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EXHIBIT 4.2
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made as of June
29, 1998 (the "Credit Agreement"), by and among (a) NATIONSRENT, INC., a
Delaware corporation (the "Parent"), and its Subsidiaries (collectively with the
Parent, the "Borrowers"), (b) BANKBOSTON, N.A., a national banking association
having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (acting in its individual capacity, "BKB"), LASALLE NATIONAL
BANK, a national banking association having its principal place of business at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (acting in its individual
capacity "LaSalle"), the other lending institutions which become parties hereto
(collectively, the "Banks") (c) BANKBOSTON, N.A., as administrative agent for
the Banks (the "Agent") (d) LASALLE NATIONAL BANK, as documentation agent for
the Banks (the "Documentation Agent") and (e) FLEET BANK, N.A. and NATIONSBANK,
N.A., as co-agents (the "Co-Agents").
WHEREAS, pursuant to that certain Revolving Credit Agreement dated as
of March 18, 1998 (as heretofore amended, the "Prior Credit Agreement"), certain
of the Banks have made loans and otherwise extended credit to the Borrowers for
the purpose described therein; and
WHEREAS, the Borrowers, the Banks and the Agent wish to amend and
restate the Prior Credit Agreement in order to increase the Banks' commitments
under the revolving credit facility, to add Banks and to make certain other
changes to the terms and provisions of the Prior Credit Agreement.
NOW THEREFORE, the Borrowers, the Banks and the Agent hereby agree that
the Prior Credit Agreement is hereby amended and restated in its entirety and
remains in force and effect only as set forth herein and the Loans (as defined
in the Prior Credit Agreement) shall constitute Loans hereunder.
ss.1. DEFINITIONS AND RULES OF INTERPRETATION.
SS.1.1. DEFINITIONS.
The following terms shall have the meanings set forth in this ss.1 or
elsewhere in the provisions of this Credit Agreement referred to below:
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Accountants. Any independent accounting firm of national standing, or
in connection with acquisitions permitted by ss.7.4 hereof, regional accounting
firms, reasonably acceptable to the Agent.
Affected Bank. See ss.4.11.
Affiliate. Any Person that would be considered to be an affiliate of
any of the Borrowers under Rule 144 (a) of the Rules and Regulations of the
Securities and Exchange Commission, as in effect on the date hereof if such
Borrower were issuing securities.
Agent. See Preamble.
Agent's Head Office. The Agent's head office located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other location as the Agent may
designate from time to time.
Applicable Base Rate Margin. The applicable margin with respect to Base
Rate Loans as set forth in the Pricing Table.
Applicable Commitment Rate. The applicable rate with respect to the
Commitment Fee as set forth in the Pricing Table.
Applicable Eurodollar Margin. The applicable margin with respect to
Eurodollar Loans as set forth in the Pricing Table.
Applicable Laws. See ss.6.10.
Applicable L/C Margin. The applicable margin with respect to the Letter
of Credit Fee as set forth in the Pricing Table.
Associated Rentals Acquisition. The acquisition by the Parent of
certain assets of Associated Rental Equipment Management Company, Inc. pursuant
to the Associated Rental Acquisition Documents.
Associated Rentals Acquisition Documents. The asset purchase agreement
dated as of June 7, 1998, among the Parent, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. and Associated
Rental Equipment Management Company, Inc., including all exhibits and schedules
thereto, and all other agreements and documents required to be entered into or
delivered pursuant thereto or in connection with the Associated Rentals
Acquisition, each in form and substance satisfactory to the Agent.
Arranger. BancBoston Securities Inc.
Assignment and Acceptance. See ss.17.
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Balance Sheet Date. December 31, 1997.
Bank Agents. Collectively, the Agent and the Documentation Agent.
Banks. See Preamble.
Base Rate. The higher of (a) the annual rate of interest announced from
time to time by the Agent at the Agent's Head Office as its "base rate" (it
being understood that such rate is a reference rate and not necessarily the
lowest rate of interest charged by the Agent) or (b) one percent (1%) above the
overnight federal funds effective rate, as published by the Board of Governors
of the Federal Reserve System, as in effect from time to time.
Base Rate Loans. Loans bearing interest calculated by reference to the
Base Rate.
BKB. See Preamble.
Borrowers. See Preamble.
Business Day. Any day on which banking institutions in Boston,
Massachusetts, New York, New York and Ft. Lauderdale, Florida are open for the
transaction of banking business.
Capital Assets. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and goodwill); provided that Capital Assets shall not
include (a) any item customarily charged directly to expense or depreciated over
a useful life of twelve (12) months or less in accordance with GAAP, or (b) any
item obtained through an acquisition permitted by ss.7.4 hereof.
Capital Expenditures. Amounts paid or Indebtedness incurred by the
Borrowers in connection with (i) the purchase or lease of Capital Assets that
would be required to be capitalized and shown on the balance sheet of such
Person in accordance with GAAP or (ii) the lease of any assets by any Borrower
as lessee under any Synthetic Lease to the extent that such assets would have
been Capital Assets had the Synthetic Lease been treated for accounting purposes
as a Capitalized Lease.
Capitalized Leases. Leases under which any Borrower is the lessee or
obligor, the discounted future rental payment obligations under which are
required to be capitalized on the balance sheet of the lessee or obligor in
accordance with GAAP.
CERCLA. See definition of Release.
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Certified. With respect to the financial statements of any Person, such
statements as audited by a firm of independent auditors, whose report expresses
the opinion, without qualification, that such financial statements present
fairly the financial position of such Person.
CFO. See ss.6.4(b).
Closing Date. The date on which the conditions precedent set forth in
ss.9 are satisfied.
Co-Agents. See Preamble.
Code. The Internal Revenue Code of 1986, as amended and in effect from
time to time.
Collateral. All of the property, rights and interests of the Borrowers
that are or are intended to be subject to the security interests created by the
Security Documents.
Commitment. With respect to each Bank, the amount determined by
multiplying such Bank's Commitment Percentage by the Total Commitment specified
in ss.2.1 hereof as the amount of such Bank's commitment to make Loans to, and
to participate in the issuance, extension and renewal of, Letters of Credit for
the account of the Borrowers, as the same may be reduced or increased in
accordance with the terms hereof from time to time; or if such commitment is
terminated pursuant to the provisions hereby, zero.
Commitment Fee. See ss.4.1.
Commitment Percentage. With respect to each Bank, the percentage
initially set forth beside its name on Schedule 1 (subject to adjustment in
accordance with ss.ss.2.2.2 and 17) as such Bank's percentage of the aggregate
Commitments of all of the Banks.
Compliance Certificate. See ss.6.4(c).
Consolidated or consolidated. With reference to any term defined
herein, shall mean that term as applied to the accounts of the Borrowers,
consolidated in accordance with GAAP.
Consolidated Earnings Before Interest and Taxes or EBIT. For any
period, the actual reported Consolidated Net Income (or Deficit) of the
Borrowers, plus (a) interest expense for such period and (b) income taxes for
such period, to the extent that each was deducted in determining Consolidated
Net Income (or Deficit), determined in accordance with GAAP, provided that, EBIT
(plus nonrecurring private company expenses that are (A) discontinued or
adjusted upon acquisition by the Parent or its Subsidiaries, such as owner
compensation and adjustments to depreciation to conform to the Parent's
accounting treatment, and (B)
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approved by the Agent) of the Subsidiaries of the Parent acquired during the
period reported in the most recent financial statements delivered to the Banks
pursuant to ss.6.4 shall be included in the calculation of EBIT if (i) the
financial statements of such acquired Subsidiaries have been audited, or with
the consent of the Agent, reviewed, by Accountants for the most recent fiscal
year ended of such acquired Subsidiaries, a portion of which fiscal year is
sought to be included in the calculation of EBIT, or (ii) the Agent consents to
such inclusion after being furnished with other acceptable financial statements,
(such statements accepted under (i) and (ii) hereof are referred to as
"Acceptable Financials") and (iii) a Compliance Certificate and other
appropriate documentation, in form and substance satisfactory to the Agent,
certifying the historical operating results and balance sheet of the acquired
companies are provided to the Agent.
Consolidated Earnings Before Interest, Taxes, Depreciation and
Amortization or EBITDA. For any period, EBIT plus (a) depreciation expense for
such period and (b) amortization expense relating to intangible assets for such
period, to the extent that each was deducted in determining Consolidated Net
Income (or Deficit), determined in accordance with GAAP, provided that, EBITDA
of the Subsidiaries of the Parent acquired during the period reported in the
most recent financial statements delivered to the Banks pursuant to ss.6.4 (plus
adjustments approved by the Agent as set forth in the definition of EBIT) shall
be included in the calculation of EBITDA (without duplication).
Consolidated Net Income (or Deficit). The consolidated net income (or
deficit) of the Borrowers after deduction of all expenses, taxes, and other
proper charges, determined in accordance with GAAP.
Consolidated Net Worth. The excess of Consolidated Total Assets over
Consolidated Total Liabilities, less, to the extent otherwise includable in the
computation of Consolidated Net Worth, any subscriptions receivable.
Consolidated Tangible Assets. All accounts receivable, inventory
(including rental inventory), property, plants and equipment, (including titled
equipment) of the Borrowers on which the Agent for the benefit of the Banks and
the Agent has a first priority perfected security interest (other than
perfection of titled equipment unless required by ss.6.19), and which in any
case are subject to no other liens, encumbrances, restrictions or other security
interests of any kind, determined on a consolidated basis in accordance with
GAAP.
Consolidated Total Assets. The sum of (i) all assets ("consolidated
balance sheet assets") of the Borrowers determined on a consolidated basis in
accordance with GAAP, plus (ii) without duplication, all assets leased by
Borrowers as lessee under any Synthetic Lease to the extent that such assets
would have been consolidated balance sheet assets had the Synthetic Lease been
treated for accounting purposes as a Capitalized Lease, plus (iii) without
duplication, all sold receivables referred to in clause (vii) of the definition
of the term "Indebtedness" to the extent that such receivables would have been
consolidated balance sheet assets had they not been sold.
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Consolidated Total Interest Expense. For any period, the aggregate
amount of interest required to be paid or accrued by the Borrowers during such
period on all Indebtedness of the Borrowers outstanding during all or any part
of such period, whether such interest was or is required to be reflected as an
item of expense or capitalized, including payments consisting of interest in
respect of any Capitalized Lease or any Synthetic Lease and including commitment
fees, agency fees, facility fees, balance deficiency fees and similar fees or
expenses in connection with the borrowing of money.
Consolidated Total Liabilities. All liabilities of the Borrowers
determined on a consolidated basis in accordance with GAAP and classified as
such on the consolidated balance sheet of the Borrowers and all other
Indebtedness of the Borrowers, whether or not so classified.
Credit Agreement. This Amended and Restated Revolving Credit Agreement,
including the Schedules and Exhibits hereto, as amended and in effect from time
to time.
Default. See ss.12.
Delinquent Bank. See ss.14.5.3.
Disposal (or Disposed). See definition of Release.
Distribution. The declaration or payment of any dividend or
distribution on or in respect of any shares of any class of capital stock, any
partnership interests or any membership interests of any Person (other than
dividends or other distributions payable solely in shares of common stock,
partnership interests or membership units of such Person, as the case may be);
the purchase, redemption, or other retirement of any shares of any class of
capital stock, partnership interests or membership units of such Person,
directly or indirectly through a Subsidiary or otherwise; the return of equity
capital by any Person to its shareholders, partners or members as such; or any
other distribution on or in respect of any shares of any class of capital stock,
partnership interest or membership unit of such Person.
Documentation Agent. See Preamble.
Dollars or $. Dollars in lawful currency of the United States of
America.
Drawdown Date. The date on which any Loan is made or is to be made, and
the date on which any Loan is converted or continued in accordance with ss.2.5.
EBIT. See definition of Consolidated Earnings Before Interest and
Taxes.
EBITDA. See definition of Consolidated Earnings Before Interest, Taxes,
Depreciation and Amortization.
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Eligible Assignee. Any of (i) a commercial bank organized under the
laws of the United States, or any State thereof or the District of Columbia, and
having total assets in excess of $1,000,000,000; (ii) a savings and loan
association or savings bank organized under the laws of the United States, or
any State thereof or the District of Columbia, and having a net worth of at
least $100,000,000, calculated in accordance with generally accepted accounting
principles; (iii) an Eligible Foreign Bank; and (iv) if, but only if, any Event
of Default has occurred and is continuing, any other bank, insurance company,
commercial finance company or other financial institution approved by the Agent,
such approval not to be unreasonably withheld.
Eligible Foreign Bank. (a) Any commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, provided that such bank is acting through a branch or agency located in
the Cayman Islands, in the country in which it is organized or another country
which is also a member of the OECD; or (b) the central bank of any country which
is a member of the OECD.
Employee Benefit Plan. Any employee benefit plan within the meaning of
ss.3(3) of ERISA maintained or contributed to by any Borrower or any ERISA
Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws. See ss.5.16(a).
EPA. See ss.5.16(b).
Equity Issuance. The sale or issuance by the Parent of any of its
capital stock or equity interests or any warrants, rights or options to acquire
its capital stock or equity interests.
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA Affiliate. Any Person which is treated as a single employer with
any Borrower under ss.414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of ss.4043 of ERISA and the regulations
promulgated thereunder.
Eurodollar Business Day. Any Business Day on which dealings in foreign
currency and exchange are carried on among banks in London, England or such
other eurodollar interbank market as may be selected by the Agent and approved
by the Majority Banks.
Eurodollar Interest Determination Date. For any Interest Period, the
date two Eurodollar Business Days prior to the first day of such Interest
Period.
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Eurodollar Loans. Loans bearing interest calculated by reference to the
Eurodollar Rate.
Eurodollar Offered Rate. The rate per annum at which deposits of
dollars are offered to the Agent by prime banks in the London interbank market
or other eurodollar market as may be selected by the Agent and approved by the
Majority Banks, at or about 11:00 a.m. local time in such interbank market, on
the Eurodollar Interest Determination Date, for a period equal to the requested
Interest Period in an amount substantially equal to the principal amount
requested to be loaned at or converted to a rate based on the Eurodollar Rate.
Eurodollar Rate. The rate per annum, rounded upwards to the nearest
1/16 of 1%, determined by the Agent with respect to an Interest Period in
accordance with the following formula:
Eurodollar Rate = Eurodollar Offered Rate
-----------------------
1-Reserve Rate
Event of Default. See ss.12.
Form S-1. A Registration Statement on Form S-1 suitable for filing with
the SEC pursuant to the Securities Act.
Funded Debt. Consolidated Indebtedness of the Borrowers for borrowed
money, every obligation of such Person issued or assumed as the deferred
purchase price of assets or services (including securities repurchase agreements
but excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business which are not overdue in accordance with their terms
or the Borrowers' normal trade practices as applicable, or which are being
contested in good faith), and guarantees of such Indebtedness, recorded on the
consolidated balance sheet of the Borrowers, including reimbursement obligations
of the Borrowers with respect to letters of credit which are due and owing and
the amount of any Indebtedness of such Persons for Capitalized Leases which
corresponds to principal.
generally accepted accounting principles or GAAP. (i) When used in
ss.8, whether directly or indirectly through reference to a capitalized term
used therein, means (A) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(B) to the extent consistent with such principles, the accounting practice of
the Borrowers reflected in their financial statements for the year ended on the
Balance Sheet Date, and (ii) when used in general, other than as provided above,
means principles that are (A) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time, and (B) consistently applied with past financial
statements of the Borrowers adopting the same principles, provided that in each
case referred to in this definition of "generally accepted accounting
principles" a certified public accountant would, insofar as the use of such
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accounting principles is pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in generally accepted
accounting principles) as to financial statements in which such principles have
been properly applied.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of ss.3(2) of ERISA maintained or contributed to by any Borrower or any
ERISA Affiliate, the benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Hazardous Substances. See ss.5.16(b).
Indebtedness. As to any Person and whether recourse is secured by or is
otherwise available against all or only a portion of the assets of such Person
and whether or not contingent, but without duplication:
(i) every obligation of such Person for money borrowed,
(ii) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or
businesses,
(iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person,
(iv) every obligation of such Person issued or assumed as
the deferred purchase price of property or services (including
securities repurchase agreements but excluding trade accounts payable
or accrued liabilities arising in the ordinary course of business which
are not overdue or which are being contested in good faith),
(v) every obligation of such Person under any Capitalized
Lease,
(vi) every obligation of such Person under any Synthetic
Lease,
(vii) all sales by such Person of (A) accounts or general
intangibles for money due or to become due, (B) chattel paper,
instruments or documents creating or evidencing a right to payment of
money or (C) other receivables (collectively, "receivables"), whether
pursuant to a purchase facility or otherwise, other than in connection
with the disposition of the business operations of such Person relating
thereto or a disposition of defaulted receivables for collection and
not as a financing arrangement, and together with any obligation of
such Person to pay any discount, interest, fees, indemnities,
penalties, recourse, expenses or other amounts in connection therewith,
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(viii) every obligation of such Person (an "equity related
purchase obligation") to purchase, redeem, retire or otherwise acquire
for value any shares of capital stock of any class issued by such
Person, any warrants, options or other rights to acquire any such
shares, or any rights measured by the value of such shares, warrants,
options or other rights which obligations may be required to be
exercised prior to the Maturity Date,
(ix) every obligation of such Person under any forward
contract, futures contract, swap, option or other financing agreement
or arrangement (including, without limitation, caps, floors, collars
and similar agreements), the value of which is dependent upon interest
rates, currency exchange rates, commodities or other indices,
(x) every obligation in respect of Indebtedness of any
other entity (including any partnership in which such Person is a
general partner) to the extent that such Person is liable therefor as a
result of such Person's ownership interest in or other relationship
with such entity, except to the extent that the terms of such
Indebtedness provide that such Person is not liable therefor and such
terms are enforceable under applicable law,
(xi) every obligation, contingent or otherwise, of such
Person guaranteeing, or having the economic effect of guarantying or
otherwise acting as surety for, any obligation of a type described in
any of clauses (i) through (x) (the "primary obligation") of another
Person (the "primary obligor"), in any manner, whether directly or
indirectly, and including, without limitation, any obligation of such
Person (A) to purchase or pay (or advance or supply funds for the
purchase of) any security for the payment of such primary obligation,
(B) to purchase property, securities or services for the purpose of
assuring the payment of such primary obligation, or (C) to maintain
working capital, equity capital or other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor
to pay such primary obligation.
The "amount" or "principal amount" of any Indebtedness at any time of
determination represented by (v) any Indebtedness, issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with GAAP, (w) any
Capitalized Lease shall be the principal component of the aggregate of the
rentals obligation under such Capitalized Lease payable over the term thereof
that is not subject to termination by the lessee, (x) any sale of receivables
shall be the amount of unrecovered capital or principal investment of the
purchaser (other than the Borrowers) thereof, excluding amounts representative
of yield or interest earned on such investment, (y) any Synthetic Lease shall be
the stipulated loss value, termination value or other equivalent amount and (z)
any equity related purchase obligation shall be the maximum fixed redemption or
purchase price thereof inclusive of any accrued and unpaid dividends to be
comprised in such redemption or purchase price.
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Ineligible Securities. Securities which may not be underwritten or
dealt in by member banks of the Federal Reserve System under Section 16 of the
Banking Act of 1993 (12 U.S.C. ss.24, Seventh), as amended.
Interest Period. With respect to each Eurodollar Loan:
(a) initially, the period commencing on the date of the making
of a Eurodollar Loan or the conversion from a Base Rate Loan into a Eurodollar
Loan and ending one (1), two (2), three (3), or six (6) months thereafter, as
selected by the Borrowers in a Loan and Letter of Credit Request; and
(b) thereafter, each subsequent Interest Period shall begin on
the last day of the preceding Interest Period and shall end one (1), two (2),
three (3), or six (6) months thereafter, as selected by the Borrowers in a Loan
and Letter of Credit Request;
provided, however, that whenever the first day of any Interest
Period occurs on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months in such
Interest Period, such Interest Period shall end on the last Business Day of such
succeeding calendar month.
Issuance Fee. See ss.4.1(b).
Joinder Agreement. See ss.6.16(a).
LaSalle. See Preamble.
Lease. Any lease, master lease, sublease, chattel paper, installment
sales agreement or rental agreement (including progress payment authorizations),
including any and all schedules, supplements and amendments thereto and
modifications thereof.
Lessee. The lessee under a Lease.
Letter of Credit Applications. Letter of Credit Applications in such
form as may be agreed upon by the Borrowers and the Agent from time to time
which are entered into pursuant to ss.3 hereof, as such Letter of Credit
Applications are amended, varied or supplemented from time to time.
Letter of Credit Fee. See ss.4.1(b).
Letter of Credit Participation. See ss.3.1(b).
Letters of Credit. Standby Letters of Credit issued or to be issued by
the Agent under ss.3 hereof for the account of the Borrowers.
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Loan and Letter of Credit Request. See ss.2.6.
Loan Documents. This Credit Agreement, the Joinder Agreement(s), the
Revolving Credit Notes, the Letter of Credit Applications, the Letters of Credit
and the Security Documents, each as amended and in effect from time to time.
Loans. Revolving Credit Loans and Swing Line Loans made or to be made
by the Banks to the Borrowers pursuant to ss.2.
Majority Banks. As of any date, the Banks holding fifty-one percent
(51%) of the outstanding principal amount of the Revolving Credit Loans and
participating interests in outstanding Letters of Credit and Swing Line Loan
(other than Loans or participating interests in Letters of Credit held by
Delinquent Banks) on such date; and if no such principal is outstanding, the
Banks whose aggregate Commitments constitute fifty-one percent (51%) of the
Total Commitment; provided that for purposes of this definition "Banks" shall
not include any Delinquent Bank until such Delinquent Bank is no longer deemed a
Delinquent Bank under ss.14.5.3.
Maturity Date. June 29, 2001, or such earlier date on which the
Obligations become due and owing.
Maximum Drawing Amount. The maximum aggregate amount from time to time
that the beneficiaries may draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to terms of the
Letters of Credit.
Maximum Rate. With respect to each Bank, the maximum lawful nonusurious
rate of interest (if any) which under Applicable Law such Bank may charge the
Borrowers on the Loans and other Obligations from time to time.
Multiemployer Plan. Any multiemployer plan within the meaning of
ss.3(37) of ERISA maintained or contributed to by any Borrower or any ERISA
Affiliate.
Net Cash Proceeds. With respect to any Equity Issuance, the excess of
the gross cash proceeds received by such person from such Equity Issuance after
deduction of reasonable and customary transaction expenses (including without
limitation, underwriting discounts and commissions) actually incurred in
connection with the Equity Issuance.
Notes. The Revolving Credit Notes and Swing Line Note.
Obligations. All indebtedness, obligations and liabilities of the
Borrowers to any of the Banks or the Agent, individually or collectively,
existing on the date of this Credit Agreement or arising thereafter, direct or
indirect, joint or several, absolute or contingent, matured or unmatured,
liquidated or unliquidated, secured or unsecured, arising by contract, operation
of law or otherwise, arising or incurred under this Credit Agreement or any of
the
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other Loan Documents, or under any Swap Contract between the Borrowers and any
Bank, or in respect of any of the Loans made or Reimbursement Obligations
incurred or any of the Letter of Credit Applications, the Letters of Credit, the
Revolving Credit Notes or any other instrument at any time evidencing any
thereof.
Omnibus Security Amendment. The Omnibus Amendment to Security Documents
dated as of the date hereof, among the Borrowers and the Agent.
outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by ss.4002 of
ERISA and any successor entity or entities having similar responsibilities.
Perfection Certificates. The Perfection Certificates as defined in the
Security Agreement.
Permitted Liens. See ss.7.2.
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Pricing Ratio. As of the end of any fiscal quarter of the Borrowers
commencing with the fiscal quarter ending December 31, 1998, the ratio of (a)
Funded Debt as at the end of such quarter to (b) EBITDA for the period of four
(4) consecutive fiscal quarters ending on such date.
