Exhibit 4.16
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CREDIT AGREEMENT
among
QUALITY DISTRIBUTION, INC.,
QUALITY DISTRIBUTION, LLC,
VARIOUS LENDING INSTITUTIONS,
JPMORGAN CHASE BANK,
AS DOCUMENTATION AGENT,
DEUTSCHE BANK SECURITIES INC.
AND
BEAR XXXXXXX CORPORATE LENDING INC.,
AS CO-SYNDICATION AGENTS,
and
CREDIT SUISSE FIRST BOSTON,
ACTING THROUGH ITS CAYMAN ISLANDS BRANCH
AS ADMINISTRATIVE AGENT
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Dated as of November __, 2003
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CREDIT SUISSE FIRST BOSTON
AND
DEUTSCHE BANK SECURITIES INC.,
AS JOINT LEAD ARRANGERS AND BOOK RUNNING MANAGERS
TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit.........................................1
1.01 Commitments..........................................................1
1.02 Minimum Borrowing Amounts, etc.......................................4
1.03 Notice of Borrowing..................................................4
1.04 Disbursement of Funds................................................5
1.05 Notes................................................................6
1.06 Conversions..........................................................7
1.07 Pro Rata Borrowings..................................................8
1.08 Interest.............................................................8
1.09 Interest Periods for Eurodollar Loans................................9
1.10 Increased Costs; Illegality; etc....................................10
1.11 Compensation........................................................12
1.12 Change of Lending Office............................................13
1.13 Replacement of Lenders..............................................14
SECTION 2. Letters of Credit.................................................15
2.01 Letters of Credit...................................................15
2.02 Letter of Credit Requests...........................................18
2.03 Letter of Credit Participations.....................................18
2.04 Agreement to Repay Letter of Credit Drawings........................21
2.05 Increased Costs.....................................................23
2.06 Credit-Linked Deposit Account.......................................24
SECTION 3. Fees; Commitments.................................................25
3.01 Fees................................................................25
3.02 Voluntary Termination or Reduction of Total Unutilized
Revolving Loan Commitment and Total Unutilized PF Letter of
Credit Commitment..................................................27
3.03 Mandatory Reduction of Commitments..................................28
SECTION 4. Payments..........................................................29
4.01 Voluntary Prepayments...............................................29
4.02 Mandatory Repayments and Commitment Reductions......................30
4.03 Method and Place of Payment.........................................37
4.04 Net Payments........................................................38
SECTION 5. Conditions Precedent to Initial Credit Events.....................41
5.01 Execution of Agreement; Notes.......................................41
5.02 Officer's Certificate...............................................41
5.03 Opinions of Counsel.................................................41
5.04 Company Documents; Proceedings......................................41
5.05 Adverse Change, etc.................................................42
5.06 Litigation..........................................................42
(i)
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5.07 Approvals...........................................................42
5.08 Financing Transactions etc..........................................42
5.09 Refinancing.........................................................43
5.10 Security Documents; etc.............................................45
5.11 Subsidiaries Guaranty; Intercompany Subordination Agreement.........47
5.12 Employee Benefit Plans; Shareholders' Agreements;
Management Agreements; Employment Agreements; Collective
Bargaining Agreements; Existing Indebtedness Agreements;
Material Contracts; Tax Allocation Agreements......................48
5.13 Solvency Certificate; Insurance Certificates........................49
5.14 Financial Statements; Pro Forma Balance Sheet; Projections..........49
5.15 Payment of Fees.....................................................50
5.16 Compliance With Existing Senior Subordinated Secured
Notes Indenture....................................................50
SECTION 6A. Conditions Precedent to All Credit Events (other
than Loans Made on the Redemption Date to Finance
the Existing Senior Notes Refinancing)...........................50
6A.01 No Default; Representations and Warranties..........................50
6A.02 Notice of Borrowing; Letter of Credit Request.......................50
6A.03 Regulation U........................................................50
SECTION 6B. Special Condition Precedent to Incurrence of Revolving
Loans and Swingline Loans........................................51
6B.01 Limitation on Cash on Hand..........................................51
SECTION 6C. Special Condition Precedent to Incurrence of Loans
on the Redemption Date...........................................51
6C.01 No Payment or Bankruptcy Default or Event of Default................51
SECTION 7. Representations and Warranties....................................51
7.01 Company Status......................................................52
7.02 Company Power and Authority.........................................52
7.03 No Violation........................................................52
7.04 Litigation..........................................................53
7.05 Use of Proceeds; Margin Regulations.................................53
7.06 Governmental Approvals..............................................53
7.07 Investment Company Act..............................................54
7.08 Public Utility Holding Company Act..................................54
7.09 True and Complete Disclosure........................................54
7.10 Financial Condition; Financial Statements...........................54
7.11 Security Interests..................................................56
7.12 Compliance with ERISA...............................................56
7.13 Capitalization......................................................58
7.14 Subsidiaries........................................................59
7.15 Intellectual Property, etc..........................................59
7.16 Compliance with Statutes, etc.......................................59
7.17 Environmental Matters...............................................59
(ii)
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7.18 Properties..........................................................60
7.19 Labor Relations.....................................................60
7.20 Tax Returns and Payments............................................61
7.21 Scheduled Existing Indebtedness.....................................61
7.22 Insurance...........................................................61
7.23 Representations and Warranties in Other Documents...................61
7.24 Special Purpose Corporation.........................................61
7.25 Subordination.......................................................62
SECTION 8. Affirmative Covenants.............................................62
8.01 Information Covenants...............................................62
8.02 Books, Records and Inspections......................................66
8.03 Insurance...........................................................66
8.04 Payment of Taxes....................................................67
8.05 Existence; Franchises...............................................67
8.06 Compliance with Statutes; etc.......................................67
8.07 Compliance with Environmental Laws..................................67
8.08 ERISA...............................................................69
8.09 Good Repair.........................................................70
8.10 End of Fiscal Years; Fiscal Quarters................................70
8.11 Additional Security; Further Assurances.............................71
8.12 Foreign Subsidiaries Security.......................................72
8.13 Performance of Obligations..........................................73
8.14 Use of Proceeds.....................................................73
8.15 Permitted Acquisitions..............................................73
8.16 Maintenance of Company Separateness.................................75
8.17 Existing Senior Notes Refinancing...................................75
8.18 Margin Regulations..................................................76
SECTION 9. Negative Covenants................................................76
9.01 Changes in Business.................................................76
9.02 Consolidation; Merger; Sale or Purchase of Assets; etc..............77
9.03 Liens...............................................................82
9.04 Indebtedness........................................................84
9.05 Advances; Investments; Loans........................................87
9.06 Dividends; etc......................................................91
9.07 Transactions with Affiliates and Unrestricted Subsidiaries..........94
9.08 Designated Senior Debt..............................................95
9.09 Consolidated Interest Coverage Ratio................................95
9.10 Adjusted Total Leverage Ratio.......................................96
9.11 Capital Expenditures................................................97
9.12 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of
Incorporation, By-Laws and Certain Other Agreements;
Issuances of Capital Stock; etc....................................98
9.13 Limitation on Issuance of Equity Interests.........................100
(iii)
TABLE OF CONTENTS
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(continued)
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9.14 Limitation on Certain Restrictions on Subsidiaries.................101
9.15 Limitation on the Creation of Subsidiaries, Joint Ventures
and Unrestricted Subsidiaries.....................................102
SECTION 10. Events of Default................................................104
10.01 Payments...........................................................104
10.02 Representations, etc...............................................104
10.03 Covenants..........................................................104
10.04 Default Under Other Agreements.....................................104
10.05 Bankruptcy, etc....................................................104
10.06 ERISA..............................................................105
10.07 Security Documents.................................................106
10.08 Guaranties.........................................................106
10.09 Judgments..........................................................106
10.10 Ownership..........................................................106
SECTION 11. Definitions.....................................................107
SECTION 12. The Agents......................................................150
12.01 Appointment........................................................150
12.02 Delegation of Duties...............................................150
12.03 Exculpatory Provisions.............................................150
12.04 Reliance by Agents.................................................151
12.05 Notice of Default..................................................151
12.06 Nonreliance on Agents and Other Lenders............................151
12.07 Indemnification....................................................152
12.08 Agents in their Individual Capacities..............................152
12.09 Holders............................................................153
12.10 Resignation of the Agents..........................................153
12.11 Appointment of Collateral Agent as Administrator (Mexico)..........154
SECTION 13. Miscellaneous...................................................154
13.01 Payment of Expenses, etc...........................................154
13.02 Right of Setoff....................................................155
13.03 Notices............................................................156
13.04 Benefit of Agreement...............................................156
13.05 No Waiver; Remedies Cumulative.....................................159
13.06 Payments Pro Rata..................................................159
13.07 Calculations; Computations.........................................159
13.08 Governing Law; Submission to Jurisdiction; Venue...................160
13.09 Counterparts.......................................................160
13.10 Effectiveness......................................................160
13.11 Headings Descriptive...............................................161
13.12 Amendment or Waiver; etc...........................................161
13.13 Survival...........................................................162
13.14 Domicile of Loans and Commitments..................................163
(iv)
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13.15 Confidentiality....................................................163
13.16 Waiver of Jury Trial...............................................164
13.17 Register...........................................................164
13.18 Limitation on Additional Amounts, etc..............................165
13.19 Post-Closing Actions...............................................165
SECTION 14. Holdings Guaranty...............................................166
14.01 Holdings Guaranty..................................................166
14.02 Bankruptcy.........................................................167
14.03 Nature of Liability................................................167
14.04 Independent Obligation.............................................167
14.05 Authorization......................................................167
14.06 Reliance...........................................................168
14.07 Subordination......................................................168
14.08 Waiver.............................................................169
14.09 Payment............................................................170
Schedules
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SCHEDULE I - List of Lenders and Commitments
SCHEDULE II - Lender Addresses
SCHEDULE III - Real Properties
SCHEDULE IV - Scheduled Existing Indebtedness
SCHEDULE V - Plans
SCHEDULE VI - Existing Investments
SCHEDULE VII - Subsidiaries
SCHEDULE VIII - Insurance
SCHEDULE IX - Existing Liens
SCHEDULE X - Capitalization
SCHEDULE XI - Program Affiliates
SCHEDULE XII - Environmental Matters
SCHEDULE XIII - Existing Letters of Credit
SCHEDULE XIV - Tractor Trailers
SCHEDULE XV - Post-Closing Obligations
Exhibits
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EXHIBIT A-1 - Form of Notice of Borrowing
EXHIBIT A-2 - Form of Notice of Conversion/Continuation
EXHIBIT B-1 - Form of Term Note
EXHIBIT B-2 - Form of Revolving Note
EXHIBIT B-3 - Form of Swingline Note
EXHIBIT C - Form of Letter of Credit Request
EXHIBIT D - Form of Section 4.04(b)(ii) Certificate
(v)
EXHIBIT E-1 - Form of Opinion of O'Melveny & Xxxxxx LLP, special New York
counsel to the Credit Parties
EXHIBIT E-2 - Form of Opinion of Xxxxxx X. Xxxxx, special Florida and
Illinois counsel to the Credit Parties
EXHIBIT F - Form of Officers' Certificate
EXHIBIT G-1 - U.S. Pledge Agreement
EXHIBIT G-2 - Quebec Pledge Agreement
EXHIBIT G-3 - Mexican Pledge Agreement
EXHIBIT H - Security Agreement
EXHIBIT I - Subsidiaries Guaranty
EXHIBIT J - Solvency Certificate
EXHIBIT K - Form of Assignment and Assumption Agreement
EXHIBIT L - Form of Intercompany Note
EXHIBIT M - Form of Shareholder Subordinated Note
EXHIBIT N - Intercompany Subordination Agreement
(vi)
CREDIT AGREEMENT, dated as of November __, 2003, among QUALITY
DISTRIBUTION, INC., a Florida corporation ("Holdings"), QUALITY DISTRIBUTION,
LLC, a Delaware limited liability company (the "Borrower"), the lenders from
time to time party hereto (each, a "Lender" and, collectively, the "Lenders"),
JPMORGAN CHASE BANK, as Documentation Agent (in such capacity, the
"Documentation Agent"), DEUTSCHE BANK SECURITIES INC. and BEAR XXXXXXX CORPORATE
LENDING INC., as Co-Syndication Agents (in such capacity, the "Co-Syndication
Agents"), and CREDIT SUISSE FIRST BOSTON, ACTING THROUGH ITS CAYMAN ISLANDS
BRANCH, as Administrative Agent (in such capacity, the "Administrative Agent"
and, together with the Documentation Agent and the Co-Syndication Agents, each,
an "Agent" and, collectively, the "Agents"). Unless otherwise defined herein,
all capitalized terms used herein and defined in Section 11 are used herein as
so defined.
W I T N E S S E T H :
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WHEREAS, subject to and upon the terms and conditions herein set
forth, the Lenders are willing to make available to the Borrower the credit
facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 Commitments. (a) Subject to and upon the terms and conditions
set forth herein, each Lender with a Term Loan Commitment severally agrees to
make a term loan (each, a "Term Loan" and, collectively, the "Term Loans") to
the Borrower, which Term Loans:
(i) shall be incurred by the Borrower pursuant to two drawings, with
(x) the first such drawing to be made on the Initial Borrowing Date for the
purposes described in Section 7.05(a)(i) and (y) the second such drawing to
be made on the Redemption Date for the purposes described in Section
7.05(a)(ii);
(ii) shall be denominated in U.S. Dollars;
(iii) except as hereafter provided, shall, at the option of the
Borrower, be incurred and maintained as, and/or converted into, Base Rate
Loans or Eurodollar Loans, provided, that (x) except as otherwise
specifically provided in Section 1.10(b), all Term Loans made as part of
the same Borrowing shall at all times consist of Term Loans of the same
Type and (y) unless the Syndication Date has occurred (at which time this
clause (y) shall no longer be applicable), each Borrowing of Term Loans to
be maintained as Eurodollar Loans, may only have an Interest Period of one
month with the first such Borrowing to occur no earlier than the third
Business Day after the Initial Borrowing Date;
(iv) shall not exceed for any Lender, in initial principal amount for
the Term Loans being made by such Lender on the Initial Borrowing Date,
that amount which
equals the lesser of (x) such Lender's TL Percentage of $[70,000,000]/1/ or
(y) the Term Loan Commitment of such Lender as in effect on the Initial
Borrowing Date (before giving effect to any reduction thereto on such date
pursuant to Section 3.03(b)(i)); and
(v) shall not exceed for any Lender, in initial principal amount for
the Term Loans being made by such Lender on the Redemption Date, that
amount which equals the Term Loan Commitment of such Lender as in effect on
the Redemption Date (before giving effect to any reduction thereto on such
date pursuant to Section 3.03(b)(i) or (ii) but after giving effect to any
reductions thereto on or prior to such date pursuant to Section
3.03(b)(iii)).
Once repaid, Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions herein set forth,
each RL Lender severally agrees, at any time and from time to time on and after
the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, to
make a revolving loan or revolving loans (each, a "Revolving Loan" and,
collectively, the "Revolving Loans") to the Borrower, which Revolving Loans:
(i) shall be denominated in U.S. Dollars;
(ii) shall, at the option of the Borrower, be incurred and maintained
as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided
that (x) except as otherwise specifically provided in Section 1.10(b), all
Revolving Loans made as part of the same Borrowing shall at all times be of
the same Type and (y) unless the Syndication Date has occurred (at which
time this clause (y) shall no longer be applicable), each Borrowing of
Revolving Loans to be maintained as Eurodollar Loans, may only have an
Interest Period of one month, with the first such Borrowing to occur no
earlier than the third Business Day after the Initial Borrowing Date;
(iii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iv) shall not exceed for any Lender at any time outstanding that
aggregate principal amount which, when added to the product of (x) such
Lender's Adjusted RL Percentage and (y) the sum of (I) the aggregate amount
of all WC Letter of Credit Outstandings (exclusive of WC Unpaid Drawings
which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) at such time
and (II) the aggregate principal amount of all Swingline Loans (exclusive
of Swingline Loans which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) then outstanding, equals the Revolving Loan Commitment of
such Lender at such time; and
(v) shall not exceed for all Lenders at any time outstanding that
aggregate principal amount which, when added to (x) the aggregate amount of
all WC Letter of
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/1/ To be finalized on the Initial Borrowing Date.
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Credit Outstandings (exclusive of WC Unpaid Drawings which are repaid with
the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) at such time and (y) the aggregate principal
amount of all Swingline Loans (exclusive of Swingline Loans which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) then outstanding, exceeds an
amount equal to the Total Revolving Loan Commitment then in effect.
(c) Subject to and upon the terms and conditions set forth herein,
CSFB in its individual capacity agrees to make at any time and from time to time
on and after the Initial Borrowing Date and prior to the Swingline Expiry Date,
a revolving loan or revolving loans to the Borrower (each, a "Swingline Loan"
and, collectively, the "Swingline Loans"), which Swingline Loans:
(i) shall be denominated in U.S. Dollars;
(ii) shall be made and maintained as Base Rate Loans;
(iii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iv) shall not exceed in aggregate principal amount at any time
outstanding, when combined with (x) the aggregate principal amount of all
Revolving Loans made by Non-Defaulting Lenders then outstanding and (y) the
aggregate amount of all WC Letter of Credit Outstandings at such time, an
amount equal to the Adjusted Total Revolving Loan Commitment at such time
(after giving effect to any changes thereto on such date); and
(v) shall not exceed in aggregate principal amount at any time
outstanding the Maximum Swingline Amount.
Notwithstanding anything contained in this Section 1.01(c), (i) CSFB shall not
be obligated to make any Swingline Loans at a time when a Lender Default exists
unless CSFB has entered into arrangements satisfactory to it and the Borrower to
eliminate CSFB's risk with respect to the Defaulting Lender's or Defaulting
Lenders' participation in such Swingline Loans, including by cash
collateralizing such Defaulting Lender's or Defaulting Lenders' RL Percentage of
the outstanding Swingline Loans and (ii) CSFB will not make a Swingline Loan
after it has received written notice from the Borrower or the Required Lenders
stating that a Default or an Event of Default exists until such time as CSFB
shall have received a written notice of (x) rescission of such notice from the
party or parties originally delivering the same or (y) a waiver of such Default
or Event of Default from the Required Lenders.
(d) On any Business Day, CSFB may, in its sole discretion, give
notice to the RL Lenders that its outstanding Swingline Loans shall be funded
with a Borrowing of Revolving Loans (provided that each such notice shall be
deemed to have been automatically given upon the occurrence of a Default or an
Event of Default under Section 10.05 or upon the exercise of any of the remedies
provided in the last paragraph of Section 10), in which case a Borrowing of
Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made on the immediately succeeding Business Day by all RL
Lenders pro rata based on each RL Lender's Adjusted RL Percentage (determined
before giving effect to any
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termination of the Revolving Loan Commitments pursuant to the last paragraph of
Section 10), and the proceeds thereof shall be applied directly to repay CSFB
for such outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees
to make Revolving Loans upon one Business Day's notice pursuant to each
Mandatory Borrowing in the amount and in the manner specified in the preceding
sentence and on the date specified in writing by CSFB notwithstanding (i) that
the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing
Amount otherwise required hereunder, (ii) whether any conditions specified in
Section 5 or 6 are then satisfied, (iii) whether a Default or an Event of
Default has occurred and is continuing, (iv) the date of such Mandatory
Borrowing and (v) the amount of the Total Revolving Loan Commitment, the
Adjusted Total Revolving Loan Commitment or the Revolving Loan Commitment of
such RL Lender at such time. In the event that any Mandatory Borrowing cannot
for any reason be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the Bankruptcy
Code with respect to the Borrower), then each RL Lender (other than CSFB) hereby
agrees that it shall forthwith purchase from CSFB (without recourse or warranty)
such assignment of the outstanding Swingline Loans as shall be necessary to
cause the RL Lenders to share in such Swingline Loans ratably based upon their
respective Adjusted RL Percentages (determined before giving effect to any
termination of the Revolving Loan Commitments pursuant to the last paragraph of
Section 10), provided that (x) all interest payable on the Swingline Loans shall
be for the account of CSFB until the date the respective assignment is purchased
and, to the extent attributable to the purchased assignment, shall be payable to
the RL Lender purchasing same from and after such date of purchase (or, if
earlier, from the date on which the Mandatory Borrowing would otherwise have
occurred, so long as the payments required by the following clause (y) have in
fact been made) and (y) at the time any purchase of assignments pursuant to this
sentence is actually made, the purchasing RL Lender shall be required to pay
CSFB interest on the principal amount of assignment purchased for each day from
and including the day upon which the Mandatory Borrowing would otherwise have
occurred to but excluding the date of payment for such assignment, at the rate
otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder
for each day thereafter.
1.02 Minimum Borrowing Amounts, etc. The aggregate principal amount
of each Borrowing of Loans shall not be less than the Minimum Borrowing Amount
applicable to such Loans, provided that Mandatory Borrowings shall be made in
the amounts required by Section 1.01(d). More than one Borrowing may be incurred
on any day, provided, that at no time shall there be outstanding more than nine
Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to make a
Borrowing of Loans hereunder (excluding Borrowings of Swingline Loans and
Mandatory Borrowings), an Authorized Officer of the Borrower shall give the
Administrative Agent at its Notice Office, prior to 12:00 Noon (New York time),
at least three Business Days' prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing of Eurodollar Loans, and at
least one Business Day's prior written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing of Base Rate Loans to be made hereunder.
Each such notice (each, a "Notice of Borrowing") shall, except as otherwise
expressly provided in Section 1.10, be irrevocable, and, in the case of each
written notice and each confirmation of telephonic notice, shall be in the form
of Exhibit A-1, appropriately completed to specify: (i) the aggregate principal
amount of the Loans to be made pursuant to such Borrowing, (ii) the date of such
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Borrowing (which shall be a Business Day), (iii) whether the respective
Borrowing shall consist of Term Loans or Revolving Loans, (iv) whether the
respective Borrowing shall consist of Base Rate Loans or, to the extent
permitted hereunder, Eurodollar Loans and, if Eurodollar Loans, the Interest
Period to be initially applicable thereto and (v) in the case of a Borrowing of
Revolving Loans the proceeds of which are to be utilized to finance, in whole or
in part, the purchase price of a Permitted Acquisition, (x) a reference to the
officer's certificate, if any, delivered in accordance with Section 8.15, (y)
the aggregate principal amount of such Revolving Loans to be utilized in
connection with such Permitted Acquisition and (z) the Total Unutilized
Revolving Loan Commitment then in effect after giving effect to the respective
Permitted Acquisition (and all payments to be made in connection therewith). The
Administrative Agent shall promptly give each Lender which is required to make
Loans of the Tranche specified in the respective Notice of Borrowing, written
notice (or telephonic notice promptly confirmed in writing) of each proposed
Borrowing, of such Lender's proportionate share thereof and of the other matters
required by the immediately preceding sentence to be specified in the Notice of
Borrowing.
(b) (i) Whenever the Borrower desires to incur Swingline Loans
hereunder, an Authorized Officer of the Borrower shall give CSFB not later than
2:00 P.M. (New York time) on the day such Swingline Loan is to be made, written
notice (or telephonic notice promptly confirmed in writing) of each Swingline
Loan to be made hereunder. Each such notice shall be irrevocable and shall
specify in each case (x) the date of such Borrowing (which shall be a Business
Day) and (y) the aggregate principal amount of the Swingline Loan to be made
pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice (or deemed
notice) specified in Section 1.01(d), with the Borrower irrevocably agreeing, by
its incurrence of any Swingline Loan, to the making of Mandatory Borrowings as
set forth in such Section 1.01(d).
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent or CSFB (in the case of a Borrowing of Swingline Loans) or
the respective Letter of Credit Issuer (in the case of the issuance of Letters
of Credit), as the case may be, may prior to receipt of written confirmation act
without liability upon the basis of such telephonic notice, believed by the
Administrative Agent, CSFB or such Letter of Credit Issuer, as the case may be,
in good faith to be from an Authorized Officer of the Borrower. In each such
case, the Administrative Agent's, CSFB's or the respective Letter of Credit
Issuer's, as the case may be, record of the terms of such telephonic notice
shall be conclusive evidence of the contents of such notice, absent manifest
error.
1.04 Disbursement of Funds. Not later than 1:00 P.M. (New York time)
on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, not later than 3:00 P.M. (New York time) on the date specified
in Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, not later than
12:00 Noon (New York time) on the date specified in Section 1.01(d)), each
Lender with a Commitment under the respective Tranche will make available its
pro rata share (determined in accordance with Section 1.07), if any, of each
Borrowing requested to be made on such date (or in the case of Swingline Loans,
CSFB shall make available the full amount thereof) in the manner provided below.
All amounts shall be made available to the Administrative Agent in U.S. Dollars
and in immediately available funds at
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the Payment Office, and the Administrative Agent promptly will make available to
the Borrower at its account at the Payment Office (or to CSFB, in the case of a
Mandatory Borrowing) the aggregate of the amounts so made available in the type
of funds received. Unless the Administrative Agent shall have been notified by
any Lender prior to the date of Borrowing that such Lender does not intend to
make available to the Administrative Agent its portion of the Borrowing or
Borrowings to be made on such date, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative Agent on such
date of Borrowing, and the Administrative Agent, in reliance upon such
assumption, may (in its sole discretion and without any obligation to do so)
make available to the Borrower a corresponding amount. If such corresponding
amount is not in fact made available to the Administrative Agent by such Lender
and the Administrative Agent has made available same to the Borrower, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender. 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. The Administrative Agent
shall also be entitled to recover on demand from such Lender or the Borrower, as
the case may be, interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the Administrative
Agent to the Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (x) if paid by such Lender,
the overnight Federal Funds Rate or (y) if paid by the Borrower, the then
applicable rate of interest, calculated in accordance with Section 1.08.
1.05 Notes. (a) The Borrower's obligation to pay the principal of,
and interest on, all the Loans made to it by each Lender shall be set forth on
the Register maintained by the Administrative Agent pursuant to Section 13.17
and, subject to the provisions of Section 1.05(f), shall be evidenced (i) if
Term Loans, by a promissory note substantially in the form of Exhibit B-1, with
blanks appropriately completed in conformity herewith (each, a "Term Note" and,
collectively, the "Term Notes"), (ii) if Revolving Loans, by a promissory note
substantially in the form of Exhibit B-2, with blanks appropriately completed in
conformity herewith (each, a "Revolving Note" and, collectively, the "Revolving
Notes") and (iii) if Swingline Loans, by a promissory note substantially in the
form of Exhibit B-3, with blanks appropriately completed in conformity herewith
(the "Swingline Note").
(b) The Term Note issued to each Lender with a Term Loan Commitment
and/or outstanding Term Loans shall (i) be executed by the Borrower, (ii) be
payable to such Lender or its registered assigns and be dated the Initial
Borrowing Date (or, in the case of any Term Note issued after the Initial
Borrowing Date, the date of issuance thereof), (iii) be in a stated principal
amount equal to the Term Loan Commitment of such Lender on the Initial Borrowing
Date (or, in the case of any Term Note issued after the Initial Borrowing Date,
in a stated principal amount equal to the sum of the Term Loan Commitment and
the outstanding principal amount of the Term Loan of such Lender on the date of
the issuance thereof) and be payable in the principal amount of Term Loans
evidenced thereby from time to time, (iv) mature on the Term Loan Maturity Date,
(v) bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary repayment as provided in Section
4.01 and manda-
-6-
tory repayment as provided in Section 4.02 and (vii) be entitled to the benefits
of this Agreement and the other Credit Documents.
(c) The Revolving Note issued to each RL Lender shall (i) be
executed by the Borrower, (ii) be payable to such RL Lender or its registered
assigns and be dated the Initial Borrowing Date (or, in the case of any
Revolving Note issued after the Initial Borrowing Date, the date of issuance
thereof), (iii) be in a stated principal amount equal to the Revolving Loan
Commitment of such RL Lender and be payable in the principal amount of the
outstanding Revolving Loans evidenced thereby, (iv) mature on the Revolving Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary prepayment as provided
in Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(d) The Swingline Note issued to CSFB shall (i) be executed by the
Borrower, (ii) be payable to CSFB or its registered assigns and be dated the
Initial Borrowing Date (or, in the event the Swingline Note is issued after the
Initial Borrowing Date, the date of issuance thereof), (iii) be in a stated
principal amount equal to the Maximum Swingline Amount and be payable in the
principal amount of the outstanding Swingline Loans evidenced thereby, (iv)
mature on the Swingline Expiry Date, (v) bear interest as provided in Section
1.08 in respect of the Base Rate Loans evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 4.01 and mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this Agreement
and the other Credit Documents.
(e) Each Lender will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in such notation shall not affect the Borrower's obligations in
respect of such Loans.
(f) Notwithstanding anything to the contrary contained above or
elsewhere in this Agreement, Notes shall only be delivered to Lenders which at
any time specifically request the delivery of such Notes. No failure of any
Lender to request or obtain a Note evidencing its Loans to the Borrower shall
affect or in any manner impair the obligations of the Borrower to pay the Loans
(and all related Obligations) which would otherwise be evidenced thereby in
accordance with the requirements of this Agreement, and shall not in any way
affect the security or guaranties therefor provided pursuant to the various
Credit Documents. Any Lender which does not have a Note evidencing its
outstanding Loans shall in no event be required to make the notations otherwise
described in preceding clause (e). At any time when any Lender requests the
delivery of a Note to evidence any of its Loans, the Borrower shall promptly
execute and deliver to the respective Lender the requested Note in the
appropriate amount or amounts to evidence such Loans.
1.06 Conversions. The Borrower shall have the option to convert on
any Business Day occurring on or after the Initial Borrowing Date, all or a
portion at least equal to the applicable Minimum Borrowing Amount of the
outstanding principal amount of Loans (other than Swingline Loans, which shall
at all times be maintained as Base Rate Loans) made pursuant
-7-
to one or more Borrowings of one or more Types of Loans under a single Tranche
into a Borrowing or Borrowings of another Type of Loan under such Tranche;
provided, that (i) except as otherwise provided in Section 1.10(b) or unless the
Borrower pays all breakage costs and other amounts owing to each Lender pursuant
to Section 1.11 concurrently with any such conversion, Eurodollar Loans may be
converted into Base Rate Loans only on the last day of an Interest Period
applicable to the Loans being converted, and no partial conversion of a
Borrowing of Eurodollar Loans shall reduce the outstanding principal amount of
the Eurodollar Loans made pursuant to such Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (ii) Base Rate Loans may only be converted
into Eurodollar Loans if no Default or Event of Default is in existence on the
date of the conversion, (iii) unless the Administrative Agent has determined
that the Syndication Date has occurred (at which time this clause (iii) shall no
longer be applicable), no conversions of Base Rate Loans into Eurodollar Loans
may be made prior to the third Business Day following the Initial Borrowing Date
and (iv) Borrowings of Eurodollar Loans resulting from this Section 1.06 shall
be limited in number as provided in Section 1.02. Each such conversion shall be
effected by the Borrower by giving the Administrative Agent at its Notice
Office, prior to 12:00 Noon (New York time), at least three Business Days' (or
one Business Day's in the case of a conversion into Base Rate Loans) prior
written notice (or telephonic notice promptly confirmed in writing) (each, a
"Notice of Conversion/Continuation") in the form of Exhibit A-2, appropriately
completed specifying the Loans to be so converted, the Borrowing(s) pursuant to
which the Loans were made and, if to be converted into a Borrowing of Eurodollar
Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Lender prompt notice of any such proposed
conversion affecting any of its Loans.
1.07 Pro Rata Borrowings. All Borrowings of Term Loans and Revolving
Loans under this Agreement shall be incurred by the Borrower from the Lenders
pro rata on the basis of such Lenders' Term Loan Commitments or Revolving Loan
Commitments, as the case may be; provided that all Borrowings of Revolving Loans
made pursuant to a Mandatory Borrowing shall be incurred from the RL Lenders pro
rata on the basis of their respective Adjusted RL Percentages. It is understood
that no Lender shall be responsible for any default by any other Lender of its
obligation to make Loans hereunder and that each Lender shall be obligated to
make the Loans to be made by it hereunder, regardless of the failure of any
other Lender to fulfill its commitments hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in respect of
the unpaid principal amount of each Base Rate Loan made to it from the date of
the Borrowing thereof until the earlier of (i) the maturity (whether by
acceleration or otherwise) of such Base Rate Loan and (ii) the conversion of
such Base Rate Loan to a Eurodollar Loan pursuant to Section 1.06, at a rate per
annum which shall at all times be equal to the sum of the relevant Applicable
Margin as in effect from time to time plus the Base Rate in effect from time to
time during the period such Base Rate Loan is outstanding.
(b) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan made to it from the date of the
Borrowing thereof until the earlier of (i) the maturity (whether by acceleration
or otherwise) of such Eurodollar Loan and (ii) the conversion of such Eurodollar
Loan to a Base Rate Loan pursuant to Section 1.06, 1.09 or 1.10(b), as
applicable, at a rate per annum which shall, during each Interest Period
applicable
-8-
thereto, at all times be equal to the sum of the relevant Applicable Margin as
in effect from time to time plus the Eurodollar Rate for such Interest Period.
(c) To the extent permitted by law, overdue principal and overdue
interest in respect of each Loan shall, in each case, bear interest at a rate
per annum equal to the greater of (x) the rate which is 2% in excess of the rate
borne by such Loan immediately prior to the respective payment default and (y)
the rate which is 2% in excess of the rate otherwise applicable to Base Rate
Loans from time to time. Interest which accrues under this Section 1.08(c) shall
be payable on demand.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on each
Quarterly Payment Date, (ii) in respect of each Eurodollar Loan, on (x) the date
of any conversion into a Base Rate Loan pursuant to Section 1.06, 1.09 or
1.10(b), as applicable (on the amount converted) and (y) the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and (iii) in respect of each Loan, on (x)
the date of any prepayment or repayment thereof (on the amount prepaid or
repaid), (y) at maturity (whether by acceleration or otherwise) and (z) after
such maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 13.07(b).
(f) Upon each Interest Determination Date, the Administrative Agent
shall determine the Eurodollar Rate for the respective Interest Period or
Interest Periods and shall promptly notify the Borrower and the Lenders thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
1.09 Interest Periods for Eurodollar Loans. At the time the Borrower
gives a Notice of Borrowing or Notice of Conversion/Continuation in respect of
the making of, or conversion into, a Borrowing of Eurodollar Loans (in the case
of the initial Interest Period applicable thereto) or prior to 12:00 Noon (New
York time) on the third Business Day prior to the expiration of an Interest
Period applicable to a Borrowing of Eurodollar Loans (in the case of any
subsequent Interest Period), the Borrower shall have the right to elect by
giving the Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) of the Interest Period applicable to such Borrowing, which
Interest Period shall, at the option of the Borrower (but otherwise subject to
clause (y) of the proviso to Sections 1.01(a)(iii) and 1.01(b)(ii) and to clause
(iii) of the proviso to Section 1.06), be a one, two, three, six or, to the
extent available to each Lender with outstanding Loans and/or Commitments under
the respective Tranche, nine or twelve month period. Notwithstanding anything to
the contrary contained above:
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
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(ii) the initial Interest Period for any Borrowing of Eurodollar
Loans shall commence on the date of such Borrowing (including the date of
any conversion from a Borrowing of Base Rate Loans) and each Interest
Period occurring thereafter in respect of such Borrowing shall commence on
the day on which the next preceding Interest Period applicable thereto
expires;
(iii) if any Interest Period for any Borrowing of Eurodollar Loans
begins on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest Period
shall end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided, that if any Interest Period for any
Borrowing of Eurodollar Loans would otherwise expire on a day which is not
a Business Day but is a day of the month after which no further Business
Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(v) no Interest Period for a Borrowing under a Tranche shall be
selected which would extend beyond the respective Maturity Date for such
Tranche;
(vi) no Interest Period may be elected at any time when a Default or
an Event of Default is then in existence; and
(vii) no Interest Period in respect of any Borrowing of Term Loans
shall be elected which extends beyond any date upon which a Scheduled
Repayment will be required to be made under Section 4.02(b) if, after
giving effect to the election of such Interest Period, the aggregate
principal amount of such Term Loans which have Interest Periods which will
expire after such date will be in excess of the aggregate principal amount
of such Term Loans then outstanding less the aggregate amount of such
required Scheduled Repayment.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to the respective
Borrowing of Eurodollar Loans as provided above, the Borrower shall be deemed to
have elected to convert such Borrowing into a Borrowing of Base Rate Loans
effective as of the expiration date of such current Interest Period.
1.10 Increased Costs; Illegality; etc. (a) In the event that (x) in
the case of clause (i) below, the Administrative Agent or (y) in the case of
clauses (ii) and (iii) below, any Lender, shall have determined in good faith
(which determination shall, absent manifest error, be final and conclusive and
binding upon all parties hereto):
(i) on any Interest Determination Date, that, by reason of any
changes arising after the Effective Date affecting the interbank Eurodollar
market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of
Eurodollar Rate; or
-10-
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loans because of (x) any change since the Effective Date in
any applicable law, governmental rule, regulation, guideline, order or
request (whether or not having the force of law), or in the interpretation
or administration thereof and including the introduction of any new law or
governmental rule, regulation, guideline, order or request (other than, in
each case, any such change with respect to taxes or any similar charges),
such as, for example, but not limited to, a change in official reserve
requirements, but, in all events, excluding reserves required under
Regulation D to the extent included in the computation of the Eurodollar
Rate and/or (y) other circumstances affecting such Lender, the interbank
Eurodollar market or the position of such Lender in such market (other than
circumstances relating to taxes or any similar charges); or
(iii) at any time since the Effective Date, that the making or
continuance of any Eurodollar Loan has become unlawful by compliance by
such Lender with any law, governmental rule, regulation, guideline or order
(or would conflict with any governmental rule, regulation, guideline,
request or order not having the force of law but with which such Lender
customarily complies even though the failure to comply therewith would not
be unlawful), or has become impracticable as a result of a contingency
occurring after the Effective Date which materially and adversely affects
the interbank Eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent in the
case of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and (except in the case of clause (i)) to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders). Thereafter, (x) in
the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice by the Administrative
Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion/Continuation given by the Borrower with respect to Eurodollar Loans
which have not yet been incurred (including by way of conversion) shall be
deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the
Borrower agrees, subject to the provisions of Section 13.18 (to the extent
applicable), to pay to such Lender, upon written demand therefor, such
additional amounts (in the form of an increased rate of, or a different method
of calculating, interest or otherwise as such Lender in its sole discretion
shall determine) as shall be required to compensate such Lender for such
increased costs or reductions in amounts received or receivable hereunder (a
written notice as to the additional amounts owed to such Lender, showing in
reasonable detail the basis for the calculation thereof, prepared in good faith
and submitted to the Borrower by such Lender shall, absent manifest error, be
final and conclusive and binding upon all parties hereto, although the failure
to give any such notice shall not release or diminish any of the Borrower's
obligations to pay additional amounts pursuant to this Section 1.10(a) upon the
subsequent receipt of such notice) and (z) in the case of clause (iii) above,
the Borrower shall take one of the actions specified in Section 1.10(b) as
promptly as practicable and, in any event, within the time period required by
law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii), the
Borrower shall) either (i) if the affected Eurodollar
-11-
Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving
the Administrative Agent telephonic notice (confirmed promptly in writing)
thereof on the same date that the Borrower was notified by a Lender pursuant to
Section 1.10(a)(ii) or (iii)), or (ii) if the affected Eurodollar Loan is then
outstanding, upon at least three Business Days' notice to the Administrative
Agent, require the affected Lender to convert each such Eurodollar Loan into a
Base Rate Loan (which conversion, in the case of the circumstance described in
Section 1.10(a)(iii), shall occur no later than the last day of the Interest
Period then applicable to such Eurodollar Loan or such earlier day as shall be
required by applicable law); provided, that if more than one Lender is affected
at any time, then all affected Lenders must be treated the same pursuant to this
Section 1.10(b).
(c) If any Lender shall have determined that after the Effective
Date,the adoption or effectiveness of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Lender or any corporation controlling such Lender
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Lender's or such
other corporation's capital or assets as a consequence of such Lender's
Commitment or Commitments or its obligations hereunder to the Borrower to a
level below that which such Lender or such other corporation could have achieved
but for such adoption, effectiveness, change or compliance (taking into
consideration such Lender's or such other corporation's policies with respect to
capital adequacy), then from time to time, upon written demand by such Lender
(with a copy to the Administrative Agent), accompanied by the notice referred to
in the last sentence of this clause (c), the Borrower agrees, subject to the
provisions of Section 13.18 (to the extent applicable), to pay to such Lender
such additional amount or amounts as will compensate such Lender or such other
corporation for such reduction in the rate of return to such Lender or such
other corporation. Each Lender, upon determining in good faith that any
additional amounts will be payable pursuant to this Section 1.10(c), will give
prompt written notice thereof to the Borrower (a copy of which shall be sent by
such Lender to the Administrative Agent), which notice shall set forth in
reasonable detail the basis of the calculation of such additional amounts,
although the failure to give any such notice shall not release or diminish the
Borrower's obligation to pay additional amounts pursuant to this Section 1.10(c)
upon the subsequent receipt of such notice. In determining any additional
amounts owing under this Section 1.10(c), each Lender will act reasonably and in
good faith and will use averaging and attribution methods which are reasonable;
provided that such Lender's reasonable good faith determination of compensation
owing under this Section 1.10(c) shall, absent manifest error, be final and
conclusive and binding on all the parties hereto.
1.11 Compensation. (a) The Borrower agrees, subject to the provisions
of Section 13.18 (to the extent applicable), to compensate each Lender, promptly
upon its written request (which request shall set forth in reasonable detail the
basis for requesting such compensation), for all reasonable losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Lender to fund its Eurodollar Loans but excluding any loss of
anticipated profits) which such Lender may sustain: (i) if for any reason (other
than a default by such Lender or any Agent) a Borrowing of, or conversion from
or into, Eurodollar Loans does
-12-
not occur on a date specified therefor in a Notice of Borrowing or Notice of
Conversion/Continuation given by the Borrower (whether or not withdrawn by the
Borrower or deemed withdrawn pursuant to Section 1.10(a)); (ii) if any repayment
(including any repayment made pursuant to Section 4.01 or 4.02 or as a result of
an acceleration of the Loans pursuant to Section 10 or as a result of the
replacement of a Lender pursuant to Section 1.13 or 13.12(b)) or conversion of
any Eurodollar Loans of the Borrower occurs on a date which is not the last day
of an Interest Period applicable thereto; (iii) if any prepayment of any
Eurodollar Loans is not made on any date specified in a notice of prepayment
given by the Borrower; or (iv) as a consequence of (x) any other default by the
Borrower to repay its Eurodollar Loans when required by the terms of this
Agreement or (y) an election made by the Borrower pursuant to Section 1.10(b).
Each Lender's calculation of the amount of compensation owing pursuant to this
Section 1.11 shall be made in good faith. A Lender's basis for requesting
compensation pursuant to this Section 1.11 and a Lender's calculation of the
amount thereof made in accordance with the requirements of this Section 1.11,
shall, absent manifest error, be final and conclusive and binding on all parties
hereto.
The Borrower agrees to compensate the Administrative Agent, upon its
written request (which request shall set forth in reasonable detail the basis
for requesting such compensation), for all losses, expenses and liabilities
(exclusive of amounts payable pursuant to Section 2.04(b)(ii)) incurred by it in
connection with (i) any withdrawals from the Credit-Linked Deposit Account
pursuant to the terms of this Agreement prior to the end of the applicable
Interest Period or scheduled investment termination date for the Credit-Linked
Deposits and (ii) the termination of the Total PF Letter of Credit Commitment
(and the related termination of the investment of the funds held in the
Credit-Linked Deposit Account) prior to the end of any applicable Interest
Period or scheduled investment termination date for the Credit-Linked Deposits.
1.12 Change of Lending Office. (a) Each Lender may at any time or
from time to time designate, by written notice to the Administrative Agent to
the extent not already reflected on Schedule II, one or more lending offices
(which, for this purpose, may include Affiliates of the respective Lender) for
the various Loans made, and Letters of Credit participated in, by such Lender;
provided that, for designations made after the Effective Date, to the extent
such designation shall result in increased costs under Section 1.10, 2.05 or
4.04 in excess of those which would be charged in the absence of the designation
of a different lending office (including a different Affiliate of the respective
Lender), then the Borrower shall not be obligated to pay such excess increased
costs (although the Borrower, in accordance with and pursuant to the other
provisions of this Agreement, shall be obligated to pay the costs which would
apply in the absence of such designation and any subsequent increased costs of
the type described above resulting from changes after the date of the respective
designation). Each lending office and Affiliate of any Lender designated as
provided above shall, for all purposes of this Agreement, be treated in the same
manner as the respective Lender (and shall be entitled to all indemnities and
similar provisions in respect of its acting as such hereunder).
(b) Each Lender agrees that, upon the occurrence of any event giving
rise to the operation of Section 1.10(a)(ii) or (iii), 1.10(c), 2.05 or 4.04
with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans or Letters of
-13-
Credit affected by such event, with the object of avoiding the consequences of
the event giving rise to the operation of any such Section; provided, that such
designation is made on such terms that such Lender and its lending office suffer
no economic, legal or regulatory disadvantage. Nothing in this Section 1.12
shall affect or postpone any of the obligations of the Borrower or the right of
any Lender provided in Section 1.10, 2.05 or 4.04 (although each such Lender
shall nevertheless have an obligation to change its applicable lending office
subject to the terms set forth in the immediately preceding sentence).
1.13 Replacement of Lenders. On and after the Term Loan Commitment
Termination Date, (x) if any Lender becomes a Defaulting Lender, (y) upon the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.05 or Section 4.04 with respect to any Lender
which results in such Lender charging to the Borrower increased costs in a
material amount in excess of those being generally charged by the other Lenders
or (z) in the case of a refusal by a Lender to consent to a proposed change,
waiver, discharge or termination with respect to this Agreement which has been
approved by the Required Lenders as provided in Section 13.12(b), the Borrower
shall have the right, in accordance with Section 13.04(b), if no Default or
Event of Default then exists or would exist after giving effect to such
replacement, to replace such Lender (the "Replaced Lender") with one or more
other Eligible Transferee or Eligible Transferees, none of whom shall constitute
a Defaulting Lender at the time of such replacement (collectively, the
"Replacement Lender") and each of which shall be reasonably acceptable to the
Administrative Agent or, at the option of the Borrower, to replace only (a) the
Revolving Loan Commitment (and outstandings pursuant thereto) of the Replaced
Lender and/or the PF Letter of Credit Commitment of the Replaced Lender with an
identical Revolving Loan Commitment and/or PF Letter of Credit Commitment
provided by the Replacement Lender or (b) in the case of a replacement as
provided in Section 13.12(b) where the consent of the respective Lender is
required with respect to less than all Tranches of its Loans or Commitments, the
Commitments and/or outstanding Loans of such Lender in respect of each Tranche
where the consent of such Lender would otherwise be individually required, with
identical Commitments and/or Loans of the respective Tranche provided by the
Replacement Lender; provided that:
(i) at the time of any replacement pursuant to this Section 1.13,
the Replacement Lender shall enter into one or more Assignment and
Assumption Agreements pursuant to Section 13.04(b) (and with all fees
payable pursuant to said Section 13.04(b) to be paid by the Replacement
Lender) pursuant to which the Replacement Lender shall acquire all of the
Commitments and outstanding Loans (or, in the case of the replacement of
only (a) the Revolving Loan Commitment, the Revolving Loan Commitment and
outstanding Revolving Loans and participations in WC Letter of Credit
Outstandings, (b) the PF Letter of Credit Commitment, participations in PF
Letter of Credit Outstandings and/or (c) the outstanding Term Loans, the
outstanding Term Loans) of, and in each case (except for the replacement of
only the outstanding Term Loans of the respective Lender) participations in
Letters of Credit by, the Replaced Lender and, in connection therewith,
shall pay to (x) the Replaced Lender in respect thereof an amount equal to
the sum of (A) an amount equal to the principal of, and all accrued
interest on, all outstanding Loans (or of the Loans of the respective
Tranche being replaced) of the Replaced Lender, (B) an amount equal to all
WC Unpaid Drawings and/or PF Unpaid Drawings, as the case may be (unless
there are no such WC Unpaid
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Drawings or PF Unpaid Drawings with respect to the Tranche being replaced),
that have been funded by (and not reimbursed to) such Replaced Lender,
together with all then unpaid interest with respect thereto at such time
and (C) an amount equal to all accrued, but theretofore unpaid, Fees owing
to the Replaced Lender (but only with respect to the relevant Tranche, in
the case of the replacement of less than all Tranches of Loans then held by
the respective Replaced Lender) pursuant to Section 3.01, (y) except in the
case of the replacement of only the outstanding Term Loans of a Replaced
Lender, each Letter of Credit Issuer an amount equal to such Replaced
Lender's RL Percentage and/or PF Percentage, as the case may be, of any
Unpaid Drawing relating to Letters of Credit issued by such Letter of
Credit Issuer (which at such time remains an Unpaid Drawing) to the extent
such amount was not theretofore funded by such Replaced Lender and (z) in
the case of any replacement of Revolving Loan Commitments, CSFB an amount
equal to such Replaced Lender's Adjusted RL Percentage of any Mandatory
Borrowing to the extent such amount was not theretofore funded by such
Replaced Lender; and
(ii) all obligations of the Borrower then owing to the Replaced
Lender (other than those (a) specifically described in clause (i) above in
respect of which the assignment purchase price has been, or is concurrently
being, paid, but including all amounts, if any, owing under Section 1.11 or
(b) relating to any Tranche of Loans and/or Commitments of the respective
Replaced Lender which will remain outstanding after giving effect to the
respective replacement) shall be paid in full to such Replaced Lender
concurrently with such replacement.
Upon the execution of the respective Assignment and Assumption Agreement by the
respective Replacement Lender (but not the Replaced Lender, whose signature
thereto shall not be required to render the same effective for purposes of this
Agreement), the payment of amounts referred to in clauses (i) and (ii) above,
the recordation of the assignment on the Register by the Administrative Agent
pursuant to Section 13.17 and, if so requested by the Replacement Lender,
delivery to the Replacement Lender of the appropriate Note or Notes executed by
the Borrower, (x) the Replacement Lender shall become a Lender hereunder and,
unless the respective Replaced Lender continues to have outstanding Term Loans
and/or a Revolving Loan Commitment hereunder, the Replaced Lender shall cease to
constitute a Lender hereunder, except with respect to indemnification provisions
under this Agreement (including, without limitation, Sections 1.10, 1.11, 2.05,
4.04, 13.01 and 13.06), which shall survive as to such Replaced Lender and (y)
except in the case of the replacement of only outstanding Term Loans, the
Adjusted RL Percentages of the Lenders shall be automatically adjusted at such
time to give effect to such replacement.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request a Letter of Credit Issuer
at any time and from time to time after the Initial Borrowing Date and prior to
the tenth Business Day (or the 30th day in the case of Trade Letters of Credit)
preceding the Revolving Loan Maturity Date (in the case of a request for a WC
Letter of Credit) or the Term Loan Maturity Date (in the case of a request for a
PF Letter of Credit) to issue on a sight basis, (x) for the account of the
Borrower and for the benefit of any holder (or any trustee, agent or other
similar representative for any such holders) of L/C
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Supportable Indebtedness, irrevocable sight standby letters of credit in a form
customarily used by such Letter of Credit Issuer or in such other form as has
been approved by such Letter of Credit Issuer (each such standby letter of
credit, a "Standby Letter of Credit") in support of such L/C Supportable
Indebtedness and (y) for the account of the Borrower and for the benefit of
sellers of goods and materials to the Borrower or any of its Subsidiaries in the
ordinary course of business, irrevocable sight trade letters of credit in a form
customarily used by such Letter of Credit Issuer or in such other form as has
been approved by such Letter of Credit Issuer (each such trade letter of credit,
a "Trade Letter of Credit," and each such Standby Letter of Credit and Trade
Letter of Credit, a "Letter of Credit" and, collectively, the "Letters of
Credit"). For purposes hereof, Letters of Credit shall at all times and from
time to time be deemed to be PF Letters of Credit in the amount specified in the
definition of PF Letters of Credit and be deemed to be WC Letters of Credit only
to the extent, and in an amount by which, the aggregate Letter of Credit
Outstandings exceed such amount specified in the definition of PF Letters of
Credit.
(b) Subject to and upon the terms and conditions set forth herein,
each Letter of Credit Issuer hereby agrees that it will, at any time and from
time to time after the Initial Borrowing Date and prior to the tenth Business
Day (or the 30th day in the case of Trade Letters of Credit) preceding the
Revolving Loan Maturity Date (in the case of a request for a WC Letter of
Credit) or the Term Loan Maturity Date (in the case of a request for a PF Letter
of Credit), following its receipt of the respective Letter of Credit Request,
issue for the account of the Borrower one or more Letters of Credit, (x) in the
case of Trade Letters of Credit, in support of trade obligations of the Borrower
or any of its Subsidiaries that arise in the ordinary course of business or (y)
in the case of Standby Letters of Credit, in support of such L/C Supportable
Indebtedness as is permitted to remain outstanding hereunder. Notwithstanding
the foregoing, no Letter of Credit Issuer shall be under any obligation to issue
any Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Letter of
Credit Issuer from issuing such Letter of Credit or any requirement of law
applicable to such Letter of Credit Issuer or any request or directive
(whether or not having the force of law) from any governmental authority
with jurisdiction over such Letter of Credit Issuer shall prohibit, or
request that such Letter of Credit Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon such Letter of Credit Issuer with respect to such Letter of
Credit any restriction or reserve or capital requirement (for which such
Letter of Credit Issuer is not otherwise compensated) not in effect on the
Effective Date, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Letter of Credit Issuer as of the
Effective Date and which such Letter of Credit Issuer in good xxxxx xxxxx
material to it; or
(ii) such Letter of Credit Issuer shall have received written notice
from the Borrower or the Required Lenders prior to the issuance of such
Letter of Credit of the type described in clause (vii) of Section 2.01(c)
or the last sentence of Section 2.02(b).
(c) Notwithstanding the foregoing, (i) no WC Letter of Credit shall
be issued the Stated Amount of which, when added to the WC Letter of Credit
Outstandings (exclusive of WC Unpaid Drawings which are repaid on the date of,
and prior to the issuance of, the respective
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WC Letter of Credit) at such time, would exceed either (x) $50,000,000 or (y)
when added to the aggregate principal amount of all Revolving Loans made by the
Non-Defaulting Lenders and then outstanding and all Swingline Loans then
outstanding, the Adjusted Total Revolving Loan Commitment at such time; (ii) no
PF Letter of Credit shall be issued the Stated Amount of which, when added to
the PF Letter of Credit Outstandings (exclusive of PF Unpaid Drawings which are
repaid on the date of, and prior to the issuance of, the respective PF Letter of
Credit) would exceed either (x) the Total PF Letter of Credit Commitment at such
time or (y) the aggregate amount of the Credit-Linked Deposits in the
Credit-Linked Deposit Account at such time; (iii) (x) each Standby Letter of
Credit shall have an expiry date occurring not later than one year after such
Standby Letter of Credit's date of issuance, provided that any such Standby
Letter of Credit may be extendable for successive periods of up to one year, but
not beyond the tenth Business Day preceding the Revolving Loan Maturity Date (in
the case of a WC Letter of Credit) or the Term Loan Maturity Date (in the case
of a PF Letter of Credit), on terms acceptable to the Letter of Credit Issuer
and (y) each Trade Letter of Credit shall have an expiry date occurring not
later than 180 days after such Trade Letter of Credit's date of issuance; (iv)
(x) no Standby Letter of Credit shall have an expiry date occurring later than
the tenth Business Day preceding the Revolving Loan Maturity Date (in the case
of a WC Letter of Credit) or the Term Loan Maturity Date (in the case of a PF
Letter of Credit) and (y) no Trade Letter of Credit shall have an expiry date
occurring later than 30 days prior to the Revolving Loan Maturity Date (in the
case of a WC Letter of Credit) or the Term Loan Maturity Date (in the case of a
PF Letter of Credit); (v) each Letter of Credit shall be denominated in U.S.
Dollars; (vi) the Stated Amount of each Letter of Credit shall not be less than
$100,000 or such lesser amount as is acceptable to the respective Letter of
Credit Issuer; (vii) no WC Letter of Credit may be issued unless the PF Letter
of Credit Outstandings equal the Total PF Letter of Credit Commitment as then in
effect; and (viii) no Letter of Credit Issuer will issue any Letter of Credit
after it has received written notice from the Borrower or the Required Lenders
stating that a Default or an Event of Default exists until such time as such
Letter of Credit Issuer shall have received a written notice of (x) rescission
of such notice from the party or parties originally delivering the same or (y) a
waiver of such Default or Event of Default by the Required Lenders.
(d) Notwithstanding the foregoing, in the event a Lender Default
exists with respect to an RL Lender or a PF Lender, no Letter of Credit Issuer
shall be required to issue any WC Letter of Credit or PF Letter of Credit, as
the case may be, unless the respective Letter of Credit Issuer has entered into
arrangements satisfactory to it and the Borrower to eliminate such Letter of
Credit Issuer's risk with respect to the participation in WC Letters of Credit
or PF Letters of Credit, as the case may be, of the Defaulting Lender or
Defaulting Lenders, including by cash collateralizing such Defaulting Lender's
or Lenders' Adjusted RL Percentage or PF Percentage, as the case may be, of the
respective Letter of Credit Outstandings; provided, however, that a Defaulting
Lender's PF Percentage of the PF Letter of Credit Outstandings shall not be
required to so cash collateralized, so long as the aggregate amount of
Credit-Linked Deposits at such time exceeds the aggregate PF Letter of Credit
Outstandings at such time.
(e) Schedule XIII hereto contains a description of all letters of
credit issued pursuant to the Existing Credit Agreement for the account of the
Borrower and outstanding on the Initial Borrowing Date (and setting forth, with
respect to each such letter of credit, (i) the name of the issuing lender, (ii)
the letter of credit number, (iii) the name(s) of the account party or account
parties, (iv) the stated amount, (v) the name of the beneficiary, (vi) the
expiry date
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and (vii) whether such letter of credit constitutes a standby letter of credit
or a trade letter of credit). Each such letter of credit, including any
extension or renewal thereof (each, as amended from time to time in accordance
with the terms hereof and thereof, an "Existing Letter of Credit") shall
constitute a "Letter of Credit" for all purposes of this Agreement, issued, for
purposes of Section 2.03(a), on the Initial Borrowing Date. In addition, each
Existing Letter of Credit designated as a "Standby Letter of Credit" or "Trade
Letter of Credit" on Schedule XIII shall constitute a "Standby Letter of Credit"
or "Trade Letter of Credit", as the case may be, for all purposes of this
Agreement. Any Lender hereunder which has issued an Existing Letter of Credit
shall constitute a "Letter of Credit Issuer" for all purposes of this Agreement
and the other Credit Documents.
2.02 Letter of Credit Requests. (a) Whenever the Borrower desires
that a Letter of Credit be issued, the Borrower shall give the Administrative
Agent and the respective Letter of Credit Issuer written notice thereof prior to
12:00 Noon (New York time) at least three Business Days (or such shorter period
as may be acceptable to the respective Letter of Credit Issuer) prior to the
proposed date of issuance (which shall be a Business Day) which written notice
shall be in the form of Exhibit C (each, a "Letter of Credit Request"). Each
Letter of Credit Request shall include any other documents as such Letter of
Credit Issuer customarily requires in connection therewith.
(b) The making of each Letter of Credit Request shall be deemed to
be a representation and warranty by the Borrower that such Letter of Credit may
be issued in accordance with, and it will not violate the requirements of,
Section 2.01(c). Unless the respective Letter of Credit Issuer has received
notice from the Borrower, any Agent or the Required Lenders before it issues a
Letter of Credit that one or more of the applicable conditions specified in
Section 5 or 6, as the case may be, are not then satisfied, or that the issuance
of such Letter of Credit would violate Section 2.01(c), then such Letter of
Credit Issuer may issue the requested Letter of Credit for the account of the
Borrower in accordance with such Letter of Credit Issuer's usual and customary
practice.
