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CREDIT AGREEMENT
Dated as of June __, 1998
among
NAVIGANT INTERNATIONAL, INC.
as Borrower,
Certain Subsidiaries and Affiliates,
as Guarantors,
THE LENDERS NAMED HEREIN
AND
NATIONSBANK, N.A.,
as Administrative Agent
<PAGE>
TABLE OF CONTENTS
SECTION 1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.1 Definitions.. . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.2 Computation of Time Periods.. . . . . . . . . . . . . . . . . . 23
1.3 Accounting Terms. . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2 CREDIT FACILITIES. . . . . . . . . . . . . . . . . . . . . . . 24
2.1 Revolving Loans.. . . . . . . . . . . . . . . . . . . . . . . . 24
2.2 Letter of Credit Subfacility. . . . . . . . . . . . . . . . . . 25
2.3 Swingline Loan Subfacility. . . . . . . . . . . . . . . . . . . 30
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES . . . . . . . . 32
3.1 Default Rate. . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.2 Extension and Conversion. . . . . . . . . . . . . . . . . . . . 32
3.3 Prepayments.. . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.4 Termination and Reduction of Commitments. . . . . . . . . . . . 34
3.5 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.6 Capital Adequacy. . . . . . . . . . . . . . . . . . . . . . . . 35
i
<PAGE>
3.7 Inability To Determine Interest Rate. . . . . . . . . . . . . . 35
3.8 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.9 Requirements of Law.. . . . . . . . . . . . . . . . . . . . . . 36
3.10 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.11 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.12 Pro Rata Treatment.. . . . . . . . . . . . . . . . . . . . . . 40
3.13 Sharing of Payments. . . . . . . . . . . . . . . . . . . . . . 40
3.14 Payments, Computations, Etc. . . . . . . . . . . . . . . . . . 41
3.15 Evidence of Debt.. . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4 GUARANTY . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.1 The Guarantee.. . . . . . . . . . . . . . . . . . . . . . . . . 43
4.2 Obligations Unconditional.. . . . . . . . . . . . . . . . . . . 44
4.3 Reinstatement.. . . . . . . . . . . . . . . . . . . . . . . . . 45
4.4 Certain Additional Waivers. . . . . . . . . . . . . . . . . . . 45
4.5 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
4.6 Rights of Contribution. . . . . . . . . . . . . . . . . . . . . 46
4.7 Continuing Guarantee. . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5 CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ii
<PAGE>
5.1 Conditions to Closing.. . . . . . . . . . . . . . . . . . . . . 47
5.2 Conditions to All Extensions of Credit. . . . . . . . . . . . . 48
SECTION 6 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 49
6.1 Financial Condition.. . . . . . . . . . . . . . . . . . . . . . 49
6.2 No Changes or Restricted Payments.. . . . . . . . . . . . . . . 50
6.3 Organization; Existence; Compliance with Law. . . . . . . . . . 50
6.4 Power; Authorization; Enforceable Obligations.. . . . . . . . . 50
6.5 No Legal Bar. . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.6 No Material Litigation. . . . . . . . . . . . . . . . . . . . . 51
6.7 No Default. . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.8 Ownership of Property; Liens. . . . . . . . . . . . . . . . . . 51
6.9 Intellectual Property.. . . . . . . . . . . . . . . . . . . . . 52
6.10 No Burdensome Restrictions.. . . . . . . . . . . . . . . . . . 52
6.11 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
6.12 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
6.13 Governmental Regulations, Etc. . . . . . . . . . . . . . . . . 53
iii
<PAGE>
6.14 Subsidiaries.. . . . . . . . . . . . . . . . . . . . . . . . . 54
6.15 Purpose of Extensions of Credit. . . . . . . . . . . . . . . . 54
6.16 Environmental Matters. . . . . . . . . . . . . . . . . . . . . 54
SECTION 7 AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . 55
7.1 Financial Statements. . . . . . . . . . . . . . . . . . . . . . 56
7.2 Certificates; Other Information.. . . . . . . . . . . . . . . . 57
7.3 Notices.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
7.4 Payment of Obligations. . . . . . . . . . . . . . . . . . . . . 59
7.5 Conduct of Business and Maintenance of Existence. . . . . . . . 59
7.6 Maintenance of Property; Insurance. . . . . . . . . . . . . . . 59
7.7 Inspection of Property; Books and Records; Discussions. . . . . 60
7.8 Environmental Laws. . . . . . . . . . . . . . . . . . . . . . . 60
7.9 Financial Covenants.. . . . . . . . . . . . . . . . . . . . . . 61
7.10 Administrative Fees. . . . . . . . . . . . . . . . . . . . . . 61
7.11 Additional Guaranties and Stock Pledges. . . . . . . . . . . . 61
7.12 Ownership of Subsidiaries. . . . . . . . . . . . . . . . . . . 62
iv
<PAGE>
7.13 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8 NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . 63
8.1 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . 63
8.2 Liens.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.3 Nature of Business. . . . . . . . . . . . . . . . . . . . . . . 64
8.4 Consolidation, Merger, Sale or Purchase of Assets,
Capital Expenditures, etc.. . . . . . . . . . . . . . . . . 64
8.5 Advances, Investments and Loans.. . . . . . . . . . . . . . . . 65
8.6 Transactions with Affiliates. . . . . . . . . . . . . . . . . . 66
8.7 Ownership of Equity Interests.. . . . . . . . . . . . . . . . . 66
8.8 Fiscal Year.. . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.9 Prepayments of Indebtedness, etc. . . . . . . . . . . . . . . . 66
8.10 Restricted Payments. . . . . . . . . . . . . . . . . . . . . . 66
8.11 Sale Leasebacks. . . . . . . . . . . . . . . . . . . . . . . . 67
8.12 No Further Negative Pledges. . . . . . . . . . . . . . . . . . 67
SECTION 9 EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . 67
9.1 Events of Default.. . . . . . . . . . . . . . . . . . . . . . . 67
v
<PAGE>
9.2 Acceleration; Remedies. . . . . . . . . . . . . . . . . . . . . 69
SECTION 10 AGENCY PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 70
10.1 Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.2 Delegation of Duties.. . . . . . . . . . . . . . . . . . . . . 71
10.3 Exculpatory Provisions.. . . . . . . . . . . . . . . . . . . . 71
10.4 Reliance on Communications.. . . . . . . . . . . . . . . . . . 71
10.5 Notice of Default. . . . . . . . . . . . . . . . . . . . . . . 72
10.6 Non-Reliance on Administrative Agent and Other Lenders.. . . . 72
10.7 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . 73
10.8 Administrative Agent in its Individual Capacity. . . . . . . . 73
10.9 Successor Administrative Agent.. . . . . . . . . . . . . . . . 73
SECTION 11 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 74
