opinions
originally delivered pursuant to Section 5.03 or (y) the perfection or priority
of the security interests created pursuant to the Security Documents, the Agent
shall have received from counsel (who shall be satisfactory to the Agent and
the Required Banks) for any Credit Party, an opinion in form and substance
satisfactory to the Required Banks,
-31-
39
addressed to the Agent, the Issuing Bank and the Banks, and dated the date of
such Credit Event, covering such of the matters set forth in the opinions of
counsel theretofore required to be delivered pursuant to Section 5.03 as the
Agent or the Required Banks, as the case may be, shall specify or such other
matters incident to the transactions contemplated herein as the Agent or the
Required Banks, as the case may be, may request.
The occurrence of the Restatement Effective Date and
acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the General Partner and the Borrower to each of
the Banks that all the conditions specified in Section 5 and in this Section 6
and applicable to the Restatement Effective Date or such Credit Event exist as
of that time. All of the Notes, certificates, legal opinions and other
documents and papers referred to in Section 5 and in this Section 6, unless
otherwise specified, shall be delivered to the Agent at the Notice Office for
the account of each of the Banks and, except for the Notes, in sufficient
counterparts or copies for each of the Banks and, unless otherwise specified,
shall be in form and substance satisfactory to the Banks.
Notwithstanding anything to the contrary contained above
or in Section 13.10, if the Restatement Effective Date does not occur on or
prior to December 15, 1994, then it shall not thereafter occur (unless the
Required Banks agree in writing to an extension of such date), and this
Agreement shall cease to be of any further force or effect and the Original
Credit Agreement shall continue to be effective, as the same may have been, or
may thereafter be, amended, modified or supplemented from time to time.
Section 7. Representations, Warranties and Agreements.
In order to induce the Banks to enter into this Agreement and to make the
Loans, and issue (or participate in) the Letters of Credit as provided herein,
each of the General Partner and the Borrower makes the following
representations, warranties and agreements as to itself and as to each of its
Subsidiaries, as of the Restatement Effective Date (both before and after
giving effect to the Refinancing Transaction and the Credit Events occurring on
such date) and as of the date of each subsequent Credit Event, which
representations, warranties and agreements shall survive the execution and
delivery of this Agreement and the Notes and any subsequent Credit Event, with
the occurrence of the Restatement Effective Date and each Credit Event (except
as hereinafter indicated) being deemed to constitute a representation and
warranty that the matters specified in this Section 7 are true and correct on
and as of the Restatement Effective Date and as of the date of each such Credit
Event:
7.01 Corporate or Partnership Status. Each of the
General Partner, the Borrower and its Subsidiaries (i) is a duly organized and
validly existing corporation or limited partnership in good standing under the
laws of the jurisdiction of its organization, (ii) has the corporate or
partnership power and authority to own its property and assets and to transact
the business in which it is engaged and presently proposes to engage and (iii)
is duly qualified and is authorized to do business and is in good standing in
each jurisdiction
-32-
40
where the ownership, leasing or operation of property or the conduct of its
business requires such qualifications except for failures to be so qualified
which, in the aggregate, would not have a material adverse effect on the
performance, business, assets, nature of assets, liabilities, operations,
properties, condition (financial or otherwise) or prospects of the General
Partner or of the Borrower and its Subsidiaries taken as a whole.
7.02 Corporate or Partnership Power and Authority. Each
Credit Party has the corporate, partnership or other power to execute, deliver
and perform the terms and provisions of each of the Credit Documents to which
it is party and has taken all necessary corporate, partnership or other action
to authorize the execution, delivery and performance by it of each of such
Credit Documents. Each Credit Party has duly executed and delivered each of
the Credit Documents to which it is party, and each of such Credit Documents
constitutes its legal, valid and binding obligation enforceable against each
such Credit Party in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law).
7.03 No Violation. Neither the execution, delivery or
performance by any Credit Party of the Credit Documents to which it is a party,
nor compliance by it with the terms and provisions thereof, (i) will contravene
any provision of any applicable law, statute, rule or regulation or any order,
writ, injunction or decree of any court or governmental instrumentality, (ii)
will conflict with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien
(except pursuant to the Security Documents) upon any Person's partnership
interests in the Borrower or any of their respective Subsidiaries or any of the
property or assets of such Credit Party or its Subsidiaries pursuant to the
terms of any indenture, mortgage, deed of trust, credit agreement or loan
agreement, or any other agreement, contract or instrument to which such Credit
Party or its Subsidiaries is a party or by which it or any of its property or
assets is bound or to which it may be subject or (iii) will violate any
provision of the Certificate of Incorporation, By-Laws or partnership
agreements (or similar organizational documents) of such Credit Party or its
Subsidiaries.
7.04 Governmental Approvals. No order, consent,
approval, license, authorization or validation of, or filing, recording or
registration with (except as have been obtained or made prior to the
Restatement Effective Date), or exemption by, any governmental or public body
or authority, or any subdivision thereof, is required to authorize, or is
required in connection with, (i) the execution, delivery and performance of any
Credit Document or any of the transactions contemplated thereby or (ii) the
legality, validity, binding effect or enforceability of any such Credit
Document.
-33-
41
7.05 Financial Statements; Financial Condition;
Undisclosed Liabilities; Projections; etc. (a) (i) The consolidated balance
sheets of the Borrower and its Subsidiaries at December 31, 1993 and at
September 30, 1994 and the related consolidated statements of income and
retained earnings for the fiscal year or nine-month period, as the case may be,
then ended, which (in the case of the year-end statements) have been examined
by Deloitte & Touche, independent certified public accountants, who delivered
an unqualified opinion in respect thereto and (in the case of the September 30,
1994 statements) have been reviewed by Deloitte & Touche, and (ii) the pro
forma (after giving effect to the Refinancing Transaction and the incurrence of
Loans on the Restatement Effective Date) consolidated balance sheets of the
Borrower and its Subsidiaries as of the Restatement Effective Date, copies of
each of which have heretofore been furnished to each Bank, present fairly the
financial position of the respective entities at the dates of said statements
and the results of operations for the period covered thereby (or, in the case
of the pro forma balance sheet, present a good faith estimate of the
consolidated financial condition of the Borrower and its Subsidiaries at the
date thereof). All such financial statements (other than such pro forma
balance sheets) have been prepared in accordance with generally accepted
accounting principles and practices consistently applied except to the extent
provided in the notes to said financial statements. Since December 31, 1993,
there has been no material adverse change in the performance, business, assets,
nature of assets, liabilities, operations, properties or condition (financial
or otherwise) of the Borrower and its Subsidiaries taken as a whole.
(b) On and as of the Restatement Effective Date, on a
pro forma basis after giving effect to the Refinancing Transaction and to all
Indebtedness (including the Loans) being incurred in connection with the
Refinancing Transaction, and Liens created, and to be created, by each Credit
Party in connection therewith: (a) the sum of the assets, at a fair valuation,
of the Borrower and of the Borrower and its Subsidiaries taken as a whole will
exceed their respective debts; (b) neither the Borrower nor the Borrower and
its Subsidiaries taken as a whole have incurred or intend to, or believe that
they will, incur debts beyond their ability to pay such debts as such debts
mature; and (c) the Borrower and the Borrower and its Subsidiaries taken as a
whole will have sufficient capital with which to conduct their respective
businesses. For purposes of this Section 7.05(b) "debt" means any liability on
a claim, and "claim" means (i) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or
(ii) right to an equitable remedy for breach of performance if such breach
gives rise to a payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.
(c) Except as fully reflected in the financial
statements and the notes related thereto described in Section 7.05(a), there
were as of the Restatement Effective Date (and after giving effect to the
Refinancing Transaction and the other transactions
-34-
42
contemplated hereby) no liabilities or obligations with respect to the General
Partner, the Borrower or any of their respective Subsidiaries of any nature
whatsoever (whether absolute, accrued, contingent or otherwise and whether or
not due) which, either individually or in aggregate, could be material to the
General Partner, the Borrower and their respective Subsidiaries taken as a
whole. As of the Restatement Effective Date, the Borrower knows of no basis
for the assertion against the General Partner, the Borrower or any of their
respective Subsidiaries of any liability or obligation of any nature whatsoever
that is not fully disclosed in the financial statements delivered pursuant to
Section 7.05(a) which, either individually or in the aggregate, could be
material to the General Partner or to the Borrower and their respective
Subsidiaries taken as a whole. As of the Restatement Effective Date (after
giving effect to the Refinancing Transaction) the General Partner will have no
outstanding Indebtedness and none of the Borrower or any of its Subsidiaries
will have any outstanding Indebtedness other than the Loans.
(d) On and as of the Restatement Effective Date, the
financial projections (the "Projections") set forth on Schedule II hereto, have
been prepared by Borrower's management based on good faith estimates and
assumptions believed by them to be reasonable under current circumstances and
on a basis consistent with the financial statements referred to in Section
7.05(a) (other than as expressly set forth in such Projections), and there are
no statements or conclusions in any of the Projections which are based upon or
include information known to the Borrower to be misleading in any material
respect or which fail to take into account material information regarding the
matters reported therein. On the Restatement Effective Date, the Borrower
believed that the Projections were reasonable and attainable; provided,
however, that changes in facts and circumstances may render such projections
unattainable and provided, further, that this representation shall not be
viewed as a guaranty of future performance.
7.06 Litigation. There are no actions, suits or
proceedings pending or, to the best knowledge of the General Partner or the
Borrower, threatened (i) with respect to any Indebtedness of the Borrower or
any of its Subsidiaries, or (ii) that could reasonably be expected to
materially and adversely affect the performance, business, assets, nature of
assets, liabilities, operations, properties, condition (financial or otherwise)
or prospects of the General Partner or of the Borrower and its Subsidiaries
taken as a whole.
7.07 True and Complete Disclosure. All factual
information (taken as a whole) heretofore or contemporaneously furnished by or
on behalf of the General Partner, the Borrower or any Subsidiary in writing to
the Agent or any Bank (including without limitation all information contained
in the Documents) for purposes of or in connection with this Agreement, the
other Credit Documents or any transaction contemplated herein or therein is,
and all other such factual information (taken as a whole) hereafter furnished
by or on behalf of the General Partner, the Borrower or any Subsidiary in
writing to the Agent or any Bank will be, true and accurate in all material
respects on the date as of which such
-35-
43
information is dated or certified and not incomplete by omitting to state any
fact necessary to make such information (taken as a whole) not misleading in
any material respect at such time in light of the circumstances under which
such information was provided.
7.08 Use of Proceeds; Margin Regulations. (a) All
proceeds of the Term Loans incurred on the Restatement Effective Date shall be
used by the Borrower to repay outstanding Original Loans in full, to consummate
the Refinancing Transaction and to pay fees and expenses related thereto.
(b) (i) On the Restatement Effective Date, up to
$5,800,000 of Revolving Loans may be used for the purposes described in Section
7.08(a) above and (ii) all proceeds of Revolving Loans incurred after the
Restatement Effective Date shall be used by the Borrower for general corporate
and working capital purposes of the Borrower.
(c) No part of the proceeds of any Loan will be used to
purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock. Neither the making of any Loan nor
the use of the proceeds thereof will violate or be inconsistent with the
provisions of Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System. At no time shall 25% or more of the assets of the General
Partner and the Borrower and its Subsidiaries consist of Margin Stock.
7.09 Tax Returns and Payments. Each of the General
Partner, the Borrower and its Subsidiaries has timely filed or caused to be
timely filed with the appropriate taxing authority, all returns, statements,
forms and reports for taxes (the "Returns") required to be filed by or with
respect to the income, properties or operations of the General Partner, the
Borrower and/or any of their respective Subsidiaries. The Returns accurately
reflect all liability for taxes of the General Partner, the Borrower and their
respective Subsidiaries for the periods covered thereby. Each of the General
Partner, the Borrower and each of its Subsidiaries has paid all taxes payable
by it which have become due other than those contested in good faith and for
which adequate reserves have been established. There is no action, suit,
proceeding, investigation, audit, or claim now pending or, to the knowledge of
the General Partner or the Borrower, threatened by any authority regarding any
taxes relating to the General Partner, the Borrower or any of their respective
Subsidiaries. Neither the General Partner, the Borrower nor any of their
respective Subsidiaries has entered into an agreement or waiver or been
requested to enter into an agreement or waiver extending any statute of
limitations relating to the payment or collection of taxes of the General
Partner, the Borrower or any of their respective Subsidiaries, or is aware of
any circumstances that would cause the taxable years or other taxable periods
of the General Partner, the Borrower or any of their respective Subsidiaries
not to be subject to the normally applicable statute of limitations. None of
the General Partner, the Borrower or any of their respective Subsidiaries has
provided, with respect to themselves or property held by them, any consent
under Section 341 of the Code. None
-36-
44
of the General Partner, the Borrower or any of their respective Subsidiaries
has incurred, or will incur, any material tax liability in connection with the
Refinancing Transaction.
7.10 Compliance with ERISA. Each Plan is in substantial
compliance with ERISA and the Code; no Reportable Event has occurred with
respect to a Plan; no Plan is insolvent or in reorganization; no Plan has an
Unfunded Current Liability; no Plan has an accumulated or waived funding
deficiency, has permitted decreases in its funding standard account or has
applied for an extension of any amortization period within the meaning of
Section 412 of the Code; all contributions required to be made with respect to
a Plan have been timely made; neither the Borrower nor any of its Subsidiaries
nor any ERISA Affiliate has incurred any material liability to or on account of
a Plan pursuant to Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or 4980 of the
Code or expects to incur any material liability under any of the foregoing
Sections with respect to any Plan; no proceedings have been instituted to
terminate any Plan; no condition exists which presents a material risk to the
Borrower or any of its Subsidiaries or any ERISA Affiliate of incurring a
liability to or on account of a Plan pursuant to the foregoing provisions of
ERISA and the Code; using actuarial assumptions and computation methods
consistent with subpart 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of the Borrower and its Subsidiaries and all ERISA Affiliates to
all Plans which are multiemployer plans (as defined in Section 4001(a)(3) of
ERISA) in the event of a complete withdrawal therefrom, as of the close of the
most recent fiscal year of each such Plan ended prior to the date of any Credit
Event, would not exceed $250,000; no lien imposed under the Code or ERISA on
the assets of the Borrower or any of its Subsidiaries or any ERISA Affiliate
exists or is likely to arise on account of any Plan; and the Borrower and its
Subsidiaries may cease contributions to or terminate any employee benefit plan
maintained by any of them without incurring any material liability.
7.11 The Security Documents. (a) The provisions of the
Security Documents are effective to create in favor of the Collateral Agent for
the benefit of the Secured Creditors a legal, valid and enforceable security
interest in all right, title and interest of the respective Credit Parties in
the Collateral described therein and the Collateral Agent, for the benefit of
the Secured Creditors, has a fully perfected first lien on, and security
interest in, all right, title and interest of the respective Credit Parties, in
all of the Collateral described therein, subject to no other Liens other than
Permitted Liens. The recordation of the Security Agreements in the United
States Patent and Trademark Office together with filings on Form UCC-1 made
pursuant to such Security Agreements were effective (and continue to be
effective), under federal and state law, to perfect the security interest
granted to the Collateral Agent in the trademarks and patents covered by such
Security Agreements and the filing of such Security Agreements with the United
States Copyright Office together with filings on Form UCC-1 made pursuant to
such Security Agreements were effective (and continue to be effective) under
federal law to perfect the
-37-
45
security interest granted to the Collateral Agent in the copyrights covered by
such Security Agreements. Each of the Credit Parties party to a Security
Agreement has good and valid title to all Collateral described therein, free
and clear of all Liens except those permitted under Section 9.01.
(b) The security interests created in favor of the
Collateral Agent with respect to any partnership interests, as pledgee for the
benefit of the Secured Creditors, under any Pledge Agreement constitute first
perfected security interests in such partnership interests, subject to no other
Liens. Except for filings made pursuant to Section 4.09 of the Original Credit
Agreement and Sections 5.06(b) or (c) or 5.10(b) of this Agreement, no filings
or recordings are required in order to perfect (or maintain the perfection or
priority of) the security interests created in the partnership interests under
the Pledge Agreements.
(c) In the case of Pledged Securities which are
certificated securities, so long as the Collateral Agent has possession of the
Pledged Securities, the security interests created in favor of the Collateral
Agent, as Pledgee for the benefit of the Secured Creditors, under the Borrower
Pledge Agreement constitute first perfected security interests in the Pledged
Securities described in the Borrower Pledge Agreement, subject to no security
interests of any other Person. No filings or recordings are required in order
to perfect the security interests created in the Pledged Securities under the
Borrower Pledge Agreement.
(d) Schedule III contains a true and complete list of
Real Property owned or leased (to the extent any lease has yearly lease
payments in excess of $50,000) by the Borrower and each of its Subsidiaries on
the Restatement Effective Date, and the type of interest therein held by the
Borrower and/or its Subsidiaries. Each of the Borrower and its Subsidiaries
has good and marketable title to all Real Property free and clear of all Liens
except Permitted Liens.
(e) No consents, filings or recordings are required as a
result of the amendment and restatement of the Original Credit Agreement
pursuant to this Agreement to maintain the perfection and priority of the
security interests purported to be created by the Original Security Documents.
7.12 Properties. Each of the Borrower and its
Subsidiaries has good and valid title to all properties owned by them,
including all property reflected in the consolidated pro forma combined balance
sheet (after giving effect to the Refinancing Transaction) referred to in
Section 7.05(a)(ii), free and clear of all Liens, other than (i) as referred to
in the consolidated pro forma balance sheet or in the notes thereto or (ii)
otherwise permitted by Section 9.01.
-38-
46
7.13 Capitalization. On the Restatement Effective Date
and after giving effect to the Refinancing Transaction, the partnership
interests in the Borrower and each of its Subsidiaries, and all owners of any
equity interest therein, shall be as set forth on Schedule IV. The General
Partner has no Subsidiaries other than the Borrower and its Subsidiaries.
Neither the General Partner nor the Borrower nor any of their respective
Subsidiaries has any outstanding preferred equity interests or any outstanding
securities convertible into or exchangeable for any of its equity interests or
outstanding rights to subscribe for or to purchase, or warrants or options for
the purchase, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any charter relating to,
its partnership or other equity interests, as the case may be.
7.14 Compliance with Statutes, etc. Each of the General
Partner, the Borrower and their respective Subsidiaries is in compliance with
all applicable statutes, regulations and orders of, and all applicable
restrictions imposed by, all governmental bodies, domestic or foreign, in
respect of (a) the conduct of its business, including without limitation
Sections 468.520-468.534 of the Florida Statutes regarding employee leasing
companies, and (b) the ownership of its property (including applicable
statutes, regulations, orders and restrictions relating to environmental
standards and controls), except for such instances of noncompliance as could
not, in the aggregate, reasonably be expected to have a material adverse effect
on the performance, business, assets, nature of assets, liabilities,
operations, properties, condition (financial or otherwise) or prospects of the
General Partner or of the Borrower and its Subsidiaries taken as a whole.
7.15 Investment Company Act. None of the General
Partner, the Borrower or any of its Subsidiaries is an "investment company" or
a company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
7.16 Public Utility Holding Company Act. None of the
General Partner, the Borrower or any of its Subsidiaries is a "holding
company," or a "subsidiary company" of a "holding company," or an "affiliate"
of a "holding company" or of a "subsidiary company" of a "holding company"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
7.17 Environmental Matters. (a) The Borrower and each
of its Subsidiaries have complied in all material respects with, and on the
date of such Credit Event are in compliance in all material respects with, all
applicable Environmental Laws and the requirements of any permits issued under
such Environmental Laws. There are no past, pending or, to the knowledge of
the Borrower, threatened Environmental Claims against the Borrower or any of
its Subsidiaries or any Real Property owned or operated by the Borrower or any
of its Subsidiaries which could, individually or in the aggregate, reasonably
be expected to have a material adverse effect on the performance, business,
-39-
47
assets, nature of assets, liabilities, operations, properties, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries
taken as a whole. There are no facts, circumstances, conditions or occurrences
on any Real Property owned or operated by the Borrower or any of its
Subsidiaries or, to the knowledge of the Borrower, on any property adjoining or
in the vicinity of any such Real Property that could reasonably be expected (i)
to form the basis of an Environmental Claim against the Borrower or any of its
Subsidiaries or any such Real Property that individually or in the aggregate,
could reasonably be expected to have a material adverse effect on the
performance, business, assets, nature of assets, liabilities, operations,
properties, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole, or (ii) to cause any such Real Property to
be subject to any restrictions on the ownership, occupancy, use or
transferability of such Real Property under any Environmental Law.
(b) Hazardous Materials have not at any time been
generated, used, treated or stored on, or transported to or from, any Real
Property owned or operated by the Borrower or any of its Subsidiaries where
such generation, use, treatment or storage could reasonably be expected to have
a material adverse effect on the performance, business, assets, nature of
assets, liabilities, operations, properties, condition (financial or otherwise)
or prospects of the Borrower and its Subsidiaries taken as a whole. Hazardous
Materials have not at any time been Released on or from any Real Property owned
or operated by the Borrower or any of its Subsidiaries where such Release could
reasonably be expected to have a material adverse effect on the performance,
business, assets, nature of assets, liabilities, operations, properties,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole.
(c) There are no underground storage tanks located on
any Real Property owned or operated by the Borrower or any of its Subsidiaries.
(d) Notwithstanding anything to the contrary in this
Section 7.17, the representations made in this Section 7.17 shall only be
untrue if the aggregate effect of all failures and noncompliances of the types
described above could reasonably be expected to have a material adverse effect
on the business, operations, property, assets, nature of assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole.
7.18 Labor Relations. None of the Borrower or any of
its Subsidiaries is engaged in any unfair labor practice that could reasonably
be expected to have a material adverse effect on the Borrower and its
Subsidiaries taken as a whole. There is (i) no significant unfair labor
practice complaint pending against the Borrower or any of its Subsidiaries or,
to the best knowledge of the Borrower, threatened against any of them, before
the National Labor Relations Board, and no significant grievance or significant
arbitration proceeding arising out of or under any collective bargaining
agreement is so
-40-
48
pending against the Borrower or any of its Subsidiaries or, to the best
knowledge of the Borrower, threatened against any of them, (ii) no significant
strike, labor dispute, slowdown or stoppage pending against the Borrower or any
of its Subsidiaries or, to the best knowledge of the Borrower, threatened
against the Borrower or any of its Subsidiaries and (iii) to the best knowledge
of the Borrower, no union representation question existing with respect to the
employees of the Borrower or any of its Subsidiaries, except (with respect to
any matter specified in clause (i), (ii) or (iii) above, either individually or
in the aggregate) such as could not reasonably be expected to have a material
adverse effect on the performance, business, assets, nature of assets,
liabilities, operations, properties, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole.
7.19 Patents, Licenses, Franchises and Formulas. (a)
The Borrower, together with its Subsidiaries owns, has a license to use or
otherwise has the right to use, free and clear of pending or threatened Liens,
all the patents, patent applications, trademarks, service marks, trade names,
trade secrets, copyrights, proprietary information, computer programs, data
bases, licenses, franchises and formulas, or rights with respect to the
foregoing (collectively, "Intellectual Property"), and has obtained all
licenses and other rights of whatever nature, necessary for the present conduct
of its business, without any known conflict with the rights of others which, or
the failure to obtain which, as the case may be, would result in a material
adverse effect on the performance, business, assets, nature of assets,
liabilities, operations, properties, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole.