2.03 Letter of Credit Participations. (a) Immediately upon the
issuance by a Letter of Credit Issuer of any Letter of Credit, such Letter of
Credit Issuer shall be deemed to have sold and transferred to each other RL
Lender or PF Lender, as the case may be, and each such RL Lender or PF Lender
(in its capacity under this Section 2.03, a "Participant") shall be deemed
irrevocably and unconditionally to have purchased and received from such Letter
of Credit Issuer, without recourse or warranty, an undivided interest and
participation, to the extent of such Participant's Adjusted RL Percentage or PF
Percentage, as the case may be, in such Letter of Credit, each substitute Letter
of Credit, each drawing made thereunder (each, a "Drawing") and the obligations
of the Borrower under this Agreement with respect thereto (although WC Letter of
Credit Fees shall be payable directly to the Administrative Agent for the
account of the RL Lenders as provided in Section 3.01(c), the PF Facility Fee
and the interest referred to in Section 2.04(b)(ii) shall be payable directly to
the Administrative Agent for the account of the PF Lenders as provided in
Sections 3.01(d) and 2.04(b)(ii), respectively, and the Participants shall have
no right to receive any portion of any Facing Fees or any administrative fees
referred to in Section 3.01(f)) with respect to such Letters of Credit and any
security therefor or guaranty pertaining thereto. Upon any change in the
Revolving Loan Commitments or the Adjusted RL Percentages of the RL Lenders or
the PF Letter of Credit Commitments or the PF
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Percentages of the PF Lenders, in each case pursuant to Section 1.13 or 13.04(b)
or as a result of a Lender Default, it is hereby agreed that, with respect to
all outstanding Letters of Credit and Unpaid Drawings with respect thereto,
there shall be an automatic adjustment to the participations pursuant to this
Section 2.03 to reflect the new Adjusted RL Percentages or PF Percentages of the
assignor and assignee RL Lender or PF Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no
Letter of Credit Issuer shall have any obligation relative to the Participants
other than to determine that any documents required to be delivered under such
Letter of Credit have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by any Letter of Credit Issuer under or in
connection with any Letter of Credit issued by it if taken or omitted in the
absence of gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final and non-appealable decision), shall not create
for such Letter of Credit Issuer any resulting liability.
(c) (i) Any payment made by a Letter of Credit Issuer under any
Letter of Credit issued by it shall be deemed to have been drawn first under PF
Letters of Credit for so long as there are any undrawn PF Letters of Credit and
thereafter shall be deemed to be drawn under WC Letters of Credit.
(ii) In the event that any Letter of Credit Issuer makes any payment
under any WC Letter of Credit issued by it and the Borrower shall not have
reimbursed such amount in full to the Letter of Credit Issuer pursuant to
Section 2.04(a), such Letter of Credit Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each
Participant of such failure, and each such Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such Letter
of Credit Issuer, the amount of such Participant's Adjusted RL Percentage of
such payment in U.S. Dollars and in same day funds. If the Administrative Agent
so notifies any Participant required to fund a payment under a WC Letter of
Credit prior to 11:00 A.M. (New York time) on any Business Day, such Participant
shall make available to the Administrative Agent at the Payment Office for the
account of the respective Letter of Credit Issuer such Participant's Adjusted RL
Percentage of the amount of such payment on such Business Day in same day funds
(and, to the extent such notice is given after 11:00 A.M. (New York time) on any
Business Day, such Participant shall make such payment on the immediately
following Business Day). If and to the extent such Participant shall not have so
made its Adjusted RL Percentage of the amount of such payment available to the
Administrative Agent for the account of the respective Letter of Credit Issuer,
such Participant agrees to pay to the Administrative Agent for the account of
such Letter of Credit Issuer, forthwith on demand such amount, together with
interest thereon, for each day from such date until the date such amount is paid
to the Administrative Agent for the account of the Letter of Credit Issuer at
the overnight Federal Funds Rate; provided that if any Participant does not make
available to the Administrative Agent any amounts required to be made available
by it as described above within 2 Business Days after the respective Participant
has been notified by the Administrative Agent or the respective Letter of Credit
Issuer to make such amounts available, then the respective Participant shall pay
interest on the amounts demanded of it at the same rates payable from time to
time by the Borrower on the respective Unpaid Drawings pursuant to Section
2.04(a). The failure of any Participant to make available to the Administrative
Agent for the account of the respective Letter of Credit Issuer its Adjusted RL
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Percentage of any payment under any WC Letter of Credit issued by it shall not
relieve any other Participant of its obligation hereunder to make available to
the Administrative Agent for the account of such Letter of Credit Issuer its
applicable Adjusted RL Percentage of any payment under any such WC Letter of
Credit on the date required, as specified above, but no Participant shall be
responsible for the failure of any other Participant to make available to the
Administrative Agent for the account of such Letter of Credit Issuer such other
Participant's Adjusted RL Percentage of any such payment.
(iii) In the event that a Letter of Credit Issuer makes any payment
under any PF Letter of Credit issued by it and the Borrower shall not have
reimbursed such amount in full to such Letter of Credit Issuer pursuant to
Section 2.04(a), each PF Lender hereby irrevocably authorizes the Administrative
Agent to reimburse such Letter of Credit Issuer for such amount solely from such
PF Lender's PF Percentage of the Credit-Linked Deposits on deposit with the
Administrative Agent in the Credit-Linked Deposit Account.
(d) Whenever any Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Letter of Credit Issuer any payments from the Participants
pursuant to clause (c) above, such Letter of Credit Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each
Participant which has paid its Adjusted RL Percentage thereof or PF Percentage
thereof, as the case may be, in U.S. Dollars and in same day funds, an amount
equal to such Participant's Adjusted RL Percentage or PF Percentage, as the case
may be, of the principal amount thereof and interest thereon accruing after the
purchase of the respective participations (it being understood and agreed that
any such payment to be made pursuant to this Section 2.03(d) to a Participant
which is a PF Lender shall be made by such Letter of Credit Issuer to the
Administrative Agent for the account of such PF Lender and for deposit in the
Credit-Linked Deposit Account).
(e) Each Letter of Credit Issuer shall, promptly after each issuance
of, or amendment or modification to, a Standby Letter of Credit issued by it,
give the Administrative Agent and the Borrower written notice of the issuance
of, or amendment or modification to, such Standby Letter of Credit, which notice
shall be accompanied by a copy of the Standby Letter of Credit or Standby
Letters of Credit issued by it and each such amendment or modification thereto.
Promptly upon receipt of such notice, the Administrative Agent shall notify each
Participant, in writing, of such issuance, amendment or modification and, if any
Participant shall so request, the Administrative Agent shall furnish said
Participant with a copy of such Standby Letter of Credit, such amendment or such
modification, as the case may be.
(f) Each Letter of Credit Issuer (other than CSFB) shall deliver to
the Administrative Agent, promptly on the first Business Day of each week, by
facsimile transmission, the aggregate daily Stated Amount available to be drawn
under the outstanding Trade Letters of Credit issued by such Letter of Credit
Issuer for the previous week. The Administrative Agent shall, within 10 days
after the last Business Day of each calendar month, deliver to each Participant
a report setting forth for such preceding calendar month the aggregate daily
Stated Amount available to be drawn under all outstanding Trade Letters of
Credit during such calendar month.
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(g) The obligations of the Participants to make payments to the
Administrative Agent for the account of the respective Letter of Credit Issuer
with respect to Letters of Credit issued by it shall be irrevocable and not
subject to counterclaim, set-off or other defense or any other qualification or
exception whatsoever and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right
which the Borrower or any of its Subsidiaries may have at any time against
a beneficiary named in a Letter of Credit, any transferee of any Letter of
Credit (or any Person for whom any such transferee may be acting), any
Agent, any Letter of Credit Issuer, any Lender, or any other Person,
whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions (including
any underlying transaction between the Borrower or any of its Subsidiaries
and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.04 Agreement to Repay Letter of Credit Drawings. (a) (i) Except as
contemplated by Section 2.03(c)(iii), and subject to Sections 2.04(b) and
3.01(g), the Borrower hereby agrees to reimburse each Letter of Credit Issuer,
by making payment to the Administrative Agent in U.S. Dollars and in immediately
available funds at the Payment Office, for any payment or disbursement made by
such Letter of Credit Issuer under any Letter of Credit issued by it (each such
amount so paid or disbursed until reimbursed by the Borrower, an "Unpaid
Drawing") immediately after, and in any event on the date of (or, if not
notified by the respective Letter of Credit Issuer prior to 1:00 P.M. (New York
time) on the date of such payment or disbursement, on the Business Day
following), such payment or disbursement, with interest on the amount so paid or
disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to
2:00 P.M. (New York time) on the date of such payment or disbursement, from and
including the date paid or disbursed to but not including the date such Letter
of Credit Issuer is reimbursed therefor at a rate per annum which shall be the
then Applicable Margin for Revolving Loans maintained as Base Rate Loans plus
the Base Rate, each as in effect from time to time (plus an additional 2% per
annum if not reimbursed by the third Business Day after the date of such payment
or disbursement), such interest also to be payable on demand; provided, that it
is understood and agreed, however, that the notices referred to above in this
clause (a) shall not be required to be given if a Default or an Event of Default
under such Section 10.05 shall have occurred and be continuing, in which case
the Unpaid Drawings shall be due and
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payable immediately without presentment, demand, protest or notice of any kind
(all of which are hereby waived by each Credit Party) and shall bear interest at
a rate per annum which shall be (x) until the third Business Day following the
respective Drawing, the Applicable Margin for Revolving Loans maintained as Base
Rate Loans plus the Base Rate, each as in effect from time to time, and (y) at
all times on and after the third Business Day following the respective Drawing,
the rate per annum specified in preceding clause (x) plus 2%. Each Letter of
Credit Issuer shall provide the Borrower prompt notice of any payment or
disbursement made by it under any Letter of Credit issued by it, although the
failure of, or delay in, giving any such notice shall not release, impair or
diminish the obligations of the Borrower under this Section 2.04(a)(i) or under
any other Section of this Agreement.
(ii) If any Drawing under a PF Letter of Credit that has been funded
by the PF Lenders from the Credit-Linked Deposits as provided in Section
2.03(c)(iii) shall be reimbursed by the Borrower on a day other than on the last
day of an Interest Period or scheduled investment termination date applicable to
the Credit-Linked Deposits, the Administrative Agent shall invest the amount so
reimbursed in overnight or short-term cash equivalent investments until the end
of the Interest Period or scheduled investment termination date at the time in
effect and the Borrower shall pay to the Administrative Agent on the last day of
such Interest Period or the scheduled investment termination date, the amount,
if any, by which the interest accrued on a like amount of the Credit-Linked
Deposits at the LIBOR Rate for the Interest Period in effect therefor shall
exceed the interest earned through the investment of the amount so reimbursed
for the period from the date of such reimbursement through the end of the
applicable Interest Period, as determined by the Administrative Agent in good
faith (such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto) and set forth in the request for payment
delivered to the Borrower. In the event that the Borrower shall fail to pay any
amount due under this Section 2.04(a)(ii), the interest payable by the
Administrative Agent to the PF Lenders on their Credit-Linked Deposits under
Section 2.06 shall be correspondingly reduced and the PF Lenders shall without
further act succeed, ratably in accordance with their PF Percentages, to the
rights of the Administrative Agent with respect to such amount due from the
Borrower. In the event that the interest earned through the investment of the
amount so reimbursed for the period from the date of such reimbursement through
the end of the applicable Interest Period (as determined by the Administrative
Agent in good faith) exceeds the interest which would accrue on a like amount of
the Credit-Link Deposits at the LIBOR Rate for the Interest Period in effect for
such period then, so long as no Default or Event of Default then exists, the
Administrative Agent shall return such excess to the Borrower promptly following
the last day of such Interest Period.
(b) (i) In the event that the Credit-Linked Deposit Account is
charged by the Administrative Agent pursuant to Section 2.03(c)(iii) to
reimburse the applicable Letter of Credit Issuer for any payment made by it
under a PF Letter of Credit that has not been reimbursed by the Borrower in cash
pursuant to Section 2.04(a), the Borrower shall have the right, but not the
obligation (other than as provided in Section 4.02(a)(iii)), prior to the Term
Loan Maturity Date, to pay to the Administrative Agent in reimbursement thereof
an amount equal to the amount so charged for deposit in the Credit-Linked
Deposit Account, and such payment by the Borrower shall correspondingly reduce
or satisfy, as applicable, the Borrower's reimbursement obligations pursuant to
such Section 2.04(a) and Section 4.02(j), if any. To the extent that the
Borrower elects not to repay any PF Unpaid Drawing pursuant to Section 2.04(a)
at the time the respective
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Drawing under the PF Letter of Credit occurs, the Borrower shall notify the
Administrative Agent thereof in writing at such time.
(ii) The Borrower agrees to pay to the Administrative Agent for the
ratable account of each PF Lender, interest with respect to any PF Letter of
Credit which is reimbursed from funds in the Credit-Linked Deposit Account and
which have not been reimbursed by the Borrower, equal to the amount that such PF
Lender would have received under Section 2.06(b) calculated for the relevant
period for which payment is required to be made less amounts already received
pursuant to Section 2.06(b) by such PF Lender for such relevant period. Interest
accrued under this Section 2.04(b)(ii) shall be due and payable quarterly in
arrears on each Quarterly Payment Date and on the date on which all PF Unpaid
Drawings have been paid in full by the Borrower.
(c) The Borrower's obligation under this Section 2.04 to reimburse
the respective Letter of Credit Issuer with respect to drawings on Letters of
Credit (including, in each case, interest thereon) shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which Holdings, the Borrower or any of their
respective Subsidiaries may have or have had against such Letter of Credit
Issuer, any Agent or any Lender or other Person, including, without limitation,
any defense based upon the failure of any drawing under a Letter of Credit
issued by it to conform to the terms of the Letter of Credit or any
non-application or misapplication by the beneficiary of the proceeds of such
drawing; provided, however, that the Borrower shall not be obligated to
reimburse such Letter of Credit Issuer for any wrongful payment made by such
Letter of Credit Issuer under a Letter of Credit issued by it as a result of
acts or omissions constituting willful misconduct or gross negligence on the
part of such Letter of Credit Issuer as determined by a court of competent
jurisdiction in a final and non-appealable decision; provided, further, that any
reimbursement made by the Borrower shall be without prejudice to any claim it
may have against such Letter of Credit Issuer as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of such Letter
of Credit Issuer (as determined by a court of competent jurisdiction in a final
and non-appealable decision).
2.05 Increased Costs. If after the Effective Date, any Letter of
Credit Issuer or any Participant determines that the adoption or effectiveness
of any applicable law, rule or regulation, order, guideline or request or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Letter of Credit
Issuer or any Participant with any request or directive (whether or not having
the force of law) by any such authority, central bank or comparable agency shall
either (i) impose, modify or make applicable any reserve, deposit, capital
adequacy or similar requirement against Letters of Credit issued by such Letter
of Credit Issuer or such Participant's participation therein, or (ii) impose on
any Letter of Credit Issuer or any Participant any other conditions directly or
indirectly affecting this Agreement, the Credit-Linked Deposits, any Letter of
Credit or such Participant's participation therein; and the result of any of the
foregoing is to increase the cost to such Letter of Credit Issuer or such
Participant of issuing, maintaining or participating in the Credit-linked
Deposits or any Letter of Credit, or to reduce the amount of any sum received or
receivable by such Letter of Credit Issuer or such Participant hereunder or
reduce the rate of return on its capital (other than any increased costs or
reduction in the amount received or receivable resulting
-23-
from the imposition of or a change in the rate of taxes or any similar charges)
with respect to the Credit0linked Deposits or Letters of Credit, then, upon
written demand to the Borrower by such Letter of Credit Issuer or such
Participant (a copy of which notice shall be sent by such Letter of Credit
Issuer or such Participant to the Administrative Agent), accompanied by the
certificate described in the last sentence of this Section 2.05, the Borrower
agrees, subject to the provisions of Section 13.18 (to the extent applicable),
to pay to such Letter of Credit Issuer or such Participant such additional
amount or amounts as will compensate such Letter of Credit Issuer or such
Participant for such increased cost or reduction. Any Letter of Credit Issuer or
any Participant, upon determining that any additional amounts will be payable
pursuant to this Section 2.05, will give prompt written notice thereof to the
Borrower, which notice shall include a certificate submitted to the Borrower by
such Letter of Credit Issuer or such Participant, as the case may be (a copy of
which certificate shall be sent by such Letter of Credit Issuer or such
Participant to the Administrative Agent), setting forth in reasonable detail the
basis for the determination of such additional amount or amounts necessary to
compensate such Letter of Credit Issuer or such Participant as aforesaid and
such certificate, if delivered in good faith, shall be final and conclusive and
binding on the Borrower absent manifest error, although the failure to deliver
any such certificate shall not release or diminish the Borrower's obligations to
pay additional amounts pursuant to this Section 2.05 upon subsequent receipt of
such certificate.
2.06 Credit-Linked Deposit Account. (a) On the Initial Borrowing Date
and subject to the satisfaction of the conditions precedent set forth in
Sections 5 and 6, each PF Lender on such date shall pay to the Administrative
Agent such PF Lender's Credit-Linked Deposit. The Credit-Linked Deposits shall
be held by the Administrative Agent in (or credited to) the Credit-Linked
Deposit Account, and no Person other than the Administrative Agent shall have a
right of withdrawal from the Credit-Linked Deposit Account or any other right or
power with respect to the Credit-Linked Deposits. Notwithstanding anything
herein to the contrary, the funding obligation of each PF Lender in respect of
its Participation in PF Letters of Credit shall be satisfied in full upon the
funding of its Credit-Linked Deposit.
(b) Each of the Administrative Agent, each Letter of Credit Issuer
and each PF Lender hereby acknowledges and agrees that (i) each PF Lender is
funding its Credit-Linked Deposit to the Administrative Agent for application in
the manner contemplated by Section 2.03, (ii) the Administrative Agent may
invest the Credit-Linked Deposits in such investments as may be determined from
time to time by the Administrative Agent (in consultation with the Borrower) and
(iii) the Administrative Agent has agreed to pay to each PF Lender a return on
its Credit-Linked Deposits (except (x) during periods when such Credit-Linked
Deposits are used to reimburse a Letter of Credit Issuer with respect to
Drawings on PF Letters of Credit or (y) as otherwise provided in Sections
2.04(a)(ii) and 2.06(d)) equal at any time to the LIBOR Rate for the Interest
Period in effect for the Credit-Linked Deposits at such time less the
Credit-Linked Deposit Cost Amount at such time. Such interest will be paid to
the PF Lenders by the Administrative Agent at the LIBOR Rate for an Interest
Period of three months (or at an amount determined in accordance with Section
2.04(a)(ii) or 2.06(d), as applicable) in arrears on the last day of each
Interest Period applicable to the Credit-Linked Deposits.
(c) The Borrower shall have no right, title or interest in or to the
Credit-Linked Deposit Account or the Credit-Linked Deposits and no obligations
with respect thereto (except to refund portions thereof used to reimburse a
Letter of Credit Issuer with respect to
-24-
Drawings on PF Letters of Credit as provided in Section 2.03), it being
acknowledged and agreed by the parties hereto that the funding of the
Credit-Linked Deposits by the PF Lenders and the application of the
Credit-Linked Deposits in the manner contemplated by Section 2.03(c)(iii)
constitute agreements among the Administrative Agent, each Letter of Credit
Issuer and each PF Lender with respect to the Participation in the PF Letters of
Credit and do not constitute any loan or extension of credit to the Borrower
directly by the PF Lenders.
(d) If the Administrative Agent is not offering Dollar deposits (in
the applicable amounts) in the London interbank market, or the Administrative
Agent determines that adequate and fair means do not otherwise exist for
ascertaining the LIBOR Rate for the Credit-Linked Deposits (or any part
thereof), then the Credit-Linked Deposits (or such parts, as applicable) shall
be invested so as to earn a return equal to the greater of the Federal Funds
Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.
SECTION 3. Fees; Commitments.
3.01 Fees. (a) The Borrower shall pay to the Administrative Agent for
distribution to each Non-Defaulting Lender with a Revolving Loan Commitment, a
commitment fee (the "RL Commitment Fee") for the period from the Effective Date
to but not including the Revolving Loan Maturity Date (or such earlier date as
the Total Revolving Loan Commitment shall have been terminated), computed at a
rate for each day equal to 1/2 of 1% on the daily average Unutilized Revolving
Loan Commitment of such Non-Defaulting Lender. Accrued RL Commitment Fees shall
be due and payable quarterly in arrears on each Quarterly Payment Date and on
the Revolving Loan Maturity Date (or such earlier date upon which the Total
Revolving Loan Commitment is terminated).
(b) The Borrower shall pay to the Administrative Agent for
distribution to each Non-Defaulting Lender with a Term Loan Commitment, a
commitment fee (the "TL Commitment Fee") for the period from the Effective Date
to but not including the Term Loan Commitment Termination Date (or such earlier
date as the Total Term Loan Commitment shall have been terminated), computed at
a rate for each day equal to 1/2 of 1% on the daily average Term Loan Commitment
of such Non-Defaulting Lender. Accrued TL Commitment Fees shall be due and
payable quarterly in arrears on each Quarterly Payment Date and on the Term Loan
Commitment Termination Date (or such earlier date upon which the Total Term Loan
Commitment is terminated).
(c) The Borrower shall pay to the Administrative Agent for pro rata
distribution to each Non-Defaulting Lender with a Revolving Loan Commitment
(based on its respective Adjusted RL Percentage), a fee in respect of each WC
Letter of Credit (the "WC Letter of Credit Fee") computed at a rate per annum
equal to the Applicable Margin for Revolving Loans maintained as Eurodollar
Loans then in effect on the daily Stated Amount of such WC Letter of Credit.
Accrued WC Letter of Credit Fees shall be due and payable quarterly in arrears
on each Quarterly Payment Date and upon the first day on or after the
termination of the Total Revolving Loan Commitment upon which no WC Letters of
Credit remain outstanding.
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(d) The Borrower agrees to pay to the Administrative Agent for
distribution to each PF Lender (based on each such PF Lender's PF Percentage) a
fee (the "PF Facility Fee") equal to the sum of (I) a rate per annum equal to
the Applicable PF Margin on the Total PF Letter of Credit Commitment as in
effect from time to time (or, if terminated, on the aggregate amount of the
Credit-Linked Deposits from time to time) and (II) a rate per annum equal to the
Credit-Linked Deposit Cost Amount as in effect from time to time on the amount
of the Total PF Letter of Credit Commitment as in effect from time to time (or,
if terminated, on the aggregate amount of the Credit-Linked Deposits from time
to time), in each case for the period from and including the Effective Date to
and including the date on which the Total PF Letter of Credit Commitment has
been terminated, the Credit-Linked Deposits have been returned to the PF Lenders
and all PF Letters of Credit have been terminated. Accrued PF Facility Fees
shall be due and payable quarterly in arrears on each date on which interest is
paid by the Administrative Agent to the PF Lenders pursuant to Section 2.07(b)
or on each date on which interest is paid by the Borrower to the Administrative
Agent pursuant to Section 2.04(b)(ii), as the case may be, and (in either case)
on the date on which the Total PF Letter of Credit Commitment has been
terminated, the Credit-Linked Deposits have been returned to the PF Lenders and
all PF Letters of Credit have been terminated.
(e) The Borrower shall pay to each Letter of Credit Issuer a fee in
respect of each Letter of Credit issued by such Letter of Credit Issuer (the
"Facing Fee") computed at the rate of the Applicable Facing Fee Percentage on
the daily Stated Amount of such Letter of Credit. Accrued Facing Fees shall be
due and payable quarterly in arrears on each Quarterly Payment Date and (x) in
the case of WC Letters of Credit, upon the first day on or after the termination
of the Total Revolving Loan Commitment upon which no WC Letters of Credit remain
outstanding and (y) in the case of PF Letters of Credit, upon the first day on
or after the termination of the Total PF Letter of Credit Commitment upon which
no PF Letters of Credit remain outstanding. Notwithstanding anything to the
contrary contained in this Agreement, to the extent that the Borrower has paid
advance facing fees to any Letter of Credit Issuer with respect to any Existing
Letter of Credit under the letter of credit agreement governing the same, there
shall be credited against the Facing Fees due to such Letter of Credit Issuer
under this Agreement the amount of such advance facing fees which related to
periods after the Initial Borrowing Date.
(f) The Borrower shall pay directly to each Letter of Credit Issuer
upon each issuance of, payment under, and/or amendment of, a Letter of Credit
issued by such Letter of Credit Issuer such amount as shall at the time of such
issuance, payment or amendment be the administrative charge which such Letter of
Credit Issuer is generally charging for issuances of, payments under or
amendments of, letters of credit issued by it.
(g) The Borrower shall pay to each Agent, for its own account, such
other fees as may be agreed to in writing from time to time between the Borrower
and such Agent, when and as due.
(h) All computations of Fees shall be made in accordance with
Section 13.07(b).
-26-
3.02 Voluntary Termination or Reduction of Total Unutilized Revolving
Loan Commitment and Total Unutilized PF Letter of Credit Commitment. (a) Upon at
least three Business Days' prior notice to the Administrative Agent at its
Notice Office (which notice the Administrative Agent shall promptly transmit to
each of the Lenders), the Borrower shall have the right, without premium or
penalty, to terminate or partially reduce the Total Unutilized Revolving Loan
Commitment; provided that (i) any such termination or partial reduction shall
apply to proportionately and permanently reduce the Revolving Loan Commitment of
each Lender with such a Commitment, (ii) any partial reduction pursuant to this
Section 3.02(a) shall be in an amount equal to at least $5,000,000 and in
integral multiples of $1,000,000 thereafter and (iii) no reduction to the Total
Unutilized Revolving Loan Commitment shall be in an amount which would cause the
Revolving Loan Commitment of any RL Lender to be reduced (as required by the
preceding clause (i)) by an amount which exceeds the remainder of (A) the
Unutilized Revolving Loan Commitment of such RL Lender as in effect immediately
before giving effect to such reduction minus (B) such RL Lender's Adjusted RL
Percentage of the aggregate principal amount of Swingline Loans then
outstanding.
(b) Upon at least three Business Days' prior written notice to the
Administrative Agent of the Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the PF Lenders), the Borrower shall have the
right, at any time or from time to time, without premium or penalty, to
terminate the Total Unutilized PF Letter of Credit Commitment in whole, or
reduce it in part in an amount equal to at least $5,000,000 and in integral
multiples of $5,000,000 thereafter, provided (x) that each such reduction shall
apply proportionately to permanently reduce the PF Letter of Credit Commitment
of each PF Lender and (y) the Borrower shall be obligated to pay any amounts
owing pursuant to Section 1.11(b) in connection with any such partial reduction
to the Total PF Letter of Credit Commitment. At the time of any termination or
reduction of the Total PF Letter of Credit Commitment pursuant to this Section
3.02(b), the Administrative Agent shall return to the PF Lenders (ratably in
accordance with their respective PF Percentages) their Credit-Linked Deposits in
an amount by which the aggregate amount of the Credit-Linked Deposits at such
time exceeds the Total PF Letter of Credit Commitment as in effect immediately
after giving effect to such termination.
(c) In the event of certain refusals by a Lender to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Lenders as provided in
Section 13.12(b), the Borrower shall have the right, on or after the Term Loan
Commitment Termination Date, subject to obtaining the consents required by
Section 13.12(b), upon five Business Days' prior written notice to the
Administrative Agent at its Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the Lenders), to terminate all of the
Commitments of such Lender (other than any such Commitment which is being
maintained by such Lender (and not being terminated by the Borrower) as provided
in Section 13.12(b)), so long as all Loans (other than any such Loans that are
being maintained by such Lender (and not being repaid by the Borrower) as
provided in Section 13.12(b)) and PF Unpaid Drawings (to the extent that such
Lender's PF Letter of Credit Commitment is being terminated), together with
accrued and unpaid interest, Fees and all other amounts, owing to such Lender
(including all amounts, if any, owing pursuant to Section 1.11) are repaid
concurrently with the effectiveness of such termination pursuant to Section
4.01(vi) (at which time Schedule I shall be deemed modified to reflect such
changed amounts) and such Lender's RL Percentage or PF Percentage, as the case
may be, of all outstanding WC Letters of
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Credit and/or PF Letters of Credit are cash collateralized by the Borrower in a
manner satisfactory to the Administrative Agent and the respective Letter of
Credit Issuer, and at such time, unless the respective Lender continues to have
outstanding Term Loans hereunder, such Lender shall no longer constitute a
"Lender" for purposes of this Agreement, except with respect to indemnifications
under this Agreement (including, without limitation, Sections 1.10, 1.11, 2.05,
4.04, 12.06, 13.01 and 13.06), which shall survive as to such repaid Lender. At
the time of any termination of a PF Lender's PF Letter of Credit Commitment
pursuant to this Section 3.02(c), the Administrative Agent shall return to such
PF Lender its Credit-Linked Deposit.
(d) The Borrower shall not have the right to voluntarily terminate
or partially reduce the Total Term Loan Commitment (or the Term Loan Commitment
of any Lender).
3.03 Mandatory Reduction of Commitments. (a) The Total Commitment
(and the Term Loan Commitment and Revolving Loan Commitment of each Lender)
shall terminate in its entirety on December 23, 2003, unless the Initial
Borrowing Date has occurred on or before such date.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Term Loan Commitment (and the Term Loan
Commitment of each Lender) shall (i) be reduced on each date on which Term Loans
are incurred (after giving effect to the making of Term Loans on such date) in
an amount equal to the aggregate principal amount of Term Loans incurred on such
date, (ii) terminate in its entirety (to the extent not theretofore terminated)
on the Term Loan Commitment Termination Date (after giving effect to any
incurrence of Term Loans on such date) and (iii) prior to the termination of the
Total Term Loan Commitment as provided in clauses (i) and (ii) above, be reduced
from time to time to the extent required by Section 4.02.
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each RL Lender) shall terminate in its entirety on
the earlier to occur of (i) the Revolving Loan Maturity Date and (ii) unless the
Required Lenders shall otherwise consent in writing in their sole discretion, a
Change of Control Event.
(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total PF Letter of Credit Commitment (and the
PF Letter of Credit Commitment of each PF Lender) shall terminate in its
entirety upon the earlier to occur of (i) the Term Loan Maturity Date and (ii)
unless the Required Lenders otherwise agree in writing, the date on which a
Change of Control Event occurs. At the time of any termination of the Total PF
Letter of Credit Commitment pursuant to this Section 3.03(d), the Administrative
Agent shall return to the PF Lenders (ratably in accordance with their
respective PF Percentages) their Credit-Linked Deposits (to the extent not
theretofore applied pursuant to Section 2.03(c)(iii)) in an amount by which the
aggregate amount of the Credit-Linked Deposits at such time exceeds the
aggregate PF Letter of Credit Outstandings at such time.
(e) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment shall be
permanently reduced from time to time to the extent required by Section 4.02.
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(f) Each reduction to the Total Term Loan Commitment, Total
Revolving Loan Commitment or Total PF Letter of Credit Commitment pursuant to
this Section 3.03 (or pursuant to Section 4.02) shall be applied proportionately
to reduce the Term Loan Commitment, the Revolving Loan Commitment or the PF
Letter of Credit Commitment, as the case may be, of each Lender with such a
Commitment.
SECTION 4. Payments.
4.01 Voluntary Prepayments. The Borrower shall have the right to
prepay the Loans, and the right to allocate such prepayments to Term Loans,
Revolving Loans and/or Swingline Loans as the Borrower elects, in whole or in
part, without premium or penalty except as otherwise provided in this Agreement,
from time to time on the following terms and conditions:
(i) the Borrower shall give the Administrative Agent at its Notice
Office written notice (or telephonic notice promptly confirmed in writing)
of its intent to prepay the Loans, whether such Loans are Term Loans,
Revolving Loans or Swingline Loans, the amount of such prepayment, the
Types of Loans to be repaid and (in the case of Eurodollar Loans) the
specific Borrowing(s) pursuant to which made, which notice (I) shall be
given by the Borrower prior to 12:00 Noon (New York time) (x) at least one
Business Day prior to the date of such prepayment in the case of Term Loans
and Revolving Loans maintained as Base Rate Loans, (y) at least three
Business Days prior to the date of such prepayment in the case of
Eurodollar Loans and (z) on the date of such prepayment in the case of
Swingline Loans, (II) shall, in the case of prepayments of Term Loans,
specify the manner in which such prepayment shall be applied to reduce the
then remaining Scheduled Repayments and (III) shall, except in the case of
Swingline Loans, promptly be transmitted by the Administrative Agent to
each of the Lenders;
(ii) each prepayment (other than prepayments in full of (I) all
outstanding Base Rate Loans or (II) any outstanding Borrowing of Eurodollar
Loans) shall be in an aggregate principal amount of at least (x)
$1,000,000, in the case of Eurodollar Loans, (y) $500,000, in the case of
Revolving Loans and Term Loans maintained as Base Rate Loans and (z)
$100,000, in the case of Swingline Loans and, in each case, if greater, in
integral multiples of $100,000, provided, that no partial prepayment of
Eurodollar Loans made pursuant to a Borrowing shall reduce the aggregate
principal amount of the Eurodollar Loans outstanding pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto;
(iii) at the time of any prepayment of Eurodollar Loans pursuant to
this Section 4.01 on any date other than the last day of the Interest
Period applicable thereto, the Borrower shall pay the amounts required
pursuant to Section 1.11;
(iv) except as provided in clause (vi) below, each prepayment in
respect of any Loans made pursuant to a Borrowing shall be applied pro rata
among such Loans, provided, that at the Borrower's election in connection
with any prepayment of Revolving Loans pursuant to this Section 4.01, such
prepayment shall not be applied to any Revolving Loans of a Defaulting
Lender;
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(v) each prepayment of principal of Term Loans pursuant to this
Section 4.01 shall be applied to reduce the then remaining Scheduled
Repayments in such manner as the Borrower shall designate in the notice
delivered to the Administrative Agent pursuant to clause (i) of this
Section 4.01, provided that if the Borrower fails to make such a
designation, each such prepayment of Term Loans shall be applied to reduce
the then remaining Scheduled Repayments on a pro rata basis (based upon the
then remaining Scheduled Repayments after giving effect to all prior
reductions thereto); and
(vi) in the event of certain refusals by a Lender to consent to
certain proposed changes, waivers, discharges or terminations with respect
to this Agreement which have been approved by the Required Lenders as
provided in Section 13.12(b), the Borrower may, on or after the Term Loan
Commitment Termination Date, upon five Business Days' prior written notice
to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), repay
all Loans of such Lender (including all amounts, if any, owing pursuant to
Section 1.11), together with accrued and unpaid interest, Fees and all
other amounts then owing to such Lender (or owing to such Lender with
respect to each Tranche which gave rise to the need to obtain such Lender's
individual consent) in accordance with said Section 13.12(b), so long as
(A) in the case of the repayment of Revolving Loans of any Lender pursuant
to this clause (vi), (x) the Revolving Loan Commitment of such Lender is
terminated concurrently with such repayment (at which time Schedule I shall
be deemed modified to reflect the changed Revolving Loan Commitments) and
(y) such Lender's Adjusted RL Percentage of all outstanding WC Letters of
Credit is cash collateralized by the Borrower in a manner satisfactory to
the Administrative Agent and the Letter of Credit Issuers, (B) in the case
of the repayment of PF Unpaid Drawings for the account of any Lender
pursuant to this clause (vi), (x) the PF Letter of Credit Commitment of
such Lender is terminated concurrently with such repayment pursuant to
Section 3.02(c) (at which time Schedule I shall be deemed modified to
reflect the changed PF Letter of Credit Commitments) and (y) such Lender's
PF Percentage of all outstanding PF Letters of Credit is cash
collateralized by the Borrower in a manner satisfactory to the
Administrative Agent and the Letter of Credit Issuers and (C) the consents
required by Section 13.12(b) in connection with the repayment pursuant to
this clause (vi) shall have been obtained.
4.02 Mandatory Repayments and Commitment Reductions. (a) (i) If on
any date the sum of (x) the aggregate outstanding principal amount of Revolving
Loans made by Non-Defaulting Lenders and Swingline Loans (after giving effect to
all other repayments thereof on such date) and (y) the WC Letter of Credit
Outstandings on such date, exceeds the Adjusted Total Revolving Loan Commitment
as then in effect, the Borrower shall repay on such date the principal of
Swingline Loans, and if no Swingline Loans are or remain outstanding, the
principal of Revolving Loans of Non-Defaulting Lenders in an aggregate amount
equal to such excess. If, after giving effect to the prepayment of all
outstanding Swingline Loans and all outstanding Revolving Loans of
Non-Defaulting Lenders, the aggregate amount of WC Letter of Credit Outstandings
exceeds the Adjusted Total Revolving Loan Commitment as then in effect, the
Borrower shall pay to the Administrative Agent at the Payment Office on such
date an amount in cash and/or Cash Equivalents equal to such excess (up to the
aggregate amount of WC Letter of Credit Outstandings at such time) and the
Administrative Agent shall hold such payment as
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security for the obligations of the Borrower to Non-Defaulting Lenders hereunder
pursuant to a cash collateral agreement to be entered into in form and substance
reasonably satisfactory to the Administrative Agent.
(ii) On any date on which the aggregate outstanding principal amount
of the Revolving Loans made by any Defaulting Lender exceeds the Revolving Loan
Commitment of such Defaulting Lender, the Borrower shall prepay on such date
principal of Revolving Loans of such Defaulting Lender in an amount equal to
such excess.
(iii) On any day on which the aggregate amount of all PF Letter of
Credit Outstandings exceeds the Total PF Letter of Credit Commitment at such
time, the Borrower shall pay to the Administrative Agent at the Payment Office
on such day an amount of cash and/or Cash Equivalents equal to the amount of
such excess (up to a maximum amount equal to the PF Letter of Credit
Outstandings at such time), such cash and/or Cash Equivalents to be held as
security for all obligations of the Borrower to the Letter of Credit Issuers and
the Lenders hereunder in a cash collateral account to be established by, and
under the sole dominion and control of, the Administrative Agent.
(b) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Borrower shall be required to repay that principal amount of Term Loans, to the
extent then outstanding, as is set forth opposite such date (each such
repayment, as the same may be reduced as provided in Sections 4.01 and 4.02(h),
a "Scheduled Repayment"):
Scheduled Repayment Date Amount
------------------------ ---------------
December 31, 2003 [$ 350,000
March 31, 2004 $ 350,000
June 30, 2004 $ 350,000
September 30, 2004 $ 350,000
December 31, 2004 $ 350,000
March 31, 2005 $ 350,000
June 30, 2005 $ 350,000
September 30, 2005 $ 350,000
December 31, 2005 $ 350,000
March 31, 2006 $ 350,000
June 30, 2006 $ 350,000
September 30, 2006 $ 350,000
December 31, 2006 $ 350,000
March 31, 2007 $ 350,000
June 30, 2007 $ 350,000
September 30, 2007 $ 350,000
December 31, 2007 $ 350,000
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Scheduled Repayment Date Amount
------------------------ --------------
March 31, 2008 $ 350,000
June 30, 2008 $ 350,000
September 30, 2008 $ 350,000
December 31, 2008 $ 350,000
March 31, 2009 $ 350,000
June 30, 2009 $ 350,000
September 30, 2009 $ 350,000
Term Loan Maturity Date $ 131,600,000]
In the event that, on the Term Loan Commitment Termination Date, less than
$[140,000,000]/2/ in aggregate principal amount of Term Loans have been incurred
on or prior to such date, an amount equal to the remainder of $[140,000,000]
less the aggregate principal amount of the Term Loans incurred on or prior to
such date shall be applied to reduce the then remaining Scheduled Repayments on
a pro rata basis (based upon the then remaining principal amount of such
Scheduled Repayments after giving effect to all prior reductions thereto).
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Effective
Date upon which Holdings or any of its Subsidiaries receives Net Sale Proceeds
from any Asset Sale, an amount equal to 100% of the Net Sale Proceeds from such
Asset Sale shall be applied as a mandatory repayment and/or commitment reduction
in accordance with the requirements of Sections 4.02(h) and (i); provided that
(I) (x) with respect to any such Net Sale Proceeds received by Holdings or any
of its Subsidiaries after the Effective Date in connection with a Tractor
Trailer Replacement, such Net Sale Proceeds shall not give rise to a mandatory
repayment (and/or commitment reduction, as the case may be) on such date to the
extent that no Default or Event of Default then exists and Holdings delivers an
officer's certificate to the Administrative Agent on or prior to such date
stating that (i) an amount equal to such Net Sale Proceeds has been used to
purchase a replacement Tractor Trailer within 180 days prior to the date of
receipt of such Net Sale Proceeds or (ii) such Net Sale Proceeds shall be used
to purchase a replacement Tractor Trailer within 180 days following the date of
receipt of such Net Sale Proceeds (which certificate shall set forth the amount
of the proceeds so expended or the estimates of the proceeds to be so expended,
as the case may be) and (y) in the case of any Tractor Trailer Replacement for
which no replacement Tractor Trailer has been purchased prior to the disposition
of the Tractor Trailer to be replaced pursuant to such Tractor Trailer
Replacement, if all or any portion of such Net Sale Proceeds referred to in
preceding clause (x)(ii) are not so used within such 180-day period, such
remaining portion shall be applied on the last day of such period as a mandatory
repayment and/or commitment reduction as provided above (without regard to this
proviso) and (II) with respect to no more than $10,000,000 in the aggregate of
such Net Sale Proceeds received by Holdings or its Subsidiaries in any fiscal
year of Holdings, such Net Sale Proceeds shall not give rise to a mandatory
repayment (and/or commitment reduction, as the case may be) on such date to the
----------
/2/ To be finalized on the Initial Borrowing Date.
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extent that no Default or Event of Default then exists and Holdings delivers a
certificate to the Administrative Agent on or prior to such date stating that
such Net Sale Proceeds shall be used or contractually committed to be used to
purchase assets used or to be used in the businesses permitted pursuant to
Section 9.01 (including, without limitation (but only to the extent permitted by
Section 9.02), the purchase of the capital stock of a Person engaged in such
businesses) within 365 days following the date of receipt of such Net Sale
Proceeds from such Asset Sale (which certificate shall set forth the estimates
of the proceeds to be so expended); provided further, that (i) if all or any
portion of such Net Sale Proceeds referred to in clause (II) of the immediately
preceding proviso are not so used (or contractually committed to be used) within
such 365 day period, such remaining portion shall be applied on the last day of
such period as a mandatory repayment and/or commitment reduction as provided
above (without giving effect to the immediately preceding proviso) and (ii) if
all or any portion of such Net Sale Proceeds are not so used within such 365-day
period referred to in clause (i) of this proviso because such amount is
contractually committed to be used and subsequent to such date such contract is
terminated or expires without such portion being so used, such remaining portion
shall be applied on the date of such termination or expiration as a mandatory
repayment and/or commitment reduction as provided above (without giving effect
to the immediately preceding proviso). Notwithstanding the foregoing provisions
of this Section 4.02(c), so long as no Default or Event of Default shall have
occurred and be continuing, no mandatory repayments or commitment reductions
shall be required pursuant to the immediately preceding proviso appearing in
this Section 4.02(c) until the date on which the aggregate Net Sale Proceeds
from all Asset Sales not reinvested within the time periods specified by said
proviso equals or exceeds $2,000,000.
(d) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Effective
Date on which Holdings or any of its Subsidiaries receives any cash proceeds
from (i) any incurrence of Indebtedness (other than Indebtedness permitted to be
incurred pursuant to Section 9.04 as in effect on the Effective Date) by
Holdings or any of its Subsidiaries, (ii) any issuance of Preferred Stock by
Holdings or any of its Subsidiaries (other than (x) Disqualified Preferred Stock
to the extent the proceeds therefrom are used to effect Permitted Acquisitions
and (y) Qualified Preferred Stock) or (iii) any sale or issuance of capital
stock or other Equity Interests by, or cash capital contributions to, any
Subsidiary of Holdings (other than (x) issuances of common Equity Interests to
Holdings or any other Subsidiary of Holdings and (y) cash capital contributions
to any Subsidiary of Holdings by Holdings or any Subsidiary of Holdings), an
amount equal to 100% of the Net Cash Proceeds of the respective incurrence of
Indebtedness, issuance of Preferred Stock or Equity Interests or capital
contribution shall be applied as a mandatory repayment and/or commitment
reduction in accordance with the requirements of Sections 4.02(h) and (i).
Notwithstanding the foregoing provisions of this Section 4.02(d), so long as no
Default or Event of Default shall have occurred and be continuing, no mandatory
repayment or commitment reduction shall be required pursuant to this Section
4.02(d) until the date on which the sum of (x) the Net Cash Proceeds required to
be applied as mandatory repayments and/or commitment reductions in the absence
of this sentence plus (y) the Net Cash Proceeds required to be applied as
mandatory repayments and/or commitment reductions pursuant to Section 4.02(e) in
the absence of the last sentence of said Section, equals or exceeds $2,000,000.
(e) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Effective
Date on which Holdings or
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any of its Subsidiaries receives any cash proceeds from any sale or issuance of
Qualified Preferred Stock or common Equity Interests of (or cash capital
contributions to) Holdings (other than (u) the Holdings Equity Financing, (v)
issuances of Holdings Common Stock to management of Holdings and its
Subsidiaries (including as a result of the exercise of any options with respect
thereto) generating cash proceeds in an aggregate amount not to exceed
$5,000,000 in any fiscal year of Holdings, (w) issuances of Holdings Common
Stock as a result of the exercise of any warrants with respect thereto
generating cash proceeds in an aggregate amount not to exceed $2.0 million, (x)
any issuance of Holdings Common Stock or Qualified Preferred Stock, to the
extent the proceeds therefrom are used to effect Permitted Acquisitions, (y) so
long as no Default or Event of Default is then in existence, any issuance of
Holdings Common Stock or Qualified Preferred Stock, to the extent the proceeds
therefrom are used (I) to repurchase and/or redeem Existing 2006 Floating Rate
Senior Subordinated Notes in accordance with the requirements of subclause (t)
of the proviso appearing in Section 9.12(ii) and/or (II) to repay principal and
accrued but unpaid interest on Existing 2006 Floating Rate Senior Subordinated
Notes upon the final stated maturity thereof and (z) additional issuances of
Holdings Common Stock and Qualified Preferred Stock, to the extent that the
aggregate proceeds excluded pursuant to this clause (z) after the Effective Date
do not exceed $5,000,000 in the aggregate), an amount equal to the Applicable
Prepayment Percentage of the Net Cash Proceeds of the respective equity issuance
or capital contribution shall be applied as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Sections 4.02(h) and
(i); provided that Net Cash Proceeds received by Holdings from additional sales
or issuances of Holdings Common Stock or Qualified Preferred Stock shall not be
required to be applied as a mandatory repayment (and/or commitment reduction, as
the case may be) on the date of receipt thereof, to the extent that (x) no
Default or Event of Default then exists and (y) Holdings delivers a certificate
to the Administrative Agent on or prior to such date stating that such Net Cash
Proceeds shall be used or contractually committed to be used to make Capital
Expenditures and/or effect Permitted Acquisitions within 270 days following the
date of receipt of such Net Cash Proceeds (which certificate shall set forth the
estimates of the proceeds to be so expended), and provided further, that (i) if
all or any portion of such Net Cash Proceeds are not so used (or contractually
committed to be used) within such 270-day period, such remaining portion shall
be applied on the last day of such period as a mandatory repayment and/or
commitment reduction as provided above and (ii) if all or any portion of such
Net Cash Proceeds are not so used within such 270-day period referred to in
clause (i) above because such amount is contractually committed to be used and
subsequent to such date such contract is terminated or expires without such
portion being so used, such remaining portion shall be applied on the date of
such termination or expiration as a mandatory repayment and/or commitment
reduction as provided above. Notwithstanding the foregoing provisions of this
Section 4.02(e), so long as no Default or Event of Default shall have occurred
and be continuing, no mandatory repayment and/or commitment reduction shall be
required pursuant to this Section 4.02(e) until the date on which the sum of (x)
the Net Cash Proceeds required to be applied as mandatory repayments and/or
commitment reductions in the absence of this sentence plus (y) the Net Cash
Proceeds required to be applied as mandatory repayments and/or commitment
reductions pursuant to Section 4.02(d) in the absence of the last sentence in
said Section, equals or exceeds $2,000,000.
(f) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within 10 days following each date on
or after the Effective Date on which Holdings or any of its Subsidiaries
receives any cash proceeds from any Recovery
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Event (other than proceeds from any Excluded Recovery Event), an amount equal to
100% of the proceeds of such Recovery Event (net of reasonable costs (including,
without limitation, legal costs and expenses) and taxes incurred in connection
with such Recovery Event and the amount of such proceeds required to be used to
repay any Indebtedness (other than Indebtedness of the Lenders pursuant to this
Agreement) which is secured by the respective assets subject to such Recovery
Event) shall be applied as a mandatory repayment and/or commitment reduction in
accordance with the requirements of Sections 4.02(h) and (i), provided that (x)
so long as no Default or Event of Default then exists and such proceeds do not
exceed $5,000,000, such proceeds shall not be required to be so applied on such
date to the extent that an Authorized Officer of Holdings has delivered a
certificate to the Administrative Agent on or prior to such date stating that
such proceeds shall be used or shall be committed to be used to replace or
restore any properties or assets in respect of which such proceeds were paid
within 360 days following the date of such Recovery Event (which certificate
shall set forth the estimates of the proceeds to be so expended) and (y) so long
as no Default or Event of Default then exists and to the extent that (a) the
amount of such proceeds exceeds $5,000,000, (b) the amount of such proceeds,
together with other cash available to Holdings and its Subsidiaries and
permitted to be spent by them on Capital Expenditures during the relevant
period, equals at least 100% of the cost of replacement or restoration of the
properties or assets in respect of which such proceeds were paid as determined
by Holdings and as supported by such estimates or bids from contractors or
subcontractors or such other supporting information as the Administrative Agent
may reasonably accept, (c) an Authorized Officer of Holdings has delivered to
the Administrative Agent a certificate on or prior to the date the respective
mandatory repayment and/or commitment reduction would otherwise be required
pursuant to this Section 4.02(f) in the form described in clause (x) above and
also certifying its determination as required by preceding clause (b) and
certifying the sufficiency of business interruption insurance as required by
succeeding clause (d), and (d) an Authorized Officer of Holdings has delivered
to the Administrative Agent such evidence as the Administrative Agent may
reasonably request in form and substance reasonably satisfactory to the
Administrative Agent establishing that Holdings has sufficient business
interruption insurance and that Holdings will receive payment thereunder in such
amounts and at such times as are necessary to satisfy all obligations and
expenses of Holdings and its Subsidiaries (including, without limitation, all
debt service requirements, including pursuant to this Agreement), without any
delay or extension thereof, for the period from the date of the respective
casualty, condemnation or other event giving rise to the Recovery Event and
continuing through the completion of the replacement or restoration of the
respective properties or assets, then the entire amount of the proceeds of such
Recovery Event and not just the portion in excess of $5,000,000 shall be
deposited with the Administrative Agent pursuant to a cash collateral
arrangement reasonably satisfactory to the Administrative Agent whereby such
proceeds shall be disbursed to Holdings from time to time as needed to pay or
reimburse Holdings or such Subsidiary actual costs incurred by it in connection
with the replacement or restoration of the respective properties or assets
(pursuant to such certification requirements as may be established by the
Administrative Agent), provided further, that at any time while an Event of
Default has occurred and is continuing, the Required Lenders may direct the
Administrative Agent (in which case the Administrative Agent shall, and is
hereby authorized by each Credit Agreement Party to, follow said directions) to
apply any or all proceeds then on deposit in such collateral account to the
repayment of Obligations hereunder in the same manner as proceeds would be
applied pursuant to the Security Agreement, and provided further, that if
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all or any portion of such proceeds not required to be applied as a mandatory
repayment and/or commitment reduction pursuant to the second preceding proviso
(whether pursuant to clause (x) or (y) thereof) are either (A) not so used or
committed to be so used within 360 days after the date of the respective
Recovery Event or (B) if committed to be used within 360 days after the date of
receipt of such net proceeds and not so used within 18 months after the date of
respective Recovery Event then, in either such case, such remaining portion not
used or committed to be used (in the case of preceding clause (A)) and not used
(in the case of preceding clause (B)) shall be applied on the date occurring 360
days after the date of the respective Recovery Event (in the case of clause (A)
above) or the date occurring 18 months after the date of the respective Recovery
Event (in the case of clause (B) above) as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Sections 4.02(h) and
(i).
(g) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each Excess Cash Flow Payment Date,
an amount equal to the Applicable Excess Cash Flow Percentage of the Adjusted
Excess Cash Flow for the relevant Excess Cash Flow Payment Period shall be
applied as a mandatory repayment and/or commitment reduction in accordance with
the requirements of Sections 4.02(h) and (i).
(h) Each amount required to be applied pursuant to Sections 4.02(c),
(d), (e), (f) and (g) in accordance with this Section 4.02(h) shall be applied
(i) first, to repay the outstanding principal amount of Term Loans, (ii) second,
to the extent in excess of the amounts required to be applied pursuant to
preceding subclause (i), to reduce the Total Term Loan Commitment, and (iii)
third, to the extent in excess of the amounts required to be applied pursuant to
preceding subclauses (i) and (ii), to reduce the Total Revolving Loan Commitment
and the Total PF Letter of Credit Commitment on a pro rata basis (based on the
relative amounts of the Total Revolving Loan Commitment and the Total PF Letter
of Credit Commitment, in each case as in effect before giving effect to the
respective reduction). It is understood and agreed that (x) the amount of any
reduction to the Total Term Loan Commitment, the Total Revolving Loan Commitment
and/or Total PF Letter of Credit Commitment as provided in preceding subclauses
(ii) and (iii) shall be deemed to be an application of proceeds for purposes of
this Section 4.02(h) even though cash is not actually applied, (y) any cash
received by Holdings or such Subsidiary in connection with the event giving rise
to such reduction will be retained by such Person except, in the case of any
reduction to the Total Revolving Loan Commitment or the Total PF Letter of
Credit Commitment, to the extent that such cash is otherwise required to be
applied as provided in Section 4.02(a) as a result of such reduction to the
Total Revolving Loan Commitment or the Total PF Letter of Credit Commitment, as
the case may be, and (z) each such reduction to the Total Term Loan Commitment,
the Total Revolving Loan Commitment and the Total PF Letter of Credit Commitment
shall be made in accordance with Section 3.03(e)). All repayments or commitment
reductions, as the case may be, of outstanding Term Loans or Term Loan
Commitments, as the case may be, pursuant to Sections 4.02(c), (d), (e), (f) or
(g) shall be applied to reduce the then remaining Scheduled Repayments of Term
Loans on a pro rata basis (based upon the then remaining Scheduled Repayments
after giving effect to all prior reductions thereto). For purposes of greater
clarity, the parties hereto acknowledge and agree that any amount applied
pursuant to Section 4.02(c), (d), (e) or (f) as a mandatory repayment in
accordance with this Section 4.02(h) need not represent the actual proceeds
received by Holdings or any of its Subsidiaries in connection with the
respective Asset Sale, debt incurrence, equity issuance or Recovery Event, as
the case may be.
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(i) With respect to each repayment of Loans required by this Section
4.02, the Borrower may designate the Types of Loans of the respective Tranche
which are to be repaid and, in the case of Eurodollar Loans, the specific
Borrowing or Borrowings of the respective Tranche pursuant to which made,
provided that: (i) repayments of Eurodollar Loans pursuant to this Section 4.02
may only be made on the last day of an Interest Period applicable thereto unless
(x) all Eurodollar Loans of the respective Tranche with Interest Periods ending
on such date of required repayment and all Base Rate Loans of the respective
Tranche have been paid in full and/or (y) concurrently with such repayment, the
Borrower pays all breakage costs and other amounts owing to each Lender pursuant
to Section 1.11; (ii) if any repayment of Eurodollar Loans made pursuant to a
single Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, such Borrowing shall be converted at the end of the then current
Interest Period into a Borrowing of Base Rate Loans; and (iii) each repayment of
any Tranche of Loans made pursuant to a Borrowing shall be applied pro rata
among such Tranche of Loans. In the absence of a designation by the Borrower as
described in the preceding sentence, the Administrative Agent shall, subject to
the above, make such designation in its sole discretion with a view, but no
obligation, to minimize breakage costs owing under Section 1.11. Notwithstanding
the foregoing provisions of this Section 4.02, if at any time the mandatory
repayment of Loans pursuant to this Section 4.02 would result, after giving
effect to the procedures set forth in this clause (i) above, in the Borrower
incurring breakage costs under Section 1.11 as a result of Eurodollar Loans
being repaid other than on the last day of an Interest Period applicable thereto
(any such Eurodollar Loans, "Affected Loans"), the Borrower may elect, by
written notice to the Administrative Agent, to have the provisions of the
following sentence be applicable. At the time any Affected Loans are otherwise
required to be prepaid, the Borrower may elect to deposit 100% (or such lesser
percentage elected by the Borrower as not being repaid) of the principal amounts
that otherwise would have been paid in respect of the Affected Loans with the
Administrative Agent to be held as security for the obligations of the Borrower
hereunder pursuant to a cash collateral agreement to be entered into in form and
substance satisfactory to the Administrative Agent, with such cash collateral to
be released from such cash collateral account (and applied to repay the
principal amount of such Eurodollar Loans) upon each occurrence thereafter of
the last day of an Interest Period applicable to Eurodollar Loans (or such
earlier date or dates as shall be requested by the Borrower), with the amount to
be so released and applied on the last day of each Interest Period to be the
amount of such Eurodollar Loans to which such Interest Period applies (or, if
less, the amount remaining in such cash collateral account).
(j) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, (i) all then outstanding Swingline Loans shall be repaid in full
on the Swingline Expiry Date, (ii) all other then outstanding Loans shall be
repaid in full on the respective Maturity Date for such Loans, (iii) all then
outstanding PF Unpaid Drawings which the Borrower had theretofore elected to
keep outstanding as provided in Section 2.04(b) shall be repaid in full on the
Term Loan Maturity Date and (iv) unless the Required Lenders shall otherwise
agree in writing in their sole discretion, all outstanding Loans shall be repaid
in full upon the occurrence of a Change of Control Event.
4.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or any Note shall be made to
the Administrative
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Agent for the ratable account of the Lender or Lenders entitled thereto not
later than 12:00 Noon (New York time) on the date when due and shall be made in
U.S. Dollars in immediately available funds at the Payment Office. Any payments
under this Agreement or under any Note which are made later than 12:00 Noon (New
York time) on any Business Day shall be deemed to have been made on the next
succeeding Business Day. Whenever any payment to be made hereunder or under any
Note shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest shall be payable during such
extension at the applicable rate in effect immediately prior to such extension.
4.04 Net Payments. (a) All payments made by any Credit Agreement
Party hereunder (including, in the case of Holdings, in its capacity as
Guarantor pursuant to Section 14) or under any Note will be made without setoff,
counterclaim or other defense. Except as provided in Section 4.04(b), all such
payments will be made free and clear of, and without deduction or withholding
for, any present or future taxes, levies, imposts, duties, fees, assessments or
other charges of whatever nature now or hereafter imposed with respect to such
payments by any jurisdiction or by any political subdivision or taxing authority
thereof or therein with respect to such payments (but excluding, in the case of
each Lender, except as provided in the second succeeding sentence, any tax,
including any income, branch profits, franchise or similar tax, which in each
case is imposed on or measured by the net income, net profits or capital of such
Lender pursuant to the laws of the jurisdiction in which such Lender is
organized or the jurisdiction in which the principal office or applicable
lending office of such Lender is located or any political subdivision or taxing
authority thereof or therein) and all interest, penalties or similar liabilities
with respect to such nonexcluded taxes, levies, imposts, duties, fees,
assessments or other charges (all such nonexcluded taxes, levies, imposts,
duties, fees, assessments or other charges being referred to collectively as
"Taxes"). If any Taxes are so levied or imposed, the relevant Credit Agreement
Party agrees to pay the full amount of such Taxes, and such additional amounts
as may be necessary so that every payment of all amounts due by such Credit
Agreement Party under this Agreement or under any Note, after withholding or
deduction for or on account of any Taxes, will not be less than the amount
provided for herein or in such Note. If any amounts are payable in respect of
Taxes pursuant to the preceding sentence (any such amounts, the "Gross-Up
Amount"), the relevant Credit Agreement Party agrees to reimburse each Lender,
upon the written request of such Lender, for the net amount, if any, of any
taxes such Lender shall determine are incurred by such Lender (taking into
account in calculating such net amount any allowable credit, deduction or other
benefit available as a result of, or with respect to, the payment by the
relevant Credit Agreement Party to such Lender of (i) the Gross-Up Amount or
(ii) any amount paid pursuant to this sentence) that would not have been
incurred in the absence of the payment by such Credit Agreement Party of (i) the
Gross-Up Amount or (ii) any amount paid pursuant to this sentence. The relevant
Credit Agreement Party will furnish to the Administrative Agent promptly after
the date the payment of any Taxes is due pursuant to applicable law certified
copies of tax receipts evidencing such payment by such Credit Agreement Party.