11.1 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
11.2 Right of Set-Off.. . . . . . . . . . . . . . . . . . . . . . . 75
11.3 Benefit of Agreement.. . . . . . . . . . . . . . . . . . . . . 75
11.4 No Waiver; Remedies Cumulative.. . . . . . . . . . . . . . . . 78
11.5 Payment of Expenses, etc.. . . . . . . . . . . . . . . . . . . 78
vi
<PAGE>
11.6 Amendments, Waivers and Consents.. . . . . . . . . . . . . . . 79
11.7 Counterparts.. . . . . . . . . . . . . . . . . . . . . . . . . 80
11.8 Headings.. . . . . . . . . . . . . . . . . . . . . . . . . . . 80
11.9 Survival.. . . . . . . . . . . . . . . . . . . . . . . . . . . 80
11.10 Governing Law; Submission to Jurisdiction; Venue. . . . . . . 81
11.11 Severability. . . . . . . . . . . . . . . . . . . . . . . . . 81
11.12 Entirety. . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.13 Binding Effect; Termination.. . . . . . . . . . . . . . . . . 82
11.14 Confidentiality.. . . . . . . . . . . . . . . . . . . . . . . 82
11.15 Source of Funds.. . . . . . . . . . . . . . . . . . . . . . . 83
11.16 Conflict. . . . . . . . . . . . . . . . . . . . . . . . . . . 83
vii
<PAGE>
SCHEDULES
Schedule 2.1(a) Lenders and Commitments
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(e) Form of Note
Schedule 2.2(b)-1 Existing Letters of Credit
Schedule 2.2(b)-2 Form of Notice of Request for Letter of Credit
Schedule 3.2 Form of Notice of Extension/Conversion
Schedule 5.1(i)(v) Form of Officer's Certificate
Schedule 6.6 Description of Legal Proceedings
Schedule 6.8 Existing Liens
Schedule 6.14 Subsidiaries
Schedule 7.2(b) Form of Officer's Compliance Certificate
Schedule 7.11-1 Form of Joinder Agreement
Schedule 8.1 Indebtedness
Schedule 8.5 Existing Investments
Schedule 11.1 Lenders and Addresses
Schedule 11.3(b) Form of Assignment and Acceptance
viii
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of June __, 1998 (the "Credit Agreement"),
is by and among NAVIGANT INTERNATIONAL, INC., a Delaware corporation (the
"Borrower"), and the subsidiaries and affiliates identified on the signature
pages hereto and such other subsidiaries and affiliates 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"), and NATIONSBANK, N.A., as
Administrative Agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide a $75 million
credit facility for the purposes hereinafter set forth;
WHEREAS, the Lenders have agreed to make the requested credit facility
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 is 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:
"Additional Credit Party" means each Person that becomes a
Guarantor after the Closing Date by execution of a Joinder Agreement.
"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 April 28, 1998, between the Administrative
Agent and the Borrower, as amended, modified, supplemented or replaced
from time to time.
1
<PAGE>
"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 equity
interest 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 NationsBank, N.A.,
NC1-001-15-04, 101 North Tryon Street, Charlotte, North Carolina 28255,
Attn: Agency Services, or such other address as may be identified by
written notice from the Administrative Agent to the Borrower.
"Aggregate Revolving Committed Amount" means the aggregate
amount of Revolving Commitments in effect from time to time, being
initially SEVENTY-FIVE MILLION DOLLARS ($75,000,000).
"Applicable Percentage" means for any day, the rate per
annum set forth below opposite the applicable Consolidated 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":
<TABLE>
<CAPTION>
Consolidated Eurodollar
Pricing Leverage Base Rate Margin and Commitment
Level Ratio Margin Letter of Credit Fee Fee
----- ----- ------ -------------------- ---
<S> <C> <C> <C> <C>
I Less than 1.5 0% 1.00% .25%
II Greater than 1.5 but Less than 2.0 .10% 1.35% .30%
III Greater than 2.0 but Less than 2.5 .50% 1.75% .375%
IV Greater than 2.5 .75% 2.00% .425%
</TABLE>
The Applicable Percentage shall be determined and adjusted quarterly on
the date (each a "Rate Determination Date") five (5) Business Days after
the date by which the annual and quarterly compliance certificates and
related financial statements and information are
2
<PAGE>
required in accordance with the provisions of Sections 7.1(a) and (b) and
Section 7.2(b), as applicable; provided that:
(i) the initial Applicable Percentages shall be
1.50% in the case of the Eurodollar Margin and Letter of Credit Fee,
0.25% in the case of the Base Rate Margin, and 0.375% in the case of
the Commitment Fee and shall remain in effect until the first Rate
Determination Date to occur after the date six months from the Closing
Date; and
(ii) 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
Sections 7.1(a) and (b) and Section 7.2(b), as applicable, the
Applicable Percentages shall be based on Pricing Level IV 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.
Each Applicable Percentage shall be effective from a Rate Determination
Date until the next such 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.
"Approved Bank" shall have the meaning given such term in the
definition of "Cash Equivalents".
"Asset Disposition" means, other than a Securitization
Transaction, (i) the sale, lease or other disposition of any property or
asset by any member of the Consolidated Group, other than any such sale
permitted by Sections 8.4(b) and other than to the extent permitted by
Section 8.5, 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 their property or assets.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from time
to time.
3
<PAGE>
"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 (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%) equal
to the greater of (a) the Federal Funds Rate in effect on such day plus
1/2 of 1% or (b) the Prime Rate in effect on such day. If for any reason
the Administrative Agent shall have determined (which determination shall
be conclusive absent manifest error) that it is unable after due inquiry
to ascertain the Federal Funds Rate for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms hereof, the Base Rate shall be
determined without regard to clause (a) of the first sentence of this
definition until the circumstances giving rise to such inability no longer
exist. 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 the Federal Funds Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate determined
by reference to the Base Rate.
"Borrower" means Navigant International, Inc., a Delaware
corporation, as referenced in the opening paragraph, its successors and
permitted assigns.
4
<PAGE>
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banks in 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 U.S. dollar deposits in
London, England.
