EXHIBIT 10.34
CREDIT AGREEMENT
DATED AS OF OCTOBER 11, 2006
AMONG
XXXX, INC.,
AS BORROWER,
THE LENDERS LISTED HEREIN,
AS LENDERS,
AND
BANK OF MONTREAL, CHICAGO BRANCH,
AS ADMINISTRATIVE AGENT
----------
BMO CAPITAL MARKETS,
AS LEAD ARRANGER
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS................................................... 1
1.1 Certain Defined Terms........................................... 1
1.2 Accounting Terms; Utilization of GAAP for Purposes of
Calculations Under Agreement.................................... 25
1.3 Other Definitional Provisions and Rules of Construction......... 25
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS.................... 26
2.1 Commitments; Making of Loans; the Register; Notes............... 26
2.2 Interest on the Loans........................................... 29
2.3 Fees............................................................ 34
2.4 Repayments, Prepayments and Reductions in Revolving Loan
Commitments; General Provisions Regarding Payments; Application
of Proceeds of Collateral and Payments Under Guaranties......... 34
2.5 Use of Proceeds................................................. 43
2.6 Special Provisions Governing LIBOR Rate Loans................... 43
2.7 Increased Costs; Taxes; Capital Adequacy........................ 45
2.8 Obligation of Lenders and Issuing Lender to Mitigate............ 49
2.9 Guaranties of and Security for the Obligations; Subrogation..... 49
2.10 Reserved........................................................ 50
2.11 Replacement of a Lender......................................... 50
SECTION 3. LETTERS OF CREDIT............................................. 51
3.1 Issuance of Letters of Credit and Lenders' Purchase of
Participations Therein.......................................... 51
3.2 Letter of Credit Fees........................................... 53
3.3 Drawings and Reimbursement of Amounts Drawn Under Letters of
Credit.......................................................... 54
3.4 Obligations Absolute............................................ 56
3.5 Indemnification; Nature of Issuing Lender's Duties.............. 57
3.6 Increased Costs and Taxes Relating to Letters of Credit......... 58
SECTION 4 CONDITIONS TO LOANS AND LETTERS OF CREDIT...................... 58
4.1 Conditions to Closing........................................... 59
4.2 Conditions to Initial Funding Date.............................. 63
4.3 Conditions to Merger Transaction Funding........................ 66
4.4 Conditions to All Loans......................................... 70
i
4.5 Conditions to Letters of Credit................................. 71
SECTION 5 BORROWER'S REPRESENTATIONS AND WARRANTIES...................... 71
5.1 Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries.................................................... 71
5.2 Authorization of Borrowing, etc................................. 72
5.3 Financial Condition............................................. 73
5.4 No Material Adverse Change; No Restricted Junior Payments; No
Indebtedness.................................................... 73
5.5 Title to Properties; Liens; Real Property; Intellectual
Property........................................................ 74
5.6 Litigation; Compliance with Laws................................ 76
5.7 Payment of Taxes................................................ 77
5.8 Performance of Agreements; Material Contracts................... 77
5.9 Governmental Regulation......................................... 77
5.10 Securities Activities........................................... 77
5.11 Employee Benefit Plans.......................................... 78
5.12 Certain Fees.................................................... 78
5.13 Environmental Protection........................................ 78
5.14 Employee Matters................................................ 79
5.15 Solvency........................................................ 79
5.16 Matters Relating to Collateral.................................. 79
5.17 Related Agreements.............................................. 81
5.18 Subordinated Indebtedness....................................... 81
5.19 Deposit Accounts................................................ 81
5.20 Transactions with Shareholders and Affiliates................... 81
5.21 Disclosure...................................................... 82
SECTION 6. BORROWER'S AFFIRMATIVE COVENANTS.............................. 82
6.1 Financial Statements and Other Reports.......................... 82
6.2 Existence, etc.................................................. 88
6.3 Payment of Taxes and Claims; Tax................................ 88
6.4 Maintenance of Properties; Insurance; Application of Net
Insurance/Condemnation Proceeds................................. 88
6.5 Inspection Rights; Lender Meeting............................... 90
6.6 Compliance with Laws............................................ 91
6.7 Environmental Matters........................................... 91
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6.8 Execution of Subsidiary Guaranty and Personal Property
Collateral Documents After the Closing Date..................... 93
6.9 Matters Relating to Additional Real Property Collateral......... 94
6.10 Interest Rate Protection........................................ 94
6.11 Cash Management................................................. 94
SECTION 7 BORROWER'S NEGATIVE COVENANTS.................................. 95
7.1 Indebtedness.................................................... 95
7.2 Liens and Related Matters....................................... 95
7.3 Investments; Acquisitions....................................... 97
7.4 Contingent Obligations; Hedging Obligations..................... 97
7.5 Restricted Junior Payments...................................... 98
7.6 Financial Covenants............................................. 98
7.7 Restriction on Fundamental Changes; Asset Sales; Permitted
Acquisitions.................................................... 100
7.8 Other Capital Expenditures...................................... 102
7.9 Transactions with Shareholders and Affiliates................... 103
7.10 Sales and Lease-Backs........................................... 103
7.11 Sale or Discount of Receivables................................. 103
7.12 Conduct of Business............................................. 103
7.13 Amendments or Waivers of Certain Agreements; Amendments of
Documents Related to Subordinated Indebtedness.................. 103
7.14 Fiscal Year..................................................... 104
SECTION 8 EVENTS OF DEFAULT.............................................. 104
8.1 Failure to Make Payments When Due............................... 104
8.2 Default in Other Agreements..................................... 105
8.3 Breach of Certain Covenants..................................... 105
8.4 Breach of Warranty.............................................. 105
8.5 Other Defaults Under Credit Documents........................... 105
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc............ 105
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.............. 106
8.8 Judgments and Attachments....................................... 106
8.9 Dissolution..................................................... 107
8.10 Employee Benefit Plans.......................................... 107
8.11 Material Adverse Effect......................................... 107
8.12 Change in Control............................................... 107
iii
8.13 Invalidity of Credit Documents; Failure of Security; Repudiation
of Obligations.................................................. 107
8.14 Certain Crimes.................................................. 107
SECTION 9 ADMINISTRATIVE AGENT........................................... 108
9.1 Appointment..................................................... 108
9.2 Powers and Duties; General Immunity............................. 109
9.3 Independent Investigation by Lenders; No Responsibility For
Appraisal of Creditworthiness................................... 110
9.4 Right to Indemnity.............................................. 111
9.5 Successor Administrative Agent.................................. 111
9.6 League Table Agents............................................. 111
9.7 Collateral Documents and Guaranties............................. 111
9.8 Administrative Agent May File Proofs of Claim................... 113
SECTION 10 MISCELLANEOUS................................................. 113
10.1 Successors and Assigns; Assignments and Participations in Loans
and Letters of Credit........................................... 113
10.2 Expenses........................................................ 116
10.3 Indemnity....................................................... 117
10.4 Set-Off; Security Interest in Deposit Accounts.................. 118
10.5 Ratable Sharing................................................. 118
10.6 Amendments and Waivers.......................................... 119
10.7 Independence of Covenants....................................... 120
10.8 Notices; Effectiveness of Signatures............................ 120
10.9 Survival of Representations, Warranties and Agreements.......... 121
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative........... 121
10.11 Marshalling; Payments Set Aside................................. 121
10.12 Severability.................................................... 121
10.13 Obligations Several; Independent Nature of Lenders' Rights;
Damage Waiver................................................... 121
10.14 Release of Security Interest or Guaranty........................ 122
10.15 Applicable Law.................................................. 122
10.16 Construction of Agreement; Nature of Relationship............... 122
10.17 Consent to Jurisdiction and Service of Process.................. 123
10.18 Waiver of Jury Trial............................................ 123
10.19 Confidentiality................................................. 124
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10.20 Counterparts; Effectiveness..................................... 125
10.21 USA PATRIOT Act Notice.......................................... 125
Signature pages X-0, X-0 and S-3
v
EXHIBITS
I. FORM OF NOTICE OF BORROWING
II. FORM OF NOTICE OF CONVERSION/CONTINUATION
III. FORM OF DELAYED DRAW TERM NOTES
IV. FORM OF REVOLVING NOTES
V. FORM OF COMPLIANCE CERTIFICATE
VI. FORM OF ASSIGNMENT AGREEMENT
VII. FORM OF FINANCIAL CONDITION CERTIFICATE
VIII. FORM OF SECURITY AGREEMENT
IX. FORM OF SUBSIDIARY GUARANTY
X. FORM OF PLEDGE AGREEMENT
XI. FORM OF DEPOSIT ACCOUNT CONTROL AGREEMENT
XII. FORM OF MANAGEMENT FEE SUBORDINATION AGREEMENT
XIII. FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
XIV. FORM OF ACCOUNTANTS' CERTIFICATE
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SCHEDULES
Schedule 1.1B EBITDA
Schedule 2.1 Lender's Delayed Draw Term Loan Commitment/Lender's
Revolving Loan Commitment
Schedule 4.1C Pre-Merger Corporate and Capital Structure; Ownership;
Management
Schedule 4.3C Post-Merger Corporate and Capital Structure; Ownership;
Management
Schedule 5.1 Jurisdictions; Subsidiaries
Schedule 5.5B Real Property
Schedule 5.5C Intellectual Property
Schedule 5.7 Payment of Taxes
Schedule 5.8 Material Contracts
Schedule 5.11 Employee Benefit Plans
Schedule 5.12 Certain Fees
Schedule 5.13 Environmental Matters
Schedule 5.16E Collateral Information
Schedule 5.19 Deposit Accounts
Schedule 5.20 Permitted Affiliate Transactions
Schedule 7.1(iii) Existing Indebtedness
vii
XXXX, INC.
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of October 11, 2006, and entered into by,
between and among XXXX, INC., a Delaware corporation ("BORROWER"), BANK OF
MONTREAL, CHICAGO BRANCH (in its individual capacity, "BANK OF MONTREAL"), for
itself as Lender and as administrative agent for all Lenders (in such capacity,
"ADMINISTRATIVE AGENT"), and THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE
PAGES HEREOF AS LENDERS (each individually referred to herein as a "LENDER" and,
collectively, as "LENDERS").
RECITALS
WHEREAS, Borrower has requested that Lenders extend revolving and
delayed draw term credit facilities to Borrower of up to Twenty Seven Million
Dollars ($27,000,000) in the aggregate for (i) the consummation of the Merger
Transaction; and (ii) the provisions of funds for other general corporate
purposes of Borrower and other purposes permitted hereunder; and for these
purposes, Lenders are willing to make certain loans and other extensions of
credit to Borrower of up to such amount upon the terms and conditions set forth
herein; and
WHEREAS, Borrower desires to secure all of the Obligations
hereunder and under the other Credit Documents by granting to Administrative
Agent, for the benefit of Administrative Agent and the Lenders, a First Priority
Lien on all of its existing and after-acquired real, personal and mixed property
pursuant to this Agreement and the Collateral Documents, including, without
limitation, a pledge of all of the Capital Stock of its direct and indirect
Subsidiaries; and
WHEREAS, as additional collateral security for the Loans, all of
the equity owners of Borrower have agreed to grant to Administrative Agent, on
behalf of Lenders, a First Priority Lien on all of their Capital Stock in
Borrower;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the
following meanings:
"ACQUISITION PRO FORMA" has the meaning set forth in subsection
7.7(iv)(b)(II).
"ACQUISITION PROJECTIONS" has the meaning set forth in subsection
7.7(iv)(b)(III).
"ADDITIONAL MORTGAGED PROPERTY" has the meaning set forth in
subsection 6.9A.
"ADDITIONAL MORTGAGE" has the meaning set forth in subsection
6.9A.
"ADJUSTED LIBOR RATE" means, for any Interest Rate Determination
Date with respect to an Interest Period for a LIBOR Rate Loan, the rate per
annum obtained by dividing (i) (A) the rate per annum (rounded upward to the
nearest 1/100 of one percent) that appears on the Moneyline Telerate page 3750
(or such other comparable page as may, in the opinion of Administrative Agent,
replace such page
for the purpose of displaying such rate) as the London interbank offered rate
for Dollar deposits with maturities comparable to such Interest Period as of
approximately 11:00 a.m. (London time) on such Interest Rate Determination Date
or (B) if such rate is not available at such time for any reason, the arithmetic
average (rounded upward to the nearest 1/100 of one percent) of the offered
quotations, if any, to first class banks in the interbank Eurodollar market by
Bank of Montreal for Dollar deposits of amounts in same day funds comparable to
the principal amount of the LIBOR Rate Loan of Bank of Montreal for which the
LIBOR Rate is then being determined with maturities comparable to such Interest
Period as of approximately 10:00 A.M. (New York time) on such Interest Rate
Determination Date by (ii) a percentage equal to one hundred percent (100%)
minus the stated maximum rate of all reserve requirements (including any
marginal, emergency, supplemental, special or other reserves) applicable on such
Interest Rate Determination Date 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).
"ADMINISTRATIVE AGENT" has the meaning assigned to that term in
the introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 9.5.
"AFFECTED LENDER" has the meaning assigned to that term in
subsection 2.6C.
"AFFECTED LOANS" has the meaning assigned to that term in
subsection 2.6C.
"AFFILIATE," as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise.
"AGREEMENT" means this Credit Agreement dated as of October 11,
2006, as it may be amended, restated, supplemented or otherwise modified from
time to time.
"APPLICABLE MARGIN' has the meaning set forth in 2.2A.
"APPROVED FUND" means a Fund that is administered or managed by
(i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate
of an entity that administers or manages a Lender.
"ASSET SALE" means the sale by Borrower, any other Credit Party
or any of their respective Subsidiaries to any other Person of (i) any of the
Capital Stock of any other Credit Party or any of their respective Subsidiaries
to any other Person, (ii) substantially all of the assets of any division or
line of business of Borrower, any other Credit Party or any of their respective
Subsidiaries to any other Person, or (iii) any other assets (whether tangible or
intangible) of Borrower, any other Credit Party or any of their respective
Subsidiaries outside the ordinary course of business.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement in
substantially the form of EXHIBIT VI annexed hereto.
"BANK OF MONTREAL" has the meaning assigned to that term in the
introduction to this Agreement.
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"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy," as now and hereafter in effect, or any successor statute.
"BASE RATE" means, at any time, the higher of (i) the Prime Rate
or (ii) the rate which is 1/2 of 1% in excess of the Federal Funds Effective
Rate. Any change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such
change.
"BASE RATE LOANS" means Loans bearing interest at rates
determined by reference to the Base Rate as provided in subsection 2.2A.
"BASE RATE MARGIN" means the margin over the Base Rate used in
determining the rate of interest of Base Rate Loans pursuant to subsection 2.2A.
"BORROWER" has the meaning set forth in the introduction to this
Agreement; provided that upon the consummation of the Merger Transaction in
accordance with the terms and conditions hereof (including the satisfaction of
the conditions set forth in subsection 4.2), "Borrower" shall mean the surviving
Merger Subsidiary in connection with the Merger Transaction.
"BUSINESS DAY" means (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the State of New York or the State of Illinois
or is a day on which banking institutions located in either such state are
authorized or required by law or other governmental action to close, and (ii)
with respect to all notices, determinations, fundings and payments in connection
with the LIBOR Rate or any LIBOR Rate Loans, any day that is a Business Day
described in clause (i) above and that is also a day for trading by and between
banks in Dollar deposits in the London interbank market.
"CAPITAL LEASE," as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"CAPITAL STOCK" means the capital stock or other equity interests
of a Person.
"CASH" means money, currency or a credit balance in a Deposit
Account.
"CASH EQUIVALENTS" means, as at any date of determination, (i)
marketable securities (a) issued or directly and unconditionally guaranteed as
to interest and principal by the United States Government or (b) issued by any
agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within one year
after such date; (ii) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof, in each case maturing within one year after such
date and having, at the time of the acquisition thereof, the highest rating
obtainable from either Standard & Poor's ("S&P") or Xxxxx'x Investors Service,
Inc. ("XXXXX'X"); (iii) commercial paper maturing no more than one year from the
date of creation thereof and having, at the time of the acquisition thereof, a
rating of at least A-1 from S&P or at least P-1 from Xxxxx'x; (iv) certificates
of deposit or bankers' acceptances maturing within one year after such date and
issued or accepted by any Lender or by any commercial bank organized under the
laws of the United States of America or any state thereof or the District of
Columbia that (a) is at least "adequately capitalized" (as defined in the
regulations of its primary Federal banking regulator) and (b) has Tier 1 capital
(as defined in such regulations) of not less than One Hundred Million Dollars
($100,000,000); and (v) shares of any money market mutual fund that (a) has at
least ninety-five percent (95%) of its assets invested continuously in the types
of investments referred to in clauses (i), (ii) and (iii) above, (b) has net
assets of not less than
3
Five Hundred Million Dollars ($500,000,000), and (c) has the highest rating
obtainable from either S&P or Xxxxx'x.
"CASH INTEREST EXPENSE" means, for Borrower and its Subsidiaries,
for any period, Interest Expense for such period, excluding, however, any
interest expense not payable in Cash (including amortization of discount and
amortization of debt issuance costs).
"CHANGE OF CONTROL" means any of the following: (i) prior to the
consummation of the Merger Transaction, WRP, Xxxxx Xxxxxxx and Xxx Xxxxxxxx
(including the heirs, distributes, legatees and estate of Xxxxx Xxxxxxx and Xxx
Xxxxxxxx) shall cease to, directly or indirectly, legally and beneficially own
and control at least fifty-one percent (51%) of the issued and outstanding
Capital Stock of Borrower; (ii) after the consummation of the Merger
Transaction, the failure at any time of WRP to directly, legally and
beneficially own and control one hundred percent (100%) of the issued and
outstanding Capital Stock of Borrower; (iii) prior to the consummation of the
Merger Transaction, the occurrence of a change in the compositions of the
Governing Bodies of Borrower or any of its Subsidiaries such that a majority of
the members of any such Governing Body are not Continuing Members; (iv) the
failure at any time of Borrower to directly, legally and beneficially own and
control one hundred percent (100%) of the issued and outstanding Capital Stock
of any Subsidiary (except as provided below), or the failure at any time of
Borrower to have the ability to elect all of the Governing Bodies of any
Subsidiary (except as provided below); (v) prior to the consummation of the
Merger Transaction, WRP, Xxxxx Xxxxxxx and Xxx Xxxxxxxx and any representative
of WRP, Xxxxx Xxxxxxx and Xxx Xxxxxxxx reasonably acceptable to Administrative
Agent hold less than forty-two percent (42%) of the seats on the Governing
Bodies of Borrower or any Subsidiary of Borrower; or (vi) after the consummation
of the Merger Transaction, WRP, a WRP Subsidiary or any representative of WRP
reasonably acceptable to Administrative Agent hold less than one hundred percent
(100%) of the seats on the Governing Bodies of Borrower or any Subsidiary of
Borrower. As used herein, the term "beneficially own" or "beneficial ownership"
shall have the meaning set forth in the Exchange Act and the rules and
regulations promulgated thereunder.
"CLOSING DATE" means October 11, 2006.
"COLLATERAL" means, collectively, all of the real, personal and
mixed property (including Capital Stock) in which Liens are purported to be
granted pursuant to the Collateral Documents as security for the Obligations.
"COLLATERAL DOCUMENTS" means the Pledge Agreement, the Security
Agreement, the Mortgages, Leasehold Collateral Assignments, the Control
Agreements and all other instruments or documents delivered by any Credit Party
pursuant to this Agreement or any of the other Credit Documents in order to
grant to Administrative Agent, on behalf of Administrative Agent and the
Lenders, a Lien on any real, personal or mixed property of that Credit Party as
security for the Obligations.
"COMMERCIAL LETTER OF CREDIT" means any letter of credit or
similar instrument issued for the purpose of providing the primary payment
mechanism in connection with the purchase of any materials, goods or services by
Company in the ordinary course of business of Borrower or its Subsidiaries.
"COMMITMENTS" means the commitments of Lenders to make Loans as
set forth in subsection 2.1A.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the
form of EXHIBIT V annexed hereto.
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"CONTINGENT OBLIGATION," as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person (i) with
respect to any Indebtedness, lease, dividend or other obligation of another if
the primary purpose or intent thereof by the Person incurring the Contingent
Obligation is to provide assurance to the obligee of such obligation of another
that such obligation of another will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected (in whole or in part) against loss in respect
thereof, (ii) with respect to any letter of credit issued for the account of
that Person or as to which that Person is otherwise liable for reimbursement of
drawings, (iii) under Hedge Agreements, (iv) with respect to any off-balance
sheet transaction, or (v) any earnout arrangement or agreement. Contingent
Obligations shall include (a) the direct or indirect guaranty, endorsement
(otherwise than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such Person of the
obligation of another, (b) the obligation to make take-or-pay or similar
payments if required regardless of non-performance by any other party or parties
to an agreement, and (c) any liability of such Person for the obligation of
another through any agreement (contingent or otherwise) (1) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether in the
form of loans, advances, stock purchases, capital contributions or otherwise) or
(2) to maintain the solvency or any balance sheet item, level of income or
financial condition of another if, in the case of any agreement described under
subclauses (1) or (2) of this sentence, the primary purpose or intent thereof is
as described in the preceding sentence. The amount of any Contingent Obligation
shall be equal to the amount of the obligation so guaranteed or otherwise
supported or, if less, the amount to which such Contingent Obligation is
specifically limited.
"CONTINUING MEMBER" means, as of any date of determination any
member of the Governing Body of Borrower or any other Credit Party or any of
their respective Subsidiaries who (i) was a member of such Governing Body on the
Closing Date or (ii) was nominated for election or elected to such Governing
Body with the affirmative vote of a majority of the members who were either
members of such Governing Body on the Closing Date or whose nomination or
election was previously so approved.
"CONTRACTUAL OBLIGATION," as applied to any Person, means any
provision of any Security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"CONTROL AGREEMENT" means any Deposit Account Control Agreement
executed and delivered prior to, on or after the Closing Date, substantially in
the form of EXHIBIT XI annexed hereto.
"CREDIT DOCUMENTS" means this Agreement, the Notes, the Letters
of Credit (and any applications for, or reimbursement agreements or other
documents or certificates executed by Borrower, any of the other Credit Parties
or any of their Subsidiaries in favor of an Issuing Lender relating to, the
Letters of Credit), the Guaranties, the Collateral Documents, and the Management
Fee Subordination Agreement.
"CREDIT PARTY" means each of Borrower and its Subsidiaries, if
any, and "CREDIT PARTIES" means all such Persons, collectively.
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement, futures contract, option contract, synthetic cap or
other similar agreement or arrangement to which Borrower, any other Credit Party
or any of their respective Subsidiaries is a party, all as amended, restated,
supplemented or otherwise modified from time to time.
5
"DEBT SERVICE" means, for Borrower and its Subsidiaries, for any
period, the sum (without duplication) of the amounts for such period of (i) Cash
Interest Expense, and (ii) scheduled principal payments (but not mandatory
prepayments) on Total Debt (including rental payments in respect of Capital
Leases and payments made pursuant to non-compete agreements to the extent
included in Total Debt), all as determined on a consolidated basis for Borrower
and its Subsidiaries in accordance with GAAP.
"DELAYED DRAW TERM LOAN COMMITMENT" means the commitment of a
Lender to make a Delayed Draw Term Loan to Borrower pursuant to subsection
2.1A(i), and "DELAYED DRAW TERM LOAN COMMITMENTS" means such commitments of all
Lenders in the aggregate.
"DELAYED DRAW TERM LOAN DRAWDOWN TERMINATION DATE" means June 30,
2007; provided further, however, that if no Event of Default or Potential Event
of Default shall have occurred and be continuing and the Merger Transaction is
not consummated by the Merger Transaction Termination Date in accordance with
the terms and conditions hereof (including satisfaction of the conditions set
forth in subsection 4.2), then, conditioned upon Borrower sending Administrative
Agent written notice of its election to extend the Delayed Draw Term Loan
Drawdown Termination Date at least ten (10) Business Days prior to June 30,
2007, and Borrower's payment of the additional extension fees set forth in
subsection 2.3B, Borrower shall be permitted to extend the Delayed Draw Term
Loan Drawdown Terminate Date to December 31, 2007, for all or a portion of the
Delayed Draw Term Loan Commitment.
"DELAYED DRAW TERM LOAN EXPOSURE," with respect to any Lender,
means, as of any date of determination (i) prior to the initial funding of the
Delayed Draw Term Loans, that Lender's Delayed Draw Term Loan Commitment, and
(ii), after the initial funding of the Delayed Draw Term Loans, the sum of the
outstanding principal amount of the Delayed Draw Term Loan of that Lender and
the remaining Delayed Draw Term Loan Commitment of that Lender, if any.
"DELAYED DRAW TERM LOAN LENDER" means a Lender that has a Delayed
Draw Term Loan Commitment and/or that has an outstanding Delayed Draw Term Loan.
"DELAYED DRAW TERM LOANS" means the Delayed Draw Loans made by
Lenders to Borrower pursuant to subsection 2.1A(i).
"DELAYED DRAW TERM NOTE" means a promissory note of Borrower
payable to any Lender, in the form of EXHIBIT III annexed hereto (as such
promissory note may be amended, restated, supplemented, endorsed or otherwise
modified from time to time), evidencing the aggregate Indebtedness of Borrower
to such Lender resulting from outstanding Delayed Draw Term Loans, and also
means all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or
similar account maintained with a Person engaged in the business of banking,
including a savings bank, savings and loan association, credit union or trust
company.
"DOLLARS" and the sign "$" mean the lawful money of the United
States of America.
"DOMESTIC SUBSIDIARY" means any Subsidiary of Borrower that is a
"United States Person" as such term is defined in Section 7701(a)(30) of the
Internal Revenue Code.
"EBITDA" means, for Borrower and its Subsidiaries, for any
period, the sum, without duplication, of the amounts for such period of (i) Net
Income, (ii) Interest Expense, (iii) provisions for
6
taxes based on income, (iv) total depreciation expense, (v) total amortization
expense, (vi) other non-cash expenses and charges (other than any such non-cash
item to the extent it represents an accrual of or reserve for cash expenditures
in any future period), (vii) an amount not to exceed Four Hundred Thousand
Dollars ($400,000) if received by Borrower from WRP and used solely to fund a
portion of the salaries, compensation, benefits and other expenses of Xxxxx
Xxxxxxx and Xxx Xxxxxxxx, (viii) any transaction related costs and expenses in
connection with (a) previous auction processes for the potential sale of
Borrower, (b) the Merger Transaction, and (c) this Agreement, including any
related legal, accounting, investment banking and other consulting costs and
expenses, (ix) any litigation and settlement related costs and expenses incurred
by Borrower from March 2006 through October 2006 not to exceed Two Hundred Sixty
Thousand Dollars ($260,000), and (x) other addbacks reasonably acceptable to
Administrative Agent in an amount not to exceed Two Hundred Fifty Thousand
Dollars ($250,000), but only, in the case of the foregoing clauses (ii) - (x),
to the extent deducted in the calculation of Net Income, less (w) other non-cash
revenue, income or gains added in the calculation of Net Income (other than any
such non-cash item to the extent it will result in the receipt of cash payments
in any future period), (x) non-recurring income unrelated to the customary
operations of Borrower and its Subsidiaries added in the calculation of Net
Income, (y) Management Fees, to the extent not already expensed, as if the same
are accrued in accordance with other expenses of Borrower, and (z) to the extent
not already expensed, Web Development and Database Expenditures, all of the
foregoing as determined on a consolidated basis for Borrower and its
Subsidiaries in conformity with GAAP; provided that the foregoing amounts shall
be adjusted for the items described on SCHEDULE 1.1B annexed hereto to the
extent such items are otherwise included in the calculation of EBITDA for the
relevant period set forth in such Schedule, and any such adjustments for such
items shall be in amounts not to exceed the respective amounts set forth on such
Schedule.
