<PAGE>
Exhibit 4-A(i)
Execution Copy
--------------
REVOLVING CREDIT AGREEMENT
dated as of February 5, 2004
among
PRIORITY HEALTHCARE CORPORATION,
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
SUNTRUST BANK,
as Administrative Agent
================================================================================
SUNTRUST CAPITAL MARKETS, INC.,
as Arranger and Book Manager
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TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS;
CONSTRUCTION.........................................1
Section 1.1.
Definitions................................................1
Section 1.2.
Classifications
of Loans and Borrowings...................18
Section 1.3.
Accounting Terms
and Determination........................18
Section 1.4.
Terms
Generally...........................................19
ARTICLE II AMOUNT AND TERMS OF THE
COMMITMENTS..............................19
Section 2.1.
General
Description of Facilities.........................19
Section 2.2.
Revolving
Loans...........................................19
Section 2.3. Procedure for Revolving
Borrowings........................20
Section 2.4.
Swingline
Commitment......................................20
Section 2.5.
Funding of
Borrowings.....................................22
Section 2.6.
Interest
Elections........................................22
Section 2.7.
Optional
Reduction and Termination of Commitments.........23
Section 2.8.
Repayment of
Loans........................................24
Section 2.9.
Evidence of
Indebtedness..................................24
Section 2.10.
Optional
Prepayments......................................24
Section 2.11.
Mandatory
Prepayments.....................................25
Section 2.12.
Interest on
Loans.........................................25
Section 2.13.
Fees......................................................26
Section 2.14.
Computation of
Interest and Fees..........................27
Section 2.15.
Inability to Determine
Interest Rates.....................27
Section 2.16.
Illegality................................................28
Section 2.17.
Increased
Costs...........................................28
Section 2.18.
Funding
Indemnity.........................................29
Section 2.19.
Taxes.....................................................29
Section 2.20.
Payments Generally;
Pro Rata Treatment; Sharing of
Set-offs..................................................31
Section 2.21.
Letters of
Credit.........................................32
Section 2.22.
Increase of
Commitments; Additional Lenders...............37
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND
LETTERS OF CREDIT..............38
Section 3.1.
Conditions To
Effectiveness...............................38
Section 3.2.
Each Credit
Event.........................................40
Section 3.3.
Delivery of
Documents.....................................40
ARTICLE IV REPRESENTATIONS AND
WARRANTIES...................................40
Section 4.1.
Existence;
Power..........................................41
Section 4.2.
Organizational
Power; Authorization.......................41
Section 4.3.
Governmental
Approvals; No Conflicts......................41
Section 4.4.
Financial
Statements......................................41
Section 4.5.
Litigation and
Environmental Matters......................42
Section 4.6.
Compliance with
Laws and Agreements.......................42
Section 4.7.
Investment
Company Act, Etc. .............................42
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Section 4.8.
Taxes.....................................................42
Section 4.9.
Margin
Regulations........................................42
Section 4.10.
ERISA.....................................................43
Section 4.11.
Ownership of
Property.....................................43
Section 4.12.
Disclosure................................................43
Section 4.13.
Labor
Relations...........................................44
Section 4.14.
Subsidiaries..............................................44
Section 4.15.
Insolvency................................................44
ARTICLE V AFFIRMATIVE
COVENANTS............................................44
Section 5.1.
Financial
Statements and Other Information................44
Section 5.2.
Notices of
Material Events................................45
Section 5.3.
Existence;
Conduct of Business............................46
Section 5.4.
Compliance with
Laws, Etc. ...............................46
Section 5.5.
Payment of
Obligations....................................46
Section 5.6.
Books and
Records.........................................46
Section 5.7.
Visitation,
Inspection, Etc. .............................47
Section 5.8.
Maintenance of
Properties; Insurance......................47
Section 5.9.
Use of Proceeds
and Letters of Credit.....................47
Section 5.10.
Additional
Subsidiaries...................................47
ARTICLE VI FINANCIAL
COVENANTS..............................................48
Section 6.1.
Leverage
Ratio............................................48
Section 6.2.
Interest
Coverage Ratio...................................48
Section 6.3.
Consolidated Net
Worth....................................48
ARTICLE VII NEGATIVE
COVENANTS...............................................48
Section 7.1.
Indebtedness and
Preferred Equity.........................48
Section 7.2.
Negative
Pledge...........................................49
Section 7.3.
Fundamental
Changes.......................................50
Section 7.4. Investments, Loans,
Etc...................................51
Section 7.5.
Restricted
Payments.......................................51
Section 7.6.
Sale of
Assets............................................52
Section 7.7.
Transactions
with Affiliates..............................52
Section 7.8.
Restrictive
Agreements....................................52
Section 7.9.
Sale and
Leaseback Transactions...........................53
Section 7.10.
Hedging
Transactions......................................53
Section 7.11.
Amendment to Material
Documents...........................53
Section 7.12.
Accounting
Changes........................................53
ARTICLE VIII EVENTS OF
DEFAULT................................................53
Section 8.1.
Events of
Default.........................................53
ARTICLE IX THE ADMINISTRATIVE
AGENT.........................................56
Section 9.1.
Appointment of
Administrative Agent.......................56
Section 9.2.
Nature of Duties
of Administrative Agent..................56
Section 9.3.
Lack of Reliance
on the Administrative Agent..............57
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Section 9.4.
Certain Rights
of the Administrative Agent................57
Section 9.5.
Reliance by
Administrative Agent..........................57
Section 9.6.
The
Administrative Agent in its Individual Capacity.......58
Section 9.7.
Successor
Administrative Agent............................58
Section 9.8.
Authorization to
Execute other Loan Documents.............59
ARTICLE X
MISCELLANEOUS....................................................59
Section 10.1.
Notices...................................................59
Section 10.2.
Waiver;
Amendments........................................61
Section 10.3.
Expenses;
Indemnification.................................62
Section 10.4.
Successors and
Assigns....................................63
Section 10.5.
Governing Law;
Jurisdiction; Consent to Service of
Process...................................................65
Section 10.6.
WAIVER OF JURY
TRIAL......................................66
Section 10.7.
Right of
Setoff...........................................66
Section 10.8.
Counterparts;
Integration.................................67
Section 10.9.
Survival..................................................67
Section 10.10.
Severability..............................................67
Section 10.11.
Confidentiality...........................................67
Section 10.12.
Interest Rate Limitation..................................68
Section 10.13.
Waiver of Effect of Corporate Seal........................68
Schedules
---------
Schedule I
-
Applicable Margin and
Applicable Percentage
Schedule 4.5
-
Environmental
Matters
Schedule 4.14
- Subsidiaries
Schedule 7.1
-
Outstanding
Indebtedness
Schedule 7.2
-
Existing Liens
Schedule 7.4
-
Existing
Investments
Exhibits
--------
Exhibit A
-
Form of Assignment and
Acceptance
Exhibit B
-
Form of Revolving
Credit Note
Exhibit C
-
Form of Subsidiary
Guaranty Agreement
Exhibit D
-
Form of Swingline
Note
Exhibit E
-
Form of Lender Joinder
Agreement
Exhibit 2.3
-
Form of Notice of
Revolving Borrowing
Exhibit 2.4
-
Form of Notice of
Swingline Borrowing
Exhibit 2.6
-
Form of
Continuation/Conversion
Exhibit 5.1(c)
- Form of Compliance Certificate
iii
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REVOLVING CREDIT AGREEMENT
--------------------------
THIS REVOLVING CREDIT AGREEMENT (this "Agreement") is made and
entered
into as of February 5, 2004, by and among
PRIORITY HEALTHCARE CORPORATION, an
Indiana corporation (the "Borrower"), the
several banks and other financial
institutions and lenders from time to time
party hereto (the "Lenders"), and
SUNTRUST BANK, in its capacity as
administrative agent for the Lenders (the
"Administrative Agent"), as issuing bank
(the "Issuing Bank") and as swingline
lender (the "Swingline Lender").
W I T N E S S E T H:
--------------------
WHEREAS, the Borrower has requested that the Lenders establish
a
revolving credit facility in favor of the
Borrower; and
WHEREAS, subject to the terms and conditions of this Agreement,
the
Lenders, the Issuing Bank and the Swingline
Lender, to the extent of their
respective Commitments as defined herein,
are willing severally to establish the
requested revolving credit facility, letter
of credit subfacility and the
swingline subfacility in favor of the
Borrower;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower,
the Lenders, the Administrative Agent,
the Issuing Bank and the Swingline Lender
agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
-------------------------
Section 1.1.
Definitions. In addition to the other terms defined
herein, the following terms used herein
shall have the meanings herein specified
(to be equally applicable to both the
singular and plural forms of the terms
defined):
"Additional Lender" shall have the meaning given to such term
in
Section 2.22.
"Adjusted LIBO Rate" shall mean, with respect to each Interest
Period
for a Eurodollar Borrowing, the rate per
annum obtained by dividing (i) LIBOR
for such Interest Period by (ii) a
percentage equal to 1.00 minus the Eurodollar
Reserve Percentage.
"Administrative Questionnaire" shall mean, with respect to each
Lender, an administrative questionnaire in
the form prepared by the
Administrative Agent and submitted to the
Administrative Agent duly completed by
such Lender.
"Affiliate" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more
intermediaries, Controls, is
Controlled by, or is under common Control
with, such Person. For the purposes of
this definition, "Control" shall mean the
power, directly or indirectly, either
to (i) vote 5% or more of the securities
having ordinary voting power for the
election of directors (or persons
performing similar functions) of a Person or
(ii) direct or cause the direction of the
management and policies of a Person,
whether through the ability to
<PAGE>
exercise voting power, by control or
otherwise. The terms "Controlling",
"Controlled by", and "under common Control
with" have the meanings correlative
thereto.
"Aggregate Revolving Commitment Amount" shall mean the
aggregate
principal amount of the Aggregate Revolving
Commitments from time to time. On
the Closing Date, the Aggregate Revolving
Commitment Amount equals $40,000,000.
"Aggregate Revolving Commitments" shall mean, collectively, all
Revolving Commitments of all Lenders at any
time outstanding.
"Applicable Lending Office" shall mean, for each Lender and for
each
Type of Loan, the "Lending Office" of such
Lender (or an Affiliate of such
Lender) designated for such Type of Loan in
the Administrative Questionnaire
submitted by such Lender or such other
office of such Lender (or an Affiliate of
such Lender) as such Lender may from time
to time specify to the Administrative
Agent and the Borrower as the office by
which its Loans of such Type are to be
made and maintained.
"Applicable Margin" shall mean, as of any date, with respect to
interest on all Revolving Loans outstanding
on any date or the letter of credit
fee, as the case may be, a percentage per
annum determined by reference to the
applicable Leverage Ratio from time to time
in effect as set forth on Schedule
I; provided, that a change in the
Applicable Margin resulting from a change in
the Leverage Ratio shall be effective on
the second Business Day after which the
Borrower delivers the financial statements
required by Section 5.1(a) or (b) and
the Compliance Certificate required by
Section 5.1(c); provided further, that if
at any time the Borrower shall have failed
to deliver such financial statements
and such Compliance Certificate when so
required, the Applicable Margin shall be
at Level V as set forth on Schedule I until
such time as such financial
statements and Compliance Certificate are
delivered, at which time the
Applicable Margin shall be determined as
provided above. Notwithstanding the
foregoing, the Applicable Margin from the
Closing Date until the financial
statements and Compliance Certificate for
the Fiscal Quarter ending June 30,
2004 are required to be delivered shall be
at Level II as set forth on
Schedule I.
"Applicable Percentage" shall mean, as of any date, with respect
to
the facility fee as of any date, the
percentage per annum determined by
reference to the applicable Leverage Ratio
in effect on such date as set forth
on Schedule I; provided, that a change in
the Applicable Percentage resulting
from a change in the Leverage Ratio shall
be effective on the second Business
Day after which the Borrower delivers the
financial statements required by
Section 5.1(a) or (b) and the Compliance
Certificate required by Section 5.1(c);
provided further, that if at any time the
Borrower shall have failed to deliver
such financial statements and such
Compliance Certificate, the Applicable
Percentage shall be at Level V as set forth
on Schedule I until such time as
such financial statements and Compliance
Certificate are delivered, at which
time the Applicable Percentage shall be
determined as provided above.
Notwithstanding the foregoing, the
Applicable Percentage for the facility fee
from the Closing Date until the financial
statements and Compliance Certificate
for the Fiscal Quarter ending June 30, 2004
are required to be delivered shall
be at Level II as set forth on Schedule
I.
2
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"Approved Fund" shall mean any Person (other than a natural
Person)
that is (or will be) engaged in making,
purchasing, holding or otherwise
investing in commercial loans and similar
extensions of credit in the ordinary
course of its business and that is
administered or managed by (i) a Lender, (ii)
an Affiliate of a Lender or (iii) an entity
or an Affiliate of an entity that
administers or manages a Lender.