Each Credit Agreement Party agrees to indemnify and hold harmless each Lender,
and reimburse such Lender upon its written request, for the amount of any Taxes
so levied or imposed and paid by such Lender in respect of any payments by or on
behalf of such Credit Agreement Party.
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(b) Each Lender party to this Agreement on the Effective Date hereby
represents that, as of the Effective Date, all payments of principal, interest,
and fees to be made to it by the Borrower pursuant to this Agreement will be
totally exempt from withholding of United States federal tax. Each Lender that
is not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) for U.S. Federal income tax purposes agrees to deliver to the Borrower
and the Administrative Agent on or prior to the Effective Date, or in the case
of a Lender that is an assignee or transferee of an interest under this
Agreement pursuant to Section 1.13 or 13.04, on the date of such assignment or
transfer to such Lender, (i) two accurate and complete original signed copies of
Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete
exemption under an income tax treaty) (or successor forms) certifying to such
Lender's entitlement to a complete exemption from United States withholding tax
with respect to payments to be made under this Agreement and under any Note, or
(ii) if the Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of
the Code and cannot deliver either Internal Revenue Service Form W-8ECI or Form
W-8BEN (with respect to a complete exemption under an income tax treaty)
pursuant to clause (i) above, (x) a certificate substantially in the form of
Exhibit D (any such certificate, a "Section 4.04(b)(ii) Certificate") and (y)
two accurate and complete original signed copies of Internal Revenue Service
Form W-8BEN (with respect to the portfolio interest exemption) (or successor
form) certifying to such Lender's entitlement to a complete exemption from
United States withholding tax with respect to payments of interest to be made
under this Agreement and under any Note. In addition, each Lender agrees that
(a) from time to time after the Effective Date, when a lapse in time or change
in circumstances or applicable law renders the previous certification obsolete
or inaccurate in any material respect, and (b) upon the Borrower's reasonable
request after the occurrence of any change in applicable law or any other event
requiring the delivery of a Form W-8ECI, Form W-8BEN or any successor form in
addition to or in replacement of the forms previously delivered, it will deliver
to the Borrower and the Administrative Agent two new accurate and complete
original signed copies of Internal Revenue Service Form W-8ECI, Form W-8BEN
(with respect to the benefits of any income tax treaty), Form W-8BEN (with
respect to the portfolio interest exemption) and a Section 4.04(b)(ii)
Certificate, or any successor form, as the case may be, and such other forms as
may be required in order to confirm or establish the entitlement of such Lender
to a continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify the Borrower and the Administrative Agent of its inability to deliver any
such form or certificate in which case such Lender shall not be required to
deliver any such form or certificate pursuant to this Section 4.04(b).
Notwithstanding anything to the contrary contained in Section 4.04(a), but
subject to the immediately succeeding sentence, (x) the Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
income or similar taxes imposed by the United States (or any political
subdivision or taxing authority thereof or therein) from interest, fees or other
amounts payable hereunder for the account of any Lender which is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) for
federal income tax purposes to the extent that such Lender has not provided to
the Borrower U.S. Internal Revenue Service forms that establish a complete
exemption from, or reduction in the amount of, such deduction or withholding
(unless the Lender shall no longer be eligible to deliver such form or
statement) and (y) the Borrower shall not be obligated pursuant to Section
4.04(a) hereof to gross-up payments to be made to such Lender, or to indemnify
and hold harmless or reimburse such Lender, in respect of income or similar
taxes imposed by the United States if (I) such
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Lender has not provided to the Borrower the Internal Revenue Service forms
required to be provided to the Borrower pursuant to this Section 4.04(b) or (II)
in the case of a payment, other than interest, to a Lender described in clause
(ii) above, to the extent that such forms do not establish a complete exemption
from withholding of such taxes. Notwithstanding anything to the contrary
contained in the preceding sentence or elsewhere in this Section 4.04 and except
as set forth in Section 13.04(b), the Borrower agrees to pay additional amounts
and to indemnify each Lender in the manner set forth in Section 4.04(a) (without
regard to the identity of the jurisdiction requiring the deduction or
withholding) in respect of any Taxes deducted or withheld by it as described in
the immediately preceding sentence as a result of any changes after the
Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of such Taxes; provided, however, the Borrower shall not be
required to pay any additional amounts pursuant to this sentence to the extent
such deduction or withholding is imposed as a result of the failure of the
Lender to furnish the Borrower U.S. Internal Revenue Service Forms that
establish a complete exemption from or reduction in the amount of such deduction
or withholding (unless such Lender shall not be eligible to deliver such form or
statement). The Borrower shall not be required to pay any additional amounts or
indemnification under Section 4.04(a) to any Lender to the extent that the
obligation to pay such additional amounts or indemnification would not have
arisen but for the representation set forth in the first sentence of Section
4.04(b) above made by the Lender not being true.
(c) If the Borrower pays any additional amount under this Section
4.04 with respect to taxes imposed on any payments made to or on behalf of a
Lender and such Lender determines in its sole discretion, but acting in good
faith, that it has actually received or realized in connection therewith any
refund of tax, or any reduction of, or credit against, its tax liabilities (a
"Tax Benefit"), such Lender shall pay to the Borrower an amount that the Lender
shall, in its sole discretion, but acting in good faith, determine is equal to
the net benefit, after tax, which was obtained by the Lender as a consequence of
such refund, reduction or credit; provided, however, that (i) any Lender may
determine, in its sole discretion consistent with the policies of such Lender,
whether to seek a Tax Benefit and (ii) nothing in this Section 4.04(c) shall
require the Lender to disclose any confidential information to the Borrower
(including, without limitation, its tax returns).
(d) Each Lender shall use reasonable efforts (consistent with legal
and regulatory restrictions and subject to overall policy considerations of such
Lender) (i) to file any certificate or document or to furnish any information as
reasonably requested by the Borrower pursuant to any applicable treaty, law or
regulation or (ii) to designate a different applicable lending office of such
Lender, if the making of such filing or the furnishing of such information or
the designation of such other lending office would avoid the need for or reduce
the amount of any additional amounts payable by the Borrower and would not, in
the sole discretion of such Lender, be disadvantageous to such Lender.
(e) The provisions of this Section 4.04 are subject to the
provisions of Section 13.18 (to the extent applicable).
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SECTION 5. Conditions Precedent to Initial Credit Events/3/. The
obligation of each Lender to make each Loan hereunder, the obligation of each PF
Lender to fund its Credit-Linked Deposit and the obligation of the Letter of
Credit Issuer to issue each Letter of Credit hereunder, in each case on the
Initial Borrowing Date, is subject at the time of the making of such Loan, the
funding of such Credit-Linked Deposit or the issuance of such Letter of Credit,
as the case may be, to the satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the Initial
Borrowing Date, (i) the Effective Date shall have occurred and (ii) there shall
have been delivered to the Administrative Agent for the account of each Lender
requesting same the appropriate Term Note and/or Revolving Note and to CSFB, if
so requested, the Swingline Note, in each case executed by the Borrower and in
the amount, maturity and as otherwise provided herein.
5.02 Officer's Certificate. On the Initial Borrowing Date, the
Administrative Agent shall have received a certificate dated such date signed by
an appropriate officer of Holdings stating that all of the applicable conditions
set forth in Sections 5.05 through 5.09, inclusive, and 6A.01 (other than such
conditions that are expressly subject to the satisfaction of the Agents and/or
the Required Lenders), have been satisfied on such date.
5.03 Opinions of Counsel. On the Initial Borrowing Date, the
Administrative Agent shall have received opinions, addressed to each Agent, the
Collateral Agent and each of the Lenders and dated the Initial Borrowing Date,
from (i) O'Melveny & Xxxxx LLP, special New York counsel to the Credit Parties,
which opinion shall cover the matters contained in Exhibit E-1 and such other
matters incident to the transactions contemplated herein as the Agents and the
Required Lenders may reasonably request and be in form and substance reasonably
satisfactory to the Agents and the Required Lenders, (ii) Xxxxxx X. Xxxxx,
special Florida and Illinois counsel to the Credit Parties, which opinion shall
cover the matters contained in Exhibit E-2 and such other matters incident to
the transactions contemplated herein as the Agents and the Required Lenders may
reasonably request and be in form and substance reasonably satisfactory to the
Agents and the Required Lenders and (iii) local counsel to the Credit Parties
and/or the Agents reasonably satisfactory to the Agents, which opinions (x)
shall be addressed to each Agent, the Collateral Agent and each of the Lenders,
(y) shall cover the perfection of the security interests granted pursuant to the
Security Documents and such other matters incident to the transactions
contemplated herein as the Agents may reasonably request and (z) shall be in
form and substance reasonably satisfactory to the Agents.
5.04 Company Documents; Proceedings. (a) On the Initial Borrowing
Date, the Administrative Agent shall have received from Holdings and each other
Credit Party a certificate, dated the Initial Borrowing Date, signed by the
chairman, a vice-chairman, the president or any vice-president of such Credit
Party, and attested to by the secretary or any assistant secretary of such
Credit Party, in the form of Exhibit F with appropriate insertions, together
with copies of the certificate of incorporation, by-laws or equivalent
organizational
----------
/3/ CSFB to provide internally approved form language for condition in respect
of "know your customer" and Anti-Money Laundering rules and regulations.
-41-
documents of such Credit Party and the resolutions of such Credit Party referred
to in such certificate and all of the foregoing (including each such certificate
of incorporation, by-laws or other organizational document) shall be reasonably
satisfactory to the Agents.
(b) On the Initial Borrowing Date, all Company and legal proceedings
and all instruments and agreements in connection with the transactions
contemplated by this Agreement and the other Documents shall be reasonably
satisfactory in form and substance to the Agents, and the Administrative Agent
shall have received all information and copies of all certificates, documents
and papers, including good standing certificates, bring-down certificates and
any other records of Company proceedings and governmental approvals, if any,
which any Agent reasonably may have requested in connection therewith, such
documents and papers, where appropriate, to be certified by proper Company or
governmental authorities.
5.05 Adverse Change, etc. On the Initial Borrowing Date, since
December 31, 2002, nothing shall have occurred (and neither the Required Lenders
nor any Agent shall have become aware of any facts or conditions not previously
known) which the Required Lenders or any Agent shall reasonably determine has
had, or could reasonably be expected to have, a Material Adverse Effect.
5.06 Litigation. On the Initial Borrowing Date, there shall be no
actions, suits, proceedings or investigations pending or threatened (a) with
respect to this Agreement or any other Document or the Transaction, (b) with
respect to any Existing Indebtedness, (c) which has had, or could reasonably be
expected to have, a Material Adverse Effect or (d) which any Agent or the
Required Lenders shall determine, has had, or could reasonably be expected to
have, a Material Adverse Effect.
5.07 Approvals. On the Initial Borrowing Date, (i) all necessary
governmental (domestic and foreign), regulatory and material third party
approvals in connection with any Existing Indebtedness, the Transaction, the
other transactions contemplated by the Documents and otherwise referred to
herein or therein shall have been obtained and remain in full force and effect
and evidence thereof shall have been provided to the Administrative Agent, and
(ii) all applicable waiting periods shall have expired without any action being
taken by any competent authority which restrains, prevents or imposes materially
adverse conditions upon the consummation of the Transaction, the making of the
Loans and the transactions contemplated by the Documents or otherwise referred
to herein or therein. Additionally, there shall not exist any judgment, order,
injunction or other restraint issued or filed or a hearing seeking injunctive
relief or other restraint pending or notified prohibiting or imposing materially
adverse conditions upon, or materially delaying, or making economically
unfeasible, the consummation of the Transaction or the making of the Loans.
5.08 Financing Transactions etc. (a) On or prior to the Initial
Borrowing Date, (i) Holdings shall have received cash proceeds of at least
$[105,000,000] (calculated before underwriting discounts and commissions)
pursuant to an underwritten public sale of shares of Holdings Common Stock
pursuant to a registration statement declared effective by the SEC (the
"Holdings Equity Financing"), (ii) the Borrower shall have received cash
proceeds of $[125,000,000] (calculated before underwriting discounts and
commissions) from the issuance by it of a like principal amount of New Senior
Subordinated Notes, (iii) Holdings shall have
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contributed the full amount of the net cash proceeds of the Holdings Equity
Financing as a common equity contribution to the Borrower (the "Holdings Equity
Contribution") and (iv) Holdings shall have utilized (and caused its
Subsidiaries to utilize) the full amount of the cash proceeds received by them
as provided in preceding clauses (i) through (iii) to make payments owing in
connection with the Transaction prior to the utilization by the Borrower of any
proceeds of Loans for such purpose.
(b) On or prior to the Initial Borrowing Date, 510,000 shares of
Holdings' 13.75% cumulative accreting preferred stock with an aggregate
liquidation preference of $[69,400,000] shall have been converted (the
"Preferred Stock Conversion") into 7,654,229 shares of Holdings Common Stock.
(c) On the Initial Borrowing Date, each of the Holdings Equity
Financing, the Holdings Equity Contribution, the issuance of the New Senior
Subordinated Notes and the Preferred Stock Conversion shall have been
consummated in accordance with the terms and conditions of the applicable
Documents therefor and all applicable law. On the Initial Borrowing Date, (x)
the Administrative Agent shall have received true and correct copies of all
Holdings Equity Financing Documents, all New Senior Subordinated Notes Documents
and all Preferred Stock Conversion Documents, certified as such by an
appropriate officer of Holdings, (y) all such Documents and all terms and
conditions thereof (including, without limitation, in the case of the New Senior
Subordinated Notes Documents, amortization, maturities, interest rates,
covenants, defaults, remedies, guaranties, guarantors and subordination
provisions) shall be in form and substance reasonably satisfactory to each Agent
and the Required Lenders and (z) all such Documents shall be in full force and
effect. All conditions precedent to the consummation of the Holdings Equity
Financing, the issuance of the New Senior Subordinated Notes and the Preferred
Stock Conversion, each as set forth in the relevant Documents therefor shall
have been satisfied, and not waived unless consented to by each Agent and the
Required Lenders, to the reasonable satisfaction of each Agent and the Required
Lenders.
(d) The Administrative Agent shall have received evidence, in form,
scope and substance reasonably satisfactory to it, that the matters set forth in
this Section 5.08 have been satisfied as of the Initial Borrowing Date.
5.09 Refinancing. (a) On the Initial Borrowing Date and concurrently
with the incurrence of Loans and the use of such Loans to finance the Bank
Refinancing on such date, all Indebtedness of Holdings and its Subsidiaries
under the Existing Credit Agreement shall have been repaid in full, together
with all fees and other amounts owing thereon, all commitments under the
Existing Credit Agreement shall have been terminated and all letters of credit
issued pursuant to the Existing Credit Agreement shall have been terminated,
incorporated hereunder as Letters of Credit as contemplated by Section 2.01(e)
or supported by a back-stop Letter of Credit issued hereunder.
(b) On the Initial Borrowing Date and concurrently with the
incurrence of Loans on such date, all security interests in respect of, and
Liens securing, the Indebtedness under the Existing Credit Agreement and the
Existing Senior Subordinated Secured Notes Documents shall have been terminated
and released, and the Administrative Agent shall have received all such releases
as may have been requested by the Administrative Agent, which
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releases shall be in form and substance satisfactory to the Administrative
Agent. Without limiting the foregoing, there shall have been delivered to the
Administrative Agent (x) proper termination statements, financing change
statements and applications for registration (Form UCC-3, Form PPSA-2C or the
appropriate equivalent) for filing under the UCC, PPSA or equivalent statute or
regulation of each jurisdiction where a financing statement or application for
registration (Form UCC-1, PPSA Form 1-C or the appropriate equivalent) was filed
with respect to Holdings or any of its Subsidiaries in connection with the
security interests created with respect to the Existing Credit Agreement, the
Existing Senior Subordinated Secured Notes Documents and the documentation
related thereto, (y) terminations or reassignments of any security interest in,
or Lien on, any patents, trademarks, copyrights, or similar interests of
Holdings or any of its Subsidiaries on which filings have been made and (z)
terminations of all mortgages, leasehold mortgages, hypothecs and deeds of trust
created with respect to property of Holdings or any of its Subsidiaries, in each
case, to secure the obligations under the Existing Credit Agreement and the
Existing Senior Subordinated Secured Notes Documents, all of which shall be in
form and substance reasonably satisfactory to the Administrative Agent.
(c) On the Initial Borrowing Date and after giving effect to the
consummation of each component of the Transaction to be consummated on the
Initial Borrowing Date, Holdings and its Subsidiaries shall have no Indebtedness
or Preferred Stock outstanding other than (i) the Loans, (ii) the CLC Preferred
Stock, (iii) the New Senior Subordinated Notes, (iv) the Existing Senior Notes
To Be Refinanced, (v) Existing 2006 Floating Rate Senior Subordinated Notes in
an aggregate principal amount not to exceed $7,500,000 and (vi) certain other
indebtedness existing on the Initial Borrowing Date as listed on Schedule IV in
an aggregate outstanding principal amount not to exceed $[______]/4/ (with the
Indebtedness described in this sub-clause (vi) being herein called the
"Scheduled Existing Indebtedness" and, together with the Existing Senior Notes
To Be Refinanced and the Existing 2006 Floating Rate Senior Subordinated Notes,
the "Existing Indebtedness"). On and as of the Initial Borrowing Date, all of
the Existing Indebtedness and CLC Preferred Stock shall remain outstanding after
giving effect to the Transaction and the other transactions contemplated hereby
(other than the Existing Senior Notes Refinancing) without any default or event
of default existing thereunder or arising as a result of the Transaction and the
other transactions contemplated hereby (other than the Existing Senior Notes
Refinancing) (except to the extent amended or waived by the parties thereto on
terms and conditions satisfactory to the Agents and the Required Lenders), and
there shall not be any amendments or modifications to the Existing Senior Notes
Documents or any other Existing Indebtedness Agreements other than as requested
or approved by the Agents and the Required Lenders.
(d) On the Initial Borrowing Date, (i) the Borrower shall have
delivered a notice to the trustee under the Existing Senior Subordinated Secured
Notes Indenture, requesting that such trustee mail (or cause to be mailed) the
Borrower Irrevocable Notice of Redemption pursuant to, and in accordance with
the requirements of, the Existing Senior Subordinated Secured Notes Documents
and specifying a redemption date for the Existing Senior Subordinated Secured
Notes consistent with the requirements of the definition of "Redemption
----------
/4/ Borrower to advise.
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Date" and (ii) Holdings shall have delivered a notice to the trustee under each
of the Existing 2006 10% Senior Subordinated Notes Indenture and the Existing
Junior PIK Notes Indenture requesting that the respective trustee mail (or cause
to be mailed) the relevant Holdings Irrevocable Notice of Redemption pursuant
to, and in accordance with the requirements of, the Existing 2006 10% Senior
Subordinated Notes Documents or the Existing Junior PIK Notes Documents, as the
case may be, and specifying a redemption date for the Existing 2006 10% Senior
Subordinated Notes and the Existing Junior PIK Notes consistent with the
requirements of the definition of "Redemption Date".
(e) The Administrative Agent shall have received evidence in form,
scope and substance reasonably satisfactory to the Agents and the Required
Lenders that the matters set forth in this Section 5.09 have been satisfied on
the Initial Borrowing Date.
5.10 Security Documents; etc. (a) On the Initial Borrowing Date, each
of the Credit Parties shall have duly authorized, executed and delivered a
pledge agreement in the form of Exhibit G-1 (as amended, restated, modified
and/or supplemented from time to time in accordance with the terms thereof and
hereof, the "U.S. Pledge Agreement") and shall have delivered to the Collateral
Agent, as pledgee thereunder, all of the certificated Pledge Agreement
Collateral referred to therein then owned by such Credit Parties and required to
be pledged pursuant to the terms thereof, endorsed in blank in the case of
promissory notes or accompanied by executed and undated transfer powers in the
case of certificated Equity Interests, along with evidence that all other
actions necessary or, in the reasonable opinion of the Collateral Agent,
desirable, to perfect the security interests purported to be created by the U.S.
Pledge Agreement have been taken, and the U.S. Pledge Agreement shall be in full
force and effect.
(b) On the Initial Borrowing Date (but subject to Section 13.19),
the Borrower shall have duly authorized, executed and delivered a pledge
agreement in the form of Exhibit G-2 (as amended, amended and restated, modified
or supplemented from time to time in accordance with the terms thereof and
hereof, the "Quebec Pledge Agreement") and shall have delivered to the
Collateral Agent, as pledgee thereunder, all of the certificated pledged
securities referred to therein then owned by the Borrower and required to be
pledged pursuant to the terms thereof, endorsed in blank in the case of
promissory notes or accompanied by executed and undated transfer powers in the
case of certificated Equity Interests, along with evidence that all other
actions necessary or, in the reasonable opinion of the Collateral Agent,
desirable, to render enforceable as against third parties the security interests
purported to be created by the Quebec Pledge Agreement have been taken, and the
Quebec Pledge Agreement shall be in full force and effect.
(c) On the Initial Borrowing Date (but subject to Section 13.19),
the Borrower shall have duly authorized, executed and delivered a pledge
agreement in the form of Exhibit G-3 (as amended, amended and restated, modified
or supplemented from time to time in accordance with the terms thereof and
hereof, the "Mexican Pledge Agreement", and together with the U.S. Pledge
Agreement and the Quebec Pledge Agreement, the "Pledge Agreements"), and shall
have delivered to the Collateral Agent, as pledgee thereunder, all of the
certificated pledged securities referred to therein then owned by the Borrower
and required to be pledged pursuant to the terms thereof, endorsed in blank in
the case of promissory notes or accompanied by executed and undated transfer
powers in the case of certificated Equity Interests, along with evidence that
all
-45-
other actions necessary or, in the reasonable opinion of the Collateral Agent,
desirable, to perfect and/or render enforceable as against third parties the
security interests purported to be created by the Mexican Pledge Agreement have
been taken, and the Mexican Pledge Agreement shall be in full force and effect.
(d) On the Initial Borrowing Date, each of the Credit Parties shall
have duly authorized, executed and delivered a Security Agreement in the form of
Exhibit H (as amended, restated, modified and/or supplemented from time to time
in accordance with the terms thereof and hereof, the "Security Agreement")
covering all of the Security Agreement Collateral, together with:
(i) executed copies of financing statements (Form UCC-1 and PPSA
Form 1-C) or appropriate local equivalent in appropriate form for filing
under the UCC, the PPSA or appropriate local equivalent of each
jurisdiction as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests purported to
be created by the Security Agreement;
(ii) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, each of a recent date listing all effective
financing statements that name Holdings or any of its Subsidiaries as
debtor and that are filed in (I) the jurisdictions referred to in clause
(i) above and (II) the jurisdictions where financing statements would have
been filed with respect to Holdings and its Subsidiaries as debtors
pursuant to the UCC as in effect prior to July 1, 2001, in each case
together with copies of such financing statements (none of which shall
cover the Collateral except (x) those with respect to which appropriate
termination statements executed by the secured lender thereunder have been
delivered to the Administrative Agent and (y) to the extent evidencing
Permitted Liens);
(iii) evidence of the completion of all other recordings and filings
of, or with respect to, the Security Agreement as may be necessary or, in
the reasonable opinion of the Collateral Agent, desirable, to perfect the
security interests purported to be created by the Security Agreement; and
(iv) evidence that all other actions necessary or, in the reasonable
opinion of the Collateral Agent, desirable, to perfect the security
interests purported to be created by the Security Agreement have been
taken;
and the Security Agreement shall be in full force and effect.
(e) On the Initial Borrowing Date (but subject to Section 13.19),
the Collateral Agent shall have received:/5/
----------
/5/ Matters relating to Mortgages will not be required to be completed until 45
days following the Initial Borrowing Date.
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(i) fully executed counterparts of Mortgages in form and substance
satisfactory to the Collateral Agent, which Mortgages shall cover such of
the Real Property owned by Holdings or any of its Domestic Subsidiaries as
are designated on Schedule III as a Mortgaged Property, together with
evidence that counterparts of the Mortgages have been delivered to the
title insurance company insuring the lien of such Mortgage for recording in
all places to the extent necessary effectively create a valid and
enforceable first priority mortgage lien or immovable hypothec on each
Mortgaged Property in favor of the Collateral Agent (or such other trustee
as may be required or desired under local law) for the benefit of the
Secured Creditors;
(ii) Mortgage Policies on each Mortgaged Property issued by such
title insurers reasonably satisfactory to the Collateral Agent in amounts
reasonably satisfactory to the Administrative Agent and the Required
Lenders assuring the Collateral Agent that the Mortgages on such Mortgaged
Properties are valid and enforceable first priority mortgage liens on the
respective Mortgaged Properties, free and clear of all defects and
encumbrances except Permitted Encumbrances and such Mortgage Policies shall
otherwise be in form and substance reasonably satisfactory to the
Administrative Agent and the Required Lenders and shall include, as
appropriate, an endorsement for future advances under this Agreement and
the Notes and for any other matter that the Collateral Agent may reasonably
request, shall not include an exception for mechanics' liens, and shall
provide for affirmative insurance and such reinsurance (including direct
access agreements) as the Collateral Agent may reasonably request;
(iii) to the extent required to deliver the Mortgage Policies and
endorsements in the form described above, surveys, in form and substance
reasonably satisfactory to the Collateral Agent of each Mortgaged Property
designated as a "Surveyed Property" on Schedule III hereto, dated a recent
date acceptable to the Collateral Agent and certified in a manner
satisfactory to the Collateral Agent by a licensed professional surveyor
satisfactory to the Administrative Agent; and
(iv) flood certificates covering such Mortgaged Properties in form
and substance acceptable to the Collateral Agent, and certifying whether or
not each such Mortgaged Property is located in a flood hazard area, as
determined by reference to the applicable FEMA map.
5.11 Subsidiaries Guaranty; Intercompany Subordination Agreement.(a)
On the Initial Borrowing Date, each Subsidiary Guarantor shall have duly
authorized, executed and delivered a subsidiaries guaranty in the form of
Exhibit I (as amended, restated, modified and/or supplemented from time to time
in accordance with the terms thereof and hereof, the "Subsidiaries Guaranty"),
and the Subsidiaries Guaranty shall be in full force and effect.
(b) On the Initial Borrowing Date, each Credit Party and each other
Subsidiary of Holdings which is an obligee or obligor with respect to any
Intercompany Debt shall have duly authorized, executed and delivered the
Intercompany Subordination Agreement in the form of Exhibit N hereto (as
amended, modified, restated and/or supplemented from time to time, the
"Intercompany Subordination Agreement"), and the Intercompany Subordination
Agreement shall be in full force and effect.
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5.12 Employee Benefit Plans; Shareholders' Agreements; Management
Agreements; Employment Agreements; Collective Bargaining Agreements; Existing
Indebtedness Agreements; Material Contracts; Tax Allocation Agreements. On or
prior to the Initial Borrowing Date, there shall have been delivered to the
Administrative Agent true and correct copies, certified as true and complete by
an appropriate officer of Holdings of the following documents (in each case,
except to the extent already delivered or made available for review by the
Administrative Agent on or prior to the Effective Date under, and as defined in,
the Existing Credit Agreement), in each case as same will be in effect on the
Initial Borrowing Date after the consummation of the Transaction:
(i) all Plans (and for each Plan that is required to file an annual
report on Internal Revenue Service Form 5500-series, a copy of the most
recent such report (including, to the extent required, the related
financial and actuarial statements and opinions and other supporting
statements, certifications, schedules and information), and for each Plan
that is a "single-employer plan," as defined in Section 4001(a)(15) of
ERISA, the most recently prepared actuarial valuation therefor) and any
other "employee benefit plans," as defined in Section 3(3) of ERISA, and
any other material agreements, plans or arrangements, with or for the
benefit of current or former employees of Holdings or any of its
Subsidiaries (provided that the foregoing shall apply in the case of any
Multiemployer Plan, only to the extent that any document described therein
is in the possession of Holdings or any Subsidiary of Holdings or any ERISA
Affiliate) (collectively, the "Employee Benefit Plans");
(ii) all agreements (including, without limitation, shareholders'
agreements, subscription agreements and registration rights agreements)
entered into by Holdings or any of its Subsidiaries governing the terms and
relative rights of its Equity Interests and any agreements entered into by
shareholders relating to any such entity with respect to its Equity
Interests (collectively, the "Shareholders' Agreements");
(iii) all material agreements with members of, or with respect to,
the management of Holdings or any of its Subsidiaries and listed as
exhibits to the most recent annual report on Form 10-K filed by the
Borrower with the SEC (collectively, the "Management Agreements");
(iv) any material employment agreements entered into by Holdings or
any of its Subsidiaries and listed as exhibits to the most recent annual
report on Form 10-K filed by the Borrower with the SEC (collectively, the
"Employment Agreements");
(v) all collective bargaining agreements applying or relating to
any employee of Holdings or any of its Subsidiaries (collectively, the
"Collective Bargaining Agreements");
(vi) all agreements evidencing or relating to Existing Indebtedness
of Holdings or any of its Subsidiaries (collectively, the "Existing
Indebtedness Agreements");
(vii) all other material contracts and licenses (other than
certificates of need) of Holdings and any of its Subsidiaries and listed as
exhibits to the most recent annual
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report on Form 10-K filed by the Borrower with the SEC (collectively, the
"Material Contracts"); and
(viii) any tax sharing or tax allocation agreements entered into by
Holdings or any of its Subsidiaries (collectively, the "Tax Allocation
Agreements");
all of which Employee Benefit Plans, Shareholders' Agreements, Management
Agreements, Employment Agreements, Collective Bargaining Agreements, Existing
Indebtedness Agreements, Material Contracts and Tax Allocation Agreements shall
be in form and substance reasonably satisfactory to the Agents and the Required
Lenders in all material respects and shall be in full force and effect on the
Initial Borrowing Date.
5.13 Solvency Certificate; Insurance Certificates. On or before the
Initial Borrowing Date, the Administrative Agent shall have received:
(a) a solvency certificate in the form of Exhibit J hereto from the
chief financial officer of Holdings, dated the Initial Borrowing Date, and
supporting the conclusion that, after giving effect to the Transaction and
the incurrence of all financings contemplated herein, each of the Borrower
(on a stand-alone basis), Holdings and its Subsidiaries (on a consolidated
basis), and the Borrower and its Subsidiaries (on a consolidated basis), in
each case, is or are not insolvent and will not be rendered insolvent by
the indebtedness incurred in connection herewith, will not be left with
unreasonably small capital with which to engage in its or their respective
businesses and will not have incurred debts beyond its or their ability to
pay such debts as they mature and become due; and
(b) evidence of insurance complying with the requirements of Section
8.03 for the business and properties of Holdings and its Subsidiaries, in
scope, form and substance reasonably satisfactory to the Agents and the
Required Lenders and naming the Collateral Agent as an additional insured
and/or loss payee, and stating that such insurance shall not be canceled or
revised without at least 30 days' prior written notice by the insurer to
the Collateral Agent.
5.14 Financial Statements; Pro Forma Balance Sheet; Projections. (a)
On or prior to the Initial Borrowing Date, there shall have been delivered to
the Administrative Agent (i) true and correct copies of the financial statements
referred to in Section 7.10(b), (ii) a customary funds flow statement, and (iii)
an unaudited pro forma consolidated balance sheet of Holdings and its
Subsidiaries as of September 30, 2003 (after giving effect to the Transaction
and the incurrence of all Indebtedness contemplated herein) prepared in
accordance with GAAP, subject to year-end audit adjustments and absence of
footnotes (the "Pro Forma Balance Sheet"), which financial statements, funds
flow statement and Pro Forma Balance Sheet shall be reasonably satisfactory to
the Agents and the Required Lenders.
(b) On or prior to the Initial Borrowing Date, there shall have been
delivered to the Administrative Agent detailed projected consolidated financial
statements of Holdings and its Subsidiaries certified by the chief financial
officer or the chief operating officer of Holdings for the five fiscal years
ended after the Initial Borrowing Date (the "Projections"), which
-49-
Projections (x) shall reflect the forecasted consolidated financial conditions
and income and expenses of Holdings and its Subsidiaries after giving effect to
the Transaction and the related financing thereof and the other transactions
contemplated hereby and (y) shall be reasonably satisfactory in form and
substance to the Agents and the Required Lenders.
5.15 Payment of Fees. On the Initial Borrowing Date, all costs, fees
and expenses, and all other compensation due to the Agents or the Lenders or
otherwise payable in respect of the Transaction (including, without limitation,
legal fees and expenses), shall have been paid to the extent due.
5.16 Compliance With Existing Senior Subordinated Secured Notes
Indenture. On the Initial Borrowing Date, the Borrower shall have delivered to
the Administrative Agent an officer's certificate signed by an appropriate
officer of the Borrower, in form and substance satisfactory to the Agents, (x)
establishing that each Credit Event occurring on such date complies with the
terms of the Existing Senior Subordinated Secured Notes Indenture and (y)
containing a representation and warranty that all Revolving Loans, Swingline
Loans, Letters of Credit and Term Loans are, and when incurred will be,
permitted pursuant to Section 4.4 of the Existing Senior Subordinated Secured
Notes Indenture.
SECTION 6A. Conditions Precedent to All Credit Events (other than
Loans Made on the Redemption Date to Finance the Existing Senior Notes
Refinancing). The obligation of each Lender to make Loans (including Loans made
on the Initial Borrowing Date but excluding (x) Loans made on the Redemption
Date to finance the Existing Senior Notes Refinancing and (y) Mandatory
Borrowings made after the Initial Borrowing Date, which shall be made as
provided in Section 1.01(d)), and the obligation of a Letter of Credit Issuer to
issue any Letter of Credit, is subject, at the time of each such Credit Event
(except as hereinafter indicated), to the satisfaction of the following
conditions:
6A.01 No Default; Representations and Warranties. At the time of each
such Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein or in any other Credit Document shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date).
6A.02 Notice of Borrowing; Letter of Credit Request. (a) Prior to the
making of each Loan (excluding Swingline Loans and Mandatory Borrowings), the
Administrative Agent shall have received a Notice of Borrowing meeting the
requirements of Section 1.03(a). Prior to the making of any Swingline Loan, CSFB
shall have received the notice required by Section 1.03(b)(i).
6A.03 Regulation U. If at any time any Margin Stock is pledged or
required to be pledged pursuant to any Security Document, all actions required
to be taken pursuant to Section 8.18 shall have been taken to the reasonable
satisfaction of the Administrative Agent.
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(b) Prior to the issuance of each Letter of Credit, the Administrative Agent
and the respective Letter of Credit Issuer shall have received a Letter of
Credit Request meeting the requirements of Section 2.02(a).
SECTION 6B. Special Condition Precedent to Incurrence of Revolving
Loans and Swingline Loans. The obligation of each RL Lender to make Revolving
Loans (excluding (i) Revolving Loans (if any) made on the Redemption Date to
finance the Existing Senior Notes Refinancing and (ii) Mandatory Borrowings made
after the Initial Borrowing Date, which shall be made as provided in Sections
1.01(d)) and the Swingline Lender to make Swingline Loans (excluding Swingline
Loans (if any) made on the Redemption Date to finance the Existing Senior Notes
Refinancing) is subject, at the time of each such making of a Revolving Loan or
Swingline Loan (except as hereinafter indicated), to the satisfaction of the
following condition:
6B.01 Limitation on Cash on Hand. The aggregate amount of cash and
Cash Equivalents owned or held by Holdings and its Subsidiaries (determined
after giving pro forma effect to the making of each such Revolving Loan and/or
Swingline Loan and the application of proceeds therefrom and from any other cash
and Cash Equivalents on hand (to the extent such proceeds and/or other cash and
Cash Equivalents are actually utilized by Holdings and/or any other Subsidiary
of Holdings on or within one day following the date of the incurrence of the
respective such Revolving Loan and/or Swingline Loan for a permitted purpose
under this Agreement other than an investment in Cash Equivalents)) shall not
exceed $5,000,000 (for purposes of cash or Cash Equivalents denominated in a
currency other than U.S. Dollars, taking the U.S. Dollar Equivalent of such cash
and Cash Equivalents as determined on the date of the incurrence of the
respective Revolving Loan and/or Swingline Loan).
SECTION 6C. Special Condition Precedent to Incurrence of Loans on the Redemption
Date. The obligation of each Lender to make Loans on the Redemption Date to
finance the Existing Senior Notes Refinancing, is subject to the satisfaction of
the following condition:
6C.01 No Payment or Bankruptcy Default or Event of Default. On the
Redemption Date, there shall exist no Default under Section 10.01 or 10.05 and
no Event of Default under Section 10.01 or 10.05.
The occurrence of the Initial Borrowing Date and the acceptance of the
benefits or proceeds of each Credit Event shall constitute a representation and
warranty by each Credit Agreement Party to each Agent and each of the Lenders
that all the conditions specified in Section 5 and in this Section 6 and
applicable to such Credit Event (other than such conditions that are expressly
subject to the satisfaction of the Agents and/or the Required Lenders) exist as
of that time. All of the Notes, certificates, legal opinions and other documents
and papers referred to in Section 5 and in this Section 6, unless otherwise
specified, shall be delivered to the Administrative Agent at the Notice Office
for the account of each of the Lenders and, except for the Notes, in sufficient
counterparts or copies for each of the Lenders and shall be in form and
substance satisfactory to the Lenders.
SECTION 7. Representations and Warranties. In order to induce the
Lenders to enter into this Agreement and to make the Loans and fund the
Credit-Linked Deposits, and issue and/or participate in the Letters of Credit
provided for herein, each Credit Agreement Party
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makes the following representations and warranties to the Lenders, in each case
after giving effect to the Transaction, all of which shall survive the execution
and delivery of this Agreement, the making of the Loans, the funding of the
Credit-Linked Deposits and the issuance of the Letters of Credit (with the
occurrence of the Initial Borrowing Date and each Credit Event on and after the
Initial Borrowing Date (other than the incurrence of Loans on the Redemption
Date to finance the Existing Senior Notes Refinancing) being deemed to
constitute a representation and warranty by each Credit Agreement Party that the
matters specified in this Section 7 are true and correct in all material
respects on and as of the Initial Borrowing Date and the date of each such
Credit Event, unless stated to relate to a specific earlier date in which case
such representations and warranties shall be true and correct in all material
respects as of such earlier date):
7.01 Company Status. Each Credit Agreement Party and each of its
Subsidiaries (i) is a duly organized and validly existing Company in good
standing under the laws of the jurisdiction of its organization, (ii) has the
Company power and authority to own its property and assets and to transact the
business in which it is engaged and presently proposes to engage and (iii) is
duly qualified and is authorized to do business and is in good standing in all
jurisdictions where it is required to be so qualified and where the failure to
be so qualified would have a Material Adverse Effect.
7.02 Company Power and Authority. Each Credit Party has the Company
power and authority to execute, deliver and carry out the terms and provisions
of the Documents to which it is a party and has taken all necessary Company
action to authorize the execution, delivery and performance of the Documents to
which it is a party. Each Credit Party has duly executed and delivered each
Document to which it is a party and each such Document constitutes the legal,
valid and binding obligation of such Credit Party enforceable in accordance with
its terms, except to the extent that the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
generally affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or performance by
any Credit Party of the Documents to which it is a party, nor compliance by any
Credit Party with the terms and provisions thereof, nor the consummation of the
transactions contemplated herein or therein, (i) will contravene any material
provision of any applicable law, statute, rule or regulation, or any order,
writ, injunction or decree of any court or governmental instrumentality, (ii)
will conflict or be inconsistent with or result in any breach of, any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
(other than pursuant to the Security Documents) result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of such Credit Party or any of its Subsidiaries pursuant to
the terms of any indenture, mortgage, deed of trust, loan agreement, credit
agreement or any other material agreement or instrument to which such Credit
Party or any of its Subsidiaries is a party or by which it or any of its
property or assets are bound or to which such Credit Party and any of its
Subsidiaries may be subject (including, without limitation, each of the Existing
Senior Notes Documents, the other Existing Indebtedness Agreements and the New
Senior Subordinated Notes Indenture) or (iii) will violate any provision of the
certificate of incorporation, by-laws, certificate of partnership, partnership
agreement, certificate of limited liability company, limited
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liability company agreement or equivalent organizational document, as the case
may be, of such Credit Party or any of its Subsidiaries.
7.04 Litigation. There are no actions, suits, proceedings or
investigations pending or, to the best knowledge of each Credit Agreement Party,
threatened (i) with respect to any Credit Document, (ii) with respect to the
Transaction or any other Document, or (iii) with respect to such Credit
Agreement Party or any of its Subsidiaries that has had (unless same has ceased
to exist), or could reasonably be expected to have, a Material Adverse Effect
(after giving effect to projected reserves for remediation expenses, the
anticipated timing of remediation expenses, potential insurance and
indemnification recoveries and tax savings). Additionally, there does not exist
any judgment, order or injunction prohibiting or imposing material adverse
conditions upon the occurrence of any Credit Event.
7.05 Use of Proceeds; Margin Regulations. (a) The proceeds of the
Term Loans shall be utilized by the Borrower (i) on the Initial Borrowing Date
solely to (x) finance, in part, the Bank Refinancing and (y) pay fees and
expenses (not to exceed $20,000,000) incurred in connection with the Transaction
and (ii) on the Redemption Date solely to finance, in part, the Existing Senior
Notes Refinancing.
(b) The proceeds of all Revolving Loans and Swingline Loans shall be
utilized by the Borrower for the general corporate and working capital purposes
of the Borrower and its Subsidiaries (including, but not limited to, Permitted
Acquisitions, repayments of Unpaid Drawings on PF Letters of Credit and WC
Letters of Credit, and the repurchase, redemption or repayment of the Existing
2006 Senior Subordinated Notes and/or the New Senior Subordinated Notes in
accordance with the requirements of Section 9.06(x), (xi) or (xii) and/or
9.12(ii), as applicable, but excluding payments in connection with the
Transaction, except to the extent expressly permitted pursuant to the
immediately succeeding proviso); provided, however, that up to $20.0 million of
proceeds of Revolving Loans may be utilized on the Redemption Date to finance
the Existing Senior Notes Refinancing.
(c) All Letters of Credit will be used for the purposes described in
Section 2.01(a).
(d) Except as otherwise permitted by Sections 9.06(ii), (xiii) and
(xiv), no part of any Credit Event (or the proceeds thereof) will be used to
purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock. Neither the making of any Loan, nor the
use of the proceeds thereof, nor the occurrence of any other Credit Event, will
violate or be inconsistent with the provisions of Regulation T, U or X of the
Board of Governors of the Federal Reserve System.
(e) At the time of each Credit Event, not more than 25% of the value
of the assets of Holdings and its Subsidiaries taken as a whole (including all
capital stock of Holdings held in treasury) will constitute Margin Stock.
7.06 Governmental Approvals. Except as may have been obtained or made
on or prior to the Initial Borrowing Date (and which remain in full force and
effect on the Initial Borrowing Date), no order, consent, approval, license,
authorization or validation of, or filing,
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recording or registration with, or exemption by, any foreign or domestic
governmental or public body or authority, or any subdivision thereof, is
required to authorize or is required in connection with (i) the execution,
delivery and performance of any Document or (ii) the legality, validity, binding
effect or enforceability of any Document.
7.07 Investment Company Act. Neither Holdings nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.08 Public Utility Holding Company Act. Neither Holdings nor any of
its Subsidiaries is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
7.09 True and Complete Disclosure. All factual information (taken as
a whole) heretofore or contemporaneously furnished by or on behalf of Holdings
or any of its Subsidiaries in writing to any Agent or any Lender (including,
without limitation, all information contained in the Documents) for purposes of
or in connection with this Agreement or any transaction contemplated herein or
therein is, and all other such factual information (taken as a whole) hereafter
furnished by or on behalf of any such Persons in writing to any Agent or any
Lender will be, true and accurate in all material respects on the date as of
which such information is dated or certified and not incomplete by omitting to
state any material fact necessary to make such information (taken as a whole)
not misleading at such time in light of the circumstances under which such
information was provided, it being understood and agreed that for purposes of
this Section 7.09, such factual information shall not include the Projections or
any pro forma financial information.
7.10 Financial Condition; Financial Statements. (a) On and as of the
Initial Borrowing Date, on a pro forma basis after giving effect to the
Transaction (including the Existing Senior Notes Refinancing as if same had been
consummated on such date) and to all Indebtedness (including the Loans and the
New Senior Subordinated Notes) incurred, and to be incurred, and Liens created,
and to be created, by each Credit Party in connection therewith, with respect to
each of Holdings (on a stand-alone basis), the Borrower (on a stand-alone
basis), Holdings and its Subsidiaries (on a consolidated basis) and the Borrower
and its Subsidiaries (on a consolidated basis), (x) the sum of the assets, at a
fair valuation, of each of Holdings (on a stand-alone basis), the Borrower (on a
stand-alone basis), Holdings and its Subsidiaries (on a consolidated basis) and
the Borrower and its Subsidiaries (on a consolidated basis) will exceed its or
their debts, (y) it has or they have not incurred nor intended to, nor believes
or believe that it or they will, incur debts beyond its or their ability to pay
such debts as such debts mature and (z) it or they will have sufficient capital
with which to conduct its or their business. For purposes of this Section 7.10,
"debt" means any liability on a claim, and "claim" means (i) right to payment,
whether or not such a right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (ii) right to an equitable remedy for breach of
performance if such breach gives rise to a payment, whether or not such right to
an equitable remedy is reduced to judgment, fixed, contingent, matured,
unmatured, disputed, undisputed, secured or unsecured. The amount of contingent
liabilities at any time shall be computed as the amount that, in the light of
all the facts
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and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
(b) (i) The audited consolidated balance sheets of Holdings and its
Subsidiaries at December 31, 2000, December 31, 2001 and December 31, 2002 and
the related consolidated statements of income and cash flows and changes in
shareholders' equity of Holdings and its Subsidiaries for the fiscal years of
Holdings ended on such dates, in each case furnished to the Lenders prior to the
Initial Borrowing Date, present fairly in all material respects the consolidated
financial position of Holdings and its Subsidiaries at the date of said
financial statements and the results for the respective periods covered thereby
and (ii)(x) the unaudited consolidated balance sheet of Holdings and its
Subsidiaries at September 30, 2003 and the related consolidated statements of
income and cash flows and changes in shareholders' equity of Holdings and its
Subsidiaries for the fiscal quarter of Holdings ended on such date and (y) the
Pro Forma Balance Sheet, in each case, furnished to the Lenders prior to the
Initial Borrowing Date present fairly in all material respects the consolidated
financial condition of Holdings and its Subsidiaries at the dates of said
financial statements and the results for the period covered thereby (or, in the
case of the Pro Forma Balance Sheet, presents a good faith estimate of the
consolidated pro forma financial condition of Holdings and its Subsidiaries
(after giving effect to the Transaction at the date thereof), subject, in the
case of unaudited financial statements, to normal year-end adjustments. All such
financial statements have been prepared in accordance with GAAP consistently
applied except to the extent provided in the notes to said financial statements
and subject, in the case of the unaudited financial statements for the fiscal
quarter ended September 30, 2003, to normal year-end audit adjustments (all of
which are of a recurring nature and none of which, individually or in the
aggregate, would be material) and the absence of footnotes.
(c) Since December 31, 2002 (but after giving effect to the
Transaction as if same had occurred prior thereto), nothing has occurred that
has had (unless same has ceased to exist), or could reasonably be expected to
have, a Material Adverse Effect.
(d) Except as fully reflected in the financial statements described
in Section 7.10(b) and except for the Indebtedness incurred under this Agreement
and the New Senior Subordinated Note Documents, (i) as of the Initial Borrowing
Date (and after giving effect to any Loans made on such date), there were no
liabilities or obligations (excluding current obligations incurred in the
ordinary course of business and commitments to purchase Tractor Trailers) with
respect to Holdings or any of its Subsidiaries of any nature whatsoever (whether
absolute, accrued, contingent or otherwise and whether or not due) which, either
individually or in the aggregate, could reasonably be expected to be material to
Holdings and its Subsidiaries taken as a whole and (ii) no Credit Agreement
Party knows of any basis for the assertion against it or any of its Subsidiaries
of any such liability or obligation which, either individually or in the
aggregate, has had (unless same has ceased to exist), or could reasonably be
expected to have, a Material Adverse Effect.
(e) The Projections have been prepared on a basis consistent with
the financial statements referred to in Section 7.10(b), and have been prepared
in good faith and are based on reasonable assumptions under the then known facts
and circumstances. On the Initial Borrowing Date, the management of Holdings
believes that the Projections are reasonable and
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attainable based upon the then known facts and circumstances (it being
understood that nothing contained in this Section 7.10(e) shall constitute a
representation that the results forecasted in such Projections will in fact be
achieved). There is no fact known to Holdings or any of its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect, which has not
been disclosed herein or in such other documents, certificates and statements
furnished to the Lenders for use in connection with the transactions
contemplated hereby.
7.11 Security Interests. On and after the Initial Borrowing Date,
each of the Security Documents creates (or after the execution and delivery
thereof will create), as security for the Obligations, a valid and enforceable
perfected security interest in and Lien on all of the Collateral subject thereto
(and, in the case of a security interest created pursuant to the Security
Documents other than the U.S Security Documents, enforceable as against third
parties), superior to and prior to the rights of all third Persons, and subject
to no other Liens (except that (i) the Security Agreement Collateral may be
subject to Permitted Liens relating thereto, (ii) in the case of deposit
accounts constituting Security Agreement Collateral, such Collateral may be
subject to such exceptions to the perfection requirements as are specifically
set forth in the Security Agreement, (iii) the Pledge Agreement Collateral may
be subject to the Liens described in clauses (a) and (e) of Section 9.03, (iv)
the security interest and mortgage lien created in the Mortgaged Properties may
be subject to the Permitted Encumbrances related thereto, and (v) in the case of
any Security Agreement Collateral acquired after the Initial Borrowing Date, the
foregoing representation as to the perfection, superiority and priority of the
security interest in such after-acquired Security Agreement Collateral, shall
not be made hereunder until the time limit specified in Section 2.1 of the
Security Agreement for the filing of UCC-1 financing statements covering such
Security Agreement Collateral has lapsed), in favor of the Collateral Agent. No
filings or recordings are required in order to perfect and/or render enforceable
as against third parties the security interests created under any Security
Document except for filings or recordings required in connection with any such
Security Document which shall have been made on or prior to the Initial
Borrowing Date as contemplated by Section 5.10 or on or prior to the execution
and delivery thereof as contemplated by Sections 8.11, 8.12 and 9.15 (or, in the
case of filings or recordings required pursuant to the Security Agreement in
respect of Security Agreement Collateral acquired after the Initial Borrowing
Date, on or prior to such later date as shall be specified for such filing
pursuant to Section 2.1 of the Security Agreement).
7.12 Compliance with ERISA./6/ (a) Part A of Schedule V sets forth
each Plan and each Multiemployer Plan; except as set forth in item (i) of Part B
of Schedule V, each Plan (and each related trust, insurance contract or fund) is
in substantial compliance with its terms and with all applicable laws, including
without limitation ERISA and the Code; each Plan (and each related trust, if
any) which is intended to be qualified under Section 401(a) of the Code has
received an opinion letter (only if such Plan is a standardized prototype plan
[or a non-standardized 401(k) plan]) or a determination letter from the Internal
Revenue Service to the effect that it meets the requirements of Sections 401(a)
and 501(a) of the Code (or an application for a determination letter has been
filed within the remedial amendment period and is pending with the Internal
Revenue Service); no Reportable Event has occurred; to the best knowledge of
----------
/6/ W&C ERISA attorneys to review Schedule V.
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each Credit Agreement Party after due inquiry, no Multiemployer Plan is
insolvent or in reorganization; except as described in items (i) and (ii) set
forth on Part B of Schedule V, no Plan has an Unfunded Current Liability; no
Plan which is subject to Section 412 of the Code or Section 302 of ERISA has an
accumulated funding deficiency, within the meaning of such sections of the Code
or ERISA, or has applied for or received a waiver of an accumulated funding
deficiency or an extension of any amortization period, within the meaning of
Section 412 of the Code or Section 303 or 304 of ERISA; except as described in
item (iii) set forth on Part B of Schedule V, all contributions required to be
made with respect to a Plan, a Multiemployer Plan and a Foreign Pension Plan
have been timely made by each Credit Agreement Party and each Subsidiary of each
Credit Agreement Party except for de minimus failures that have been promptly
cured; neither Holdings nor any Subsidiary of Holdings has incurred any material
liability (including any indirect, contingent or secondary liability) to or on
account of a Plan pursuant to Section 409, 502(i) or 502(1) of ERISA or Section
4975 of the Code or expects to incur any such liability under any of the
foregoing sections with respect to any Plan; neither Holdings nor any Subsidiary
of Holdings nor any ERISA Affiliate has incurred any material liability
(including any indirect, contingent or secondary liability) to or on account of
a Plan pursuant to Section 4062, 4063, 4064 or 4069 of ERISA or Section
401(a)(29) or 4971 of the Code or expects to incur any such liability under any
of the foregoing sections with respect to any Plan; to the knowledge of Holdings
and its Subsidiaries, neither Holdings nor any Subsidiary of Holdings nor any
ERISA Affiliate has incurred any material liability (including any indirect,
contingent or secondary liability) to or on account of a Multiemployer Plan
pursuant to Section 515, 4201, 4204, or 4212 of ERISA; no condition exists which
presents a material risk to Holdings or any Subsidiary of Holdings or any ERISA
Affiliate of incurring a liability to or on account of a Plan or, to the best
knowledge of each Credit Agreement Party after due inquiry, a Multiemployer Plan
pursuant to the foregoing provisions of ERISA and the Code; no proceedings have
been instituted to terminate or appoint a trustee to administer any Plan which
is subject to Title IV of ERISA; no action, suit, proceeding, hearing, audit or
investigation with respect to the administration, operation or the investment of
assets of any Plan (other than routine claims for benefits) is pending, expected
or, to the best knowledge of each Credit Agreement Party after due inquiry,
threatened; using actuarial assumptions and computation methods consistent with
Part 1 of subtitle E of Title IV of ERISA, the aggregate liabilities of Holdings
and its Subsidiaries and its ERISA Affiliates to all Multiemployer Plans in the
event of a complete withdrawal therefrom, as of the close of the most recent
fiscal year of each such Multiemployer Plan ended prior to the date of the most
recent Credit Event, would not exceed an amount that could reasonably be
expected to have a Material Adverse Effect; each group health plan (as defined
in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) maintained by
Holdings or any Subsidiary which covers or has covered employees or former
employees of Holdings, any Subsidiary of Holdings or any ERISA Affiliate has at
all times been operated in substantial compliance with the provisions of Part 6
of subtitle B of Title I of ERISA and Section 4980B of the Code; each group
health plan (as defined in 45 Code of Federal Regulations Section 160.103) which
covers or has covered employees or former employees of Holdings, any Subsidiary
of Holdings, or any ERISA Affiliate has at all times been operated in
substantial compliance with the provisions of the Health Insurance Portability
and Accountability Act of 1996 and the regulations promulgated thereunder; no
lien imposed under the Code or ERISA on the assets of Holdings or any Subsidiary
of Holdings or any ERISA Affiliate exists or is likely to arise on account of
any Plan; and, except as described in item (iv)
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set forth on Part B of Schedule V, Holdings and its Subsidiaries may cease
contributions to or terminate any employee benefit plan maintained by any of
them without incurring any material liability.
(b) Each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. Neither
Holdings nor any of its Subsidiaries has incurred any liability in connection
with the termination of or withdrawal from any Foreign Pension Plan that has not
been paid, accrued or otherwise properly reserved on Holdings' or such
Subsidiary's balance sheet. With respect to each Foreign Pension Plan that is
required by applicable local law or by its terms to be funded through a separate
funding vehicle, the present value of the accrued benefit liabilities (whether
or not vested) under each such Foreign Pension Plan, determined as of the latest
valuation date for such Foreign Pension Plan on the basis of actuarial
assumptions, each of which is reasonable, did not exceed the current value of
the assets of such Foreign Pension Plan allocable to such benefit liabilities by
an amount which, when added to the aggregate amount of the accrued benefit
liabilities with respect to all other Foreign Pension Plans, could reasonably be
expected to have a Material Adverse Effect.
7.13 Capitalization./7/ (a) On the Initial Borrowing Date and after
giving effect to the Transaction, the authorized capital stock of Holdings shall
consist of (i) 29,000,000 shares of common stock, without par value (such
authorized shares of common stock, together with any subsequently authorized
shares of common stock of Holdings, the "Holdings Common Stock"), 18,012,300 of
which shares shall be issued and outstanding and (ii) 1,000,000 shares of
Preferred Stock, without par value, none of which shares shall be issued and
outstanding. All such outstanding shares have been duly and validly issued, are
fully paid and nonassessable and have been issued free of preemptive rights. As
of the Initial Borrowing Date, except as set forth on Schedule X hereto,
Holdings does not have outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any rights to subscribe for or
to purchase, or any options for the purchase of, or any agreements providing for
the issuance (contingent or otherwise) of, or any calls, commitments or claims
of any character relating to, its capital stock or any stock appreciation or
similar rights.
(b) On the Initial Borrowing Date and after giving effect to the
Transaction, the authorized capital stock of the Borrower shall consist of 1000
membership units, of which 100 such units were issued and outstanding, owned by
Holdings and delivered for pledge pursuant to the U.S. Pledge Agreement. All
such outstanding membership units have been duly and validly issued, are fully
paid and nonassessable and free of preemptive rights. The Borrower does not have
outstanding any securities convertible into or exchangeable for its capital
stock or outstanding any rights to subscribe for or to purchase, or any options
for the purchase of, or any agreement providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to,
its capital stock or any stock appreciation or similar rights.
--------
/7/ Holdings to advise.
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7.14 Subsidiaries. On and as of the Initial Borrowing Date, Holdings
has no Subsidiaries other than those Subsidiaries listed on Schedule VII.
Schedule VII correctly sets forth, as of the Initial Borrowing Date, the
percentage ownership (direct and indirect) of Holdings in each class of capital
stock or other Equity Interests of each of its Subsidiaries and also identifies
the direct owner thereof. All outstanding shares of capital stock of each
Subsidiary of Holdings have been duly and validly issued, are fully paid and
non-assessable and have been issued free of preemptive rights. No Subsidiary of
Holdings has outstanding any securities convertible into or exchangeable for its
capital stock or outstanding any right to subscribe for or to purchase, or any
options or warrants for the purchase of, or any agreement providing for the
issuance (contingent or otherwise) of or any calls, commitments or claims of any
character relating to, its capital stock or any stock appreciation or similar
rights.
7.15 Intellectual Property, etc. Each of Holdings and each of its
Subsidiaries owns or has a valid existing license to use all patents,
trademarks, permits, service marks, domain names, trade names, copyrights,
licenses, franchises trade secrets, proprietary information and know-how of any
type, and other rights with respect to the foregoing, reasonably necessary for
the conduct of its business, without any known conflict with the rights of
others which, or the failure to obtain which, as the case may be, has had
(unless same has ceased to exist), or could reasonably be excepted to have, a
Material Adverse Effect.
7.16 Compliance with Statutes, etc. Each of Holdings and each of its
Subsidiaries is in compliance with all applicable statutes, regulations, rules
and orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property, except such non-compliance as individually or in the
aggregate, has not (unless same has ceased to exist), and could not reasonably
be expected to have, a Material Adverse Effect.