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Pricing Table:
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Applicable Applicable Base Applicable
PRICING RATIO Eurodollar Margin Rate Margin Applicable L/C Commitment Rate
(per annum) (per annum) Margin (per annum) (per annum)
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Less than 1.75:1 1.50% 0.00% 1.50% 0.300%
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Greater than or 1.75% 0.00% 1.75% 0.375%
equal to 1.75:1 but
less than 2.25:1
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Greater than or 2.00% 0.00% 2.00% 0.375%
equal to 2.25:1 but
less than 2.75:1
---------------------------------------------------------------------------------------------------------------
Greater than or 2.25% 0.00% 2.25% 0.375%
equal to 2.75:1 but
less than 3.25:1
---------------------------------------------------------------------------------------------------------------
Greater than or 2.50% 0.25% 2.50% 0.375%
equal to 3.25:1 but
less than 4.25:1
---------------------------------------------------------------------------------------------------------------
Greater than or 2.75% 0.50% 2.75% 0.50%
equal to 4.25:1
---------------------------------------------------------------------------------------------------------------
Initial Pricing 3.00% 0.75% 3.00% 0.50%
---------------------------------------------------------------------------------------------------------------
Any change in the applicable margin shall become effective on the first day
after receipt by the Banks of financial statements delivered pursuant to
ss.6.4(a) or (b) which indicate a change in the Pricing Ratio or, with respect
to the Eurodollar Applicable Margin, on the first day of each Interest Period
which begins three (3) or more days after receipt of such financial statements.
If at any time such financial statements are not delivered within the time
periods specified in ss.6.4(a) or (b), the applicable margin shall be the
highest rate set forth in the respective column of the Pricing Table, subject to
adjustment prospectively upon actual receipt of such financial statements.
Notwithstanding the above, the initial pricing set forth in the Pricing Table
above shall be effective from the Closing Date until the earlier to occur of (i)
the delivery to the Agent of a Compliance Certificate for the fiscal quarter
ending December 31, 1998 and (ii) the successful completion of a Qualified
Public Offering.
Prior Credit Agreement. See Preamble.
Qualified Public Offering. The first underwritten public offering
pursuant to an effective registration statement under the Securities Act
covering the offer and sale of shares of common stock of the Parent which raises
Net Cash Proceeds of at least $75,000,000.
Replacement Bank. See ss.4.11.
RCRA. See definition of Release.
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Real Property. All real property heretofore, now, or hereafter owned or
leased (as lessee or sublessee) by any Borrowers.
Register. See ss.17.3.
Reimbursement Obligation. The Borrowers' joint and several obligations
to reimburse the Agent and the Banks on account of any drawing under any Letter
of Credit as provided in ss.3.2.
Release. Shall have the meaning specified in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. ss.ss.9601 et seq. ("CERCLA") and the term "Disposal" (or "Disposed")
shall have the meaning specified in the Resource Conservation and Recovery Act
of 1976, 42 U.S.C. ss.ss.6901 et seq. ("RCRA") and regulations promulgated
thereunder; provided that in the event either CERCLA or RCRA is amended so as to
amend the meaning of any term defined thereby, such amended meaning shall apply
as of the effective date of such amendment and provided further, to the extent
that the laws of a state wherein the property lies establishes a meaning for
"Release" or "Disposal" which is broader than specified in either CERCLA or
RCRA, such broader meaning shall apply.
Replacement Bank. See ss.4.11.
Replacement Notice. See ss.4.11.
Reserve Rate. The rate, expressed as a decimal, at which the Banks
would be required to maintain reserves under Regulation D of the Board of
Governors of the Federal Reserve System (or any subsequent or similar regulation
relating to such reserve requirements) against "Eurocurrency Liabilities" (as
such term is defined in Regulation D), or against any other category of
liabilities which might be incurred by the Banks to fund Eurodollar Loans, if
such liabilities were outstanding. The Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in the Reserve Rate.
Revolving Credit Notes. The amended and restated promissory notes of
the Borrowers evidencing the Revolving Credit Loans hereunder, dated as of the
date hereof and in substantially the form of Exhibit A hereto.
SEC. The Securities and Exchange Commission or any successor thereto.
Section 20 Subsidiary. A Subsidiary of the bank holding company
controlling any Bank, which Subsidiary has been granted authority by the Federal
Reserve Board to underwrite and deal in certain Ineligible Securities.
Securities Act. The Securities Act of 1933, as amended.
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Security Agreement. The Security Agreement, dated as of March 18, 1998,
among the Borrowers and the Agent, as supplemented, amended and effective from
time to time.
Security Documents. The Security Agreement, the Stock Pledge
Agreements, the Omnibus Security Amendment, the notices to banks of the Agent's
security interest for the benefit of the Banks and the Agent in the Borrowers'
bank accounts and any other instruments and documents, including, without
limitation, Uniform Commercial Code financing statements, required to be
executed or delivered pursuant to any Security Document or evidencing or
perfecting the Agent's lien on the assets of the Borrowers for the benefit of
the Banks.
Senior Funded Debt. At any time of determination, the result of Funded
Debt minus the aggregate principal amount of Subordinated Debt outstanding as of
such date.
Settlement. The making or receiving of payments, in immediately
available funds, by the Banks to or from the Agent in accordance with ss.2.8
hereof to the extent necessary to cause each Bank's actual share of the
outstanding amount of the Revolving Credit Loans to be equal to such Bank's
Commitment Percentage of the outstanding amount of such Revolving Credit Loans,
in any case when, prior to such action, the actual share is not so equal.
Settlement Amount. See ss.2.8(b).
Settlement Date. See ss.2.8(b).
Settling Bank. See ss.2.8(b).
Stock Pledge Agreements. The several Stock Pledge Agreements between
the Parent and/or certain of its Subsidiaries and the Agent in form and
substance satisfactory to the Agent, as amended and in effect from time to time,
pursuant to which 100% of the capital stock of each such Subsidiary of the
Parent is pledged to the Agent for the benefit of the Banks.
Subordinated Debt. Unsecured Indebtedness of the Parent that is
expressly subordinated and made junior to the payment and performance in full of
the Obligations, and evidenced as such by Subordinated Debt Documents.
Subordinated Debt Documents. The Unsecured Convertible Subordinated
Promissory Notes issued by the Parent to ▇▇▇▇-▇▇▇▇ Limited Partnership and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Foundation in connection with the Parent's acquisition of The
▇▇▇▇-▇▇▇▇ Company, dated April 30, 1998 in the aggregate principal amount of
$8,080,000 and $1,920,000 respectively (the "▇▇▇▇-▇▇▇▇ Notes"), and other
written agreements containing subordination provisions substantially similar to
those attached hereto as Exhibit F and with all principal payments amortizing
after the Maturity Date.
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Subsidiary. Any corporation, association, trust, partnership, limited
liability company or other business entity of which the designated parent shall
at any time own directly, or indirectly through a Subsidiary or Subsidiaries, at
least a majority (by number of votes) of the outstanding capital stock or other
interest entitled to vote generally.
Swap Contracts. Any agreement (including any master agreement and any
agreement, whether or not in writing, relating to any single transaction) that
is an interest rate swap agreement, basis swap, forward rate agreement,
commodity swap, commodity option, equity or equity index swap or option, bond
option, interest rate option, forward foreign exchange agreement, rate cap,
collar or floor agreement, currency swap agreement, cross-currency rate swap
agreement, swaption, currency option or other similar agreement (including any
option to enter into any of the foregoing).
Swing Line Loans. Loans made by BKB to the Borrowers pursuant to
ss.2.8.
Swing Line Note. The promissory note of the Borrowers evidencing the
Swing Line Loans hereunder, dated as of the date of this Credit Agreement in
substantially the form of Exhibit A-2.
Synthetic Lease. Any lease treated as an operating lease under
generally accepted accounting principles and as a loan or financing for U.S.
income tax purposes.
Total Commitment. See ss.2.1.
Uniform Customs. With respect to any Letter of Credit, the Uniform
Customs and Practices for Documentary Credits (1993 Revisions), International
Chamber of Commerce Publication No. 500 or any successor version thereto adopted
by the Agent in the ordinary course of its business as a letter of credit issuer
and in effect at the time of issuance of such Letter of Credit.
Year 2000 Compliance. The risk that computer applications used by the
Borrowers may be unable to recognize and properly perform date-sensitive
functions involving certain dates prior to, and any date after, December 31,
1999.
SS.1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include
such document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
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(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms capitalized but not otherwise defined
herein have the meanings assigned to them by generally accepted accounting
principles applied on a consistent basis by the accounting entity to which they
refer.
(f) The words "include," "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the Commonwealth of Massachusetts, have the
meanings assigned to them therein.
(h) Reference to a particular "ss." refers to that section of
this Credit Agreement unless otherwise indicated.
(i) The words "herein," "hereof," "hereunder" and words of
like import shall refer to this Credit Agreement as a whole and not to any
particular section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation
of periods of time from a specified date to a later specified date, the word
"from" means "from and including," the words "to" and "until" each mean "to but
excluding," and the word "through" means "to and including."
(k) This Credit Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are, however,
cumulative and are to be performed in accordance with the terms thereof.
(l) This Credit Agreement and the other Loan Documents are the
result of negotiation among, and have been reviewed by counsel to, among others,
the Agent and the Borrowers and are the product of discussions and negotiations
among all parties. Accordingly, this Credit Agreement and the other Loan
Documents are not intended to be considered against the Agent or any of the
Banks merely on account of the Agent's or any Bank's involvement in the
preparation of such documents.
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19
SS.2. THE REVOLVING CREDIT FACILITY.
SS.2.1. COMMITMENT TO LEND.
Subject to the terms and conditions set forth in this Credit Agreement,
each of the Banks severally agrees (i) on the Closing Date, to convert the loans
outstanding and owed under the Prior Credit Agreement into Revolving Credit
Loans under this Credit Agreement and (ii) to lend to the Borrowers and the
Borrowers may borrow, repay, and reborrow from time to time from the Closing
Date to the Maturity Date, upon notice by the Borrowers to the Agent given in
accordance with ss.2.6, its Commitment Percentage of the Revolving Credit Loans
as are requested by the Parent on behalf of the Borrowers, provided that the
outstanding amount of Revolving Credit Loans (after giving effect to all amounts
requested), Swing Line Loans, unpaid Reimbursement Obligations, and the Maximum
Drawing Amount shall not exceed a maximum aggregate amount outstanding of
$225,000,000 at any time, as such amount may be reduced or increased, as the
case may be, pursuant to ss.2.2 hereof (the "Total Commitment"). The Revolving
Credit Loans shall be made pro rata in accordance with each Bank's Commitment
Percentage. Each request for a Revolving Credit Loan hereunder shall constitute
a representation and warranty by the Borrowers that the conditions set forth in
ss.9 and ss.10, as the case may be, have been satisfied on the date of such
request.
SS.2.2. REDUCTION AND INCREASE OF TOTAL COMMITMENT.
SS.2.2.1. REDUCTION OF TOTAL COMMITMENT.
(a) The Borrowers shall have the right at any time
and from time to time upon five (5) Business Days' prior written notice to the
Agent to reduce by $1,000,000 or an integral multiple of $100,000 in excess
thereof, or terminate entirely, the Total Commitment, whereupon the Commitments
of the Banks shall be reduced pro rata in accordance with their respective
Commitment Percentages of the amount specified in such notice or, as the case
may be, terminated. The Agent will notify the Banks promptly after receiving any
notice of the Borrowers delivered pursuant to this ss.2.2.1.
(b) No reduction or termination of the Commitments
once made may be revoked; the portion of the Commitments reduced or terminated
may not be reinstated; and amounts in respect of such reduced or terminated
portion may not be reborrowed.
SS.2.2.2. INCREASE OF TOTAL COMMITMENT.
Unless a Default or Event of Default has occurred and
is continuing, the Borrowers may request, on more than one occasion, that the
Total Commitment be increased by an aggregate amount of up to $40,000,000
provided that the Total Commitment shall not in any event exceed $265,000,000
hereunder, subject to the approval of the Agent, provided, however, that (i) any
Bank which is a party to this Credit Agreement prior to such increase shall have
the first option, and may elect, to fund its pro rata share of the increase,
thereby increasing its Commitment hereunder, but no Bank shall be required to do
so, (ii) in the event that it becomes necessary to include a new Bank to provide
additional funding under this ss.2.2.2, such new Bank must be reasonably
acceptable to the Agent and the Borrowers, and (iii) the Banks' Commitment
Percentages shall be correspondingly adjusted, as
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necessary, to reflect any increase in the Total Commitment and Schedule 1 shall
be amended to reflect such adjustments. Notwithstanding the above, an increase
will not be made in the Total Commitment if such increase is prohibited pursuant
to the terms of the Subordinated Debt.
SS.2.3. THE REVOLVING CREDIT NOTES.
The Revolving Credit Loans shall be evidenced by separate amended and
restated promissory notes of the Borrowers in substantially the form of Exhibit
A-1 hereto (each a "Revolving Credit Note"), dated as of the Closing Date (or
such other date on which a Bank may become a party hereto in accordance with
ss.17 hereof) and completed with appropriate insertions. One Revolving Credit
Note shall be payable to the order of each Bank in a principal amount equal to
such Bank's Commitment or, if less, the outstanding amount of all Revolving
Credit Loans made by such Bank, plus interest accrued thereon, as set forth
below. The Borrowers irrevocably authorize each Bank to make or cause to be
made, in connection with a Drawdown Date of any Revolving Credit Loan or at the
time of receipt of any payment of principal on such Bank's Revolving Credit
Note, an appropriate notation on such Bank's records reflecting the making of
such Revolving Credit Loan or the receipt of such payment (as the case may be).
The outstanding amount of the Revolving Credit Loans set forth on such Bank's
record shall be prima facie evidence of the principal amount thereof owing and
unpaid to such Bank, but the failure to record, or any error in so recording,
any such amount shall not limit or otherwise affect the obligation of the
Borrowers hereunder or under any Revolving Credit Note to make payments of
principal of or interest on any Revolving Credit Note when due.
SS.2.4. INTEREST ON LOANS.
Except as otherwise provided in ss.4.6, the outstanding principal
amount of the Loans shall bear interest at the rate per annum equal to (a) the
Base Rate plus the Applicable Base Rate Margin on Base Rate Loans or (b) the
Eurodollar Rate plus the Applicable Eurodollar Margin on Eurodollar Loans. The
Borrowers jointly and severally promise to pay interest on each Loan (i)
quarterly in arrears on the first Business Day of each calendar quarter for the
immediately preceding calendar quarter, commencing July 1, 1998, on Base Rate
Loans, (ii) on the last day of the applicable Interest Period, and if such
Interest Period is longer than three (3) months, also on the day which is three
(3) months after the commencement of such Interest Period, on Eurodollar Loans,
and (iii) on the Maturity Date for all Loans.
SS.2.5. ELECTION OF EURODOLLAR RATE; NOTICE OF ELECTION; INTEREST
PERIODS; MINIMUM AMOUNTS.
(a) At the Borrowers' option, so long as no Default or Event
of Default has occurred and is then continuing, the Borrowers may (i) elect to
convert any Revolving Credit Loan which is a Base Rate Loan or a portion thereof
to a Eurodollar Loan, (ii) at the time of any Loan and Letter of Credit Request,
specify that a requested Revolving Credit
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Loan shall be a Eurodollar Loan, or (iii) upon expiration of the applicable
Interest Period, elect to maintain an existing Eurodollar Loan as such, provided
that the Borrowers give notice to the Agent pursuant to ss.2.5(b) hereof. Upon
determining any Eurodollar Rate, the Agent shall forthwith provide notice
thereof to the Borrowers and the Banks, and each such notice to the Borrowers
and the Banks shall be considered prima facie correct and binding, absent
manifest error.
(b) Three (3) Eurodollar Business Days prior to the making of
any Eurodollar Loan or the conversion of any Base Rate Loan to a Eurodollar
Loan, or, in the case of an outstanding Eurodollar Loan, the expiration date of
the applicable Interest Period, the Borrowers shall give telephonic notice
(confirmed by telecopy on the same Eurodollar Business Day) to the Agent not
later than 1:00 p.m. (Boston time) of their election pursuant to ss.2.5(a). Each
such notice delivered to the Agent shall specify the aggregate principal amount
of the Revolving Credit Loans to be borrowed or maintained as or converted to
Eurodollar Loans and the requested duration of the Interest Period that will be
applicable to such Eurodollar Loan, and shall be irrevocable and binding upon
the Borrowers. If the Borrowers shall fail to give the Agent notice of their
election hereunder together with all of the other information required by this
ss.2.5(b) with respect to any Revolving Credit Loan, such Revolving Credit Loan
shall be deemed a Base Rate Loan. In the event that the Borrowers fail to
provide any such notice with respect to the continuation of any Eurodollar Loan
as such, then such Eurodollar Loan shall be automatically converted to a Base
Rate Loan at the end of the then expiring Interest Period relating thereto.
(c) Notwithstanding anything herein to the contrary, the
Borrowers may not specify an Interest Period that would extend beyond the
Maturity Date.
(d) All Revolving Credit Loans shall be in a minimum amount of
$500,000 or an integral multiple of $100,000 in excess thereof. In no event
shall the Borrowers have more than five (5) different maturities of Eurodollar
Loans outstanding at any time.
SS.2.6. REQUESTS FOR LOANS.
The Borrowers shall give to the Agent written notice in the form of
Exhibit B hereto (or telephonic notice confirmed by telecopy on the same
Business Day in the form of Exhibit B hereto) of each Loan requested hereunder
(a "Loan and Letter of Credit Request") not later than (a) 11:00 a.m. (Boston
time) on the day of the proposed Drawdown Date of any Loan which is a Base Rate
Loan, or (b) 1:00 p.m. (Boston time) three (3) Eurodollar Business Days prior to
the proposed Drawdown Date of any Eurodollar Loan, or (c) 1:00 p.m. (Boston
time) on the proposed Drawdown Date of funding of any Swing Line Loan, provided,
however, that the Borrowers shall not request any Eurodollar Rate Loan having an
Interest Period longer than one (1) month until the date which is ninety (90)
days following the Closing Date. Each such notice shall be given by the
Borrowers and shall specify the principal amount of the Loan requested, if a
Revolving Credit Loan, whether such Revolving
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Credit Loan is a Base Rate Loan or a Eurodollar Loan, the Drawdown Date of such
Loan and shall include a current Loan and Letter of Credit Request reflecting
the Maximum Drawing Amount and the outstanding Loans. Each Loan and Letter of
Credit Request shall be irrevocable and binding on the Borrowers and shall
obligate the Borrowers to accept the Loan requested from the Banks on the
proposed Drawdown Date. Each of the representations and warranties made by or on
behalf of the Borrowers to the Banks or the Agent in this Credit Agreement or
any other Loan Document shall be true and correct in all material respects when
made and shall, for all purposes of this Credit Agreement, be deemed to be
repeated on and as of the date of the submission of any Loan and Letter of
Credit Request and on and as of the Drawdown Date of such Loan, or the date of
issuance of such Letter of Credit (except to the extent of changes resulting
from transactions contemplated or permitted by this Credit Agreement and the
other Loan Documents and changes occurring in the ordinary course of business
that singly or in the aggregate are not materially adverse, or to the extent
that such representations and warranties expressly relate solely to an earlier
date). The Agent shall promptly notify each Bank of each Loan and Letter of
Credit Request (other than requests for Swing Line Loans only) received by the
Agent.
SS.2.7. FUNDS FOR REVOLVING CREDIT LOANS
(a) Not later than 1:00 p.m. (Boston time) on the proposed
Drawdown Date of any Revolving Credit Loan, each of the Banks will make
available to the Agent, at the Agent's Head Office, in immediately available
funds, the amount of such Bank's Commitment Percentage of the amount of the
requested Revolving Credit Loans. Upon receipt from each Bank of such amount,
and upon receipt of the documents required by ss.ss.9 and 10 and the
satisfaction of the other conditions set forth therein, to the extent
applicable, the Agent will make available to the Borrowers in immediately
available funds the aggregate amount of such Revolving Credit Loans made
available to the Agent by the Banks. The failure or refusal of any Bank to make
available to the Agent at the aforesaid time and place on any Drawdown Date the
amount of its Commitment Percentage of the requested Revolving Credit Loans
shall not relieve any other Bank from its several obligation hereunder to make
available to the Agent the amount of such other Bank's Commitment Percentage of
any requested Revolving Credit Loans.
(b) The Agent may, unless notified to the contrary by any Bank
prior to a Drawdown Date, assume that such Bank has made available to the Agent
on such Drawdown Date the amount of such Bank's Commitment Percentage of the
Revolving Credit Loans to be made on such Drawdown Date, and the Agent may (but
shall not be required to), in reliance upon such assumption, make available to
the Borrowers a corresponding amount. If any Bank makes available to the Agent
such amount on a date after such Drawdown Date, such Bank shall pay to the Agent
on demand an amount equal to the product of (i) the average computed for the
period referred to in clause (iii) below, of the weighted average interest rate
paid by the Agent for federal funds acquired by the Agent during each day
included in such period, times (ii) the amount of such Bank's Commitment
Percentage of
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such Revolving Credit Loans, times (iii) a fraction, the numerator of which is
the number of days that elapse from and including such Drawdown Date to the date
on which the amount of such Bank's Commitment Percentage of such Revolving
Credit Loans shall become immediately available to the Agent, and the
denominator of which is 365. A statement of the Agent submitted to such Bank
with respect to any amounts owing under this paragraph shall be prima facie
evidence, absent manifest error, of the amount due and owing to the Agent by
such Bank. If the amount of such Bank's Commitment Percentage of such Revolving
Credit Loans is not made available to the Agent by such Bank within three (3)
Business Days following such Drawdown Date, the Agent shall be entitled to
recover such amount from the Borrowers on demand, with interest thereon at the
rate per annum applicable to the Revolving Credit Loans made on such Drawdown
Date.
SS.2.8. SWING LINE LOANS; SETTLEMENTS.
(a) Solely for ease of administration of the Revolving Credit
Loans, BKB may, upon receipt of a Loan and Letter of Credit Request no later
than 1:00 p.m. (Boston time) on the proposed date of funding, but shall not be
required to, fund Base Rate Loans made in accordance with the provisions of this
Credit Agreement ("Swing Line Loans") for periods not to exceed seven (7) days
in any one case, bearing interest as set forth in ss.2.4. The Swing Line Loans
shall be evidenced by a promissory note of the Borrowers in substantially the
form of Exhibit A-2 (the "Swing Line Note") and shall each be in a minimum
amount of $100,000 or greater, provided that the outstanding amount of Swing
Line Loans advanced by BKB hereunder shall not exceed $15,000,000 at any time.
Each Bank shall remain severally and unconditionally liable to fund its pro rata
share (based upon each Bank's Commitment Percentage) of such Swing Line Loans on
each Settlement Date and, in the event BKB chooses not to fund all Base Rate
Loans requested on any date, to fund its Commitment Percentage of the Base Rate
Loans requested, subject to satisfaction of the provisions hereof relating to
the making of Base Rate Loans. Prior to each Settlement, all payments or
repayments of the principal of, and interest on, Swing Line Loans shall be
credited to the account of BKB.
(b) The Banks shall effect Settlements on (i) the Business Day
immediately following any day which BKB gives written notice to the Agent to
effect a Settlement, (ii) the Business Day immediately following the Agent's
becoming aware of the existence of any Default or Event of Default, (iii) the
Maturity Date, (iii) any date on which the Borrowers wish to convert a Swing
Line Loan into a Eurodollar Rate Loan, and (iv) in any event, the seventh day on
which any Swing Line Loan remains outstanding (each such date, a "Settlement
Date"). One (1) Business Day prior to each such Settlement Date, the Agent shall
give telephonic notice to the Banks of (A) the respective outstanding amount of
Revolving Credit Loans made by each Bank as at the close of business on the
prior day, (B) the amount that any Bank, as applicable (a "Settling Bank"),
shall pay to effect a Settlement (a "Settlement Amount"). A statement of the
Agent submitted to the Banks with respect to any amounts owing hereunder shall
be prima facie evidence of the amount due and owing.
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Each Settling Bank shall, not later than 1:00 p.m. (Boston time) on each
Settlement Date, effect a wire transfer of immediately available funds to the
Agent at the Agent's Head Office in the amount of such Bank's Settlement Amount.
All funds advanced by any Bank as a Settling Bank pursuant to this ss.2.8 shall
for all purposes be treated as a Base Rate Loan to the Borrowers.