"Assignment and Acceptance" shall mean an assignment and
acceptance
entered into by a Lender and an assignee
(with the consent of any party whose
consent is required by Section 10.4(b)) and
accepted by the Administrative
Agent, in the form of Exhibit A attached
hereto or any other form approved by
the Administrative Agent.
"Availability Period" shall mean the period from the Closing Date
to
the Revolving Commitment Termination
Date.
"Base Rate" shall mean the higher of (i) the per annum rate which
the
Administrative Agent publicly announces
from time to time to be its prime
lending rate, as in effect from time to
time, and (ii) the Federal Funds Rate,
as in effect from time to time, plus
one-half of one percent (0.50%). The
Administrative Agent's prime lending rate
is a reference rate and does not
necessarily represent the lowest or best
rate charged to customers. The
Administrative Agent may make commercial
loans or other loans at rates of
interest at, above or below the
Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime
lending rate shall be effective from
and including the date such change is
publicly announced as being effective.
"Borrowing" shall mean a borrowing consisting of (i) Revolving
Loans
of the same Class and Type, made, converted
or continued on the same date and in
the case of Eurodollar Loans, as to which a
single Interest Period is in effect,
or (ii) a Swingline Loan.
"Business Day" shall mean (i) any day other than a Saturday, Sunday
or
other day on which commercial banks in
Atlanta, Georgia are authorized or
required by law to close and (ii) if such
day relates to a Borrowing of, a
payment or prepayment of principal or
interest on, a conversion of or into, or
an Interest Period for, a Eurodollar Loan
or a notice with respect to any of the
foregoing, any day on which dealings in
Dollars are carried on in the London
interbank market.
"Capital Expenditures" shall mean for any period, without
duplication,
(i) the additions to property, plant and
equipment and other capital
expenditures of the Borrower and its
Subsidiaries that are (or would be) set
forth on a consolidated statement of cash
flows of the Borrower for such period
prepared in accordance with GAAP and (ii)
Capital Lease Obligations incurred by
the Borrower and its Subsidiaries during
such period.
"Capital Lease Obligations" of any Person shall mean all
obligations
of such Person to pay rent or other amounts
under any lease (or other
arrangement conveying the right to use) of
real or personal property, or a
combination thereof, which obligations are
required to be classified and
accounted for as capital leases on a
balance sheet of such Person under GAAP,
and the amount of such obligations shall be
the capitalized amount thereof
determined in accordance with GAAP.
3
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"Capital Stock" shall mean any non-redeemable capital stock (or in
the
case of a partnership or limited liability
company, the partners' or members'
equivalent equity interest) of the Borrower
or any of its Subsidiaries (to the
extent issued to a Person other than the
Borrower), whether common or preferred.
"Change in Control" shall mean the occurrence of one or more of
the
following events: (i) any sale, lease,
exchange or other transfer (in a single
transaction or a series of related
transactions) of all or substantially all of
the assets of the Borrower to any Person or
"group" (within the meaning of the
Securities Exchange Act of 1934 and the
rules of the Securities and Exchange
Commission thereunder in effect on the date
hereof), (ii) the acquisition of
ownership, directly or indirectly,
beneficially or of record, by any Person or
"group" (within the meaning of the
Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission
thereunder as in effect on the date
hereof) of 35% or more of the outstanding
shares of the voting stock of the
Borrower, or (iii) occupation of a majority
of the seats (other than vacant
seats) on the board of directors of the
Borrower by Persons who were neither (a)
nominated by the current board of directors
nor (b) appointed by directors so
nominated.
"Change in Law" shall mean (i) the adoption of any applicable
law,
rule or regulation after the date of this
Agreement, (ii) any change in any
applicable law, rule or regulation, or any
change in the interpretation or
application thereof, by any Governmental
Authority after the date of this
Agreement, or (iii) compliance by any
Lender (or its Applicable Lending Office)
or the Issuing Bank (or for purposes of
Section 2.17(b), by such Lender's or the
Issuing Bank's holding company, if
applicable) with any request, guideline or
directive (whether or not having the force
of law) of any Governmental Authority
made or issued after the date of this
Agreement.
"Class", when used in reference to any Loan or Borrowing, refers
to
whether such Loan, or the Loans comprising
such Borrowing, are Revolving Loans
or Swingline Loans and when used in
reference to any Commitment, refers to
whether such Commitment is a Revolving
Commitment or a Swingline Commitment.
"Closing Date" shall mean the date on which the conditions
precedent
set forth in Section 3.1 and Section 3.2
have been satisfied or waived in
accordance with Section 10.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended and
in
effect from time to time.
"Commitment" shall mean a Revolving Commitment or a Swingline
Commitment or any combination thereof (as
the context shall permit or require).
"Compliance Certificate" shall mean a certificate from the
principal
executive officer and the principal
financial officer of the Borrower in the
form of, and containing the certifications
set forth in, the certificate
attached hereto as Exhibit 5.1(c).
"Consolidated EBITDA" shall mean, for the Borrower and its
Subsidiaries for any period, an amount
equal to the sum of (i) Consolidated Net
Income for such period plus (ii) to the
extent deducted in determining
Consolidated Net Income for such period,
(A) Consolidated Interest Expense, (B)
income tax expense determined on a
consolidated basis in accordance with
4
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GAAP, (C) depreciation and amortization
determined on a consolidated basis in
accordance with GAAP, and (D) all other
non-cash charges acceptable to the
Administrative Agent, determined on a
consolidated basis in accordance with
GAAP, in each case for such period.
"Consolidated Interest Expense" shall mean, for the Borrower and
its
Subsidiaries for any period determined on a
consolidated basis in accordance
with GAAP, total interest expense,
including without limitation the interest
component of any payments in respect of
Capital Lease Obligations capitalized or
expensed during such period (whether or not
actually paid during such period).
"Consolidated Net Income" shall mean, for the Borrower and its
Subsidiaries for any period, the net income
(or loss) of the Borrower and its
Subsidiaries for such period determined on
a consolidated basis in accordance
with GAAP, but excluding therefrom (to the
extent otherwise included therein)
(i) any extraordinary gains or losses, (ii)
any gains attributable to write-ups
of assets, (iii) any equity interest of the
Borrower or any Subsidiary of the
Borrower in the unremitted earnings of any
Person that is not a Subsidiary and
(iv) any income (or loss) of any Person
accrued prior to the date it becomes a
Subsidiary or is merged into or
consolidated with the Borrower or any Subsidiary
on the date that such Person's assets are
acquired by the Borrower or any
Subsidiary.
"Consolidated Net Worth" shall mean, as of any date, (i) the
total
assets of the Borrower and its Subsidiaries
that would be reflected on the
Borrower's consolidated balance sheet as of
such date prepared in accordance
with GAAP, after eliminating all amounts
properly attributable to minority
interests, if any, in the stock and surplus
of Subsidiaries, minus (ii) the sum
of (x) the total liabilities of the
Borrower and its Subsidiaries that would be
reflected on the Borrower's consolidated
balance sheet as of such date prepared
in accordance with GAAP (y) the amount of
any write-up in the book value of any
assets resulting from a revaluation thereof
or any write-up in excess of the
cost of such assets acquired reflected on
the consolidated balance sheet of the
Borrower as of such date prepared in
accordance with GAAP and (z) the net book
amount of all other assets of Borrower and
its Subsidiaries that would be
classified as intangible assets on
Borrower's consolidated balance sheet as of
such date prepared in accordance with
GAAP.
"Consolidated Total Debt" shall mean, as of any date, all
Indebtedness
of the Borrower and its Subsidiaries
measured on a consolidated basis as of such
date, but excluding Indebtedness of the
type described in subsection (xi) of the
definition thereto.
"Contractual Obligation" of any Person shall mean any provision of
any
security issued by such Person or of any
agreement, instrument or undertaking
under which such Person is obligated or by
which it or any of the property in
which it has an interest is bound.
"Default" shall mean any condition or event that, with the giving
of
notice or the lapse of time or both, would
constitute an Event of Default.
"Default Interest" shall have the meaning set forth in Section
2.12(c).
"Dollar(s)" and the sign "$" shall mean lawful money of the
United
States of America.
5
<PAGE>
"Eligible Assignee" shall mean (i) a Lender; (ii) an Affiliate of
a
Lender; (iii) an Approved Fund; and (iv)
any other Person (other than a natural
Person) approved by the Administrative
Agent, the Issuing Bank and the Borrower
(each such approval not to be unreasonably
withheld or delayed); provided that
the consent of the Borrower shall not be
required if (x) such Person is taking
delivery of an assignment in connection
with physical settlement of a credit
derivatives transaction or (y) an Event of
Default has occurred and is
continuing. If the consent of the Borrower
to an assignment or to an Eligible
Assignee is required hereunder (including a
consent to an assignment which does
not meet the minimum assignment thresholds
specified in paragraph (b)(i) of
Section 10.4), the Borrower shall be deemed
to have given its consent five
Business Days after the date notice thereof
has actually been delivered by the
assigning Lender (through the
Administrative Agent) to the Borrower, unless such
consent is expressly refused by the
Borrower prior to such fifth Business Day.
"Environmental Laws" shall mean all laws, rules, regulations,
codes,
ordinances, orders, decrees, judgments,
injunctions, notices or binding
agreements issued, promulgated or entered
into by or with any Governmental
Authority, relating in any way to the
environment, preservation or reclamation
of natural resources, the management,
Release or threatened Release of any
Hazardous Material or to health and safety
matters.
"Environmental Liability" shall mean any liability, contingent
or
otherwise (including any liability for
damages, costs of environmental
investigation and remediation, costs of
administrative oversight, fines, natural
resource damages, penalties or
indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or
based upon (i) any actual or alleged
violation of any Environmental Law, (ii)
the generation, use, handling,
transportation, storage, treatment or
disposal of any Hazardous Materials, (iii)
any actual or alleged exposure to any
Hazardous Materials, (iv) the Release or
threatened Release of any Hazardous
Materials or (v) any contract, agreement or
other consensual arrangement pursuant to
which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act
of
1974, as amended from time to time, and any
successor statute.
"ERISA Affiliate" shall mean any trade or business (whether or
not
incorporated), which, together with the
Borrower, is treated as a single
employer under Section 414(b) or (c) of the
Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the
Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (i) any "reportable event", as defined
in
Section 4043 of ERISA or the regulations
issued thereunder with respect to a
Plan (other than an event for which the
30-day notice period is waived); (ii)
the existence with respect to any Plan of
an "accumulated funding deficiency"
(as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not
waived; (iii) the filing pursuant to
Section 412(d) of the Code or Section
303(d) of ERISA of an application for a
waiver of the minimum funding standard
with respect to any Plan; (iv) the
incurrence by the Borrower or any of its
ERISA Affiliates of any liability under
Title IV of ERISA with respect to the
termination of any Plan; (v) the receipt by
the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator
appointed by the PBGC of any notice
relating to an intention to terminate any
Plan or Plans or to appoint a trustee
6
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to administer any Plan; (vi) the incurrence
by the Borrower or any of its ERISA
Affiliates of any liability with respect to
the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or
(vii) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any
notice, concerning the imposition of
Withdrawal Liability or a determination
that a Multiemployer Plan is, or is
expected to be, insolvent or in
reorganization, within the meaning of Title IV
of ERISA.
"Eurodollar" when used in reference to any Loan or Borrowing,
refers
to whether such Loan, or the Loans
comprising such Borrowing, bears interest at
a rate determined by reference to the
Adjusted LIBO Rate.
"Eurodollar Reserve Percentage" shall mean the aggregate of the
maximum reserve percentages (including,
without limitation, any emergency,
supplemental, special or other marginal
reserves) expressed as a decimal
(rounded upwards to the next 1/100/th/ of
1%) in effect on any day to which the
Administrative Agent is subject with
respect to the Adjusted LIBO Rate pursuant
to regulations issued by the Board of
Governors of the Federal Reserve System
(or any Governmental Authority succeeding
to any of its principal functions)
with respect to eurocurrency funding
(currently referred to as "eurocurrency
liabilities" under Regulation D).
Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to
such reserve requirements without
benefit of or credit for proration,
exemptions or offsets that may be available
from time to time to any Lender under
Regulation D. The Eurodollar Reserve
Percentage shall be adjusted automatically
on and as of the effective date of
any change in any reserve percentage.
"Event of Default" shall have the meaning provided in Article
VIII.
"Excluded Subsidiary" shall mean each of Pharmacy Plus, Inc., a
Florida corporation,
Priorityhealthcare.com, Inc., a Florida corporation, First
RX, Inc., a Florida corporation, and other
immaterial Subsidiaries of the
Borrower acquired or formed after the date
hereof; provided, however, at no time
shall the fair market value of all assets
of all Excluded Subsidiaries exceed
$100,000 in the aggregate.