(b) The Borrower has no knowledge of any pending or
threatened claim by any third party contesting the validity, enforceability,
use or ownership of the Intellectual Property, or of any existing state of
facts that would support a claim that use by the Borrower or any of its
Subsidiaries of any such Intellectual Property has infringed or otherwise
violated any Intellectual Property right of any other Person.
7.20 Restrictions on or Relating to Subsidiaries. There
does not exist any encumbrance or restriction on the ability of (a) any
Subsidiary of the Borrower to make any Distributions to the Borrower or any
Subsidiary, or to pay any Indebtedness owed to the Borrower or any Subsidiary,
(b) any Subsidiary to make loans or advances to the Borrower or any Subsidiary
or (c) the Borrower or any Subsidiary to transfer any of its properties or
assets to the Borrower or any Subsidiary, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) this
Agreement and the other Credit Documents or (iii) customary provisions
restricting subletting or assignment of any lease governing a leasehold
interest of the Borrower or any Subsidiary.
-41-
49
7.21 Material Contracts. All material contracts and
licenses of the Borrower and each of its Subsidiaries as of the Restatement
Effective Date are listed on Schedule V.
Section 8. Affirmative Covenants. Each of the General
Partner and the Borrower covenants and agrees that on and after the Restatement
Effective Date and until the Total Commitment and all Letters of Credit have
terminated and the Loans, Notes and Unpaid Drawings, together with interest,
Fees and all other Obligations are paid in full:
8.01 Information Covenants. The Borrower will furnish
to each Bank:
(a) Monthly Reports. Within 30 days after the end of
each fiscal month other than the last such month of any fiscal quarter
of the Borrower, the consolidated balance sheets of the Borrower and
its Subsidiaries as at the end of such month and the related
consolidated statements of income and retained earnings and statement
of cash flows for such month and for the elapsed portion of the fiscal
year ended with the last day of such month, in each case setting forth
comparative figures (including with respect to the number of clients
and number of employees of the Borrower and its Subsidiaries) for the
corresponding month in the prior fiscal year and comparable budgeted
figures for such period, all of which shall be certified by the chief
financial officer of the Borrower, subject to normal year-end audit
adjustments.
(b) Quarterly Financial Statements. Within 45 days
after the close of the first three quarterly accounting periods in
each fiscal year of the Borrower, the consolidated balance sheets of
the Borrower and its Subsidiaries as at the end of such quarterly
period and the related consolidated statements of income, retained
earnings and cash flows, in each case for such quarterly period and
for the elapsed portion of the fiscal year ended with the last day of
such quarterly period, in each case setting forth comparative figures
(including with respect to the number of clients and number of
employees of the Borrower and its Subsidiaries) for the related
periods in the prior fiscal year and comparable budgeted figures for
such period, all of which shall be certified by the chief financial
officer of the Borrower, subject to normal year-end audit adjustments.
(c) Annual Financial Statements. Within 90 days after
the close of each fiscal year of the Borrower, the consolidated
balance sheets of the Borrower and its Subsidiaries as at the end of
such fiscal year and the related consolidated statements of income,
earnings and cash flows for such fiscal year and setting forth
comparative figures for the preceding fiscal year and comparable
budgeted figures for such period and certified by Deloitte & Touche or
other independent certified
-42-
50
public accountants of recognized national standing reasonably
acceptable to the Required Banks, together with a signed opinion of
such accounting firm (which opinion shall not be qualified in any
respect) stating that in the course of its regular audit of the
financial statements of the Borrower which audit was conducted in
accordance with generally accepted auditing standards, such accounting
firm obtained no knowledge of any Default or Event of Default which
has occurred or, if in the opinion of such accounting firm such a
Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof.
(d) Management Letters. Promptly after the receipt
thereof by the Borrower or any of its Subsidiaries, a copy of any
"management letter" received by the Borrower or any of its
Subsidiaries from its certified public accountants.
(e) Budgets. No later than the earlier of (x) 90 days
following the first day of each fiscal year of the Borrower or (y) the
fifth day following the approval thereof by the General Partner, a
budget for the Borrower and its Subsidiaries in form satisfactory to
the Agent and the Required Banks (including budgeted statements of
income and sources and uses of cash and balance sheets) prepared by
the Borrower for (i) each calendar month of such fiscal year and (ii)
each subsequent fiscal year to and including the fiscal year ending
December 31, 1999, in each case, prepared in reasonable detail with
appropriate presentation and discussion of the principal assumptions
upon which such budgets are based, accompanied by the statement of the
chief financial officer of the Borrower to the effect that, to the
best of his knowledge, the budget is a reasonable estimate for the
period covered thereby.
(f) Officer's Certificates. At the time of the delivery
of the financial statements provided for in Section 8.01(a), (b) and
(c), a certificate of the chief financial officer of the General
Partner on behalf of the General Partner and the Borrower to the
effect that no Default or Event of Default has occurred and is
continuing or, if any Default or Event of Default has occurred and is
continuing, specifying the nature and extent thereof, which
certificate, (x) in the case of certificates delivered pursuant to
Section 8.01(b) or (c), shall set forth the calculations required to
establish whether the Borrower was in compliance with the provisions
of Sections 9.04, 9.05, 9.06, and 9.08 through 9.12, inclusive at the
end of such fiscal quarter or year, as the case may be and (y) in the
case of certificates delivered pursuant to Section 8.01(c), the amount
of Excess Cash Flow for the immediately preceding fiscal year of the
Borrower.
(g) Notice of Default or Litigation. Promptly, and in
any event within three Business Days after an officer of the General
Partner, the Borrower or any of its Subsidiaries obtains knowledge
thereof, notice of (i) the occurrence of any
-43-
51
event which constitutes a Default or Event of Default, (ii) any
litigation or governmental investigation or proceeding pending (x)
against the General Partner, the Borrower or any of its Subsidiaries
which could reasonably be expected to materially and adversely affect
the performance, business, assets, nature of assets, liabilities,
operations, properties, condition (financial or otherwise) or
prospects of the General Partner or of the Borrower and its
Subsidiaries taken as a whole or (y) with respect to any Document or
any material Indebtedness of the Borrower or its Subsidiaries and
(iii) any other event which is likely to materially and adversely
affect the performance, business, assets, nature of assets,
liabilities, operations, properties, condition (financial or
otherwise) or prospects of the General Partner or of the Borrower and
its Subsidiaries taken as a whole.
(h) Other Reports and Filings. Promptly upon
transmission thereof, copies of any financial information, proxy
materials and other information and reports, if any, which any Credit
Party (other than limited partners of the Borrower) or any of its
Subsidiaries (x) has filed with, the Securities and Exchange
Commission or any successor thereto or (y) has delivered to holders
of, or any agent or trustee with respect to, Indebtedness of any such
Credit Party or any of its Subsidiaries in its capacity as such a
holder, agent, or trustee.
(i) Environmental Matters. Promptly upon, and in any
event within three Business Days after an officer of the General
Partner, the Borrower or of any of its Subsidiaries obtains knowledge
thereof, notice of any of the following environmental matters (i) any
pending or threatened Environmental Claim against the Borrower or any
of its Subsidiaries or any Real Property owned or operated by the
Borrower or any of its Subsidiaries; (ii) any condition or occurrence
on or arising from any Real Property owned or operated by the Borrower
or any if its Subsidiaries that (a) results in noncompliance by the
Borrower or any of its Subsidiaries with any applicable Environmental
Law, or (b) could reasonably be anticipated to form the basis of an
Environmental Claim against the Borrower or any of its Subsidiaries or
any such Real Property; (iii) any condition or occurrence on any Real
Property owned or operated by the Borrower or any of its Subsidiaries
that could reasonably be anticipated to cause such Real Property to be
subject to any restrictions on the ownership, occupancy, use or
transferability of such Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in response to the
actual or alleged presence of any Hazardous Material on any Real
Property owned or operated by the Borrower or any of its Subsidiaries
as required by any Environmental Law or any governmental or other
administrative agency; provided that in any event the Borrower shall
deliver to each Bank all notices received by the Borrower or any of
its Subsidiaries from any government or governmental agency under, or
pursuant to, CERCLA. All such notices shall describe in reasonable
detail the nature of the claim, investigation,
-44-
52
condition, occurrence or removal or remedial action and the Borrower
or such Subsidiary's response thereto. In addition, the Borrower will
provide the Banks with copies of all communications with any
government or governmental agency relating to Environmental Claims,
all communications with any person relating to Environmental Claims,
and such detailed reports of any Environmental Claim as may reasonably
be requested by the Banks.
(j) Annual Meetings with Banks. Within 75 days after
the close of each fiscal year of the Borrower, the General Partner and
the Borrower shall, at the request of the Agent or Required Banks,
hold a meeting with all of the Banks at which meeting shall be
reviewed the financial results of the previous fiscal year and the
financial condition of the Borrower and its Subsidiaries and the
budgets presented for the current fiscal year of the Borrower and its
Subsidiaries.
(k) Other Information. From time to time, such other
information or documents (financial or otherwise) with respect to any
Credit Party or any of its Subsidiaries, as the Agent, or the Required
Banks may reasonably request.
8.02 Books, Records and Inspections. Each of the
General Partner and the Borrower will, and the General Partner will cause each
of its Subsidiaries to, keep proper books of record and account in which full,
true and correct entries in conformity with United States generally accepted
accounting principles and all requirements of law shall be made of all dealings
and transactions in relation to its business and activities. Each of the
General Partner and the Borrower will, and the General Partner will cause each
of its Subsidiaries to, permit officers and designated representatives of the
Agent or any Bank to visit and inspect, under guidance of officers of the
General Partner, the Borrower or of such Subsidiary, any of the properties of
the General Partner, the Borrower or such Subsidiary, and to examine the books
of account of the General Partner, the Borrower or such Subsidiary and discuss
the affairs, finances and accounts of the General Partner, the Borrower or such
Subsidiary with, and be advised as to the same by, its and their officers, all
at such reasonable times and intervals and to such reasonable extent as the
Agent or such Bank may request.
8.03 Maintenance of Property, Insurance. (a) Schedule
VI sets forth a true and complete listing of all insurance maintained by the
Borrower and each of its Subsidiaries as of the Restatement Effective Date.
Each of the General Partner and the Borrower will, and the General Partner will
cause each of its Subsidiaries to, (i) keep all material property useful and
necessary in its business in good working order and condition (normal wear and
tear excepted), (ii) maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against at
least such risks as are described in Schedule VI, and (iii) furnish to each
Bank, upon written request, full information as to the insurance carried. At
any time that insurance at
-45-
53
levels described on Schedule VI is not being maintained by the Borrower or any
Subsidiary, the Borrower will notify the Banks in writing within three Business
Days thereof and, if thereafter notified by the Required Banks to do so, the
Borrower or such Subsidiary, as the case may be, shall obtain insurance at such
levels at least equal to those set forth on Schedule VI to the extent then
generally available.
(b) Each of the General Partner and the Borrower will,
and the General Partner will cause each of its Subsidiaries to, at all times
keep their respective property and business insured in favor of the Collateral
Agent, and all policies or certificates (or certified copies thereof) with
respect to such insurance (and any other insurance maintained by the General
Partner, the Borrower and its Subsidiaries) (i) shall be endorsed, with respect
to property and liability insurance, to the Collateral Agent's satisfaction for
the benefit of the Collateral Agent (including, without limitation, by naming
the Collateral Agent as loss payee and/or as an additional insured), (ii) shall
state that such insurance policies shall not be cancelled or revised without 30
days' prior written notice thereof by the respective insurer to the Collateral
Agent, (iii) shall provide that the respective insurers irrevocably waive any
and all rights of subrogation with respect to the Collateral Agent and the
Secured Creditors, (iv) shall, except in the case of public liability
insurance and workers' compensation insurance, provide that any losses shall be
payable notwithstanding (A) any act or neglect of the General Partner, the
Borrower or any of its Subsidiaries, (B) the occupation or use of the
properties for purposes more hazardous than those permitted by the terms of the
respective policy if such coverage is obtainable at commercially reasonable
rates and is of the kind from time to time customarily insured against by
Persons owning or using similar property and in such amounts as are customary,
(C) any foreclosure or other proceeding relating to the insured properties or
(D) any change in the title to or ownership or possession of the insured
properties and (v) shall be deposited with the Collateral Agent. If the
General Partner, the Borrower or any Subsidiary shall fail to insure its
property in accordance with this Section 8.03, or if the General Partner, the
Borrower or any Subsidiary shall fail to so endorse and deposit all policies or
certificates with respect thereto, the Collateral Agent shall have the right
(but shall be under no obligation) to procure such insurance and the Borrower
agrees to reimburse the Collateral Agent for all costs and expenses of
procuring such insurance.
8.04 Corporate Franchises. Each of the General Partner
and the Borrower will do, and the General Partner will cause each of its
Subsidiaries to do or cause to be done, all things necessary to preserve and
keep in full force and effect its existence and its material rights,
franchises, licenses and patents; provided, however, that nothing in this
Section 8.04 shall prevent (i) sales of assets by the Borrower or any of its
Subsidiaries in accordance with Section 9.02, (ii) the withdrawal by the
General Partner, the Borrower or any of its Subsidiaries of its qualification
as a foreign limited partnership in any jurisdiction where such withdrawal
could not reasonably be expected to have a material adverse effect on the
performance, business, assets, nature of assets, liabilities, operations,
-46-
54
properties, condition (financial or otherwise) or prospects of the General
Partner or of the Borrower and its Subsidiaries taken as a whole or (iii) the
taking of any action respecting any right, franchise, license or patent
determined by the General Partner to be in the best interest of such Borrower
or such Subsidiary.
8.05 Compliance with Statutes, etc. Each of the General
Partner and the Borrower will, and the General Partner will cause each of its
Subsidiaries to, comply with all applicable statutes, regulations and orders
of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the
ownership of its property, including without limitation the laws and
regulations referred to in Section 7.14, except such instances of noncompliance
as could not, in the aggregate, reasonably be expected to have a material
adverse effect on the performance, business, assets, nature of assets,
liabilities, operations, properties, condition (financial or otherwise) or
prospects of the General Partner or of the Borrower and its Subsidiaries taken
as a whole.
8.06 Compliance with Environmental Laws. (a) Each of
the General Partner and the Borrower will comply, and the General Partner will
cause each of its Subsidiaries to comply, in all material respects with all
Environmental Laws applicable to ownership or use of the Real Property, will
promptly pay or cause such Subsidiary to pay all costs and expenses incurred in
such compliance, and will keep or cause to be kept all such Real Properties
free and clear of any Liens imposed pursuant to such Environmental Laws. None
of the General Partner, the Borrower nor any Subsidiary will generate, use,
treat, store, release or dispose of, or permit the generation, use, treatment,
storage release or disposal of Hazardous Materials on any Real Property, or
transport or permit the transportation of Hazardous Materials to or from any
Real Property except in compliance with all applicable Environmental Laws and
as required in connection with the normal operation, use and maintenance of
such Real Property.
(b) In the event the Agent or the Required Banks
determine in their reasonable judgment that such should be requested, at the
request of the Agent or the Required Banks made not more than once a year for
any Real Property of the Borrower or any of its Subsidiaries or if an Event of
Default exists under this Agreement, at any time and from time to time during
the existence of this Agreement, the Borrower will provide, at its sole cost
and expense (or will cause the Borrower to provide at its sole cost and
expense), an environmental site assessment report concerning any Real Property
of the Borrower or its Subsidiaries, prepared by an environmental consulting
firm approved by the Agent and the Required Banks, indicating the presence or
Release of Hazardous Materials on or from any of the Real Property and the
potential cost of any removal or remedial action in connection with any
Hazardous Materials on such Real Property. If the Borrower fails to provide
the same after sixty days' notice, the Agent may order the same, and the
Borrower shall grant and hereby grants to the Agent and the Banks and their
agents
-47-
55
access to such Real Property and specifically grants the Agent and the Banks an
irrevocable non-exclusive license, subject to the rights of tenants, to
undertake such an assessment all at the Borrower's expense, as the case may be.
8.07 ERISA. As soon as possible and, in any event,
within 10 Business Days after the General Partner, the Borrower or any
Subsidiary or any ERISA Affiliate knows or has reason to know of the occurrence
of any of the following, the General Partner or the Borrower will deliver to
each of the Banks a certificate signed on behalf of the General Partner and the
Borrower by the chief financial officer of the General Partner setting forth
details as to such occurrence and the action, if any, which the General
Partner, the Borrower, such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be given to
or filed with or by the General Partner, the Borrower, the Subsidiary, the
ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with
respect thereto: that a Reportable Event has occurred, that an accumulated
funding deficiency has been incurred or an application may be or has been made
to the Secretary of the Treasury for a waiver or modification of the minimum
funding standard (including any required installment payments) or an extension
of any amortization period under Section 412 of the Code with respect to a
Plan, that a contribution required to be made to a Plan has not been timely
made; that a Plan has been or may be terminated, reorganized, partitioned or
declared insolvent under Title IV of ERISA, that a Plan has an Unfunded Current
Liability giving rise to a lien under ERISA or the Code, that proceedings may
be or have been instituted to terminate a Plan, that a proceeding has been
instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan, or that the General Partner, the Borrower, any
Subsidiary or any ERISA Affiliate will or may incur any liability (including
any contingent or secondary liability) to or on account of the termination of
or withdrawal from a Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or
4212 of ERISA or with respect to a Plan under Section 401(a)(29), 4971, 4975 or
4980 of the Code or Section 409 or 502(i) or 502(l) of ERISA; or that the
General Partner, the Borrower or any Subsidiary of the Borrower may incur any
material liability pursuant to any employee welfare benefit plan (as defined in
Section 3(l) of ERISA) that provides benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA); or that the
General Partner, the Borrower or any Subsidiary of the Borrower may reasonably
be expected to incur any substantial liability prior to the Final Maturity Date
not incurred as of the Restatement Effective Date pursuant to any employee
pension benefit plan (as defined in Section 3(2) of ERISA) other than a Plan.
The General Partner or the Borrower will deliver to each of the Banks a
complete copy of the annual report (Form 5500) of each Plan required to be
filed with the Internal Revenue Service. In addition to any certificates or
notices delivered to the Banks pursuant to the first sentence hereof, copies of
annual reports and any notices received by the General Partner, the Borrower or
any Subsidiary or any ERISA Affiliate with respect to any Plan shall be
delivered to the Banks no later than 10 Business Days after the date such
report has been filed with the Internal Revenue Service or such notice
-48-
56
has been received by the General Partner, the Borrower or the Subsidiary or the
ERISA Affiliate, as applicable.
8.08 End of Fiscal Years; Fiscal Quarters. Each of the
General Partner and the Borrower will cause its, and the General Partner will
cause each of its Subsidiaries', (i) fiscal years to end on December 31 and
(ii) first three fiscal quarters to end on March 31, June 30 and September 30.
8.09 Performance of Obligations. Each of the General
Partner and the Borrower will, and the General Partner will cause each of its
Subsidiaries to, perform all of its obligations under the terms of each
mortgage, indenture, security agreement and other debt instrument by which it
is bound, except such non-performances as could not in the aggregate reasonably
be expected to have a material adverse effect on the performance, business,
assets, nature of assets, liabilities, operations, properties, condition
(financial or otherwise) or prospects of the General Partner or of the Borrower
and its Subsidiaries taken as a whole.
8.10 Payment of Taxes. Each of the General Partner and
the Borrower will pay discharge, and the General Partner will cause each of its
Subsidiaries to pay and discharge, all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits, or upon any
properties belonging to it, prior to the date on which penalties attach
thereto, and all lawful claims which, if unpaid, might become a lien or charge
upon any properties of the General Partner, the Borrower or any of its
Subsidiaries; provided that neither the General Partner, the Borrower nor any
of its Subsidiaries shall be required to pay any such tax, assessment, charge,
levy or claim which is being contested in good faith and by proper proceedings
if it has maintained adequate reserves with respect thereto in accordance with
generally accepted accounting principles.
8.11 Use of Proceeds. All proceeds of the Loans shall
be used as provided in Section 7.08.
8.12 Intellectual Property Rights. Each of the General
Partner and the Borrower will, and the General Partner will cause each of its
Subsidiaries to, maintain in full force and effect all Intellectual Property
rights necessary or appropriate to the business of the General Partner, the
Borrower or any Subsidiary and take no action (including without limitation the
licensing of Intellectual Property), or fail to take an action as the case may
be, in connection with such Intellectual Property rights which would result in
a material adverse effect on the performance, business, assets, nature of
assets, liabilities, properties, condition (financial or otherwise), operations
or prospects of the General Partner or of the Borrower and its Subsidiaries
taken as a whole. Each of the General Partner and the Borrower will, and the
General Partner will cause each of its Subsidiaries to, diligently prosecute
all pending applications filed in connection with seeking or seeking to perfect
the
-49-
57
Intellectual Property rights and take all other reasonable actions necessary
for the protection and maintenance of the Intellectual Property rights
necessary or appropriate to the business of the General Partner, the Borrower
or any Subsidiary at all times from and after the Restatement Effective Date.
8.13 Concentration Account. The General Partner and the
Borrower shall cause each bank or other financial institution in which the
Borrower or any of its Subsidiaries has an account to transfer all funds
actually received (i.e. good funds) in such account within one Business Day of
receipt to the Concentration Account established pursuant to the Borrower
Security Agreement or the Subsidiaries Security Agreement, as the case may be,
and, to the extent that any such Subsidiary transferring funds is not a
Subsidiary Assignor, such transferred funds shall constitute advances by such
Subsidiary to the Borrower and shall be deposited in the Concentration Account
established pursuant to the Borrower Security Agreement.
8.14 Additional Security; Further Assurances. (a) Each
of the General Partner and the Borrower shall, and the General Partner agrees
to cause each of its Subsidiaries to, upon the request of the Agent or the
Required Banks, take such actions as may be requested by the Agent or the
Required Banks (at the expense of the Borrower) to ensure that the Secured
Creditors shall have a valid and enforceable perfected security interest in all
vehicles owned by the Borrower or any Subsidiary prior to the rights of all
third Persons and subject to no other Liens except such Liens as are permitted
by Section 9.01.
(b) Each of the General Partner and the Borrower shall,
and the General Partner shall cause each of its Subsidiaries to, at its own
expense, make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Agent from time to time such conveyances, financing statements,
transfer endorsements, powers of attorney, certificates, reports and other
assurances or instruments and take such further steps relating to perfecting
the security interest of the Secured Creditors in vehicles owned by the
Borrower or any Subsidiary as the Collateral Agent may reasonably require.
Furthermore, at the time of any request by the Agent or the Required Banks
pursuant to preceding clause (a) each of the General Partner and the Borrower
shall cause to be delivered to the Collateral Agent such opinions of counsel
and other documents as may be reasonably requested by the Agent or the Required
Banks to assure themselves that this Section 8.14 has been complied with.
(c) Each of the General Partner and the Borrower agrees
that each action required by Section 8.14(a) or (b) shall be completed within
60 days after such action is requested to be taken by the Agent or the Required
Banks.