"ELIGIBLE ASSETS" has the meaning assigned to that term in
subsection 2.4B(iii)(b).
"ELIGIBLE ASSIGNEE" means (i) any Lender, any Affiliate of any
Lender and any Approved Fund of any Lender; and (ii) (a) a commercial bank or
financial institution organized under the laws of the United States or any state
thereof; (b) a savings and loan association or savings bank organized under the
laws of the United States or any state thereof; (c) a commercial bank organized
under the laws of any other country or a political subdivision thereof, which
through its applicable lending office, is capable of lending to Borrower without
the imposition of any withholding or similar taxes under the Internal Revenue
Code; provided that (1) such bank is acting through a branch or agency located
in the United States or (2) such bank is organized under the laws of a country
that is a member of the Organization for Economic Cooperation and Development or
a political subdivision of such country; and (d) any other entity that is an
"accredited investor" (as defined in Regulation D under the Securities Act) that
extends credit or buys loans as one of its businesses including insurance
companies, mutual funds and lease financing companies, which through its
applicable lending office, is capable of lending to Borrower without the
imposition of any withholding or similar taxes under the Internal Revenue Code;
provided that none of Borrower, any other Credit Parties or their respective
Subsidiaries and Affiliates shall be an Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as
defined in Section 3(3) of ERISA which is or was maintained or contributed to by
any or all of Borrower, its Subsidiaries or their respective ERISA Affiliates.
"ENVIRONMENTAL CLAIM" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any Government Authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law, (ii) in connection with any
Hazardous Materials or any
7
actual or alleged Hazardous Materials Activity, or (iii) in connection with any
actual or alleged damage, injury, threat or harm to health, safety, natural
resources or the environment.
"ENVIRONMENTAL LAWS" means any and all current or future
statutes, ordinances, orders, rules, regulations, guidance documents, judgments,
Governmental Authorizations, or any other requirements of any Government
Authority relating to (i) environmental matters, including those relating to any
Hazardous Materials Activity, (ii) the generation, use, storage, transportation
or disposal of Hazardous Materials, or (iii) occupational safety and health,
industrial hygiene, land use or the protection of human, plant or animal health
or welfare, in any manner applicable to any or all of Borrower and its
Subsidiaries or any Facility.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor thereto.
"ERISA AFFILIATE," as applied to any Person, means (i) any
corporation that is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Internal Revenue Code of which that Person is a
member; (ii) any trade or business (whether or not incorporated) that is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that Person is a
member; and (iii) any member of an affiliated service group within the meaning
of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any
corporation described in clause (i) above or any trade or business described in
clause (ii) above is a member. Any former ERISA Affiliate of a Person or any of
its Subsidiaries shall continue to be considered an ERISA Affiliate of such
Person or such Subsidiary within the meaning of this definition with respect to
the period such entity was an ERISA Affiliate of such Person or such Subsidiary
and with respect to liabilities arising after such period for which such Person
or such Subsidiary could be liable under the Internal Revenue Code or ERISA.
"ERISA EVENT" means (i) a "reportable event" within the meaning
of Section 4043 of ERISA and the regulations issued thereunder with respect to
any Pension Plan (excluding those for which the provision for 30-day notice to
the PBGC has been waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure to make by its due date a required
installment under Section 412(m) of the Internal Revenue Code with respect to
any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan
pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such
plan in a distress termination described in Section 4041(c) of ERISA; (iv) the
withdrawal by any of Borrower, its Subsidiaries or their respective ERISA
Affiliates from any Pension Plan with two or more contributing sponsors or the
termination of any such Pension Plan resulting in liability pursuant to Section
4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or condition which
might constitute grounds under ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (vi) the imposition of liability
on any of Borrower, its Subsidiaries or their respective ERISA Affiliates
pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of
Section 4212(c) of ERISA; (vii) the withdrawal of any of Borrower, its
Subsidiaries or their respective ERISA Affiliates in a complete or partial
withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any
Multiemployer Plan if there is any potential liability therefor, or the receipt
by Any of Borrower, its Subsidiaries or their respective ERISA Affiliates of
notice from any Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or
has terminated under Section 4041A or 4042 of ERISA; (viii) the assertion of a
material claim (other than routine claims for benefits) against any Employee
Benefit Plan other than a Multiemployer Plan or the assets thereof, or against
any of Borrower, its Subsidiaries or their respective
8
ERISA Affiliates in connection with any Employee Benefit Plan; (ix) receipt from
the Internal Revenue Service of notice of the failure of any Pension Plan (or
any other Employee Benefit Plan intended to be qualified under Section 401(a) of
the Internal Revenue Code) to qualify under Section 401(a) of the Internal
Revenue Code, or the failure of any trust forming part of any Pension Plan to
qualify for exemption from taxation under Section 501(a) of the Internal Revenue
Code; or (x) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n)
of the Internal Revenue Code or pursuant to ERISA with respect to any Pension
Plan.
"EVENT OF DEFAULT" means each of the events set forth in Section
8.
"EXCESS CASH FLOW" means, for Borrower and its Subsidiaries, for
any period, an amount (if positive) equal to the amount of EBITDA for such
period minus the sum, without duplication, of the amounts for such period of (i)
Debt Service, (ii) Other Capital Expenditures (net of any proceeds of any
related financings with respect to such expenditures), (iii) income taxes paid
or accrued during such period by Borrower (including, on an after the
consummation of the Merger Transaction, distributions to WRP for Borrower's and
its Subsidiaries' share of WRP's consolidated income taxes), (iv) any
unscheduled principal payments on Total Debt to the extent not included in Debt
Service (but excluding any unscheduled principal payments on the Revolving Loans
except to the extent the Revolving Loan Commitments are permanently reduced by a
corresponding amount), and (v) other "cash" items added back to EBITDA pursuant
to SCHEDULE 1.1B and pursuant to clauses (vii) through (x) in the definition of
"EBITDA".
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"EXISTING SENIOR DEBT" means all Indebtedness of Borrower
pursuant to (i) that certain Business Loan Agreement dated August 1, 2005,
between Borrower and Commerce Bank, N.A., (ii) that certain Promissory Note
dated August 1, 2005, in the original principal amount of Five Hundred Thousand
Dollars ($500,000), issued by Borrower to Commerce Bank, N.A., (iii) that
certain Business Loan Agreement dated October 11, 2005, between Borrower and
Commerce Bank, N.A., (iv) that certain Promissory Note dated October 11, 2005,
in the original principal amount of Seven Hundred Fifty Thousand Dollars
($750,000), issued by Borrower to Commerce Bank, N.A., and (v) all other
Indebtedness and obligations under any other documents entered into by Borrower
in connection with the foregoing and as all of the foregoing may have been
amended from time to time.
"FACILITIES" means any and all real property (including all
buildings, fixtures or other improvements located thereon) now, hereafter or
heretofore owned, leased, operated or used by any or all of Borrower and its
Subsidiaries or any of their respective predecessors or Affiliates.
"FEDERAL FUNDS EFFECTIVE RATE" means, 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 Administrative Agent from three Federal funds
brokers of recognized standing selected by Administrative Agent.
"FINAL MATURITY DATE" means September 30, 2012; provided that if
the Merger Transaction is not consummated and on January 1, 2008, the total
amount of the Loans borrowed hereunder plus the undrawn portion of the Revolving
Loan Commitments is less than Ten Million Dollars ($10,000,000), then Borrower
shall repay all Obligations owing by Borrower under this Agreement and
9
the other Credit Documents no later than January 2, 2008, and all Commitments
hereunder shall automatically terminate.
"FINANCIAL PLAN" has the meaning assigned to that term in
subsection 6.1(xiii).
"FIRST PRIORITY" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that (i) such
Lien is perfected and has priority over any other Lien on such Collateral and
(ii) such Lien is the only Lien (other than Liens permitted pursuant to
subsection 7.1(v)) to which such Collateral is subject.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means, prior to the consummation of the Merger
Transaction, the fiscal year of Borrower and its Subsidiaries ending on October
31 of each calendar year, and from and after the consummation of the Merger
Transaction, the fiscal year of Borrower and its Subsidiaries ending on December
31 of each calendar year. For purposes of this Agreement, any particular Fiscal
Year shall be designated by reference to the calendar year in which such Fiscal
Year ends. For the avoidance of doubt, "Fiscal Year" shall include any stub or
partial periods resulting from any change in the fiscal year of Borrower and its
Subsidiaries.
"FIXED CHARGES" means, for Borrower and its Subsidiaries, for any
period, the sum (without duplication) of the amounts for such period of (i) Debt
Service, (ii) Other Capital Expenditures paid in Cash during such period
(excluding, in the aggregate and for all periods, Web Development and Database
Expenditures), (iii) income taxes paid or accrued during such period by Borrower
(including distributions to WRP for Borrower's and its Subsidiaries' share of
WRP's consolidated income taxes), and (iv) dividends, distributions,
contributions or any other Restricted Junior Payments (excluding Management Fees
that reduce EBITDA), all as determined on a consolidated basis for Borrower and
its Subsidiaries.
"FLOOD HAZARD PROPERTY" means an Additional Mortgaged Property
located in an area designated by the Federal Emergency Management Agency as
having special flood or mud slide hazards.
"FUND" means any Person (other than a natural Person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business.
"FUNDING AND PAYMENT OFFICE" means (i) the office of
Administrative Agent located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000 or (ii) such other office of Administrative Agent as may from time to time
hereafter be designated as such in a written notice delivered by Administrative
Agent to Borrower and each Lender.
"FUNDING DATE" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application
thereof set forth in subsection 1.2, accounting principles generally accepted in
the United States of America set forth in opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession, in each case as
the same are applicable to the circumstances as of the date of determination.
10
"GOVERNING BODY" means the board of directors or other body
having the power to direct or cause the direction of the management and policies
of a Person that is a corporation, partnership, trust, limited liability company
or other entity.
"GOVERNMENTAL ACTS" has the meaning set forth in subsection 3.5A.
"GOVERNMENT AUTHORITY" means any political subdivision or
department thereof, any other governmental or regulatory body, commission,
central bank, board, bureau, organ or instrumentality or any court, in each case
whether federal, state, local or foreign.
"GOVERNMENTAL AUTHORIZATION" means any permit, license,
registration, authorization, plan, directive, consent, order or consent decree
of or from, or notice to or filing with, any Government Authority.
"GUARANTIES" means any and all Subsidiary Guaranties.
"HAZARDOUS MATERIALS" means (i) any chemical, material or
substance at any time defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely hazardous
waste," "acutely hazardous waste," "radioactive waste," "biohazardous waste,"
"pollutant," "toxic pollutant," "contaminant," "restricted hazardous waste,"
"infectious waste," "toxic substances," or any other term or expression intended
to define, list or classify substances by reason of properties harmful to
health, safety or the indoor or outdoor environment (including harmful
properties such as ignitability, corrosivity, reactivity, carcinogenicity,
toxicity, reproductive toxicity, "TCLP toxicity" or "EP toxicity" or words of
similar import under any applicable Environmental Laws); (ii) any oil,
petroleum, petroleum fraction or petroleum derived substance; (iii) any drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources;
(iv) any flammable substances or explosives; (v) any radioactive materials; (vi)
any asbestos-containing materials; (vii) urea formaldehyde foam insulation;
(viii) electrical equipment which contains any oil or dielectric fluid
containing polychlorinated biphenyls; (ix) pesticides; and (x) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any Government Authority or which may or could pose a hazard to the
health and safety of the owners, occupants or any Persons in the vicinity of any
Facility or to the indoor or outdoor environment.
"HAZARDOUS MATERIALS ACTIVITY" means any past, current, proposed
or threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"HEDGE AGREEMENT" means an Interest Rate Agreement or a Currency
Agreement designed to hedge against fluctuations in interest rates or currency
values, respectively.
"HISTORICAL FINANCIAL STATEMENTS" has the meaning set forth in
subsection 7.7(iv).
"INDEBTEDNESS," as applied to any Person, means (i) all
indebtedness for borrowed money, (ii) that portion of obligations with respect
to Capital Leases that is properly classified as a liability on a balance sheet
in conformity with GAAP, (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed money,
(iv) any obligation owed for all or any part of the deferred purchase price of
property or services (excluding any such obligations incurred under ERISA),
which purchase price is (a) due more than six months from the date of
11
incurrence of the obligation in respect thereof or (b) evidenced by a note or
similar written instrument including amounts payable as adjustment to the
purchase price in connection with any permitted acquisition, and (v) all
indebtedness secured by any Lien on any property or asset owned or held by that
Person regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is nonrecourse to the credit of that Person. For the
purposes of subsection 7.6 and the determination of Total Leverage Ratio,
Obligations under Interest Rate Agreements and Currency Agreements constitute
(X) in the case of Hedge Agreements, Contingent Obligations, and (Y) in all
other cases thereunder, Investments, and in neither case thereunder constitute
Indebtedness.
"INDEMNIFIED LIABILITIES" has the meaning assigned to that term
in subsection 10.3.
"INDEMNITEE" has the meaning assigned to that term in subsection
10.3.
"INITIAL FUNDING DATE" means the earlier to occur of (i) the
initial Funding Date of Revolving Loans to the extent permitted hereunder and
(ii) the Merger Transaction Funding Date.
"INTELLECTUAL PROPERTY" means all patents, trademarks,
tradenames, copyrights, technology, websites, domain names, software, know-how
and processes used in or necessary for the conduct of the business of any or all
of Borrower and its Subsidiaries as currently conducted.
"INTEREST EXPENSE" means, for Borrower and its Subsidiaries, for
any period, total interest expense (including that portion attributable to
Capital Leases in accordance with GAAP and capitalized interest) of Borrower and
its Subsidiaries on a consolidated basis with respect to all outstanding
Indebtedness of Borrower and its Subsidiaries, including all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing, net costs under Interest Rate Agreements and
amounts referred to in subsection 2.3 payable to Administrative Agent and
Lenders that are considered interest expense in accordance with GAAP; provided
that Interest Expense shall be annualized through the first anniversary of the
Merger Transaction Funding Date, and for purposes of determining Interest
Expense:
(i) as of the last day of the first Fiscal Quarter ending after
the Merger Transaction Funding Date, Interest Expense shall be deemed
to equal Interest Expense for such Fiscal Quarter multiplied by 4;
(ii) as of the last day of the second Fiscal Quarter ending after
the Merger Transaction Funding Date, Interest Expense shall be deemed
to equal Interest Expense for such Fiscal Quarter and the immediately
preceding Fiscal Quarter multiplied by 2;
(iii) as of the last day of the third Fiscal Quarter ending after
the Merger Transaction Funding Date, Interest Expense shall be deemed
to equal Interest Expense for such Fiscal Quarter and the immediately
preceding two Fiscal Quarters multiplied by 4/3; and
(iv) as of the last day of the fourth Fiscal Quarter ending after
the Merger Transaction Funding Date and each Fiscal Quarter
thereafter, Interest Expense shall equal Interest Expense for the
period of the four consecutive Fiscal Quarters ending thereon;
provided further, that for the first Fiscal Quarter ending after
the Merger Transaction Funding Date, Interest Expense shall be adjusted to give
pro forma effect to the Merger Transaction, as if it had been consummated on the
first day of such Fiscal Quarter.
12
"INTEREST PAYMENT DATE" means (i) with respect to any Base Rate
Loan, each March 15, June 15, September 15 and December 15 of each year,
commencing on the first such date to occur after the Closing Date, and (ii) with
respect to any LIBOR Rate Loan, the last day of each Interest Period applicable
to such Loan; provided that, in the case of any Interest Period longer than
three (3) months, "Interest Payment Date" shall also include the date that is
three (3) months after the commencement of such Interest Period.
"INTEREST PERIOD" has the meaning assigned to that term in
subsection 2.2B.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement to which any or all of Borrower and its Subsidiaries is
a party, all as amended, restated, supplemented or otherwise modified from time
to time.
"INTEREST RATE DETERMINATION DATE," with respect to any Interest
Period, means the second (2nd) Business Day prior to the first day of such
Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986,
as amended to the date hereof and from time to time hereafter, and any successor
statute.
"INVESTMENT" means (i) any direct or indirect purchase or other
acquisition by any or all of Borrower and its Subsidiaries of, or of a
beneficial interest in, any Securities of any other Person (including any
Subsidiary of Borrower), (ii) any direct or indirect redemption, retirement,
purchase or other acquisition for value, by any Subsidiary of Borrower from any
Person other than a Credit Party, of any equity Securities of such Subsidiary,
(iii) any direct or indirect loan, advance (other than advances to employees for
moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contribution by any
or all of Borrower and its Subsidiaries to any other Person (other than Borrower
and its Subsidiaries to the extent permitted hereunder), including all
indebtedness and accounts receivable from that other Person that are not current
assets or did not arise from sales to that other Person in the ordinary course
of business, or (iv) Interest Rate Agreements or Currency Agreements not
constituting Hedge Agreements. The amount of any Investment shall be the
original cost of such Investment plus the cost of all additions thereto, without
any adjustments for increases or decreases in value, or write-ups, write-downs
or write-offs with respect to such Investment (other than adjustments for the
repayment of, or the refund of capital with respect to, the original principal
amount of any such Investment).
"IP COLLATERAL" means, collectively, the Intellectual Property
that constitutes Collateral under the Security Agreement.
"ISSUING LENDER" with respect to any Letter of Credit, means the
Revolving Lender that agrees or is otherwise obligated to issue such Letter of
Credit, determined in accordance with subsection 3.1B(ii).
"JOINT VENTURE" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership, limited liability
company or other legal form.
"LANDLORD CONSENT AND ESTOPPEL," with respect to any Material
Leasehold Property, means a letter, certificate or other instrument in writing
from the lessor under the related lease, satisfactory in form and substance to
Administrative Agent.
13
"LEASEHOLD COLLATERAL ASSIGNMENT," with respect to any Material
Leasehold Property, means a Collateral Assignment of Leases from the applicable
Credit Party that is the lessee under the related lease, reasonably satisfactory
in form and substance to Administrative Agent.
"LEASEHOLD PROPERTY" means any leasehold interest of any Credit
Party as lessee under any lease of real property, other than any such leasehold
interest designated from time to time by Administrative Agent in its sole
discretion as not being required to be included in the Collateral.
"LENDER" and "LENDERS" means the Persons identified as "Lenders"
and listed on the signature pages of this Agreement, together with their
successors and permitted assigns pursuant to subsection 10.1.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means Letters of Credit
issued or to be issued by Issuing Lenders for the account of Borrower pursuant
to subsection 3.1.
"LETTER OF CREDIT USAGE" means, as at any date of determination,
the sum of (i) the maximum aggregate amount which is or at any time thereafter
may become available for drawing under all Letters of Credit then outstanding
plus (ii) the aggregate amount of all drawings under Letters of Credit honored
by Issuing Lenders and not theretofore reimbursed out of the proceeds of
Revolving Loans pursuant to subsection 3.3B or otherwise reimbursed by Borrower.
"LIBOR RATE LOANS" means Loans bearing interest at rates
determined by reference to the LIBOR Rate as provided in subsection 2.2A.
"LIBOR RATE MARGIN" means the margin over the LIBOR Rate used in
determining the rate of interest of LIBOR Rate Loans pursuant to subsection
2.2A.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"LOAN" or "LOANS" means one or more of the Delayed Draw Term
Loans, Revolving Loans or any combination thereof.
"MANAGEMENT AGREEMENT" means the Management Agreement to be
entered into by and between Borrower and WRP, in the form to be delivered to
Administrative Agent prior to the Merger Transaction Funding Date, and as it may
thereafter be amended, restated, supplemented or otherwise modified or replaced
to the extent permitted by subsection 7.13A.
"MANAGEMENT EMPLOYMENT AGREEMENTS" means the Employment
Agreements between (i) Borrower and Xxxxx Xxxxxxx dated October 11, 2006; and
(ii) Borrower and Xxx Xxxxxxxx dated October 11, 2006.
"MANAGEMENT FEES" means all fees, compensation and other amounts
payable to WRP or any Affiliate thereof (other than a Credit Party) for (i)
management, consulting, advisory, monitoring or similar services provided to any
of Borrower, its Subsidiaries or any other Credit Parties pursuant to the
Management Agreement or otherwise payable by Borrower, any other Credit Parties
or any of their respective Subsidiaries to any such Person on account of any
management, consulting, advisory, monitoring or similar arrangements or
services, including, without limitation, salaries, compensation, benefits and
other expenses for Xxxxx Xxxxxxx and Xxx Xxxxxxxx if employed and paid by WRP
and other
14
persons providing significant management services to Borrower, (ii)
reimbursement or payment of any public company costs, fees and expenses (whether
internal or external), and (iii) payment of allocated audit and Tax return
preparation costs.
"MANAGEMENT FEE SUBORDINATION AGREEMENT" means the Management Fee
Subordination Agreement, among WRP, Borrower and Administrative Agent executed
and delivered on the Closing Date in the form of EXHIBIT XII annexed hereto and
as it may be amended, supplemented or otherwise modified from time to time to
the extent permitted by subsection 7.13A.
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System as in
effect from time to time.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect
upon the business, operations, assets or condition (financial or otherwise) of
Borrower and its Subsidiaries on a consolidated basis, or (ii) a material
impairment of the ability of any Credit Party to perform, or of Administrative
Agent or Lenders to enforce, the Obligations.
"MATERIAL CONTRACTS" means (i) any of the Merger Documents, (ii)
the Management Agreement, and (iii) any agreement, contract or other arrangement
to which Borrower and any of its Subsidiaries is a party for which breach,
non-performance, cancellation or failure to renew could reasonably be expected
to have a Material Adverse Effect.
"MATERIAL LEASEHOLD PROPERTY" means a Leasehold Property
reasonably determined by Administrative Agent to be of material value as
Collateral or of material importance to the operations of any or all of Borrower
and its Subsidiaries.
"MAXIMUM AGGREGATE DELAYED DRAW TERM LOAN COMMITMENT" has the
meaning set forth in subsection 2.1A(i).
"MAXIMUM LAWFUL RATE" has the meaning set forth in subsection
2.2G.
"MERGER AGREEMENT" means the Agreement and Plan of Merger dated
as of October 11, 2006, among Borrower, WRP and the Merger Subsidiary.
"MERGER DOCUMENTS" means the Merger Agreement, the disclosure
schedules attached thereto, and all exhibits and other documents executed and
delivered in connection with the Merger Agreement (whether on the date that the
Merger Agreement is executed by the parties thereto or on or prior to the date
that the Merger Transaction is consummated), as such Merger Documents may be
amended from time to time.
"MERGER SUBSIDIARY" means Xxxx Services, LLC, a Maryland limited
liability company and wholly-owned Subsidiary of WRP.
"MERGER TRANSACTION" means all of the merger and merger related
transactions contemplated by the Merger Agreement and the other Merger
Documents, including, without limitation, the merger of Borrower with and into
the Merger Subsidiary on the Merger Transaction Funding Date.
"MERGER TRANSACTION FUNDING DATE" means the date on which all of
the conditions set forth in subsections 4.2 and 4.4 are satisfied and the
Delayed Draw Term Loans are made and fully drawn in connection with the Merger
Transaction.
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"MERGER TRANSACTION TERMINATION DATE" means the date that the
Merger Agreement is terminated in accordance with its terms.
"MORTGAGE" means (i) a security instrument (whether designated as
a deed of trust or a mortgage or by any similar title) executed and delivered by
any Credit Party, in a form reasonably acceptable to Administrative Agent in its
sole discretion, in each case with such changes thereto as may be recommended by
Administrative Agent's local counsel based on local laws or customary local
mortgage or deed of trust practices, or (ii) at Administrative Agent's option,
in the case of an Additional Mortgaged Property, an amendment to an existing
Mortgage, in form satisfactory to Administrative Agent, adding such Additional
Mortgaged Property to the Real Property Assets encumbered by such existing
Mortgage, in either case as such security instrument or amendment may be
amended, restated, supplemented or otherwise modified from time to time.
"MORTGAGES" means all such instruments, including any Additional Mortgages,
collectively.
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan that is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NET ASSET SALE PROCEEDS," with respect to any Asset Sale, means
Cash payments (including any Cash received by way of deferred payment pursuant
to, or by monetization of, a note receivable or otherwise, but only as and when
so received) received from such Asset Sale, net of any bona fide direct costs
incurred in connection with such Asset Sale, including (i) income taxes
reasonably estimated to be actually payable within two (2) years of the date of
such Asset Sale as a result of any income or gain recognized in connection with
such Asset Sale, (ii) payment of the outstanding principal amount of, premium or
penalty, if any, and interest on any Indebtedness (other than the Loans) that is
secured by a Lien on the stock or assets in question and that is required to be
repaid under the terms thereof as a result of such Asset Sale, and (iii)
reasonable out-of-pocket transaction fees and expenses incurred as a direct
result of such Asset Sale, including reasonable legal and accounting fees,
investment banking fees and brokerage or similar fees and expenses (other than
fees and expenses payable to Borrower, any other Credit Party, any of their
Subsidiaries or Affiliates).
"NET INCOME" means, for Borrower and its Subsidiaries, for any
period, the net income (or loss) of Borrower and its Subsidiaries on a
consolidated basis for such period taken as a single accounting period
determined in conformity with GAAP; provided that there shall be excluded (i)
the income (or loss) of any Person (other than a Subsidiary of Borrower) in
which any other Person (other than any or all of Borrower and its Subsidiaries)
has a joint interest, except to the extent of the amount of dividends or other
distributions actually paid to any or all of Borrower and its Subsidiaries by
such Person during such period, (ii) the income (or loss) of any Person accrued
prior to the date it becomes a Subsidiary of Borrower or is merged into or
consolidated with any or all of Borrower and its Subsidiaries or that Person's
assets are acquired by any or all of Borrower and its Subsidiaries, (iii) the
income of any Subsidiary of Borrower to the extent that the declaration or
payment of dividends or similar distributions by that Subsidiary of that income
is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary, (iv) any after-tax gains or losses
attributable to Asset Sales or returned surplus assets of any Pension Plan, (v)
(to the extent not included in clauses (i) through (iv) above) any net
extraordinary gains or net extraordinary losses, and (vi) any asset impairment
write-down or any write-up of any assets.
"NET INSURANCE/CONDEMNATION PROCEEDS" means any Cash payments or
proceeds received by any Credit Party (i) under any business interruption or
casualty insurance policy in respect of a covered loss thereunder or (ii) as a
result of the taking of any assets of any or all of Borrower and its
Subsidiaries by any Person pursuant to the power of eminent domain, condemnation
or otherwise, or pursuant to a sale of any such assets to a purchaser with such
power under threat of such a taking, in each
16
case net of any actual and reasonable documented costs incurred by any or all of
Borrower and its Subsidiaries in connection with the adjustment or settlement of
any claims of Borrower or such Subsidiary in respect thereof.
"NET SECURITIES PROCEEDS" means the Cash proceeds (net of
underwriting discounts and commissions and other reasonable costs and expenses
associated therewith, including reasonable legal fees and expenses) from the (i)
issuance of Capital Stock of or incurrence of Indebtedness by any or all of
Borrower and its Subsidiaries and (ii) capital contributions made by a holder of
Capital Stock of Borrower.
"NON-US LENDER" means a Lender that is not a "United States
Person" as such term is defined in Section 7701(a)(30) of the Internal Revenue
Code.
"NOTES" means, as the context may require, one or more of the
Delayed Draw Term Notes, Revolving Notes or any combination thereof.
"NOTICE OF BORROWING" means a notice substantially in the form of
EXHIBIT I annexed hereto.