"Excluded Taxes" shall mean with respect to the Administrative
Agent,
any Lender, the Issuing Bank or any other
recipient of any payment to be made by
or on account of any obligation of the
Borrower hereunder, (i) income or
franchise taxes imposed on (or measured by)
its net income by the United States
of America, or by the jurisdiction under
the laws of which such recipient is
organized or in which its principal office
is located or, in the case of any
Lender, in which its applicable lending
office is located, (ii) any branch
profits taxes imposed by the United States
of America or any similar tax imposed
by any other jurisdiction in which any
Lender is located and (iii) in the case
of a Foreign Lender, any withholding tax
that (x) is imposed on amounts payable
to such Foreign Lender at the time such
Foreign Lender becomes a party to this
Agreement, (y) is imposed on amounts
payable to such Foreign Lender at any time
that such Foreign Lender designates a new
lending office, other than taxes that
have accrued prior to the designation of
such lending office that are otherwise
not Excluded Taxes, and (z) is attributable
to such Foreign Lender's failure to
comply with Section 2.19(e).
7
<PAGE>
"Federal Funds Rate" shall mean, for any day, the rate per
annum
(rounded upwards, if necessary, to the next
1/100/th/ of 1%) equal to the
weighted average of the rates on overnight
Federal funds transactions with
member banks of the Federal Reserve System
arranged by Federal funds brokers, as
published by the Federal Reserve Bank of
New York on the next succeeding
Business Day or if such rate is not so
published for any Business Day, the
Federal Funds Rate for such day shall be
the average rounded upwards, if
necessary, to the next 1/100th of 1% of the
quotations for such day on such
transactions received by the Administrative
Agent from three Federal funds
brokers of recognized standing selected by
the Administrative Agent.
"Fee Letter" shall mean that certain fee letter, dated as of
February
5, 2004, executed by SunTrust Capital
Markets, Inc. and accepted by Borrower.
"Fiscal Quarter" shall mean any fiscal quarter of the Borrower.
"Fiscal Year" shall mean any fiscal year of the Borrower.
"Foreign Lender" shall mean any Lender that is not a United
States
person under Section 7701(a)(3) of the
Code.
"Foreign Subsidiary" shall mean any Subsidiary that is organized
under
the laws of a jurisdiction other than one
of the fifty states of the United
States or the District of Columbia.
"GAAP" shall mean generally accepted accounting principles in
the
United States applied on a consistent basis
and subject to the terms of Section
1.3.
"Governmental Authority" shall mean the government of the
United
States of America, any other nation or any
political subdivision thereof,
whether state or local, and any agency,
authority, instrumentality, regulatory
body, court, central bank or other entity
exercising executive, legislative,
judicial, taxing, regulatory or
administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") shall mean
any
obligation, contingent or otherwise, of the
guarantor guaranteeing or having the
economic effect of guaranteeing any
Indebtedness or other obligation of any
other Person (the "primary obligor") in any
manner, whether directly or
indirectly and including any obligation,
direct or indirect, of the guarantor
(i) to purchase or pay (or advance or
supply funds for the purchase or payment
of) such Indebtedness or other obligation
or to purchase (or to advance or
supply funds for the purchase of) any
security for the payment thereof, (ii) to
purchase or lease property, securities or
services for the purpose of assuring
the owner of such Indebtedness or other
obligation of the payment thereof, (iii)
to maintain working capital, equity capital
or any other financial statement
condition or liquidity of the primary
obligor so as to enable the primary
obligor to pay such Indebtedness or other
obligation or (iv) as an account party
in respect of any letter of credit or
letter of guaranty issued in support of
such Indebtedness or obligation; provided,
that the term "Guarantee" shall not
include endorsements for collection or
deposits in the ordinary course of
business. The amount of any Guarantee shall
be deemed to be an amount equal to
the stated or determinable amount of the
primary obligation in respect of which
Guarantee is made or, if not so stated or
determinable, the maximum reasonably
anticipated liability in respect
thereof
8
<PAGE>
(assuming such Person is required to
perform thereunder) as determined by such
Person in good faith. The term "Guarantee"
used as a verb has a corresponding
meaning.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes and all hazardous or
toxic substances, wastes or other
pollutants, including petroleum or
petroleum distillates, asbestos or asbestos
containing materials, polychlorinated
biphenyls, radon gas, infectious or
medical wastes and all other substances or
wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Obligations" of any Person shall mean any and all
obligations
of such Person, whether absolute or
contingent and howsoever and whensoever
created, arising, evidenced or acquired
under (i) any and all Hedging
Transactions, (ii) any and all
cancellations, buy backs, reversals, terminations
or assignments of any Hedging Transactions
and (iii) any and all renewals,
extensions and modifications of any Hedging
Transactions and any and all
substitutions for any Hedging
Transactions.
"Hedging Transaction" of any Person shall mean any transaction
(including an agreement with respect
thereto) now existing or hereafter entered
into by such Person that is a rate swap,
basis swap, forward rate transaction,
commodity swap, interest rate option,
foreign exchange transaction, cap
transaction, floor transaction, collateral
transaction, forward transaction,
currency swap transaction, cross-currency
rate swap transaction, currency option
or any other similar transaction (including
any option with respect to any of
these transactions) or any combination
thereof, whether linked to one or more
interest rates, foreign currencies,
commodity prices, equity prices or other
financial measures.
"Indebtedness" of any Person shall mean, without duplication (i)
all
obligations of such Person for borrowed
money, (ii) all obligations of such
Person evidenced by bonds, debentures,
notes or other similar instruments, (iii)
all obligations of such Person in respect
of the deferred purchase price of
property or services (other than trade
payables incurred in the ordinary course
of business; provided, that for purposes of
Section 8.1(f), trade payables
overdue by more than 120 days shall be
included in this definition except to the
extent that any of such trade payables are
being disputed in good faith and by
appropriate measures), (iv) all obligations
of such Person under any conditional
sale or other title retention agreement(s)
relating to property acquired by such
Person, (v) all Capital Lease Obligations
of such Person, (vi) all obligations,
contingent or otherwise, of such Person in
respect of letters of credit,
acceptances or similar extensions of
credit, (vii) all Guarantees of such Person
of the type of Indebtedness described in
clauses (i) through (vi) above, (viii)
all Indebtedness of a third party secured
by any Lien on property owned by such
Person, whether or not such Indebtedness
has been assumed by such Person, (ix)
all obligations of such Person, contingent
or otherwise, to purchase, redeem,
retire or otherwise acquire for value any
common stock of such Person, (x)
Off-Balance Sheet Liabilities and (xi) all
Hedging Obligations. The Indebtedness
of any Person shall include the
Indebtedness of any partnership or joint venture
in which such Person is a general partner
or a joint venturer, except to the
extent that the terms of such Indebtedness
provide that such Person is not
liable therefor.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
9
<PAGE>
"Information Memorandum" shall mean the Confidential
Information
Memorandum dated January 2004 relating to
the Borrower and the transactions
contemplated by this Agreement and the
other Loan Documents.
"Interest Coverage Ratio" shall mean, as of any date, the ratio of
(i)
Consolidated EBITDA less the actual amount
paid by the Borrower and its
Subsidiaries in cash on account of income
taxes, for the four consecutive Fiscal
Quarters ending on or immediately prior to
such date to (ii) Consolidated
Interest Expense for the four consecutive
Fiscal Quarters ending on or
immediately prior to such date.
"Interest Period" shall mean with respect to any Eurodollar
Borrowing,
a period of one, two, three or six months;
provided, that:
(i) the initial
Interest Period for such Borrowing shall commence on
the date of such
Borrowing (including the date of any conversion from a
Borrowing of
another Type), and each Interest Period occurring thereafter
in respect of
such Borrowing shall commence on the day on which the next
preceding
Interest Period expires;
(ii) if any Interest
Period would otherwise end on a day other than a
Business Day,
such Interest Period shall be extended to the next succeeding
Business Day,
unless such Business Day falls in another calendar month, in
which case such
Interest Period would end on the next preceding Business
Day;
(iii) any Interest Period which begins on the last Business Day of
a
calendar month
or on a day for which there is no numerically corresponding
day in the
calendar month at the end of such Interest Period shall end on
the last
Business Day of such calendar month;
(iv) no Interest
Period may extend beyond the Revolving Commitment
Termination
Date.
"Issuing Bank" shall mean SunTrust Bank or any other Lender, each
in
its capacity as an issuer of Letters of
Credit pursuant to Section 2.21.
"LC Commitment" shall mean that portion of the Aggregate
Revolving
Commitment Amount that may be used by the
Borrower for the issuance of Letters
of Credit in an aggregate face amount not
to exceed $10,000,000.
"LC Disbursement" shall mean a payment made by the Issuing Bank
pursuant to a drawing under a Letter of
Credit.
"LC Documents" shall mean the Letters of Credit and all
applications,
agreements and instruments relating to the
Letters of Credit.
"LC Exposure" shall mean, at any time, the sum of (i) the
aggregate
undrawn amount of all outstanding Letters
of Credit at such time, plus (ii) the
aggregate amount of all LC Disbursements
that have not been reimbursed by or on
behalf of the Borrower at such time. The LC
Exposure of any Lender shall be its
Pro Rata Share of the total LC Exposure at
such time.
10
<PAGE>
"Lender Joinder" shall have the meaning set forth in Section
2.22.
"Lenders" shall have the meaning assigned to such term in the
opening
paragraph of this Agreement and shall
include, where appropriate, the Swingline
Lender and each Additional Lender that
joins this Agreement pursuant to Section
2.22.
"Letter of Credit" shall mean any stand-by letter of credit
issued
pursuant to Section 2.21 by the Issuing
Bank for the account of the Borrower
pursuant to the LC Commitment.
"Leverage Ratio" shall mean, as of any date, the ratio of (i)
Consolidated Total Debt as of such date to
(ii) Consolidated EBITDA for the four
consecutive Fiscal Quarters ending on or
immediately prior to such date.
"LIBOR" shall mean, for any applicable Interest Period with respect
to
any Eurodollar Loan, the British Bankers'
Association Interest Settlement Rate
per annum for deposits in Dollars for a
period equal to such Interest Period
appearing on the display designated as Page
3750 on the Dow Jones Markets
Service (or such other page on that service
or such other service designated by
the British Bankers' Association for the
display of such Association's Interest
Settlement Rates for Dollar deposits) as of
11:00 a.m. (London, England time) on
the day that is two Business Days prior to
the first day of the Interest Period
or if such Page 3750 is unavailable for any
reason at such time, the rate which
appears on the Reuters Screen ISDA Page as
of such date and such time; provided,
that if the Administrative Agent determines
that the relevant foregoing sources
are unavailable for the relevant Interest
Period, LIBOR shall mean the rate of
interest determined by the Administrative
Agent to be the average (rounded
upward, if necessary, to the nearest
1/100/th/ of 1%) of the rates per annum at
which deposits in Dollars are offered to
the Administrative Agent two (2)
Business Days preceding the first day of
such Interest Period by leading banks
in the London interbank market as of 10:00
a.m. for delivery on the first day of
such Interest Period, for the number of
days comprised therein and in an amount
comparable to the amount of the Eurodollar
Loan of the Administrative Agent.
"Lien" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), charge,
encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement
having the practical effect of the
foregoing or any preference, priority or
other security agreement or
preferential arrangement of any kind or
nature whatsoever (including any
conditional sale or other title retention
agreement and any capital lease having
the same economic effect as any of the
foregoing).
"Loan Documents" shall mean, collectively, this Agreement, the
Notes
(if any), the LC Documents, the Subsidiary
Guaranty Agreement, all Notices of
Borrowing, all Notices of
Conversion/Continuation, all Compliance Certificates
and any and all other instruments,
agreements, documents and writings executed
in connection with any of the
foregoing.
"Loan Parties" shall mean the Borrower and the Subsidiary Loan
Parties.
"Loans" shall mean all Revolving Loans and Swingline Loans in
the
aggregate or any of them, as the context
shall require.
11
<PAGE>
"Material Adverse Effect" shall mean, with respect to any event,
act,
condition or occurrence of whatever nature
(including any adverse determination
in any litigation, arbitration, or
governmental investigation or proceeding),
whether singularly or in conjunction with
any other event or events, act or
acts, condition or conditions, occurrence
or occurrences whether or not related,
a material adverse change in, or a material
adverse effect on, (i) the business,
results of operations, financial condition,
assets, liabilities or prospects of
the Borrower or of the Borrower and its
Subsidiaries taken as a whole, (ii) the
ability of the Loan Parties taken as a
whole to perform their obligations under
the Loan Documents, (iii) the rights and
remedies of the Administrative Agent,
the Issuing Bank, Swingline Lender, and the
Lenders under any of the Loan
Documents or (iv) the legality, validity or
enforceability of any of the Loan
Documents.
"Material Indebtedness" shall mean Indebtedness (other than the
Loans
and Letters of Credit) and Hedging
Obligations, of any one or all of the Loan
Parties and their Subsidiaries,
individually or in an aggregate principal amount
exceeding $5,000,000. For purposes of
determining the amount of attributed
Indebtedness from Hedging Obligations, the
"principal amount" of any Hedging
Obligations at any time shall be the Net
Mark-to-Market Exposure of such Hedging
Obligations.