"Capital Expenditures" means, for any period, without
duplication, all expenditures (whether paid in cash or other
consideration) during such period that, in accordance with GAAP, are or
should be included in additions to property, plant and equipment or
similar items reflected in the consolidated statement of cash flows for
such period; provided, that Capital Expenditures shall not include, for
purposes hereof, (i) expenditures of proceeds of insurance settlements,
condemnation awards and other settlements in respect of lost, destroyed,
damaged or condemned assets, equipment or other property to the extent
such expenditures are made to replace or repair such lost, destroyed,
damaged or condemned assets, equipment or other property or other
otherwise to acquire assets or properties useful in the business of the
members of the Consolidated Group within 12 months of receipt of such
proceeds.
"Capital Lease" means, as applied to any Person, any lease of any
Property (whether real, personal or mixed) 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 Lease Obligation" means the capital lease obligations relating
to a Capital Lease determined in accordance with GAAP.
"Cash Equivalents" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency
or instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof) having maturities
of not more than twelve months from the date of acquisition, (b) U.S.
dollar denominated time deposits and certificates of deposit of (i) any
Lender, or (ii) any domestic commercial bank of recognized standing (y)
having capital and surplus in excess of $500,000,000 and (z) 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 a Person with a
bank or trust company (including any of the Lenders) or recognized
securities dealer having capital
5
<PAGE>
and surplus in excess of $500,000,000 for direct obligations issued by or
fully guaranteed by the United States of America 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, (e)
obligations of any State of the United States or any political subdivision
thereof, the interest with respect to which is exempt from federal income
taxation under Section 103 of the Code, having a long term rating of at
least AA- or Aa-3 by S&P or Moody's, respectively, and maturing within
three years from the date of acquisition thereof, (f) Investments in
municipal auction preferred stock (i) rated AAA (or the equivalent
thereof) or better by S&P or Aaa (or the equivalent thereof) or better by
Moody's and (ii) with dividends that reset at least once every 365 days
and (g) 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 $100,000,000 and the
portfolios of which are limited to Investments of the character described
in the foregoing subdivisions (a) through (f).
"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 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
of 1934.
"Closing Date" means the date hereof.
"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 Code shall be construed also to refer to any
successor sections.
6
<PAGE>
"Commitment" means the Revolving Commitment, the LOC Commitment
and the Swingline Commitment.
"Commitment Fee" shall have the meaning given such term in Section
3.5(a).
"Commitment Percentage" means the Revolving Commitment Percentage.
"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.
"Consolidated EBITDA" means for any period for the Consolidated
Group, the sum of Consolidated Net Income plus Consolidated Interest
Expense plus all provisions for any Federal, state or other domestic and
foreign income taxes plus depreciation and amortization plus one-time
non-recurring restructuring charges deducted in calculating Consolidated
Net Income, in each case on a consolidated basis determined in accordance
with GAAP, but including pro forma historical EBITDA from acquisitions
adjusted for salaries, owners' perks and other items reasonably eliminated
pursuant to contractual provisions and excluding for purposes hereof
extraordinary gains and losses and related tax effects thereon. Except as
otherwise expressly provided, the applicable period shall be for 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 Consolidated Interest Expense, in each case
on a consolidated basis determined in accordance with GAAP. Except as
otherwise expressly provided, the applicable period shall be for the four
consecutive fiscal quarters ending as of the date of determination.
"Consolidated Funded Debt" means Funded Debt of the Consolidated
Group determined on a consolidated basis in accordance with GAAP.
"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
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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 for the four consecutive quarters ending as of
the date of determination.
"Consolidated Leverage Ratio" means, as of the last day of any
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.
"Consolidated Net Income" means for any period for the
Consolidated Group, net income on a consolidated basis determined in
accordance with GAAP. Except as expressly provided otherwise, the
applicable period shall be for the four consecutive quarters ending as of
the date of determination.
"Consolidated Net Worth" means, as for any date for the
Consolidated Group, shareholders' equity or net worth as determined in
accordance with GAAP.
"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.
"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, the LOC Documents, the Pledge Agreement, the
Security Agreement, each Joinder Agreement, 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.
"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, at such
time, (i) has failed to make an Extension of Credit required pursuant to
the terms of this Credit Agreement, (ii) has failed to pay to the
Administrative Agent or any Lender an amount owed by such Lender pursuant
to the terms of the Credit Agreement or any other of the Credit Documents,
or (iii) has been deemed insolvent or has become subject to a bankruptcy
or insolvency proceeding or to a receiver, trustee or similar proceeding.
"Dollars" and "$" means dollars in lawful currency of the United
States of America.
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"Domestic Credit Party" means any Credit Party which is incorporated
or organized under the laws of any State of the United States or the District
of Columbia.
"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.
"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 or other governmental restrictions
relating to the environment or to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes 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 pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or
wastes.
"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 or (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.
"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 Credit Party within the meaning of Section 4001(a)(14) of ERISA,
or is a member of a group which includes the Borrower and which is treated
as a single employer under Sections 414(b) or (c) of the 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 the Borrower,
any Subsidiary of the Borrower 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
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<PAGE>
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 would
reasonably be expected to 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 the Borrower, any
Subsidiary of the Borrower 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 (vii) 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 bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate determined
pursuant to the following formula:
Eurodollar Rate = Interbank Offered Rate
----------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that percentage
(expressed as a decimal) which is in effect from time to time under
Regulation D of the Board of Governors of the Federal Reserve System (or
any successor), as such regulation may be amended from time to time or any
successor regulation, as the maximum reserve requirement (including,
without limitation, any basic, supplemental, emergency, special, or
marginal reserves) applicable with respect to Eurocurrency liabilities as
that term is defined in Regulation D (or against any other category of
liabilities that includes deposits by reference to which the interest rate
of Eurodollar Loans is determined), whether or not Lender has any
Eurocurrency liabilities subject to such reserve requirement at that time.
Eurodollar Loans shall be deemed to constitute Eurocurrency liabilities and
as such shall be deemed subject to reserve requirements without benefits of
credits for proration, exceptions or offsets that may be available from
time to time to a Lender. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Event of Default" means such term as defined in Section 9.1.
"Excess Funding Guarantor" shall have the meaning given such term
in Section 4.6.
"Excess Payment" shall have the meaning given such term in Section
4.6.
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"Existing Letters of Credit" means those Letters of Credit
outstanding on the Closing Date and identified on Schedule 2.2(b)-1.