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially
in the form of EXHIBIT II annexed hereto.
"NOTICE OF ISSUANCE OF LETTER OF CREDIT" means a notice
substantially in the form of EXHIBIT XIII annexed hereto delivered by Borrower
to Administrative Agent pursuant to subsection 3.1B(i) with respect to the
proposed issuance of a Letter of Credit.
"OBLIGATIONS" means all obligations of every nature of each
Credit Party from time to time owed to Administrative Agent, Lenders or any of
them (or any Person party to Interest Rate Agreements with any Credit Party and
at the time of entry into such agreements such Person is a Lender or an
Affiliate of a Lender) (a) under the Credit Documents, whether for principal,
interest, reimbursement of amounts drawn under Letters of Credit, fees,
expenses, indemnification or otherwise and (b) under any Hedging Agreements
(which such Hedging Agreements are permitted hereunder) (all such obligations
with respect to any such Hedging Agreements, "HEDGING OBLIGATIONS").
"OFFICER" means the president, chief executive officer, a vice
president, chief financial officer, treasurer, general partner (if an
individual), managing member (if an individual) or other individual appointed by
the Governing Body or the Organizational Documents of a corporation,
partnership, trust or limited liability company to serve in a similar capacity
as the foregoing.
"OFFICER'S CERTIFICATE," as applied to any Person that is a
corporation, partnership, trust or limited liability company, means a
certificate executed on behalf of such Person by one or more Officers of such
Person or one or more Officers of a general partner or a managing member if such
general partner or managing member is a corporation, partnership, trust or
limited liability company.
"OPERATING LEASE," as applied to any Person, means any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) that is not a Capital Lease other
than any such lease under which that Person is the lessor.
"ORGANIZATIONAL DOCUMENTS" means the documents pursuant to which
a Person that is a corporation, partnership, trust or limited liability company
is organized, including, as applicable,
17
certificates or articles of organization, formation or incorporation, bylaws,
limited liability company or operating agreements, partnership agreements, or
trust agreements.
"OTHER CAPITAL EXPENDITURES" means, for Borrower and its
Subsidiaries, for any period, the sum of the aggregate of all expenditures
(whether paid in cash or other consideration or accrued as a liability and
including that portion of Capital Leases which is capitalized on the
consolidated balance sheet of Borrower and its Subsidiaries) by Borrower and its
Subsidiaries during that period that, in conformity with GAAP, are included in
"additions to property, plant or equipment" or comparable items reflected in the
consolidated statement of cash flows of Borrower and its Subsidiaries or are
otherwise treated as capital expenditures in accordance with GAAP (but
excluding, in the aggregate and for all periods, all such expenditures made from
the proceeds of insurance condemnation awards, the issuance of equity or the
receipt of a capital contribution, and Web Development and Database
Expenditures). For purposes of this definition, the purchase price of equipment
that is purchased simultaneously with the trade-in of existing equipment or with
insurance proceeds shall be included in Other Capital Expenditures only to the
extent of the gross amount of such purchase price less the credit granted by the
seller of such equipment for the equipment being traded in at such time or the
amount of such proceeds, as the case may be.
"PARTICIPANT" means a purchaser of a participation in the rights
and obligations under this Agreement pursuant to subsection 10.1C.
"PATRIOT ACT" means the USA PATRIOT ACT (Title III of Pub. L.
107-56 (signed into law October 26, 2001)), as amended and supplemented from
time to time.
"PATRIOT ACT DISCLOSURES" means all documentation and other
information which the Administrative Agent or any Lender reasonably requests in
order to comply with its ongoing obligations under applicable "know your
customer" and anti-money laundering rules and regulations, including the PATRIOT
Act.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, that is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"PERMITTED ACQUISITION" has the meaning set forth in subsection
7.7(iv).
"PERMITTED ENCUMBRANCES" means the following types of Liens
(excluding any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or by ERISA, any such Lien relating to or imposed in
connection with any Environmental Claim, and any such Lien expressly prohibited
by any applicable terms of any of the Collateral Documents):
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not, at the time, required by
subsection 6.3;
(ii) statutory Liens of landlords, Liens of collecting banks
under applicable law on items in the course of collection, statutory
Liens and rights of set-off of banks, statutory Liens of carriers,
warehousemen, mechanics, repairmen, workmen and materialmen, and other
Liens imposed by law, in each case incurred in the ordinary course of
business (a) for amounts not yet overdue or (b) for amounts that are
overdue and that (in the case of any such amounts overdue for a period
in excess of thirty (30) days) are being contested in good faith by
appropriate proceedings, so long as (1) such reserves or other
appropriate provisions, if any, as shall be
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required by GAAP shall have been made for any such contested amounts,
and (2) in the case of a Lien with respect to any portion of the
Collateral, such contest proceedings conclusively operate to stay the
sale of any portion of the Collateral on account of such Lien;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of statutory obligations, bids, leases, government
contracts, trade contracts and other similar obligations (exclusive of
obligations for the payment of borrowed money), so long as no
foreclosure, sale or similar proceedings have been commenced with
respect to any portion of the Collateral on account thereof;
(iv) any attachment or judgment Lien not constituting an Event of
Default under subsection 8.8;
(v) leases or subleases granted to third parties in accordance
with any applicable terms of the Collateral Documents and not
interfering in any material respect with the ordinary conduct of the
business of any or all of Borrower and its Subsidiaries or resulting
in a material diminution in the value of any Collateral as security
for the Obligations;
(vi) easements, rights-of-way, restrictions, encroachments, and
other minor defects or irregularities in title, in each case that do
not and will not interfere in any material respect with the ordinary
conduct of the business of any or all of Borrower and its Subsidiaries
or result in a material diminution in the value of any Collateral as
security for the Obligations;
(vii) any (a) interest or title of a lessor or sublessor under
any lease not prohibited by this Agreement, (b) Lien or restriction
that the interest or title of such lessor or sublessor may be subject
to, or (c) subordination of the interest of the lessee or sublessee
under such lease to any Lien or restriction referred to in the
preceding clause (b), so long as the holder of such Lien or
restriction agrees to recognize the rights of such lessee or sublessee
under such lease;
(viii) Liens arising from filing UCC financing statements
relating solely to leases not prohibited by this Agreement;
(ix) Liens in favor of customs and revenue authorities arising as
a matter of law to secure payment of customs duties in connection with
the importation of goods;
(x) any zoning or similar law or right reserved to or vested in
any governmental office or agency to control or regulate the use of
any real property;
(xi) Liens granted pursuant to the Collateral Documents;
(xii) Liens securing obligations (other than obligations
representing Indebtedness for borrowed money) under operating,
reciprocal easement or similar agreements entered into in the ordinary
course of business of any or all of Borrower and its Subsidiaries;
(xiii) Liens granted as security for surety or appeal bonds in
connection with obtaining such bonds in the ordinary course of
business; and
(xiv) licenses of patents, trademarks and other intellectual
property rights granted by Borrower or any of its Subsidiaries in the
ordinary course of business and not interfering in any material
respect with the ordinary conduct of the business of Borrower or such
Subsidiary.
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"PERMITTED PRODUCT DEVELOPMENT" means the development by Borrower
and its Subsidiaries of products that may enhance or complement existing
products of Borrower and its Subsidiaries. Any such products shall be (i)
directly or indirectly related to: the gathering of real estate information; the
valuation of real estate; the assessment of real estate loan or portfolio risk;
or the information contained in the database of Borrower and its Subsidiaries
that can be used to generate additional sales to existing or new customers; or
(ii) related to operating companies which have a real estate related component,
including, but not limited to, hotels, retirement homes, or assisted living
developments.
"PERMITTED TAX DISTRIBUTIONS" means aggregate cash distributions
by Borrower to WRP, in amounts not exceeding the amount of income taxes deemed
payable by WRP to pay that portion of its estimated and final federal, state and
local income tax liabilities attributable to the net income of Borrower and its
Subsidiaries (taking into account any losses of such Subsidiaries or Borrower,
as applicable, from prior periods which, for income Tax purposes and under
applicable income Tax laws, are permitted to be applied by WRP to offset income
attributable to such Subsidiaries or Borrower, in the current period). Such
distributions to be made not more frequently than quarterly with respect to each
period for which an installment of estimated tax would be required to be paid by
WRP (and then, not more than fifteen (15) days prior to the due date of the
taxes which are the subject of such distribution), except that an additional
final distribution may be made after the final taxable income of such
Subsidiaries or Borrower, as applicable, for any Fiscal Year has been
determined; provided, that the maximum aggregate amount of Permitted Tax
Distributions for any such period shall not exceed the product of (a) the
taxable income of WRP attributable to the net income of the Borrower and its
Subsidiaries (taking into account any losses of such Subsidiaries or Borrower,
as applicable, from prior periods which, for income Tax purposes and under
applicable income Tax laws, are permitted to be applied by WRP to offset income
in the current period) for such period allocated to WRP, multiplied by (b) the
highest marginal federal, state and local tax rates applicable to WRP.
"PERSON" means and includes natural persons, corporations,
limited partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"PLEDGE AGREEMENT" means the Pledge Agreement executed and
delivered on the Merger Transaction Funding Date by WRP (or a wholly-owned
Subsidiary), or by all of the equity owners of Borrower if the Merger
Transaction is not consummated by the Merger Transaction Termination Date,
substantially in the form of EXHIBIT X annexed hereto, as such Pledge Agreement
may thereafter be amended, restated, supplemented or otherwise modified from
time to time.
"PLEDGED COLLATERAL" means, collectively, the "Pledged
Collateral" as defined in the Security Agreement and Pledge Agreement.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that,
after notice or lapse of time or both, would constitute an Event of Default.
"PRIME RATE" means the rate that Bank of Montreal announces from
time to time as its prime lending rate, as in effect from time to time. The
Prime Rate is a reference rate and does not necessarily represent the lowest or
best rate actually charged to any customer. Bank of Montreal or any other Lender
may make commercial loans or other loans at rates of interest at, above or below
the Prime Rate.
20
"PROCEEDINGS" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration.
"PROPOSED INSURANCE REINVESTMENT PROCEEDS" has the meaning
assigned to such term in subsection 6.4C(ii).
"PRO RATA SHARE" means (i) with respect to all payments,
computations and other matters relating to the Delayed Draw Term Loan Commitment
or the Term Loan of any Lender, the percentage obtained by dividing (x) the
Delayed Draw Term Loan Exposure of that Lender by (y) the aggregate Delayed Draw
Term Loan Exposure of all Lenders, (ii) with respect to all payments,
computations and other matters relating to the Revolving Loan Commitment or the
Revolving Loans of any Lender or any Letters of Credit issued or participations
therein deemed purchased by any Lender, the percentage obtained by dividing (x)
the Revolving Loan Exposure of that Lender by (y) the aggregate Revolving Loan
Exposure of all Lenders, and (iii) for all other purposes with respect to each
Lender, the percentage obtained by dividing (x) the sum of the Delayed Draw Term
Loan Exposure of that Lender plus the Revolving Loan Exposure of that Lender by
(y) the sum of the aggregate Delayed Draw Term Loan Exposure of all Lenders plus
the aggregate Revolving Loan Exposure of all Lenders, in any such case as the
applicable percentage may be adjusted by assignments permitted pursuant to
subsection 10.1. The initial Pro Rata Share of each Lender for purposes of each
of clauses (i), (ii) and (iii) of the preceding sentence is set forth opposite
the name of that Lender in SCHEDULE 2.1 annexed hereto.
"PTO" means the United States Patent and Trademark Office or any
successor or substitute office in which filings are necessary or, in the opinion
of Administrative Agent, desirable in order to create or perfect Liens on any IP
Collateral.
"REAL ESTATE MARKET INFORMATION ASSETS" means information
products and/or assets covering multifamily commercial and other real estate
market information and any related market research, information and publishing
assets in the United States of America, including, without limitation,
proprietary databases, websites and online and print subscription services.
"REAL PROPERTY ASSET" means, at any time of determination, any
interest then owned or held by any Credit Party in any real property.
"RECORDED LEASEHOLD INTEREST" means a Leasehold Property with
respect to which a Record Document (as hereinafter defined) has been recorded in
all places necessary or desirable, in Administrative Agent's reasonable
judgment, to give constructive notice of such Leasehold Property to third-party
purchasers and encumbrancers of the affected real property. For purposes of this
definition, the term "RECORD DOCUMENT" means, with respect to any Leasehold
Property, (a) the lease evidencing such Leasehold Property or a memorandum
thereof, executed and acknowledged by the owner of the affected real property,
as lessor, or (b) if such Leasehold Property was acquired or subleased from the
holder of a Recorded Leasehold Interest, the applicable assignment or sublease
document, executed and acknowledged by such holder, in each case in form
sufficient to give such constructive notice upon recordation and otherwise in
form reasonably satisfactory to Administrative Agent.
"REGISTER" has the meaning assigned to that term in subsection
2.1D.
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"REIMBURSEMENT DATE" has the meaning assigned to that term in
subsection 3.3B.
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"RELATED AGREEMENTS" means, collectively, the Merger Documents,
the Management Agreement and the Management Employment Agreements.
"RELEASE" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Materials into the indoor or outdoor
environment (including the abandonment or disposal of any barrels, containers or
other closed receptacles containing any Hazardous Materials), including the
movement of any Hazardous Materials through the air, soil, surface water or
groundwater.
"REQUISITE LENDERS" means Lenders having or holding more than
sixty-six and two-thirds percent (66 2/3%) of the sum of the aggregate Delayed
Draw Term Loan Exposure of all Lenders plus the aggregate Revolving Loan
Exposure of all Lenders.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any Capital Stock of any of
Borrower or its Subsidiaries now or hereafter outstanding, except a dividend or
distribution payable by a Subsidiary to the Borrower or another Subsidiary, or a
dividend or distribution payable solely in shares of that class of Capital Stock
to the holders of that class, (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect, of
any shares of any class of Capital Stock of any of Borrower or its Subsidiaries
now or hereafter outstanding, (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of Capital Stock of any of Borrower or its Subsidiaries now
or hereafter outstanding, (iv) any payment or prepayment of principal of,
premium, if any, or interest on, or redemption, purchase, retirement, defeasance
(including in-substance or legal defeasance), sinking fund or similar payment
with respect to, any Subordinated Indebtedness, and (v) any payment of
Management Fees.
"REVOLVING LENDER" means a Lender that has a Revolving Loan
Commitment and/or that has an outstanding Revolving Loan.
"REVOLVING LOAN COMMITMENT" means the commitment of a Revolving
Lender to make Revolving Loans to Borrower pursuant to subsection 2.1A(ii), and
"REVOLVING LOAN COMMITMENTS" means such commitments of all Revolving Lenders in
the aggregate.
"REVOLVING LOAN EXPOSURE" means, with respect to any Revolving
Lender as of any date of determination (i) prior to the termination of the
Revolving Loan Commitments, that Lender's Revolving Loan Commitment and (ii)
after the termination of the Revolving Loan Commitments, the sum of (a) the
aggregate outstanding principal amount of the Revolving Loans of that Lender
plus (b) in the event that Lender is an Issuing Lender, the aggregate Letter of
Credit Usage in respect of all Letters of Credit issued by that Lender (in each
case net of any participations by other Lenders in such Letters of Credit or any
unreimbursed drawings thereunder) plus (c) the aggregate amount of all
participations purchased by that Lender in any outstanding Letters of Credit or
any unreimbursed drawings under any Letters of Credit.
"REVOLVING LOANS" means the Loans made by Revolving Lenders to
Borrower pursuant to subsection 2.1A(ii).
"REVOLVING NOTE" means a promissory note of Borrower payable to
any Revolving Lender, in the form of EXHIBIT IV annexed hereto (as such
promissory note may be amended, restated, supplemented, endorsed or otherwise
modified from time to time), evidencing the aggregate Indebtedness of Borrower
to such Revolving Lender resulting from outstanding Revolving Loans, and also
means all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
22
"SECURITIES" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated, certificated or uncertificated, or otherwise, or in general any
instruments commonly known as "securities" or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"SECURITY AGREEMENT" means the Security Agreement executed and
delivered on the Closing Date, substantially in the form of EXHIBIT VIII annexed
hereto, as such Security Agreement may thereafter be amended, restated,
supplemented or otherwise modified from time to time.
"SOLVENT," with respect to any Person, means that as of the date
of determination both (i)(a) the then fair saleable value of the property of
such Person is (1) greater than the total amount of liabilities (including
contingent liabilities) of such Person and (2) not less than the amount that
will be required to pay the probable liabilities on such Person's then existing
debts as they become absolute and due considering all financing alternatives and
potential asset sales reasonably available to such Person; (b) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (c) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (ii) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"STANDBY LETTER OF CREDIT" means any standby letter of credit or
similar instrument issued for the purpose of supporting (i) Indebtedness of any
or all of Borrower and their Subsidiaries in respect of industrial revenue or
development bonds or financings, (ii) workers' compensation liabilities of any
or all of Borrower and their Subsidiaries, (iii) the obligations of third party
insurers of any or all of Borrower and their Subsidiaries arising by virtue of
the laws of any jurisdiction requiring third party insurers, (iv) obligations
with respect to Capital Leases or Operating Leases of any or all of Borrower and
their Subsidiaries, (v) performance, payment, deposit or surety obligations of
any or all of Borrower and their Subsidiaries, in any case if required by law or
governmental rule or regulation or in accordance with custom and practice in the
industry, and (vi) xxxxxxx money escrow deposits in connection with Permitted
Acquisitions.
"SUBORDINATED INDEBTEDNESS" means any Indebtedness of any or all
of Borrower or its Subsidiaries incurred from time to time and subordinated in
right of payment to the Obligations including pursuant to documentation
containing maturities, amortization schedules, covenants, defaults, remedies,
subordination provisions and other material terms in form and substance
satisfactory to Administrative Agent and Requisite Lenders.
"SUBSIDIARY," with respect to any Person, means any corporation,
partnership, trust, limited liability company, association, Joint Venture or
other business entity of which more than fifty percent (50%) of the total voting
power of shares of stock or other ownership interests entitled (without regard
to the occurrence of any contingency) to vote in the election of the members of
the Governing Body is at the time owned or controlled, directly or indirectly,
by that Person or one or more of the other Subsidiaries of that Person or a
combination thereof.
23
"SUBSIDIARY GUARANTOR" means any Subsidiary of Borrower that
executes and delivers a Subsidiary Guaranty from time to time after the Closing
Date pursuant to subsection 6.8.
"SUBSIDIARY GUARANTY" means the Subsidiary Guaranty to be
executed and delivered by additional Subsidiaries of Borrower from time to time
after the Closing Date in accordance with subsection 6.8, substantially in the
form of EXHIBIT IX annexed hereto, as such Subsidiary Guaranty may hereafter be
amended, restated, supplemented or otherwise modified from time to time.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning assigned to that
term in subsection 9.1B.
"TAX" or "TAXES" means any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature and whatever called,
by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld
or assessed, including interest, penalties, additions to tax and any similar
liabilities with respect thereto; except that, in the case of a Lender or
Administrative Agent, there shall be excluded (i) taxes that are imposed on the
overall net income or net profits (including franchise taxes imposed in lieu
thereof) (a) by the United States, (b) by any other Government Authority under
the laws of which such Lender or Administrative Agent is organized or has its
principal office or maintains its applicable lending office, or (c) by any
jurisdiction solely as a result of a present or former connection between such
Lender or Administrative Agent and such jurisdiction (other than any such
connection arising solely from such Lender or Administrative Agent having
executed, delivered or performed its obligations or received a payment under, or
enforced, any of the Credit Documents), and (ii) any branch profits taxes
imposed by the United States or any similar tax imposed by any other
jurisdiction in which such Lender or Administrative Agent is located.
"TITLE COMPANY" means one or more title insurance companies
selected by the Borrower and reasonably satisfactory to Administrative Agent.
"TOTAL DEBT" means, for Borrower and its Subsidiaries, as at any
date of determination, the sum without duplication of (i) the aggregate stated
balance sheet amount of all Indebtedness of Borrower and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP, (ii) the Letter of
Credit Usage, and (iii) obligations under non-compete, consulting agreements, or
other similar agreements or arrangements entered into in connection with
acquisitions (to the extent entered in connection with an acquisition and
representing or in the nature of deferred purchase price).
"TOTAL LEVERAGE RATIO" means, for Borrower and its Subsidiaries,
as at any date of determination, the ratio of (i) Total Debt as at such date to
(ii) EBITDA for the immediately preceding four Fiscal Quarter period most
recently ended on or prior to such date, as adjusted in accordance with
subsection 7.6D.
"TOTAL UTILIZATION OF REVOLVING LOAN COMMITMENTS" means, as of
any date of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans (other than Revolving Loans made for the purpose of
reimbursing the applicable Issuing Lender for any amount drawn under any Letter
of Credit but not yet so applied) plus (ii) the Letter of Credit Usage.
"TRANSACTION COSTS" means the fees, costs and expenses payable by
Borrower on or before the Closing Date in connection with the transactions
contemplated by the Credit Documents.
"UCC" means the Uniform Commercial Code as in effect in any
applicable jurisdiction.
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"UNDRAWN DELAYED DRAW TERM LOAN COMMITMENT" means the difference
of Twenty Million Dollars ($20,000,000) minus the aggregate principal amount of
Delayed Draw Term Loans made on or prior to the Delayed DRAW Term Loan Drawdown
Termination Date.
"US LENDER" means a Lender that is a "United States Person" as
such term is defined in Section 7701(a)(30) of the Internal Revenue Code.
"WEB DEVELOPMENT AND DATABASE EXPENDITURES" means, for Borrower
and its Subsidiaries, for any period, the sum of the aggregate of all
expenditures (whether paid in cash or other consideration or accrued as a
liability) by Borrower and its Subsidiaries during that period for web
development and/or database costs, fees and expenses, irrespective of whether
such expenditures are capitalized or expensed.
"WRP" means Wellsford Real Properties, Inc., a Maryland
corporation, whose name shall be changed to Xxxx, Inc. upon or following the
consummation of the Merger Transaction.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF
CALCULATIONS UNDER AGREEMENT.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Borrower to Lenders pursuant to subsections 6.1(ii),
6.1(iii) and 6.1(xiii) shall be prepared in accordance with GAAP as in effect at
the time of such preparation (and delivered together with the reconciliation
statements provided for in subsection 6.1(vi)). Calculations in connection with
the definitions, covenants and other provisions of this Agreement shall utilize
GAAP as in effect on the date of determination, applied in a manner consistent
with that used in preparing the financial statements referred to in subsection
5.3. If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Credit Document, and Borrower,
Administrative Agent or Requisite Lenders shall so request, Administrative
Agent, Lenders and Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of Requisite Lenders), provided that, until so
amended, such ratio or requirement shall continue to be computed in accordance
with GAAP prior to such change therein and Borrower shall provide to
Administrative Agent and Lenders reconciliation statements provided for in
subsection 6.1(vi).
1.3 OTHER DEFINITIONAL PROVISIONS AND RULES OF CONSTRUCTION.
A. Any of the terms defined herein may, unless the context
otherwise specifically requires, be used in the singular or the plural,
depending on the reference.
B. References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Agreement unless otherwise
specifically provided. Section and subsection headings in this Agreement
are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given any
substantive effect.
C. The use in any of the Credit Documents of the word
"include" or "including," when following any general statement, term or
matter, shall not be construed to limit such statement, term or matter to
the specific items or matters set forth immediately following such word or
to similar items or matters, whether or not nonlimiting language (such as
"without limitation" or "but not limited to" or words of similar import) is
used with reference thereto, but rather shall be deemed
25
to refer to all other items or matters that fall within the broadest
possible scope of such general statement, term or matter.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; MAKING OF LOANS; THE REGISTER; NOTES.
A. COMMITMENTS. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of
Borrower herein set forth, each Lender hereby severally agrees to make the
Loans as described in subsections 2.1A(i) and 2.1A(ii).
(i) Delayed Draw Term Loans. Each Lender that has a Delayed Draw Term
Loan Commitment severally agrees to lend to Borrower on or before the
Delayed Draw Term Loan Drawdown Termination Date, an amount not exceeding
its Pro Rata Share of the aggregate amount of the Delayed Draw Term Loan
Commitments to be used for the purposes identified in subsection 2.5A. The
amount of each Lender's Delayed Draw Term Loan Commitment is set forth
opposite its name on SCHEDULE 2.1 annexed hereto, and the aggregate amount
of the Delayed Draw Term Loan Commitments is Twenty Million Dollars
($20,000,000) (the "MAXIMUM AGGREGATE DELAYED DRAW TERM LOAN COMMITMENT");
provided that the Delayed Draw Term Loan Commitments of Lenders at any
given time shall be equal to the Maximum Aggregate Delayed Draw Term Loan
Commitment reduced by the amount of voluntary reductions of the Delayed
Draw Term Loan Commitment and the amount of the drawn Delayed Draw Term
Loan Commitment, if any, and each Lender's Delayed Draw Term Loan
Commitment shall be correspondingly reduced by its Pro Rata Share of the
drawn Delayed Draw Term Loan Commitment amount; and provided further that
the Delayed Draw Term Loan Commitments of Lenders shall be adjusted to give
effect to any assignments of the Delayed Draw Term Loan Commitments
pursuant to subsection 10.1B. Each Lender's Delayed Draw Term Loan
Commitment shall expire immediately and without further action at the close
of business on the Delayed Draw Term Loan Drawdown Termination Date. Prior
to the Merger Transaction Termination Date, Borrower shall not be permitted
to borrow the Delayed Draw Term Loans except in full on the Merger
Transaction Funding Date to partially finance the "Cash Consideration" (as
defined and used in the Merger Agreement) for the Merger Transaction. On
and after the Merger Transaction Termination Date until the Delayed Draw
Term Loan Drawdown Termination Date, subject to the terms and conditions
herein, Borrower may borrow Delayed Draw Term Loans in connection with any
Permitted Acquisitions, related transaction costs, Permitted Product
Development and for general corporate purposes. Amounts borrowed under this
subsection 2.1A(i) and subsequently repaid or prepaid may not be
reborrowed.
(ii) Revolving Loans. Each Revolving Lender severally agrees, subject
to the limitations set forth below with respect to the maximum amount of
Revolving Loans permitted to be outstanding from time to time, to lend to
Borrower from time to time during the period from the Closing Date to but
excluding the Final Maturity Date, an aggregate amount not exceeding its
Pro Rata Share of the aggregate amount of the Revolving Loan Commitments to
be used for the purposes identified in subsection 2.5B; provided, however,
prior to the Merger Transaction Termination Date, Five Million Dollars
($5,000,000) of the Revolving Loan Commitments shall be reserved to
partially finance the "Cash Consideration" (as defined and used in the
Merger Agreement) for the Merger Transaction on the Merger Transaction
Funding Date, and the remaining Two Million Dollars ($2,000,000) of the
Revolving Loan Commitments shall be used for general corporate purposes. On
and after the Merger Transaction Termination Date and prior to the Final
Maturity Date, subject to the terms and conditions herein, Borrower may
borrow Revolving Loans in connection with any Permitted Acquisitions,
related transaction costs,
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Permitted Product Development and for general corporate purposes. The
original amount of each Revolving Lender's Revolving Loan Commitment is set
forth opposite its name on SCHEDULE 2.1 annexed hereto and the aggregate
original amount of the Revolving Loan Commitments is Seven Million Dollars
($7,000,000); provided that the Revolving Loan Commitments of Revolving
Lenders shall be adjusted to give effect to any assignments of the
Revolving Loan Commitments pursuant to subsection 10.1B and shall be
reduced from time to time by the amount of any reductions thereto made
pursuant to subsection 2.4. Each Revolving Lender's Revolving Loan
Commitment shall expire on the Final Maturity Date and all Revolving Loans
and all other amounts owed hereunder with respect to the Revolving Loans
and the Revolving Loan Commitments shall be paid in full no later than that
date. Subject to reduction of the Revolving Loan Commitments pursuant to
subsection 2.4, amounts borrowed under this subsection 2.1A(ii) may be
repaid and reborrowed up to but excluding the Final Maturity Date.