(c) The Agent may (unless notified to the contrary by any
Settling Bank by 12:00 noon (Boston time) one (1) Business Day prior to the
Settlement Date) assume that each Settling Bank has made available (or will make
available by the time specified in ss.2.8(b)) to the Agent its Settlement
Amount, and the Agent may (but shall not be required to), in reliance upon such
assumption, effect Settlements. If the Settlement Amount of such Settling Bank
is made available to the Agent on a date after such Settlement Date, such
Settling Bank shall pay the Agent on demand an amount equal to the product of
(i) the average, computed for the period referred to in clause (iii) below, of
the weighted average annual interest rate paid by the Agent for federal funds
acquired by the Agent during each day included in such period times (ii) such
Settlement Amount times (iii) a fraction, the numerator of which is the number
of days that elapse from and including such Settlement Date to but not including
the date on which such Settlement Amount shall become immediately available to
the Agent, and the denominator of which is 365. Upon payment of such amount such
Settling Bank shall be deemed to have delivered its Settlement Amount on the
Settlement Date and shall become entitled to interest payable by the Borrowers
with respect to such Settling Bank's Settlement Amount as if such share were
delivered on the Settlement Date. If such Settlement Amount is not in fact made
available to the Agent by such Settling Bank within three (3) Business Days of
such Settlement Date, the Agent shall be entitled to recover such amount from
the Borrowers, with interest thereon at the Base Rate.
(d) After any Settlement Date, any payment by the Borrowers of
Swing Line Loans hereunder shall be allocated pro rata among the Banks, in
accordance with such Bank's Commitment Percentage.
SS.2.9. MATURITY OF THE LOANS.
The Loans shall be due and payable on the Maturity Date. The Borrowers
jointly and severally promise to pay on the Maturity Date all Loans outstanding
on such date, together with any and all accrued and unpaid interest thereon.
SS.2.10. MANDATORY REPAYMENTS OF THE LOANS AND REIMBURSEMENT
OBLIGATIONS.
If at any time the sum of the outstanding amount of the Loans plus the
Maximum Drawing Amount plus unpaid Reimbursement Obligations exceeds the Total
Commitment, whether by reduction of the Total Commitment or otherwise, then the
Borrowers shall immediately pay the amount of such excess to the Agent for
application first, to any Swing Line Loans, second, to unpaid Reimbursement
Obligations, third, to the Revolving Credit
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Loans, or if no Revolving Credit Loans shall be outstanding, to be held by the
Agent as collateral security for the Reimbursement Obligations, provided,
however, that if the amount of cash collateral held by the Agent pursuant to
this ss.2.9 exceeds the amount of the Obligations, the Agent shall return such
excess to the Borrowers. Each payment of any unpaid Reimbursement Obligations or
prepayment of Revolving Credit Loans shall be allocated among the Banks, in
proportion, as nearly as practicable, to each Reimbursement Obligation or (as
the case may be) the respective unpaid principal amount of each Bank's Revolving
Credit Note, with adjustments to the extent practicable to equalize any prior
payments or repayments not exactly in proportion.
SS.2.11. OPTIONAL PREPAYMENTS OF LOANS.
The Borrowers shall have the right, at their election, to prepay the
outstanding amount of the Loans, as a whole or in part, at any time without
penalty or premium (other than the obligation to reimburse the Banks and the
Agent pursuant to ss.4.8 hereof). The Borrowers shall give written notice to the
Agent (or telephonic notice confirmed in writing) no later than (a) 1:00 p.m.
(Boston time) on the Business Day of the proposed prepayment of any Base Rate
Loan, (b) 1:00 p.m. (Boston time) three (3) Eurodollar Business Days prior to
the proposed prepayment of any Eurodollar Loan or (c) 1:00 p.m. (Boston time) on
the Business Day of the proposed prepayment of any Swing Line Loan, in each case
specifying the proposed date of prepayment of Loans and the principal amount to
be paid. Each such partial repayment of (i) the Revolving Credit Loans shall be
in the amount of $1,000,000 or an integral multiple of $500,000 in excess
thereof, and (ii) the Swing Line Loans shall be in the amount of $100,000 or a
greater integral multiple of $10,000 in excess thereof, and shall be accompanied
by the payment of accrued interest on the principal prepaid to the date of
prepayment and shall be applied, in the absence of instruction by the Borrowers,
first to the principal of Base Rate Loans and then to the principal of
Eurodollar Loans. Each partial prepayment of Revolving Credit Loans shall be
allocated among the Banks, in proportion, as nearly as practicable, to the
respective unpaid principal amount of each Bank's Revolving Credit Loans, with
adjustments to the extent practicable to equalize any prior repayments not
exactly in proportion.
SS.3. LETTERS OF CREDIT.
SS.3.1. LETTER OF CREDIT COMMITMENTS.
(a) Subject to the terms and conditions hereof and the execution and
receipt of a Loan and Letter of Credit Request reflecting the Maximum Drawing
Amount of all Letters of Credit (including the requested Letter of Credit) and
the outstanding Loans and a Letter of Credit Application, the Agent, on behalf
of the Banks and in reliance upon the agreement of the Banks set forth in
ss.3.1(b) and upon the representations and warranties of the Borrowers contained
herein, agrees to issue, extend, and renew for the account of the Borrowers one
or more standby letters of credit, in such form as may be requested from time to
time by the Borrowers and agreed to by the Agent; provided, however, that, after
giving effect to such
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request, the Maximum Drawing Amount plus all unpaid Reimbursement Obligations
shall not exceed the lesser of (i) $25,000,000 or (ii) the Total Commitment
minus the aggregate outstanding amount of the Loans. No Letter of Credit shall
have an expiration date later than the earlier of (i) one (1) year after the
date of issuance of the Letter of Credit (which may incorporate automatic
renewals for periods of up to one (1) year, provided that no later than thirty
(30) days prior to the date of any automatic renewal the Agent may terminate
such Letter of Credit), or (ii) fourteen (14) days prior to the Maturity Date.
Each Letter of Credit so issued, extended or renewed shall be subject to the
Uniform Customs.
(b) Each Bank severally agrees that it shall be absolutely liable,
without regard to the occurrence of any Default or Event of Default or any other
condition precedent whatsoever, to the extent of such Bank's Commitment
Percentage thereof, to reimburse the Agent on demand for the amount of each
draft paid by the Agent under each Letter of Credit issued. extended or renewed
in accordance with the terms hereof to the extent that such amount is not
reimbursed by the Borrowers pursuant to ss.3.2 (such agreement for a Bank being
called herein the "Letter of Credit Participation" of such Bank).
(c) Each such payment made by a Bank shall be treated as the purchase
by such Bank of a participating interest in the Borrowers' Reimbursement
Obligation under ss.3.2 in an amount equal to such payment. Each Bank shall
share in accordance with its participating interest in any interest which
accrues pursuant to ss.3.2.
(d) All Letters of Credit issued under the Prior Credit Agreement shall
constitute Letters of Credit hereunder.
SS.3.2. REIMBURSEMENT OBLIGATION OF THE BORROWERS.
In order to induce the Agent to issue, extend and renew each Letter of
Credit and the Banks to participate therein, the Borrowers hereby agree to
reimburse or pay to the Agent with respect to each Letter of Credit issued,
extended or renewed by the Agent hereunder as follows:
(a) on each date that any draft presented under any Letter of Credit is
honored by the Agent or the Agent otherwise makes payment with respect thereto,
(i) the amount paid by the Agent under or with respect to such Letter of Credit,
and (ii) the amount of any taxes, fees, charges or other costs and expenses
whatsoever incurred by the Agent or any Bank in connection with any payment made
by the Agent or any Bank under, or with respect to, such Letter of Credit;
provided however, if the Borrowers do not reimburse the Agent on the Drawdown
Date, such amount shall, provided that no Event of Default under ss.ss.12(g) or
12(h) has occurred, become automatically a Revolving Credit Loan which is a Base
Rate Loan advanced hereunder in an amount equal to such sum; and
(b) upon the Maturity Date or the termination of the Total Commitment,
or the acceleration of the Reimbursement Obligations in accordance with ss.12,
an amount equal to
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the Maximum Drawing Amount, which amount shall be held by the Agent for the
benefit of the Banks and the Agent as cash collateral for all Reimbursement
Obligations.
Each such payment shall be made to the Agent at the Agent's Head Office
in immediately available funds. Interest on any and all amounts remaining unpaid
by the Borrowers under this ss.3.2 at any time from the date such amounts become
due and payable (whether as stated in this ss.3.2, by acceleration or otherwise)
until payment in full (whether before or after judgment) shall be payable to the
Agent on demand at the rate specified in ss.4.6 for overdue principal on the
Loans.
SS.3.3. LETTER OF CREDIT PAYMENTS.
If any draft shall be presented or other demand for payment shall be
made under any Letter of Credit, the Agent shall notify the Borrowers of the
date and amount of the draft presented or demand for payment and of the date and
time when it expects to pay such draft or honor such demand for payment. On the
date that such draft is paid or other payment is made by the Agent, the Agent
shall promptly notify the Banks of the amount of any unpaid Reimbursement
Obligation. No later than 3:00 p.m. (Boston time) on the Business Day next
following the receipt of such notice, each Bank shall make available to the
Agent, at the Agent's Head Office, in immediately available funds, such Bank's
Commitment Percentage of such unpaid Reimbursement Obligation, together with an
amount equal to the product of (a) the weighted average, computed for the period
referred to in clause (c) below, of the interest rate paid by the Agent for
federal funds acquired by the Agent during each day included in such period,
times (b) the amount equal to such Bank's Commitment Percentage of such unpaid
Reimbursement Obligation, times (c) a fraction, the numerator of which is the
number of days that have elapsed from and including the date the Agent paid the
draft presented for honor or otherwise made payment until the date on which such
Bank's Commitment Percentage of such unpaid Reimbursement Obligation shall
become immediately available to the Agent, and the denominator of which is 365.
The responsibility of the Agent to the Borrowers and the Banks shall be only to
determine that the documents (including each draft) delivered under each Letter
of Credit in connection with such presentment shall be in conformity in all
material respects with such Letter of Credit in accordance with the Uniform
Customs.
SS.3.4. OBLIGATIONS ABSOLUTE.
The Borrowers' obligations under this ss.3 shall be absolute and
unconditional under any and all circumstances and irrespective of the occurrence
of any Default or Event of Default or any condition precedent whatsoever or any
setoff, counterclaim or defense to payment which any Borrower may have or have
had against the Agent, any Bank or any beneficiary of a Letter of Credit.
Subject to the obligations of the Banks pursuant to Article V of the Uniform
Commercial Code and the obligations of the Agent pursuant to the last sentence
of ss.3.3, the Borrowers further agree with the Agent and the Banks that the
Agent and the Banks shall not be responsible for, and the Borrowers'
Reimbursement Obligations under ss.3.2 shall
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not be affected by, among other things, the validity or genuineness of documents
or of any endorsements thereon, even if such documents should in fact prove to
be in any or all respects invalid, fraudulent or forged, or any dispute between
or among any Borrower, the beneficiary of any Letter of Credit or any financing
institution or other party to which any Letter of Credit may be transferred or
any claims or defenses whatsoever of any Borrower against the beneficiary of any
Letter of Credit or any such transferee. The Agent and the Banks shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit. The Borrowers agree that any action taken or omitted by
the Agent or any Bank under or in connection with each Letter of Credit and the
related drafts and documents, if done in good faith, shall be binding upon the
Borrowers and shall not result in any liability on the part of the Agent or any
Bank to the Borrowers.
SS.3.5. RELIANCE BY AGENT.
To the extent not inconsistent with ss.3.4, the Agent shall be entitled
to rely, and shall be fully protected in relying upon, any Letter of Credit,
draft, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel, independent accountants or other experts selected by the Agent.
The Agent shall be fully justified in failing or refusing to take any action
under this Credit Agreement unless it shall first have received such advice or
concurrence of the Majority Banks as it reasonably deems appropriate or it shall
first be indemnified to its reasonable satisfaction by the Banks against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Credit Agreement
in accordance with a request of the Majority Banks, and such request and any
action taken or failure to act pursuant thereto shall be binding upon the Banks
and all future holders of the Revolving Credit Notes or of a Letter of Credit
Participation.
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SS.4. CERTAIN GENERAL PROVISIONS.
SS.4.1. FEES.
(a) COMMITMENT FEE. The Borrowers jointly and severally agree
to pay to the Agent, for the respective account of each Bank, a fee (the
"Commitment Fee") equal to the Applicable Commitment Rate multiplied by the
average daily amount of the unused portion of such Bank's Commitment during each
calendar quarter or portion thereof from the Closing Date to the Maturity Date
(or to the date of termination in full of the Total Commitment, if earlier). The
Commitment Fee shall be payable quarterly in arrears on the first day of each
calendar quarter for the immediately preceding calendar quarter commencing on
July 1, 1998, with a final payment on the Maturity Date or any earlier date on
which the Commitments shall terminate. Prior to any Settlement, the Swing Line
Loan shall not constitute usage of any Bank's Commitment other than BKB.
(b) LETTER OF CREDIT FEES. The Borrowers shall pay a fee (the
"Letter of Credit Fee") equal to the Applicable L/C Margin multiplied by the
Maximum Drawing Amount of each Letter of Credit. Such Letter of Credit Fee shall
be payable to the Agent for the account of the Banks, to be shared pro rata by
the Banks in accordance with their respective Commitment Percentages. The
Borrowers shall also pay a fee (the "Issuance Fee") to the Agent, for its own
account, equal to 0.125% per annum on the Maximum Drawing Amount of all Letters
of Credit issued by the Agent, plus its customary administrative charges. The
Letter of Credit Fee and the Issuance Fee shall be payable for the number of
days each Letter of Credit is outstanding, and shall be payable quarterly in
arrears on the first day of each calendar quarter for the immediately preceding
calendar quarter, and on the Maturity Date.
(c) CLOSING FEES. The Borrowers shall pay on the Closing Date
any fees owing to any of the Banks or either Bank Agent, as previously agreed
upon among the Borrowers and the Bank Agents.
(d) AGENT'S FEES. The Borrowers shall pay to the Agent an
Agent's fee, as previously agreed upon among the Borrowers and the Agent.
SS.4.2. PAYMENTS.
(a) All payments of principal, interest, Reimbursement
Obligations, fees and any other amounts due hereunder or under any of the other
Loan Documents shall be made to the Agent, for the respective accounts of the
Banks and the Agent, to be received at the Agent's Head Office in immediately
available funds by 1:00 p.m. (Boston time) on any due date.
(b) All payments by the Borrowers hereunder and under any of
the other Loan Documents shall be made without setoff or counterclaim and free
and clear of and
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without deduction for any taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, compulsory loans, restrictions or conditions of any
nature now or hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein unless the Borrowers
are compelled by law to make such deduction or withholding. If any such
obligation is imposed upon the Borrowers with respect to any amount payable by
them hereunder or under any of the other Loan Documents, the Borrowers will pay
to the Agent, for the account of the Banks or (as the case may be) the Agent, on
the date on which such amount is due and payable hereunder or under such other
Loan Document, such additional amount in Dollars as shall be necessary to enable
the Banks or the Agent to receive the same net amount which the Banks or the
Agent would have received on such due date had no such obligation been imposed
upon the Borrowers. In the event that the Borrowers are required to make such
deduction or withholding as a result of the fact that a Bank is organized
outside of the United States, such Bank shall use its reasonable best efforts to
transfer its Loans to an affiliate organized within the United States if such
transfer would have no adverse effect on such Bank or the Loans. The Borrowers
will deliver promptly to the Bank certificates or other valid vouchers for all
taxes or other charges deducted from or paid with respect to payments made by
the Borrowers hereunder or under such other Loan Document.
(c) Whenever a payment hereunder or under any of the other
Loan Documents becomes due on a day that is not a Business Day, the due date for
such payment shall be extended to the next succeeding Business Day, and interest
shall accrue during such extension; provided that any Interest Period for any
Eurodollar Loan which ends on a day that is not a Eurodollar Business Day shall
end on the next succeeding Eurodollar Business Day unless the result of such
extension would be to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the immediately preceding
Eurodollar Business Day.
SS.4.3. COMPUTATIONS.
All computations of interest on Base Rate Loans and of Commitment Fees,
Letter of Credit Fees or other fees shall, unless otherwise expressly provided
herein, be based on a 365-day year (or 366-day year, as applicable) and paid for
the actual number of days elapsed. All computations of interest on Eurodollar
Loans shall, unless otherwise expressly provided herein, be based on a 360-day
year and paid for the actual number of days elapsed.
SS.4.4. CAPITAL ADEQUACY.
If any present or future law, governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law) or the
interpretation thereof by a court or governmental authority with appropriate
jurisdiction affects the amount of capital required or expected to be maintained
by any Bank or the Agent or any corporation controlling such Bank or the Agent,
and such Bank or the Agent determines that the amount of capital required to be
maintained by it is increased by or based upon the existence of such Bank's
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or the Agent's Loans, Letter of Credit Participations or Letters of Credit, or
commitment with respect thereto, then such Bank or the Agent may notify the
Borrowers of such fact. To the extent that the costs of such increased capital
requirements are not reflected in the Base Rate (if relating to Base Rate
Loans), the Borrowers and such Bank or (as the case may be) the Agent shall
thereafter attempt to negotiate in good faith, within thirty (30) days of the
day on which the Borrowers receive such notice, an adjustment payable hereunder
that will adequately compensate such Bank or the Agent in light of these
circumstances. If the Borrowers and such Bank or the Agent are unable to agree
to such adjustment within thirty (30) days of the date on which the Borrowers
receive such notice, then commencing on the date of such notice (but not earlier
than the effective date of any such increased capital requirement), the fees
payable hereunder shall increase by an amount that will, in such Bank's or the
Agent's reasonable determination, provide adequate compensation. Each Bank and
the Agent shall allocate such cost increases among its customers in good faith
and on an equitable basis.
SS.4.5. CERTIFICATE.
A certificate setting forth any additional amounts payable pursuant to
ss.4.4 and a brief explanation of such amounts which are due, submitted by any
Bank or the Agent to the Borrowers, shall be prima facie evidence that such
amounts are due and owing.
SS.4.6. INTEREST AFTER DEFAULT.
After and during the continuance of an Event of Default, interest on
the Loans (and any overdue amounts payable hereunder or under any of the other
Loan Documents) shall bear interest compounded monthly and payable on demand at
a rate per annum equal to the Base Rate plus the Applicable Base Rate Margin
plus two (2) percentage points (2.00%) until such amount shall be paid in full
(after, as well as before, judgment).
SS.4.7. INTEREST LIMITATION.
Notwithstanding any other term of this Credit Agreement or any
Revolving Credit Note, Swing Line Note or any other document referred to herein
or therein, the maximum amount of interest which may be charged to or collected
from any person liable hereunder or under any Revolving Credit Note or any Swing
Line Note by any Bank shall be absolutely limited to, and shall in no event
exceed, the maximum amount of interest which could lawfully be charged or
collected under applicable law (including, to the extent applicable, the
provisions of Section 5197 of the Revised Statutes of the United States of
America, as amended, 12 U.S.C. Section 85, as amended), so that the maximum of
all amounts constituting interest under applicable law, howsoever computed,
shall never exceed as to any Person liable therefor such lawful maximum, and any
term of this Credit Agreement, the Revolving Credit Notes, the Swing Line Note,
the Letter of Credit Applications, or any other document referred to herein or
therein which could be construed as providing for interest in excess of
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such lawful maximum shall be and hereby is made expressly subject to and
modified by the provisions of this paragraph.
SS.4.8. EURODOLLAR INDEMNITY.
The Borrowers agree to indemnify the Banks and the Agent and to hold
them harmless from and against any loss, cost or expenses that the Banks and the
Agent may sustain or incur as a consequence of (a) default by the Borrowers in
payment of the principal amount of or any interest on any Eurodollar Loans as
and when due and payable, including any such loss or expense arising from
interest or fees payable by any Bank or the Agent to lenders of funds obtained
by it in order to maintain its Eurodollar Loans, (b) a prepayment of principal
on any Eurodollar Loan, including prepayments which are the result of
acceleration by the Banks, or (c) failure by the Borrowers to make a borrowing
or conversion after the Borrowers have given (or are deemed to have given)
notice pursuant to ss.2.5 or ss.2.6, or (d) the making of any payment of a
Eurodollar Loan or the making of any conversion of any such Eurodollar Loan to a
Base Rate Loan on a day that is not the last day of the applicable Interest
Period with respect thereto, including interest or fees payable by any Bank to
lenders of funds obtained by it in order to maintain any such Loans. Such loss
or reasonable expense shall include an amount equal to (i) the excess, if any,
as reasonably determined by each Bank of its cost of obtaining the funds for the
Eurodollar Loan being paid, prepaid, converted, not converted, or not borrowed,
as the case may be (based on the Eurodollar Rate) for the period from the date
of such payment, prepayment, conversion, or failure to borrow or convert, as the
case may be, to the last day of the Interest Period for such Loan (or, in the
case of a failure to borrow, the Interest Period for the Loan which would have
commenced on the date of such failure to borrow) over (ii) the amount of
interest (as reasonably determined by such Bank) that would be realized by such
Bank in reemploying the funds so paid, prepaid, converted, or not borrowed,
converted, or prepaid for such period or Interest Period, as the case may be,
which determinations shall be conclusive absent manifest error.
SS.4.9. ILLEGALITY; INABILITY TO DETERMINE EURODOLLAR RATE.
Notwithstanding any other provision of this Credit Agreement, if (a)
the introduction of, any change in, or any change in the interpretation of, any
law or regulation applicable to the Agent or any Bank shall make it unlawful, or
any central bank or other governmental authority having jurisdiction thereof
shall assert that it is unlawful, for any Bank or the Agent to perform its
obligations in respect of any Eurodollar Loans, or (b) if any Bank or the Agent
shall determine with respect to Eurodollar Loans that (i) by reason of
circumstances affecting the Eurodollar interbank market generally, adequate and
reasonable methods do not exist for ascertaining the Eurodollar Rate which would
otherwise be applicable during any Interest Period, or (ii) deposits of Dollars
in the relevant amount for the relevant Interest Period are not available to
such Bank or the Agent in any Eurodollar interbank market, or (iii) the
Eurodollar Rate does not or will not accurately reflect the cost to such Bank or
the Agent of obtaining or maintaining the applicable Eurodollar Loans during any
Interest Period, then such Bank or the Agent shall promptly give telephonic,
telex or cable notice of such
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determination to the Parent (which notice shall be conclusive and binding upon
the Borrowers). Upon such notification by such Bank or the Agent, the obligation
of such Bank or the Agent to make Eurodollar Loans shall be suspended until such
Bank or the Agent determines that such circumstances no longer exist, and the
outstanding Eurodollar Loans shall continue to bear interest at the applicable
rate based on the Eurodollar Rate until the end of the applicable Interest
Period or such earlier periods as may be required by law, and thereafter shall
be deemed converted to Base Rate Loans in equal principal amounts.
SS.4.10. ADDITIONAL COSTS, ETC.
If any present or future applicable law, which expression, as used
herein, includes statutes, rules and regulations thereunder and interpretations
thereof by any competent court or by any governmental or other regulatory body
or official charged with the administration or the interpretation thereof and
requests, directives, instructions and notices at any time or from time to time
hereafter made upon or otherwise issued to any Bank by any central bank or other
fiscal, monetary or other authority (whether or not having the force of law),
shall:
(a) subject any Bank or the Agent to any tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature with respect to this
Credit Agreement, the other Loan Documents, any Letters of Credit or
participations therein, such Bank's Commitment or the Loans or participations
therein (other than taxes based upon or measured by the income or profits of
such Bank or the Agent), or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to any Bank of the principal
of or the interest on any Loans or any other amounts payable to any Bank or the
Agent under this Credit Agreement or any of the other Loan Documents, or
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Credit Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held by, or
deposits in or for the account of, or loans by, or letters of credit issued by
or participated in, or commitments of an office of any Bank, or
(d) impose on any Bank or the Agent any other conditions or
requirements with respect to this Credit Agreement, the other Loan Documents,
any Letters of Credit, the Loans, such Bank's Commitment, or any class of loans,
letters of credit or commitments of which any of the Loans or such Bank's
Commitment forms a part, and the result of any of the foregoing is:
(i) to increase the cost to any Bank of making, funding, issuing,
renewing, extending or maintaining any of the Loans or such Bank's Commitment or
any Letter of Credit or participations therein, or
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(ii) to reduce the amount of principal, interest, Reimbursement
Obligation or other amount payable to such Bank or the Agent hereunder on
account of such Bank's Commitment, any Letter of Credit or any of the Loans or
any participations therein, or
(iii) to require such Bank or the Agent to make any payment or to
forego any interest or Reimbursement Obligation or other sum payable hereunder,
the amount of which payment or foregone interest or Reimbursement Obligation or
other sum is calculated by reference to the gross amount of any sum receivable
or deemed received by such Bank or the Agent from the Borrowers hereunder;
then, and in each such case, the Borrowers will, upon demand made by such Bank
at any time and from time to time and as often as the occasion therefor may
arise, pay to such Bank such additional amounts as will be sufficient to
compensate such Bank for such additional cost, reduction, payment or foregone
interest or other sum (after such Bank shall have allocated the same fairly and
equitably among all customers of any class generally affected thereby).