Section 9. Negative Covenants. Each of the General
Partner and the Borrower hereby covenants that on and after the Restatement
Effective Date and until the
-50-
58
Total Commitment and all Letters of Credit have terminated and the Loans, Notes
and Unpaid Drawings together with interest, Fees and all other Obligations are
paid in full:
9.01 Liens. (a) Each of the General Partner and the
Borrower will not, and the General Partner will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
the General Partner, the Borrower or any of their respective Subsidiaries,
whether now owned or hereafter acquired, or sell any such property or assets
subject to an understanding or agreement, contingent or otherwise, to
repurchase such property or assets (including sales of accounts receivable with
recourse to the General Partner, the Borrower or any of their respective
Subsidiaries), or assign any right to receive income or permit the filing of
any financing statement under the UCC or any other similar notice of Lien under
any similar recording or notice statute; provided that the provisions of this
Section 9.01 shall not prevent the General Partner, the Borrower or any of
their respective Subsidiaries from creating, incurring, assuming or permitting
the existence of the following (liens described below are herein referred to as
"Permitted Liens"):
(i) inchoate Liens with respect to the General Partner, the
Borrower or any of their respective Subsidiaries for taxes not yet due
or Liens for taxes being contested in good faith and by appropriate
proceedings for which adequate reserves have been established in
accordance with generally accepted accounting principles;
(ii) Liens in respect of property or assets of the Borrower
or any of its Subsidiaries imposed by law, which were incurred in the
Ordinary Course of Business and do not secure Indebtedness for
borrowed money, such as carriers', warehousemen's, materialmen's,
mechanics' and landlords' liens and other similar Liens arising in the
ordinary course of business, and (x) which do not in the aggregate
materially detract from the value of the Borrower's or any of its
Subsidiaries' property or assets or materially impair the use thereof
in the operation of the business of the Borrower or its Subsidiaries
taken as a whole or (y) which are being contested in good faith by
appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or assets subject to
any such Lien;
(iii) Liens of the Borrower or its Subsidiaries in existence
on the Restatement Effective Date which are listed, and the property
subject thereto described, in Schedule VII, but only until the
respective date, if any, set forth in such Schedule VII for the
removal and termination of any such Liens;
(iv) Liens created pursuant to the Security Documents;
-51-
59
(v) easements, rights-of-way, restrictions, encroachments
and other similar charges or encumbrances on the property of the
Borrower or any of its Subsidiaries arising in the Ordinary Course of
Business and not materially interfering with the conduct of the
business of the Borrower or any of its Subsidiaries taken as a whole;
(vi) Liens on property of the Borrower and its Subsidiaries
subject to, and securing only, Capitalized Lease Obligations to the
extent such Capitalized Lease Obligations are permitted by Section
9.05(b); provided that such Liens only serve to secure the payment of
Indebtedness arising under such Capitalized Lease Obligations and the
Lien encumbering the asset giving rise to the respective Capitalized
Lease Obligation does not encumber any other asset of the Borrower or
any of its Subsidiaries;
(vii) Liens (other than any Lien imposed by ERISA) on
property of the Borrower or any of its Subsidiaries incurred or
deposits made in the ordinary course of business in connection with
(x) workers' compensation, unemployment insurance and other types of
social security or health insurance (y) to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money), provided that the aggregate amount of cash
and the fair market value of the property encumbered by Liens
described in this clause (vii) shall not exceed $500,000;
(viii) Liens placed upon equipment, machinery or real property
used in the Ordinary Course of Business of the Borrower or any of its
Subsidiaries at the time of purchase thereof by the Borrower or any of
its Subsidiaries to secure Indebtedness incurred to pay all or a
portion of the purchase price thereof, provided that (x) (A) the
aggregate principal amount of all Indebtedness (other than the MIS
Indebtedness) secured by Liens permitted by this clause (viii) does
not exceed at any one time outstanding $100,000 and (B) the aggregate
principal amount of all MIS Indebtedness secured by Liens permitted by
this clause (viii) when aggregated with the principal amount of all
MIS Indebtedness constituting Capitalized Lease Obligations permitted
pursuant to Section 9.01(vi) and the aggregate amount of all other
proceeds paid by the Borrower or any of its Subsidiaries in connection
with MIS Acquisitions does not exceed $3,000,000 and no such MIS
Indebtedness is incurred after December 31, 1995 and (y), in all
events, the Lien encumbering the equipment, machinery or real property
so acquired does not encumber any other asset of the Borrower or any
of its Subsidiaries;
(ix) any interest or title of a lessor or sublessor under
any lease of the Borrower or its Subsidiaries permitted by this
Agreement;
-52-
60
(x) any attachment or judgment Lien in respect of judgments
not constituting an Event of Default under Section 10.09; and
(xi) Liens arising from precautionary UCC-1 financing
statement filings regarding operating leases.
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc.
Each of the General Partner and the Borrower will not, and the General Partner
and the Borrower will not permit any of its Subsidiaries to, wind up, liquidate
or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of (or agree to do
any of the foregoing at any future time) all or any part of its property or
assets, or enter into any partnerships, joint ventures or sale-leaseback
transactions, or purchase or otherwise acquire (in one or a series of related
transactions) any part of the property or assets (other than purchases or other
acquisitions by the Borrower or any of its Subsidiaries of inventory, materials
and equipment in the ordinary course of business) of any Person, except that:
(i) Capital Expenditures by the Borrower and its
Subsidiaries shall be permitted to the extent not in violation of
Section 9.08;
(ii) each of the Borrower and its Subsidiaries may, in the
Ordinary Course of Business, sell assets which, in the reasonable
judgment of the Borrower have become obsolete, worn out or uneconomic,
the proceeds of which are applied in accordance with Section
4.02(A)(e), or are used, or irrevocably committed, to purchase
replacement assets within 90 days from the date of such sale so long
as the aggregate amount of Net Sale Proceeds from such sales in any
one fiscal year do not exceed $200,000;
(iii) each of the Borrower and its Subsidiaries may lease (as
lessee) real or personal property to the extent permitted by Sections
9.04 and 9.08; and
(iv) investments may be made to the extent permitted by
Section 9.06.
To the extent the Required Banks waive the provisions of this Section 9.02 with
respect to the sale of any Collateral, or any Collateral is sold as permitted
by this Section 9.02, such Collateral shall be sold free and clear of the Liens
created by the Security Documents, and the Agent and Collateral Agent shall be
authorized to take any actions deemed appropriate in order to effect the
foregoing.
9.03 Distributions. The Borrower shall not nor shall the
General Partner permit any of its Subsidiaries to, declare or pay any
Distributions with respect to the Borrower or any of its Subsidiaries, except
that: (i) any Subsidiary of the Borrower may
-53-
61
make Distributions to the Borrower or any Wholly-Owned Subsidiary of the
Borrower; (ii) so long as there shall exist no Default or Event of Default
under Section 10.01 (and after giving effect to such Distributions there will
exist no Default or Event of Default under Section 10.01), the Borrower may
make cash Distributions to the Partners at times and in amounts necessary for
the Borrower to make tax distributions pursuant to Section 4.4(b) of the
Partnership Agreement of the Borrower and (iii) the Borrower may consummate the
Refinancing Transaction on the Restatement Effective Date.
9.04 Leases. Neither the General Partner nor the Borrower
will make any payments (including, without limitation, any property taxes paid
as additional rent or lease payments) under any agreement to rent or lease any
real or personal property and neither the General Partner nor the Borrower will
permit the aggregate payments (including, without limitation, any property
taxes paid as additional rent or lease payments) made by the Borrower and its
Subsidiaries on a consolidated basis under any agreement to rent or lease any
real or personal property (or any extension or renewal thereof) (excluding
Capitalized Lease Obligations) to exceed at any time $3,000,000 in any fiscal
year of the Borrower.
9.05 Indebtedness. Each of the General Partner and the
Borrower will not, and the General Partner will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
(b) Indebtedness of the Borrower and its Subsidiaries
evidenced by Capitalized Lease Obligations to the extent permitted
pursuant to Section 9.08; provided that the aggregate amount of
Indebtedness evidenced by Capitalized Lease Obligations under all
Capital Leases outstanding under this clause (b) shall not at any time
exceed $100,000, provided further that the Borrower and its
Subsidiaries may incur additional Capitalized Lease Obligations
consisting of MIS Indebtedness in an amount which when aggregated with
the aggregate principal amount of all MIS Indebtedness secured by
Liens permitted pursuant to Section 9.01(viii)(X)(B) and the aggregate
amount of all other proceeds paid by the Borrower or any of its
Subsidiaries in connection with MIS Acquisitions does not exceed
$3,000,000;
(c) Indebtedness in amounts, and subject to Liens, permitted
under Section 9.01(viii);
(d) Indebtedness of the Borrower represented by the
Subsidiary Notes and Indebtedness of the Subsidiary Guarantors to the
Borrower, provided that all evidence of Indebtedness of the Subsidiary
Guarantors shall be pledged to the
-54-
62
Collateral Agent for the benefit of the Banks pursuant to the Borrower
Pledge Agreement and all proceeds of Indebtedness represented by the
Subsidiary Notes shall be deposited into the Concentration Account;
(e) Indebtedness of the General Partner evidencing its
obligations to repay amounts advanced to the General Partner from the
limited partners of the Borrower after the Restatement Effective Date
in an aggregate amount not to exceed $780,000; and
(f) a guaranty by the Borrower in favor of the Subsidiary
Guarantors of amounts paid by the Subsidiary Guarantors pursuant to
the Subsidiaries Guaranty.
9.06 Advances, Investments and Loans. Each of the General
Partner and the Borrower will not, and the General Partner will not permit any
of its Subsidiaries to, directly or indirectly lend money or credit or make
advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any other Person, or hold any cash or Cash Equivalents, except that the
following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold
receivables owing to any of them, if created or acquired in the
Ordinary Course of Business and payable or dischargeable in accordance
with customary terms;
(ii) the Borrower and its Subsidiaries may acquire and hold
cash and Cash Equivalents, provided that during any time that
Revolving Loans are outstanding the aggregate amount of cash and Cash
Equivalents permitted to be held by the Borrower and its Subsidiaries
shall not exceed $1,000,000 for any three consecutive days;
(iii) the Borrower may make Capital Expenditures to the
extent permitted by Section 9.08;
(iv) the Borrower and its Subsidiaries may make additional
loans, advances and other investments in partnerships, joint ventures
and similar investments with Persons that are not Affiliates of the
Borrower so long as the aggregate principal amount thereof at any time
outstanding (determined without regard to any write-downs or
write-offs thereof) shall not exceed $100,000; and
(v) the Borrower and its Subsidiaries may make advances and
loans to the extent the Indebtedness created thereby is permitted
pursuant to Section 9.05(d) and the Borrower may make equity
contributions in its Subsidiaries, so long as (x)
-55-
63
100% of the partnership or other equity interests in any such
Subsidiary are pledged to the Collateral Agent pursuant to the
applicable Pledge Agreements and (y) the amount of any such equity
contribution does not exceed the greater of (A) $100,000 per
Subsidiary and (B) the amount required pursuant to statutory net worth
requirements affecting companies engaged in the employee leasing
business.
9.07 Transactions with Affiliates. Each of the General
Partner and the Borrower will not, and the General Partner will not permit any
of its Subsidiaries to, enter into any transaction or series of related
transactions, whether or not in the Ordinary Course of Business, with any
Affiliate of the Borrower or of any Partner, other than transactions by the
Borrower or any of its Subsidiaries in the Ordinary Course of Business and on
terms and conditions substantially as favorable to the Borrower or such
Subsidiary, as the case may be, as would be obtainable by the Borrower or such
Subsidiary, as the case may be, at that time in a comparable arm's-length
transaction with a Person other than an Affiliate, except that (i) the Borrower
may pay an annual management fee of $300,000 to ▇▇▇▇▇ Capital payable in equal
semi-annual installments on each six-month anniversary of the Original
Effective Date, provided that at the time of payment of each such installment
there exists no Default or Event of Default and all payments of Loans, Unpaid
Drawings, interest or Fees then owing to the Banks hereunder have been paid in
full, (ii) the Borrower may consummate the Refinancing Transaction on the
Restatement Effective Date and (iii) the Borrower may pay fees and expenses
arising in connection with the Refinancing Transaction so long as the aggregate
amount of all such fees and expenses does not exceed $2.3 million.
9.08 Capital Expenditures. (a) Each of the General
Partner and the Borrower will not, and the General Partner will not permit any
of its Subsidiaries to, make any expenditure which should be capitalized in
accordance with United States generally accepted accounting principles,
including all such expenditures with respect to fixed or capital assets
(including, without limitation, expenditures for maintenance and repairs which
should be capitalized in accordance with United States generally accepted
accounting principles) and including Capitalized Lease Obligations
(collectively, "Capital Expenditures"), except that (x) during the period
commencing on the Restatement Effective Date and ending on December 31, 1994,
the Borrower and its Subsidiaries may make Capital Expenditures so long as the
aggregate amount thereof does not exceed $125,000 during such period and (y)
during any fiscal year beginning thereafter the Borrower and its Subsidiaries
may make Capital Expenditures so long as the aggregate amount thereof does not
exceed during any fiscal year the amount set forth opposite such fiscal year
below (subject to the adjustments provided in clause (b) below):
-56-
64
Fiscal Year
Beginning
January 1 Amount
----------- --------
1995 $425,000
1996 $475,000
1997 $525,000
1998 $575,000
1999 $625,000
(b) (i) The amount set forth in clause (a) of this Section
9.08 with respect to each fiscal year commencing on or after January 1, 1995
may be increased to an amount equal to 5% of the Consolidated EBITDA for the
prior fiscal year (but in no event to an amount exceeding $1,000,000), provided
that the Borrower shall have complied with Section 9.09 with respect to such
prior year and (ii) to the extent that the amount of Capital Expenditures made
by the Borrower and its Subsidiaries during any fiscal year is less than the
amount provided in clauses (a) and (b)(i) of this Section 9.08, such amount may
be carried forward and used to make Capital Expenditures in excess of the
amount otherwise permitted for the succeeding fiscal year, provided that no
amount once carried forward to the next fiscal year may be carried forward to
any fiscal year thereafter.
(c) In addition to the amounts set forth in clauses (a) and
(b) of this Section 9.08, the Borrower and its Subsidiaries may make up to
$3,000,000 of MIS Acquisitions.
9.09 Minimum EBITDA. The Borrower will not permit its
Consolidated EBITDA for the period of four consecutive fiscal quarters (taken
as one accounting period) ending on each date set forth below to be less than
the amount set forth opposite such date:
Fiscal Quarter Minimum
Ended Amount
-------------- -----------
December 31, 1994 $ 8,500,000
March 31, 1995 $ 9,375,000
June 30, 1995 $10,250,000
September 30, 1995 $11,125,000
December 31, 1995 $12,000,000
March 31, 1996 $12,375,000
June 30, 1996 $12,750,000
September 30, 1996 $13,125,000
December 31, 1996 $13,500,000
March 31, 1997 $14,250,000
-57-
65
June 30, 1997 and $15,000,000
for each fiscal quarter
thereafter
9.10 Minimum Consolidated Net Worth. The Borrower will not
permit its Consolidated Net Worth at any time during any quarter set forth
below to be less than the amount set forth below opposite such quarter:
Fiscal Quarter Minimum
Ended Amount
-------------- -----------
December 31, 1994 $(9,500,000)
March 31, 1995 $(8,725,000)
June 30, 1995 $(7,950,000)
September 30, 1995 $(7,175,000)
December 31, 1995 $(6,400,000)
March 31, 1996 $(5,100,000)
June 30, 1996 $(3,800,000)
September 30, 1996 $(2,500,000)
December 31, 1996 $(1,200,000)
March 31, 1997 $ 600,000
June 30, 1997 $ 2,400,000
September 30, 1997 $ 4,200,000
December 31, 1997 $ 6,000,000
March 31, 1998 $ 7,250,000
June 30, 1998 $ 8,500,000
September 30, 1998 $ 9,750,000
December 31, 1998 $11,000,000
March 31, 1999 $13,000,000
June 30, 1999 $15,000,000
September 30, 1999 $17,000,000
Final Maturity Date $18,500,000
9.11 Interest Coverage Ratio. The Borrower will not permit
the ratio of its Consolidated EBITDA to its Consolidated Interest Expense for
any fiscal quarter or fiscal year (in the case of each fiscal quarter ending on
December 31) ending on a date set forth below to be less than the ratio set
forth opposite such date:
-58-
66
Fiscal Quarter
Ended Ratio
-------------- ------
December 31, 1994 3.25:1
March 31, 1995 3.35:1
June 30, 1995 3.45:1
September 30, 1995 3.55:1
December 31, 1995 3.65:1
March 31, 1996 and thereafter 4.00:1
9.12 Consolidated Indebtedness to Consolidated EBITDA. The
Borrower will not permit the ratio of (i) Consolidated Indebtedness on the last
day of any fiscal quarter set forth below to (ii) Consolidated EBITDA for the
period of four consecutive fiscal quarters ending on the last day of such
fiscal quarter, taken as one accounting period, to be greater than the amount
set forth below opposite such fiscal quarter:
Fiscal Quarter
Ended Ratio
-------------- ------
December 31, 1994 3.30:1
March 31, 1995 3.10:1
June 30, 1995 2.90:1
September 30, 1995 2.70:1
December 31, 1995 2.50:1
March 31, 1996 2.20:1
June 30, 1996 1.90:1
September 30, 1996 1.60:1
December, 31, 1996 1.30:1
March 31, 1997 and for each
fiscal quarter thereafter 1.00:1
9.13 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Partnership Agreements, Certificates of Limited
Partnership and Certain Other Agreements; etc. Each of the General Partner and
the Borrower will not, and the General Partner will not permit any of its
Subsidiaries to, (i) make (or give any notice in respect of) any voluntary or
optional payment or prepayment on or redemption (including pursuant to any
change of control provision) or acquisition for value of (including, without
limitation, by way of depositing with the trustee with respect thereto money or
securities before due for the purpose of paying when due), any Indebtedness
(other than Indebtedness pursuant to the Credit Documents), (ii) amend or
modify, or permit the amendment or modification of, any provision of any
Indebtedness (other than Indebtedness pursuant to the Credit Documents), (iii)
amend, modify or change (A) its Certificate of Limited Partnership
-59-
67
or Partnership Agreement, (B) any agreement entered into by it, with respect to
its equity interests, (iv) enter into any new agreement with respect to its
equity interests, (v) amend, modify or change, or enter into any new Management
Agreement or (vi) without the consent of the Agent, amend, modify or change, or
enter into any new Employee Benefit Plan or Employment Agreement.
9.14 Limitation on Certain Restrictions on Subsidiaries.
Each of the General Partner and the Borrower will not, and the General Partner
will not permit any of its Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Subsidiary of the Borrower to (a) make any
Distributions to the Borrower or any Subsidiary, or pay any Indebtedness owed
to the Borrower or any Subsidiary, (b) make loans or advances to the Borrower
or any Subsidiary or (c) transfer any of its properties or assets to the
Borrower, except for such encumbrances or restrictions existing under or by
reason of (i) applicable law, (ii) this Agreement and the other Credit
Documents and (iii) customary provisions restricting subletting or assignments
of any lease governing a leasehold interest of the Borrower or any Subsidiary.
9.15 Limitation on Issuance of Equity Interests. The
Borrower may issue additional common limited partnership interests (including
pursuant to an Approved Incentive Plan), provided, that any new limited partner
shall execute and deliver a Partner Assumption Agreement pursuant to which such
partnership interests are pledged pursuant to the Partner Pledge Agreement in
favor of the Collateral Agent for the benefit of the Secured Parties. The
Borrower may not issue additional general or preferred limited partnership
interests or any options or warrants to purchase, or instruments convertible
into any partnership or other equity interests, without the prior written
consent of the Agent and the Required Banks. The General Partner will not
permit any of its Subsidiaries (other than the Borrower) to issue any
partnership or other equity interests or any options or warrants to purchase,
or instruments convertible into, partnership or other equity interests, without
the prior written consent of the Agent and the Required Banks.
9.16 Business. (a) The Borrower shall engage in no business
and have no assets other than (x) owning 100% of the limited partnership
interests in each Subsidiary, (y) issuing the Subsidiary Notes and maintaining
the Concentration Account established pursuant to the Borrower Security
Agreement and (z) owning certain assets used by the Subsidiaries in the
Ordinary Course of Business.
(b) The General Partner shall engage in no business, incur no
Indebtedness and have no assets other than owning 100% of the general
partnership interests in the Borrower and its Subsidiaries and demand
promissory notes from partners in the Borrower.
-60-
68
(c) The General Partner will not permit any of its
Subsidiaries, to engage (directly or indirectly) in any business other than
lines of business substantially similar or directly related to those in which
they were engaged on the Original Effective Date.
9.17 Limitation on Creation of Subsidiaries. Each of the
General Partner and the Borrower will not, and the General Partner will not
permit any of its Subsidiaries to, establish, create or acquire any new
Subsidiary without the prior written consent of the Agent.