"Material Subsidiary" shall mean all Subsidiaries of the
Borrower
except Excluded Subsidiaries.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in
Section
4001(a)(3) of ERISA.
"Net Mark-to-Market Exposure" of any Person shall mean, as of any
date
of determination with respect to any
Hedging Obligation, the excess (if any) of
all unrealized losses over all unrealized
profits of such Person arising from
such Hedging Obligation. "Unrealized
losses" shall mean the fair market value of
the cost to such Person of replacing the
Hedging Transaction giving rise to such
Hedging Obligation as of the date of
determination (assuming the Hedging
Transaction were to be terminated as of
that date), and "unrealized profits"
means the fair market value of the gain to
such Person of replacing such Hedging
Transaction as of the date of determination
(assuming such Hedging Transaction
were to be terminated as of that date).
"Notes" shall mean, collectively, the Revolving Credit Notes and
the
Swingline Note.
"Notices of Borrowing" shall mean, collectively, the Notices of
Revolving Borrowing and the Notices of
Swingline Borrowing.
"Notice of Conversion/Continuation" shall mean the notice given by
the
Borrower to the Administrative Agent in
respect of the conversion or
continuation of an outstanding Borrowing as
provided in Section 2.9(b).
"Notice of Revolving Borrowing" shall have the meaning as set forth
in
Section 2.3.
12
<PAGE>
"Notice of Swingline Borrowing" shall have the meaning as set forth
in
Section 2.4.
"Obligations" shall mean all amounts owing by the Borrower to
the
Administrative Agent, the Issuing Bank or
any Lender (including the Swingline
Lender) pursuant to or in connection with
this Agreement or any other Loan
Document, including without limitation, all
principal, interest (including any
interest accruing after the filing of any
petition in bankruptcy or the
commencement of any insolvency,
reorganization or like proceeding relating to
the Borrower, whether or not a claim for
post-filing or post-petition interest
is allowed in such proceeding), all
reimbursement obligations, fees, expenses,
indemnification and reimbursement payments,
costs and expenses (including all
fees and expenses of counsel to the
Administrative Agent, the Issuing Bank and
any Lender (including the Swingline Lender)
incurred pursuant to this Agreement
or any other Loan Document), whether direct
or indirect, absolute or contingent,
liquidated or unliquidated, now existing or
hereafter arising hereunder or
thereunder, and all Hedging Obligations
owing to the Administrative Agent, any
Lender or any of their Affiliates relating
to Indebtedness incurred under this
Agreement, and all obligations and
liabilities incurred in connection with
collecting and enforcing the foregoing,
together with all renewals, extensions,
modifications or refinancings thereof.
"Off-Balance Sheet Liabilities" of any Person shall mean (i)
any
repurchase obligation or liability of such
Person with respect to accounts or
notes receivable sold by such Person, (ii)
any liability of such Person under
any sale and leaseback transactions that do
not create a liability on the
balance sheet of such Person, (iii) any
Synthetic Lease Obligation or (iv) any
obligation arising with respect to any
other transaction which is the functional
equivalent of or takes the place of
borrowing but which does not constitute a
liability on the balance sheet of such
Person.
"OSHA" shall mean the Occupational Safety and Health Act of 1970,
as
amended from time to time, and any
successor statute.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or
property taxes, charges or similar
levies arising from any payment made
hereunder or from the execution, delivery
or enforcement of, or otherwise with
respect to, this Agreement or any other
Loan Document.
"Participant" shall have the meaning set forth in Section
10.4(d).
"Payment Office" shall mean the office of the Administrative
Agent
located at 303 Peachtree Street, N.E.,
Atlanta, Georgia 30308, or such other
location as to which the Administrative
Agent shall have given written notice to
the Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to
and defined in ERISA, and any successor
entity performing similar functions.
"Permitted Acquisition" shall mean an acquisition of a majority
or
more of the capital stock (including more
than 50% of the ordinary voting
power), all or substantially all of the
assets, or a line of business of another
Person (an "Acquisition"); provided that
(i) after giving effect to such
Acquisition, no Default or Event of Default
will have occurred and be
13
<PAGE>
continuing, (ii) the Borrower would be in
compliance with the covenants set
forth in Article VI as of the last day of
the most recently ended Fiscal
Quarter, after giving effect to such
Acquisition on a pro forma basis as if such
Acquisition had occurred on the first day
of any period tested in the covenants
set forth in Article VI, (iii) the board of
directors of the Person being
acquired (or having its assets acquired)
has approved the Acquisition, (iv) the
assets or property being acquired belong to
the same line of business as the
Borrower and its Subsidiaries taken as a
whole or any business reasonably
related thereto, (v) the purchase price (in
cash, stock or other property) paid
by the Borrower or any Subsidiary in any
one Acquisition does not exceed
$50,000,000, (vi) the aggregate purchase
price (in cash, stock or other
property) paid by the Borrower and its
Subsidiaries in all Acquisitions
completed during the term of this Agreement
does not exceed $150,000,000 and
(vii) the Borrower has delivered to the
Agent a certificate certifying that each
of the conditions set forth herein have
been satisfied and demonstrating
compliance with the covenants set forth in
Article VI after giving pro forma
effect to such Acquisition.
"Permitted Encumbrances" shall mean:
(i) Liens
imposed by law for taxes not yet due or which are being
contested in
good faith by appropriate proceedings and with respect to
which adequate
reserves are being maintained in accordance with GAAP;
(ii) statutory Liens
of landlords, carriers, warehousemen, mechanics,
materialmen and
similar Liens arising by operation of law in the ordinary
course of
business for amounts not yet due or which are being contested
in
good faith by
appropriate proceedings and with respect to which adequate
reserves are
being maintained in accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of business
in
compliance with
workers' compensation, unemployment insurance and other
social security
laws or regulations;
(iv) deposits to
secure the performance of bids, trade contracts,
leases,
statutory obligations, surety and appeal bonds, performance
bonds
and other
obligations of a like nature, in each case in the ordinary
course
of business;
(v) judgment and
attachment liens not giving rise to an Event of
Default or Liens
created by or existing from any litigation or legal
proceeding that
are currently being contested in good faith by appropriate
proceedings and
with respect to which adequate reserves are being
maintained in
accordance with GAAP; and
(vi) easements, zoning
restrictions, rights-of-way and similar
encumbrances on
real property imposed by law or arising in the ordinary
course of
business that do not secure any monetary obligations and do not
materially
detract from the value of the affected property or materially
interfere with
the ordinary conduct of business of the Borrower and its
Subsidiaries
taken as a whole;
provided, that the term "Permitted
Encumbrances" shall not include any Lien
securing Indebtedness.
14
<PAGE>
"Permitted
Investments" shall mean:
(i) direct
obligations of, or obligations the principal of and
interest on
which are unconditionally guaranteed by, the United States (or
by any agency
thereof to the extent such obligations are backed by the full
faith and credit
of the United States), in each case maturing within one
year from the
date of acquisition thereof;
(ii) commercial paper
having the highest rating, at the time of
acquisition
thereof, of S&P or Moody's and in either case maturing
within
six months from
the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time
deposits
maturing within
180 days of the date of acquisition thereof issued or
guaranteed by or
placed with, and money market deposit accounts issued or
offered by, any
domestic office of any commercial bank organized under the
laws of the
United States or any state thereof which has a combined capital
and surplus and
undivided profits of not less than $500,000,000;
(iv) fully
collateralized repurchase agreements with a term of not
more than 30
days for securities described in clause (i) above and entered
into with a
financial institution satisfying the criteria described in
clause (iii)
above; and
(v) corporate
bonds having a rating of AA/Aa or better, at the time
of acquisition
thereof, by S&P or Moody's and in either case maturing
within one year
from the date of acquisition thereof;
(vi) mutual funds
investing solely in any one or more of the
Permitted
Investments described in clauses (i) through (v) above.
"Person" shall mean any individual, partnership, firm,
corporation,
association, joint venture, limited
liability company, trust or other entity, or
any Governmental Authority.
"Plan" shall mean any employee pension benefit plan (other than
a
Multiemployer Plan) subject to the
provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan
were terminated, would under Section
4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of
ERISA.
"Pro Rata Share" shall mean with respect to any Commitment of
any
Lender at any time, a percentage, the
numerator of which shall be such Lender's
Commitment (or if such Commitments have
been terminated or expired or the Loans
have been declared to be due and payable,
such Lender's Revolving Credit
Exposure), and the denominator of which
shall be the sum of such Commitments of
all Lenders (or if such Commitments have
been terminated or expired or the Loans
have been declared to be due and payable,
the Revolving Credit Exposure of all
Lenders).
"Regulation D" shall mean Regulation D of the Board of Governors
of
the Federal Reserve System, as the same may
be in effect from time to time, and
any successor regulations.
15
<PAGE>
"Related Parties" shall mean, with respect to any specified
Person,
such Person's Affiliates and the respective
directors, officers, employees,
agents and advisors of such Person and such
Person's Affiliates.
"Release" shall mean any release, spill, emission, leaking,
dumping,
injection, pouring, deposit, disposal,
discharge, dispersal, leaching or
migration into the environment (including
ambient air, surface water,
groundwater, land surface or subsurface
strata) or within any building,
structure, facility or fixture.
"Required Lenders" shall mean, at any time, Lenders holding more
than
50% of the aggregate outstanding Revolving
Commitments at such time or if the
Lenders have no Commitments outstanding,
then Lenders holding more than 50% of
the Revolving Credit Exposure.
"Requirement of Law" for any Person shall mean the articles or
certificate of incorporation, bylaws,
partnership certificate and agreement, or
limited liability company certificate of
organization and agreement, as the case
may be, and other organizational and
governing documents of such Person, and any
law, treaty, rule or regulation, or
determination of a Governmental Authority,
in each case applicable to or binding upon
such Person or any of its property or
to which such Person or any of its property
is subject.
"Responsible Officer" shall mean any of the president, the
chief
executive officer, the chief operating
officer, the chief financial officer, the
treasurer or a vice president of the
Borrower or such other representative of
the Borrower as may be designated in
writing by any one of the foregoing with
the consent of the Administrative Agent;
and, with respect to the financial
covenants only, the chief financial officer
or the treasurer of the Borrower.
"Restricted Payment" shall have the meaning set forth in Section
7.5.
"Revolving Commitment" shall mean, with respect to each Lender,
the
obligation of such Lender to make Revolving
Loans to the Borrower and to
participate in Letters of Credit and
Swingline Loans in an aggregate principal
amount not exceeding the amount set forth
with respect to such Lender on Annex
I, as such annex may be amended pursuant to
Section 2.22, or in the case of a
Person becoming a Lender after the Closing
Date through an assignment of an
existing Revolving Commitment, the amount
of the assigned "Revolving Commitment"
as provided in the Assignment and
Acceptance executed by such Person as an
assignee, as the same may be increased or
deceased pursuant to terms hereof.
"Revolving Commitment Termination Date" shall mean the earliest of
(i)
February 5, 2007, (ii) the date on which
the Revolving Commitments are
terminated pursuant to Section 2.10 and
(iii) the date on which all amounts
outstanding under this Agreement have been
declared or have automatically become
due and payable (whether by acceleration or
otherwise).
"Revolving Credit Exposure" shall mean, with respect to any Lender
at
any time, the sum of the outstanding
principal amount of such Lender's Revolving
Loans, LC Exposure and Swingline
Exposure.
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"Revolving Credit Note" shall mean a promissory note of the
Borrower
payable to the order of a requesting Lender
in the principal amount of such
Lender's Revolving Commitment, in
substantially the form of Exhibit B.
"Revolving Loan" shall mean a loan made by a Lender (other than
the
Swingline Lender) to the Borrower under its
Revolving Commitment, which may
either be a Base Rate Loan or a Eurodollar
Loan.
"S&P" shall mean Standard & Poor's, a Division of the
McGraw-Hill
Companies.
"Subsidiary" shall mean, with respect to any Person (the
"parent"),
any corporation, partnership, joint
venture, limited liability company,
association or other entity the accounts of
which would be consolidated with
those of the parent in the parent's
consolidated financial statements if such
financial statements were prepared in
accordance with GAAP as of such date, as
well as any other corporation, partnership,
joint venture, limited liability
company, association or other entity (i) of
which securities or other ownership
interests representing more than 50% of the
equity or more than 50% of the
ordinary voting power, or in the case of a
partnership, more than 50% of the
general partnership interests are, as of
such date, owned, controlled or held,
or (ii) that is, as of such date, otherwise
controlled, by the parent or one or
more subsidiaries of the parent or by the
parent and one or more subsidiaries of
the parent. Unless otherwise indicated, all
references to "Subsidiary" hereunder
shall mean a Subsidiary of the
Borrower.