SS.4.11. REPLACEMENT OF BANKS.
If any Bank (an "Affected Bank") (i) makes demand upon the Borrowers for (or if
the Borrowers are otherwise required to pay) amounts pursuant to ss.ss.4.4 or
4.10 or (ii) is unable to make or maintain Eurodollar Loans as a result of a
condition described in ss.4.9, the Borrowers may, within 90 days of receipt of
such demand or notice (or the occurrence of such other event causing the
Borrowers to be required to pay such compensation or causing ss.4.9 to be
applicable), by notice in writing to the Agent and such Affected Bank (a
"Replacement Notice") obtain a replacement bank satisfactory to the Agent (the
"Replacement Bank") to assume the Affected Bank's Commitment by (A) requesting
the non-Affected Banks to acquire and assume all of the Affected Bank's Loans
and Commitment, as provided herein, but none of such Banks shall be under an
obligation to do so; or (B) designating a Replacement Bank reasonably
satisfactory to the Agent. If any satisfactory Replacement Bank shall be
obtained, and/or any of the non-Affected Banks shall agree to acquire and assume
all of the Affected Bank's Loans and Commitment, then such Affected Bank shall,
so long as no Event of Default shall have occurred and be continuing, assign, in
accordance with ss.17, all of its Commitment, Loans, Revolving Credit Notes and
other rights and obligations under this Credit Agreement and all other Loan
Documents to such Replacement Bank or non-Affected Banks, as the case may be, in
exchange for payment of the principal amount so assigned and all interest and
fees accrued on the amount so assigned, plus all other Obligations then due and
payable to the Affected Bank; provided, however, that (i) such assignment shall
be without recourse, representation or warranty and shall be on terms and
conditions reasonably satisfactory to such Affected Bank and such Replacement
Bank and/or non-Affected Banks, as the case may be, and (ii) prior to any such
assignment, the Borrowers shall have paid to such Affected Bank all amounts
properly demanded and unreimbursed under ss.ss.4.4, 4.8, 4.9 and 4.10. Upon the
effective date of such
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assignment, the Borrowers shall issue replacement Revolving Credit Notes to such
Replacement Bank and/or non-Affected Banks, as the case may be, and such
institution shall become a "Bank" for all purposes under this Credit Agreement
and the other Loan Documents.
SS.4.12. CONCERNING JOINT AND SEVERAL LIABILITY OF THE BORROWERS.
(a) Each of the Borrowers is accepting joint and several liability
hereunder and under the other Loan Documents in consideration of the financial
accommodations to be provided by the Banks under this Credit Agreement, for the
mutual benefit, directly and indirectly, of each of the Borrowers and in
consideration of the undertakings of each other Borrower to accept joint and
several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably
and unconditionally accepts, not merely as a surety but also as a co-debtor,
joint and several liability with the other Borrowers with respect to the payment
and performance of all of the Obligations (including, without limitation, any
Obligations arising under this ss.4.12), it being the intention of the parties
hereto that all of the Obligations shall be the joint and several Obligations of
each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make
any payment with respect to any of the Obligations as and when due or to perform
any of the Obligations in accordance with the terms thereof, then in each such
event the other Borrowers will make such payment with respect to, or perform,
such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of
this ss.4.12 constitute full recourse Obligations of each of the Borrowers
enforceable against each such Person to the full extent of its properties and
assets, irrespective of the validity, regularity or enforceability of this
Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement,
each of the Borrowers hereby waives notice of acceptance of its joint and
several liability, notice of any Loans made under this Credit Agreement, notice
of any action at any time taken or omitted by the Banks under or in respect of
any of the Obligations, and, generally, to the extent permitted by applicable
law, all demands, notices and other formalities of every kind in connection with
this Credit Agreement. Each Borrower hereby waives all defenses which may be
available by virtue of any valuation, stay, moratorium law or other similar law
now or hereafter in effect, any right to require the marshaling of assets of the
Borrowers and any other entity or Person primarily or secondarily liable with
respect to any of the Obligations, and all suretyship defenses generally. Each
of the Borrowers hereby assents to, and waives notice of, any extension or
postponement of the time for the payment of any of the Obligations, the
acceptance of any payment of any of the Obligations, the acceptance of any
partial payment thereon, any waiver, consent or other action or acquiescence by
the Banks at any time or times in respect of any default by any of the Borrowers
in the performance or
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satisfaction of any term, covenant, condition or provision of this Credit
Agreement, any and all other indulgences whatsoever by the Banks in respect of
any of the Obligations, and the taking, addition, substitution or release, in
whole or in part, at any time or times, of any security for any of the
Obligations or the addition, substitution or release, in whole or in part, of
any of the Borrowers. Without limiting the generality of the foregoing, each of
the Borrowers assents to any other action or delay in acting or failure to act
on the part of the Banks with respect to the failure by any of the Borrowers to
comply with any of its respective Obligations, including, without limitation,
any failure strictly or diligently to assert any right or to pursue any remedy
or to comply fully with applicable laws or regulations thereunder, which might,
but for the provisions of this ss.4.12, afford grounds for terminating,
discharging or relieving any of the Borrowers, in whole or in part, from any of
its Obligations under this ss.4.12, it being the intention of each of the
Borrowers that, so long as any of the Obligations hereunder remain unsatisfied,
the Obligations of such Borrowers under this ss.4.12 shall not be discharged
except by performance and then only to the extent of such performance. The
Obligations of each of the Borrowers under this ss.4.12 shall not be diminished
or rendered unenforceable by any winding up, reorganization, arrangement,
liquidation, re-construction or similar proceeding with respect to any of the
Borrowers or the Banks. The joint and several liability of the Borrowers
hereunder shall continue in full force and effect notwithstanding any
absorption, merger, amalgamation or any other change whatsoever in the name,
membership, constitution or place of formation of any of the Borrowers or the
Banks.
(f) Each of the Borrowers hereby agrees that it will not enforce any of
its rights of contribution or subrogation against the other Borrowers with
respect to any liability incurred by it hereunder or under any of the other Loan
Documents, any payments made by it to any of the Banks or the Agent with respect
to any of the Obligations or any collateral security therefor until such time as
all of the Obligations have been irrevocably paid in full in cash. Any claim
which any Borrower may have against any other Borrower with respect to any
payments to the Banks or the Agent hereunder or under any other Loan Document
are hereby expressly made subordinate and junior in right of payment, without
limitation as to any increases in the Obligations arising hereunder or
thereunder, to the prior payment in full of the Obligations and, in the event of
any insolvency, bankruptcy, receivership, liquidation, reorganization or other
similar proceeding under the laws of any jurisdiction relating to any Borrower,
its debts or its assets, whether voluntary or involuntary, all such Obligations
shall be paid in full before any payment or distribution of any character,
whether in cash, securities or other property, shall be made to any other
Borrower therefor.
(g) Each of Borrowers hereby agrees that the payment of any amounts due
with respect to the indebtedness owing by any Borrower to any other Borrower is
hereby subordinated to the prior payment in full in cash of the Obligations.
Each Borrower hereby agrees that after the occurrences and during the
continuance of any Default or Event of Default, such Borrower will not demand,
▇▇▇ for or otherwise attempt to collect any indebtedness of any other Borrower
owing to such Borrower until the Obligations shall have been paid in full in
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cash. If, notwithstanding the foregoing sentence, such Borrower shall collect,
enforce or receive any amounts in respect of such indebtedness, such amounts
shall be collected, enforced, received by such Borrower as trustee for the Agent
and be paid over to the Agent for the pro rata accounts of the Banks to be
applied to repay the Obligations.
(h) The provisions of this ss.4.12 are made for the benefit of the
Banks and their successors and assigns, and may be enforced in good faith by
them from time to time against any or all of the Borrowers as often as the
occasion therefor may arise and without requirement on the part of the Banks
first to marshal any of their claims or to exercise any of their rights against
any other Borrower or to exhaust any remedies available to them against any
other Borrower or to resort to any other source or means of obtaining payment of
any of the Obligations hereunder or to elect any other remedy. The provisions of
this ss.4.12 shall remain in effect until all of the Obligations shall have been
paid in full or otherwise fully satisfied. If at any time, any payment, or any
part thereof, made in respect of any of the Obligations, is rescinded or must
otherwise be restored or returned by the Banks upon the insolvency, bankruptcy
or reorganization of any of the Borrowers or is repaid in good faith settlement
of a pending or threatened avoidance claim, or otherwise, the provisions of this
ss.4.12 will forthwith be reinstated in effect, as though such payment had not
been made.
(i) Each of the Borrowers hereby appoints the Parent, the Parent hereby
agrees, to act as its representative and authorized ▇▇▇▇▇▇ with respect to any
notices, demands, communications or requests under this Credit Agreement or the
other Loan Documents, including, without limitation, with respect to Loan and
Letter of Credit Requests and Compliance Certificates and pursuant to ss.19 of
this Credit Agreement.
SS.5. REPRESENTATIONS AND WARRANTIES.
Each of the Borrowers jointly and severally represents and warrants to
the Banks that on and as of the date of this Credit Agreement, each Drawdown
Date, and the date of issuance of any Letter of Credit (with any disclosure on a
schedule pursuant to this ss.5 applying to all relevant representations and
warranties, regardless of whether such schedule is referenced in each relevant
representation):
SS.5.1. CORPORATE AUTHORITY.
(a) INCORPORATION; GOOD STANDING. Each Borrower (i) is a corporation
duly organized, validly existing and in good standing or in current status under
the laws of its respective state of incorporation, (ii) has all requisite
corporate power to own its property and conduct its business as now conducted
and as presently contemplated, and (iii) is in good standing as a foreign
corporation and is duly authorized to do business in each jurisdiction in which
its property or business as presently conducted or contemplated makes such
qualification necessary except where a failure to be so qualified would not have
a materially adverse effect on the business, assets or financial condition of
such Borrower.
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(b) AUTHORIZATION. The execution, delivery and performance of the Loan
Documents and the transactions contemplated hereby and thereby (i) are within
the corporate authority of each Borrower, (ii) have been duly authorized by all
necessary corporate proceedings, (iii) do not conflict with or result in any
breach or contravention of any provision of law, statute, rule or regulation to
which any Borrower is subject or any judgment, order, writ, injunction, license
or permit applicable to any Borrower, (iv) do not conflict with any provision of
the corporate charter or bylaws of any Borrower, and (v) do not conflict with
any provision of any agreement or other instrument binding upon any Borrower in
a manner which is reasonably likely to have a materially adverse effect on the
Borrowers taken as a whole.
(c) ENFORCEABILITY. The execution, delivery and performance of the Loan
Documents will result in valid and legally binding obligations of the Borrowers
enforceable against each in accordance with the respective terms and provisions
hereof and thereof, except as enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting
generally the enforcement of creditors' rights and except to the extent that
availability of the remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding therefor may
be brought.
SS.5.2. GOVERNMENTAL APPROVALS.
The execution, delivery and performance by the Borrowers of the Loan
Documents and the transactions contemplated hereby and thereby do not require
any approval or consent of, or filing with, any governmental agency or authority
other than those already obtained except filings required by the Security
Documents which may not have been completed on the Closing Date but executed
copies of which, if applicable, have been delivered to the Agent in form and
substance satisfactory to the Agent.
SS.5.3. TITLE TO PROPERTIES; LEASES.
The Borrowers own all of the assets reflected in the consolidated
balance sheets as at the Balance Sheet Date or acquired since that date (except
property and assets sold or otherwise disposed of in the ordinary course of
business since that date), subject to no mortgages, capitalized leases,
conditional sales agreements, title retention agreements, liens or other
encumbrances except Permitted Liens.
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SS.5.4. FINANCIAL STATEMENTS; SOLVENCY.
(a) There has been furnished to each of the Banks audited
consolidated financial statements of the Borrowers dated the Balance Sheet Date.
Said financial statements have been prepared in accordance with GAAP and fairly
present in all material respects the financial condition of the Borrowers on a
consolidated basis, as at the close of business on the date thereof and the
results of operations for the period then ended. There are no contingent
liabilities of the Borrowers involving material amounts, known to the officers
of the Borrowers, which have not been disclosed in said balance sheets and the
related notes thereto or otherwise in writing to the Banks.
(b) The Borrowers on a consolidated basis (both before and
after giving effect to the transactions contemplated by this Credit Agreement)
are and will be solvent (i.e., they have assets having a fair value in excess of
the amount required to pay their probable liabilities on their existing debts as
they become absolute and matured) and have, and expect to have, the ability to
pay their debts from time to time incurred in connection therewith as such debts
mature.
(c) Each Borrower has a fiscal year which is the twelve months
ending on December 31 of each calendar year.
SS.5.5. NO MATERIAL CHANGES, ETC.
Since the Balance Sheet Date, there have occurred no material adverse
changes in the financial condition or businesses of the Borrowers, taken as a
whole, as shown on or reflected in the consolidated balance sheet of the
Borrowers as of the Balance Sheet Date, or the consolidated statement of income
for the fiscal period then ended. Since the Balance Sheet Date, there have not
been any Distributions other than as permitted by ss.7.6 hereof.
SS.5.6. PERMITS, FRANCHISES, PATENTS, COPYRIGHTS, ETC.
Each Borrower possess all franchises, patents, copyrights, trademarks,
trade names, licenses and permits, and rights in respect of the foregoing,
adequate for the conduct of their businesses substantially as now conducted
without known conflict with any rights of others.
SS.5.7. LITIGATION.
Except as shown on Schedules 5.7 and 5.16 hereto, there are no actions,
suits, proceedings or investigations of any kind pending or, to the knowledge of
any Borrower, threatened against any Borrower before any court, tribunal or
administrative agency or board which, if adversely determined, might, either in
any individual case or in the aggregate, materially adversely affect the
properties, assets, financial condition or business of the Borrowers, taken as a
whole, or materially impair the right of the Borrowers, taken as a whole, to
carry on business substantially as now conducted, or result in any material
liability not adequately
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covered by insurance, or for which adequate reserves are not maintained on the
consolidated balance sheet or which question the validity of any of the Loan
Documents or any action taken or to be taken pursuant hereto or thereto.
SS.5.8. NO MATERIALLY ADVERSE CONTRACTS, ETC.
No Borrower is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation which in the
judgment of the Borrowers' officers has or is expected in the future to have a
materially adverse effect on the business, assets or financial condition of the
Borrowers, taken as a whole. No Borrower is a party to any contract or agreement
which in the judgment of the Borrowers' officers has or is expected to have any
materially adverse effect on the business of the Borrowers, taken as a whole.
SS.5.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC.
No Borrower is violating any material provision of (a) its charter
documents or by-laws or (b) any agreement or instrument by which it may be
subject or by which it or any of its properties may be bound or any decree,
order, judgment, or any statute, license, rule or regulation in a manner which
could have a materially adverse effect on the financial condition, properties or
business of the Borrowers, taken as a whole.
SS.5.10. TAX STATUS.
Each Borrower has made or filed all federal and state income and all
other tax returns, reports and declarations required by any jurisdiction to
which any of them is subject (unless and only to the extent that such Borrower
has set aside on its books provisions reasonably adequate for the payment of all
unpaid and unreported taxes); and have paid all taxes and other governmental
assessments and charges that are material in amount, shown or determined to be
due on such returns, reports and declarations, except those being contested in
good faith and by appropriate proceedings; and have set aside on their books
provisions reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations apply.
There are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of the Borrowers know of no
basis for any such claim.
SS.5.11. NO EVENT OF DEFAULT.
No Default or Event of Default has occurred and is continuing.
SS.5.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS.
No Borrower is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company," as such terms are
defined in the Public Utility Holding Company Act of 1935; nor is any Borrower a
"registered investment company," or
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an "affiliated company" or a "principal underwriter" of a "registered investment
company," as such terms are defined in the Investment Company Act of 1940, as
amended.
SS.5.13. ABSENCE OF FINANCING STATEMENTS, ETC.
Except with respect to Permitted Liens, there is no financing
statement, security agreement, chattel mortgage, real estate mortgage or other
document filed or recorded with any filing records, registry, or other public
office, which purports to cover, affect or give notice of any present or
possible future lien on, or security interest in, any assets or property of any
Borrower, or any rights relating thereto, other than financing statements
covering assets acquired in acquisitions permitted under ss.7.4.1 for which the
Borrowers are in the process of obtaining termination statements or amendments
releasing the acquired assets covered thereunder, provided that the Borrowers
have evidence in each case that the obligations secured by such liens have been
discharged.
SS.5.14. EMPLOYEE BENEFIT PLANS.
(a) Each Employee Benefit Plan and each Guaranteed Pension Plan has
been maintained and operated in compliance in all material respects with the
provisions of ERISA and, to the extent applicable, the Code, including but not
limited to the provisions thereunder respecting prohibited transactions and the
bonding of fiduciaries and other persons handling plan funds as required by
ss.412 of ERISA. Each Borrower has heretofore delivered to the Agent the most
recently completed annual report, Form 5500, with all required attachments, and
actuarial statement required to be submitted under ss.103(d) of ERISA, with
respect to each Guaranteed Pension Plan.
(b) No Employee Benefit Plan, which is an employee welfare benefit plan
within the meaning of ss.3(1) or ss.3(2)(B) of ERISA, provides benefit coverage
subsequent to termination of employment, except as required by Title I, Part 6
of ERISA or the applicable state insurance laws. A Borrower may terminate each
such Plan at any time (or at any time subsequent to the expiration of any
applicable bargaining agreement) in the discretion of such Borrower without
liability to any Person other than for claims arising prior to termination.
(c) Each contribution required to be made to a Guaranteed Pension Plan,
whether required to be made to avoid the incurrence of an accumulated funding
deficiency, the notice or lien provisions of ss.302(f) of ERISA, or otherwise,
has been timely made. No waiver of an accumulated funding deficiency or
extension of amortization periods has been received with respect to any
Guaranteed Pension Plan, and no Borrower nor any ERISA Affiliate is obligated to
or has posted security in connection with an amendment to a Guaranteed Pension
Plan pursuant to ss.307 of ERISA or ss.401(a)(29) of the Code. No liability to
the PBGC (other than required insurance premiums, all of which have been paid)
has been incurred by any Borrower or any ERISA Affiliate with respect to any
Guaranteed Pension Plan and there has not been any ERISA Reportable Event (other
than an ERISA Reportable
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Event as to which the requirement of 30 days notice has been waived), or any
other event or condition which presents a material risk of termination of any
Guaranteed Pension Plan by the PBGC. Based on the latest valuation of each
Guaranteed Pension Plan (which in each case occurred within twelve months of the
date of this representation), and on the actuarial methods and assumptions
employed for that valuation, the aggregate benefit liabilities of all such
Guaranteed Pension Plans within the meaning of ss.4001 of ERISA did not exceed
the aggregate value of the assets of all such Guaranteed Pension Plans,
disregarding for this purpose the benefit liabilities and assets of any
Guaranteed Pension Plan with assets in excess of benefit liabilities.
(d) No Borrower nor any ERISA Affiliate has incurred any material
liability (including secondary liability) to any Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan under ss.4201
of ERISA or as a result of a sale of assets described in ss.4204 of ERISA. No
Borrower nor any ERISA Affiliate has been notified that any Multiemployer Plan
is in reorganization or insolvent under and within the meaning of ss.4241 or
ss.4245 of ERISA or is at risk of entering reorganization or becoming insolvent,
or that any Multiemployer Plan intends to terminate or has been terminated under
ss.4041A of ERISA.
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SS.5.15. USE OF PROCEEDS.
SS.5.15.1. GENERAL.
The proceeds of the Loans shall be used solely as follows:
(a) to finance acquisitions permitted pursuant to ss.7.4; and (b) for capital
expenditures, working capital, and general corporate purposes. The Borrowers
will use Letters of Credit solely for working capital and general corporate
purposes.
SS.5.15.2. REGULATIONS U AND X.
No portion of any Loan is to be used, and no portion of any
Letter of Credit is to be obtained, for the purpose of purchasing or carrying
any "margin security" or "margin stock" as such terms are used in Regulations U
and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts
221 and 224.
SS.5.15.3. INELIGIBLE SECURITIES.
No portion of the proceeds of any Loans is to be used, and no
portion of any Letter of Credit is to be obtained, for the purpose of (a)
knowingly purchasing, or providing credit support for the purchase of,
Ineligible Securities from a Section 20 Subsidiary during any period in which
such Section 20 Subsidiary makes a market in such Ineligible Securities, (b)
knowingly purchasing, or providing credit support for the purchase of, during
the underwriting or placement period, any Ineligible Securities being
underwritten or privately placed by a Section 20 Subsidiary, or (c) making, or
providing credit support for the making of, payments of principal or interest on
Ineligible Securities underwritten or privately placed by a Section 20
Subsidiary and issued by or for the benefit of the Borrowers or other Affiliate
of the Borrowers.
SS.5.16. ENVIRONMENTAL COMPLIANCE.
Each Borrower has investigated the past and present condition
and usage of the Real Property and the operations conducted thereon and, based
upon such diligent investigation, has determined that, except as shown on
Schedule 5.16:
(a) No Borrower, nor any operator of the Borrowers'
properties, is in violation, or alleged violation, of any judgment, decree,
order, law, permit, license, rule or regulation pertaining to environmental
matters, including without limitation, those arising under RCRA, CERCLA, the
Superfund Amendments and Reauthorization Act of 1986, the Federal Clean Water
Act, the Federal Clean Air Act, the Toxic Substances Control Act, or any state
or local statute, regulation, ordinance, order or decree relating to health,
safety or the environment (the "Environmental Laws"), which violation would have
a material adverse effect on the business, assets or financial condition of the
Borrowers on a consolidated basis.
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(b) No Borrower has received notice from any third
party, including, without limitation: any federal, state or local governmental
authority, (i) that any of the Borrowers has been identified by the United
States Environmental Protection Agency ("EPA") as a potentially responsible
party under CERCLA with respect to a site listed on the National Priorities
List, 40 C.F.R. Part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇; (ii) that any hazardous waste, as defined
by 42 U.S.C. ss.6903(5), any hazardous substances as defined by 42 U.S.C.
ss.9601(14), any pollutant or contaminant as defined by 42 U.S.C. ss.9601(33) or
any toxic substance, oil or hazardous materials or other chemicals or substances
regulated by any Environmental Laws ("Hazardous Substances") which any of the
Borrowers has generated, transported or disposed of has been found at any site
at which a federal, state or local agency or other third party has conducted or
has ordered that any Borrower conduct a remedial investigation, removal or other
response action pursuant to any Environmental Law; or (iii) that it is or shall
be a named party to any claim, action, cause of action, complaint, legal or
administrative proceeding arising out of any third party's incurrence of costs,
expenses, losses or damages of any kind whatsoever in connection with the
release of Hazardous Substances.
(c) Except where it would not have a material adverse
effect on the Borrowers taken as a whole, (i) no portion of the Real Property
has been used for the handling, processing, storage or disposal of Hazardous
Substances; and no underground tank or other underground storage receptacle for
Hazardous Substances is located on such properties; (ii) in the course of any
activities conducted by the Borrowers, or operators of the Real Property, no
Hazardous Substances have been generated or are being used on such properties in
violation of any Environmental Law; (iii) there have been no unpermitted
Releases or threatened Releases of Hazardous Substances on, upon, into or from
the Real Property; (iv) to the best of the Borrowers' knowledge, there have been
no Releases on, upon, from or into any real property in the vicinity of the Real
Property which, through soil or groundwater contamination, may have come to be
located on such properties; and (v) in addition, when required under applicable
Environmental Laws, any Hazardous Substances that have been generated on the
Real Property have been transported offsite only by carriers having an
identification number issued by the EPA, treated or disposed of only by
treatment or disposal facilities maintaining valid permits as required under
applicable Environmental Laws, which transporters and facilities, to the best of
the Borrowers' knowledge, have been and are operating in material compliance
with such permits and applicable Environmental Laws.
(d) None of the Real Property is or shall be subject
to any applicable environmental clean-up responsibility law or environmental
restrictive transfer law or regulation, by virtue of the transactions set forth
herein and contemplated hereby.
SS.5.17. PERFECTION OF SECURITY INTERESTS.
Except as contemplated by ss.6.19, all filings, assignments, pledges
and deposits of documents or instruments have been made and all other actions
have been taken that are necessary or advisable under applicable law to
establish and perfect the Agent's security interest in the Collateral. The
Collateral and the Agent's rights with respect to the Collateral
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are not subject to any setoff, claims, withholdings or other defenses. The
Borrowers' rights in the Collateral are free from any lien, security interest,
encumbrance and any other claim or demand, except for Permitted Liens.