Section 10. Events of Default. Upon the occurrence of any of
the following specified events (each an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the
payment when due of any principal of any Loan or any Note or (ii) default, and
such default shall continue unremedied for two or more Business Days, in the
payment when due of any interest on any Loan or Note or Unpaid Drawing, or any
Fees or any other amounts owing by it hereunder or thereunder; or
10.02 Representations, etc. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or in
any certificate delivered pursuant hereto or thereto shall prove to be untrue
in any material respect on the date as of which made or deemed made; or
10.03 Covenants. Any Credit Party shall (i) default in the
due performance or observance by it of any term, covenant or agreement
contained in Section 8.01(g)(i), 8.08, 8.13, 8.14 or 9 or (ii) default in the
due performance or observance by it of any other term, covenant or agreement
(other than those set forth in Sections 10.01 and 10.02 and clause (i) of this
Section 10.03) contained in this Agreement and such default shall continue
unremedied for a period of 30 days after written notice to the Borrower by the
Agent or any Bank; or
10.04 Default Under Other Agreements. The General Partner or
the Borrower or any of its Subsidiaries shall (i) default in any payment of any
Indebtedness (other than the Indebtedness referred to in Section 10.01) beyond
the period of grace (not to exceed 10 days), if any, provided in the instrument
or agreement under which such Indebtedness was created, (ii) default in the
observance or performance of any agreement or condition relating to any
Indebtedness (other than the Indebtedness referred to in Section 10.01) or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause (determined without regard to whether any notice is
required), any Indebtedness to become due prior to its stated
-61-
69
maturity, or (iii) any Indebtedness (other than the Indebtedness referred to in
Section 10.01) of the General Partner or the Borrower or any of its
Subsidiaries shall be declared to be due and payable, or required to be prepaid
other than by a regularly scheduled required prepayment, prior to the stated
maturity thereof, provided that it shall not be a Default or Event of Default
under this Section 10.04 unless the aggregate principal amount of all
Indebtedness as described in preceding clauses (i) through (iii) inclusive, is
at least $100,000; or
10.05 Bankruptcy, etc. The General Partner or the Borrower
or any of its Subsidiaries shall commence a voluntary case concerning itself
under Title 11 of the United States Code entitled "Bankruptcy," as now or
hereafter in effect, or any successor thereto (the "Bankruptcy Code"); or an
involuntary case is commenced against the General Partner or the Borrower or
any of its Subsidiaries and the petition is not controverted within 10 days, or
is not dismissed or discharged, within 60 days, after commencement of the case;
or a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of the General Partner or
the Borrower or any of its Subsidiaries, or the General Partner or the Borrower
or any of its Subsidiaries commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to the General Partner or the
Borrower or any of its Subsidiaries, or there is commenced against the General
Partner or the Borrower or any of its Subsidiaries any such proceeding which
remains undismissed or undischarged for a period of 60 days, or the General
Partner or the Borrower or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or the General Partner or the Borrower or any of its
Subsidiaries suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or the General Partner or the Borrower or any of its
Subsidiaries makes a general assignment for the benefit of creditors; or any
corporate or partnership action is taken by the General Partner or the Borrower
or any of its Subsidiaries for the purpose of effecting any of the foregoing;
or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof or a waiver of such
standard or extension of any amortization period is sought or granted under
Section 412 of the Code, any Plan shall have had or is likely to have a trustee
appointed to administrate such Plan any Plan is, shall have been or is likely
to be terminated or the subject of termination proceedings under ERISA, any
Plan shall have an Unfunded Current Liability, a contribution required to be
made to a Plan has not been timely made; the General Partner, the Borrower, or
any Subsidiary of the Borrower or any ERISA Affiliate has incurred or is likely
to incur a liability to or on account of a Plan under Section 409, 502(i),
502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section
401(a)(29), 4971, 4975 or 4980 of the Code, or the General Partner, the
Borrower or any Subsidiary of the
-62-
70
Borrower has incurred or is likely to incur liabilities pursuant to one or more
employee welfare benefit plans (as defined in Section 3(l) of ERISA) that
provide benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or employee pension benefit plans (as defined
in Section 3(2) of ERISA); (b) there shall result from any such event or events
the imposition of a lien, the granting of a security interest, or a liability
or a material risk of incurring a liability; (c) which lien, security interest
or liability, in the opinion of the Required Banks, will have a material
adverse effect upon the performance, business, assets, condition (financial or
otherwise), properties, operations or prospects of the Borrower and its
Subsidiaries taken as a whole; or
10.07 Security Documents. At any time after the execution
and delivery thereof, any of the Security Documents shall cease to be in full
force and effect or shall cease to give the Collateral Agent for the benefit of
the Secured Creditors the Liens, rights, powers and privileges purported to be
created thereby (including, without limitation, a perfected security interest
in, and Lien on, all of the Collateral), in favor of the Collateral Agent,
superior to and prior to the rights of all third Persons (except as permitted
by Section 7.11), and subject to no other Liens (except as permitted by Section
7.11), or any Credit Party shall default in the due performance or observance
of any term, covenant or agreement on its part to be performed or observed
pursuant to any of the Security Documents and such default shall continue
beyond any grace period specifically applicable thereto pursuant to the terms
of such Security Document; or
10.08 Subsidiaries Guaranty. At any time after the execution
and delivery thereof, the Subsidiaries Guaranty or any provision thereof shall
cease to be in full force or effect as to any Subsidiary Guarantor, or any
Subsidiary Guarantor or any Person acting by or on behalf of any Subsidiary
Guarantor shall deny or disaffirm such Subsidiary Guarantor's obligations under
the Subsidiaries Guaranty, or any Subsidiary Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to the Subsidiaries Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be
entered against the General Partner or the Borrower or any of its Subsidiaries
involving in the aggregate for the Borrower and its Subsidiaries a liability
(not paid or fully covered by a reputable insurance company which has accepted
full liability in writing) and such judgments or decrees either shall be final
and non-appealable or shall not be vacated, discharged or stayed or bonded
pending appeal for any period of 30 consecutive days, and the aggregate amount
of all such judgments exceeds $100,000; or
10.10 Ownership. There shall be a Change of Control;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Agent, upon the written request of the
Required Banks, shall by written
-63-
71
notice to the Borrower, take any or all of the following actions, without
prejudice to the rights of the Agent, any Bank or the holder of any Note to
enforce its claims against the Borrower (provided that, if an Event of Default
specified in Section 10.05 shall occur with respect to the Borrower, the result
which would occur upon the giving of written notice by the Agent to the
Borrower as specified in clauses (i) and (ii) below shall occur automatically
without the giving of any such notice): (i) declare the Total Commitment
terminated, whereupon all Commitments of each Bank shall forthwith terminate
immediately and any Commitment Commission and other Fees shall forthwith become
due and payable without any other notice of any kind; (ii) declare the
principal of and any accrued interest in respect of all Loans and the Notes and
all Obligations owing hereunder and thereunder to be, whereupon the same shall
become, forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by each Credit Party; (iii)
terminate any Letter of Credit which may be terminated in accordance with its
terms; (iv) direct the Borrower to pay (and the Borrower agrees that upon
receipt of such notice, or upon the occurrence of an Event of Default specified
in Section 10.05 with respect to the Borrower it will pay) to the Collateral
Agent at the Payment Office such additional amount of cash, to be held as
security by the Collateral Agent, as is equal to the aggregate Stated Amount of
all Letters of Credit issued for the account of the Borrower and then
outstanding; and (v) enforce, as Collateral Agent, all of the Liens and
security interests created pursuant to the Security Documents.
Section 11. Definitions And Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Adjusted Consolidated Net Income" for any period shall mean
Consolidated Net Income for such period plus the sum of the amount of all net
non-cash charges (including, without limitation, depreciation, amortization,
deferred tax expense, non-cash interest expense and other non-cash charges)
included in arriving at Consolidated Net Income for such period less the sum of
the amount of all net non-cash gains or losses (exclusive of items reflected in
Adjusted Working Capital) included in arriving at Consolidated Net Income for
such period.
"Adjusted Working Capital" shall mean Consolidated Current
Assets (excluding cash and Cash Equivalents) minus Consolidated Current
Liabilities.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling (including but not limited to all
directors and officers of such Person), controlled by, or under direct or
indirect common control with, such Person;
-64-
72
provided, however, that for purposes of Section 9.07, an Affiliate of the
Borrower shall include any Person that directly or indirectly owns more than 5%
of any class of the capital stock or partnership interest of the Borrower and
for all purposes of this Agreement, neither the Agent, the Collateral Agent or
any Bank shall be considered an Affiliate of the Borrower or any of its
Subsidiaries. A Person shall be deemed to control another Person if such
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agent" shall mean Banque Paribas in its capacity as Agent for
the Banks hereunder, and shall include any successor to the Agent appointed
pursuant to Section 12.09.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented or amended from time to time.
"Applicable Margin" shall mean (x) in the case of Base Rate
Loans, 2-1/2% and (y) in the case of Eurodollar Loans, 4%.
"Approved Incentive Plan" shall mean a plan or agreement
adopted by the Borrower and approved by the Agent providing for the issuance of
equity in the Borrower to management employees or directors of the Borrower.
"Bank" shall mean each financial institution listed on
Schedule I, as well as any institution which becomes a "Bank" hereunder
pursuant to Section 13.04.
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing or to fund
its portion of any unreimbursed payment under Section 2.04(c) or (ii) a Bank
having notified in writing the Borrower and/or the Agent that it does not
intend to comply with its obligations under Section 1.01(a) or 1.01(b) or
Section 2, in either case as a result of any takeover of such Bank by any
regulatory authority or agency.
"Bankruptcy Code" shall have the meaning provided in Section
10.05.
"Banque Paribas" shall mean Banque Paribas, a French banking
organization acting through its New York Branch.
"Base Rate" shall mean the higher of (i) 1/2 of 1% in excess
of the Federal Funds Rate and (ii) the Prime Lending Rate.
-65-
73
"Base Rate Loan" shall mean any Loan designated or deemed
designated as such by the Borrower at the time of the incurrence thereof or
conversion thereto.
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrower Acknowledgement" shall have the meaning set forth in
Section 5.06(b).
"Borrower Partnership Pledge Agreement" shall mean the
Partnership Pledge and Security Agreement dated as of November 5, 1993, made by
the Borrower in favor of the Collateral Agent, as such agreement may be
amended, modified or supplemented from time to time, including, without
limitation, as modified by the Borrower Acknowledgement.
"Borrower Pledge Agreement" shall mean the Borrower Pledge
Agreement dated as of November 5, 1993, made by the Borrower in favor of the
Collateral Agent, as such agreement may be amended, modified or supplemented
from time to time, including, without limitation, as modified by the Borrower
Acknowledgement.
"Borrower Pledge Agreements" shall mean collectively, or
individually as the context may require, the Borrower Pledge Agreement and the
Borrower Partnership Pledge Agreement.
"Borrower Security Agreement" shall mean the Borrower Security
Agreement dated as of November 5, 1993, made by the Borrower in favor of the
Collateral Agent, as such agreement may be amended, modified or supplemented
from time to time, including, without limitation, as modified by the Borrower
Acknowledgement.
"Borrowing" shall mean the borrowing of one Type of Loan of a
single Tranche from all the Banks having Commitments with respect to such
Tranche on a pro rata basis on a given date (or resulting from a conversion or
conversions on such date) having in the case of Eurodollar Loans the same
Interest Period; provided that Base Rate Loans incurred pursuant to Section
1.10(b) shall be considered part of the related Borrowing of Eurodollar Loans.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in New York City a legal holiday or a day on which banking
institutions are authorized or required by law or other government action to
close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, any day
which is a Business Day described in clause (i) above and which is also a day
for trading by and between banks in the New York interbank Eurodollar market.
-66-
74
"Capital Expenditures" shall have the meaning provided in
Section 9.08.
"Capital Lease" as applied to any Person, shall mean any lease
of any property (whether real, personal or mixed) by that Person as lessee
which, in conformity with generally accepted accounting principles, is
accounted for as a capital lease on the balance sheet of that Person.
"Capitalized Lease Obligations" of any Person shall mean all
rental obligations which, under generally accepted accounting principles, are
or will be required to be capitalized on the books of such Person, in each case
taken at the amount thereof accounted for as Indebtedness in accordance with
such principles.
"Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof) having
maturities of not more than six months from the date of acquisition, (ii) time
deposits and certificates of deposit of any commercial bank having, or which is
the principal banking subsidiary of a bank holding company having, a long-term
unsecured debt rating of at least "A" or the equivalent thereof from Standard &
Poor's Corporation or "A2" or the equivalent thereof from ▇▇▇▇▇'▇ Investors
Service, Inc. with maturities of not more than six months from the date of
acquisition by such Person, (iii) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in clause
(i) above entered into with any bank meeting the qualifications specified in
clause (ii) above, (iv) commercial paper issued by any Person incorporated in
the United States rated at least A-1 or the equivalent thereof by Standard &
Poor's Corporation or at least P-1 or the equivalent thereof by ▇▇▇▇▇'▇
Investors Service, Inc. and in each case maturing not more than six months
after the date of acquisition by such Person and (v) investments in money
market funds substantially all of whose assets are comprised of securities of
the types described in clauses (i) through (iv) above.
"CERCLA" shall mean the Comprehensive Environmental Response
Compensation of Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. Section 9601 et seq.
"Change of Control" means the occurrence of one or more of the
following: (i) any Person, entity or "group" (within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act) (x) shall have acquired
beneficial ownership of 30% or more of any outstanding class of partnership
interests of the Borrower, or of capital stock of the General Partner, having
ordinary voting power in the management of the Borrower or the General Partner,
as the case may be, or (y) shall obtain the power (whether or not exercised) to
control the management of the Borrower or the General Partner, (ii) the
Management Investors, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, members
of their
-67-
75
families and trusts for the exclusive benefit of their family members shall
cease to have beneficial ownership of 51% or more of all outstanding
partnership interests of the Borrower or of 51% or more of all outstanding
capital stock of the General Partner, (iii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, his family
members and trusts for the exclusive benefit of his family members (including
such family members and trusts that acquire partnership interests in the
Borrower through distributions from the estate of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇) shall cease
to have beneficial ownership of 25% or more of all outstanding partnership
interests of the Borrower, (iv) the General Partner shall fail to own 100% of
the general partnership interest in the Borrower or any Subsidiary of the
Borrower or (v) the Borrower shall fail to own 100% of the limited partnership
interests in any of its Subsidiaries.
"Claims" shall have the meaning provided in the definition of
"Environmental Claims."
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder. Section references to the Code are to the Code, as in
effect at the date of this Agreement, and to any subsequent provision of the
Code, amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or
personal) with respect to which any security interests have been granted (or
purport to be granted) pursuant to any Security Document, including, without
limitation, all Pledge Agreement Collateral, all Security Agreement Collateral
and all cash and Cash Equivalents held pursuant to any Concentration Account
Consent Letter.
"Collateral Agent" shall mean the Agent acting as collateral
agent for the Secured Creditors pursuant to the Security Documents.
"Collective Bargaining Agreements" shall have the meaning
provided in Section 5.05.
"Commitment" shall mean, with respect to each Bank, such
Bank's Term Loan Commitment or Revolving Commitment, if any.
"Commitment Commission" shall have the meaning provided in
Section 3.01(a).
"Concentration Accounts" shall mean each of the Concentration
Accounts established pursuant to the Security Agreements.
-68-
76
"Concentration Account Consent Letters" shall mean the
Concentration Account Consent Letters required to be delivered to the
Collateral Agent pursuant to the Security Agreements.
"Consolidated Current Assets" shall mean the consolidated
current assets of the Borrower and its Subsidiaries.
"Consolidated Current Liabilities" shall mean the consolidated
current liabilities of the Borrower and its Subsidiaries, but excluding the
current portion of any long-term Indebtedness which would otherwise be included
therein.
"Consolidated EBITA" shall mean, for any period, (a) the sum
of (i) Consolidated Net Income (before provision for taxes and without giving
effect to any extraordinary gains or losses (but after giving effect to
accruals for insurance reserves) or gains or losses from sales of assets other
than inventory sold in the Ordinary Course of Business) for such period, (ii)
Consolidated Interest Expense for such period deducted in arriving at
Consolidated Net Income, (iii) the amount of amortization of intangibles
deducted in arriving at Consolidated Net Income for such period minus (b) (i)
consolidated interest income for such period included in Consolidated Net
Income and (ii) extraordinary costs incurred in connection with the Refinancing
Transaction and not already included in Consolidated Net Income.
"Consolidated EBITDA" for any period shall mean Consolidated
EBITA plus depreciation that was deducted in arriving at Consolidated Net
Income for such period.
"Consolidated Indebtedness" shall mean at any time all
Indebtedness of the Borrower and its Subsidiaries determined on a consolidated
basis.
"Consolidated Interest Expense" shall mean, for any period,
the total consolidated interest expense of the Borrower and its Subsidiaries
for such period (calculated without regard to any limitations on the payment
thereof) payable during such period in respect of all Indebtedness of the
Borrower and its Subsidiaries, on a consolidated basis, for such period
(including, without duplication, that portion of Capitalized Lease Obligations
of the Borrower and its Subsidiaries representing the interest factor for such
period).
"Consolidated Net Income" shall mean, for any period, net
income of the Borrower and its Subsidiaries for such period determined on a
consolidated basis (after provision for taxes); provided, however, the net
income of any Subsidiary of the Borrower, which is not a Wholly-Owned
Subsidiary and for which the investment of the Borrower therein is accounted
for by the equity method of accounting, shall have its net income included in
the Consolidated Net Income of the Borrower and its Subsidiaries only to the
-69-
77
extent of the amount of cash dividends or Distributions paid by such Subsidiary
to the Borrower.
"Consolidated Net Worth" shall mean the net worth of the
Borrower and its Subsidiaries determined on a consolidated basis.
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (x) for the purchase or payment of any such primary obligation or
(y) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii)
to purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (iv) otherwise to assure
or hold harmless the holder of such primary obligation against loss in respect
thereof; provided, however, that the term Contingent Obligation should not
include endorsements of instruments for deposit or collection in the Ordinary
Course of Business. The amount of any Contingent Obligation shall be deemed to
be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made or, if not
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.
"▇▇▇▇▇ Capital" shall mean, collectively, ▇▇▇▇▇ Capital
Corporation, a Delaware corporation, its employees, directors and shareholders.
"Credit Documents" shall mean this Agreement, each Note, each
Notice of Borrowing, each Notice of Conversion, each Letter of Credit, each
Letter of Credit Request, the Borrower Acknowledgment, the Partner
Acknowledgement, the Subsidiary Acknowledgement, the Subsidiaries Guaranty, the
Partner Assumption Agreement, the Subsidiaries Assumption Agreement, each
Security Document and each power of attorney of any partner of the Borrower
utilized in connection with the execution of any other Credit Document.
"Credit Event" shall mean (x) the occurrence of the
Restatement Effective Date and (y) the making of any Loan or the issuance of
any Letter of Credit.
-70-
78
"Credit Party" shall mean the General Partner, the Borrower,
each Subsidiary of the Borrower and each other Person party to any Credit
Document, including, without limitation, all partners of the Borrower party to
any Credit Document as a pledgor.
"Debt Agreements" shall have the meaning provided in Section
5.05.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank as to which a Bank
Default then exists.
"Distribution" shall mean any distribution in respect of any
equity interest in the General Partner or the Borrower or any Subsidiary of the
Borrower and any payments on account of any purchase, redemption, retirement or
other acquisition of any such interest of the Borrower or such Subsidiary of
the Borrower, or any warrants or options therefor, whether in cash or in
property or in obligations or security or any other payment by the General
Partner or the Borrower or any Subsidiary of the Borrower to any holder of such
interest or any Affiliate thereof in substance and effect similar to any of the
foregoing.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Drawing" shall have the meaning provided in Section 2.05(b).
"Eligible Transferee" shall mean and include a commercial
bank, financial institution, other "accredited investor" (as defined in
Regulation D of the Securities Act) or a "qualified institutional buyer" as
defined in Rule 144A of the Securities Act.
"Employee Benefit Plans" shall have the meaning provided in
Section 5.05.
"Employment Agreements" shall have the meaning provided in
Section 5.05.
"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigations (other than internal
reports prepared by the Borrower or any of its Subsidiaries solely in the
ordinary course of such Person's business and not in response to any third
party action or request of any kind) or proceedings relating in any way to any
Environmental Law or any permit issued, or any approval given, under any such
Environmental Law (hereafter, "Claims"), including, without limitation, (a) any
and all Claims by governmental or regulatory authorities for enforcement,
cleanup, removal,
-71-
79
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials arising from alleged
injury or threat of injury to health, safety or the environment.
"Environmental Law" means any applicable Federal, state,
foreign or local statute, law, rule, regulation, ordinance, code, guide, policy
and rule of common law now or hereafter in effect and in each case as amended,
and any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decree or judgment, relating to the
environment, health, safety or Hazardous Materials, including, without
limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, as amended,
33 U.S.C. Section 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C.
Section 7401 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the
Safe Drinking Water Act, 42 U.S.C. Section 3803 et seq.; the Oil Pollution Act
of 1990, 33 U.S.C. Section 2701 et seq. and any applicable state and local or
foreign counterparts or equivalents.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement, and to any subsequent provisions of
ERISA, amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with the Borrower or any Subsidiary of
the Borrower would be deemed to be a "single employer" (i) within the meaning
of Section 414(b), (c), (m) or (o) of the Code or (ii) as a result of the
Borrower or a Subsidiary of the Borrower being or having been a general partner
of such person.
"Eurodollar Loan" shall mean each Loan designated as such by
the Borrower at the time of the incurrence thereof or conversion thereto.
"Event of Default" shall have the meaning provided in Section
10.
"Excess Cash Flow" shall mean, for any period, the remainder
of (i) the sum of (a) Adjusted Consolidated Net Income for such period and (b)
the decrease, if any, in Adjusted Working Capital from the first day to the
last day of such period, minus (ii) the sum of (a) the amount of cash Capital
Expenditures (to the extent not financed with Indebtedness but not in excess of
the amounts permitted pursuant to Section 9.05) made by the Borrower and its
Subsidiaries on a consolidated basis during such period, (b) the amount of
permanent principal payments of Indebtedness for borrowed money of the Borrower
and its Subsidiaries (other than repayments of Loans, provided that repayments
-72-
80
of Loans shall be deducted in determining Excess Cash Flow if such repayments
were applied to Scheduled Repayments required to be made during such period or
were made as a voluntary prepayment with internally generated funds (but in the
case of a voluntary prepayment of Revolving Loans, only to the extent
accompanied by a voluntary reduction to the Total Revolving Loan Commitment)
during such period, (c) the increase, if any, in Adjusted Working Capital from
the first day to the last day of such period, (d) the aggregate amount of
Distributions paid during such period pursuant to Section 9.03(ii) (but in no
case in an amount in excess of the amount permitted to be paid pursuant to said
Section) and (e) without duplication, accrued insurance premiums and health
insurance reserves.
"Facing Fee" shall have the meaning provided in Section 3.01(b)
"Federal Funds Rate" shall mean for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by the Agent from three Federal Funds brokers of
recognized standing selected by the Agent.
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 3.01.
"Final Maturity Date" shall mean the date occurring on the
fifth anniversary of the Restatement Effective Date.
"Florida Payroll Leasing" shall mean Florida Payroll Leasing
and Services, L.P., a Delaware limited partnership.
"General Partner" shall have the meaning provided in the first
paragraph of this Agreement.
"Hazardous Materials" means (a) ethylene oxide, any petroleum
or petroleum products, radioactive materials, asbestos in any form that is or
could become friable, urea formaldehyde foam insulation, transformers or other
equipment that contain, dielectric fluid containing levels of polychlorinated
biphenyls, and radon gas; (b) any chemicals, materials or substances defined as
or included in the definition of "hazardous substances," "hazardous waste,"
"hazardous materials," "extremely hazardous waste," "restricted hazardous
waste," "toxic substances," "toxic pollutants," "contaminants," or
"pollutants," or words of similar import, under any applicable Environmental
Law; and
-73-
81
(c) any other chemical, material or substance, exposure to which is prohibited,
limited or regulated by any governmental authority.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money or for the deferred purchase price
of property or services, (ii) the maximum amount available to be drawn under
all letters of credit issued for the account of such Person and all unpaid
drawings in respect of such letters of credit, (iii) all Indebtedness of the
types described in clause (i), (ii), (iv), (v) or (vi) secured by any Lien on
any property owned by such Person, whether or not such Indebtedness has been
assumed by such Person, (iv) all Capitalized Lease Obligations or obligations
under interest rate protection or other hedging agreements, (v) all obligations
of such person to pay a specified purchase price for goods or services, whether
or not delivered or accepted, i.e., take-or-pay and similar obligations, and
(vi) all Contingent Obligations of such Person, but shall not include accrued
expenses and current trade accounts payable by the Borrower and its
Subsidiaries incurred in the Ordinary Course of Business of the Borrower and
its Subsidiaries.
"Intellectual Property" shall have the meaning provided in
Section 7.20.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section
1.09.
"Issuing Bank" shall mean Banque Paribas.
"L/C Supportable Indebtedness" shall mean obligations of the
Borrower and its Subsidiaries as are acceptable to the Issuing Bank and
otherwise permitted to exist pursuant to the terms of this Agreement.
"Leaseholds" of any Person means all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(c).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of (i) the aggregate Stated Amount of all outstanding Letters of Credit and
(ii) the amount of all Unpaid Drawings.