"Subsidiary Guaranty Agreement" shall mean the Subsidiary
Guaranty
Agreement, dated as of the date hereof and
substantially in the form of Exhibit
C, made by the Subsidiary Loan Parties in
favor of the Administrative Agent for
the benefit of the Lenders.
"Subsidiary Guaranty Supplement" shall mean each supplement
substantially in the form of Annex I to the
Subsidiary Guaranty Agreement
executed and delivered by a Subsidiary of
the Borrower pursuant to Section 5.10.
"Subsidiary Loan Party" shall mean each Subsidiary that guarantees
the
Obligations.
"Swingline Commitment" shall mean the commitment of the
Swingline
Lender to make Swingline Loans in an
aggregate principal amount at any time
outstanding not to exceed $10,000,000.
"Swingline Exposure" shall mean, with respect to each Lender,
the
principal amount of the Swingline Loans in
which such Lender is legally
obligated either to make a Base Rate Loan
or to purchase a participation in
accordance with Section 2.4, which shall
equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"Swingline Lender" shall mean SunTrust Bank, or any other Lender
that
may agree to make Swingline Loans
hereunder.
"Swingline Loan" shall mean a loan made to the Borrower by the
Swingline Lender under the Swingline
Commitment.
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"Swingline Note" shall mean the promissory note of the Borrower
payable to the order of the Swingline
Lender in the principal amount of the
Swingline Commitment, substantially the
form of Exhibit D.
"Swingline Rate" shall mean the rate as offered by the
Swingline
Lender and accepted by the Borrower. The
Borrower is under no obligation to
accept this rate and the Swingline Lender
is under no obligation to provide it.
"Synthetic Lease" shall mean a lease transaction under which
the
parties intend that (i) the lease will be
treated as an "operating lease" by the
lessee pursuant to Statement of Financial
Accounting Standards No. 13, as
amended and (ii) the lessee will be
entitled to various tax and other benefits
ordinarily available to owners (as opposed
to lessees) of like property.
"Synthetic Lease Obligations" shall mean, with respect to any
Person,
the sum of (i) all remaining rental
obligations of such Person as lessee under
Synthetic Leases which are attributable to
principal and, without duplication,
(ii) all rental and purchase price payment
obligations of such Person under such
Synthetic Leases assuming such Person
exercises the option to purchase the lease
property at the end of the lease term.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or
withholdings imposed by any Governmental
Authority.
"Type", when used in reference to a Loan or Borrowing, refers
to
whether the rate of interest on such Loan,
or on the Loans comprising such
Borrowing, is determined by reference to
the Adjusted LIBO Rate or the Base
Rate.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan
as
a result of a complete or partial
withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
Section 1.2.
Classifications of Loans and Borrowings. For purposes
of this Agreement, Loans may be classified
and referred to by Class (e.g. a
"Revolving Loan") or by Type (e.g. a
"Eurodollar Loan" or "Base Rate Loan") or
by Class and Type (e.g. "Revolving
Eurodollar Loan"). Borrowings also may be
classified and referred to by Class (e.g.
"Revolving Borrowing") or by Type
(e.g. "Eurodollar Borrowing") or by Class
and Type (e.g. " Revolving Eurodollar
Borrowing").
Section 1.3.
Accounting Terms and Determination. Unless otherwise
defined or specified herein, all accounting
terms used herein shall be
interpreted, all accounting determinations
hereunder shall be made, and all
financial statements required to be
delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time
to time, applied on a basis
consistent with the most recent audited
consolidated financial statement of the
Borrower delivered pursuant to Section
5.1(a); provided, that if the Borrower
notifies the Administrative Agent that the
Borrower wishes to amend any covenant
in Article VI to eliminate the effect of
any change in GAAP on the operation of
such covenant (or if the Administrative
Agent notifies the Borrower that the
Required Lenders wish to amend Article VI
for such purpose), then the Borrower's
compliance with such covenant shall be
determined on the basis of GAAP in effect
immediately before the relevant change in
GAAP became effective, until either
such notice is
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<PAGE>
withdrawn or such covenant is amended in a
manner satisfactory to the Borrower
and the Required Lenders.
Section 1.4.
Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural
forms of the terms defined. Whenever
the context may require, any pronoun shall
include the corresponding masculine,
feminine and neuter forms. The words
"include", "includes" and "including" shall
be deemed to be followed by the phrase
"without limitation". The word "will"
shall be construed to have the same meaning
and effect as the word "shall". In
the computation of periods of time from a
specified date to a later specified
date, the word "from" means "from and
including" and the word "to" means "to but
excluding". Unless the context requires
otherwise (i) any definition of or
reference to any agreement, instrument or
other document herein shall be
construed as referring to such agreement,
instrument or other document as it was
originally executed or as it may from time
to time be amended, restated,
supplemented or otherwise modified (subject
to any restrictions on such
amendments, supplements or modifications
set forth herein), (ii) any reference
herein to any Person shall be construed to
include such Person's successors and
permitted assigns, (iii) the words
"hereof", "herein" and "hereunder" and words
of similar import shall be construed to
refer to this Agreement as a whole and
not to any particular provision hereof,
(iv) all references to Articles,
Sections, Exhibits and Schedules shall be
construed to refer to Articles,
Sections, Exhibits and Schedules to this
Agreement and (v) all references to a
specific time shall be construed to refer
to the time in the city and state of
the Administrative Agent's principal
office, unless otherwise indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
-----------------------------------
Section 2.1.
General Description of Facilities. Subject to and upon
the terms and conditions herein set forth,
(i) the Lenders hereby establish in
favor of the Borrower a revolving credit
facility pursuant to which each Lender
severally agrees (to the extent of such
Lender's Revolving Commitment) to make
Revolving Loans to the Borrower in
accordance with Section 2.2, (ii) the Issuing
Bank agrees to issue Letters of Credit in
accordance with Section 2.21, (iii)
the Swingline Lender agrees to make
Swingline Loans in accordance with Section
2.4, and (iv) each Lender agrees to
purchase a participation interest in the
Letters of Credit and the Swingline Loans
pursuant to the terms and conditions
hereof; provided, that in no event shall
the aggregate principal amount of all
outstanding Revolving Loans, Swingline
Loans and outstanding LC Exposure exceed
at any time the Aggregate Revolving
Commitment Amount from time to time in
effect.
Section 2.2.
Revolving Loans. Subject to the terms and conditions
set forth herein, each Lender severally
agrees to make Revolving Loans, ratably
in proportion to its Pro Rata Share, to the
Borrower, from time to time during
the Availability Period, in an aggregate
principal amount outstanding at any
time that will not result in (a) such
Lender's Revolving Credit Exposure
exceeding such Lender's Revolving
Commitment or (b) the sum of the aggregate
Revolving Credit Exposures of all Lenders
exceeding the Aggregate Revolving
Commitment Amount. During the Availability
Period, the Borrower shall be
entitled to borrow,
19
<PAGE>
prepay and reborrow Revolving Loans in
accordance with the terms and conditions
of this Agreement; provided, that the
Borrower may not borrow or reborrow should
there exist a Default or Event of
Default.
Section 2.3.
Procedure for Revolving Borrowings. The Borrower shall
give the Administrative Agent written
notice (or telephonic notice promptly
confirmed in writing) of each Revolving
Borrowing substantially in the form of
Exhibit 2.3 attached hereto (a "Notice of
Revolving Borrowing") (x) prior to
11:00 a.m. (Atlanta, Georgia time) one (1)
Business Day prior to the requested
date of each Base Rate Borrowing and (y)
prior to 11:00 a.m. (Atlanta, Georgia
time) three (3) Business Days prior to the
requested date of each Eurodollar
Borrowing. Each Notice of Revolving
Borrowing shall be irrevocable and shall
specify: (i) the aggregate principal amount
of such Borrowing, (ii) the date of
such Borrowing (which shall be a Business
Day), (iii) the Type of such Revolving
Loan comprising such Borrowing and (iv) in
the case of a Eurodollar Borrowing,
the duration of the initial Interest Period
applicable thereto (subject to the
provisions of the definition of Interest
Period). Each Revolving Borrowing shall
consist entirely of Base Rate Loans or
Eurodollar Loans, as the Borrower may
request. The aggregate principal amount of
each Eurodollar Borrowing shall be
not less than $5,000,000 or a larger
multiple of $1,000,000, and the aggregate
principal amount of each Base Rate
Borrowing shall not be less than $1,000,000
or a larger multiple of $100,000; provided,
that Base Rate Loans made pursuant
to Section 2.4 or Section 2.21(d) may be
made in lesser amounts as provided
therein. At no time shall the total number
of Eurodollar Borrowings outstanding
at any time exceed four. Promptly following
the receipt of a Notice of Revolving
Borrowing in accordance herewith, the
Administrative Agent shall advise each
Lender of the details thereof and the
amount of such Lender's Revolving Loan to
be made as part of the requested Revolving
Borrowing.
Section
2.4. Swingline
Commitment.
(a) Subject to the
terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline
Loans to the Borrower, from time to
time during the Availability Period, in an
aggregate principal amount
outstanding at any time not to exceed the
lesser of (i) the Swingline Commitment
then in effect and (ii) the difference
between the Aggregate Revolving
Commitment Amount and the sum of the
aggregate outstanding principal amount of
all Revolving Loans and the LC Exposure of
all Lenders; provided, that the
Swingline Lender shall not be required to
make a Swingline Loan to refinance an
outstanding Swingline Loan. The Borrower
shall be entitled to borrow, repay and
reborrow Swingline Loans in accordance with
the terms and conditions of this
Agreement.
(b) The Borrower shall
give the Administrative Agent written notice
(or telephonic notice promptly confirmed in
writing) of each Swingline Borrowing
substantially in the form of Exhibit 2.4
attached hereto ("Notice of Swingline
Borrowing") prior to 10:00 a.m. (Atlanta,
Georgia time) on the requested date of
each Swingline Borrowing. Each Notice of
Swingline Borrowing shall be
irrevocable and shall specify: (i) the
principal amount of such Swingline Loan,
(ii) the date of such Swingline Loan (which
shall be a Business Day) and (iii)
the account of the Borrower to which the
proceeds of such Swingline Loan should
be credited. The Administrative Agent will
promptly advise the Swingline Lender
of each Notice of Swingline Borrowing. Each
Swingline Loan shall accrue interest
at the Base Rate or any other interest rate
as agreed between the Borrower and
the Swingline Lender and shall have a
maturity
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<PAGE>
(which shall not exceed a period of 30 days
and may not extend beyond the
Revolving Commitment Termination Date) as
agreed between the Borrower and the
Swingline Lender. The aggregate principal
amount of each Swingline Loan shall be
not less than $100,000 or a larger multiple
of $50,000, or such other minimum
amounts agreed to by the Swingline Lender
and the Borrower. The Swingline Lender
will make the proceeds of each Swingline
Loan available to the Borrower in
Dollars in immediately available funds at
the account specified by the Borrower
in the applicable Notice of Swingline
Borrowing not later than 1:00 p.m.
(Atlanta, Georgia time) on the requested
date of such Swingline Loan.
(c) The Swingline
Lender, at any time and from time to time in its
sole discretion, may, on behalf of the
Borrower (which hereby irrevocably
authorizes and directs the Swingline Lender
to act on its behalf), give a Notice
of Revolving Borrowing to the
Administrative Agent requesting the Lenders
(including the Swingline Lender) to make
Base Rate Loans in an amount equal to
the unpaid principal amount of any
Swingline Loan. Each Lender will make the
proceeds of its Base Rate Loan included in
such Borrowing available to the
Administrative Agent for the account of the
Swingline Lender in accordance with
Section 2.4, which will be used solely for
the repayment of such Swingline Loan.
(d) If for any reason
a Base Rate Borrowing may not be (as determined
in the sole discretion of the
Administrative Agent), or is not, made in
accordance with the foregoing provisions,
then each Lender (other than the
Swingline Lender) shall purchase an
undivided participating interest in such
Swingline Loan in an amount equal to its
Pro Rata Share thereof on the date that
such Base Rate Borrowing should have
occurred. On the date of such required
purchase, each Lender shall promptly
transfer, in immediately available funds,
the amount of its participating interest to
the Administrative Agent for the
account of the Swingline Lender. If such
Swingline Loan bears interest at a rate
other than the Base Rate, such Swingline
Loan shall automatically become a Base
Rate Loan on the effective date of any such
participation and interest shall
become payable on demand.
(e) Each Lender's
obligation to make a Base Rate Loan pursuant to
Section 2.4(b) or to purchase the
participating interests pursuant to Section
2.4(c) shall be absolute and unconditional
and shall not be affected by any
circumstance, including without limitation
(i) any setoff, counterclaim,
recoupment, defense or other right that
such Lender or any other Person may have
or claim against the Swingline Lender, the
Borrower or any other Person for any
reason whatsoever, (ii) the existence of a
Default or an Event of Default or the
termination of any Lender's Revolving
Commitment, (iii) the existence (or
alleged existence) of any event or
condition which has had or could reasonably
be expected to have a Material Adverse
Effect, (iv) any breach of this Agreement
or any other Loan Document by the Borrower,
the Administrative Agent or any
Lender or (v) any other circumstance,
happening or event whatsoever, whether or
not similar to any of the foregoing. If
such amount is not in fact made
available to the Swingline Lender by any
Lender, the Swingline Lender shall be
entitled to recover such amount on demand
from such Lender, together with
accrued interest thereon for each day from
the date of demand thereof (i) at the
Federal Funds Rate until the second
Business Day after such demand and (ii) at
the Base Rate at all times thereafter.