7.17 Environmental Matters. (a) Each of Holdings, its Subsidiaries
and the Program Affiliates has complied with, and on the date of each Credit
Event is in material compliance with, all applicable Environmental Laws and the
requirements of any permits issued under such Environmental Laws and none of
Holdings, any of its Subsidiaries or any Program Affiliate is liable for any
material penalties, fines or forfeitures for failure to comply with any of the
foregoing. There are no pending or past or, to the best knowledge of Holdings
after due inquiry, threatened Environmental Claims against Holdings, any of its
Subsidiaries or any Program Affiliate, or against any Real Property owned or
operated by Holdings, any of its Subsidiaries or any Program Affiliate. There
are no facts, circumstances, conditions or occurrences with respect to the
business or operations of Holdings, any of its Subsidiaries or any Program
Affiliate or any Real Property at any time owned or operated by Holdings, any of
its Subsidiaries or any Program Affiliate or any property adjoining or in the
vicinity of any such Real Property that would reasonably be expected (i) to form
the basis of an Environmental Claim against Holdings or any of its Subsidiaries
or any such Real Property or (ii) to cause any such Real Property to be subject
to any restrictions on the ownership, occupancy, use or transferability of such
Real Property by Holdings or any of its Subsidiaries under any applicable
Environmental Law.
(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported by Holdings or any of its Subsidiaries or
by any Person acting for or
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under contract to Holdings or any of its Subsidiaries or, to the knowledge of
any Credit Agreement Party, by any other Person, to or from any Real Property
owned or operated by Holdings, any of its Subsidiaries or any Program Affiliate
except in material compliance with all applicable Environmental Laws and as
reasonably required in connection with the operation, use and maintenance of
such Real Property or by Holdings', such Subsidiary's or such Program
Affiliate's business. Hazardous Materials have not at any time been Released by
Holdings or any of its Subsidiaries or by any Person acting for or under
contract to Holdings or any of its Subsidiaries or, to the knowledge of any
Credit Agreement Party, by any other Person on or from any Real Property owned
or operated by Holdings, any of its Subsidiaries or any Program Affiliate,
except in compliance with all applicable Environmental Laws and as reasonably
required in connection with the operation, use and maintenance of such Real
Property or by Holdings', such Subsidiary's or such Program Affiliate's
business. There are not now any underground storage tanks owned or operated by
Holdings or any of its Subsidiaries, or to the knowledge of any Credit Agreement
Party, by any other Person, located on any Real Property owned or operated by
Holdings, any of its Subsidiaries or any Program Affiliate.
(c) Notwithstanding anything to the contrary in this Section 7.17,
the representations made in this Section 7.17 shall be untrue only if the
aggregate effect of all liabilities, conditions, failures, noncompliances,
Environmental Claims, Releases, restrictions and presence of underground storage
tanks, in each case of the types described above, has had (unless same has
ceased to exist), or could reasonably be expected to have, a Material Adverse
Effect (after giving effect to projected reserves for remediation expenses, the
anticipated timing of remediation expenses, potential insurance and
indemnification recoveries and tax savings).
7.18 Properties. All Real Property owned by Holdings or any of its
Subsidiaries and all material Leaseholds leased by Holdings or any of its
Subsidiaries, in each case as of the Initial Borrowing Date, and the nature of
the interest therein, is correctly set forth in Schedule III. All Tractor
Trailers owned or leased by Holdings or any of its Subsidiaries as of the
Initial Borrowing Date are correctly set forth in Schedule XIV. Each of Holdings
and each of its Subsidiaries has good and marketable title to, or a validly
subsisting leasehold interest in, all material properties owned or leased by it,
including all Real Property reflected in Schedule III and in the financial
statements referred to in Section 7.10(b) (except such properties sold in the
ordinary course of business since the dates of the respective financial
statements referred to therein), free and clear of all Liens, other than
Permitted Liens.
7.19 Labor Relations. Neither Holdings nor any of its Subsidiaries is
engaged in any unfair labor practice that could reasonably be expected to have a
Material Adverse Effect. There is (i) no unfair labor practice complaint pending
against Holdings or any of its Subsidiaries or, to the best knowledge of
Holdings and its Subsidiaries, threatened against any of them, before the
National Labor Relations Board, and no grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against Holdings or any of its Subsidiaries or, to the best knowledge of
Holdings and its Subsidiaries, threatened against any of them, (ii) no strike,
labor dispute, slowdown or stoppage pending against Holdings or any of its
Subsidiaries or, to the best knowledge of Holdings and its Subsidiaries,
threatened against Holdings or any of its Subsidiaries, and (iii) no union
representation question existing with respect to the employees of Holdings or
any of its Subsidiaries and, to the best knowledge of Holdings and its
Subsidiaries, no union organizing activities are taking place, except (with
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respect to any matter specified in clause (i), (ii) or (iii) above, either
individually or in the aggregate) such as has not had (unless same has ceased to
exist), and could not reasonably be expected to have, a Material Adverse Effect.
7.20 Tax Returns and Payments. Each of Holdings and each of its
Subsidiaries has filed all federal income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, except for
those contested in good faith and fully provided for on the financial statements
of Holdings and its Subsidiaries in accordance with generally accepted
accounting principles. Each of Holdings and each of its Subsidiaries has
provided adequate reserves in accordance with generally accepted accounting
principles (in the good faith judgment of the management of Holdings) for the
payment of all federal, state and foreign income taxes which have not yet become
due. There is no action, suit, proceeding, investigation, audit, or claim now
pending or, to the knowledge of Holdings or any of its Subsidiaries, threatened
by any authority regarding any taxes relating to Holdings or any of its
Subsidiaries that has had (unless same has ceased to exist), or could reasonably
be expected to have, a Material Adverse Effect. Neither Holdings nor any of its
Subsidiaries has entered into an agreement or waiver or been requested to enter
into an agreement or waiver extending any statute of limitations relating to the
payment or collection of taxes of Holdings or any of its Subsidiaries, or is
aware of any circumstances that would cause the taxable years or other taxable
periods of Holdings or any of its Subsidiaries not to be subject to the normally
applicable statute of limitations, in each case except to the extent the
liability for taxes of Holdings or such Subsidiary giving rise to any extension
of any such normally applicable statute of limitation is not material.
7.21 Scheduled Existing Indebtedness. Schedule IV sets forth a true
and complete list of all Scheduled Existing Indebtedness of Holdings and its
Subsidiaries as of the Initial Borrowing Date after giving effect to the
Transaction (other than the Existing Senior Notes Refinancing), in each case
showing the aggregate principal amount thereof and the name of the respective
borrower and any other entity which directly or indirectly guaranteed such debt.
7.22 Insurance. Set forth on Schedule VIII hereto is a true, correct
and complete summary of all insurance carried by each Credit Party on and as of
the Initial Borrowing Date, with the amounts insured set forth therein.
7.23 Representations and Warranties in Other Documents. All
representations and warranties set forth in the other Documents were true and
correct in all material respects at the time as of which such representations
and warranties were made (or deemed made) and shall be true and correct in all
material respects as of the Initial Borrowing Date as if such representations or
warranties were made on and as of such date, unless stated to relate to a
specific earlier date, in which case such representations or warranties shall be
true and correct in all material respects as of such earlier date.
7.24 Special Purpose Corporation. Holdings has no significant assets
(other than the capital stock of the Borrower) or liabilities (other than under
this Agreement and the other Documents to which it is a party and those
liabilities permitted to be incurred by Holdings pursuant to Section 9.01(c)).
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7.25 Subordination. The subordination provisions contained in the
Existing Senior Notes Documents and the New Senior Subordinated Notes Documents
and, on and after the execution and delivery thereof, each of the agreements or
instruments relating to the Shareholder Subordinated Notes, Permitted
Subordinated Indebtedness and the Permitted Subordinated Refinancing
Indebtedness are enforceable against Holdings, the Borrower and/or the
Subsidiary Guarantors, as applicable, and the holders of such Indebtedness,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
generally affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law), and all Obligations
hereunder and all obligations of the Credit Parties under the other Credit
Documents (including without limitation, the Holdings Guaranty and the
Subsidiaries Guaranty) are within the definitions of "Senior Debt" or "Guarantor
Senior Debt", as applicable, and "Designated Senior Debt" included in such
subordination provisions.
SECTION 8. Affirmative Covenants. Each Credit Agreement Party hereby
covenants and agrees that as of the Effective Date and thereafter for so long as
this Agreement is in effect and until the Total Commitment has terminated, no
Letters of Credit or Notes are outstanding and the Loans and Unpaid Drawings,
together with interest, Fees and all other Obligations (other than any
indemnities described in Section 13.13 which are not then due and payable)
incurred hereunder, are paid in full:
8.01 Information Covenants. Holdings and/or the Borrower will furnish
to each Lender:
(a) Quarterly Financial Statements. Within 45 days after the close
of the first three quarterly accounting periods in each fiscal year of Holdings,
(i) the consolidated balance sheet of Holdings and its Subsidiaries as at the
end of such quarterly accounting period and the related consolidated statements
of income and retained earnings and of cash flows for such quarterly accounting
period and for the elapsed portion of the fiscal year ended with the last day of
such quarterly accounting period and the budgeted figures for such quarterly
period as set forth in the respective budget delivered pursuant to Section
8.01(c) (or, if prior to the required delivery of the first budget pursuant to
this Agreement, the Projections) and (ii) management's discussion and analysis
of significant operational and financial developments during such quarterly
period, all of which shall be in reasonable detail and certified by the chief
financial officer or other Authorized Officer of Holdings that they fairly
present in all material respects the financial condition of Holdings and its
Subsidiaries as of the dates indicated and the results of their operations and
changes in their cash flows for the periods indicated, subject to normal
year-end audit adjustments and the absence of footnotes. If Holdings has
designated any Unrestricted Subsidiaries hereunder, then the quarterly financial
information required by this Section 8.01(a) shall include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes
thereto, and in management's discussion and analysis of operational and
financial developments, of the financial condition and results of operations of
Holdings and its Subsidiaries separate from the financial condition and results
of operations of the Unrestricted Subsidiaries of Holdings.
(b) Annual Financial Statements. Within 90 days after the close of
each fiscal year of Holdings, the consolidated balance sheet of Holdings and its
Subsidiaries as at the end of
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such fiscal year and the related consolidated statements of income and retained
earnings and of cash flows for such fiscal year and setting forth comparative
consolidated figures for the preceding fiscal year and comparable budgeted
figures for such fiscal year as set forth in the respective budget delivered
pursuant to Section 8.01(c) and (except for such comparable budgeted figures)
certified by PriceWaterhouseCoopers LLC or such other independent certified
public accountants of recognized national standing as shall be reasonably
acceptable to the Administrative Agent, in each case to the effect that such
statements fairly present in all material respects the financial condition of
Holdings and its Subsidiaries as of the dates indicated and the results of their
operations and changes in financial position for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years, together
with a certificate of such accounting firm stating that in the course of its
regular audit of the business of Holdings and its Subsidiaries, which audit was
conducted in accordance with generally accepted auditing standards, no Default
or Event of Default which has occurred and is continuing has come to their
attention or, if such a Default or an Event of Default has come to their
attention, a statement as to the nature thereof. If Holdings has designated any
Unrestricted Subsidiaries hereunder, then the annual financial information
required by this Section 8.01(b) shall include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes
thereto, and in management's discussion and analysis of operational and
financial developments, of the financial condition and results of operations of
Holdings and its Subsidiaries separate from the financial condition and results
of operations of the Unrestricted Subsidiaries of Holdings.
(c) Budgets; etc. Not more than 60 days after the commencement of
each fiscal year of Holdings, consolidated budgets of Holdings and its
Subsidiaries (x) in reasonable detail for each of the four fiscal quarters of
such fiscal year and (y) in summary form for each of the five fiscal years
immediately following such fiscal year, in each case as customarily prepared by
management for its internal use setting forth, with appropriate discussion, the
principal assumptions upon which such budgets are based. Together with each
delivery of financial statements pursuant to Sections 8.01(a) and (b), a
comparison of the current year to date financial results against the budgets
required to be submitted pursuant to this clause (c) shall be presented.
(d) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 8.01(a) and (b), a certificate of
the chief financial officer or other Authorized Officer of Holdings to the
effect that, to the best of such officer's knowledge, no Default or Event of
Default exists or, if any Default or Event of Default does exist, specifying the
nature and extent thereof, which certificate shall, (I) if delivered in
connection with the financial statements in respect of a period ending on the
last day of a fiscal quarter or fiscal year of Holdings, set forth (x) the
calculations required to establish whether Holdings and its Subsidiaries were in
compliance with the provisions of Sections 4.02, 9.02, [9.04(d), (g), (j), (k),
(m) and (n), 9.05(a), (f), (g), (k), (o), (q) and (r)] 9.09, 9.10 and 9.11 as at
the end of such fiscal quarter or year, as the case may be, and (y) the
calculation of the Total Leverage Ratio and the Adjusted Total Leverage Ratio as
at the last day of the respective fiscal quarter or fiscal year of Holdings, as
the case may be and (II) if delivered with the financial statements required by
Section 8.01(b), set forth (in reasonable detail) the amount of (and the
calculation required to establish the amount of) Adjusted Excess Cash Flow for
the Excess Cash Flow Payment Period ending on the last day of the respective
fiscal year.
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(e) Notice of Default or Litigation. Promptly, and in any event
within three Business Days after an executive officer of any Credit Agreement
Party or any of its Subsidiaries obtains actual knowledge thereof, notice of (i)
the occurrence of any event which constitutes a Default or an Event of Default,
which notice shall specify the nature and period of existence thereof and what
action the respective Credit Agreement Party proposes to take with respect
thereto, (ii) any litigation or proceeding pending or threatened (x) against
Holdings or any of its Subsidiaries which has had, or could reasonably be
expected to have, a Material Adverse Effect, (y) with respect to any material
Indebtedness of Holdings or any of its Subsidiaries or (z) with respect to any
Document (other than such Documents referred to in clause (vi) of the definition
thereof), (iii) any governmental investigation pending or threatened against
Holdings or any of its Subsidiaries and (iv) any other event which has had, or
could reasonably be expected to have, a Material Adverse Effect.
(f) Auditors' Reports. Promptly upon receipt thereof (unless
restricted by applicable professional standards), a copy of each report or
"management letter" submitted to Holdings or any of its Subsidiaries by its
independent accountants in connection with any annual, interim or special audit
made by them of the books of Holdings or any of its Subsidiaries and the
management's non-privileged responses thereto.
(g) Environmental Matters. Promptly after an executive officer of
Holdings or any of its Subsidiaries obtains actual knowledge of any of the
following (but only to the extent that any of the following, either individually
or in the aggregate, could reasonably be expected to (x) have a Material Adverse
Effect or (y) result in a remedial cost to Holdings or any of its Subsidiaries
in excess of $1,000,000, written notice of:
(i) any pending or threatened Environmental Claim against Holdings
or any of its Subsidiaries or any Program Affiliate or any Real Property
owned or operated by Holdings or any of its Subsidiaries or any Program
Affiliate;
(ii) any condition or occurrence on any Real Property at any time
owned or operated by Holdings or any of its Subsidiaries or any Program
Affiliate that (x) results in noncompliance by Holdings or any of its
Subsidiaries or any Program Affiliate with any applicable Environmental Law
or (y) could reasonably be anticipated to form the basis of an
Environmental Claim against Holdings or any of its Subsidiaries or any
Program Affiliate or any such Real Property;
(iii) any condition or occurrence on any Real Property owned or
operated by Holdings or any of its Subsidiaries that could reasonably be
anticipated to cause such Real Property to be subject to any restrictions
on the ownership, occupancy, use or transferability by Holdings or such
Subsidiary, as the case may be, of its interest in such Real Property under
any Environmental Law; and
(iv) the taking of any removal or remedial action in response to the
actual or alleged presence of any Hazardous Material on any Real Property
owned or operated by Holdings or any of its Subsidiaries or any Program
Affiliate.
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All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the
Borrower's response or proposed response thereto. In addition, Holdings agrees
to provide the Lenders with copies of all material communications by Holdings or
any of its Subsidiaries with any Person, government or governmental agency
relating to Environmental Laws or to any of the matters set forth in clauses
(i)-(iv) above, and such reasonably detailed reports relating to any of the
matters set forth in clauses (i)-(iv) above as may reasonably be requested by
the Administrative Agent or the Required Lenders.
(h) Annual Meetings with Lenders. At the written request of the
Administrative Agent, Holdings shall within 120 days after the close of each of
its fiscal years, hold a meeting (at a mutually agreeable location and time)
open to all of the Lenders at which meeting shall be reviewed the financial
results of the previous fiscal year and the financial condition of Holdings and
its Subsidiaries and the budgets presented for the current fiscal year of
Holdings and its Subsidiaries.
(i) Notice of Commitment Reductions and Mandatory Repayments. On or
prior to the date of any reduction to the Total Revolving Loan Commitment or
Total Term Loan Commitment or any mandatory repayment of outstanding Term Loans
pursuant to any of Sections 4.02(c) through (f), inclusive, Holdings shall
provide written notice of the amount of the respective reduction or repayment,
as the case may be, to the Total Revolving Loan Commitment, the Total Term Loan
Commitment or the outstanding Term Loans, as applicable, and the calculation
thereof (in reasonable detail).
(j) Special Reports Relating to Tractor Trailers. At the time of the
delivery of the financial statements provided for in Section 8.01(a) and (b), a
schedule of all of the Tractor Trailers owned or leased by the Borrower or any
of its Subsidiaries as of the fiscal quarter most recently ended, which schedule
shall specify (i) whether the respective Tractor Trailer is leased or owned by
the Borrower or such Subsidiary, (ii) the state or province in which the
respective Tractor Trailer is registered or titled, (iii) whether a security
interest has been recorded on the certificate of title for the respective
Tractor Trailer in favor of the Collateral Agent for the benefit of the Secured
Creditors, (iv) whether the certificate of title for the respective Tractor
Trailer (as modified to reflect the security interest in favor of the Collateral
Agent) has been reregistered with the appropriate state or provincial
governmental agency (and, if not, the date by which such reregistration must be
accomplished in accordance with the terms of the relevant Security Agreement),
(v) in the case of Tractor Trailers registered or operated in Canada, whether a
financing statement or hypothec registration has been filed, (vi) the date of
the acquisition of each new Tractor Trailer acquired on or after the Effective
Date, and (vii) each Tractor Trailer listed thereon acquired since the date of
the delivery of the previous schedule pursuant to this Section 8.01(j).
(k) Other Information. Promptly upon transmission thereof, copies of
any filings and registrations with, and reports to, the SEC by Holdings or any
of its Subsidiaries and copies of all financial statements, proxy statements,
notices and reports as Holdings or any of its Subsidiaries shall send generally
to analysts and the holders of their capital stock (including, in the case of
Holdings, Qualified Preferred Stock) or of the New Senior Subordinated Notes or,
on and after the issuance or incurrence thereof, any Permitted Debt in their
capacity as such holders
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(to the extent not theretofore delivered to the Lenders pursuant to this
Agreement) and, with reasonable promptness, such other information or documents
(financial or otherwise) as any Agent on its own behalf or on behalf of the
Required Lenders may reasonably request from time to time.
8.02 Books, Records and Inspections. Each Credit Agreement Party
will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries in conformity with GAAP and
all requirements of law shall be made of all dealings and transactions in
relation to its business and activities. Each Credit Agreement Party will, and
will cause each of its Subsidiaries to, permit, upon reasonable notice to the
chief financial officer or other Authorized Officer of such Credit Agreement
Party, officers and designated representatives of any Agent or the Required
Lenders to visit and inspect under the guidance of officers of such Credit
Agreement Party any of the properties or assets of such Credit Agreement Party
and any of its Subsidiaries in whomsoever's possession, and to examine the books
of account of such Credit Agreement Party and any of its Subsidiaries and
discuss the affairs, finances and accounts of such Credit Agreement Party and of
any of its Subsidiaries with, and be advised as to the same by, their officers
and independent accountants, all at such reasonable times and intervals and to
such reasonable extent as such Agent or the Required Lenders may desire,
provided that so long as no Default or Event of Default is then in existence,
the Credit Agreement Parties shall have the right to participate in any
discussions of the Agents or the Lenders with any independent accountants of the
Credit Agreement Parties.
8.03 Insurance. (a) Each Credit Agreement Party will, and will cause
each of its Subsidiaries to (i) maintain, with financially sound and reputable
insurance companies, insurance on all its property in at least such amounts and
against at least such risks as is consistent with that of other Companies of
substantially similar size and scope of operations in the same or substantially
similar businesses as Holdings and its Subsidiaries and (ii) furnish to the
Administrative Agent and each of the Lenders, upon request, full information as
to the insurance carried. Such insurance shall include physical damage insurance
on all real and personal property (whether now owned or hereafter acquired) on
an all risk basis and business interruption insurance. The provisions of this
Section 8.03 shall be deemed supplemental to, but not duplicative of, the
provisions of any Security Documents that require the maintenance of insurance.
(b) Each Credit Agreement Party will, and will cause each of its
Subsidiaries to, at all times keep the respective property of such Credit
Agreement Party and its Subsidiaries (except real or personal property leased or
financed through third parties in accordance with this Agreement) insured in
favor of the Collateral Agent, and all policies or certificates with respect to
such insurance (and any other insurance maintained by, or on behalf of, such
Credit Agreement Party or any Subsidiary of such Credit Agreement Party) (i)
shall be endorsed to the Collateral Agent's satisfaction for the benefit of the
Collateral Agent (including, without limitation, by naming the Collateral Agent
as certificate holder, mortgagee and loss payee with respect to real property,
certificate holder and loss payee with respect to personal property, additional
insured with respect to general liability and umbrella liability coverage and
certificate holder with respect to workers' compensation insurance), (ii) shall
state that such insurance policies shall not be cancelled or materially changed
without at least 30 days' prior written notice
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thereof by the respective insurer to the Collateral Agent and (iii) shall, upon
the request of the Collateral Agent, be deposited with the Collateral Agent.
(c) If any Credit Agreement Party or any of its Subsidiaries shall
fail to maintain all insurance in accordance with this Section 8.03, or if any
Credit Agreement Party or any of its Subsidiaries shall fail to so name the
Collateral Agent as an additional insured, mortgagee or loss payee, as the case
may be, or so deposit all certificates with respect thereto, the Administrative
Agent and/or the Collateral Agent shall have the right (but shall be under no
obligation) to procure such insurance, and the Credit Parties agree to jointly
and severally reimburse the Administrative Agent or the Collateral Agent, as the
case may be, for all costs and expenses of procuring such insurance.
8.04 Payment of Taxes. Each Credit Agreement Party will pay and
discharge, and will cause each of its Subsidiaries to pay and discharge, all
material taxes, assessments and governmental charges or levies imposed upon it
or upon its income or profits, or upon any material properties belonging to it,
prior to the date on which penalties attach thereto, and all material lawful
claims for sums that have become due and payable which, if unpaid, might become
a Lien not otherwise permitted under Section 9.03(a); provided, that neither any
Credit Agreement Party nor any of its Subsidiaries shall be required to pay any
such tax, assessment, charge, levy or claim which is being contested in good
faith and by proper proceedings if it has maintained adequate reserves with
respect thereto in accordance with GAAP.
8.05 Existence; Franchises. Each Credit Agreement Party will do, and
will cause each of its Subsidiaries to do, or cause to be done, all things
necessary to preserve and keep in full force and effect its existence and its
material rights, franchises, authority to do business, licenses and patents,
except for rights, franchises, authority to do business, licenses and patents
the loss of which (individually or in the aggregate) has not had (unless same
has ceased to exist), and could not reasonably be expected to have, a Material
Adverse Effect; provided, however, that any transaction permitted by Section
9.02 will not constitute a breach of this Section 8.05.
8.06 Compliance with Statutes; etc. Each Credit Agreement Party will,
and will cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except for such noncompliances as,
either individually or in the aggregate, have not had (unless same has ceased to
exist), and could not reasonably be expected to have, a Material Adverse Effect.
8.07 Compliance with Environmental Laws. (a) (i) Each Credit
Agreement Party will comply, and will cause each of its Subsidiaries to comply,
and will use commercially reasonable efforts to cause each Program Affiliate to
comply, in all material respects with all Environmental Laws applicable to their
businesses or the ownership or use of its Real Property now or hereafter owned
or operated by such Credit Agreement Party, any of its Subsidiaries or any
Program Affiliate, will promptly pay or, with respect to any of its
Subsidiaries, cause to be paid all costs and expenses incurred in connection
with such compliance, and will keep or cause to be kept all such Real Property
free and clear of any Liens imposed pursuant to such Environmental Laws and (ii)
neither any Credit Agreement Party nor any of its Subsidiaries will generate,
use, treat, store, Release or dispose of, or permit the generation, use,
treatment, storage,
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release or disposal of, Hazardous Materials on any Real Property owned or
operated by such Credit Agreement Party, any of its Subsidiaries or any Program
Affiliate other than in compliance with Environmental Laws and as required in
connection with the normal business operations of such Credit Agreement Party,
its Subsidiaries and the Program Affiliates, or transport or permit the
transportation of Hazardous Materials other than in compliance with
Environmental Laws and as required in connection with the normal business
operations of such Credit Agreement Party, its Subsidiaries and the Program
Affiliates, unless the failure to comply with the requirements specified in
clause (i) or (ii) above, either individually or in the aggregate, has not had,
and could not reasonably be expected to have, a Material Adverse Effect. If any
Credit Agreement Party or any of its Subsidiaries or any tenant or occupant of
any Real Property owned or operated by such Credit Agreement Party or any of its
Subsidiaries causes or permits any intentional or unintentional act or omission
resulting in the presence or Release of any Hazardous Material in a quantity or
concentration sufficient to require reporting or to trigger an obligation to
undertake clean-up, removal or remedial action under applicable Environmental
Laws, such Credit Agreement Party agrees to undertake, and/or to cause any of
its Subsidiaries, tenants or occupants to undertake, at their sole expense, any
clean up, removal, remedial or other action required pursuant to Environmental
Laws to remove and clean up any Hazardous Materials from any Real Property
except where the failure to do so has not had (unless same has ceased to exist),
and could not reasonably be expected to have, a Material Adverse Effect;
provided that neither any Credit Agreement Party nor any of its Subsidiaries
shall be required to undertake any clean up, removal, remedial or other action
while the requirement to undertake such clean up, removal, remedial or other
action is being contested in good faith and by proper proceedings so long as it
has maintained adequate reserves with respect to such clean up, removal, redial
or other action to the extent required in accordance with GAAP. Notwithstanding
any provision of this Section 8.07(a), no Credit Agreement Party shall be
required by this Section to exercise any degree of control over the operations
of any of its Subsidiaries or any Program Affiliate that could reasonably be
construed under applicable Environmental Law to make such Credit Agreement Party
liable for Environmental Claims arising from or causally related to the Real
Property or operations of such Subsidiary or Program Affiliate as an owner or an
operator or upon any other basis.
(b) At the written request of the Administrative Agent or the
Required Lenders, which request shall specify in reasonable detail the basis
therefor, at any time and from time to time, each Credit Agreement Party will
provide, at its sole cost and expense, an environmental site assessment report
concerning any Real Property now or hereafter owned or operated by such Credit
Agreement Party, any of its Subsidiaries or any Program Affiliate, prepared by
an environmental consulting firm approved by the Administrative Agent,
addressing the matters in clause (i), (ii) or (iii) below which gives rise to
such request (or, in the case of a request pursuant to following clause (i),
addressing such matter as may be requested by the Administrative Agent or the
Required Lenders) and estimating the reasonable range of the potential costs of
any removal, remedial or other corrective action in connection with any such
matter, provided that in no event shall such request be made unless (i) an Event
of Default has occurred and is continuing, (ii) the Lenders receive notice under
Section 8.01(g) for any event for which notice is required to be delivered for
any such Real Property or (iii) the Administrative Agent or the Required Lenders
reasonably believe that there was a breach of any representation, warranty or
covenant contained in Section 7.17 or 8.07(a), and provided further that, with
respect to any Real Property owned or operated by any Program Affiliate, a
Credit Agreement Party
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shall be required only to use commercially reasonable efforts to gain access to
such property for the purpose of providing the report. If any Credit Agreement
Party fails to provide the same within 60 days after such request was made, the
Administrative Agent may order the same, and each Credit Agreement Party shall
grant and hereby grants, to the Administrative Agent and the Lenders and their
agents access to such Real Property owned or operated by any Credit Agreement
Party or any of its Subsidiaries, and specifically grants the Administrative
Agent and the Lenders and their agents an irrevocable non-exclusive license,
subject to the rights of tenants, to undertake such an assessment, all at such
Credit Agreement Party's expense. Notwithstanding any provision of this Section
8.07(b), no Credit Agreement Party shall be required by this Section to
undertake any site assessment of any Real Property of any Subsidiary or Program
Affiliate if such activity could reasonably be construed to be a sufficient
exercise of control over such entity or Real Property to make any such Credit
Agreement Party liable for any Environmental Claims resulting from the presence
of Hazardous Materials on such Real Property.
8.08 ERISA. As soon as possible and, in any event, within ten
Business Days after Holdings or any Subsidiary of Holdings or any ERISA
Affiliate knows or has reason to know of the occurrence of any of the following,
Holdings will deliver to each of the Lenders, a certificate of the chief
financial officer of Holdings setting forth the full details as to such
occurrence and the action, if any, that Holdings, such Subsidiary or any ERISA
Affiliate is required or proposes to take, together with any notices required or
proposed to be given to or filed with or by Holdings, the Subsidiary, the ERISA
Affiliate, the PBGC or any other governmental agency, a Plan, a Plan
administrator, a Plan participant or, to the extent received by the Borrower,
Multiemployer Plan participant or the Multiemployer Plan or Multiemployer Plan
administrator with respect thereto: that a Reportable Event has occurred (except
to the extent that Holdings has previously delivered to the Lenders a
certificate and notices (if any) concerning such event pursuant to the next
clause hereof); that a contributing sponsor (as defined in Section 4001(a)(13)
of ERISA) of a Plan subject to Title IV of ERISA is subject to the advance
reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
..64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected
to occur within the following 30 days; that an accumulated funding deficiency,
within the meaning of Section 412 of the Code or Section 302 of ERISA, has been
incurred or an application has been made or is reasonably expected to be made
for a waiver or modification of the minimum funding standard (including any
required installment payments) or an extension of any amortization period under
Section 412 of the Code or Section 303 or 304 of ERISA with respect to a Plan;
that any contribution required to be made by Holdings, any Subsidiary of
Holdings or any ERISA Affiliate with respect to a Plan, a Multiemployer Plan or
Foreign Pension Plan has not been timely made unless the failure was de minimus
and was cured before notice is required under this Section; that a Plan or a
Multiemployer Plan has been or is reasonably expected to be terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA; that a
Plan has an Unfunded Current Liability; that proceedings have been or are
reasonably expected to be instituted to terminate or appoint a trustee to
administer a Plan or a Multiemployer Plan which is subject to Title IV of ERISA;
that a proceeding has been instituted against Holdings, any Subsidiary of
Holdings or any ERISA Affiliate pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Multiemployer Plan; that Holdings, any Subsidiary
of Holdings or any ERISA Affiliate will or is reasonably expected to incur any
liability (including any indirect, contingent, or secondary
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liability) to or on account of the termination of or withdrawal from a Plan or a
Multiemployer Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of
ERISA or with respect to a Plan under Section 401(a)(29), 4971 or 4980 of the
Code or with respect to a group health plan (as defined in Section 607(1) of
ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the Code; that
Holdings or any Subsidiary of Holdings will or is reasonably expected to incur
any liability (including any indirect, contingent, or secondary liability) with
respect to a Plan under Section 4975 of the Code or Section 409, 502 (i) or
502(1) of ERISA; or that Holdings or any Subsidiary of Holdings will or is
reasonably expected to incur any material liability pursuant to any employee
welfare benefit plan (as defined in Section 3(1) of ERISA) that provides
benefits to retired employees or other former employees (other than as required
by Section 601 of ERISA) or any Plan or any Foreign Pension Plan. Holdings will
deliver to each of the Lenders (i) at the request of any Lender on ten Business
Days' notice a complete copy of the annual report (on Internal Revenue Service
Form 5500-series) of each Plan (including, to the extent required, the related
financial and actuarial statements and opinions and other supporting statements,
certifications, schedules and information) required to be filed with the
Internal Revenue Service and (ii) copies of any records, documents or other
information that must be furnished to the PBGC with respect to any Plan pursuant
to Section 4010 of ERISA. In addition to any certificates or notices delivered
to the Lenders pursuant to the first sentence hereof, copies of any material
documents or other information required to be furnished to the PBGC, and any
material notices received by Holdings, any Subsidiary of Holdings or any ERISA
Affiliate with respect to any Plan, Multiemployer Plan or Foreign Pension Plan
shall be delivered to the Lenders no later than ten Business Days after the date
such documents and/or information has been furnished to the PBGC or such notice
has been received by Holdings, such Subsidiary or such ERISA Affiliate, as
applicable. If, at any time after the Initial Borrowing Date, Holdings, any
Subsidiary of Holdings or any ERISA Affiliate maintains, or contributes to (or
incurs an obligation to contribute to), a pension plan as defined in Section
3(2) of ERISA which is not set forth in Part A of Schedule V, as may be updated
from time to time, then Holdings shall deliver to the Lenders an updated Part A
of Schedule V as soon as possible and, in any event, within ten Business Days
after Holdings, such Subsidiary or such ERISA Affiliate maintains, or
contributes to (or incurs an obligation to contribute to), such pension plan.
Such updated Part A of Schedule V shall supersede and replace the existing Part
A of Schedule V. Holdings and each of its applicable Subsidiaries shall ensure
that all Foreign Pension Plans administered by it or into which it makes
payments obtains or retains (as applicable) registered status under and as
required by applicable law and is administered in a timely manner in all
respects in compliance with all applicable laws except where the failure to do
any of the foregoing has not had (unless same has ceased to exist), and could
not reasonably be expected to have a Material Adverse Effect.
8.09 Good Repair. Each Credit Agreement Party will, and will cause
each of its Subsidiaries to, ensure that its material properties and equipment
used in its business are kept in good repair, working order and condition,
ordinary wear and tear excepted, and that from time to time there are made in
such properties and equipment all needful and proper repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto, to
the extent and in the manner useful or customary for companies in similar
businesses.
8.10 End of Fiscal Years; Fiscal Quarters. Each Credit Agreement
Party will, for financial reporting purposes, cause (i) each of its, and each of
its Subsidiaries', fiscal years to end on December 31 of each calendar year and
(ii) each of its, and each of its Subsidiaries',
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fiscal quarters to end on March 31, June 30, September 30 and December 31 of
each calendar year.
8.11 Additional Security; Further Assurances. (a) Each Credit
Agreement Party will, and will cause each of its Wholly-Owned Domestic
Subsidiaries (and to the extent Section 8.12 is operative, each of its
Wholly-Owned Foreign Subsidiaries) to, grant to the Collateral Agent security
interests and mortgages in such assets and real property of such Credit
Agreement Party and its Wholly-Owned Domestic Subsidiaries as are not covered by
the original Security Documents (or if so covered, are not subject to valid and
enforceable perfected security interests, hypothecations or mortgages on the
terms specified in the immediately succeeding sentence), in each case to the
extent requested from time to time by the Administrative Agent or the Required
Lenders (collectively, the "Additional Security Documents"). All such security
interests and mortgages shall be granted pursuant to documentation reasonably
satisfactory in form and substance to the Collateral Agent and shall constitute
valid and enforceable perfected security interests, hypothecations and mortgages
superior to and prior to the rights of all third Persons and enforceable as
against third parties and subject to no other Liens except for Permitted Liens.
The Additional Security Documents or instruments related thereto shall have been
duly recorded or filed in such manner and in such places as are required by law
to establish, perfect, preserve and protect the Liens in favor of the Collateral
Agent required to be granted pursuant to the Additional Security Documents and
all taxes, fees and other charges payable in connection therewith shall have
been paid in full. Notwithstanding the foregoing, this Section 8.11(a) shall not
apply to (and Holdings and its Subsidiaries shall not be required to grant a
mortgage in) any Leasehold or any owned Real Property, the fair market value of
which (as determined in good faith by senior management of Holdings) is equal to
or less than $500,000.
(b) Each Credit Agreement Party will, and will cause each of its
Subsidiaries to, at the expense of such Credit Agreement Party, make, execute,
endorse, acknowledge, file and/or deliver to the Collateral Agent from time to
time such vouchers, invoices, schedules, confirmatory assignments, conveyances,
financing statements, transfer endorsements, powers of attorney, certificates,
real property surveys, reports and other assurances or instruments and take such
further steps relating to the Collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require (including, without
limitation, reregistering the certificate of title of any Tractor Trailer in any
state in which such Tractor Trailer primarily operates, to the extent the
Collateral Agent determines, in its reasonable discretion, that such action is
required to ensure the perfection or the enforceability as against third parties
of its security interest in such Collateral). Furthermore, each Credit Agreement
Party shall cause to be delivered to the Collateral Agent such opinions of
counsel, title insurance and other related documents as may be reasonably
requested by the Collateral Agent to assure itself that this Section 8.11 has
been complied with.
(c) Each Credit Agreement Party agrees that each action required
above by this Section 8.11 shall be completed as soon as possible, but in no
event later than 90 days after such action is either requested to be taken by
the Administrative Agent, the Collateral Agent or the Required Lenders or
required to be taken by the Credit Agreement Parties and their respective
Subsidiaries pursuant to the terms of this Section 8.11; provided that in no
event will any Credit Agreement Party or any of its Subsidiaries be required to
take any action, other than
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using its commercially reasonable efforts, to obtain consents from third parties
with respect to its compliance with this Section 8.11.
(d) In the event that the Administrative Agent or the Required
Lenders at any time after the Initial Borrowing Date determine in their sole
discretion (whether as a result of a position taken by an applicable bank
regulatory agency or official, or otherwise) that real estate appraisals
satisfying the requirements set forth in 12 C.F.R., Part 34-Subpart C, or any
successor or similar statute, rule, regulation, guideline or order (any such
appraisal a "Required Appraisal") are or were required to be obtained, or should
be obtained, in connection with any Mortgaged Property or Mortgaged Properties,
then, within 90 days after receiving written notice thereof from the
Administrative Agent or the Required Lenders, as the case may be, the Credit
Agreement Parties shall cause such Required Appraisal to be delivered, at the
expense of the Credit Agreement Parties, to the Administrative Agent, which
Required Appraisal, and the respective appraiser, shall be satisfactory to the
Administrative Agent.
8.12 Foreign Subsidiaries Security. If following a change in the
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for the
Borrower reasonably acceptable to the Administrative Agent does not within 30
days after a request from the Administrative Agent or the Required Lenders
deliver evidence, in form and substance mutually satisfactory to the
Administrative Agent and the Borrower, with respect to any Foreign Subsidiary
(and in the case of clause (i) below, any Foreign Unrestricted Subsidiary) of
the Borrower which has not already had all of its Equity Interests pledged
pursuant to the U.S. Pledge Agreement, the Quebec Pledge Agreement or the
Mexican Pledge Agreement, as applicable, to secure all of the Obligations (as
defined in the respective Pledge Agreement) that (i) a pledge of more than
66-2/3% of the total combined voting power of all classes of Equity Interests of
such Foreign Subsidiary (or Foreign Unrestricted Subsidiary) entitled to vote,
(ii) the entering into by such Foreign Subsidiary of a security agreement in
substantially the form of the Security Agreement, (iii) the entering into by
such Foreign Subsidiary of a pledge agreement in substantially the form of the
U.S. Pledge Agreement and (iv) the entering into by such Foreign Subsidiary of a
guaranty in substantially the form of the Subsidiaries Guaranty, in any such
case could reasonably be expected to cause (I) the undistributed earnings of
such Foreign Subsidiary (or Foreign Unrestricted Subsidiary) as determined for
Federal income tax purposes to be treated as a deemed dividend to such Foreign
Subsidiary's (or Foreign Unrestricted Subsidiary's) United States parent for
Federal income tax purposes or (II) other material adverse Federal income tax
consequences to the Credit Parties, then in the case of a failure to deliver the
evidence described in clause (i) above, that portion of such Foreign
Subsidiary's (or Foreign Unrestricted Subsidiary's, as the case may be)
outstanding Equity Interests so issued by such Foreign Subsidiary (or Foreign
Unrestricted Subsidiary, as the case may be), in each case not theretofore
pledged pursuant to a U.S. Pledge Agreement, the Quebec Pledge Agreement or the
Mexican Pledge Agreement, as applicable, to secure all of the Obligations (as
defined in the respective Pledge Agreement), shall be pledged to the Collateral
Agent for the benefit of the Secured Creditors pursuant to the U.S. Pledge
Agreement, the Quebec Pledge Agreement or the Mexican Pledge Agreement, as
applicable (or another pledge agreement in substantially similar form, if
needed), and in the case of a failure to deliver the evidence described in
clause (ii) or (iii) above, such Foreign Subsidiary (to the extent same is a
Wholly-Owned Foreign Subsidiary) shall execute and deliver the Security
Agreement (or another security agreement in substantially similar form, if
needed) or the U.S. Pledge
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Agreement (or another pledge agreement in substantially similar form, if
needed), as the case may be, granting to the Collateral Agent for the benefit of
the Secured Creditors a security interest in all of such Foreign Subsidiary's
assets or Equity Interests and promissory notes owned by such Foreign
Subsidiary, as the case may be, and securing the obligations of the Borrower
under the Credit Documents and under any Interest Rate Protection Agreement or
Other Hedging Agreement and, in the event the Subsidiaries Guaranty shall have
been executed by such Foreign Subsidiary, the obligations of such Foreign
Subsidiary thereunder, and in the case of a failure to deliver the evidence
described in clause (iv) above, such Foreign Subsidiary (to the extent same is a
Wholly-Owned Foreign Subsidiary) shall execute and deliver the Subsidiaries
Guaranty (or another guaranty in substantially similar form, if needed),
guaranteeing the obligations of the Borrower under the Credit Documents and
under any Interest Rate Protection Agreement or Other Hedging Agreement, in each
case to the extent that the entering into of such Security Agreement, the U.S.
Pledge Agreement or the Subsidiaries Guaranty (or substantially similar
document) is permitted by the laws of the respective foreign jurisdiction and
with all documents delivered pursuant to this Section 8.12 to be in form and
substance reasonably satisfactory to the Administrative Agent and/or the
Collateral Agent.
8.13 Performance of Obligations. Each Credit Agreement Party will,
and will cause each of its Subsidiaries to, perform all of its obligations under
the terms of each mortgage, deed of trust, indenture, loan agreement or credit
agreement and each other material agreement, contract or instrument by which it
is bound, except such non-performances as, individually or in the aggregate,
have not had (unless same has ceased to exist), and could not reasonably be
expected to have, a Material Adverse Effect.
8.14 Use of Proceeds. Holdings will, and will cause each of its
Subsidiaries to, use the proceeds of the Loans for the purposes specified in
Section 7.05.
8.15 Permitted Acquisitions. (a) Subject to the provisions of this
Section 8.15 and the requirements contained in the definition of Permitted
Acquisition, the Borrower and any of its Wholly-Owned Domestic Subsidiaries may
from time to time effect Permitted Acquisitions, so long as (in each case except
to the extent the Required Lenders otherwise specifically agree in writing in
the case of a specific Permitted Acquisition): (i) no Default or Event of
Default shall be in existence at the time of the consummation of the proposed
Permitted Acquisition or immediately after giving effect thereto; (ii) the
Borrower shall have given the Administrative Agent and the Lenders at least 5
Business Days' prior written notice of any Permitted Acquisition; (iii)
calculations are made by the Borrower of compliance with the covenants contained
in Sections 9.09 and 9.10 (in each case, giving effect to the last sentence
appearing therein) for the Calculation Period most recently ended prior to the
date of such Permitted Acquisition, on a Pro Forma Basis as if the respective
Permitted Acquisition (as well as all other Permitted Acquisitions theretofore
consummated after the first day of such Calculation Period) had occurred on the
first day of such Calculation Period, and such recalculations shall show that
such financial covenants would have been complied with if the Permitted
Acquisition had occurred on the first day of such Calculation Period (for this
purpose, if the first day of the respective Calculation Period occurs prior to
the Initial Borrowing Date, calculated as if the covenants contained in said
Sections 9.09 and 9.10 (in each case, giving effect to the last sentence
appearing therein) had been applicable from the first day of the Calculation
Period); (iv) based on good faith projections prepared by the Borrower for the
period
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from the date of the consummation of the Permitted Acquisition to the date which
is one year thereafter, the level of financial performance measured by the
covenants set forth in Sections 9.09 and 9.10 (in each case, giving effect to
the last sentence appearing therein) shall be better than or equal to such level
as would be required to provide that no Default or Event of Default would exist
under the financial covenants contained in Sections 9.09 and 9.10 (in each case,
giving effect to the last sentence appearing therein) through the date which is
one year from the date of the consummation of the respective Permitted
Acquisition; (v) the Maximum Permitted Consideration payable in connection with
the proposed Permitted Acquisition (exclusive of the aggregate liquidation
preference or fair market value, as applicable, of any Equity Interest issued by
Holdings as consideration in connection with such Permitted Acquisition) does
not exceed $20,000,000; (vi) all representations and warranties contained herein
and in the other Credit Documents shall be true and correct in all material
respects with the same effect as though such representations and warranties had
been made on and as of the date of such Permitted Acquisition (both before and
after giving effect thereto), unless stated to relate to a specific earlier
date, in which case such representations and warranties shall be true and
correct in all material respects as of such earlier date; (vii) the Borrower
provides to the Administrative Agent and the Lenders as soon as available but
not later than 5 Business Days after the execution thereof, a copy of any
executed purchase agreement or similar agreement with respect to such Permitted
Acquisition; (viii) after giving effect to such Permitted Acquisition and the
payment of all post-closing purchase price adjustments required (in the good
faith determination of the Borrower) in connection with such Permitted
Acquisition (and all other Permitted Acquisitions for which such purchase price
adjustments may be required to be made) and all capital expenditures (and the
financing thereof) reasonably anticipated by the Borrower to be made in the
business acquired pursuant to such Permitted Acquisition within the 90-day
period (such period for any Permitted Acquisition, a "Post-Closing Period")
following such Permitted Acquisition (and in the businesses acquired pursuant to
all other Permitted Acquisitions with Post-Closing Periods ended during the
Post-Closing Period of such Permitted Acquisition), the Total Unutilized
Revolving Loan Commitment shall equal or exceed $15,000,000; and (ix) the
Borrower shall have delivered to the Administrative Agent an officer's
certificate executed by an Authorized Officer of the Borrower, certifying to the
best of his knowledge, compliance with the requirements of preceding clauses (i)
through (viii), inclusive, and containing the calculations required by the
preceding clauses (iii), (iv), (v) and (viii), provided, however, that so long
as (x) the Maximum Permitted Consideration payable in connection with the
proposed Permitted Acquisition does not exceed $5,000,000 and (y) the Maximum
Permitted Consideration paid in connection with the proposed Permitted
Acquisition, when combined with the Maximum Permitted Consideration paid in
connection with all other Permitted Acquisitions consummated in the same fiscal
quarter as the proposed Permitted Acquisition, does not exceed $10,000,000, the
Borrower shall not be required to comply with clauses (ii) and (vii) above in
connection with such Permitted Acquisition and the officer's certificate
otherwise required to be delivered pursuant to clause (ix) above shall instead
be delivered to the Administrative Agent within 45 days following the end of the
fiscal quarter in which such Permitted Acquisition is consummated.
(b) At the time of each Permitted Acquisition involving the creation
or acquisition of a Subsidiary, or the acquisition of capital stock or other
Equity Interests of any Person, the capital stock or other Equity Interests
thereof created or acquired in connection with such Permitted Acquisition shall
be pledged for the benefit of the Secured Creditors pursuant to
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the relevant Pledge Agreement or other Security Document in accordance with the
requirements of Section 9.15.
(c) The Borrower shall cause each Subsidiary which is formed to
effect, or is acquired pursuant to, a Permitted Acquisition to comply with, and
to execute and deliver, all of the documentation required by, Sections 8.11 and
9.15, to the reasonable satisfaction of the Administrative Agent.
(d) The consummation of each Permitted Acquisition shall be deemed
to be a representation and warranty by the Borrower that the certifications by
the Borrower (or by one or more of its Authorized Officers) pursuant to Section
8.15(a) are true and correct and that all conditions thereto have been satisfied
and that same is permitted in accordance with the terms of this Agreement, which
representation and warranty shall be deemed to be a representation and warranty
for all purposes hereunder, including, without limitation, Sections 6 and 10.
8.16 Maintenance of Company Separateness. (a) Each Credit Agreement
Party will, and will cause each of its Subsidiaries and Unrestricted
Subsidiaries to, satisfy customary Company formalities, including, as
applicable, the holding of regular board of directors' and shareholders'
meetings or action by directors or shareholders without a meeting and the
maintenance of Company offices and records. Neither any Credit Agreement Party
nor any of its Subsidiaries shall make any payment to a creditor of any
Unrestricted Subsidiary in respect of any liability of any Unrestricted
Subsidiary, and no bank account of any Unrestricted Subsidiary shall be
commingled with any bank account of any Credit Agreement Party or any of its
Subsidiaries. Any financial statements distributed to any creditors of any
Unrestricted Subsidiary shall clearly establish or indicate the Company
separateness of such Unrestricted Subsidiary from each Credit Agreement Party
and its Subsidiaries. Finally, neither any Credit Agreement Party nor any of its
Subsidiaries shall take any action, or conduct its affairs in a manner, which is
likely to result in the Company existence of such Credit Agreement Party or any
of its Subsidiaries or Unrestricted Subsidiaries being ignored, or in the assets
and liabilities of the such Credit Agreement Party or any of its Subsidiaries
being substantively consolidated with those of any other such Person or any
Unrestricted Subsidiary in a bankruptcy, reorganization or other insolvency
proceeding.
(b) Neither Holdings nor any of its Subsidiaries shall take any
action, or conduct its affairs in a manner, which is likely to result in the
assets and liabilities of any Credit Party being substantively consolidated with
those of any Non-Guarantor Subsidiary in a bankruptcy, reorganization or other
insolvency proceeding. Holdings shall not permit any cash of any Non-Guarantor
Subsidiary and any Credit Party to be commingled in any bank account.
8.17 Existing Senior Notes Refinancing. (a) Within 10 days following
the Initial Borrowing Date, (i) the Borrower shall have mailed (or cause to be
mailed) an irrevocable notice of redemption (the "Borrower Irrevocable Notice of
Redemption") with respect to the Existing Senior Subordinated Secured Notes
pursuant to, and in accordance with the requirements of, the Existing Senior
Subordinated Secured Notes Documents, and (ii) Holdings shall have mailed (or
caused to be mailed) irrevocable notices of redemption (the "Holdings
Irrevocable Notices of Redemption" and, together with the Borrower Irrevocable
Notice of Redemption, the "Irrevocable Notices of Redemption") with respect to
each of (I) the Existing 2006 10% Senior
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Subordinated Notes pursuant to, and in accordance with the requirements of, the
Existing 2006 10% Senior Subordinated Notes Documents and (II) the Existing
Junior PIK Notes pursuant to, and in accordance with the requirements of, the
Existing Junior PIK Notes Documents; provided, however, that all Irrevocable
Notices of Redemption as referenced in clauses (i) and (ii) above shall, in each
case, be mailed on the same Business Day.
(b) On the later to occur of (x) December 15, 2003 and (y) the 30th
day following the date of the mailing of the Irrevocable Notices of Redemption
(such later date, the "Redemption Date"), Holdings and/or the Borrower, as
applicable, shall (x) redeem all of the Existing Senior Notes To Be Refinanced
pursuant to, and in accordance with the terms of, the call provisions of the
respective Existing Senior Notes Documents and (y) pay all accrued and unpaid
interest and related call premiums (such related call premiums not to exceed
$4.0 million) in respect of the Existing Senior Notes To Be Refinanced
(collectively, the "Existing Senior Notes Refinancing").
(c) With three Business Days following the Redemption Date, the
Administrative Agent shall have received evidence of the discharge of the
Existing Senior Notes To Be Refinanced (and all obligations under the indentures
governing the same) from the trustees for the Existing Senior Notes To Be
Refinanced, which evidence shall be in form and substance satisfactory to the
Administrative Agent.
8.18 Margin Regulations. Holdings will use its best efforts so that
at all times the fair market value of all Margin Stock owned by Holdings and its
Subsidiaries (other than capital stock of Holdings held in treasury) shall not
exceed $7,500,000. So long as fair market value of all Margin Stock at any time
owned by Holdings and its Subsidiaries (other than capital stock of Holdings
held in treasury) does not exceed $7,500,000, such Margin Stock will not
constitute Collateral and no security interest shall be granted therein pursuant
to any Credit Document, provided that if at any time the fair market value of
all Margin Stock owned by Holdings and its Subsidiaries (other than capital
stock of Holdings held in treasury) exceeds $7,500,000, then (x) all Margin
Stock owned by the Credit Parties (other than capital stock of Holdings held in
treasury) shall be pledged, and delivered for pledge, pursuant to the U.S.
Pledge Agreement and (y) Holdings will execute and deliver to the Lenders
appropriate completed forms (including, without limitation, Forms G-3 and U-1,
as appropriate) establishing compliance with Regulations T, U and X. If at any
time any Margin Stock is required to be pledged as a result of the provisions of
the immediately preceding sentence, repayments of outstanding Obligations shall
be required, and subsequent Credit Events shall be permitted, only in compliance
with the applicable provisions of Regulations T, U and X.
SECTION 9. Negative Covenants. Each Credit Agreement Party hereby
covenants and agrees that as of the Initial Borrowing Date and thereafter for so
long as this Agreement is in effect and until the Total Commitment has
terminated, no Letters of Credit or Notes are outstanding and the Loans,
together with interest, Fees and all other Obligations (other than any
indemnities described in Section 13.13 which are not then due and payable)
incurred hereunder, are paid in full:
9.01 Changes in Business. (a) Holdings will not, and will not permit
any of its Subsidiaries to, engage directly or indirectly in any business other
than a Permitted Business.
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(b) No Unrestricted Subsidiary shall engage (directly or indirectly)
in any business other than a Permitted Business.
(c) Notwithstanding the foregoing, Holdings will not own any
significant assets (other than its ownership of the capital stock of the
Borrower and certain contracts (and the related rights thereunder) which
Holdings is not otherwise permitted to transfer to the Borrower on the Initial
Borrowing Date without the consent of third parties) or have any material
liabilities (other than those liabilities for which it is responsible under this
Agreement, the other Documents to which it is a party, Shareholder Subordinated
Notes, Existing 2006 Floating Rate Senior Subordinated Notes and such other
liabilities which Holdings is expressly permitted to incur pursuant to the terms
of this Agreement (other than pursuant to preceding Section 9.01(a)) and the
other Credit Documents).
(d) Notwithstanding the foregoing or anything to the contrary
contained in this Agreement, Holdings will not permit MTL Investments to engage
in any significant business or to own any assets other than (x) cash contributed
to MTL Investments by the Borrower in accordance with provisions of Section 9.05
to the extent (and only to the extent) such cash is promptly loaned and/or
contributed as a common equity contribution by MTL Investments to Levy Transport
Lte., a Wholly-Owned Subsidiary of the Borrower, in accordance with the
requirements of Section 9.05 and (y) any intercompany note evidencing an
intercompany loan made as contemplated by preceding clause (x).