"Extension of Credit" means, as to any Lender, the making of, or
participation in, a Loan by such Lender or the issuance or extension of, or
participation in, a Letter of Credit.
"Fees" means all fees payable pursuant to Section 3.5.
"Federal Funds Rate" means, for any day, the rate of interest per
annum (rounded upwards, if necessary, to the nearest whole multiple of
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 and (B) if no such rate is so published on such next preceding
Business Day, the Federal Funds Rate for such day shall be the average rate
quoted to the Administrative Agent on such day on such transactions as
determined by the Administrative Agent.
"Foreign Credit Party" means a Credit Party which is not a
Domestic Credit Party.
"Foreign Subsidiary" means a Subsidiary which is not a Domestic
Subsidiary.
"Funded Debt" means, with respect to any Person, without
duplication, (i) all Indebtedness 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 described in clauses (iii) and (iv) 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
Indebtedness 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 Indebtedness has
been assumed, provided that for purposes hereof the amount of such Funded
Debt shall be limited to the greater of (A) the amount of such Funded Debt
as to which there is recourse to such Person and (B) the fair market value
of the property which is subject to the Lien, (vii) the outstanding
attributed principal amount under any Securitization Transaction, and (viii)
the principal balance outstanding under any synthetic lease, tax retention
operating lease, off-balance
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<PAGE>
sheet loan or similar off-balance sheet financing product to which such
Person is a party, where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease in
accordance with 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 hereof.
"Governmental Authority" means any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantor" means each of those Persons 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.
"Guaranteed Obligations" means, as to each Guarantor, without
duplication, (i) all obligations of the Borrower (including interest
accruing after a Bankruptcy Event, regardless of whether such interest is
allowed as a claim under the Bankruptcy Code) to the Lenders and the
Administrative Agent, whenever arising, under this Credit Agreement, the
Notes or the Credit Documents, and (ii) all liabilities and obligations,
whenever arising, owing from the Borrower to any Lender, or any Affiliate
of a Lender, arising under any Hedging Agreement relating to Obligations
hereunder.
"Hedging Agreements" means any interest rate protection agreement
or foreign currency exchange agreement between the Borrower and any Lender,
or any Affiliate of a Lender.
"Indebtedness" of any Person means (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 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), (iv) 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, (v) all obligations of such
Person under take-or-pay or similar arrangements or under commodities
agreements, (vi) all Indebtedness of others secured by (or
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<PAGE>
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, provided that for
purposes hereof the amount of such Indebtedness shall be limited to the
greater of (A) the amount of such Indebtedness as to which there is
recourse to such Person and (B) the fair market value of the property which
is subject to the Lien, (vii) all Support Obligations of such Person,
(viii) the principal portion of all obligations of such Person under
Capital Leases, (ix) all obligations of such Person in respect of interest
rate protection agreements, foreign currency exchange agreements, commodity
purchase or option agreements or other interest or exchange rate or
commodity price hedging agreements (including, but not limited to, the
Hedging Agreements), (x) 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), (xi) all preferred stock issued by such Person and
required by the terms thereof to be redeemed, or for which mandatory
sinking fund payments are due, by a fixed date, (xii) the outstanding
attributed principal amount under any Securitization Transaction and (xiii)
the principal balance outstanding under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet
financing product to which such Person is a party, where such transaction
is considered borrowed money indebtedness for tax purposes but is
classified as an operating lease in accordance with GAAP. The Indebtedness
of any Person shall include the Indebtedness of any partnership or joint
venture in which such Person is a general partner or a joint venturer, but
only to the extent to which there is recourse to such Person for payment of
such Indebtedness.
"Intellectual Property" shall have the meaning given such term in
Section 6.9.
"Interbank Offered Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%) equal
to the rate of interest, determined by the Administrative Agent on the
basis of the offered rates for deposits in dollars for a period of time
corresponding to such Interest Period (and commencing on the first day of
such Interest Period), appearing on Telerate Page 3750 (or, if, for any
reason, Telerate Page 3750 is not available, the Reuters Screen LIBO Page)
as of approximately 11:00 A.M. (London time) two (2) Business Days before
the first day of such Interest Period. As used herein, "Telerate Page
3750" means the display designated as page 3750 by Dow Jones Markets, Inc.
(or such other page as may
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<PAGE>
replace such page on that service for the purpose of displaying the British
Bankers Association London interbank offered rates) and "Reuters Screen
LIBO Page" means the display designated as page "LIBO" on the Reuters
Monitor Money Rates Service (or such other page as may replace the LIBO
page on that service for the purpose of displaying London interbank offered
rates of major banks).
"Interest Payment Date" means (i) as to any Base Rate Loan, the
last day of each March, June, September and December, the date of repayment
of principal of such Loan and the Termination Date and (ii) as to any
Eurodollar Loan and Swingline Loan, the last day of each Interest Period
for such Loan, the date of repayment of principal 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 or six month's duration, as the Borrower may elect,
commencing in each case, on the date of the borrowing (including
conversions, extensions and renewals), and (ii) as to any Swingline Loan, a
period of such duration, not to exceed 30 days, as the Borrower may request
and the Swingline Lender may agree in accordance with the provisions of
Section 2.2(b)(i), 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 in the case of Eurodollar Loans 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) in the case of Eurodollar
Loans, 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.
"Investment", in any Person, means any loan or advance to such
Person, any purchase or other acquisition of any capital stock, warrants,
rights, options, obligations or other securities of, or equity interest in,
such Person, any capital contribution to such Person or any other
investment in such Person, including, without limitation, any Support
Obligation incurred for the benefit of such Person.
"IPO" means the completion of the initial public offering of
common stock, par value $.001 per share, of the Borrower.
"Issuing Lender" means, initially, NationsBank and, hereafter, any
Lender which the Borrower may request and such Lender may agree.
"Issuing Lender Fees" shall have the meaning assigned to such term
in Section 3.5(b)(ii).
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"Joinder Agreement" means a Joinder Agreement substantially in the
form of Schedule 7.11-1 hereto, executed and delivered by an Additional
Credit Party in accordance with the provisions of Section 7.11.
"Lenders" means each of the Persons identified as a "Lender" on
the signature pages hereto, and their successors and assigns.
"Letter of Credit" means the Existing Letters of Credit and any
letter of credit issued by the Issuing Lender for the account of the
Borrower in accordance with the terms of Section 2.2.
"Letter of Credit Fee" shall have the meaning given such term in
Section 3.5(b)(i).