SS.5.18. TRANSACTIONS WITH AFFILIATES.
Except as set forth on Schedule 5.18 and arm's length transactions
pursuant to which a Borrower makes payments in the ordinary course of business
upon terms no less favorable than such Borrower could obtain from third parties,
none of the officers, directors, or employees of any Borrower is presently a
party to any transaction with any Borrower (other than for services as
employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any officer, director or such employee or, to the knowledge of any
Borrower, any corporation, partnership, trust or other entity in which any
officer, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner.
SS.5.19. SUBSIDIARIES.
Schedule 2 sets forth a complete and accurate list of the Subsidiaries
of the Parent, including the name of each Subsidiary, the location of its chief
executive office, its tax identification number, and its jurisdiction of
incorporation, together with the number of authorized and outstanding shares of
each Subsidiary. Each Subsidiary listed on Schedule 2 is wholly owned by the
Parent or a Subsidiary of the Parent and is a Borrower hereunder, 100% of the
assets and stock or other equity interests of which have been pledged to the
Agent on behalf of the Banks pursuant to the Security Documents. The Parent has
good and marketable title to all of the shares or other equity interests it
purports to own of each such Subsidiary, free and clear in each case of any lien
or encumbrance. All such shares have been duly issued and are fully paid and
non-assessable. None of the Borrowers is engaged in any joint venture or
partnership with any other Person.
SS.5.20. TRUE COPIES OF CHARTER AND OTHER DOCUMENTS.
Each Borrower has furnished the Agent copies, in each case true and
complete as of the Closing Date, of its (a) charter and other incorporation
documents and (b) by-laws, each including any amendments thereto.
SS.5.21. DISCLOSURE.
None of this Credit Agreement, nor any of the other Loan Documents, nor
any document or information furnished by the Borrowers in connection therewith
contains any untrue statement of a material fact or omits to state a material
fact (known to any Borrower in the case of any document or information not
furnished by the Borrowers) necessary in order to make the statements herein or
therein not misleading. There is no fact known to any
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Borrower which materially adversely affects, or which is reasonably likely in
the future to materially adversely affect, the business, assets, or financial
condition of any Borrower, exclusive of effects resulting from changes in
general economic conditions, legal standards or regulatory conditions.
SS.5.22. BANK ACCOUNTS.
The Perfection Certificates set forth the account numbers and location of all
bank accounts of each Borrower.
SS.5.23. CAPITALIZATION.
(a) As of the Closing Date, the authorized capital stock of
the Parent consists of 250,000,000 shares of common stock (par value $0.01 per
share) of which 30,118,694 shares are outstanding as of the Closing Date, and
5,000,000 shares of preferred stock (par value $0.01 per share) of which no
shares are outstanding as of the Closing Date. All of such outstanding shares
are fully paid and non-assessable.
(b) The shares of the capital stock of the Borrowers (other
than the Parent) pledged to the Agent pursuant to the Stock Pledge Agreements
are held of record as set forth on Annex A to the Stock Pledge Agreements. Such
capital stock constitutes, of record, 100% of the outstanding capital stock of
each such Subsidiary, and, to the Borrowers' knowledge, on a fully-diluted
basis, 100% of such outstanding capital stock.
SS.5.24. YEAR 2000 COMPLIANCE.
The Borrowers have reviewed the areas within their business and operations which
could be adversely affected by, and have developed or are developing a program
to address on a timely basis, the Year 2000 Compliance. Based on such review and
program, the Year 2000 Compliance will not have a material adverse effect on
their business and operations.
SS.5.25. SUBORDINATED DEBT.
The incurrence of Senior Funded Debt will not be prohibited pursuant to
the terms of the Subordinated Debt.
SS.6. AFFIRMATIVE COVENANTS OF THE BORROWERS.
Each of the Borrowers jointly and severally covenants and agrees that,
so long as any Loan, Revolving Credit Note, Swing Line Note or other Obligation
is outstanding or the Banks have any obligation to make Loans or participate in
Loans or Letters of Credit, or the Agent has any obligation to issue, extend, or
renew any Letters of Credit:
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SS.6.1. PUNCTUAL PAYMENT.
The Borrowers will duly and punctually pay or cause to be paid the
principal and interest on the Loans, all Reimbursement Obligations, fees and
other amounts provided for in this Credit Agreement and the other Loan
Documents, all in accordance with the terms of this Credit Agreement and such
other Loan Documents.
SS.6.2. MAINTENANCE OF OFFICES.
The Parent will maintain its chief executive office at ▇▇▇ ▇. ▇▇▇ ▇▇▇▇
▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and each Borrower will
maintain its chief executive offices at the location set forth on Schedule 2, or
at such other place in the United States as any Borrower shall designate upon 30
days' prior written notice to the Agent.
SS.6.3. RECORDS AND ACCOUNTS.
Each Borrower will (i) keep true and accurate records and books of account
in which full, true and correct entries will be made in accordance with GAAP,
(ii) maintain adequate accounts and reserves for all taxes (including income
taxes), depreciation, depletion, obsolescence and amortization of its
properties, contingencies, and other reserves, and (iii) at all times engage
Accountants as the independent certified public accountants of the Borrowers.
SS.6.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION.
The Borrowers will deliver to the Banks:
(a) as soon as practicable, but, in any event not later 90 days after
the end of each fiscal year of the Parent, the consolidated and consolidating
balance sheets of the Parent as at the end of such year, statements of cash
flows, and the related consolidated and consolidating statements of operations,
each setting forth in comparative form the figures for the previous fiscal year,
all such consolidated and consolidating financial statements to be in reasonable
detail, prepared in accordance with GAAP and, with respect to the consolidated
financial statements, certified by the Accountants;
(b) as soon as practicable, but in any event not later than 45 days
after the end of each fiscal quarter of the Borrowers, copies of the
consolidated and consolidating balance sheets and statement of operations of the
Parent as at the end of such quarter, subject to year end adjustments, the
related statement of cash flows, all in reasonable detail and prepared in
accordance with GAAP, with a certification by the principal financial or
accounting officer of each Borrower (the "CFO") that the consolidated financial
statements are prepared in accordance with GAAP and fairly present the
consolidated financial condition of the Borrowers as at the close of business on
the date thereof (subject to year-end adjustments) and the results of operations
for the period then ended;
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(c) as soon as practicable, but in any event within forty-five (45)
days after the end of each month in each fiscal year of the Borrowers ending
prior to the successful completion of a Qualified Public Offering, unaudited
monthly consolidated and consolidating financial statements of the Parent for
such month, prepared in accordance with GAAP, with a certification by the CFO
that the information contained in such financial statements fairly presents the
financial condition of the Borrowers on the date thereof (subject to year-end
adjustments);
(d) simultaneously with the delivery of the financial statements
referred to in (a) and (b) above, a statement in the form of Exhibit C hereto
(the "Compliance Certificate") certified by the CFO that the Borrowers are in
compliance with the covenants contained in ss.ss.6, 7 and 8 hereof, as of the
end of the applicable period and setting forth in reasonable detail computations
evidencing such compliance, provided that if the Borrowers shall at the time of
issuance of such certificate or at any other time obtain knowledge of any
Default or Event of Default, the Borrowers shall include in such certificate or
otherwise deliver forthwith to the Banks a certificate specifying the nature and
period of existence thereof and what action the Borrowers propose to take with
respect thereto;
(e) annually or at such other time as may be requested by the Agent,
copies of the financial statements, financial projections, annual budget,
variance reports and business plan concerning the Borrowers in substantially the
same form in which such information is supplied to the boards of directors of
the Borrowers;
(f) contemporaneously with, or promptly following, the filing or
mailing thereof, copies of all material of a financial nature filed with the SEC
or sent to the stockholders of the Borrowers; and
(g) from time to time, such other financial data and other information
(including accountants' management letters) as the Banks may reasonably request.
Subject to ss.20 hereof, the Borrowers hereby authorize the Banks to
disclose any information obtained pursuant to this Credit Agreement to all
appropriate governmental regulatory authorities where required by law; provided,
however, that this authorization shall not be deemed to be a waiver of any
rights to object to the disclosure by the Banks of any such information which
the Borrowers have or may have under the federal Right to Financial Privacy Act
of 1978, as in effect from time to time.
SS.6.5. CORPORATE EXISTENCE AND CONDUCT OF BUSINESS.
Each Borrower will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence, corporate rights and
franchises and will not convert to a limited liability company except as
determined by such Borrower's Board of Directors in its reasonable discretion
and only after taking all actions that the Agent deems necessary or desirable
under applicable law to continue the perfection and preservation of
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the Agent's security interest in the Collateral and the effectiveness of this
Credit Agreement and the other Loan Documents with respect to such Borrower;
effect and maintain its foreign qualifications, licensing, domestication or
authorization except as terminated by such Borrower's Board of Directors in the
exercise of its reasonable judgment and except where the failure of a Borrower
to remain so qualified would not materially adversely impair the financial
condition of the Borrowers on a consolidated basis; use its reasonable best
efforts to comply with all applicable laws; and shall not become obligated under
any contract or binding arrangement which, at the time it was entered into would
materially adversely impair the financial condition of the Borrowers on a
consolidated basis. Each Borrower will continue to engage primarily in the
businesses now conducted by it and in related businesses.
SS.6.6. MAINTENANCE OF PROPERTIES.
The Borrowers will cause all material properties used or useful in the
conduct of their businesses to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Borrowers may be necessary so that the
businesses carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this section shall
prevent the Borrowers from discontinuing the operation and maintenance of any of
their properties if such discontinuance is, in the judgment of the Borrowers,
desirable in the conduct of their business and which does not in the aggregate
materially adversely affect the businesses of the Borrowers on a consolidated
basis.
SS.6.7. INSURANCE.
The Borrowers will maintain with financially sound and reputable insurance
companies, funds or underwriters' insurance of the kinds, covering the risks
(other than risks arising out of or in any way connected with personal liability
of any officers and directors thereof) and in the relative proportionate amounts
usually carried by reasonable and prudent companies conducting businesses
similar to that of the Borrowers, but in no event less than that required under
ss.8 of the Security Agreement. In addition, the Borrowers will furnish from
time to time, upon the Agent's request, a summary of the insurance coverage of
each of the Borrowers, which summary shall be in form and substance satisfactory
to the Agent and, if requested by the Agent, will furnish to the Agent copies of
the applicable policies.
SS.6.8. TAXES.
The Borrowers will duly pay and discharge, or cause to be paid and
discharged, before the same shall become overdue, all taxes, assessments and
other governmental charges imposed upon it and its real properties, sales and
activities, or any material part thereof, or upon the income or profits
therefrom, as well as all claims for labor, materials, or supplies, which if
unpaid might by law become a lien or charge upon any material portion of its
property; provided, however, that any such tax, assessment, charge, levy or
claim need not
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be paid if the validity or amount thereof shall currently be contested in good
faith by appropriate proceedings and if such Borrower shall have set aside on
its books adequate reserves with respect thereto; and provided, further, that
the Borrowers will pay all such taxes, assessments, charges, levies or claims
forthwith upon the commencement of proceedings to foreclose any lien which may
have attached as security therefor.
SS.6.9. INSPECTION OF PROPERTIES, BOOKS, AND CONTRACTS.
(a) Each Borrower will permit the Banks, the Agent or any of their
designated representatives, upon reasonable notice during normal business hours,
to visit and inspect any of its properties, to examine its books of account
(including the making of periodic accounts receivable reviews), or contracts
(and to make copies thereof and extracts therefrom), and to discuss its affairs,
finances and accounts with, and to be advised as to the same by, their officers,
all at such times and intervals as the Agent or any Bank may reasonably request.
(b) No more frequently than once during each calendar year, or more
frequently as determined by the Agent if an Event of Default shall have occurred
and be continuing, upon the request of the Agent, in each case upon reasonable
notice and during normal business hours, the Borrowers will obtain and deliver
to the Agent, or, if the Agent so elects, will cooperate with the Agent in the
Agent's obtaining, a report of an independent collateral auditor satisfactory to
the Agent (which may be affiliated with one of the Banks) based on a review and
audit of the rental equipment and inventory of the Borrowers, including
verification of the existence and condition of the same, and such report shall
be in form and substance satisfactory to the Agent. All such collateral reports
shall be conducted and made at the expense of the Borrowers.
(c) Each Borrower authorizes the Agent and, if accompanied by the
Agent, the Banks to communicate directly with the Accountants and authorizes the
Accountants to disclose to the Agent and the Banks any and all financial
statements and other supporting financial documents and schedules including
copies of any management letter with respect to the business, financial
condition and other affairs of the Borrowers. At the request of the Agent, each
Borrower shall deliver a letter addressed to such Accountants instructing them
to comply with the provisions of this ss.6.9(c).
SS.6.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES AND PERMITS; MAINTENANCE
OF MATERIAL LICENSES AND PERMITS.
Each Borrower will (i) comply with the provisions of its charter documents
and by-laws, (ii) comply with the provisions of all agreements and instruments
by which it or any of its properties may be bound except where noncompliance
with such provisions would not have a materially adverse effect in the aggregate
on the consolidated financial condition, properties or business of the Borrowers
taken as a whole; and (ii) comply with all applicable laws and regulations
(including Environmental Laws), decrees, orders, judgments, licenses
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and permits, including, without limitation, all environmental permits hereto
("Applicable Laws"), except where noncompliance with such Applicable Laws would
not have a materially adverse effect in the aggregate on the consolidated
financial condition, properties or businesses of the Borrowers taken as a whole.
If at any time while the Notes, or any Loan or Letter of Credit is outstanding
or any Bank or the Agent has any obligation to make Loans or issue Letters of
Credit hereunder, any authorization, consent, approval, permit or license from
any officer, agency or instrumentality of any government shall become necessary
or required in order that the Borrowers may fulfill any of their obligations
hereunder, the Borrowers will immediately take or cause to be taken all
reasonable steps within the power of the Borrowers to obtain such authorization,
consent, approval, permit or license and furnish the Banks with evidence
thereof.
SS.6.11. ENVIRONMENTAL INDEMNIFICATION.
Each Borrower covenants and agrees that it will indemnify and hold the
Agent and the Banks harmless from and against any and all claims, expense,
damage, loss or liability incurred by the Agent or any Bank (including all costs
of legal representation incurred by the Agent and the Banks) relating to (a) any
release or threatened release of hazardous substances on the Real Property; (b)
any violation of any Environmental Laws with respect to conditions at the Real
Property or the operations conducted thereon; or (c) the investigation or
remediation of offsite locations at which any Borrower or its predecessors are
alleged to have directly or indirectly disposed of hazardous substances. It is
expressly acknowledged by each Borrower that this covenant of indemnification
shall not include claims, expense, damage, loss or liability incurred by the
Agent or any Bank based upon the Agent's or such Banks' gross negligence or
willful misconduct (other than gross or willful misconduct which is attributed
to the Agent or any Bank solely by nature of any interest it may have in the
Real Property), and this covenant shall survive any foreclosure or any
modification, release or discharge of the Loan Documents or the payment of the
Loans and shall inure to the benefit of the Banks, their successors and assigns.
SS.6.12. FURTHER ASSURANCES.
The Borrowers will cooperate with the Banks and execute such further
instruments and documents as the Banks shall reasonably request to carry out to
the Banks' satisfaction the transactions contemplated by this Credit Agreement
and the Loan Documents.
SS.6.13. NOTICE OF POTENTIAL CLAIMS OR LITIGATION.
The Borrowers will give notice to the Agent and each of the Banks in
writing within thirty (30) days of becoming aware of any pending litigation or
proceedings affecting any Borrower or to which any Borrower is or becomes a
party (including without limitation any alleged violation of any Environmental
Law) involving an uninsured claim against any Borrower, wherein the potential
liability is in excess of $1,000,000, and stating the nature and status of such
litigation or proceedings. The Borrowers will give notice to the Agent and
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each of the Banks, in writing, in form and detail satisfactory to the Agent,
within ten (10) days of any judgment not covered by insurance, final or
otherwise, against any Borrower in an amount in excess of $1,000,000.
SS.6.14. NOTICE OF CERTAIN EVENTS CONCERNING INSURANCE AND ENVIRONMENTAL
CLAIMS.
(a) The Borrowers will provide the Banks with written notice as to any
material cancellation or material change in any insurance of the Borrowers
within ten (10) Business Days after the Borrowers' receipt of any notice
(whether formal or informal) of such cancellation or change by any of their
insurers.
(b) The Borrowers will promptly notify the Banks in writing of any of
the following events:
(i) upon any Borrower obtaining knowledge of any violation of any
Environmental Law regarding the Real Property or any Borrower's operations,
which violation could have a materially adverse effect on the Borrowers'
operations taken as a whole; (ii) upon any Borrower obtaining knowledge of any
potential or known Release or threat of Release of any Hazardous Substance at,
from, or into the Real Property which any Borrower reports in writing or is
reportable by it in writing to any governmental authority and which is material
in amount or nature or which could materially affect the value of the Real
Property; (iii) upon any Borrower's receipt of any notice of violation of any
Environmental Laws or of any Release or threatened Release of Hazardous
Substances, including a notice or claim of liability or potential responsibility
from any third party (including without limitation any federal, state or local
governmental officials) and including notice of any formal inquiry, proceeding,
demand, investigation or other action with regard to (A) any Borrower's or any
Person's operation of the Real Property, (B) contamination on, from or into the
Real Property, or (C) investigation or remediation of offsite locations at which
any Borrower or any of its predecessors is alleged to have directly or
indirectly Disposed of Hazardous Substances, which violation or Release in any
such case could have a material adverse effect on the Real Property or on any
Borrower's operations; or (iv) upon any Borrower obtaining knowledge that any
material expense or loss has been incurred by such governmental authority in
connection with the assessment, containment, removal or remediation of any
Hazardous Substances with respect to which any Borrower may be liable or for
which a lien may be imposed on the Real Property.
SS.6.15. NOTICE OF DEFAULT.
The Borrowers will promptly notify the Banks in writing of the occurrence
of any Default or Event of Default. If any Person shall give any notice or take
any other action in respect of a claimed default (whether or not constituting an
Event of Default) under this Credit Agreement or any other note, evidence of
Indebtedness, indenture or other obligation evidencing Indebtedness in excess of
$1,000,000 as to which any Borrower is a party or
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obligor, whether as principal or surety, the Borrowers shall forthwith give
written notice thereof to the Banks, describing the notice of action and the
nature of the claimed default.
SS.6.16. NEW SUBSIDIARIES.
(a) Any newly-created or acquired Subsidiary of the Parent permitted
under ss.7.4 shall become a Borrower hereunder and become a party to the
Security Documents by (i) signing a joinder agreement in substantially the form
attached hereto as Exhibit E (the "Joinder Agreement"), (ii) signing allonges to
the Revolving Credit Notes and Swing Line Note and (iii) providing such other
documentation as the Banks or the Agent may reasonably request, including,
without limitation, documentation with respect to the conditions specified in
ss.9 hereof, and 100% of the stock or other equity interests and assets of such
new Subsidiaries shall be pledged to the Agent for the benefit of the Banks. In
such event, the Agent is hereby authorized by the parties to amend Schedule 2 to
include such new Subsidiary.
(b) The Parent shall at all times directly or indirectly through a
Subsidiary own all of the shares of capital stock of each of the Borrowers
(other than the Parent), and such shares shall at all times be pledged to the
Agent pursuant to the Stock Pledge Agreements.
SS.6.17. EMPLOYEE BENEFIT PLANS.
The Borrowers will (i) promptly upon filing the same with the Department of
Labor or Internal Revenue Service, upon request of the Agent, furnish to the
Agent a copy of the most recent actuarial statement required to be submitted
under ss.103(d) of ERISA and Annual Report, Form 5500, with all required
attachments, in respect of each Guaranteed Pension Plan and (ii) promptly upon
receipt or dispatch, furnish to the Agent any notice, report or demand sent or
received in respect of a Guaranteed Pension Plan under ss.ss.302, 4041, 4042,
4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan,
under ss.ss.4041A, 4202, 4219, 4242, or 4245 of ERISA.
SS.6.18. USE OF PROCEEDS.
The Borrowers will use the proceeds of the Loans and obtain Letters of
Credit solely for the purposes set forth in ss.5.15.1 hereof.
SS.6.19. TITLE AND REGISTRATION.
If requested by the Majority Banks and if the value of titled or registered
equipment exceeds five percent (5%) of Total Net Property Plant and Equipment,
as shown on the Borrowers' consolidated financial statements in accordance with
GAAP, within 30 days of such request, the Borrowers will cause such inventory
and equipment, now owned or hereafter acquired by any of the Borrowers, which,
under applicable law, is required to be registered, to be properly registered in
the name of such Person and cause all inventory and equipment, now owned or
hereafter acquired by any of the Borrowers, the ownership of
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which, under applicable law, is evidenced by a certificate of title, to be
properly titled in the name of such Person and will cause the lien of the Agent
to be properly noted on the certificates of title issued with respect to the
equipment and inventory and deliver such certificates of title to the Agent in
accordance with the terms of the Security Agreement.
SS.7. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS.
Each Borrower agrees that, so long as any Loan or any Revolving Credit
Note, Swing Line Note or other Obligation is outstanding or the Banks have any
obligation to make Loans or participate in Loans or Letters of Credit or the
Agent has any obligation to issue, extend or renew any Letters of Credit
hereunder:
SS.7.1. RESTRICTIONS ON INDEBTEDNESS.
The Borrowers shall not become or be a guarantor or surety of, or otherwise
create, incur, assume, or be or remain liable, contingently or otherwise, with
respect to any Indebtedness, or become or be responsible in any manner (whether
by agreement to purchase any obligations, stock, assets, goods or services, or
to supply or advance any funds, assets, goods or services or otherwise) with
respect to any undertaking or Indebtedness of any other Person, or incur any
Indebtedness other than:
(a) Indebtedness to the Banks and the Agent arising under this Credit
Agreement or the Loan Documents;
(b) incurrence of guaranty, suretyship or indemnification obligations
in connection with the Borrowers' performance of services for their respective
customers in the ordinary course of their businesses;
(c) Indebtedness of one Borrower to another then existing Borrower;
(d) (i) purchase money Indebtedness incurred in connection with the
acquisition after the Closing Date of any real or personal property or under
equipment leases or equipment chattel, (ii) existing Indebtedness of any
Subsidiary acquired after the Closing Date (the "Acquired Subsidiary")
originally incurred by the Acquired Subsidiary in connection with the lease or
acquisition of property or fixed assets used in the business of the Acquired
Subsidiary; or with respect to industrial finance bonds issued to finance the
purchase of such property or assets; (iii) other unsecured existing Indebtedness
of any Acquired Subsidiary; (iv) Indebtedness with respect to obligations under
Capitalized Leases or sale and leaseback transactions and (v) Indebtedness
(other than Subordinated Debt) incurred in connection with acquisitions after
the date hereof of any equity interest in, or assets of any Person owing to the
seller(s) of such equity interests or assets; provided that (A) such
acquisitions are otherwise permitted pursuant to ss.7.4; (B) the aggregate
amount of such Indebtedness under this subsection (d) (including Indebtedness
assumed in connection
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with the Associated Rentals Acquisition) shall not exceed $65,000,000 and (C)
the incurrence of such Indebtedness would not otherwise create an Event of
Default under ss.8;
(e) Subordinated Debt, provided such Indebtedness is not amended or
prepaid without the consent of the Majority Banks;
(f) Indebtedness existing on the date hereof and listed and described
on Schedule 7.1 hereto; and
(g) additional unsecured Indebtedness of the Borrowers in an aggregate
amount not to exceed $5,000,000;
provided that if the creation, incurrence, assumption or existence of any
Indebtedness would constitute an Event of Default under, or be prohibited
pursuant to the terms of, the Subordinated Debt, then the creation, incurrence,
assumption or existence of such Indebtedness shall not be permitted hereunder.
SS.7.2. RESTRICTIONS ON LIENS.