9.02 Consolidation; Merger; Sale or Purchase of Assets; etc. No
Credit Agreement Party will, nor will any Credit Agreement Party permit any of
its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into
any transaction of merger, amalgamation or consolidation, or convey, sell, lease
or otherwise dispose of all or any part of its property or assets (other than
inventory in the ordinary course of business), or enter into any sale-leaseback
transactions, or purchase or otherwise acquire (in one or a series of related
transactions) any part of the property or assets (other than purchases or other
acquisitions of inventory, materials, general intangibles, equipment, goods and
services in the ordinary course of business) of any Person or agree to do any of
the foregoing at any future time, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee, enter into
operating leases in the ordinary course of business with respect to real,
personal, movable or immovable property;
(b) Capital Expenditures by the Borrower and its Subsidiaries to the
extent not in violation of Section 9.11;
(c) Investments permitted pursuant to Section 9.05 and the
disposition or liquidation of Cash Equivalents in the ordinary course of
business;
(d) the Borrower and any of its Subsidiaries may sell or otherwise
dispose of assets (excluding capital stock of, or other equity interests
in, Subsidiaries, Joint Ventures, Unrestricted Subsidiaries and Tractor
Trailers) which, in the reasonable opinion of such Person, are obsolete,
uneconomic or no longer useful in the conduct of
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such Person's business, provided that except with respect to asset
dispositions or transfers arising out of, or in connection with, the events
described in clauses (i) and (ii) of the definition of Recovery Event, (w)
each such sale or disposition shall be for an amount at least equal to the
fair market value thereof (as determined in good faith by senior management
of Holdings), (x) to the extent that any such sale or disposition generates
Net Sale Proceeds equal to or greater than $1,500,000, each such sale or
disposition (I) results in consideration at least 75% of which (taking into
account the amount of cash, the principal amount of any promissory notes
and the fair market value, as determined by Holdings in good faith, of any
other consideration) shall be in the form of cash or (II) in the case of an
asset or assets subject to Capitalized Lease Obligations or other purchase
money obligations, results in the assumption of all of the Capitalized
Lease Obligations or other purchase money obligations of the Borrower or
such Subsidiary in respect of such asset by the purchaser thereof, (y) the
aggregate Net Sale Proceeds from all assets sold or otherwise disposed of
pursuant to this clause (d), when added to the aggregate amount of all
Capitalized Lease Obligations and all other purchase money obligations
assigned in connection with all assets sold or otherwise disposed of
pursuant to this clause (d), shall not exceed $8,000,000 in the aggregate
in any fiscal year of Holdings and (z) in the case of any sale or
disposition of an asset constituting an Asset Sale, the Net Sale Proceeds
therefrom are either applied to repay Term Loans (and/or reduce the Total
Term Loan Commitment, the Total Revolving Loan Commitment and/or the Total
PF Letter of Credit Commitment) as provided in Section 4.02(c) or
reinvested in replacement assets or retained to the extent permitted by
Section 4.02(c) and/or the other relevant provisions of this Agreement;
(e) Holdings or any Subsidiary of Holdings may convey, lease,
license, sell or otherwise transfer all or any part of its business,
properties and assets to the Borrower or to any Subsidiary Guarantor, so
long as any security interests granted to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Security Documents in the
assets so transferred shall remain in full force and effect and perfected
(to at least the same extent as in effect immediately prior to such
transfer) and all actions required to maintain said perfected status have
been taken;
(f) any Subsidiary of the Borrower may merge with and into, or be
dissolved or liquidated into, the Borrower or any Subsidiary Guarantor, so
long as (i) the Borrower or such Subsidiary Guarantor is the surviving
corporation of any such merger, dissolution or liquidation and (ii) any
security interests granted to the Collateral Agent for the benefit of the
Secured Creditors pursuant to the Security Documents in the assets of such
Subsidiary shall remain in full force and effect and perfected (to at least
the same extent as in effect immediately prior to such merger, dissolution
or liquidation) and all actions required to maintain said perfected status
have been taken;
(g) any Foreign Subsidiary of Holdings may be merged or amalgamated
with and into, or be dissolved or liquidated into, or transfer any of its
assets to, any Wholly-Owned Foreign Subsidiary of Holdings, so long as (i)
such Wholly-Owned Foreign Subsidiary of Holdings is the surviving
corporation of any such merger, amalgamation, dissolution or liquidation
and (ii) any security interests granted to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Security Documents in the
Equity
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Interests of such Wholly-Owned Foreign Subsidiary and such Foreign
Subsidiary shall remain in full force and effect and perfected and
enforceable (to at least the same extent as in effect immediately prior to
such merger, amalgamation, dissolution, liquidation or transfer) and all
actions required to maintain said perfected status have been taken;
(h) the Borrower and its Wholly-Owned Domestic Subsidiaries shall be
permitted to make Permitted Acquisitions, so long as such Permitted
Acquisitions are effected in accordance with the requirements of Section
8.15;
(i) the Borrower and its Subsidiaries may, in the ordinary course of
business, license, as licensor or licensee, patents, trademarks, copyrights
and know-how to or from third Persons or one another, so long as any such
license by the Borrower or any of its Subsidiaries in its capacity as
licensor is permitted to be assigned pursuant to the Security Agreement (to
the extent that a security interest in such patents, trademarks, copyrights
and know-how is granted thereunder) and does not otherwise prohibit the
granting of a Lien by the Borrower or any of its Subsidiaries pursuant to
the Security Agreement in the intellectual property covered by such
license;
(j) the Borrower and its Domestic Subsidiaries may transfer assets
to Wholly-Owned Foreign Subsidiaries, so long as (x) no Default or Event of
Default exists as the time of the respective transfer and (y) the aggregate
fair market value of all such assets so transferred (determined in good
faith by the Board of Directors or senior management of the Borrower) to
all such Foreign Subsidiaries on and after the Effective Date does not
exceed the sum of (i) $12,000,000 plus (ii) the aggregate fair market value
of all assets of Foreign Subsidiaries of the Borrower (as determined in
good faith by senior management of the Borrower) transferred by such
Foreign Subsidiaries to the Borrower and any Subsidiary Guarantor pursuant
to Section 9.02(e) after the Effective Date;
(k) the Borrower and any of its Subsidiaries may sell Tractor
Trailers (but not pursuant to Permitted Program Affiliate Transactions)
which, in the reasonable opinion of such Person, are, subject to the second
succeeding proviso, obsolete, uneconomic or no longer useful in the conduct
of such Person's business or otherwise require upgrading, provided that (i)
any such sale shall be for an amount at least equal to the fair market
value thereof (as determined in good faith by senior management of the
Borrower), (ii) such sale (x) results in consideration at least 80% of
which (taking into account the amount of cash, the principal amount of any
promissory notes and the fair market value, as determined by the Borrower
in good faith, of any other consideration) shall be in the form of cash or
(y) results in the assumption of all of the Capitalized Lease Obligations
of the Borrower or such Subsidiary in respect of such Tractor Trailer by
the purchaser thereof, (iii) the Net Sale Proceeds from, or the amount of
Capitalized Lease Obligations assigned in connection with, any such sale,
when added to the aggregate Net Sale Proceeds received from, and the
aggregate amount of all Capitalized Lease Obligations assigned in
connection with, all other Tractor Trailers sold pursuant to this clause
(k) after the Effective Date, shall not exceed $30,000,000 and (iv) any Net
Sale Proceeds from any such sale are applied to repay Term Loans (and/or
reduce the Total Term Loan Commitment, the Total Revolving Loan Commitment
and/or the Total PF Letter of Credit Commitment) as provided in Section
4.02(c) or reinvested in replacement assets or
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retained to the extent permitted by Section 4.02(c) and/or the other
relevant provisions of this Agreement; provided, however, that with respect
to sales of Tractor Trailers generating Net Sale Proceeds, which when
aggregated with the aggregate amount of Capitalized Lease Obligations
assigned in connection with such sales, do not exceed $10.0 million for all
such sales after the Effective Date, such Tractor Trailers shall not be
required to be obsolete, uneconomic or no longer useful in the conduct of
Holdings or such Subsidiary's business and shall not be subject to
subclause (ii)(x) above, so long as respective sale of Tractor Trailers is
to a Program Affiliate and the consideration for such sales consists solely
of cash and/or a promissory note pledged in the Collateral Agent pursuant
to the U.S. Pledge Agreement;
(l) the Borrower and any of its Subsidiaries may effect Tractor
Trailer Replacements, provided that (i) any disposition of a Tractor
Trailer pursuant to a Tractor Trailer Replacement shall be for an amount
(including any credits towards the purchase of a replacement Tractor
Trailer) at least equal to the fair market value thereof (as determined in
good faith by senior management of the Borrower) and (ii) the Net Sale
Proceeds from any such disposition are applied to repay Term Loans (and/or
reduce the Total Term Loan Commitment, the Total Revolving Loan Commitment
and/or the Total PF Letter of Credit Commitment) as provided in Section
4.02(c) or reinvested in replacement Tractor Trailers or retained to the
extent permitted by Section 4.02(c);
(m) the Borrower and its Subsidiaries may lease, as lessor, or
sublease, as sublessor, equipment, machinery or Real Property in the
ordinary course of business, so long as (x) such lease is for fair
consideration (determined in good faith by the board of directors or senior
management of Holdings) and (y) the security interests granted to the
Collateral Agent for the benefit of the Secured Creditors pursuant to the
Security Documents in the assets so leased shall remain in full force and
effect and perfected (to at least the same extent as in effect immediately
prior to such transfer) and all actions required to maintain said perfected
status have been taken;
(n) the Borrower and any of its Subsidiaries may sell or otherwise
dispose of the capital stock of, or other Equity Interests in, or all or
substantially all of the assets of, any of their respective Subsidiaries,
Unrestricted Subsidiaries and Joint Ventures which, in the reasonable
opinion of such Person, are uneconomic or no longer useful in the conduct
of such Person's business, provided that (v) in the case of a sale or other
disposition of the capital stock or other Equity Interests of any
Wholly-Owned Subsidiary of the Borrower, 100% of the capital stock or other
Equity Interests of such Subsidiary shall be so sold or disposed of, (w)
each such sale or disposition shall be for an amount at least equal to the
fair market value thereof (as determined in good faith by senior management
of the Borrower), (x) each such sale results in consideration at least 75%
of which (taking into account the amount of cash, the principal amount of
any promissory notes and the fair market value, as determined by the
Borrower in good faith, of any other consideration) shall be in the form of
cash, (y) the aggregate Net Sale Proceeds of all assets sold or otherwise
disposed of pursuant to this clause (n) after the Effective Date shall not
exceed $20,000,000 in the aggregate and (z) the Net Sale Proceeds therefrom
are either applied to repay Term Loans (and/or reduce the Total Term Loan
Commitment, the Total Revolving Loan Commitment and/or the Total PF Letter
of Credit
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Commitment) as provided in Section 4.02(c) or reinvested in replacement
assets or retained to the extent permitted by Section 4.02(c) and/or the
other relevant provisions of this Agreement;
(o) Holdings and its Subsidiaries may enter into agreements to
effect acquisitions and dispositions of stock or assets, so long as the
respective transaction is permitted pursuant to the provisions of this
Section 9.02; provided that Holdings and its Subsidiaries may enter into
agreements to effect acquisitions and dispositions of capital stock or
assets in transactions not permitted by the provisions of this Section 9.02
at the time the respective agreement is entered into, so long as in the
case of each such agreement, such agreement shall be expressly conditioned
upon obtaining the requisite consent of the Required Lenders under this
Agreement or the repayment of all Obligations hereunder as a condition
precedent to the consummation of the respective transaction and, if for any
reason the transaction is not consummated because of a failure to obtain
such consent, the aggregate liability of Holdings and its Subsidiaries
under any such agreement shall not exceed $5,000,000;
(p) the Borrower and any of its Subsidiaries may effect Permitted
Program Affiliate Transactions, so long as the Capitalized Lease
Obligations and recourse obligations of the Borrower and its Subsidiaries
arising under such Permitted Program Affiliate Transactions are permitted
by Section 9.04(l);
(q) the Borrower and any of its Subsidiaries may (x) purchase fuel,
insurance, tires and various other types of equipment and services related
to the trucking business on behalf of Program Affiliates and/or (y)
purchase fuel, insurance, tires and various other types of equipment and
services related to the trucking business and sell or otherwise transfer
the same to Program Affiliates, in each case in accordance with the past
practices of the Borrower or such Subsidiary, as in effect on the Effective
Date, so long as in any such case the Borrower or such Subsidiary deducts
the amount of such purchases from the weekly settlement or settlements paid
to such Program Affiliate pursuant to its Affiliate Billing Program; and
(r) the Borrower or any of its Subsidiaries may effect Permitted
Sale-Leaseback Transactions in accordance with the definition thereof;
provided that (x) the aggregate amount of all proceeds received by the
Borrower and its Subsidiaries from all Permitted Sale-Leaseback
Transactions consummated on and after the Effective Date shall not exceed
$25,000,000 and (y) the Net Sale Proceeds therefrom are applied to repay
Term Loans and/or reduce the Total Term Loan Commitment, Total Revolving
Loan Commitment and/or the Total PF Letter of Credit Commitment as provided
in Section 4.02(c) or reinvested in replacement assets or retained to the
extent permitted by Section 4.02(c).
To the extent the Required Lenders waive the provisions of this Section 9.02
with respect to the sale or other disposition of any Collateral, or any
Collateral is sold or otherwise disposed of as permitted by this Section 9.02,
such Collateral (unless transferred to the Borrower or a Subsidiary thereof)
shall (except as otherwise provided above) be sold or otherwise disposed of free
and clear of the Liens created by the Security Documents and the Administrative
Agent shall
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take such actions (including, without limitation, directing the Collateral Agent
to take such actions) as are appropriate in connection therewith.
9.03 Liens. No Credit Agreement Party will, nor will any Credit
Agreement Party permit any of its Subsidiaries to, create, incur, assume or
suffer to exist any Lien upon or with respect to any property or assets of any
kind (real or personal, tangible or intangible, movable or immovable) of such
Credit Agreement Party or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes with recourse to such
Credit Agreement Party or any of its Subsidiaries) or assign any right to
receive income, except for the following (collectively, the "Permitted Liens"):
(a) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been established
in accordance with GAAP;
(b) Liens in respect of property or assets of Holdings or any of its
Subsidiaries imposed by law which were incurred in the ordinary course of
business and which have not arisen to secure Indebtedness for borrowed
money, such as carriers', materialmen's, warehousemen's and mechanics'
Liens, statutory and common law landlord's Liens, and other similar Liens
arising in the ordinary course of business, and which either (x) do not in
the aggregate materially detract from the value of such property or assets
or materially impair the use thereof in the operation of the business of
Holdings or any of its Subsidiaries or (y) are being contested in good
faith by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or asset subject to such
Lien;
(c) Liens created by or pursuant to this Agreement and the Security
Documents (it being understood and agreed that from and after the Initial
Borrowing Date to and including the third Business Day following the
Redemption Date, the obligations relating to the Existing Senior
Subordinated Secured Notes Documents may be secured by Collateral (other
than Excluded Collateral) pursuant to the Security Documents, on a
"second-priority" basis to the Non-Existing Senior Subordinated Secured
Notes Obligations (as such type of obligations is defined in the Security
Documents));
(d) Liens in existence on the Initial Borrowing Date which are
listed, and the property subject thereto described, in Schedule IX, without
giving effect to any extensions or renewals thereof;
(e) Liens arising from judgments, decrees, awards or attachments in
circumstances not constituting an Event of Default under Section 10.09,
provided that the amount of cash and property (determined on a fair market
value basis) deposited or delivered to secure the respective judgment or
decree or subject to attachment shall not exceed $7,500,000 at any time;
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(f) Liens (other than any Lien imposed by ERISA) (w) incurred or
deposits made in the ordinary course of business in connection with general
insurance maintained by Holdings and its Subsidiaries, (x) incurred or
deposits made in the ordinary course of business of Holdings and its
Subsidiaries in connection with workers' compensation, unemployment
insurance and other types of social security, (y) to secure the performance
by Holdings and its Subsidiaries of tenders, statutory obligations (other
than excise taxes), surety, stay, customs and appeal bonds, statutory
bonds, bids, leases, government contracts, trade contracts, performance and
return of money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money) or (z) to secure the
performance by Holdings and its Subsidiaries of leases of Real Property, to
the extent incurred or made in the ordinary course of business consistent
with past practices, provided that the aggregate amount of deposits at any
time pursuant to sub-clauses (w), (y) and (z) above shall not exceed
$10,000,000 in the aggregate;
(g) licenses, sublicenses, leases or subleases granted to third
Persons in the ordinary course of business not interfering in any material
respect with the business of Holdings or any of its Subsidiaries;
(h) easements, rights-of-way, restrictions, minor defects or
irregularities in title, encroachments and other similar charges or
encumbrances, in each case not securing Indebtedness and not interfering in
any material respect with the ordinary conduct of the business of Holdings
or any of its Subsidiaries;
(i) Liens arising from precautionary UCC financing statements
regarding operating leases;
(j) Liens created pursuant to Capital Leases permitted pursuant to
Section 9.04(d), provided that (x) such Liens only serve to secure the
payment of Indebtedness arising under such Capitalized Lease Obligation
(and other Indebtedness permitted by Section 9.04(d) and incurred from the
same Person as such Indebtedness) and (y) the Lien encumbering the asset
giving rise to the Capitalized Lease Obligation does not encumber any other
asset of Holdings or any of its Subsidiaries (other than other assets
subject to Capitalized Lease Obligations and/or Indebtedness incurred
pursuant to Section 9.04(d), in each case owing to the same Person as such
Capitalized Lease Obligation);
(k) Permitted Encumbrances;
(l) Liens arising pursuant to purchase money mortgages or security
interests securing Indebtedness representing the purchase price (or
financing of the purchase price within 90 days after the respective
purchase) of assets acquired after the Effective Date, provided that (i)
any such Liens attach only to the assets so purchased, upgrades thereon
and, if the asset so purchased is an upgrade, the original asset itself
(and such other assets financed by the same financing source), (ii) the
Indebtedness (other than Indebtedness incurred from the same financing
source to purchase other assets and excluding Indebtedness representing
obligations to pay installation and delivery charges for the property so
purchased) secured by any such Lien does not exceed 100%, nor is less than
80%, of the lesser of the fair market value or the purchase price of the
property being
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purchased at the time of the incurrence of such Indebtedness and (iii) the
Indebtedness secured thereby is permitted to be incurred pursuant to
Section 9.04(d);
(m) Liens on property or assets acquired pursuant to a Permitted
Acquisition, or on property or assets of a Subsidiary of the Borrower in
existence at the time such Subsidiary is acquired pursuant to a Permitted
Acquisition, provided that (i) any Indebtedness that is secured by such
Liens is permitted to exist under Section 9.04(d), and (ii) such Liens are
not incurred in connection with, or in contemplation or anticipation of,
such Permitted Acquisition and do not attach to any other asset of Holdings
or any of its Subsidiaries;
(n) Liens arising out of consignment or similar arrangements for the
sale of goods entered into by the Borrower or any of its Subsidiaries in
the ordinary course of business;
(o) Liens on any interest of the Borrower or any of its Subsidiaries
in the equipment subject to a Permitted Program Affiliate Transaction
securing Capitalized Lease Obligations and recourse obligations of the
Borrower or such Subsidiary arising pursuant to a Permitted Program
Affiliate Transaction, to the extent such obligations are permitted under
Section 9.04(l); and
(p) additional Liens incurred by the Borrower and its Subsidiaries,
so long as the value of the property subject to such Liens, and the
Indebtedness and other obligations secured thereby, do not exceed
$4,500,000.
In connection with the granting of Liens of the type described in clauses (i),
(j), (l), (m), (o) and (p) of this Section 9.03 by the Borrower or any of its
Subsidiaries, the Administrative Agent and the Collateral Agent shall be
authorized, at the request of any Credit Party, to take any actions deemed
appropriate by it in connection therewith (including, without limitation, by
executing appropriate lien releases or lien subordination agreements in favor of
the holder or holders of such Liens, in either case solely with respect to the
assets subject to such Liens).
9.04 Indebtedness. No Credit Agreement Party will, nor will any
Credit Agreement Party permit any of its Subsidiaries to, contract, create,
incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(b) Scheduled Existing Indebtedness outstanding on the Initial
Borrowing Date and listed on Schedule IV (as reduced by any repayments
thereof before, on or after the Initial Borrowing Date), without giving
effect to any subsequent extension, renewal or refinancing thereof;
(c) Indebtedness of the Borrower under (i) Interest Rate Protection
Agreements entered into to protect the Borrower against fluctuations in
interest rates in respect of Indebtedness otherwise permitted under this
Agreement or (ii) Other Hedging Agreements providing protection against
fluctuations in currency values in connection
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with the Borrower's or any of its Subsidiaries' operations, so long as
management of the Borrower or such Subsidiary, as the case may be, has
determined that the entering into of any such Other Hedging Agreement is a
bona fide hedging activity (and is not for speculative purposes) and is in
the ordinary course of business and consistent with its past practices;
(d) (x) Indebtedness of a Subsidiary acquired pursuant to a
Permitted Acquisition (or Indebtedness assumed by the Borrower or any
Wholly-Owned Domestic Subsidiary pursuant to a Permitted Acquisition as a
result of a merger or consolidation or the acquisition of an asset securing
such Indebtedness) (the "Permitted Acquired Debt"), so long as (i) such
Indebtedness was not incurred in connection with, or in anticipation or
contemplation of, such Permitted Acquisition and (ii) such Indebtedness
does not constitute debt for borrowed money (except to the extent such
Indebtedness cannot be repaid in accordance with its terms at the time of
its assumption pursuant to such Permitted Acquisition (without the payment
of a penalty or premium)), it being understood and agreed that Capitalized
Lease Obligations and purchase money Indebtedness shall not constitute debt
for borrowed money for purposes of this clause (ii) and (y) Capitalized
Lease Obligations and Indebtedness of the Borrower and its Subsidiaries
representing purchase money Indebtedness secured by Liens permitted
pursuant to Section 9.03(l), provided, that the sum of (I) the aggregate
principal amount of all Permitted Acquired Debt at any time outstanding
plus (II) the aggregate amount of Capitalized Lease Obligations incurred on
and after the Initial Borrowing Date and outstanding at any time (including
Indebtedness evidenced by Capitalized Lease Obligations arising from
Permitted Sale-Leaseback Transactions) plus (III) the aggregate principal
amount of all such purchase money Indebtedness incurred on and after the
Initial Borrowing Date and outstanding at any time, shall not exceed
$15,000,000;
(e) Indebtedness (x) constituting Intercompany Loans to the extent
permitted by Section 9.05(f) and (y) constituting intercompany loans made
by the Borrower to Holdings, to the extent permitted by Section 9.05(q);
(f) Permitted Subordinated Refinancing Indebtedness, so long as no
Default or Event of Default is in existence at the time of any incurrence
thereof and immediately after giving effect thereto;
(g) unsecured Indebtedness of Holdings, the Borrower and the
Subsidiary Guarantors incurred under the New Senior Subordinated Notes and
the other Senior Subordinated Notes Documents in an aggregate principal
amount not to exceed $[125,000,000]/8/ less the amount of any repayments of
principal thereof after the Initial Borrowing Date;
(h) Indebtedness of Holdings or any of its Subsidiaries which may be
deemed to exist in connection with agreements providing for
indemnification, purchase price
----------
/8/ To be finalized on Initial Borrowing Date.
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adjustments and similar obligations in connection with acquisitions or
sales of assets and/or businesses effected in accordance with the
requirements of this Agreement (so long as any such obligations are those
of the Person making the respective acquisition or sale, and are not
guaranteed by any other Person);
(i) Contingent Obligations of (x) Holdings or any of its
Subsidiaries as a guarantor of the lessee under any lease pursuant to which
Holdings or any of its Wholly-Owned Subsidiaries is the lessee so long as
such lease is otherwise permitted hereunder, (y) Holdings or any of its
Subsidiaries as a guarantor of any Capitalized Lease Obligation to which a
Joint Venture or Unrestricted Subsidiary is a party or any contract entered
into by such Joint Venture or Unrestricted Subsidiary in the ordinary
course of business; provided that the maximum liability of Holdings or any
of its Subsidiaries in respect of any obligations as described pursuant to
preceding clause (y) is permitted as an Investment on such date pursuant to
the requirements of Section 9.05(k) and (z) the Borrower which may be
deemed to exist pursuant to acquisition agreements entered into in
connection with Permitted Acquisitions (including any obligation to pay the
purchase price therefor and any indemnification, purchase price adjustment
and similar obligations);
(j) Indebtedness with respect to performance bonds, surety bonds,
appeal bonds or customs bonds required in the ordinary course of business
or in connection with the enforcement of rights or claims of Holdings or
any of its Subsidiaries or in connection with judgments that do not result
in a Default or an Event of Default, provided that the aggregate
outstanding amount of all such performance bonds, surety bonds, appeal
bonds and customs bonds permitted by this subsection (j) shall not at any
time exceed $3,000,000;
(k) Indebtedness of Holdings under the Shareholder Subordinated
Notes issued after the Effective Date in connection with a redemption or
repurchase of Holdings Common Stock pursuant to Section 9.06(ii);
(l) Indebtedness consisting of (x) the recourse obligations of
Holdings and its Subsidiaries to financial institutions in connection with
Permitted Program Affiliate Transactions for lease obligations owing to
such financial institutions by Program Affiliates and (y) Capitalized Lease
Obligations of Holdings and its Subsidiaries arising under such Permitted
Program Affiliate Transactions, so long as the aggregate amount of such
recourse obligations and Capitalized Lease Obligations do not exceed
$20,000,000 at any time outstanding;
(m) unsecured Indebtedness of the Borrower and Holdings incurred in
connection with a Permitted Insurance Program and owing to an Approved
Insurance FinanceCo in an aggregate amount not to exceed $20,000,000 less
the amount of any premium payments made by the Borrower and Holdings to
such Approved Insurance FinanceCo;
(n) (x) Permitted Subordinated Indebtedness incurred in accordance
with the requirements of the definition thereof and (y) additional
unsecured Indebtedness of the
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Borrower and its Subsidiaries not otherwise permitted pursuant to this
Section 9.04, so long as the aggregate principal amount of all Indebtedness
permitted by this clause (n), when added to the aggregate liquidation
preference for all Disqualified Preferred Stock issued after the Initial
Borrowing Date pursuant to Section 9.13(c), does not exceed $25,000,000 at
any time outstanding;
(o) Indebtedness of Holdings or any of its Subsidiaries (i) arising
in connection with the third-party financing of insurance premiums in the
ordinary course of business or (ii) consisting of take-or-pay obligations
contained in supply arrangements entered into in the ordinary course of
business and on a basis consistent with past practices (for such purpose,
taking account of the amount of such take-or-pay obligations of Holdings
and its Subsidiaries outstanding during the five year period prior to the
Initial Borrowing Date), so long as the aggregate amount of all such
Indebtedness incurred pursuant to this clause (o) does not exceed
$5,000,000 at any time outstanding;
(p) unsecured Indebtedness of Holdings under the Existing 2006
Floating Rate Senior Subordinated Notes and the other Existing 2006
Floating Rate Senior Subordinated Notes Documents in an aggregate principal
amount not to exceed $7,500,000 less the amount of any repayments or
principal thereof after the Initial Borrowing Date; and
(q) prior to the Redemption Date, Indebtedness of Holdings and its
Subsidiaries under the Existing Senior Notes To Be Refinanced and the other
related Existing 2006 Senior Notes Documents in an aggregate principal
amount not to exceed $95,000,000 less the amount of any repayments of
principal thereof after the Initial Borrowing Date.
9.05 Advances; Investments; Loans. No Credit Agreement Party will,
nor will any Credit Agreement Party permit any of its Subsidiaries to, lend
money or extend credit or make advances to any Person, or purchase or acquire
any stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any other Person, or purchase or own a futures contract
or otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any
cash or Cash Equivalents (any of the foregoing, an "Investment"), except:
(a) Holdings and its Subsidiaries may invest in cash and Cash
Equivalents, provided that during any time that Revolving Loans or
Swingline Loans are outstanding, the aggregate amount of cash and Cash
Equivalents held by Holdings and its Subsidiaries shall not exceed
$5,000,000 for any period of five consecutive Business Days;
(b) the Borrower and its Subsidiaries may acquire and hold
receivables owing to it, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade
terms (including the dating of receivables) of the Borrower or such
Subsidiary;
(c) the Borrower and its Subsidiaries may acquire and own
investments (including debt obligations and equity securities) received in
connection with the
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bankruptcy or reorganization of suppliers and customers and in settlement
of delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(d) Interest Rate Protection Agreements and Other Hedging Agreements
entered into in compliance with Section 9.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial
Borrowing Date and listed on Schedule VI shall be permitted, without giving
effect to any additions thereto or replacements thereof, it being
understood that any additional Investments made with respect to such
existing Investments shall be permitted only if independently justified
under the other provisions of this Section 9.05;
(f) (I) any Credit Party (other than Holdings) may make intercompany
loans and advances to any other Credit Party (other than Holdings), (II)
any Credit Party (other than Holdings) may make intercompany loans and
advances to any Wholly-Owned Foreign Subsidiary of Holdings and (III) any
Foreign Subsidiary of Holdings may make intercompany loans and advances to
any Credit Party (other than Holdings) (such intercompany loans and
advances referred to in preceding clauses (I) through (III), collectively,
the "Intercompany Loans"), provided, that (w) at no time shall the
aggregate outstanding principal amount of all Intercompany Loans made
pursuant to this clause (f) by the Credit Parties to Foreign Subsidiaries,
when added to the amount of contributions, capitalizations and
forgivenesses theretofore made pursuant to Section 9.05(o), exceed
$7,500,000 (determined without regard to any write-downs or write-offs of
such loans and advances), (x) each Intercompany Loan shall be evidenced by
an Intercompany Note, (y) each such Intercompany Note shall be pledged to
the Collateral Agent pursuant to the U.S. Pledge Agreement and (z) each
Intercompany Loan made by any Foreign Subsidiary of Holdings to a Credit
Party shall be subject to subordination as, and to the extent required by,
the Intercompany Subordination Agreement;
(g) loans and advances by Holdings and its Subsidiaries to employees
of Holdings and its Subsidiaries in connection with relocations, purchases
by such employees of Holdings Common Stock or options or similar rights to
purchase Holdings Common Stock and other ordinary course of business
purposes (including travel and entertainment expenses) shall be permitted,
so long as the aggregate principal amount thereof at any time outstanding
(determined without regard to any write-downs or write-offs of such loans
and advances) shall not exceed $5,000,000;
(h) Holdings may acquire and hold obligations of one or more
officers or other employees of Holdings or its Subsidiaries in connection
with such officers' or employees' acquisition of shares of Holdings Common
Stock, so long as no cash is actually advanced by Holdings or any of its
Subsidiaries to such officers or employees in connection with the
acquisition of any such obligations;
(i) the Borrower and any of its Wholly-Owned Domestic Subsidiaries
may make Permitted Acquisitions in accordance with the relevant
requirements of Section 8.15 and the component definitions as used therein;
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(j) Holdings and its Subsidiaries may own the capital stock of their
respective Subsidiaries created or acquired in accordance with the terms of
this Agreement (so long as all amounts invested in such Subsidiaries are
independently justified under another provision of this Section 9.05);
(k) so long as no Default or Event of Default exists or would exist
immediately after giving effect to the respective Investment, the Borrower
and its Wholly-Owned Domestic Subsidiaries shall be permitted to make
Investments in (x) any Joint Venture on any date in an amount not to exceed
the Available Basket Amount on such date and (y) any Unrestricted
Subsidiary on any date in an amount not to exceed the Available Basket
Sub-Limit on such date (after giving effect to all prior and
contemporaneous adjustments thereto, except as a result of such
Investment), it being understood and agreed that (i) any such Investment
may be in the form of a contribution of a Tractor Trailer or Tractor
Trailers to such Joint Venture or Unrestricted Subsidiary and (ii) to the
extent the Borrower or one or more other Credit Parties (after the
respective Investment has been made) receives a cash return from the
respective Joint Venture or Unrestricted Subsidiary of amounts previously
invested pursuant to this clause (k) (which cash return may be made by way
of repayment of principal in the case of loans and cash equity returns
(whether as a distribution, dividend or redemption) in the case of equity
investments) or a return in the form of an asset distribution from the
respective Joint Venture or Unrestricted Subsidiary of any asset previously
contributed pursuant to this clause (k), then the amount of such cash
return of investment or the fair market value of such distributed asset (as
determined in good faith by senior management of the Borrower), as the case
may be, shall, upon the Administrative Agent's receipt of a certification
of the amount of the return of investment from an Authorized Officer, apply
to increase the Available Basket Amount and/or the Available Basket
Sub-Limit, as applicable, provided that the aggregate amount of increases
to the Available Basket Amount and/or the Available Basket Sub-Limit
described above shall not exceed the amount of returned investment and, in
no event, shall the amount of the increases made to the Available Basket
Amount and/or the Available Basket Sub-Limit in respect of any Investment
exceed the amount previously invested pursuant to this clause (k);
(l) the Borrower and its Subsidiaries may receive and hold
promissory notes and other non-cash consideration received in connection
with any asset sale permitted by Sections 9.02(d), (k), (l) and (n);
(m) the Borrower and its Subsidiaries may convey, lease, license,
sell or otherwise transfer or acquire assets and properties to the extent
permitted by Sections 9.02(e), (f), (g), (j), (m), (p), (q) and (r);
(n) the Borrower and its Subsidiaries may make (i) advances in the
form of a prepayment of expenses, so long as such expenses were incurred in
the ordinary course of business and are being paid in accordance with
customary trade terms of the Borrower or such Subsidiary and (ii) extend
credit to Program Affiliates in connection with purchases on behalf of
Program Affiliates to the extent permitted by Section 9.02(q);
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(o) the Borrower and its Domestic Subsidiaries may make cash capital
contributions to Wholly-Owned Foreign Subsidiaries, and may capitalize or
forgive any Indebtedness owed to them by a Wholly-Owned Foreign Subsidiary
and outstanding under clause (f) of this Section 9.05, provided that the
aggregate amount of such contributions, capitalizations and forgiveness on
and after the Initial Borrowing Date, when added to the aggregate
outstanding principal amount of Intercompany Loans made to Wholly-Owned
Foreign Subsidiaries under such clause (f) (determined without regard to
any write-downs or write-offs thereof) shall not exceed an amount equal to
$7,500,000;
(p) (i) Holdings may make cash equity contribution to the Borrower,
(ii) the Borrower and any Subsidiary Guarantor may make cash equity
contributions to any Subsidiary Guarantor which is a direct Wholly-Owned
Subsidiary of the Person making such contribution and (iii) any Subsidiary
Guarantor may make non-cash equity contributions to any Subsidiary
Guarantor which is a direct Wholly-Owned Subsidiary of the Subsidiary
Guarantor making such contribution, so long as any security interest
granted to the Collateral Agent for the benefit of the Secured Creditors
pursuant to the Security Documents in any assets so contributed shall
remain in full force and effect and perfected (to at least the same extent
as in effect immediately prior to such contribution) and all actions
required to maintain said perfected status have been taken;
(q) (i) the Borrower may make intercompany loans to Holdings on the
Redemption Date, so long as (x) Holdings shall have utilized the full
amount of the proceeds of such intercompany loan on such date to pay
accrued interest, principal and related premiums of or on the Existing 2006
10% Senior Subordinated Notes and the Existing Junior PIK Notes pursuant to
the Existing Senior Notes Refinancing and (y) any such intercompany loan is
evidenced by an Intercompany Note pledged to the Collateral Agent pursuant
to the U.S. Pledge Agreement (it being understood that this subclause (i)
shall be alternative to, but duplicative of, the Borrower's right to
Dividend cash to Holdings on the Redemption Date for such purposes pursuant
to Section 9.06(xii)) and (ii) the Borrower may make intercompany loans to
Holdings in such amount as may be required to enable Holdings to effect
Dividends permitted pursuant to Sections 9.06(xiii), (xiv) and (xv), so
long as (x) Holdings shall have utilized the full amount of the proceeds of
such intercompany loan to effect such Dividends in accordance with the
requirements of Section 9.06(xiii), (xiv) or (xv), as the case may be, and
(y) any such intercompany loan shall be evidenced by an Intercompany Note
pledged to the Collateral Agent pursuant to the U.S. Pledge Agreement (it
being understood that this subclause (ii) shall be alternative to, but not
duplicative of, the Borrower's right to Dividend cash to Holdings for such
purposes as set forth in Section 9.06(xvi)); and
(r) in addition to investments permitted by clauses (a) through (q)
of this Section 9.05, the Borrower and its Subsidiaries may make additional
loans, advances and other Investments to or in a Person in an aggregate
amount for all loans, advances and other Investments made pursuant to this
clause (r) (determined without regard to any write-downs or write-offs
thereof), net of cash repayments of principal in the case of loans, sale
proceeds in the case of Investments in the form of debt instruments and
cash
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equity returns (whether as a distribution, dividend, redemption or sale) in
the case of equity investments, not to exceed $25,000,000 at any time
outstanding.
9.06 Dividends; etc. No Credit Agreement Party will, nor will any
Credit Agreement Party permit any of its Subsidiaries to, declare or pay any
dividends or return any capital to, its stockholders or other equityholders or
authorize or make any other distribution, payment or delivery of property or
cash to its stockholders or other equityholders as such, or redeem, retire,
purchase or otherwise acquire, directly or indirectly, for a consideration, any
shares of any class of its Equity Interests, now or hereafter outstanding (or
any warrants for or options or stock appreciation rights in respect of any of
such shares), or set aside any funds for any of the foregoing purposes, and no
Credit Agreement Party will permit any of its Subsidiaries to purchase or
otherwise acquire for consideration any shares of any class of the Equity
Interests of such Credit Agreement Party or any other Subsidiary, as the case
may be, now or hereafter outstanding (or any options or warrants or stock
appreciation rights issued by such Person with respect to its Equity Interests)
(all of the foregoing, except to the extent (in any such case) paid by such
Person to its shareholders with the common stock of such Person, collectively,
"Dividends"), except that:
(i) any Subsidiary of the Borrower may pay Dividends to the
Borrower or any Subsidiary Guarantor;
(ii) Holdings may redeem or purchase shares of Holdings Common Stock
or options to purchase Holdings Common Stock, as the case may be, held by
former employees of Holdings or any of its Subsidiaries following the
termination of their employment (by death, disability or otherwise),
provided that (x) the only consideration paid by Holdings in respect of
such redemptions and/or purchases shall be cash, forgiveness of liabilities
and/or Shareholder Subordinated Notes, (y) the sum of (A) the aggregate
amount paid by Holdings in cash in respect of all such redemptions and/or
purchases plus (B) the aggregate amount of liabilities so forgiven plus (C)
the aggregate amount of all cash principal and interest payments made on
Shareholder Subordinated Notes, in each case after the Initial Borrowing
Date, shall not exceed $5,000,000, and (z) at the time of any cash payment
or forgiveness of liabilities permitted to be made pursuant to this Section
9.06(ii), including any cash payment under a Shareholder Subordinated Note,
no Default or Event of Default shall then exist or result therefrom;
(iii) so long as no Default or Event of Default then exists or would
exist immediately after giving effect thereto, the Borrower may pay cash
Dividends to Holdings, so long as the cash proceeds thereof are promptly
used by Holdings for the purposes described in clause (ii) of this Section
9.06;
(iv) Holdings may pay regularly accruing Dividends with respect to
Qualified Preferred Stock through (x) an increase in the aggregate
liquidation preference of the shares of Qualified Preferred Stock in
respect of which Dividends have accrued (but not in cash) or (y) the
issuance of additional shares of Qualified Preferred Stock (but not in
cash) in accordance with the terms thereof;
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(v) any Subsidiary of the Borrower that is not a Wholly-Owned
Subsidiary of the Borrower may pay cash Dividends to its shareholders or
partners generally, so long as the Borrower or its respective Subsidiary
which owns the Equity Interest or Equity Interests in the Subsidiary paying
such Dividends receives at least its proportionate share thereof (based
upon its relative holdings of Equity Interests in the Subsidiary paying
such Dividends and taking into account the relative preferences, if any, of
the various classes of Equity Interests in such Subsidiary or the terms of
any agreements applicable thereto);
(vi) the Borrower may pay cash Dividends to Holdings, so long as the
proceeds thereof are promptly used by Holdings to pay operating expenses
incurred by it in the ordinary course of business that are not prohibited
by the terms of this Agreement or any other Credit Document;
(vii) the Borrower may pay cash Dividends to Holdings in the amounts
and at the times of any payment by Holdings in respect of taxes, provided
that (x) the amount of cash Dividends paid pursuant to this clause (vii) to
enable Holdings to pay Federal and state income taxes at any time shall not
exceed the amount of such Federal and state income taxes actually owing by
Holdings at such time for the respective period and (y) any refunds
received by Holdings shall promptly be returned by Holdings to the
Borrower;
(viii) the Borrower may pay cash Dividends to Holdings, which in turn
shall utilize the full amount of such cash Dividends for the purpose of
paying (and so long as Holdings, by the second succeeding Business Day,
utilizes the full amount of such cash Dividends to pay) cash interest and
principal as and when due on Shareholder Subordinated Notes then
outstanding to the extent the respective payment is expressly permitted
pursuant to the proviso to clause (ii) of Section 9.06, provided that (x)
the amount of cash Dividends payable by the Borrower pursuant to this
clause (viii) shall not exceed the amounts expressly permitted to be paid
pursuant to the proviso to clause (ii) of Section 9.06 and (y) no such
Dividend shall be paid at any time following the occurrence and during the
continuance of any Default or Event of Default or if a Default or Event of
Default would exist immediately after giving effect to the payment of such
Dividend;
(ix) the Borrower may pay cash Dividends to Holdings, which in turn
shall utilize the full amount of such cash Dividends for the purpose of
paying (and so long as Holdings, by the second succeeding Business Day,
utilizes the full amount of such cash Dividends to pay) cash interest and
principal as and when due on Permitted Subordinated Indebtedness then
outstanding, provided that (x) the amount of cash Dividends payable by the
Borrower pursuant to this clause (ix) shall not exceed the amounts
necessary to pay the cash interest and principal owing with respect to
Permitted Subordinated Indebtedness, as the case may be, and (y) no such
Dividend shall be paid at any time following the occurrence and during the
continuance of any Default or Event of Default or if a Default or Event of
Default would exist immediately after giving effect to the payment of such
Dividend;
(x) the Borrower may pay cash Dividends to Holdings, which in turn
shall utilize the full amount of such cash Dividends for the purpose of
paying (and so long as
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Holdings, by the second succeeding Business Day, utilizes the full amount
of such cash Dividends to pay) regularly scheduled cash interest as and
when due on the Existing 2006 Floating Rate Senior Subordinated Notes then
outstanding and/or principal of the Existing 2006 Floating Rate Senior
Subordinated Notes upon the final stated maturity thereof, provided that
(x) the amount of cash Dividends payable by the Borrower pursuant to this
clause (x) shall not exceed the amounts necessary to pay the cash interest
and/or principal owing with respect to the Existing 2006 Floating Rate
Senior Subordinated Notes and (y) no such Dividend shall be paid at any
time following the occurrence and during the continuance of any Default or
Event of Default or if a Default or Event of Default would exist
immediately after giving effect to the payment of such Dividend;
(xi) the Borrower may pay cash Dividends to Holdings, which in turn
shall utilize the full amount of such cash Dividends for the purpose of
repurchasing or redeeming (and so long as Holdings, by the second
succeeding Business Day, utilizes the full amount of such cash Dividends to
repurchase or redeem) Existing 2006 Floating Rate Senior Subordinated Notes
to the extent the respective repurchase or redemption is expressly
permitted pursuant to clause (u) of the proviso to clause (ii) of Section
9.12, provided that (x) the amount of cash Dividends payable by the
Borrower pursuant to this clause (xi) shall not exceed the amounts
expressly permitted to be paid pursuant to clause (u) of the proviso to
clause (ii) of Section 9.12 and (y) no such Dividend shall be paid at any
time following the occurrence and during the continuance of any Default or
Event of Default or if a Default or Event of Default would exist
immediately after giving effect to the payment of such Dividend;
(xii) the Borrower may pay cash Dividends to Holdings on the
Redemption Date, which in turn shall immediately utilize the full amount of
such cash Dividends on such date to pay accrued interest, principal and
related call premiums of or on the Existing 2006 10% Senior Subordinated
Notes and the Existing Junior PIK Notes pursuant to the Existing Senior
Notes Refinancing (it being understood that this Section 9.06(xii) shall be
alternative to, but duplicative of, the Borrower's right to make
intercompany loans to Holdings for the purposes described above pursuant to
Section 9.05(q)(i));
(xiii) Holdings may from time to time repurchase outstanding shares of
Holdings Common Stock with cash and/or pay cash Dividends on Holdings
Common Stock, so long as (v) no Default or Event of Default then exists or
would result therefrom, (w) calculations are made by Holdings of compliance
with an Adjusted Total Leverage Ratio not to exceed 3.00:1.0, determined on
a Pro Forma Basis after giving effect to the payment of respective Dividend
and the incurrence of any Indebtedness to finance the same (as if such
Dividend had been consummated and such Indebtedness had been incurred, in
each case on the first day of the respective Calculation Period), (x) the
aggregate amount of cash expended to make or pay Dividends pursuant to this
clause (xiii) after the Initial Borrowing Date shall not exceed $10,000,000
(or, if the Adjusted Total Leverage Ratio determined (and demonstrated)
pursuant to preceding clause (w) at the time of payment of the respective
Dividend does not exceed 2.50:1.00, $20,000,000), (y) after giving effect
to the payment of the respective Dividend and the incurrence of
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any Revolving Loans and Swingline Loans utilized to finance the same, the
Total Unutilized Revolving Loan Commitment shall equal or exceed $10.0
million, and (z) Holdings shall have furnished to the Administrative Agent
a certificate from an Authorized Officer of Holdings certifying to the best
of his or her knowledge as to compliance with the requirements of this
Section 9.06(xiii) and, if applicable, containing the calculations required
by the preceding clauses (w), (x) and (y);
(xiv) Holdings may from time to time repurchase outstanding shares of
Holdings Common Stock with cash and/or pay cash Dividends on Holdings
Common Stock, so long as (v) no Default or Event of Default then exists or
would result therefrom, (w) calculations are made by Holdings of compliance
with an Adjusted Total Leverage Ratio not to exceed 2.50:1.0, determined on
a Pro Forma Basis after giving effect to the payment of respective Dividend
and the incurrence of any Indebtedness to finance the same (as if such
Dividend had been consummated and such Indebtedness had been incurred, in
each case on the first day of the respective Calculation Period), (x) the
aggregate amount of cash expended to make or pay Dividends pursuant to this
clause (xiv) shall not exceed the Excess Proceeds Amount then in effect,
(y) after giving effect to the payment of the respective Dividend and the
incurrence of any Revolving Loans and Swingline Loans utilized to finance
the same, the Total Unutilized Revolving Loan Commitment shall equal or
exceed $10.0 million, and (z) Holdings shall have furnished to the
Administrative Agent a certificate from an Authorized Officer of Holdings
certifying to the best of his or her knowledge as to compliance with the
requirements of this Section 9.06(xiv) and, if applicable, containing the
calculations required by the preceding clauses (w), (x) and (y);
(xv) Holdings may from time to time pay cash Dividends on its
outstanding shares of Holdings Common Stock in lieu of the issuance of
fractional shares of Holdings Common Stock upon the exercise of warrants or
upon the conversion or exchange of, or the issuance of Holdings Common
Stock in lieu of cash Dividends on, Holdings Common Stock, so long as (x)
no Default or Event of Default then exists or would result therefrom, and
(y) the aggregate amount of cash expended to pay Dividends pursuant to this
clause (xv) shall not exceed $25,000; and
(xvi) so long as no Default or Event of Default then exists or would
exist immediately after giving effect thereto, the Borrower may pay cash
dividends to Holdings for the purpose of permitting Holdings to effect the
Dividends described in Sections 9.06(xiii), (xiv) and (xv) above, so long
as the cash proceeds thereof are promptly used by Holdings to effect
Dividends in accordance with the requirements of said Section 9.06(xiii),
(xiv) or (xv), as the case may be (it being understood that this Section
9.06(xvi) shall be alternative to, but duplicative of, the Borrower's right
to make intercompany loans to Holdings for the purposes described above
pursuant to Section 9.05(q)(ii)).
9.07 Transactions with Affiliates and Unrestricted Subsidiaries. No
Credit Agreement Party will, nor will any Credit Agreement Party permit any of
its Subsidiaries to, enter into any transaction or series of transactions with
any Affiliate of Holdings or any of its Subsidiaries or any of its Unrestricted
Subsidiaries other than on terms and conditions
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substantially as favorable to such Credit Agreement Party or such Subsidiary as
would be reasonably expected to be obtainable by such Credit Agreement Party or
such Subsidiary at the time in a comparable arm's-length transaction with a
Person other than an Affiliate; provided, that the following shall in any event
be permitted: (i) the Transaction; (ii) intercompany transactions among Holdings
and its Subsidiaries to the extent expressly permitted by Sections 9.02, 9.04,
9.05 and 9.06 shall be permitted; (iii) customary fees to non-officer directors
of Holdings and its Subsidiaries; (iv) Holdings and its Subsidiaries may enter
into employment arrangements with respect to the procurement of services with
their respective officers and employees in the ordinary course of business
(including pursuant to Holdings' 2003 Restricted Stock Plan and 2003 Option
Plan); (v) so long as no Default or Event of Default is then in existence or
would result therefrom, the payment to Apollo Group of merger advisory fees for
each Permitted Acquisition or any other transaction for which Apollo Group is
entitled to an advisory fee pursuant to the Apollo Shareholders Agreement in an
amount not to exceed 1% of the fair market value of the business or assets
acquired pursuant to such Permitted Acquisition (determined in good faith by
senior management of Holdings); (vi) the payment of consulting, management or
other fees to the Borrower or any Subsidiary Guarantor by any of their
respective Subsidiaries in the ordinary course of business; (vii) transactions
among Holdings or any of its Subsidiaries and Program Affiliates (including
Permitted Program Affiliate Transactions) to the extent expressly permitted by
Sections 9.02, 9.04 and 9.05; and (viii) fees payable to Apollo pursuant to the
Apollo Shareholders Agreement as in effect on the Effective Date or pursuant to
any amendment, restatement or replacement thereof to the extent that such
amendment, restatement or replacement does not provide for any fees or other
payments in excess of those set forth in the Apollo Shareholders Agreement as in
effect on the Effective Date. In no event shall any management, consulting or
similar fee be paid or payable by Holdings or any of its Subsidiaries to any
Affiliate of Holdings or the Borrower except as specifically provided in this
Section 9.07.
9.08 Designated Senior Debt. No Credit Agreement Party shall
designate any Indebtedness (or related interest obligations) as "Designated
Senior Debt" (as defined in each of the New Senior Subordinated Notes Indenture,
the Existing 2006 Senior Subordinated Notes Indenture, the Existing Junior PIK
Notes Indenture and the Existing Senior Subordinated Secured Notes Indenture
and, on and after the execution and delivery thereof, any agreement relating to
Permitted Subordinated Indebtedness or Permitted Subordinated Refinancing
Indebtedness), except for (i) the Obligations and (ii) the obligations of the
other Credit Parties under the Guaranties.
9.09 Consolidated Interest Coverage Ratio. Holdings will not permit
the Consolidated Interest Coverage Ratio for any Test Period ending on the last
day of any fiscal quarter of Holdings specified below to be less than the ratio
set forth opposite such fiscal quarter below:
Fiscal Quarter Ended Ratio
-------------------- ---------
December 31, 2003 2.45:1.00
March 31, 2004 2.45:1.00
June 30, 2004 2.45:1.00
September 30, 2004 2.45:1.00
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December 31, 2004 2.65:1.00
March 31, 2005 2.65:1.00
June 30, 2005 2.65:1.00
September 30, 2005 2.65:1.00
December 31, 2005 2.85:1.00
March 31, 2006 2.85:1.00
June 30, 2006 2.85:1.00
September 30, 2006 2.85:1.00
December 31, 2006 3.00:1.00
March 31, 2007 3.00:1.00
June 30, 2007 3.00:1.00
September 30, 2007 3.00:1.00
Thereafter 3.15:1.00
Notwithstanding anything to the contrary contained in this Agreement, all
calculations of compliance with this Section 9.09 shall be made on a Pro Forma
Basis.
9.10 Adjusted Total Leverage Ratio. Holdings will not permit the
Adjusted Total Leverage Ratio on the last day of any fiscal quarter specified
below to exceed the respective ratio set forth opposite such fiscal quarter
below:
Fiscal Quarter Ended Ratio
-------------------- ---------
December 31, 2003 4.95:1.00
March 31, 2004 4.95:1.00
June 30, 2004 4.95:1.00
September 30, 2004 4.95:1.00
December 31, 2004 4.75:1.00
March 31, 2005 4.75:1.00
June 30, 2005 4.75:1.00
September 30, 2005 4.75:1.00
December 31, 2005 4.50:1.00
March 31, 2006 4.50:1.00
June 30, 2006 4.50:1.00
September 30, 2006 4.50:1.00
December 31, 2006 4.00:1.00
March 31, 2007 4.00:1.00
June 30, 2007 4.00:1.00
September 30, 2007 4.00:1.00
Thereafter 3.50:1.00
Notwithstanding anything contrary contained above or elsewhere in this
Agreement, (i) all calculations of compliance with this Section 9.10 shall be
made on a Pro Forma Basis and (ii) in no event shall the Adjusted Total Leverage
Ratio be greater than the Maximum Permitted Acquisition Leverage Ratio upon the
consummation of, and after giving effect on a Pro Forma Basis to, any Permitted
Acquisition.
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9.11 Capital Expenditures.(a) No Credit Agreement Party will, nor
will any Credit Agreement Party permit any of its Subsidiaries to, make any
Capital Expenditures, except that during any fiscal year of Holdings set forth
below, the Borrower and its Subsidiaries may make Capital Expenditures, so long
as the aggregate amount of such Capital Expenditures does not exceed in any
fiscal year of Holdings set forth below the sum of (x) the amount set forth
opposite such fiscal year below plus (y) for each Acquired Business acquired
after the Effective Date and prior to the first day of the respective fiscal
year set forth below, 7.5% of the Acquired EBITDA of such Acquired Business for
the trailing twelve months of such Acquired Business immediately preceding its
acquisition for which financial statements have been made available to the
Borrower and the Lenders plus (z) for each Acquired Business acquired during the
respective fiscal year, the amount for such Acquired Business specified in
preceding clause (y) multiplied by a percentage, the numerator of which is the
number of days in the fiscal year after the date of the respective acquisition
and the denominator of which is 365 or 366, as the case may be:
Fiscal Quarter Ending Amount
--------------------- -------------
December 31, 2003 $ 20,000,000
December 31, 2004 $ 25,000,000
December 31, 2005 $ 27,500,000
December 31, 2006 $ 30,000,000
December 31, 2007 $ 30,000,000
December 31, 2008 $ 30,000,000
December 31, 2009 $ 30,000,000
(b) Notwithstanding the foregoing, in the event that the amount of
Capital Expenditures permitted to be made by the Borrower and its Subsidiaries
pursuant to clause (a) above in any fiscal year of Holdings (before giving
effect to any increase in such permitted expenditure amount pursuant to this
clause (b)) is greater than the amount of such Capital Expenditures made by the
Borrower and its Subsidiaries during such fiscal year, such excess (the
"Rollover Amount") may be carried forward and utilized to make Capital
Expenditures in succeeding fiscal years, provided that in no event shall the
Rollover Amount available to be utilized in succeeding fiscal years exceed
$15,000,000 at any time.
(c) Notwithstanding the foregoing, the Borrower and its
Subsidiaries may make Capital Expenditures (which Capital Expenditures will not
be included in any determination under the foregoing clause (a)) with the
insurance proceeds received by Holdings or any of its Subsidiaries from any
Recovery Event so long as such Capital Expenditures are used to replace or
restore any properties or assets in respect of which such proceeds were paid
within the time periods specified by Section 4.02(f), in each case to the extent
such insurance proceeds do not require, or result in, a mandatory repayment of
Term Loans and/or a mandatory reduction to the Total Term Loan Commitment, the
Total Revolving Loan Commitment and/or the Total PF Letter of Credit Commitment
pursuant to Section 4.02(f).
(d) Notwithstanding the foregoing, the Borrower and its
Subsidiaries may make Capital Expenditures (which Capital Expenditures will not
be included in any determination under the foregoing clause (a)) with the Net
Sale Proceeds of Asset Sales, to the extent such Net Sale Proceeds do not
require, or result in, a mandatory repayment of Term Loans
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and/or a mandatory reduction to the Total Term Loan Commitment, the Total
Revolving Loan Commitment and/or the Total PF Letter of Credit Commitment
pursuant to Section 4.02(c) and such proceeds are reinvested as required by said
Section 4.02(c).
(e) Notwithstanding the foregoing, the Borrower and its Wholly-Owned
Domestic Subsidiaries may make Capital Expenditures (which Capital Expenditures
will not be included in any determination under the foregoing clause (a))
constituting Permitted Acquisitions effected in accordance with the requirements
of Section 9.02(h).
9.12 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain
Other Agreements; Issuances of Capital Stock; etc. No Credit Agreement Party
will, nor will any Credit Agreement Party permit any of its Subsidiaries to:
(i) amend or modify, or permit the amendment or modification of,
any provision of any Shareholder Subordinated Note, any Scheduled Existing
Indebtedness, any CLC Preferred Stock Document or, after the incurrence or
issuance thereof, any Qualified Preferred Stock, Disqualified Preferred
Stock or Permitted Debt (other than Permitted Subordinated Refinancing
Indebtedness) or of any agreement (including, without limitation, any
purchase agreement, indenture, loan agreement, security agreement or
certificate of designation) relating thereto in a manner that could
reasonably be expected to be adverse to the interests of the Lenders in any
material respect;
(ii) make (or give any notice in respect of) any voluntary or
optional payment or prepayment on or redemption, repurchase or acquisition
for value of (including, without limitation, by way of depositing with the
trustee with respect thereto or any other Person money or securities before
due for the purpose of paying when due), or any prepayment or redemption as
a result of any asset sale, change of control or similar event of, any
Scheduled Existing Indebtedness, any Existing Senior Notes To Be Refinanced
(except pursuant to the Existing Senior Notes Refinancing), any New Senior
Subordinated Notes, any Existing 2006 Floating Rate Senior Subordinated
Notes, any Permitted Subordinated Indebtedness or any Permitted
Subordinated Refinancing Indebtedness; provided that, so long as no Default
or Event of Default then exists or would result therefrom:
(t) Existing 2006 Floating Rate Senior Subordinated Notes,
may from time to time be redeemed by Holdings in accordance
with the terms of the indenture therefor and/or repurchased on
the open-market, in either case with the proceeds of an
issuance of Holdings Common Stock or Qualified Preferred Stock,
so long as all such Existing 2006 Floating Rate Senior
Subordinated Notes so repurchased or redeemed are promptly
cancelled by Holdings;
(u) Existing 2006 Floating Rate Senior Subordinated Notes
may from time to time be redeemed in accordance with the terms
of the indenture therefor and/or repurchased on the
open-market, so long as (I) the aggregate amount of cash
expended by Holdings to effect such
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repurchases or redemptions shall not exceed the sum of (A) the
principal amount of the Indebtedness so repurchased or redeemed
plus (B) the amount of accrued but unpaid interest on the
Indebtedness so repurchased or redeemed through the respective
date of repurchase or redemption plus (C) any required premium
payable in connection with such repurchase or redemption, (II)
after giving effect to the respective repurchase or redemption
and the incurrence of any Revolving Loans and Swingline Loans
to finance the same, the Total Unutilized Revolving Loan
Commitment shall equal or exceed $10.0 million, (III)
calculations are made by Holdings of compliance with the
covenants contained in Sections 9.09 and 9.10 (in each case,
after giving effect to the last sentence appearing therein) for
the Calculation Period most recently ended prior to the date of
the respective repurchase or redemption (determined on a Pro
Forma Basis after giving effect to the respective repurchase or
redemption and the incurrence of any Indebtedness to finance
same), as set forth in a certificate by an Authorized Officer
of Holdings furnished to the Administrative Agent on the date
of such repurchase or redemption, and (IV) all such Existing
2006 Floating Rate Senior Subordinated Notes so repurchased or
redeemed are promptly cancelled by the purchaser thereof;
(v) New Senior Subordinated Notes may from time to time be
redeemed in accordance with the terms of the indenture therefor
and/or repurchased on the open-market, in either case with the
proceeds of an issuance of Holdings Common Stock or Qualified
Preferred Stock not required to be applied as a mandatory
repayment and/or commitment reduction in accordance with the
requirements of Section 4.02(e), so long as (I) the aggregate
amount of cash expended by the Borrower to effect such
repurchases or redemptions shall not exceed the sum of (A) the
principal amount of the Indebtedness so repurchased or redeemed
plus (B) the amount of accrued but unpaid interest on the
Indebtedness so repurchased or redeemed through the respective
date of repurchase or redemption plus (C) any required premium
payable in connection with such repurchase or redemption, (II)
the Borrower shall have substantially concurrently with such
redemption or repurchase applied Applicable Prepayment
Percentage of the Net Cash Proceeds from the respective equity
issuance as a mandatory repayment and/or commitment reduction
to the extent required by Section 4.02(e) and (III) all such
New Senior Subordinated Notes so repurchased or redeemed are
promptly cancelled by the Borrower;
(w) New Senior Subordinated Notes may from time to time be
exchanged for Holdings Common Stock or Qualified Preferred
Stock, so long as (I) the Administrative Agent has consented to
any such exchange in writing, (II) no cash or other
consideration (other than the respective equity interest or
equity interests so exchanged) is paid to effect such exchanges
and (III) such exchanges are otherwise consummated in
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accordance with the requirements of the indentures governing
the respective such Indebtedness;
(x) the Borrower and its Subsidiaries may make payments and
prepayments in connection with Scheduled Existing Indebtedness;
(y) New Exchange Senior Subordinated Notes may be issued as
contemplated by the definition of New Senior Subordinated Notes
and consistent with the definition of New Exchange Senior
Subordinated Notes; and
(z) New Senior Subordinated Notes and Permitted Subordinated
Refinancing Indebtedness be refinanced with Permitted
Subordinated Refinancing Indebtedness in accordance with the
requirements of the definition thereof;
(iii) make (or give any notice in respect of) any principal or
interest payment on, or any redemption or acquisition for value of, any
Shareholder Subordinated Note, except to the extent permitted by Section
9.06(ii);
(iv) amend or modify, or permit the amendment or modification of,
any provision of any New Senior Subordinated Note Document, any Existing
Senior Notes Document or, on and after the execution and delivery thereof,
any Permitted Subordinated Refinancing Indebtedness; or
(v) amend, modify or change in any way which could reasonably be
expected to be adverse to the interests of the Lenders in any material
respect any Tax Allocation Agreement, any Management Agreement, its
certificate of incorporation (including, without limitation, by the filing
or modification of any certificate of designation other than any
certificates of designation relating to Qualified Preferred Stock or
Disqualified Preferred Stock issued as permitted herein), by-laws,
certificate of partnership, partnership agreement, certificate of limited
liability company, limited liability company agreement or any agreement
entered into by it, with respect to its capital stock or other Equity
Interest (including any Shareholders' Agreement), or enter into any new Tax
Allocation Agreement, Management Agreement or agreement with respect to its
capital stock or other Equity Interest which could reasonably be expected
to in any way be adverse to the interests of the Lenders or, in the case of
any Management Agreement, which involves the payment by Holdings or any of
its Subsidiaries of any amount which could give rise to a violation of this
Agreement; provided that the foregoing clause shall not restrict the
ability of Holdings and its Subsidiaries to amend their respective
certificates of incorporation (or equivalent organizational documents) to
authorize the issuance of Equity Interests otherwise permitted to be issued
pursuant to the terms of this Agreement.
9.13 Limitation on Issuance of Equity Interests. (a) No Credit
Agreement Party will, nor will any Credit Agreement Party permit any of its
Subsidiaries to, issue (i) any Preferred Stock (other than Preferred Stock
issued pursuant to clauses (c) and (d) below) or any
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options, warrants or rights to purchase Preferred Stock or (ii) any redeemable
common Equity Interests unless, in either case, the issuance thereof is, and all
terms thereof are, satisfactory to the Required Lenders in their sole
discretion.