Anything contained in this Agreement to the contrary notwithstanding,
the Revolving Loans and the Revolving Loan Commitments shall be subject to
the limitation that in no event shall the Total Utilization of Revolving
Loan Commitments at any time exceed the Revolving Loan Commitments then in
effect.
B. BORROWING MECHANICS. Delayed Draw Term Loans or Revolving
Loans made on any Funding Date (other than Revolving Loans made pursuant to
subsection 3.3B) shall be in an aggregate minimum amount of One Hundred
Thousand Dollars ($100,000) and multiples of One Hundred Thousand Dollars
($100,000) in excess of that amount. Whenever Borrower desires that Lenders
make Delayed Draw Term Loans or Revolving Loans, it shall deliver to
Administrative Agent a duly executed Notice of Borrowing no later than
12:00 Noon (New York, New York time) at least three (3) Business Days in
advance of the proposed Funding Date (in the case of a LIBOR Rate Loan) or
no later than 12:00 Noon (New York, New York time) on the proposed Funding
Date (in the case of a Base Rate Loan). Delayed Draw Term Loans and
Revolving Loans may be continued as or converted into Base Rate Loans and
LIBOR Rate Loans in the manner provided in subsection 2.2D. In lieu of
delivering a Notice of Borrowing, Borrower may give Administrative Agent
telephonic notice by the required time of any proposed borrowing under this
subsection 2.1B; provided that such notice shall be promptly confirmed in
writing by delivery of a duly executed Notice of Borrowing to
Administrative Agent on or before the applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur any liability
to Borrower in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by an
Officer or other person authorized to borrow on behalf of Borrower or for
otherwise acting in good faith under this subsection 2.1B or under
subsection 2.2D, and upon funding of Loans by Lenders, and upon conversion
or continuation of the applicable basis for determining the interest rate
with respect to any Loans pursuant to subsection 2.2D, in each case in
accordance with this Agreement, pursuant to any such telephonic notice
Borrower shall have effected Loans or a conversion or continuation, as the
case may be, hereunder.
Borrower shall notify Administrative Agent prior to the funding of any
Loans in the event that any of the matters to which Borrower is required to
certify in the applicable Notice of Borrowing is no longer true and correct
as of the applicable Funding Date, and the acceptance by Borrower of the
proceeds of any Loans shall constitute a re-certification by Borrower, as
of the applicable Funding Date, as to the matters to which Borrower is
required to certify in the applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a
Notice of Borrowing for, or a Notice of Conversion/Continuation for
conversion to, or continuation of, a LIBOR Rate
27
Loan (or telephonic notice in lieu thereof) shall be irrevocable on and
after the related Interest Rate Determination Date; provided that Borrower
may revoke such Notice of Borrowing or Notice of Conversion/Continuation if
Borrower pays all fees required by subsection 2.6D.
C. DISBURSEMENT OF FUNDS. All Delayed Draw Term Loans and
Revolving Loans shall be made by Lenders simultaneously and proportionately
to their respective Pro Rata Shares, it being understood that neither
Administrative Agent nor any Lender shall be responsible for any default by
any other Lender in that other Lender's obligation to make a Loan requested
hereunder nor shall the Commitment of any Lender to make the particular
type of Loan requested be increased or decreased as a result of a default
by any other Lender in that other Lender's obligation to make a Loan
requested hereunder. Promptly after receipt by Administrative Agent of a
Notice of Borrowing pursuant to subsection 2.1B (or telephonic notice in
lieu thereof), Administrative Agent shall notify each Lender for that type
of Loan of the proposed borrowing. Each such Lender shall make the amount
of its Loan available to Administrative Agent not later than 12:00 Noon
(New York, New York time) on the applicable Funding Date in same day funds
in Dollars, at the Funding and Payment Office. Except as provided in
subsection 3.3B with respect to Revolving Loans used to reimburse any
Issuing Lender for the amount of a drawing under a Letter of Credit issued
by it, upon satisfaction or waiver of the conditions precedent specified in
subsection 4.2 (in the case of Loans made on the Merger Transaction Funding
Date) and subsection 4.4 (in the case of all Loans), Administrative Agent
shall make the proceeds of such Loans available to Borrower on the
applicable Funding Date by causing an amount of same day funds in Dollars
equal to the proceeds of all such Loans received by Administrative Agent
from Lenders to be credited to the account of Borrower at the Funding and
Payment Office.
Unless Administrative Agent shall have been notified by any Lender
prior to a Funding Date for any Loans that such Lender does not intend to
make available to Administrative Agent the amount of such Lender's Loan
requested on such Funding Date, Administrative Agent may assume that such
Lender has made such amount available to Administrative Agent on such
Funding Date and Administrative Agent may, in its sole discretion, but
shall not be obligated to, make available to Borrower a corresponding
amount on such Funding Date. If such corresponding amount is not in fact
made available to Administrative Agent by such Lender, Administrative Agent
shall be entitled to recover such corresponding amount on demand from such
Lender together with interest thereon, for each day from such Funding Date
until the date such amount is paid to Administrative Agent, at the
customary rate set by Administrative Agent for the correction of errors
among banks for three (3) Business Days and thereafter at the Base Rate. If
such Lender does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent shall promptly
notify Borrower and Borrower shall immediately pay such corresponding
amount to Administrative Agent together with interest thereon, for each day
from such Funding Date until the date such amount is paid to Administrative
Agent, at the rate payable under this Agreement for Base Rate Loans.
Nothing in this subsection 2.1C shall be deemed to relieve any Lender from
its obligation to fulfill its Commitments hereunder or to prejudice any
rights that Borrower may have against any Lender as a result of any default
by such Lender hereunder.
D. THE REGISTER. Administrative Agent, acting for these purposes
solely as an agent of Borrower (it being acknowledged that Administrative
Agent, in such capacity, and its officers, directors, employees, agent and
affiliates shall constitute Indemnitees under subsection 10.3), shall
maintain at its address referred to in subsection 10.8 a register for the
recordation of, and shall record, the names and addresses of Lenders and
the Delayed Draw Term Loan Commitment, Revolving Loan Commitment, Delayed
Draw Term Loans and Revolving Loans of each Lender from time to time, all
Letters of Credit, all participations in Loans or Letters of Credit, the
amount of the reimbursement obligations of Borrower for each drawing made
under a
28
Letter of Credit, all payments made by Borrower and all other debits and
credits as provided in this Agreement with respect to Loans or any other
Obligations (the "REGISTER"). Borrower, Administrative Agent and Lenders
shall deem and treat the Persons listed as Lenders in the Register as the
holders and owners of the corresponding Commitments and Loans listed
therein for all purposes hereof; all amounts owed with respect to any
Commitment or Loan shall be owed to the Lender listed in the Register as
the owner thereof; and any request, authority or consent of any Person who,
at the time of making such request or giving such authority or consent, is
listed in the Register as a Lender shall be conclusive and binding on any
subsequent holder, assignee or transferee of the corresponding Commitments
or Loans. The Register shall be available for inspection by Borrower at any
reasonable time and from time to time upon reasonable prior notice. Each
Lender shall also record on its internal records the amount of its Loans
and Commitments and each payment in respect thereof, and any such
recordation shall be conclusive and binding on Borrower, absent manifest
error, subject to the entries in the Register, which shall, absent manifest
error, govern in the event of any inconsistency with any Lender's records.
Failure to make any recordation in the Register or in any Lender's records,
or any error in such recordation, shall not affect any Loans or Commitments
or any Obligations in respect of any Loans.
E. NOTES. Borrower agrees that, upon the request to the
Administrative Agent by any Lender, Borrower will execute and deliver to
such Lender a Note evidencing the Loans made by, and payable to the order
of, such Lender in a maximum principal amount equal to such Lender's
percentage of the original applicable Commitments. Borrower hereby
irrevocably authorizes each Lender to make (or cause to be made)
appropriate notations on the grid attached to such Lender's Note (or on any
continuation of such grid), which notations, if made, shall evidence, inter
alia, the date of, the outstanding principal amount of, and the interest
rate and Interest Period applicable to the Loans evidenced thereby. Such
notations shall, to the extent not inconsistent with notations made by the
Administrative Agent in the Register, be conclusive and binding on Borrower
absent manifest error; provided that, the failure of any Lender to make any
such notations shall not limit or otherwise affect any Obligations of
Borrower.
2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of subsections 2.6
and 2.7, each Delayed Draw Term Loan and each Revolving Loan shall bear
interest on the unpaid principal amount thereof from the date made through
maturity (whether by acceleration or otherwise) at a rate determined by
reference to the Base Rate or the LIBOR Rate. The applicable basis for
determining the rate of interest with respect to any Delayed Draw Term Loan
or any Revolving Loan shall be selected by Borrower initially at the time a
Notice of Borrowing is given with respect to such Loan pursuant to
subsection 2.1B, and the basis for determining the interest rate with
respect to any Delayed Draw Term Loan or any Revolving Loan may be changed
from time to time pursuant to subsection 2.2D. If on any day a Delayed Draw
Term Loan or Revolving Loan is requested with respect to which notice has
not been delivered to Administrative Agent in accordance with the terms of
this Agreement specifying the applicable basis for determining the rate of
interest, then for that day that Loan shall bear interest determined by
reference to the Base Rate.
Subject to the provisions of subsections 2.2E, 2.2G and 2.7, the Loans
shall bear interest through maturity as follows:
(i) if a Base Rate Loan, then at the sum of the Base Rate plus the
Applicable Margin per annum; or
29
(ii) if a LIBOR Rate Loan, then at the sum of the Adjusted LIBOR Rate
plus the Applicable Margin per annum.
With respect to Delayed Draw Term Loans and Revolving Loans, the
"Applicable Margin" for each Base Rate Loan and LIBOR Rate Loan shall be
the percentage set forth below for that type of Loan based upon the Total
Leverage Ratio as set forth and adjusted below:
APPLICABLE MARGIN
-----------------
BASE LIBOR
TOTAL RATE RATE
LEVERAGE RATIO LOAN LOAN
-------------- ---- -----
Greater than or equal to 4.50:1.00 2.00% 3.00%
Greater than or equal to 3.75:1.00 but less than 4.50:100 1.50% 2.50%
Greater than or equal to 2.75:1.00 but less than 3.75:1.00 1.00% 2.00%
Less than 2.75:1.00 0.50% 1.50%
On the Closing Date, the Applicable Margin for each Loan shall be
calculated based on financial results for the consecutive twelve (12) month
period ending as at June 30, 2006. If the Merger Transaction is
consummated, the Applicable Margin shall be recalculated as of the Merger
Transaction Funding Date based on the financial results of Borrower and its
Subsidiaries for the most recent trailing four (4) Fiscal Quarter period
for which quarterly financial statements are available, as demonstrated by
the Officer's Certificate delivered by Borrower to Administrative Agent on
the Merger Transaction Funding Date pursuant to subsection 4.3E.
Thereafter, the Applicable Margin for each Loan shall be adjusted, to the
extent required, on the date of delivery of each Compliance Certificate or
other Officer's Certificate delivered pursuant to subsection 6.1(v) or
7.7(iv), as applicable, or any reconciliation statements delivered pursuant
to subsection 6.1(vi)(b), demonstrating a change in the Total Leverage
Ratio requiring an adjustment to the Applicable Margin, such adjustment to
remain in effect until the next date of delivery of a Compliance
Certificate (and related financial information required at such time
pursuant to subsection 6.1 or 7.7(iv), as applicable) pursuant to
subsection 6.1(v) demonstrating a change in the Total Leverage Ratio
requiring an adjustment to the Applicable Margin; provided that, without
limiting the effects of any Event of Default or Potential Event of Default
that may result therefrom, if Borrower does not deliver any Compliance
Certificate required pursuant to subsection 6.1 or 7.7(iv), as applicable,
by the date specified therefor or if any Event of Default shall have
occurred and be continuing, then, upon the election of Requisite Lenders,
the Applicable Margin shall be the highest amount set forth in the table
above until such Event of Default is cured or waived or until the delivery
of such Compliance Certificate, as applicable.
B. INTEREST PERIODS. In connection with each LIBOR Rate Loan,
Borrower may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period
(each an "INTEREST PERIOD") to be applicable to such Loan, which Interest
Period shall be, at Borrower's option, either a one, two, three or six
month period (or such
30
other periods if available and agreed to by the Lenders for the type Loan
requested in their sole and absolute discretion); provided that:
(i) the initial Interest Period for any LIBOR Rate Loan shall commence
on the Funding Date in respect of such Loan, in the case of a Loan
initially made as a LIBOR Rate Loan, or on the date specified in the
applicable Notice of Conversion/Continuation, in the case of a Loan
converted to a LIBOR Rate Loan;
(ii) in the case of immediately successive Interest Periods applicable
to a LIBOR Rate Loan continued as such pursuant to a Notice of
Conversion/Continuation, each successive Interest Period shall commence on
the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided that, if any Interest Period would
otherwise expire on a day that 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;
(iv) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall,
subject to clause (v) of this subsection 2.2B, end on the last Business Day
of a calendar month;
(v) no Interest Period with respect to any portion of the Delayed Draw
Term Loans shall extend beyond the Final Maturity Date, and no Interest
Period with respect to any portion of the Revolving Loans shall extend
beyond the Final Maturity Date;
(vi) no Interest Period with respect to any Delayed Draw Term Loans
shall extend beyond a date on which Borrower is required to make a
scheduled payment of principal of such Delayed Draw Term Loans, unless the
sum of (a) the aggregate principal amount of such Delayed Draw Term Loans
that are Base Rate Loans plus (b) the aggregate principal amount of such
Delayed Draw Term Loans that are LIBOR Rate Loans with Interest Periods
expiring on or before such date equals or exceeds the principal amount
required to be paid on such Delayed Draw Term Loans on such date;
(vii) no Interest Period with respect to any portion of the Revolving
Loans shall extend beyond the date on which a permanent reduction of the
Revolving Loan Commitments is scheduled to occur unless the sum of (a) the
aggregate principal amount of such Revolving Loans that are Base Rate Loans
plus (b) the aggregate principal amount of such Revolving Loans that are
LIBOR Rate Loans with Interest Periods expiring on or before such date plus
(c) the excess of the Revolving Loan Commitments then in effect over the
aggregate principal amount of Revolving Loans then outstanding equals or
exceeds the permanent reduction of the Revolving Loan Commitments that is
scheduled to occur on such date;
(viii) there shall be no more than six (6) Interest Periods
outstanding at any time; and
(ix) in the event Borrower fails to specify an Interest Period for any
LIBOR Rate Loan in the applicable Notice of Borrowing or Notice of
Conversion/Continuation, Borrower shall be deemed to have selected an
Interest Period of one month.
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C. INTEREST PAYMENTS. Subject to the provisions of subsection
2.2E, interest on each Loan shall be payable in arrears on and to each
Interest Payment Date applicable to that Loan, upon any prepayment of that
Loan (to the extent accrued on the amount being prepaid) and at maturity
(including final maturity).
D. CONVERSION OR CONTINUATION. Subject to the provisions of
subsection 2.6, Borrower shall have the option (i) to convert at any time
all or any part of its outstanding Delayed Draw Term Loans or Revolving
Loans equal to One Hundred Thousand Dollars ($100,000) and multiples of One
Hundred Thousand Dollars ($100,000) in excess of that amount (or all such
outstanding Delayed Draw Term Loans or Revolving Loans) from Loans bearing
interest at a rate determined by reference to one basis to Loans bearing
interest at a rate determined by reference to an alternative basis or (ii)
upon the expiration of any Interest Period applicable to a LIBOR Rate Loan,
to continue all or any portion of such Loan equal to One Hundred Thousand
Dollars ($100,000) and multiples of One Hundred Thousand Dollars ($100,000)
in excess of that amount (or all such outstanding Delayed Draw Term Loans
or Revolving Loans) as a LIBOR Rate Loan; provided, however, that a LIBOR
Rate Loan may only be converted into a Base Rate Loan on the expiration
date of an Interest Period applicable thereto unless Borrower pays all fees
due pursuant to subsection 2.6D.
Borrower shall deliver a duly executed Notice of
Conversion/Continuation to Administrative Agent no later than 10:00 A.M.
(New York, New York time) at least one Business Day in advance of the
proposed conversion date (in the case of a conversion to a Base Rate Loan)
and at least three (3) Business Days in advance of the proposed
conversion/continuation date (in the case of a conversion to, or a
continuation of, a LIBOR Rate Loan). In lieu of delivering a Notice of
Conversion/Continuation, Borrower may give Administrative Agent telephonic
notice by the required time of any proposed conversion/continuation under
this subsection 2.2D; provided that such notice shall be promptly confirmed
in writing by delivery of a duly executed Notice of Conversion/Continuation
to Administrative Agent on or before the proposed conversion/continuation
date. Upon receipt of written or telephonic notice of any proposed
conversion/continuation under this subsection 2.2D, Administrative Agent
shall promptly transmit such notice by facsimile or telephone to each
Lender of the Loan subject to the Notice of Conversion/Continuation.
Neither Administrative Agent nor any Lender shall incur any liability
to Borrower in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized Officer or other person authorized to act on behalf of Borrower
or for otherwise acting in good faith under this subsection 2.2D, and upon
conversion or continuation of the applicable basis for determining the
interest rate with respect to any Loans in accordance with this Agreement
pursuant to any such telephonic notice, Borrower shall have effected a
conversion or continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a
Notice of Conversion/Continuation for conversion to, or continuation of, a
LIBOR Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable
on and after the related Interest Rate Determination Date; provided that
Borrower may revoke such Notice of Conversion/Continuation if Borrower pays
all fees required by subsection 2.6D.
If a LIBOR Rate Loan is neither repaid or continued on the last day of
the Interest Period applicable thereto nor converted into another type of
Loan on such date pursuant to and in accordance with this Agreement,
including this subsection 2.2D, or if Administrative Agent has not received
a Notice of Conversion/Continuation for such LIBOR Loan at least three (3)
Business Days prior to the last day of the then current Interest Period,
then the outstanding LIBOR Loan shall be
32
deemed to be converted, on the last day of the then current Interest
Period, into a Base Rate Loan and thereafter shall bear interest as such.
E. DEFAULT RATE. Upon the occurrence and during the continuation
of any Event of Default, the outstanding principal amount of all Loans and,
to the extent permitted by applicable law, any interest payments thereon
not paid when due and any fees and other amounts then due and payable
hereunder, shall, upon the request of the Requisite Lenders, thereafter
bear interest (including post-petition interest in any proceeding under the
Bankruptcy Code or other applicable bankruptcy laws) payable upon demand at
a rate that is two percent (2%) per annum in excess of the interest rate
otherwise payable under this Agreement with respect to the applicable Loans
(or, in the case of any such fees and other amounts, at a rate which is two
percent (2%) per annum in excess of the interest rate otherwise payable
under this Agreement for Base Rate Loans); provided that, in the case of
LIBOR Rate Loans, upon the expiration of the Interest Period in effect at
the time any such increase in interest rate is effective such LIBOR Rate
Loans shall, unless otherwise agreed by the Requisite Lenders, thereupon
become Base Rate Loans and shall thereafter bear interest payable upon
demand at a rate which is two percent (2%) per annum in excess of the
interest rate otherwise payable under this Agreement for Base Rate Loans.
Payment or acceptance of the increased rates of interest provided for in
this subsection 2.2E is not a permitted alternative to timely payment and
shall not constitute a waiver of any Event of Default or otherwise
prejudice or limit any rights or remedies of Administrative Agent or any
Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans shall be
computed (i) in the case of Base Rate Loans, on the basis of a 365-day or
366-day year, as the case may be, and (ii) in the case of LIBOR Rate Loans,
on the basis of a 360-day year, in each case for the actual number of days
elapsed in the period during which it accrues. In computing interest on any
Loan, the date of the making of such Loan or the first day of an Interest
Period applicable to such Loan or, with respect to a Base Rate Loan being
converted from a LIBOR Rate Loan, the date of conversion of such LIBOR Rate
Loan to such Base Rate Loan, as the case may be, shall be included, and the
date of payment of such Loan or the expiration date of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan being
converted to a LIBOR Rate Loan, the date of conversion of such Base Rate
Loan to such LIBOR Rate Loan, as the case may be, shall be excluded;
provided that if a Loan is repaid on the same day on which it is made, one
day's interest shall be paid on that Loan.
G. MAXIMUM RATE. Notwithstanding the foregoing provisions of this
subsection 2.2, if a court of competent jurisdiction determines in a final
order that the rate of interest payable by Borrower with respect to any
Loan exceeds the highest rate of interest permissible under law (the
"MAXIMUM LAWFUL RATE"), then so long as the Maximum Lawful Rate would be so
exceeded, the rate of interest payable by Borrower with respect to any Loan
shall be equal to the Maximum Lawful Rate; provided, however, that if at
any time thereafter the rate of interest payable by Borrower with respect
to any Loan is less than the Maximum Lawful Rate, Borrower shall continue
to pay interest with respect to any Loan at the Maximum Lawful Rate until
such time as the total interest received by Administrative Agent, on behalf
of Lenders, is equal to the total interest that would have been received
had the interest rate payable hereunder been (but for the operation of this
paragraph) the interest rate payable since the Closing Date as otherwise
provided in this Agreement. In no event shall the total interest received
by any Lender pursuant to the terms hereof exceed the amount that such
Lender could lawfully have received had the interest due hereunder been
calculated for the full term hereof at the Maximum Lawful Rate.
33
2.3 FEES.
A. COMMITMENT FEES.
(i) Revolving Loans. Borrower agrees to pay to Administrative Agent,
for distribution to each Revolving Lender in proportion to that Lender's
Pro Rata Share, commitment fees for the period from and including the date
of this Agreement to and excluding the Final Maturity Date equal to the
average of the daily excess of the Revolving Loan Commitments over the sum
of (i) the aggregate principal amount of outstanding Revolving Loans plus
(ii) the Letter of Credit Usage, multiplied by 1/2 of 1% per annum, such
commitment fees to be calculated on the basis of a 360-day year and the
actual number of days elapsed and to be payable quarterly in arrears on
March 15, June 15, September 15 and December 15 of each year, commencing on
the first such date to occur after the Closing Date, and on the Final
Maturity Date.
(ii) Delayed Draw Term Loans. Borrower agrees to pay to Administrative
Agent, for distribution to each Delayed Draw Term Loan Lender in proportion
to that Lender's Pro Rata Share, commitment fees for the period from and
including the date of this Agreement to and excluding the Delayed Draw Term
Loan Drawdown Termination Date equal to the average of the daily excess of
the Delayed Draw Term Loan Commitments over the aggregate principal amount
of outstanding Delayed Draw Term Loans, multiplied by 1/2 of 1% per annum,
such commitment fees to be calculated on the basis of a 360-day year and
the actual number of days elapsed and to be payable quarterly in arrears on
March 15, June 15, September 15 and December 15 of each year, commencing on
the first such date to occur after the Closing Date, and on the Delayed
Draw Delayed Draw Term Loan Drawdown Termination Date.
B. DELAYED DRAW TERM LOAN EXTENSION FEES. If Borrower shall
extend the Delayed Draw Term Loan Termination Date to December 31, 2007, as
set forth in the definition thereof, then, Borrower agrees to pay to
Administrative Agent, for distribution to each Delayed Draw Term Loan
Lender in proportion to that Lender's Pro Rata Share, an extension fee
equal to the excess of the Delayed Draw Term Loan Commitments to be
extended by Borrower over the aggregate principal amount of outstanding
Delayed Draw Term Loans, multiplied by 1/2 of 1% per annum, such extension
fee to be paid ten (10) Business Days prior to June 30, 2007.
C. LETTER OF CREDIT FEES. Borrower shall pay to the Issuing
Lenders the fees in respect of Letters of Credit described in subsection
3.2.
D. OTHER FEES. Borrower agrees to pay to Administrative Agent
such fees in the amounts and at the times separately agreed in writing upon
between Borrower and Administrative Agent.
2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN
COMMITMENTS; GENERAL PROVISIONS REGARDING PAYMENTS; APPLICATION
OF PROCEEDS OF COLLATERAL AND PAYMENTS UNDER GUARANTIES.
A. SCHEDULED PAYMENTS OF LOANS.
(i) Scheduled Payments of Delayed Draw Term Loans. Borrower shall make
principal payments on the Delayed Draw Term Loans in installments on the
dates and in the amounts set forth below:
34
PERCENTAGE REDUCTION/REPAYMENT
SCHEDULED REPAYMENT OF DELAYED DRAW TERM LOANS IF
OF DELAYED DRAW TERM LOANS IF MERGER TRANSACTION NOT
PAYMENT DATE MERGER TRANSACTION CONSUMMATED CONSUMMATED(1)
------------ ------------------------------ ------------------------------
June 30, 2007 $ 250,000 1.250%
September 30, 2007 $ 250,000 1.250%
December 31, 2007 $ 250,000 1.250%
March 31, 2008 $ 375,000 1.875%
June 30, 2008 $ 375,000 1.875%
September 30, 2008 $ 375,000 1.875%
December 31, 2008 $ 375,000 1.875%
March 31, 2009 $ 875,000 4.375%
June 30, 2009 $ 875,000 4.375%
September 30, 2009 $ 875,000 4.375%
December 31, 2009 $ 875,000 4.375%
March 31, 2010 $1,000,000 5.000%
June 30, 2010 $1,000,000 5.000%
September 30, 2010 $1,000,000 5.000%
December 31, 2010 $1,000,000 5.000%
March 31, 2011 $1,250,000 6.250%
June 30, 2011 $1,250,000 6.250%
September 30, 2011 $1,250,000 6.250%
December 31, 2011 $1,250,000 6.250%
March 31, 2012 $1,750,000 8.750%
----------
(1) As adjusted and based on the outstanding amount of the Delayed Draw Term
Loans as of the Delayed Draw Term Loan Drawdown Termination Date.
35
PERCENTAGE REDUCTION/REPAYMENT
SCHEDULED REPAYMENT OF DELAYED DRAW TERM LOANS IF
OF DELAYED DRAW TERM LOANS IF MERGER TRANSACTION NOT
PAYMENT DATE MERGER TRANSACTION CONSUMMATED CONSUMMATED(1)
------------ ------------------------------ ------------------------------
June 30, 2012 $1,750,000 8.750%
September 30, 2012 $1,750,000 8.750%
; provided that the scheduled installments of principal of the Delayed Draw
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Delayed Draw Term Loans in
accordance with subsection 2.4B(iv); provided, further that from and after
the Merger Transaction Termination Date, the Delayed Draw Term Loan
Commitments shall be permanently reduced on the dates and in the amounts
set forth above; and provided, further that the Delayed Draw Term Loans and
all other amounts owed hereunder with respect to the Delayed Draw Term
Loans shall be paid in full no later than the Final Maturity Date, and the
final installment payable by Borrower in respect of the Delayed Draw Term
Loans on such date shall be in an amount, if such amount is different from
that specified above, sufficient to repay all amounts owing by Borrower
under this Agreement with respect to the Delayed Draw Term Loans.