The Borrowers shall not create or incur or suffer to be created or incurred
or to exist any lien, encumbrance, mortgage, pledge, charge, restriction or
other security interest of any kind upon any property or assets of any
character, whether now owned or hereafter acquired, or upon the income or
profits therefrom; or transfer any of such property or assets or the income or
profits therefrom for the purpose of subjecting the same to the payment of
Indebtedness or performance of any other obligation in priority to payment of
its general creditors; or acquire, or agree or have an option to acquire, any
property or assets upon conditional sale or other title retention or purchase
money security agreement, device or arrangement; or suffer to exist for a period
of more than 30 days after the same shall have been incurred any Indebtedness or
claim or demand against it which if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over its general
creditors; or sell, assign, pledge or otherwise transfer any accounts, contract
rights, general intangibles or chattel paper, with or without recourse, except
as follows (the "Permitted Liens"):
(a) Liens to secure taxes, assessments and other government charges in
respect of obligations not overdue or liens on properties to secure claims for
labor, material or supplies in respect of obligations not overdue;
(b) Deposits or pledges made in connection with, or to secure payment
of, workmen's compensation, unemployment insurance, old age pensions or other
social security obligations;
(c) Liens in respect of judgments or awards which have been in force
for less than the applicable period for taking an appeal so long as execution is
not levied thereunder or in respect of which the applicable Borrower shall at
the time in good faith be prosecuting an
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appeal or proceedings for review and in respect of which a stay of execution
shall have been obtained pending such appeal or review and in respect of which
such Borrower maintains adequate reserves;
(d) Liens of carriers, warehousemen, mechanics and materialmen, and
other like liens, in existence less than 120 days from the date of creation
thereof in respect of obligations not overdue, provided that such liens may
continue to exist for a period of more than 120 days if the validity or amount
thereof shall currently be contested by the applicable Borrower in good faith by
appropriate proceedings and if such Borrower shall have set aside on its books
adequate reserves with respect thereto as required by GAAP and provided further
that such Borrower will pay any such claim forthwith upon commencement of
proceedings to foreclose any such lien;
(e) Encumbrances on Real Property consisting of easements, rights of
way, zoning restrictions, restrictions on the use of real property and defects
and irregularities in the title thereto, landlord's or lessor's liens under
leases to which any Borrower is a party, and other minor liens or encumbrances
none of which in the opinion of such Borrower interferes materially with the use
of the property affected in the ordinary conduct of the business of such
Borrower, which defects do not individually or in the aggregate have a material
adverse effect on the business of such Borrower individually or of the Borrowers
on a consolidated basis;
(f) Liens existing as of the date hereof and listed on Schedule 7.2 on
the terms and conditions in effect as of the date hereof (subject to the
termination or amendment of certain liens as noted on such Schedule);
(g) (i) previously existing Liens granted by Acquired Subsidiaries
with respect to asset financings (mortgages, Capitalized Leases, etc.) or
industrial revenue bonds permitted under ss.7.1(d) on the terms and conditions
in effect as of the date of the acquisition, and the replacement, extension or
renewal of any such Lien provided that in each such case such Liens shall
encumber only the property or assets so financed and shall not exceed the fair
market value thereof and shall not have been incurred in contemplation of such
acquisition; (ii) Liens in respect of Indebtedness to Sellers and Capitalized
Leases permitted by ss.7.1(d); and (iii) purchase money security interests in or
purchase money mortgages on real or personal property to secure purchase money
Indebtedness of the type and amount permitted by ss.7.1(d), incurred in
connection with the acquisition of such property, which security interests or
mortgages cover only the real or personal property so acquired, and the
replacement, extension or renewal of any such Lien encumbering no more than the
property or assets encumbered by such Lien; and
(h) Liens in favor of the Agent for the benefit of the Banks and the
Agent under the Loan Documents.
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SS.7.3. RESTRICTIONS ON INVESTMENTS.
The Borrowers shall not purchase or acquire, or make any commitment
therefor, any capital stock, equity interest, or other obligations or securities
of, or any interest in, any other Person, or make or commit to make any
acquisition under ss.7.4, or make or commit to make any advance, loan, extension
of credit or capital contribution to or any other investment in, any other
Person, other than:
(a) marketable direct or guaranteed obligations of the United States
of America that mature within one (1) year from the date of purchase;
(b) demand deposits, certificates of deposit, bankers acceptances and
time deposits of United States banks or Eligible Foreign Banks having unimpaired
capital and surplus in excess of $250,000,000;
(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any state thereof that at the time of purchase have been rated and
the ratings for which are not less than "P 1" if rated by ▇▇▇▇▇'▇ Investors
Service, Inc., and not less than "A 1" if rated by Standard and Poor's Rating
Group;
(d) extensions of credit in the nature of accounts receivable or notes
receivable arising from the sale or lease of goods or services in the ordinary
course of business;
(e) investments existing on the date hereof and listed on Schedule
7.3;
(f) loans, investments and advances by any Borrower in or to another
Borrower;
(g) investments with respect to Indebtedness permitted by ss.7.1(e);
and
(h) investments permitted under ss.7.4.
SS.7.4. MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS.
SS.7.4.1. MERGERS AND ACQUISITIONS.
The Borrowers will not become a party to any merger or consolidation, or
agree to or effect any asset acquisition or stock acquisition (other than the
acquisition of assets in the ordinary course of business consistent with past
practices) except the merger or consolidation of, or asset or stock acquisitions
between existing Borrowers (provided that the Parent will be the survivor of any
such transaction between the Parent and another Borrower) and except as
otherwise provided in this ss.7.4. Any Borrower may purchase or otherwise
acquire all or substantially all of the assets or stock or other equity
interests of any other Person provided that:
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(a) the Borrowers are in current compliance with and, giving effect to
the proposed acquisition (including any borrowings made or to be made in
connection therewith), will continue to be in compliance with all of the
covenants in ss.8 hereof on a pro forma historical combined basis as if the
transaction occurred on the first day of the period of measurement, and a
Compliance Certificate demonstrating such compliance shall have been provided to
the Banks;
(b) at the time of such acquisition, no Default or Event of Default
has occurred and is continuing, and such acquisition will not otherwise create a
Default or an Event of Default hereunder;
(c) the business to be acquired is predominantly in the same lines of
business as the Borrowers, or businesses reasonably related or incidental
thereto;
(d) the business to be acquired operates predominantly in the United
States;
(e) all of the assets to be acquired shall be owned by an existing or
newly created Subsidiary of the Parent which Subsidiary shall be a Borrower,
100% of the assets and stock or other equity interests of which have been or,
simultaneously with such acquisition, will be pledged to the Agent on behalf of
the Banks or, in the case of a stock or other equity interest acquisition, the
acquired company, within seven (7) days after such acquisition, shall become a
Borrower or shall be merged with and into a wholly owned Subsidiary that is a
Borrower and such newly acquired or created Subsidiary shall otherwise comply
with the provisions of ss.6.16(a) hereof;
(f) not later than seven (7) days prior to the proposed acquisition
date of an acquisition requiring the consent of the Majority Banks, and not
later than two (2) days prior to the proposed acquisition date of an acquisition
not requiring the consent of the Majority Banks, a copy of the purchase
agreement, together with audited (if available, or otherwise unaudited)
financial statements for any Subsidiary to be acquired or created for the
preceding two (2) fiscal years or such shorter period of time as such Subsidiary
has been in existence shall have been furnished to the Agent; the Agent will, at
the request of any Bank, deliver a copy of such agreement and projections to
such Bank after the Agent's receipt thereof;
(g) not later than seven (7) days prior to the proposed acquisition
date of an acquisition requiring the consent of the Majority Banks, and not
later than two (2) days prior to the proposed acquisition date of an acquisition
not requiring the consent of the Majority Banks, each acquisition is preceded by
the Borrowers' standard due diligence practices, summaries of which shall have
been provided to the Agent; the Agent will, at the request of any Bank, deliver
a copy of such summaries to such Bank after the Agent's receipt thereof;
(h) the board of directors and (if required by applicable law) the
shareholders, or the equivalent thereof, of the business to be acquired has
approved such acquisition;
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(i) if such acquisition is made by a merger, a Borrower shall be the
surviving entity; and
(j) after giving effect to such acquisition, the cash consideration to
be paid by the Borrowers in connection with such acquisition or series of
related acquisitions (including deferred payments and the aggregate amount of
all Funded Debt assumed) (i) shall not exceed $20,000,000 prior to the
completion of a Qualified Public Offering without the consent of the Agent and
the Majority Banks and (ii) from and after the successful completion of a
Qualified Public Offering, shall not exceed the greater of $20,000,000 or 5% of
Consolidated Total Assets as of such date without the consent of Agent and the
Majority Banks.
(k) The Parent shall provide a certificate certifying that such
acquisition has been completed substantially in accordance with the terms of its
acquisition documents.
Notwithstanding the restrictions contained in ss.7.4.1(j), the
Associated Rentals Acquisition shall be permitted under this Credit Agreement
substantially on the terms and subject to the conditions set forth in the
Associated Rentals Acquisition Documents, provided that the Borrowers shall have
otherwise complied with the provisions of ss.7.4.1. Upon completion of the
Associated Rentals Acquisition, the EBIT of Associated Rentals, Inc. shall be
included in the calculation of EBIT under the Credit Agreement.
Notwithstanding anything herein to the contrary, the ability of
the Borrowers to incur any Indebtedness in connection with any transaction
permitted pursuant to this ss.7.4 shall be governed by ss.7.1.
SS.7.4.2. DISPOSITION OF ASSETS.
The Borrowers will not become a party to or agree to or effect any sale or
disposition of assets, other than (a) among existing Borrowers, (b) the
licensing of intellectual property and the disposition of obsolete assets, in
each case in the ordinary course of business consistent with past practices and
(c) so long as no Default or Event of Default shall have occurred and be
continuing at the time of such disposition, the sale of rental equipment
provided the net proceeds of such disposition are invested by the Borrowers
within ninety (90) days of such disposition in the purchase of new rental
equipment. The Agent will release its lien on the assets disposed of in
accordance with this ss.7.4.2(b) and (c) and will deliver to the Borrowers' such
evidence of such release as the Borrowers may reasonably request.
SS.7.5. SALE AND LEASEBACK.
None of the Borrowers shall enter into any arrangement, directly or
indirectly, whereby any Borrower shall sell or transfer any property owned by it
in order then or thereafter to lease such property or lease other property which
such Borrower intends to use for
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substantially the same purpose as the property being sold or transferred,
without the prior written consent of the Majority Banks.
SS.7.6. RESTRICTED DISTRIBUTIONS AND REDEMPTIONS.
None of the Borrowers shall make Distributions except any Borrower may make
Distributions to another Borrower provided no Default or Event of Default exists
or would be created by the making of such Distribution. None of the Borrowers
shall effect or permit any change in or amendment to any document or instrument
pertaining to the terms of any Borrower's (other than the Parent's) capital
stock.
SS.7.7. EMPLOYEE BENEFIT PLANS.
None of the Borrowers nor any ERISA Affiliate will:
(a) engage in any "prohibited transaction" within the meaning of
ss.406 of ERISA or ss.4975 of the Code which could result in a material
liability for any Borrower; or
(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in ss.302 of ERISA, whether or not
such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could result
in the imposition of a lien or encumbrance on the assets of any Borrower
pursuant to ss.302(f) or ss.4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances requiring the
posting of security pursuant to ss.307 of ERISA or ss.401(a)(29) of the Code; or
(e) permit or take any action which would result in the aggregate
benefit liabilities (within the meaning of ss.4001 of ERISA) of all Guaranteed
Pension Plans exceeding the value of the aggregate assets of such Plans,
disregarding for this purpose the benefit liabilities and assets of any such
Plan with assets in excess of benefit liabilities.
SS.7.8. NEGATIVE PLEDGES.
The Borrowers shall not enter into or permit to exist any arrangement or
agreement, enforceable under applicable law, which directly or indirectly
prohibits any Borrower from creating or incurring any lien, encumbrance,
mortgage, pledge, charge, restriction or other security interest in favor of the
Agent for the benefit of the Banks and the Agent under the Loan Documents.
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SS.7.9. BUSINESS ACTIVITIES.
The Borrowers will not engage directly or indirectly (whether through
Subsidiaries or otherwise) in any type of business other than the businesses
conducted by any Borrower on the Closing Date and in related businesses.
SS.7.10. TRANSACTIONS WITH AFFILIATES.
The Borrowers will not engage in any transaction with any Affiliate (other
than for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any such Affiliate or, to the knowledge of any
Borrower, any corporation, partnership, trust or other entity in which any such
Affiliate has a substantial interest or is an officer, director, trustee or
partner, on terms more favorable to such Person than would have been obtainable
on an arm's-length basis in the ordinary course of business.
SS.7.11. SUBORDINATED DEBT.
None of the Borrowers will amend, supplement or otherwise modify the terms
of any of the Subordinated Debt without thirty (30) days prior written notice to
the Agent and the Banks of such change, and will not make any change which, in
the opinion of the Agent, would be in any way materially adverse to the Banks
without the prior written consent of the Majority Banks or prepay, redeem or
repurchase any of the Subordinated Debt. Notwithstanding anything herein to the
contrary, in no case may the Borrowers make any payment of principal, interest,
or other amounts owing with respect to the Subordinated Debt if an Event of
Default under ss.12.1(a) or (b) exists or would be created by the making of such
payment.
SS.7.12. FISCAL YEAR.
None of the Borrowers will change the date of its fiscal year from that set
forth in ss.5.4(c) hereof.
SS.8. FINANCIAL COVENANTS.
Each of the Borrowers covenants and agrees that, so long as any Loan, any
Revolving Credit Note, Swing Line Note, any Reimbursement Obligation or other
Obligation is outstanding or the Banks have any obligation to make Loans or
participate in Loans or Letters of Credit or the Agent has any obligation to
issue, extend or renew any Letters of Credit hereunder:
SS.8.1. LEVERAGE RATIO.
Commencing with the fiscal quarter ending March 31, 1998, the ratio of (a)
Funded Debt as at the end of any fiscal quarter ending during a period described
in the table below to
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(b) EBITDA for the period of four (4) consecutive fiscal quarters ending on such
date shall not exceed the ratio set forth in the following table:
Period Ratio
------ -----
Closing Date - June 30, 1998 5.00:1.00
July 1, 1998 and thereafter 4.50:1.00
SS.8.2. SENIOR FUNDED DEBT TO EBITDA.
Commencing with the fiscal quarter ending March 31, 1998, the ratio of (a)
Senior Funded Debt as at the end of any fiscal quarter ending during a period
described in the table below to (b) EBITDA for the period of four (4)
consecutive fiscal quarters ending on such date shall not exceed the ratio set
forth in the following table:
Period Ratio
------ -----
Closing Date - June 30, 1998 4.50:1.00
July 1, 1998 and thereafter 3.50:1.00
SS.8.3. SENIOR FUNDED DEBT TO CAPITALIZATION RATIO.
Commencing with the fiscal quarter ending March 31, 1998, the Borrowers
will not at any time permit the ratio of (a) Senior Funded Debt as at the end of
any fiscal quarter ending during a period described in the table below to (b)
the sum of Funded Debt plus Consolidated Net Worth to exceed during any period
described in the table set forth below the percentage set forth opposite such
period in such table:
Period Percentage
------ ----------
Closing Date - March 31, 1998 75%
April 1, 1998 - June 30, 1998 72.5%
July 1, 1998 - September 30, 1998 60%
October 1, 1998 - December 31, 1998 60%
January 1, 1999 and thereafter 55%
SS.8.4. INTEREST COVERAGE RATIO.
As of the end of any fiscal quarter of the Borrowers commencing with the
fiscal quarter ending June 30, 1998, the Borrowers will not permit the ratio of
(a) the sum of (i) actual reported EBIT (without adjustment) plus (ii)
amortization expense relating to intangible
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assets to (b) Consolidated Total Interest Expense to be less than the ratio
appearing opposite the relevant period in the table set forth below:
Period Ratio
------ -----
June 30, 1998 - December 31, 1998 1.75:1
January 1, 1999 - December 31, 1999 2.00:1
January 1, 2000 and thereafter 2.25:1
The Interest Coverage Ratio shall be calculated on a cumulative quarterly
basis for the fiscal quarters ending June 30, 1998, through December 31, 1998,
and thereafter for the four fiscal quarters then ending.
SS.8.5. TANGIBLE ASSETS TO SENIOR DEBT.
The Borrowers will not permit at any time the ratio of (a) Consolidated
Tangible Assets to (b) the sum of the Loans, unpaid Reimbursement Obligations
and the Maximum Drawing Amount to be less than 1.05:1; provided that from and
after the successful completion of a Qualified Public Offering, the Borrowers
will not permit such ratio to be less than 1.00:1.
SS.8.6. CONSOLIDATED NET WORTH.
The Borrowers will not permit Consolidated Net Worth at any time to be less
than (a) $75,000,000 from the Closing Date to June 30, 1998 or (b) thereafter,
$75,000,000 plus the sum of (i) 50% of positive Consolidated Net Income for each
fiscal quarter, beginning with the fiscal quarter ended June 30, 1998, and (ii)
100% of the net proceeds of any sale by the Borrowers of (A) equity securities
issued by the Borrowers or (B) warrants or subscription rights for equity
securities issued by the Borrowers.
SS.8.7. CAPITAL EXPENDITURES.
Capital Expenditures (other than for rental equipment inventory used in the
ordinary course of business) for the fiscal years set forth below shall not
exceed the amounts set forth opposite such fiscal year in the following table:
Fiscal Year Amount
----------- ------
1998 $10,000,000
1999 $20,000,000
2000 $25,000,000
provided, however, that, if during any fiscal year the amount of Capital
Expenditures permitted for that fiscal year is not utilized, such unutilized
amount may be utilized in the next succeeding fiscal year after application of
the amount set forth in the table above, but not in any subsequent fiscal year.
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SS.9. CLOSING CONDITIONS.
The obligations of the Banks to convert the Loans under the Prior Credit
Agreement into Revolving Credit Loans and to make the initial Loans, the Agent
to issue any initial Letters of Credit, and the Banks and the Agent otherwise be
bound by the terms of this Credit Agreement shall be subject to the satisfaction
of each of the following conditions precedent:
SS.9.1. LOAN DOCUMENTS, ETC.
Each of the Loan Documents shall have been duly and properly authorized,
executed and delivered by the respective parties thereto and shall be in full
force and effect in a form satisfactory to the Banks.
SS.9.2. CORPORATE ACTION.
All corporate action necessary for the valid execution, delivery and
performance by each Borrower of the Loan Documents shall have been duly and
effectively taken, and satisfactory evidence thereof shall have been provided to
the Agent.
SS.9.3. CERTIFICATE OF SECRETARY; GOOD STANDING CERTIFICATES.
The Agent shall have received from each Borrower a certificate as to the
good standing of such Borrower from the Secretary of State or other appropriate
official of the state of its organization and from each state in which it is
authorized to conduct business, in each case dated as of a recent date. The
Agent shall also have received from each Borrower a certificate of its Secretary
certifying the following attachments thereto: (a) a copy of its certificate or
articles of incorporation or constitutive documents, in each case as amended to
date, certified as of a recent date by the Secretary of State or other
appropriate official of the state of its organization, (b) a true, correct and
complete copy of its by-laws, including all amendments thereto, and (c) a true,
correct and complete copy of the resolutions of its board of directors
authorizing the transactions contemplated hereunder and under the other Loan
Documents. Such Secretary's Certificate shall also give the name and bear a
specimen signature of each individual who shall be authorized (i) to sign the
Loan Documents on behalf of each Borrower; (ii) to make Loan and Letter of
Credit Requests; and (iii) to give notices and to take other action on each
Borrower's behalf under the Loan Documents.
SS.9.4. VALIDITY OF LIENS.
The Security Documents shall be effective to create in favor of the Agent a
legal, valid and enforceable first (except for Permitted Liens entitled to
priority under applicable law) security interest in and lien upon the
Collateral. All filings, recordings, deliveries of instruments and other actions
necessary or desirable in the opinion of the Agent to protect and preserve such
security interests including, without limitation, notation of the Agent's lien
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on certificates of title as described in ss.6.19, shall have been duly effected.
The Agent shall have received evidence thereof in form and substance
satisfactory to the Agent.
SS.9.5. PERFECTION CERTIFICATES AND UCC SEARCH RESULTS.
The Agent shall have received from each Borrower either (i) a completed and
fully executed Perfection Certificate or (ii) a certificate stating that the
Perfection Certificate previously delivered by such Borrower is true, accurate
and complete as of the Closing Date and the results of UCC searches with respect
to the Collateral, indicating no liens other than Permitted Liens and otherwise
in form and substance satisfactory to the Agent.
SS.9.6. CERTIFICATES OF INSURANCE.
The Agent shall have received a certificate of insurance signed by the
insurer or an agent authorized to bind the insurer dated as of the Closing Date,
identifying insurers, types of insurance, insurance limits, and policy terms,
and otherwise describing the Borrowers' insurance coverage and naming the Agent
as loss payee and additional insured as further provided in the Security
Agreement.
SS.9.7. LEGAL OPINIONS.
The Agent shall have received a favorable legal opinion from counsel to the
Borrowers, addressed to the Agent and each Bank, dated as of the Closing Date,
in form and substance satisfactory to the Agent, including but not limited to an
opinion regarding noncontravention of the Loan Documents and the transactions
contemplated herein and therein with the Subordinated Debt Documents.
SS.9.8. PAYMENT OF FEES.
The Borrowers shall have paid all fees owing to any of the Banks or either
Bank Agent, as appropriate, including, without limitation, the fees and expenses
of each Bank Agent's counsel.
SS.9.9. CLOSING CERTIFICATE.
The Borrowers shall have delivered to the Agent a certificate, dated as of
the Closing Date, stating that, as of such date (a) the representations and
warranties set forth herein or in any other Loan Document are true and correct
and (b) no Default or Event of Default has occurred and is continuing.
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SS.9.10. CONSENTS.
The Borrowers shall have delivered to the Agent evidence that all requisite
third-party consents to the transactions contemplated hereunder and under the
other Loan Documents have been received.
SS.9.11. SUBORDINATED DEBT DOCUMENTS.
The Borrowers shall have delivered to the Agent true, correct and complete
copies of the Subordinated Debt Documents in existence as of the Closing Date
and such documents shall be in form and substance satisfactory to the Agent.
SS.9.12. COMPLIANCE CERTIFICATE.
The Borrowers shall have delivered to the Agent a duly executed and
completed Compliance Certificate.
SS.9.13. CAPITAL STRUCTURE.
The Agent shall have received from the Borrowers evidence reasonably
satisfactory to the Agent and the Banks that (i) the Parent has received Net
Cash Proceeds from an Equity Issuance in an aggregate amount not less than
$45,000,000 and (ii) that the Unsecured Promissory Note issued by the Parent to
▇▇▇▇▇▇▇▇ Investments Limited Partnership dated as of May 1, 1998 in the amount
of $17,400,000 has been repaid in full with the proceeds of such Equity Issuance
and that no further amounts exist or are owed with respect thereto.
SS.9.14. FORM S-1.
The Borrowers shall have delivered to the Agent a draft of its Form S-1
relating to its initial public offering.
SS.10. CONDITIONS OF ALL LOANS.
The obligations of the Banks to convert the Loans under the Prior Credit
Agreement into Revolving Credit Loans hereunder and to make or extend any Loan
and of the Agent to issue, extend or renew any Letter of Credit on or after the
Closing Date, shall also be subject to the following conditions precedent:
SS.10.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT.
Each of the representations and warranties of the Borrowers contained in
this Credit Agreement, the other Loan Documents or in any document or instrument
delivered pursuant to or in connection with this Credit Agreement shall be true
as of the date as of which they were made and shall also be true at and as of
the time of any Drawdown Date or the issuance, extension or renewal of any
Letter of Credit with the same effect as if made at and as of that time (except
to the extent of changes resulting from transactions contemplated or permitted
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by this Credit Agreement and the other Loan Documents and changes occurring in
the ordinary course of business which singly or in the aggregate are not
materially adverse, or to the extent that such representations and warranties
relate solely and expressly to an earlier date) and no Default or Event of
Default shall have occurred and be continuing.
SS.10.2. PERFORMANCE; NO EVENT OF DEFAULT.
The Borrowers shall have performed and complied with all terms and
conditions herein required to be performed or complied with by the Borrowers
prior to or at the time of any Loan, and at the time of any Loan, there shall
exist no Event of Default or condition which would result in an Event of Default
upon consummation of such Loan (including without limitation any amounts to be
drawn under a Letter of Credit). Each request by the Borrowers for a Loan and
each request for issuance, extension or renewal of a Letter of Credit subsequent
to the Closing Date shall constitute certification by the Borrowers that the
conditions specified in ss.ss.10.1 and 10.2 will be duly satisfied on the date
of such Loan or Letter of Credit issuance.
SS.10.3. NO LEGAL IMPEDIMENT.