(b) Holdings shall not permit any of its Subsidiaries to issue any
Equity Interests (including by way of sales of treasury stock) or any options or
warrants to purchase, or securities convertible into, Equity Interests, except
(i) for transfers and replacements of then outstanding shares of Equity
Interests, (ii) for stock splits, stock dividends and additional issuances which
do not decrease the percentage ownership of Holdings or any of its Subsidiaries
in any class of the Equity Interests of such Subsidiaries, (iii) to qualify
directors to the extent required by applicable law, (iv) Subsidiaries formed
after the Initial Borrowing Date pursuant to Section 9.15 may issue Equity
Interests in accordance with the requirements of Section 9.15 and (v) that
Subsidiaries of Holdings may issue common stock to Holdings and its Subsidiaries
in connection with any transaction permitted by Section 9.05(o) or (p). All
Equity Interests issued in accordance with this Section 9.13(b) shall, to the
extent owned by any Credit Party and required by the any Pledge Agreement, be
delivered to the Collateral Agent for pledge pursuant to the such Pledge
Agreement.
(c) Holdings may issue Disqualified Preferred Stock so long as (i)
no Default or Event of Default then exists or would exist immediately after
giving effect to the respective issuance, (ii) the aggregate liquidation
preference for all Disqualified Preferred Stock issued after the Initial
Borrowing Date pursuant to this Section 9.13(c) shall not exceed, when combined
with the aggregate principal amount of all then outstanding Indebtedness
permitted by Section 9.04(n), $25,000,000, (iii) with respect to each issue of
Disqualified Preferred Stock, the gross cash proceeds therefrom (or in the case
of Disqualified Preferred Stock directly issued as consideration for a Permitted
Acquisition, the fair market value thereof (as determined in good faith by
Holdings) of the assets received therefor) shall not exceed the liquidation
preference thereof at the time of issuance, (iv) calculations are made by
Holdings of compliance with the covenants contained in Sections 9.09 and 9.10
for the Calculation Period most recently ended prior to the date of the
respective issuance of Disqualified Preferred Stock, on a Pro Forma Basis after
giving effect to the respective issuance of Disqualified Preferred Stock, and
such calculations shall show that such financial covenants would have been
complied with if such issuance of Disqualified Preferred Stock had been
consummated on the first day of the respective Calculation Period, and (v)
Holdings shall furnish to the Administrative Agent a certificate by an
Authorized Officer of Holdings certifying to the best of his or her knowledge as
to compliance with the requirements of this Section 9.13(c) and containing the
pro forma calculations required by the preceding clause (iv).
(d) Holdings may issue Qualified Preferred Stock (x) in payment of
regularly accruing dividends on theretofore outstanding shares of Qualified
Preferred Stock as contemplated by Section 9.06(iv) and (y) so long as, with
respect to each other issue of Qualified Preferred Stock, Holdings receives
reasonably equivalent consideration (as determined in good faith by Holdings).
9.14 Limitation on Certain Restrictions on Subsidiaries. No Credit
Agreement Party will, nor will any Credit Agreement Party permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective, any encumbrance or
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restriction on the ability of any such Subsidiary to (x) pay dividends or make
any other distributions on its Equity Interests or any other interest or
participation in its profits owned by such Credit Agreement Party or any
Subsidiary of such Credit Agreement Party, or pay any Indebtedness owed to such
Credit Agreement Party or a Subsidiary of such Credit Agreement Party, (y) make
loans or advances to such Credit Agreement Party or any Subsidiary of such
Credit Agreement Party or (z) transfer any of its properties or assets to such
Credit Agreement Party or any of its Subsidiaries, except for such encumbrances
or restrictions existing under or by reason of (i) applicable law, (ii) this
Agreement and the other Credit Documents, (iii) the provisions contained in the
Scheduled Existing Indebtedness, (iv) the New Senior Subordinated Notes
Documents, (v) customary provisions restricting subletting or assignment of any
lease governing a leasehold interest of Holdings or a Subsidiary of Holdings
entered into in the ordinary course of business and consistent with past
practices, (vi) customary provisions restricting assignment of any contract
entered into by Holdings or any Subsidiary of Holdings in the ordinary course of
business, (vii) any agreement or instrument governing Permitted Acquired Debt,
which encumbrance or restriction is not applicable to any Person or the
properties or assets of any Person, other than the Person or the properties or
assets of the Person acquired pursuant to the respective Permitted Acquisition
and so long as the respective encumbrances or restrictions were not created (or
made more restrictive) in connection with or in anticipation of the respective
Permitted Acquisition, (viii) customary provisions restricting the assignment of
licensing agreements, management agreements or franchise agreements entered into
by Holdings or any of its Subsidiaries in the ordinary course of business; (ix)
the Existing 2006 Senior Subordinated Notes Documents; (x) restrictions
applicable to any Joint Venture that is a Subsidiary existing at the time of the
acquisition thereof as a result of an Investment pursuant to Section 9.05 or a
Permitted Acquisition effected in accordance with Section 8.15, provided that
the restrictions applicable to the respective such Joint Venture are not made
worse, or more burdensome, from the perspective of Holdings and its
Subsidiaries, than those as in effect immediately before giving effect to the
consummation of the respective Investment or Permitted Acquisition, (xi) any
restriction or encumbrance with respect to a Subsidiary imposed pursuant to an
agreement which has been entered into for the sale or disposition of all or
substantially all of the Equity Interests or assets of such Subsidiary, so long
as such sale or disposition of all or substantially all of the Equity Interests
or assets of such Subsidiary is permitted under this Agreement, (xii) on and
after the execution and delivery thereof, the documentation governing Permitted
Debt (other than Permitted Acquired Debt), (xiii) restrictions on the transfer
of any asset pending the close of the sale of such asset, so long as such sale
is permitted under this Agreement, (xiii) restrictions on the transfer of assets
securing purchase money obligations and Capitalized Lease obligations otherwise
permitted under this Agreement, (xiv) customary net worth provisions contained
in Real Property leases entered into by Subsidiaries of Holdings, so long as
Holdings has determined in good faith that such net worth provisions could not
reasonably be expected to impair the ability of Holdings and its Subsidiaries to
meet their ongoing obligations (including those under this Agreement, the New
Senior Subordinated Notes and any Permitted Debt) and (xv) on or prior to the
Redemption Date, the Existing Junior PIK Notes Documents and the Existing Senior
Subordinated Secured Notes Documents.
9.15 Limitation on the Creation of Subsidiaries, Joint Ventures and
Unrestricted Subsidiaries. (a) Notwithstanding anything to the contrary
contained in this Agreement, Holdings will not, and will not permit any of its
Subsidiaries to, establish, create or acquire after the Initial Borrowing Date
any Subsidiary or Unrestricted Subsidiary (other than Joint Ventures
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permitted to be established in accordance with the requirements of Section
9.05(k) or (r)); provided that (A) the Borrower, any of its Wholly-Owned
Domestic Subsidiaries and any Unrestricted Subsidiary shall be permitted to
establish or create an Unrestricted Subsidiary, so long as (i) if a Domestic
Unrestricted Subsidiary of the Borrower, all of the capital stock or other
Equity Interests of such new Domestic Unrestricted Subsidiary owned by the
Borrower or any such Wholly-Owned Domestic Subsidiary shall be pledged pursuant
to the U.S. Pledge Agreement and the certificates representing such stock or
other Equity Interests, together with appropriate transfer powers duly executed
in blank, shall be delivered to the Collateral Agent, (ii) if a Foreign
Unrestricted Subsidiary of the Borrower, all of the capital stock or other
Equity Interests of such new Foreign Unrestricted Subsidiary owned by the
Borrower or any such Wholly-Owned Domestic Subsidiary (except that not more than
65% of the outstanding voting stock of any Foreign Unrestricted Subsidiary need
be so pledged, except in the circumstances contemplated by Section 8.12) shall
be pledged pursuant to the relevant Pledge Agreement and the certificates
representing such stock or other Equity Interests, together with appropriate
transfer powers duly executed in blank, shall be delivered to the Collateral
Agent and (iii) all Investments by the Borrower and its Subsidiaries in any
Unrestricted Subsidiary are permitted pursuant to Section 9.05(k), (B) the
Borrower and its Wholly-Owned Subsidiaries shall be permitted to establish or
create Wholly-Owned Subsidiaries so long as, in each case, (i) at least 10 days'
prior written notice thereof is given to the Administrative Agent (or such
shorter period of time as is acceptable to the Administrative Agent), (ii) the
capital stock or other Equity Interests of such new Subsidiary are promptly
pledged pursuant to, and to the extent required by, this Agreement and the
relevant Pledge Agreement and the certificates, if any, representing such stock
or other Equity Interests, together with stock or other appropriate powers duly
executed in blank, are delivered to the Collateral Agent, (iii) in the case of a
Domestic Subsidiary, such new Domestic Subsidiary promptly executes a
counterpart of the Intercompany Subordination Agreement, the Subsidiaries
Guaranty, the U.S. Pledge Agreement and the relevant Security Documents, (iv) in
the case of any Foreign Subsidiary, such new Foreign Subsidiary promptly
executes a counterpart of the Intercompany Subordination Agreement and, to the
extent required pursuant to Section 8.12, the Subsidiaries Guaranty, the U.S.
Pledge Agreement and the Security Agreement (or similar document) and (v) to the
extent requested by the Administrative Agent or the Required Lenders, such new
Subsidiary takes all actions required pursuant to Section 8.11 and (C)
Subsidiaries may be acquired pursuant to Permitted Acquisitions so long as, in
each such case (i) with respect to each Wholly-Owned Subsidiary acquired
pursuant to a Permitted Acquisition, the actions specified in preceding clause
(B) shall be taken and (ii) with respect to each Subsidiary which is not a
Wholly-Owned Subsidiary and is acquired pursuant to a Permitted Acquisition, all
capital stock or other Equity Interests thereof owned by any Credit Party shall
be pledged pursuant to the relevant Pledge Agreement. In addition, each new
Subsidiary that is required to execute any Credit Document shall execute and
deliver, or cause to be executed and delivered, all other relevant documentation
of the type described in Section 5 as such new Subsidiary would have had to
deliver if such new Subsidiary were a Credit Party on the Initial Borrowing
Date.
(b) Holdings will not, nor will Holdings permit any of its
Subsidiaries to, enter into any Joint Venture, except to the extent permitted by
Section 9.05(k) or (r).
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SECTION 10. Events of Default. Upon the occurrence of any of the
following specified events (each, an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment when due
of any principal of the Loans or (ii) default, and such default shall continue
for three or more Business Days, in the payment when due of any Unpaid Drawing,
any interest on the Loans or any Fees or any other amounts owing hereunder or
under any other Credit Document; or
10.02 Representations, etc. Any representation, warranty or statement
made by any Credit Party herein or in any other Credit Document or in any
statement or certificate delivered pursuant hereto or thereto shall prove to be
untrue in any material respect on the date as of which made or deemed made; or
10.03 Covenants. Any Credit Party shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(e)(i), 8.10, 8.14, 8.15, 8.17 or 9, or (b) default in the due
performance or observance by it of any term, covenant or agreement (other than
those referred to in Section 10.01, 10.02 or clause (a) of this Section 10.03)
contained in this Agreement and such default shall continue unremedied for a
period of at least 30 days after notice to the defaulting party by the
Administrative Agent or the Required Lenders; or
10.04 Default Under Other Agreements. (a) Holdings or any of its
Subsidiaries shall (i) default in any payment with respect to any Indebtedness
(other than the Obligations) beyond the period of grace, if any, provided in the
instrument or agreement under which Indebtedness was created or (ii) default in
the observance or performance of any agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the
holder or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause (determined without regard to whether any notice is
required), any such Indebtedness to become due prior to its stated maturity; or
(b) any Indebtedness (other than the Obligations) of Holdings or any of its
Subsidiaries shall be declared to be due and payable, or shall be required to be
prepaid other than by a regularly scheduled required prepayment or as a
mandatory prepayment (unless such required prepayment or mandatory prepayment
results from a default thereunder or an event of the type that constitutes an
Event of Default), prior to the stated maturity thereof; provided, that it shall
not constitute an Event of Default pursuant to clause (a) or (b) of this Section
10.04 unless the principal amount of any one issue of such Indebtedness, or the
aggregate amount of all such Indebtedness referred to in clauses (a) and (b)
above, exceeds $4,000,000 at any one time; or
10.05 Bankruptcy, etc. Holdings or any of its Subsidiaries shall
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against
Holdings or any of its Subsidiaries and the petition is not controverted within
20 days, or is not dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of Holdings or any of its
Subsidiaries; or Holdings or any of
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its Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to Holdings or any of its Subsidiaries; or there is commenced
against Holdings or any of its Subsidiaries any such proceeding which remains
undismissed for a period of 60 days; or Holdings or any of its Subsidiaries is
adjudicated insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or Holdings or any of its
Subsidiaries suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or Holdings or any of its Subsidiaries makes a general
assignment for the benefit of creditors; or any corporate action is taken by
Holdings or any of its Subsidiaries for the purpose of effecting any of the
foregoing; or
10.06 ERISA. (a) (i) Any Plan or Multiemployer Plan shall fail to
satisfy the minimum funding standard required for any plan year or part thereof
under Section 412 of the Code or Section 302 of ERISA or a waiver of such
standard or extension of any amortization period is sought or granted under
Section 412 of the Code or Section 303 or 304 of ERISA, (ii) a Reportable Event
shall have occurred, (iii) a contributing sponsor (as defined in Section
4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA shall be subject to
the advance reporting requirement of PBGC Regulation Section 4043.61 (without
regard to subparagraph (b)(1) thereof) and an event described in subsection .62,
..63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 shall be
reasonably expected to occur within the following 30 days, (iv) any Plan which
is subject to Title IV of ERISA shall have had or is likely to have a trustee
appointed pursuant to Section 4042(b) of ERISA to administer such Plan, (v) any
Plan which is subject to Title IV of ERISA is, shall have been or is likely to
be terminated in a distress termination or to be the subject of distress or
involuntary termination proceedings under ERISA, (vi) any Plan shall have an
Unfunded Current Liability, (vii) a contribution required to be made by Holdings
or any Subsidiary of Holdings with respect to a Plan, a Multiemployer Plan or a
Foreign Pension Plan has not been timely made (other than a de minimus failure
that is promptly cured), (viii) Holdings or any Subsidiary of Holdings has
incurred or is likely to incur any liability to or on account of a Plan or
Multiemployer Plan under Section 409, 502(i) or 502(1) of ERISA or Section 4975
of the Code, (ix) Holdings or any Subsidiary of Holdings or any ERISA Affiliate
has incurred or is likely to incur any liability to or on account of a Plan
under Section 4062, 4063, 4064, 4069 of ERISA or Section 401(a)(29) or 4971 of
the Code or on account of a group health plan (as defined in Section 607(1) of
ERISA or Section 4980B(g)(2) of the Code or 45 Code of Federal Regulations
Section 160.103) under Section 4980B of the Code and/or the Health Insurance
Portability and Accountability Act of 1996, (x) Holdings or any Subsidiary of
Holdings or any ERISA Affiliate has incurred or is likely to incur any liability
to or on account of a Multiemployer Plan under Section 515, 4201, 4204 or 4212
of ERISA; or (ix) Holdings or any Subsidiary of Holdings has incurred or is
likely to incur liabilities pursuant to one or more employee welfare benefit
plans (as defined in Section 3(1) of ERISA) that provide benefits to retired
employees or other former employees (other than as required by Section 601 of
ERISA) or pursuant to any Plan or Foreign Pension Plan; (b) there shall result
from any such event or events the imposition of a lien, the granting of a
security interest, or a liability or a material risk of incurring a liability;
and (c) such lien, security interest or liability, individually, and/or in the
aggregate, in the reasonable opinion of the Required Lenders, has had (unless
same has ceased to exist), or could reasonably be expected to have, a Material
Adverse Effect; or
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10.07 Security Documents. (a) Any Security Document shall cease to be
in full force and effect, or shall cease to give the Collateral Agent the Liens,
rights, powers and privileges purported to be created thereby in favor of the
Collateral Agent, superior to and prior to the rights of all third Persons
(except as permitted by Section 9.03), and subject to no other Liens (except as
permitted by Section 9.03), or (b) any Credit Party shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any such Security Document and such default
shall continue beyond any cure or grace period specifically applicable thereto
pursuant to the terms of any such Security Document; or
10.08 Guaranties. Any Guaranty or any provision thereof shall cease to
be in full force and effect, or any Guarantor or any Person acting by or on
behalf of such Guarantor shall deny or disaffirm such Guarantor's obligations
under the relevant Guaranty or any Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be entered
against Holdings or any of its Subsidiaries involving a liability (to the extent
not paid or not fully covered by insurance) in excess of $5,000,000 for all such
judgments and decrees and all such judgments or decrees shall not have been
vacated, discharged or stayed or bonded pending appeal within 60 days from the
entry thereof; or
10.10 Ownership. A Change of Control Event shall have occurred;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Lenders, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of any Agent or
any Lender to enforce its claims against any Guarantor or the Borrower, except
as otherwise specifically provided for in this Agreement (provided, that if an
Event of Default specified in Section 10.05 shall occur with respect to any
Credit Agreement Party, the result which would occur upon the giving of written
notice by the Administrative Agent as specified in clauses (i), (ii) and (iii)
below shall occur automatically without the giving of any such notice): (i)
declare the Total Commitment terminated, whereupon the Commitment of each Lender
shall forthwith terminate immediately and any Commitment Fees shall forthwith
become due and payable without any other notice of any kind; (ii) declare the
principal of and any accrued interest in respect of all Loans and all
Obligations owing hereunder (including Unpaid Drawings) to be, whereupon the
same shall become, forthwith due and payable by the Borrower without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; (iii) enforce, as Collateral Agent (or direct the
Collateral Agent to enforce), any or all of the Liens and security interests
created pursuant to the Security Documents; (iv) terminate any Letter of Credit
which may be terminated in accordance with its terms; (v) direct the Borrower to
pay (and the Borrower hereby agrees upon receipt of such notice, or upon the
occurrence of any Event of Default specified in Section 10.05, to pay) to the
Collateral Agent at the Payment Office such additional amounts of cash, to be
held as security for the Borrower's reimbursement obligations in respect of
Letters of Credit then outstanding, equal to the aggregate Stated Amount of all
Letters of Credit then outstanding; and (vi) apply any cash collateral as
provided in Section 4.02.
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SECTION 11. Definitions. As used herein, the following terms shall
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"Acquired Business" shall mean any Person or business, division or
product line acquired pursuant to a Permitted Acquisition.
"Acquired EBITDA" shall mean, for any Acquired Business for any
period, the Consolidated EBITDA as determined for such Acquired Business on a
basis substantially the same (with necessary reference changes) as provided in
the first sentence of the definition of Consolidated EBITDA contained herein,
except that (i) all references therein and in the component definitions used in
determining Consolidated EBITDA to "Holdings and its Subsidiaries" shall be
deemed to be references to the respective Acquired Business and (ii) the
adjustments contained in clauses (ii) and (iii) of the definition of
Consolidated EBITDA shall not be made. All calculations of Acquired EBITDA shall
be made on a Pro Forma Basis (for such purpose treating (x) each reference to
"Consolidated EBITDA" contained in the definition of Pro Forma Basis as if it
were a reference to "Acquired EBITDA", (y) clause (v) of said definition as if
same applied to a determination of Acquired EBITDA for purposes of Section 9.11,
and (z) the text "the two fiscal quarters comprising the respective Test Period"
appearing in clause (v) of said definition as if same were a reference to "the
trailing twelve month period immediately preceding the respective Permitted
Acquisition" and disregarding subclauses (y) and (z) of clause (v) of said
definition).
"Acquired Person" shall have the meaning provided in the definition of
Permitted Acquisition.
"Additional Security Documents" shall have the meaning provided in
Section 8.11(a).
"Adjusted Consolidated Net Income" for any period shall mean
Consolidated Net Income for such period plus, without duplication, (i) the sum
of the amount of all net non-cash charges (including, without limitation,
depreciation, amortization, deferred tax expense and non-cash interest expense
but excluding any net non-cash charges reflected in Adjusted Consolidated
Working Capital) and net non-cash losses which were included in arriving at
Consolidated Net Income for such period less (ii) all net non-cash gains
(exclusive of items reflected in Adjusted Consolidated Working Capital) included
in arriving at Consolidated Net Income for such period.
"Adjusted Consolidated Working Capital" at any time shall mean
Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities.
"Adjusted Excess Cash Flow" shall mean, for any period, the remainder
of (i) Excess Cash Flow for such period minus (ii) the product of (I) the
aggregate amount of principal repayments of Loans to the extent (and only to the
extent) that such repayments were (x) required as a result of a Scheduled
Repayment under Section 4.02(b) or (y) made as a voluntary prepayment pursuant
to Section 4.01 with internally generated funds (but in a case of a voluntary
prepayment of Revolving Loans, only to the extent accompanied by a voluntary
reduction to the
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Total Revolving Loan Commitment) during such period multiplied by (II) the
quotient of (x) 100% divided by (y) the Applicable Excess Cash Flow Percentage
in effect on the relevant Excess Cash Flow Payment Date for such period.
"Adjusted RL Percentage" shall mean (x) at a time when no Lender
Default exists, for each Lender, such Lender's RL Percentage and (y) at a time
when a Lender Default exists, (i) for each Lender that is a Defaulting Lender,
zero and (ii) for each Lender that is a Non-Defaulting Lender, the percentage
determined by dividing such Lender's Revolving Loan Commitment at such time by
the Adjusted Total Revolving Loan Commitment at such time, it being understood
that all references herein to Revolving Loan Commitments and the Adjusted Total
Revolving Loan Commitment at a time when the Total Revolving Loan Commitment or
Adjusted Total Revolving Loan Commitment, as the case may be, has been
terminated shall be references to the Revolving Loan Commitments or Adjusted
Total Revolving Loan Commitment, as the case may be, in effect immediately prior
to such termination, provided that (A) no Lender's Adjusted RL Percentage shall
change upon the occurrence of a Lender Default from that in effect immediately
prior to such Lender Default if after giving effect to such Lender Default, and
any repayment of Revolving Loans and Swingline Loans at such time pursuant to
Section 4.02(a) or otherwise, the sum of (i) the aggregate outstanding principal
amount of Revolving Loans of all Non-Defaulting Lenders, plus (ii) the aggregate
outstanding principal amount of Swingline Loans, plus (iii) the Letter of Credit
Outstandings, exceed the Adjusted Total Revolving Loan Commitment; (B) the
changes to the Adjusted RL Percentage that would have become effective upon the
occurrence of a Lender Default but that did not become effective as a result of
the preceding clause (A) shall become effective on the first date after the
occurrence of the relevant Lender Default on which the sum of (i) the aggregate
outstanding principal amount of the Revolving Loans of all Non-Defaulting
Lenders, plus (ii) the aggregate outstanding principal amount of Swingline
Loans, plus (iii) the Letter of Credit Outstandings, is equal to or less than
the Adjusted Total Revolving Loan Commitment; and (C) if (i) a Non-Defaulting
Lender's Adjusted RL Percentage is changed pursuant to the preceding clause (B)
and (ii) any repayment of such Lender's Revolving Loans or of Unpaid Drawings or
of Swingline Loans that were made during the period commencing after the date of
the relevant Lender Default and ending on the date of such change to its
Adjusted RL Percentage must be returned to the Borrower as a preferential or
similar payment in any bankruptcy or similar proceeding of the Borrower, then
the change to such Non-Defaulting Lender's Adjusted RL Percentage effected
pursuant to said clause (B) shall be reduced to that positive change, if any, as
would have been made to its Adjusted RL Percentage if (x) such repayments had
not been made and (y) the maximum change to its Adjusted RL Percentage would
have resulted in the sum of the outstanding principal of Revolving Loans made by
such Lender plus such Lender's new Adjusted RL Percentage of the outstanding
principal amount of Swingline Loans and of Letter of Credit Outstandings
equaling such Lender's Revolving Loan Commitment at such time.
"Adjusted Total Leverage Ratio" shall mean, on any date, the ratio of
(i) Consolidated Debt on such date to (ii) Consolidated EBITDA for the Test
Period most recently ended on or prior to such date. All calculations of the
Adjusted Total Leverage Ratio shall be made on a Pro Forma Basis, with
determinations of Adjusted Total Leverage Ratio to give effect to all
adjustments (including, without limitation, those specified in clauses (iv) and
(v)) contained in the definition of "Pro Forma Basis" contained herein.
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"Adjusted Total Revolving Loan Commitment" shall mean, at any time,
the Total Revolving Loan Commitment at such time less the aggregate Revolving
Loan Commitments of all Defaulting Lenders at such time.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 12.10.
"Affected Loans" shall have the meaning provided in Section 4.02(i).
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person; provided, however, that for purposes of Section 9.07,
an Affiliate of Holdings shall include any Person that directly or indirectly
owns more than 5% of any class of the capital stock of Holdings and any officer
or director of Holdings or any such Person.
"Affiliate Billing Program" shall mean the administrative services
program of the Borrower made available to Program Affiliates providing for
centralized xxxxxxxx services and the collection and processing of accounts
receivable owing to Program Affiliates.
"Agent" shall have the meaning provided in the first paragraph of this
Agreement.
"Agreement" shall mean this Credit Agreement, as the same may be from
time to time modified, amended, restated and/or supplemented.
"Apollo Group" shall mean Apollo Advisors, L.P., Apollo Investment
Fund, L.P., Apollo Investment Fund III, L.P., Apollo Overseas Partners III,
L.P., Apollo (U.K.) Partners III, L.P., AIF II, L.P., and Apollo Advisors II,
L.P., all Delaware limited partnerships (except that Apollo (U.K.) Partners III,
L.P. is a limited partnership organized under the laws of England).
"Apollo Shareholder Agreement" means (a) the Shareholders Agreement,
dated the Effective Date among certain affiliates of Apollo Management, L.P. and
certain shareholders of Holdings and (b) the Amended and Restated Common and
Preferred Stock Purchase and Shareholders' Agreement, dated as of August 28,
1998, among certain affiliates of Apollo Amendment, L.P., BT Investment Partners
Inc., MTL Equity Investors, L.L.C. and QD Inc., in each case as amended from
time to time in accordance with the terms hereof and thereof.
"Applicable Excess Cash Flow Percentage" shall mean, with respect to
any Excess Cash Flow Payment Date, 75%; provided that so long as no Default or
Event of Default is then in existence, if on the last day of the relevant Excess
Cash Flow Payment Period, the Adjusted Total Leverage Ratio for the Test Period
then most recently ended (as established pursuant to the officer's certificate
delivered (or required to be delivered) pursuant to Section 8.01(d)) is (i) less
than 3.00:1.00 but greater than or equal to 2.00:1.0, then the Applicable Excess
Cash Flow Percentage shall instead be 50% or (ii) less than 2.00:1.0, then the
Applicable Excess Cash Flow Percentage shall instead be 25%.
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"Applicable Facing Fee Percentage" shall mean, with respect to any
Letter of Credit, the percentage per annum agreed to by the Borrower and the
Letter of Credit Issuer of such Letter of Credit.
"Applicable Prepayment Percentage" shall mean, at any time, 50%,
provided that if, on the date of any sale or issuance of Qualified Preferred
Stock or common Equity Interests of (or capital contributions to) Holdings
subject to a mandatory repayment and/or commitment reduction pursuant to Section
4.02(e), (i) no Default or Event of Default is then in existence, (ii)
calculations are made by Holdings of compliance with an Adjusted Total Leverage
Ratio not to exceed 3.00:1.0, determined on a Pro Forma Basis after giving
effect to the payment of any Dividend, the repayment of any Indebtedness and the
incurrence of any Indebtedness on such date (as if such Dividend, repayment or
incurrence of Indebtedness had occurred, in each case on the first day of the
respective Calculation Period) and (iii) Holdings shall have furnished to the
Administrative Agent a certificate from an Authorized Officer of Holdings
certifying to the best of his or her knowledge as to compliance with the
requirements of preceding clauses (i) and (ii) and containing the calculations
required by the preceding clause (ii), then the Applicable Prepayment Percentage
shall instead be 0%./9/
"Applicable Margin" initially shall mean a percentage per annum equal
to (i) in the case of Loans (other than Swingline Loans) maintained as (x) Base
Rate Loans, 2.50% and (y) Eurodollar Loans, 3.50% and (ii) in the case of
Swingline Loans, 2.50%. From and after each day of delivery of any certificate
delivered in accordance with the first sentence of the following paragraph
indicating a different margin than that described in the immediately preceding
sentence (each, a "Start Date") to and including the applicable End Date
described below, the Applicable Margin for Loans [(other than Term Loans)] (the
"Adjustable Applicable Margins") shall (subject to any adjustment pursuant to
the immediately succeeding paragraph) be that set forth below opposite the Total
Leverage Ratio indicated to have been achieved in any certificate delivered in
accordance with the following sentence:
--------------------------------------------------------------------------------------------------------------------
Revolving
Loan / Swingline
Revolving Loan Loan Base Rate [Term Loan Eurodollar Term Loan Base Rate
Total Leverage Ratio Eurodollar Margin Margin Loan Margin
--------------------------------------------------------------------------------------------------------------------
Equal to or greater than
__:1.0 but less than __:1.0 _____% % % %
--------------------------------------------------------------------------------------------------------------------
Equal to or greater than
__:1.0 but less than __:1.0 _____% _____% _____% _____%
--------------------------------------------------------------------------------------------------------------------
Equal to or greater than
__:1.0 but less than __:1.0 _____% _____% _____% _____%
--------------------------------------------------------------------------------------------------------------------
Less than [___]:1.0 _____% _____% _____% _____%]/10/
--------------------------------------------------------------------------------------------------------------------
----------
/9/ CSFB to confirm formulation.
/10/ CSFB to advise.
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The Total Leverage Ratio shall be determined based on the delivery of
a certificate of Holdings by an Authorized Officer of Holdings to the
Administrative Agent (with a copy to be sent by the Administrative Agent to each
Lender), within 45 days of the last day of any fiscal quarter of Holdings, which
certificate shall set forth the calculation of the Total Leverage Ratio as at
the last day of the Test Period ended immediately prior to the relevant Start
Date (but determined on a Pro Forma Basis to give effect to any Permitted
Acquisition or Subsidiary Redesignation effected on or prior to the date of the
delivery of such certificate) and the Adjustable Applicable Margins which shall
be thereafter applicable (until same are changed or cease to apply in accordance
with the following sentences); provided that at the time of the consummation of
any Permitted Acquisition or Subsidiary Redesignation or any issuance of
Permitted Debt or Disqualified Preferred Stock, an Authorized Officer of
Holdings shall deliver to the Administrative Agent a certificate setting forth
the calculation of the Total Leverage Ratio on a Pro Forma Basis as of the last
day of the last Calculation Period ended prior to the date on which such
Permitted Acquisition or Subsidiary Redesignation is consummated or such
Permitted Debt or Disqualified Preferred Stock is/are issued for which financial
statements have been made available (or were required to be made available)
pursuant to Section 8.01(a) or (b), as the case may be, and the date of such
consummation shall be deemed to be a Start Date and the Adjustable Applicable
Margins which shall be thereafter applicable (until same are changed or cease to
apply in accordance with the following sentence) shall be based upon the Total
Leverage Ratio as so calculated. The Adjustable Applicable Margins so determined
shall apply, except as set forth in the succeeding sentence, from the relevant
Start Date to the earliest of (x) the date on which the next certificate is
delivered to the Administrative Agent, (y) the date on which the next Permitted
Acquisition or Subsidiary Redesignation is consummated or Permitted Debt or
Disqualified Preferred Stock is/are issued or (z) the date which is 45 days
following the last day of the Test Period in which the previous Start Date
occurred (such earliest date, the "End Date"), at which time, if no certificate
has been delivered to the Administrative Agent indicating an entitlement to new
Adjustable Applicable Margins (and thus commencing a new Start Date), the
Adjustable Applicable Margins shall be those set forth in the first sentence of
this definition (such Adjustable Applicable Margins as so determined, the
"Highest Applicable Margins"). Notwithstanding anything to the contrary
contained above in this definition, the Adjustable Applicable Margins shall be
the Highest Applicable Margins (x) at all times during which there shall exist
any Default or Event of Default and (y) prior to the date of delivery of the
financial statements pursuant to Section 8.01(b) for the fiscal quarter of
Holdings ended [March 31, 2004]/11/.
"Applicable PF Margin" shall mean a percentage per annum equal to
[3.50]%.
"Approved Insurance FinanceCo" shall mean an insurance financing
company acceptable to the Administrative Agent which shall make a lump sum
prepayment of insurance premiums on behalf of Holdings equal to $20.0 million to
an insurance carrier of Holdings.
"Asset Sale" shall mean any sale, transfer or other disposition by
Holdings or any of its Subsidiaries to any Person other than Holdings or any
Wholly-Owned Subsidiary of
----------
/11/ Open point.
-111-
Holdings of any asset (including, without limitation, any Equity Interests or
other securities of another Person, but excluding the sale by such Person of its
own Equity Interests) of Holdings or such Subsidiary other than (i) sales,
transfers or other dispositions of inventory made in the ordinary course of
business, (ii) dispositions or transfers arising out of, or in connection with,
the events described in clauses (i) and (ii) of the definition of Recovery
Event, (iii) any sale or other disposition of Cash Equivalents in the ordinary
course of business, (iv) any merger, consolidation or liquidation permitted by
Sections 9.02(f) and (g), (v) any transfer of assets permitted pursuant to
Section 9.02(e), (g), (j), (p) or (q) (vi) any transaction permitted pursuant to
Section 9.02(i), (m) or (o) and (vii) any other sales and dispositions that
generate Net Sale Proceeds of less than $1,000,000 in the aggregate in any
fiscal year of Holdings.
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit K (appropriately
completed).
"Authorized Officer" shall mean, with respect to (i) the delivery of
Notices of Borrowing, Notices of Conversion, Letter of Credit Requests and
similar notices, the chief financial officer, the chief operating officer, the
controller, any treasurer or any other financial officer of Holdings or the
Borrower, (ii) delivery of financial information and officer's certificates
pursuant to this Agreement, the chief financial officer, the chief operating
officer, the controller, any treasurer or any other financial officer of
Holdings or the Borrower and (iii) any other matter in connection with this
Agreement or any other Credit Document, any officer (or a person or persons so
designated by any two officers) of any Credit Agreement Party, in each case to
the extent reasonably acceptable to the Administrative Agent.
"Available Basket Amount" shall mean, on any date of determination, an
amount equal to the sum of (i) $20,000,000 minus (ii) the aggregate amount of
Investments made (including for such purpose the fair market value of any
Tractor Trailer contributed to any Joint Venture or Unrestricted Subsidiary (as
determined in good faith by senior management of Holdings), net of Indebtedness
and, without duplication, Capitalized Lease Obligations assigned to, and assumed
by, the respective Joint Venture or Unrestricted Subsidiary in connection
therewith) pursuant to Section 9.05(k) after the Effective Date, minus (iii) the
aggregate amount of Indebtedness or other obligations (whether absolute,
accrued, contingent or otherwise and whether or not due) of any Joint Venture or
Unrestricted Subsidiary for which Holdings or any of its Subsidiaries (other
than the respective Joint Venture or Unrestricted Subsidiary) is liable, minus
(iv) all payments made by Holdings or any of its Subsidiaries (other than the
respective Joint Venture or Unrestricted Subsidiary) in respect of Indebtedness
or other obligations of the respective Joint Venture or Unrestricted Subsidiary
(including, without limitation, payments in respect of obligations described in
preceding clause (iii)) after the Effective Date, plus (v) the amount of any
increase to the Available Basket Amount made after the Effective Date in
accordance with the provisions of Section 9.05(k) plus (vi) in the case of any
Subsidiary Redesignation, an amount equal to the lesser of (A) the aggregate
amount of all cash Investments theretofore made in the Unrestricted Subsidiary
subject to such Subsidiary Redesignation (less any increases in the Available
Basket Amount theretofore made in accordance with the provisions of Section
9.05(k) which were attributable to such Unrestricted Subsidiary) and (B) the
fair market value (as determined in good faith by Holdings) of the assets of
such Unrestricted Subsidiary (net of all consolidated Indebtedness and other
consolidated obligations of such Unrestricted Subsidiary). In connection with
the foregoing, it is understood that the acquisition
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of an Acquired Person which has ownership interests in one or more Joint
Ventures, pursuant to a Permitted Acquisition effected in accordance with the
relevant requirements of this Agreement shall not be deemed to constitute an
Investment pursuant to Section 9.05(k) and the Available Basket Amount shall not
be reduced as a result of the payment of consideration owing to effect the
Permitted Acquisition (although the Available Basket Amount would be affected to
the extent preceding clauses (iii) or (iv) apply with respect to the Joint
Venture so acquired or to the extent additional Investments are made in the
respective Joint Venture pursuant to Section 9.05(k)).
"Available Basket Sub-Limit" shall mean, on any date of determination,
an amount equal to the sum of (i) $10,000,000 minus (ii) the aggregate amount of
Investments made (including for such purpose the fair market value of any
Tractor Trailer contributed to any Unrestricted Subsidiary (as determined in
good faith by senior management of Holdings)) in Unrestricted Subsidiaries
pursuant to Section 9.05(k), minus (iii) the aggregate amount of Indebtedness or
other obligations (whether absolute, accrued, contingent or otherwise and
whether or not due) of any Unrestricted Subsidiary for which Holdings or any of
its Subsidiaries is liable, minus (iv) all payments made by Holdings or any of
its Subsidiaries in respect of Indebtedness or other obligations of the
respective Unrestricted Subsidiary (including, without limitation, payments in
respect of obligations described in preceding clause (iii)) after the Effective
Date, plus (v) the amount of any increase to the Available Basket Sub-Limit made
after the Effective Date in accordance with the provisions of Section 9.05(k);
provided that the Available Basket Sub-Limit shall not exceed at any time the
Available Basket Amount as then in effect.
"Bank Refinancing" shall mean the refinancing transactions described
in Sections 5.09(a) and (b).
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"Base Rate" at any time shall mean the higher of (x) the rate which is
1/2 of 1 % in excess of the Federal Funds Rate and (y) the Prime Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the rates
provided in Section 1.08(a).
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrower Irrevocable Notices of Redemption" shall have the meaning
provided in Section 8.17(a).
"Borrowing" shall mean and include (i) the borrowing of Swingline
Loans from CSFB on a given date and (ii) the borrowing of one Type of Loan
pursuant to a single Tranche by the Borrower from all of the Lenders having
Commitments with respect to such Tranche on a pro rata basis on a given date (or
resulting from conversions on a given date), having in the case of Eurodollar
Loans the same Interest Period; provided, that Base Rate Loans incurred pursuant
to Section 1.10(b) shall be considered part of any related Borrowing of
Eurodollar Loans.
-113-
"BSCL" shall mean Bear Xxxxxxx Corporate Lending Inc. in its
individual capacity and any successor thereto.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day which shall be
in New York City a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close and (ii) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and between
banks in U.S. dollar deposits in the New York or London interbank Eurodollar
market.
"Calculation Period" shall mean, with respect to any Permitted
Acquisition, any Subsidiary Redesignation or any other event expressly required
to be calculated on a Pro Forma Basis pursuant to the terms of this Agreement,
the Test Period most recently ended prior to the date of such Permitted
Acquisition, Subsidiary Redesignation or other event.
"Capital Expenditures" shall mean, with respect to any Person, for any
period, all expenditures by such Person which should be capitalized in
accordance with GAAP during such period, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with GAAP)
and, without duplication, the amount of all Capitalized Lease Obligations
incurred by such Person during such period.
"Capital Lease," as applied to any Person, shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of Holdings or any of its Subsidiaries, in each case taken at the
amount thereof accounted for as liabilities in accordance with GAAP.
"Cash Equivalents" shall mean, as to any Person, (i) securities issued
or directly and fully guaranteed or insured by the United States or any agency
or instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof) having maturities of not more than
six months from the date of acquisition, (ii) time deposits, certificates of
deposit and bankers' acceptances of any Lender or any commercial bank having, or
which is the principal banking subsidiary of a bank holding company organized
under the laws of the United States, any State thereof, the District of Columbia
or any foreign jurisdiction having capital, surplus and undivided profits
aggregating in excess of $200,000,000 and having a long-term unsecured debt
rating of at least "A" or the equivalent thereof from S&P or "A2" or the
equivalent thereof from Xxxxx'x, with maturities of not more than six months
from the date of acquisition by such Person, (iii) repurchase agreements with a
term of not more than 30 days, involving securities of the types described in
preceding clause (i), and entered into with commercial banks meeting the
requirements of preceding clause (ii), (iv) commercial paper issued by any
Person incorporated in the United States rated at least A-1 or the equivalent
thereof by S&P or at least P-1 or the equivalent thereof by Xxxxx'x and in each
case maturing not more than six months after the date of acquisition by such
Person, (v) investments in money market
-114-
funds substantially all of whose assets are comprised of securities of the types
described in clauses (i) through (iv) above and (vi) overnight deposits and
demand deposit accounts (in the respective local currencies) maintained in the
ordinary course of business.
"Change of Control Event" shall mean, (a) any Person or "group"
(within the meaning of Rules 13d-3 and 13d-5 under the Securities Exchange Act
of 1934, as in effect on the Effective Date), other than the Permitted Holders,
shall have acquired beneficial ownership of 35% or more on a fully diluted basis
of the voting and/or economic interest in Holdings' capital stock and Apollo
Group and its Affiliates shall own less than such Person or "group" on a fully
diluted basis of the economic and voting interest in the Holdings' capital stock
or (b) the Board of Directors of Holdings shall cease to consist of a majority
of Continuing Directors, (c) a "change of control" or similar event shall occur
as provided in any New Senior Subordinated Note Document, any Existing Senior
Notes Document or any Scheduled Existing Indebtedness, Permitted Debt,
Disqualified Preferred Stock, Qualified Preferred Stock or the documentation
governing the same to the extent the outstanding principal amount or liquidation
preference, as the case may be, of such Scheduled Existing Indebtedness,
Permitted Debt, Disqualified Preferred Stock or Qualified Preferred Stock
exceeds $15,000,000, or (d) Holdings shall cease to own directly 100% of the
membership interests of the Borrower.
"CLC" shall mean Chemical Xxxxxx Corporation, a Pennsylvania
corporation.
"CLC Preferred Stock" shall mean, collectively, CLC's Series A
Preferred Stock, $.01 par value per share, and Series B Preferred Stock, $.01
par value per share.
"CLC Preferred Stock Documents" shall mean the CLC Preferred Stock,
the certificate of designation in respect of the CLC Preferred Stock and the
other documents executed and delivered in connection with the issuance of the
CLC Preferred Stock.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated thereunder. Section references to
the Code are to the Code, as in effect at the date of this Agreement and any
subsequent provisions of the Code, amendatory thereof, supplemental thereto or
substituted therefor.
"Collateral" shall mean all property (whether real or personal,
movable or immovable) with respect to which any security interests have been
granted (or purported to be granted) pursuant to any Security Document,
including, without limitation, all Pledge Agreement Collateral, all Security
Agreement Collateral, all Mortgaged Properties and all cash and Cash Equivalents
delivered as collateral pursuant to any Credit Document.
"Collateral Agent" shall mean the Administrative Agent acting as
collateral agent for the Secured Creditors.
"Collective Bargaining Agreements" shall have the meaning provided in
Section 5.12.
"Commitment" shall mean any of the commitments of any Lender, i.e.,
whether the Term Loan Commitment, the Revolving Loan Commitment or the PF Letter
of Credit Commitment.
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"Commitment Fee" shall mean the RL Commitment Fee and the TL
Commitment Fee.
"Company" shall mean any corporation, limited liability company,
partnership or other business entity (or the adjectival form thereof, where
appropriate).
"Consolidated Current Assets" shall mean, at any time, the current
assets (other than deferred income taxes to the extent included in current
assets) of Holdings and its Subsidiaries plus the long-term insurance deposits
of Holdings and its Subsidiaries at such time, in each case determined on a
consolidated basis.
"Consolidated Current Liabilities" shall mean, at any time, the
current liabilities of Holdings and its Subsidiaries determined on a
consolidated basis, but excluding deferred income taxes, restructuring costs or
reserves, litigation costs or reserves and the current portion of, and accrued
but unpaid interest on, any Indebtedness under this Agreement and any other
long-term Indebtedness which would otherwise be included therein and adding
thereto the long-term pension liabilities of Holdings and its Subsidiaries, in
each case determined on a consolidated basis.
"Consolidated Debt" shall mean, at any time, the sum of (without
duplication) (i) all Indebtedness of Holdings and its Subsidiaries as would be
required to be reflected on the liability side of a balance sheet of such Person
in accordance with GAAP as determined on a consolidated basis, (ii) all
Indebtedness of Holdings and its Subsidiaries of the type described in clauses
(iii) and (vii) of the definition of Indebtedness and (iii) all Contingent
Obligations of Holdings and its Subsidiaries in respect of Indebtedness of other
Persons (i.e., Persons other than Holdings or any of its Subsidiaries) of the
type referred to in preceding clauses (i) and (ii) of this definition; provided,
that for purposes of this definition, (w) outstanding Indebtedness of Holdings
and its Subsidiaries of the type described in clause (iii) of the definition of
Indebtedness in an aggregate amount not to exceed $35.0 million shall be
excluded in making any determination of Consolidated Debt, (x) the amount of
Indebtedness in respect of Interest Rate Protection Agreements and Other Hedging
Agreements shall be at any time the aggregate unrealized net loss position, if
any, of Holdings and/or its Subsidiaries thereunder on a marked-to-market basis
determined no more than one month prior to such time, (y) any Disqualified
Preferred Stock of Holdings and any Preferred Stock of any of its Subsidiaries
shall be treated as Indebtedness, with an amount equal to the greater of the
liquidation preference or the maximum mandatory fixed repurchase price of any
such outstanding Preferred Stock deemed to be a component of Consolidated Debt
and [(z) any outstanding Indebtedness permitted pursuant to Section 9.04(m) and
otherwise included as a component of Consolidated Debt pursuant to clause (i)
above shall be excluded in making any determination of Consolidated Debt]/12/.
"Consolidated EBIT" shall mean, for any period, the Consolidated Net
Income of Holdings and its Subsidiaries, determined on a consolidated basis,
before Consolidated Interest
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/12/ Included in Existing Credit Agreement. CSFB to advise.
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Expense (to the extent deducted in arriving at Consolidated Net Income) and
provision for taxes based on income, in each case that were included in arriving
at Consolidated Net Income.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT,
adjusted by adding thereto (in each case to the extent deducted in determining
Consolidated Net Income for such period and not already added back in
determining Consolidated EBIT) the amount of (i) all amortization and
depreciation and other non-cash items, (ii) any fees and expenses incurred in
connection with the Transaction during such period and (iii) any advisory fees
paid pursuant to, and in accordance with the requirements of, clause (v) of
Section 9.07 during such period.
"Consolidated Interest Coverage Ratio" for any period shall mean the
ratio of Consolidated EBITDA to Consolidated Interest Expense for such period.
All calculations of the Consolidated Interest Coverage Ratio shall be made on a
Pro Forma Basis.
"Consolidated Interest Expense" shall mean, for any period, the total
consolidated interest expense of Holdings and its Subsidiaries for such period
(calculated without regard to any limitations on the payment thereof) plus,
without duplication, (i) that portion of Capitalized Lease Obligations of
Holdings and its Subsidiaries representing the interest factor for such period,
and capitalized interest expense, plus (ii) that portion of Indebtedness of
Holdings incurred in connection with a Permitted Insurance Program representing
the interest factor for such period plus (iii) the product of (x) the amount of
all cash Dividend requirements (whether or not declared or paid) on Disqualified
Preferred Stock of Holdings and on any Preferred Stock of any of its
Subsidiaries paid, accrued or scheduled to paid or accrued during such period
multiplied by (y) a fraction, the numerator of which is one and the denominator
of which is one minus the then current effective consolidated Federal, state,
local and foreign tax rate (expressed as a decimal number between one and zero)
of Holdings as reflected in the audited consolidated financial statements of
Holdings for its most recently completed fiscal year, which amounts described in
preceding clause (iii) shall be treated as interest expense of Holdings and its
Subsidiaries for purposes of this definition regardless of the treatment of such
amounts under GAAP, in each case net of the total consolidated cash interest
income of Holdings and its Subsidiaries for such period, but excluding the
amortization of any deferred financing costs or of any costs in respect of any
Interest Rate Protection Agreement. Notwithstanding anything to the contrary
contained above, to the extent Consolidated Interest Expense is to be determined
for any Test Period which ends prior to the first anniversary of the Initial
Borrowing Date, Consolidated Interest Expense for all portions of such period
occurring prior to the Initial Borrowing Date shall be calculated in accordance
with the definition of Test Period contained herein.
"Consolidated Net Income" shall mean, for any period, the net
after-tax income of Holdings and its Subsidiaries determined on a consolidated
basis in accordance with GAAP, without giving effect to any after-tax
non-recurring gains or losses or after-tax items classified as extraordinary
gains or losses, any other any non-cash expenses incurred or payments made in
connection with the Transaction, and without giving effect to gains and losses
from the sale or disposition of assets (other than sales or dispositions of
inventory, equipment, raw materials and supplies in the ordinary course of
business) by Holdings and its Subsidiaries; provided that the following items
shall be excluded in computing Consolidated Net Income (without duplication):
(i) the net income or net losses of any Person in which any other Person or
Persons (other than Holdings and its Wholly-Owned Domestic Subsidiaries) has an
Equity Interest or Equity
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Interests, except to the extent of the amount of dividends or other
distributions actually paid to Holdings or such Wholly-Owned Subsidiaries by
such Person during such period, (ii) except for determinations expressly
required to be made on a Pro Forma Basis, the net income (or loss) of any Person
accrued prior to the date it becomes a Subsidiary or all or substantially all of
the property or assets of such Person are acquired by a Subsidiary and (iii) the
net income of any Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary of such net income is not
at the time permitted by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Subsidiary.
"Contingent Obligations" shall mean as to any Person any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (b) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (d) otherwise to assure or hold harmless the owner of
such primary obligation against loss in respect thereof; provided, however, that
the term Contingent Obligation shall not include endorsements of instruments for
deposit or collection or standard contractual indemnities entered into, in each
case in the ordinary course of business. The amount of any Contingent Obligation
shall be deemed to be an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Contingent Obligation is made
or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.
"Continuing Directors" shall mean the directors of Holdings on the
Effective Date and each other director if such director's nomination for the
election to the Board of Directors of Holdings is recommended by a majority of
the then Continuing Directors.
"Co-Syndication Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the respective
Co-Syndication Agent designated pursuant to Section 12.10.
"Credit Agreement Party" shall mean each of Holdings and the Borrower.
"Credit Documents" shall mean this Agreement, the Notes, each Guaranty
and each Security Document.
"Credit Event" shall mean the making of a Loan (other than a Revolving
Loan made pursuant to a Mandatory Borrowing) or the issuance of a Letter of
Credit.
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"Credit-Linked Deposit" shall mean, as to each PF Lender, the cash
deposit made by such PF Lender pursuant to Section 2.06(a) or Section 1.13 or
13.04(b), as the case may be, as such deposit may be (x) reduced from time to
time pursuant to the terms of this Agreement and (y) reduced or increased from
time to time pursuant to assignments to or by such PF Lender pursuant to Section
1.13 or 13.04(b). The initial amount of each PF Lender's Credit-Linked Deposit
shall be equal to the amount of its PF Letter of Credit Commitment on the
Initial Borrowing Date or on the date that such Person becomes a PF Lender
pursuant to Section 1.13 or 13.04(b).
"Credit-Linked Deposit Account" shall mean the account of, and
established by, the Administrative Agent under its sole and exclusive control
and maintained at the office of the Administrative Agent located at
[__________], and designated as the "QDI Credit-Linked Deposit Account" that
shall be used solely for the purposes set forth in Sections 2.03(c) and 2.04(b).
"Credit-Linked Deposit Cost Amount" shall mean, at any time, an amount
(expressed in basis points) determined by the Administrative Agent in
consultation with the Borrower based on the term on which the Credit-Linked
Deposits are invested from time to time, which in no event shall exceed 0.10%
per annum.
"Credit Party" shall mean Holdings, the Borrower and each Subsidiary
Guarantor.
"CSFB" shall mean Credit Suisse First Boston, Acting Through Its
Cayman Islands Branch, in its individual capacity and any successor thereto.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a
Lender Default is in effect.
"Disqualified Preferred Stock" shall mean any Preferred Stock of
Holdings other than Qualified Preferred Stock.
"Dividend" shall have the meaning provided in Section 9.06.
"Documentation Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the respective
Documentation Agent designated pursuant to Section 12.10.
"Documents" shall mean and include (i) the Credit Documents, (ii) the
Refinancing Documents, (iii) the Holdings Equity Financing Documents, (iv) the
New Senior Subordinated Notes Documents, (v) the Preferred Stock Conversion
Documents and (vi) all other documents, agreements and instruments executed in
connection with the Transaction.
"Domestic Subsidiary" of any Person shall mean any Subsidiary of such
Person incorporated or organized in the United States or any State or territory
thereof.
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"Domestic Unrestricted Subsidiary" of any Person shall mean any
Unrestricted Subsidiary of such Person which is not a Foreign Unrestricted
Subsidiary.
"Drawing" shall have the meaning provided in Section 2.03(a).
"Effective Date" shall have the meaning set forth in Section 13.10.
"Eligible Transferee" shall mean and include a commercial bank,
insurance company, mutual fund, financial institution, a "qualified
institutional buyer" (as defined in Rule 144A of the Securities Act), any fund
that invests in bank loans or any other "accredited investor" (as defined in
Regulation D of the Securities Act) (other than an individual and Holdings and
its Affiliates).
"Employee Benefit Plans" shall have the meaning set forth in Section
5.12.
"Employment Agreements" shall have the meaning set forth in Section
5.12.
"End Date" shall have the meaning provided in the definition of
Applicable Margin.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of non-compliance or violation, investigations or proceedings relating
in any way to any violation (or alleged violation) by Holdings or any of its
Subsidiaries under any Environmental Law (hereafter "Claims") or any permit
issued to Holdings or any of its Subsidiaries under any such law, including,
without limitation, (a) any and all Claims by governmental or regulatory
authorities for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law, and (b) any and
all Claims by any third party seeking damages, contribution, indemnification,
cost recovery, compensation or injunctive relief resulting from Hazardous
Materials or arising from alleged injury or threat of injury to health, safety
or the environment.
"Environmental Expenditures" shall mean, with respect to any Person,
for any period, all expenditures by such Person to undertake any removal,
remedial or other corrective action with respect to any hazardous materials on
any Real Property previously, currently or hereafter owned, leased or operated
by such Person or any Program Affiliate of such Person.
"Environmental Law" shall mean any federal, state, provincial, foreign
or local policy, statute, law, rule, regulation, ordinance, code or rule of
common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment (for purposes of this
definition (collectively, "Laws")), relating to the environment, or Hazardous
Materials or health and safety to the extent such health and safety issues arise
under the Occupational Safety and Health Act of 1970, as amended, or any such
similar Laws.
"Equity Interests" of any Person shall mean any and all shares,
interests, rights to purchase, warrants, options, participation or other
equivalents of or interest in (however
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designated) equity of such Person, including any preferred stock, any limited or
general partnership interest and any limited liability company membership
interest.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at the
date of this Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with Holdings or a Subsidiary of Holdings would be
deemed to be a "single employer" within the meaning of Section 414(b) or (c) of
the Code, and for the purpose of Section 302 of ERISA and/or Section 412, 4971,
4977 and/or each "applicable section" under Section 414(t)(2) of the Code,
within the meaning of Section 414(b), (c), (m) or (o) of the Code.
"Eurodollar Loans" shall mean each Loan bearing interest at the rates
provided in Section 1.08(b).
"Eurodollar Rate" shall mean [with respect to each Interest Period for
a Eurodollar Loan, (i) the arithmetic average of the offered quotation to
first-class banks in the interbank Eurodollar market by CSFB for U.S. dollar
deposits of amounts in same day funds comparable to the outstanding principal
amount of the Eurodollar Loan of CSFB for which an interest rate is then being
determined with maturities comparable to the Interest Period to be applicable to
such Eurodollar Loan, determined as of 10:00 A.M. (New York time) on the date
which is two Business Days prior to the commencement of such Interest Period
divided by (ii) a percentage equal to 100% minus the then stated maximum rate of
all reserve requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves) applicable to any member
bank of the Federal Reserve System in respect of Eurocurrency liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D).]/13/
"Event of Default" shall have the meaning provided in Section 10.
"Excess Cash Flow" shall mean, for any period, the remainder of (a)
the sum of (i) Adjusted Consolidated Net Income for such period, and (ii) the
decrease, if any, in Adjusted Consolidated Working Capital from the first day to
the last day of such period, minus (b) the sum of (i) the amount of Capital
Expenditures and (to the extent not constituting Capital Expenditures and to the
extent not already deducted in the determination of Adjusted Consolidated Net
Income (or the determination of Consolidated Net Income used therein))
Environmental Expenditures made by Holdings and its Subsidiaries on a
consolidated basis during such period pursuant to and in accordance with
Sections 9.11(a) and (b), except to the extent financed with the proceeds of
Indebtedness (other than the proceeds of Revolving Loans), asset sales, equity
issuances or insurance recoveries, (ii) the aggregate amount of permanent
principal payments of Indebtedness for borrowed money of Holdings and its
Subsidiaries and the permanent repayment of the
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/13/ CSFB to advise.
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principal component of Capitalized Lease Obligations of Holdings and its
Subsidiaries (excluding (1) payments pursuant to the Refinancing, (2) payments
with proceeds of asset sales or insurance recoveries, (3) payments with the
proceeds of Indebtedness, Equity Interests or capital contributions and (4)
payments of Loans or other Obligations) during such period, (iii) the increase,
if any, in Adjusted Consolidated Working Capital from the first day to the last
day of such period, (iv) without duplication of amounts deducted in the
preceding clauses (b)(i), (ii) and (iii), the amount of cash expended in respect
of Permitted Acquisitions during such period, except to the extent financed with
Indebtedness and (v) non-recurring and extraordinary after-tax cash charges or
losses incurred during such period, to the extent not deducted in arriving at
Consolidated Net Income.
"Excess Cash Flow Payment Date" shall mean, the date occurring 90 days
after the last day of a fiscal year of Holdings (commencing with the fiscal year
of Holdings ended December 31, 2004).
"Excess Cash Flow Payment Period" shall mean, with respect to any
Excess Cash Flow Payment Date, the immediately preceding fiscal year of
Holdings.
"Excess Proceeds Amount" shall initially be $0, which amount shall be
(A) increased on each Excess Cash Flow Payment Date so long as any repayment
required pursuant to Section 4.02(g) has been made, by an amount equal to
Adjusted Excess Cash Flow for the immediately preceding Excess Cash Flow Payment
Period multiplied by a percentage equal to 100% minus the Applicable Excess Cash
Flow Percentage as in effect for the respective Excess Cash Flow Payment Date,
and (B) reduced (i) on each Excess Cash Flow Payment Date where Excess Cash Flow
for the immediately preceding Excess Cash Flow Payment Period is a negative
number, by such amount and (ii) at any time any Dividend is made or paid
pursuant to Section 9.06(xiv), by the aggregate amount of cash expended to
effect such Dividend (it being understood that the Excess Proceeds Amount may be
reduced to an amount below zero after giving effect to the reductions enumerated
in clause (B) above).
"Excluded Collateral" shall have the meaning provided in the Security
Agreement.
"Excluded Recovery Event" shall mean (i) any Recovery Event resulting
in the receipt of proceeds by Holdings or any of its Subsidiaries of less than
$1,000,000 and (ii) any receipt of insurance proceeds by Holdings or any of its
Subsidiaries payable under an insurance policy covering environmental
liabilities, to the extent (and only to the extent) (x) Holdings or such
Subsidiary has, prior to the date of its receipt of such proceeds, used monies
to remediate or restore properties in respect of which such proceeds were paid,
(y) the amount of the insurance proceeds included for purposes of this clause
(ii) does not exceed the amount of the monies so used to remediate or restore
properties as provided in the immediately preceding clause (x) and (z) within 10
days following receipt by the Holdings or such Subsidiary of such insurance
proceeds, an Authorized Officer of Holdings has delivered to the Administrative
Agent an officer's certificate, certifying Holdings' compliance with preceding
clauses (x) and (y) and attaching invoices and such other supporting information
as the Administrative Agent may request. For avoidance of doubt, the parties
hereto acknowledge and agree that the receipt by Holdings or any of its
Subsidiaries of any proceeds from a single Recovery Event of the type
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described in clause (ii) above not entitled to inclusion in said clause (ii) by
virtue of the qualification contained in clause (y) thereof shall be subject to
the provisions of Section 4.02(f) as if such receipt of proceeds were a separate
and distinct Recovery Event.