(ii) Scheduled Reductions of Revolving Loan Commitments. The Revolving
Loan Commitments shall be permanently reduced on the dates and in the
amounts set forth below:
SCHEDULED REDUCTION
OF REVOLVING
DATE LOAN COMMITMENTS
---- -------------------
March 31, 2010 $583,333
June 30, 2010 $583,333
September 30, 2010 $583,333
December 31, 2010 $583,333
March 31, 2011 $583,333
June 30, 2011 $583,333
September 30, 2011 $583,333
December 31, 2011 $583,333
March 31, 2012 $777,778
June 30, 2012 $777,778
September 30, 2012 $777,778
36
; provided that the scheduled reductions of the Revolving Loan Commitments
set forth above shall be reduced in connection with any voluntary or
mandatory reductions of the Revolving Loan Commitments in accordance with
subsection 2.4B(iv); and provided, further, that the Revolving Loans and
all other amounts owed hereunder with respect to the Revolving Loans shall
be paid in full no later than the Final Maturity Date, and the final
installment payable by Borrower in respect of the Revolving Loans on such
date shall be in an amount, if such amount is different from that specified
above, sufficient to repay all amounts owing by Borrower under this
Agreement with respect to the Revolving Loans.
B. PREPAYMENTS AND UNSCHEDULED REDUCTIONS IN REVOLVING LOAN
COMMITMENTS AND DELAYED DRAW TERM LOAN COMMITMENTS.
(i) Voluntary Prepayments. Borrower may, upon not less than one (1)
Business Day's prior written or telephonic notice, in the case of Base Rate
Loans, and three (3) Business Days' prior written or telephonic notice, in
the case of LIBOR Rate Loans, in each case given to Administrative Agent by
12:00 Noon (New York, New York time) on the date required and, if given by
telephone, promptly confirmed in writing to Administrative Agent (which
original written or telephonic notice Administrative Agent will promptly
transmit by facsimile or telephone to each Lender for the Loans to be
prepaid), at any time and from time to time prepay any Delayed Draw Term
Loans or Revolving Loans on any Business Day in whole or in part in an
aggregate minimum amount of Five Hundred Thousand Dollars ($500,000) and
multiples of One Hundred Thousand Dollars ($100,000) in excess of that
amount; provided, however, that a LIBOR Rate Loan may only be prepaid on a
date other than the expiration of the Interest Period applicable thereto if
Borrower makes any and all payments required by subsection 2.6D. Notice of
prepayment having been given as aforesaid, the principal amount of the
Loans specified in such notice shall become due and payable on the
prepayment date specified therein. Any such voluntary prepayment shall be
applied as specified in subsection 2.4B(iv).
(ii) Voluntary Reductions of Revolving Loan Commitments and Delayed
Draw Term Loan Commitments. Borrower may, upon not less than three (3)
Business Days' prior written or telephonic notice confirmed in writing to
Administrative Agent (which original written or telephonic notice
Administrative Agent will promptly transmit by facsimile or telephone to
each Revolving Lender and Delayed Draw Term Loan Lender, as applicable), at
any time and from time to time terminate in whole or permanently reduce in
part, without premium or penalty, (a) the Revolving Loan Commitments in an
amount up to the amount by which the Revolving Loan Commitments exceed the
Total Utilization of Revolving Loan Commitments at the time of such
proposed termination or reduction, and/or (b) the Delayed Draw Term Loan
Commitments in an amount up to the amount by which the Delayed Draw Term
Loan Commitments exceed the total amount of the Delayed Draw Term Loans
outstanding at the time of such proposed termination or reduction; provided
that any such partial reduction of the Revolving Loan Commitments or
Delayed Draw Term Loan Commitments shall be in an aggregate minimum amount
of One Hundred Thousand Dollars ($100,000) and multiples of One Hundred
Thousand Dollars ($100,000) in excess of that amount. Borrower's notice to
Administrative Agent shall designate the date (which shall be a Business
Day) of such termination or reduction and the amount of any partial
reduction, and such termination or reduction of the Revolving Loan
Commitments and/or the Delayed Draw Term Loan Commitments shall be
effective on the date specified in Borrower's notice and shall reduce the
Revolving Loan Commitment of each Revolving Lender and/or the Delayed Draw
Term Loan Commitment of each Delayed Draw Term Loan Lender proportionately
to its Pro Rata Share. Any such voluntary reduction of the
37
Revolving Loan Commitments and/or the Delayed Draw Term Loan Commitments
shall be applied as specified in subsection 2.4B(iv).
(iii) Mandatory Prepayments and Mandatory Reductions of Revolving Loan
Commitments. The Loans shall be prepaid and/or the Revolving Loan
Commitments shall be permanently reduced in the amounts and under the
circumstances set forth below, all such prepayments and/or reductions to be
applied as set forth below or as more specifically provided in subsection
2.4B(iv):
(a) Prepayments and Reductions From Net Asset Sale Proceeds. Upon
receipt by Borrower or any of its Subsidiaries of any Net Asset Sale
Proceeds, (1) so long as no Event of Default or Potential Event of
Default shall have occurred and be continuing, Borrower may deliver to
Administrative Agent an Officer's Certificate setting forth (y) that
portion of such Net Asset Sale Proceeds (the "PROPOSED NET ASSET SALE
REINVESTMENT PROCEEDS") that Borrower or such Subsidiary intends to
use within one hundred eighty (180) days of such date of receipt to
pay or reimburse the costs of replacing the assets in respect of which
such Net Asset Sale Proceeds were received or to reinvest in Eligible
Assets and (z) the proposed use of the Proposed Net Asset Sale
Reinvestment Proceeds and such other information with respect to such
proposed use as Administrative Agent may reasonably request, following
which Borrower shall, or shall cause one or more of its Subsidiaries
to, promptly and diligently apply such Net Asset Sale Proceeds to pay
or reimburse the costs of replacing the assets in respect of which
such Net Asset Sale Proceeds were received or, to the extent not so
applied, to prepay the Loans (and/or the Revolving Loan Commitments
shall be reduced) as provided in this subsection 2.4B(iii)(a), and (2)
if an Event of Default or Potential Event of Default shall have
occurred and be continuing, if required by Administrative Agent,
Borrower shall apply an amount equal to such Net Asset Sale Proceeds
to prepay the Loans (and/or the Revolving Loan Commitments shall be
reduced) as provided this subsection 2.4B(iii)(a). Immediately upon
receipt by Borrower or any of its Subsidiaries of any Net Asset Sale
Proceeds in respect of any Asset Sale, Borrower shall prepay the Loans
and/or the Revolving Loan Commitments shall be permanently reduced in
an aggregate amount equal to such Net Asset Sale Proceeds, minus, if
(1) no Potential Event of Default or Event of Default shall have
occurred and be continuing and (2) Borrower shall have delivered to
Administrative Agent, on or before such second (2nd) Business Day, the
Officer's Certificate described above, any Proposed Net Asset Sale
Proceeds; provided, however, that such Proposed Net Asset Sale
Proceeds shall be applied to prepay outstanding Revolving Loans
(without a reduction in Commitments) to the full extent thereof. In
addition, no later than one hundred eighty (180) days after receipt of
any Proposed Net Asset Sale Proceeds, Borrower shall prepay the Loans
and/or the Commitments shall be permanently reduced in an amount equal
to the amount of any such Proposed Net Asset Sale Proceeds that have
not theretofore been applied to the costs of replacing the applicable
assets of Borrower or its Subsidiaries or reinvested in Eligible
Assets, net of actual and reasonable documented costs incurred by
Borrower and its Subsidiaries in connection with receiving payment of
such proceeds and taxes payable in connection with such receipt
(without duplication of amounts already deducted from gross proceeds
in determining Net Asset Sale Proceeds).
(b) Prepayments and Reductions from Net Insurance/Condemnation
Proceeds. Not later than the second (2nd) Business Day following the
date of receipt by Administrative Agent or by Borrower or any of its
Subsidiaries of any Net Insurance/Condemnation Proceeds that are
required to be applied to prepay the Loans
38
and/or reduce the Revolving Loan Commitments pursuant to the
provisions of subsection 6.4C, Borrower shall prepay the Loans and/or
the Revolving Loan Commitments shall be permanently reduced in an
aggregate amount equal to the amount of such Net
Insurance/Condemnation Proceeds, minus, if (1) no Potential Event of
Default or Event of Default shall have occurred and be continuing and
(2) Borrower shall have delivered to Administrative Agent, on or
before such second (2nd) Business Day, the Officer's Certificate
described in subsection 6.4C(ii), any Proposed Insurance Reinvestment
Proceeds; provided, however, that such Proposed Insurance Reinvestment
Proceeds shall be applied to prepay outstanding Revolving Loans
(without a reduction in Commitments) to the full extent thereof. In
addition, no later than one hundred eighty (180) days after receipt of
any Proposed Insurance Reinvestment Proceeds, Borrower shall prepay
the Loans and/or the Commitments shall be permanently reduced in an
amount equal to the amount of any such Proposed Insurance Reinvestment
Proceeds that have not theretofore been applied to the costs of
repairing, restoring or replacing the applicable assets of Borrower or
its Subsidiaries or reinvested in equipment or other productive assets
of the general type used (and which are so used) in the business of
Borrower and its Subsidiaries (such equipment and other assets being
"ELIGIBLE ASSETS"), net of actual and reasonable documented costs
incurred by Borrower and its Subsidiaries in connection with receiving
payment of such proceeds and taxes payable in connection with such
receipt (without duplication of amounts already deducted from gross
proceeds in determining Net Insurance/Condemnation Proceeds).
(c) Prepayments and Reductions Due to Issuance of Equity
Securities. Immediately upon receipt of the Net Securities Proceeds
from the issuance of any Capital Stock of Borrower or of any of its
Subsidiaries (other than to Borrower or another Subsidiary) or from
any capital contribution to Borrower by any holder of Capital Stock
thereof after the Closing Date, in either case to or from WRP or any
other Person (except for (1) Net Securities Proceeds used to fund a
Permitted Acquisition, Permitted Product Development or Other Capital
Expenditures, (2) Four Hundred Thousand Dollars ($400,000) in the
aggregate of Net Securities Proceeds annually from WRP to Borrower
used to fund a portion of the salaries, compensation, benefits and
other expenses of Xxxxx Xxxxxxx and Xxx Xxxxxxxx, and (3) an
additional Two Million Dollars ($2,000,000) in the aggregate of Net
Securities Proceeds from WRP to Borrower), Borrower shall prepay the
Loans and/or the Revolving Loan Commitments shall be permanently
reduced in an aggregate amount equal to such Net Securities Proceeds.
(d) Prepayments and Reductions Due to Issuance of Indebtedness.
Immediately upon receipt of the Net Securities Proceeds from the
issuance of any Indebtedness of any or all of Borrower and its
Subsidiaries after the Closing Date (exclusive of any Indebtedness
permitted in subsection 7.1), Borrower shall prepay the Loans and/or
the Revolving Loan Commitments shall be permanently reduced in an
aggregate amount equal to such Net Securities Proceeds.
(e) Prepayments and Reductions from Excess Cash Flow. In the
event that there shall be Excess Cash Flow for any Fiscal Year
(commencing with the Fiscal Year ended as at December 31, 2007, or
October 31, 2007 if the Merger Transaction is not consummated),
Borrower shall, no later than March 15th of the following Fiscal Year
(or no later than January 15th if the Merger Transaction is not
consummated), prepay the Loans and/or the Revolving Loan Commitments
shall be permanently reduced in an aggregate amount equal to (1) fifty
percent (50%) of such Excess Cash Flow if (y) any Event of Default has
occurred and is continuing or (z) if the Total Leverage Ratio at the
39
end of such Fiscal Year is greater than or equal to 4.00:1.00, or (2)
twenty-five percent (25%) of such Excess Cash Flow if the Total
Leverage Ratio at the end of such Fiscal Year is less than 4.00:1.00
but greater than or equal to 3.50:1.00; provided, however, that if
neither of the foregoing clause (1) or (2) is applicable, no payments
shall be required hereunder with respect to Excess Cash Flow.
(f) Calculations of Net Proceeds Amounts; Additional Prepayments
and Reductions Based on Subsequent Calculations. Concurrently with any
prepayment of the Loans and/or reduction of the Revolving Loan
Commitments pursuant to subsections 2.4B(iii)(a)-(e), Borrower shall
deliver to Administrative Agent an Officer's Certificate demonstrating
the calculation of the amount of the applicable Net Asset Sale
Proceeds, Net Insurance/Condemnation Proceeds, Net Securities
Proceeds, or Excess Cash Flow, as the case may be, that gave rise to
such prepayment and/or reduction. In the event that Borrower shall
subsequently determine that the actual amount was greater than the
amount set forth in such Officer's Certificate, Borrower shall
immediately make an additional prepayment of the Loans (and/or, if
applicable, the Revolving Loan Commitments shall be permanently
reduced) in an amount equal to the amount of such excess, and Borrower
shall concurrently therewith deliver to Administrative Agent an
Officer's Certificate demonstrating the derivation of the additional
amount resulting in such excess.
(g) Prepayments Due to Reductions or Restrictions of Revolving
Loan Commitments. Borrower shall from time to time prepay the
Revolving Loans to the extent necessary so that the Total Utilization
of Revolving Loan Commitments shall not at any time exceed the
Revolving Loan Commitments then in effect.
(iv) Application of Prepayments and Unscheduled Reductions of
Revolving Loan Commitments and Delayed Draw Term Loan Commitments.
(a) Application of Voluntary Prepayments by Type of Loans and
Order of Maturity. Any voluntary prepayments pursuant to subsection
2.4B(i) shall be applied first to repay outstanding Delayed Draw Term
Loans to the full extent thereof and second to repay outstanding
Revolving Loans to the full extent thereof. Any voluntary prepayments
of the Delayed Draw Term Loans pursuant to subsection 2.4B(i) shall be
applied to prepay the Delayed Draw Term Loans and to reduce the
scheduled installments of principal of the Delayed Draw Term Loans set
forth in subsection 2.4A(i) on a pro rata basis (in accordance with
the respective amounts thereof).
(b) Application of Mandatory Prepayments by Type of Loans. Except
as provided in subsection 2.4D, any amount required to be applied as a
mandatory prepayment of the Loans and/or a reduction of the Revolving
Loan Commitments pursuant to subsections 2.4B(iii)(a)-(e) shall be
applied first to repay outstanding Delayed Draw Term Loans to the full
extent thereof, second to repay outstanding Revolving Loans to the
full extent thereof (with a corresponding reduction in the Revolving
Loan Commitments), and third to the extent of any remaining portion of
such amount, to further permanently reduce the Revolving Loan
Commitments by an amount equal to such remaining portion. Any
mandatory reduction of Revolving Loan Commitments pursuant to this
subsection 2.4B shall be in proportion to each Revolving Lender's Pro
Rata Share.
40
(c) Application of Mandatory Prepayments of Delayed Draw Term
Loans and the Scheduled Installments of Principal Thereof. Any
mandatory prepayments of the Delayed Draw Term Loans pursuant to
subsection 2.4B(iii) shall be applied to prepay the Delayed Draw Term
Loans on a pro rata basis (in accordance with the outstanding
principal amounts thereof) and shall be applied to reduce the
scheduled installments of principal of the Delayed Draw Term Loans set
forth in subsection 2.4A(i) to each scheduled installment of principal
of the Delayed Draw Term Loans set forth in subsection 2.4A(i) that is
unpaid at the time of such prepayment on a pro rata basis (in
accordance with the respective amounts thereof).
(d) Application of Prepayments to Base Rate Loans and LIBOR Rate
Loans. Considering Delayed Draw Term Loans and Revolving Loans being
prepaid separately, any prepayment thereof shall be applied first to
Base Rate Loans to the full extent thereof before application to LIBOR
Rate Loans, in each case in a manner that minimizes the amount of any
payments required to be made by Borrower pursuant to subsection 2.6.
(e) Application of Unscheduled Reductions of Revolving Loan
Commitments and Delayed Draw Term Loan Commitments. Any voluntary or
mandatory reduction of the Revolving Loan Commitments pursuant to
subsections 2.4B(i), 2.4B(ii) or 2.4B(iii) shall be applied to reduce
the scheduled reductions of the Revolving Loan Commitments set forth
in subsection 2.4A(ii) on a pro rata basis. Any voluntary reduction of
the Delayed Draw Loan Commitments pursuant to subsection 2.4B(ii)
shall be applied to reduce the scheduled reductions of the Delayed
Draw Term Loan Commitments set forth in subsection 2.4A(i) on a pro
rata basis.
C. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) Manner and Time of Payment. All payments by Borrower of principal,
interest, fees and other Obligations shall be made in Dollars in same day
funds, without defense, setoff or counterclaim, free of any restriction or
condition, and delivered to Administrative Agent not later than 12:00 Noon
(New York, New York time) on the date due at the Funding and Payment Office
for the account of Lenders; funds received by Administrative Agent after
that time on such due date shall be deemed to have been paid by Borrower on
the next succeeding Business Day unless the Administrative Agent has
actually distributed such funds to the applicable Lenders on such due date.
Borrower hereby authorizes Administrative Agent to charge its accounts with
Administrative Agent in order to cause timely payment to be made to
Administrative Agent of all principal, interest, fees and expenses due
hereunder (subject to sufficient funds being available in its accounts for
that purpose).
(ii) Application of Payments to Principal and Interest. All payments
in respect of the principal amount of any Loan shall include payment of
accrued interest on the principal amount being repaid or prepaid, and all
such payments (and, in any event, any payments in respect of any Loan on a
date when interest is due and payable with respect to such Loan) shall be
applied to the payment of interest before application to principal.
(iii) Apportionment of Payments. Aggregate principal and interest
payments in respect of Delayed Draw Term Loans and Revolving Loans shall be
apportioned among all outstanding Loans to which such payments relate, in
each case proportionately to Lenders' respective Pro Rata Shares.
Administrative Agent shall promptly distribute to each Lender, at its
primary address set forth below its name on the appropriate signature page
hereof or at such other address as such Lender may request, its Pro Rata
Share of all such payments received by
41
Administrative Agent and the commitment fees of such Lender, if any, when
received by Administrative Agent pursuant to subsection 2.3.
Notwithstanding the foregoing provisions of this subsection 2.4C(iii), if,
pursuant to the provisions of subsection 2.6C, any Notice of
Conversion/Continuation is withdrawn as to any Affected Lender or if any
Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any
LIBOR Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.
(iv) Payments on Business Days. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day,
such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder or of the commitment fees hereunder, as the case may be.
(v) Notation of Payment. Each Lender agrees that before disposing of
any Note held by it, or any part thereof (other than by granting
participations therein), that Lender will make a notation thereon of all
Loans evidenced by that Note and all principal payments previously made
thereon and of the date to which interest thereon has been paid; provided
that the failure to make (or any error in the making of) a notation of any
Loan made under such Note shall not limit or otherwise affect the
obligations of Borrower hereunder or under such Note with respect to any
Loan or any payments of principal or interest on such Note.
D. APPLICATION OF PROCEEDS OF COLLATERAL AND PAYMENTS AFTER EVENT
OF DEFAULT.
Upon termination of the Revolving Loan Commitments or upon the
occurrence and during the continuation of an Event of Default, if requested by
Requisite Lenders (a) all payments received on account of the Obligations,
whether from Borrower, from any Guarantor or otherwise, shall be applied by
Administrative Agent against the Obligations (including, without limitation,
Interest Rate Agreement Obligations, including any termination payments and any
accrued and unpaid interest thereon (pro rata in accordance with such amounts
due)) and (b) all proceeds received by Administrative Agent in respect of any
sale of, collection from, or other realization upon all or any part of the
Collateral under any Collateral Document may, in the discretion of
Administrative Agent (subject to direction by the Requisite Lenders), be held by
Administrative Agent as Collateral for, and/or (then or at any time thereafter)
applied in full or in part by Administrative Agent against, the applicable
Secured Obligations (as defined in such Collateral Document), in each case in
the following order of priority:
(i) to the payment of all costs and expenses of such sale, collection
or other realization, all other expenses, liabilities and advances (other
than Loans) made or incurred by Administrative Agent in connection
therewith, and all amounts for which Administrative Agent is entitled to
compensation (including the fees described in subsection 2.3),
reimbursement and indemnification under any Credit Document and all
advances made by Administrative Agent thereunder for the account of the
applicable Credit Party, and to the payment of all costs and expenses paid
or incurred by Administrative Agent in connection with the Credit
Documents, all in accordance with subsections 9.4, 10.2 and 10.3 and the
other terms of this Agreement and the Credit Documents;
(ii) thereafter, to the payment of all other Obligations for the
ratable benefit of the holders thereof (subject to the provisions of
subsection 2.4C(ii) hereof); and
(iii) thereafter, to the payment to or upon the order of such Credit
Party or to whosoever may be lawfully entitled to receive the same or as a
court of competent jurisdiction may direct.
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2.5 USE OF PROCEEDS.
A. DELAYED DRAW TERM LOANS. Prior to the Merger Transaction
Termination Date, the proceeds of the initial Delayed Draw Term Loans shall
only be applied by Borrower to partially finance the "Cash Consideration"
(as defined and used in the Merger Agreement) for the Merger Transaction.
On and after the Merger Transaction Termination Date until the Delayed Draw
Term Loan Drawdown Termination Date, the proceeds of any Delayed Draw Term
Loans shall be applied by Borrower to finance Permitted Acquisitions and
related transaction costs, Permitted Product Development and for general
corporate purposes.
B. REVOLVING LOANS. Prior to the Merger Transaction Termination
Date, Five Million Dollars ($5,000,000) of the proceeds of the Revolving
Loans shall be reserved to partially finance the "Cash Consideration" (as
defined and used in the Merger Agreement) for the Merger Transaction, and
the remaining Two Million Dollars ($2,000,000) of the proceeds of the
Revolving Loans shall be used for general corporate purposes. On and after
the Merger Transaction Termination Date, the proceeds of any Revolving
Loans shall be applied by Borrower to finance Permitted Acquisitions and
related transaction costs, Permitted Product Development and for general
corporate purposes.
C. MARGIN REGULATIONS. No portion of the proceeds of any
borrowing under this Agreement shall be used by any or all of Borrower and
its Subsidiaries in any manner that might cause the borrowing or the
application of such proceeds to violate Regulation U, Regulation T or
Regulation X of the Board of Governors of the Federal Reserve System or any
other regulation of such Board or to violate the Exchange Act, in each case
as in effect on the date or dates of such borrowing and such use of
proceeds.
2.6 SPECIAL PROVISIONS GOVERNING LIBOR RATE LOANS.
Notwithstanding any other provision of this Agreement to the
contrary, the following provisions shall govern with respect to LIBOR Rate Loans
as to the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as
practicable after 10:00 A.M. (New York, New York time) on each Interest
Rate Determination Date, Administrative Agent shall determine (which
determination shall, absent manifest error, be conclusive and binding upon
all parties) the interest rate that shall apply to the LIBOR Rate Loans for
which an interest rate is then being determined for the applicable Interest
Period and shall promptly give notice thereof (in writing or by telephone
confirmed in writing) to Borrower and each Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event
that Administrative Agent shall have determined (which determination shall
be conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date that by reason of circumstances affecting the London
interbank market adequate and fair means do not exist for ascertaining the
interest rate applicable to such Loans on the basis provided for in the
definition of LIBOR Rate, Administrative Agent shall on such date give
notice (by facsimile or by telephone confirmed in writing) to Borrower and
each Lender of such determination, whereupon (i) no Loans may be made as,
or converted to, LIBOR Rate Loans until such time as Administrative Agent
notifies Borrower and Lenders that the circumstances giving rise to such
notice no longer exist and (ii) any Notice of Borrowing or Notice of
Conversion/Continuation given by Borrower with respect to the Loans in
respect of which such determination was made shall be deemed to be for a
Base Rate Loan.
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C. ILLEGALITY OR IMPRACTICABILITY OF LIBOR RATE LOANS. In the
event that on any date any Lender shall have determined (which
determination shall be conclusive and binding upon all parties hereto but
shall be made only after consultation with Borrower and Administrative
Agent) that the making, maintaining or continuation of its LIBOR Rate Loans
(i) has become unlawful as a result of compliance by such Lender in good
faith with any law, treaty, governmental rule, regulation, guideline or
order (or would conflict with any such treaty, governmental rule,
regulation, guideline or order not having the force of law even though the
failure to comply therewith would not be unlawful) or (ii) has become
impracticable, or would cause such Lender material hardship, as a result of
contingencies occurring after the date of this Agreement which materially
and adversely affect the London interbank market or the position of such
Lender in that market, then, and in any such event, such Lender shall be an
"AFFECTED LENDER" and it shall on that day give notice (by facsimile or by
telephone confirmed in writing) to Borrower and Administrative Agent of
such determination (which notice Administrative Agent shall promptly
transmit to each other Lender). Thereafter (a) the obligation of the
Affected Lender to make Loans as, or to convert Loans to, LIBOR Rate Loans
shall be suspended until such notice shall be withdrawn by the Affected
Lender, (b) to the extent such determination by the Affected Lender relates
to a LIBOR Rate Loan then being requested by Borrower pursuant to a Notice
of Borrowing or a Notice of Conversion/Continuation, the Affected Lender
shall make such Loan as (or convert such Loan to, as the case may be) a
Base Rate Loan, (c) the Affected Lender's obligation to maintain its
outstanding LIBOR Rate Loans (the "AFFECTED LOANS") shall be terminated at
the earlier to occur of the expiration of the Interest Period then in
effect with respect to the Affected Loans or when required by law, and (d)
the Affected Loans shall automatically convert into Base Rate Loans on the
date of such termination. Notwithstanding the foregoing, to the extent a
determination by an Affected Lender as described above relates to a LIBOR
Rate Loan then being requested by Borrower pursuant to a Notice of
Borrowing or a Notice of Conversion/Continuation, Borrower shall have the
option, subject to the provisions of subsection 2.6D, to rescind such
Notice of Borrowing or Notice of Conversion/Continuation as to all Lenders
by giving notice (by facsimile or by telephone confirmed in writing) to
Administrative Agent of such rescission on the date on which the Affected
Lender gives notice of its determination as described above (which notice
of rescission Administrative Agent shall promptly transmit to each other
Lender). Except as provided in the immediately preceding sentence, nothing
in this subsection 2.6C shall affect the obligation of any Lender other
than an Affected Lender to make or maintain Loans as, or to convert Loans
to, LIBOR Rate Loans in accordance with the terms of this Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST
PERIODS. Borrower shall compensate each Lender, upon written request by
that Lender pursuant to subsection 2.8, for all reasonable losses, expenses
and liabilities (including any interest paid by that Lender to lenders of
funds borrowed by it to make or carry its LIBOR Rate Loans and any loss,
expense or liability sustained by that Lender in connection with the
liquidation or re-employment of such funds) which that Lender may sustain:
(i) if for any reason (other than a default by that Lender) a borrowing of
any LIBOR Rate Loan does not occur on a date specified therefor in a Notice
of Borrowing or a telephonic request therefor, or a conversion to or
continuation of any LIBOR Rate Loan does not occur on a date specified
therefor in a Notice of Conversion/Continuation or a telephonic request
therefor, (ii) if any prepayment or other principal payment or any
conversion of any of its LIBOR Rate Loans (including any prepayment or
conversion occasioned by the circumstances described in subsection 2.6C)
occurs on a date prior to the last day of an Interest Period applicable to
that Loan, (iii) if any prepayment of any of its LIBOR Rate Loans is not
made on any date specified in a notice of prepayment given by Borrower, or
(iv) as a consequence of any other default by Borrower in the repayment of
its LIBOR Rate Loans when required by the terms of this Agreement.
44
E. BOOKING OF LIBOR RATE LOANS. Any Lender may make, carry or
transfer LIBOR Rate Loans at, to, or for the account of any of its branch
offices or the office of an Affiliate of that Lender.