No change shall have occurred in any law or regulations thereunder or
interpretations thereof which in the reasonable opinion of any Bank would make
it illegal for such Bank to make Loans hereunder or to participate in the
issuance, extension or renewal of letters of credit or in the reasonable opinion
of the Agent would make it illegal for the Agent to issue, extend or renew such
Letter of Credit.
SS.10.4. GOVERNMENTAL REGULATION.
Each Bank shall have received such statements in form and substance
reasonably satisfactory to such Bank as such Bank shall require for the purpose
of compliance with any applicable regulations of the Comptroller of the Currency
or the Board of Governors of the Federal Reserve System.
SS.10.5. PROCEEDINGS AND DOCUMENTS.
All proceedings in connection with the transactions contemplated by this
Credit Agreement, the other Loan Documents and all documents incident thereto
shall have been delivered to the Banks in form and substance satisfactory to the
Banks, the Agent and its counsel, including without limitation a Loan and Letter
of Credit Request in the form attached hereto as Exhibit B, and the Banks, the
Agent and such counsel shall have received all information and such counterpart
originals or certified or other copies of such documents as the Agent or any
Bank may reasonably request.
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SS.11. COLLATERAL SECURITY.
The Obligations shall be secured by (a) a perfected first priority security
interest (subject only to Permitted Liens entitled to priority under applicable
law) in all assets of each Borrower (other than perfection of titled or
registered equipment unless perfection is required pursuant to ss.6.19), whether
now owned or hereafter acquired, pursuant to the terms of the Security Documents
to which such Borrower is a party and (b) a pledge of one hundred percent (100%)
of the stock or other equity interests of each Subsidiary of the Parent pursuant
to the terms of the Stock Pledge Agreements.
SS.12. EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT.
SS.12.1. EVENTS OF DEFAULT AND ACCELERATION.
If any of the following events ("Events of Default" or, if the giving of
notice or the lapse of time or both is required, then, prior to such notice
and/or lapse of time, "Defaults") shall occur:
(a) the Borrowers shall fail to pay any principal of the Loans or any
Reimbursement Obligation when the same shall become due and payable, whether at
the Maturity Date or any accelerated date of maturity or at any other date fixed
for payment;
(b) the Borrowers shall fail to pay any interest or fees or other
amounts owing hereunder within five (5) Business Days after the same shall
become due and payable whether at the Maturity Date or any accelerated date of
maturity or at any other date fixed for payment;
(c) any Borrower shall fail to comply with any of the covenants
contained in ss.ss.6.1, the first clause of 6.5, 6.15, 6.16, 6.19, 7 or 8;
(d) any Borrower shall fail to perform any term, covenant or agreement
contained herein or in any of the other Loan Documents (other than those
specified in subsections (a), (b), and (c) above) within thirty (30) days after
the earlier to occur of (i) written notice of such failure has been given to the
Borrowers by the Agent or any Bank or (ii) the date on which any Borrower knew
or should have known about such event;
(e) any representation or warranty contained in this Credit Agreement,
any of the Loan Documents or in any document or instrument delivered pursuant to
or in connection with this Credit Agreement shall prove to have been false in
any material respect upon the date when made or repeated;
(f) any Borrower shall fail to pay at maturity, or within any
applicable period of grace, any obligation for borrowed money (other than the
Obligations) or any guaranty with respect thereto in an aggregate amount greater
than $1,000,000 or fail to observe or perform any material term, covenant or
agreement contained in any agreement by which it is bound,
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evidencing or securing borrowed money in an aggregate amount greater than
$1,000,000 for such period of time as would, or would have permitted (assuming
the giving of appropriate notice if required) the holder or holders thereof or
of any obligations issued thereunder to accelerate the maturity thereof;
(g) any Borrower makes an assignment for the benefit of creditors, or
admits in writing its inability to pay or generally fails to pay its debts as
they mature or become due, or petitions or applies for the appointment of a
trustee or other custodian, liquidator or receiver of any Borrower or of any
substantial part of the assets of any Borrower or commences any case or other
proceeding relating to any Borrower under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar law of any jurisdiction, now or hereafter in effect, or takes any action
to authorize or in furtherance of any of the foregoing, or if any such petition
or application is filed or any such case or other proceeding is commenced
against any Borrower and such Borrower indicates its approval thereof, consent
thereto or acquiescence therein or such petition or application shall not have
been dismissed within ninety (90) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating any Borrower bankrupt or
insolvent, or approving a petition in any such case or other proceeding, or a
decree or order for relief is entered in respect of any Borrower in an
involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty (30) days, whether or not consecutive, any final
judgment against any Borrower which, with other outstanding final judgments,
undischarged, unsatisfied and unstayed against the Borrowers, exceeds in the
aggregate $1,000,000 after taking into account any undisputed insurance
coverage;
(j) the holders of all or any part of the Subordinated Debt shall
accelerate the maturity of all or any part of the Subordinated Debt or the
Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part;
(k) any Borrower or any ERISA Affiliate incurs any liability to the
PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate
amount exceeding $1,000,000, or any Borrower or any ERISA Affiliate is assessed
withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan
requiring aggregate annual payments exceeding $1,000,000, or any of the
following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA
Reportable Event, or a failure to make a required installment or other payment
(within the meaning of ss.302(f)(1) of ERISA), provided that the Agent
determines in its reasonable discretion that such event (A) could be expected to
result in liability of any Borrower to the PBGC or such Guaranteed Pension Plan
in an aggregate amount exceeding $1,000,000 and (B) could constitute grounds for
the termination of such Guaranteed Pension
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Plan by the PBGC, for the appointment by the appropriate United States District
Court of a trustee to administer such Guaranteed Pension Plan or for the
imposition of a lien in favor of such Guaranteed Pension Plan; or (ii) the
appointment by a United States District Court of a trustee to administer such
Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to
terminate such Guaranteed Pension Plan;
(l) any of the Loan Documents shall be cancelled, terminated, revoked
or rescinded or the Agent's security interests or liens in a substantial portion
of the Collateral shall cease to be perfected, or shall cease to have the
priority contemplated by the Security Documents, in each case otherwise than in
accordance with the terms thereof or with the express prior written agreement,
consent or approval of the Banks, or any action at law, suit or in equity or
other legal proceeding to cancel, revoke or rescind any of the Loan Documents
shall be commenced by or on behalf of any Borrower or any of their respective
stockholders, or any court or any other governmental or regulatory authority or
agency of competent jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or more of the
Loan Documents is illegal, invalid or unenforceable in accordance with the terms
thereof;
(m) (i) the Parent shall at any time, legally or beneficially own less
than one hundred percent (100%) of the shares of the capital stock of each other
Borrower, as adjusted pursuant to any stock split, stock dividend or
recapitalization or reclassification of the capital of such Borrower; or (ii)
except as set forth on Schedule 12.1(m) any person or group of persons (within
the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as
amended) shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said Act) of
20% or more of the outstanding shares of common stock of the Parent; or, during
any period of twelve consecutive calendar months, individuals who were directors
of the Parent on the first day of such period shall cease to constitute a
majority of the board of directors; or
(n) prior to the successful completion of a Qualified Public Offering,
(i) both ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ shall cease, for any reason, to be employed
in a senior management position with the Parent or there shall occur any
substantial diminution in the senior management positions, duties and
responsibilities of ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ and (ii) there shall not be at
least one replacement person for ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ employed in such
senior management positions, duties and responsibilities reasonably acceptable
to the Majority Banks;
then, and in any such event, so long as the same may be continuing, the Agent
may, and at the request of the Majority Banks shall, by notice in writing to the
Borrowers, declare all amounts owing with respect to this Credit Agreement, the
Notes and the other Loan Documents and all Reimbursement Obligations to be, and
they shall thereupon forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrowers; provided that in the event of any
Event of Default specified in ss.ss.12(g), 12(h) or 12(j) all such amounts shall
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become immediately due and payable automatically and without any requirement of
notice from the Agent or any Bank. Upon demand by the Banks after the occurrence
of any Event of Default, the Borrowers shall immediately provide to the Agent
cash in an amount equal to the Maximum Drawing Amount, to be held by the Agent
as collateral security for the Obligations, provided that in the event of any
Event of Default specified in ss.ss.12(g), 12(h) or 12(j), all such amounts
shall become immediately due and payable automatically and without any
requirement of notice from the Agent or any Bank.
SS.12.2. TERMINATION OF COMMITMENTS.
If any Event of Default shall occur, the Agent may, and at the request of
the Majority Banks shall, by notice to the Borrowers, terminate the unused
portion of the Total Commitment hereunder, and upon such notice being given,
such unused portion of the Total Commitment hereunder shall terminate
immediately and the Banks shall be relieved of all further obligations to make
Loans to the Borrowers and the Agent shall be relieved of all further
obligations to issue, extend or renew Letters of Credit for the account of the
Borrowers hereunder, provided that in the event of any Event of Default
specified in ss.ss.12(g), 12(h) or 12(j), the Total Commitment shall forthwith
terminate and each of the Banks shall be relieved of all further obligations to
make Loans to the Borrowers and the Agent shall be relieved of all further
obligations to issue, extend or renew Letters of Credit automatically and
without any requirement of notice from the Agent or any Bank. No termination of
any portion of the Total Commitment hereunder shall relieve the Borrowers of any
of their existing Obligations to the Banks hereunder or elsewhere.
SS.12.3. REMEDIES.
Subject to ss.13, in case any one or more Events of Default shall have
occurred and be continuing, and whether or not the Banks shall have accelerated
the maturity of the Loans pursuant to ss.12.1, each Bank may proceed to protect
and enforce its rights by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Bank are evidenced,
including, without limitation, as permitted by applicable law the obtaining of
the ex parte appointment of a receiver, and, if such amount shall have become
due, by declaration or otherwise, proceed to enforce the payment thereof or any
legal or equitable right of such Bank, provided that, if any of the Collateral
is Real Property located in California, Louisiana or any other state having a
one form of action rule or any rule which might impair the Collateral, then
prior to initiating any such proceeding, such Bank shall have supplied the Agent
with opinions of nationally recognized law firms specializing in California law,
Louisiana law, and the law of any other state, as applicable, having a one form
of action rule to the effect that actions by such Bank under such circumstances
shall not constitute an action for purposes of such state's one form of action
rule or in any other way impair the Collateral. No remedy herein conferred upon
any Bank or the Agent or the holder of any Note or purchaser of any Letter of
Credit Participation is intended to be exclusive of any other
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remedy and each and every remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or any other provision of law.
SS.13. SETOFF.
Regardless of the adequacy of any Collateral, during the continuance of an
Event of Default, any deposits or other sums credited by or due from any Bank to
any Borrower and any securities or other property of any Borrower in the
possession of such Bank may be applied to or set off against the payment of the
Obligations and any and all other liabilities, direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising, of any
Borrower to the Banks. The Banks agree among themselves that, if a Bank shall
obtain payment on any Obligation outstanding under this Credit Agreement through
the exercise of a right of offset, banker's lien or counterclaim, or from any
other source including under ss.12.3 (other than by way of a pro rata payment
under this Credit Agreement), it shall promptly make such adjustments with the
other Banks as shall be equitable to the end that all the Banks shall share the
benefits of such payments pro rata in accordance with the aggregate unpaid
amount of the Revolving Credit Notes held by each Bank immediately prior to the
payment obtained by such Bank as aforesaid. The Banks further agree among
themselves that if any payment to a Bank obtained by such Bank through the
exercise of a right of offset, banker's lien or counterclaim, or from any other
source (other than by way of a pro rata payment) as aforesaid shall be rescinded
or must otherwise be restored, the Banks who shall have shared the benefit of
such payment shall return their share of that benefit to the Bank whose payment
shall have been rescinded or otherwise restored.
SS.14. THE AGENT.
SS.14.1. AUTHORIZATION.
(a) The Agent is authorized to take such action on behalf of each of the
Banks and to exercise all such powers as are hereunder and under any of the
other Loan Documents and any related documents delegated to the Agent, together
with such powers as are reasonably incident thereto, provided that no duties or
responsibilities not expressly assumed herein or therein shall be implied to
have been assumed by the Agent.
(b) The relationship between the Agent and each of the Banks is that of an
independent contractor. The use of the term "Agent" is for convenience only and
is used to describe, as a form of convention, the independent contractual
relationship between the Agent and each of the Banks. Nothing contained in this
Credit Agreement nor the other Loan Documents shall be construed to create an
agency, trust or other fiduciary relationship between the Agent and any of the
Banks.
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(c) As an independent contractor empowered by the Banks to exercise certain
rights and perform certain duties and responsibilities hereunder and under the
other Loan Documents, the Agent is nevertheless a "representative" of the Banks,
as that term is defined in Article 1 of the Uniform Commercial Code, for
purposes of actions for the benefit of the Banks and the Agent with respect to
all collateral security and guaranties contemplated by the Loan Documents. Such
actions include the designation of the Agent as "secured party", "mortgagee" or
the like on all financing statements and other documents and instruments,
whether recorded or otherwise, relating to the attachment, perfection, priority
or enforcement of any security interests, mortgages or deeds of trust in
collateral security intended to secure the payment or performance of any of the
Obligations, all for the benefit of the Banks and the Agent.
SS.14.2. EMPLOYEES AND AGENTS.
The Agent may exercise its powers and execute its duties by or through
employees or agents and shall be entitled to take, and to rely on, advice of
counsel concerning all matters pertaining to its rights and duties under this
Credit Agreement and the other Loan Documents. The Agent may utilize the
services of such Persons as the Agent in its sole discretion may reasonably
determine, and all reasonable fees and expenses of any such Persons shall be
paid by the Borrowers.
SS.14.3. NO LIABILITY.
Neither the Agent nor any of its shareholders, directors, officers or
employees nor any other Person assisting them in their duties nor any agent or
employee thereof, shall be liable for any waiver, consent or approval given or
any action taken, or omitted to be taken, in good faith by it or them hereunder
or under any of the other Loan Documents, or in connection herewith or
therewith, or be responsible for the consequences of any oversight or error of
judgment whatsoever, except that the Agent or such other Person, as the case may
be, may be liable for losses due to its willful misconduct or gross negligence.
SS.14.4. NO REPRESENTATIONS.
SS.14.4.1. GENERAL.
The Agent shall not be responsible for the execution or validity
or enforceability of this Credit Agreement, the Notes, the Letters of
Credit, any of the other Loan Documents or any instrument at any time
constituting, or intended to constitute, collateral security for the
Notes, or for the value of any such collateral security or for the
validity, enforceability or collectability of any such amounts owing
with respect to the Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan
Documents or in any certificate or instrument hereafter furnished to
it by or on behalf of any Borrower, or be bound to ascertain or
inquire as to the performance or observance of any of the terms,
conditions,
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covenants or agreements herein or in any instrument at any time
constituting, or intended to constitute, collateral security for the
Notes or to inspect any of the properties, books or records of any
Borrower. The Agent shall not be bound to ascertain whether any
notice, consent, waiver or request delivered to it by the Borrowers or
any holder of any of the Notes shall have been duly authorized or is
true, accurate and complete. The Agent has not made nor does it now
make any representations or warranties, express or implied, nor does
it assume any liability to the Banks, with respect to the credit
worthiness or financial conditions of any Borrower. Each Bank
acknowledges that it has, independently and without reliance upon the
Agent or any other Bank, and based upon such information and documents
as it has deemed appropriate, made its own credit analysis and
decision to enter into this Credit Agreement.
SS.14.4.2. CLOSING DOCUMENTATION, ETC.
For purposes of determining compliance with the conditions set
forth in ss.9, each Bank that has executed this Credit Agreement shall
be deemed to have consented to, approved or accepted, or to be
satisfied with, each document and matter either sent, or made
available, by the Agent or the Arranger to such Bank for consent,
approval, acceptance or satisfaction, unless an officer of the Agent
or the Arranger active upon the Borrowers' account shall have received
notice from such Bank prior to the Closing Date specifying such Bank's
objection thereto and such objection shall not have been withdrawn by
notice to the Agent or the Arranger to such effect on or prior to the
Closing Date.
SS.14.5. PAYMENTS.
SS.14.5.1. PAYMENTS TO AGENT.
A payment by the Borrower to the Agent hereunder or any of the
other Loan Documents for the account of any Bank shall constitute a
payment to such Bank. The Agent agrees promptly to distribute to each
Bank such Bank's pro rata share of payments received by the Agent for
the account of the Banks except as otherwise expressly provided herein
or in any of the other Loan Documents.
SS.14.5.2. DISTRIBUTION BY AGENT.
If in the opinion of the Agent the distribution of any amount
received by it in such capacity hereunder, under the Notes or under
any of the other Loan Documents might involve it in liability, it may
refrain from making distribution until its right to make distribution
shall have been adjudicated by a court of competent jurisdiction. If a
court of competent jurisdiction shall adjudge that any amount received
and distributed by the Agent is to be repaid, each Person to whom any
such distribution shall have been made shall either repay to the Agent
its proportionate share of the
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amount so adjudged to be repaid or shall pay over the same in such
manner and to such Persons as shall be determined by such court.
SS.14.5.3. DELINQUENT BANKS.
Notwithstanding anything to the contrary contained in this Credit
Agreement or any of the other Loan Documents, any Bank that fails (i)
when required hereunder to make available to the Agent its pro rata
share of any Loan or to purchase any Letter of Credit Participation or
(ii) to comply with the provisions of ss.13 with respect to making
dispositions and arrangements with the other Banks, where such Bank's
share of any payment received, whether by setoff or otherwise, is in
excess of its pro rata share of such payments due and payable to all
of the Banks, in each case as, when and to the full extent required by
the provisions of this Credit Agreement, shall be deemed delinquent (a
"Delinquent Bank") and shall be deemed a Delinquent Bank until such
time as such delinquency is satisfied. A Delinquent Bank shall be
deemed to have assigned any and all payments due to it from the
Borrowers, whether on account of outstanding Loans, unpaid
Reimbursement Obligations, interest, fees or otherwise, to the
remaining nondelinquent Banks for application to, and reduction of,
their respective pro rata shares of all outstanding Loans and unpaid
Reimbursement Obligations. The Delinquent Bank hereby authorizes the
Agent to distribute such payments to the nondelinquent Banks in
proportion to their respective pro rata shares of all outstanding
Loans and unpaid Reimbursement Obligations. A Delinquent Bank shall be
deemed to have satisfied in full a delinquency when and if, as a
result of application of the assigned payments to all outstanding
Loans and unpaid Reimbursement Obligations of the nondelinquent Banks,
the Banks' respective pro rata shares of all outstanding Loans and
unpaid Reimbursement Obligations have returned to those in effect
immediately prior to such delinquency and without giving effect to the
nonpayment causing such delinquency. A Delinquent Bank shall not be
entitled to vote on any matters under this Credit Agreement or the
other Loan Documents until such delinquency is satisfied in accordance
with this ss.14.5.3, other than matters specified in ss.26 that
require the consent of each Bank affected thereby (and such Delinquent
Bank is affected thereby) or the consent of all Banks.
SS.14.6. HOLDERS OF NOTES.
The Agent may deem and treat the payee of any Note or the purchaser of any
Letter of Credit Participation as the absolute owner or purchaser thereof for
all purposes hereof until it shall have been furnished in writing with a
different name by such payee or by a subsequent holder, assignee or transferee.
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SS.14.7. INDEMNITY.
The Banks ratably agree hereby to indemnify and hold harmless the Agent,
its affiliates and the Documentation Agent from and against any and all claims,
actions and suits (whether groundless or otherwise), losses, damages, costs,
expenses (including any expenses for which the Agent, such affiliate or the
Documentation Agent has not been reimbursed by the Borrowers as required by
ss.15), and liabilities of every nature and character arising out of or related
to this Credit Agreement, the Notes, or any of the other Loan Documents or the
transactions contemplated or evidenced hereby or thereby, or the Agent's, such
affiliates or the Documentation Agent's actions taken hereunder or thereunder,
except to the extent that any of the same shall be directly caused by the
Agent's, such affiliates or the Documentation Agent's willful misconduct or
gross negligence.
SS.14.8. AGENT AS BANK.
In its individual capacity, BKB shall have the same obligations and the
same rights, powers and privileges in respect to its Commitment and the Loans
made by it, and as the holder of any of the Notes and as the purchaser of any
Letter of Credit Participations, as it would have were it not also the Agent. In
its individual capacity, LaSalle shall have the same obligations and the same
rights, powers and privileges in respect to its Commitment and the Loans made by
it, and as the holder of any of the Notes and as the purchaser of any Letter of
Credit Participations, as it would have were it not also the Documentation
Agent.
SS.14.9. RESIGNATION.
The Agent may resign at any time by giving sixty (60) days prior written
notice thereof to the Banks and the Borrowers. Upon any such resignation, the
Majority Banks shall have the right to appoint a successor Agent. Unless a
Default or Event of Default shall have occurred and be continuing, such
successor Agent shall be reasonably acceptable to the Borrowers. If no successor
Agent shall have been so appointed by the Majority Banks and shall have accepted
such appointment within thirty (30) days after the retiring Agent's giving of
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a financial institution having a
rating of not less than A or its equivalent by Standard & Poor's Ratings Group.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation, the provisions of this Credit Agreement and the
other Loan Documents shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Agent.
SS.14.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT.
Each Bank hereby agrees that, upon learning of the existence of a Default
or an Event of Default, it shall promptly notify the Agent thereof. The Agent
hereby agrees that upon receipt of any notice under this ss.14.10 it shall
promptly notify the other Banks of the existence of such Default or Event of
Default.
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SS.14.11. DUTIES IN THE CASE OF ENFORCEMENT.
In case one of more Events of Default have occurred and shall be
continuing, and whether or not acceleration of the Obligations shall have
occurred, the Agent shall, if (i) so requested by the Majority Banks and (ii)
the Banks have provided to the Agent such additional indemnities and assurances
against expenses and liabilities as the Agent may reasonably request, proceed to
enforce the provisions of the Security Documents authorizing the sale or other
disposition of all or any part of the Collateral and exercise all or any such
other legal and equitable and other rights or remedies as it may have in respect
of such Collateral. The Majority Banks may direct the Agent in writing as to the
method and the extent of any such sale or other disposition, the Banks hereby
agreeing to indemnify and hold the Agent, harmless from all liabilities incurred
in respect of all actions taken or omitted in accordance with such directions,
provided that the Agent need not comply with any such direction to the extent
that the Agent reasonably believes the Agent's compliance with such direction to
be unlawful in any applicable jurisdiction.
SS.14.12. DUTIES OF DOCUMENTATION AGENT AND CO-AGENTS.
The Documentation Agent and Co-Agents as such shall have no duties or
responsibilities to the Borrowers, the Banks or the Agent hereunder.
SS.15. EXPENSES AND INDEMNIFICATION.
SS.15.1. EXPENSES.
Whether or not the transactions contemplated herein shall be consummated,
the Borrowers jointly and severally agree to pay (i) the reasonable costs of
producing and reproducing this Credit Agreement, the other Loan Documents and
the other agreements and instruments mentioned herein, (ii) any taxes (including
any interest and penalties in respect thereto) payable by either Bank Agent or
any of the Banks (other than taxes based upon such Bank Agent's or any Bank's
net income) on or with respect to the transactions contemplated by this Credit
Agreement (the Borrowers hereby agreeing to indemnify the Agent and each Bank
with respect thereto), (iii) the reasonable fees, expenses and disbursements of
counsel to each Bank Agent incurred in connection with the preparation,
syndication, administration or interpretation of the Loan Documents and other
instruments mentioned herein, each closing hereunder, any amendments,
modifications, approvals, consents or waivers hereto or hereunder, or the
cancellation of any Loan Document upon payment in full in cash of all of the
Obligations or pursuant to any terms of such Loan Document providing for such
cancellation, (iv) the fees, expenses and disbursements of each Bank Agent, the
Arranger, or any of their affiliates incurred by each Bank Agent, the Arranger,
or such affiliate in connection with the preparation, syndication,
administration or interpretation of the Loan Documents and other instruments
mentioned herein, including all appraisal charges, (v) all reasonable
out-of-pocket expenses (including without limitation reasonable attorneys' fees
and costs, other than attorneys which are employees of any Bank or either Bank
Agent, and
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reasonable consulting, accounting, appraisal, investment banking and similar
professional fees and charges) incurred by any Bank or either Bank Agent in
connection with (A) the enforcement of or preservation of rights under any of
the Loan Documents against any Borrower or the administration thereof after the
occurrence of a Default or Event of Default and (B) any litigation, proceeding
or dispute whether arising hereunder or otherwise, in any way related to any
Bank's or either Bank Agent's relationship with any Borrower and (vi) all
reasonable fees, expenses and disbursements of the Agent incurred in connection
with UCC searches and UCC filings.