"Existing Credit Agreement" shall mean the Credit Agreement, dated as
of June 9, 1998 and amended and restated as of August 28, 1998, among Holdings,
the Borrower, Levy Transport Ltd./Levy Transport LTEE, the banks from time to
time party thereto, Lasalle Bank National Association, The Bank of Nova Scotia,
PB Capital Corp. (f/k/a BHF-Bank Aktiengesellschaft), Bank Austria Creditanstalt
Corporate Finance, Inc. (f/k/a Creditanstalt Corporate Finance, Inc.) and Royal
Bank of Canada, as co-agents, Salomon Brothers Holding Company, Inc., as
documentation agent, Deutsche Bank Trust Company Americas (f/k/a Bankers Trust
Company), as administrative agent, as in effect on the Initial Borrowing Date
(immediately prior to giving effect to the Transaction).
"Existing Indebtedness" shall have the meaning provided in Section
5.09(c).
"Existing Indebtedness Agreements" shall have the meaning provided in
Section 5.12.
"Existing Junior PIK Notes" shall mean Holdings' 12% Junior
Subordinated PIK Notes due 2009 issued pursuant to the Existing Junior PIK Notes
Indenture, as in effect on the Initial Borrowing Date and as the same may be
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.
"Existing Junior PIK Notes Documents" shall mean the Existing Junior
PIK Notes, the Existing Junior PIK Notes Indenture and all other documents
executed and delivered with respect to the Existing Junior PIK Notes or the
Existing Junior PIK Notes Indenture, as in effect on the Initial Borrowing Date
and as the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Existing Junior PIK Notes Indenture" shall mean the Indenture, dated
as of May 30, 2002, among Holdings and Wilmington Trust Company as trustee, as
in effect on the Initial Borrowing Date and as the same may be amended, modified
or supplemented from time to time in accordance with the terms hereof and
thereof.
"Existing Letter of Credit" shall have the meaning provided in Section
2.01(e).
"Existing Senior Notes Documents" shall mean and include (i) the
Existing Senior Subordinated Secured Notes Documents, (ii) the Existing 2006
Senior Subordinated Notes Documents and (iii) the Existing Junior PIK Notes
Documents.
"Existing Senior Notes Refinancing" shall have the meaning provided in
Section 8.17.
"Existing Senior Notes To Be Refinanced" shall mean and include (i)
Existing Senior Subordinated Secured Notes, (ii) the Existing 2006 10% Senior
Subordinated Notes and (iii) the Existing Junior PIK Notes.
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"Existing Senior Subordinated Secured Notes" shall mean the Borrower's
12-1/2% Senior Subordinated Secured Notes due 2008 issued pursuant to the
Existing Senior Subordinated Secured Notes Indenture, as in effect on the
Initial Borrowing Date and as the same may be amended, modified or supplemented
from time to time in accordance with the terms hereof and thereof.
"Existing Senior Subordinated Secured Notes Documents" shall mean the
Existing Senior Subordinated Secured Notes, the Existing Senior Subordinated
Secured Notes Indenture and all other documents executed and delivered with
respect to the Existing Senior Subordinated Secured Notes or the Existing Senior
Subordinated Secured Notes Indenture, as in effect on the Initial Borrowing Date
and as the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Existing Senior Subordinated Secured Notes Indenture" shall mean the
Indenture, dated as of May 30, 2002, among the Borrower, the Subsidiary
Guarantors (other than QD Capital) and Bank of New York, as trustee, as in
effect on the Initial Borrowing Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Existing 2006 Floating Rate Senior Subordinated Notes" shall mean
Holdings' Floating Interest Rate Subordinated Term Securities due 2006 issued
pursuant to the Existing 2006 Senior Subordinated Note Indenture, as in effect
on the Initial Borrowing Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Existing 2006 Senior Subordinated Notes" shall mean the Existing 2006
10% Senior Subordinated Notes and the Existing 2006 Floating Rate Senior
Subordinated Notes.
"Existing 2006 Senior Subordinated Notes Documents" shall mean the
Existing 2006 Senior Subordinated Notes, the Existing 2006 Senior Subordinated
Notes Indenture and all other documents executed and delivered with respect to
the Existing 2006 Senior Subordinated Notes or the Existing 2006 Senior
Subordinated Notes Indenture, as in effect on the Initial Borrowing Date and as
the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Existing 2006 Senior Subordinated Notes Indenture" shall mean the
Indenture, dated as of June 9, 1998, among Holdings, the Subsidiary Guarantors
(other than QD Capital) and United States Trust Company of New York, as trustee,
as in effect on the Initial Borrowing Date and as the same may be amended,
modified or supplemented from time to time in accordance with the terms hereof
and thereof.
"Existing 2006 10% Senior Subordinated Notes" shall mean Holdings' 10%
Senior Subordinated Notes due 2006 issued pursuant to the Existing 2006 Senior
Subordinated Note Indenture, as in effect on the Initial Borrowing Date and as
the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Facing Fee" shall have the meaning provided in Section 3.01(e).
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"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 3.01.
"Foreign Pension Plan" means any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by Holdings or any one or more
of its Subsidiaries primarily for the benefit of employees of Holdings or any of
its Subsidiaries residing outside the United States of America, which plan, fund
or other similar program provides, or results in, retirement income, a deferral
of income in contemplation of retirement or payments to be made upon termination
of employment, and which plan is not subject to ERISA or the Code.
"Foreign Subsidiary" of any Person shall mean any Subsidiary of such
Person that is not a Domestic Subsidiary.
"Foreign Unrestricted Subsidiary" of any Person shall mean each
Unrestricted Subsidiary of such Person that is incorporated under the laws of
any jurisdiction other than the United States of America or any State or
territory thereof.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time; it being understood and
agreed that determinations in accordance with GAAP for purposes of Section 9,
including defined terms as used therein, are subject (to the extent provided
therein) to Section 13.07(a).
"Gross-Up Amount" shall have the meaning provided in Section 4.04(a).
"Guaranteed Creditors" shall mean and include each of the Agents, the
Collateral Agent, each Letter of Credit Issuer, each Lender and each Lender
and/or affiliate thereof (even if such Lender subsequently ceases to be a Lender
under this Agreement for any reason) which participates in any Interest Rate
Protection Agreement or Other Hedging Agreement, and their subsequent assigns,
if any.
"Guaranteed Obligations" shall mean (i) the principal and interest on
each Note issued to each Lender, and all Loans made, under this Agreement and
all reimbursement obligations and Unpaid Drawings with respect to Letters of
Credit, together with all the other obligations (including obligations which,
but for the automatic stay under Section 362(a) of the Bankruptcy Code, would
become due) and liabilities (including, without limitation, indemnities, fees
and interest thereon) of the Borrower to each Lender, each Letter of Credit
Issuer, the Agents and the Collateral Agent now existing or hereafter incurred
under, arising out of or in connection with this Agreement or any other Credit
Document and the due performance and compliance by the Borrower with all the
terms, conditions and agreements contained in the
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Credit Documents to which it is a party and (ii) all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities of the Borrower owing under
any Interest Rate Protection Agreement or Other Hedging Agreement entered into
by the Borrower with any Guaranteed Creditor, whether now in existence or
hereafter arising, and the due performance and compliance with all terms,
conditions and agreements contained therein.
"Guaranties" shall mean and include the Subsidiaries Guaranty, the
Holdings Guaranty and each guaranty entered into pursuant to Section 8.12 or
8.15.
"Guarantors" shall mean Holdings, each Subsidiary Guarantor and any
other Person party to a Guaranty.
"Hazardous Materials" shall mean (a) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (b) any chemicals, materials or substances defined as or included
in the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "restricted hazardous materials," "extremely hazardous wastes,"
"restrictive hazardous wastes," "toxic pollutants," "contaminants" or
"pollutants" under any Environmental Law, or words of similar meaning and
regulatory effect.
"Holdings" shall have the meaning provided in the first paragraph of
this Agreement.
"Holdings Common Stock" shall have the meaning provided in Section
7.13.
"Holdings Equity Contribution" shall have the meaning provided in
Section 5.08(a).
"Holdings Equity Financing" shall have the meaning provided in Section
5.08(a).
"Holdings Equity Financing Documents" shall mean all of the documents
and agreements entered into in connection with the Holdings Equity Financing.
"Holdings Guaranty" shall mean the guaranty of Holdings pursuant to
Section 14 of this Agreement.
"Holdings Irrevocable Notices of Redemption" shall have the meaning
provided in Section 8.17(a).
"Indebtedness" of any Person shall mean, without duplication, (i) all
indebtedness of such Person for borrowed money, (ii) the deferred purchase price
of assets or services payable to the sellers thereof or any of such seller's
assignees which in accordance with GAAP would be shown on the liability side of
the balance sheet of such Person but excluding deferred rent as determined in
accordance with GAAP, (iii) the face amount of all letters of credit issued for
the account of such Person and, without duplication, all drafts drawn
thereunder, (iv) all Indebtedness of a second Person secured by any Lien on any
property owned by such first
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Person, whether or not such Indebtedness has been assumed, (v) all Capitalized
Lease Obligations of such Person, (vi) all obligations of such Person to pay a
specified purchase price for goods or services whether or not delivered or
accepted, i.e., take-or-pay and similar obligations, (vii) all obligations under
Interest Rate Protection Agreements and Other Hedging Agreements and (viii) all
Contingent Obligations of such Person, provided, that Indebtedness shall not
include trade payables and accrued expenses, in each case arising in the
ordinary course of business.
"Initial Borrowing Date" shall mean the date upon which the initial
Borrowing of Loans occurs.
"Intercompany Debt" shall mean any Indebtedness, payables or other
obligations, whether now existing or hereafter incurred, owed by Holdings or any
Subsidiary of Holdings to Holdings or any other Subsidiary of Holdings.
"Intercompany Loan" shall have the meaning provided in Section
9.05(f).
"Intercompany Notes" shall mean promissory notes, in the form of
Exhibit L, evidencing Intercompany Loans or intercompany loans made by the
Borrower to Holdings pursuant to Section 9.05(q).
"Intercompany Subordination Agreement" shall have the meaning provided
in Section 5.11(b).
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period," shall mean (i) with respect to any Eurodollar Loan,
the interest period applicable thereto, as determined pursuant to Section 1.09
and (ii) as to any investment of the Credit-Linked Deposits, the period
commencing on the Initial Borrowing Date and ending on the date that is three
months thereafter and each successive three month period thereafter, provided
that (x) if any Interest Period for the Credit-Linked Deposits begins on a day
for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period, such Interest Period shall end on the last Business
Day of such calendar month, and (y) if any Interest Period for the Credit-Linked
Deposits would otherwise expire on a day which is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day, although if
any Interest Period for the Credit-Linked Deposits Loan would otherwise expire
on a day which is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate hedging agreement or other similar agreement or arrangement.
"Investment" shall have the meaning provided in the preamble to
Section 9.05.
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"Irrevocable Notices of Redemption" shall have the meaning provided in
Section 8.17(a).
"Joint Venture" shall mean any Person, other than an individual or a
Wholly-Owned Subsidiary of Holdings, (i) in which Holdings or a Subsidiary of
Holdings holds or acquires an ownership interest (whether by way of capital
stock, partnership or limited liability company interest, or other evidence of
ownership) and (ii) which is engaged in a Permitted Business.
"L/C Supportable Indebtedness" shall mean obligations of Holdings or
its Wholly-Owned Subsidiaries incurred in the ordinary course of business and
otherwise permitted to exist pursuant to the terms of this Agreement (other than
obligations in respect of the New Senior Subordinated Notes and Indebtedness
which is subordinated to any of the Obligations or Equity Interests).
"Leasehold" of any Person shall mean all of the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Lender" shall have the meaning provided in the first paragraph of
this Agreement.
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any Borrowing (including
a Mandatory Borrowing) or to fund its portion of any unreimbursed payment under
Section 2.03 or (ii) a Lender having notified the Administrative Agent and/or
the Borrower that it does not intend to comply with the obligations under
Section 1.01(b), 1.01(d) or 2.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
Letters of Credit shall be either (x) PF Letters of Credit to the extent of
Letter of Credit Outstandings not exceeding the Total PF Letter of Commitment at
such time (or, if theretofore terminated, the aggregate amount of the
Credit-Linked Deposits at such time) or (y) WC Letters of Credit to the extent
of Letter of Credit Outstandings that exceed the Total PF Letter of Commitment
at such time (or, if theretofore terminated, the aggregate amount of the
Credit-Linked Deposits at such time).
"Letter of Credit Issuer" shall mean (i) CSFB, any affiliate of CSFB
and any other Lender which, at the request of the Borrower and with the consent
of the Administrative Agent, agrees in such Lender's sole discretion to become a
Letter of Credit Issuer for purposes of issuing Letters of Credit pursuant to
Section 2 and (ii) with respect to the Existing Letters of Credit, the Lender
designated as the issuer thereof on Schedule XIII shall be the Letter of Credit
Issuer thereof.
"Letter of Credit Request" shall have the meaning provided in Section
2.02(a).
"LIBOR Rate" shall mean, for any Interest Period with respect to the
investment of the Credit-Linked Deposits, [the rate for deposits in Dollars for
a period of three months which appears on the Telerate Page 3750 as of 11:00
A.M. (London time) on the day that is two
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Business Days preceding the beginning of such Interest Period. If such rate does
not appear on Telerate Page 3750, the rate for that Interest Period will be the
rate determined in good faith by the Administrative Agent on the basis of the
rates at which deposits in Dollars are offered by four major banks in the London
interbank market at approximately 11:00 A.M. (London time) on the day that is
two Business Days preceding the beginning of the new Interest Period to prime
banks in the London interbank market for a period of three months commencing on
the beginning of the new Interest Period and in the then outstanding amount of
the Credit-Linked Deposits. The Administrative Agent will request the principal
London office of each of such four major banks in the London interbank market to
provide a quotation of its rate. If at least two such quotations are provided,
the rate for that new Interest Period will be the arithmetic mean of the
quotations. If fewer than two quotations are provided as requested, the rate for
that Interest Period will be the arithmetic mean of the rates quoted by major
banks in New York City, selected by the Administrative Agent, at approximately
11:00 A.M. (New York time) on the beginning of the new Interest Period for loans
in Dollars to leading European banks for a period of three months commencing on
the beginning of the new Interest Period and in the amount of the Credit-Linked
Deposits.]/14/
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien, hypothec or charge of any kind (including any agreement to
give any of the foregoing, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
any similar recording or notice statute, and any lease having substantially the
same effect as the foregoing).
"Loan" shall mean each Term Loan, each Revolving Loan and each
Swingline Loan.
"Majority Lenders" of any Tranche shall mean those Non-Defaulting
Lenders which would constitute the Required Lenders under, and as defined in,
this Agreement if all outstanding Obligations of the other Tranches under this
Agreement were repaid in full and all Commitments with respect thereto were
terminated.
"Management Agreements" shall have the meaning provided in Section
5.12.
"Management Participants" shall mean certain members of management of
Holdings previously identified and satisfactory to the Administrative Agent.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(d).
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean (i) a material adverse effect on
the business, properties, assets, nature of assets, operations, liabilities,
condition (financial or otherwise) or prospects of Holdings and its Subsidiaries
taken as a whole, [or (ii) a material adverse effect (x) on the rights or
remedies of the Lenders or any Agent hereunder or under any other Credit
----------
/14/ CSFB to advise.
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Document or (y) on the ability of any Credit Party to perform its payment
obligations to the Lenders or any Agent hereunder or under any other Credit
Document.]/15/
"Material Contracts" shall have the meaning provided in Section 5.12.
"Maturity Date", with respect to any Tranche of Loans, shall mean the
Term Loan Maturity Date, the Revolving Loan Maturity Date or the Swingline
Expiry Date, as the case may be.
"Maximum Permitted Acquisition Leverage Ratio" shall mean, at any
time, the maximum Adjusted Total Leverage Ratio which may exist pursuant to
Section 9.10 without giving rise to a Default or Event of Default at such time,
adjusted by reducing the ratio appearing in such maximum Adjusted Total Leverage
Ratio by 0.25.
"Maximum Permitted Consideration" shall mean, with respect to any
Permitted Acquisition, the sum (without duplication) of (i) the aggregate
liquidation preference of Preferred Stock issued by Holdings as consideration in
connection with such Permitted Acquisition, (ii) the aggregate principal amount
of Permitted Acquired Debt acquired or assumed by Holdings or any of its
Subsidiaries in connection with such Permitted Acquisition, (iii) the aggregate
principal amount of all cash paid (or to be paid) by Holdings or any of its
Subsidiaries in connection with such Permitted Acquisition (including payments
of fees and costs and expenses in connection therewith), (iv) the aggregate
principal amount of all other Indebtedness assumed, incurred and/or issued in
connection with such Permitted Acquisition to the extent permitted by Section
9.04 and (v) the fair market value (determined in good faith by senior
management of Holdings) of all other consideration payable in connection with
such Permitted Acquisition.
"Maximum Swingline Amount" shall mean $5,000,000.
"Mexican Pledge Agreement" shall have the meaning provided in Section
5.10(c).
"Minimum Borrowing Amount" shall mean (i) for Revolving Loans,
$1,000,000, (ii) for Term Loans, $5,000,000 and (iii) for Swingline Loans,
$500,000.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Mortgage" shall mean each mortgage, deed of trust or deed to secure
debt required to be delivered with respect to any Real Property pursuant to the
terms of this Agreement, together with any assignment of leases and rents to be
executed in connection therewith, in each case as the same may be amended,
modified, restated and/or supplemented from time to time in accordance with the
terms hereof and thereof.
----------
/15/ Formulation under discussion with CSFB in-house counsel. This is the
formulation included in the Term Sheet.
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"Mortgage Policy" shall mean each mortgage title insurance policy (and
all endorsements thereto) for each Mortgaged Property required to be delivered
pursuant to this Agreement.
"Mortgaged Property" shall mean each Real Property owned by Holdings
or any of its Domestic Subsidiaries and required to be mortgaged pursuant to
this Agreement.
"MTL Investments" shall mean MTL Investments, Inc., a Canadian
non-registered corporation and a Wholly-Owned Subsidiary of the Borrower.
"Multiemployer Plan" shall mean any multiemployer plan as defined in
Section 4001(a)(3) of ERISA, which is maintained or contributed to by (or to
which there is an obligation to contribute of) Holdings, a Subsidiary of
Holdings or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which Holdings, a Subsidiary of
Holdings or an ERISA Affiliate maintained, contributed to or had an obligation
to contribute to such plan.
"Net Cash Proceeds" shall mean for any event requiring a reduction of
the Total Revolving Loan Commitment, the Total Term Loan Commitment and/or
repayment of Term Loans pursuant to Section 3.03 or 4.02, as the case may be,
the gross cash proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received) received from such event, net of reasonable transaction costs
(including, as applicable, any underwriting, brokerage or other customary
commissions and reasonable legal, advisory and other fees and expenses
associated therewith) received from any such event.
"Net Sale Proceeds" shall mean for any sale of assets, the gross cash
proceeds (including any cash received by way of deferred payment pursuant to a
promissory note, receivable or otherwise, but only as and when received)
received from any sale of assets, net of (i) reasonable transaction costs
(including, without limitation, any underwriting, brokerage or other customary
selling commissions and reasonable legal, advisory and other fees and expenses,
including consent, title, filing and recording expenses, associated therewith)
and payments of unassumed liabilities relating to the assets sold at the time
of, or within 30 days after, the date of such sale, (ii) the amount of such
gross cash proceeds required to be used to repay any Indebtedness (other than
Indebtedness of the Lenders pursuant to this Agreement) which is secured by the
respective assets which were sold, and (iii) the estimated marginal increase in
income taxes which will be payable by Holdings' consolidated group with respect
to the fiscal year in which the sale occurs as a result of such sale; provided,
however, that such gross proceeds shall not include any portion of such gross
cash proceeds which Holdings determines in good faith should be reserved for
post-closing adjustments (including indemnification payments) (in the event such
amount of gross cash proceeds so reserved exceeds $500,000, to the extent
Holdings delivers to the Lenders a certificate signed by its chief financial
officer or treasurer, controller or chief accounting officer as to such
determination), it being understood and agreed that on the day that all such
post-closing adjustments have been determined (which shall not be later than six
months following the date of the respective asset sale), the amount (if any) by
which the reserved amount in respect of such sale or disposition exceeds the
actual post-closing adjustments payable by Holdings or any of its Subsidiaries
shall constitute Net Sale Proceeds on
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such date received by Holdings and/or any of its Subsidiaries from such sale,
lease, transfer or other disposition. The parties hereto acknowledge and agree
that Net Sale Proceeds shall not include any trade-in-credits or purchase price
reductions received by Holdings or any of its Subsidiaries in connection with an
exchange of equipment for replacement equipment that is the functional
equivalent of such exchanged equipment.
"New Exchange Senior Subordinated Notes" shall mean senior
subordinated notes issued in exchange for New Senior Subordinated Notes pursuant
to the New Senior Subordinated Notes Indenture, which New Exchange Senior
Subordinated Notes are substantially identical securities to the originally
issued New Senior Subordinated Notes and shall be issued pursuant to a
registered exchange offer or private exchange offer for the New Senior
Subordinated Notes on market terms reasonably satisfactory to the Administrative
Agent; provided that in no event will the issuance of any New Exchange Senior
Subordinated Notes increase the aggregate principal amount of New Senior
Subordinated Notes theretofore outstanding or otherwise result in an increase in
the interest rate applicable to the New Senior Subordinated Notes theretofore
outstanding.
"New Senior Subordinated Notes" shall mean the Borrower's ___% Senior
Subordinated Notes due 2010, issued pursuant to the Senior Subordinated Note
Indenture, as in effect on the Effective Date and as the same may be amended,
modified or supplemented from time to time in accordance with the terms hereof
and thereof. As used herein, the term "New Senior Subordinated Notes" shall
include any New Exchange Senior Subordinated Notes issued pursuant to the New
Senior Subordinated Notes Indenture in exchange for theretofore outstanding New
Senior Subordinated Notes, as contemplated by the Offering Memorandum, dated
November [__], 2003, and the definition of New Exchange Senior Subordinated
Notes.
"New Senior Subordinated Notes Documents" shall mean the New Senior
Subordinated Notes, the New Senior Subordinated Notes Indenture and all other
documents executed and delivered with respect to the New Senior Subordinated
Notes or New Senior Subordinated Notes Indenture, as in effect on the Effective
Date and as the same may be amended, modified or supplemented from time to time
in accordance with the terms hereof and thereof.
"New Senior Subordinated Notes Indenture" shall mean the Indenture,
dated as of November [___], 2003, among Holdings, the Borrower, the Subsidiary
Guarantors and [___], as trustee, as in effect on the Effective Date and as
thereafter amended, modified or supplemented from time to time in accordance
with the terms hereof and thereof.
"Non-Defaulting Lender" shall mean each Lender other than a Defaulting
Lender.
"Non-Guarantor Subsidiary" shall mean each Subsidiary of Holdings
(other than the Borrower) which, on and after the Initial Borrowing Date, is not
a Subsidiary Guarantor.
"Non-Wholly Owned Entity" shall have the meaning provided in the
definition of Permitted Acquisition.
"Note" shall mean each Term Note, each Revolving Note and/or the
Swingline Note, as the context may require.
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"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Conversion/Continuation" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative Agent
located at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other office as
the Administrative Agent may designate to the Credit Agreement Parties and the
Lenders from time to time.
"Obligations" shall mean all amounts (including, without limitation,
any interest accruing subsequent to the filing of a petition of bankruptcy at
the rate provided for in the documentation with respect thereto, whether or not
such interest is an allowed claim under applicable law), direct or indirect,
contingent or absolute, of every type or description, and at any time existing,
owing to the Administrative Agent, each Co-Syndication Agent, the Documentation
Agent, the Collateral Agent, each Letter of Credit Issuer or any Lender pursuant
to the terms of this Agreement or any other Credit Document.
"Other Hedging Agreements" shall mean any foreign exchange contracts,
currency swap agreements or other similar agreements or arrangements designed to
protect against fluctuations in currency values.
"Participant" shall have the meaning provided in Section 2.03(a).
"Payment Office" shall mean the office of the Administrative Agent
located at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other office as
the Administrative Agent may hereafter designate in writing as such to the other
parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" shall mean, for any RL Lender or PF Lender, either its RL
Percentage or PF Percentage, as applicable.
"Permitted Acquired Debt" shall have the meaning set forth in
Section 9.04(d).
"Permitted Acquisition" shall mean the acquisition by the Borrower or
any of its Wholly-Owned Domestic Subsidiaries of assets constituting a business,
division or product line of any Person not already a Subsidiary of Holdings or
any of its Wholly-Owned Subsidiaries or of 100% of the capital stock or other
Equity Interests of any such Person, provided that (A) the consideration paid by
the Borrower or such Wholly-Owned Subsidiary consists solely of cash (including
proceeds of Revolving Loans), the issuance of the Holdings Common Stock, the
issuance of any Qualified Preferred Stock or Disqualified Preferred Stock
otherwise permitted in Section 9.13, the issuance of Indebtedness otherwise
permitted in Section 9.04 (including Permitted Subordinated Indebtedness) and
the assumption/acquisition of any Permitted Acquired Debt (calculated in
accordance with GAAP) relating to such business, division, product line or
Person which is permitted to remain outstanding in accordance with the
requirements of Section 9.04, (B) those acquisitions that are structured as
equity acquisitions shall be effected through a purchase of 100% of the capital
stock or other Equity Interests of such Person by the Borrower
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or such Wholly-Owned Domestic Subsidiary or through a merger between such Person
and a Wholly-Owned Domestic Subsidiary of the Borrower, so that after giving
effect to such merger, 100% of the capital stock or other Equity Interests of
the surviving entity of such merger is owned by the Borrower or a Wholly-Owned
Domestic Subsidiary, (C) in the case of the acquisition of 100% of the capital
stock or other Equity Interests of any Person, such Person (the "Acquired
Person") shall own no capital stock or other Equity Interests of any other
Person unless either (x) the Acquired Person owns 100% of the capital stock or
other equity interests of such other Person or (y) if the Acquired Person owns
capital stock or Equity Interests in any other Person which is not a
Wholly-Owned Subsidiary of the Acquired Person (a "Non-Wholly Owned Entity"),
both (1) the Acquired Person shall not have been created or established in
contemplation of, or for purposes of, the respective Permitted Acquisition and
(2) any Non-Wholly Owned Entity of the Acquired Person shall have been
non-wholly-owned prior to the date of the respective Permitted Acquisition and
not created or established in contemplation thereof, (D) substantially all of
the business, division or product line acquired pursuant to the respective
Permitted Acquisition, or the business of the Acquired Person and its
Subsidiaries taken as a whole, is in the United States, (E) the assets acquired,
or the business of the Acquired Person and its Subsidiaries, shall be in a
Permitted Business and (F) all applicable requirements of Sections 8.15 and 9.02
applicable to Permitted Acquisitions are satisfied. Notwithstanding anything to
the contrary contained in the immediately preceding sentence, an acquisition
which does not otherwise meet the requirements set forth above in the definition
of "Permitted Acquisition" shall constitute a Permitted Acquisition if, and to
the extent, the Required Lenders agree in writing that such acquisition shall
constitute a Permitted Acquisition for purposes of this Agreement.
"Permitted Acquisition Additional Cost-Savings" shall mean, in
connection with each Permitted Acquisition, those demonstrable cost-savings and
other adjustments (in each case not included pursuant to clause (iii) or (iv) of
the definition of Pro Forma Basis contained herein) reasonably anticipated by
the Borrower to be achieved in connection with such Permitted Acquisition for
the 12 month period following the consummation of such Permitted Acquisition,
which cost-savings and other adjustments shall be estimated on a good faith
basis by the Borrower and, if requested by the Administrative Agent, be verified
by a nationally recognized accounting firm or as otherwise agreed to by the
Administrative Agent.
"Permitted Business" shall mean the truckload transportation of bulk
liquids, tank cleaning services, intermodal services, placing and brokering of
insurance products, rail transloding services, ancillary leasing services and
the business contemplated by the Permitted Program Affiliate Transactions, in
each case as such businesses are conducted by Holdings and its Subsidiaries on
the Initial Borrowing Date, and reasonable extensions of the foregoing.
"Permitted Debt" shall mean and include Permitted Acquired Debt,
Permitted Subordinated Refinancing Indebtedness and Permitted Subordinated
Indebtedness.
"Permitted Encumbrances" shall mean (i) those liens, encumbrances,
hypothecs and other matters affecting title to any Real Property and found
reasonably acceptable by the Administrative Agent, (ii) as to any particular
Real Property at any time, such easements, encroachments, covenants, rights of
way, minor defects, irregularities or encumbrances on title which could not
reasonably be expected to materially impair such Real Property for the purpose
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for which it is held by the mortgagor or grantor thereof, or the lien or
hypothec held by the Collateral Agent, (iii) zoning and other municipal
ordinances and building, fire code, safety and other similar restrictions which
are not violated in any material respect by the existing improvements and the
present use made by the mortgagor or grantor thereof of the premises, (iv) any
lien arising from general real estate taxes and assessments not yet delinquent,
and (v) such other similar items as the Administrative Agent may consent to
(such consent not to be unreasonably withheld).
"Permitted Holders" shall mean Apollo Group and its Affiliates and the
Management Participants (to the extent acting as a "group" within the meaning of
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as in effect on
the Effective Date).
"Permitted Insurance Program" shall mean an insurance program of the
Borrower and its Subsidiaries satisfactory in all respects to the Administrative
Agent, pursuant to which (x) an Approved Insurance FinanceCo shall prepay on
behalf of the Borrower and its Subsidiaries insurance premiums on insurance
policies of the Borrower and/or its Subsidiaries and (y) the Borrower shall from
time to time make "premium" payments directly to such Approved Insurance
FinanceCo to satisfy the obligations of the Borrower and its Subsidiaries to
such Approved Insurance FinanceCo in respect of insurance premium prepayments
made by such Approved Insurance FinanceCo.
"Permitted Liens" shall have the meaning provided in Section 9.03.
"Permitted Program Affiliate Transactions" shall mean a transaction or
series of transactions effected in the ordinary course of business of the
Borrower or any of its Subsidiaries and consistent with the past practices of
the Borrower and its Subsidiaries as determined on the Initial Borrowing Date,
pursuant to which (A) (i) the Borrower and/or one or more of its Subsidiaries
leases equipment from a third party financial institution, (ii) transfers the
lease (and the equipment subject thereto) to a Program Affiliate and (iii)
guarantees a portion of the lease payments owing by such Program Affiliate to
such financial institution and/or agrees to assume from the Program Affiliate
the lease initially so transferred to it upon the failure of such Program
Affiliate to make the lease payments owing by it thereunder to such financial
institution, (B) (i) the Borrower and/or one or more of its Subsidiaries leases
equipment from a third party financial institution, (ii) subleases such
equipment to a Program Affiliate, (iii) transfers the account receivable related
to the sublease (together with all collateral rights to the equipment that is
the subject of the sublease) to a third party financial institution and (iv)
guarantees the sublease payments owing by the Program Affiliate to such
financial institution, (C) (i) the Borrower and/or one or more of its
Subsidiaries leases equipment to a Program Affiliate, (ii) transfers the account
receivable related to such lease (together with the all collateral rights to the
equipment that is the subject of the lease) to a third party financial
institution and (iii) guarantees the lease payments owing by the Program
Affiliate to such financial institution or (D) (i) the Borrower and/or one or
more of its Subsidiaries leases equipment to a Program Affiliate, (ii) transfers
the lease (and the related account receivable and the equipment that is the
subject of the lease) to a third party financial institution and (iii)
guarantees the lease payments owing by the Program Affiliate to such financial
institution and/or agrees to assume such equipment lease from such Program
Affiliate upon the failure of such Program Affiliate to make the lease payments
owing by it thereunder to such financial institution.
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"Permitted Sale-Leaseback Transaction" shall mean any sale by the
Borrower or any of its Subsidiaries of any Tractor Trailer first acquired by the
Borrower or such Subsidiary after the Initial Borrowing Date which Tractor
Trailer is then leased back to the Borrower or such Subsidiary, provided that
(i) the proceeds of the respective sale shall be entirely cash and in an amount
at least equal to 85 % of the aggregate amount expended by the Borrower or such
Subsidiary in so acquiring such Tractor Trailer, (ii) such sale and leaseback
are effected within 90 days of the acquisition by the Borrower or such
Subsidiary of such Tractor Trailer, and (iii) the respective transaction is
otherwise effected in accordance with the applicable requirements of Section
9.02(r).
"Permitted Subordinated Indebtedness" shall mean subordinated
Indebtedness of Holdings incurred in connection with a Permitted Acquisition and
in accordance with Section 8.15, which Permitted Subordinated Indebtedness and
all terms and conditions thereof (including, without limitation, the maturity
thereof, the interest rate applicable thereto, amortization, defaults, remedies,
voting rights, subordination provisions, etc.), and the documentation therefor,
shall be reasonably satisfactory to the Administrative Agent, provided, that in
any event, unless the Required Lenders otherwise expressly consent in writing
prior to the incurrence thereof, (i) no such Indebtedness shall be guaranteed by
any Subsidiary of Holdings, (ii) no such Indebtedness shall be secured by any
asset of Holdings or any of its Subsidiaries and (iii) such Indebtedness has
substantially the same (or, from the perspective of the Lenders, more favorable)
subordination provisions as are contained in the New Senior Subordinated Notes
Documents. The incurrence of Permitted Subordinated Indebtedness shall be deemed
to be a representation and warranty by Holdings that all conditions thereto have
been satisfied in all material respects and that same is permitted in accordance
with the terms of this Agreement, which representation and warranty shall be
deemed to be a representation and warranty for all purposes hereunder,
including, without limitation, Sections 6A and 10.
"Permitted Subordinated Refinancing Indebtedness" shall mean
Indebtedness of the Borrower issued or given in exchange for, or the proceeds of
which are used to refinance, the New Senior Subordinated Notes, so long as (a)
such Indebtedness has a weighted average life to maturity greater than or equal
to the weighted average life to maturity of the respective Indebtedness to be so
exchanged or refinanced, (b) such issuance, exchange or refinancing does not (i)
increase the amount of such Indebtedness outstanding immediately prior to such
issuance, exchange or refinancing or (ii) add guarantors, obligors or security
from that which applied to the New Senior Subordinated Notes, (c) such
Indebtedness has substantially the same (or, from the perspective of the
Lenders, more favorable) subordination provisions, if any, as applied to the New
Senior Subordinated Notes, and (d) all other terms of such exchange or
refinancing (including, without limitation, with respect to the amortization
schedules, redemption provisions, maturities, covenants, defaults and remedies),
are not, taken as a whole, less favorable in any material respect to Holdings
and its Subsidiaries than those previously existing with respect to the
Indebtedness to be so exchanged or refinanced.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"PF Facility Fee" shall have the meaning provided in Section 3.01(d).
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"PF Lender" shall mean each Lender having a PF Letter of Credit
Commitment (or, to the extent terminated, an outstanding Credit-Linked Deposit).
"PF Letter of Credit Commitment" shall mean, for each Lender, the
amount set forth opposite such Lender's name in Schedule I directly below the
column entitled "PF Letter of Credit Commitment," as the same may be (x) reduced
from time to time or terminated pursuant to Sections 3.02, 3.03, 4.02 and/or 10,
as applicable, or (y) adjusted from time to time as a result of assignments to
or from such Lender pursuant to Section 1.13 or 13.04(b).
"PF Letter of Credit Outstandings" shall mean, at any time, Letter of
Credit Outstandings up to the amount of the Total PF Letter of Credit Commitment
at such time (or, to the extent theretofore terminated, up to the aggregate
amount of the Credit-Linked Deposits at such time).
"PF Letters of Credit" shall mean, at any time, all Letters of Credit
as to which the Letter of Credit Outstandings do not exceed the Total PF Letter
of Credit Commitment at such time (or, to the extent theretofore terminated, the
aggregate amount of the Credit-Linked Deposits at such time).
"PF Percentage" of any PF Lender, at any time, shall mean a fraction
(expressed as a percentage) the numerator of which is the PF Letter of Credit
Commitment of such PF Lender at such time and the denominator of which is the
Total PF Letter of Credit Commitment at such time, provided that if the PF
Percentage of any PF Lender is to be determined after the Total PF Letter of
Credit Commitment has been terminated, then the PF Percentage of such PF Lender
shall be determined immediately prior (and without giving effect) to such
termination.
"PF Unpaid Drawing" shall mean any Unpaid Drawing under a PF Letter of
Credit.
"Plan" shall mean any pension plan as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) Holdings or a Subsidiary of Holdings or an ERISA
Affiliate, and each such plan for the five year period immediately following the
latest date on which Holdings, or a Subsidiary of Holdings or an ERISA Affiliate
maintained, contributed to or had an obligation to contribute to such plan, but
excluding all Multiemployer Plans.
"Pledge Agreement Collateral" shall mean all of the "Collateral" as
defined in the U.S. Pledge Agreement, the Quebec Pledge Agreement and the
Mexican Pledge Agreement, as applicable.
"Pledge Agreements" shall have the meaning provided in Section
5.10(c).
"Post-Closing Period" shall have the meaning provided in Section
8.15(a).
"PPSA" shall mean the Personal Property Security Act (Ontario) and the
personal property security acts of each other Canadian province.
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"Preferred Stock," as applied to the capital stock of any Person,
means capital stock of such Person (other than common stock of such Person) of
any class or classes (however designed) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of capital
stock of any other class of such Person, and shall include any Qualified
Preferred Stock and any Disqualified Preferred Stock.
"Preferred Stock Conversion" shall have the meaning provided in
Section 5.08(b).
"Preferred Stock Conversion Documents" shall mean all of the
agreements and documents entered into in connection with the Preferred Stock
Conversion, as the same may be amended, modified and/or supplemented by time to
time in accordance with the terms hereof and thereof.
"Prime Lending Rate" shall mean the rate which CSFB announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending rate changes. The Prime Lending Rate is a reference
rate and does not necessarily represent the lowest or best rate actually charged
to any customer. CSFB may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
"Pro Forma Balance Sheet" shall have the meaning provided in Section
5.14(a).
"Pro Forma Basis" shall mean, in connection with any calculation of
compliance with any financial covenant or financial term, the calculation
thereof after giving effect on a pro forma basis to (w) the incurrence of any
Indebtedness (other than revolving Indebtedness, except to the extent same is
incurred to refinance other outstanding Indebtedness (including to refinance any
outstanding Indebtedness of an Unrestricted Subsidiary at the time same is
designated as a Subsidiary pursuant to a Subsidiary Redesignation) or to finance
Permitted Acquisitions) or Preferred Stock (other than Qualified Preferred
Stock) after the first day of the relevant Calculation Period as if such
Indebtedness or Preferred Stock had been incurred or issued (and the proceeds
thereof applied) on the first day of the relevant Calculation Period, (x) the
permanent repayment of any Indebtedness (other than revolving Indebtedness
except to the extent paid with Permitted Debt or Disqualified Preferred Stock)
or Preferred Stock (other than Qualified Preferred Stock) after the first day of
the relevant Calculation Period as if such Indebtedness or Preferred Stock had
been retired or redeemed on the first day of the relevant Calculation Period,
(y) the Subsidiary Redesignation, if any, then being designated as well as any
other Subsidiary Redesignation after the first day of the relevant Calculation
Period and on or prior to the date of the respective Subsidiary Redesignation
then being designated and (z) the Permitted Acquisition, if any, then being
consummated as well as any other Permitted Acquisition consummated after the
first day of the relevant Calculation Period and on or prior to the date of the
respective Permitted Acquisition then being effected, with the following rules
to apply in connection therewith:
(i) all Indebtedness and Preferred Stock (other than Qualified
Preferred Stock) (x) (other than revolving Indebtedness, except to the
extent same is incurred to refinance other outstanding Indebtedness,
(including to refinance any outstanding Indebtedness of an Unrestricted
Subsidiary at the time same is designated as a Subsidiary
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pursuant to a Subsidiary Redesignation), or to finance Permitted
Acquisitions) incurred or issued after the first day of the relevant
Calculation Period (whether incurred to finance a Permitted Acquisition, to
refinance Indebtedness or otherwise) shall be deemed to have been incurred
or issued (and the proceeds thereof applied) on the first day of the
respective Calculation Period and remain outstanding through the date of
determination (and thereafter in the case of projections pursuant to
Section 8.15(a)(iv)) and (y) (other than revolving Indebtedness except to
the extent paid with Permitted Debt or Disqualified Preferred Stock)
permanently retired or redeemed after the first day of the relevant
Calculation Period shall be deemed to have been retired or redeemed on the
first day of the respective Calculation Period and remain retired through
the date of determination (and thereafter in the case of projections
pursuant to Section 8.15(a)(iv));
(ii) all Indebtedness or Preferred Stock (other than Qualified
Preferred Stock) assumed to be outstanding pursuant to preceding clause (i)
shall be deemed to have borne interest or accrued dividends, as the case
may be, at (x) the rate applicable thereto, in the case of fixed rate
Indebtedness or Preferred Stock or (y) the rates which would have been
applicable thereto during the respective period when same was deemed
outstanding, in the case of floating rate Indebtedness or Preferred Stock
(although interest expense with respect to any Indebtedness or Preferred
Stock for periods while same was actually outstanding during the respective
period shall be calculated using the actual rates applicable thereto while
same was actually outstanding); provided that for purposes of calculations
pursuant to Section 8.15(a)(iv), all Indebtedness or Preferred Stock
(whether actually outstanding or deemed outstanding) bearing interest at a
floating rate of interest shall be tested on the basis of the rates
applicable at the time the determination is made pursuant to said
provisions;
(iii) in making any determination of Consolidated EBITDA on a Pro
Forma Basis, pro forma effect shall be given to any Permitted Acquisition
or Subsidiary Redesignation effected during the respective Calculation
Period (or thereafter to the extent provided in the definition of
Applicable Margin, for determinations of the Applicable Margins, or as
provided in Section 8.15, for determinations pursuant to Section 8.15 only)
consummated after the first day of the respective period being tested, in
the case of a Permitted Acquisition, taking into account, for any portion
of the relevant period being tested occurring prior to the consummation of
any Permitted Acquisition, demonstrable cost savings actually achieved
simultaneously with, or to be achieved within the one-year period
following, the closing of the respective Permitted Acquisition, which cost
savings would be permitted to be recognized in pro forma statements
prepared in accordance with Regulation S-X under the Securities Act, as if
such cost-savings were realized on the first day of the relevant period;
(iv) without duplication of adjustments provided above, in case of
any Permitted Acquisition consummated after the first day of the relevant
period being tested, pro forma effect shall be given to the termination or
replacement of operating leases with Capitalized Lease Obligations or other
Indebtedness, and to any replacement of Capitalized Lease Obligations or
other Indebtedness with operating leases, in each case effected at the time
of the consummation of such Permitted Acquisition or thereafter, in each
case if effected after the first day of the period being tested and prior
to the date the
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respective determination is being made, as if such termination or
replacement had occurred on the first day of the relevant period; and
(v) in making any determination of Consolidated EBITDA for purposes
of any calculation of the Adjusted Total Leverage Ratio and the
Consolidated Interest Coverage Ratio only, (x) for any Permitted
Acquisition which occurred during the last two fiscal quarters comprising
the respective Calculation Period (and, in the case of Section 8.15,
thereafter and on or prior to the relevant date of determination), there
shall be added to Consolidated EBITDA the amount of Permitted Acquisition
Additional Cost Savings, determined in accordance with the definition
thereof contained herein, expected to be realized with respect to such
Permitted Acquisition, (y) for any Permitted Acquisition effected in the
second fiscal quarter of the respective Calculation Period, the
Consolidated EBITDA shall be increased by 50% of the Permitted Acquisition
Additional Cost Savings estimated to arise in connection with the
respective Permitted Acquisition and (z) for any Permitted Acquisition
effected in the first fiscal quarter of the respective Calculation Period,
the Consolidated EBITDA shall be increased by 15% of the Permitted
Acquisition Additional Cost Savings estimated to arise in connection with
the respective Permitted Acquisition; provided that the aggregate additions
to Consolidated EBITDA, for any period being tested, pursuant to this
clause (v) shall not exceed 15% of the amount which would have been
Consolidated EBITDA in the absence of the adjustment pursuant to this
clause (v).
Notwithstanding anything to the contrary contained above, (x) for purposes of
Sections 9.09 and 9.10 and, for purposes of all determinations of the Applicable
Margins, pro forma effect (as otherwise provided above) shall only be given for
events or occurrences which occurred during the respective Test Period but not
thereafter, (y) for purposes of Section 8.15, pro forma effect (as otherwise
provided above) shall be given for events or occurrences which occurred during
the respective Test Period and thereafter but on or prior to the respective date
of determination and (z) Indebtedness incurred to finance the Refinancing shall
not be given pro forma effect for purposes of this definition.
"Program Affiliate" shall mean each of the independently-owned (i.e.,
owned by Persons other than Holdings and its Subsidiaries and Affiliates, except
for Persons which may constitute Affiliates solely by reason of their ownership
interest in one or more Program Affiliates) entities and independent contractors
that operate under the name of Holdings or any of its Subsidiaries pursuant to
an exclusive agreement with Holdings or such Subsidiary (including each of the
Persons listed on Schedule XI).
"Projections" shall have the meaning provided in Section 5.14(b).
"QD Capital" shall mean QD Capital Corporation, a Delaware corporation
and a Wholly-Owned Subsidiary of the Borrower.
"Qualified Preferred Stock" shall mean any Preferred Stock of
Holdings, the express terms of which shall provide that dividends thereon shall
not be required to be paid at any time (and to the extent) that such payment
would be prohibited by the terms of this Agreement or any other agreement of
Holdings or any of its Subsidiaries relating to outstanding
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indebtedness and which, by its terms (or by the terms of any security into which
it is convertible or for which it is exchangeable), or upon the happening of any
event (including any Change of Control Event), cannot mature and is not
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, and
is not redeemable, or required to be repurchased, at the sole option of the
holder thereof (including, without limitation, upon the occurrence of a Change
of Control Event), in whole or in part, on or prior to the date occurring two
years after the Term Loan Maturity Date.
"Quarterly Payment Date" shall mean the last Business Day of each
March, June, September and December.
"Quebec Pledge Agreement" shall have the meaning provided in Section
5.10(b).
"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, immovable property, improvements and
fixtures, including Leaseholds.
"Recovery Event" shall mean the receipt by Holdings or any of its
Subsidiaries of any insurance or condemnation proceeds (other than proceeds from
business interruption insurance) payable (i) by reason of theft, physical
destruction or damage or any other similar event with respect to any properties
or assets of Holdings or any of its Subsidiaries, (whether under any policy of
insurance required to be maintained under Section 8.03 or otherwise) and (ii) by
reason of any condemnation, taking, seizing or similar event with respect to any
properties or assets of Holdings or any of its Subsidiaries.
"Redemption Date" shall have the meaning provided in Section 8.17.
"Refinancing" shall mean, collectively, (i) the Bank Refinancing, (ii)
the Preferred Stock Conversion and (iii) the Existing Senior Notes Refinancing.
"Refinancing Documents" shall mean each of the agreements, documents
and instruments entered into in connection with the Refinancing.
"Register" shall have the meaning provided in Section 13.17.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from to time in effect and any successor to all or
any portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or any portion thereof.
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"Release" means disposing, discharging, injecting, spilling, pumping,
leaking, leaching, dumping, emitting, escaping, emptying, seeping, placing,
pouring and the like, into or upon any land or water or air, or otherwise
entering into the environment.
"Replaced Lender" shall have the meaning provided in Section 1.13.
"Replacement Lender" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
..22, .23, .25, .27, or .28 of PBGC Regulation Section 4043.
"Required Appraisal" shall have the meaning provided in Section
8.11(d).
"Required Lenders" shall mean Non-Defaulting Lenders the sum of whose
outstanding Term Loans (and, if prior to the termination of the Total Term Loan
Commitment, Term Loan Commitments), Revolving Loan Commitments (or, if after the
termination thereof, outstanding Revolving Loans and Adjusted RL Percentage of
outstanding Swingline Loans and WC Letter of Credit Outstandings) and PF Letter
of Credit Commitments (or after the termination, PF Percentages of PF Letter of
Credit Outstandings) represent an amount greater than 50% of the sum of (i) the
total outstanding Term Loans (and, if prior to the termination of the Total Term
Loan Commitment, Term Loan Commitments) of Non-Defaulting Lenders, (ii) the
Adjusted Total Revolving Loan Commitment (or, if after termination thereof, the
sum of the then total outstanding Revolving Loans of Non-Defaulting Lenders and
the aggregate Adjusted RL Percentages of all Non-Defaulting Lenders of the total
outstanding Swingline Loans and WC Letter of Credit Outstandings at such time)
and (iii) the Total PF Letter of Credit Commitment less the PF Letter of Credit
Commitments of all Defaulting Lenders (or after the termination thereof, the
aggregate PF Percentages of all Non-Defaulting Lenders of the total PF Letter of
Credit Outstandings at such time).
"Revolving Loan" shall have the meaning provided in Section 1.01(b).
"Revolving Loan Commitment" shall mean, with respect to each RL
Lender, the amount set forth opposite such Lender's name in Schedule I directly
below the column entitled "Revolving Loan Commitment," as the same may be
reduced from time to time pursuant to Sections 3.02, 3.03, 4.02 and/or Section
10.
"Revolving Loan Maturity Date" shall mean November [_], 2008.
"Revolving Note" shall have the meaning provided in Section 1.05(a).
"RL Commitment Fee" shall have the meaning provided in Section
3.01(a).
"RL Lender" shall mean at any time each Lender with a Revolving Loan
Commitment or with outstanding Revolving Loans.
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"RL Percentage" of any Lender at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Lender at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that if the RL Percentage of
any Lender is to be determined after the Total Revolving Loan Commitment has
been terminated, then the RL Percentages of the Lenders shall be determined
immediately prior (and without giving effect) to such termination.
"Rollover Amount" shall have the meaning provided in Section 9.11(b).
"S&P" shall mean Standard & Poor's Ratings Services, a division of
McGraw Hill, Inc.
"Scheduled Existing Indebtedness" shall have the meaning provided in
Section 5.09(c).
"Scheduled Repayment" shall have the meaning provided in Section
4.02(b).
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning provided in the respective
Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Security Agreement" shall have the meaning provided in Section
5.10(d).
"Security Agreement Collateral" shall mean all of the "Collateral" as
defined in the Security Agreement.
"Security Documents" shall mean and include the Pledge Agreements, the
Mortgages, the Security Agreement and each Additional Security Document, if any.
"Shareholder Subordinated Note" shall mean an unsecured junior
subordinated note issued by Holdings (and not guaranteed or supported in any way
by the Borrower or any of its Subsidiaries) in the form of Exhibit M.
"Shareholders' Agreements" shall have the meaning provided in Section
5.12.
"Specified Default" shall mean a Default under Section 10.01 or 10.05.
"Standby Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Start Date" shall have the meaning provided in the definition of
Applicable Margin.
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"Stated Amount" of each Letter of Credit shall mean the maximum amount
available to be drawn thereunder (regardless of whether any conditions for
drawing could then be met).
"Subsidiaries Guaranty" shall have the meaning provided in Section
5.11.
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity (other than a corporation) in which such Person directly
or indirectly through Subsidiaries, has more than a 50% Equity Interest at the
time. Notwithstanding the foregoing (and except for purposes of Sections 7.01,
7.04, 7.12, 7.16, 7.17, 7.20, 8.01(g), 8.07, 8.08, 10.05, 10.06 and 10.09, and
the definitions of Unrestricted Subsidiary and Wholly-Owned Unrestricted
Subsidiary contained herein), an Unrestricted Subsidiary shall be deemed not to
be a Subsidiary of Holdings or any of its other Subsidiaries for purposes of
this Agreement.
"Subsidiary Guarantor" shall mean each Wholly-Owned Domestic
Subsidiary (and, to the extent required by Section 8.12, each Wholly-Owned
Foreign Subsidiary) of the Borrower that is or becomes a party to a Guaranty.
"Subsidiary Redesignation" shall have the meaning provided in the
definition of "Unrestricted Subsidiary" contained in this Section 11.
"Supermajority Lenders" of any Tranche shall mean those Non-Defaulting
Lenders which would constitute the Required Lenders under, and as defined in,
this Agreement if (x) all outstanding Obligations of the other Tranches under
this Agreement were repaid in full and all Commitments with respect thereto were
terminated and (y) the percentage "50%" contained therein were changed to
"66-2/3%".
"Swingline Expiry Date" shall mean the date which is five Business
Days prior to the Revolving Loan Maturity Date.
"Swingline Lender" shall mean CSFB, or any Person serving as a
successor Administrative Agent hereunder, in its capacity as a lender of
Swingline Loans.
"Swingline Loan" shall have the meaning provided in Section 1.01(c).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Syndication Date" shall mean the earlier to occur of (x) the 90/th/
day following the Initial Borrowing Date and (y) that date upon which the
Administrative Agent determines (and notifies Holdings and the Lenders) that the
primary syndication of the Loans and the Commitments (and resultant addition of
Persons as Lenders pursuant to Section 13.04(b)) has been completed.
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"Tax Allocation Agreements" shall have the meaning provided in Section
5.12.
"Tax Benefit" shall have the meaning provided in Section 4.04(c).
"Taxes" shall have the meaning provided in Section 4.04(a).
"Term Loan" shall have the meaning provided in Section 1.01(a).
"Term Loan Commitment" shall mean, with respect to each Lender, the
amount set forth opposite such Lender's name in Schedule I directly below the
column entitled "Term Loan Commitment," as the same may be reduced or terminated
pursuant to Sections 3.03, 4.02 and/or 10.
"Term Loan Commitment Termination Date" shall mean the earlier of (i)
the Redemption Date and (ii) the [35th] day following the Initial Borrowing
Date.
"Term Loan Maturity Date" shall mean November [___], 2009.
"Term Note" shall have the meaning provided in Section 1.05(a).
"Test Period" shall mean each period of four consecutive fiscal
quarters then last ended, in each case taken as one accounting period.
Notwithstanding anything to the contrary contained above or in Section 13.07 or
otherwise required by GAAP, in the case of any Test Period ending prior to the
first anniversary of the Initial Borrowing Date, such period shall be a one-year
period ending on the last day of the fiscal quarter last ended, with any
calculations of Consolidated Interest Expense required in determining compliance
with Section 9.09 to be made on a pro forma basis in accordance with, and to the
extent provided in, the immediately succeeding sentence. To the extent the
respective Test Period (i) includes the first fiscal quarter of the fiscal year
of Holdings ended December 31, 2003, Consolidated Interest Expense for such
fiscal quarter shall be deemed to be $[________],/16/ (ii) includes the second
fiscal quarter of the fiscal year of Holdings ended December 31, 2003,
Consolidated Interest Expense for such fiscal quarter shall be deemed to be
$[________],/17/ (iii) includes the third fiscal quarter of the fiscal year of
Holdings ended December 31, 2003, Consolidated Interest Expense for such fiscal
quarter shall be deemed to be $[________],/18/ and (iv) includes the fourth
fiscal quarter for the fiscal year of Holdings ended December 31, 2003,
Consolidated Interest Expense shall be determined by (x) taking actual
Consolidated Interest Expense determined in accordance with the definition
thereof for any period beginning on, and ending after, the Initial Borrowing
Date and (y) for each day of such fiscal quarter occurring prior to the Initial
Borrowing Date, using a per-day Consolidated Interest Expense of
$[_________]/19/; provided that any additional adjustments
----------
/16/ CSFB/Apollo to advise.
/17/ CSFB/Apollo to advise.
/18/ CSFB/Apollo to advise.
/19/ CSFB/Apollo to advise.
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required by the definition of Pro Forma Basis for occurrences after the Initial
Borrowing Date shall also be made.
"TL Commitment Fee" shall have the meaning provided in Section
3.01(b).
"TL Percentage" shall mean of any Lender a fraction (expressed as a
percentage) the numerator of which is the Term Loan Commitment of such Lender on
the Initial Borrowing Date (without giving effect to any reduction thereto
pursuant to Sections 3.03, 4.02 and/or 10) and the denominator is the Total Term
Loan Commitment on the Initial Borrowing Date (without giving effect to any
reduction to the Term Loan Commitments pursuant to Sections 3.03, 4.02 and/or
10).
"Total Commitment" shall mean, at any time, the sum of the Total Term
Loan Commitment and the Total Revolving Loan Commitment.
"Total Leverage Ratio" shall mean on any date the ratio of (i)
Consolidated Debt on such date to (ii) Consolidated EBITDA for the Test Period
most recently ended on or prior to such date. All calculations of the Total
Leverage Ratio shall be made on a Pro Forma Basis, it being understood and
agreed that, as provided in the definition of Pro Forma Basis, the adjustments
contained in clause (v) thereof shall not be taken into account in determining
the Total Leverage Ratio.
"Total PF Letter of Credit Commitment" shall mean, at any time, the
sum of the PF Letter of Credit Commitments of each of the Lenders at such time.
"Total Revolving Loan Commitment" shall mean the sum of the Revolving
Loan Commitments of each of the Lenders.
"Total Term Loan Commitment" shall mean the sum of the Term Loan
Commitments of each of the Lenders.
"Total Unutilized PF Letter of Credit Commitment" shall mean, at any
time, an amount equal to the remainder of (x) the Total PF Letter of Credit
Commitment then in effect less (y) the aggregate amount of the PF Letter of
Credit Outstandings at such time.
"Total Unutilized Revolving Loan Commitment" shall mean, at any time,
(i) the Total Revolving Loan Commitment at such time less (ii) the sum of (I)
the aggregate principal amount of all Revolving Loans and Swingline Loans
outstanding at such time plus (II) the WC Letter of Credit Outstandings at such
time.
"Tractor Trailer" shall mean any truck, tractor, tank trailer or other
trailer and any similar vehicle or trailer used in a Permitted Business.
"Tractor Trailer Replacement" shall mean the exchange, sale or other
disposition of a Tractor Trailer, which, in the reasonable opinion of the
Borrower, is obsolete, uneconomic, or no longer useful in the conduct of the
Borrower's or any of its Subsidiaries' business or otherwise requires upgrading,
the purpose of which exchange, sale or other disposition is to acquire (and has
resulted within 180 days prior to such exchange, sale or disposition, or will
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result within 180 days following such exchange, sale or disposition, in the
acquisition of) a replacement Tractor Trailer.
"Trade Letter of Credit" shall have the meaning set forth in Section
2.01(a).
"Tranche" shall mean the respective facility and commitments utilized
in making Loans hereunder, with there being three separate Tranches, i.e., Term
Loans, Revolving Loans, Swingline Loans and PF Letters of Credit.
"Transaction" shall mean, collectively, (i) the consummation of the
Refinancing, (ii) the entering into of the Credit Documents and the incurrence
of all Loans and issuance of Letters of Credit hereunder on the Initial
Borrowing Date, (iii) the consummation of the Holdings Equity Financing and the
Holdings Equity Contribution, (iv) the issuance of the New Senior Subordinated
Notes, (v) the Preferred Stock Conversion and (vi) the payment of fees and
expenses in connection with the foregoing.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Base Rate Loan or a Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the value of the accumulated plan benefits under the Plan
determined on a plan termination basis in accordance with actuarial assumptions
at such time consistent with those prescribed by the PBGC for purposes of
Section 4044 of ERISA, exceeds the fair market value of all plan assets
allocable to such liabilities under Title IV of ERISA (excluding any accrued but
unpaid contributions).
"Unpaid Drawing" shall have the meaning provided in Section 2.04(a).