-74-
82
"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall mean each Term Loan and each Revolving Loan.
"Management Agreements" shall have the meaning provided in
Section 5.05.
"Management Investors" shall mean ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇
▇. Le Tourneau, Jr.
"Margin Stock" shall have the meaning provided in Regulation
U.
"Material Contracts" shall have the meaning provided in
Section 7.21.
"Minimum Borrowing Amount" shall mean (i) for Base Rate Loans,
$100,000 and (ii) for Eurodollar Loans, $500,000.
"MIS Acquisition" shall mean an acquisition (including through
the incurrence of Capitalized Lease Obligations) of computer and management
information hardware and software in the Ordinary Course of Business to update,
modify and replace the existing computer and management information systems of
the Borrower and its Subsidiaries, provided that the aggregate amount expended
for all such acquisitions (including the principal amount of all Indebtedness
incurred in connection therewith) shall not exceed $3,000,000.
"MIS Indebtedness" shall mean Indebtedness of the Borrower or
any of its Subsidiaries incurred in connection with an MIS Acquisition.
"Net Sale Proceeds" shall mean for any sale of assets, the
gross cash proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received) received from any sale of assets, net of reasonable transaction
costs, the amount of such gross cash proceeds required to be used to repay any
Indebtedness which is secured by the respective assets which were sold, and the
estimated marginal increase in income taxes which will be payable by the
-75-
83
partners (for tax purposes) in the Borrower pursuant to Section 4.4(b) of the
Partnership Agreement in respect of the Borrower as a result of such sale.
"Non-Defaulting Bank" shall mean and include each Bank other
than a Defaulting Bank.
"Note" shall mean each Term Note and each Revolving Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03(a).
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Agent located at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Staff Leasing Account
Officer, or such other office as the Agent may hereafter designate in writing
as such to the other parties hereto.
"Obligations" shall mean all amounts owing to the Agent, the
Collateral Agent or any Bank pursuant to the terms of this Agreement or any
other Credit Document.
"Ordinary Course of Business" shall mean any commercial
transaction that is normal and incidental as a matter of custom for the
Borrower or its Subsidiaries in connection with the transaction of business in
the employee leasing industry in the United States, conducted in such manner as
historically practiced by the Borrower on the Restatement Effective Date.
"Original Bank" shall mean each Person which was a Bank under,
and as defined in, the Original Credit Agreement immediately prior to the
Restatement Effective Date.
"Original Credit Agreement" shall have the meaning provided in
the first WHEREAS clause of this Agreement.
"Original Effective Date" shall mean the Effective Date under,
and as defined in, the Original Credit Agreement.
"Original Loans" shall mean the Original Term Loans and the
Original Revolving Loans.
"Original Revolving Loans" shall mean each Revolving Loan made
under, and as defined in, the Original Credit Agreement.
-76-
84
"Original Security Documents" shall mean each Security
Document executed pursuant to, and as defined in, the Original Credit
Agreement.
"Original Term Loans" shall mean each Term Loan made under,
and as defined in, the Original Credit Agreement.
"Participant" shall have the meaning provided in Section
2.04(a).
"Partner Acknowledgement" shall have the meaning provided in
Section 5.06(c).
"Partner Assumption Agreement" shall have the meaning provided
in Section 5.10(b).
"Partner Pledge Agreement" shall mean the Partnership Pledge
and Security Agreement, dated as of November 5, 1994, made by the General
Partner and the limited partners party thereto in favor of the Collateral
Agent, as such agreement may be amended, modified or supplemented from time to
time, including, without limitation, as modified by the Partner
Acknowledgement.
"Partnership Agreements" shall have the meaning set forth in
Section 4.05.
"Payment Office" shall mean the office of the Agent located at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, or
such other office as the Agent may hereafter designate in writing as such to
the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
Revolving Loan Commitment at such time; provided that if the Percentage of any
Bank is to be determined after the Total Revolving Loan Commitment has been
terminated, then the Percentages of the Banks shall be determined immediately
prior (and without giving effect) to such termination.
"Permitted Liens" shall have the meaning provided in Section
9.01.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, association, trust or other enterprise or any
government or political subdivision or any agency, department or
instrumentality thereof.
-77-
85
"Plan" shall mean any multiemployer or single-employer plan,
as defined in Section 4001 of ERISA, which is subject to Title IV of ERISA and
maintained or contributed to by (or to which there is an obligation to
contribute of) the General Partner, the Borrower, any Subsidiary of the
Borrower or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which such plan was maintained or
contributed to by (or to which there was an obligation to contribute of) the
General Partner, the Borrower, any Subsidiary of the Borrower or an ERISA
Affiliate.
"Pledge Agreement Collateral" shall mean all "Collateral" as
defined in each of the Pledge Agreements.
"Pledge Agreements" shall mean the Partner Pledge Agreement
and the Borrower Pledge Agreements.
"Pledged Securities" shall have the meaning provided in the
Borrower Pledge Agreement.
"Prime Lending Rate" shall mean the rate which The Chase
Manhattan Bank, N.A. announces from time to time as its prime lending rate, the
Prime Lending Rate to change when and as such prime lending rate changes.
"Projections" shall have the meaning provided in Section 7.05.
"Quarterly Payment Date" shall mean the last Business Day of
each of March, June, September and December.
"Quoted Rate" shall mean (a) the offered quotation to
first-class banks in the New York interbank Eurodollar market by the Agent for
U.S. dollar deposits of amounts in immediately available funds comparable to
the outstanding principal amount of the Eurodollar Loan of the Agent for which
an interest rate is then being determined with maturities comparable to the
Interest Period applicable to such Eurodollar Loan determined as of 10:00 A.M.
(New York time) on the date which is two Business Days prior to the
commencement of such Interest Period, divided (and rounded upward to the next
whole multiple of 1/16 of 1%) by (b) a percentage equal to 100% minus the then
stated maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves) applicable to
any member bank of the Federal Reserve System in respect of Eurocurrency
funding or liabilities as defined in Regulation D (or any successor category of
liabilities under Regulation D).
"RCRA" shall mean the Resource Conservation and Recovery Act,
as the same may be amended from time to time, 42 U.S.C. Section 6901 et seq.
-78-
86
"Real Property" of any Person shall mean all the right, title
and interest of such Person in and to land, improvements and fixtures,
including Leaseholds.
"Regulations D, G, T, U and X" shall mean Regulations D, G, T,
U and X, respectively, of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion thereof
establishing reserve requirements.
"Release" means disposing, discharging, injecting, spilling,
pumping, leaking, leaching, dumping, emitting, escaping, emptying, seeping,
placing, pouring and the like, into or upon any land or water or air, or
otherwise entering into the environment.
"Replaced Bank" shall have the meaning provided in Section
1.12.
"Replacement Bank" shall have the meaning provided in Section
1.12.
"Reportable Event" shall mean an event described in Section
4043(b) of ERISA with respect to a Plan other than those events as to which the
30-day notice period is waived under subsection .13, .14, .16, .18, .19 or .20
of PBGC Regulation Section 2615.
"Refinancing Transaction" shall mean (i) the payment of a
Distribution in respect of common equity interests in the Borrower, (ii) the
repurchase of a warrant to acquire 7.5% of the common equity interests in the
Borrower (after giving effect to the payment pursuant to clause (i)) and (iii)
the redemption of all outstanding preferred equity interests in the Borrower
and the payment of all accumulated and unpaid Distributions thereon) with the
aggregate payment with respect to clauses (i), (ii) and (iii) not to exceed
$20,000,000.
"Required Banks" shall mean Non-Defaulting Banks the sum of
whose outstanding Term Loans, Term Loan Commitments (to the extent not
theretofore terminated), Revolving Loan Commitments (or after the termination
thereof, the sum of outstanding Revolving Loans and Letter of Credit
Outstandings) represent an amount greater than 50% of the sum of all
outstanding Term Loans made by Non-Defaulting Banks, the then Total Term Loan
Commitments (to the extent not theretofore terminated) of Non-Defaulting Banks
and the Total Revolving Loan Commitment (or after the termination thereof, the
sum of the then total outstanding Revolving Loans and Letter of Credit
Outstandings of Non-Defaulting Banks).
"Restatement Effective Date" shall have the meaning provided
in Section 13.10.
-79-
87
"Returns" shall have the meaning provided in Section 7.09.
"Revolving Loans" shall have the meaning provided in Section
1.01(b).
"Revolving Loan Commitment" shall mean, for each Bank, the
amount set forth opposite such Bank's name in Schedule I hereto directly below
the column entitled "Revolving Loan Commitment," as same may be (x) reduced
from time to time pursuant to Sections 3.02, 3.03 and/or 10 or (y) adjusted
from time to time as a result of assignments to or from such Bank pursuant to
Section 1.12 and/or 13.04.
"Revolving Note" shall have the meaning provided in Section
1.05(a).
"Scheduled Repayment" shall have the meaning provided in
Section 4.02(A)(b).
"Scheduled Repayment Date" shall have the meaning provided in
Section 4.02(A)(b).
"Secured Creditors" shall have the meaning provided in the
Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Securities Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"Security Agreement Collateral" shall mean all "Collateral" as
defined in each of the Security Agreements.
"Security Agreements" shall mean the Borrower Security
Agreement and the Subsidiaries Security Agreement.
"Security Documents" shall mean each Pledge Agreement, each
Security Agreement and each Concentration Account Consent Letter.
"Staff Leasing" shall mean Staff Leasing, L.P., a Delaware
limited partnership.
"Stated Amount" of each Letter of Credit shall, at any time,
mean the maximum amount available to be drawn thereunder at such time (in each
case determined without regard to whether any conditions to drawing could then
be met).
-80-
88
"Subsidiaries Guaranty" shall mean the Subsidiaries Guaranty,
dated as of November 5, 1993, made by each Subsidiary Guarantor, as such
agreement may be amended, modified or supplemented from time to time, including
without limitation, as modified by the Subsidiaries Acknowledgement.
"Subsidiaries Security Agreement" shall mean the Subsidiaries
Security Agreement made by the Subsidiaries of the Borrower party thereto in
favor of the Collateral Agent, as such agreement may be amended, modified or
supplemented from time to time, including without limitation, as modified by
the Subsidiaries Acknowledgement.
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person and/or
one or more Subsidiaries of such Person and (ii) any partnership, association,
joint venture or other entity in which such Person and/or one or more
Subsidiaries of such Person has more than a 50% equity interest at the time or
50% of the general partnership or similar interest. Unless otherwise expressly
provided herein all references to the term "Subsidiary" shall mean a Subsidiary
of the Borrower.
"Subsidiary Acknowledgement" shall have the meaning provided
in Section 5.06(a).
"Subsidiary Assumption Agreement" shall have the meaning
provided in Section 5.10(a).
"Subsidiary Guarantor" shall mean each Subsidiary of the
Borrower.
"Subsidiary Notes" shall mean the promissory notes of the
Borrower issued in favor of any Subsidiary of the Borrower that is not a
Subsidiary Assignor in the form approved by the Agent prior to the Original
Effective Date with such amendments as the Agent may request as of the
Restatement Effective Date to give effect to the amendment and restatement of
the Original Credit Agreement.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Term Loans" shall have the meaning provided in Section
1.01(a).
"Term Loan Commitment" shall mean, for each Bank, the amount
set forth opposite such Bank's name in Schedule I hereto directly below the
column entitled "Term Loan Commitment", as same may be (x) reduced from time to
time pursuant to Section
-81-
89
3.03 and/or 10 or (y) adjusted from time to time as a result of assignments to
or from such Bank pursuant to Sections 1.12 and/or 13.04.
"Term Note" shall have the meaning provided in Section
1.05(a).
"Total Commitment" shall mean, at any time, the sum of the
Commitments of each of the Banks.
"Total Employee Leasing" shall mean Total Employee Leasing
Services, L.P., a Delaware limited partnership.
"Total Revolving Loan Commitment" shall mean, at any time, the
sum of the Revolving Loan Commitments of each of the Banks.
"Total Term Loan Commitment" shall mean, at any time, the sum
of the Term Loan Commitments of each of the Banks.
"Total Unutilized Revolving Loan Commitment" shall mean, at
any time, an amount equal to the remainder of (x) the then Total Revolving Loan
Commitment, less (y) the aggregate principal amount of Revolving Loans then
outstanding plus the then aggregate amount of Letter of Credit Outstandings.
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being two separate Tranches,
i.e., whether Term Loans or Revolving Loans.
"Type" shall mean the type of Loan determined with regard to
the interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if
any, by which the actuarial present value of the accumulated plan benefits
under the Plan as of the close of its most recent plan year, determined in
accordance with Statement of Financial Accounting Standards No. 35 and based
upon the actuarial assumptions used by the Plan's actuary in the most recent
annual valuation of the Plan, exceeds the fair market value of the assets
allocable thereto, determined in accordance with Section 412 of the Code.
"United States" and "U.S." shall each mean the United States
of America.
"Unpaid Drawing" shall have the meaning provided in Section
2.05(a).
-82-
90
"Unutilized Revolving Loan Commitment" for any Bank, at any
time, shall mean the Revolving Loan Commitment of such Bank at such time less
the aggregate principal amount of Revolving Loans made by such Bank and then
outstanding and such Bank's Percentage of the Letter of Credit Outstandings.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 100% of whose capital stock is at the time owned by such Person
and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any
partnership, association, joint venture or other entity in which such Person
and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity
interest at such time.
Section 12. The Agent.
12.01 Appointment. The Banks hereby designate Banque Paribas
as Agent (for purposes of this Section 12, the term "Agent" shall include
Banque Paribas in its capacity as Collateral Agent pursuant to the Security
Documents) to act as specified herein and in the other Credit Documents. Each
Bank hereby irrevocably authorizes, and each holder of any Note by the
acceptance of such Note shall be deemed irrevocably to authorize, the Agent to
take such action on its behalf under the provisions of this Agreement, the
other Credit Documents and any other instruments and agreements referred to
herein or therein and to exercise such powers and to perform such duties
hereunder and thereunder as are specifically delegated to or required of the
Agent by the terms hereof and thereof and such other powers as are reasonably
incidental thereto. The Agent may perform any of its duties hereunder by or
through its officers, directors, agents or employees.
12.02 Nature of Duties. The Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
Security Documents. Neither the Agent nor any of its officers, directors,
agents or employees shall be liable for any action taken or omitted by it or
them hereunder or under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful
misconduct. The duties of the Agent shall be mechanical and administrative in
nature; the Agent shall not have by reason of this Agreement or any other
Credit Document a fiduciary relationship in respect of any Bank or the holder
of any Note; and nothing in this Agreement or any other Credit Document,
expressed or implied, is intended to or shall be so construed as to impose upon
the Agent any obligations in respect of this Agreement or any other Credit
Document except as expressly set forth herein.
12.03 Lack of Reliance on the Agent. Independently and
without reliance upon the Agent, each Bank and the holder of each Note, to the
extent it deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial
-83-
91
condition and affairs of the General Partner and the Borrower and their
respective Subsidiaries in connection with the making and the continuance of
the Loans and the participation in Letters of Credit and the taking or not
taking of any action in connection herewith and (ii) its own appraisal of the
creditworthiness of the General Partner and the Borrower and their respective
Subsidiaries and, except as expressly provided in this Agreement, the Agent
shall have no duty or responsibility, either initially or on a continuing
basis, to provide any Bank or the holder of any Note with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans, the participation in the Letters of Credit or at any time
or times thereafter. The Agent shall not be responsible to any Bank or the
holder of any Note for any recitals, statements, information, representations
or warranties herein or in any document, certificate or other writing delivered
in connection herewith or for the execution, effectiveness, genuineness,
validity, enforceability, perfection, priority or sufficiency of this Agreement
or any other Credit Document or the financial condition of the General Partner
and the Borrower or their respective Subsidiaries or be required to make any
inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Credit Document, or the
financial condition of the General Partner and the Borrower or its Subsidiaries
or the existence or possible existence of any Default or Event of Default.
12.04 Certain Rights of the Agent. If the Agent shall
request instructions from the Required Banks with respect to any act or action
(including failure to act) in connection with this Agreement or any other
Credit Document, the Agent shall be entitled to refrain from such act or taking
such action unless and until the Agent shall have received instructions from
the Required Banks; and the Agent shall not incur liability to any Person by
reason of so refraining. Without limiting the foregoing, no Bank or the holder
of any Note shall have any right of action whatsoever against the Agent as a
result of the Agent acting or refraining from acting hereunder or under any
other Credit Document in accordance with the instructions of the Required
Banks.
12.05 Reliance. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or facsimile message,
cablegram, radiogram, order or other document or telephone message signed, sent
or made by any Person that the Agent believed to be the proper Person, and,
with respect to all legal matters pertaining to this Agreement and any other
Credit Document and its duties hereunder and thereunder, upon advice of counsel
(which may be counsel for the Borrower) selected by it.
12.06 Indemnification. To the extent the Agent is not
reimbursed and indemnified by the Borrower, the Banks will reimburse and
indemnify the Agent, in proportion to their respective "percentages" as used in
determining the Required Banks, for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions,
-84-
92
judgments, suits, costs, expenses or disbursements of whatsoever kind or nature
which may be imposed on, asserted against or incurred by the Agent in
performing its duties hereunder or under any other Credit Document, in any way
relating to or arising out of this Agreement or any other Credit Document;
provided that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct.
12.07 The Agent in Its Individual Capacity. With respect to
its obligation to make Loans under this Agreement, the Agent shall have the
rights and powers specified herein for a "Bank" and may exercise the same
rights and powers as though it were not performing the duties specified herein;
and the term "Banks," "Required Banks," "holders of Notes" or any similar terms
shall, unless the context clearly otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend money to, and
generally engage in any kind of banking, trust or other business with any
Credit Party or any Affiliate of any Credit Party as if it were not performing
the duties specified herein, and may accept fees and other consideration from
the Borrower or any other Credit Parties for services in connection with this
Agreement and otherwise without having to account for the same to the Banks.
12.08 Holders. The Agent may deem and treat the payee of any
Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with the Agent. Any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee, assignee or indorsee, as the case may be, of
such Note or of any Note or Notes issued in exchange therefor.
12.09 Resignation by the Agent. (a) The Agent may resign
from the performance of all its functions and duties hereunder and/or under the
other Credit Documents at any time by giving 15 Business Days' prior written
notice to the Borrower and the Banks. Such resignation shall take effect upon
the appointment of a successor Agent pursuant to clauses (b) and (c) below or
as otherwise provided below.
(b) Upon any such notice of resignation, the Banks shall
appoint a successor Agent hereunder or thereunder who shall be a commercial
bank or trust company reasonably acceptable to the Borrower (it being
understood and agreed that any Bank is deemed to be acceptable to the
Borrower). In the event that more than one Bank has notified the Borrower of
an interest in becoming the successor Agent, the Borrower and the Required
Banks shall agree as to the successor Agent.
-85-
93
(c) If a successor Agent shall not have been so appointed
within such 15 Business Day period, the Agent, with the consent of the
Borrower, shall then appoint a successor Agent who shall serve as Agent
hereunder or thereunder until such time, if any, as the Banks appoint a
successor Agent as provided above.
(d) If no successor Agent has been appointed pursuant to
clause (b) or (c) above by the 20th Business Day after the date such notice of
resignation was given by the Agent, the Agent's resignation shall become
effective and the Banks shall thereafter perform all the duties of the Agent
hereunder and/or under any other Credit Document until such time, if any, as
the Banks appoint a successor Agent as provided above.
Section 13. Miscellaneous.
13.01 Payment of Expenses, etc. Each of the General Partner
and the Borrower jointly and severally agrees to: (i) whether or not the
transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Agent (including, without limitation,
the reasonable fees and disbursements of White & Case) in connection with the
preparation, execution and delivery of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein and
any amendment, waiver or consent relating hereto or thereto, of the Agent in
connection with its syndication efforts with respect to this Agreement and of
the Agent and each of the Banks in connection with the enforcement of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein (including, without limitation, the reasonable
fees and disbursements of counsel for the Agent and for each of the Banks);
(ii) pay and hold each of the Banks harmless from and against any and all
present and future stamp, excise and other similar taxes with respect to the
foregoing matters and save each of the Banks harmless from and against any and
all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to such Bank) to pay such taxes; and (iii)
defend, protect, indemnify and hold harmless the Agent and each Bank, and each
of their respective officers, directors, employees, representatives and agents
(collectively called the "Indemnitees") from and against any and all
liabilities, obligations (including removal or remedial actions), losses,
damages (including foreseeable and unforeseeable consequential damages and
punitive damages), penalties, claims, actions, judgments, suits, costs,
expenses and disbursements (including reasonable attorneys' and consultants
fees and disbursements) of any kind or nature whatsoever that may at any time
be incurred by, imposed on or assessed against the Indemnitees directly or
indirectly based on, or arising or resulting from, (a) any investigation,
litigation or other proceeding (whether or not the Agent or any Bank is a party
thereto) related to the entering into and/or performance of this Agreement or
any other Credit Document or the proceeds of any Loans hereunder or the
consummation of any transactions contemplated herein or in any other Credit
Document, (b) the actual or alleged generation, presence or
-86-
94
Release of Hazardous Materials on or from, or the transportation of Hazardous
Materials to or from, any Real Property owned or at any time operated by the
Borrower or any of their respective Subsidiaries or; (c) any Environmental
Claim relating to the General Partner or the Borrower or any of their
respective Subsidiaries or any Real Property owned or at any time operated by
the General Partner or the Borrower or any of their respective Subsidiaries or;
(d) the exercise of the rights of the Agent and of any Bank under any of the
provisions of this Agreement or any other Credit Document or any Loans
hereunder; or, (e) the consummation of any transaction contemplated herein or
in any other Credit Document; (the "Indemnified Matters") regardless of when
such Indemnified Matter arises, but excluding from the coverage relating to any
Indemnified Matter coverage for any Indemnitee whose claim arises solely from
the gross negligence or willful misconduct of such Indemnitee.
13.02 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance
of an Event of Default, each Bank is hereby authorized at any time or from time
to time, without presentment, demand, protest or other notice of any kind to
any Credit Party or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits (general
or special) and any other Indebtedness at any time held or owing by such Bank
(including, without limitation, by branches and agencies of such Bank wherever
located) to or for the credit or the account of each Credit Party against and
on account of the Obligations and liabilities of such Credit Party to such Bank
under this Agreement or under any of the other Credit Documents, including,
without limitation, all interests in Obligations purchased by such Bank
pursuant to Section 13.06(b), and all other claims of any nature or description
arising out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not such Bank shall have made any demand hereunder
and although said Obligations, liabilities or claims, or any of them, shall be
contingent or unmatured.
13.03 Notices. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including telegraphic, telex, facsimile or cable communication) and
mailed, telegraphed, telexed, telecopied, cabled or delivered: if to the
Borrower, at its address specified opposite its signature below; if to any
Bank, at its address specified opposite its name below; and if to the Agent, at
its Notice Office; or, as to any Credit Party or the Agent, at such other
address as shall be designated by such party in a written notice to the other
parties hereto and, as to each Bank, at such other address as shall be
designated by such Bank in a written notice to the Borrower and the Agent. All
such notices and communications shall, when mailed, telegraphed, telexed,
facsimiled, or cabled or sent by overnight courier, be effective when deposited
in the mails, delivered to the telegraph company, cable company or overnight
courier, as the case may be, or sent by telex or facsimile device, except that
notices and communications to the Agent shall not be effective until received
by the Agent.