"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.
"LOC Commitment" means the commitment of the Issuing Lender to
issue, and to honor payment obligations under, Letters of Credit hereunder
and with respect to each Lender, the commitment of each Lender to purchase
participation interests in the Letters of Credit up to such Lender's LOC
Committed Amount as specified in Schedule 2.1(a), as such amount may be
reduced from time to time in accordance with the provisions hereof.
"LOC Committed Amount" means, collectively, the aggregate amount of
all of the LOC Commitments of the Lenders to issue and participate in
Letters of Credit as referenced in Section 2.2(a) and, individually, the
amount of each Lender's LOC Commitment as specified in Schedule 2.1(a).
"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.
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<PAGE>
"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 the Credit Parties taken as a whole to perform any material
obligation under the Credit Documents to which it is a party or (iii) the
rights and remedies of 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 which the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate and at least one employer
other than the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate are contributing sponsors.
"NationsBank" means NationsBank, N.A. and its successors.
"Net Proceeds" means gross cash proceeds (including any cash
received by way of deferred payment pursuant to a promissory note,
receivable or otherwise, but only as and when received) received in
connection with an Asset Disposition or Equity Transaction, net of (i)
reasonable transaction costs, including in the case of an Equity
Transaction, underwriting discounts and commissions and in the case of an
Asset Disposition occurring in connection with a claim under an insurance
policy, costs incurred in connection with adjustment and settlement of the
claim, (ii) estimated taxes payable in connection therewith, and (iii) in
the case of an Asset Disposition, any amounts payable in respect of Funded
Debt, including without limitation principal, interest, premiums and
penalties, which is secured by, or otherwise related to, any
16
<PAGE>
property or asset which is the subject thereof to the extent that such
Funded Debt and any payments in respect thereof are paid with a portion of
the proceeds therefrom.
"Non-Excluded Taxes" means such term as is defined in Section
3.10(a).
"Non-Guarantor Subsidiaries" shall have the meaning given such
term in Section 7.11(a).
"Note" or "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 2.1(e), individually
or collectively, as appropriate, as such promissory notes may be amended,
modified, supplemented, extended, renewed or replaced from time to time.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Schedule 2.1(b)(i), as required by Section
2.1(b)(i).
"Notice of Extension/Conversion" means the written notice of
extension or conversion in substantially the form of Schedule 3.2, as
required by Section 3.2.
"Obligations" means, collectively, the Revolving Loans, Swingline
Loans and the LOC Obligations.
"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 (whether real, personal or mixed) which
is not a Capital Lease other than any such lease in which that Person is
the lessor.
"Participation Interest" means the purchase by a Lender of a
participation in Swingline Loans as provided in Section 2.2(b)(iii) and in
Loans as provided in Section 3.13.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.
"Permitted Investments" means Investments which are either (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
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 8.5, (v) Support
17
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Obligations permitted by Section 8.1(h); (vi) acquisitions permitted by
Section 8.4(c); (vii) transactions permitted by Section 8.6, (viii)
advances or loans to employees, directors, officers or agents not to exceed
[$_________ ] in the aggregate at any time outstanding; (ix) advances or
loans to customers or suppliers that do not exceed [$_________ ] in the
aggregate at any one time outstanding, (x) Investments by a member of the
Consolidated Group or an Affiliate of a member of the Consolidated Group in
connection with a Permitted Securitization Transaction, (xi) Investments by
members of the Consolidated Group in their Subsidiaries and Affiliates
existing on the Closing Date, (xii) Investments by members of the
Consolidated Group in and to a Credit Party and (xiii) other loans,
advances and investments of a nature not contemplated in the foregoing
subsections in an amount not to exceed [$_________ ]in the aggregate at any
time outstanding.
"Permitted Liens" means:
(i) Liens in favor of the Administrative Agent on behalf
of the Lenders;
(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
or indebtedness permitted under Section 8.1, (B) to the extent such
Liens are on the same collateral as to which the Lenders also have a
Lien and (C) if such provider and the Lender 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);
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(v) Liens (other than Liens created or imposed under
ERISA) incurred or deposits made by the Borrower and its Subsidiaries
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 securing purchase money and sale/leaseback
Indebtedness (including Capital Leases) 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 thereto concurrently
with or within 90 days after the acquisition thereof in connection with
the purchase money transactions and within 30 days after the closing of
any sale/leaseback transaction;
(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 of 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 Permitted Securitization Transaction (including any related
filings of any financing statements), but only to the extent that any
such Lien relates to the applicable receivables and
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related property actually sold, contributed or otherwise
conveyed pursuant to such transaction;
(xiii) Liens deemed to exist in connection with
Investments in repurchase agreements permitted under Section 8.5;
(xiv) normal and customary rights of setoff upon
deposits of cash in favor of banks or other depository institutions;
(xv) Liens granted to holders of Seller Subordinated
Debt so long as (a) such Liens relate solely to the assets purchased
from such holder(s), (b) such Liens are subordinate to the Liens
granted to the Lenders, and (c) the holders of such Seller Subordinated
Debt agree to stand still provisions and provisions not to contest the
validity of the Lenders' Liens satisfactory to the Required Lenders;
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.
"Permitted Securitization Transaction" means any Securitization
Transaction; provided that (i) the Administrative Agent and the Required
Lenders shall be reasonably satisfied with the structure and documentation
for any such transaction and that the terms of such transaction entered
into after the Closing Date, including the discount applicable to the
receivables which are subject of such financing and any termination events,
shall be (in the good faith understanding of the Administrative Agent and
the Required Lenders) consistent with those prevailing in the market at the
time of commitment thereto for similar transactions involving a receivables
originator/servicer of similar credit quality and a receivables pool or
other similar characteristics and (ii) the documentation for such
transaction shall not be amended or modified in a way which is materially
detrimental to the Lenders without the prior written approval of the
Administrative Agent and the Required Lenders.
"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 the Borrower,
any Subsidiary of the Borrower
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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 the other pledgors identified
therein to NationsBank, N.A., as Administrative Agent, to secure the
obligations hereunder, as amended and modified.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by NationsBank as its prime rate in effect at
its principal office in Charlotte, North Carolina, with each change in the
Prime Rate being effective on the date such change is publicly announced as
effective (it being understood and agreed that the Prime Rate is a
reference rate used by NationsBank in determining interest rates on certain
loans and is not intended to be the lowest rate of interest charged on any
extension of credit by NationsBank to any debtor).