F. ASSUMPTIONS CONCERNING FUNDING OF LIBOR RATE LOANS.
Calculation of all amounts payable to a Lender under this subsection 2.6
and under subsection 2.7A shall be made as though that Lender had funded
each of its LIBOR Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to clause (i) of the
definition of LIBOR Rate in an amount equal to the amount of such LIBOR
Rate Loan and having a maturity comparable to the relevant Interest Period,
whether or not its LIBOR Rate Loans had been funded in such manner.
G. LIBOR RATE LOANS AFTER DEFAULT. After the occurrence of and
during the continuation of a Potential Event of Default or an Event of
Default, if the Requisite Lenders shall require, (i) Borrower may not elect
to have a Loan be made or maintained as, or converted to, a LIBOR Rate Loan
after the expiration of any Interest Period then in effect for that Loan
and (ii) subject to the provisions of subsection 2.6D, any Notice of
Borrowing or Notice of Conversion/Continuation given by Borrower with
respect to a requested borrowing or conversion/continuation that has not
yet occurred shall be deemed to be for a Base Rate Loan or, if the
conditions to making a Loan set forth in subsection 4.2 cannot then be
satisfied, to be rescinded by Borrower.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS. Subject to the provisions of
subsection 2.7B (which shall be controlling with respect to the matters
covered thereby), in the event that any Lender (including any Issuing
Lender) shall determine (which determination shall, absent manifest error,
be final and conclusive and binding upon all parties hereto) that any law,
treaty or governmental rule, regulation or order, or any change therein or
in the interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or
order), or any determination of a court or other Government Authority, in
each case that becomes effective after the date hereof, or compliance by
such Lender with any guideline, request or directive issued or made after
the date hereof by any central bank or other Government Authority (whether
or not having the force of law):
(i) subjects such Lender to any additional Tax with respect to this
Agreement or any of its obligations hereunder (including with respect to
issuing or maintaining any Letters of Credit or purchasing or maintaining
any participations therein or maintaining any Commitment hereunder) or any
payments to such Lender of principal, interest, fees or any other amount
payable hereunder;
(ii) imposes, modifies or holds applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement against
assets held by, or deposits or other liabilities in or for the account of,
or advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Lender (other than any such
reserve or other requirements with respect to LIBOR Rate Loans that are
reflected in the definition of LIBOR Rate); or
(iii) imposes any other condition (other than with respect to Taxes)
on or affecting such Lender or its obligations hereunder or the London
interbank market;
45
and the result of any of the foregoing is to increase the cost to such
Lender of agreeing to make, making or maintaining its Loans or Commitments
or agreeing to issue, issuing or maintaining any Letter of Credit or
agreeing to purchase, purchasing or maintaining any participation therein
or to reduce any amount received or receivable by such Lender with respect
thereto; then, in any such case, Borrower shall promptly pay to such
Lender, upon receipt of the statement referred to below, such additional
amount or 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 may be necessary to compensate such Lender
for any such increased cost or reduction in amounts received or receivable
hereunder. Such Lender shall deliver to Borrower (with a copy to
Administrative Agent) a written statement, setting forth in reasonable
detail the basis for calculating the additional amounts owed to such Lender
under this subsection 2.7A, which statement shall be conclusive and binding
upon all parties in respect of such amounts, absent manifest error.
B. TAXES.
(i) Payments to Be Free and Clear. Except as provided by law or
otherwise provided herein, all sums payable by Borrower under this
Agreement and the other Credit Documents shall be paid free and clear of,
and without any deduction or withholding on account of, any Tax imposed,
levied, collected, withheld or assessed by or within the United States of
America or any political subdivision in or of the United States of America
or any other jurisdiction from or to which a payment is made by or on
behalf of Borrower or by any federation or organization of which the United
States of America or any such jurisdiction is a member at the time of
payment.
(ii) Grossing-up of Payments. If Borrower or any other Person is
required by law to make any deduction or withholding on account of any such
Tax from any sum paid or payable by Borrower to Administrative Agent or any
Lender under any of the Credit Documents:
(a) Borrower shall notify Administrative Agent of any such
requirement or any change in any such requirement as soon as Borrower
becomes aware of it;
(b) Borrower shall pay any such Tax when such Tax is due, such
payment to be made (if the liability to pay is imposed on Borrower)
for its own account or (if that liability is imposed on Administrative
Agent or such Lender, as the case may be) on behalf of and in the name
of Administrative Agent or such Lender;
(c) the sum payable by Borrower in respect of which the relevant
deduction, withholding or payment is required shall be increased to
the extent necessary to ensure that, after the making of that
deduction, withholding or payment, Administrative Agent or such
Lender, as the case may be, receives on the due date a net sum equal
to what it would have received had no such deduction, withholding or
payment been required or made; and
(d) within thirty (30) days after paying any sum from which it is
required by law to make any deduction or withholding, and within
thirty (30) days after the due date of payment of any Tax which it is
required by clause (b) above to pay, Borrower shall deliver to
Administrative Agent evidence satisfactory to the other affected
parties of such deduction, withholding or payment and of the
remittance thereof to the relevant taxing or other authority;
46
provided that no such additional amount shall be required to be paid to
Administrative Agent or any Lender under clause (c) above except to the
extent that any change after the date on which Administrative Agent became
Administrative Agent or such Lender became a Lender in any such requirement
for a deduction, withholding or payment as is mentioned therein shall
result in an increase in the rate of such deduction, withholding or payment
from that in effect on the date on which Administrative Agent became
Administrative Agent or such Lender became a Lender, in respect of payments
to Administrative Agent or such Lender, as applicable.
(iii) Evidence of Exemption from U.S. Withholding Tax.
(a) Each Non-US Lender shall deliver to Administrative Agent for
transmission to Borrower, on or prior to the Closing Date (in the case
of each Lender listed on the signature pages hereof) or on or prior to
the date of the Assignment Agreement pursuant to which it becomes a
Lender (in the case of each other Lender), and at such other times as
may be necessary in the determination of Borrower or Administrative
Agent (each in the reasonable exercise of its discretion), (1) two
original copies of Internal Revenue Service Form W-8BEN or W-8ECI or
other applicable form, certificate or document prescribed by the
Internal Revenue Service (or any successor forms) properly completed
and duly executed by such Lender, or (2) in the case of a Non-US
Lender claiming exemption from United States federal withholding tax
under Section 871(h) or 881(c) of the Internal Revenue Code with
respect to payments of "portfolio interest," a Form W-8BEN, and (3) in
the case of a Lender that has certified in writing to Administrative
Agent that it is not a "bank" (as defined in Section 881(c)(3)(A) of
the Internal Revenue Code), a certificate of such Lender certifying
that such Lender is not (i) a "bank" for purposes of Section 881(c) of
the Internal Revenue Code, (ii) a ten-percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of
Borrower and its Subsidiaries or (iii) a controlled foreign
corporation related to any or all of Borrower (within the meaning of
Section 864(d)(4) of the Internal Revenue Code), in each case together
with any other certificate or statement of exemption required under
the Internal Revenue Code, the regulations issued thereunder, or an
applicable tax treaty to establish that such Lender is not subject to
United States withholding tax with respect to any payments to such
Lender of interest payable under any of the Credit Documents. Each US
Lender shall deliver to Administrative Agent and to Borrower, on or
prior to the Closing Date (in the case of each Lender listed on the
signature pages hereof) or on or prior to the date of the Assignment
Agreement pursuant to which it becomes a Lender (in the case of each
other Lender), and at such other times as may be necessary in the
determination of Borrower or Administrative Agent (each in the
reasonable exercise of its discretion), two copies (or, in the case of
a Lender which becomes a Lender pursuant to an Assignment Agreement,
two original copies) of Internal Revenue Service Form W-9 (or any
successor form), certifying as to such Lender's entitlement to an
exemption from United States backup withholding tax, properly and duly
executed by such Lender.
(b) Each Non-US Lender, to the extent it does not act or ceases
to act for its own account with respect to any portion of any sums
paid or payable to such Lender under any of the Credit Documents (for
example, in the case of a typical participation by such Lender), shall
deliver to Administrative Agent for transmission to Borrower, on or
prior to the Closing Date (in the case of each Lender listed on the
signature pages hereof), on or prior to the date of the Assignment
Agreement pursuant to which it becomes a Lender (in the case of each
other Lender), or on such later date when such Lender ceases to act
for its own account with respect to any portion of any such sums paid
or payable,
47
and at such other times as may be necessary in the determination of
Borrower or Administrative Agent (each in the reasonable exercise of
its discretion), (1) two original copies of the forms or statements
required to be provided by such Lender under subsection 2.7B(iii)(a),
properly completed and duly executed by such Lender, to establish the
portion of any such sums paid or payable with respect to which such
Lender acts for its own account that is not subject to United States
withholding tax, and (2) two original copies of Internal Revenue
Service Form W-8IMY (or any successor forms) properly completed and
duly executed by such Lender, together with any information, if any,
required to be transmitted with such form, and any other certificate
or statement of exemption required under the Internal Revenue Code or
the regulations issued thereunder, to establish that such Lender is
not acting for its own account with respect to a portion of any such
sums payable to such Lender.
(c) Each Non-US Lender and each US Lender hereby agrees, from
time to time after the initial delivery by such Lender of such forms,
whenever a lapse in time or change in circumstances renders such
forms, certificates or other evidence so delivered obsolete or
inaccurate in any material respect, that such Lender shall promptly
(1) deliver to Administrative Agent for transmission to Borrower two
original copies of renewals, amendments or additional or successor
forms, properly completed and duly executed by such Lender, together
with any other certificate or statement of exemption required in order
to confirm or establish that such Lender is not subject to United
States withholding tax with respect to payments to such Lender under
the Credit Documents and, if applicable, that such Lender does not act
for its own account with respect to any portion of such payment, or
(2) notify Administrative Agent and Borrower of its inability to
deliver any such forms, certificates or other evidence.
(d) Borrower shall not be required to pay any additional amount
to any Non-US Lender under clause (c) of subsection 2.7B(ii), (1) with
respect to any Tax required to be deducted or withheld on the basis of
the information, certificates or statements of exemption such Lender
chooses to transmit with an Internal Revenue Service Form W-8IMY
pursuant to subsection 2.7B(iii)(b)(1) or (2) if such Lender shall
have failed to satisfy the requirements of clause (a), (b) or (c)(1)
of this subsection 2.7B(iii); provided that if such Lender shall have
satisfied the requirements of subsection 2.7B(iii)(a) on the date such
Lender became a Lender, nothing in this subsection 2.7B(iii)(d) shall
relieve Borrower of its obligation to pay any amounts pursuant to
subsection 2.7B(ii)(c) in the event that, as a result of any change in
any applicable law, treaty or governmental rule, regulation or order,
or any change in the interpretation, administration or application
thereof, such Lender is no longer properly entitled to deliver forms,
certificates or other evidence at a subsequent date establishing the
fact that such Lender is not subject to withholding as described in
subsection 2.7B(iii)(a).
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have
determined that the adoption, effectiveness, phase-in or applicability
after the date hereof of any law, rule or regulation (or any provision
thereof) regarding capital adequacy, or any change therein or in the
interpretation or administration thereof by any Government Authority
charged with the interpretation or administration thereof, or compliance by
any Lender with any guideline, request or directive regarding capital
adequacy (whether or not having the force of law) of any such Government
Authority, has or would have the effect of reducing the rate of return on
the capital of such Lender or any corporation controlling such Lender as a
consequence of, or with reference to, such Lender's Loans or Commitments or
Letters of Credit or participations therein or other obligations hereunder
with respect to the Loans or the Letters of Credit to a level below that
which such Lender or such
48
controlling corporation could have achieved but for such adoption,
effectiveness, phase-in, applicability, change or compliance (taking into
consideration the policies of such Lender or such controlling corporation
with regard to capital adequacy), then from time to time, within five (5)
Business Days after receipt by Borrower from such Lender of the statement
referred to in the next sentence, Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such
controlling corporation on an after-tax basis for such reduction. Such
Lender shall deliver to Borrower (with a copy to Administrative Agent) a
written statement, setting forth in reasonable detail the basis of the
calculation of such additional amounts, which statement shall be conclusive
and binding upon all parties hereto absent manifest error.
2.8 OBLIGATION OF LENDERS AND ISSUING LENDER TO MITIGATE.
Each Lender and Issuing Lender agrees that, as promptly as
practicable after the officer of such Lender or Issuing Lender responsible for
administering the Loans or Letters of Credit of such Lender or Issuing Lender,
as the case may be, becomes aware of the occurrence of an event or the existence
of a condition that would cause such Lender to become an Affected Lender or that
would entitle such Lender or Issuing Lender to receive payments under subsection
2.7 or subsection 3.6, it will, to the extent not inconsistent with the internal
policies of such Lender or Issuing Lender and any applicable legal or regulatory
restrictions, use reasonable efforts (i) to make, issue, fund or maintain the
Commitments of such Lender or the affected Loans or Letters of Credit of such
Lender or Issuing Lender through another lending or letter of credit office of
such Lender or Issuing Lender, or (ii) take such other measures as such Lender
or Issuing Lender may deem reasonable, if as a result thereof the circumstances
which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such
Lender or Issuing Lender pursuant to subsection 2.7 or subsection 3.6, would be
materially reduced and if, as determined by such Lender or Issuing Lender in its
sole discretion, the making, issuing, funding or maintaining of such Commitments
or Loans or Letters of Credit through such other lending or letter of credit
office or in accordance with such other measures, as the case may be, would not
otherwise materially adversely affect such Commitments, Loans or Letters of
Credit or the interests of such Lender or Issuing Lender; provided that such
Lender or Issuing Lender will not be obligated to utilize such other lending or
letter of credit office pursuant to this subsection 2.8 unless Borrower agrees
to pay all incremental expenses incurred by such Lender or Issuing Lender as a
result of utilizing such other lending or letter of credit office as described
in clause (i) above. A certificate as to the amount of any such expenses payable
by Borrower pursuant to this subsection 2.8 (setting forth in reasonable detail
the basis for requesting such amount) submitted by such Lender or Issuing Lender
to Borrower (with a copy to Administrative Agent) shall be conclusive and
binding absent manifest error.
2.9 GUARANTIES OF AND SECURITY FOR THE OBLIGATIONS; SUBROGATION.
A. BORROWER AND BORROWER'S SUBSIDIARIES. To the extent set forth
in the Collateral Documents and the Guaranties, (i) each Subsidiary of
Borrower shall guaranty the Obligations of Borrower pursuant to the
Guaranties, (ii) to secure the full performance of the Obligations, each
Credit Party shall grant to Administrative Agent on behalf and for the
ratable benefit of Lenders, a duly perfected First Priority Lien on all of
the personal, real and mixed property of such Credit Party, to the extent
contemplated by the Collateral Documents, and (iii) to secure the full
performance of the Obligations, all of the shareholders of Borrower, or on
and after the consummation of the Merger Transaction, WRP, shall grant to
Administrative Agent on behalf and for the ratable benefit of Lenders, a
duly perfected First Priority Lien on all of the Capital Stock of Borrower.
49
B. FURTHER ASSURANCES; ADDITIONAL SECURITY. Borrower shall, and
shall cause each other Credit Parties to, from time to time, execute and
deliver to Administrative Agent on behalf of Lenders, such additional
Collateral Documents, statements, documents, agreements and reports as it
may from time to time reasonably request to evidence, perfect or otherwise
implement or assure the security for repayment of the Obligations.
C. BORROWER'S RIGHTS OF SUBROGATION, ETC. Until the Obligations
shall have been paid in full in cash, Borrower and each other Credit Party
shall withhold exercise of any right of subrogation, contribution,
reimbursement or indemnity (whether contractual (including any such right
under the Guaranties), statutory, equitable, under common law or otherwise)
and any other rights to enforce any claims or remedies which they now have
or may hereafter have against any other Credit Party or any of the
Collateral or against any other guarantor or security for the Obligations,
in each case in respect of the Credit Documents and the performance by
Borrower of its obligations thereunder. Borrower further agrees that, to
the extent its agreement to withhold, and for each other Credit Party to
withhold, exercise of such rights of subrogation, contribution,
reimbursement and indemnity and such other rights as set forth above is
found by a court of competent jurisdiction to be void or voidable for any
reason, any such rights Borrower and each other Credit Party may have
against any other Credit Party, any Collateral or any other guarantor or
security for the Obligations shall be junior and subordinate to any rights
Administrative Agent or Lenders may have against such Credit Party, such
Collateral, such guarantor or such security.
D. SUBORDINATION OF OBLIGATIONS BETWEEN CREDIT PARTIES. Any
indebtedness of any Credit Party now or hereafter held by Borrower is
hereby subordinated to the Obligations of such Credit Party. If
Administrative Agent so requests after an Event of Default has occurred and
is continuing, such indebtedness shall be collected, enforced and received
by Borrower as trustee for Administrative Agent and Lenders and be paid
over to Administrative Agent and Lenders on account of the Obligations of
such Credit Party without affecting or impairing in any manner the
liability of Borrower hereunder.
2.10 RESERVED.
2.11 REPLACEMENT OF A LENDER.
If Borrower is obligated to pay to any Lender any additional
amount under subsections 2.6 (other than subsection 2.6D), 2.7 or 3.6 hereof, a
Lender defaults in its obligations to fund a Revolving Loan pursuant to this
Agreement, a Lender (a "NON-CONSENTING LENDER") refuses to consent to an
amendment, modification or waiver of this Agreement that, pursuant to subsection
10.6, requires consent of one hundred percent (100%) of the Lenders or one
hundred percent (100%) of the Lenders with Obligations directly affected or a
Lender becomes an Affected Lender (any such Lender, a "SUBJECT LENDER"), so long
as (i) no Potential Event of Default or Event of Default shall have occurred and
be continuing and Borrower has obtained a commitment from another Lender or an
Eligible Assignee to purchase at par the Subject Lender's Loans and assume the
Subject Lender's Commitments and all other obligations of the Subject Lender
hereunder, and (ii) if applicable, the Subject Lender is unwilling to withdraw
its request for payment of any additional amount under subsections 2.6 (other
than subsection 2.6D), 2.7 or 3.6 hereof and/or is unwilling to remedy its
default upon ten (10) days' prior written notice to the Subject Lender and
Administrative Agent, Borrower may require the Subject Lender to assign all of
its Loans and Commitments to such other Lender, Lenders, Eligible Assignee or
Eligible Assignees pursuant to the provisions of subsection 10.1B; provided
that, prior to or concurrently with such replacement, (1) the Subject Lender
shall have received payment in full of all principal, interest, fees and other
amounts (including all amounts under subsections 2.6 (other than subsection
2.6D), 2.7 or 3.6 hereof (if applicable) through such date of replacement and a
release from its obligations under the Credit
50
Documents, (2) the processing fee required to be paid by subsection 10.1B shall
have been paid to Administrative Agent, (3) all of the requirements for such
assignment contained in subsection 10.1B, including, without limitation, the
consent of Administrative Agent (if required) and the receipt by Administrative
Agent of an executed Assignment Agreement and other supporting documents, have
been fulfilled, and (4) in the event such Subject Lender is a Non-Consenting
Lender, each assignee shall consent, at the time of such assignment, to each
matter in respect of which such Subject Lender was a Non-Consenting Lender and
Borrower also requires each other Subject Lender that is a Non-Consenting Lender
to assign its Loans and Commitments.
SECTION 3. LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF
PARTICIPATIONS THEREIN.
A. LETTERS OF CREDIT. In addition to Borrower requesting that
Revolving Lenders make Revolving Loans pursuant to subsection 2.1A(ii),
Borrower may request, in accordance with the provisions of this subsection
3.1, from time to time during the period from the Closing Date to but
excluding the thirtieth (30th) day prior to the Final Maturity Date, that
the Issuing Lender issue Letters of Credit for the account of Borrower for
the purposes specified in the definitions of Commercial Letters of Credit
and Standby Letters of Credit. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of
Borrower herein set forth, the Issuing Lender may, but (except as provided
in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of
Credit in accordance with the provisions of this subsection 3.1; provided
that Borrower shall not request that the Issuing Lender issue (and the
Issuing Lender shall not issue):
(i) any Letter of Credit if, after giving effect to such issuance, the
Total Utilization of Revolving Loan Commitments would exceed the Revolving
Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance,
the Letter of Credit Usage would exceed Two Million Five Hundred Thousand
Dollars ($2,500,000);
(iii) any Standby Letter of Credit having an expiration date later
than the earlier of (a) ten (10) days prior to the Final Maturity Date and
(b) the date which is one year from the date of issuance of such Standby
Letter of Credit; provided that the immediately preceding clause (b) shall
not prevent such Issuing Lender from agreeing that a Standby Letter of
Credit will automatically be extended for one or more successive periods
not to exceed one year each unless the Issuing Lender elects not to extend
for any such additional period; provided that the immediately preceding
clause (b) shall not prevent such Issuing Lender from agreeing that a
Letter of Credit will automatically be extended for one or more successive
periods not to exceed one year each unless the Issuing Lender elects not to
extend for any such additional period; and provided, further that the
Issuing Lender shall not elect to extend such Standby Letter of Credit if
it has knowledge that an Event of Default has occurred and is continuing
(and has not been waived in accordance with subsection 10.6) at the time
the Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting
(a) trade payables or (b) any Indebtedness constituting "antecedent debt"
(as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a)
later than the earlier of (1) the date which is thirty (30) days prior to
the Final Maturity Date and (2) the date which is one hundred eighty (180)
days from the date of issuance of such Commercial Letter of
51
Credit or (b) that is otherwise unacceptable to the applicable Issuing
Lender in its reasonable discretion; or
(vi) any Letter of Credit after the Final Maturity Date; or
(vii) any Letter of Credit denominated in a currency other than
Dollars.
B. MECHANICS OF ISSUANCE.
(i) Notice of Issuance. Whenever Borrower desires the issuance of a
Letter of Credit, it shall deliver to Administrative Agent a Notice of
Issuance of Letter of Credit substantially in the form of EXHIBIT XIII
annexed hereto no later than 12:00 Noon (New York, New York time) at least
three (3) Business Days (in the case of Standby Letters of Credit) or five
(5) Business Days (in the case of Commercial Letters of Credit), or in each
case such shorter period as may be agreed to by the Issuing Lender in any
particular instance, in advance of the proposed date of issuance. The
Notice of Issuance of Letter of Credit shall specify (i) the proposed date
of issuance (which shall be a Business Day), (ii) whether the Letter of
Credit is to be a Standby Letter of Credit or a Commercial Letter of
Credit, (iii) the face amount of the Letter of Credit, (iv) the expiration
date of the Letter of Credit, (v) the name and address of the beneficiary,
and (vi) either the verbatim text of the proposed Letter of Credit or the
proposed terms and conditions thereof, including a precise description of
any documents and the verbatim text of any certificates to be presented by
the beneficiary which, if presented by the beneficiary prior to the
expiration date of the Letter of Credit, would require the Issuing Lender
to make payment under the Letter of Credit; provided that the Issuing
Lender, in its reasonable discretion, may require changes in the text of
the proposed Letter of Credit or any such documents or certificates; and
provided, further that no Letter of Credit shall require payment against a
conforming draft to be made thereunder on the same Business Day (under the
laws of the jurisdiction in which the office of such Issuing Lender to
which such draft is required to be presented is located) that such draft is
presented if such presentation is made after 10:00 A.M. (in the time zone
of such office of the Issuing Lender) on such Business Day.
Borrower shall promptly notify the Issuing Lender (and
Administrative Agent, if Administrative Agent is not such Issuing Lender)
prior to the issuance of any Letter of Credit in the event that any of the
matters to which Borrower is required to certify in the applicable Notice
of Issuance of Letter of Credit is no longer true and correct as of the
proposed date of issuance of such Letter of Credit, and upon the issuance
of any Letter of Credit Borrower shall be deemed to have re-certified, as
of the date of such issuance, as to the matters to which Borrower is
required to certify in the applicable Notice of Issuance of Letter of
Credit.
(ii) Determination of Issuing Lender. Upon receipt by Administrative
Agent of a Notice of Issuance of Letter of Credit pursuant to subsection
3.1B(i) requesting the issuance of a Letter of Credit, Administrative Agent
shall promptly so notify Borrower, and the Issuing Lender shall be
determined in accordance with the following provisions. In the event that
Administrative Agent, in its sole discretion, elects not to cause the
issuance of such Letter of Credit, Administrative Agent shall promptly so
notify Borrower, whereupon Borrower may request any other Revolving Lender
to issue such Letter of Credit by delivering to such Revolving Lender a
copy of the applicable Notice of Issuance of Letter of Credit. Any
Revolving Lender so requested to issue such Letter of Credit shall promptly
notify Borrower and Administrative Agent whether or not, in its sole
discretion, it has elected to issue such Letter of Credit, and any such
Revolving Lender that so elects to issue such Letter of Credit shall be
Issuing Lender with respect thereto. In the event that all other Revolving
Lenders shall have declined to issue such Letter of Credit,
52
notwithstanding the prior election of Administrative Agent not to cause the
issuance of such Letter of Credit, Administrative Agent shall be obligated
to issue such Letter of Credit and shall be the Issuing Lender with respect
thereto, notwithstanding the fact that the Letter of Credit Usage with
respect to such Letter of Credit and with respect to all other Letters of
Credit under which Administrative Agent is the Issuing Lender, when
aggregated with Administrative Agent's outstanding Revolving Loans, may
exceed Administrative Agent's Revolving Loan Commitment then in effect.
(iii) Issuance of Letter of Credit. Upon satisfaction or waiver (in
accordance with subsection 10.6) of the conditions set forth in subsection
4.5, the Issuing Lender shall issue the requested Letter of Credit in
accordance with such Issuing Lender's standard operating procedures.
(iv) Notification to Revolving Lenders. Upon the issuance of or
amendment to any Standby Letter of Credit the applicable Issuing Lender
shall promptly notify Administrative Agent and Borrower of such issuance or
amendment in writing and such notice shall be accompanied by a copy of such
Letter of Credit or amendment. Upon receipt of such notice, Administrative
Agent shall notify each Revolving Lender in writing of such issuance or
amendment and the amount of such Revolving Lender's respective
participation in such Standby Letter of Credit or amendment, and, if so
requested by a Revolving Lender, Administrative Agent shall provide such
Lender with a copy of such Letter of Credit or amendment. In the case of
Commercial Letters of Credit, the Issuing Lender will send by facsimile
transmission to Administrative Agent, promptly upon the first Business Day
of each week, a report of its daily aggregate maximum amount available for
drawing under Commercial Letters of Credit for the previous week. Upon
receipt of such report, Administrative Agent shall notify each Revolving
Lender in writing of the contents thereof.
C. REVOLVING LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF
CREDIT. Immediately upon the issuance of each Letter of Credit, each
Revolving Lender shall be deemed to, and hereby agrees to, have irrevocably
purchased from the Issuing Lender a participation in such Letter of Credit
and any drawings honored thereunder in an amount equal to such Revolving
Lender's Pro Rata Share of the maximum amount that is or at any time may
become available to be drawn thereunder.
3.2 LETTER OF CREDIT FEES.
Borrower agrees to pay the following amounts with respect to
Letters of Credit issued hereunder:
(i) with respect to each Letter of Credit (a) a fronting fee, payable
directly to the Issuing Lender for its own account, equal to the greater of
(X) Five Hundred Dollars ($500) and (Y) 0.25% per annum of the daily
maximum amount available to be drawn under such Letter of Credit and (b) a
letter of credit fee, payable to Administrative Agent for the account of
Revolving Lenders, equal to the product of (X) an annual rate equal to the
Applicable Margin for LIBOR Rate Loans in effect at the time of issuance of
such Letter of Credit and (Y) the daily maximum amount available to be
drawn under such Letter of Credit, in each case payable in arrears on and
to (but excluding) each March 15, June 15, September 15 and December 15 of
each year and computed on the basis of a 360-day year for the actual number
of days elapsed; and
(i) with respect to the issuance, amendment or transfer of each Letter
of Credit and each payment of a drawing made thereunder (without
duplication of the fees payable under clause
53
(i) above), documentary and processing charges payable directly to the
Issuing Lender for its own account in accordance with such Issuing Lender's
standard schedule for such charges in effect at the time of such issuance,
amendment, transfer or payment, as the case may be.