-87-
95
13.04 Benefit of Agreement. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, the Borrower
may not assign or transfer any of its rights, obligations or interest hereunder
or under any other Credit Document without the prior written consent of the
Banks; and provided further, that although any Bank may transfer, assign or
grant participations in its rights hereunder, such Bank shall remain a "Bank"
for all purposes hereunder (and may not transfer or assign all or any portion
of its Commitments hereunder except as provided in Section 13.04(b)) and the
transferee, assignee or participant, as the case may be, shall not constitute a
"Bank" hereunder; and provided further, that no Bank shall transfer or grant
any participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the Final Maturity Date) in which such participant is
participating, or reduce the rate or extend the time of payment of interest or
Fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount
thereof, or increase such participant's portion of the Commitments in which
such participant is participating over the amount thereof then in effect (it
being understood that a waiver of any Default or Event of Default or of a
mandatory reduction in the Total Commitment shall not constitute a change in
the terms of any Commitment, and that an increase in any Commitment shall be
permitted without the consent of any participant if the participant's
participation is not increased as a result thereof), (ii) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement or (iii) release all or substantially all of the
Collateral under all of the Security Documents (except as expressly provided in
the Credit Documents) supporting the Loans hereunder in which such participant
is participating. In the case of any such participation, the participant shall
not have any rights under this Agreement or any of the other Credit Documents
(the participant's rights against such Bank in respect of such participation to
be those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank may (x) assign a
portion of its Loans or Commitments and related outstanding Obligations
hereunder to one or more Banks or (y) assign a portion equal to at least
$2,000,000 and, if greater, in integral multiples of $500,000, of such Loans or
Commitments and related outstanding Obligations hereunder to one or more
Eligible Transferees each of which assignees shall become a party to this
Agreement as a Bank by execution of an assignment and assumption agreement
substantially in the form of Exhibit J (appropriately completed); provided
that: (i) at such time Schedule I shall be deemed modified to reflect the
Commitments of such new Bank and of the existing Banks; (ii) new Notes will be
issued to such new Bank and to the assigning Bank upon the request of such new
Bank or assigning Bank, such new Notes to be in
-88-
96
conformity with the requirements of Section 1.05 to the extent needed to
reflect the revised Commitments; (iii) the consent of Banque Paribas and the
Issuing Bank under any Letter of Credit shall be required in connection with
any assignment of Revolving Loan Commitments; and (iv) the Agent shall receive
at the time of each such assignment, from the assigning Bank, the payment of a
non-refundable assignment fee of $3,000. To the extent of any assignment
pursuant to this Section 13.04(b), the assigning Bank shall be relieved of its
obligations hereunder with respect to its assigned Commitments.
13.05 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Agent or any Bank or any holder of any Note in exercising any
right, power or privilege hereunder or under any other Credit Document and no
course of dealing between the Borrower or any other Credit Party and the Agent
or any Bank or the holder of any Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
or under any other Credit Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights, powers and remedies herein or in any other Credit
Document expressly provided are cumulative and not exclusive of any rights,
powers or remedies which the Agent or any Bank or the holder of any Note would
otherwise have. No notice to or demand on any Credit Party in any case shall
entitle any Credit Party to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Agent or any
Bank or the holder of any Note to any other or further action in any
circumstances without notice or demand.
13.06 Payments Pro Rata. (a) The Agent agrees that promptly
after its receipt of each payment from or on behalf of the Borrower in respect
of any Obligations hereunder, it shall distribute such payment to the Banks
(other than any Bank which has expressly agreed in writing not to receive its
share of such payment) pro rata based upon their respective shares, if any, of
the Obligations with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security,
by the exercise of the right of setoff or banker's lien, by counterclaim or
cross action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Commitment or Fees, of a sum which with respect
to the related sum or sums received by other Banks is in a greater proportion
than the total of such Obligation then owed and due to such Bank bears to the
total of such Obligation then owed and due to all of the Banks immediately
prior to such receipt, then such Bank receiving such excess payment shall
purchase for cash without recourse or warranty from the other Banks an interest
in the Obligations of the respective Credit Party to such Banks in such amount
as shall result in a proportional participation by all the Banks in such
amount; provided that if all or any portion of such excess amount is thereafter
-89-
97
recovered from such Bank, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained
herein, the provisions of the preceding Sections 13.06(a) and (b) shall be
subject to the express provisions of this Agreement which require, or permit,
differing payments to be made to Non-Defaulting Banks as opposed to Defaulting
Banks.
13.07 Calculations; Computations. (a) The financial
statements to be furnished to the Banks pursuant hereto shall be made and
prepared in accordance with generally accepted accounting principles in the
United States consistently applied throughout the periods involved (except as
set forth in the notes thereto or as otherwise disclosed in writing by the
Borrower to the Banks); provided that, except as otherwise specifically
provided herein, all computations of Excess Cash Flow and all computations
determining compliance with Sections 9.08 through 9.12, inclusive, shall
utilize accounting principles and policies in conformity with those used to
prepare the historical financial statements delivered to the Banks pursuant to
Section 7.05(a).
(b) 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.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE. (A)
THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE GENERAL PARTNER AND THE BORROWER EACH HEREBY IRREVOCABLY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. THE GENERAL PARTNER AND THE BORROWER
EACH HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS DECHERT PRICE &
▇▇▇▇▇▇ WITH OFFICES ON THE DATE HEREOF AT ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ATTENTION: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ESQ., AS ITS DESIGNEE, APPOINTEE AND
AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT
OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND
DOCUMENTS WHICH MAY BE SERVED IN ANY
-90-
98
SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND
AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, THE GENERAL PARTNER AND THE
BORROWER EACH AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW
YORK CITY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO
THE AGENT UNDER THIS AGREEMENT. THE GENERAL PARTNER AND THE BORROWER EACH
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT
ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE AGENT UNDER THIS AGREEMENT, ANY BANK OR THE HOLDER OF ANY NOTE TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS
OR OTHERWISE PROCEED AGAINST ANY CREDIT PARTY IN ANY OTHER JURISDICTION.
(B) THE GENERAL PARTNER AND THE BORROWER EACH HEREBY
IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN
THE COURTS REFERRED TO IN CLAUSE (A) ABOVE AND HEREBY FURTHER IRREVOCABLY
WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
13.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall be
lodged with the Borrower and the Agent.
13.10 Effectiveness. This Agreement shall become effective
on the date (the "Restatement Effective Date") on which (i) the Borrower, the
General Partner and each of the Banks shall have signed a copy hereof (whether
the same or different copies) and shall have delivered the same to the Agent at
its Notice Office or, in the case of the Banks, shall have given to the Agent
telephonic (confirmed in writing), written or telex notice (actually received)
at such office that the same has been signed and mailed to it and (ii) all
conditions contained in Sections 5 and 6 are met to the satisfaction of the
Agent and the Required Banks (determined after giving effect to the Restatement
Effective Date). Unless
-91-
99
the Agent has received actual notice from any Bank that the conditions
described in clause (ii) of the preceding sentence have not been met to its
satisfaction, upon the satisfaction of the conditions described in clause (i)
of the immediately preceding sentence, the payment to the Original Banks of all
amounts required to be paid to them on the Restatement Effective Date pursuant
to Section 5.19, and the payment of all fees required to be paid on such date
as provided in Section 3.01(f), the Restatement Effective Date shall be deemed
to have occurred, regardless of any subsequent determination that one or more
of the conditions thereto had not been met (although the occurrence of the
Restatement Effective Date shall not release the Borrower from any liability or
prevent the existence of an Event of Default based upon failure to satisfy one
or more of the applicable conditions contained in Sections 5 and 6).
13.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only
and shall not in any way affect the meaning or construction of any provision of
this Agreement.
13.12 Amendment or Waiver. (a) Neither this Agreement nor
any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party thereto
and the Required Banks; provided that no such change, waiver, discharge or
termination shall, without the consent of each Bank (other than a Defaulting
Bank) (with Obligations of the respective types in the case of following clause
(i)): (i) extend the final scheduled maturity of any Loan or Note or any
portion thereof or extend the stated maturity of any Letter of Credit beyond
the Final Maturity Date, or reduce the rate or extend the time of payment of
interest or Fees thereon, or reduce the principal amount thereof; (ii) release
all or substantially all of the Collateral (except as expressly provided in the
respective Security Document); (iii) amend, modify or waive any provision of
this Section 13.12; (iv) reduce the percentage specified in the definition of
Required Banks (it being understood that, with the consent of the Required
Banks, additional extensions of credit pursuant to this Agreement may be
included in the determination of the Required Banks on substantially the same
basis as the extensions of Term Loans and Revolving Loan Commitments are
included on the Restatement Effective Date); or (v) consent to the assignment
or transfer by the Borrower of any of its rights and obligations under this
Agreement; provided further, that no such change, waiver, discharge or
termination shall: (x) increase the Commitments of any Bank over the amount
thereof then in effect (it being understood that waivers or modifications of
conditions precedent, covenants, Defaults or Events of Default or of a
mandatory reduction in the Total Commitment shall not constitute an increase in
the Commitment of any Bank, and that an increase in the available portion of
any Commitment of any Bank shall not constitute an increase in the Commitment
of such Bank); (y) without the consent of the Agent, amend, modify or waive any
provision of Section 12 or any other provision relating to the rights or
obligations of
-92-
100
the Agent; or (z) without the consent of the Collateral Agent, amend, modify or
waive any provision relating to the rights or obligations of the Collateral
Agent.
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clause (a)(i) through (v), inclusive, of this Section 13.12,
the consent of the Required Banks is obtained but the consent of one or more of
such other Banks whose consent is required is not obtained, then the Borrower
shall have the right to replace each such non-consenting Bank or Banks (so long
as all non-consenting Banks are so replaced) with one or more Replacement
Banks pursuant to Section 1.12 so long as at the time of such replacement, each
such Replacement Bank consents to the proposed change, waiver, discharge or
termination, provided that the Borrower shall not have the right to replace a
Bank solely as a result of the exercise of such Bank's rights (and the
withholding of any required consent by such Bank) pursuant to the second
proviso to Section 13.12(a).
(c) Notwithstanding anything to the contrary contained above
in this Section 13.12, the Collateral Agent may enter into amendments to the
Subsidiaries Guaranty and the Security Documents for the purpose of adding
additional Subsidiaries of the Borrower (or other Credit Parties) as parties
thereto.
13.13 Survival. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 13.01 shall
survive the execution and delivery of this Agreement and the Notes and the
making and repayment of the Loans.
13.14 Domicile of Loans. Each Bank may transfer and carry
its Loans at, to or for the account of any office, Subsidiary or Affiliate of
such Bank.
* * *
-93-
101
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ STAFF CAPITAL, L.P.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇*
Attn: President By its sole general partner,
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Staff Acquisition, Inc.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title: Co-Chairman
c/o Craig Capital Corporation STAFF ACQUISITION, INC.
Two ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇*
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ ---------------------------
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Title: Co-Chairman
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Individually and as Agent
Attn: Staff Leasing
Account Officer
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: Vice President
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Title: Vice President
* With a copy to:
Dechert Price & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
-94-
102
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, N.A.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title: Vice President
10100 Santa ▇▇▇▇▇▇ Boulevard PILGRIM PRIME RATE TRUST
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ ---------------------------
Title: Assistant Portfolio
Manager
-95-
103
SCHEDULE I
COMMITMENTS
Term Loan Revolving Loan
Bank Commitment Commitment
---- ---------- --------------
Banque Paribas $ 5,000,000 $13,000,000
NationsBank of Florida, N.A. $10,000,000
Pilgrim Prime Rate Trust $10,000,000
----------- -----------
Totals: $25,000,000 $13,000,000
104
SCHEDULE II
PROJECTIONS
105
SCHEDULE III
REAL PROPERTY
106
SCHEDULE IV
CAPITALIZATION
107
SCHEDULE V
MATERIAL CONTRACTS
108
SCHEDULE VI
INSURANCE
109
SCHEDULE VII
EXISTING LIENS
110
[CONFORMED COPY]
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
FIRST AMENDMENT (this "Amendment"), dated as of June 29, 1995,
among Staff Acquisition, Inc. (the "General Partner"), Staff Capital, L.P. (the
"Borrower"), the lending institutions party to the Amended and Restated Credit
Agreement referred to below (the "Banks") and Banque Paribas, as Agent (in such
capacity, the "Agent"). All capitalized terms used herein and not otherwise
defined shall have the respective meanings provided such terms in the Amended
and Restated Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the General Partner, the Borrower, the Banks and the
Agent are parties to an Amended and Restated Credit Agreement, dated as of
November 5, 1993 and amended and restated as of December 8, 1994 (the "Amended
and Restated Credit Agreement");
WHEREAS, the parties hereto wish to amend the Amended and
Restated Credit Agreement as herein provided;
NOW, THEREFORE, it is agreed:
1. Section 3.03 of the Credit Agreement is amended by
(i) redesignating Section 3.03(f) as Section 3.03(g) and (ii) inserting the
following new paragraph (f):
"(f) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment shall be
reduced by the amount of $3,000,000 on September 30, 1995. Such reduction
shall be applied to reduce the Revolving Loan Commitment of each Bank in an
amount equal to the increase in the Revolving Loan Commitment of such Bank on
the effective date of the First Amendment to this Agreement."
2. Section 4.02(A) of the Credit Agreement is amended by
deleting Section 4.02(A)(b) in its entirety and inserting in lieu thereof the
following new Section 4.02(A)(b):
"(b) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, the Borrower shall be
required to repay on each date set forth below (each, a "Scheduled
Repayment Date"), the principal amount of Term Loans set forth below
opposite such date (each such repayment as the same may be reduced as
provided in Sections 4.01 and 4.02(B)(a), a "Scheduled Repayment"):
111
Scheduled Repayment Dates Amount
------------------------- ------
December 31, 1994 $ 300,000
March 31, 1995 $ 750,000
June 30, 1995 $ 0
September 30, 1995 $ 0
December 31, 1995 $ 0
March 31, 1996 $1,140,625
June 30, 1996 $1,140,625
September 30, 1996 $1,140,625
December 31, 1996 $1,140,625
March 31, 1997 $1,390,625
June 30, 1997 $1,390,625
September 30, 1997 $1,390,625
December 31, 1997 $1,390,625
March 31, 1998 $1,640,625
June 30, 1998 $1,640,625
September 30, 1998 $1,640,625
December 31, 1998 $1,640,625
March 31, 1999 $1,815,625
June 30, 1999 $1,815,625
September 30, 1999 $1,815,625
Final Maturity Date $1,815,625"
3. Section 8.01 of the Credit Agreement is amended by
inserting the following new Section 8.01(l):
"(l) Audit Report. On or prior to August 1, 1995, an audit report
prepared by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ relating to the Borrower's health insurance
plans."
4. Section 9.01(viii) is amended by deleting Section
9.01(viii) in its entirety and inserting in lieu thereof the following new
Section 9.01(viii):
"(viii) Liens placed upon equipment, machinery or real property used
in the Ordinary Course of Business of the Borrower or any of its
Subsidiaries at the time of purchase thereof by the Borrower or any of
its Subsidiaries to secure Indebtedness incurred to pay all or a
portion of the purchase price thereof, provided that (x) the aggregate
principal amount of all Indebtedness secured by Liens permitted by
this clause (viii) does not exceed at any one time outstanding
$5,875,000 and (y), in all events, the Lien encumbering the equipment,
machinery or real property so acquired does not encumber any other
asset of the Borrower or any of its Subsidiaries;
5. Section 9.05 is amended by deleting Section 9.05(b)
in its entirety and inserting in lieu thereof the following new Section
9.05(b):
2
112
"(b) Indebtedness of the Borrower and its Subsidiaries evidenced by
Capitalized Lease obligations to the extent permitted pursuant to
Section 9.08; provided that the aggregate amount of Indebtedness
evidenced by Capitalized Lease Obligations under all Capital Leases
outstanding under this clause (b) shall not at any time exceed
$5,875,000."
6. Section 9.08(a) is amended by deleting the number
"$425,000" as the first number listed under the column entitled "Amount" and
inserting the number "$2,525,000" in lieu thereof.
7. Section 9.08(c) is amended by deleting the number
"$3,000,000" appearing in line two thereof and inserting the number
"$8,275,000" in lieu thereof.
8. Section 9.09 of the Credit Agreement is amended by
deleting such Section in its entirety and inserting in lieu thereof the
following new Section 9.09:
"9.09 Minimum EBITDA. The Borrower will not permit its Consolidated
EBITDA for the period of four consecutive fiscal quarters (taken as
one accounting period) ending on each date set forth below to be less
than the amount set forth opposite such date:
Fiscal Quarter Minimum
Ended Amount
-------------- --------
December 31, 1994 $ 8,500,000
March 31, 1995 $ 9,375,000
June 30, 1995 $ 8,800,000
September 30, 1995 $ 9,350,000
December 31, 1995 $10,250,000
March 31, 1996 $10,700,000
June 30, 1996 $12,500,000
September 30, 1996 $13,125,000
December 31, 1996 $13,500,000
March 31, 1997 $14,250,000
June 30, 1997 and $15,000,000
for each fiscal quarter
thereafter"
9. Section 9.10 of the Credit Agreement is amended by
deleting such Section in its entirety and inserting in lieu thereof the
following new Section 9.10:
"9.10 Minimum Consolidated Net Worth. The Borrower will not permit
its Consolidated Net Worth at any time during any quarter set forth
below to be less than the amount set forth below opposite such
quarter:
3
113
Fiscal Quarter Minimum
Ended Amount
-------------- -------
December 31, 1994 $(9,500,000)
March 31, 1995 $(8,725,000)
June 30, 1995 $(9,000,000)
September 30, 1995 $(7,175,000)
December 31, 1995 $(6,400,000)
March 31, 1996 $(5,100,000)
June 30, 1996 $(3,800,000)
September 30, 1996 $(2,500,000)
December 31, 1996 $(1,200,000)
March 31, 1997 $ 600,000
June 30, 1997 $ 2,400,000
September 30, 1998 $ 9,750,000
December 31, 1998 $11,000,000
March 31, 1999 $13,000,000
June 30, 1999 $15,000,000
September 31, 1999 $17,000,000
Final Maturity Date $18,500,000
10. Section 9.11 of the Credit Agreement is amended by
deleting such Section in its entirety and inserting in lieu thereof the
following new Section 9.11:
"9.11 Interest Coverage Ratio. The Borrower will not permit
the ratio of its Consolidated EBITDA for the period of four
consecutive fiscal quarters (taken as one accounting period)
to its Consolidated Interest Expense for the period of four
consecutive fiscal quarters (taken as one accounting period)
in any fiscal quarter ending on a date set forth below to be
less than the ratio set forth opposite such date:
Fiscal Quarter
Ended Ratio
-------------- -------
December 31, 1994 3.25:1
March 31, 1995 3.35:1
June 30, 1995 3.00:1
September 30, 1995 3.00:1
December 31, 1995 3.00:1
March 31, 1996 3.00:1
June 30, 1996 3.50:1
September 30, 1996 4.00:1
and thereafter
11. Section 9.12 of the Credit Agreement is amended by
deleting such Section in its entirety and inserting in lieu thereof the
following new Section 9.12:
4
114
"9.12 Consolidated Indebtedness to Consolidated EBITDA. The Borrower
will not permit the ratio of (i) Consolidated Indebtedness on the last
day of any fiscal quarter set forth below to (ii) Consolidated EBITDA
for the period of four consecutive fiscal quarters ending on the last
day of such fiscal quarter, taken as one accounting period, to be
greater than the amount set forth below opposite such fiscal quarter:
Fiscal Quarter
Ended Ratio
-------------- -------
December 31, 1994 3.30:1
March 31, 1995 3.10:1
June 30, 1995 3.50:1
September 30, 1995 3.50:1
December 31, 1995 3.50:1
March 31, 1996 3.50:1
June 30, 1996 2.90:1
September 30, 1996 2.65:1
December, 31, 1996 2.45:1
March 31, 1997 2.15:1
June 30, 1997 1.85:1
September 30, 1996 1.55:1
December 31, 1996 1.25:1
March 31, 1998 1.00:1
and thereafter
12. Section 9 is amended by inserting the following new
Section 9.18 at the end thereof:
"9.18 Limitation on Healthcare Adjustments. The aggregate amount of
the Healthcare Adjustment for any fiscal year shall not be a loss
greater than the amount set forth below opposite such fiscal year:
Fiscal
Year Loss Amount
---- -----------
1995 $ 10,500,000
1996 $ 2,000,000
1997 $ 2,500,000
1998 $ 3,000,000
1999 $ 3,500,000
13. The definition of "Applicable Margin" appearing in
Section 11.01 is amended by deleting such definition in its entirety and
inserting in lieu thereof the following new definition of "Applicable Margin":
5
115
"Applicable Margin" shall mean (x) in the case of Base Rate Loans, 3%
and (y) in the case of Eurodollar Loans, 4.50%; provided, however,
that if the Total Revolving Loan Commitment shall have been reduced on
or prior to September 30, 1995 pursuant to Section 3.03(f) of the
Credit Agreement and all repayments required pursuant to Section 4.02
as a result of such Commitment reduction shall have been made,
"Applicable Margin" shall, from and after the date of such reduction
and repayment, mean (x) in the case of Base Rate Loans, 2-1/2% and (y)
in the case of Eurodollar Loans, 4%."
14. The definition of "Consolidated EBITA" appearing in
Section 11.01 is amended by adding the following new clause (c) at the end of
such definition:
"and (c) plus Healthcare Adjustments (to the extent included in
Consolidated Net Income) to the extent they are losses and minus
Healthcare Adjustments (to the extent included in Consolidated Net
Income) to the extent they are gains."
15. The definition of "Consolidated Net Worth" appearing in
Section 11.01 is amended by inserting the phrase "plus the aggregate amount of
Healthcare Adjustments incurred by the Borrower" immediately at the end of such
definition.
16. The definition of "MIS Acquisition" appearing in
Section 11.01 is amended by deleting the number "$3,000,000" appearing therein
and inserting the number $8,275,000" in lieu thereof.
17. Section 11.01 is amended by inserting the following
new definition in appropriate alphabetical order:
"'Healthcare Adjustment' shall mean any losses or gains incurred after
January 1, 1995 from any healthcare plan, which, in the case of
losses, consist of claims, fixed costs and incurred but not reported
reserve claims in excess of all employees and clients healthcare
▇▇▇▇▇▇▇▇."
18. Schedule I to the Credit Agreement is amended by deleting
the same in its entirety and inserting in lieu thereof as a new Schedule I
thereto the Annex A attached to this Amendment which increases the Total
Revolving Loan Commitment to $13,000,000 from the amount of $10,000,000 in
effect immediately prior to the First Amendment Effective Date.
19. Fees. To induce the Banks to enter into this Amendment,
the Borrower hereby agrees to pay to the Agent (in accordance with Section 4.03
of the Amended and Restated Credit Agreement) (i) an amendment fee for the pro
rata account of each Bank party to this Amendment equal to 1/2 of 1% of the
Total Commitment in effect on the Restatement Effective Date, without giving
effect to any subsequent reductions thereto other than pursuant to Section
3.03(e) (i.e., based on a Total Commitment of $35,000,000) and (ii) an upfront
fee for the pro rata account of each Bank whose Revolving Loan Commitment is
increased as a result of this Amendment, equal to 2.0% of the amount of such
increase.