SS.15.2. INDEMNIFICATION.
The Borrowers agree to indemnify and hold harmless the Bank Agents, their
affiliates, the Arranger and the Banks from and against any and all claims,
actions and suits whether groundless or otherwise, and from and against any and
all liabilities, losses, damages and expenses of every nature and character
arising out of this Credit Agreement or any of the other Loan Documents or the
transactions contemplated hereby including, without limitation, (i) any actual
or proposed use by the Borrowers of the proceeds of any of the Loans or Letters
of Credit, (ii) the Borrowers entering into or performing this Credit Agreement
or any of the other Loan Documents or (iii) with respect to the Borrowers and
their respective properties and assets, the violation of any Environmental Law,
the presence, disposal, escape, seepage, leakage, spillage, discharge, emission,
release or threatened release of any Hazardous Substances or any action, suit,
proceeding or investigation brought or threatened with respect to any Hazardous
Substances (including, but not limited to, claims with respect to wrongful
death, personal injury or damage to property), in each case including, without
limitation, the reasonable fees and disbursements of counsel (excluding the
allocated costs of internal counsel) incurred in connection with any such
investigation, litigation or other proceeding except for claims, actions, suits,
liabilities, losses, damages and expenses arising from the gross negligence or
willful misconduct of such Bank Agent, such affiliate or such Bank. In
litigation, or the preparation therefor, the Banks, the Bank Agents, the
Arranger and their affiliates shall be entitled to select their own counsel and,
in addition to the foregoing indemnity, the Borrowers agree to pay promptly the
reasonable fees and expenses of such counsel for each Bank and Bank Agent. If,
and to the extent that the obligations of the Borrowers under this ss.15.2 are
unenforceable for any reason, the Borrowers hereby agree to make the maximum
contribution to the payment in satisfaction of such obligations which is
permissible under applicable law.
SS.15.3. SURVIVAL.
The covenants contained in this ss.15 shall survive payment or satisfaction
in full of all other Obligations.
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SS.16. SURVIVAL OF COVENANTS, ETC.
Unless otherwise stated herein, all covenants, agreements, representations
and warranties made herein, in the Notes, in the other Loan Documents or in any
documents or other papers delivered by or on behalf of the Borrowers pursuant
hereto shall be deemed to have been relied upon by the Banks and the Agent,
notwithstanding any investigation heretofore or hereafter made by any of them,
and shall survive the making by the Banks of the Loans and the issuance,
extension or renewal of any Letters of Credit, as herein contemplated, and shall
continue in full force and effect so long as any amount due under this Credit
Agreement, any Letter of Credit or the Notes remains outstanding and unpaid or
any Bank has any obligation to make any Loans or the Agent has any obligation to
issue any Letters of Credit hereunder. All statements contained in any
certificate or other paper delivered by or on behalf of the Borrowers pursuant
hereto or in connection with the transactions contemplated hereby shall
constitute representations and warranties by the Borrowers hereunder.
SS.17. ASSIGNMENT AND PARTICIPATION.
SS.17.1. CONDITIONS TO ASSIGNMENT BY BANKS.
Except as provided herein, each Bank may assign to one or more Eligible
Assignees all or a portion of its interests, rights and obligations under this
Credit Agreement (including all or a portion of its Commitment Percentage and
Commitment and the same portion of the Loans at the time owing to it, the Notes
held by it and its participating interest in the risk relating to any Letters of
Credit or Swing Line Loans); provided that (i) each of the Agent and, unless a
Default or Event of Default shall have occurred and be continuing, the Parent
(as the representative of the Borrowers) shall have given its prior written
consent to such assignment, which consent, in the case of the Parent, will not
be unreasonably withheld, (ii) each such assignment shall be of a constant, and
not a varying, percentage of all the assigning Bank's rights and obligations
under this Credit Agreement, (iii) each assignment shall be in a minimum amount
that is $5,000,000 or greater, or the entire Commitment of such Bank and (iv)
the parties to such assignment shall execute and deliver to the Agent, for
recording in the Register (as hereinafter defined), an Assignment and
Acceptance, substantially in the form of Exhibit D hereto (an "Assignment and
Acceptance"), together with any Notes subject to such assignment. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five (5) Business Days after the execution thereof, (i) the assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Bank hereunder,
and (ii) the assigning Bank shall, to the extent provided in such assignment and
upon payment to the Agent of the registration fee referred to in ss.17.3, be
released from its obligations under this Credit Agreement.
SS.17.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS.
By executing and delivering an Assignment and Acceptance, the parties to
the assignment thereunder confirm to and agree with each other and the other
parties hereto as follows:
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(a) other than the representation and warranty that it is the legal and
beneficial owner of the interest being assigned thereby free and clear of any
adverse claim, the assigning Bank makes no representation or warranty, express
or implied, and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Credit
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Credit Agreement, the other Loan Documents or any
other instrument or document furnished pursuant hereto or the attachment,
perfection or priority of any security interest or mortgage,
(b) the assigning Bank makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrowers or any
other Person primarily or secondarily liable in respect of any of the
Obligations, or the performance or observance by the Borrowers or any other
Person primarily or secondarily liable in respect of any of the Obligations of
any of their obligations under this Credit Agreement or any of the other Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto;
(c) such assignee confirms that it has received a copy of this Credit
Agreement, together with copies of the most recent financial statements referred
to in ss.6.4 and ss.7.4 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance;
(d) such assignee will, independently and without reliance upon the
assigning Bank, the Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Credit Agreement;
(e) such assignee represents and warrants that it is an Eligible Assignee;
(f) such assignee appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under this Credit Agreement and
the other Loan Documents as are delegated to the Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental thereto;
(g) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Credit Agreement are
required to be performed by it as a Bank;
(h) such assignee represents and warrants that it is legally authorized to
enter into such Assignment and Acceptance; and
(i) such assignee acknowledges that it has made arrangements with the
assigning Bank satisfactory to such assignee with respect to its pro rata share
of Letter of Credit Fees in respect of outstanding Letters of Credit.
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SS.17.3. REGISTER.
The Agent shall maintain a copy of each Assignment and Acceptance delivered
to it and a register or similar list (the "Register") for the recordation of the
names and addresses of the Banks and the Commitment Percentage of, and principal
amount of the Loans owing to and Letter of Credit Participations purchased by,
the Banks from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrowers, the Agent and the Banks may
treat each Person whose name is recorded in the Register as a Bank hereunder for
all purposes of this Credit Agreement. The Register shall be available for
inspection by the Borrowers and the Banks at any reasonable time and from time
to time upon reasonable prior notice. Upon each such recordation, the assigning
Bank (or, in the case that the assignee bank is a Replacement Bank, the
Replacement Bank) agrees to pay to the Agent a registration fee in the sum of
$3,500.
SS.17.4. NEW NOTES.
Upon its receipt of an Assignment and Acceptance executed by the parties to
such assignment, together with each Note subject to such assignment, the Agent
shall (i) record the information contained therein in the Register, and (ii)
give prompt notice thereof to the Borrower and the Banks (other than the
assigning Bank). Within five (5) Business Days after receipt of such notice, the
Borrowers, at their own expense, shall execute and deliver to the Agent, in
exchange for each surrendered Note, a new Note or Notes to the order of such
Eligible Assignee in an amount equal to the amount assumed by such Eligible
Assignee pursuant to such Assignment and Acceptance and, if the assigning Bank
has retained some portion of its obligations hereunder, a new Note or Notes to
the order of the assigning Bank in an amount equal to the amount retained by it
hereunder. Such new Note or Notes shall provide that they are replacements for
the surrendered Notes, shall be in an aggregate principal amount equal to the
aggregate principal amount of the surrendered Notes, shall be dated the
effective date of such in Assignment and Acceptance and shall otherwise be
substantially the form of the assigned Note or Notes. Within five (5) days of
issuance of any new Notes pursuant to this ss.17.4, if requested by the assignor
or assignee Bank, the Borrowers shall deliver an opinion of counsel, addressed
to the Banks and the Agent, relating to the due authorization, execution and
delivery of such new Note or Notes and the legality, validity and binding effect
thereof, in form and substance satisfactory to the Banks. The surrendered Notes
shall be cancelled and returned to the Borrowers.
SS.17.5. PARTICIPATIONS.
Each Bank may sell participations to one or more banks or other entities in
all or a portion of such Bank's rights and obligations under this Credit
Agreement and the other Loan Documents; provided that (i) each such
participation shall be in an amount of not less than $5,000,000, (ii) any such
sale or participation shall not affect the rights and duties of the selling Bank
hereunder to the Borrowers and (iii) the only rights granted to the participant
pursuant to such participation arrangements with respect to waivers, amendments
or
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modifications of the Loan Documents shall be the rights to approve waivers,
amendments or modifications that would reduce the principal of or the interest
rate on any Loans, extend the term or increase the amount of the Commitment of
such Bank as it relates to such participant, reduce the amount of any fees to
which such participant is entitled or extend any regularly scheduled payment
date for principal or interest.
SS.17.6. DISCLOSURE.
Each Borrower agrees that in addition to disclosures made in accordance
with standard and customary banking practices any Bank may disclose information
obtained by such Bank pursuant to this Credit Agreement to assignees or
participants and potential assignees or participants hereunder; provided that
such assignees or participants or potential assignees or participants shall
agree (i) to treat in confidence such information unless such information
otherwise becomes public knowledge, (ii) not to disclose such information to a
third party, except as required by law or legal process and (iii) not to make
use of such information for purposes of transactions unrelated to such
contemplated assignment or participation.
SS.17.7. ASSIGNEE OR PARTICIPANT AFFILIATED WITH A BORROWER.
If any assignee Bank is an Affiliate of any Borrower, then any such
assignee Bank shall have no right to vote as a Bank hereunder or under any of
the other Loan Documents for purposes of granting consents or waivers or for
purposes of agreeing to amendments or other modifications to any of the Loan
Documents or for purposes of making requests to the Agent pursuant to ss.12.1 or
ss.12.2, and the determination of the Majority Banks shall for all purposes of
this Credit Agreement and the other Loan Documents be made without regard to
such assignee Bank's interest in any of the Loans or Reimbursement Obligations.
If any Bank sells a participating interest in any of the Loans or Reimbursement
Obligations to a participant, and such participant is a Borrower or an Affiliate
of a Borrower, then such transferor Bank shall promptly notify the Agent of the
sale of such participation. A transferor Bank shall have no right to vote as a
Bank hereunder or under any of the other Loan Documents for purposes of granting
consents or waivers or for purposes of agreeing to amendments or modifications
to any of the Loan Documents or for purposes of making requests to the Agent
pursuant to ss.12.1 or ss.12.2 to the extent that such participation is
beneficially owned by a Borrower or any Affiliate of a Borrower, and the
determination of the Majority Banks shall for all purposes of this Credit
Agreement and the other Loan Documents be made without regard to the interest of
such transferor Bank in the Loans or Reimbursement Obligations to the extent of
such participation.
SS.17.8. MISCELLANEOUS ASSIGNMENT PROVISIONS.
Any assigning Bank shall retain its rights to be indemnified pursuant to
ss.17 with respect to any claims or actions arising prior to the date of such
assignment. If any assignee Bank is not incorporated under the laws of the
United States of America or any state thereof, it shall, prior to the date on
which any interest or fees are payable hereunder or under any of
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the other Loan Documents for its account, deliver to the Borrower and the Agent
certification as to its exemption from deduction or withholding of any United
States federal income taxes. Anything contained in this ss.17 to the contrary
notwithstanding, any Bank may at any time pledge all or any portion of its
interest and rights under this Credit Agreement (including all or any portion of
its Notes) to (a) any of the twelve Federal Reserve Banks organized under ss.4
of the Federal Reserve Act, 12 U.S.C. ss.341 or (b) to a lender or such bank (or
trustee therefor) in connection with a bona fide financing. No such pledge or
the enforcement thereof shall release the pledgor Bank from its obligations
hereunder or under any of the other Loan Documents, provide any voting rights
hereunder to the pledgee thereof, or affect any rights or obligations of the
Borrowers or the Agent hereunder. Notwithstanding any contained herein to the
contrary, no assignment or participation shall operate to increase the Total
Commitment hereunder or otherwise alter the substantive terms of this Credit
Agreement, except as contemplated under ss.2.2.2.
SS.17.9. ASSIGNMENT BY BORROWERS.
None of the Borrowers shall assign or transfer any of its rights or
obligations under any of the Loan Documents without the prior written consent of
each of the Banks.
SS.18. PARTIES IN INTEREST.
All the terms of this Credit Agreement and the other Loan Documents shall
be binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto and thereto.
SS.19. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the other Loan Documents shall be in writing and shall be
delivered in hand, mailed by United States first-class mail, postage prepaid, or
sent by telegraph, telecopy, telex or facsimile and confirmed by delivery via
courier or postal service, addressed as follows:
(a) if to the Borrowers, at NationsRent Inc., ▇▇▇ ▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive
Vice President, telephone number (▇▇▇)- ▇▇▇-▇▇▇▇, fax number (▇▇▇)-▇▇▇-▇▇▇▇;
(b) if to the Agent or BKB, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Director, telephone number
▇▇▇-▇▇▇-▇▇▇▇, telecopy number ▇▇▇-▇▇▇-▇▇▇▇; and
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(c) if to any Bank, at such Bank's address set forth on Schedule 1
hereto;
or, in each case, such other address for notice as shall have last been
furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (a) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile,
(b) if sent by registered or certified first-class mail, postage prepaid, five
Business Days after the posting thereof, and (c) if sent by telex or cable, at
the time of the dispatch thereof, if in normal business hours in the country of
receipt, or otherwise at the opening of business on the following Business Day.
SS.20. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
SS.20.1. SHARING OF INFORMATION WITH SECTION 20 SUBSIDIARY.
Each Borrower acknowledges that from time to time financial advisory,
investment banking and other services may be offered or provided to the
Borrowers, in connection with this Credit Agreement or otherwise, by a Section
20 Subsidiary. Each Borrower hereby authorizes (a) such Section 20 Subsidiary to
share with the Agent and each Bank any information delivered to such Section 20
Subsidiary by such Borrower, and (b) the Agent and each Bank to share with such
Section 20 Subsidiary any information delivered to the Agent or such Bank by the
Borrowers pursuant to this Credit Agreement, or in connection with the decision
of such Bank to enter into this Credit Agreement; it being understood, in each
case, that any such Section 20 Subsidiary receiving such information shall be
bound by the confidentiality provisions of this Credit Agreement. Such
authorization shall survive the payment and satisfaction in full of all of the
Obligations.
SS.20.2. CONFIDENTIALITY.
Each of the Banks and the Agent agrees, on behalf of itself and each of
their affiliates, directors, officers, employees and representatives, to use
reasonable precautions to keep confidential, in accordance with their customary
procedures for handling confidential information of the same nature and in
accordance with safe and sound banking practices, any non-public information
supplied to it by the Borrowers pursuant to this Credit Agreement unless such
information is identified by such Person as not being confidential at the time
the same is delivered to the Banks or the Agent, provided that nothing herein
shall limit the disclosure of any such information (a) after such information
shall have become public other than through a violation of this ss.20, (b) to
the extent required by statute, rule, regulation or judicial process, (c) to
counsel for any of the Banks or the Agent, (d) to bank examiners or any other
regulatory authority having jurisdiction over any Bank or the Agent, or to
auditors or accountants, (e) to the Agent, any Bank or any Section 20
Subsidiary, (f) in connection with any litigation to which any one or more of
the Banks, the Agent or any Section 20 Subsidiary is a party, or in connection
with the enforcement of rights or remedies hereunder or under any other Loan
Document, (g) to a subsidiary or affiliate of such Bank or (h) to any
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assignee or participant (or prospective assignee or participant) so long as such
assignee or participant agrees to be bound by the provisions of this ss.20.
SS.20.3. PRIOR NOTIFICATION.
Unless specifically prohibited by applicable law or court order, each of
the Banks and the Agent shall, prior to disclosure thereof, notify the Borrowers
of any request for disclosure of any such non-public information by any
governmental agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such Bank by such
governmental agency) or pursuant to legal process.
SS.20.4. OTHER.
In no event shall any Bank or the Agent be obligated or required to return
any materials furnished to it or any Section 20 Subsidiary by the Borrowers. The
obligations of each Bank under this ss.20 shall supersede and replace the
obligations of such Bank under any confidentiality letter in respect of this
financing signed and delivered by such Bank to the Borrowers prior to the date
hereof and shall be binding upon any assignee of, or purchaser of any
participation in, any interest in any of the Loans or Reimbursement Obligations
from any Bank.
SS.21. MISCELLANEOUS.
The rights and remedies herein expressed are cumulative and not exclusive
of any other rights which the Banks or Agent would otherwise have. The captions
in this Credit Agreement are for convenience of reference only and shall not
define or limit the provisions hereof. This Credit Agreement and any amendment
hereof may be executed in several counterparts and by each party on a separate
counterpart, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one instrument. In proving this
Credit Agreement it shall not be necessary to produce or account for more than
one such counterpart signed by the party against whom enforcement is sought.
SS.22. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection herewith
or therewith express the entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Credit Agreement nor any term
hereof may be changed, waived, discharged or terminated, except as provided in
ss.26. No waiver shall extend to or affect any obligation not expressly waived
or impair any right consequent thereon. No course of dealing or omission on the
part of the Agent or any Bank in exercising any right shall operate as a waiver
thereof or otherwise be prejudicial thereto. No notice to or demand upon the
Borrowers shall entitle the Borrowers to other or further notice or demand in
similar or other circumstances.
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SS.23. WAIVER OF JURY TRIAL.
EACH BORROWER HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY
ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS CREDIT
AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR
OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, EACH BORROWER HEREBY WAIVES ANY RIGHT
IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING
SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE BORROWERS (A) CERTIFY
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK OR THE AGENT HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH BANK OR THE AGENT WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B)
ACKNOWLEDGE THAT THE AGENT AND THE BANKS HAVE BEEN INDUCED TO ENTER INTO THIS
CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE A PARTY BECAUSE
OF, AMONG OTHER THINGS, THE BORROWERS' WAIVERS AND CERTIFICATIONS CONTAINED
HEREIN.
SS.24. GOVERNING LAW.
This Credit Agreement and each of the other Loan Documents are contracts
under the laws of the Commonwealth of Massachusetts and shall for all purposes
be construed in accordance with and governed by the laws of said commonwealth
(excluding the laws applicable to conflicts or choice of law). The Borrowers
consent to the jurisdiction of any of the federal or state courts located in the
Commonwealth of Massachusetts in connection with any suit to enforce the rights
of any Bank or the Agent under this Credit Agreement or any of the other Loan
Documents.
SS.25. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one clause
or provision hereof shall be held invalid or unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction, and shall not
in any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Credit Agreement in any jurisdiction.
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SS.26. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Any consent or approval required or permitted by this Credit Agreement to
be given by the Banks may be given, and any term of this Credit Agreement, the
other Loan Documents or any other instrument related hereto or mentioned herein
may be amended, and the performance or observance by the Borrowers of any terms
of this Credit Agreement, the other Loan Documents or such other instrument or
the continuance of any Default or Event of Default may be waived (either
generally or in a particular instance and either retroactively or prospectively)
with, but only with, the written consent of the Borrowers and the written
consent of the Majority Banks, provided however, that the Agent may, in its
reasonable discretion, release Collateral with an aggregate value of $500,000 or
less in any calendar year (in addition to Collateral released pursuant to
ss.7.4.2) provided that the Agent shall promptly thereafter notify the Banks
regarding the reasons for such release. Notwithstanding the foregoing, no
amendment, waiver or consent shall do any of the following unless in writing and
signed by the Borrowers and each of the Banks affected thereby: (a) increase the
Commitments of the Banks or subject any Bank to any additional obligations
(other than in accordance with ss.2.2.2 hereof), or (b) reduce the principal of
or the rate of interest on the Notes (including, without limitation, the default
interest rate) or any fees payable hereunder; and FURTHER, no amendment, waiver
or consent shall do any of the following unless in writing and signed by ALL of
the Banks: (c) postpone the Maturity Date or any date fixed for any payment in
respect of principal or interest (including, without limitation, the default
interest rate) on the Notes, (d) change the definition of "Majority Banks" or
the number of Banks which shall be required for the Banks or any of them to take
any action under the Loan Documents; (e) amend ss.2.2.2 or this ss.26; (f)
release any Collateral with an aggregate value exceeding $500,000 (in addition
to Collateral released pursuant to ss.7.4.2) in any calendar year or (g) release
any Borrower from its obligations hereunder; and FURTHER, no amendment, waiver
or consent shall do any of the following unless in writing and signed by the
Agent: (h) amend the amount of the Agent's fee or Issuance Fees payable for the
Agent's account or (i) amend ss.14; and further, no amendment, waiver or consent
shall amend ss.2.8 or any other provisions relating to the Swing Line Loans
unless in writing and signed by BKB.
No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of the Agent or any Bank in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon
the Borrowers shall entitle the Borrowers to other or further notice or demand
in similar or other circumstances.
SS.27. TRANSITIONAL ARRANGEMENTS.
SS.27.1. PRIOR LOAN AGREEMENT SUPERSEDED.
This Credit Agreement shall supersede the Prior Credit Agreement in
its entirety, except as provided in this ss.27. On the Closing Date, the rights
and obligations of the parties under the Prior Credit Agreement and the
"Revolving Credit Notes" as defined therein shall be subsumed within and be
governed by this Credit Agreement and the Revolving Credit
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Notes; provided, however, that each of the "Loans" (as defined in the Prior
Credit Agreement) outstanding under the Prior Credit Agreement on the Closing
Date shall, for purposes of this Credit Agreement, be included as Revolving
Credit Loans (as defined herein).
SS.27.2. RETURN AND CANCELLATION OF NOTES.
Upon its receipt of the Notes to be delivered hereunder on the Closing
Date, each Bank will promptly return to the Borrowers, marked "Canceled", the
Revolving Credit Notes of the Borrowers held by such Bank pursuant to the Prior
Credit Agreement, if any.
SS.27.3. INTEREST AND FEES UNDER SUPERSEDED AGREEMENT.
All interest and all commitment, facility and other fees and expenses
owing or accruing under or in respect of the Prior Credit Agreement shall be
calculated as of the Closing Date (prorated in the case of any fractional
periods), and shall be paid on the dates and in accordance with the method
specified in the Prior Credit Agreement, as if the Prior Credit Agreement were
still in effect.
SS.27.4. INTERBANK SETTLEMENTS.
On the Closing Date, each of the Banks shall pay to each of the other
Banks such amounts as may be necessary so as to result in the outstanding amount
of Loans made by each Bank being equal to such Bank's Commitment Percentage of
the aggregate amount of Loans outstanding as of the Closing Date. The Borrowers
and the Banks hereby agree that all amounts paid to any Bank by any other Bank
in connection with interbank settlements with respect to Loans outstanding
immediately prior to the date hereof shall be deemed to constitute Loans under
the Credit Agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the undersigned have duly executed this Credit
Agreement under seal as of the date first set forth above.
THE BORROWERS:
NATIONSRENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Title: Vice President, Secretary and Treasurer
SAM'S EQUIPMENT RENTAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Title: Secretary and Treasurer
▇▇▇▇▇▇▇ TRAILER MANUFACTURING
COMPANY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Title: Secretary and Treasurer
NATIONSRENT OF KENTUCKY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Title: Secretary and Treasurer
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NATIONSRENT OF OHIO, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Title: Secretary and Treasurer
NATIONSRENT OF INDIANA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Title: Secretary and Treasurer
NATIONSRENT OF WEST VIRGINIA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Title: Secretary and Treasurer
TITAN RENTALS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Title: Secretary and Treasurer
91
NATIONSRENT OF FLORIDA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Title: Secretary and Treasurer
THE ▇▇▇▇-▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Title: Secretary and Assistant Treasurer
A-ACTION RENTAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Title: Vice President, Secretary and Treasurer
▇▇▇▇▇▇▇ EQUIPMENT CO.
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Title: Vice President, Secretary and Treasurer
NATIONSRENT OF TEXAS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Title: Secretary and Treasurer
92
THE BANKS:
BANKBOSTON, N.A.,
individually and as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Director
LASALLE NATIONAL BANK,
individually and as Documentation Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
THE FIFTH THIRD BANK OF COLUMBUS
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE PROVIDENT BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
NATIONSBANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
93
FLEET BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
HUNTINGTON NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
COMERICA BANK
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
NATIONAL CITY BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLAND BRANCHES
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
94
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President