"Unrestricted Subsidiary" shall mean any Subsidiary of the Borrower
that is acquired or created after the Initial Borrowing Date and designated by
the Borrower as an Unrestricted Subsidiary hereunder by written notice to the
Administrative Agent, provided that the Borrower shall only be permitted to so
designate a new Unrestricted Subsidiary after the Initial Borrowing Date and so
long as (i) no Default or Event of Default exists or would result therefrom,
(ii) in the case of any Unrestricted Subsidiary directly owned by the Borrower
or any of its Wholly-Owned Domestic Subsidiaries, 100% of the Equity Interests
of such newly-designated Unrestricted Subsidiary are owned by the Borrower or
such Wholly-Owned Domestic Subsidiary and (iii) all of the provisions of Section
9.15 shall have been complied with in respect of such newly-designated
Unrestricted Subsidiary and such Unrestricted Subsidiary shall be capitalized
(to the extent capitalized by the Borrower or any of its Subsidiaries) through
Investments as permitted by, and in compliance with, Section 9.05(k), with any
assets owned by such Unrestricted Subsidiary at the time of the initial
designation thereof to be treated as Investments pursuant to Section 9.05(k),
provided that at the time of the initial Investment by the Borrower or any
Wholly-Owned Domestic Subsidiary in such Subsidiary, the Borrower shall
designate such entity as an Unrestricted Subsidiary in a written notice to the
Administrative Agent. The Borrower may designate any Unrestricted Subsidiary to
be a Subsidiary for
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purposes of this Agreement (each a "Subsidiary Redesignation) provided that (i)
such Unrestricted Subsidiary, both before and after giving effect to such
designation, shall be a Wholly-Owned Subsidiary of the Borrower, (ii) no Default
or Event of Default then exists or would occur as a consequence of any such
Subsidiary Redesignation (including but not limited to, under Sections 9.03 and
9.04), (iii) all actions which would be required to be taken pursuant to Section
9.15(a) in connection with the establishment, creation or acquisition of a new
Domestic Subsidiary or a new Foreign Subsidiary are taken at the time of the
respective Subsidiary Redesignation, (iv) calculations are made by Holdings of
compliance with the covenants contained in Sections 9.09 and 9.10 (in each case,
giving effect to the last sentence appearing therein) for the relevant
Calculation Period, on a Pro Forma Basis as if the respective Subsidiary
Redesignation (as well as all other Subsidiary Redesignations theretofore
consummated after the first day of such Calculation Period) had occurred on the
first day of such Calculation Period, and such calculations shall show that such
financial covenants would have been complied with if the Subsidiary
Redesignation had occurred on the first day of such Calculation Period (for this
purpose, if the first day of the respective Calculation Period occurs prior to
the Initial Borrowing Date, calculated as if the covenants contained in Sections
9.09 and 9.10 (in each case, giving effect to the last sentence appearing
therein) had been applicable from the first day of the Calculation Period and
(y) using the covenant levels contained in such Sections 9.09 and 9.10 for the
Calculation Period ending December 31, 2003 in connection with any Subsidiary
Redesignation made prior to December 31, 2003), (v) based on good faith
projections prepared by Holdings for the period from the date of the respective
Subsidiary Redesignation to the date which is one year thereafter, the level of
financial performance measured by the covenants set forth in Sections 9.09 and
9.10 (in each case, giving effect to the last sentence appearing therein) shall
be better than or equal to such level as would be required to provide that no
Default or Event of Default would exist under the financial covenants contained
in Sections 9.09 and 9.10 ((x) in each case, giving effect to the last sentence
appearing therein and (y) using the covenant levels contained in such Sections
9.09 and 9.10 for the Calculation Period ending December 31, 2003 for any
portion of such period prior to December 31, 2003) through the date which is one
year from the date of the respective Subsidiary Redesignation, (vi) all
representations and warranties contained herein and in the other Credit
Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and as of
the date of such Subsidiary Redesignation (both before and after giving effect
thereto), unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date, (vii) after giving effect to such Subsidiary
Redesignation and all payments made in connection therewith, the Total
Unutilized Revolving Loan Commitment shall equal or exceed $15,000,000, and
(viii) Holdings shall have delivered to the Administrative Agent an officer's
certificate executed by an Authorized Officer of Holdings, certifying to the
best of such officer's knowledge, compliance with the requirements of preceding
clauses (i) through (vii), inclusive, and containing the calculations required
by the preceding clauses (iv), (v) and (vii).
"Unutilized Revolving Loan Commitment" with respect to any RL Lender
at any time shall mean such RL Lender's Revolving Loan Commitment at such time
less the sum of (i) the aggregate outstanding principal amount of all Revolving
Loans made by such RL Lender at such time and (ii) such RL Lender's RL
Percentage of the total WC Letter of Credit Outstandings at such time.
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"U.S. Dollar Equivalent" shall mean, at any time for the determination
thereof, the amount of U.S. Dollars which could be purchased with the amount of
the relevant foreign currency involved in such computation at the spot exchange
rate therefor as quoted by the Administrative Agent as of 11:00 A.M. (London
time) on the date two Business Days prior to the date of any determination
thereof for purchase on such date.
"U.S. Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States of America.
"U.S. Pledge Agreement" shall have the meaning provided in Section
5.10(a).
"U.S. Security Documents" shall mean the Security Documents governed
by laws of the United States.
"WC Letter of Credit Fees" shall have the meaning provided in Section
3.01(c).
"WC Letter of Credit Outstandings" shall mean, at any time, that
portion of the Letter of Credit Outstandings in excess of the PF Letter of
Credit Outstandings at such time.
"WC Letters of Credit" shall mean, at any time, the Letters of Credit
issued hereunder which are not PF Letters of Credit.
"WC Unpaid Drawing" shall mean any Unpaid Drawing under a WC Letter of
Credit.
"Wholly-Owned Domestic Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is a Domestic Subsidiary.
"Wholly-Owned Foreign Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is a Foreign Subsidiary.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying shares
and/or other nominal amounts of shares required to be held other than by such
Person under applicable law) is at the time owned by such Person and/or one or
more Wholly-Owned Subsidiaries of such Person and (ii) any partnership,
association, limited liability company, joint venture or other entity in which
such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a
100% equity interest at such time; provided that (x) except as provided in the
last sentence of the definition of Subsidiary and other than in the definition
of Wholly-Owned Unrestricted Subsidiary, no Unrestricted Subsidiary shall be
considered a Wholly-Owned Subsidiary and (y) Xxxxxx Logistics, Inc. shall be
deemed to be a Wholly-Owned Subsidiary of the U.S. Borrower for all purposes of
this Agreement so long the U.S. Borrower owns, directly or indirectly, all of
the capital stock of Xxxxxx Logistics, Inc., except for Preferred Stock of
Xxxxxx Logistics, Inc. with an aggregate liquidation preference not to exceed
$1.8 million representing not more than 5.0% of the capital stock of such
Person.
"Wholly-Owned Unrestricted Subsidiary" shall mean, as to any Person,
any Wholly-Owned Subsidiary of such Person which is an Unrestricted Subsidiary.
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"Written" (whether lower or upper case) or "in writing" shall mean any
form of written communication or a communication by means of telex, facsimile
device, telegraph or cable.
SECTION 12. The Agents.
12.01 Appointment. Each Lender hereby irrevocably designates and
appoints CSFB as Administrative Agent of such Lender (for purposes of this
Section 12, the term "Administrative Agent" shall mean CSFB in its capacity as
Administrative Agent hereunder and Collateral Agent pursuant to the Security
Documents), DBSI and BSCL as Co-Syndication Agents and JPMorgan Chase Bank as
Documentation Agent to act as specified herein and in the other Credit
Documents, and each such Lender hereby irrevocably authorizes the Administrative
Agent, each Co-Syndication Agent and the Documentation Agent to take such action
on its behalf under the provisions of this Agreement and the other Credit
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent, such Co-Syndication Agent and the
Documentation Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental thereto.
Each of the Agents agrees to act as such upon the express conditions contained
in this Section 12. Notwithstanding any provision to the contrary elsewhere in
this Agreement or in any other Credit Document, the Administrative Agent, each
Co-Syndication Agent and the Documentation Agent shall not have any duties or
responsibilities, except those expressly set forth herein or in the other Credit
Documents, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Administrative Agent,
such Co-Syndication Agent or the Documentation Agent. The provisions of this
Section 12 are solely for the benefit of the Administrative Agent, each
Co-Syndication Agent, the Documentation Agent and the Lenders, and neither
Holdings nor any of its Subsidiaries shall have any rights as a third party
beneficiary of any of the provisions hereof. In performing its functions and
duties under this Agreement, each of the Administrative Agent, each
Co-Syndication Agent and the Documentation Agent shall act solely as agent of
the Lenders and does not assume and shall not be deemed to have assumed any
obligation or relationship of agency or trust with or for Holdings or any of its
Subsidiaries.
12.02 Delegation of Duties. Each Agent may execute any of its duties
under this Agreement or any other Credit Document by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
12.03 Exculpatory Provisions. Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such person in its capacity as an Agent under or in connection
with this Agreement or the other Credit Documents (except for its own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction in a final and non-appealable decision) or (ii) responsible in any
manner to any of the Lenders for any recitals, statements, representations or
warranties made by Holdings, any of its Subsidiaries or any of their respective
officers contained in this Agreement or the other Credit Documents, any
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other Document or in any certificate, report, statement or other document
referred to or provided for in, or received by any Agent under or in connection
with, this Agreement or any other Document or for any failure of Holdings or any
of its Subsidiaries or any of their respective officers to perform its
obligations hereunder or thereunder. No Agent shall be under any obligation to
any Lender to ascertain or to inquire as to the observance or performance of any
of the agreements contained in, or conditions of, this Agreement or the other
Documents, or to inspect the properties, books or records of Holdings or any of
its Subsidiaries (except to the extent expressly requested to do so by the
Required Lenders). No Agent shall be responsible to any Lender for the
effectiveness, genuineness, validity, enforceability, collectability or
sufficiency of this Agreement or any other Document or for any representations,
warranties, recitals or statements made herein or therein or made in any written
or oral statement or in any financial or other statements, instruments, reports,
certificates or any other documents in connection herewith or therewith
furnished or made by such Agent to the Lenders or by or on behalf of Holdings or
any of its Subsidiaries to any Agent or any Lender or be required to ascertain
or inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained herein or therein or as to the use
of the proceeds of the Loans or of the existence or possible existence of any
Default or Event of Default.
12.04 Reliance by Agents. Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, facsimile, telex
or teletype message, statement, order or other document or conversation
reasonably believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to Holdings or any of
their respective Subsidiaries), independent accountants and other experts
selected by it. Each Agent shall be fully justified in failing or refusing to
take any action under this Agreement or any other Credit Document unless it
shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. Each Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement and the other Credit Documents in accordance with a request of the
Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.
12.05 Notice of Default. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default unless such Agent
has actually received notice from a Lender or a Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default." In the event that any Agent receives such a
notice, such Agent shall give prompt notice thereof to the Lenders. The Agents
shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by the Required Lenders; provided, that, unless and until
any Agent, shall have received such directions, such Agent, may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
12.06 Nonreliance on Agents and Other Lenders. Each Lender expressly
acknowledges that no Agent nor any of their respective officers, directors,
employees, agents,
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attorneys-in-fact or affiliates has made any representations or warranties to it
and that no act by any Agent hereinafter taken, including any review of the
affairs of Holdings or any of its Subsidiaries, shall be deemed to constitute
any representation or warranty by such Agent to any Lender. Each Lender
represents to each Agent that it has, independently and without reliance upon
any Agent or any other Lender, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, assets, operations, property, financial and other condition, prospects
and creditworthiness of Holdings and its Subsidiaries and made its own decision
to make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon any Agent or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement, and to make
such investigation as it deems necessary to inform itself as to the business,
assets, operations, property, financial and other condition, prospects and
creditworthiness of Holdings and its Subsidiaries. No Agent shall have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, assets, property, financial and other
condition, prospects or creditworthiness of Holdings or any of its Subsidiaries
which may come into the possession of such Agent or any of its respective
officers, directors, employees, agents, attorneys-in-fact or affiliates.
12.07 Indemnification. The Lenders agree to indemnify each Agent in
its capacity as such ratably according with its "percentage" as used in
determining the Required Lenders at such time or, if the Commitments have
terminated and all Loans have been repaid in full, as determined immediately
prior to such termination and repayment (with such "percentages" to be
determined as if there are no Defaulting Lenders), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, reasonable expenses (including, without limitation, reasonable fees and
expenses of counsel) or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
Obligations) be imposed on, incurred by or asserted against such Agent in its
capacity as such in any way relating to or arising out of this Agreement or any
other Credit Document, or any documents contemplated by or referred to herein or
the transactions contemplated hereby or any action taken or omitted to be taken
by such Agent under or in connection with any of the foregoing, but only to the
extent that any of the foregoing is not paid by Holdings or any of its
Subsidiaries; provided, that no Lender shall be liable to any Agent for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
primarily from the gross negligence or willful misconduct of such Agent (as
determined by a court of competent jurisdiction in a final and non-appealable
decision). If any indemnity furnished to any Agent for any purpose shall, in the
opinion of such Agent be insufficient or become impaired, such Agent may call
for additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished. The agreements in this
Section 12.07 shall survive the payment of all Obligations.
12.08 Agents in their Individual Capacities. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with Holdings and its Subsidiaries as though such Agent were
not an Agent hereunder. With respect to the Loans made by it and all Obligations
owing to it, each Agent shall have the same rights and
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powers under this Agreement as any Lender and may exercise the same as though it
were not an Agent and the terms "Lender" and "Lenders" shall include each Agent
in its individual capacity.
12.09 Holders. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person or entity who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee, assignee or
indorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.
12.10 Resignation of the Agents. (a) The Administrative Agent may
resign from the performance of all its functions and duties hereunder and/or
under the other Credit Documents at any time by giving 30 Business Days' prior
written notice to the Lenders and, unless a Default or an Event of Default under
Section 10.05 then exists, the Borrower. Any such resignation by an Agent
hereunder shall also constitute its resignation (if applicable) as a Letter of
Credit Issuer and Swingline Lender, in which case the resigning Agent (x) shall
not be required to issue any further Letters of Credit or make any additional
Swingline Loans hereunder and (y) shall maintain all of its rights as Letter of
Credit Issuer or Swingline Lender, as the case may be, with respect to any
Letter of Credit issued by it, or Swingline Loans made by it, prior to the date
of such resignation. Such resignation shall take effect upon the appointment of
a successor Administrative Agent pursuant to clauses (b) and (c) below or as
otherwise provided below.
(b) Upon any such notice of resignation, the Required Lenders shall
appoint a successor Administrative Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrower.
(c) If a successor Administrative Agent shall not have been so
appointed within such 30 Business Day period, the Administrative Agent, with the
consent of the Borrower (which consent shall not be unreasonably withheld or
delayed), shall then appoint a successor Administrative Agent who shall serve as
Administrative Agent hereunder or thereunder until such time, if any, as the
Required Lenders appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 30th Business Day after the date such notice
of resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Required Lenders shall thereafter
perform all the duties of the Administrative Agent hereunder and/or under any
other Credit Document until such time, if any, as the Lenders appoint a
successor Administrative Agent as provided above.
(e) Each Co-Syndication Agent may resign from the performance of all
its functions and duties hereunder and/or under the other Credit Documents at
any time by giving five Business Days' prior written notice to the Lenders. Such
resignation shall take effect at the end of such five Business Day period. Upon
the effectiveness of the resignation of such Co-
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Syndication Agent, the Administrative Agent shall assume all of the functions
and duties of such Co-Syndication Agent hereunder and/or under the other Credit
Documents.
(f) The Documentation Agent may resign from the performance of all
its functions and duties hereunder and/or under the other Credit Documents at
any time by giving five Business Days' prior written notice to the Lenders. Such
resignation shall take effect at the end of such five Business Day period. Upon
the effectiveness of the resignation of the Documentation Agent, the
Administrative Agent shall assume all of the functions and duties of the
Documentation Agent hereunder and/or under the other Credit Documents.
(g) Upon a resignation of any Agent pursuant to this Section 12.10,
such Agent shall remain indemnified to the extent provided in this Agreement and
the other Credit Documents and the provisions of this Section 12 shall continue
in effect for the benefit of such Agent for all of its actions and inactions
while serving as such Agent.
12.11 Appointment of Collateral Agent as Administrator (Mexico). (a)
Each of the Lenders hereby authorizes the Collateral Agent to take such action
as agent on its behalf and for its benefit and to exercise such powers under
this Agreement and the other Credit Documents as are delegated to such
Collateral Agent by the terms hereof and thereof, together with powers as are
reasonably incidentally thereto. Without prejudice to the foregoing, each of the
Lenders hereby grants in favor of the Collateral Agent a mandate (comision
mercantil), as referred to in Article 273 of the Mexican Code of Commerce
(Codigo de Comercio), pursuant to which the Collateral Agent is granted full
authority to carry out, on behalf and for the benefit of the Lenders, any and
all actions necessary to: (i) comply with and perform its obligations and duties
under the Mexican Pledge Agreement, including those arising under this
Agreement; and (ii) execute and deliver the Mexican Pledge Agreement and to
perform each and every obligation and duty set forth therein.
(b) If required by applicable law or reasonably requested by the
Collateral Agent, each Lender hereby agrees to execute and deliver to the
Collateral Agent, and register every pubic registry in Mexico in which such
registration is necessary, a notarized Mexican public deed appointing the
Collateral Agent, as the case may be, and any officer or agent thereof, as its
attorney-in-fact for purposes of exercising the rights and remedies of such
party under this Agreement, the Mexican Pledge Agreement and/or any other Credit
Document which is required to be filed, presented or enforced before a Mexican
court or in connection with any filing, presentment or enforcement before a
Mexican court.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. The Credit Agreement Parties jointly
and severally agree to: (i) pay all reasonable out-of-pocket costs and expenses
of the Agents (including, without limitation, the reasonable fees and
disbursements of White & Case LLP and local counsel) in connection with the
negotiation, preparation, execution and delivery of the Credit Documents and the
documents and instruments referred to therein and any amendment, waiver or
consent relating thereto and in connection with the Agents' syndication efforts
with respect to this Agreement; (ii) pay all reasonable out-of-pocket costs and
expenses of each Agent, each Letter of Credit Issuer and each of the Lenders in
connection with the enforcement
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of the Credit Documents and the documents and instruments referred to therein
and, after an Event of Default shall have occurred and be continuing, the
protection of the rights of each Agent, each Letter of Credit Issuer and each of
the Lenders thereunder (including, without limitation, the reasonable fees and
disbursements of counsel (including in-house counsel) for each Agent, for each
Letter of Credit Issuer and for each of the Lenders); (iii) pay and hold each of
the Lenders harmless from and against any and all present and future stamp and
other similar taxes with respect to the foregoing matters and save each of the
Lenders harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable to
such Lender) to pay such taxes; and (iv) indemnify each Agent, the Collateral
Agent, each Letter of Credit Issuer and each Lender, their respective officers,
directors, employees, representatives, trustees and agents from and hold each of
them harmless against any and all losses, liabilities, claims, damages or
expenses (including, without limitation, reasonable fees and disbursements of
counsel) incurred by any of them as a result of, or arising out of, or in any
way related to, or by reason of, (a) any investigation, litigation or other
proceeding (whether or not any Agent, the Collateral Agent, any Letter of Credit
Issuer or any Lender is a party thereto and whether or not any such
investigation, litigation or other proceeding is between or among any Agent, the
Collateral Agent, any Letter of Credit Issuer, any Lender, any Credit Party or
any third Person or otherwise) related to the entering into and/or performance
of this Agreement or any other Document or the use of the proceeds of any Loans
hereunder or any drawing on any Letter of Credit or the Transaction or the
consummation of any other transactions contemplated in any Document (but
excluding any such losses, liabilities, claims, damages or expenses to the
extent incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified, as determined by a court of competent jurisdiction in
a final and non-appealable decision), or (b) the actual or alleged presence of
Hazardous Materials in the air, surface water or groundwater or on the surface
or subsurface of any Real Property or any Environmental Claim, in each case,
including, without limitation, the reasonable fees and disbursements of counsel
and independent consultants incurred in connection with any such investigation,
litigation or other proceeding. To the extent that the undertaking to indemnify,
pay or hold harmless any Agent or any Lender set forth in the preceding sentence
may be unenforceable because it is violative of any law or public policy, the
Credit Agreement Parties jointly and severally agree to make the maximum
contribution to the payment and satisfaction of each of the indemnified
liabilities which is permissible under applicable law. No person to be
indemnified shall be liable for any damages arising from the use by others of
any information or other materials obtained through Intralinks or other similar
transmission systems in connection with this Agreement. All amounts due under
this Section 13.01 shall be payable within ten (10) Business Days after demand
therefore. The agreements in this Section 13.01 shall survive the payment of all
Obligations.
13.02 Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, each Agent, each Letter
of Credit Issuer and each Lender is hereby authorized at any time or from time
to time, without presentment, demand, protest or other notice of any kind to
Holdings or any of its Subsidiaries or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and apply any and
all deposits (general or special) and any other Indebtedness at any time held or
owing by such Agent, such Letter of Credit Issuer or such Lender (including,
without limitation, by branches and agencies of such Agent, such Letter of
Credit Issuer and such Lender wherever located) to or for the credit or the
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account of Holdings or any of its Subsidiaries against and on account of the
Obligations of Holdings or any of its Subsidiaries to such Agent, such Letter of
Credit Issuer or such Lender under this Agreement or under any of the other
Credit Documents, including, without limitation, all interests in Obligations of
Holdings or any of its Subsidiaries purchased by such Lender pursuant to Section
13.06(b), and all other claims of any nature or description arising out of or
connected with this Agreement or any other Credit Document, irrespective of
whether or not such Agent, such Letter of Credit Issuer or such Lender shall
have made any demand hereunder and although said Obligations shall be contingent
or unmatured.
13.03 Notices. (a) Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered, if to any Credit Party,
at the address specified opposite its signature below or in the other relevant
Credit Documents, as the case may be; if to any Lender, at its address specified
for such Lender on Schedule II; or, at such other address as shall be designated
by any party in a written notice to the other parties hereto. All such notices
and communications shall be mailed, telegraphed, telexed, telecopied or cabled
or sent by overnight courier, and shall be effective when received.
(b) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent or CSFB (in the case of a Borrowing of Swingline Loans) or
any Letter of Credit Issuer (in the case of the issuance of a Letter of Credit),
as the case may be, may prior to receipt of written confirmation act without
liability upon the basis of such telephonic notice, believed by the
Administrative Agent or CSFB or any Letter of Credit Issuer in good faith to be
from an Authorized Officer of the Borrower. In each such case, the Borrower
hereby waives the right to dispute the Administrative Agent's, CSFB's or such
Letter of Credit Issuer's record of the terms of such telephonic notice.
13.04 Benefit of Agreement. (a) This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, no Credit Agreement Party may
assign or transfer any of its rights, obligations or interest hereunder or under
any other Credit Document without the prior written consent of each of the
Lenders and, provided further, that, although any Lender may grant
participations in its rights hereunder, such Lender shall remain a "Lender" for
all purposes hereunder (and may not transfer or assign all or any portion of its
Commitments or Loans hereunder except as provided in Section 13.04(b)) and the
participant shall not constitute a "Lender" hereunder and, provided further,
that no Lender shall transfer or grant any participation under which the
participant shall have direct or indirect rights to approve any amendment to or
waiver of this Agreement or any other Credit Document except to the extent such
amendment or waiver would (i) extend the final scheduled maturity of any Loan,
Note or Letter of Credit (unless such Letter of Credit is not extended beyond
the Revolving Loan Maturity Date) in which such participant is participating, or
reduce the rate or extend the time of payment of interest or Fees thereon
(except in connection with a waiver of applicability of any post-default
increase in interest rates) or reduce the principal amount thereof, or increase
the amount of the participant's participation over the amount thereof then in
effect (it being understood that a waiver of any Default or Event of Default or
of a mandatory reduction in the Total Commitment
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or of a mandatory repayment of Loans shall not constitute a change in the terms
of such participation, that an increase in any Commitment or Loan shall be
permitted without the consent of any participant if the participant's
participation is not increased as a result thereof and that any amendment or
modification to the financial definitions in this Agreement shall not constitute
a reduction in any rate of interest or fees for purposes of this clause (i)),
(ii) consent to the assignment or transfer by any Credit Agreement Party of any
of its rights and obligations under this Agreement or (iii) release all or
substantially all of the Collateral under all of the Security Documents (except
as expressly provided in the Security Documents) supporting the Loans hereunder
in which such participant is participating. In the case of any such
participation, the participant shall not have any rights under this Agreement or
any of the other Credit Documents (the participant's rights against such Lender
in respect of such participation to be those set forth in the agreement executed
by such Lender in favor of the participant relating thereto) and all amounts
payable by any Credit Agreement Party hereunder shall be determined as if such
Lender had not sold such participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender
together with one or more other Lenders) may (x) assign all or a portion of its
Revolving Loan Commitment (and related outstanding Obligations hereunder) and/or
its outstanding Term Loans (and if prior to the termination of the Total Term
Loan Commitment, Term Loan Commitments) to (i) its parent company and/or any
affiliate of such Lender which is at least 50% owned by such Lender or its
parent company, (ii) one or more Lenders or (iii) in the case of any Lender that
is a fund that invests in bank loans or that manages (directly or through an
Affiliate) any fund that invests in bank loans, any fund that invests in bank
loans and is managed by the same investment advisor as a Lender, by an Affiliate
of such investment advisor or by a Lender, as the case may be, or (y) assign
all, or if less than all, a portion equal to at least $1,000,000 in the
aggregate for the assigning Lender or assigning Lenders, of such Revolving Loan
Commitments (and related outstanding Obligations hereunder) and outstanding
principal amount of Term Loans (and if prior to the termination of the Total
Term Loan Commitment, Term Loan Commitments) to one or more Eligible Transferees
(treating (x) any fund that invests in bank loans and (y) any other fund that
invests in bank loans and is managed by the same investment advisor as such fund
or by an Affiliate of such investment advisor, as a single Eligible Transferee),
each of which assignees shall become a party to this Agreement as a Lender by
execution of an Assignment and Assumption Agreement, provided that, (i) at such
time Schedule I shall be deemed modified to reflect the Commitments and/or
outstanding Term Loans, as the case may be, of such new Lender and of the
existing Lenders, (ii) upon surrender of the old Notes (or the furnishing of a
standard indemnity letter from the respective assigning Lender in respect of any
lost Notes reasonably acceptable to the Borrower), new Notes will be issued, at
the Borrower's expense, to such new Lender and to the assigning Lender, such new
Notes to be in conformity with the requirements of Section 1.05 (with
appropriate modifications) to the extent needed to reflect the revised
Commitments and/or outstanding Term Loans, as the case may be, (iii) the consent
of the Administrative Agent shall be required in connection with any assignment
pursuant to this Section 13.04(b) (such consent, in any such case, not to be
reasonably withheld or delayed), (iv) so long as no Specified Default and no
Event of Default is then in existence, the Borrower shall be required in
connection with any assignment to an Eligible Transferee pursuant to clause (y)
of this Section 13.04(b) (which consent, in each case, shall not be unreasonably
withheld or delayed), provided that the consent of the Borrower shall not be
required in connection with assignments by CSFB pursuant to clause (y) of this
Section 13.04(b) consummated within 45
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days of the Initial Borrowing Date to financial institutions previously
identified by CSFB to the Borrower, (v) the consent of each Letter of Credit
Issuer shall be required in connection with any assignment of a Revolving Loan
Commitment (and related outstanding Obligations) pursuant to this Section
13.04(b) (which consent, in any such case, shall not be unreasonably withheld or
delayed) and (vi) the Administrative Agent shall receive at the time of each
assignment, from the assigning or assignee Lender, the payment of a
non-refundable assignment fee of $3,500 and, provided further, that such
transfer or assignment will not be effective until recorded by the
Administrative Agent on the Register pursuant to Section 13.17. To the extent of
any assignment pursuant to this Section 13.04(b), the assigning Lender shall be
relieved of its obligations hereunder with respect to its assigned Commitments
and/or outstanding Term Loans. At the time of each assignment pursuant to this
Section 13.04(b) to a Person which is not already a Lender hereunder and which
is not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) for U.S. Federal income tax purposes, the respective assignee Lender
shall provide to the Borrower and the Administrative Agent the appropriate
Internal Revenue Service Forms (and, if applicable a Section 4.04(b)(ii)
Certificate) described in Section 4.04(b). To the extent that an assignment of
all or any portion of a Lender's Revolving Loan Commitment and outstanding
Obligations pursuant to Section 1.13 or this Section 13.04(b) would, due to
circumstances existing at the time of such assignment, result in increased costs
under Section 1.10, 1.11, 2.05 or 4.04 from those being charged by the
respective assigning Lender prior to such assignment, then the Borrower shall
not be obligated to pay such increased costs (although the Borrower shall be
obligated to pay any other increased costs of the type described above resulting
from changes after the date of the respective assignment). Notwithstanding
anything to the contrary contained above, at any time after the termination of
the Total Revolving Loan Commitment, if any Revolving Loans or Letters of Credit
remain outstanding, assignments may be made as provided above, except that the
respective assignment shall be of a portion of the outstanding Revolving Loans
of the respective RL Lender and its participation in Letters of Credit and its
obligation to make Mandatory Borrowings, although any such assignment effected
after the termination of the Total Revolving Loan Commitment shall not release
the assigning RL Lender from its obligations as a Participant with respect to
outstanding Letters of Credit or to fund its share of any Mandatory Borrowing
(although the respective assignee may agree, as between itself and the
respective assigning RL Lender, that it shall be responsible for such amounts).
Without the consent of the Administrative Agent, the Credit-Linked Deposit
funded by any PF Lender shall not be released in connection with any assignment
of its PF Letter of Credit Commitment, but shall instead be purchased by the
relevant assignee and continue to be held for application (if not already
applied) pursuant to Section 2.03(c) in respect of such assignee's obligations
under the PF Letter of Credit Commitment assigned to it.
(c) Nothing in this Agreement shall prevent or prohibit any Lender
or CSFB from pledging its Loans and Notes hereunder to a Federal Reserve Bank in
support of borrowings made by such Lender from such Federal Reserve Bank and,
with notice to the Administrative Agent, any Lender which is a fund may pledge
all or any portion of its Notes or Loans to its trustee in support of its
obligations to its trustee. No pledge pursuant to this clause (c) shall release
the transferor Lender from any of its obligations hereunder and in no event
shall any assignee or pledgee by considered to be a "Lender" or be entitled to
require the assigning Lender to take or omit any action hereunder.
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13.05 No Waiver; Remedies Cumulative. No failure or delay on the part
of any Agent, the Collateral Agent or any Lender in exercising any right, power
or privilege hereunder or under any other Credit Document and no course of
dealing between any Credit Party and any Agent, the Collateral Agent or any
Lender shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Credit
Document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder or thereunder. The rights and remedies
herein expressly provided are cumulative and not exclusive of any rights or
remedies which any Agent, the Collateral Agent or any Lender would otherwise
have. No notice to or demand on any Credit Party in any case shall entitle any
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agents, the Collateral
Agent or the Lenders to any other or further action in any circumstances without
notice or demand.
13.06 Payments Pro Rata. (a) The Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of any Credit Party
in respect of any Obligations of such Credit Party, it shall, except as
otherwise provided in this Agreement, distribute such payment to the Lenders
(other than any Lender that has consented in writing to waive its pro rata share
of such payment) pro rata based upon their respective shares, if any, of the
Obligations with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings or Fees, of a sum which with respect to the
related sum or sums received by other Lenders is in a greater proportion than
the total of such Obligation then owed and due to such Lender bears to the total
of such Obligation then owed and due to all of the Lenders immediately prior to
such receipt, then such Lender receiving such excess payment shall purchase for
cash without recourse or warranty from the other Lenders an interest in the
Obligations of the respective Credit Party to such Lenders in such amount as
shall result in a proportional participation by all of the Lenders in such
amount; provided, that if all or any portion of such excess amount is thereafter
recovered from such Lender, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
13.07 Calculations; Computations. (a) The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by Holdings to the Lenders); provided, that except as otherwise specifically
provided herein, all computations determining the Adjusted Total Leverage Ratio
and the Total Leverage Ratio and compliance with Sections 4.02, 8.15 and 9,
including definitions used therein shall, in each case, utilize accounting
principles and policies in effect at the time of the preparation of, and in
conformity with those used to prepare, the December 31, 2002 financial
statements of Holdings delivered to the Lenders pursuant to Section 7.10(b);
provided further, that (i) to the extent expressly required pursuant to the
provisions of this Agreement, certain calculations shall be made on a Pro Forma
Basis, (ii) any determination of Consolidated Interest Expense for any portion
of any Test Period which ends prior to the Initial Borrowing Date shall be
calculated in accordance with the definition of Test Period contained
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herein and (iii) for purposes of calculating the Applicable Margins, financial
ratios, financial terms, all covenants and related definitions, all such
calculations based on the operations of Holdings and its Subsidiaries on a
consolidated basis shall be made without giving effect to the operations of any
Unrestricted Subsidiaries.
(b) All computations of interest and Fees hereunder shall be made on
the actual number of days elapsed over a year of 360 days.
13.08 Governing Law; Submission to Jurisdiction; Venue. (a) THIS
AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK. Any legal action or proceeding
with respect to this Agreement or any other Credit Document may be brought in
the courts of the State of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Agreement, each
Credit Agreement Party hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each Credit Agreement Party hereby further irrevocably waives any claim
that any such courts lack jurisdiction over such Credit Agreement Party, and
agrees not to plead or claim, in any legal action or proceeding with respect to
this Agreement or any other Credit Document brought in any of the aforesaid
courts, that any such court lacks jurisdiction over such Credit Agreement Party.
Each Credit Agreement Party further irrevocably consents to the service of
process in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to such Credit Agreement Party,
at its address for notices pursuant to Section 13.03, such service to become
effective 30 days after such mailing. Each Credit Agreement Party hereby
irrevocably waives any objection to such service of process and further
irrevocably waives and agrees not to plead or claim in any action or proceeding
commenced hereunder or under any other Credit Document that service of process
was in any way invalid or ineffective. Nothing herein shall affect the right of
any Agent, the Collateral Agent, any Lender or the holder of any Note to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against any Credit Party in any other jurisdiction.
(b) Each Credit Agreement Party hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection with this
Agreement or any other Credit Document brought in the courts referred to in
clause (a) above and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum.
13.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts executed by all the parties hereto shall be lodged with each Credit
Agreement Party and the Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective on the date
(the "Effective Date") on which Holdings, the Borrower, the Administrative
Agent, each Co-
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Syndication Agent and the Documentation Agent and each Lender shall have signed
a counterpart hereof (whether the same or different counterparts) and shall have
delivered the same (including by way of facsimile transmission) to the
Administrative Agent at the Notice Office or at the office of Agents' counsel.
The Administrative Agent will give Holdings, the Borrower and each Lender prompt
written notice of the occurrence of the Effective Date.
13.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Lenders, provided that no such change, waiver, discharge or termination
shall, without the consent of each Lender (other than a Defaulting Lender) (with
Obligations being directly affected thereby in the case of the following clause
(i)), (i) extend the final scheduled maturity of any Loan or Note or extend the
stated maturity of any Letter of Credit beyond the Revolving Loan Maturity Date,
or reduce the rate or extend the time of payment of interest (other than as a
result of any waiver of the applicability of any post-default increase in
interest rates) or Fees thereon, or reduce the principal amount thereof (it
being understood that any amendment or modification to the financial definitions
in this Agreement shall not constitute a reduction in any rate of interest or
fees for purposes of this clause (i), notwithstanding the fact that such
amendment or modification actually results in such a reduction), (ii) release
(x) all or substantially all of the Collateral (except as expressly provided in
the Security Documents) under all the Security Documents or (y) all or
substantially all of the Guarantors from the Subsidiaries Guaranty, (iii) amend,
modify or waive any provision of this Section 13.12 (except for technical
amendments with respect to additional extensions of credit pursuant to this
Agreement which afford the protections to such additional extensions of credit
of the type provided to the Term Loans, the Revolving Loan Commitments and the
PF Letter of Credit Commitments on the Effective Date), (iv) reduce the
percentage specified in the definition of Required Lenders (it being understood
that, with the consent of the Required Lenders, additional extensions of credit
pursuant to this Agreement may be included in the determination of the Required
Lenders on substantially the same basis as the extensions of Term Loans,
Revolving Loan Commitments and PF Letter of Credit Commitments are included on
the Effective Date), (v) amend or modify Section 13.06 in a manner that would
alter the pro rata sharing of payments required thereby, or (vi) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement or any other Credit Document; provided further, that no
such change, waiver, discharge or termination shall (s) amend, modify or waive
any condition precedent set forth in Section 6A or 6B with respect to the making
of Revolving Loans or Swingline Loans or the issuance of Letters of Credit,
without the written consent of the Majority Lenders holding Revolving Loan
Commitments, (t) increase the Commitments of any Lender over the amount thereof
then in effect without the consent of such Lender (it being understood that
waivers or modifications of conditions precedent, covenants, Defaults or Events
of Default or of a mandatory reduction in the Total Commitment shall not
constitute an increase of the Commitment of any Lender, and that an increase in
the available portion of any Commitment of any Lender shall not constitute an
increase in the Commitment of such Lender), (u) without the consent of each
Letter of Credit Issuer, amend,
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modify or waive any provision of Section 2 or alter its rights or obligations
with respect to Letters of Credit, (v) without the consent of CSFB, alter its
rights or obligations with respect to Swingline Loans, (w) without the consent
of the respective Agent, amend, modify or waive any provision of Section 12 as
same applies to such Agent or any other provision as same relates to the rights
or obligations of such Agent, (x) without the consent of the Collateral Agent,
amend, modify or waive any provision relating to the rights or obligations of
the Collateral Agent, (y) without the consent of the Supermajority Lenders of a
relevant Tranche, reduce the amount of or extend the date of, any Scheduled
Repayment (except that, if additional Loans are made pursuant to a given
Tranche, the Scheduled Repayments of such Tranche may be increased on a
proportionate basis without the consent otherwise required by this clause (y)),
or (z) amend the definition of Supermajority Lenders (it being understood that,
with the consent of the Required Lenders, additional extensions of credit
pursuant to this Agreement may be included in the determination of the
Supermajority Lenders on substantially the same basis as the extensions of Loans
and Commitments are included on the Effective Date).
(b) If, in connection with any proposed change, waiver, discharge or
termination of or to any of the provisions of this Agreement as contemplated by
clauses (i) through (vi), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Lenders is obtained but the consent of one or more
of such other Lenders whose consent is required is not obtained, then the
Borrower shall have the right, on and after the Term Loan Commitment Termination
Date, so long as all non-consenting Lenders whose individual consent is required
are treated as described in either clause (A) or (B) below, to either (A)
replace each such non-consenting Lender or Lenders (or, at the option of the
Borrower if the respective Lender's consent is required with respect to less
than all Tranches (or related Commitments), to replace only the respective
Tranche of Commitments and/or related Obligations of the respective
non-consenting Lender which gave rise to the need to obtain such Lender's
individual consent) with one or more Replacement Lenders pursuant to Section
1.13 so long as at the time of such replacement, each such Replacement Lender
consents to the proposed change, waiver, discharge or termination or (B)
terminate such non-consenting Lender's Revolving Loan Commitment (if such
Lender's consent is required as a result of its Revolving Loan Commitment), PF
Letter of Credit Commitment (if such Lender's consent is required as a result of
its PF Letter of Credit Commitment) and/or repay each Tranche of outstanding
Loans of such Lender which gave rise to the need to obtain such Lender's consent
and/or cash collateralize its applicable Percentage of the Letter of Credit
Outstandings, in accordance with Sections 3.02(b) and/or 4.01(vi), provided
that, unless the Commitments which are terminated and Loans which are repaid
pursuant to preceding clause (B) are immediately replaced in full at such time
through the addition of new Lenders or the increase of the Commitments and/or
outstanding Loans of existing Lenders (who in each case must specifically
consent thereto), then in the case of any action pursuant to preceding clause
(B), the Required Lenders (determined after giving effect to the proposed
action) shall specifically consent thereto, provided further, that the Borrower
shall not have the right to replace a Lender, terminate its Commitment or repay
its Loans solely as a result of the exercise of such Lender's rights (and the
withholding of any required consent by such Lender) pursuant to the second
proviso to Section 13.12(a).
13.13 Survival. All indemnities set forth herein including, without
limitation, in Sections 1.10, 1.11, 2.05, 4.04, 12.07 and 13.01, shall, subject
to the provisions of Section 13.18
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(to the extent applicable), survive the execution and delivery of this Agreement
and the making and repayment of the Loans.
13.14 Domicile of Loans and Commitments. Each Lender may transfer and
carry its Loans and/or Commitments at, to or for the account of any branch
office, subsidiary or affiliate of such Lender; provided, that the Borrower
shall not be responsible for costs arising under Section 1.10, 1.11, 2.05 or
4.04 resulting from any such transfer (other than a transfer pursuant to Section
1.12) to the extent such costs would not otherwise be applicable to such Lender
in the absence of such transfer.
13.15 Confidentiality. (a) Each of the Lenders agrees that it will use
its reasonable efforts not to disclose without the prior consent of Holdings
(other than to its directors, trustees, employees, officers, auditors, counsel
or other professional advisors, to affiliates or to another Lender if the Lender
or such Lender's holding or parent company in its sole discretion determines
that any such party should have access to such information, provided that such
persons shall be subject to the provisions of this Section 13.15 to the same
extent as such Lender) any information with respect to Holdings or any of its
Subsidiaries which is furnished by Holdings or any of its Subsidiaries pursuant
to this Agreement; provided, that any Lender may disclose any such information
(a) which is publicly known at the time of the disclosure or which has become
generally available to the public, (b) as may be required or appropriate (x) in
any report, statement or testimony submitted to any municipal, state or Federal
regulatory body having or claiming to have jurisdiction over such Lender or to
the Federal Reserve Board or the Federal Deposit Insurance Corporation or
similar organizations (whether in the United States or elsewhere) or their
successors or (y) in connection with any request or requirement of any such
regulatory body (including any securities exchange or self-regulatory
organization), (c) as may be required or appropriate in response to any summons
or subpoena or in connection with any litigation or other legal process, (d) to
comply with any law, order, regulation or ruling applicable to such Lender, and
(e) to any prospective transferee in connection with any contemplated transfer
of any of the Notes or any interest therein by such Lender; provided, that such
prospective transferee agrees to be bound by this Section 13.15 to the same
extent as such Lender.
(b) Each Credit Agreement Party hereby acknowledges and agrees that
each Lender may share with any of its affiliates any information related to such
Credit Agreement Party or any of its Subsidiaries (including, without
limitation, any nonpublic customer information regarding the creditworthiness of
such Credit Agreement Party and its Subsidiaries), provided that such Persons
shall be subject to the provisions of this Section 13.15 to the same extent as
such Lender.
(c) Each Credit Party hereby represents and acknowledges that, to
the best of its knowledge, neither any Agent nor any Lender, nor any employees
or agents of, or other persons affiliated with, any Agent or any Lender, have
directly or indirectly made or provided any statement (oral or written) to such
Credit Party or to any of its employees or agents, or other persons affiliated
with or related to such Credit Party (or, so far as such Credit Party is aware,
to any other person), as to the potential tax consequences of the Transaction.
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(d) Neither the Agents nor the Lenders provide accounting, tax or
legal advice. Notwithstanding any express or implied claims of exclusivity or
proprietary rights, each Credit Party, each Agent and each Lender hereby agree
and acknowledge that each Credit Party, each Agent and each Lender (and each of
their employees, representatives or other agents) are authorized to disclose to
any and all persons, beginning immediately upon commencement of their
discussions and without limitation of any kind, the tax treatment and tax
structure of the Transaction, and all materials of any kind (including opinions
or other tax analyses) that are provided to any Credit Party, any Agent or any
Lender relating to such tax treatment and tax structure. In this regard, each
Credit Party, each Agent and each Lender acknowledge and agree that the
disclosure of the tax treatment and tax structure of the Transaction is not
limited in any way by an express or implied understanding or agreement, oral or
written (whether or not such understanding or agreement is legally binding). For
purposes of this authorization, "tax" means United States Federal income tax,
"tax treatment" means the purported or claimed Federal income tax treatment of
the transaction, and "tax structure" means any fact that may be relevant to
understanding the purported or claimed Federal income tax treatment of the
transaction. This paragraph is intended to reflect the understanding of each
Credit Party, each Agent and each Lender that the Transaction is not a
"confidential transaction" as that phrase is used in Treasury Regulation Section
1.6011-4(b)(3)(i), and shall be interpreted in a manner consistent therewith.
Nothing herein is intended to imply that any of each Credit Party, each Agent
and each Lender made or provided a statement, oral or written, to, or for the
benefit of, any of each other as to any potential tax consequences that are
related to, or may result from, the Transaction.
13.16 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.17 Register. The Borrower hereby designates the Administrative
Agent to serve as the Borrower's agent, solely for purposes of this Section
13.17, to maintain a register (the "Register") on which it will record the
Commitments from time to time of each of the Lenders, the Loans made by each of
the Lenders and each repayment in respect of the principal amount of the Loans
of each Lender. Failure to make any such recordation, or any error in such
recordation shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Lender, the transfer of any Commitment of such Lender
and the rights to the principal of, and interest on, any Loan shall not be
effective until such transfer is recorded on the Register maintained by the
Administrative Agent with respect to ownership of such Commitment and Loans and
prior to such recordation all amounts owing to the transferor with respect to
such Commitment and Loans shall remain owing to the transferor. Subject to the
provisions of Section 1.13, the registration of assignment or transfer of all or
part of any Commitment and Loans shall be recorded by the Administrative Agent
on the Register only upon the acceptance by the Administrative Agent of a
properly executed and delivered Assignment and Assumption Agreement pursuant to
Section 13.04(b). Coincident with the delivery of such an Assignment and
Assumption Agreement to the Administrative Agent for acceptance and registration
of assignment or transfer of all or part of a Commitment and/or Loan, or as soon
thereafter as practicable, the assigning or transferor Lender shall surrender
the Note evidencing such Commitment and/or Loan, and thereupon one or more new
Notes in the same aggregate principal
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amount shall be issued to the assigning or transferor Lender and/or the new
Lender. The Borrower agrees to indemnify the Administrative Agent from and
against any and all losses, claims, damages and liabilities of whatsoever nature
which may be imposed on, asserted against or incurred by the Administrative
Agent in performing its duties under this Section 13.17.
13.18 Limitation on Additional Amounts, etc. Notwithstanding anything
to the contrary contained in Section 1.10, 1.11, 2.05 or 4.04 of this Agreement,
unless a Lender gives notice to the Borrower that it is obligated to pay an
amount under such Section within six months after the later of (x) the date the
Lender incurs the respective increased costs, Taxes, loss, expense or liability,
reduction in amounts received or receivable or reduction in return on capital or
(y) the date such Lender has actual knowledge of its incurrence of the
respective increased costs, Taxes, loss, expense or liability, reductions in
amounts received or receivable or reduction in return on capital, then such
Lender shall only be entitled to be compensated for such amount by the Borrower
pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be, to the
extent of the costs, Taxes, loss, expense or liability, reduction in amounts
received or receivable or reduction in return on capital that are incurred or
suffered on or after the date which occurs six months prior to such Lender
giving notice to the Borrower that it is obligated to pay the respective amounts
pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be. This
Section 13.18 shall have no applicability to any Section of this Agreement other
than said Sections 1.10, 1.11, 2.05 and 4.04.
13.19 Post-Closing Actions. Notwithstanding anything to the contrary
contained in this Agreement or the other Credit Documents, the parties hereto
acknowledge and agree that:
(a) Security Document Filings. Form UCC-1 and PPSA Form 1-C
financing statements (or other appropriate local equivalent) delivered by
the Borrower to the Collateral Agent on the Initial Borrowing Date shall be
filed in the appropriate governmental office within 5 days following the
Initial Borrowing Date.
(b) UCC-3 Termination Statements. Within 7 days following the
Initial Borrowing Date (or such later date as shall have been determined by
the Administrative Agent in its sole discretion), the Administrative Agent
shall have received Form UCC-3 termination statements and Form PPSA 2-C
financing change statements and applications for registration in respect of
the Liens listed on Part B of Schedule IX hereto and same shall be filed in
the appropriate governmental office.
(c) Real Estate. On or prior to the Redemption Date, all conditions
set forth in Section 5.10(e), together with the appropriate local counsel
opinions in respect of such items set forth in Section 5.10(e), shall be
completed.
(d) Foreign Security Documents. Holdings and its Subsidiaries shall
be required to take the actions specified in Part B of Schedule XV as
promptly as practicable, and in any event within the time periods set forth
in Part B of said Schedule XV. The provisions of Part B of said Schedule
XIV shall be deemed incorporated by reference herein as fully as if set
forth herein in its entirety.
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(e) Lien Searches with respect to Tractor Trailers. Within 30 days
following the Initial Borrowing Date, Holdings and its Subsidiaries shall
have delivered to the Administrative Agent certified copies of lien
searches with respect to the Tractor Trailers owned by Holdings and its
Subsidiaries from the Illinois Department of Motor Vehicles confirming the
absence of any Liens over such Tractor Trailers.
All provisions of this Credit Agreement and the other Credit Documents
(including, without limitation, all conditions precedent, representations,
warranties, covenants, events of default and other agreements herein and
therein) shall be deemed modified to the extent necessary to effect the
foregoing (and to permit the taking of the actions described above within the
time periods, required above, rather than as otherwise provided in the Credit
Documents); provided, that (x) to the extent any representation and warranty
would not be true because the foregoing actions were not taken on the Initial
Borrowing Date, the respective representation and warranty shall be required to
be true and correct in all material respects at the time the respective action
is taken (or was required to be taken) in accordance with the foregoing
provisions of this Section 13.19, (y) all representations and warranties
relating to the Collateral Documents shall be required to be true immediately
after the actions required to be taken by Section 13.19 have been taken (or were
required to be taken) and (z) the Administrative Agent, in its sole and absolute
discretion may extend any of the time periods set forth in this Section 13.19,
but in no event shall any time period be extended beyond the 90th day following
the Initial Borrowing Date. The acceptance of the benefits of the Loans shall
constitute a representation, warranty and covenant by each Credit Agreement
Party to each of the Lenders that the actions required pursuant to this Section
13.19 will be, or have been, taken within the relevant time periods referred to
in this Section 13.19 and that, at such time, all representations and warranties
contained in this Credit Agreement and the other Credit Documents shall then be
true and correct without any modification pursuant to this Section 13.19. The
parties hereto acknowledge and agree that the failure to take any of the actions
required above, within the relevant time periods required above, shall give rise
to an immediate Event of Default pursuant to this Agreement.
SECTION 14. Holdings Guaranty.
14.01 Holdings Guaranty. In order to induce the Lenders to enter into
this Agreement and to extend credit hereunder and in recognition of the direct
benefits to be received by Holdings from the proceeds of the Loans and the
issuance of the Letters of Credit, Holdings hereby agrees with the Lenders as
follows: Holdings hereby unconditionally and irrevocably guarantees, as primary
obligor and not merely as surety the full and prompt payment when due, whether
upon maturity, acceleration or otherwise, of any and all of the Guaranteed
Obligations to the Guaranteed Creditors. If any or all of the Guaranteed
Obligations to the Guaranteed Creditors becomes due and payable hereunder,
Holdings unconditionally promises to pay such indebtedness to the Guaranteed
Creditors, or order, on demand, together with any and all expenses which may be
incurred by the Guaranteed Creditors in collecting any of the Guaranteed
Obligations. This Holdings Guaranty is a continuing one and all liabilities to
which it applies or may apply under the terms hereof shall be conclusively
presumed to have been created in reliance hereon. If claim is ever made upon any
Guaranteed Creditor for repayment or recovery of any amount or amounts received
in payment or on account of any of the Guaranteed Obligations and any of the
aforesaid payees repays all or part of said amount by reason of (i) any
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judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including the Borrower), then and in such event Holdings agrees that any such
judgment, decree, order, settlement or compromise shall be binding upon
Holdings, notwithstanding any revocation of this Holdings Guaranty or any other
instrument evidencing any liability of the Borrower, and Holdings shall be and
remain liable to the aforesaid payees hereunder for the amount so repaid or
recovered to the same extent as if such amount had never originally been
received by any such payee.
14.02 Bankruptcy. Additionally, Holdings unconditionally and
irrevocably guarantees the payment of any and all of the Guaranteed Obligations
to the Guaranteed Creditors whether or not due or payable by the Borrower upon
the occurrence of any of the events specified in Section 10.05, and
unconditionally promises to pay such indebtedness to the Guaranteed Creditors,
or order, on demand.
14.03 Nature of Liability. The liability of Holdings hereunder is
exclusive and independent of any security for or other guaranty of the
Guaranteed Obligations whether executed by Holdings, any other guarantor or by
any other party, and the liability of Holdings hereunder is not affected or
impaired by (a) any direction as to application of payment by the Borrower or by
any other party, or (b) any other continuing or other guaranty, undertaking or
maximum liability of a guarantor or of any other party as to the Guaranteed
Obligations, or (c) any payment on or in reduction of any such other guaranty or
undertaking, or (d) any dissolution, termination or increase, decrease or change
in personnel by the Borrower, or (e) any payment made to the Guaranteed
Creditors on the Guaranteed Obligations which any such Guaranteed Creditor
repays to the Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
Holdings waives any right to the deferral or modification of its obligations
hereunder by reason of any such proceeding.
14.04 Independent Obligation. No invalidity, irregularity or
unenforceability of all or any part of the Guaranteed Obligations or of any
security therefor shall affect, impair or be a defense to this Holdings
Guaranty, and this Holdings Guaranty shall be primary, absolute and
unconditional notwithstanding the occurrence of any event or the existence of
any other circumstances which might constitute a legal or equitable discharge of
a surety or guarantor except payment in full of the Guaranteed Obligations. The
obligations of Holdings hereunder are independent of the obligations of the
Borrower, any other guarantor or any other Person, and a separate action or
actions may be brought and prosecuted against Holdings whether or not action is
brought against the Borrower, any other guarantor or any other Person and
whether or not the Borrower, any other guarantor or any other Person be joined
in any such action or actions. Holdings waives, to the full extent permitted by
law, the benefit of any statute of limitations affecting its liability hereunder
or the enforcement thereof. Any payment by the Borrower or other circumstance
which operates to toll any statute of limitations as to the Borrower shall
operate to toll the statute of limitations as to Holdings.
14.05 Authorization. Holdings authorizes the Guaranteed Creditors
without notice or demand (except as shall be required by applicable statute and
cannot be waived), and without affecting or impairing its liability hereunder,
from time to time to:
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(a) change the manner, place or terms of payment of, and/or change
or extend the time of payment of, renew, increase, accelerate or alter, any
of the Guaranteed Obligations (including any increase or decrease in the
rate of interest thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and this Holdings Guaranty made
shall apply to the Guaranteed Obligations as so changed, extended, renewed
or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any of
those hereunder) incurred directly or indirectly in respect thereof or
hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against the
Borrower or others, or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors, the
Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower to its creditors other than
the Guaranteed Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Guaranteed Creditors
regardless of what liability or liabilities of the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement, any other Credit Document or any of the
instruments or agreements referred to herein or therein, or otherwise
amend, modify or supplement this Agreement, any other Credit Document or
any of such other instruments or agreements; and/or
(h) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of
Holdings from its liabilities under this Holdings Guaranty.
14.06 Reliance. It is not necessary for the Guaranteed Creditors to
inquire into the capacity or powers of the Borrower or the officers, directors,
partners or agents acting or purporting to act on its or their behalf, and any
Guaranteed Obligations made or created in reliance upon the professed exercise
of such powers shall be guaranteed hereunder.
14.07 Subordination. Any of the indebtedness of the Borrower now or
hereafter owing to Holdings is hereby subordinated to the Guaranteed Obligations
of the Borrower owing to the Guaranteed Creditors; and if the Administrative
Agent so requests at a time when an Event of Default exists, all such
indebtedness of the Borrower to Holdings shall be collected, enforced
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and received by Holdings for the benefit of the Guaranteed Creditors and be paid
over to the Administrative Agent on behalf of the Guaranteed Creditors on
account of the Guaranteed Obligations of the Borrower to the Guaranteed
Creditors, but without affecting or impairing in any manner the liability of
Holdings under the other provisions of this Holdings Guaranty. Prior to the
transfer by Holdings of any note or negotiable instrument evidencing any of the
indebtedness of the Borrower to Holdings, Holdings shall xxxx such note or
negotiable instrument with a legend that the same is subject to this
subordination. Without limiting the generality of the foregoing, Holdings hereby
agrees with the Guaranteed Creditors that it will not exercise any right of
subrogation which it may at any time otherwise have as a result of this Holdings
Guaranty (whether contractual, under Section 509 of the Bankruptcy Code or
otherwise) until all Guaranteed Obligations have been irrevocably paid in full
in cash.
14.08 Waiver. (a) Holdings waives any right (except as shall be
required by applicable statute and cannot be waived) to require any Guaranteed
Creditor to (i) proceed against the Borrower, any other guarantor or any other
party, (ii) proceed against or exhaust any security held from the Borrower, any
other guarantor or any other party or (iii) pursue any other remedy in any
Guaranteed Creditor's power whatsoever. Holdings waives any defense based on or
arising out of any defense of the Borrower any other guarantor or any other
party, other than payment in full of the Guaranteed Obligations, based on or
arising out of the disability of the Borrower, any other guarantor or any other
party, or the unenforceability of the Guaranteed Obligations or any part thereof
from any cause, or the cessation from any cause of the liability of the Borrower
other than payment in full of the Guaranteed Obligations. The Guaranteed
Creditors may, at their election, foreclose on any security held by the
Administrative Agent, the Collateral Agent or any other Guaranteed Creditor by
one or more judicial or nonjudicial sales, whether or not every aspect of any
such sale is commercially reasonable (to the extent such sale is permitted by
applicable law), or exercise any other right or remedy the Guaranteed Creditors
may have against the Borrower or any other party, or any security, without
affecting or impairing in any way the liability of Holdings hereunder except to
the extent the Guaranteed Obligations have been paid. Holdings waives any
defense arising out of any such election by the Guaranteed Creditors, even
though such election operates to impair or extinguish any right of reimbursement
or subrogation or other right or remedy of Holdings against the Borrower or any
other party or any security.
(b) Holdings waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Holdings
Guaranty, and notices of the existence, creation or incurring of new or
additional Guaranteed Obligations. Holdings assumes all responsibility for being
and keeping itself informed of the Borrower's financial condition and assets,
and of all other circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations and the nature, scope and extent of the risks which
Holdings assumes and incurs hereunder, and agrees that the Guaranteed Creditors
shall have no duty to advise Holdings of information known to them regarding
such circumstances or risks.
(c) Until such time as the Guaranteed Obligations have been paid in
full in cash or Cash Equivalents, Holdings hereby waives all rights of
subrogation which it may at any time otherwise have as a result of this Holdings
Guaranty (whether contractual, under Section 509 of the Bankruptcy Code, or
otherwise) to the claims of the Guaranteed Creditors against the
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Borrower or any other guarantor of the Guaranteed Obligations and all
contractual, statutory or common law rights of reimbursement, contribution or
indemnity from the Borrower or any other guarantor which it may at any time
otherwise have as a result of this Holdings Guaranty.
(d) Holdings warrants and agrees that each of the waivers set forth
above is made with full knowledge of its significance and consequences and that
if any of such waivers are determined to be contrary to any applicable law of
public policy, such waivers shall be effective only to the maximum extent
permitted by law.
14.09 Payment. All payments made by Holdings pursuant to this Section
14 shall be made in Dollars. All payments made by Holdings pursuant to this
Section 14 will be made without setoff, counterclaim or other defense.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
QUALITY DISTRIBUTION, INC.,
By:
-------------------------------------
Name:
Title:
QUALITY DISTRIBUTION LLC,
By:
-------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, ACTING
THROUGH ITS CAYMAN ISLANDS BRANCH,
Individually and as Administrative
Agent
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
DEUTSCHE BANK SECURITIES INC.,
as Co-Syndication Agent
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
BEAR XXXXXXX CORPORATE LENDING INC.,
Individually and as Co-Syndication
Agent
By:
-------------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
Individually and as Documentation
Agent
By:
-------------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
By:
-------------------------------------
Name:
Title: