CREDIT AGREEMENT
Dated as of August 29, 2000
among
REHABCARE GROUP, INC.,
as Borrower,
CERTAIN SUBSIDIARIES AND AFFILIATES OF THE BORROWER,
as Guarantors,
THE LENDERS NAMED HEREIN,
FIRST UNION NATIONAL BANK,
as Syndication Agent,
FIRSTAR BANK N.A.,
as Documentation Agent
and
BANK OF AMERICA, N.A.,
as Administrative Agent
Arranged by:
FIRST UNION SECURITIES, INC.,
as Co-Lead Arranger
and
BANC OF AMERICA SECURITIES LLC,
as Co-Lead Arranger and Sole Book Manager
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS............................................1
1.1 Definitions............................................1
1.2 Computation of Time Periods...........................22
1.3 Accounting Terms......................................22
SECTION 2 CREDIT FACILITIES.....................................22
2.1 Commitments...........................................23
2.2 Method of Borrowing...................................23
2.3 Interest..............................................25
2.5 Notes.................................................25
2.6 Additional Provisions relating to Letters of Credit...25
2.7 Additional Provisions relating to Swingline Loans.....29
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES........30
3.1 Default Rate..........................................30
3.2 Extension and Conversion..............................30
3.3 Prepayments...........................................30
3.4 Reduction and Termination of Commitments..............31
3.5 Fees..................................................32
3.6 Capital Adequacy......................................33
3.7 Limitation on Eurodollar Loans........................33
3.8 Illegality............................................33
3.9 Requirements of Law...................................33
3.10 Treatment of Affected Loans...........................34
3.11 Taxes.................................................35
3.12 Compensation..........................................36
3.13 Pro Rata Treatment....................................37
3.14 Sharing of Payments...................................38
3.15 Payments, Computations, Etc...........................38
3.16 Evidence of Debt......................................40
SECTION 4 GUARANTY..............................................41
4.1 The Guaranty..........................................41
4.2 Obligations Unconditional.............................41
4.3 Reinstatement.........................................42
4.4 Certain Additional Waivers............................43
4.5 Remedies..............................................43
4.6 Rights of Contribution................................43
4.7 Guarantee of Payment; Continuing Guarantee............44
SECTION 5 CONDITIONS............................................44
5.1 Closing Conditions....................................44
5.2 Conditions to all Extensions of Credit................46
SECTION 6 REPRESENTATIONS AND WARRANTIES........................47
6.1 Financial Condition...................................47
6.2 No Changes or Restricted Payments.....................47
6.3 Organization; Existence; Compliance with Law..........48
6.4 Power; Authorization; Enforceable Obligations.........48
6.5 No Legal Bar..........................................48
6.6 No Material Litigation and Disputes...................48
6.7 No Defaults...........................................49
6.8 Ownership and Operation of Property...................49
6.9 Intellectual Property.................................49
6.10 No Burdensome Restrictions............................49
6.11 Taxes.................................................49
6.12 ERISA.................................................50
6.13 Governmental Regulations, Etc.........................51
6.14 Subsidiaries..........................................51
6.15 Purpose of Extensions of Credit.......................52
6.16 Environmental Matters.................................52
6.17 No Material Misstatements.............................53
6.18 Labor Matters.........................................53
6.19 Security Documents....................................53
6.20 Location of Real Property and Leased Premises.........54
SECTION 7 AFFIRMATIVE COVENANTS.................................54
7.1 Information Covenants.................................54
7.2 Preservation of Existence and Franchises..............57
7.3 Books and Records.....................................57
7.4 Compliance with Law...................................58
7.5 Payment of Taxes and Other Indebtedness...............58
7.6 Insurance.............................................58
7.7 Maintenance of Property...............................58
7.8 Performance of Obligations............................59
7.9 Use of Proceeds.......................................59
7.10 Audits/Inspections....................................59
7.11 Financial Covenants...................................59
7.12 Additional Guarantors and Collateral..................60
SECTION 8 NEGATIVE COVENANTS....................................60
8.1 Indebtedness..........................................60
8.2 Liens.................................................61
8.3 Nature of Business....................................61
8.4 Merger and Consolidation, Dissolution and Acquisitions.61
8.5 Asset Dispositions....................................62
8.6 Investments...........................................63
8.7 Restricted Payments...................................63
8.8 Modifications and Payments in respect of Funded Debt..63
8.9 Transactions with Affiliates..........................63
8.10 Fiscal Year; Organizational Documents.................63
8.11 Limitation on Restricted Actions......................64
8.12 Ownership of Subsidiaries.............................64
8.13 Sale Leasebacks.......................................64
8.14 No Further Negative Pledges...........................64
SECTION 9 EVENTS OF DEFAULT.....................................64
9.1 Events of Default.....................................64
9.2 Acceleration; Remedies................................67
SECTION 10 AGENCY PROVISIONS....................................67
10.1 Appointment, Powers and Immunities....................67
10.2 Reliance by Administrative Agent......................68
10.3 Defaults..............................................68
10.4 Rights as a Lender....................................69
10.5 Indemnification.......................................69
10.6 Non-Reliance on Administrative Agent and Other Lenders.69
10.7 Successor Administrative Agent........................70
SECTION 11 MISCELLANEOUS........................................70
11.1 Notices...............................................70
11.2 Right of Set-Off; Adjustments.........................71
11.3 Benefit of Agreement..................................71
11.4 No Waiver; Remedies Cumulative........................73
11.5 Expenses; Indemnification.............................73
11.6 Amendments, Waivers and Consents.....................74
11.7 Counterparts..........................................75
11.8 Headings..............................................75
11.9 Survival..............................................75
11.10Governing Law; Submission to Jurisdiction; Venue......76
11.11Severability..........................................76
11.12Entirety..............................................76
11.13Binding Effect; Termination...........................76
11.14Confidentiality.......................................77
11.15Source of Funds.......................................77
11.16Conflict..............................................78
<PAGE>
SCHEDULES
Schedule 2.1 Lenders and Commitments
Schedule 2.2(a)(i) Form of Notice of Borrowing
Schedule 2.2(a)(ii) Form of Notice of Request of Letter of Credit
Schedule 2.5 Form of Revolving Note
Schedule 2.6(b) Existing Letters of Credit
Schedule 3.2 Form of Notice of Extension/Conversion
Schedule 5.1(f)(v) Form of Officer's Certificate
Schedule 6.6 Litigation
Schedule 6.8 Liens
Schedule 6.9 Intellectual Property
Schedule 6.14 Subsidiaries
Schedule 6.18 Labor Matters
Schedule 6.20(a) Locations of Owned and Leased Real Property
Schedule 6.20b) Locations of Tangible Personal Property
Schedule 6.20(c) Locations of Chief Executive Office/Principal
Place of Business
Schedule 7.1(c) Form of Officer's Compliance Certificate
Schedule 7.6 Insurance
Schedule 7.12 Form of Joinder Agreement
Schedule 8.1 Indebtedness
Schedule 8.6 Investments
Schedule 11.1 Lenders' Addresses
Schedule 11.3(b) Form of Assignment and Acceptance
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of August 29, 2000 (the
"Credit Agreement"), is by and among REHABCARE GROUP, INC., a
Delaware corporation (the "Borrower"), the Subsidiaries and
Affiliates of the Borrower identified as Guarantors on the
signature pages hereto and such other Subsidiaries and Affiliates
of the Borrower as may from time to time become Guarantors
hereunder in accordance with the provisions hereof (the
"Guarantors"), the lenders named herein and such other lenders as
may become a party hereto (the "Lenders"), FIRST UNION NATIONAL
BANK, as Syndication Agent, FIRSTAR BANK N.A., as Documentation
Agent, and BANK OF AMERICA, N.A., as Administrative Agent for the
Lenders (in such capacity, the "Administrative Agent").
W I T N E S S E T H
WHEREAS, the Credit Parties have requested that the Lenders
provide $125 million in credit facilities for the purposes
hereinafter set forth; and
WHEREAS, the Lenders have agreed to make the requested
credit facilities available to the Borrower on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1
DEFINITIONS
1.1 Definitions.
As used in this Credit Agreement, the following terms shall
have the meanings specified below unless the context otherwise
requires:
"Acquisition", by any Person, means the purchase or
acquisition by such Person of any Capital Stock of another
Person (other than a member of the Consolidated Group) or
all or any substantial portion of the Property (other than
Capital Stock) of another Person (other than a member of the
Consolidated Group), whether or not involving a merger or
consolidation with such other Person.
"Adjusted Base Rate" means the Base Rate plus the
Applicable Percentage.
"Adjusted Eurodollar Rate" means the Eurodollar Rate
plus the Applicable Percentage.
"Administrative Agent" shall have the meaning assigned
to such term in the heading hereof, together with any
successors or assigns.
"Administrative Agent's Fee Letter" means that certain
letter agreement, dated as of _________, 2000, between the
Administrative Agent and the Borrower, as amended, modified,
restated or supplemented from time to time.
"Administrative Agent's Fees" shall have the meaning
assigned to such term in Section 3.5(c).
"Affiliate" means, with respect to any Person, any
other Person (i) directly or indirectly controlling or
controlled by or under direct or indirect common control
with such Person or (ii) directly or indirectly owning or
holding five percent (5%) or more of the Capital Stock in
such Person. For purposes of this definition, "control"
when used with respect to any Person means the power to
direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to
the foregoing.
"Agency Services Address" means the notice address for
the Administrative Agent set forth in Section 11.1 or such
other address as may be identified by written notice from
the Administrative Agent to the Borrower.
"Aggregate Revolving Committed Amount" shall have the
meaning provided such term in Section 2.1(a).
"Applicable Lending Office" means, for each Lender, the
office of such Lender (or of an Affiliate of such Lender) as
such Lender may from time to time specify to the
Administrative Agent and the Borrower by written notice as
the office by which its Eurodollar Loans are made and
maintained.
"Applicable Percentage" means for any day, the rate per
annum set forth below opposite the applicable Consolidated
Total Leverage Ratio then in effect, it being understood
that the Applicable Percentage for (i) Base Rate Loans shall
be the percentage set forth under the column "Base Rate
Margin", (ii) Eurodollar Loans shall be the percentage set
forth under the column "Eurodollar Margin and Letter of
Credit Fee", (iii) the Letter of Credit Fee shall be the
percentage set forth under the column "Eurodollar Margin and
Letter of Credit Fee", and (iv) the Commitment Fee shall be
the percentage set forth under the column "Commitment Fee":
Eurodollar
Pricing Consolidated Total Margin and Commitment
Level Leverage Ratio Letter of Base Rate Fee
Credit Fee Margin
I > 2.50:1.0 2.75% 1.75% 0.50%
II > 2.00:1.0 but < 2.25% 1.25% 0.50%
2.50:1.0
III > 1.50:1.0 but < 2.00% 1.00% 0.375%
2.00:1.0
IV > 1.00:1.0 but < 1.75% 0.75% 0.375%
1.50:1.0
V < 1.00:1.0 1.50% 0.50% 0.375%
The Applicable Percentage shall be determined and adjusted
quarterly on the date (each a "Rate Determination Date")
five (5) Business Days after (A) the date by which each
annual and quarterly compliance certificates and related
financial statements and information are required in
accordance with the provisions of Sections 7.1(a), (b) and
(c), as appropriate, and (B) the date on which any Permitted
Acquisition is consummated; provided that notwithstanding
the foregoing, in the event an annual or quarterly
compliance certificate and related financial statements and
information are not delivered timely to the Agency Services
Address by the date required by Section 7.1(a), (b) or (c),
as appropriate, the Applicable Percentages shall be based on
pricing level I until such time as an appropriate compliance
certificate and related financial statements and information
are delivered, whereupon the applicable pricing level shall
be adjusted based on the information contained in such
compliance certificate and related financial statements and
information. Subject to the qualifications set forth above,
each Applicable Percentage shall be effective from a Rate
Determination Date until the next Rate Determination Date.
The Administrative Agent shall determine the appropriate
Applicable Percentages in the pricing matrix promptly upon
receipt of the quarterly or annual compliance certificate
and related financial information and shall promptly notify
the Borrower and the Lenders of any change thereof. Such
determinations by the Administrative Agent shall be
conclusive absent manifest error. Adjustments in the
Applicable Percentages shall be effective as to existing
Extensions of Credit as well as new Extensions of Credit
made thereafter.
"Asset Disposition" means (i) the sale, lease or other
disposition of any Property by any member of the
Consolidated Group (including the Capital Stock of a
Subsidiary), other than (A) the sale of inventory in the
ordinary course of business, (B) the sale, lease or other
disposition of machinery and equipment no longer used or
useful in the conduct of business and (C) a sale, lease,
transfer or disposition of Property to a Credit Party, and
(ii) receipt by any member of the Consolidated Group of any
cash insurance proceeds or condemnation award payable by
reason of theft, loss, physical destruction or damage,
taking or similar event with respect to any of its Property.
"Bank of America" means Bank of America, N.A., and its
successors.
"Bankruptcy Code" means the Bankruptcy Code in Title 11
of the United States Code, as amended, modified, succeeded
or replaced from time to time.
"Bankruptcy Event" means, with respect to any Person,
the occurrence of any of the following with respect to such
Person: (i) a court or governmental agency having
jurisdiction in the premises shall enter a decree or order
for relief in respect of such Person in an involuntary case
under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of such Person or for any substantial part
of its Property or ordering the winding up or liquidation of
its affairs; or (ii) there shall be commenced against such
Person an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect,
or any case, proceeding or other action for the appointment
of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any
substantial part of its Property or for the winding up or
liquidation of its affairs, and such involuntary case or
other case, proceeding or other action shall remain
undismissed, undischarged or unbonded for a period of sixty
(60) consecutive days; or (iii) such Person shall commence a
voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or consent
to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or taking
possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person
or for any substantial part of its Property or make any
general assignment for the benefit of creditors; or (iv)
such Person shall be unable to, or shall admit in writing
its inability to, pay its debts generally as they become due.
"Base Rate" means, for any day, the rate per annum
equal to the higher of (a) the Federal Funds Rate for such
day plus one-half of one percent (0.5%) and (b) the Prime
Rate for such day. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be
effective on the effective date of such change in the Prime
Rate or Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a
rate determined by reference to the Base Rate.
"Borrower" means RehabCare Group, Inc., a Delaware
corporation, as referenced in the opening paragraph, its
successors and permitted assigns.
"Business Day" means a day other than a Saturday,
Sunday or other day on which commercial banks in Dallas,
Texas, Charlotte, North Carolina or New York, New York are
authorized or required by law to close, except that, when
used in connection with a Eurodollar Loan, such day shall
also be a day on which dealings between banks are carried on
in Dollar deposits in London, England.
"Capital Lease" means, as applied to any Person, any
lease of any Property by that Person as lessee which, in
accordance with GAAP, is or should be accounted for as a
capital lease on the balance sheet of that Person.
"Capital Stock" means (i) in the case of a corporation,
capital stock, (ii) in the case of an association or
business entity, any and all shares, interests,
participations, rights or other equivalents (however
designated) of capital stock, (iii) in the case of a
partnership, partnership interests (whether general or
limited), (iv) in the case of a limited liability company,
membership interests and (v) any other interest or
participation that confers on a Person the right to receive
a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Capital Expenditures" means, for any period without
duplication, all expenditures (whether paid in cash or other
consideration) that are or should be included in additions
to plant, property and equipment in accordance with GAAP;
provided that for purposes hereof there shall not be
included expenditures of insurance proceeds, condemnation
awards and other settlements in respect of plant, property
and equipment which is lost, destroyed, damaged or otherwise
taken to the extent such amounts are used to repair or
replace plant, property and equipment.
"Cash Equivalents" means (a) securities issued or
directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided
that the full faith and credit of the United States is
pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (b) Dollar
denominated time deposits and certificates of deposit of (i)
any Lender, (ii) any domestic commercial bank of recognized
standing having capital and surplus in excess of
$500,000,000 or (iii) any bank whose short-term commercial
paper rating from S&P is at least A-1 or the equivalent
thereof or from Moody's is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each
case with maturities of not more than 270 days from the date
of acquisition, (c) commercial paper and variable or fixed
rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or
guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the
equivalent thereof) or better by Moody's and maturing within
six months of the date of acquisition, (d) repurchase
agreements entered into by any Person with a bank or trust
company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully
guaranteed by the United States in which such Person shall
have a perfected first priority security interest (subject
to no other Liens) and having, on the date of purchase
thereof, a fair market value of at least 100% of the amount
of the repurchase obligations and (e) Investments,
classified in accordance with GAAP as current assets, in
money market investment programs registered under the
Investment Company Act of 1940, as amended, which are
administered by reputable financial institutions having
capital of at least $500,000,000 and the portfolios of which
are limited to Investments of the character described in the
foregoing subdivisions (a) through (d).
"Change of Control" means the occurrence of any of the
following events: (i) any Person or two or more Persons
acting in concert shall have acquired beneficial ownership,
directly or indirectly, of, or shall have acquired by
contract or otherwise, or shall have entered into a contract
or arrangement that, upon consummation, will result in its
or their acquisition of or control over, Voting Stock of the
Borrower (or other securities convertible into such Voting
Stock) representing (A) so long as the Borrower maintains a
shareholder rights plan pursuant to which the acquisition by
any Person of 15% or more of the Borrower's outstanding
Capital Stock triggers provisions which would act to
significantly dilute the ownership interest of such Person
(a "Shareholder Rights Plan"), 50.1% or more of the combined
voting power of all Voting Stock of the Borrower and (B) at
any time the Borrower does not maintain a Shareholder Rights
Plan, 35% or more of the combined voting power of all Voting
Stock of the Borrower or (ii) during any period of up to 24
consecutive months, commencing after the Closing Date,
individuals who at the beginning of such 24 month period
were directors of the Borrower (together with any new
director whose election by the Borrower's board of directors
or whose nomination for election by the Borrower's
shareholders was approved by a vote of at least two-thirds
of the directors then still in office who either were
directors at the beginning of such period or whose election
or nomination for election was previously so approved) cease
for any reason to constitute a majority of the directors of
the Borrower then in office. As used herein, "beneficial
ownership" shall have the meaning provided in Rule 13d-3 of
the Securities and Exchange Commission under the Securities
Exchange Act.
"Closing Date" means the date hereof.
"Collateral" means a collective reference to the
collateral which is identified in, and at any time will be
covered by, the Collateral Documents.
"Collateral Documents" means a collective reference to
the Security Agreement, the Pledge Agreement and such other
documents executed and delivered in connection with the
attachment and perfection of the Administrative Agent's
security interests and liens arising thereunder, including
without limitation UCC financing statements and patent and
trademark filings.
"Commitment" means the Revolving Commitment, the LOC
Commitment and the Swingline Commitment.
"Commitment Fee" shall have the meaning assigned to
such term in Section 3.5(a).
"Commitment Period" means the period from and including
the Closing Date to but not including the earlier of (i) the
Termination Date or (ii) the date on which the Commitments
terminate in accordance with the provisions of this Credit
Agreement.
"Committed Amount" means any of the Revolving Committed
Amount, the LOC Committed Amount and/or the Swingline
Committed Amount.
"Consolidated Adjusted EBITDA" means, for any period
for the Consolidated Group, the sum of (i) Consolidated
EBITDA, minus (ii) Capital Expenditures, in each case
determined on a consolidated basis in accordance with GAAP.
Except as otherwise expressly provided, the applicable
period shall be the four consecutive fiscal quarters ending
as of the date of determination.
"Consolidated EBITDA" means, for any period for the
Consolidated Group, the sum of (i) Consolidated Net Income,
plus (ii) to the extent deducted in determining net income,
(A) Consolidated Interest Expense, (B) taxes and (C)
depreciation and amortization, in each case on a
consolidated basis determined in accordance with GAAP.
Except as otherwise expressly provided, the applicable
period shall be the four consecutive fiscal quarters ending
as of the date of determination.
"Consolidated Fixed Charge Coverage Ratio" means, for
any period, the ratio of Consolidated Adjusted EBITDA to
Consolidated Fixed Charges.
"Consolidated Fixed Charges" means, for any period for
the Consolidated Group, the sum of (i) the cash portion of
Consolidated Interest Expense, plus (ii) current maturities
of Funded Debt (including, for purposes hereof, current
scheduled reductions in commitments), plus (iii) an amount
equal to ten percent (10%) of Obligations outstanding
hereunder on the date of determination, plus (iv) taxes paid
in cash, in each case on a consolidated basis determined in
accordance with GAAP. Except as otherwise expressly
provided, the applicable period shall be the four
consecutive fiscal quarters ending as of the date of
determination.
"Consolidated Group" means the Borrower and its
consolidated subsidiaries as determined in accordance with
GAAP.
"Consolidated Interest Expense" means, for any period
for the Consolidated Group, all interest expense, including
the amortization of debt discount and premium, the interest
component under Capital Leases and the implied interest
component under Securitization Transactions, in each case on
a consolidated basis determined in accordance with GAAP.
Except as expressly provided otherwise, the applicable
period shall be the four consecutive fiscal quarters ending
as of the date of determination.
"Consolidated Net Income" means, for any period for the
Consolidated Group, net income (or loss) determined on a
consolidated basis in accordance with GAAP, but excluding
for purposes of determining the Consolidated Senior Leverage
Ratio, the Consolidated Total Leverage Ratio and the
Consolidated Fixed Charge Coverage Ratio, any extraordinary
gains or losses and related tax effects thereon. Except as
otherwise expressly provided, the applicable period shall be
the four consecutive fiscal quarters ending as of the date
of determination.
"Consolidated Net Worth" means, at any time,
stockholders' equity or net worth of the Borrower and its
subsidiaries on a consolidated basis determined in
accordance with GAAP.
"Consolidated Senior Funded Debt" means the sum of
Consolidated Total Funded Debt minus Consolidated
Subordinated Debt.
"Consolidated Senior Leverage Ratio" means, as of the
last day of each fiscal quarter, the ratio of Consolidated
Senior Funded Debt on such day to Consolidated EBITDA for
the period of four consecutive fiscal quarters ending as of
such day.
"Consolidated Subordinated Debt" means Subordinated
Debt of the Consolidated Group determined on a consolidated
basis in accordance with GAAP.
"Consolidated Total Funded Debt" means Funded Debt of
the Consolidated Group determined on a consolidated basis in
accordance with GAAP.
"Consolidated Total Leverage Ratio" means, as of the
last day of each fiscal quarter, the ratio of Consolidated
Funded Debt on such day to Consolidated EBITDA for the
period of four consecutive fiscal quarters ending as of such
day.
"Continue", "Continuation", and "Continued" shall refer
to the continuation pursuant to Section 3.2 hereof of a
Eurodollar Loan from one Interest Period to the next
Interest Period.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any
material agreement, instrument or undertaking to which such
Person is a party or by which it or any of its property is
bound.
"Convert", "Conversion", and "Converted" shall refer to
a conversion pursuant to Section 3.2 or Sections 3.7 through
3.12, inclusive, of a Base Rate Loan into a Eurodollar Loan.
"Credit Documents" means, collectively, this Credit
Agreement, the Notes, the LOC Documents, the Collateral
Documents, the Administrative Agent's Fee Letter, and all
other related agreements and documents issued or delivered
hereunder or thereunder or pursuant hereto or thereto.
"Credit Party" means any of the Borrower and the
Guarantors.
"Debt Transaction" means, with respect to any member of
the Consolidated Group, any sale, issuance or placement of
Funded Debt, whether or not evidenced by promissory note or
other written evidence of indebtedness, except for Funded
Debt permitted to be incurred pursuant to Section 8.1.
"Default" means any event, act or condition which with
notice or lapse of time, or both, would constitute an Event
of Default.
"Defaulting Lender" means, at any time, any Lender that
(a) has failed to make a Loan or purchase a Participation
Interest required pursuant to the terms of this Credit
Agreement within one Business Day of when due, (b) other
than as set forth in (a) above, has failed to pay to the
Administrative Agent or any Lender an amount owed by such
Lender pursuant to the terms of this Credit Agreement within
one Business Day of when due, unless such amount is subject
to a good faith dispute or (c) has been deemed insolvent or
has become subject to a bankruptcy or insolvency proceeding
or with respect to which (or with respect to any of the
assets of which) a receiver, trustee or similar official has
been appointed.
"Dollars" and "$" means dollars in lawful currency of
the United States.
"Domestic Subsidiary" means any Subsidiary which is
incorporated or organized under the laws of any State of the
United States or the District of Columbia.
"Eligible Assignee" means (i) a Lender; (ii) an
Affiliate of a Lender; and (iii) any other Person approved
by the Administrative Agent and, unless an Event of Default
has occurred and is continuing at the time any assignment is
effected in accordance with Section 11.3, the Borrower (such
approval by the Administrative Agent or the Borrower not to
be unreasonably withheld or delayed and such approval to be
deemed given by the Borrower if no objection is received by
the assigning Lender and the Administrative Agent from the
Borrower within two Business Days after notice of such
proposed assignment has been provided by the assigning
Lender to the Borrower); provided, however, that neither the
Borrower nor an Affiliate of the Borrower shall qualify as
an Eligible Assignee.
"Environmental Laws" means any and all lawful and
applicable federal, state, local and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses,
agreements and other governmental restrictions relating to
the environment or to emissions, discharges, releases or
threatened releases of Materials of Environmental Concern
into the environment including, without limitation, ambient
air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of
Materials of Environmental Concern.
"Equity Transaction" means, with respect to any member
of the Consolidated Group, any issuance of shares of its
capital stock or other equity interest, other than an
issuance (i) to a member of the Consolidated Group, (ii) in
connection with a conversion of debt securities to equity,
(iii) in connection with exercise by a present or former
employee, officer or director under a stock incentive plan,
stock option plan or other equity-based compensation plan or
arrangement, or (iv) of Capital Stock of the Borrower in
connection with a Permitted Acquisition.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, and any successor statute thereto,
as interpreted by the rules and regulations thereunder, all
as the same may be in effect from time to time. References
to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity which is under common
control with any member of the Consolidated Group within the
meaning of Section 4001(a)(14) of ERISA, or is a member of a
group which includes any member of the Consolidated Group
and which is treated as a single employer under Sections
414(b) or (c) of the Internal Revenue Code.
"ERISA Event" means (i) with respect to any Plan, the
occurrence of a Reportable Event or the substantial
cessation of operations (within the meaning of Section
4062(e) of ERISA); (ii) the withdrawal by any member of the
Consolidated Group or any ERISA Affiliate from a Multiple
Employer Plan during a plan year in which it was a
substantial employer (as such term is defined in Section
4001(a)(2) of ERISA), or the termination of a Multiple
Employer Plan; (iii) the distribution of a notice of intent
to terminate or the actual termination of a Plan pursuant to
Section 4041(a)(2) or 4041A of ERISA; (iv) the institution
of proceedings to terminate or the actual termination of a
Plan by the PBGC under Section 4042 of ERISA; (v) any event
or condition which might constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of
a trustee to administer, any Plan; (vi) the complete or
partial withdrawal of any member of the Consolidated Group
or any ERISA Affiliate from a Multiemployer Plan; (vii) the
conditions for imposition of a lien under Section 302(f) of
ERISA exist with respect to any Plan; or (viii) the adoption
of an amendment to any Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA.
"Eurodollar Loan" means any Loan that bears interest at
a rate based upon the Eurodollar Rate.
"Eurodollar Rate" means, for any Eurodollar Loan for
any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%)
determined by the Administrative Agent to be equal to the
quotient obtained by dividing (a) the Interbank Offered Rate
for such Eurodollar Loan for such Interest Period by (b) 1
minus the Eurodollar Reserve Requirement for such Eurodollar
Loan for such Interest Period.
"Eurodollar Reserve Requirement" means, at any time,
the maximum rate at which reserves (including, without
limitation, any marginal, special, supplemental, or
emergency reserves) are required to be maintained under
regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor)
by member banks of the Federal Reserve System against
"Eurocurrency liabilities" (as such term is used in
Regulation D). Without limiting the effect of the
foregoing, the Eurodollar Reserve Requirement shall reflect
any other reserves required to be maintained by such member
banks with respect to (i) any category of liabilities which
includes deposits by reference to which the Eurodollar Rate
is to be determined, or (ii) any category of extensions of
credit or other assets which include Eurodollar Loans. The
Eurodollar Rate shall be adjusted automatically on and as of
the effective date of any change in the Eurodollar Reserve
Requirement.
"Event of Default" shall have the meaning assigned to
such term in Section 9.1.
"Executive Officer" of any Person means any of the
chief executive officer, division president, chief financial
officer or chief accounting officer of such Person.
"Existing Letters of Credit" means those Letters of
Credit outstanding on the Closing Date and identified on
Schedule 2.6(b).
"Extension of Credit" means, as to any Lender, the
making of, or participation in, a Loan by such Lender
(including Continuations and Conversions thereof) or the
issuance or extension of, or participation in, a Letter of
Credit by such Lender.
"Federal Funds Rate" means, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100
of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New
York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the
average rate charged to the Administrative Agent (in its
individual capacity) on such day on such transactions as
determined by the Administrative Agent.
"Fees" means all fees payable pursuant to Section 3.5.
"Foreign Subsidiary" means a Subsidiary which is not a
Domestic Subsidiary.
"Funded Debt" means, with respect to any Person,
without duplication, (i) all obligations of such Person for
borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily
made, (iii) all purchase money Indebtedness (including for
purposes hereof, indebtedness and obligations in respect of
conditional sale or title retention arrangements described
in clause (c) of the definition of "Indebtedness" and
obligations in respect of the deferred purchase price of
property or services described in clause (d) of the
definition of "Indebtedness") of such Person, including
without limitation the principal portion of all obligations
of such Person under Capital Leases, (iv) all Support
Obligations of such Person with respect to Funded Debt of
another Person, (v) the maximum available amount of all
standby letters of credit or acceptances issued or created
for the account of such Person, (vi) all Funded Debt of
another Person secured by a Lien on any Property of such
Person, whether or not such Funded Debt has been assumed,
provided that for purposes hereof the amount of such Funded
Debt shall be limited to the amount of such Funded Debt as
to which there is recourse to such Person or the fair market
value of the property which is subject to the Lien, if less,
(vii) the outstanding attributed principal amount under any
Securitization Transaction, (viii) the principal balance
outstanding under Synthetic Leases and (ix) the amount of
payment obligations (including, without limitation, earn-out
payments and the like) incurred in connection with Permitted
Acquisitions or Acquisitions consummated prior to the
Closing Date when such obligations have become sufficiently
certain and quantifiable as to be recognized as a liability
under GAAP. The Funded Debt of any Person shall include the
Funded Debt of any partnership or joint venture in which
such Person is a general partner or joint venturer, but only
to the extent to which there is recourse to such Person for
the payment of such Funded Debt.
"GAAP" means generally accepted accounting principles
in the United States applied on a consistent basis and
subject to the terms of Section 1.3.
"Governmental Authority" means any federal, state,
local or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Guaranteed Obligations" means, without duplication,
(i) all of the obligations of the Borrower to the Lenders
(including the Issuing Lender) and the Administrative Agent,
whenever arising, under this Credit Agreement, the Notes,
the Collateral Documents or any of the other Credit
Documents (including, but not limited to, any interest
accruing after the occurrence of a Bankruptcy Event with
respect to any Credit Party, regardless of whether such
interest is an allowed claim under the Bankruptcy Code) and
(ii) all liabilities and obligations, whenever arising,
owing from any Credit Party to any Lender, or any Affiliate
of a Lender, arising under any Hedging Agreement relating to
the Obligations to the extent permitted hereunder.
"Guarantors" means each Person identified as a
"Guarantor" on the signature pages hereto and each other
Person which may hereafter become a Guarantor by execution
of a Joinder Agreement, together with their successors and
permitted assigns, and "Guarantor" means any one of them.
"Hedging Agreements" means any interest rate protection
agreement or foreign currency exchange agreement.
"Indebtedness" means, with respect to any Person,
without duplication, (a) all obligations of such Person for
borrowed money, (b) all obligations of such Person evidenced
by bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made, (c) all
obligations of such Person under conditional sale or other
title retention agreements relating to Property purchased by
such Person (other than customary reservations or retentions
of title under agreements with suppliers entered into in the
ordinary course of business), (d) all obligations of such
Person issued or assumed as the deferred purchase price of
Property or services purchased by such Person (other than
trade debt incurred in the ordinary course of business and
due within six months of the incurrence thereof) which would
appear as liabilities on a balance sheet of such Person, (e)
all obligations of such Person under take-or-pay or similar
arrangements or under commodities agreements, (f) all
Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of
the proceeds of production from, Property owned or acquired
by such Person, whether or not the obligations secured
thereby have been assumed, (g) all Support Obligations of
such Person with respect to Indebtedness of another Person,
(h) the principal portion of all obligations of such Person
under Capital Leases, (i) all obligations of such Person
under Hedging Agreements, (j) the maximum amount of all
standby letters of credit issued or bankers' acceptances
facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the
extent unreimbursed), (k) all preferred Capital Stock issued
by such Person and which by the terms thereof could be (at
the request of the holders thereof or otherwise) subject to
mandatory sinking fund payments, redemption (unless
redeemable for common Capital Stock) or other acceleration
(other than as a result of a Change of Control or an Asset
Disposition that does not in fact result in a redemption of
such preferred Capital Stock) at any time during the term of
the Credit Agreement, (l) the principal portion of all
obligations of such Person under Synthetic Leases, (m) the
Indebtedness of any partnership or unincorporated joint
venture in which such Person is a general partner or a joint
venturer, (n) with respect to any member of the Consolidated
Group, the outstanding attributed principal amount under any
Securitization Transaction and (o) all payment obligations
(including, without limitation, earn-out payments and the
like) incurred in connection with Permitted Acquisitions or
Acquisitions consummated prior to the Closing Date.
"Interbank Offered Rate" means, for any Eurodollar Loan
for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Dow Jones Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period. If for any
reason such rate is not available, the term "Interbank
Offered Rate" shall mean, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Reuters Screen LIBO Page as the London interbank offered
rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of
such Interest Period for a term comparable to such Interest
Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates (rounded
upwards, if necessary, to the nearest 1/100 of 1%).
"Interest Payment Date" means (i) as to any Base Rate
Loan (other than a Swingline Loan), the last Business Day of
each March, June, September and December, and the
Termination Date, (ii) as to any Swingline Loan, the last
Business Day of each March, June, September and December,
and the Termination Date, or such other days as may be
mutually agreed upon by the Borrower and the Swingline
Lender, and (iii) as to any Eurodollar Loan, the last day of
each Interest Period for such Loan, the date of repayment of
any principal amount repaid of such Loan and the Termination
Date, and in addition where the applicable Interest Period
is more than three months, then also on the date three
months from the beginning of the Interest Period, and each
three months thereafter. If an Interest Payment Date falls
on a date which is not a Business Day, such Interest Payment
Date shall be deemed to be the next succeeding Business Day.
"Interest Period" means (i) as to any Eurodollar Loan,
a period of one, two, three, six or, if available to all the
Lenders, twelve months' duration, as the Borrower may elect,
commencing in each case on the date of the borrowing
(including Conversions, Continuations and renewals), and
(ii) as to any Quoted Rate Swingline Loan, a period of such
duration as the Borrower may request and the Swingline
Lender may agree in accordance with the provisions hereof,
commencing in each case on the date of borrowing; provided,
however, (A) if any Interest Period would end on a day which
is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day (except that
where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding
Business Day), (B) no Interest Period shall extend beyond
the Termination Date, and (C) where an Interest Period
begins on a day for which there is no numerically
corresponding day in the calendar month in which the
Interest Period is to end, such Interest Period shall end on
the last day of such calendar month.
"Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended, and any successor statute thereto, as
interpreted by the rules and regulations issued thereunder,
in each case as in effect from time to time. References to
sections of the Internal Revenue Code shall be construed
also to refer to any successor sections.
"Investment" in any Person means (a) the acquisition
(whether for cash, property, services, assumption of
Indebtedness, securities or otherwise) of Capital Stock,
bonds, notes, debentures, partnership, joint ventures or
other ownership interests or other securities of such other
Person, (b) any deposit with, or advance, loan or other
extension of credit to, such Person (other than deposits
made in connection with the purchase of equipment or other
assets in the ordinary course of business) or (c) any other
capital contribution to or investment in such Person,
including, without limitation, any Support Obligations
(including any support for a letter of credit issued on
behalf of such Person) incurred for the benefit of such
Person, but excluding any Restricted Payment to such Person.
"Issuing Lender" means Bank of America.
"Joinder Agreement" means a joinder agreement
substantially in the form of Schedule 7.12 hereto executed
and delivered by a Subsidiary in accordance with the
provisions of Section 7.12.
"Lenders" means each of the Persons identified as a
"lender" on the signature pages hereto, and their successors
and assigns.
"Letter of Credit" means any Existing Letter of Credit
and any standby letter of credit issued by the Issuing
Lender for the account of the Borrower in accordance with
the terms of Section 2.1(b).
"Letter of Credit Fee" shall have the meaning assigned
to such term in Section 3.5(b)(i).
"Licenses" means all licenses, permits and other grants
of authority obtained or required to be obtained from any
Governmental Authorities in connection with the management
or operation of the business of the members of the
Consolidated Group or the ownership, lease, license or use
of any Property of the members of the Consolidated Group.
"Lien" means any mortgage, pledge, hypothecation,
assignment, deposit arrangement, security interest,
encumbrance, lien (statutory or otherwise), preference,
priority or charge of any kind (including any agreement to
give any of the foregoing, any conditional sale or other
title retention agreement, any financing or similar
statement or notice filed under the Uniform Commercial Code
as adopted and in effect in the relevant jurisdiction or
other similar recording or notice statute, and any lease in
the nature thereof).
"Loan" or "Loans" means the Revolving Loans and/or
Swingline Loans, and the Base Rate Loans, Eurodollar Loans
and the Quoted Rate Swingline Loans comprising such Loans.
"LOC Commitment" means, with respect to the Issuing
Lender, the commitment of the Issuing Lender to issue, and
to honor payment obligations under, Letters of Credit and,
with respect to each Lender, the commitment of such Lender
to purchase participation interests in the Letters of Credit
up to such Lender's LOC Committed Amount.
"LOC Committed Amount" shall have the meaning assigned
to such term in Section 2.1(b).
"LOC Documents" means, with respect to any Letter of
Credit, such Letter of Credit, any amendments thereto, any
documents delivered in connection therewith, any application
therefor, and any agreements, instruments, guarantees or
other documents (whether general in application or
applicable only to such Letter of Credit) governing or
providing for (i) the rights and obligations of the parties
concerned or at risk or (ii) any collateral security for
such obligations.
"LOC Obligations" means, at any time, the sum of (i)
the maximum amount which is, or at any time thereafter may
become, available to be drawn under Letters of Credit then
outstanding, assuming compliance with all requirements for
drawings referred to in such Letters of Credit plus (ii) the
aggregate amount of all drawings under Letters of Credit
honored by the Issuing Lender but not theretofore reimbursed.
"Material Adverse Effect" means a material adverse
effect on (i) the condition (financial or otherwise),
operations, business, assets, liabilities or prospects of
the Consolidated Group taken as a whole, (ii) the ability of
any member of the Consolidated Group to perform any material
obligation under any Credit Document to which it is a party
or (iii) the material rights and remedies of the
Administrative Agent and the Lenders under the Credit
Documents.
"Materials of Environmental Concern" means any gasoline
or petroleum (including crude oil or any fraction thereof)
or petroleum products or any hazardous or toxic substances,
materials or wastes, defined or regulated as such in or
under any Environmental Laws, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Moody's" means Moody's Investors Service, Inc., or any
successor or assignee of the business of such company in the
business of rating securities.
"Multiemployer Plan" means a Plan which is a
"multiemployer plan" as defined in Sections 3(37) or
4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan (other than a
Multiemployer Plan) which any member of the Consolidated
Group or any ERISA Affiliate and at least one employer other
than the members of the Consolidated Group or any ERISA
Affiliate are contributing sponsors.
"Net Cash Proceeds" means the aggregate proceeds paid
in cash or Cash Equivalents received by any member of the
Consolidated Group in connection with any Asset Disposition,
Equity Transaction or Debt Transaction, net of (i) direct
costs (including, without limitation, legal, accounting and
investment banking fees, and sales commissions) and (ii)
taxes paid or payable as a result thereof; and including, in
any event, realization of cash and Cash Equivalents upon the
sale or disposition of non-cash consideration received in
connection with any such Asset Disposition, Equity
Transaction or Debt Transaction.
"Note" or "Notes" means any of the Revolving Notes.
"Notice of Borrowing" means a written notice of
borrowing in substantially the form of Schedule 2.2(a)(i) as
required by Section 2.2(a).
"Notice of Continuation/Conversion" means the written
notice of Continuation or Conversion in substantially the
form of Schedule 3.2, as required by Section 3.2.
"Obligations" means the Revolving Loans, LOC
Obligations and the Swingline Loans.
"Operating Lease" means, as applied to any Person, any
lease (including, without limitation, leases which may be
terminated by the lessee at any time) of any Property which
is not a Capital Lease other than any such lease in which
that Person is the lessor.
"Other Taxes" shall have the meaning assigned to such
term in Section 3.11.
"Participation Interest" means the purchase by a Lender
of a participation in LOC Obligations as provided in Section
2.6(b), in Swingline Loans as provided in Section 2.7, and
in Loans as provided in Section 3.14.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and
any successor thereof.
"Permitted Acquisition" means any Acquisition by a
member of the Consolidated Group, provided that (A) the
Required Lenders consent thereto, or (B) (i) consideration
paid is not greater than the fair market value of the
Property acquired as determined by the Borrower in its
reasonable judgment, (ii) the Property acquired (or the
Property of the Person acquired) in such Acquisition shall
be used or useful in the same or similar line of business as
the members of the Consolidated Group on the Closing Date,
(iii) all Property to be acquired in connection with such
acquisition shall be located in the United States of
America, (iv) in the case of an Acquisition of the Capital
Stock of another Person, the board of directors (or other
comparable governing body) of such other Person shall have
duly approved such Acquisition, (v) no Default or Event of
Default shall exist immediately after giving effect to such
Acquisition, (vi) the representations and warranties made by
the Credit Parties in any Credit Document shall be true and
correct in all material respects at and as if made as of the
date of such Acquisition (after giving effect thereto)
except to the extent such representations and warranties
expressly relate to an earlier date, (vii) if the
Acquisition involves an interest in a partnership and a
requirement that a member of the Consolidated Group be a
general partner, the general partner shall be a special
purpose Subsidiary of the Borrower, (viii) total
consideration (including cash and non-cash consideration,
the assumption of Indebtedness, the maximum amount of
earn-out payments and consideration consisting of any
Capital Stock of the Borrower paid in connection with any
Acquisition (or series of related Acquisitions) shall not
exceed $10 million, and (ix) the total consideration
(including cash and non-cash consideration, the assumption
of Indebtedness, the maximum amount of earn-out payments and
consideration consisting of any Capital Stock of the
Borrower) paid in connection with all Acquisitions shall not
exceed $40 million in the twelve-month period commencing on
the date of this Credit Agreement or in any subsequent
twelve-month period beginning on an anniversary date of this
Credit Agreement.
"Permitted Investments" means Investments which are (i)
cash and Cash Equivalents; (ii) accounts receivable created,
acquired or made in the ordinary course of business and
payable or dischargeable in accordance with customary trade
terms; (iii) Investments consisting of Capital Stock,
obligations, securities or other Property received in
settlement of accounts receivable (created in the ordinary
course of business) from bankrupt obligors; (iv) Investments
existing as of the Closing Date and set forth in Schedule
8.6; (v) advances or loans to directors, officers and
employees that do not exceed $500,000 in the aggregate at
any one time outstanding; (vi) advances or loans to
customers and suppliers in the ordinary course of business
that do not exceed $500,000 in the aggregate at any one time
outstanding; (vii) Investments by members of the
Consolidated Group in their Subsidiaries and Affiliates
existing on the Closing Date, (viii) Investments by members
of the Consolidated Group in and to Credit Parties, (ix)
Investments which constitute Permitted Acquisitions; (x)
Investments resulting from a qualified deferred compensation
plan (structured as a "Rabbi Trust") pursuant to which
eligible employee's have a right to direct their respective
Investments, but which are being held in the name of the
Borrower; and (xi) Investments of a nature not contemplated
in the foregoing subsections in an amount not to exceed
$1,000,000 in the aggregate at any time outstanding.
"Permitted Liens" means:
(i) Liens in favor of the Administrative Agent to
secure the obligations of the Credit Parties under the
Credit Documents;
(ii) Liens in favor of a Lender or an Affiliate of a
Lender pursuant to a Hedging Agreement permitted hereunder,
but only (A) to the extent such Liens secure obligations
under such agreements permitted under Section 8.1, (B) to
the extent such Liens are on the same collateral as to which
the Lenders hereunder also have a Lien, and (C) so long as
the obligations under such Hedging Agreement and the
obligations of the Credit Parties under the Credit Documents
shall share pari passu in the collateral subject to such
Liens;
(iii)Liens (other than Liens created or imposed under
ERISA) for taxes, assessments or governmental charges or
levies not yet due or Liens for taxes being contested in
good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been
established (and as to which the Property subject to any
such Lien is not yet subject to foreclosure, sale or loss on
account thereof);
(iv) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and suppliers
and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary
course of business, provided that such Liens secure only
amounts not yet due and payable or, if due and payable, are
unfiled and no other action has been taken to enforce the
same or are being contested in good faith by appropriate
proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which
the Property subject to any such Lien is not yet subject to
foreclosure, sale or loss on account thereof);
(v) Liens (other than Liens created or imposed under
ERISA) incurred or deposits made by any member of the
Consolidated Group in the ordinary course of business in
connection with workers' compensation, unemployment
insurance and other types of social security, or to secure
the performance of tenders, statutory obligations, bids,
leases, government contracts, performance and
return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
(vi) Liens in connection with attachments or judgments
(including judgment or appeal bonds) provided that the
judgments secured shall, within 30 days after the entry
thereof, have been discharged or execution thereof stayed
pending appeal, or shall have been discharged within 30 days
after the expiration of any such stay;
(vii)easements, rights-of-way, restrictions (including
zoning restrictions), minor defects or irregularities in
title and other similar charges or encumbrances not, in any
material respect, impairing the use of the encumbered
Property for its intended purposes;
(viii) Liens on Property of any Person securing
purchase money Indebtedness (including Capital Leases and
Synthetic Leases) of such Person to the extent permitted
under Section 8.1(c), provided that any such Lien attaches
only to the Property financed or leased and such Lien
attaches concurrently with or within 90 days after the
acquisition thereof;
(ix) leases or subleases granted to others not
interfering in any material respect with the business of any
member of the Consolidated Group;
(x) any interest or title of a lessor under, and Liens
arising from UCC financing statements (or equivalent
filings, registrations or agreements in foreign
jurisdictions) relating to, leases permitted by this Credit
Agreement;
(xi) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs
duties in connection with the importation of goods;
(xii)Liens created or deemed to exist in connection
with a Securitization Transaction permitted hereunder
(including any related filings of any financing statements),
but only to the extent that any such Lien relates to the
applicable Securitization Receivables actually sold,
contributed, financed or otherwise conveyed or pledged
pursuant to such transaction;
(xiii) Liens deemed to exist in connection with
Investments in repurchase agreements which constitute
Permitted Investments;
(xiv)normal and customary rights of setoff upon
deposits of cash in favor of banks or other depository
institutions;
(xv) Liens of a collection bank arising under Section
4-210 of the Uniform Commercial Code on items in the course
of collection; and
(xvi)Liens existing as of the Closing Date and set
forth on Schedule 6.8; provided that (a) no such Lien shall
at any time be extended to or cover any Property other than
the Property subject thereto on the Closing Date and (b) the
principal amount of the Indebtedness secured by such Liens
shall not be extended, renewed, refunded or refinanced on
terms and conditions less favorable to the Credit Parties
than for such existing Indebtedness.
"Person" means any individual, partnership, joint
venture, firm, corporation, limited liability company,
association, trust or other enterprise (whether or not
incorporated) or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in
Section 3(3) of ERISA) which is covered by ERISA and with
respect to which any member of the Consolidated Group or any
ERISA Affiliate is (or, if such plan were terminated at such
time, would under Section 4069 of ERISA be deemed to be) an
"employer" within the meaning of Section 3(5) of ERISA.
"Pledge Agreement" means the pledge agreement dated as
of the Closing Date given by the Borrower and certain other
Credit Parties identified therein to the Administrative
Agent to secure the obligations of the Credit Parties under
the Credit Documents, as such pledge agreement may be
amended and modified from time to time.
"Prime Rate" means the per annum rate of interest
established from time to time by Bank of America as its
prime rate, which rate may not be the lowest rate of
interest charged by Bank of America.
"Pro Forma Basis" means, for purposes of
calculating (utilizing the principles set forth in the
second paragraph of Section 1.3) the applicable pricing
level under the definition of "Applicable Percentage" and
determining compliance with each of the financial covenants
set forth in Section 7.11, that any transaction shall be
deemed to have occurred as of the first day of the four
fiscal-quarter period ending as of the most recent fiscal
quarter end preceding the date of such transaction with
respect to which the Administrative Agent has received the
Required Financial Information. As used herein,
"transaction" shall mean (i) any merger or consolidation as
referred to in Section 8.4, (ii) any Asset Disposition as
referred to in Section 8.5, (iii) any Acquisition as
referred to in the definition of "Permitted Acquisition" or
(iv) any Restricted Payment as referred to in Section 8.7.
In connection with any calculation of the financial
covenants set forth in Section 7.11 upon giving effect to a
transaction on a Pro Forma Basis:
(A) for purposes of any such calculation in
respect of any Asset Disposition referred to in Section
8.5, (1) income statement items (whether positive or
negative) attributable to the Property disposed of in
such Asset Disposition shall be excluded and (2) any
Indebtedness which is retired in connection with such
Asset Disposition shall be excluded and deemed to have
been retired as of the day preceding the first day of
the applicable period; and
(B) for purposes of any such calculation in
respect of any merger or consolidation referred to in
Section 8.4 or any Acquisition referred to in the
definition of "Permitted Acquisition", (1) any
Indebtedness incurred by any member of the Consolidated
Group in connection with such transaction (x) shall be
deemed to have been incurred as of the first day of the
applicable period and (y) if such Indebtedness has a
floating or formula rate, shall have an implied rate of
interest for the applicable period for purposes of this
definition determined by utilizing the rate which is or
would be in effect with respect to such Indebtedness as
at the relevant date of determination, and (2) income
statement items (whether positive or negative)
attributable to the Property acquired in such
transaction or to the Acquisition comprising such
transaction, as applicable, shall be included beginning
as of the first day of the applicable period.
"Pro Forma Compliance Certificate" means a certificate
of an Executive Officer of the Borrower delivered to the
Administrative Agent in connection with (i) any merger or
consolidation referred to in Section 8.4, (ii) any Asset
Disposition referred to in Section 8.5, (iii) any
Acquisition referred to in the definition of "Permitted
Acquisition" or (iv) any Restricted Payment as referred to
in Section 8.7, as applicable, and containing reasonably
detailed calculations, upon giving effect to the applicable
transaction on a Pro Forma Basis, of the Consolidated Senior
Leverage Ratio, the Consolidated Total Leverage Ratio, the
Consolidated Fixed Charge Coverage Ratio and Consolidated
Net Worth as of the most recent fiscal quarter end preceding
the date of the applicable transaction with respect to which
the Administrative Agent shall have received the Required
Financial Information.
"Property" means any interest in any kind of property
or asset, whether real, personal or mixed, or tangible or
intangible.
"Quoted Rate" means, with respect to a Quoted Rate
Swingline Loan, the fixed or floating percentage rate per
annum, if any, offered by the Swingline Lender and accepted
by the Borrower in accordance with the provisions hereof.
"Quoted Rate Swingline Loan" means a Swingline Loan
bearing interest at the Quoted Rate.
"Rate Determination Date" shall have the meaning
assigned to such term in the definition of "Applicable
Percentage".
"Register" shall have the meaning assigned to such term
in Section 11.3(c).
"Regulation D, O, T, U, or X" means Regulation D, O, T,
U or X, respectively, of the Board of Governors of the
Federal Reserve System as from time to time in effect and
any successor to all or a portion thereof.
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than those events as to
which the notice requirement has been waived by regulation.
"Required Financial Information" means the annual and
quarterly compliance certificates and related financial
statements and information required by the provisions of
Sections 7.1(a), (b) and (c).
"Required Lenders" means, at any time, Lenders having
at least sixty-six and two-thirds percent (66-2/3%) of the
Commitments or, if the Commitments have been terminated,
Lenders having at least sixty-six and two-thirds percent
(66-2/3%) of the aggregate principal amount of the
Obligations outstanding (taking into account in each case
Participation Interests or obligations to participate
therein); provided that the Commitments of, and outstanding
principal amount of Obligations (taking into account
Participation Interests or obligations to participate
therein) owing to, a Defaulting Lender shall be excluded for
purposes hereof in making a determination of Required
Lenders.
"Requirement of Law" means, as to any Person, the
certificate of incorporation and by-laws or other
organizational or governing documents of such Person, and
any law, treaty, rule, regulation or ordinance (including,
without limitation, Environmental Laws) or determination of
an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or to
which any of its material Property is subject.
"Restricted Payment" means (i) any dividend or other
payment or distribution, direct or indirect, on account of
any shares of any class of Capital Stock of any member of
the Consolidated Group, now or hereafter outstanding
(including without limitation any payment in connection with
any dissolution, merger, consolidation or disposition
involving any member of the Consolidated Group), or to the
holders, in their capacity as such, of any shares of any
class of Capital Stock of any member of the Consolidated
Group, now or hereafter outstanding (other than dividends or
distributions payable in the same class of Capital Stock of
the applicable Person or dividends or distributions payable
to any Credit Party (directly or indirectly through
Subsidiaries)), (ii) any redemption, retirement, sinking
fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of
Capital Stock of any member of the Consolidated Group, now
or hereafter outstanding, and (iii) any payment made to
retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any
class of Capital Stock of any member of the Consolidated
Group, now or hereafter outstanding.
"Revolving Commitment" means, with respect to each
Lender, the commitment of such Lender to make Revolving
Loans in an aggregate principal amount at any time
outstanding up to such Lender's Revolving Commitment
Percentage at such time of the Aggregate Revolving Committed
Amount at such time.
"Revolving Commitment Percentage" means, for each
Lender, a fraction (expressed as a percentage) the numerator
of which is the Revolving Committed Amount of such Lender at
such time and the denominator of which is the Aggregate
Revolving Committed Amount at such time. The initial
Revolving Commitment Percentage of each Lender is set forth
on Schedule 2.1.
"Revolving Committed Amount" means, with respect to
each Lender, the amount of such Lender's Revolving
Commitment. The initial Revolving Committed Amount of each
Lender is set forth on Schedule 2.1.
"Revolving Loan" shall have the meaning assigned to
such term in Section 2.1(a).
"Revolving Note" or "Revolving Notes" means the
promissory notes of the Borrower in favor of each of the
Lenders evidencing the Revolving Loans and Swingline Loans
in substantially the form attached as Schedule 2.5,
individually or collectively, as appropriate, as such
promissory notes may be amended, modified, supplemented,
extended, renewed or replaced from time to time.
"S&P" means Standard & Poor's Ratings Group, a division
of The McGraw Hill Companies, Inc., or any successor or
assignee of the business of such division in the business of
rating securities.
"Sale and Leaseback Transaction" means any arrangement
pursuant to which any member of the Consolidated Group,
directly or indirectly, becomes liable as lessee, guarantor
or other surety with respect to any lease, whether an
Operating Lease or a Capital Lease, of any Property (a)
which such member of the Consolidated Group has sold or
transferred (or is to sell or transfer) to a Person which is
not a member of the Consolidated Group or (b) which such
member of the Consolidated Group intends to use for
substantially the same purpose as any other Property which
has been sold or transferred (or is to be sold or
transferred) by such member of the Consolidated Group to
another Person which is not a member of the Consolidated
Group in connection with such lease.
"Securities Exchange Act" means the Securities Exchange
Act of 1934.
"Securitization Transaction" means any financing
transaction or series of financing transactions that have
been or may be entered into by a member of the Consolidated
Group pursuant to which such member of the Consolidated
Group may sell, convey or otherwise transfer to (i) a
Subsidiary or affiliate (a "Securitization Subsidiary"), or
(ii) any other Person, or may grant a security interest in,
any accounts receivable, notes receivable, rights to future
lease payments or residuals or other similar rights to
payment (the "Securitization Receivables") (whether such
Securitization Receivables are then existing or arising in
the future) of such member of the Consolidated Group, and
any assets related thereto, including without limitation,
all security interests in merchandise or services financed
thereby, the proceeds of such Securitization Receivables,
and other assets which are customarily sold or in respect of
which security interests are customarily granted in
connection with securitization transactions involving such
assets.
"Security Agreement" means the security agreement dated
as of the Closing Date given by the Credit Parties to the
Administrative Agent to secure the obligations of the Credit
Parties under the Credit Documents, as such security
agreement may be amended and modified from time to time.
"Single Employer Plan" means any Plan which is covered
by Title IV of ERISA, but which is not a Multiemployer Plan
or a Multiple Employer Plan.
"Subordinated Debt" means any Indebtedness of a member
of the Consolidated Group which by its terms is expressly
subordinated in right of payment to the prior payment of the
obligations of the Credit Parties under the Credit Documents
on terms and conditions and evidenced by documentation
satisfactory to the Administrative Agent and the Required
Lenders.
"Subsidiary" means, as to any Person at any time, (a)
any corporation more than 50% of whose Capital Stock of any
class or classes having by the terms thereof ordinary voting
power to elect a majority of the directors of such
corporation (irrespective of whether or not at such time,
any class or classes of such corporation shall have or might
have voting power by reason of the happening of any
contingency) is at such time owned by such Person directly
or indirectly through Subsidiaries, and (b) any partnership,
association, joint venture or other entity of which such
Person directly or indirectly through Subsidiaries owns at
such time more than 50% of the Capital Stock.
"Support Obligations" means, with respect to any
Person, without duplication, any obligations of such Person
(other than endorsements in the ordinary course of business
of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of
any other Person in any manner, whether direct or indirect,
and including without limitation any obligation, whether or
not contingent, (i) to purchase any such Indebtedness or any
Property constituting security therefor, (ii) to advance or
provide funds or other support for the payment or purchase
of any such Indebtedness or to maintain working capital,
solvency or other balance sheet condition of such other
Person (including without limitation keep well agreements,
maintenance agreements, comfort letters or similar
agreements or arrangements) for the benefit of any holder of
Indebtedness of such other Person, (iii) to lease or
purchase Property, securities or services primarily for the
purpose of assuring the holder of such Indebtedness, or (iv)
to otherwise assure or hold harmless the holder of such
Indebtedness against loss in respect thereof. The amount of
any Support Obligation hereunder shall (subject to any
limitations set forth therein) be deemed to be an amount
equal to the outstanding principal amount (or maximum
principal amount, if larger) of the Indebtedness in respect
of which such Support Obligation is made.
"Swingline Commitment" means the commitment of the
Swingline Lender to make Swingline Loans in an aggregate
principal amount at any time outstanding up to the Swingline
Committed Amount and the commitment of each Lender to
purchase participation interests in Swingline Loans up to
such Lender's Revolving Commitment Percentage as provided in
Section 2.1(c).
"Swingline Committed Amount" shall have the meaning
assigned to such term in Section 2.1(c).
"Swingline Lender" means Bank of America.
"Swingline Loan" means a swingline revolving loan made
by the Swingline Lender pursuant to the provisions of
Section 2.1(c).
"Synthetic Lease" means any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product where such transaction
is considered borrowed money indebtedness for tax purposes
but is classified as an Operating Lease under GAAP.
"Taxes" shall have the meaning assigned to such term in
Section 3.11.
"Termination Date" means the earlier of (a) August 29,
2005 or such later date as to which all of the Lenders may
in their sole discretion by written consent agree or (b) the
date on which the Commitments are terminated in accordance
with the provisions of this Credit Agreement.
"Voting Stock" means, with respect to any Person,
Capital Stock issued by such Person the holders of which are
ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing
similar functions) of such Person, even though the right so
to vote has been suspended by the happening of such a
contingency.
"Wholly Owned Subsidiary" of any Person means any
Subsidiary 100% of whose Voting Stock is at the time owned
by such Person directly or indirectly through other Wholly
Owned Subsidiaries.
1.2 Computation of Time Periods.
For purposes of computation of periods of time hereunder,
the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding."
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all
financial statements and certificates and reports as to financial
matters required to be delivered to the Lenders hereunder shall
be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining
compliance with this Credit Agreement shall (except as otherwise
expressly provided herein) be made by application of GAAP applied
on a basis consistent with the most recent annual or quarterly
financial statements delivered pursuant to Section 7.1 (or, prior
to the delivery of the first financial statements pursuant to
Section 7.1, consistent with the annual audited financial
statements referenced in Section 6.1(i)); provided, however, if
(a) the Borrower shall object to determining such compliance on
such basis at the time of delivery of such financial statements
due to any change in GAAP or the rules promulgated with respect
thereto or (b) the Administrative Agent or the Required Lenders
shall so object in writing within 60 days after delivery of such
financial statements, then such calculations shall be made on a
basis consistent with the most recent financial statements
delivered by the Credit Parties to the Lenders as to which no
such objection shall have been made.
Notwithstanding the above, the parties hereto acknowledge
and agree that, for purposes of all calculations made under the
financial covenants set forth in Section 7.11 (including without
limitation for purposes of the definitions of "Applicable
Percentage" and "Pro Forma Basis"), (i) in connection with any
Asset Disposition referred to in Section 8.5, (A) income
statement items (whether positive or negative) attributable to
the Property disposed of shall be excluded to the extent relating
to any period occurring prior to the date of such transaction and
(B) Indebtedness which is retired shall be excluded and deemed to
have been retired as of the day preceding the first day of the
applicable period and (ii) in connection with any merger or
consolidation referred to in Section 8.4 or any Acquisition
referred to in the definition of "Permitted Acquisition", (A)
income statement items attributable to the Person or Property
acquired shall, to the extent not otherwise included in such
income statement items for the members of the Consolidated Group
in accordance with GAAP or in accordance with any defined terms
set forth in Section 1.1, be included to the extent relating to
any period applicable in such calculations, (B) Indebtedness of
the Person or Property acquired shall be deemed to have been
incurred as of the first day of the applicable period and (C) pro
forma adjustments may be included to the extent that such
adjustments would be permitted under GAAP and give effect to
items that are (x) directly attributable to such transaction, (y)
expected to have a continuing impact on the Consolidated Group
and (z) factually supportable.
SECTION 2
CREDIT FACILITIES
2.1 Commitments.
(a) Revolving Commitment. During the Commitment Period,
subject to the terms and conditions hereof, each Lender severally
agrees to make revolving credit loans (the "Revolving Loans") to
the Borrower in Dollars from time to time in the amount of such
Lender's Revolving Commitment Percentage of such Revolving Loans
for the purposes hereinafter set forth; provided that (i) with
regard to the Lenders collectively, the aggregate principal
amount of Obligations outstanding at any time shall not exceed
ONE HUNDRED TWENTY-FIVE MILLION DOLLARS ($125,000,000) (as such
amount may be reduced from time to time in accordance with the
provisions hereof, the "Aggregate Revolving Committed Amount"),
and (ii) with regard to each Lender individually, such Lender's
Revolving Commitment Percentage of Obligations outstanding at any
time shall not exceed such Lender's Revolving Committed Amount.
Revolving Loans may consist of Base Rate Loans or Eurodollar
Loans, or a combination thereof, as the Borrower may request, and
may be repaid and reborrowed in accordance with the provisions
hereof.
(b) Letter of Credit Commitment. During the Commitment
Period, subject to the terms and conditions hereof and of the LOC
Documents, if any, and such other terms and conditions which the
Issuing Lender may reasonably require, the Issuing Lender shall
issue, and the Lenders shall participate in, such Letters of
Credit in Dollars as the Borrower may request for its own account
or for the account of another Credit Party as provided herein, in
a form acceptable to the Issuing Lender, for the purposes
hereinafter set forth; provided that (i) the aggregate amount of
LOC Obligations shall not at any time exceed TEN MILLION DOLLARS
($10,000,000) (as such amount may be reduced from time to time in
accordance with the provisions hereof, the "LOC Committed
Amount"), (ii) with regard to the Lenders collectively, the
aggregate principal amount of Obligations outstanding at any time
shall not exceed the Aggregate Revolving Committed Amount, and
(iii) with regard to each Lender individually, such Lender's
Revolving Commitment Percentage of Obligations outstanding at any
time shall not exceed such Lender's Revolving Committed Amount.
Letters of Credit shall not have an original expiry date more
than one year from the date of issuance or extension. No Letter
of Credit shall have an expiry date, whether as originally issued
or by extension, extending beyond the Termination Date. Each
Letter of Credit shall comply with the related LOC Documents.
The issuance date of each Letter of Credit shall be a Business
Day.
(c) Swingline Commitment. During the Commitment Period,
subject to the terms and conditions hereof, the Swingline Lender
agrees to make certain revolving credit loans (the "Swingline
Loans") to the Borrower in Dollars from time to time for the
purposes hereinafter set forth; provided that (i) the aggregate
principal amount of Swingline Loans shall not at any time exceed
TEN MILLION DOLLARS ($10,000,000) (as such amount may be reduced
from time to time in accordance with the provisions hereof, the
"Swingline Committed Amount"), and (ii) with regard to the Lenders
collectively, the aggregate principal amount of Obligations
outstanding at any time shall not exceed the Aggregate Revolving
Committed Amount. Swingline Loans may consist of Base Rate Loans
or Quoted Rate Swingline Loans, or a combination thereof, as the
Borrower may request, and may be repaid and reborrowed in
accordance with the provisions hereof.
2.2 Method of Borrowing.
(a) Notice of Request for Extensions of Credit. The
Borrower shall request an Extension of Credit by written notice
(or telephonic notice promptly confirmed in writing) as follows:
(i) Revolving Loans. In the case of Revolving Loans,
by the Borrower to the Administrative Agent not later than
11:00 A.M. (Dallas, Texas time) on the Business Day of the
requested borrowing in the case of Base Rate Loans, and on
the third Business Day prior to the date of the requested
borrowing in the case of Eurodollar Loans. Each such
request for borrowing shall be irrevocable and shall specify
(A) that a Revolving Loan is requested, (B) the date of the
requested borrowing (which shall be a Business Day), (C) the
aggregate principal amount to be borrowed, and (D) whether
the borrowing shall be comprised of Base Rate Loans,
Eurodollar Loans or a combination thereof, and if Eurodollar
Loans are requested, the Interest Period(s) therefor. A
form of Notice of Borrowing is attached as Schedule
2.2(a)(i). The Administrative Agent shall give notice to
each Lender promptly upon receipt of each Notice of
Borrowing pursuant to this Section 2.2(a)(i), the contents
thereof and each Lender's share of any borrowing to be made
pursuant thereto.
(ii) Letters of Credit. In the case of Letters of
Credit, by the Borrower to the Issuing Lender with a copy to
the Administrative Agent not later than 11:00 A.M. (Dallas,
Texas time) on the third Business Day prior to the date of
the requested issuance or extension (or such shorter period
as may be agreed by the Issuing Lender). Each such request
for issuance or extension of a Letter of Credit shall be
irrevocable and shall specify, among other things, (A) that
a Letter of Credit is requested, (B) the date of the
requested issuance or extension, (C) the type, amount,
expiry date and terms on which the Letter of Credit is to be
issued or extended, and (D) the beneficiary. A form of
Notice of Request for Letter of Credit is attached as
Schedule 2.2(a)(ii).
(iii)Swingline Loans. In the case of Swingline Loans,
by the Borrower to the Swingline Lender with a copy to the
Administrative Agent not later than 12:00 Noon (Dallas,
Texas time) on the Business Day of the requested borrowing.
Each such request for borrowing shall be irrevocable and
shall specify (A) that a Swingline Loan is requested, (B)
the date of the requested borrowing (which shall be a
Business Day), (C) the aggregate principal amount to be
borrowed, and (D) the interest rate option and maturity
requested therefor. A form of Notice of Borrowing is
attached as Schedule 2.2(a)(i).
(b) Minimum Amounts. Each Revolving Loan advance shall be
(i) in the case of Eurodollar Loans, in a minimum principal
amount of $1,000,000 and integral multiples of $500,000 in excess
thereof and (ii) in the case of Base Rate Loans, $1,000,000 (or,
if less, the remaining Aggregate Revolving Committed Amount) and
integral multiples of $250,000 in excess thereof. Each Swingline
Loan advance shall be in integral multiples of $100,000 (or the
remaining amount of the Swingline Committed Amount, if less).
(c) Information Not Provided. If in connection with any
such request for a Revolving Loan, the Borrower shall fail to
specify (i) an applicable Interest Period in the case of a
Eurodollar Loan, the Borrower shall be deemed to have requested
an Interest Period of one month, or (ii) the type of loan
requested, the Borrower shall be deemed to have requested a Base
Rate Loan.
(d) Maximum Number of Eurodollar Loans. In connection with
any request for a Revolving Loan, Revolving Loans may be
comprised of no more than eight (8) Eurodollar Loans outstanding
at any time. For purposes hereof, Eurodollar Loans with separate
or different Interest Periods will be considered as separate
Eurodollar Loans even if their Interest Periods expire on the
same date.
2.3 Interest.
Subject to Section 3.1, the Loans shall bear interest at a
per annum rate, payable in arrears on each applicable Interest
Payment Date (or at such other times as may be specified herein),
as follows:
(a) Base Rate Loans. During such periods as the Loans
shall be comprised of Base Rate Loans, the Adjusted Base
Rate;
(b) Eurodollar Loans. During such periods as the
Loans shall be comprised of Eurodollar Loans, the Adjusted
Eurodollar Rate; and
(c) Quoted Rate Swingline Loans. During such periods
as the Swingline Loans shall be comprised of Quoted Rate
Swingline Loans, the Quoted Rate.
2.4 Repayment.
(a) Revolving Loans. The principal amount of all
Revolving Loans shall be due and payable in full on the
Termination Date.
(b) Swingline Loans. The principal amount of (i) the
Quoted Rate Swingline Loans shall be due and payable in full
on the earlier of (A) the maturity date agreed to by the
Swingline Lender and the Borrower with respect to such
Swingline Loan and (B) the Termination Date, and (ii) all
other Swingline Loans shall be due and payable in full on
the Termination Date.
2.5 Notes.
The Revolving Loans and Swingline Loans shall be evidenced
by the Revolving Notes.
2.6 Additional Provisions relating to Letters of Credit.
(a) Reports. The Issuing Lender will provide to the
Administrative Agent, upon request, a detailed summary report on
each Letter of Credit and the activity thereon, in form and
substance acceptable to the Administrative Agent. In addition,
the Issuing Lender will provide to the Administrative Agent for
dissemination to the Lenders, upon request, a detailed summary
report on each Letter of Credit and the activity thereon,
including, among other things, the Credit Party for whose account
the Letter of Credit is issued, the beneficiary, the face amount,
and the expiry date. The Issuing Lender will provide copies of
the Letters of Credit to the Administrative Agent and the Lenders
promptly upon request.
(b) Participation. Each Lender, with respect to the
Existing Letters of Credit, hereby purchases a participation
interest in Existing Letters of Credit, and with respect to
Letters of Credit issued on or after the Closing Date, upon
issuance of a Letter of Credit, shall be deemed to have purchased
without recourse a risk participation from the Issuing Lender in
such Letter of Credit and the obligations arising thereunder, in
each case in an amount equal to its pro rata share of the
obligations under such Letter of Credit (based on the respective
Revolving Commitment Percentages of the Lenders) and shall
absolutely, unconditionally and irrevocably assume, as primary
obligor and not as surety, and be obligated to pay to the Issuing
Lender therefor and discharge when due, its pro rata share of the
obligations arising under such Letter of Credit. Without
limiting the scope and nature of each Lender's participation in
any Letter of Credit, to the extent that the Issuing Lender has
not been reimbursed as required hereunder or under any such
Letter of Credit, each Lender shall pay to the Issuing Lender its
pro rata share of such unreimbursed drawing in same day funds on
the day of notification by the Issuing Lender of an unreimbursed
drawing pursuant to the provisions of subsection (d) below. The
obligation of each Lender to so reimburse the Issuing Lender
shall be absolute and unconditional and shall not be affected by
the occurrence of a Default, an Event of Default or any other
occurrence or event. Any such reimbursement shall not relieve or
otherwise impair the obligation of the Borrower to reimburse the
Issuing Lender under any Letter of Credit, together with interest
as hereinafter provided.
(c) Reimbursement. In the event of any drawing under any
Letter of Credit, the Issuing Lender will promptly notify the
Borrower. Unless the Borrower shall immediately notify the
Issuing Lender that the Borrower intends to otherwise reimburse
the Issuing Lender for such drawing, the Borrower shall be deemed
to have requested that the Lenders make a Revolving Loan in the
amount of the drawing as provided in subsection (d) below on the
related Letter of Credit, the proceeds of which will be used to
satisfy the related reimbursement obligations. The Borrower
promises to reimburse the Issuing Lender on the day of drawing
under any Letter of Credit (either with the proceeds of a
Revolving Loan obtained hereunder or otherwise) in same day
funds. If the Borrower shall fail to reimburse the Issuing
Lender as provided hereinabove, the unreimbursed amount of such
drawing shall bear interest at a per annum rate equal to the
Adjusted Base Rate plus two percent (2%). The Borrower's
reimbursement obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of any rights
of setoff, counterclaim or defense to payment the Borrower may
claim or have against the Issuing Lender, the Administrative
Agent, the Lenders, the beneficiary of the Letter of Credit drawn
upon or any other Person, including without limitation any
defense based on any failure of the Borrower or any other Credit
Party to receive consideration or the legality, validity,
regularity or unenforceability of the Letter of Credit. The
Issuing Lender will promptly notify the other Lenders of the
amount of any unreimbursed drawing and each Lender shall promptly
pay to the Administrative Agent for the account of the Issuing
Lender in Dollars and in immediately available funds, the amount
of such Lender's Revolving Commitment Percentage of such
unreimbursed drawing. Such payment shall be made on the day such
notice is received by such Lender from the Issuing Lender if such
notice is received at or before 2:00 P.M. (Dallas, Texas time)
otherwise such payment shall be made at or before 12:00 Noon
(Dallas, Texas time) on the Business Day next succeeding the day
such notice is received. If such Lender does not pay such amount
to the Issuing Lender in full upon such request, such Lender
shall, on demand, pay to the Administrative Agent for the account
of the Issuing Lender interest on the unpaid amount during the
period from the date of such drawing until such Lender pays such
amount to the Issuing Lender in full at a rate per annum equal
to, if paid within two (2) Business Days of the date that such
Lender is required to make payments of such amount pursuant to
the preceding sentence, the Federal Funds Rate and thereafter at
a rate equal to the Base Rate. Each Lender's obligation to make
such payment to the Issuing Lender, and the right of the Issuing
Lender to receive the same, shall be absolute and unconditional,
shall not be affected by any circumstance whatsoever and without
regard to the termination of this Credit Agreement or the
Commitments hereunder, the existence of a Default or Event of
Default or the acceleration of the obligations of the Borrower
hereunder and shall be made without any offset, abatement,
withholding or reduction whatsoever. Simultaneously with the
making of each such payment by a Lender to the Issuing Lender,
such Lender shall, automatically and without any further action
on the part of the Issuing Lender or such Lender, acquire a
participation in an amount equal to such payment (excluding the
portion of such payment constituting interest owing to the
Issuing Lender) in the related unreimbursed drawing portion of
the LOC Obligation and in the interest thereon and in the related
LOC Documents, and shall have a claim against the Borrower with
respect thereto.
(d) Repayment with Revolving Loans. On any day on which
the Borrower shall have requested, or been deemed to have
requested, a Revolving Loan advance to reimburse a drawing under
a Letter of Credit, the Administrative Agent shall give notice to
the Lenders that a Revolving Loan has been requested or deemed
requested by the Borrower to be made in connection with a drawing
under a Letter of Credit, in which case a Revolving Loan advance
comprised of Base Rate Loans (or Eurodollar Loans to the extent
the Borrower has complied with the procedures of Section
2.2(a)(i) with respect thereto) shall be immediately made to the
Borrower by all Lenders (notwithstanding any termination of the
Commitments pursuant to Section 9.2) pro rata based on the
respective Revolving Commitment Percentages of the Lenders
(determined before giving effect to any termination of the
Commitments pursuant to Section 9.2) and the proceeds thereof
shall be paid directly to the Issuing Lender for application to
the respective LOC Obligations. Each such Lender hereby
irrevocably agrees to make its pro rata share of each such
Revolving Loan immediately upon any such request or deemed
request in the amount, in the manner and on the date specified in
the preceding sentence notwithstanding (i) the amount of such
borrowing may not comply with the minimum amount for advances of
Revolving Loans otherwise required hereunder, (ii) whether any
conditions specified in Section 5.2 are then satisfied, (iii)
whether a Default or an Event of Default then exists, (iv)
failure for any such request or deemed request for Revolving Loan
to be made by the time otherwise required hereunder, (v) whether
the date of such borrowing is a date on which Revolving Loans are
otherwise permitted to be made hereunder or (vi) any termination
of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any
Revolving Loan cannot for any reason be made on the date
otherwise required above (including, without limitation, as a
result of the commencement of a proceeding under the Bankruptcy
Code with respect to the Borrower or any Credit Party), then each
such Lender hereby agrees that it shall forthwith purchase (as of
the date such borrowing would otherwise have occurred, but
adjusted for any payments received from the Borrower on or after
such date and prior to such purchase) from the Issuing Lender
such participation in the outstanding LOC Obligations as shall be
necessary to cause each such Lender to share in such LOC
Obligations ratably (based upon the respective Commitment
Percentages of the Lenders (determined before giving effect to
any termination of the Commitments pursuant to Section 9.2)),
provided that in the event such payment is not made on the day of
drawing, such Lender shall pay in addition to the Issuing Lender
interest on the amount of its unfunded Participation Interest at
a rate equal to, if paid within two (2) Business Days of the date
of drawing, the Federal Funds Rate, and thereafter at the Base
Rate.
(e) Designation of other Credit Parties as Account
Parties. Notwithstanding anything to the contrary set forth in
this Credit Agreement, including without limitation Section
2.2(a)(ii) hereof, a Letter of Credit issued hereunder may
contain a statement to the effect that such Letter of Credit is
issued for the account of a Credit Party other than the Borrower,
provided that notwithstanding such statement, the Borrower shall
be the actual account party for all purposes of this Credit
Agreement for such Letter of Credit and such statement shall not
affect the Borrower's reimbursement obligations hereunder with
respect to such Letter of Credit.
(f) Renewal, Extension. The renewal or extension of any
Letter of Credit shall, for purposes hereof, be treated in all
respects the same as the issuance of a new Letter of Credit
hereunder.
(g) Uniform Customs and Practices. The Issuing Lender may
have the Letters of Credit be subject to The Uniform Customs and
Practice for Documentary Credits (the "UCP") or the International
Standby Practices 1998 (the "ISP98"), in either case as published
as of the date of issue by the International Chamber of Commerce,
in which case the UCP or the ISP98, as applicable, may be
incorporated therein and deemed in all respects to be a part
thereof.
(h) Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this
Section 2.6, the Borrower hereby agrees to protect,
indemnify, pay and save the Issuing Lender harmless from and
against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable
attorneys' fees) that the Issuing Lender may incur or be
subject to as a consequence, direct or indirect, of (A) the
issuance of any Letter of Credit or (B) the failure of the
Issuing Lender to honor a drawing under a Letter of Credit
as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or
omissions, herein called "Government Acts").
(ii) As between the Borrower and the Issuing Lender,
the Borrower shall assume all risks of the acts, omissions
or misuse of any Letter of Credit by the beneficiary
thereof. The Issuing Lender shall not be responsible: (A)
for the form, validity, sufficiency, accuracy, genuineness
or legal effect of any document submitted by any party in
connection with the application for and issuance of any
Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (B) for the validity or sufficiency of
any instrument transferring or assigning or purporting to
transfer or assign any Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in
part, that may prove to be invalid or ineffective for any
reason; (C) for errors, omissions, interruptions or delays
in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in
cipher; (D) for any loss or delay in the transmission or
otherwise of any document required in order to make a
drawing under a Letter of Credit or of the proceeds thereof;
and (E) for any consequences arising from causes beyond the
control of the Issuing Lender, including, without
limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of the Issuing
Lender's rights or powers hereunder.
(iii)In furtherance and extension and not in limitation
of the specific provisions hereinabove set forth, any action
taken or omitted by the Issuing Lender, under or in
connection with any Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not
put such Issuing Lender under any resulting liability to the
Borrower or any other Credit Party. It is the intention of
the parties that this Credit Agreement shall be construed
and applied to protect and indemnify the Issuing Lender
against any and all risks involved in the issuance of the
Letters of Credit, all of which risks are hereby assumed by
the Borrower (on behalf of itself and each of the other
Credit Parties), including, without limitation, any and all
Government Acts. The Issuing Lender shall not, in any way,
be liable for any failure by the Issuing Lender or anyone
else to pay any drawing under any Letter of Credit as a
result of any Government Acts or any other cause beyond the
control of the Issuing Lender.
(iv) Nothing in this subsection (h) is intended to
limit the reimbursement obligations of the Borrower
contained in subsection (d) above. The obligations of the
Borrower under this subsection (h) shall survive the
termination of this Credit Agreement. No act or omissions
of any current or prior beneficiary of a Letter of Credit
shall in any way affect or impair the rights of the Issuing
Lender to enforce any right, power or benefit under this
Credit Agreement.
(v) Notwithstanding anything to the contrary contained
in this subsection (h), the Borrower shall have no
obligation to indemnify the Issuing Lender in respect of any
liability incurred by the Issuing Lender (A) arising solely
out of the gross negligence or willful misconduct of the
Issuing Lender, as determined by a court of competent
jurisdiction, or (B) caused by the Issuing Lender's failure
to pay under any Letter of Credit after presentation to it
of a request strictly complying with the terms and
conditions of such Letter of Credit, as determined by a
court of competent jurisdiction, unless such payment is
prohibited by any law, regulation, court order or decree.
(i) Responsibility of Issuing Lender. It is expressly
understood and agreed that the obligations of the Issuing Lender
hereunder to the Lenders are only those expressly set forth in
this Credit Agreement and that the Issuing Lender shall be
entitled to assume that the conditions precedent set forth in
Section 5.2 have been satisfied unless it shall have acquired
actual knowledge that any such condition precedent has not been
satisfied; provided, however, that nothing set forth in this
Section 2.6 shall be deemed to prejudice the right of any Lender
to recover from the Issuing Lender any amounts made available by
such Lender to the Issuing Lender pursuant to this Section 2.6 in
the event that it is determined by a court of competent
jurisdiction that the payment with respect to a Letter of Credit
constituted gross negligence or willful misconduct on the part of
the Issuing Lender.
(j) Conflict with LOC Documents. In the event of any
conflict between this Credit Agreement and any LOC Document
(including any letter of credit application), this Credit
Agreement shall control.
2.7 Additional Provisions relating to Swingline Loans.
The Swingline Lender may, at any time, in its sole
discretion, by written notice to the Borrower and the Lenders,
demand repayment of its Swingline Loans by way of a Revolving
Loan advance, in which case the Borrower shall be deemed to have
requested a Revolving Loan advance comprised solely of Base Rate
Loans in the amount of such Swingline Loans; provided, however,
that any such demand shall be deemed to have been given one
Business Day prior to the Termination Date and on the date of the
occurrence of any Event of Default described in Section 9.1 and
upon acceleration of the indebtedness hereunder and the exercise
of remedies in accordance with the provisions of Section 9.2.
Each Lender hereby irrevocably agrees to make its Revolving
Commitment Percentage of each such Revolving Loan in the amount,
in the manner and on the date specified in the preceding sentence
notwithstanding (I) the amount of such borrowing may not comply
with the minimum amount for advances of Revolving Loans otherwise
required hereunder, (II) whether any conditions specified in
Section 5.2 are then satisfied, (III) whether a Default or an
Event of Default then exists, (IV) failure of any such request or
deemed request for Revolving Loan to be made by the time
otherwise required hereunder, (V) whether the date of such
borrowing is a date on which Revolving Loans are otherwise
permitted to be made hereunder or (VI) any termination of the
Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any
Revolving Loan cannot for any reason be made on the date
otherwise required above (including, without limitation, as a
result of the commencement of a proceeding under the Bankruptcy
Code with respect to the Borrower or any other Credit Party),
then each Lender hereby agrees that it shall forthwith purchase
(as of the date such borrowing would otherwise have occurred, but
adjusted for any payments received from the Borrower on or after
such date and prior to such purchase) from the Swingline Lender
such Participation Interests in the outstanding Swingline Loans
as shall be necessary to cause each such Lender to share in such
Swingline Loans ratably based upon its Revolving Commitment
Percentage (determined before giving effect to any termination of
the Commitments pursuant to Section 3.4), provided that (A) all
interest payable on the Swingline Loans shall be for the account
of the Swingline Lender until the date as of which the respective
Participation Interest is funded and (B) at the time any purchase
of Participation Interests pursuant to this sentence is actually
made, the purchasing Lender shall be required to pay to the
Swingline Lender, to the extent not paid to the Swingline Lender
by the Borrower in accordance with the terms of Section 2.4(b),
interest on the principal amount of Participation Interests
purchased for each day from and including the day upon which such
borrowing would otherwise have occurred to but excluding the date
of payment for such Participation Interests, at the rate equal to
the Federal Funds Rate.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate.
Upon the occurrence, and during the continuance, of an Event
of Default, (i) the principal of and, to the extent permitted by
law, interest on the Loans and any other amounts owing hereunder
or under the other Credit Documents shall bear interest, payable
on demand, at a per annum rate 2% greater than the rate which
would otherwise be applicable (or if no rate is applicable,
whether in respect of interest, fees or other amounts, then the
Adjusted Base Rate plus 2%) and (ii) the Letter of Credit Fee
shall accrue at a per annum rate 2% greater than the rate which
would otherwise be applicable.
3.2 Extension and Conversion.
The Borrower shall have the option, on any Business Day, to
extend existing Loans into a subsequent permissible Interest
Period or to convert Loans into Loans of another interest rate
type; provided, however, that (i) except as provided in Section
3.8, Eurodollar Loans may be converted into Base Rate Loans or
extended as Eurodollar Loans for new Interest Periods only on the
last day of the Interest Period applicable thereto, (ii)
Eurodollar Loans may be extended, and Base Rate Loans may be
converted into Eurodollar Loans, only if the conditions precedent
set forth in Section 5.2 are satisfied on the date of
Continuation or Conversion, (iii) Loans extended as, or converted
into, Eurodollar Loans shall be subject to the terms of the
definition of "Interest Period" and shall be in such minimum
amounts as provided in Section 2.2(b), and (iv) any request for
Continuation or Conversion of a Eurodollar Loan which shall fail
to specify an Interest Period shall be deemed to be a request for
an Interest Period of one month. Each such Continuation or
Conversion shall be effected by the Borrower by giving a Notice
of Extension/Conversion (or telephonic notice promptly confirmed
in writing) to the office of the Administrative Agent specified
in Section 11.1, or at such other office as the Administrative
Agent may designate in writing, prior to 11:00 A.M. (Dallas,
Texas time), on the Business Day of, in the case of the
Conversion of a Eurodollar Loan into a Base Rate Loan, and on the
third Business Day prior to, in the case of the Continuation of a
Eurodollar Loan as, or Conversion of a Base Rate Loan into, a
Eurodollar Loan, the date of the proposed Continuation or
Conversion, specifying the date of the proposed Continuation or
Conversion, the Loans to be so extended or converted, the types
of Loans into which such Loans are to be converted and, if
appropriate, the applicable Interest Periods with respect
thereto. Each request for Continuation or Conversion shall be
irrevocable and shall constitute a representation and warranty by
the Borrower of the matters specified in Section 5.2. In the
event the Borrower fails to request Continuation or Conversion of
any Eurodollar Loan in accordance with this Section, or any such
Conversion or Continuation is not permitted or required by this
Section, then such Eurodollar Loan shall be automatically
converted into a Base Rate Loan at the end of the Interest Period
applicable thereto. The Administrative Agent shall give each
Lender notice as promptly as practicable of any such proposed
Continuation or Conversion affecting any Revolving Loan.
3.3 Prepayments.
(a) Voluntary Prepayments. The Loans may be repaid in
whole or in part without premium or penalty; provided that (i)
Eurodollar Loans and Quoted Rate Swingline Loans may be prepaid
only upon prior written notice to the Administrative Agent
received prior to 11:00 A.M. (Dallas, Texas time) on the third
Business Day prior to such prepayment and must be accompanied by
payment of accrued interest thereon and any amounts owing under
Section 3.12, (ii) Base Rate Loans may be prepaid only upon prior
written notice to the Administrative Agent received prior to
11:00 A.M. (Dallas, Texas time) on the Business Day of such
prepayment, (iii) Swingline Loans (other than Quoted Rate
Swingline Loans) may be prepaid only upon prior written notice to
the Administrative Agent received prior to 12:00 Noon (Dallas,
Texas time) on the Business Day of such prepayment, and (iv)
partial prepayments shall be minimum principal amounts of
$1,000,000, in the case of Eurodollar Loans, and $500,000, in the
case of Base Rate Loans, and in integral multiples of $250,000 in
excess thereof.
(b) Mandatory Prepayments.
(i) Committed Amounts. If at any time, (i) the
aggregate principal amount of Obligations shall exceed the
Aggregate Revolving Committed Amount, (ii) the aggregate
amount of LOC Obligations shall exceed the LOC Committed
Amount, or (iii) the aggregate amount of Swingline Loans
shall exceed the Swingline Committed Amount, the Borrower
shall immediately make payment on the Revolving Loans, on
the Swingline Loans and/or to a cash collateral account in
respect of the LOC Obligations, in an amount sufficient to
eliminate the excess.
(ii) Asset Dispositions. The Obligations shall be
immediately prepaid as hereafter provided in an amount equal
to one hundred percent (100%) of the Net Cash Proceeds
received from any Asset Disposition to the extent (A) such
Net Cash Proceeds are not reinvested in the same or similar
property or assets within twelve (12) months of the date of
such Asset Disposition, and (B) the aggregate amount of such
Net Cash Proceeds not reinvested in accordance with the
foregoing clause (A) shall exceed $2,000,000 in any fiscal
year.
(iii) Debt Transactions. The Obligations shall be
immediately prepaid as hereafter provided in an amount equal
to one hundred percent (100%) of the Net Cash Proceeds
received from any Debt Transaction.
(iv) Equity Transactions. The Obligations shall be
immediately prepaid as hereafter provided in an amount equal
to one hundred percent (100%) of the Net Cash Proceeds
received from any Equity Transaction.
(c) Application. Voluntary prepayments shall be applied as
specified by the Borrower or, if not so specified, first to Base
Rate Loans, then to Eurodollar Loans and Quoted Rate Swingline
Loans in direct order of Interest Period maturities and then to a
cash collateral account to secure LOC Obligations. Mandatory
prepayments shall be applied first to Base Rate Loans, then to
Eurodollar Loans and Quoted Rate Swingline Loans in direct order
of Interest Period maturities and then to a cash collateral
account to secure LOC Obligations (with a corresponding reduction
in the Aggregate Revolving Committed Amount in an amount equal to
the aggregate amount of prepayments required in respect of Asset
Dispositions, Debt Transactions and Equity Transactions under
clauses (ii), (iii) and (iv), respectively, of Section 3.3(b)
hereof.
3.4 Reduction and Termination of Commitments.
(a) Voluntary Reduction of Commitments. The Commitments
may be terminated or permanently reduced in whole or in part by
the Borrower upon three (3) Business Days' prior written notice
to the Administrative Agent, provided that (i) after giving
effect to any voluntary reduction the aggregate amount of
Obligations shall not exceed the Aggregate Revolving Committed
Amount, as reduced, and (ii) partial reductions shall be in a
minimum principal amount of $5,000,000, and in integral multiples
of $1,000,000 in excess thereof.
(b) Mandatory Reduction of Commitments. The Aggregate
Revolving Committed Amount shall be permanently reduced by the
aggregate amount of prepayments required in respect of Asset
Dispositions and Debt Transactions under clauses (ii) and (iii),
respectively, of Section 3.3(b) hereof.
(c) Termination of Commitments. The Commitments shall
terminate on the Termination Date.
3.5 Fees.
(a) Commitment Fee. In consideration of the Revolving
Commitments, the Borrower agrees to pay to the Administrative
Agent for the ratable benefit of the Lenders a commitment fee
(the "Commitment Fee") equal to the Applicable Percentage per
annum on the average daily unused amount of the Aggregate
Revolving Committed Amount for the applicable period. The
Commitment Fee shall be payable quarterly in arrears on the last
Business Day of each March, June, September and December for the
immediately preceding quarter (or portion thereof) beginning with
the first such date to occur after the Closing Date (as well as
on the Termination Date). For purposes of computation of the
Commitment Fee, (i) Swingline Loans shall not be counted toward
or considered usage of the Aggregate Revolving Committed Amount
and (ii) LOC Obligations shall be counted toward and considered
usage of the Aggregate Revolving Committed Amount.
(b) Letter of Credit Fees.
(i) Letter of Credit Fee. In consideration of the
issuance of Letters of Credit, the Borrower promises to pay
to the Administrative Agent for the account of each Lender a
fee (the "Letter of Credit Fee") on such Lender's Revolving
Commitment Percentage of the average daily maximum amount
available to be drawn under each such Letter of Credit
computed at a per annum rate for each day from the date of
issuance to the date of expiration equal to the Applicable
Percentage. The Letter of Credit Fee shall be payable
quarterly in arrears on the last Business Day of each March,
June, September and December for the immediately preceding
quarter (or a portion thereof).
(ii) Issuing Lender Fees. In addition to the Letter of
Credit Fee, the Borrower promises to pay to the
Administrative Agent for the account of the Issuing Lender
without sharing by the other Lenders (i) a letter of credit
fronting fee of one-eighth of one percent (0.125%) on the
average daily maximum amount available to be drawn under
each Letter of Credit computed at a per annum rate for each
day from the date of issuance to the date of expiration and
(ii) the customary charges from time to time of the Issuing
Lender with respect to the issuance, amendment, transfer,
administration, cancellation and conversion of, and drawings
under, such Letters of Credit. The Issuing Lender Fees
hereunder shall be payable quarterly in arrears on the last
Business Day of each March, June, September and December for
the immediately preceding quarter (or a portion thereof) or
as the Issuing Lender may otherwise provide.
(c) Administrative Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, the fees referred to
in the Administrative Agent's Fee Letter.
3.6 Capital Adequacy.
If any Lender has determined, after the date hereof, that
the adoption or the becoming effective of, or any change in, or
any change by any Governmental Authority, central bank or
comparable agency charged with the interpretation or
administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital
adequacy, or compliance by such Lender with any request or
directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of
return on such Lender's (including, for purposes hereof, the
parent company of such Lender) capital or assets as a consequence
of its commitments or obligations hereunder to a level below that
which such Lender could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration
such Lender's policies with respect to capital adequacy), then,
upon notice from such Lender to the Borrower, the Borrower shall
be obligated to pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction. Each
determination by any such Lender of amounts owing under this
Section shall, absent manifest error, be conclusive and binding
on the parties hereto.
3.7 Limitation on Eurodollar Loans.
If on or prior to the first day of any Interest Period for
any Eurodollar Loan:
(a) the Administrative Agent reasonably determines
(which determination shall be conclusive) that by reason of
circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine (which
determination shall be conclusive) and notify the
Administrative Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of
funding Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Borrower prompt
notice thereof, and so long as such condition remains in effect,
the Lenders shall be under no obligation to make additional
Eurodollar Loans, Continue Eurodollar Loans, or to Convert Base
Rate Loans into Eurodollar Loans with respect to the affected
currency.
3.8 Illegality.
Notwithstanding any other provision of this Credit
Agreement, in the event that it becomes unlawful for any Lender
(or its Applicable Lending Office) to make, maintain, or fund
Eurodollar Loans hereunder, then such Lender shall promptly
notify the Borrower thereof and such Lender's obligation to make
or Continue Eurodollar Loans and to Convert Base Rate Loans into
Eurodollar Loans shall be suspended until such time as such
Lender may again make, maintain, and fund Eurodollar Loans (in
which case the provisions of Section 3.10 shall be applicable).
3.9 Requirements of Law.
If, after the date hereof, the adoption of any applicable
law, rule, or regulation, or any change in any applicable law,
rule, or regulation, or any change in the interpretation or
administration thereof by any Governmental Authority, central
bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its
Applicable Lending Office) with any request or directive (whether
or not having the force of law) of any such Governmental
Authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty, or other charge with
respect to any Eurodollar Loans, its Notes, or its
obligation to make Eurodollar Loans, or change the basis of
taxation of any amounts payable to such Lender (or its
Applicable Lending Office) under this Credit Agreement or
its Notes in respect of any Eurodollar Loans (other than
taxes imposed on the overall net income of such Lender by
the jurisdiction in which such Lender has its principal
office or such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement
(other than the Eurodollar Reserve Requirement utilized in
the determination of the Adjusted Eurodollar Rate) relating
to any extensions of credit or other assets of, or any
deposits with or other liabilities or commitments of, such
Lender (or its Applicable Lending Office), including the
Commitment of such Lender hereunder; or
(iii)shall impose on such Lender (or its Applicable
Lending Office) or the London interbank market any other
condition affecting this Credit Agreement or its Notes or
any of such extensions of credit or liabilities or
commitments;
and the result of any of the foregoing is to increase the cost to
such Lender (or its Applicable Lending Office) of making,
Converting into, Continuing, or maintaining any Eurodollar Loans
or to reduce any sum received or receivable by such Lender (or
its Applicable Lending Office) under this Credit Agreement or its
Notes with respect to any Eurodollar Loans, then the Borrower
shall pay to such Lender on demand such amount or amounts as will
compensate such Lender for such increased cost or reduction. If
any Lender requests compensation by the Borrower under this
Section 3.9, the Borrower may, by notice to such Lender (with a
copy to the Administrative Agent), suspend the obligation of such
Lender to make or Continue Eurodollar Loans, or to Convert Base
Rate Loans into Eurodollar Loans, until the event or condition
giving rise to such request ceases to be in effect (in which case
the provisions of Section 3.10 shall be applicable); provided
that such suspension shall not affect the right of such Lender to
receive the compensation so requested. Each Lender shall
promptly notify the Borrower and the Administrative Agent of any
event of which it has knowledge, occurring after the date hereof,
which will entitle such Lender to compensation pursuant to this
Section 3.9 and will designate a different Applicable Lending
Office if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the judgment of
such Lender, be otherwise disadvantageous to it. Any Lender
claiming compensation under this Section 3.9 shall furnish to the
Borrower and the Administrative Agent a statement setting forth
the additional amount or amounts to be paid to it hereunder which
shall be conclusive in the absence of manifest error. In
determining such amount, such Lender may use any reasonable
averaging and attribution methods.
3.10 Treatment of Affected Loans.
If the obligation of any Lender to make any Eurodollar Loan
or to Continue, or to Convert Base Rate Loans into, Eurodollar
Loans shall be suspended pursuant to Section 3.8 or 3.9 hereof,
such Lender's Eurodollar Loans shall be automatically Converted
into Base Rate Loans on the last day(s) of then current Interest
Period(s) for such Eurodollar Loans (or, in the case of a
Conversion required by Section 3.8 hereof, on such earlier date
as such Lender may specify to the Borrower with a copy to the
Administrative Agent) and, unless and until such Lender gives
notice as provided below that the circumstances specified in
Section 3.8 or 3.9 hereof that gave rise to such Conversion no
longer exist:
(a) to the extent that such Lender's Eurodollar Loans
have been so Converted, all payments and prepayments of
principal that would otherwise be applied to such Lender's
Eurodollar Loans shall be applied instead to its Base Rate
Loans; and
(b) all Loans that would otherwise be made or
Continued by such Lender as Eurodollar Loans shall be made
or Continued instead as Base Rate Loans, and all Base Rate
Loans of such Lender that would otherwise be Converted into
Eurodollar Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the
Administrative Agent) that the circumstances specified in Section
3.8 or 3.9 hereof that gave rise to the Conversion of such
Lender's Eurodollar Loans pursuant to this Section 3.10 no longer
exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans
made by other Lenders are outstanding, such Lender's Base Rate
Loans shall be automatically Converted, on the first day(s) of
the next succeeding Interest Period(s) for such outstanding
Eurodollar Loans, to the extent necessary so that, after giving
effect thereto, all Loans held by the Lenders holding Eurodollar
Loans and by such Lender are held pro rata (as to principal
amounts, interest rate basis, and Interest Periods) in accordance
with their respective Commitments.
3.11 Taxes.
(a) Any and all payments by any Credit Party to or for the
account of any Lender or the Administrative Agent hereunder or
under any other Credit Document shall be made free and clear of
and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case of
each Lender and the Administrative Agent, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Lender (or its Applicable Lending
Office) or the Administrative Agent (as the case may be) is
organized or any political subdivision thereof (all such
non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as
"Taxes"). If any Credit Party shall be required by law to deduct
or withhold any Taxes from or in respect of any sum payable under
this Credit Agreement or any other Credit Document to any Lender
or the Administrative Agent, (i) the sum payable shall be
increased as necessary so that after making all required
deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this
Section 3.11) such Lender or the Administrative Agent receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) such Credit Party shall make such
deductions and withholdings, (iii) such Credit Party shall pay
the full amount deducted or withheld to the relevant taxation
authority or other authority in accordance with applicable law,
and (iv) such Credit Party shall furnish to the Administrative
Agent, at its address referred to in Section 11.1, the original
or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all
present or future stamp or documentary taxes and any other excise
or property taxes or charges or similar levies which arise from
any payment made under this Credit Agreement or any other Credit
Document or from the execution or delivery of, or otherwise with
respect to, this Credit Agreement or any other Credit Document
(hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed
or asserted by any jurisdiction on amounts payable under this
Section 3.11) paid by such Lender or such Administrative Agent
(as the case may be) and any liability (including penalties,
interest, and expenses) arising therefrom or with respect thereto.
(d) Each Lender that is not a United States person under
Section 7701(a)(30) of the Internal Revenue Code, on or prior to
the date of its execution and delivery of this Credit Agreement
in the case of each Lender listed on the signature pages hereof
and on or prior to the date on which it becomes a Lender in the
case of each other Lender, and from time to time thereafter if
requested in writing by the Borrower or the Administrative Agent
(but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower and the Administrative Agent with (i)
Internal Revenue Service Form W-8 BEN or W-8 ECI, as appropriate,
or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which
reduces to zero the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to
this Credit Agreement is effectively connected with the conduct
of a trade or business in the United States, (ii) Internal
Revenue Service Form W-8 or W-9, as appropriate, or any successor
form prescribed by the Internal Revenue Service, and/or (iii) any
other form or certificate required by any taxing authority
(including any certificate required by Sections 871(h) and 881(c)
of the Internal Revenue Code), certifying that such Lender is
entitled to an exemption from tax on payments pursuant to this
Credit Agreement or any of the other Credit Documents.
(e) For any period with respect to which a Lender has
failed to provide the Borrower and the Administrative Agent with
the appropriate form pursuant to Section 3.11(d) (unless such
failure is due to a change in treaty, law, or regulation
occurring subsequent to the date on which a form originally was
required to be provided), such Lender shall not be entitled to
indemnification under Section 3.11(a) or 3.11(b) with respect to
Taxes imposed by the United States; provided, however, that
should a Lender, which is otherwise exempt from or subject to a
reduced rate of withholding tax, become subject to Taxes because
of its failure to deliver a form required hereunder, the Borrower
shall take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
(f) If any Credit Party is required to pay additional
amounts to or for the account of any Lender pursuant to this
Section 3.11, then such Lender will agree to use reasonable
efforts to change the jurisdiction of its Applicable Lending
Office so as to eliminate or reduce any such additional payment
which may thereafter accrue if such change, in the judgment of
such Lender, is not otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment
of Taxes, the applicable Credit Party shall furnish to the
Administrative Agent the original or a certified copy of a
receipt evidencing such payment.
(h) Without prejudice to the survival of any other
agreement of the Credit Parties hereunder, the agreements and
obligations of the Credit Parties contained in this Section 3.11
shall survive the repayment of the Loans, LOC Obligations and
other obligations under the Credit Documents and the termination
of the Commitments hereunder.
3.12 Compensation.
Upon the request of any Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender such
amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as
a result of:
(a) any payment, prepayment, or Conversion of a
Eurodollar Loan for any reason on a date other than the last
day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason
(including, without limitation, the failure of any condition
precedent specified in Section 5 to be satisfied) to borrow,
Convert, Continue, or prepay a Eurodollar Loan on the date
for such borrowing, Conversion, Continuation, or prepayment
specified in the relevant notice of borrowing, prepayment,
Continuation, or Conversion under this Credit Agreement.
With respect to Eurodollar Loans, such indemnification may
include an amount equal to the excess, if any, of (a) the amount
of interest which would have accrued on the amount so prepaid, or
not so borrowed, Converted or Continued, for the period from the
date of such prepayment or of such failure to borrow, Convert or
Continue to the last day of the applicable Interest Period (or,
in the case of a failure to borrow, Convert or Continue, the
Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such
Eurodollar Loans provided for herein (excluding, however, the
Applicable Percentage included therein, if any) over (b) the
amount of interest (as reasonably determined by such Lender)
which would have accrued to such Lender on such amount by placing
such amount on deposit for a comparable period with leading banks
in the interbank Eurodollar market. The covenants of the
Borrower set forth in this Section 3.12 shall survive the
repayment of the Loans, LOC Obligations and other obligations
under the Credit Documents and the termination of the Commitments
hereunder.
3.13 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(a) Obligations. Each Revolving Loan advance, each
payment or prepayment of principal of any Revolving Loan,
each payment of interest on any Revolving Loan, each payment
on or in respect of the LOC Obligations and each payment of
interest thereon, each payment of the Commitment Fee, each
payment of the Letter of Credit Fee, each reduction of
Aggregate Revolving Committed Amount, and each conversion or
extension of Revolving Loan shall be allocated pro rata
among the Lenders according to the respective Revolving
Commitment Percentages of the Lenders.
(b) Advances. No Lender shall be responsible for the
failure or delay by any other Lender in its obligation to
make its ratable share of a borrowing hereunder; provided,
however, that the failure of any Lender to fulfill its
obligations hereunder shall not relieve any other Lender of
its obligations hereunder. Unless the Administrative Agent
shall have been notified (i) by any Lender prior to the date
of any requested borrowing that such Lender does not intend
to make available to the Administrative Agent its ratable
share of such borrowing to be made on such date or (ii) by
the Borrower prior to the date of any payment that the
Borrower does not intend to make such payment available to
the Administrative Agent, the Administrative Agent may
assume that such Lender or the Borrower, as applicable, has
made such amount available to the Administrative Agent on
the appropriate date, and the Administrative Agent in
reliance upon such assumption, may (in its sole discretion
but without any obligation to do so) make available to the
Borrower or the Lenders, as applicable, a corresponding
amount. If such corresponding amount is not in fact made
available to the Administrative Agent, the Administrative
Agent shall be able to recover such corresponding amount
from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent will
promptly notify the Borrower, and the Borrower shall
immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also
be entitled to recover from the Lender or the Borrower, as
the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount
was made available by the Administrative Agent to the
Borrower to the date such corresponding amount is recovered
by the Administrative Agent at a per annum rate equal to (i)
from the Borrower at the applicable rate for the applicable
borrowing pursuant to the Notice of Borrowing and (ii) from
a Lender, if paid within two (2) Business Days of the date
such amount was made available by the Administrative Agent
to the Borrower, the Federal Funds Rate and thereafter at a
rate equal to the Base Rate.
3.14 Sharing of Payments.
(a) Lenders. The Lenders agree that, in the event that any
Lender shall obtain payment in respect of any Revolving Loan, LOC
Obligation or any other obligation owing to such Lender under
this Credit Agreement through the exercise of a right of setoff,
banker's lien or counterclaim, or pursuant to a secured claim
under Section 506 of the Bankruptcy Code or other security or
interest arising from, or in lieu of, such secured claim,
received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other
means, in excess of its pro rata share of such payment as
provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a participation in such Revolving
Loan, LOC Obligation and other obligations in such amounts, and
make such other adjustments from time to time, as shall be
equitable to the end that all the Lenders share such payment in
accordance with the respective Revolving Commitment Percentages
of the Lenders, as provided for in this Credit Agreement. The
Lenders further agree that if payment to any such Lender obtained
by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be
rescinded or must otherwise be restored, each Lender which shall
have shared the benefit of such payment shall, by repurchase of a
participation theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with
respect thereto) to each such Lender whose payment shall have
been rescinded or otherwise restored. The Borrower agrees that
any Lender so purchasing such a participation may, to the fullest
extent permitted by law, exercise all rights of payment,
including setoff, banker's lien or counterclaim, with respect to
such participation as fully as if such Lender were a holder of
such Revolving Loan, LOC Obligation or other obligation in the
amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives
a secured claim in lieu of a setoff to which this Section 3.14
applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders under this Section 3.14
to share in the benefits of any recovery on such secured claim.
(b) Lenders and Administrative Agent. Except as otherwise
expressly provided in this Credit Agreement, if any Lender or the
Administrative Agent shall fail to remit to the Administrative
Agent or any other Lender an amount payable by such Lender or the
Administrative Agent to the Administrative Agent or such other
Lender pursuant to this Credit Agreement on the date when such
amount is due, such payments shall be made together with interest
thereon for each date from the date such amount is due until the
date such amount is paid to the Administrative Agent or such
other Lender at a rate per annum equal to the Federal Funds Rate.
3.15 Payments, Computations, Etc.
(a) Generally. Except as otherwise specifically provided
herein, all payments shall be made to the Administrative Agent in
Dollars in immediately available funds, without setoff,
deduction, counterclaim or withholding of any kind, at the
Administrative Agent's office specified in Section 11.1 not later
than 2:00 P.M. (Dallas, Texas time) on the date when due.
Payments received after such time shall be deemed to have been
received on the next succeeding Business Day. Such
Administrative Agent may (but shall not be obligated to) debit
the amount of any such payment which is not made by such time to
any ordinary deposit account of the Borrower maintained with such
Administrative Agent (with notice to the Borrower). The Borrower
shall, at the time it makes any payment under this Credit
Agreement, specify to the Administrative Agent the Loans, LOC
Obligations, Fees, interest or other amounts payable by the
Borrower hereunder to which such payment is to be applied (and in
the event that it fails so to specify, or if such application
would be inconsistent with the terms hereof, the Administrative
Agent shall distribute such payment to the Lenders in such manner
as the Administrative Agent may determine to be appropriate in
respect of obligations owing by the Borrower hereunder, subject
to the terms of Section 3.14(a) and Section 3.15(b)). The
Administrative Agent will distribute such payments to the Lenders
if any such payment is received prior to 12:00 Noon (Dallas,
Texas time) on a Business Day in like funds as received prior to
the end of such Business Day and otherwise such Administrative
Agent will distribute such payment to the Lenders entitled
thereto on the next succeeding Business Day. Whenever any
payment hereunder shall be stated to be due on a day which is not
a Business Day, the due date thereof shall be extended to the
next succeeding Business Day (subject to accrual of interest and
Fees for the period of such extension). Except as expressly
provided otherwise herein, all computations of interest and fees
shall be made on the basis of the actual number of days elapsed
over a year of 360 days, except with respect to computation of
interest on Base Rate Loans determined by reference to the Prime
Rate which shall be calculated based on a year of 365 or 366
days, as appropriate. Interest shall accrue from and include the
date of borrowing, but exclude the date of payment.
(b) Allocation of Payments After Event of Default.
Notwithstanding any other provisions of this Credit Agreement to
the contrary, after the occurrence and during the continuance of
an Event of Default, all amounts collected or received on or in
respect of the Obligations (or other amounts owing under the
Credit Documents in connection therewith) shall be paid over or
delivered as follows:
FIRST, to the payment of all reasonable
out-of-pocket costs and expenses (including without
limitation reasonable attorneys' fees) of the
collateral agent incurred in connection with the
execution of its duties as collateral agent in
exercising or attempting to exercise rights and
remedies in respect of the collateral and all
protective advances made with respect thereto;
SECOND, to the payment of all reasonable
out-of-pocket costs and expenses (including without
limitation reasonable attorneys' fees) of the
Administrative Agent in connection with enforcing the
rights and remedies of the Lenders under the Credit
Documents and any protective advances made with respect
thereto;
THIRD, to payment of any fees owed to the
Administrative Agent;
FOURTH, to the payment of all reasonable
out-of-pocket costs and expenses (including without
limitation, reasonable attorneys' fees) of each of the
Lenders hereunder in connection with enforcing its
rights under the Credit Documents or otherwise with
respect to the Obligations owing to such Lender;
FIFTH, to the payment of all accrued interest and
fees on or in respect of the Obligations;
SIXTH, to the payment of the outstanding principal
amount of the Obligations (including the payment or
cash collateralization of the outstanding LOC
Obligations);
SEVENTH, to all other Obligations and other
obligations which shall have become due and payable
under the Credit Documents otherwise and not repaid
pursuant to clauses "FIRST" through "SIXTH" above; and
EIGHTH, to the payment of the surplus, if any, to
whoever may be lawfully entitled to receive such
surplus.
In carrying out the foregoing, (i) amounts received shall be
applied in the numerical order provided until exhausted
prior to application to the next succeeding category; and
(ii) except as otherwise provided, the Lenders shall receive
amounts ratably in accordance with their respective pro rata
share (based on the proportion that then outstanding
Obligations held by such Lenders bears to the aggregate
amount of Obligations then outstanding) of amounts available
to be applied pursuant to clauses "FOURTH", "FIFTH", "SIXTH"
and "SEVENTH" above; and (iii) to the extent that any
amounts available for distribution pursuant to clause
"SIXTH" above are attributable to the issued but undrawn
amount of outstanding Letters of Credit, such amounts shall
be held by the Administrative Agent in a cash collateral
account and applied (A) first, to reimburse the Issuing
Lender for any drawings under such Letters of Credit and (B)
then, following the expiration of all Letters of Credit, to
all other obligations of the types described in clauses
"FIFTH" and "SIXTH" above in the manner provided in this
Section 3.15(b).
3.16 Evidence of Debt.
(a) Each Lender shall maintain an account or accounts
evidencing each Revolving Loan made by such Lender to the
Borrowers from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time
under this Credit Agreement. Each Lender will make reasonable
efforts to maintain the accuracy of its account or accounts and
to promptly update its account or accounts from time to time, as
necessary.
(b) The Administrative Agent shall maintain the Register
pursuant to Section 11.3(c)(i), and a subaccount for each Lender,
in which Register and subaccounts (taken together) shall be
recorded (A) the amount, type and Interest Period of each such
Revolving Loan hereunder, (B) the amount of any principal or
interest due and payable or to become due and payable to each
Lender hereunder and (C) the amount of any sum received by the
Administrative Agent hereunder from or for the account of the
Borrower and each Lender's share thereof. The Administrative
Agent will make reasonable efforts to maintain the accuracy of
the subaccounts referred to in the preceding sentence and to
promptly update such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and
subaccounts maintained pursuant to subsection (b) of this Section
3.16 (and, if consistent with the entries of the Administrative
Agent, subsection (a)) shall be prima facie evidence of the
existence and amounts of the obligations of the Credit Parties
therein recorded; provided, however, that the failure of any
Lender or the Administrative Agent to maintain any such account,
such Register or such subaccount, as applicable, or any error
therein, shall not in any manner affect the obligation of the
Credit Parties to repay the Obligations and other amounts owing
hereunder to such Lender.
SECTION 4
GUARANTY
4.1 The Guaranty.
(a) Each of the Guarantors hereby jointly and severally
guarantees to each Lender, to each Affiliate of a Lender that
enters into a Hedging Agreement with a Credit Party relating to
the Obligations and to the Administrative Agent, as hereinafter
provided, as primary obligor and not as surety, the prompt
payment of the Guaranteed Obligations in full when due (whether
at stated maturity, as a mandatory prepayment, by acceleration,
as a mandatory cash collateralization or otherwise) strictly in
accordance with the terms thereof. The Guarantors hereby further
agree that if any of the Guaranteed Obligations are not paid in
full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash
collateralization or otherwise), the Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guaranteed Obligations, the same
will be promptly paid in full when due (whether at extended
maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise) in accordance with
the terms of such extension or renewal.
(b) Notwithstanding any provision to the contrary contained
herein or in any other of the Credit Documents or Hedging
Agreements, to the extent the obligations of a Guarantor shall be
adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable state,
provincial or federal law relating to fraudulent conveyances or
transfers or the granting of financial assistance) then the
obligations of each Guarantor under this Credit Agreement and the
other Credit Documents shall be limited to the maximum amount
that is permissible under applicable law (whether federal, state
or provincial and including, without limitation, the Bankruptcy
Code). In such case or otherwise at the request of the
Administrative Agent, each Credit Party shall take such action
and shall execute and deliver all such further documents required
by the Administrative Agent to cause the obligations of such
Guarantor to be enforceable to the extent required by this
Agreement.
4.2 Obligations Unconditional.
The obligations of the Guarantors under Section 4.1 are
joint and several, absolute and unconditional, irrespective of
the value, genuineness, validity, regularity or enforceability of
any of the Credit Documents or Hedging Agreements, or any other
agreement or instrument referred to therein, or any substitution,
release, impairment or exchange of any other guarantee of or
security for any of the Guaranteed Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever which might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 4.2 that the obligations of
the Guarantors hereunder shall be absolute and unconditional
under any and all circumstances. Each Guarantor agrees that such
Guarantor shall have no right of subrogation, indemnity,
reimbursement or contribution against the Borrower or any other
Guarantor for amounts paid under this Section 4 until such time
as the Lenders (and any Affiliates of Lenders entering into
Hedging Agreements relating to the Obligations to the extent
permitted hereunder) have been paid in full in respect of all
Guaranteed Obligations, all Commitments under this Credit
Agreement have been terminated and no Person or Governmental
Authority shall have any right to request any return or
reimbursement of funds from the Lenders in connection with monies
received under the Credit Documents or Hedging Agreements between
any member of the Consolidated Group and any Lender, or any
Affiliate of a Lender. Without limiting the generality of the
foregoing, it is agreed that, to the fullest extent permitted by
law, the occurrence of any one or more of the following shall not
alter or impair the liability of any Guarantor hereunder which
shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice
to any Guarantor, the time for any performance of or
compliance with any of the Guaranteed Obligations shall be
extended, or such performance or compliance shall be waived;
(b) any of the acts mentioned in any of the provisions
of any of the Credit Documents, any Hedging Agreement
between any member of the Consolidated Group and any Lender
or any Affiliate of a Lender, or any other agreement or
instrument referred to in the Credit Documents or such
Hedging Agreements shall be done or omitted;
(c) the maturity of any of the Guaranteed Obligations
shall be accelerated, or any of the Guaranteed Obligations
shall be modified, supplemented or amended in any respect,
or any right under any of the Credit Documents, any Hedging
Agreement between any member of the Consolidated Group and
any Lender or any Affiliate of a Lender, or any other
agreement or instrument referred to in the Credit Documents
or such Hedging Agreements shall be waived or any other
guarantee of any of the Guaranteed Obligations or any
security therefor shall be released, impaired or exchanged
in whole or in part or otherwise dealt with;
(d) any Lien granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security
for any of the Guaranteed Obligations shall fail to attach
or be perfected; or
(e) any of the Guaranteed Obligations shall be
determined to be void or voidable (including, without
limitation, for the benefit of any creditor of any
Guarantor) or shall be subordinated to the claims of any
Person (including, without limitation, any creditor of any
Guarantor).
With respect to its obligations hereunder, each Guarantor hereby
expressly waives diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or
remedy or proceed against any Person under any of the Credit
Documents, any Hedging Agreement between any member of the
Consolidated Group and any Lender, or any Affiliate of a Lender,
or any other agreement or instrument referred to in the Credit
Documents or such Hedging Agreements, or against any other Person
under any other guarantee of, or security for, any of the
Guaranteed Obligations.
4.3 Reinstatement.
The obligations of the Guarantors under this Section 4 shall
be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Person in respect of
the Guaranteed Obligations is rescinded or must be otherwise
restored by any holder of any of the Guaranteed Obligations,
whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it
will indemnify the Administrative Agent and each Lender on demand
for all reasonable costs and expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by
the Administrative Agent or such Lender in connection with such
rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such
payment constituted a preference, fraudulent transfer or similar
payment under any bankruptcy, insolvency or similar law.
4.4 Certain Additional Waivers.
Each Guarantor agrees that such Guarantor shall have no
right of recourse to security for the Guaranteed Obligations,
except through the exercise of rights of subrogation pursuant to
Section 4.2 and through the exercise of rights of contribution
pursuant to Section 4.6.
4.5 Remedies.
The Guarantors agree that, to the fullest extent permitted
by law, as between the Guarantors, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, the
Guaranteed Obligations may be declared to be forthwith due and
payable as provided in Section 9.2 (and shall be deemed to have
become automatically due and payable in the circumstances
provided in said Section 9.2) for purposes of Section 4.1
notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing the Guaranteed
Obligations from becoming automatically due and payable) as
against any other Person and that, in the event of such
declaration (or the Guaranteed Obligations being deemed to have
become automatically due and payable), the Guaranteed Obligations
(whether or not due and payable by any other Person) shall
forthwith become due and payable by the Guarantors for purposes
of Section 4.1. The Guarantors acknowledge and agree that their
obligations hereunder are secured in accordance with the terms of
the Collateral Documents and that the Lenders may exercise their
remedies thereunder in accordance with the terms thereof.
4.6 Rights of Contribution.
The Guarantors hereby agree, as among themselves, that if
any Guarantor shall become an Excess Funding Guarantor (as
defined below), each other Guarantor shall, on demand of such
Excess Funding Guarantor (but subject to the succeeding
provisions of this Section 4.6), pay to such Excess Funding
Guarantor an amount equal to such Guarantor's Pro Rata Share (as
defined below and determined, for this purpose, without reference
to the properties, assets, liabilities and debts of such Excess
Funding Guarantor) of such Excess Payment (as defined below).
The payment obligation of any Guarantor to any Excess Funding
Guarantor under this Section 4.6 shall be subordinate and subject
in right of payment to the prior payment in full of the
obligations of such Guarantor under the other provisions of this
Section 4, and such Excess Funding Guarantor shall not exercise
any right or remedy with respect to such excess until payment and
satisfaction in full of all of such obligations. For purposes
hereof, (a) "Excess Funding Guarantor" shall mean, in respect of
any obligations arising under the other provisions of this
Section 4 (hereafter, the "Guarantied Obligations"), a Guarantor
that has paid an amount in excess of its Pro Rata Share of the
Guarantied Obligations; (b) "Excess Payment" shall mean, in
respect of any Guarantied Obligations, the amount paid by an
Excess Funding Guarantor in excess of its Pro Rata Share of such
Guarantied Obligations; and (c) "Pro Rata Share", for the
purposes of this Section 4.6, shall mean, for any Guarantor, the
ratio (expressed as a percentage) of (i) the amount by which the
aggregate present fair saleable value of all of its assets and
properties exceeds the amount of all debts and liabilities of
such Guarantor (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of
such Guarantor hereunder) to (ii) the amount by which the
aggregate present fair saleable value of all assets and other
properties of the Borrower and all of the Guarantors exceeds the
amount of all of the debts and liabilities (including contingent,
subordinated, unmatured, and unliquidated liabilities, but
excluding the obligations of the Borrower and the Guarantors
hereunder) of the Borrower and all of the Guarantors, all as of
the Closing Date (if any Guarantor becomes a party hereto
subsequent to the Closing Date, then for the purposes of this
Section 4.6 such subsequent Guarantor shall be deemed to have
been a Guarantor as of the Closing Date and the information
pertaining to, and only pertaining to, such Guarantor as of the
date such Guarantor became a Guarantor shall be deemed true as of
the Closing Date).
4.7 Guarantee of Payment; Continuing Guarantee.
The guarantee in this Section 4 is a guaranty of payment and
not of collection, is a continuing guarantee, and shall apply to
all Guaranteed Obligations whenever arising.
SECTION 5
CONDITIONS
5.1 Closing Conditions.
The obligation of the Lenders to enter into this Credit
Agreement and to make the initial Extensions of Credit shall be
subject to satisfaction of the following conditions (in form and
substance acceptable to the Lenders):
(a) Executed Credit Documents. Receipt by the
Administrative Agent of: (i) multiple counterparts of this
Credit Agreement, (ii) a Revolving Note for each Lender and
(iii) multiple counterparts of the Collateral Documents, in
each case executed by a duly authorized officer of each
party thereto and in each case conforming to the
requirements of this Credit Agreement.
(b) Legal Opinions. Receipt by the Administrative
Agent of multiple counterparts of opinions of counsel for
the Credit Parties relating to the Credit Documents and the
transactions contemplated therein, in form and substance
satisfactory to the Administrative Agent and the Lenders,
and including, among other things, opinions regarding
enforceability of the Credit Documents and the perfection of
the security interests created thereby.
(c) Financial Information. Receipt by the Lenders of
such financial information regarding the members of the
Consolidated Group as may be requested by, and in each case
in form and substance satisfactory to, the Administrative
Agent and the Lenders.
(d) Personal Property Collateral. Receipt by the
Administrative Agent of the following:
(i) UCC Financing Statements. Duly executed UCC
financing statements for each jurisdiction as is
necessary or appropriate, in the Administrative Agent's
discretion, to perfect the security interests in the
Collateral.
(ii) Certificated Interests. Original
certificates evidencing the Capital Stock which is the
subject of the Pledge Agreement, together with undated
stock transfer powers executed in blank.
(iii)Landlord Consents. Landlord consents,
estoppel letters or consents and waivers in respect of
Collateral held at the Borrower's chief executive
office, as noted on Schedule 6.20(c).
(e) Absence of Legal Proceedings. There shall not
exist any action, suit, investigation or proceeding pending
in any court or before any arbitrator or Governmental
Authority which could reasonably be expected to have a
Material Adverse Effect.
(f) Corporate Documents. Receipt by the
Administrative Agent of the following (or their equivalent)
for each of the Credit Parties:
(i) Charter Documents. Copies of the articles or
certificates of incorporation or other charter
documents of such Credit Party certified to be true and
complete as of a recent date by the appropriate
Governmental Authority of the state or other
jurisdiction of its incorporation and certified by a
secretary or assistant secretary of such Credit Party
to be true and correct as of the Closing Date.
(ii) Bylaws. A copy of the bylaws, operating
agreement or equivalent of such Credit Party certified
by a secretary or assistant secretary of such Credit
Party to be true and correct and in force and effect as
of the Closing Date.
(iii) Resolutions. Copies of resolutions of the
board of directors of such Credit Party approving and
adopting the Credit Documents to which it is a party,
the transactions contemplated therein and authorizing
execution and delivery thereof, certified by a
secretary or assistant secretary of such Credit Party
to be true and correct and in force and effect as of
the Closing Date.
(iv) Good Standing. Certificates of good
standing, existence or its equivalent certified as of a
recent date by the appropriate governmental authorities
of the state of incorporation and each other state in
which the failure to so qualify and be in good standing
would be reasonably likely to have a material adverse
effect on the business or operations in such state.
(v) Officer's Certificate. An officer's
certificate for each of the Credit Parties dated as of
the Closing Date substantially in the form of Schedule
5.1(f)(v) with appropriate insertions and attachments.
(g) Evidence of Insurance. Receipt by the
Administrative Agent of copies of insurance policies or
certificates of insurance of the members of the Consolidated
Group evidencing liability and casualty insurance meeting
the requirements set forth in the Credit Documents,
including, but not limited to, naming the Administrative
Agent as additional insured (in the case of liability
insurance) or sole loss payee (in the case of hazard
insurance) on behalf of the Lenders.
(h) Priority of Liens. The Administrative Agent shall
have received satisfactory evidence that (i) the
Administrative Agent, on behalf of the Lenders, holds a
perfected, first priority Lien on all Collateral and (ii)
none of the Collateral is subject to any Liens other than
Permitted Liens.
(i) Officer's Certificates. The Administrative Agent
shall have received a certificate or certificates executed
by an Executive Officer of the Borrower as of the Closing
Date, in form and substance satisfactory to the
Administrative Agent, stating that (A) each Credit Party is
in compliance with all existing financial obligations, (B)
all governmental, shareholder and third party consents and
approvals, if any, with respect to the Credit Documents and
the transactions contemplated thereby have been obtained,
(C) no action, suit, investigation or proceeding is pending
or threatened in any court or before any arbitrator or
governmental instrumentality that purports to affect any
Credit Party or any transaction contemplated by the Credit
Documents, if such action, suit, investigation or proceeding
could have a Material Adverse Effect, and (D) immediately
after giving effect to the initial Loans made and Letters of
Credit issued on the Closing Date, (1) no Default or Event
of Default exists, (2) all representations and warranties
contained herein and in the other Credit Documents are true
and correct in all material respects and (3) the Credit
Parties are in pro forma compliance with each of the
financial covenants set forth in Section 7.11 (assuming for
purposes hereof that such financial covenants were measured
as of, and for the 12-month period ending on, such date).
(j) Fees and Expenses. Payment by the Credit Parties
of all fees and expenses owed by them to the Lenders and the
Administrative Agent, including, without limitation, payment
to the Administrative Agent of the fees set forth in the
Administrative Agent's Fee Letter.
5.2 Conditions to all Extensions of Credit.
The obligation of each Lender to make any Extension of
Credit hereunder (including the initial Extension of Credit to be
made hereunder) is subject to the satisfaction of the following
conditions precedent on the date of making such Extension of
Credit:
(a) Representations and Warranties. The
representations and warranties made by the Credit Parties herein
and in the other Credit Documents and which are contained in any
certificate furnished at any time under or in connection herewith
shall be true and correct in all material respects on and as of
the date of such Extension of Credit as if made on and as of such
date (except for those which expressly relate to an earlier date).
(b) No Default or Event of Default. No Default or
Event of Default shall have occurred and be continuing on such
date or after giving effect to the Extension of Credit to be made
on such date unless such Default or Event of Default shall have
been waived in accordance with this Credit Agreement.
(c) Additional Conditions to Revolving Loans. If a
Revolving Loan is requested, all conditions set forth in Section
2 shall have been satisfied.
(d) Additional Conditions to Letters of Credit. If
the issuance of a Letter of Credit is requested, all conditions
set forth in Section 2 shall have been satisfied.
(e) Additional Conditions to Swingline Loans. If a
Swingline Loan is requested, all conditions set forth in Section
2 shall have been satisfied.
Each request for an Extension of Credit (including
Continuations and Conversions) and each acceptance by the
Borrower of an Extension of Credit (including Continuations and
Conversions) shall be deemed to constitute a representation and
warranty by the Borrower as of the date of such Extension of
Credit that the applicable conditions in paragraphs (a) and (b),
and in (c), (d) or (e), of this subsection have been satisfied.
SECTION 6
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Credit Agreement
and to make the Extensions of Credit hereunder, each of the
Credit Parties hereby represents and warrants to the
Administrative Agent and to each Lender that:
6.1 Financial Condition.
Each of the financial statements described below (copies of
which have heretofore been provided to the Administrative Agent
for distribution to the Lenders) have been prepared in accordance
with GAAP consistently applied throughout the periods covered
thereby, are complete and correct in all material respects and
present fairly the financial condition (including disclosure of
all material liabilities, contingent or otherwise) and results
from operations of the entities and for the periods specified,
subject in the case of interim company-prepared statements to
normal year-end adjustments and the absence of footnotes:
(i) the audited consolidated balance sheet of the
Borrower and its consolidated subsidiaries dated as of
December 31, 1999, together with the related audited
statements of income, stockholders' equity and cash flows
for the fiscal year then ended, certified by KPMG LLP,
certified public accountants;
(ii) the unaudited, company-prepared balance sheets of
the Borrower and its consolidated subsidiaries dated as of
March 31, 2000, together with the related unaudited,
company-prepared statements of income, stockholders' equity
and cash flows for the fiscal quarter then ended; and
(iii)after the Closing Date, the annual and quarterly
financial statements provided in accordance with Sections
7.1(a) and (b).
6.2 No Changes or Restricted Payments.
Since the date of the most-recent annual audited financial
statements referenced in Section 6.1(i),
(i) for the period to the Closing Date, except as
previously disclosed in writing to the Administrative Agent
and the Lenders, (A) there have been no material sales,
transfers or other dispositions of any material part of the
business or property of the members of the Consolidated
Group, nor have there been any material purchases or other
acquisitions of any business or property (including the
Capital Stock of any other person) by the members of the
Consolidated Group, which are not reflected in the annual
audited or company-prepared quarterly financial statements
referenced in Section 6.1(i) and (ii) hereof, and (B) no
Restricted Payments have been declared or paid by members of
the Consolidated Group; and
(ii) there has been no circumstance, development or
event relating to or affecting the members of the
Consolidated Group which has had or could reasonably be
expected to have a Material Adverse Effect.
6.3 Organization; Existence; Compliance with Law.
Each of the members of the Consolidated Group (a) is duly
organized, validly existing in good standing under the laws of
the jurisdiction of its incorporation or organization, (b) has
the corporate or other necessary power and authority, and the
legal right to own and operate its Property, to lease the
Property it operates as lessee and to conduct the business in
which it is currently engaged, (c) is duly qualified as a foreign
entity and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of Property or the
conduct of its business requires such qualification, other than
in such jurisdictions where the failure to be so qualified and in
good standing would not, in the aggregate, have a Material
Adverse Effect, and (d) is in compliance with all Requirements of
Law, except to the extent that the failure to comply therewith
would not, in the aggregate, be reasonably expected to have a
Material Adverse Effect.
6.4 Power; Authorization; Enforceable Obligations.
Each of the Credit Parties has the corporate or other
necessary power and authority, and the legal right, to make,
deliver and perform the Credit Documents to which it is a party
and has taken all necessary corporate or other action to
authorize the execution, delivery and performance by it of the
Credit Documents to which it is a party. No consent or
authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is
required in connection with acceptance of Extensions of Credit or
the making of the guaranties hereunder or with the execution,
delivery or performance of any Credit Documents by the Credit
Parties (other than those which have been obtained, such filings
as are required by the Securities and Exchange Commission and to
fulfill other reporting requirements with Governmental
Authorities) or with the validity or enforceability of any Credit
Document against the Credit Parties (except such filings as are
necessary in connection with the perfection of the Liens created
by such Credit Documents). Each Credit Document to which it is a
party constitutes a legal, valid and binding obligation of such
Credit Party enforceable against such Credit Party in accordance
with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
6.5 No Legal Bar.
The execution, delivery and performance of the Credit
Documents, the borrowings hereunder and the use of the Extensions
of Credit will not violate any Requirement of Law or any
Contractual Obligation of any member of the Consolidated Group
(except those as to which waivers or consents have been
obtained), and will not result in, or require, the creation or
imposition of any Lien on any of its respective properties or
revenues pursuant to any Requirement of Law or Contractual
Obligation other than the Liens arising under or contemplated in
connection with the Credit Documents. No member of the
Consolidated Group is in default under or with respect to any of
its Contractual Obligations in any respect which would reasonably
be expected to have a Material Adverse Effect.
6.6 No Material Litigation and Disputes.
(a) No claim, litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to
the best knowledge of the Credit Parties, threatened by or
against, any members of the Consolidated Group or against any of
their respective properties or revenues which (a) relate to the
Credit Documents or any of the transactions contemplated hereby
or thereby or (b) if adversely determined, would reasonably be
expected to have a Material Adverse Effect. Set forth on
Schedule 6.6 is a summary of all claims, litigation,
investigations and proceedings pending or, to the best knowledge
of the Credit Parties, threatened by or against the members of
the Consolidated Group or against any of their respective
properties or revenues, and none of such actions, individually or
in the aggregate, would reasonably be expected to have a Material
Adverse Effect.
(b) No default exists and, to the best knowledge of the
Credit Parties, no default has been asserted, under any
Contractual Obligations to which any members of the Consolidated
Group are party which individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect.
6.7 No Defaults.
No Default or Event of Default has occurred and is
continuing.
6.8 Ownership and Operation of Property.
Each of the members of the Consolidated Group (i) has good
record and marketable title to, or a valid leasehold interest in,
all its material real property, and good title to, or a valid
leasehold interest in, all its other material property, and none
of such property is subject to any Lien, except for Permitted
Liens, and (ii) has obtained all material licenses, permits,
franchises or other certifications, consents, approvals and
authorizations, governmental or private, necessary to the
ownership of its Property and to the conduct of its business.
6.9 Intellectual Property.
Each of the members of the Consolidated Group owns, or has
the legal right to use, all United States trademarks, tradenames,
copyrights, patents, technology, know-how and processes, if any,
necessary for each of them to conduct its business as currently
conducted (the "Intellectual Property") except for those the
failure to own or have such legal right to use would not be
reasonably expected to have a Material Adverse Effect. Set forth
on Schedule 6.9 is a list of Intellectual Property owned and used
by members of the Consolidated Group. No claim has been asserted
and is pending by any Person challenging or questioning the use
of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does any
Credit Party know of any such claim, and the use of such
Intellectual Property by the members of the Consolidated Group
does not infringe on the rights of any Person, except for such
claims and infringements that, in the aggregate, would not be
reasonably expected to have a Material Adverse Effect.
6.10 No Burdensome Restrictions.
No Requirement of Law or Contractual Obligation of the
members of the Consolidated Group is reasonably expected to have
a Material Adverse Effect.
6.11 Taxes.
Each of the members of the Consolidated Group has filed or
caused to be filed all income tax returns (federal, state, local
and foreign) and all other material tax returns which are
required to be filed and has paid (i) all amounts shown therein
to be due (including interest and penalties) and (ii) all other
taxes, fees, assessments and other governmental charges
(including mortgage recording taxes, documentary stamp taxes and
intangibles taxes) owing, except for such taxes which are not yet
delinquent or as are being contested in good faith by appropriate
proceedings for which adequate reserves determined in accordance
with GAAP have been established unless the failure to make any
such payment could give rise to an immediate right to foreclose
on a Lien securing such amounts. No tax claim or assessment has
been asserted against members of the Consolidated Group which if
adversely determined would reasonably be expected to have a
Material Adverse Effect.
6.12 ERISA
Except as would not reasonably be expected to have a
Material Adverse Effect:
(a) During the five-year period prior to the date on which
this representation is made or deemed made: (i) no ERISA Event
has occurred, and, to the best knowledge of the Credit Parties,
no event or condition has occurred or exists as a result of which
any ERISA Event could reasonably be expected to occur, with
respect to any Plan; (ii) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of
the Internal Revenue Code, whether or not waived, has occurred
with respect to any Plan; (iii) each Plan has been maintained,
operated, and funded in compliance with its own terms and in
material compliance with the provisions of ERISA, the Internal
Revenue Code, and any other applicable federal or state laws; and
(iv) no lien in favor of the PBGC or a Plan has arisen or is
reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit
liabilities" (as defined in Section 4001(a)(16) of ERISA), whether
or not vested, under each Single Employer Plan, as of the last
annual valuation date prior to the date on which this
representation is made or deemed made (determined, in each case,
in accordance with Financial Accounting Standards Board Statement
87, utilizing the actuarial assumptions used in such Plan's most
recent actuarial valuation report), did not exceed as of such
valuation date the fair market value of the assets of such Plan.
(c) No member of the Consolidated Group nor any ERISA
Affiliate has incurred, or, to the best knowledge of the Credit
Parties, could be reasonably expected to incur, any withdrawal
liability under ERISA to any Multiemployer Plan or Multiple
Employer Plan. No member of the Consolidated Group nor any ERISA
Affiliate would become subject to any withdrawal liability under
ERISA if any member of the Consolidated Group or any ERISA
Affiliate were to withdraw completely from all Multiemployer
Plans and Multiple Employer Plans as of the valuation date most
closely preceding the date on which this representation is made
or deemed made. No member of the Consolidated Group nor any ERISA
Affiliate has received any notification that any Multiemployer
Plan is in reorganization (within the meaning of Section 4241 of
ERISA), is insolvent (within the meaning of Section 4245 of
ERISA), or has been terminated (within the meaning of Title IV of
ERISA), and no Multiemployer Plan is, to the best knowledge of
the Credit Parties, reasonably expected to be in reorganization,
insolvent, or terminated.
(d) No prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Internal Revenue
Code) or breach of fiduciary responsibility has occurred with
respect to a Plan which has subjected or may subject any member
of the Consolidated Group or any ERISA Affiliate to any liability
under Sections 406, 409, 502(i), or 502(l) of ERISA or Section
4975 of the Internal Revenue Code, or under any agreement or
other instrument pursuant to which any member of the Consolidated
Group or any ERISA Affiliate has agreed or is required to
indemnify any person against any such liability.
(e) No member of the Consolidated Group nor any ERISA
Affiliates has any material liability with respect to "expected
post-retirement benefit obligations" within the meaning of the
Financial Accounting Standards Board Statement 106. Each Plan
which is a welfare plan (as defined in Section 3(1) of ERISA) to
which Sections 601-609 of ERISA and Section 4980B of the Internal
Revenue Code apply has been administered in compliance in all
material respects of such sections.
(f) Neither the execution and delivery of this Credit
Agreement nor the consummation of the financing transactions
contemplated thereunder will involve any transaction which is
subject to the prohibitions of Sections 404, 406 or 407 of ERISA
or in connection with which a tax could be imposed pursuant to
Section 4975 of the Internal Revenue Code. The representation by
the Credit Parties in the preceding sentence is made in reliance
upon and subject to the accuracy of the Lenders' representation
in Section 11.15 with respect to their source of funds and is
subject, in the event that the source of the funds used by the
Lenders in connection with this transaction is an insurance
company's general asset account, to the application of Prohibited
Transaction Class Exemption 95-60, 60 Fed. Reg. 35,925 (1995),
compliance with the regulations issued under Section 401(c)(1)(A)
of ERISA, or the issuance of any other prohibited transaction
exemption or similar relief, to the effect that assets in an
insurance company's general asset account do not constitute
assets of an "employee benefit plan" within the meaning of
Section 3(3) of ERISA of a "plan" within the meaning of Section
4975(e)(1) of the Internal Revenue Code.
6.13 Governmental Regulations, Etc.
(a) No part of the proceeds of the Extensions of Credit
hereunder will be used, directly or indirectly, for the purpose
of purchasing or carrying any "margin stock" within the meaning
of Regulation U, or for the purpose of purchasing or carrying or
trading in any other securities. If requested by any Lender or
the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing
effect in conformity with the requirements of FR Form U-1
referred to in said Regulation U. No indebtedness being reduced
or retired out of the proceeds of the Extensions of Credit
hereunder was or will be incurred for the purpose of purchasing
or carrying any margin stock within the meaning of Regulation U
or any "margin security" within the meaning of Regulation T.
"Margin stock" within the meanings of Regulation U does not
constitute more than 25% of the value of the consolidated assets
of the Borrower and its Subsidiaries. None of the transactions
contemplated by this Credit Agreement (including, without
limitation, the direct or indirect use of the proceeds of the
Loans) will violate or result in a violation of the Securities
Act of 1933, as amended, or the Securities Exchange Act of 1934,
as amended, or regulations issued pursuant thereto, or Regulation
T, U or X.
(b) None of the members of the Consolidated Group is
subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act or the Investment Company Act
of 1940, each as amended. In addition, none of the members of
the Consolidated Group is (i) an "investment company" registered
or required to be registered under the Investment Company Act of
1940, as amended, and is not controlled by such a company, or
(ii) a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a
"subsidiary" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
6.14 Subsidiaries.
Set forth on Schedule 6.14 are all the Subsidiaries of the
Borrower, including the jurisdiction of organization, classes of
Capital Stock (including options, warrants, rights of
subscription, conversion and exchangeability and other similar
rights), ownership and ownership percentages thereof. The
outstanding shares of Capital Stock shown have been validly
issued, fully paid and are non-assessable and owned free of Liens
other than Permitted Liens. The outstanding shares of Capital
Stock shown are not the subject of buy-sell, voting trust or
other shareholder agreement except as identified on Schedule 6.14.
6.15 Purpose of Extensions of Credit.
The Loans will be used by the Borrower solely to finance
working capital, capital expenditures and other corporate
purposes of the Borrower and its Subsidiaries (including, but not
limited to, Permitted Acquisitions).
6.16 Environmental Matters.
Except as would not reasonably be expected to have a
Material Adverse Effect:
(a) Each of the facilities and properties owned, leased or
operated by the members of the Consolidated Group (the "Subject
Properties") and all operations at the Subject Properties are in
compliance with all applicable Environmental Laws, and there is
no violation of any Environmental Law with respect to the Subject
Properties or the businesses operated by the members of the
Consolidated Group (the "Businesses"), and there are no
conditions relating to the Businesses or Subject Properties that
could give rise to liability under any applicable Environmental
Laws.
(b) None of the Subject Properties contains, or to the best
knowledge of any Credit Party has previously contained, any
Materials of Environmental Concern at, on or under the Subject
Properties in amounts or concentrations that constitute or
constituted a violation of, or could give rise to liability
under, Environmental Laws.
(c) None of the members of the Consolidated Group has
received any written or verbal notice of, or inquiry from any
Governmental Authority regarding, any violation, alleged
violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental
Laws with regard to any of the Subject Properties or the
Businesses, nor does any member of the Consolidated Group have
knowledge or reason to believe that any such notice will be
received or is being threatened.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Subject Properties, or
generated, treated, stored or disposed of at, on or under any of
the Subject Properties or any other location, in each case by or
on behalf any members of the Consolidated Group in violation of,
or in a manner that would be reasonably likely to give rise to
liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or
administrative action is pending or, to the best knowledge of any
Credit Party, threatened, under any Environmental Law to which
any member of the Consolidated Group is or will be named as a
party, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any
Environmental Law with respect to any member of the Consolidated
Group, the Subject Properties or the Businesses.
(f) There has been no release or threat of release of
Materials of Environmental Concern at or from the Subject
Properties arising from or related to the operations (including,
without limitation, disposal) of any member of the Consolidated
Group in connection with the Subject Properties or otherwise in
connection with the Businesses, in violation of or in amounts or
in a manner that could give rise to liability under Environmental
Laws.
6.17 No Material Misstatements.
None of (i) the information contained in the Confidential
Information Memorandum, or (ii) any other information, reports,
financial statements, exhibits or schedules, taken as a whole,
furnished by or on behalf of any member of the Consolidated Group
to the Administrative Agent or any Lender in connection with the
negotiation of the Credit Documents or included therein or
delivered pursuant thereto contained, contains or will contain
any material misstatement of fact or omitted, omits or will omit
to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were, are
or will be made, not materially misleading, provided that to the
extent any such information, report, financial statement, exhibit
or schedule was based upon or constitutes a forecast or
projection, each of the Credit Parties represents only that it
acted in good faith and utilized reasonable assumptions and due
care in the preparation of such information, report, financial
statement, exhibit or schedule.
6.18 Labor Matters.
Except as set forth in Schedule 6.18,
(i) There are no strikes or lockouts against any
members of the Consolidated Group pending or, to the best
knowledge of the Credit Parties, threatened;
(ii) the hours worked by and payments made to employees
of the Consolidated Group have not been in violation of the
Fair Labor Standards Act or any other applicable federal,
state, local or foreign law dealing with such matters in any
case where a Material Adverse Effect would reasonably be
expected to occur as a result of the violation thereof;
(iii)all payments due from members of the Consolidated
Group, or for which any claim may be made against a member
of the Consolidated Group, on account of wages and employee
health and welfare insurance and other benefits, have been
paid or accrued as a liability on the books of the
respective members of the Consolidated Group; and
(iv) none of the members of the Consolidated Group is
party to a collective bargaining agreement.
6.19 Security Documents.
(a) Security Agreement. The Security Agreement is
effective to create in favor of the Administrative Agent, for the
ratable benefit of the holders of the Secured Obligations
identified therein, a legal valid and enforceable security
interest in the Collateral (as defined in the Security Agreement)
owned by the Credit Parties and, when financing statements in
appropriate form are filed in the appropriate offices for the
locations specified in Schedule 2 to the Security Agreement, the
Security Agreement shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the
grantors thereunder in such Collateral that may be perfected by
filing, recording or registering a financing statement under the
Uniform Commercial Code as in effect, in each case prior and
superior in right to any other Lien on any Collateral other than
Permitted Liens.
(b) Pledge Agreement. The Pledge Agreement is effective to
create in favor of the Administrative Agent, for the ratable
benefit of the holders of the Secured Obligations identified
therein, a legal valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and, when such
Collateral is delivered to the Administrative Agent, the Pledge
Agreement shall constitute a fully perfected first priority Lien
on, and security interest in, all right, title and interest of
the pledgors thereunder in such Collateral, in each case prior
and superior in right to any other Lien.
(c) Intellectual Property. The Security Agreement together
with the Notice of Grant of Security Interest in Trademarks and
the Notice of Grant of Security Interest in Patents filed with
the United States Patent and Trademark Office, and the Notice of
Grant of Security Interest in Copyrights filed with the United
States Copyright Office will constitute a fully perfected Lien
on, and security interest in, all right, title and interest of
the grantors thereunder in all Patents and Patent Licenses,
Trademarks and Trademark Licenses and Copyrights and Copyright
Licenses (each as defined in the Security Agreement) and in which
a security interest may be perfected by filing, recording or
registration of a Notice in the United States Patent and
Trademark Office and the United States Copyright Office, in each
case prior and superior in right to any other Lien other than
Permitted Liens.
6.20 Location of Real Property and Leased Premises.
Set forth on Schedule 6.20(a) is a complete and correct list
of all real property located in the United States and owned or
leased by any member of the Consolidated Group with street
address and state where located. Set forth on Schedule 6.20(b)
is a list of all locations where any tangible personal property
of any member of the Consolidated Group is located, including
street address and state where located. Set forth on Schedule
6.20(c) is the chief executive office and principal place of
business of each member of the Consolidated Group.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long
as this Credit Agreement is in effect or any amounts payable
hereunder or under any other Credit Document shall remain
outstanding or any Letter of Credit is outstanding, and until all
of the Commitments hereunder shall have terminated:
7.1 Information Covenants.
The Credit Parties will furnish, or cause to be furnished,
to the Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as
available, and in any event within 90 days after the close
of each fiscal year of the members of the Consolidated
Group, a consolidated and consolidating balance sheet and
income statement of the members of the Consolidated Group as
of the end of such fiscal year, together with related
consolidated and consolidating statements of operations and
retained earnings and of cash flows for such fiscal year, in
each case setting forth in comparative form consolidated and
consolidating figures for the preceding fiscal year, all
such financial information described above to be in
reasonable form and detail and audited by independent
certified public accountants of recognized national standing
reasonably acceptable to the Administrative Agent and whose
opinion shall be to the effect that such financial
statements have been prepared in accordance with GAAP
(except for changes with which such accountants concur) and
shall not be limited as to the scope of the audit or
qualified as to the status of the members of the
Consolidated Group as a going concern or any other material
qualifications or exceptions.
(b) Quarterly Financial Statements. As soon as
available, and in any event within 45 days after the close
of each fiscal quarter of the members of the Consolidated
Group (other than the fourth fiscal quarter, in which case
90 days after the end thereof) a consolidated and
consolidating balance sheet and income statement of the
members of the Consolidated Group as of the end of such
fiscal quarter, together with related consolidated and
consolidating statements of operations and retained earnings
and of cash flows for such fiscal quarter, in each case
setting forth in comparative form consolidated and
consolidating figures for the corresponding period of the
preceding fiscal year, all such financial information
described above to be in reasonable form and detail and
reasonably acceptable to the Administrative Agent, and
accompanied by a certificate of an Executive Officer of the
Borrower to the effect that such quarterly financial
statements fairly present in all material respects the
financial condition of the members of the Consolidated Group
and have been prepared in accordance with GAAP, subject to
changes resulting from audit and normal year-end audit
adjustments.
(c) Officer's Compliance Certificate. At the time of
delivery of the financial statements provided for in
Sections 7.1(a) and 7.1(b) above, a certificate of an
Executive Officer of the Borrower substantially in the form
of Schedule 7.1(c), (i) demonstrating compliance with the
financial covenants contained in Section 7.11 by calculation
thereof as of the end of each such fiscal period and (ii)
stating that no Default or Event of Default exists, or if
any Default or Event of Default does exist, specifying the
nature and extent thereof and what action the Credit Parties
propose to take with respect thereto.
(d) Pro Forma Compliance Certificate. As soon as
available, and in any event within 45 days after the close
of each fiscal quarter during which any merger or
consolidation as referred to in Section 8.4, any Asset
Disposition as referred to in Section 8.5, any Acquisition
as referred to in the definition of "Permitted Acquisition"
or any Restricted Payment as referred to in Section 8.7 has
occurred, a Pro Forma Compliance Certificate.
(e) Research Reports. Within 45 days after the close
of each fiscal quarter (other than the fourth fiscal
quarter, in which case within 90 days after the end
thereof), a research report which, in the business judgment
of the Borrower, is reasonably representative of the
business plan and budget of the members of the Consolidated
Group.
(f) Auditor's Reports. Promptly upon receipt thereof,
a copy of any report submitted by independent accountants to
any member of the Consolidated Group in connection with any
annual, interim or special audit of the books of such Person.
(g) Reports. Promptly upon transmission or receipt
thereof, (i) copies of any filings and registrations with,
and reports to or from, the Securities and Exchange
Commission, or any successor agency, and copies of all
financial statements, proxy statements, notices and reports
as any member of the Consolidated Group shall send to its
shareholders or to a holder of any Indebtedness owed by any
member of the Consolidated Group in its capacity as such a
holder and (ii) upon the request of the Administrative
Agent, all reports and written information to and from the
United States Environmental Protection Agency, or any state
or local agency responsible for environmental matters, the
United States Occupational Health and Safety Administration,
or any state or local agency responsible for health and
safety matters, or any successor agencies or authorities
concerning environmental, health or safety matters.
(h) Notices. Upon any Executive Officer of a Credit
Party obtaining knowledge thereof, the Credit Parties will
give written notice to the Administrative Agent immediately
of (i) the occurrence of an event or condition consisting of
a Default or Event of Default, specifying the nature and
existence thereof and what action the Credit Parties propose
to take with respect thereto, and (ii) the occurrence of any
of the following with respect to any member of the
Consolidated Group (A) the pendency or commencement of any
litigation, arbitral or governmental proceeding against such
Person which if adversely determined is likely to have a
Material Adverse Effect or (B) the institution of any
proceedings against such Person with respect to, or the
receipt of notice by such Person of potential liability or
responsibility for violation, or alleged violation of any
federal, state or local law, rule or regulation, including
but not limited to, Environmental Laws, the violation of
which could have a Material Adverse Effect.
(i) ERISA. Upon any Executive Officer of a Credit
Party obtaining knowledge thereof, the Credit Parties will
give written notice to the Administrative Agent promptly
(and in any event within five Business Days) of: (i) any
event or condition, including, but not limited to, any
Reportable Event, that constitutes, or might reasonably lead
to, an ERISA Event; (ii) with respect to any Multiemployer
Plan, the receipt of notice as prescribed in ERISA or
otherwise of any withdrawal liability assessed against the
Credit Parties or any ERISA Affiliates, or of a
determination that any Multiemployer Plan is in
reorganization or insolvent (both within the meaning of
Title IV of ERISA); (iii) the failure to make full payment
on or before the due date (including extensions) thereof of
all amounts which any member of the Consolidated Group or
any ERISA Affiliate is required to contribute to each Plan
pursuant to its terms and as required to meet the minimum
funding standard set forth in ERISA and the Internal Revenue
Code with respect thereto; or (iv) any change in the funding
status of any Plan that could have a Material Adverse
Effect, together with a description of any such event or
condition or a copy of any such notice and a statement by an
Executive Officer of the Borrower briefly setting forth the
details regarding such event, condition, or notice, and the
action, if any, which has been or is being taken or is
proposed to be taken by the Credit Parties with respect
thereto. Promptly upon request, the Credit Parties shall
furnish the Administrative Agent and the Lenders with such
additional information concerning any Plan as may be
reasonably requested, including, but not limited to, copies
of each annual report/return (Form 5500 series), as well as
all schedules and attachments thereto required to be filed
with the Department of Labor and/or the Internal Revenue
Service pursuant to ERISA and the Internal Revenue Code,
respectively, for each "plan year" (within the meaning of
Section 3(39) of ERISA).
(j) Environmental.
(i) Upon the reasonable written request of the
Administrative Agent following the occurrence of any
event or the discovery of any condition which the
Administrative Agent or the Required Lenders reasonably
believe has caused (or could be reasonably expected to
cause) the representations and warranties set forth in
Section 6.16 to be untrue in any material respect, the
Credit Parties will furnish or cause to be furnished to
the Administrative Agent, at the Credit Parties'
expense, a report of an environmental assessment of
reasonable scope, form and depth, (including, where
appropriate, invasive soil or groundwater sampling) by
a consultant reasonably acceptable to the
Administrative Agent as to the nature and extent of
the presence of any Materials of Environmental Concern
on any Subject Properties (as defined in Section 6.16)
and as to the compliance by any member of the
Consolidated Group with Environmental Laws at such
Subject Properties. If the Credit Parties fail to
deliver such an environmental report within
seventy-five (75) days after receipt of such written
request then the Administrative Agent may arrange for
same, and the members of the Consolidated Group hereby
grant to the Administrative Agent and their
representatives access to the Subject Properties to
reasonably undertake such an assessment (including,
where appropriate, invasive soil or groundwater
sampling). The reasonable cost of any assessment
arranged for by the Administrative Agent pursuant to
this provision will be payable by the Credit Parties on
demand and added to the obligations secured by the
Collateral Documents.
(ii) The members of the Consolidated Group will
conduct and complete all investigations, studies,
sampling, and testing and all remedial, removal, and
other actions necessary to address all Materials of
Environmental Concern on, from or affecting any of the
Subject Properties to the extent necessary to be in
compliance with all Environmental Laws and with the
validly issued orders and directives of all
Governmental Authorities with jurisdiction over such
Subject Properties to the extent any failure could have
a Material Adverse Effect.
(k) Additional Patents and Trademarks. At the time of
delivery of the financial statements and reports provided
for in Section 7.1(a), a report signed by an Executive
Officer of the Borrower setting forth (i) a list of
registration numbers for all patents, trademarks, service
marks, tradenames and copyrights awarded to any member of
the Consolidated Group since the last day of the immediately
preceding fiscal year and (ii) a list of all patent
applications, trademark applications, service mark
applications, trade name applications and copyright
applications submitted by any member of the Consolidated
Group since the last day of the immediately preceding fiscal
year and the status of each such application, all in such
form as shall be reasonably satisfactory to the
Administrative Agent.
(l) Other Information. With reasonable promptness
upon any such request, such other information regarding the
business, properties or financial condition of any member of
the Consolidated Group as the Administrative Agent or the
Required Lenders may reasonably request.
7.2 Preservation of Existence and Franchises.
Except as a result of or in connection with a dissolution,
merger or disposition of a Subsidiary permitted under Section 8.4
or Section 8.5, each Credit Party will, and will cause each of
its Subsidiaries to, do all things necessary to preserve and keep
in full force and effect its existence, rights, franchises and
authority.
7.3 Books and Records.
Each Credit Party will, and will cause each of its
Subsidiaries to, keep complete and accurate books and records of
its transactions in accordance with good accounting practices on
the basis of GAAP (including the establishment and maintenance of
appropriate reserves).
7.4 Compliance with Law.
Each Credit Party will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and
orders, and all applicable restrictions imposed by all
Governmental Authorities, applicable to it and its Property if
noncompliance with any such law, rule, regulation, order or
restriction could have a Material Adverse Effect.
7.5 Payment of Taxes and Other Indebtedness.
Each Credit Party will, and will cause each of its
Subsidiaries to, pay and discharge (a) all taxes, assessments and
governmental charges or levies imposed upon it, or upon its
income or profits, or upon any of its properties, before they
shall become delinquent, (b) all lawful claims (including claims
for labor, materials and supplies) which, if unpaid, might give
rise to a Lien upon any of its properties, and (c) except as
prohibited hereunder, all of its other Indebtedness as it shall
become due; provided, however, that no member of the Consolidated
Group shall be required to pay any such tax, assessment, charge,
levy, claim or Indebtedness which is being contested in good
faith by appropriate proceedings for which adequate reserves
determined in accordance with GAAP have been established, unless
the failure to make any such payment (i) could give rise to an
immediate right to foreclose on a Lien securing such amounts or
(ii) could have a Material Adverse Effect.
7.6 Insurance.
Each Credit Party will, and will cause each of its
Subsidiaries to, at all times maintain in full force and effect
insurance (including worker's compensation insurance, liability
insurance, casualty insurance and business interruption
insurance) in such amounts, covering such risks and liabilities
and with such deductibles or self-insurance retentions as are in
accordance with normal industry practice (or as otherwise
required by the Collateral Documents). The Administrative Agent
shall be named as loss payee or mortgagee, as its interest may
appear, and/or additional insured with respect to any such
insurance providing coverage in respect of any Collateral, and
each provider of any such insurance shall agree, by endorsement
upon the policy or policies issued by it or by independent
instruments furnished to the Administrative Agent, that it will
give the Administrative Agent thirty (30) days prior written
notice before any such policy or policies shall be altered or
canceled, and that no act or default of any member of the
Consolidated Group or any other Person shall affect the rights of
the Administrative Agent or the Lenders under such policy or
policies. The present insurance coverage of the members of the
Consolidated Group is outlined as to carrier, policy number,
expiration date, type and amount on Schedule 7.6.
7.7 Maintenance of Property.
Each Credit Party will, and will cause each of its
Subsidiaries to, maintain and preserve its properties and
equipment material to the conduct of its business in good repair,
working order and condition, normal wear and tear and casualty
and condemnation excepted, and will make, or cause to be made, in
such properties and equipment from time to time all repairs,
renewals, replacements, extensions, additions, betterments and
improvements thereto as may be needed or proper, to the extent
and in the manner customary for companies in similar businesses.
7.8 Performance of Obligations.
Each Credit Party will, and will cause each of its
Subsidiaries to, perform in all material respects all of its
obligations under the terms of all material agreements,
indentures, mortgages, security agreements and other debt
instruments to which it is a party or by which it is bound.
7.9 Use of Proceeds.
The Borrower will use the proceeds of Extensions of Credit
solely for the purposes set forth in Section 6.15.
7.10 Audits/Inspections.
Upon reasonable notice and during normal business hours,
each Credit Party will, and will cause each of its Subsidiaries
to, permit representatives appointed by the Administrative Agent,
including, without limitation, independent accountants, agents,
attorneys, and appraisers to visit and inspect its property,
including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to
make photocopies or photographs thereof and to write down and
record any information such representative obtains and shall
permit the Administrative Agent or its representatives to
investigate and verify the accuracy of information provided to
the Lenders and to discuss all such matters with the officers,
employees and representatives of such Person. The Credit Parties
agree that the Administrative Agent, and its representatives, may
conduct an annual audit of the Collateral, at the expense of the
Lenders.
7.11 Financial Covenants.
(a) Consolidated Senior Leverage Ratio. As of the end of
each fiscal quarter to occur during the periods set forth below,
the Consolidated Senior Leverage Ratio shall be not greater than:
Closing Date through September 30, 2001 2.50:1.0
October 1, 2001 and thereafter 2.25:1.0
(b) Consolidated Total Leverage Ratio. As of the end of
each fiscal quarter to occur during the periods set forth below,
the Consolidated Total Leverage Ratio shall be not greater than:
Closing Date through September 30, 2001 3.00:1.0
October 1, 2001 and thereafter 2.75:1.0
(c) Consolidated Fixed Charge Coverage Ratio. As of the
end of each fiscal quarter to occur during the periods set forth
below, the Consolidated Fixed Charge Coverage Ratio shall be not
less than:
Closing Date through September 30, 2001 1.20:1.0
October 1, 2001 and thereafter 1.25:1.0
(d) Consolidated Net Worth. As of the end of each fiscal
quarter, the Consolidated Net Worth shall be not less than the
sum of (i) $80 million plus (ii) as of the end of such fiscal
quarter and each preceding fiscal quarter to occur after the
Closing Date, an amount equal to eighty-five percent (85%) of
Consolidated Net Income (but not less than zero) for such fiscal
quarter, such increases to be cumulative, plus (iii) an amount
equal to one hundred percent (100%) of net proceeds from Equity
Transactions occurring after the Closing Date.
7.12 Additional Guarantors and Collateral.
(a) Domestic Subsidiaries. At any time that the Borrower
forms or acquires any Domestic Subsidiary, the Borrower will
promptly (but in any event within 30 days) (i) notify the
Administrative Agent thereof, (ii) cause such Domestic Subsidiary
to become a Guarantor by execution of a Guaranty Agreement, (iii)
cause such Domestic Subsidiary to deliver supporting resolutions,
incumbency certificates, corporate formation and organizational
documentation and opinions of counsel as the Administrative Agent
may reasonably request, (iv) deliver, or cause to be delivered,
stock certificates and a Pledge Agreement evidencing the pledge
of 100% of the Voting Stock of all Domestic Subsidiaries,
together with undated stock transfer powers executed in blank and
(v) grant to the Administrative Agent and the Lenders a security
interest in all of its Collateral, as referred in and pursuant to
the terms of the Security Agreement.
(b) Foreign Subsidiaries. The Borrower will not form or
acquire any Foreign Subsidiaries without the prior written
consent of the Required Lenders.
(c) Additional Collateral. If, subsequent to the Closing
Date, a Credit Party shall acquire any other personal property
required to be delivered to the Administrative Agent as
Collateral hereunder or under the Security Agreement, the
Borrower shall immediately notify the Administrative Agent of the
same. Each Credit Party shall take such action (including, but
not limited to, the execution of UCC-1 financing statements), as
requested by the Administrative Agent and at such Credit Party's
expense, to ensure that the Administrative Agent and the Lenders
have a perfected Lien in such personal property of the Credit
Parties as set forth in the Security Agreement (whether nor owned
or hereafter acquired) and any owned or leased real property (to
the extent deemed material by the Administrative Agent), subject
only to Permitted Liens. Each Credit Party shall adhere to the
covenants regarding the location of personal property as set
forth in the Credit Agreement.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long
as this Credit Agreement is in effect or any amounts payable
hereunder or under any other Credit Document shall remain
outstanding or any Letter of Credit is outstanding, and until all
of the Commitments hereunder shall have terminated:
8.1 Indebtedness.
The Credit Parties will not permit any member of the
Consolidated Group to contract, create, incur, assume or permit
to exist any Indebtedness, except:
(a) Indebtedness existing or arising under this Credit
Agreement or the other Credit Documents;
(b) Indebtedness of the Borrower and its Subsidiaries
existing on the Closing Date and set forth on Schedule 8.1,
and renewals, refinancings and extensions thereof on terms
and conditions no less favorable to such Person than such
existing Indebtedness;
(c) purchase money Indebtedness (including obligations
in respect of Capital Leases or Synthetic Leases) hereafter
incurred by the Borrower or any of its Subsidiaries to
finance the purchase of fixed assets provided that (i) the
total of all such Indebtedness for the Borrower and its
Subsidiaries taken together shall not exceed an aggregate
principal amount of $2,000,000 at any one time outstanding;
(ii) such Indebtedness when incurred shall not exceed the
purchase price of the asset(s) financed; and (iii) no such
Indebtedness shall be refinanced for a principal amount in
excess of the principal balance outstanding thereon at the
time of such refinancing;
(d) obligations of the Borrower or any of its
Subsidiaries owing under interest rate, commodities and
foreign currency exchange protection agreements entered into
in the ordinary course of business to manage existing or
anticipated risks and not for speculative purposes;
(e) unsecured intercompany Indebtedness owing by a
member of the Consolidated Group to another member of the
Consolidated Group (subject, however, to the limitations of
Section 8.6 in the case of the member of the Consolidated
Group extending the loan, advance or credit);
(f) obligations to make contingent payments
(including, without limitation, earn-out payments) incurred
in connection with Permitted Acquisitions and Acquisitions
consummated prior to the Closing Date;
(g) Support Obligations of any Subsidiary of the
Borrower with respect to any Indebtedness of the Borrower
permitted under this Section 8.1;
(h) Subordinated Debt; and
(i) other unsecured Funded Debt of the Borrower and
its Subsidiaries in an aggregate outstanding principal
amount of up to $2,000,000 at any time.
8.2 Liens.
The Credit Parties will not permit any member of the
Consolidated Group to contract, create, incur, assume or permit
to exist any Lien with respect to any of its Property, whether
now owned or after acquired, except for Permitted Liens.
8.3 Nature of Business.
The Credit Parties will not permit any member of the
Consolidated Group to substantively alter the character or
conduct of the business conducted by such Person as of the
Closing Date.
8.4 Merger and Consolidation, Dissolution and Acquisitions.
(a) No member of the Consolidated Group will enter into any
transaction of merger or consolidation, except that
(i) a Credit Party may be party to a transaction of
merger or consolidation with another Credit Party, provided
that if the Borrower is a party to such transaction, it
shall be the surviving entity;
(ii) a Domestic Subsidiary of the Borrower may be a
party to a transaction of merger or consolidation with a
Person other than a member of the Consolidated Group,
provided that (A) the surviving entity shall be a Domestic
Subsidiary of the Borrower and shall execute and deliver
such joinder and pledge agreements as may be necessary for
compliance with the provisions of Sections 7.12, (B) no
Default or Event of Default shall exist immediately after
giving effect thereto, and (C) the transaction shall
otherwise constitute a Permitted Acquisition;
(iii)a Subsidiary of the Borrower may enter into a
transaction of merger or consolidation in connection with an
Asset Disposition permitted under Section 8.5.
(b) No member of the Consolidated Group, other than a
Wholly Owned Subsidiary of the Borrower (and then only if no
Material Adverse Effect shall result on account thereof), may
dissolve, liquidate or wind up its affairs.
(c) No member of the Consolidated Group shall make any
Acquisition, unless:
(i) in the case of an acquisition of Capital Stock of
another Person, after giving effect to such acquisition,
(A) if the Acquisition is not of a controlling
interest in the subject Person such that after giving
effect thereto the subject Person will not be a
Subsidiary, then such Acquisition shall constitute a
Permitted Investment; and
(B) if the Acquisition is of a controlling
interest in the subject Person such that after giving
effect thereto the subject Person will be a Subsidiary,
then such Acquisition shall constitute a Permitted
Acquisition;
(ii) in the case of an Acquisition of all or any
substantial portion of the Property (other than Capital
Stock) of another Person, then such Acquisition constitutes
a Permitted Acquisition.
8.5 Asset Dispositions.
The Credit Parties will not permit any member of the
Consolidated Group to make any Asset Disposition (including,
without limitation, any Sale and Leaseback Transaction), unless
(a) the consideration paid therefor shall consist solely of cash
and Cash Equivalents, (b) if the subject transaction is a Sale
and Leaseback Transaction, such transaction shall be permitted by
Section 8.13, (c) if the subject transaction involves Capital
Stock of a Subsidiary, the subject transaction is of a
controlling interest in such Subsidiary, (d) in any fiscal year
the Property sold, leased or otherwise disposed of in Asset
Dispositions shall not have generated, in the aggregate, more
than five percent (5%) of Consolidated EBITDA on a Pro Forma
Basis for the immediately preceding fiscal year, and (e) no
Default or Event of Default shall exist immediately after giving
effect thereto; provided that notwithstanding anything to the
contrary contained herein, no member of the Consolidated Group
may engage in any Securitization Transaction without the prior
written consent of the Required Lenders.
The Administrative Agent will promptly deliver to the
Borrower upon request, at the Borrower's expense, such release
documentation (including delivery of applicable stock
certificates) as may be reasonably requested to give effect to
the release of subject Property from the security interests
securing the obligations hereunder in connection with Asset
Dispositions permitted hereunder.
8.6 Investments.
The Credit Parties will not permit any member of the
Consolidated Group to make or permit to exist Investments in or
to any Person, except for Permitted Investments.
8.7 Restricted Payments.
The Credit Parties will not make, or permit any member of
the Consolidated Group to make, any Restricted Payment, unless no
Default or Event of Default shall exist immediately after giving
effect thereto.
8.8 Modifications and Payments in respect of Funded Debt.
None of the members of the Consolidated Group will
(a) Amend or modify, or permit or acquiesce to the
amendment or modification (including waivers) of, any material
provisions of any Subordinated Debt, including any notes or
instruments evidencing any Subordinated Debt and any indenture or
other governing instrument relating thereto;
(b) Make any payment in contravention of the terms of any
Subordinated Debt; or
(c) Except in connection with a refinancing or refunding
permitted hereunder, make any prepayment, redemption, defeasance
or acquisition for value of (including without limitation, by way
of depositing money or securities with the trustee with respect
thereto before due for the purpose of paying when due), or
refund, refinance or exchange of any Subordinated Debt other than
regularly scheduled payments of principal and interest on such
Subordinated Debt.
8.9 Transactions with Affiliates.
The Credit Parties will not permit any member of the
Consolidated Group to enter into or permit to exist any
transaction or series of transactions with any officer, director,
shareholder, Subsidiary or Affiliate of such Person other than
(a) advances of working capital to any Credit Party, (b)
transfers of cash and assets to any Credit Party, (c)
transactions permitted by Section 8.1, Section 8.4, Section 8.5,
Section 8.6, or Section 8.7, (d) normal compensation and
reimbursement of expenses of officers and directors and (e)
except as otherwise specifically limited in this Credit
Agreement, other transactions which are entered into in the
ordinary course of such Person's business on terms and conditions
substantially as favorable to such Person as would be obtainable
by it in a comparable arms-length transaction with a Person other
than an officer, director, shareholder, Subsidiary or Affiliate.
8.10 Fiscal Year; Organizational Documents.
(a) The Credit Parties will not permit any member of the
Consolidated Group to change its fiscal year or amend, modify or
change its articles of incorporation (or corporate charter or
other similar organizational document) or bylaws (or other
similar document) without the prior written consent of the
Required Lenders, which consent shall not be unreasonably
withheld.
(b) The Borrower will not permit any material amendment,
modification or change to its Shareholder Rights Plan without
promptly providing a copy thereof to the Administrative Agent.
8.11 Limitation on Restricted Actions.
The Credit Parties will not permit any member of the
Consolidated Group to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Person to
(a) pay dividends or make any other distributions on its Capital
Stock or with respect to any other interest or participation in,
or measured by, its profits, (b) pay any Indebtedness or other
obligation, (c) make loans, advances or capital contributions,
(d) sell, lease or otherwise transfer any of its properties or
assets, or (e) act as a guarantor or pledge its assets, except
for such encumbrances or restrictions existing under or by reason
of (i) this Credit Agreement and the other Credit Documents and
(ii) pursuant to the terms of any purchase money Indebtedness
permitted by Section 8.1(c) to the extent such limitations relate
only to the property which is the subject of such financing.
8.12 Ownership of Subsidiaries.
The Credit Parties will not permit any member of the
Consolidated Group to (i) permit any Person (other than the
Borrower or any Wholly Owned Subsidiary of the Borrower) to own
any Capital Stock of any Subsidiary of the Borrower, except (A)
to qualify directors where required by applicable law or to
satisfy other requirements of applicable law with respect to the
ownership of Capital Stock of Foreign Subsidiaries or (B) as a
result of or in connection with a dissolution, merger,
consolidation or disposition of a Subsidiary permitted under
Section 8.4 or Section 8.5, (ii) permit any Subsidiary of the
Borrower to issue any shares of preferred Capital Stock or (iii)
permit, create, incur, assume or suffer to exist any Lien on any
Capital Stock of any Subsidiary of the Borrower, except for
Permitted Liens.
8.13 Sale Leasebacks.
The Credit Parties will not permit any member of the
Consolidated Group to enter into any Sale and Leaseback
Transaction unless such Sale and Leaseback Transaction
constitutes purchase money Indebtedness permitted by Section
8.1(c).
8.14 No Further Negative Pledges.
The Credit Parties will not permit any member of the
Consolidated Group to enter into, assume or become subject to any
agreement prohibiting or otherwise restricting the creation or
assumption of any Lien upon its properties or assets, whether now
owned or hereafter acquired, or requiring the grant of any
security for any obligation if security is given for any other
obligation, except (a) pursuant to this Credit Agreement and the
other Credit Documents and (b) pursuant to the terms of any
purchase money Indebtedness permitted by Section 8.1(c) to the
extent such limitations relate only to the property which is the
subject of such financing.
SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default.
An Event of Default shall exist upon the occurrence of any
of the following specified events (each an "Event of Default"):
(a) Payment. Any Credit Party shall
(i) default in the payment when due of any
principal of any of the Loans or of any reimbursement
obligations arising from drawings under Letters of
Credit, or
(ii) default, and such default shall continue for
three (3) or more Business Days, in the payment when
due of any interest on the Loans or on any
reimbursement obligations arising from drawings under
Letters of Credit, or of any Fees or other amounts
owing hereunder, under any of the other Credit
Documents or in connection herewith or therewith; or
(b) Representations. Any representation, warranty or
statement made or deemed to be made by any Credit Party
herein, in any of the other Credit Documents, or in any
statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove untrue in
any material respect on the date as of which it was deemed
to have been made; or
(c) Covenants. Any Credit Party shall
(i) default in the due performance or observance
of any term, covenant or agreement contained in
Sections 7.2, 7.9, 7.11, 7.12 or 8.1 through 8.14,
inclusive;
(ii) default in the due performance or observance
of any term, covenant or agreement contained in
Sections 7.1(a), (b) (c) or (d) and such default shall
continue unremedied for a period of at least 5 days
after the earlier of an Executive Officer of a Credit
Party becoming aware of such default or notice thereof
by the Administrative Agent; or
(iii)default in the due performance or observance
by it of any term, covenant or agreement (other than
those referred to in subsections (a), (b), (c)(i) or
(c)(ii) of this Section 9.1) contained in this Credit
Agreement or any other Credit Document and such default
shall continue unremedied for a period of at least 30
days after the earlier of an Executive Officer of a
Credit Party becoming aware of such default or notice
thereof by the Administrative Agent; or
(d) Other Credit Documents. Except as a result of or
in connection with a dissolution, merger or disposition of a
Subsidiary permitted under Section 8.4 or Section 8.5, any
Credit Document shall fail to be in full force and effect or
to give the Administrative Agent and/or the Lenders the
Liens, rights, powers and privileges purported to be created
thereby, or any Credit Party shall so state in writing; or
(e) Guaranties. Except as the result of or in
connection with a dissolution, merger or disposition of a
Subsidiary permitted under Section 8.4 or Section 8.5, the
guaranty given by any Guarantor (including any Person which
becomes a Guarantor after the Closing Date in accordance
with Section 7.12) or any provision thereof shall cease to
be in full force and effect, or any Guarantor (including any
Person which becomes a Guarantor after the Closing Date in
accordance with Section 7.12) or any Person acting by or on
behalf of such Guarantor shall deny or disaffirm such
Guarantor's obligations under such guaranty, or any
Guarantor shall default in the due performance or observance
of any term, covenant or agreement on its part to be
performed or observed pursuant to any guaranty; or
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur
with respect to any member of the Consolidated Group; or
(g) Defaults under Other Agreements. With respect to
any Indebtedness (other than Indebtedness outstanding under
this Credit Agreement) in excess of $2,000,000 in the
aggregate for the members of the Consolidated Group taken as
a whole, (i) any member of the Consolidated Group shall (A)
default in any payment (beyond the applicable grace period
with respect thereto, if any) with respect to any such
Indebtedness, or (B) the occurrence and continuance of a
default in the observance or performance relating to such
Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event
or condition shall occur or condition exist, the effect of
which default or other event or condition is to cause, or to
permit, the holder or holders of such Indebtedness (or
trustee or agent on behalf of such holders) to cause
(determined without regard to whether any notice or lapse of
time is required), any such Indebtedness to become due prior
to its stated maturity; or (ii) any such Indebtedness shall
be declared due and payable, or required to be prepaid other
than by a regularly scheduled required prepayment, prior to
the stated maturity thereof; or
(h) Judgments. One or more judgments or decrees shall
be entered against one or more of the members of the
Consolidated Group involving a liability of $2,000,000 or
more in the aggregate (to the extent not paid or fully
covered by insurance provided by a carrier who has
acknowledged coverage and has the ability to perform) and
any such judgments or decrees shall not have been vacated,
discharged or stayed or bonded pending appeal within 30 days
from the entry thereof; or
(i) ERISA. Any of the following events or conditions,
if such event or condition could involve possible taxes,
penalties, and other liabilities in an aggregate amount in
excess of $1,000,000 and could reasonably be expected to
result in a Material Adverse Effect: (i) any "accumulated
funding deficiency," as such term is defined in Section 302
of ERISA and Section 412 of the Internal Revenue Code,
whether or not waived, shall exist with respect to any Plan,
or any lien shall arise on the assets of any member of the
Consolidated Group or any ERISA Affiliate in favor of the
PBGC or a Plan; (ii) an ERISA Event shall occur with respect
to a Single Employer Plan, which is, in the reasonable
opinion of the Administrative Agent, likely to result in the
termination of such Plan for purposes of Title IV of ERISA;
(iii) an ERISA Event shall occur with respect to a
Multiemployer Plan or Multiple Employer Plan, which is, in
the reasonable opinion of the Administrative Agent, likely
to result in (A) the termination of such Plan for purposes
of Title IV of ERISA, or (B) any member of the Consolidated
Group or any ERISA Affiliate incurring any liability in
connection with a withdrawal from, reorganization of (within
the meaning of Section 4241 of ERISA), or insolvency (within
the meaning of Section 4245 of ERISA) of such Plan; or (iv)
any prohibited transaction (within the meaning of Section
406 of ERISA or Section 4975 of the Internal Revenue Code)
or breach of fiduciary responsibility shall occur which may
subject any member of the Consolidated Group or any ERISA
Affiliate to any liability under Sections 406, 409, 502(i),
or 502(l) of ERISA or Section 4975 of the Internal Revenue
Code, or under any agreement or other instrument pursuant to
which any member of the Consolidated Group or any ERISA
Affiliate has agreed or is required to indemnify any person
against any such liability; or
(j) Ownership. There shall occur a Change of Control.
9.2 Acceleration; Remedies.
Upon the occurrence of an Event of Default, and at any time
thereafter unless and until such Event of Default has been waived
by the requisite Lenders (pursuant to the voting requirements of
Section 11.6) or cured to the satisfaction of the requisite
Lenders (pursuant to the voting procedures in Section 11.6), the
Administrative Agent shall, upon the request and direction of the
Required Lenders, by written notice to the Credit Parties take
any of the following actions:
(a) Termination of Commitments. Declare the
Commitments terminated whereupon the Commitments shall be
immediately terminated.
(b) Acceleration. Declare the unpaid principal of and
any accrued interest in respect of all Loans, any
reimbursement obligations arising from drawings under
Letters of Credit and any and all other indebtedness or
obligations of any and every kind owing by the Credit
Parties to the Administrative Agent and/or any of the
Lenders hereunder to be due whereupon the same shall be
immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby
waived by the Credit Parties.
(c) Cash Collateral. Direct the Credit Parties to pay
(and the Credit Parties agree that upon receipt of such
notice, or upon the occurrence of an Event of Default under
Section 9.1(f), they will immediately pay) to the
Administrative Agent additional cash, to be held by the
Administrative Agent, for the benefit of the Lenders, in a
cash collateral account as additional security for the LOC
Obligations in respect of subsequent drawings under all then
outstanding Letters of Credit in an amount equal to the
maximum aggregate amount which may be drawn under all
Letters of Credits then outstanding.
(d) Enforcement of Rights. Enforce any and all rights
and interests created and existing under the Credit
Documents including, without limitation, all rights and
remedies existing under the Collateral Documents, all rights
and remedies against a Guarantor and all rights of set-off.
Notwithstanding the foregoing, if an Event of Default
specified in Section 9.1(f) shall occur with respect to the
Borrower, then the Commitments shall automatically terminate and
all Loans, all reimbursement obligations arising from drawings
under Letters of Credit, all accrued interest in respect thereof,
all accrued and unpaid Fees and other indebtedness or obligations
owing to the Administrative Agent and/or any of the Lenders
hereunder automatically shall immediately become due and payable
without the giving of any notice or other action by the
Administrative Agent or the Lenders.
SECTION 10
AGENCY PROVISIONS
10.1 Appointment, Powers and Immunities.
Each Lender hereby irrevocably appoints and authorizes the
Administrative Agent to act as its agent under this Credit
Agreement and the other Credit Documents with such powers and
discretion as are specifically delegated to the Administrative
Agent by the terms of this Credit Agreement and the other Credit
Documents, together with such other powers as are reasonably
incidental thereto. Each Lender further authorizes and directs
the Administrative Agent to execute and deliver releases (or
similar agreements) to give effect to the provisions of this
Credit Agreement and the other Credit Documents, including
specifically, without limitation, the provisions of Section 8.5
hereof. The Administrative Agent (which term as used in this
sentence and in Section 10.5 and the first sentence of Section
10.6 shall include its Affiliates and its own and its Affiliates'
officers, directors, employees, and agents): (a) shall not have
any duties or responsibilities except those expressly set forth
in this Credit Agreement and shall not be a trustee or fiduciary
for any Lender; (b) shall not be responsible to the Lenders for
any recital, statement, representation, or warranty (whether
written or oral) made in or in connection with any Credit
Document or any certificate or other document referred to or
provided for in, or received by any of them under, any Credit
Document, or for the value, validity, effectiveness, genuineness,
enforceability, or sufficiency of any Credit Document, or any
other document referred to or provided for therein or for any
failure by any Credit Party or any other Person to perform any of
its obligations thereunder; (c) shall not be responsible for or
have any duty to ascertain, inquire into, or verify the
performance or observance of any covenants or agreements by any
Credit Party or the satisfaction of any condition or to inspect
the property (including the books and records) of any Credit
Party or any of its Subsidiaries or Affiliates; (d) shall not be
required to initiate or conduct any litigation or collection
proceedings under any Credit Document; and (e) shall not be
responsible for any action taken or omitted to be taken by it
under or in connection with any Credit Document, except for its
own gross negligence or willful misconduct. The Administrative
Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents
or attorneys-in-fact selected by it with reasonable care.
10.2 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other
communication (including, without limitation, any thereof by
telephone or telecopy) believed by it to be genuine and correct
and to have been signed, sent or made by or on behalf of the
proper Person or Persons, and upon advice and statements of legal
counsel (including counsel for any Credit Party), independent
accountants, and other experts selected by the Administrative
Agent. The Administrative Agent may deem and treat the payee of
any Note as the holder thereof for all purposes hereof unless and
until the Administrative Agent receives and accepts an Assignment
and Acceptance executed in accordance with Section 11.3(b)
hereof. As to any matters not expressly provided for by this
Credit Agreement, the Administrative Agent shall not be required
to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the
instructions of the Required Lenders, and such instructions shall
be binding on all of the Lenders; provided, however, that the
Administrative Agent shall not be required to take any action
that exposes the Administrative Agent to personal liability or
that is contrary to any Credit Document or applicable law or
unless it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be
incurred by it by reason of taking any such action.
10.3 Defaults.
The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default or Event of
Default unless the Administrative Agent has received written
notice from a Lender or a Credit Party specifying such Default or
Event of Default and stating that such notice is a "Notice of
Default". In the event that the Administrative Agent receives
such a notice of the occurrence of a Default or Event of Default,
the Administrative Agent shall give prompt notice thereof to the
Lenders. The Administrative Agent shall (subject to Section
10.2) take such action with respect to such Default or Event of
Default as shall reasonably be directed by the Required Lenders
(or such other Lenders as required by Section 11.6), provided
that, unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default as
it shall deem advisable in the best interest of the Lenders.
10.4 Rights as a Lender.
With respect to its Commitment and the Loans made by it,
Bank of America (and any successor acting as Administrative
Agent) in its capacity as a Lender hereunder shall have the same
rights and powers hereunder as any other Lender and may exercise
the same as though it were not acting as the Administrative
Agent, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include the Administrative Agent in
its individual capacity. Bank of America (and any successor
acting as Administrative Agent) and its Affiliates may (without
having to account therefor to any Lender) accept deposits from,
lend money to, make investments in, provide services to, and
generally engage in any kind of lending, trust, or other business
with any Credit Party or any of its Subsidiaries or Affiliates as
if it were not acting as Administrative Agent, and Bank of
America (and any successor acting as Administrative Agent) and
its Affiliates may accept fees and other consideration from any
Credit Party or any of its Subsidiaries or Affiliates for
services in connection with this Credit Agreement or otherwise
without having to account for the same to the Lenders.
10.5 Indemnification.
The Lenders agree to indemnify the Administrative Agent (to
the extent not reimbursed under Section 11.5 hereof, but without
limiting the obligations of the Credit Parties under Section
11.5) ratably (in accordance with their respective Revolving
Commitments (or, if the Revolving Commitments have been
terminated, the outstanding Obligations, including Participation
Interests therein) for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees), or disbursements of any
kind and nature whatsoever that may be imposed on, incurred by or
asserted against the Administrative Agent (including by any
Lender) in any way relating to or arising out of any Credit
Document or the transactions contemplated thereby or any action
taken or omitted by the Administrative Agent under any Credit
Document; provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or
willful misconduct of the Person to be indemnified. Without
limitation of the foregoing, each Lender agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share
of any costs or expenses payable by the Credit Parties under
Section 11.5, to the extent that the Administrative Agent is not
promptly reimbursed for such costs and expenses by the Credit
Parties. The agreements in this Section 10.5 shall survive the
repayment of the Loans, LOC Obligations and other obligations
under the Credit Documents and the termination of the Commitments
hereunder.
10.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender agrees that it has, independently and without
reliance on the Administrative Agent or any other Lender, and
based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Credit Parties
and their Subsidiaries and decision to enter into this Credit
Agreement and that it will, independently and without reliance
upon the Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at
the time, continue to make its own analysis and decisions in
taking or not taking action under the Credit Documents. Except
for notices, reports, and other documents and information
expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender with
any credit or other information concerning the affairs, financial
condition, or business of any Credit Party or any of its
Subsidiaries or Affiliates that may come into the possession of
the Administrative Agent or any of its Affiliates.
10.7 Successor Administrative Agent.
The Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Credit Parties. Upon any
such resignation, the Required Lenders shall have the right to
appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty
(30) days after the retiring Administrative Agent's giving of
notice of resignation, then the retiring Administrative Agent
may, on behalf of the Lenders, appoint a successor Administrative
Agent which shall be a commercial bank organized under the laws
of the United States having combined capital and surplus of at
least $100,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor, such successor
shall thereupon succeed to and become vested with all the rights,
powers, discretion, privileges, and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder. After
any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 10 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
Administrative Agent. If no successor agent has accepted
appointment as Administrative Agent by the date which is 60 days
following the retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation
shall nevertheless thereupon become effective and the Lenders
shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided above.
SECTION 11
MISCELLANEOUS
11.1 Notices.
Except as otherwise expressly provided herein, all notices
and other communications shall have been duly given and shall be
effective (a) when delivered, (b) when transmitted via telecopy
(or other facsimile device) to the number set out below, (c) the
Business Day following the day on which the same has been
delivered prepaid to a reputable national overnight air courier
service, or (d) the third Business Day following the day on which
the same is sent by certified or registered mail, postage
prepaid, in each case to the respective parties at the address,
in the case of the Credit Parties and the Administrative Agent,
set forth below, and, in the case of the Lenders, set forth on
Schedule 11.1, or at such other address as such party may specify
by written notice to the other parties hereto:
if to any Credit Party: RehabCare Group, Inc.
7733 Forsyth Blvd., Suite 1700
St. Louis, Missouri 63105
Attn: Gregory J. Eisenhauer,
SVP - Finance
Phone:
Fax:
if to the Administrative Agent:Bank of America, N.A.
901 Main Street
Dallas, Texas 75202
Attn: Deanna Betik
Agency Credit Services
Phone: (214) 209-3259
Fax: (214) 290-9414
with a copy to: Bank of America, N.A.
231 South LaSalle Street
Chicago, Illinois 60604
Mail Code: IL1-231-08-30
Attn:Kristine Hyde,
Assistant Vice President
Agency Management
Phone: (312) 828-1657
Fax: (877) 206-8412
11.2 Right of Set-Off; Adjustments.
Upon the occurrence and during the continuance of any Event
of Default, each Lender (and each of its Affiliates) is hereby
authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Lender (or any of its Affiliates) to or for the credit or
the account of any Credit Party against any and all of the
obligations of such Person now or hereafter existing under this
Credit Agreement, under the Notes, under any other Credit
Document or otherwise, irrespective of whether such Lender shall
have made any demand under hereunder or thereunder and although
such obligations may be unmatured. Each Lender agrees promptly
to notify any affected Credit Party after any such set-off and
application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender under this
Section 11.2 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that
such Lender may have.
11.3 Benefit of Agreement.
(a) This Credit Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided that none of the
Credit Parties may assign or transfer any of its interests and
obligations without prior written consent of each of the Lenders;
provided further that the rights of each Lender to transfer,
assign or grant participations in its rights and/or obligations
hereunder shall be limited as set forth in this Section 11.3.
(b) Each Lender may, upon five Business Days' notice to the
Administrative Agent, assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Credit
Agreement (including, without limitation, all or a portion of its
Loans, its Notes, and its Commitment); provided, however, that
(i) except in the case of an assignment to another
Lender, an Affiliate of an existing Lender or any fund that
invests in bank loans and is advised or managed by an
investment advisor to an existing Lender or an assignment of
all of a Lender's rights and obligations under this Credit
Agreement, any such partial assignment shall be in an amount
at least equal to $5,000,000 (or, if less, the remaining
amount of the Commitment being assigned by such Lender) or
an integral multiple of $1,000,000 in excess thereof;
(ii) any such assignment shall be of a constant, not
varying, percentage of all of the Obligations and
Commitments hereunder; and
(iii)the parties to such assignment shall execute and
deliver to the Administrative Agent for its acceptance an
Assignment and Acceptance in the form of Schedule 11.3(b)
hereto, together with any Note subject to such assignment
and a processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and,
to the extent of such assignment, have the obligations, rights,
and benefits of a Lender hereunder and the assigning Lender
shall, to the extent of such assignment, relinquish its rights
and be released from its obligations under this Credit
Agreement. Upon the consummation of any assignment pursuant to
this Section 11.3(b), the assignor, the Administrative Agent and
the Credit Parties shall make appropriate arrangements so that,
if required, new Notes are issued to the assignor and the
assignee. If the assignee is not a United States person under
Section 6701(a)(30) of the Internal Revenue Code, it shall
deliver to the Credit Parties and the Administrative Agent
certification as to exemption from deduction or withholding of
Taxes in accordance with Section 3.11.
(c) Maintenance of Register. The Administrative Agent
shall maintain at one of its offices in Dallas, Texas a copy of
each Lender assignment agreement delivered to it in accordance
with the terms of subsection (b) above and a register for the
recordation of the identity of the principal amount, type and
Interest Period of each Loan outstanding hereunder, the names,
addresses and the Commitments of the Lenders pursuant to the
terms hereof from time to time (the "Register"). The
Administrative Agent will make reasonable efforts to maintain the
accuracy of the Register and to promptly update the Register from
time to time, as necessary. The entries in the Register shall be
conclusive in the absence of manifest error and the Borrowers,
the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Credit
Agreement. The Register shall be available for inspection by the
Borrowers and each Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance
executed by the parties thereto, together with any Note subject
to such assignment and payment of the processing fee, the
Administrative Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Schedule
11.3(b) hereto, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and
(iii) give prompt notice thereof to the parties thereto.
(e) Each Lender may sell participations to one or more
Persons in all or a portion of its rights, obligations or rights
and obligations under this Credit Agreement (including all or a
portion of its Commitment or its Loans); provided, however, that
(i) such Lender's obligations under this Credit Agreement shall
remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of
such obligations, (iii) the participant shall be entitled to the
benefit of the yield protection provisions contained in Sections
3.6 through 3.12, inclusive, and the right of set-off contained
in Section 11.2, and (iv) the Credit Parties shall continue to
deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Credit Agreement, and
such Lender shall retain the sole right to enforce the
obligations of the Credit Parties relating to the Guaranteed
Obligations owing to such Lender and to approve any amendment,
modification, or waiver of any provision of this Credit Agreement
(other than amendments, modifications, or waivers decreasing the
amount of principal of or the rate at which interest is payable
on such Loans or Notes, extending any scheduled principal payment
date or date fixed for the payment of interest on such Loans or
Notes, or extending its Commitment).
(f) Notwithstanding any other provision set forth in this
Credit Agreement, any Lender may at any time assign and pledge
all or any portion of its Loans and its Notes to any Federal
Reserve Bank as collateral security pursuant to Regulation A and
any Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Lender from its
obligations hereunder.
(g) Any Lender may furnish any information concerning the
members of the Consolidated Group in the possession of such
Lender from time to time to assignees and participants (including
prospective assignees and participants), subject, however, to the
provisions of Section 11.14 hereof.
11.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Administrative Agent
or any Lender in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of
dealing between the Administrative Agent or any Lender and any of
the Credit Parties shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or privilege
hereunder or under any other Credit Document preclude any other
or further exercise thereof or the exercise of any other right,
power or privilege hereunder or thereunder. The rights and
remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Administrative Agent or any Lender
would otherwise have. No notice to or demand on any Credit Party
in any case shall entitle the Credit Parties to any other or
further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Administrative Agent or
the Lenders to any other or further action in any circumstances
without notice or demand.
11.5 Expenses; Indemnification.
(a) The Credit Parties jointly and severally agree to pay
on demand all out-of-pocket costs and expenses of the
Administrative Agent, the Syndication Agent and the Documentation
Agent (collectively, the "Agents") in connection with the
syndication, preparation, execution, delivery, administration,
modification, and amendment of this Credit Agreement, the other
Credit Documents, and the other documents to be delivered
hereunder, including, without limitation, the reasonable fees and
expenses of counsel for the Agents (including the cost of
internal counsel) with respect thereto and with respect to
advising the Agents as to their respective rights and
responsibilities under the Credit Documents. The Credit Parties
further jointly and severally agree to pay on demand all
out-of-pocket costs and expenses of the Agents and the Lenders,
if any (including, without limitation, reasonable attorneys' fees
and expenses and the cost of internal counsel), in connection
with the enforcement (whether through negotiations, legal
proceedings, or otherwise) of the Credit Documents and the other
documents to be delivered thereunder.
(b) The Credit Parties jointly and severally agree to
indemnify and hold harmless each Agent and each Lender and each
of their Affiliates and their respective officers, directors,
employees, agents, and advisors (each, an "Indemnified Party")
from and against any and all claims, damages, losses,
liabilities, costs, and expenses (including, without limitation,
reasonable attorneys' fees) that may be incurred by or asserted
or awarded against any Indemnified Party, in each case arising
out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation, or
proceeding or preparation of defense in connection therewith) the
Credit Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Loans, except
to the extent such claim, damage, loss, liability, cost, or
expense is found in a final, non-appealable judgment by a court
of competent jurisdiction to have resulted from such Indemnified
Party's gross negligence, willful misconduct or breach of its
obligations under this Credit Agreement. In the case of an
investigation, litigation or other proceeding to which the
indemnity in this Section 11.5 applies, such indemnity shall be
effective whether or not such investigation, litigation or
proceeding is brought by any of the Credit Parties, their
respective directors, shareholders or creditors or an Indemnified
Party or any other Person or any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated
hereby are consummated. The Credit Parties agree not to assert
any claim against any Agent, any Lender, any of their Affiliates,
or any of their respective directors, officers, employees,
attorneys, agents, and advisors, on any theory of liability, for
special, indirect, consequential, or punitive damages arising out
of or otherwise relating to the Credit Documents, any of the
transactions contemplated herein or the actual or proposed use of
the proceeds of the Loans.
(c) Without prejudice to the survival of any other
agreement of the Credit Parties hereunder, the agreements and
obligations of the Credit Parties contained in this Section 11.5
shall survive the repayment of the Loans, LOC Obligations and
other obligations under the Credit Documents and the termination
of the Commitments hereunder.
11.6 Amendments, Waivers and Consents.
Neither this Credit Agreement nor any other Credit Document
nor any of the terms hereof or thereof may be amended, changed,
waived, discharged or terminated unless such amendment, change,
waiver, discharge or termination is in writing entered into by,
or approved in writing by, the Required Lenders and the Borrower,
provided, however, that:
(a) without the consent of each Lender affected
thereby, neither this Credit Agreement nor any other Credit
Document may be amended to
(i) extend the final maturity of any Loan or of
any reimbursement obligation, or any portion thereof,
arising from drawings under Letters of Credit,
(ii) reduce the rate or extend the time of payment
of interest (other than as a result of waiving the
applicability of any post-default increase in interest
rates) thereon or Fees hereunder,
(iii) reduce or waive the principal amount of any
Loan or of any reimbursement obligation, or any portion
thereof, arising from drawings under Letters of Credit,
(iv) increase the Commitment of a Lender over the
amount thereof in effect (it being understood and
agreed that a waiver of any Default or Event of Default
or mandatory reduction in the Commitments shall not
constitute a change in the terms of any Commitment of
any Lender),
(v) except as the result of or in connection with
a dissolution, merger or disposition of a member of the
Consolidated Group permitted under Section 8.5, release
the Borrower or substantially all of the Guarantors
from its or their obligations under the Credit
Documents,
(vi) except as the result of or in connection with
an Asset Disposition expressly permitted hereunder,
release all or substantially all of the collateral,
(vii) amend, modify or waive any provision of this
Section 11.6 or Section 3.6, 3.7, 3.8, 3.9, 3.10, 3.11,
3.12, 3.13, 3.14, 3.15, 9.1(a), 11.2, 11.3, 11.5 or
11.9,
(viii) reduce any percentage specified in, or
otherwise modify, the definition of Required Lenders, or
(ix) consent to the assignment or transfer by the
Borrower or all or substantially all of the other
Credit Parties of any of its or their rights and
obligations under (or in respect of) the Credit
Documents except as permitted thereby;
(b) without the consent of the Administrative Agent,
no provision of Section 10 may be amended; and
(c) without the consent of the Issuing Lender, no
provision of Section 2.2 may be amended.
Notwithstanding the fact that the consent of all the Lenders
is required in certain circumstances as set forth above, (x)
each Lender is entitled to vote as such Lender sees fit on
any bankruptcy reorganization plan that affects the Loans,
and each Lender acknowledges that the provisions of Section
1126(c) of the Bankruptcy Code supersedes the unanimous
consent provisions set forth herein and (y) the Required
Lenders may consent to allow a Credit Party to use cash
collateral in the context of a bankruptcy or insolvency
proceeding.
11.7 Counterparts.
This Credit Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall
be an original, but all of which shall constitute one and the
same instrument. It shall not be necessary in making proof of
this Credit Agreement to produce or account for more than one
such counterpart for each of the parties hereto. Delivery by
facsimile by any of the parties hereto of an executed counterpart
of this Credit Agreement shall be as effective as an original
executed counterpart hereof and shall be deemed a representation
that an original executed counterpart hereof will be delivered.
11.8 Headings.
The headings of the sections and subsections hereof are
provided for convenience only and shall not in any way affect the
meaning or construction of any provision of this Credit Agreement.
11.9 Survival.
All indemnities set forth herein, including, without
limitation, in Section 2.6(h), 3.11, 3.12, 10.5 and 11.5 shall
survive the execution and delivery of this Credit Agreement, the
making of the Loans, the issuance of the Letters of Credit, the
repayment of the Loans, LOC Obligations and other obligations
under the Credit Documents and the termination of the Commitments
hereunder, and all representations and warranties made by the
Credit Parties herein shall survive delivery of the Notes and the
making of the Loans hereunder.
11.10 Governing Law; Submission to Jurisdiction; Venue.
(a) THIS CREDIT AGREEMENT AND, UNLESS OTHERWISE EXPRESSLY
PROVIDED THEREIN, THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NORTH CAROLINA. Any legal action or
proceeding with respect to this Credit Agreement or any other
Credit Document may be brought in the State or Federal courts
located in Charlotte, North Carolina, and, by execution and
delivery of this Credit Agreement, each of the Credit Parties
hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the nonexclusive
jurisdiction of such courts. Each of the Credit Parties further
irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address set out for notices
pursuant to Section 11.1, such service to become effective three
(3) days after such mailing. Nothing herein shall affect the
right of the Administrative Agent or any Lender to serve process
in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against any Credit Party in
any other jurisdiction.
(b) Each of the Credit Parties hereby irrevocably waives
any objection which it may now or hereafter have to the laying of
venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Credit Agreement or any other
Credit Document brought in the courts referred to in subsection
(a) above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an
inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE
ADMINISTRATIVE AGENT, THE LENDERS AND EACH OF THE CREDIT PARTIES
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
11.11 Severability.
If any provision of any of the Credit Documents is
determined to be illegal, invalid or unenforceable, such
provision shall be fully severable and the remaining provisions
shall remain in full force and effect and shall be construed
without giving effect to the illegal, invalid or unenforceable
provisions.
11.12 Entirety.
This Credit Agreement together with the other Credit
Documents represent the entire agreement of the parties hereto
and thereto, and supersede all prior agreements and
understandings, oral or written, if any, including any commitment
letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
11.13 Binding Effect; Termination.
(a) This Credit Agreement shall become effective at such
time on or after the Closing Date when it shall have been
executed by each Credit Party and the Administrative Agent, and
the Administrative Agent shall have received copies hereof
(telefaxed or otherwise) which, when taken together, bear the
signatures of each Lender, and thereafter this Credit Agreement
shall be binding upon and inure to the benefit of each Credit
Party, the Administrative Agent and each Lender and their
respective successors and assigns.
(b) The term of this Credit Agreement shall be until no
Loans, LOC Obligations or any other amounts payable hereunder or
under any of the other Credit Documents shall remain outstanding,
no Letters of Credit shall be outstanding, all of the Guaranteed
Obligations have been irrevocably satisfied in full and all of
the Commitments hereunder shall have expired or been terminated.
11.14 Confidentiality.
The Administrative Agent and each Lender (each, a "Lending
Party") agrees to keep confidential any information furnished or
made available to it by the Credit Parties pursuant to this
Credit Agreement that is marked confidential; provided that
nothing herein shall prevent any Lending Party from disclosing
such information (a) to any other Lending Party or any Affiliate
of any Lending Party, or any officer, director, employee, agent,
or advisor of any Lending Party or Affiliate of any Lending
Party, (b) to any other Person if reasonably incidental to the
administration of the credit facility provided herein, (c) as
required by any law, rule, or regulation, (d) upon the order of
any court or administrative agency, (e) upon the request or
demand of any regulatory agency or authority, (f) that is or
becomes available to the public or that is or becomes available
to any Lending Party other than as a result of a disclosure by
any Lending Party prohibited by this Credit Agreement, (g) in
connection with any litigation to which such Lending Party or any
of its Affiliates may be a party, (h) to the extent necessary in
connection with the exercise of any remedy under this Credit
Agreement or any other Credit Document, (i) to the National
Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that
requires access to information about a Lender's investment
portfolio in connection with ratings issued with respect to such
Lender, (j) to any direct or indirect contractual counterparty in
swap agreements or such contractual counterparty's professional
advisor (so long as such contractual counterparty or professional
advisor to such contractual counterparty (i) has been approved in
writing by the Borrower and (ii) agrees in a writing enforceable
by the Borrower to be bound by the provisions of this Section
11.14) and (k) subject to provisions substantially similar to
those contained in this Section 11.14, to any actual or proposed
participant or assignee.
11.15 Source of Funds.
Each of the Lenders hereby represents and warrants to the
Borrower that at least one of the following statements is an
accurate representation as to the source of funds to be used by
such Lender in connection with the financing hereunder:
(a) no part of such funds constitutes assets allocated
to any separate account maintained by such Lender in which
any employee benefit plan (or its related trust) has any
interest;
(b) to the extent that any part of such funds
constitutes assets allocated to any separate account
maintained by such Lender, such Lender has disclosed to the
Borrower the name of each employee benefit plan whose assets
in such account exceed 10% of the total assets of such
account as of the date of such purchase (and, for purposes
of this subsection (b), all employee benefit plans
maintained by the same employer or employee organization are
deemed to be a single plan);
(c) to the extent that any part of such funds
constitutes assets of an insurance company's general
account, such insurance company has complied with all of the
requirements of the regulations issued under Section
401(c)(1)(A) of ERISA; or
(d) such funds constitute assets of one or more
specific benefit plans which such Lender has identified in
writing to the Borrower.