"Pro Forma Basis" means, with respect to any Transaction, that
such 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 and the Lenders have received the officer's
certificate in accordance with the provisions of Section 7.2(b). As used
herein, "Transaction" means (i), any corporate merger or consolidation as
referred to in Section 8.4(a), (ii) any sale or other disposition of assets
as referred to in Section 8.4(b), (iii) any acquisition of capital stock or
securities or any purchase, lease or other acquisition of property as
referred to in Section 8.4(c) or (iv) the making of any Restricted Payment
as referred to in Section 8.10.
"Pro Rata Share" shall have the meaning given such term in Section
4.6.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Rate Determination Date" shall have the meaning given such term
in the definition of "Applicable Percentage".
"Register" shall have the meaning given such term in Section
11.3(c).
"Regulation T, U or X" means Regulation 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.
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"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or disposing
into the environment (including the abandonment or discarding of barrels,
containers and other closed receptacles containing any Materials of
Environmental Concern).
"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 Lenders" means, at any time, Lenders having more than
fifty percent (50%) of the Commitments, or if the Commitments have been
terminated, Lenders having more than fifty percent (50%) of the aggregate
principal amount of the Obligations outstanding (taking into account in each
case Participation Interests or obligation to participate therein); provided
that the Commitments of, and outstanding principal amount of Obligations
(taking into account Participation Interests 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 or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its material property is
subject.
"Responsible Officer" means the Chief Financial Officer, the
Controller, any Vice President and _______________.
"Restricted Payment" means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock now or
hereafter outstanding, except (A) a dividend payable solely in shares of
that class to the holders of that class and (B) dividends and other
distributions payable to a Credit Party, (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 stock 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 stock 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 of up to such Lender's Commitment Percentage
of the Aggregate Revolving Committed Amount as specified in Schedule 2.1(a),
as such amount may be reduced from time to time in accordance with the
provisions hereof.
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"Revolving Commitment Percentage" means, for each Lender, a
fraction (expressed as a decimal) the numerator of which is the Revolving
Commitment of such Lender at such time and the denominator of which is the
Aggregate Revolving Committed Amount at such time. The initial Revolving
Commitment Percentages are set out on Schedule 2.1(a).
"Revolving Committed Amount" means, collectively, the aggregate
amount of all of the Revolving Commitments and, individually, the amount of
each Lender's Revolving Commitment as specified in Schedule 2.1(a).
"Revolving Loans" shall have the meaning assigned to such term in
Section 2.1(a).
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor or assignee of the business of such division in
the business of rating securities.
"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 receivables or interests
therein secured by merchandise or services financed thereby (whether such
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 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 Borrower and the other grantors identified therein
to NationsBank, N.A., as Administrative Agent, to secure the obligations
hereunder, as amended and modified.
"Seller Subordinated Debt" means Subordindated Debt issued to a
seller in connection with an acquisition permitted under Section 8.4 of the
Credit Agreement.
"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.
"Spin-Off Transaction" shall mean the spin-off of the Borrower from
U.S. Office Products, Inc.
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"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 under the Credit Agreement
and the other Credit Documents on terms and conditions satisfactory to the
Required Lenders.
"Subsidiary" means, as to any Person, (a) any corporation more than
50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time, any class or
classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by such Person
directly or indirectly through Subsidiaries, and (b) any partnership,
association, joint venture or other entity in which such Person directly or
indirectly through Subsidiaries has more than 50% of the voting interests at
any time. Unless otherwise identified, "Subsidiary" or "Subsidiaries" shall
mean Subsidiaries of the Borrower.
"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 the
Lenders to purchase participation interests in the Swingline Loans up to
their respective Revolving Commitment Percentage as provided in Section
2.3(b)(iii), as such amounts may be reduced from time to time in accordance
with the provisions hereof.
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"Swingline Committed Amount" means the amount of the Swingline
Lender's Commitment as specified in Section 2.3(a).
"Swingline Lender" means NationsBank or its successor.
"Swingline Loan" means a swingline revolving loan made by the
Swingline Lender pursuant to the provisions of Section 2.3.
"Termination Date" means June __, 2003 (five years from the Closing
Date), or if extended with the written consent of each of the Lenders, such
later date as to which the Termination Date may be extended.
"Threshold Requirement" shall have the meaning given such term in
Section 7.11(a).
"Transaction" shall have the meaning given such term in the
definition of "Pro Forma Basis".
"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 or other equity interests 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. 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 hereof
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(or, prior to the delivery of the first financial statements pursuant to
Section 7.1 hereof, consistent with the annual audited financial statements
referenced in Section 6.1(i) hereof); 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 30 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
Borrower to the Lenders as to which no such objection shall have been made.
It is further acknowledged and agreed that, except as expressly provided
otherwise, for purposes of determining the Applicable Percentage and
compliance with the financial covenants in Section 7.9 (and compliance
therewith on a Pro Forma Basis), in the case of acquisitions and dispositions
which have occurred during the applicable period to the extent permitted
hereunder, adjustments shall be made to take into account historical
performance (reflecting adjustments in income for elimination of salaries,
owners' perks and other items reasonably eliminated pursuant to contractual
provisions) relating thereto during such applicable period prior to the date
of such acquisition or disposition, and the effect of any Indebtedness paid
with proceeds from a disposition, provided that coverage items (relating to
interest and rental expense and other such items, under Consolidated EBITDA,
Consolidated Fixed Charges or the like) shall be determined by annualization
from the date of acquisition of disposition rather than by reference to
historical performance relating prior the date of acquisition or disposition.
SECTION 2
CREDIT FACILITIES
2.1 Revolving Loans.
(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 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 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.
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(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a
Revolving Loan borrowing by written notice (or telephone notice promptly
confirmed in writing) to the Administrative Agent not later than 11:00 A.M.
(Charlotte, North Carolina time) on the Business Day prior to the date 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. If the
Borrower shall fail to specify in any such Notice of Borrowing (I) an
applicable Interest Period in the case of a Eurodollar Loan, then such
notice shall be deemed to be a request for an Interest Period of one month,
or (II) the type of Revolving Loan requested, then such notice shall be
deemed to be a request for a Base Rate Loan hereunder. The Administrative
Agent shall give notice to each Lender promptly upon receipt of each Notice
of Borrowing pursuant to this Section 2.1(b)(i), the contents thereof and
each such Lender's share of any borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Revolving Loan shall be in a minimum
aggregate principal amount of $5,000,000, in the case of Eurodollar Loans,
or $1,000,000 (or the remaining Revolving Committed Amount, if less), in the
case of Base Rate Loans, and integral multiples of $1,000,000 in excess
thereof.