Until such time as such Lender makes its
required payment, the Swingline Lender
shall be deemed to continue to have
outstanding Swingline Loans in the amount
of the unpaid participation for all
purposes of the Loan Documents. In
addition, such Lender shall be deemed to have
assigned any and all payments made of
principal and interest on
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<PAGE>
its Loans and any other amounts due to it
hereunder, to the Swingline Lender to
fund the amount of such Lender's
participation interest in such Swingline Loans
that such Lender failed to fund pursuant to
this Section, until such amount has
been purchased in full.
Section 2.5.
Funding of Borrowings.
(a) Each Lender will
make available each Loan to be made by it
hereunder on the proposed date thereof by
wire transfer in immediately available
funds by 11:00 a.m. (Atlanta, Georgia time)
to the Administrative Agent at the
Payment Office; provided, that the
Swingline Loans will be made as set forth in
Section 2.4. The Administrative Agent will
make such Loans available to the
Borrower by promptly crediting the amounts
that it receives, in like funds by
the close of business on such proposed
date, to an account maintained by the
Borrower with the Administrative Agent or
at the Borrower's option, by effecting
a wire transfer of such amounts to an
account designated by the Borrower to the
Administrative Agent.
(b) Unless the
Administrative Agent shall have been notified by any
Lender prior to 5:00 p.m. (Atlanta, Georgia
time) one (1) Business Day prior to
the date of a Borrowing in which such
Lender is to participate that such Lender
will not make available to the
Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may
assume that such Lender has made such
amount available to the Administrative
Agent on such date, and the
Administrative Agent, in reliance on such
assumption, may make available to the
Borrower on such date a corresponding
amount. If such corresponding amount is
not in fact made available to the
Administrative Agent by such Lender on the
date of such Borrowing, the Administrative
Agent shall be entitled to recover
such corresponding amount on demand from
such Lender together with interest at
the Federal Funds Rate until the second
Business Day after such demand and
thereafter at the Base Rate. If such Lender
does not pay such corresponding
amount forthwith upon the Administrative
Agent's demand therefor, the
Administrative Agent shall promptly notify
the Borrower, and the Borrower shall
immediately pay such corresponding amount
to the Administrative Agent together
with interest at the rate specified for
such Borrowing. Nothing in this
subsection shall be deemed to relieve any
Lender from its obligation to fund its
Pro Rata Share of any Borrowing hereunder
or to prejudice any rights which the
Borrower may have against any Lender as a
result of any default by such Lender
hereunder.
(c) All Revolving
Borrowings shall be made by the Lenders on the
basis of their respective Pro Rata Shares.
No Lender shall be responsible for
any default by any other Lender in its
obligations hereunder, and each Lender
shall be obligated to make its Loans
provided to be made by it hereunder,
regardless of the failure of any other
Lender to make its Loans hereunder.
Section 2.6.
Interest Elections.
(a) Each Borrowing
initially shall be of the Type specified in the
applicable Notice of Borrowing, and in the
case of a Eurodollar Borrowing, shall
have an initial Interest Period as
specified in such Notice of Borrowing.
Thereafter, the Borrower may elect to
convert such Borrowing into a different
Type or to continue such Borrowing, and in
the case of a Eurodollar Borrowing,
may elect Interest Periods therefor, all as
provided in this Section. The
Borrower may elect different options with
respect to different portions of the
affected
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<PAGE>
Borrowing, in which case each such portion
shall be allocated ratably among the
Lenders holding Loans comprising such
Borrowing, and the Loans comprising each
such portion shall be considered a separate
Borrowing. This Section shall NOT
apply to Swingline Borrowings, which may
not be converted or continued.
(b) To make an
election pursuant to this Section, the Borrower shall
give the Administrative Agent prior written
notice (or telephonic notice
promptly confirmed in writing) of each
Borrowing substantially in the form of
Exhibit 2.6 attached hereto (a "Notice of
Conversion/Continuation") that is to
be converted or continued, as the case may
be, (x) prior to 10:00 a.m. (Atlanta,
Georgia time) one (1) Business Day prior to
the requested date of a conversion
into a Base Rate Borrowing and (y) prior to
11:00 a.m. (Atlanta, Georgia time)
three (3) Business Days prior to a
continuation of or conversion into a
Eurodollar Borrowing. Each such Notice of
Conversion/Continuation shall be
irrevocable and shall specify (i) the
Borrowing to which such Notice of
Continuation/Conversion applies and if
different options are being elected with
respect to different portions thereof, the
portions thereof that are to be
allocated to each resulting Borrowing (in
which case the information to be
specified pursuant to clauses (iii) and
(iv) shall be specified for each
resulting Borrowing); (ii) the effective
date of the election made pursuant to
such Notice of Continuation/Conversion,
which shall be a Business Day, (iii)
whether the resulting Borrowing is to be a
Base Rate Borrowing or a Eurodollar
Borrowing; and (iv) if the resulting
Borrowing is to be a Eurodollar Borrowing,
the Interest Period applicable thereto
after giving effect to such election,
which shall be a period contemplated by the
definition of "Interest Period". If
any such Notice of Continuation/Conversion
requests a Eurodollar Borrowing but
does not specify an Interest Period, the
Borrower shall be deemed to have
selected an Interest Period of one month.
The principal amount of any resulting
Borrowing shall satisfy the minimum
borrowing amount for Eurodollar Borrowings
and Base Rate Borrowings set forth in
Section 2.3.
(c) If, on the
expiration of any Interest Period in respect of any
Eurodollar Borrowing, the Borrower shall
have failed to deliver a Notice of
Conversion/ Continuation, then, unless such
Borrowing is repaid as provided
herein, the Borrower shall be deemed to
have elected to convert such Borrowing
to a Base Rate Borrowing. No Borrowing may
be converted into, or continued as, a
Eurodollar Borrowing if a Default or an
Event of Default exists, unless the
Administrative Agent and each of the
Lenders shall have otherwise consented in
writing. No conversion of any Eurodollar
Loans shall be permitted except on the
last day of the Interest Period in respect
thereof.
(d) Upon receipt of
any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify
each Lender of the details thereof
and of such Lender's portion of each
resulting Borrowing.
Section 2.7.
Optional Reduction and Termination of Commitments.
(a) Unless previously
terminated, all Revolving Commitments
(including the LC Commitments) shall
terminate on the Revolving Commitment
Termination Date.
(b)
Upon at least three
(3) Business Days' prior written notice (or
telephonic notice promptly confirmed in
writing) to the Administrative Agent
(which notice shall be
23
<PAGE>
irrevocable), the Borrower may reduce the
Aggregate Revolving Commitments in
part or terminate the Aggregate Revolving
Commitments in whole; provided, that
(i) any partial reduction shall apply to
reduce proportionately and permanently
the Revolving Commitment of each Lender,
(ii) any partial reduction pursuant to
this Section shall be in an amount of at
least $5,000,000 and any larger
multiple of $1,000,000, and (iii) no such
reduction shall be permitted which
would reduce the Aggregate Revolving
Commitment Amount to an amount less than
the outstanding Revolving Credit Exposures
of all Lenders. Any such reduction in
the Aggregate Revolving Commitment Amount
below the sum of the principal amount
of the Swingline Commitment and the LC
Commitment shall result in a
proportionate reduction (rounded to the
next lowest integral multiple of
$100,000) in the Swingline Commitment and
the LC Commitment.
Section 2.8.
Repayment of Loans.
(a) The outstanding
principal amount of all Revolving Loans shall be
due and payable (together with accrued and
unpaid interest thereon) on the
Revolving Commitment Termination Date.
(b) The principal
amount of each Swingline Borrowing shall be due and
payable (together with accrued interest
thereon) on the earlier of (i) the last
day of the Interest Period applicable to
such Borrowing and (ii) the Revolving
Commitment Termination Date.
Section 2.9.
Evidence of Indebtedness. (a) Each Lender shall
maintain in accordance with its usual
practice appropriate records evidencing
the Indebtedness of the Borrower to such
Lender resulting from each Loan made by
such Lender from time to time, including
the amounts of principal and interest
payable thereon and paid to such Lender
from time to time under this Agreement.
The Administrative Agent shall maintain
appropriate records in which shall be
recorded (i) the Revolving Commitment of
each Lender, (ii) the amount of each
Loan made hereunder by each Lender, the
Class and Type thereof and the Interest
Period applicable thereto, (iii) the date
of each continuation thereof pursuant
to Section 2.6, (iv) the date of each
conversion of all or a portion thereof to
another Type pursuant to Section 2.6, (v)
the date and amount of any principal
or interest due and payable or to become
due and payable from the Borrower to
each Lender hereunder in respect of such
Loans and (vi) both the date and amount
of any sum received by the Administrative
Agent hereunder from the Borrower in
respect of the Loans and each Lender's Pro
Rata Share thereof. The entries made
in such records shall be prima facie
evidence of the existence and amounts of
the obligations of the Borrower therein
recorded; provided, that the failure or
delay of any Lender or the Administrative
Agent in maintaining or making entries
into any such record or any error therein
shall not in any manner affect the
obligation of the Borrower to repay the
Loans (both principal and unpaid accrued
interest) of such Lender in accordance with
the terms of this Agreement.
(b) At the request of
any Lender (including the Swingline Lender) at
any time, the Borrower agrees that it will
execute and deliver to such Lender a
Revolving Credit Note and, in the case of
the Swingline Lender only, a Swingline
Note, payable to the order of such
Lender.
Section 2.10. Optional
Prepayments. The Borrower shall have the right
at any time and from time to time to prepay
any Borrowing, in whole or in part,
without premium or
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penalty, by giving irrevocable written
notice (or telephonic notice promptly
confirmed in writing) to the Administrative
Agent no later than (i) in the case
of prepayment of any Eurodollar Borrowing,
11:00 a.m. (Atlanta, Georgia time)
not less than three (3) Business Days prior
to any such prepayment, (ii) in the
case of any prepayment of any Base Rate
Borrowing, not less than one Business
Day prior to the date of such prepayment,
and (iii) in the case of Swingline
Borrowings, prior to 11:00 a.m. on the date
of such prepayment. Each such notice
shall be irrevocable and shall specify the
proposed date of such prepayment and
the principal amount of each Borrowing or
portion thereof to be prepaid. Upon
receipt of any such notice, the
Administrative Agent shall promptly notify each
affected Lender of the contents thereof and
of such Lender's Pro Rata Share of
any such prepayment. If such notice is
given, the aggregate amount specified in
such notice shall be due and payable on the
date designated in such notice,
together with accrued interest to such date
on the amount so prepaid in
accordance with Section 2.12(d); provided,
that if a Eurodollar Borrowing is
prepaid on a date other than the last day
of an Interest Period applicable
thereto, the Borrower shall also pay all
amounts required pursuant to Section
2.18. Each partial prepayment of any Loan
(other than a Swingline Loan) shall be
in an amount that would be permitted in the
case of an advance of a Revolving
Borrowing of the same Type pursuant to
Section 2.2 or in the case of a Swingline
Loan pursuant to Section 2.4. Each
prepayment of a Borrowing shall be applied
ratably to the Loans comprising such
Borrowing.
Section 2.11.
Mandatory Prepayments. If at any time the aggregate
outstanding principal amount of Revolving
Loans exceeds the Revolving
Commitment, the Borrower shall immediately
repay the Revolving Loans in an
amount equal to such excess, together with
all accrued and unpaid interest on
such excess amount and any amounts due
under Section 2.18.
Section 2.12. Interest
on Loans.
(a) The Borrower shall
pay interest on each Base Rate Loan at the
Base Rate in effect from time to time and
on each Eurodollar Loan at the
Adjusted LIBO Rate for the applicable
Interest Period in effect for such Loan,
plus the Applicable Margin in effect from
time to time.
(b) The Borrower shall
pay interest on each Swingline Loan at the
Swingline Rate in effect from time to
time.
(c) While an Event of
Default exists or after acceleration, at the
option of the Required Lenders, the
Borrower shall pay interest ("Default
Interest") with respect to all Eurodollar
Loans at the rate otherwise applicable
for the then-current Interest Period plus
an additional 2% per annum until the
last day of such Interest Period, and
thereafter, and with respect to all Base
Rate Loans (including all Swingline Loans)
and all other Obligations hereunder
(other than Loans), at the Base Rate plus
an additional 2% per annum.