As used in this Section 11.15, the terms "employee benefit plan"
and "separate account" shall have the respective meanings
assigned to such terms in Section 3 of ERISA.
11.16 Conflict.
To the extent that there is a conflict or inconsistency
between any provision hereof, on the one hand, and any provision
of any Credit Document, on the other hand, this Credit Agreement
shall control.
[Signature Page to Follow]
<PAGE>
REHABCARE GROUP, INC.
CREDIT AGREEMENT
REHABCARE GROUP, INC.
CREDIT AGREEMENT
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Credit Agreement to be duly executed and
delivered as of the date first above written.
BORROWER: REHABCARE GROUP, INC.,
a Delaware Corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Senior Vice President, Finance
GUARANTORS: REHABCARE GROUP THERAPY SERVICES, INC.,
a Missouri corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
SALT LAKE PHYSICAL THERAPY ASSOCIATES, INC.,
a Utah corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
ALLSTAFF, INC.,
an Iowa corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
WESLEY MEDICAL RESOURCES, INC.,
a California corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
[Signature Pages Continue]
<PAGE>
HEALTHCARE STAFFING SOLUTIONS, INC.,
a Massachusetts corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
EAI HEALTHCARE STAFFING SOLUTIONS, INC.,
a Delaware corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
REHABCARE GROUP EAST, INC.,
a Delaware corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
REHABCARE GROUP MANAGEMENT SERVICES, INC.,
a Delaware corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
REHABCARE TEXAS HOLDINGS, INC.,
a Delaware corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
HEALTH TOUR MANAGEMENT, INC.,
a Delaware corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
[Signature Pages Continue]
<PAGE>
REHABCARE GROUP OF CALIFORNIA, INC.,
a Delaware corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
STARMED HEALTH PERSONNEL, INC.,
a Delaware corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
THERAPEUTIC SYSTEMS, LTD.,
an Illinois corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
STARMED MANAGEMENT, L.L.C.,
a Delaware limited liability company
By: Healthcare Staffing Solutions, Inc.,
a Massachusetts corporation, as its
Member
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
REHABCARE GROUP OF TEXAS, L.P.,
a Texas limited liability company
By: Rehabcare Group, Inc.,
a Delaware corporation, as its General Partner
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Senior Vice President, Finance
[Signature Pages Continue]
<PAGE>
LENDERS: BANK OF AMERICA, N.A.,
individually in its capacity as a Lender
and in its capacity as Administrative Agent
By: /s/ Steven Kolderup
Name: Steven Kolderup
Title: Vice President
FIRST UNION NATIONAL BANK,
individually in its capacity as a Lender
and in its capacity as Syndication Agent
By: /s/ Keith S. Law
Name: Keith S. Law
Title: Vice President
FIRSTAR BANK N.A.,
individually in its capacity as a Lender
and in its capacity as Documentation Agent
By: /s/ L. Alec Blanc III
Name: L. Alec Blanc III
Title: Senior Vice President
CITIZENS BANK OF MASSACHUSETTS
By: /s/ C. Andrew Picullel
Name: C. Andrew Picullel
Title: Vice President
CREDIT LYONNAIS
NEW YORK BRANCH
By: /s/ Charles H. Heidsieck
Name: Charles H. Heidsieck
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Sarah Rusher
Name: Sarah Rusher
Title: Vice President
HARRIS TRUST AND SAVINGS BANK
By: /s/ Gloria Compean-Endicott
Name: Gloria Compean-Endicott
Title: Vice President
COMERICA BANK
By: /s/ Colleen M. Murphy
Name: Colleen M. Murphy
Title: Vice President
<PAGE>
Schedule 2.1
LENDER AND COMMITMENTS
Revolving Commitments
Revolving Revolving LOC
Commitment Committed Committed
Lender Percentage Amount Amount
Bank of America, N.A. 16.000% $20,000,000.00 $1,600,000.00
First Union National 16.000% $20,000,000.00 $1,600,000.00
Bank
Firstar Bank N.A. 16.000% $20,000,000.00 $1,600,000.00
Citizens Bank 12.000% $15,000,000.00 $1,200,000.00
Credit Lyonnais 12.000% $15,000,000.00 $1,200,000.00
New York Branch
Harris Trust and 10.000% $12,500,000.00 $1,000,000.00
Savings Bank
LaSalle Bank 10.000% $12,500,000.00 $1,000,000.00
National Association
Comerica Bank 8.000% $10,000,000.00 $800,000.00
Total 100.000% $125,000,000.00 $10,000,000.00
<PAGE>
Schedule 2.2(a)(i)
FORM OF NOTICE OF BORROWING
Bank of America, N.A.,
as Administrative Agent for the Lenders
901 Main Street
Dallas, Texas 75202
Attn: Deanna Betik
Agency Credit Services
Re: Credit Agreement dated as of August 29, 2000 (as
amended and modified, the "Credit Agreement") among
RehabCare Group, Inc., a Delaware corporation (the
"Borrower"), and certain Subsidiaries and Affiliates of
the Borrower, as guarantors, the Lenders identified
therein and Bank of America, N.A., as Administrative
Agent. Terms used but not otherwise defined herein
shall have the meanings provided in the Credit
Agreement.
Ladies and Gentlemen:
The Borrower hereby gives notice pursuant to Section 2.2 of
the Credit Agreement that it requests a Revolving Loan or
Swingline Loan advance under the Credit Agreement as shown below,
and in connection therewith sets forth below the terms on which
such advance is requested to be made:
Loan Advance Requested
Revolving Loan
Swingline Loan
(A) Date of Borrowing (which is a Business Day)_______________________
(B) Principal Amount of Borrowing _______________________
(C) Interest rate basis _______________________
(D) Interest Period and the last day thereof _______________________
The Borrower hereby affirms that the conditions to the
advances set out in Section 5.2 of the Credit Agreement have been
satisfied, including reaffirmation that the representations and
warranties are true and correct in all material respects as of
the date hereof (except for those which expressly relate to an
earlier date).
RehabCare Group, Inc., a
Delaware corporation
By:
Name:
Title:
<PAGE>
Schedule 2.2(a)(ii)
FORM OF NOTICE OF REQUEST OF LETTER OF CREDIT
Bank of America, N.A.,
as Administrative Agent for the Lenders
901 Main Street
Dallas, Texas 75202
Attn: Deanna Betik
Agency Credit Services
Re: Credit Agreement dated as of August 29, 2000 (as
amended and modified, the "Credit Agreement") among
RehabCare Group, Inc., a Delaware corporation (the
"Borrower"), and certain Subsidiaries and Affiliates of
the Borrower, as guarantors, the Lenders identified
therein and Bank of America, N.A., as Administrative
Agent. Terms used but not otherwise defined herein
shall have the meanings provided in the Credit
Agreement.
Ladies and Gentlemen:
The undersigned, pursuant to Section 2.2(b) of the Credit
Agreement, hereby requests that the following Letter of Credit be
issued on August 29, 2000 as follows:
(1) Account Party:
(2) For use by:
(3) Beneficiary:
(4) Face Amount of Letter of Credit:
(5) Date of Issuance:
Delivery of Letter of Credit should be made as follows:
The Borrower hereby affirms that the conditions to the
issuance or extension of a Letter of Credit set out in Section
5.2 of the Credit Agreement have been satisfied, including
reaffirmation that the representations and warranties are true
and correct in all material respects as of the date hereof
(except for those which expressly relate to an earlier date).
Very truly yours,
RehabCare Group, Inc., a Delaware
corporation
By:
Name:
Title:
<PAGE>
Schedule 2.5
FORM OF REVOLVING NOTE
August 29, 2000
FOR VALUE RECEIVED, the undersigned Borrower hereby promises
to pay to the order of ______________________, its successors and
assigns (the "Lender"), on or before the Termination Date to the
office of the Administrative Agent in immediately available funds
as provided in the Credit Agreement,
(i) in the case of Revolving Loans, the Lender's
Revolving Committed Amount or, if less, the aggregate unpaid
principal amount of all Revolving Loans owing to the Lender;
and
(ii) in the case of Swingline Loans, if the Lender is
the Swingline Lender, the Swingline Committed Amount or, if
less, the aggregate unpaid principal amount of all Swingline
Loans owing to the Swingline Lender;
together with interest thereon at the rates and as provided in
the Credit Agreement.
This Revolving Note is one of the Revolving Notes referred
to in the Credit Agreement dated as of the date hereof (as
amended and modified, the "Credit Agreement") among the Borrower,
the Guarantors and Lenders identified therein, and Bank of
America, N.A., as Administrative Agent. Terms used but not
otherwise defined herein shall have the meanings provided in the
Credit Agreement.
The holder may endorse and attach a schedule to reflect
borrowings evidenced by this Revolving Note and all payments and
prepayments thereon; provided that any failure to endorse such
information shall not affect the obligation of the Borrower to
pay amounts evidenced hereby.
Upon the occurrence of an Event of Default, all amounts
evidenced by this Revolving Note may, or shall, become
immediately due and payable as provided in the Credit Agreement
without presentment, demand, protest or notice of any kind, all
of which are waived by the Borrower. In the event payment of
amounts evidenced by this Revolving Note is not made at any
stated or accelerated maturity, the Borrower agrees to pay, in
addition to principal and interest, all costs of collection,
including reasonable attorneys' fees.
This Revolving Note and the Loans and amounts evidenced
hereby may be transferred only as provided in the Credit
Agreement.
This Revolving Note shall be governed by, and construed and
interpreted in accordance with, the law of the State of North
Carolina.
IN WITNESS WHEREOF, the Borrower has caused this Note to be
duly executed by its duly authorized officer as of the day and
year first above written.
REHABCARE GROUP, INC., a Delaware
corporation
By:
Name:
Title:
Schedule 2.6(b)
EXISTING LETTERS OF CREDIT
<PAGE>
Schedule 3.2
FORM OF NOTICE OF CONTINUATION/CONVERSION
Bank of America, N.A.,
as Administrative Agent for the Lenders
901 Main Street
Dallas, Texas 75202
Attn: Deanna Betik
Agency Credit Services
Re: Credit Agreement dated as of August 29, 2000 (as amended and
modified, the "Credit Agreement") among RehabCare Group,
Inc. a Delaware corporation (the "Borrower"), and certain
Subsidiaries and Affiliates of the Borrower, as guarantors,
the Lenders identified therein and Bank of America, N.A., as
Administrative Agent. Terms used but not otherwise defined
herein shall have the meanings provided in the Credit
Agreement.
Ladies and Gentlemen:
The Borrower hereby gives notice pursuant to Section 3.2 of
the Credit Agreement that it requests an Continuation or
Conversion of a Revolving Loan outstanding under the Credit
Agreement, and in connection therewith sets forth below the terms
on which such Continuation or Conversion is requested to be made:
(A) Loan Type
_______________________
(B) Date of Continuation or Conversion
(which is the last day of the applicable Interest Period)
_______________________
(C) Principal Amount of Continuation or Conversion
_______________________
(D) Interest rate basis
_______________________
(E) Interest Period and the last day thereof
______________________
The Borrower hereby affirms that the conditions to extension
or conversion of a Revolving Loan set out in Sections 3.2 and 5.2
of the Credit Agreement have been satisfied, including
reaffirmation that the representations and warranties are true
and correct in all material respects as of the date hereof
(except for those which expressly relate to an earlier date).
RehabCare Group, Inc., a Delaware
corporation
By:
Name:
Title:
<PAGE>
Schedule 5.1(f)(v)
Form of Officer's Certificate
Pursuant to Section 5.1(h)(v) of the Credit Agreement (the
"Credit Agreement"), dated as of August 29, 2000, by and among
RehabCare Group, Inc., a Delaware corporation (the "Borrower"),
and certain Subsidiaries and Affiliates of the Borrower, as
guarantors, the Lenders identified therein and Bank of America,
N.A., as Administrative Agent, the undersigned, ___________,
Secretary of _______________ (the "Corporation"), hereby
certifies as follows:
1. Attached hereto as Annex I is a true and complete copy
of resolutions duly adopted by the board of directors of the
Corporation on _______________________, ____. The attached
resolutions have not been rescinded or modified and remain in
full force and effect. The attached resolutions are the only
corporate proceedings of the Corporation now in force relating to
or affecting the matters referenced therein.
2. Attached hereto as Annex II is a true and complete copy
of the Bylaws of the Corporation as in effect on the date hereof.
3. Attached hereto as Annex III is a true and complete
copy of the Certificate of Incorporation of the Corporation and
all amendments thereto as in effect on the date hereof.
4. Each of the following persons is now a duly elected and
qualified officer of the Corporation, holding the office(s)
indicated, and the signature appearing opposite his/her name
below is his/her true and genuine signature, and such officer is
duly authorized to execute and deliver on behalf of the
Corporation, the Credit Agreement, the Notes and the other Credit
Documents and to act as an Executive Officer on behalf of the
Corporation under the Credit Agreement.
Name Office Signature
__________________________ _________________________ _________________________
__________________________ _________________________ _________________________
IN WITNESS WHEREOF, the undersigned has hereunto set his/her
name and affixed the corporate seal of the Corporation.
_____________________________
Secretary
Date: August 29, 2000
(CORPORATE SEAL)
I, _____________________, Vice President of the Corporation,
hereby certify that _______________, whose genuine signature
appears above, is, and has been at all times since
______________, a duly elected, qualified and acting Secretary of
the Corporation.
__________________________________
Vice President
August 29, 2000
<PAGE>
Schedule 6.6
LITIGATION
<PAGE>
Schedule 6.8
LIENS
<PAGE>
Schedule 6.9
INTELLECTUAL PROPERTY
<PAGE>
Schedule 6.14
SUBSIDIARIES
<PAGE>
Schedule 6.18
LABOR MATTERS
<PAGE>
Schedule 6.20(a)
LOCATIONS OF OWNED AND LEASED PROPERTIES
<PAGE>
Schedule 6.20(b)
LOCATIONS OF TANGIBLE PERSONAL PROPERTY
<PAGE>
Schedule 6.20(c)
LOCATION OF CHIEF EXECUTIVE OFFICE/
PRINCIPAL PLACE OF BUSINESS
<PAGE>
Schedule 7.1(c)
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
For the fiscal quarter ended _________________, ___.
I, ______________________, [Title] of RehabCare Group, Inc.
(the "Borrower") hereby certify that, to the best of my knowledge
and belief, with respect to that certain Credit Agreement dated
as of August 29, 2000 (as amended, modified, restated or
supplemented from time to time, the "Credit Agreement"; all of
the defined terms in the Credit Agreement are incorporated herein
by reference) among the Borrower, the Guarantors and Lenders
party thereto, and Bank of America, N.A., as Administrative Agent:
a. The company-prepared financial statements which
accompany this certificate are true and correct in all
material respects and have been prepared in accordance
with GAAP applied on a consistent basis, subject to
changes resulting from normal year-end audit
adjustments.
b. Since ___________ (the date of the last similar
certification, or, if none, the Closing Date) no
Default or Event of Default has occurred under the
Credit Agreement.
Delivered herewith are detailed calculations demonstrating
compliance by the Credit Parties with the financial covenants
contained in Section 7.11 of the Credit Agreement as of the end
of the fiscal period referred to above.
This ______ day of ___________, 20__.
RehabCare Group, Inc., a Delaware
corporation
By:
Name:
Title:
<PAGE>
Attachment to Officer's Compliance Certificate
Computation of Financial Covenants
<PAGE>
Schedule 7.6
INSURANCE
<PAGE>
Schedule 7.12
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT (the "Agreement"), dated as of
_____________, ___, is by and between _____________________, a
___________________ (the "Subsidiary"), and Bank of America,
N.A., in its capacity as Administrative Agent under that certain
Credit Agreement (as it may be amended, modified, restated or
supplemented from time to time, the "Credit Agreement"), dated as
of August 29, 2000, among RehabCare Group, Inc., a Delaware
corporation (the "Borrower"), and certain Subsidiaries and
Affiliates of the Borrower, as guarantors, the Lenders identified
therein and Bank of America, N.A., as Administrative Agent. All
of the defined terms in the Credit Agreement are incorporated
herein by reference.
The Credit Parties are required by Section 7.12 of the
Credit Agreement to cause the Subsidiary to become a "Guarantor".
Accordingly, the Subsidiary hereby agrees as follows with
the Administrative Agent, for the benefit of the Lenders:
1. The Subsidiary hereby acknowledges, agrees and confirms
that, by its execution of this Agreement, the Subsidiary will be
deemed to be a party to the Credit Agreement and a "Guarantor"
for all purposes of the Credit Agreement, and shall have all of
the obligations of a Guarantor thereunder as if it had executed
the Credit Agreement. The Subsidiary hereby ratifies, as of the
date hereof, and agrees to be bound by, all of the terms,
provisions and conditions applicable to the Guarantors contained
in the Credit Agreement. Without limiting the generality of the
foregoing terms of this paragraph 1, the Subsidiary hereby (i)
jointly and severally together with the other Guarantors,
guarantees to each Lender and the Administrative Agent, as
provided in Section 4 of the Credit Agreement, the prompt payment
and performance of the Guaranteed Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by
acceleration or otherwise) strictly in accordance with the terms
thereof.
2. The Subsidiary hereby acknowledges, agrees and confirms
that, by its execution of this Agreement, the Subsidiary will be
deemed to be a party to the Security Agreement, and shall have
all the obligations of an "Grantor" (as such term is defined in
the Security Agreement) thereunder as if it had executed the
Security Agreement. The Subsidiary hereby ratifies, as of the
date hereof, and agrees to be bound by, all of the terms,
provisions and conditions contained in the Security Agreement.
Without limiting generality of the foregoing terms of this
paragraph 2, the Subsidiary hereby grants to the Administrative
Agent, for the benefit of the Lenders, a continuing security
interest in, and a right of set off against any and all right,
title and interest of the Subsidiary in and to the Collateral (as
such term is defined in Section 2 of the Security Agreement) of
the Subsidiary. The Subsidiary hereby represents and warrants to
the Administrative Agent that:
(i) The Subsidiary's chief executive office and chief
place of business are (and for the prior four months have
been) located at the locations set forth on Schedule 1
attached hereto and the Subsidiary keeps its books and
records at such locations.
(ii) The type of Collateral owned by the Subsidiary and
the location of all Collateral owned by the Subsidiary is as
shown on Schedule 2 attached hereto.
(iii)The Subsidiary's legal name is as shown in this
Agreement and the Subsidiary has not in the past four months
changed its name, been party to a merger, consolidation or
other change in structure or used any tradename except as
set forth in Schedule 3 attached hereto.
(iv) The patents and trademarks listed on Schedule 4
attached hereto constitute all of the registrations and
applications for the patents and trademarks owned by the
Subsidiary.
3. The Subsidiary hereby acknowledges, agrees and confirms
that, by its execution of this Agreement, the Subsidiary will be
deemed to be a party to the Pledge Agreement, and shall have all
the obligations of a "Pledgor" thereunder as if it had executed
the Pledge Agreement. The Subsidiary hereby ratifies, as of the
date hereof, and agrees to be bound by, all the terms, provisions
and conditions contained in the Pledge Agreement. Without
limiting the generality of the foregoing terms of this paragraph
3, the Subsidiary hereby pledges and assigns to the
Administrative Agent, for the benefit of the Lenders, and grants
to the Administrative Agent, for the benefit of the Lenders, a
continuing security interest in any and all right, title and
interest of the Subsidiary in and to Pledged Shares (as such term
is defined in Section 2 of the Pledge Agreement) listed on
Schedule 5 attached hereto and the other Pledged Collateral (as
such term is defined in Section 2 of the Pledge Agreement).
4. The address of the Subsidiary for purposes of all
notices and other communications is ____________________,
____________________________, Attention of ______________
(Facsimile No. ____________).
5. The Subsidiary hereby waives acceptance by the
Administrative Agent and the Lenders of the guaranty by the
Subsidiary under Section 4 of the Credit Agreement upon the
execution of this Agreement by the Subsidiary.
6. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all
of which when taken together shall constitute one contract.
7. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of North
Carolina.
IN WITNESS WHEREOF, the Subsidiary has caused this Joinder
Agreement to be duly executed by its authorized officers, and the
Administrative Agent, for the benefit of the Lenders, has caused
the same to be accepted by its authorized officer, as of the day
and year first above written.
[SUBSIDIARY]
By:
Name:
Title:
Acknowledged and accepted:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
Name:
Title:
<PAGE>
Schedule 1
TO FORM OF JOINDER AGREEMENT
[Chief Executive Office and
Chief Place of Business of Subsidiary]
<PAGE>
Schedule 2
TO FORM OF JOINDER AGREEMENT
[Types and Locations of Collateral]
<PAGE>
Schedule 3
TO FORM OF JOINDER AGREEMENT
[Tradenames]
<PAGE>
Schedule 4
TO FORM OF JOINDER AGREEMENT
[Patents and Trademarks]
<PAGE>
Schedule 5
TO FORM OF JOINDER AGREEMENT
[Pledged Shares]
<PAGE>
Schedule 8.1
INDEBTEDNESS
<PAGE>
Schedule 8.6
INVESTMENTS
<PAGE>
Schedule 11.1
LENDERS' ADDRESSES
Credit Contact Operations Contact
Bank of America, N.A. Bank of America, N.A.
Deanna Betik Kristine Hyde
901 Main Street 231 South LaSalle Street
Dallas, TX 75202 Chicago, IL 60604
Ph: 214-209-3259 [email protected]
Fx: 214-290-9414 Ph: 312-828-1657
Fx: 877-206-8412
LaSalle Bank National Association LaSalle Bank National Association
Sara H. Rusher Maxine Peterson
135 S. LaSalle 135 S. LaSalle
Chicago, IL 60603 Chicago, IL 60603
[email protected]
Ph: 312-904-6885 Ph: 312-904-8113
Fx: 312-904-6457 Fx: 312-904-6457
Harris Trust and Savings Bank Harris Trust and Savings Bank
Gloria Compean Julia Rogers
111 W. Monroe St. , 5W 111 W. Monroe St., 17W
Chicago, IL 60603 Chicago, IL 60603
[email protected]
Ph: 312-461-2324 Ph: 312-461-2106
Fx: 312-461-7365 Fx: 312-293-4798
Comerica Bank Comerica Bank
Colleen M. Murphy Denise Muscarella
Two Mid America Plaza MC 3266
Suite 616 500 Woodward Avenue
Oakbrook Terrace, IL 60181 Detroit, MI 48226
Ph: 630-645-7376 Ph: 313-222-7805
Fx: 630-575-2164 Fx: 313-222-3420
Citizens Bank of Massachusetts Citizens Bank of Massachusetts
C. Andrew Picullel 40 Cabot Rd.
100 Summer St. Medford, MA
Boston, MA Ph: 781-633-4392
Ph: 617-422-8410 Fx: 781-391-8450
Fx: 617-422-8533
Credit Lyonnais New York Branch Credit Lyonnais New York Branch
John C. Oberle Madeline Gonzalez
1301 Avenue of the Americas 1301 Avenue of the Americas
New York, NY 10019 New York, NY 10019
[email protected] [email protected]
Ph: 212-261-7344 Ph: 212-261-7297
Fx: 212-261-3440 Fx: 212-261-3181
Firstar Bank N.A. Firstar Bank N.A.
L. Alec Blanc Connie Sweeney
One Firstar PL, SL-TW-11SI Firstar Omml. Loans
St. Louis, MO 63101 1850 Osborn Avenue
[email protected] Oshkosh, WI 54901
Ph: 314-418-3922 Ph: 920-426-7604
Fx: 314-418-8394 Fx: 920-426-7954
First Union National Bank First Union National Bank
Derick Krach Tonya Rhyne
150 4th Avenue, North 201 S. College Street
2nd Floor Charlotte Plaza
Nashville, TN 37219 Charlotte, NC 28288-1183
[email protected] [email protected]
Ph: 615-251-0718 Ph: 704-383-5295
Fx: 615-251-9461 Fx: 704-383-7201
<PAGE>
Schedule 11.3(b)
FORM OF ASSIGNMENT AND ACCEPTANCE
THIS ASSIGNMENT AND ACCEPTANCE, dated as of
, (this "Assignment"), is entered
into between THE LENDER IDENTIFIED ON THE SIGNATURE PAGES AS THE
"ASSIGNOR" (the "Assignor") and THE PARTY IDENTIFIED ON THE
SIGNATURE PAGES AS "ASSIGNEE" ("Assignee").
Reference is made to the Credit Agreement dated as of August 29,
2000 (as amended and modified, the "Credit Agreement") among
RehabCare Group, Inc., a Delaware corporation (the "Borrower"),
and certain Subsidiaries and Affiliates of the Borrower, as
guarantors, the Lenders identified therein and Bank of America,
N.A., as Administrative Agent. Terms defined in the Credit
Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns to the Assignee,
without recourse and without representation or warranty except as
expressly set forth herein, and the Assignee hereby purchases and
assumes from the Assignor, effective as of the Effective Date
shown below, those rights and interests of the Assignor under the
Credit Agreement and the other Credit Documents identified on
Schedule 1 hereto (the "Assigned Interests"), together with
unpaid interest and fees relating to the Assigned Interests
accruing from the Effective Date. After giving effect to such
sale and assignment, the Commitment of, and the amount of the
Loans owing to, the Assignor and the Assignee will be as set
forth on Schedule 1 hereto. Schedule 2.1(a) is deemed modified
and amended to the extent necessary to give effect to this
Assignment.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse
claim; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit
Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Documents or any
other instrument or document furnished pursuant thereto; (iii)
makes no representation or warranty and assumes no responsibility
with respect to the financial condition of any Credit Party or
the performance or observance by any Credit Party of any of its
obligations under the Credit Documents or any other instrument or
document furnished pursuant thereto; and (iv) attaches the Notes
held by the Assignor and requests that the Administrative Agent
exchange such Notes for new Notes payable to the order of the
Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto and to the Assignor in an amount equal
to the Commitment retained by the Assignor, if any, as specified
on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy
of the Credit Documents, together with copies of the financial
statements referred to in Section 7.1 of the Credit Agreement and
such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this
Assignment; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Assignor or any other
Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit
Agreement and the other Credit Documents; (iii) confirms that it
is an Eligible Assignee; (iv) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under the Credit
Agreement and the other Credit Documents as are delegated to the
Administrative Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; (v)
agrees that it will perform in accordance with their terms all of
the obligations that by the terms of the Credit Agreement are
required to be performed by it as a Lender; and (vi) attaches any
U.S. Internal Revenue Service or other forms required under
Section 3.11.
4. Following the execution of this Assignment, it will be
delivered to the Administrative Agent for acceptance and
recording by the Administrative Agent. The effective date for
this Assignment shall be the Effective Date shown below.
5. Upon such acceptance and recording by the
Administrative Agent, as of the Effective Date, (i) the Assignee
shall be a party to the Credit Agreement and, to the extent
provided in this Assignment, have the rights and obligations of a
Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the
Administrative Agent, from and after the Effective Date, the
Administrative Agent shall make all payments under the Credit
Agreement and the Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal,
interest and commitment fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes
for periods prior to the Effective Date directly between
themselves.
7. This Assignment shall be governed by, and construed in
accordance with, the laws of the State of North Carolina.
8. This Assignment may be executed in any number of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement. Delivery of an executed counterpart
of Schedule 1 to this Assignment by telecopier shall be effective
as delivery of a manually executed counterpart of this Assignment.
9. Terms of Assignment
(a) Legal Name of Assignor: SEE SIGNATURE PAGE
(b) Legal Name of Assignee: SEE SIGNATURE PAGE
(c) Effective Date of Assignment: , __
See Schedule I attached for a description of the Loans,
Obligations and Commitments (and the percentage interests therein
and relating thereto) which are the subject of this Assignment.
10. The fee payable to the Administrative Agent in
connection with this Assignment is enclosed.
<PAGE>
IN WITNESS WHEREOF, the Assignor and the Assignee have
caused this Assignment to be executed by their officers thereunto
duly authorized as of the date hereof.
____________________, as Assignor
By:
Name:
Title:
_____________________, as Assignee
By:
Name:
Title:
Notice address of Assignee:
__________________________
__________________________
Attn: ______________________
Telephone: (___) ____________
Telecopy: (___) ____________
CONSENTED TO AND ACCEPTED:
BANK OF AMERICA, N.A., *
as Administrative Agent
By:
Name:
Title:
RehabCare Group, Inc. a Delaware corporation
By:
Name:
Title:
<PAGE>
SCHEDULE I
TO ASSIGNMENT AND ACCEPTANCE
REHABCARE GROUP, INC.
REVOLVING LOANS AND LOC OBLIGATIONS PRIOR TO ASSIGNMENT
Revolving Revolving Revolving LOC LOC
Committed Commitment Loans Committed Obligations
Amount PercentageOutstanding Amount Outstanding
ASSIGNOR
ASSIGNEES
---------------------------------------------------
$ % $ $ $
<PAGE>
SCHEDULE I
TO ASSIGNMENT AND ACCEPTANCE
REHABCARE GROUP, INC.
REVOLVING LOANS AND LOC OBLIGATIONS SUBJECT TO THIS ASSIGNMENT
Revolving Revolving Revolving LOC LOC
Committed Commitment Loans Committed Obligations
Amount PercentageOutstanding Amount Outstanding
ASSIGNOR
ASSIGNEES
---------------------------------------------------
$ % $ $ $
<PAGE>
SCHEDULE I
TO ASSIGNMENT AND ACCEPTANCE
REHABCARE GROUP, INC.
REVOLVING LOANS AND LOC OBLIGATIONS AFTER ASSIGNMENT
Revolving Revolving Revolving LOC LOC
Committed Commitment Loans Committed Obligations
Amount PercentageOutstanding Amount Outstanding
ASSIGNOR
ASSIGNEE
---------------------------------------------------
$ % $ $ $
--------
* Required if the Assignee is an Eligible Assignee solely by
reason of clause (iii) of the definition of "Eligible Assignee."