20. Warrant. To induce each Bank to enter into this
Amendment, the Borrower hereby agrees to issue for the account of each Bank
whose Revolving Loan Commitment is increased
6
116
as a result of this Amendment a warrant for the purchase of a Common Limited
Partnership Interest (the "Warrant") pro rata based on the amount of each
Bank's increased Revolving Loan Commitment. Each Warrant shall permit the
holder thereof to purchase from the Borrower, at any time or from time to time
during the exercise period set forth in such Warrant for a nominal exercise
price a Common Limited Partnership Interest with a corresponding Common Limited
Partner Capital Account that will result in such holder, together with the
holder of each other Warrant issued pursuant to this paragraph 19, having, with
respect to such purchased Common Limited Partnership Interest, an aggregate 5%
Participation Percentage; provided, however, the aggregate Participation
Percentage represented by such Warrants shall be reduced to 1% on such date as
the Total Revolving Loan Commitment shall have then been reduced pursuant to
Section 3.03(f) of the Credit Agreement and all repayments required pursuant to
Section 4.02 as a result of such Commitment reduction shall have been made on
such date but only so long as such Commitment reduction and repayment occurs on
or prior to September 30, 1995. Each Warrant issued pursuant to this paragraph
19 shall be in the form of the Warrant previously issued as of November 5, 1993
by the Borrower to Banque Paribas and shall be entitled to the benefits of a
Warrant Agreement in the form of the Warrant Agreement dated as of November 5,
1993 between the Borrower and Banque Paribas. The Borrower hereby agrees to
deliver an executed Warrant and Warrant Agreement in such forms to each Bank
entitled thereto prior to July 15, 1995. The terms "Common Limited Partnership
Interest," "Common Limited Partner Capital Account," and "Participation
Percentage" have the respective meanings set forth in the Partnership Agreement
of the Borrower.
21. Representations. To induce the Agent and the Banks to
enter into this Amendment, each of the General Partner and the Borrower hereby
represents and warrants that (x) no Default or Event of Default exists on the
First Amendment Effective Date both before and after giving effect to this
Amendment, (y) all of the representations and warranties contained in the
Credit Documents shall be true and correct in all material respects on the
First Amendment Effective Date both before and after giving effect to this
Amendment with the same effect as though such representations and warranties
had been made on and as of the First Amendment Effective Date (it being
understood that any representation or warranty made as of a specific date shall
be true and correct in all material respects as of such specific date) and (z)
the transactions contemplated by this Amendment do not require the consent of
any Person other than the Required Banks, including, without limitation, any
warrantholders or partners of the Borrower.
22. Amendment Effectiveness. This Amendment shall become
effective on the date (the "First Amendment Effective Date") when (i) each of
the General Partner, the Borrower and the Required Banks shall have signed a
copy hereof (whether the same or different copies) and shall have delivered
(including by way of telecopier) the same to the Agent at its Notice Office,
(ii) the Borrower shall have executed and delivered to the Agent for
distribution to each Bank listed on Annex B hereto a Revolving Note in an
amount equal to such Bank's Revolving Loan Commitment as set forth on Annex A
hereto, (iii) the Borrower shall have made the payments specified in paragraph
9 above and all unpaid costs and expenses (including legal fees and expenses)
of the Agent shall have been paid and (iv) the Banks party to this Amendment
shall have received a legal opinion from Dechert Price & ▇▇▇▇▇▇ (counsel to the
Borrower) in form and substance satisfactory to such Banks.
7
117
23. Miscellaneous. (a) This Amendment is limited as
specified and shall not constitute a modification, acceptance or waiver of any
other provision of the Amended and Restated Credit Agreement or any other
Credit Document.
(b) This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Agent.
(c) This Amendment and the rights and obligations of the parties
hereunder shall be construed in accordance with and governed by the law of the
State of New York.
(d) All references in the Amended and Restated Credit Agreement and
each of the other Credit Documents to the Amended and Restated Credit Agreement
shall be deemed to be references to the Amended and Restated Credit Agreement
after giving effect to this Amendment.
* * *
8
118
IN WITNESS WHEREOF, each of the parties hereto has caused
their duly authorized officers to execute and deliver a counterpart of this
Amendment as of the date first above written.
STAFF CAPITAL, L.P.
By its sole general partner,
Staff Acquisition, Inc.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Title: President
STAFF ACQUISITION, INC.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Title: Co-Chairman
BANQUE PARIBAS,
Individually and as Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
Title: General Vice
President
NATIONSBANK OF FLORIDA, N.A.
By
---------------------------
Title:
9
119
PILGRIM PRIME RATE TRUST
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Assistant Portfolio
Manager
10
120
ANNEX A
SCHEDULE I
COMMITMENTS
Term Loan Revolving Loan
Bank Commitment Commitment
---- ---------- --------------
Banque Paribas $ 5,000,000 $11,500,000
NationsBank of
Florida, N.A. $10,000,000
Pilgrim Prime Rate Trust $10,000,000 $ 1,500,000
----------- -----------
Totals: $25,000,000 $13,000,000
1
121
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDMENT (this "Amendment"), dated as of April 26,
1996, among Staff Acquisition, Inc. (the "General Partner"), Staff Capital,
L.P. (the "Borrower"), the lending institutions party to the Amended and
Restated Credit Agreement referred to below (the "Banks") and Banque Paribas,
as Agent (in such capacity, the "Agent"). All capitalized terms used herein
and not otherwise defined shall have the respective meanings provided such
terms in the Amended and Restated Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the General Partner, the Borrower, the Banks and the
Agent are parties to an Amended and Restated Credit Agreement, dated as of
November 5, 1993 and amended and restated as of December 8, 1994 (as amended by
the First Amendment dated June 29, 1995, the "Amended and Restated Credit
Agreement");
WHEREAS, the parties hereto wish to amend the Amended and
Restated Credit Agreement as herein provided;
NOW, THEREFORE, it is agreed:
1. Section 4.02(A) of the Amended and Restated Credit
Agreement is hereby amended by deleting Section 4.02(A)(b) in its entirety and
inserting in lieu thereof the following new Section 4.02(A)(b):
"(b) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, the Borrower shall be
required to repay on each date set forth below (each, a "Scheduled
Repayment Date"), the principal amount of Term Loans set forth below
opposite such date (each such repayment as the same may be reduced as
provided in Sections 4.01 and 4.02(B)(a), a "Scheduled Repayment"):
Scheduled Repayment Dates Amount
------------------------- ------
December 31, 1994 $ 300,000
March 31, 1995 $ 750,000
June 30, 1995 $ 0
September 30, 1995 $ 0
December 31, 1995 $ 0
March 31, 1996 $1,140,625
June 30, 1996 $1,000,000
September 30, 1996 $1,000,000
122
December 31, 1996 $1,000,000
March 31, 1997 $1,250,000
June 30, 1997 $1,250,000
September 30, 1997 $1,250,000
December 31, 1997 $1,250,000
March 31, 1998 $1,500,000
June 30, 1998 $1,500,000
September 30, 1998 $1,500,000
December 31, 1998 $1,500,000
March 31, 1999 $1,675,000
June 30, 1999 $1,675,000
September 30, 1999 $1,675,000
Final Maturity Date $1,675,000"
2. Section 4.02(A)(c) of the Amended and Restated Credit
Agreement is hereby amended by inserting at the end thereof the sentence:
"Notwithstanding the foregoing and Section 4.02(B)(a), the net cash
proceeds of the Phase One Rights Offering shall be applied on the
Second Amendment Effective Date as follows: (i) $2,109,375 shall be
applied to prepay the principal of outstanding Term Loans; (ii) up to
$5,000,000 shall be applied to prepay the principal of all Revolving
Loans (to the extent then outstanding), but shall not be applied to
reduce the Total Revolving Loan Commitment; (iii) up to $1,200,000 may
be used to pay fees and expenses incurred in connection with the Phase
One Recapitalization Transaction; (iv) if at the option of the
Borrower the Equity Repurchase is included in the Phase One
Recapitalization Transaction, up to $3,000,000 shall be applied to the
Equity Repurchase and (v) the remainder shall be used for the
Borrower's working capital purposes. In addition, any net cash
proceeds of the Phase Two Rights Offering, if any, to the extent
received by the Borrower on or before July 31, 1996, shall be applied
on or prior to such date as follows: (i) in the event the Phase Two
Rights Offering is consummated by July 31 1996, up to $2,800,000 may
be applied to repurchase the Class A-3 Preferred Limited Partnership
Interests, (ii) if at the option of the Borrower the Equity Repurchase
is not included in the Phase One Recapitalization Transaction, up to
$3,000,000 shall be applied to the Equity Repurchase, (iii) such
proceeds shall be applied to the repayment of all then outstanding
Revolving Loans, but shall not be applied to reduce the Total
Revolving Loan Commitment and (iv) the remainder shall be used for the
Borrower's working capital purposes."
3. Section 7.13 of the Amended and Restated Credit
Agreement is hereby amended by (i) deleting the word "Neither" at the beginning
of the third sentence and inserting in lieu thereof the phrase "Except as set
forth on Schedule VIII, neither" and (ii) adding the following new sentences to
the end of Section 7.13: "On the Second Amendment Effective Date and after
giving effect to the Phase One Recapitalization Transaction, the partnership
interests in the
2
123
Borrower and each of its Subsidiaries, and all owners of any equity interest
(including the right to acquire any equity interest) therein, shall be as set
forth on Part A of Schedule VIII. After giving effect to the Phase Two
Recapitalization Transaction, the partnership interests in the Borrower and
each of its Subsidiaries, and all owners of any equity interest (including the
right to acquire any equity interest) therein, shall be as set forth on Part B
of Schedule VIII. The Borrower shall provide each Bank with a copy of Part B
of Schedule VIII upon consummation of the Phase Two Recapitalization
Transaction."
4. Section 9.03 of the Amended and Restated Credit
Agreement is hereby amended by (i) deleting the word "and" at the end of clause
(ii) thereof, and inserting "; " in lieu thereof and (ii) inserting at the end
thereof, the following: "; (iv) the Borrower may consummate the Phase One
Recapitalization Transaction on the Second Amendment Effective Date and the
Phase Two Recapitalization Transaction on or before July 31, 1996 and (v) the
Borrower may repurchase up to $900,000 principal amount of the Class A-3
Preferred Limited Partnership Interests (to the extent not repurchased in the
Phase Two Recapitalization Transaction) at various times on or prior to
December 15, 1996 in accordance with Section 3A.2(c)(iii) of the Partnership
Agreement of the Borrower, amended and restated as of April 26, 1996."
5. Section 9.04 of the Amended and Restated Credit
Agreement is hereby amended by deleting the reference to "$3,000,000" therein
and inserting "$4,000,000" in lieu thereof.
6. Section 9.06 of the Amended and Restated Credit
Agreement is hereby amended by (i) deleting the number "three" appearing in
clause (ii) thereof and inserting the number "seven" in lieu thereof, (ii)
deleting the word "and" at the end of clause (iv) thereof and inserting ";" in
lieu thereof, (iii) inserting the words "to industry accreditation standards
or" after the word "pursuant" in clause (v)(y) and (iv) inserting the following
clause at the end thereof:
"; (vi) the Borrower may (x) make loans to certain members of
management of the Borrower for the purpose of acquiring common limited
partnership interests in the Borrower and Class A-1 Preferred Limited
Partnership Interests in the Borrower and (y) make loans and advances
in the Ordinary Course of Business to certain members of management of
the Borrower for moving, travel and emergency expenses and other
similar expenses, so long as the aggregate principal amount of all
such loans and advances made under this Section 9.06(vi) at any one
time outstanding (determined without regard to any write-downs or
write-offs of such loans and advances) shall not exceed $1,000,000."
7. Section 9.07 of the Amended and Restated Credit
Agreement is hereby amended by (i) deleting the following:
"(i) the Borrower may pay an annual management fee of $300,000 to
▇▇▇▇▇ Capital payable in equal semi-annual installments on each
six-month anniversary of the Original Effective Date,"
and inserting the following in lieu thereof:
3
124
"(i) the Borrower may pay an annual management fee of $400,000 to
Craig, Sarda & Co., Inc. payable in equal quarterly installments on
each three-month anniversary of the Original Effective Date,"
(ii) deleting the word "and" at the end of clause (ii) thereof, and inserting
", " in lieu thereof and
(iii) inserting the following clause at the end thereof:
", (iv) the Borrower may consummate the Phase One Recapitalization
Transaction on the Second Amendment Effective Date (and pay certain
related costs and expenses on an installment basis) and the Phase Two
Recapitalization Transaction on or before July 31, 1996 and (v) the
Borrower may repurchase up to $450,000 principal amount of the Class
A-3 Preferred Limited Partnership Interests owned by certain
Affiliates (to the extent not repurchased in the Phase Two
Recapitalization Transaction) at various times on or prior to December
15, 1996 in accordance with Section 3A.2(c)(iii) of the Partnership
Agreement of the Borrower, amended and restated as of April 26, 1996."
8. Section 9.08(c) of the Amended and Restated Credit
Agreement is hereby amended by deleting such Section in its entirety and
inserting in lieu thereof the following new Section 9.08(c):
"(c) In addition to the amounts set forth in clauses (a) and (b) of
this Section 9.08, the Borrower and its Subsidiaries may make MIS
Acquisitions so long as the aggregate amount thereof does not exceed
during any fiscal year the amount set forth opposite such fiscal year
below:
Fiscal
Year Amount
---- ------
1996 $6,000,000
1997 $3,000,000
1998 $1,000,000
1999 $1,000,000"
9. Section 9.09 of the Amended and Restated Credit
Agreement is hereby amended by deleting such Section in its entirety and
inserting in lieu thereof the following new Section 9.09:
"9.09 Minimum EBITDA. The Borrower will not permit its Consolidated
EBITDA for the period of four consecutive fiscal quarters (taken as
one accounting period) ending on each date set forth below to be less
than the amount set forth opposite such date:
Fiscal Quarter Minimum
Ended Amount
-------------- --------
March 31, 1996 $8,000,000
June 30, 1996 $9,500,000
4
125
September 30, 1996 $11,000,000
December 31, 1996 $13,500,000
March 31, 1997 $14,250,000
June 30, 1997 and $15,000,000
for each fiscal quarter
thereafter"
10. Section 9.10 of the Amended and Restated Credit
Agreement is hereby amended by deleting such Section in its entirety and
inserting "[Intentionally Omitted]" in lieu thereof.
11. Section 9.11 of the Amended and Restated Credit Agreement
is hereby amended by deleting such Section in its entirety and inserting in
lieu thereof the following new Section 9.11:
"9.11 Interest Coverage Ratio. The Borrower will not permit the
ratio of its Consolidated EBITDA for the period of four consecutive
fiscal quarters (taken as one accounting period) to its Consolidated
Interest Expense for the period of four consecutive fiscal quarters
(taken as one accounting period) in any fiscal quarter ending on a
date set forth below to be less than the ratio set forth opposite such
date:
Fiscal Quarter
Ended Ratio
-------------- -------
March 31, 1996 2.00:1
June 30, 1996 2.50:1
September 30, 1996 2.75:1
December 31, 1996 3.25:1
March 31, 1997 4.00:1
and thereafter"
12. Section 9.12 of the Amended and Restated Credit
Agreement is hereby amended by deleting such Section in its entirety and
inserting in lieu thereof the following new Section 9.12:
"9.12 Consolidated Indebtedness to Consolidated EBITDA. The Borrower
will not permit the ratio of (i) Consolidated Indebtedness on the last
day of any fiscal quarter set forth below to (ii) Consolidated EBITDA
for the period of four consecutive fiscal quarters ending on the last
day of such fiscal quarter, taken as one accounting period, to be
greater than the amount set forth below opposite such fiscal quarter:
Fiscal Quarter
Ended Ratio
-------------- -------
March 31, 1996 4.75:1
June 30, 1996 4.00:1
5
126
September 30, 1996 3.25:1
December, 31, 1996 2.75:1
March 31, 1997 2.25:1
June 30, 1997 2.00:1
September 30, 1997 1.75:1
December 31, 1997 1.50:1
March 31, 1998 1.00:1
and thereafter"
13. Section 9.18 of the Amended and Restated Credit Agreement
is hereby amended by deleting such Section in its entirety and inserting in
lieu thereof the following new Section 9.18:
"9.18 Limitation on Healthcare Adjustments. The aggregate amount of
the Healthcare Adjustment for any fiscal year shall not be a loss
greater than the amount set forth below opposite such fiscal year:
Fiscal
Year Loss Amount
---- -----------
1996 $6,000,000
1997 $2,500,000
1998 $3,000,000
1999 $3,500,000"
14. Section 11.01 of the Amended and Restated Credit
Agreement is hereby amended by inserting the following new definitions in
appropriate alphabetical order:
"Class A-1 Preferred Limited Partnership Interests" shall mean the
increasing rate pay-in-kind Class A-1 convertible preferred limited
partnership interests in the Borrower as described in the Partnership
Agreement of the Borrower, as amended and restated as of April 26,
1996.
"Class A-2 Preferred Limited Partnership Interests" shall mean the
increasing rate pay-in-kind Class A-2 convertible preferred limited
partnership interests in the Borrower as described in the Partnership
Agreement of the Borrower, as amended and restated as of April 26,
1996.
"Class A-3 Preferred Limited Partnership Interests" shall mean the
increasing rate pay-in-kind Class A-3 convertible preferred limited
partnership interests in the Borrower as described in the Partnership
Agreement of the Borrower, as amended and restated as of April 26,
1996.
"Class B Preferred Limited Partnership Interests" shall mean the 5.86%
pay-in-kind Class B preferred limited partnership interests in the
Borrower as described in the Partnership Agreement of the Borrower, as
amended and restated as of April 26, 1996.
6
127
"Equity Repurchase" shall mean the repurchase by the Borrower of an
aggregate of 11% of the common limited partnership interests in the
Borrower from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and other employee
limited partners for an aggregate consideration of up to $3,000,000 in
cash and the balance (for a total consideration of no more than
$9,900,000) in Class B Preferred Limited Partnership Interests in the
Borrower.
"Phase One Recapitalization Transaction" shall mean collectively, (i)
the Phase One Rights Offering, (ii) the repayment of Term Loans in the
aggregate amount of $2,109,375, (iii) the repayment of all Revolving
Loans then outstanding, (iv) the conversion of all preferred limited
partnership interests in the Borrower outstanding prior to the Second
Amendment Effective Date into Class A-2 Preferred Limited Partnership
Interests and (v) the payment of all fees and expenses incurred in
connection with and arising out of the foregoing, (provided however,
that the amount of such fees and expenses shall not exceed $1,200,000
in the aggregate, of which up to $900,000 may be paid in Class A-3
Preferred Limited Partnership Interests) and may at the option of the
Borrower include the Equity Repurchase, with the result that after
giving effect to the Phase One Recapitalization Transaction (but
assuming no Equity Repurchase), the partnership interests (and rights
to acquire partnership interests) in the Borrower shall be held by the
Persons and in the amounts set forth in Part A of Schedule VIII
hereto.
"Phase One Rights Offering" shall mean the issuance of (i) Class A-1
Preferred Limited Partnership Interests in the Borrower, for the
aggregate amount of at least $16,900,000 and no more than $30,000,000
and (ii) Class A-3 Preferred Limited Partnership Interests in the
Borrower for the aggregate amount of $2,700,000.
"Phase Two Recapitalization Transaction" shall mean collectively, (i)
the Phase Two Rights Offering, (ii) the Equity Repurchase if at the
option of the Borrower the same was not included in the Phase One
Recapitalization Transaction and (iii) in the event the Phase Two
Rights Offering is consummated by July 31 1996, the repurchase by the
Borrower of up to $2,800,000 of Class A-3 Preferred Limited
Partnership Interests, with the result that after giving effect to the
Phase Two Recapitalization Transaction, the partnership interests (and
rights to acquire partnership interests) in the Borrower shall be held
by the Persons and in the amounts to be set forth in Part B of
Schedule VIII hereto.
"Phase Two Rights Offering" shall mean the issuance to persons or
entities satisfactory to the Agent on or prior to July 31, 1996 of
Class A-1 Preferred Limited Partnership Interests in the Borrower, for
an aggregate amount of no more than $30,000,000 less the amount of
Class A-1 Preferred Limited Partnership Interests issued in the Phase
One Rights Offering.
"Second Amendment" shall mean the Second Amendment to this Agreement
dated April 26, 1996.
"Second Amendment Effective Date" shall have the meaning provided in
the Second Amendment.
7
128
15. Section 11.01 of the Amended and Restated Credit
Agreement is further amended by deleting the definitions of "Consolidated
EBITA", "Consolidated Indebtedness", "Consolidated Interest Expense",
"Consolidated Net Worth", and "Management Investors" in their entirety and
inserting in lieu thereof, if applicable, the following new definitions:
"Consolidated EBITA" shall mean, for any period, (a) the sum of (i)
Consolidated Net Income (before provision for taxes and without giving
effect to any extraordinary gains or losses (but after giving effect
to accruals for insurance reserves) or gains or losses from sales of
assets other than inventory sold in the Ordinary Course of Business)
for such period, (ii) Consolidated Interest Expense for such period
deducted in arriving at Consolidated Net Income, (iii) the amount of
amortization of intangibles deducted in arriving at Consolidated Net
Income for such period minus (b) (i) consolidated interest income for
such period included in Consolidated Net Income and (ii) extraordinary
costs incurred in connection with the Refinancing Transaction and not
already included in Consolidated Net Income and (c) plus Healthcare
Adjustments (to the extent included in Consolidated Net Income) to the
extent they are losses and minus Healthcare Adjustments (to the extent
included in Consolidated Net Income) to the extent they are gains;
provided, that for purposes of calculating Consolidated EBITA for any
period ending on or prior to December 31, 1996, no effect shall be
given to the restructuring charge in an amount of up to $6,900,000
recorded by the Borrower in the fourth quarter of 1995.
"Consolidated Indebtedness" shall mean at any time all Indebtedness of
the Borrower and its Subsidiaries determined on a consolidated basis;
provided, that for purposes of calculating Consolidated Indebtedness
in Section 9.12, Consolidated Indebtedness shall be reduced by the
amount of cash and Cash Equivalents on hand of the Borrower and its
Subsidiaries at the time of such calculation.
"Consolidated Interest Expense" shall mean, for any period, the total
consolidated interest expense of the Borrower and its Subsidiaries for
such period (calculated without regard to any limitations on the
payment thereof) payable during such period in respect of all
Indebtedness of the Borrower and its Subsidiaries, on a consolidated
basis, for such period (including, without duplication, that portion
of Capitalized Lease Obligations of the Borrower and its Subsidiaries
representing the interest factor for such period); provided, that for
purposes of calculating Consolidated Interest Expense in Section 9.11
for any period, Consolidated Interest Expense shall be reduced by the
amount of interest income derived from investments by the Borrower and
its Subsidiaries in cash and Cash Equivalents for such period.
"Management Investors" shall mean those Persons listed on Schedule IX.