For purposes of calculating any fees payable under clauses (i) and (ii) of this
subsection 3.2, the daily maximum amount available to be drawn under any Letter
of Credit shall be determined as of the close of business on any date of
determination. Promptly upon receipt by Administrative Agent of any amount
described in clause (i)(b) of this subsection 3.2, Administrative Agent shall
distribute to each Revolving Lender its Pro Rata Share of such amount.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS DRAWN UNDER LETTERS OF
CREDIT.
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO DRAWINGS. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to
examine the documents delivered under such Letter of Credit with reasonable
care so as to ascertain whether they appear on their face to be in
accordance with the terms and conditions of such Letter of Credit.
B. REIMBURSEMENT BY BORROWER OF AMOUNTS DRAWN UNDER LETTERS OF
CREDIT. In the event an Issuing Lender has determined to honor a drawing
under a Letter of Credit issued by it, such Issuing Lender shall
immediately notify Borrower and Administrative Agent, and Borrower shall
reimburse such Issuing Lender on or before the Business Day immediately
following the date on which such drawing is honored (the "REIMBURSEMENT
DATE") in an amount in Dollars and in same day funds equal to the amount of
honored drawing; provided that, anything contained in this Agreement to the
contrary notwithstanding, (i) unless Borrower shall have notified
Administrative Agent and such Issuing Lender prior to 10:00 A.M. (New York,
New York time) on the date such drawing is honored that Borrower intends to
reimburse such Issuing Lender for the amount of such honored drawings with
funds other than the proceeds of Revolving Loans, Borrower shall be deemed
to have given a timely Notice of Borrowing to Administrative Agent
requesting Revolving Lenders to make Revolving Loans that are Base Rate
Loans on the Reimbursement Date in an amount in Dollars equal to the amount
of such honored drawings and (ii) subject to satisfaction or waiver of the
conditions specified in subsection 4.4B, Revolving Lenders shall, on the
Reimbursement Date, make Revolving Loans that are Base Rate Loans in the
amount of such honored drawing, the proceeds of which shall be applied
directly by Administrative Agent to reimburse such Issuing Lender for the
amount of such honored drawing; and provided, further that if for any
reason proceeds of Revolving Loans are not received by such Issuing Lender
on the Reimbursement Date in an amount equal to the amount of such honored
drawing, Borrower shall reimburse such Issuing Lender, on demand, in an
amount in same day funds equal to the excess of the amount of such payment
over the aggregate amount of such Revolving Loans, if any, which are so
received. Nothing in this subsection 3.3B shall be deemed to relieve any
Revolving Lender from its obligation to make Revolving Loans on the terms
and conditions set forth in this Agreement, and Borrower shall retain any
and all rights it may have against any Revolving Lender resulting from the
failure of such Revolving Lender to make such Revolving Loans under this
subsection 3.3B.
C. PAYMENT BY REVOLVING LENDERS OF UNREIMBURSED DRAWINGS UNDER
LETTERS OF CREDIT.
(i) Payment by Revolving Lenders. In the event that Borrower shall
fail for any reason to reimburse an Issuing Lender as provided in
subsection 3.3B in an amount equal to the amount of any drawing honored by
such Issuing Lender under a Letter of Credit issued by it, such Issuing
Lender shall promptly notify each other Revolving Lender of the
unreimbursed amount of
54
such drawing and of such other Revolving Lender's respective participation
therein based on such Revolving Lender's Pro Rata Share. Each Revolving
Lender shall make available to the Issuing Lender an amount equal to its
respective participation, in Dollars and in same day funds, at the office
of such Issuing Lender specified in such notice, not later than 12:00 Noon
(New York, New York time) on the first Business Day (under the laws of the
jurisdiction in which such office of such Issuing Lender is located) after
the date notified by the Issuing Lender. In the event that any Revolving
Lender fails to make available to the Issuing Lender on such Business Day
the amount of such Revolving Lender's participation in such Letter of
Credit as provided in this subsection 3.3C, such Issuing Lender shall be
entitled to recover such amount on demand from such Revolving Lender
together with interest thereon at the rate customarily used by such Issuing
Lender for the correction of errors among banks for three (3) Business Days
and thereafter at the Base Rate. Nothing in this subsection 3.3C shall be
deemed to prejudice the right of any Revolving Lender to recover from an
Issuing Lender any amounts made available by such Revolving Lender to such
Issuing Lender pursuant to this subsection 3.3C in the event that it is
determined by the final judgment of a court of competent jurisdiction that
the payment with respect to a Letter of Credit by such Issuing Lender in
respect of which payment was made by such Revolving Lender constituted
gross negligence or willful misconduct on the part of the Issuing Lender.
(ii) Distribution to Revolving Lenders of Reimbursements Received From
Borrower. In the event an Issuing Lender shall have been reimbursed by
other Revolving Lenders pursuant to subsection 3.3C(i) for all or any
portion of any drawing honored by such Issuing Lender under a Letter of
Credit issued by it, the Issuing Lender shall distribute to each other
Revolving Lender that has paid all amounts payable by it under subsection
3.3C(i) with respect to such drawing such other Revolving Lender's Pro Rata
Share of all payments subsequently received by the Issuing Lender from
Borrower in reimbursement of such drawing when such payments are received.
Any such distribution shall be made to a Revolving Lender at its primary
address set forth below its name on the appropriate signature page hereof
or at such other address as such Revolving Lender may request.
D. INTEREST ON AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
(i) Payment of Interest by Borrower. Borrower agrees to pay to an
Issuing Lender, with respect to drawings made under any Letters of Credit
issued by it, interest on the amount paid by such Issuing Lender in respect
of each such drawing from the date of such drawing to but excluding the
date such amount is reimbursed by Borrower (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to subsection
3.3B) at a rate per annum equal to (a) for the period from the date of such
drawing to but excluding the Reimbursement Date, the rate then in effect
under this Agreement with respect to Revolving Loans that are LIBOR Rate
Loans and (b) thereafter, a rate which is two (2%) per annum in excess of
the rate of interest otherwise payable under this Agreement with respect to
Revolving Loans that are LIBOR Rate Loans. Interest payable pursuant to
this subsection 3.3D(i) shall be computed on the basis of a 360-day year,
for the actual number of days elapsed in the period during which it accrues
and shall be payable on demand or, if no demand is made, on the date on
which the related drawing under a Letter of Credit is reimbursed in full.
(ii) Distribution of Interest Payments by Issuing Lender. Promptly
upon receipt by an Issuing Lender of any payment of interest pursuant to
subsection 3.3D(i) with respect to a drawing under a Letter of Credit
issued by it, (a) the Issuing Lender shall distribute to each other
Revolving Lender, out of the interest received by such Issuing Lender in
respect of the period from the date of such drawing to but excluding the
date on which such Issuing Lender is
55
reimbursed for the amount of such drawing (including any such reimbursement
out of the proceeds of Revolving Loans pursuant to subsection 3.3B), the
amount that such other Revolving Lender would have been entitled to receive
in respect of the letter of credit fee that would have been payable in
respect of such Letter of Credit for such period pursuant to subsection 3.2
if no drawing had been made under such Letter of Credit, and (b) in the
event an Issuing Lender shall have been reimbursed by other Revolving
Lenders pursuant to subsection 3.3C(i) for all or any portion of such
drawing, such Issuing Lender shall distribute to each other Revolving
Lender which has paid all amounts payable by it under subsection 3.3C(i)
with respect to such drawing such other Revolving Lender's Pro Rata Share
of any interest received by the Issuing Lender in respect of that portion
of such drawing so reimbursed by other Revolving Lenders for the period
from the date on which the Issuing Lender was so reimbursed by other
Revolving Lenders to but excluding the date on which such portion of such
drawing is reimbursed by Borrower. Any such distribution shall be made to a
Revolving Lender at its primary address set forth below its name on the
appropriate signature page hereof or at such other address as such
Revolving Lender may request.
3.4 OBLIGATIONS ABSOLUTE.
The obligation of Borrower to reimburse an Issuing Lender for
drawings made under the Letters of Credit issued by it and to repay any
Revolving Loans made by Lenders pursuant to subsection 3.3B and the obligations
of Revolving Lenders under subsection 3.3C(i) shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right which
Borrower or any Revolving Lender may have at any time against a beneficiary
or any transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), an Issuing Lender or other Revolving Lender or
any other Person or, in the case of a Revolving Lender, against Borrower,
whether in connection with this Agreement, the transactions contemplated
herein or any unrelated transaction (including any underlying transaction
between Borrower or one of its Subsidiaries and the beneficiary for which
any Letter of Credit was procured);
(iii) any draft, demand, certificate or other document presented under
any 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) payment by an Issuing Lender under any Letter of Credit against
presentation of a demand, draft or certificate or other document that does
not substantially comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Borrower or any
of its Subsidiaries;
(vi) any breach of this Agreement or any other Credit Document by any
party thereto;
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing; or
56
(viii) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing;
provided, in each case, that payment by an Issuing Lender under the applicable
Letter of Credit shall not have constituted gross negligence or willful
misconduct of such Issuing Lender under the circumstances in question (as
determined by a final judgment of a court of competent jurisdiction).
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDER'S DUTIES.
A. INDEMNIFICATION. Without duplication of amounts payable under
subsection 2.7B or subsection 3.6, Borrower hereby agrees to protect,
indemnify, pay and save harmless each Issuing Lender from and against any
and all claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable fees, expenses and disbursements of counsel)
that an Issuing Lender may incur or be subject to as a consequence, direct
or indirect, of (i) the issuance of any Letter of Credit by such Issuing
Lender, other than as a result of (a) the gross negligence or willful
misconduct of such Issuing Lender as determined by a final judgment of a
court of competent jurisdiction or (b) subject to the following clause
(ii), the wrongful dishonor by such Issuing Lender of a proper demand for
payment made under any Letter of Credit issued by it or (ii) the failure of
such Issuing Lender to honor a drawing under any such Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of any present
or future de jure or de facto government or Government Authority (all such
acts or omissions herein called "GOVERNMENTAL ACTS").
B. NATURE OF ISSUING LENDER'S DUTIES. As between Borrower and
each Issuing Lender, Borrower assumes all risks of the acts and omissions
of, or misuse of the Letters of Credit issued by an Issuing Lender by, the
respective beneficiaries of such Letters of Credit. In furtherance and not
in limitation of the foregoing, the Issuing Lender shall not be responsible
for: (i) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any document submitted by any party in connection with the
application for and issuance of any such Letter of Credit, even if it
should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign
any such Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective
for any reason; (iii) failure of the beneficiary of any such Letter of
Credit to comply fully with any conditions required in order to draw upon
such Letter of Credit; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex,
facsimile, email or otherwise, whether or not they be in cipher; (v) errors
in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any such Letter of Credit or of the proceeds thereof; (vii)
the misapplication by the beneficiary of any such Letter of Credit of the
proceeds of any drawing under such Letter of Credit; or (viii) any
consequences arising from causes beyond the control of an Issuing Lender,
including any Governmental Acts, and none of the above shall affect or
impair, or prevent the vesting of, any of the Issuing Lender's rights or
powers hereunder.
In furtherance and extension and not in limitation of the
specific provisions set forth in the first paragraph of this subsection
3.5B, any action taken or omitted by an Issuing Lender under or in
connection with the Letters of Credit issued by it or any documents and
certificates delivered thereunder, if taken or omitted in good faith, shall
not put such Issuing Lender under any resulting liability to Borrower.
Notwithstanding anything to the contrary contained in this
subsection 3.5, Borrower shall retain any and all rights it may have
against an Issuing Lender for any liability arising solely
57
out of the gross negligence or willful misconduct of such Issuing Lender,
as determined by a final judgment of a court of competent jurisdiction.
3.6 INCREASED COSTS AND TAXES RELATING TO LETTERS OF CREDIT.
Subject to the provisions of subsection 2.7B (which shall be
controlling with respect to the matters covered thereby), in the event that an
Issuing Lender or any Revolving Lender shall determine (which determination
shall, absent manifest error, be final and conclusive and binding upon all
parties hereto) that any change in any law, treaty or governmental rule,
regulation or order, or any change therein or in the interpretation,
administration or application thereof (including the introduction of any new
law, treaty or governmental rule, regulation or order), or any determination of
a court or Government Authority, in each case that becomes effective after the
date hereof, or compliance by such Issuing Lender or Revolving Lender with any
guideline, request or directive first issued or made after the date hereof by
any central bank or other governmental or quasi-governmental authority (whether
or not having the force of law):
(i) subjects such Issuing Lender or Revolving Lender (or its
applicable lending or letter of credit office) to any additional Tax with
respect to the issuing or maintaining of any Letters of Credit or the
purchasing or maintaining of any participations therein or any other
obligations under this Section 3, whether directly or by such being imposed
on or suffered by such Issuing Lender (as determined by such Issuing
Lender);
(ii) imposes, modifies or holds applicable any reserve (including any
marginal, emergency, supplemental, special or other reserve), special
deposit, compulsory loan, FDIC insurance or similar requirement in respect
of any Letters of Credit issued by such Issuing Lender or participations
therein purchased by any Revolving Lender; or
(iii) imposes any other condition (other than with respect to a Tax
matter) on or affecting such Issuing Lender or Revolving Lender (or its
applicable lending or letter of credit office) regarding this Section 3 or
any Letter of Credit or any participation therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Revolving Lender of agreeing to issue, issuing or maintaining any
Letter of Credit or agreeing to purchase, purchasing or maintaining any
participation therein or to reduce any amount received or receivable by such
Issuing Lender or Revolving Lender (or its applicable lending or letter of
credit office) with respect thereto; then, in any case, Borrower shall promptly
pay to such Issuing Lender or Revolving Lender, upon receipt of the statement
referred to in the next sentence, such additional amount or amounts as may be
necessary to compensate such Issuing Lender or Revolving Lender for any such
increased cost or reduction in amounts received or receivable hereunder,
provided that any such additional amounts shall be without duplication of
amounts to which such Issuing Lender or Revolving Lender may be entitled under
subsection 2.7B. Such Issuing Lender or Revolving Lender shall deliver to
Borrower a written statement, setting forth in reasonable detail the basis for
calculating the additional amounts owed to such Issuing Lender or Revolving
Lender under this subsection 3.6, which statement shall be conclusive and
binding upon all parties hereto absent manifest error.
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of Letters
of Credit hereunder are subject to the satisfaction of the following conditions:
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4.1 CONDITIONS TO CLOSING.
The obligations of Lenders to enter into this Agreement and the
other Credit Documents on the Closing Date are, in addition to the conditions
precedent specified in subsection 4.4, subject to prior or concurrent
satisfaction of the following conditions:
A. CREDIT PARTY DOCUMENTS. On or before the Closing Date,
Borrower shall, and shall cause each other Credit Party to, deliver to
Lenders (or to Administrative Agent with sufficient originally executed
copies, where appropriate, for each Lender) the following with respect to
each of Borrower or such Credit Parties, as the case may be, each, unless
otherwise noted, dated the Closing Date:
(i) Copies of the Organizational Documents of such Person, certified
by the Secretary of State of its jurisdiction of organization or, if such
document is of a type that may not be so certified, certified by the
secretary or similar officer of the applicable Credit Party, together with
a good standing certificate from the Secretary of State of its jurisdiction
of organization and each other state in which such Person is qualified to
do business and, to the extent generally available, a certificate or other
evidence of good standing as to payment of any applicable franchise or
similar taxes from the appropriate taxing authority of each of such
jurisdictions, each dated a recent date on or prior to the Closing Date
(except for the certificate or other evidence of good standing as to
payment of applicable franchise or similar taxes from the Illinois
Department of Revenue, which Borrower shall deliver to Administrative Agent
no later than forty-five (45) days following the Closing Date);
(ii) Resolutions of the Governing Body of such Person approving and
authorizing the execution, delivery and performance of this Agreement and
the other Credit Documents to which it is a party, certified as of the
Closing Date by the secretary or similar officer of such Person as being in
full force and effect without modification or amendment;
(iii) Signature and incumbency certificates of the officers of such
Person executing the Agreement and the other Credit Documents to which it
is a party;
(iv) Executed originals of this Agreement; and
(v) Such other documents as Administrative Agent may reasonably
request.
B. FEES. Borrower shall have paid to Administrative Agent, for
distribution (as appropriate) to Administrative Agent and Lenders, all fees
that Borrower has agreed in writing to pay on the Closing Date.
C. CORPORATE AND CAPITAL STRUCTURE; OWNERSHIP.
(i) Corporate Structure. The corporate organizational structure,
capital structure and ownership of Borrower and its Subsidiaries, if any,
on the Closing Date shall be as set forth on SCHEDULE 4.1C annexed hereto.
(ii) Management. The management structure of Borrower and its
Subsidiaries, if any, on the Closing Date shall be as set forth on SCHEDULE
4.1C annexed hereto.
D. RELATED AGREEMENTS. Administrative Agent shall have received a
fully executed or conformed complete and correct copy of each Related
Agreement executed on or prior to
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the Closing Date, and any documents executed in connection therewith, and
each Related Agreement shall be (i) satisfactory in form and substance to
Administrative Agent and (ii) in full force and effect, and no provision
thereof shall have been modified or waived in any respect determined by
Administrative Agent to be material, in each case without the consent of
Administrative Agent, and Administrative Agent shall have received an
Officer's Certificate to the effect set forth in clause (ii).
E. MERGER DOCUMENTS. Administrative Agent shall have received
copies of the Merger Agreement and all other Merger Documents executed on
or prior to the Closing Date, together with all exhibits, schedules and
annexes thereto, accompanied by an Officer's Certificate certifying that
the same are true, correct and complete copies thereof, each of which shall
be in form and substance satisfactory to Administrative Agent. In addition
to, and not in limitation of, the foregoing, Administrative Agent shall be
reasonably satisfied with (i) the final structure of the Merger
Transaction, and (ii) the sources and uses of the proceeds to be used to
effect the Merger Transaction.
F. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS.
Borrower shall have delivered to Administrative Agent an Officer's
Certificate, in form and substance satisfactory to Administrative Agent, to
the effect that: (i) the representations and warranties contained in this
Agreement and the other Credit Documents executed on or prior to the
Closing Date are true, correct and complete in all material respects on and
as of the Closing Date to the same extent as though made on and as of that
date (or, to the extent such representations and warranties specifically
relate to an earlier date, that such representations and warranties were
true, correct and complete in all material respects on and as of such
earlier date), provided, that, if a representation and warranty is
qualified as to materiality or Material Adverse Effect, with respect to
such representation and warranty the materiality or Material Adverse Effect
qualifier set forth above shall be disregarded for purposes of this
condition; and (ii) Borrower shall have performed in all material respects
all covenants and agreements and satisfied all conditions which this
Agreement or any other Credit Document provides shall be performed or
satisfied by it on or before the Closing Date except as otherwise disclosed
to and agreed to in writing by Administrative Agent, provided, that, if a
covenant, agreement or condition is qualified as to materiality or Material
Adverse Effect, with respect to such covenant, agreement or condition the
materiality or Material Adverse Effect qualifier set forth above shall be
disregarded for purposes of this condition.
G. FINANCIAL STATEMENTS; PRO FORMA FINANCIAL STATEMENTS.
(i) On or before the Closing Date, Administrative Agent shall have
received:
(a) (1) the audited balance sheets and the related statements of
income and cash flows of Borrower for the Fiscal Years ended October
31, 2004, and October 31, 2005; and (2) the unaudited balance sheet of
Borrower as of June 30, 2006, and the related statements of income and
cash flows for the eight (8) month period then ended, in reasonable
detail;
(b) a pro forma balance sheet of Borrower as of June 30, 2006,
prepared in accordance with GAAP and reflecting the financings and the
other transactions contemplated by this Agreement and the other Credit
Documents and the Related Agreements to occur on the Closing Date,
which pro forma balance sheet shall be in form and substance
reasonably satisfactory to Administrative Agent;
(c) a statement of income of Borrower for the trailing twelve
(12) month period ended as at June 30, 2006, prepared in accordance
with GAAP;
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(d) annual cash flow projections of Borrower and its Subsidiaries
on a consolidated basis, without giving effect to the Merger
Transaction, through and including September 30, 2012, which
projections shall be in form and substance reasonably satisfactory to
Administrative Agent; and
(e) a certificate of the chief financial officer, executive vice
president, vice chairman or other Officer of Borrower acceptable to
Administrative Agent to the effect that (1) the financial statements
described in clauses (a), (b) and (c) above have been prepared in
accordance with GAAP consistently applied and fairly present, in all
material respects, the financial condition of Borrower and its
Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, subject to
(in the case of unaudited financial statements) the absence of
footnote disclosure and changes resulting from audit and normal
year-end adjustments (which will not be material in the aggregate),
(2) the pro forma balance sheet described in clause (b) above has been
prepared in accordance with GAAP consistently applied and fairly
presents in all material respects the financial condition of Borrower
as of the date thereof after giving effect to the financings and the
other transactions contemplated by this Agreement and the other Credit
Documents and the Related Agreements to occur on the Closing Date; and
(3) the projections described in clause (d) above are reasonable
estimates of the future financial performance of Borrower and its
Subsidiaries to the date thereof based upon the historical performance
and all current information available and show that Borrower shall be
in compliance with the financial covenants set forth in subsection 7.6
through September 30, 2012.
(ii) On or before the Closing Date, Administrative Agent shall have
received:
(a) (1) the audited balance sheets and the related statements of
income and cash flows of WRP and its Subsidiaries on a consolidated
basis for the Fiscal Years ended December 31, 2004, and December 31,
2005; and (2) the unaudited balance sheets as of June 30, 2006, and
the related statements of income and cash flows for the six (6) month
period then ended, of WRP and its Subsidiaries on a consolidated
basis, in reasonable detail;
(b) annual cash flow projections of Borrower and its Subsidiaries
and WRP and its Subsidiaries on a consolidated basis, after giving
effect to the Merger Transaction, through and including September 30,
2012, which shall be in form and substance reasonably satisfactory to
Administrative Agent; and
(c) a certificate of the chief financial officer, vice chairman
or other Officer of WRP acceptable to Administrative Agent to the
effect that (1) the financial statements described in clause (a) above
have been prepared in accordance with GAAP consistently applied,
except for the adoption of the liquidation basis of accounting for
financial statement periods on and after November 18, 2005, and fairly
present, in all material respects, the financial condition of WRP and
its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, subject to
(in the case of unaudited financial statements) the absence of
footnote disclosure and changes resulting from audit and normal
year-end adjustments (which will not be material in the aggregate),
and (2) the projections described in clause (b) above are reasonable
estimates of the future financial performance, on a consolidated
basis, of the Borrower and its Subsidiaries and WRP and its
Subsidiaries to the date thereof based upon the historical performance
and all current information available as represented to
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WRP by the management of the Borrower as it relates to the Borrower in
consolidation with WRP, and that Borrower shall be in compliance with
the financial covenants set forth in subsection 7.6 through September
30, 2012.
H. SATISFACTION WITH EBITDA. On or before the Closing Date,
Administrative Agent shall have received an Officer's Certificate of
Borrower, dated as of the Closing Date, demonstrating to the Administrative
Agent's satisfaction no less than Five Million Dollars ($5,000,000) of
EBITDA for the trailing twelve (12) consecutive month period ended June 30,
2006, for which financial statements are available, and Administrative
Agent shall be satisfied with all permitted adjustments to EBITDA.
I. NO MATERIAL ADVERSE EFFECT. Since October 31, 2005, no event
or change has occurred that has resulted in or evidences, or would
reasonably be likely to result in or evidence, either individually or in
the aggregate, a Material Adverse Effect.
J. FINANCIAL CONDITION CERTIFICATE. On the Closing Date,
Administrative Agent and Lenders shall have received a Financial Condition
Certificate from the chief financial officer or executive vice president of
Borrower dated the Closing Date, substantially in the form of EXHIBIT VII
annexed hereto and with appropriate attachments, in each case demonstrating
that, after giving effect to the transactions contemplated by this
Agreement and any other Credit Documents and the Related Agreements on the
Closing Date, Borrower will be Solvent.
K. NECESSARY GOVERNMENTAL AUTHORIZATIONS AND CONSENTS; EXPIRATION
OF WAITING PERIODS, ETC. Borrower shall have obtained all Governmental
Authorizations and all consents of other Persons, in each case that are
necessary or advisable in connection with the execution and delivery of
this Agreement and the other Credit Documents and the Related Agreements
executed and delivered on the Closing Date and the continued operation of
the businesses conducted by any or all of Borrower and its Subsidiaries in
substantially the same manner as conducted prior to the Closing Date. Each
such Governmental Authorization and consent shall be in full force and
effect, except in a case where the failure to obtain or maintain a
Governmental Authorization or consent, either individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect. No action, request for stay, petition for review or rehearing,
reconsideration, or appeal with respect to any of the foregoing shall be
pending, and the time for any applicable Government Authority to take
action to set aside its consent on its own motion shall have expired.
L. COMPLETION OF PROCEEDINGS. All corporate and other proceedings
taken or to be taken in connection with the transactions contemplated
hereby on the Closing Date and all documents incidental thereto not
previously found acceptable by Administrative Agent, acting on behalf of
Lenders, and its counsel shall be satisfactory in form and substance to
Administrative Agent and such counsel, and Administrative Agent and such
counsel shall have received all such counterpart originals or certified
copies of such documents as Administrative Agent may reasonably request.
M. PATRIOT ACT DISCLOSURES. The Administrative Agent and each
Lender shall have received all PATRIOT Act Disclosures requested by any of
them prior to the execution and delivery of this Agreement.
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4.2 CONDITIONS TO INITIAL FUNDING DATE.
The obligations of Lenders to make Loans on the Initial Funding
Date are, in addition to the conditions precedent specified in subsection 4.4,
subject to prior or concurrent satisfaction of the following conditions:
A. CREDIT PARTY DOCUMENTS. On or before the Initial Funding Date,
Borrower shall, and shall cause each other Credit Party to, deliver to
Lenders (or to Administrative Agent with sufficient originally executed
copies, where appropriate, for each Lender) the following with respect to
each of Borrower or such Credit Parties, as the case may be, each, unless
otherwise noted, dated the Initial Funding Date:
(i) Copies of the Organizational Documents of such Person, certified
by the Secretary of State of its jurisdiction of organization or, if such
document is of a type that may not be so certified, certified by the
secretary or similar officer of the applicable Credit Party, together with
a good standing certificate from the Secretary of State of its jurisdiction
of organization and each other state in which such Person is qualified to
do business and, to the extent generally available, a certificate or other
evidence of good standing as to payment of any applicable franchise or
similar taxes from the appropriate taxing authority of each of such
jurisdictions, each dated a recent date on or prior to the Initial Funding
Date (provided that if the Organizational Documents of such Person have not
changed since the Closing Date, such Person may deliver to Administrative
Agent an Officer's Certificate, dated as of the Initial Funding Date,
certifying that no such changes have occurred since the Closing Date);
(ii) Resolutions of the Governing Body of such Person approving and
authorizing the execution, delivery and performance of the Credit Documents
to which it is a party, certified as of the Initial Funding Date by the
secretary or similar officer of such Person as being in full force and
effect without modification or amendment;
(iii) Signature and incumbency certificates of the officers of such
Person executing the Credit Documents to which it is a party;
(iv) Executed originals of the Credit Documents which such Person is a
party; and
(v) Such other documents as Administrative Agent may reasonably
request.