(d) Interest on the
principal amount of all Loans shall accrue from
and including the date such Loans are made
to but excluding the date of any
repayment thereof. Interest on all
outstanding Base Rate Loans shall be payable
quarterly in arrears on the last day of
each March, June, September and December
and on the Revolving Commitment Termination
Date.
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Interest on all outstanding Eurodollar
Loans shall be payable on the last day of
each Interest Period applicable thereto,
and, in the case of any Eurodollar
Loans having an Interest Period in excess
of three months or 90 days,
respectively, on each day which occurs
every three months or 90 days, as the
case may be, after the initial date of such
Interest Period, and on the
Revolving Commitment Termination Date.
Interest on each Swingline Loan shall be
payable on the maturity date of such Loan,
which shall be the last day of the
Interest Period applicable thereto, and on
the Revolving Commitment Termination
Date. Interest on any Loan which is
converted into a Loan of another Type or
which is repaid or prepaid shall be payable
on the date of such conversion or on
the date of any such repayment or
prepayment (on the amount repaid or prepaid)
thereof. All Default Interest shall be
payable on demand.
(e) The Administrative
Agent shall determine each interest rate
applicable to the Loans hereunder and shall
promptly notify the Borrower and the
Lenders of such rate in writing (or by
telephone, promptly confirmed in
writing). Any such determination shall be
conclusive and binding for all
purposes, absent manifest error.
Section 2.13.
Fees.
(a) The Borrower shall
pay to the Administrative Agent for its own
account fees in the amounts and at the
times previously agreed upon in writing
by the Borrower and the Administrative
Agent.
(b) The Borrower
agrees to pay to the Administrative Agent for the
account of each Lender a facility fee,
which shall accrue at the Applicable
Percentage per annum (determined daily in
accordance with Schedule I) on the
daily amount of the Revolving Commitment
(whether used or unused) of such Lender
during the Availability Period; provided,
that if such Lender continues to have
any Revolving Credit Exposure after the
Revolving Commitment Termination Date,
then the facility fee shall continue to
accrue on the daily amount of such
Revolving Credit Exposure from and after
the Revolving Commitment Termination
Date to the date that all of such Lender's
Revolving Credit Exposure has been
paid in full.
(c) The Borrower
agrees to pay (i) to the Administrative Agent, for
the account of each Lender, a letter of
credit fee with respect to its
participation in each Letter of Credit,
which shall accrue at a rate per annum
equal to the Applicable Margin for
Eurodollar Loans then in effect on the
average daily amount of such Lender's LC
Exposure attributable to such Letter of
Credit during the period from and including
the date of issuance of such Letter
of Credit to but excluding the date on
which such Letter of Credit expires or is
drawn in full (including without limitation
any LC Exposure that remains
outstanding after the Revolving Commitment
Termination Date) and (ii) to the
Issuing Bank for its own account a fronting
fee, which shall accrue at the rate
of 0.125% per annum on the average daily
amount of the LC Exposure (excluding
any portion thereof attributable to
unreimbursed LC Disbursements) during the
Availability Period (or until the date that
such Letter of Credit is irrevocably
cancelled, whichever is later), as well as
the Issuing Bank's standard fees with
respect to issuance, amendment, renewal or
extension of any Letter of Credit or
processing of drawings thereunder.
Notwithstanding the foregoing, if the
Required Lenders elect to increase the
interest rate on the Loans to the Default
Interest pursuant to Section 2.12(c), the
rate per annum used to calculate the
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letter of credit fee pursuant to clause (i)
above shall automatically be
increased by an additional 2% per
annum.
(d) The Borrower shall
pay to the Administrative Agent, for the
ratable benefit of each Lender, the upfront
fee previously agreed upon by the
Borrower and the Administrative Agent,
which shall be due and payable on the
Closing Date.
(e) Accrued fees
(other than the upfront fee referenced in paragraph
(d)) shall be payable quarterly in arrears
on the last day of each March, June,
September and December, commencing on March
31, 2004 and on the Revolving
Commitment Termination Date (and if later,
the date the Loans and LC Exposure
shall be repaid in their entirety);
provided further, that any such fees
accruing after the Revolving Commitment
Termination Date shall be payable on
demand.
Section 2.14.
Computation of
Interest and Fees. All computations of
interest and fees hereunder shall be made
on the basis of a year of 360 days for
the actual number of days (including the
first day but excluding the last day)
occurring in the period for which such
interest or fees are payable (to the
extent computed on the basis of days
elapsed). Each determination by the
Administrative Agent of an interest amount
or fee hereunder shall be made in
good faith and, except for manifest error,
shall be final, conclusive and
binding for all purposes.
Section 2.15.
Inability to Determine Interest Rates. If prior to the
commencement of any Interest Period for any
Eurodollar Borrowing,
(i) the Administrative
Agent shall have determined (which
determination
shall be conclusive and binding upon the Borrower) that, by
reason of
circumstances affecting the relevant interbank market, adequate
means do not
exist for ascertaining LIBOR for such Interest Period, or
(ii) the Administrative Agent shall have received notice from
the
Required Lenders
that the Adjusted LIBO Rate does not adequately and fairly
reflect the cost
to such Lenders (or Lender, as the case may be) of making,
funding or
maintaining their (or its, as the case may be) Eurodollar Loans
for such
Interest Period,
the Administrative Agent shall give written
notice (or telephonic notice,
promptly confirmed in writing) to the
Borrower and to the Lenders as soon as
practicable thereafter. Until the
Administrative Agent shall notify the Borrower
and the Lenders that the circumstances
giving rise to such notice no longer
exist, (i) the obligations of the Lenders
to make Eurodollar Revolving Loans or
to continue or convert outstanding Loans as
or into Eurodollar Loans shall be
suspended and (ii) all such affected Loans
shall be converted into Base Rate
Loans on the last day of the then current
Interest Period applicable thereto
unless the Borrower prepays such Loans in
accordance with this Agreement. Unless
the Borrower notifies the Administrative
Agent at least one Business Day before
the date of any Eurodollar Revolving
Borrowing for which a Notice of Revolving
Borrowing has previously been given that it
elects not to borrow on such date,
then such Revolving Borrowing shall be made
as a Base Rate Borrowing.
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<PAGE>
Section 2.16.
Illegality. If any Change in Law shall make it unlawful
or impossible for any Lender to make,
maintain or fund any Eurodollar Loan and
such Lender shall so notify the
Administrative Agent, the Administrative Agent
shall promptly give notice thereof to the
Borrower and the other Lenders,
whereupon until such Lender notifies the
Administrative Agent and the Borrower
that the circumstances giving rise to such
suspension no longer exist, the
obligation of such Lender to make
Eurodollar Loans, or to continue or convert
outstanding Loans as or into Eurodollar
Loans, shall be suspended. In the case
of the making of a Eurodollar Borrowing,
such Lender's Revolving Loan shall be
made as a Base Rate Loan as part of the
same Revolving Borrowing for the same
Interest Period and if the affected
Eurodollar Loan is then outstanding, such
Loan shall be converted to a Base Rate Loan
either (i) on the last day of the
then current Interest Period applicable to
such Eurodollar Loan if such Lender
may lawfully continue to maintain such Loan
to such date or (ii) immediately if
such Lender shall determine that it may not
lawfully continue to maintain such
Eurodollar Loan to such date.
Notwithstanding the foregoing, the affected Lender
shall, prior to giving such notice to the
Administrative Agent, designate a
different Applicable Lending Office if such
designation would avoid the need for
giving such notice and if such designation
would not otherwise be
disadvantageous to such Lender in the good
faith exercise of its discretion.
Section 2.17.
Increased Costs.
(a) If any Change in
Law shall:
(i) impose, modify or
deem applicable any reserve, special deposit or
similar
requirement that is not otherwise included in the determination
of
the Adjusted
LIBO Rate hereunder against assets of, deposits with or for
the account of,
or credit extended by, any Lender (except any such reserve
requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or on the Issuing Bank or the
eurodollar
interbank market
any other condition affecting this Agreement or any
Eurodollar Loans
made by such Lender or any Letter of Credit or any
participation
therein; and the result of either of the foregoing is to
increase the
cost to such Lender of making, converting into, continuing or
maintaining a
Eurodollar Loan or to increase the cost to such Lender or the
Issuing Bank of
participating in or issuing any Letter of Credit or to
reduce the
amount received or receivable by such Lender or the Issuing
Bank
hereunder
(whether of principal, interest or any other amount), then the
Borrower shall
promptly pay, upon written notice from and demand by such
Lender on the
Borrower (with a copy of such notice and demand to the
Administrative
Agent), to the Administrative Agent for the account of such
Lender, within
five Business Days after the date of such notice and demand,
additional
amount or amounts sufficient to compensate such Lender or the
Issuing Bank, as
the case may be, for such additional costs incurred or
reduction
suffered.
(b) If any Lender or
the Issuing Bank shall have determined that on
or after the date of this Agreement any
Change in Law regarding capital
requirements has or would have the effect
of reducing the rate of return on such
Lender's or the Issuing Bank's capital (or
on the capital of such Lender's or
the Issuing Bank's parent corporation) as a
consequence of its obligations
hereunder or under or in respect of any
Letter of Credit to a level below that
which
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such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's parent
corporation could have achieved but for
such Change in Law (taking into
consideration such Lender's or the Issuing
Bank's policies or the policies of
such Lender's or the Issuing Bank's parent
corporation with respect to capital
adequacy) then, from time to time, within
five (5) Business Days after receipt
by the Borrower of written demand by such
Lender (with a copy thereof to the
Administrative Agent), the Borrower shall
pay to such Lender such additional
amounts as will compensate such Lender or
the Issuing Bank or such Lender's or
the Issuing Bank's parent corporation for
any such reduction suffered.
(c) A certificate of a
Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate
such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's parent
corporation, as the case may be,
specified in paragraph (a) or (b) of this
Section shall be delivered to the
Borrower (with a copy to the Administrative
Agent) and shall be conclusive,
absent manifest error. The Borrower shall
pay any such Lender or the Issuing
Bank, as the case may be, such amount or
amounts within 10 days after receipt
thereof.
(d) Failure or delay
on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this
Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right
to demand such compensation.
Section 2.18. Funding
Indemnity. In the event of (a) the payment of
any principal of a Eurodollar Loan other
than on the last day of the Interest
Period applicable thereto (including as a
result of an Event of Default), (b)
the conversion or continuation of a
Eurodollar Loan other than on the last day
of the Interest Period applicable thereto,
or (c) the failure by the Borrower to
borrow, prepay, convert or continue any
Eurodollar Loan on the date specified in
any applicable notice (regardless of
whether such notice is withdrawn or
revoked), then, in any such event, the
Borrower shall compensate each Lender,
within five (5) Business Days after written
demand from such Lender, for any
loss, cost or expense attributable to such
event. In the case of a Eurodollar
Loan, such loss, cost or expense shall be
deemed to include an amount determined
by such Lender to be the excess, if any, of
(A) the amount of interest that
would have accrued on the principal amount
of such Eurodollar Loan if such event
had not occurred at the Adjusted LIBO Rate
applicable to such Eurodollar Loan
for the period from the date of such event
to the last day of the then current
Interest Period therefor (or in the case of
a failure to borrow, convert or
continue, for the period that would have
been the Interest Period for such
Eurodollar Loan) over (B) the amount of
interest that would accrue on the
principal amount of such Eurodollar Loan
for the same period if the Adjusted
LIBO Rate were set on the date such
Eurodollar Loan was prepaid or converted or
the date on which the Borrower failed to
borrow, convert or continue such
Eurodollar Loan. A certificate as to any
additional amount payable under this
Section submitted to the Borrower by any
Lender (with a copy to the
Administrative Agent) shall be conclusive,
absent manifest error.
Section 2.19.
Taxes.
(a) Any and all
payments by or on account of any obligation of the
Borrower hereunder shall be made free and
clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided,
that if the Borrower shall be
required to deduct any Indemnified Taxes or
Other Taxes from such payments, then
(i) the sum payable shall be increased as
necessary so that
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after making all required deductions
(including deductions applicable to
additional sums payable under this Section)
the Administrative Agent, any Lender
or the Issuing Bank (as the case may be)
shall receive an amount equal to the
sum it would have received had no such
deductions been made, (ii) the Borrower
shall make such deductions and (iii) the
Borrower shall pay the full amount
deducted to the relevant Governmental
Authority in accordance with applicable
law.
(b) In addition, the
Borrower shall pay any Other Taxes to the
relevant Governmental Authority in
accordance with applicable law.
(c) The Borrower shall
indemnify the Administrative Agent, each
Lender and the Issuing Bank, within five
(5) Business Days after written demand
therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or
the Issuing Bank, as the case may be,
on or with respect to any payment by or on
account of any obligation of the
Borrower hereunder (including Indemnified
Taxes or Other Taxes imposed or
asserted on or attributable to amounts
payable under this Section) and any
penalties, interest and reasonable expenses
arising therefrom or with respect
thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant
Governmental Authority. A
certificate as to the amount of such
payment or liability delivered to the
Borrower by a Lender or the Issuing Bank,
or by the Administrative Agent on its
own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as
practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a
Governmental Authority, the Borrower shall
deliver to the Administrative Agent the
original or a certified copy of a
receipt issued by such Governmental
Authority evidencing such payment, a copy of
the return reporting such payment or other
evidence of such payment reasonably
satisfactory to the Administrative
Agent.