(iii) Advances. Each Lender will make its Revolving Commitment
Percentage of each Revolving Loan borrowing available to the Administrative
Agent for the account of the Borrower, or in such other manner as the
Administrative Agent may specify in writing, by 1:00 P.M. (Charlotte, North
Carolina time) on the date specified in the applicable Notice of Borrowing
in Dollars and in funds immediately available to the Administrative Agent.
Such borrowing will then be made available to the Borrower by the
Administrative Agent by crediting the account of the Borrower with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
(c) Repayment. The principal amount of all Revolving Loans shall be due
and payable in full on the Termination Date.
(d) Interest. Subject to the provisions of Section 3.1,
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(i) Base Rate Loans. During such periods as Revolving Loans
shall be comprised in whole or in part of Base Rate Loans, such Base Rate
Loans shall bear interest at a per annum rate equal to the Base Rate plus
the Applicable Percentage;
(ii) Eurodollar Loans. During such periods as Revolving Loans
shall be comprised in whole or in part of Eurodollar Loans, such Eurodollar
Loans shall bear interest at a per annum rate equal to the Eurodollar Rate
plus the Applicable Percentage.
Interest on Revolving Loans shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified herein).
(e) Revolving Notes. The Revolving Loans shall be evidenced by a
duly executed Note in favor of each Lender.
(f) Maximum Number of Eurodollar Loans. The Borrower will be
limited to a maximum number of five (5) 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.
2.2 Letter of Credit Subfacility.
(a) Issuance. 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 as the Borrower may request for its own account or for the account of
any Subsidiary 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 exceed TWO MILLION DOLLARS
($2,000,000) at any time (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
issued hereunder shall not have an original expiry date more than one year
from the date of issuance or extension, nor 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.
(b) Notice and Reports. Except for those Letters of Credit
described on Schedule 2.2(b)-1 which shall be issued on the Closing Date, the
request for the issuance of a Letter of Credit shall be submitted by the
Borrower to the Issuing Lender at least three (3) Business Days prior to the
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requested date of issuance (or such shorter period as may be agreed by the
Issuing Lender). A form of Notice of Request for Letter of Credit is
attached as Schedule 2.2(b)-2. The Issuing Lender will provide to the
Administrative Agent at least monthly, and more frequently upon request, a
detailed summary report on its Letters 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 at least quarterly, and more frequently upon request, a detailed
summary report on its Letters 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.
(c) Participation. Each Lender, with respect to the Existing
Letters of Credit, hereby purchases a participation interest in such Existing
Letters of Credit, and with respect to Letters of Credit issued after the
Closing Date, upon issuance of a Letter of Credit, shall be deemed to have
purchased without recourse a risk participation from the applicable 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 such 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) hereof. 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.
(d) 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 (e) hereof 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 Base Rate plus the sum of (i) the
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Applicable Percentage and (ii) 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 pro rata share 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. (Charlotte,
North Carolina time) otherwise such payment shall be made at or before 12:00
Noon (Charlotte, North Carolina 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.
(e) 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 2.1(b)(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
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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 Revolving 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.
(f) Designation of Subsidiaries as Account Parties. Notwithstanding
anything to the contrary set forth in this Credit Agreement, including
without limitation Section 2.2(a) 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 Subsidiary, 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.
(g) 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.
(h) Uniform Customs and Practices. The Letters of Credit shall be
subject to The Uniform Customs and Practice for Documentary Credits, as
published as of the date of issue by the International Chamber of Commerce
(the "UCP"), in which case the UCP may be incorporated therein and deemed in
all respects to be a part thereof.
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(i) Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this Section
2.2, 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"), except to the extent any such claims, demands,
liabilities, damages, costs, charges and expenses arise out of or relate to
disputes solely between or among the Administrative Lender and/or the
Lenders.
(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 (other
than the Issuing Lender) 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 (other than by the Issuing Lender) 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 (other than by
the Issuing Lender) 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 and not constituting
gross negligence, 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 (except as set
forth herein) are hereby assumed by the Borrower (on behalf of itself and
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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 (i) is intended to limit the
reimbursement obligations of the Borrower contained in subsection (d) above.
The obligations of the Borrower under this subsection (i) 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 (i), the Borrower shall have no obligation to indemnify the
Issuing Lender in respect of any liability incurred by the Issuing Lender
(A) arising out of the 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, as determined by a court of
competent jurisdiction.
(j) 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 2.2 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 2.2 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.
(k) 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.
2.3 Swingline Loan Subfacility.
(a) Swingline Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set forth
herein, the Swingline Lender, in its individual capacity, agrees to make
certain revolving credit loans requested by the Borrower in Dollars to the
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Borrower (each a "Swingline Loan" and, collectively, the "Swingline Loans")
from time to time from the Closing Date until the Termination Date for the
purposes hereinafter set forth; provided, however, (i) the aggregate
principal amount of Swingline Loans outstanding at any time shall not exceed
FIVE MILLION DOLLARS ($5,000,000) (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. Swingline Loans hereunder shall be made as Base Rate
Loans, and may be repaid or reborrowed in accordance with the provisions
hereof.
(b) Swingline Loan Advances.
(i) Notices; Disbursement. Whenever the Borrower desires a Swingline
Loan advance hereunder it shall give written notice (or telephonic notice
promptly confirmed in writing) to the Swingline Lender not later than
11:00 A.M. (Charlotte, North Carolina time) on the Business Day of the
requested Swingline Loan advance. Each such notice shall be irrevocable
and shall specify (A) that a Swingline Loan advance is requested, (B) the
date of the requested Swingline Loan advance (which shall be a Business
Day) and (C) the principal amount of and Interest Period for the Swingline
Loan advance requested. Each Swingline Loan shall have such maturity date
as the Swingline Lender and the Borrower shall agree upon receipt by the
Swingline Lender of any such notice from the Borrower. The Swingline
Lender shall initiate the transfer of funds representing the Swingline
Loan advance to the Borrower by 3:00 P.M. (Charlotte, North Carolina time)
on the Business Day of the requested borrowing.
(ii) Minimum Amounts. Each Swingline Loan advance shall be in a minimum
principal amount of $500,000 and in integral multiples of $100,000 in
excess thereof (or the remaining amount of the Swingline Committed Amount,
if less).