16. Pursuant to Section 9.13(iii)(A) of the Amended and
Restated Credit Agreement, the Banks party hereto hereby consent to the changes
in the Partnership Agreement of the Borrower reflected in the form of the
Amended and Restated Agreement of Limited Partnership, dated as of April 26,
1996, attached hereto as Annex C.
8
129
17. Pursuant to Section 9.13(iv) of the Amended and Restated
Credit Agreement, the Banks party hereto hereby consent to the Securities
Purchase Agreement and exhibits attached thereto in the form attached hereto as
Annex D.
18. Pursuant Section 15(vi) and (vii) of the Partnership
Pledge and Security Agreement dated as of November 5, 1993 (the "Partner Pledge
Agreement") between the partners in the Borrower and the Collateral Agent, the
undersigned Banks and the Collateral Agent hereby consent to (i) the creation
of security interests and the filing of associated financing statements in
favor of the Borrower by certain Management Investors in connection with their
acquisition of partnership interests in the Borrower using, in part, funds
advanced to them by the Borrower for such purpose and (ii) the creation of a
security interest and the filing of associated financing statements in favor of
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ by Mr. John Sabre in connection with his acquisition of a
partnership interest in the Borrower, but in the case of Mr. Sabre only for the
period from the Second Amendment Effective Date until May 30, 1996; provided in
each case that the security interests described above shall at all times be
expressly subordinate to the security interests in all such partnership
interests created by such Management Investors and Mr. Sabre in favor of the
Collateral Agent for the benefit of the Secured Creditors.
19. Pursuant to Section 9.15 of the Amended and Restated
Credit Agreement, the Agent and the Banks party hereto hereby (a) consent to
the issuance by the Borrower of (i) Class ▇-▇, ▇-▇ ▇▇▇ ▇-▇ ▇▇▇▇▇▇▇▇▇ Limited
Partnership Interests as part of the Phase One Rights Offering and the Phase
Two Rights Offering, (ii) Class B Preferred Limited Partnership Interests to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and other employee limited partners and (iii)
Class A-1 Preferred Limited Partnership Interests on or prior to July 31, 1996
as a result of a conversion thereto of Class A-3 Preferred Limited Partnership
Interests, provided in each case that such partnership interests are pledged to
the Collateral Agent pursuant to the Partnership Pledge and Security Agreement
dated as of November 5, 1993 and (b) waive execution of a Partner Assumption
Agreement by any entity becoming a new partner in the Borrower as of the Second
Amendment Effective Date through the exercise of an existing warrant to acquire
the same.
20. The Amended and Restated Credit Agreement is hereby
amended by adding new Schedule VIII (Part A) and Schedule IX in the form
attached hereto as Annex A and Annex B, respectively.
21. The Banks party hereto hereby waive compliance by the
Borrower (i) on or prior to December 31, 1995, with Sections 8.01(c), 9.09,
9.10, 9.11 and 9.12 of the Amended and Restated Credit Agreement and Section
9.03 (to the extent same was previously violated as a result of certain
repurchases of common limited partnership interests from departing employees)
and (ii) prior to the date hereof, with Section 9.06 (to the extent any
non-compliance is cured by the amendments contained in paragraph 6 above) and
Section 9.15 of the Amended and Restated Credit Agreement.
22. Representations. To induce the Agent and the Banks to
enter into this Amendment, each of the General Partner and the Borrower hereby
represents and warrants that (x) no Default or Event of Default exists on the
Second Amendment Effective Date after giving
9
130
effect to this Amendment, (y) all of the representations and warranties
contained in the Credit Documents shall be true and correct in all material
respects on the Second Amendment Effective Date both before and after giving
effect to this Amendment with the same effect as though such representations
and warranties had been made on and as of the Second Amendment Effective Date
(it being understood that any representation or warranty made as of a specific
date shall be true and correct in all material respects as of such specific
date) and (z) the transactions contemplated by this Amendment do not require
the consent of any Person other than the Required Banks, including, without
limitation, any warrantholders or partners of the Borrower.
23. Amendment Effectiveness. This Amendment shall become
effective on the date (the "Second Amendment Effective Date") when (i) each of
the General Partner, the Borrower and the Required Banks shall have signed a
copy hereof (whether the same or different copies) and shall have delivered
(including by way of telecopier) the same to the Agent at its Notice Office,
(ii) the Borrower shall have received aggregate gross cash proceeds of at least
$19,000,000 (but not more than $30,000,000) from the Phase One Rights Offering
and the Phase One Recapitalization Transaction shall have been consummated
(with the resulting repayment of all Revolving Loans), (iii) the Partner
Assumption Agreement in the form attached hereto as Annex E and all the
required UCC financing statements shall have been fully executed and delivered
to the Agent, (iv) the notes issued by certain members of management of the
Borrower to the Borrower pursuant to Section 9.06(vi) of the Amended and
Restated Credit Agreement (as amended hereby) shall have been pledged to the
Collateral Agent pursuant to the Borrower Pledge Agreement, dated as of
November 5, 1994, (v) the Borrower shall have paid to the Agent all fees and
compensation as have been agreed to in writing by the Borrower and the Agent
and all unpaid costs and expenses (including legal fees and expenses) of the
Agent and (vi) the undersigned Banks shall have received a satisfactory opinion
of counsel to the Borrower addressing such matters as may be required by the
Agent.
24. Miscellaneous. (a) This Amendment is limited as
specified and shall not constitute a modification, acceptance or waiver of any
other provision of the Amended and Restated Credit Agreement or any other
Credit Document.
(b) This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Agent.
(c) This Amendment and the rights and obligations of the parties
hereunder shall be construed in accordance with and governed by the law of the
State of New York.
(d) All references in the Amended and Restated Credit Agreement and
each of the other Credit Documents to the Amended and Restated Credit Agreement
shall be deemed to be references to the Amended and Restated Credit Agreement
after giving effect to this Amendment.
* * *
10
131
IN WITNESS WHEREOF, each of the parties hereto has caused
their duly authorized officers to execute and deliver a counterpart of this
Amendment as of the date first above written.
STAFF CAPITAL, L.P.
By its sole general partner,
Staff Acquisition, Inc.
By
---------------------------
Title:
STAFF ACQUISITION, INC.
By
---------------------------
Title:
BANQUE PARIBAS,
Individually, as Collateral
Agent and as Agent
By
---------------------------
Title:
By
---------------------------
Title:
NATIONSBANK OF FLORIDA, N.A.
By
---------------------------
Title:
PILGRIM AMERICA PRIME RATE
TRUST
By
---------------------------
Title:
132
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIRD AMENDMENT (this "Amendment"), dated as of August 31,
1996, among Staff Acquisition, Inc. (the "General Partner"), Staff Capital,
L.P. (the "Borrower"), the lending institutions party to the Amended and
Restated Credit Agreement referred to below (the "Banks") and Banque Paribas,
as Agent (in such capacity, the "Agent"). All capitalized terms used herein
and not otherwise defined shall have the respective meanings provided such
terms in the Amended and Restated Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the General Partner, the Borrower, the Banks and the
Agent are parties to an Amended and Restated Credit Agreement, dated as of
November 5, 1993 and amended and restated as of December 8, 1994 (as amended by
the First Amendment dated June 29, 1995 and the Second Amendment dated April
26, 1996, the "Amended and Restated Credit Agreement");
WHEREAS, the parties hereto wish to amend the Amended and
Restated Credit Agreement as herein provided;
NOW, THEREFORE, it is agreed:
1. Section 4.02(A)(c) of the Amended and Restated Credit
Agreement is hereby amended by deleting all references to "July 31, 1996"
contained therein and inserting "August 31, 1996" in lieu thereof.
2. Section 9.03 of the Amended and Restated Credit
Agreement is hereby amended by (i) deleting the reference to "July 31, 1996"
contained therein and inserting "August 31, 1996; provided that any equity
interests issued pursuant to the Phase Two Recapitalization Transaction which
are subject or entitled to mandatory redemption provisions contained in the
Partnership Agreement shall not be redeemed without the prior written consent
of the Required Banks" in lieu thereof.
3. Section 9.07(iv) of the Amended and Restated Credit
Agreement is hereby amended by deleting the reference to "July 31, 1996"
contained therein and inserting "August 31, 1996" in lieu thereof.
4. Section 9.15 of the Amended and Restated Credit
Agreement is hereby amended by (i) inserting the phrase, "or any options or
warrants to purchase, or instruments convertible into any partnership or other
equity interests," immediately after the phrase, "(including pursuant to an
Approved Incentive Plan)" contained in the first sentence thereof, (ii)
inserting the phrase, "upon issuance or upon conversion or exercise of such
options, warrants or other convertible instruments" immediately following the
phrase, "partnership interests are pledged" contained in the
133
first sentence thereof and (iii) deleting the phrase "any partnership or other
equity interests" and inserting "general or preferred limited partnership
interests" in lieu thereof, contained in the second sentence thereof.
5. The definition of "Equity Repurchase" provided in
Section 11.01 of the Amended and Restated Credit Agreement is hereby amended by
(i) deleting the reference to "11%" contained therein and inserting "10.75%" in
lieu thereof, (ii) deleting the reference to "$3,000,000" contained therein and
inserting "2,902,500" in lieu thereof and (iii) deleting the reference to
"$9,900,000" contained therein and inserting "9,675,000" in lieu thereof.
6. The definitions of "Phase Two Recapitalization
Transaction" and "Phase Two Rights Offering" provided in Section 11.01 of the
Amended and Restated Credit Agreement are hereby amended by deleting the
references to "July 31, 1996" contained therein and inserting "August 31, 1996"
in lieu thereof.
7. The definition of "Phase Two Recapitalization"
provided in Section 11.01 of the Amended and Restated Credit Agreement is
hereby further amended by (i) deleting the "and" immediately preceding the
"(iii)" contained therein and inserting "," in lieu thereof and (ii) inserting
"and (iv) the payment of fees and expenses incurred in connection with and
arising out of the foregoing" at the end thereof.
8. The definition of "Phase Two Rights Offering"
provided in Section 11.01 of the Amended and Restated Credit Agreement is
hereby further amended by (i) inserting the phrase ", or options, warrants or
other convertible securities exercisable into Class A-1 Preferred Limited
Partnership Interests in the Borrower" immediately following the phrase "Class
A-1 Preferred Limited Partnership Interests in the Borrower" the first place it
appears therein.
9. Pursuant to Section 9.13(iii)(A) of the Amended and
Restated Credit Agreement, the Agent and the Banks party hereto hereby consent
to the changes to the Amended and Restated Agreement of Limited Partnership,
dated as of April 26, 1996, in the form of the Consent attached hereto as Annex
A.
10. Pursuant to Section 9.13(iv) of the Amended and
Restated Credit Agreement, the Agent and the Banks party hereto hereby consent
to the execution of the agreements related to equity interests of the Borrower
in connection with the Phase Two Recapitalization Transaction.
11. Pursuant to Section 9.15 of the Amended and Restated
Credit Agreement, the Agent and the Banks party hereto hereby consent to the
issuance and the future exercise, if applicable, of equity securities in
connection with the Phase Two Recapitalization Transaction, provided that all
such newly issued partnership interests are pledged to the Collateral Agent
pursuant to the Partner Pledge Agreement.
12. Pursuant to 9.2(a) of the Partnership Agreement, the
General Partner consents (i) to the pledge of the partnership interests issued
in connection with the Phase Two Recapitalization and (ii) to the transfer of
such pledged partnership interests to the Collateral Agent pursuant to the
remedies contained in the Partner Pledge Agreement).
2
134
13. Section 22 of the Partner Pledge Agreement is hereby
amended by (i) adding the phrase, "or any other obligations of such Person"
immediately following the phrase "Obligations of the Borrower" contained
therein and (ii) adding the phrase, "except to the extent of the Collateral
pledged hereunder by such Person" immediately following the phrase, "under this
Agreement" contained therein.
14. Representations. To induce the Agent and the Banks to
enter into this Amendment, each of the General Partner and the Borrower hereby
represents and warrants that (x) no Default or Event of Default exists on the
Third Amendment Effective Date after giving effect to this Amendment, (y) all
of the representations and warranties contained in the Credit Documents shall
be true and correct in all material respects on the Third Amendment Effective
Date both before and after giving effect to this Amendment with the same effect
as though such representations and warranties had been made on and as of the
Third Amendment Effective Date (it being understood that any representation or
warranty made as of a specific date shall be true and correct in all material
respects as of such specific date) and (z) the transactions contemplated by
this Amendment do not require the consent of any Person other than the Required
Banks, including, without limitation, any warrantholders or partners of the
Borrower.
15. Amendment Effectiveness. This Amendment shall become
effective on the date (the "Third Amendment Effective Date") when (i) each of
the General Partner, the Borrower and the Required Banks shall have signed a
copy hereof (whether the same or different copies) and shall have delivered
(including by way of telecopier) the same to the Agent at its Notice Office,
(ii) the Partner Assumption Agreement in the form attached hereto as Annex B
and all the required UCC financing statements shall have been fully executed
and delivered to the Agent and (iii) the Borrower shall have paid to the Agent
all fees and compensation as have been agreed to in writing by the Borrower and
the Agent and all unpaid costs and expenses (including legal fees and expenses)
of the Agent.
16. Miscellaneous. (a) This Amendment is limited as
specified and shall not constitute a modification, acceptance or waiver of any
other provision of the Amended and Restated Credit Agreement or any other
Credit Document.
(b) This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Agent.
(c) This Amendment and the rights and obligations of the parties
hereunder shall be construed in accordance with and governed by the law of the
State of New York.
(d) All references in the Amended and Restated Credit Agreement and
each of the other Credit Documents to the Amended and Restated Credit Agreement
shall be deemed to be references to the Amended and Restated Credit Agreement
after giving effect to this Amendment.
* * *
3
135
IN WITNESS WHEREOF, each of the parties hereto has caused
their duly authorized officers to execute and deliver a counterpart of this
Amendment as of the date first above written.
STAFF CAPITAL, L.P.
By its sole general partner,
Staff Acquisition, Inc.
By
---------------------------
Title:
STAFF ACQUISITION, INC.
By
---------------------------
Title:
BANQUE PARIBAS,
Individually, as Collateral
Agent and as Agent
By
---------------------------
Title:
By
---------------------------
Title:
NATIONSBANK OF FLORIDA, N.A.
By
---------------------------
Title:
PILGRIM AMERICA PRIME RATE
TRUST
By
---------------------------
Title:
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TO
AMENDED AND RESTATED CREDIT AGREEMENT
FOURTH AMENDMENT (this "Amendment"), dated as of November __,
1996, among Staff Acquisition, Inc. (the "General Partner"), Staff Capital,
L.P. (the "Borrower"), the lending institutions party to the Amended and
Restated Credit Agreement referred to below (the "Banks") and Banque Paribas,
as Agent (in such capacity, the "Agent"). All capitalized terms used herein
and not otherwise defined shall have the respective meanings provided such
terms in the Amended and Restated Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the General Partner, the Borrower, the Banks and the
Agent are parties to an Amended and Restated Credit Agreement, dated as of
November 5, 1993 and amended and restated as of December 8, 1994 (as amended as
of the date hereof, the "Amended and Restated Credit Agreement");
WHEREAS, the parties hereto wish to amend the Amended and
Restated Credit Agreement as herein provided;
NOW, THEREFORE, it is agreed:
1. Section 9.06 of the Amended and Restated Credit
Agreement is hereby amended by deleting the number "$1,000,000" appearing in
clause (vi) thereof and inserting the number "$2,000,000" in lieu thereof.
2. Section 9.09 of the Amended and Restated Credit
Agreement is hereby amended by deleting such Section in its entirety and
inserting in lieu thereof the following new Section 9.09:
"9.09 Minimum EBITDA. The Borrower will not permit its Consolidated
EBITDA for the period of four consecutive fiscal quarters (taken as
one accounting period) ending on each date set forth below to be less
than the amount set forth opposite such date:
Fiscal Quarter Minimum
Ended Amount
-------------- --------
September 30, 1996 $9,000,000
December 31, 1996 $11,500,000
March 31, 1997 $12,250,000
June 30, 1997 $13,250,000
137
September 30, 1997 $14,000,000
December 31, 1997 and $15,000,000
for each fiscal quarter
thereafter"
3. Representations. To induce the Agent and the Banks to
enter into this Amendment, each of the General Partner and the Borrower hereby
represents and warrants that (x) no Default or Event of Default exists on the
Fourth Amendment Effective Date after giving effect to this Amendment, (y) all
of the representations and warranties contained in the Credit Documents shall
be true and correct in all material respects on the Fourth Amendment Effective
Date both before and after giving effect to this Amendment with the same effect
as though such representations and warranties had been made on and as of the
Fourth Amendment Effective Date (it being understood that any representation or
warranty made as of a specific date shall be true and correct in all material
respects as of such specific date) and (z) the transactions contemplated by
this Amendment do not require the consent of any Person other than the Required
Banks, including, without limitation, any warrantholders or partners of the
Borrower.
4. Amendment Effectiveness. This Amendment shall become
effective on the date (the "Fourth Amendment Effective Date") when (i) each of
the General Partner, the Borrower and the Required Banks shall have signed a
copy hereof (whether the same or different copies) and shall have delivered
(including by way of telecopier) the same to the Agent at its Notice Office and
(ii) the Borrower shall have paid to the Agent all fees and compensation as
have been agreed to in writing by the Borrower and the Agent and all billed and
unpaid costs and expenses (including legal fees and expenses) of the Agent.
5. Miscellaneous. (a) This Amendment is limited as specified
and shall not constitute a modification, acceptance or waiver of any other
provision of the Amended and Restated Credit Agreement or any other Credit
Document.
(b) This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Agent.
(c) This Amendment and the rights and obligations of the parties
hereunder shall be construed in accordance with and governed by the law of the
State of New York.
(d) All references in the Amended and Restated Credit Agreement and
each of the other Credit Documents to the Amended and Restated Credit Agreement
shall be deemed to be references to the Amended and Restated Credit Agreement
after giving effect to this Amendment.
* * *
2
138
IN WITNESS WHEREOF, each of the parties hereto has caused
their duly authorized officers to execute and deliver a counterpart of this
Amendment as of the date first above written.
STAFF CAPITAL, L.P.
By its sole general partner,
Staff Acquisition, Inc.
By
---------------------------
Title:
STAFF ACQUISITION, INC.
By
---------------------------
Title:
BANQUE PARIBAS,
Individually and as Agent
By
---------------------------
Title:
By
---------------------------
Title:
NATIONSBANK OF FLORIDA, N.A.
By
---------------------------
Title:
PILGRIM AMERICA PRIME RATE TRUST
By
---------------------------
Title:
139
FIFTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
FIFTH AMENDMENT (this "Amendment"), dated as of March 5, 1997, among
Staff Acquisition, Inc. (the "General Partner"), Staff Capital, L.P. (the
"Borrower"), the lending institutions party to the Amended and Restated Credit
Agreement referred to below (the "Banks") and Banque Paribas, as Agent (in such
capacity, the "Agent"). All capitalized terms used herein and not otherwise
defined shall have the respective meanings provided such terms in the Amended
and Restated Credit Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the General Partner, the Borrower, the Banks and the Agent are
parties to an Amended and Restated Credit Agreement, dated as of November 5,
1993 and amended and restated as of December 8, 1994 (as amended as of the date
hereof, the "Amended and Restated Credit Agreement");
WHEREAS, the parties hereto wish to amend the Amended and Restated
Credit Agreement as herein provided;
NOW, THEREFORE, it is agreed:
1. Section 9.09 of the Amended and Restated Credit Agreement is
hereby amended by deleting such Section in its entirety and inserting in lieu
thereof the following new Section 9.09:
"9.09 Minimum EBITDA. The Borrower will not permit its Consolidated EBITDA
for the period of four consecutive fiscal quarters (taken as one accounting
period) ending on each date set forth below to be less than the amount set
forth opposite such date:
Fiscal Quarter Minimum
Ended Amount
-------------- -------
December 31, 1996 $11,500,000
March 31, 1997 $12,760,000
140
June 30, 1997 $13,460,000
September 30, 1997 $16,885,000
December 31, 1997 and $19,500,000
for each fiscal quarter
thereafter"
2. Section 9.18 of the Amended and Restated Credit Agreement is
hereby amended by deleting such Section in its entirety and inserting in lieu
thereof the following new Section 9.18:
"9.18 Limitation on Healthcare Adjustments. The aggregate amount of
Adjustment for any fiscal year shall not be a loss greater than the amount
set forth below opposite such fiscal year:
Fiscal Year Loss Amount
----------- -----------
1996 $10,500,000
1997 $ 6,500,000
1998 $ 4,000,000
1999 $ 3,500,000
3. Representations. To induce the Agent and the Banks to enter into
this Amendment, each of the General Partner and the Borrower hereby represents
and warrants that (x) no Default or Event of Default exists on the Fifth
Amendment Effective Date (as hereinafter defined) after giving effect to this
Amendment, (y) all of the representations and warranties contained in the
Credit Documents shall be true and correct in all material respects on the
Fifth Amendment Effective Date both before and after giving effect to this
Amendment with the same effect as though such representations and warranties
had been made on and as of the Fifth Amendment Effective Date (it being
understood that any representation or warranty made as of a specific date shall
be true and correct in all material respects as of such specific date) and (z)
the transactions contemplated by this Amendment do not require the consent of
any Person other than the Required Banks, including, without limitation, any
warrantholders or partners of the Borrower.
4. Amendment Effectiveness. This Amendment shall become effective on
the date (the "Fifth Amendment Effective Date") when (i) each of the General
Partner, the Borrower and the Required Banks shall have signed a copy hereof
(whether the same or different copies) and shall have delivered (including by
way of telecopier) the same to the Agent at its Notice Office and (ii) the
Borrower shall have paid to the Agent all fees and compensation as have been
agreed to in writing by the Borrower and the Agent and all billed and unpaid
costs and expenses (including legal fees and expenses) of the Agent.
2
141
5. Miscellaneous. (a) This Amendment is limited as specified and
shall not constitute a modification, acceptance or waiver of any other
provision of the Amended and Restated Credit Agreement or any other Credit
Document.
(b) This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Agent.
(c) This Amendment and the rights and obligations of the parties hereunder
shall be construed in accordance with and governed by the law of the State of
New York.
(d) All references in the Amended and Restated Credit Agreement and each of
the other Credit Documents to the Amended and Restated Credit Agreement shall
be deemed to be references to the Amended and Restated Credit Agreement after
giving effect to this Amendment.
* * *
3
142
IN WITNESS WHEREOF, each of the parties hereto has caused their duly
authorized officers to execute and deliver a counterpart of this Amendment as
of the date first above written.
STAFF CAPITAL, L.P.
By its sole general partner,
Staff Acquisition, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: President
STAFF ACQUISITION, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: President
BANQUE PARIBAS,
Individually and as Agent
By: /s/
---------------------------
Title: Vice President
By: /s/
---------------------------
Title: Managing Director
NATIONSBANK OF FLORIDA, N.A.
By: /s/
---------------------------
Title: Vice President
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PRIME RATE
TRUST
By /s/ ▇▇▇▇▇▇▇ ▇. Bacevila
--------------------------
Title: ▇▇▇▇▇▇▇ ▇. BACEVILA
VICE PRESIDENT