(e) Any Foreign Lender
that is entitled to an exemption from or
reduction of withholding tax under the Code
or any treaty to which the United
States is a party, with respect to payments
under this Agreement shall deliver
to the Borrower (with a copy to the
Administrative Agent), at the time or times
prescribed by applicable law, such properly
completed and executed documentation
prescribed by applicable law or reasonably
requested by the Borrower as will
permit such payments to be made without
withholding or at a reduced rate.
Without limiting the generality of the
foregoing, each Foreign Lender agrees
that it will deliver to the Administrative
Agent and the Borrower (or in the
case of a Participant, to the Lender from
which the related participation shall
have been purchased), as appropriate, two
(2) duly completed copies of (i)
Internal Revenue Service Form W-8 ECI, or
any successor form thereto, certifying
that the payments received from the
Borrower hereunder are effectively connected
with such Foreign Lender's conduct of a
trade or business in the United States;
or (ii) Internal Revenue Service Form W-8
BEN, or any successor form thereto,
certifying that such Foreign Lender is
entitled to benefits under an income tax
treaty to which the United States is a
party which reduces the rate of
withholding tax on payments of interest; or
(iii) Internal Revenue Service Form
W-8 BEN, or any successor form prescribed
by the Internal Revenue Service,
together with a certificate (A)
establishing that the payment to the Foreign
Lender qualifies as "portfolio interest"
exempt from U.S. withholding tax under
Code section 871(h) or 881(c), and (B)
stating that (1) the Foreign Lender is
not a bank for purposes of Code section
881(c)(3)(A), or the obligation of the
Borrower hereunder is not, with respect to
such Foreign Lender, a loan
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agreement entered into in the ordinary
course of its trade or business, within
the meaning of that section; (2) the
Foreign Lender is not a 10% shareholder of
the Borrower within the meaning of Code
section 871(h)(3) or 881(c)(3)(B); and
(3) the Foreign Lender is not a controlled
foreign corporation that is related
to the Borrower within the meaning of Code
section 881(c)(3)(C); or (iv) such
other Internal Revenue Service forms as may
be applicable to the Foreign Lender,
including Forms W-8 IMY or W-8 EXP. Each
such Foreign Lender shall deliver to
the Borrower and the Administrative Agent
such forms on or before the date that
it becomes a party to this Agreement (or in
the case of a Participant, on or
before the date such Participant purchases
the related participation). In
addition, each such Foreign Lender shall
deliver such forms promptly upon the
obsolescence or invalidity of any form
previously delivered by such Foreign
Lender. Each such Foreign Lender shall
promptly notify the Borrower and the
Administrative Agent at any time that it
determines that it is no longer in a
position to provide any previously
delivered certificate to the Borrower (or any
other form of certification adopted by the
Internal Revenue Service for such
purpose).
Section 2.20. Payments
Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) The Borrower shall
make each payment required to be made by it
hereunder (whether of principal, interest,
fees or reimbursement of LC
Disbursements, or of amounts payable under
Sections 2.17, 2.18 or 2.19, or
otherwise) prior to 12:00 noon (Atlanta,
Georgia time) on the date when due, in
immediately available funds, free and clear
of any defenses, rights of set-off,
counterclaim, or withholding or deduction
of any Taxes. Any amounts received
after such time on any date may, in the
discretion of the Administrative Agent,
be deemed to have been received on the next
succeeding Business Day for purposes
of calculating interest thereon. All such
payments shall be made to the
Administrative Agent at the Payment Office,
except payments to be made directly
to the Issuing Bank or Swingline Lender as
expressly provided herein and except
that payments pursuant to Sections 2.17,
2.18 or 2.19 and 10.3 shall be made
directly to the Persons entitled thereto.
The Administrative Agent shall
distribute any such payments received by it
for the account of any other Person
to the appropriate recipient promptly
following receipt thereof. If any payment
hereunder shall be due on a day that is not
a Business Day, the date for payment
shall be extended to the next succeeding
Business Day, and, in the case of any
payment accruing interest, interest thereon
shall be made payable for the period
of such extension. All payments hereunder
shall be made in Dollars.
(b) If at any time
insufficient funds are received by and available
to the Administrative Agent to pay fully
all amounts of principal, unreimbursed
LC Disbursements, interest and fees then
due hereunder, such funds shall be
applied (i) first, towards payment of
interest and fees then due hereunder,
ratably among the parties entitled thereto
in accordance with the amounts of
interest and fees then due to such parties,
and (ii) second, towards payment of
principal and unreimbursed LC Disbursements
then due hereunder, ratably among
the parties entitled thereto in accordance
with the amounts of principal and
unreimbursed LC Disbursements then due to
such parties.
(c) If any Lender
shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment
in respect of any principal of or
interest on any of its Revolving Loans or
participations in LC Disbursements or
Swingline Loans that would result in such
Lender receiving payment of a greater
proportion of the aggregate amount of its
Revolving Loans and
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participations in LC Disbursements and
Swingline Loans and accrued interest
thereon than the proportion received by any
other Lender, then the Lender
receiving such greater proportion shall
purchase (for cash at face value)
participations in the Revolving Loans and
participations in LC Disbursements and
Swingline Loans of other Lenders to the
extent necessary so that the benefit of
all such payments shall be shared by the
Lenders ratably in accordance with the
aggregate amount of principal of and
accrued interest on their respective
Revolving Loans and participations in LC
Disbursements and Swingline Loans;
provided, that (i) if any such
participations are purchased and all or any
portion of the payment giving rise thereto
is recovered, such participations
shall be rescinded and the purchase price
restored to the extent of such
recovery, without interest, and (ii) the
provisions of this paragraph shall not
be construed to apply to any payment made
by the Borrower pursuant to and in
accordance with the express terms of this
Agreement or any payment obtained by a
Lender as consideration for the assignment
of or sale of a participation in any
of its Loans or participations in LC
Disbursements or Swingline Loans to any
assignee or participant, other than to the
Borrower or any Subsidiary or
Affiliate thereof (as to which the
provisions of this paragraph shall apply).
The Borrower consents to the foregoing and
agrees, to the extent it may
effectively do so under applicable law,
that any Lender acquiring a
participation pursuant to the foregoing
arrangements may exercise against the
Borrower rights of set-off and counterclaim
with respect to such participation
as fully as if such Lender were a direct
creditor of the Borrower in the amount
of such participation.
(d) Unless the
Administrative Agent shall have received notice from
the Borrower prior to the date on which any
payment is due to the Administrative
Agent for the account of the Lenders or the
Issuing Bank hereunder that the
Borrower will not make such payment, the
Administrative Agent may assume that
the Borrower has made such payment on such
date in accordance herewith and may,
in reliance upon such assumption,
distribute to the Lenders or the Issuing Bank,
as the case may be, the amount or amounts
due. In such event, if the Borrower
has not in fact made such payment, then
each of the Lenders or the Issuing Bank,
as the case may be, severally agrees to
repay to the Administrative Agent
forthwith on demand the amount so
distributed to such Lender or Issuing Bank
with interest thereon, for each day from
and including the date such amount is
distributed to it to but excluding the date
of payment to the Administrative
Agent, at the greater of the Federal Funds
Effective Rate and a rate determined
by the Administrative Agent in accordance
with banking industry rules on
interbank compensation.
(e) If any Lender
shall fail to make any payment required to be made
by it pursuant to Section 2.4(c) or (d),
2.5(b), 2.20(d), 2.21(d) or (e), or
10.3(d), then the Administrative Agent may,
in its discretion (notwithstanding
any contrary provision hereof), apply any
amounts thereafter received by the
Administrative Agent for the account of
such Lender to satisfy such Lender's
obligations under such Sections until all
such unsatisfied obligations are fully
paid.
Section 2.21. Letters
of Credit.
(a) During the
Availability Period, the Issuing Bank, in reliance
upon the agreements of the other Lenders
pursuant to Section 2.21(d), agrees to
issue, at the request of the Borrower,
Letters of Credit for the account of the
Borrower on the terms and conditions
hereinafter set forth; provided, that (i)
each Letter of Credit shall expire on the
earlier of (A) the
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date one year after the date of issuance of
such Letter of Credit (or in the
case of any renewal or extension thereof,
one year after such renewal or
extension) and (B) the date that is five
(5) Business Days prior to the
Revolving Commitment Termination Date; (ii)
each Letter of Credit shall be in a
stated amount of at least $100,000; and
(iii) the Borrower may not request any
Letter of Credit, if, after giving effect
to such issuance (A) the aggregate LC
Exposure would exceed the LC Commitment or
(B) the aggregate Revolving Credit
Exposure of all Lenders would exceed the
Aggregate Revolving Commitment Amount.
Upon the issuance of each Letter of Credit
each Lender shall be deemed to, and
hereby irrevocably and unconditionally
agrees to, purchase from the Issuing Bank
without recourse a participation in such
Letter of Credit equal to such Lender's
Pro Rata Share of the aggregate amount
available to be drawn under such Letter
of Credit. Each issuance of a Letter of
Credit shall be deemed to utilize the
Revolving Commitment of each Lender by an
amount equal to the amount of such
participation.
(b) To request the
issuance of a Letter of Credit (or any amendment,
renewal or extension of an outstanding
Letter of Credit), the Borrower shall
give the Issuing Bank and the
Administrative Agent irrevocable written notice at
least three (3) Business Days prior to the
requested date of such issuance
specifying the date (which shall be a
Business Day) such Letter of Credit is to
be issued (or amended, extended or renewed,
as the case may be), the expiration
date of such Letter of Credit, the amount
of such Letter of Credit, the name and
address of the beneficiary thereof and such
other information as shall be
necessary to prepare, amend, renew or
extend such Letter of Credit. In addition
to the satisfaction of the conditions in
Article III, the issuance of such
Letter of Credit (or any amendment which
increases the amount of such Letter of
Credit) will be subject to the further
conditions that such Letter of Credit
shall be in such form and contain such
terms as the Issuing Bank shall approve
and that the Borrower shall have executed
and delivered any additional
applications, agreements and instruments
relating to such Letter of Credit as
the Issuing Bank shall reasonably require;
provided, that in the event of any
conflict between such applications,
agreements or instruments and this
Agreement, the terms of this Agreement
shall control.
(c) At least two
Business Days prior to the issuance of any Letter of
Credit, the Issuing Bank will confirm with
the Administrative Agent (by
telephone or in writing) that the
Administrative Agent has received such notice
and if not, the Issuing Bank will provide
the Administrative Agent with a copy
thereof. Unless the Issuing Bank has
received notice from the Administrative
Agent on or before the Business Day
immediately preceding the date the Issuing
Bank is to issue the requested Letter of
Credit (1) directing the Issuing Bank
not to issue the Letter of Credit because
such issuance is not then permitted
hereunder because of the limitations set
forth in Section 2.21(a) or that one or
more conditions specified in Article III
are not then satisfied, then, subject
to the terms and conditions hereof, the
Issuing Bank shall, on the requested
date, issue such Letter of Credit in
accordance with the Issuing Bank's usual
and customary business practices.
(d) The Issuing Bank
shall examine all documents purporting to
represent a demand for payment under a
Letter of Credit promptly following its
receipt thereof. The Issuing Bank shall
notify the Borrower and the
Administrative Agent of such demand for
payment and whether the Issuing Bank has
made or will make a LC Disbursement
thereunder; provided, that any failure to
give or delay in giving such notice shall
not relieve the Borrower of its
obligation to reimburse the Issuing Bank
and the Lenders with respect to such LC
Disbursement. The
33
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Borrower shall be irrevocably and
unconditionally obligated to reimburse the
Issuing Bank for any LC Disbursements paid
by the Issuing Bank in respect of
such drawing, without presentment, demand
or other formalities of any kind.
Unless the Borrower shall have notified the
Issuing Bank and the Administrative
Agent prior to 11:00 a.m. (Atlanta, Georgia
time) on the Business Day
immediately prior to the date on which such
drawing is honored that the Borrower
intends to reimburse the Issuing Bank for
the amount of such drawing in funds
other than from the proceeds of Revolving
Loans, the Borrower shall be deemed to
have timely given a Notice of Revolving
Borrowing to the Administrative Agent
requesting the Lenders to make a Base Rate
Borrowing on the date on which such
drawing is honored in an exact amount due
to the Issuing Bank; provided, that
for purposes solely of such Borrowing, the
conditions precedents set forth in
Section 3.2 hereof shall not be applicable.
The Administrative Agent shall
notify the Lenders of such Borrowing in
accordance with Section 2.3, and each
Lender s