(iii) Repayment of Swingline Loans. The principal amount of all
Swingline Loans shall be due and payable on the earlier of (A) the
maturity date agreed to by the Swingline Lender and the Borrower with
respect to such Loan (which maturity date shall not be a date more than
thirty (30) Business Days from the date of advance thereof) or (B) the
Termination Date. 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 pro rata share of each such
Revolving Loan in the amount, in
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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 Commitment Percentage of the
Revolving Committed Amount (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 purchased 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 subsection (c)(ii) below, 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.
(c) Interest on Swingline Loans.
Subject to the provisions of Section 3.1, each Swingline Loan shall bear
interest at a per annum rate (computed on the basis of the actual number of
days elapsed over a year of 365 days) equal to the Base Rate. Interest on
Swingline Loans shall be payable in arrears on each applicable Interest
Payment Date (or at such other times as may be specified herein), unless
accelerated sooner pursuant to Section 9.2.
(d) Swingline Note. The Swingline Loans shall be evidenced by the
Note.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
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3.1 Default Rate.
Upon the occurrence, and during the continuance, of an Event of Default,
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 2% greater than
the Base Rate).
3.2 Extension and Conversion.
Subject to the terms of Section 5.2, 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 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 no
Default or Event of Default is in existence on the date of extension or
conversion, (iii) Loans extended as, or converted into, Eurodollar Loans
shall be subject to the terms of the definition of "Interest Period" set
forth in Section 1.1 and shall be in such minimum amounts as provided in
Section 2.1(b)(ii) , and (iv) any request for extension 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
extension or conversion shall be effected by the Borrower by giving a Notice
of Extension/Conversion (or telephone notice promptly confirmed in writing)
to the Administrative Agent prior to 11:00 A.M. (Charlotte, North Carolina
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 extension of a Eurodollar Loan as, or conversion of a Base Rate
Loan into, a Eurodollar Loan, the date of the proposed extension or
conversion, specifying the date of the proposed extension 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 extension or conversion shall
be irrevocable and shall constitute a representation and warranty by the
Borrower of the matters specified in subsections (a) through (e) of Section
5.2. In the event the Borrower fails to request extension or conversion of
any Eurodollar Loan in accordance with this Section, or any such conversion
or extension 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
extension or conversion affecting any Loan.
3.3 Prepayments.
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(a) Voluntary Prepayments. Revolving Loans may be repaid in whole
or in part without premium or penalty; provided that (i) Eurodollar Loans may
be prepaid only upon three (3) Business Days' prior written notice to the
Administrative Agent and must be accompanied by payment of any amounts owing
under Section 3.11, and (ii) partial prepayments shall be minimum principal
amounts of $5,000,000, in the case of Eurodollar Loans, and $1,000,000, in
the case of Base Rate Loans, and in integral multiples of $1,000,000 in
excess thereof.
(b) Mandatory Prepayments. If at any time, (A) the aggregate
principal amount of Obligations shall exceed the Aggregate Revolving
Committed Amount, (B) the aggregate amount of LOC Obligations shall exceed
the LOC Committed Amount, or (C) the aggregate amount of Swingline Loans
shall exceed the Swingline Committed Amount, the Borrower shall immediately
make payment on the Revolving Loans and/or Swingline Loans and/or to a cash
collateral account in respect of the LOC Obligations, in an amount sufficient
to eliminate the deficiency.
(c) Application. Unless otherwise specified by the Borrower,
prepayments made hereunder shall be applied first to Swingline Loans, then to
Revolving Loans which are Base Rate Loans, then to Revolving Loans which are
Eurodollar Loans in direct order of Interest Period maturities. Amounts
prepaid hereunder may be reborrowed in accordance with the provisions hereof.
3.4 Termination and Reduction of Commitments
(a) Voluntary Reductions. The Revolving Commitments may be
terminated or permanently reduced in whole or in part 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 minimum principal amount of
$5,000,000, and in integral multiples of $1,000,000 in excess thereof.
(b) Mandatory Reduction. The Revolving Commitments shall be
permanently reduced in an amount equal to one hundred percent (100%) of the
Net Proceeds received from Asset Dispositions in any fiscal year; but only to
the extent that (i) such Net Proceeds are not reinvested in other property or
assets within six (6) months of the date of sale, lease, disposition,
casualty, theft or loss giving rise thereto, and (ii) the aggregate amount of
such Net Proceeds not reinvested in accordance with the foregoing subsection
(i) in any fiscal year shall exceed [$__________ ].
(c) Termination. The Commitments hereunder shall terminate on the
Termination Date.
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3.5 Fees.
(a) Commitment Fee. In consideration of the Revolving Commitments
hereunder, 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 Revolving Committed Amount for the applicable period. The Commitment Fee
shall be payable quarterly in arrears on the 15th day following the last day
of each calendar quarter for the immediately preceding quarter (or portion
thereof) beginning with the first such date to occur after the Closing Date.
For purposes of computation of the Commitment Fee, Swingline Loans shall not
be counted toward or considered usage under the Revolving Loan facility.
(b) Letter of Credit Fees.
(i) Letter of Credit Fee. In consideration of the LOC Commitment
hereunder, the Borrower agrees to pay to the Administrative Agent for the
ratable benefit of the Lenders a fee (the "Letter of Credit Fee") equal to
the Applicable Percentage per annum on the average daily maximum amount
available to be drawn under Letters of Credit from the date of issuance to
the date of expiration. The Letter of Credit Fee shall be payable
quarterly in arrears on the 15th day following the last day of each
calendar quarter for the immediately preceding quarter (or portion
thereof) beginning with the first such date to occur after the Closing
Date.
(ii) Issuing Lender Fee. In addition to the Letter of Credit Fee,
the Borrower agrees to pay to the Issuing Lender for its own account
without sharing by the other Lenders (A) a fronting and negotiation fee of
.125% per annum on the average daily maximum amount available to be drawn
under Letters of Credit issued by it from the date of issuance to the date
of expiration, and (B) customary charges of the Issuing Lender with
respect to the issuance, amendment, transfer, administration, cancellation
and conversion of, and drawings under, such Letters of Credit
(collectively, the "Issuing Lender Fees").
(c) Administrative Agent's Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, an annual administrative fee and
such other fees, if any, referred to in the Administrative Agent's Fee Letter
(collectively, the "Administrative Agent's Fees").
3.6 Capital Adequacy.
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