B. FEES. Borrower shall have paid all fees and expenses that
Borrower has agreed to pay under this Agreement or any other Credit
Document on or prior to the Initial Funding Date.
C. PAYMENT AND TERMINATION OF EXISTING SENIOR DEBT AND OTHER
INDEBTEDNESS. On or before the Initial Funding Date, Borrower and any other
Credit Parties shall repay all principal and interest on outstanding loans
and other obligations owed under or related to the Existing Senior Debt and
all other Indebtedness not permitted by subsection 7.1 and shall terminate
the obligation to lend or make other extensions of credit to Borrower and
any other such Credit Party under the terms and provisions of agreements
related to such Existing Senior Debt and other Indebtedness. Concurrently
with such repayment, any Liens granted pursuant to the Existing Senior Debt
and other Indebtedness or the documents delivered thereunder shall be
released. The administrative agent or lenders under the Existing Senior
Debt and other Indebtedness shall have delivered to Administrative Agent
written acknowledgements of such terminations and releases. All of the
foregoing shall be accomplished in form and substance satisfactory to
Administrative Agent.
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D. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS.
Borrower shall have delivered to Administrative Agent an Officer's
Certificate, in form and substance satisfactory to Administrative Agent, to
the effect that: (i) the representations and warranties contained in this
Agreement and the other Credit Documents executed on or prior to the
Initial Funding Date are true, correct and complete in all material
respects on and as of the Initial Funding Date to the same extent as though
made on and as of that date (or, to the extent such representations and
warranties specifically relate to an earlier date, that such
representations and warranties were true, correct and complete in all
material respects on and as of such earlier date), provided, that, if a
representation and warranty is qualified as to materiality or Material
Adverse Effect, with respect to such representation and warranty the
materiality or Material Adverse Effect qualifier set forth above shall be
disregarded for purposes of this condition; and (ii) Borrower shall have
performed in all material respects all covenants and agreements and
satisfied all conditions which this Agreement or any other Credit Document
provides shall be performed or satisfied by it on or before the Initial
Funding Date except as otherwise disclosed to and agreed to in writing by
Administrative Agent, provided, that, if a covenant, agreement or condition
is qualified as to materiality or Material Adverse Effect, with respect to
such covenant, agreement or condition the materiality or Material Adverse
Effect qualifier set forth above shall be disregarded for purposes of this
condition.
E. OPINIONS OF COUNSEL TO CREDIT PARTIES. Lenders shall have
received originally executed copies of one or more favorable written
opinions of counsel for Borrower and the other Credit Parties, in form and
substance reasonably satisfactory to Administrative Agent and its counsel,
dated as of the Initial Funding Date (this Credit Agreement constituting a
written request by Borrower and the other Credit Parties to such counsel to
deliver such opinions to Lenders).
F. FINANCIAL CONDITION CERTIFICATE. On the Initial Funding Date,
Administrative Agent and Lenders shall have received a Financial Condition
Certificate from the chief financial officer or executive vice president of
Borrower dated the Initial Funding Date, substantially in the form of
EXHIBIT VII annexed hereto and with appropriate attachments, in each case
demonstrating that, after giving effect to the transactions contemplated by
this Agreement and any other Credit Documents and the Related Agreements on
the Initial Funding Date, Borrower will be Solvent.
G. EVIDENCE OF INSURANCE. Administrative Agent shall have
received a certificate from Borrower's insurance broker or other evidence
satisfactory to it that all insurance required to be maintained pursuant to
subsection 6.4 is in full force and effect and that Administrative Agent on
behalf of Lenders has been named as additional insured and/or loss payee
thereunder to the extent required under subsection 6.4.
H. NECESSARY GOVERNMENTAL AUTHORIZATIONS AND CONSENTS; EXPIRATION
OF WAITING PERIODS, ETC. Borrower shall have obtained all Governmental
Authorizations and all consents of other Persons, in each case that are
necessary or advisable in connection with the execution and delivery of
this Agreement and the other Credit Documents and the Related Agreements
executed and delivered on the Initial Funding Date and the continued
operation of the businesses conducted by any or all of Borrower and its
Subsidiaries in substantially the same manner as conducted prior to the
Initial Funding Date. Each such Governmental Authorization and consent
shall be in full force and effect, except in a case where the failure to
obtain or maintain a Governmental Authorization or consent, either
individually or in the aggregate, would not reasonably be expected to
result in a Material Adverse Effect. No action, request for stay, petition
for review or rehearing, reconsideration, or appeal with respect to any of
the foregoing shall be pending, and the time for any applicable Government
Authority to take action to set aside its consent on its own motion shall
have expired.
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I. SECURITY INTERESTS. Administrative Agent shall have received
evidence satisfactory to it that Borrower and its Subsidiaries, if any,
(and the parties to the Pledge Agreement if the Initial Funding Date is
also the Merger Transaction Funding Date) shall have taken or caused to be
taken all such actions, executed and delivered or caused to be executed and
delivered all such agreements, documents and instruments, and made or
caused to be made all such filings and recordings (other than the filing or
recording of items described in clauses (ii), (iii) and (iv) below) that
may be necessary or, in the opinion of Administrative Agent, desirable in
order to create in favor of Administrative Agent, for the benefit of
Lenders, a valid and (upon such filing and recording) perfected First
Priority security interest in the entire Collateral, except for any
Collateral that is not required to be so perfected under the express terms
of the Credit Documents. Such actions shall include the following:
(i) Stock Certificates and Instruments. Delivery to Administrative
Agent of (a) certificates (which certificates shall be accompanied by
irrevocable undated stock powers, duly endorsed in blank and otherwise
satisfactory in form and substance to Administrative Agent), if any,
representing all Capital Stock pledged pursuant to Pledge Agreement (if the
Initial Funding Date is also the Merger Transaction Funding Date) and the
Security Agreement and (b) all promissory notes or other instruments (duly
endorsed, where appropriate, in a manner satisfactory to Administrative
Agent) evidencing any Collateral;
(ii) Lien Searches and UCC Termination Statements. Delivery to
Administrative Agent of (a) the results of a recent search, by a Person
satisfactory to Administrative Agent, of all effective UCC financing
statements and fixture filings and all judgment and tax lien filings that
may have been made with respect to any personal or mixed property of any
Credit Party, together with copies of all such filings disclosed by such
search, and (b) UCC termination statements duly executed by all applicable
Persons for filing in all applicable jurisdictions as may be necessary to
terminate any effective UCC financing statements or fixture filings
disclosed in such search (other than any such financing statements or
fixture filings in respect of Liens permitted to remain outstanding
pursuant to the terms of this Agreement);
(iii) UCC Financing Statements and Fixture Filings. Delivery to
Administrative Agent of UCC financing statements and, where appropriate,
fixture filings, duly executed by each applicable Credit Party (if
required) with respect to all personal and mixed property Collateral of
such Credit Party, for filing in all jurisdictions as may be necessary or,
in the opinion of Administrative Agent, desirable to perfect the security
interests created in such Collateral pursuant to the Collateral Documents;
(iv) PTO Cover Sheets, Etc. Delivery to Administrative Agent of all
cover sheets or other documents or instruments required to be filed with
the PTO in order to create or perfect Liens in respect of the registered IP
Collateral;
(v) Domain Names. Delivery to Administrative Agent of evidence that
each material domain name of Borrower or any other Credit Party is freely
assignable or obtain a duly executed collateral assignment of each material
internet domain name of Borrower or any other Credit Party, together with
acknowledgements of such assignments from the issuer thereof, each to be in
form and substance satisfactory to Administrative Agent; and
(vi) Control Agreements. In the case of material Deposit Accounts
designated by Administrative Agent, delivery to Administrative Agent of
Control Agreements with financial institutions and other Persons in order
to perfect Liens in respect of Deposit Accounts designated
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by Administrative Agent, securities accounts and other Collateral pursuant
to the Collateral Documents;
(vii) Landlord Consents and Estoppels; Recorded Leasehold Interests.
In the case of Material Leasehold Property designated by Administrative
Agent, (a) a Leasehold Collateral Assignment, (b) a Landlord Consent and
Estoppel with respect thereto and (c) evidence that such Leasehold Property
is a Recorded Leasehold Interest; and
(viii) Opinions of Local Counsel. Delivery to Administrative Agent of
an opinion of counsel (which counsel shall be reasonably satisfactory to
Administrative Agent) under the laws of each jurisdiction in which any
Credit Party is located with respect to the creation and perfection of the
security interests in favor of Administrative Agent in such Collateral and
such other matters governed by the laws of such jurisdiction regarding such
security interests as Administrative Agent may reasonably request, in each
case in form and substance reasonably satisfactory to Administrative Agent.
J. COMPLETION OF PROCEEDINGS. All corporate and other proceedings
taken or to be taken in connection with the transactions contemplated
hereby on or prior to the Initial Funding Date and all documents incidental
thereto not previously found acceptable by Administrative Agent, acting on
behalf of Lenders, and its counsel shall be satisfactory in form and
substance to Administrative Agent and such counsel, and Administrative
Agent and such counsel shall have received all such counterpart originals
or certified copies of such documents as Administrative Agent may
reasonably request.
4.3 CONDITIONS TO MERGER TRANSACTION FUNDING.
The obligations of Lenders to make Loans on the Merger
Transaction Funding Date are, in addition to the conditions precedent specified
in subsection 4.4, subject to prior or concurrent satisfaction of the conditions
precedent specified in subsection 4.2 if not previously satisfied and the
following conditions:
A. CREDIT PARTY DOCUMENTS. On or before the Merger Transaction
Funding Date, Borrower shall, and shall cause each other Credit Party to,
and WRP shall, deliver to Lenders (or to Administrative Agent with
sufficient originally executed copies, where appropriate, for each Lender)
the following with respect to each such Person, each, unless otherwise
noted, dated the Merger Transaction Funding Date:
(i) Copies of the Organizational Documents of such Person, certified
by the Secretary of State of its jurisdiction of organization or, if such
document is of a type that may not be so certified, certified by the
secretary or similar officer of such Person, together with a good standing
certificate from the Secretary of State of its jurisdiction of organization
and each other state in which such Person is qualified to do business and,
to the extent generally available, a certificate or other evidence of good
standing as to payment of any applicable franchise or similar taxes from
the appropriate taxing authority of each of such jurisdictions, each dated
a recent date on or prior to the Merger Transaction Funding Date;
(ii) Resolutions of the Governing Body of such Person approving and
authorizing the execution, delivery and performance of the Merger Documents
and, in the case of WRP, the Pledge Agreement, to which it is a party,
certified as of the Merger Transaction Funding Date by the secretary or
similar officer of such Person as being in full force and effect without
modification or amendment; and
66
(iii) Such other documents as Administrative Agent may reasonably
request.
B. FEES. Borrower shall have paid all fees and expenses that
Borrower has agreed to pay under this Agreement or any other Credit
Document. Borrower and WRP shall have made provision for the payment of all
transaction fees and expenses related to the Merger Transaction.
C. CORPORATE AND CAPITAL STRUCTURE; OWNERSHIP.
(i) Corporate Structure. The corporate organizational structure,
capital structure and ownership of Borrower and its Subsidiaries, if any,
after giving effect to the Merger Transaction, shall be as set forth on
SCHEDULE 4.3C annexed hereto.
(ii) Management. The management structure of Borrower and its
Subsidiaries, if any, after giving effect to the Merger Transaction, shall
be as set forth on SCHEDULE 4.3C annexed hereto.
D. CONSUMMATION OF MERGER TRANSACTION.
(i) Administrative Agent shall have received copies of the Merger
Agreement and all other Merger Documents (including, without limitation,
resolutions of the Board of Directors of Borrower and WRP, fairness
opinions, proxy filings, Xxxx-Xxxxx-Xxxxxx approval, if required, approval
of the Securities and Exchange Commission, shareholder approval and a tax
sharing agreement with WRP), together with all exhibits, schedules and
annexes thereto, accompanied by an Officer's Certificate certifying that
the same are true, correct and complete copies thereof, each of which shall
be in form and substance satisfactory to Administrative Agent. In addition
to, and not in limitation of, the foregoing, Administrative Agent shall be
reasonably satisfied with (i) the final structure of the Merger
Transaction, and (ii) the sources and uses of the proceeds to be used to
effect the Merger Transaction, including, without limitation, evidence
satisfactory to Administrative Agent that WRP shall have contributed
sufficient funds for the payment of all of the "Cash Consideration" (as
defined and used in the Merger Agreement) for the Merger Transaction and
for the payment of all transaction fees and expenses in connection with the
Merger Transaction, which, in either case, are not funded by Loans;
(ii) All conditions to the Merger Transaction set forth in the Merger
Agreement and all of the other Merger Documents shall have been satisfied
in all material respects or the fulfillment of any such conditions shall
have been waived with the consent of Administrative Agent and Requisite
Lenders;
(iii) The Merger Transaction shall have become effective in accordance
with the terms of the Merger Agreement and all of the other Merger
Documents; and
(iv) Administrative Agent shall have received an Officers' Certificate
of Borrower to the effect set forth in clauses (ii) and (iii) above and
stating that Borrower and its applicable Subsidiaries will proceed to
consummate the Merger Transaction immediately upon the making of the Loans
on the Merger Transaction Funding Date.
E. LEVERAGE RATIO. After giving effect to the transactions
occurring on the Merger Transaction Funding Date, including the Loans made
on the Merger Transaction Funding Date and the consummation of the Merger
Transaction, and subject to subsection 7.6B, the Leverage Ratio (with the
EBITDA in respect thereof determined as of the end of the most recent
Fiscal Quarter in respect of which financial statements have been delivered
to the Administrative Agent) shall not
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exceed 5.00:1.00, and Borrower shall have delivered to Administrative Agent
an Officer's Certificate, in form and substance reasonably satisfactory to
Administrative Agent, to such effect and demonstrating such compliance,
including all appropriate calculations and attachments.
F. CHANGE OF FISCAL YEAR. On or before the Merger Transaction
Funding Date, Administrative Agent shall have received an Officer's
Certificate of Borrower, dated as of the Merger Transaction Funding Date,
certifying and providing evidence to the Administrative Agent's
satisfaction that Borrower shall have changed its Fiscal Year end from
October 31 to December 31.
G. EMPLOYEE OPTIONS. On or before the Merger Transaction Funding
Date, Administrative Agent shall have received an Officer's Certificate of
Borrower, dated as of the Merger Transaction Funding Date, certifying and
providing evidence to the Administrative Agent's satisfaction that Borrower
shall have redeemed or shall have made adequate provision (in the
reasonable determination of Administrative Agent) for the redemption of all
employee options and paid any related severance, forgiveness and fees to
employees totaling not more than Twelve Million Dollars ($12,000,000).
H. FINANCIAL STATEMENTS.
(i) On or before the Merger Transaction Funding Date, Administrative
Agent shall have received:
(a) the most recent available quarterly unaudited balance sheets
of Borrower and its Subsidiaries and the respective related statements
of income and cash flows for the periods then ended, all in reasonable
detail; and
(b) a certificate of the chief financial officer, executive vice
president, vice chairman or other Officer of Borrower acceptable to
Administrative Agent to the effect that the financial statements
described in clause (a) above have been prepared in accordance with
GAAP consistently applied and fairly present, in all material
respects, the financial condition of Borrower and its Subsidiaries as
at the dates indicated and the results of their operations and their
cash flows for the periods indicated, subject to (in the case of
unaudited financial statements) the absence of footnote disclosure and
changes resulting from audit and normal year-end adjustments (which
will not be material in the aggregate). In addition, if any material
changes shall have occurred with the financial projections delivered
pursuant to subsection 4.1G(i)(d), on or before the Merger Transaction
Funding Date, Administrative Agent shall have received updated
projections after giving effect to the Merger Transaction through and
including the last day of the Fiscal Year ending on September 30,
2012, which shall be in form and substance reasonably satisfactory to
Administrative Agent, together with an update to the Officer's
certificate referenced in subsection 4.1G(i)(e).
(ii) On or before the Merger Transaction Funding Date, Administrative
Agent shall have received:
(a) the most recent available quarterly unaudited balance sheets
of WRP and its Subsidiaries and the respective related statements of
income and cash flows for the periods then ended, all in reasonable
detail; and
(b) a certificate of the chief financial officer, vice chairman
or other Officer of WRP acceptable to Administrative Agent to the
effect that the financial statements
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described in clause (a) above have been prepared in accordance with
GAAP consistently applied, except for the adoption of the liquidation
basis of accounting for financial statement periods on and after
November 18, 2005, and fairly present, in all material respects, the
financial condition of WRP and its Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for
the periods indicated, subject to (in the case of unaudited financial
statements) the absence of footnote disclosure and changes resulting
from audit and normal year-end adjustments (which will not be material
in the aggregate). In addition, if any material changes shall have
occurred with the financial projections delivered pursuant to
subsection 4.1G(ii)(b), on or before the Merger Transaction Funding
Date, Administrative Agent shall have received updated projections of
Borrower and its Subsidiaries and WRP and its Subsidiaries on a
consolidated basis, after giving effect to the Merger Transaction,
through and including the last day of the Fiscal Year ending on
September 30, 2012, which shall be in form and substance reasonably
satisfactory to Administrative Agent, together with an update to the
Officer's certificate referenced in subsection 4.1G(ii)(c).
I. REAFFIRMATION OF OBLIGATIONS AND SECURITY INTERESTS. On or
before the Merger Transaction Funding Date, Administrative Agent shall have
received the fully executed Pledge Agreement and certificates (which
certificates shall be accompanied by irrevocable undated stock powers, duly
endorsed in blank and otherwise satisfactory in form and substance to
Administrative Agent), if any, representing all Capital Stock pledged
pursuant to Pledge Agreement. To the extent the Initial Funding Date shall
have already occurred, Administrative Agent shall have also received such
other reaffirmation documentation, in form and substance reasonably
acceptable to the Administrative Agent, pursuant to which each Credit Party
(including the surviving Merger Subsidiary) restates, ratifies and
reaffirms each and every term and condition set forth in this Credit
Agreement and the Credit Documents, effective as of the Merger Transaction
Funding Date. To the extent the Initial Funding Date shall have already
occurred, each Credit Party further shall acknowledge and reaffirm that (i)
all Liens granted to the Administrative Agent, for the benefit of Lenders,
under the Collateral Documents remain in full force and effect and shall
continue to secure the Obligations, and (ii) the validity, perfection or
priority of the Liens will not be impaired by the execution, delivery and
performance of the Merger Documents, and Borrower shall deliver an opinion
of counsel as to such matters, in form and substance satisfactory to
Administrative Agent, substantially in the form of the corresponding
opinions of counsel delivered on the Closing Date.
J. PAYMENT OF PUBLIC COMPANY COSTS. On or before the Merger
Transaction Funding Date, Administrative Agent shall have received an
Officer's Certificate of WRP, dated as of the Merger Transaction Funding
Date, certifying and providing evidence to the Administrative Agent's
satisfaction that WRP shall have sufficient funds for the payment of all
public company costs of WRP through and including December 31, 2008.
K. MANAGEMENT AGREEMENT. Administrative Agent shall have received
a copy of the Management Agreement executed on or prior to the Merger
Transaction Funding Date, accompanied by an Officer's Certificate
certifying that the same is a true, correct and complete copy thereof,
which Management Agreement shall be in form and substance satisfactory to
Administrative Agent.
L. FINANCIAL CONDITION CERTIFICATE. On the Merger Transaction
Funding Date, Administrative Agent and Lenders shall have received a
Financial Condition Certificate from the chief financial officer or
executive vice president of Borrower dated the Merger Transaction Funding
Date, substantially in the form of EXHIBIT VII annexed hereto and with
appropriate attachments, in each case demonstrating that, after giving
effect to the transactions contemplated by this Agreement
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and any other Credit Documents and the Related Agreements on the Merger
Transaction Funding Date, Borrower will be Solvent.
4.4 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding Date are
subject to the following further conditions precedent:
A. Administrative Agent shall have received before that Funding
Date, in accordance with the provisions of subsection 2.1B, an originally
executed Notice of Borrowing, in each case signed by a duly authorized
Officer of Borrower.
B. As of that Funding Date:
(i) The representations and warranties contained in this Agreement and
in the other Credit Documents executed on or prior to such Funding Date
shall be true, correct and complete in all material respects on and as of
that Funding Date to the same extent as though made on and as of that date,
except to the extent such representations and warranties specifically
relate to an earlier date, in which case such representations and
warranties shall have been true, correct and complete in all material
respects on and as of such earlier date; provided, that, if a
representation and warranty is qualified as to materiality or Material
Adverse Effect, with respect to such representation and warranty the
materiality or Material Adverse Effect qualifier set forth above shall be
disregarded for purposes of this condition;
(ii) No event shall have occurred and be continuing or would result
from the consummation of the borrowing contemplated by such Notice of
Borrowing that constitutes or would constitute an Event of Default or a
Potential Event of Default;
(iii) Each Credit Party shall have performed in all material respects
all applicable agreements and covenants and satisfied all applicable
conditions which this Agreement or any other Credit Document provides shall
be performed or satisfied by it on or before that Funding Date; provided,
that, if an agreement, covenant or condition is qualified as to materiality
or Material Adverse Effect, with respect to such agreement, covenant or
condition, the materiality or Material Adverse Effect qualifier set forth
above shall be disregarded for purposes of this condition;
(iv) No order, judgment or decree of any arbitrator or Government
Authority shall purport to enjoin or restrain any Lender from making the
Loans to be made by it on that Funding Date, and no litigation, inquiry or
action shall be pending or threatened with respect to the making of Loans
hereunder or the transactions contemplated hereby; and
(v) There shall not be pending or, to the knowledge of Borrower and
the other Credit Parties, threatened, any action, suit, proceeding,
governmental investigation or arbitration against or affecting Borrower or
any the other Credit Parties or any property of Borrower or any of any the
other Credit Parties that has not been disclosed by Borrower in writing
pursuant to subsection 6.1(x) prior to the making of the last preceding
Loans (or, in the case of the initial Delayed Draw Term Loans, prior to the
execution of this Agreement), and there shall have occurred no development
not so disclosed in any such action, suit, proceeding, governmental
investigation or arbitration so disclosed, that, in either event, in the
opinion of Administrative Agent or of Requisite Lenders, could reasonably
be expected to have a Material Adverse Effect; and no injunction or other
restraining order shall have been issued and no hearing to cause an
injunction
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or other restraining order to be issued shall be pending or noticed with
respect to any action, suit or proceeding seeking to enjoin or otherwise
prevent the consummation of, or to recover any damages or obtain relief as
a result of, the transactions contemplated by this Agreement or the making
of Loans hereunder.
C. As of that Funding Date, if the Merger Transaction has not
been consummated by the Merger Transaction Termination Date and Borrower
intends to borrow Delayed Draw Term Loans or Revolving Loans in excess of
Two Million Dollars ($2,000,000), then Administrative Agent shall have
received the Pledge Agreement executed by all of the equity owners of
Borrower and certificates (which certificates shall be accompanied by
irrevocable undated stock powers, duly endorsed in blank and otherwise
satisfactory in form and substance to Administrative Agent), if any,
representing all Capital Stock pledged pursuant to Pledge Agreement.
4.5 CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder (whether or not
the Issuing Lender is obligated to issue such Letter of Credit) is subject to
the following conditions precedent:
A. On or before the date of issuance of the initial Letter of
Credit pursuant to this Agreement, the initial Delayed Draw Term Loans
shall have been made.
B. On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions
of subsection 3.1B(i), an originally executed Notice of Issuance of Letter
of Credit, in each case signed by a duly authorized Officer of Borrower on
behalf of Borrower in a writing delivered to Administrative Agent, together
with all other information specified in subsection 3.1B(i) and such other
documents or information as the Issuing Lender may reasonably require in
connection with the issuance of such Letter of Credit.
C. On the date of issuance of such Letter of Credit, all
conditions precedent described in subsection 4.4B shall be satisfied to the
same extent as if the issuance of such Letter of Credit were the making of
a Revolving Loan and the date of issuance of such Letter of Credit were a
Funding Date.
SECTION 5. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make
the Loans, to induce Issuing Lenders to issue Letters of Credit and to induce
Revolving Lenders to purchase participations therein, Borrower represents and
warrants to Administrative Agent and each Lender as follows:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Each Credit Party is a corporation or
limited liability company, duly organized, validly existing and in good
standing under the laws of its jurisdiction of formation as specified in
SCHEDULE 5.1 annexed hereto, as such SCHEDULE 5.1 may be supplemented from
time to time pursuant to the provisions of this Agreement. Each Credit
Party has all requisite corporate or limited liability company power and
authority to own and operate its properties, to carry on its business as
now conducted and as proposed to be conducted, to enter into this Agreement
and the other Credit Documents to which it is a party and to carry out the
transactions contemplated thereby.
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B. QUALIFICATION AND GOOD STANDING. Each Credit Party is
qualified to do business and in good standing in every jurisdiction where
its assets are located and wherever necessary to carry out its business and
operations, except in jurisdictions where the failure to be so qualified or
in good standing has not had and could not reasonably be expected to result
in a Material Adverse Effect.
C. CONDUCT OF BUSINESS. The Credit Parties are engaged only in
the businesses permitted to be engaged in pursuant to subsection 7.12 and
are conducting their businesses in accordance with the terms and provisions
of subsection 7.12.
D. SUBSIDIARIES. All of the Subsidiaries of Borrower or any other
Credit Party and their jurisdictions of organization are identified in
SCHEDULE 5.1 annexed hereto, as such SCHEDULE 5.1 may be supplemented from
time to time pursuant to the provisions of subsection 6.1(xvi). The Capital
Stock of each of such Subsidiary identified in SCHEDULE 5.1 annexed hereto
(as so supplemented) is duly authorized, validly issued, fully paid and
nonassessable, and none of such Capital Stock constitutes Margin Stock.
Each such Subsidiary identified in SCHEDULE 5.1 annexed hereto (as so
supplemented) is a corporation, limited partnership, or limited liability
company duly organized, validly existing and in good standing under the
laws of its respective jurisdiction of organization set forth therein, has
all requisite power and authority to own and operate its properties and to
carry on its business as now conducted and as proposed to be conducted, and
is qualified to do business and in good standing in every jurisdiction
where its assets are located and wherever necessary to carry out its
business and operations, in each case except where failure to be so
qualified or in good standing or a lack of such power and authority has not
had and could not reasonably be expected to result in a Material Adverse
Effect. SCHEDULE 5.1 annexed hereto (as so supplemented) correctly and
completely sets forth the ownership interests of Borrower and each other
Credit Party in each of such Subsidiaries identified therein.
E. REAL PROPERTY. No Credit Party owns any interest in real
property other than the real property identified in SCHEDULE 5.5B annexed
hereto.
5.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and
performance of this Agreement and the other Credit Documents have been duly
authorized by all necessary corporate action on the part of each Credit
Party that is a party thereto.
B. NO CONFLICT. The execution, delivery and performance by each
Credit Party of this Agreement and the other Credit Documents to which such
Credit Party is a party and the consummation of the transactions
contemplated by this Agreement and the other Credit Documents do not and
will not (i) violate any provision of any law or any governmental rule or
regulation applicable to any Credit Party, the Organizational Documents of
any Credit Party or any order, judgment or decree of any court or other
Government Authority binding on any Credit Party, (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of any Credit Party, (iii)
result in or require the creation or imposition of any Lien upon any of the
properties or assets of any Credit Party (other than any Liens created
under any of the Credit Documents in favor of Administrative Agent on
behalf of Lenders), or (iv) require any approval of members, partners,
stockholders or owners or any approval or consent of any Person under any
Contractual Obligation of any Credit Party, except for such approvals or
consents which will be obtained on or before the Closing Date and disclosed
in writing to Lenders.
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C. GOVERNMENTAL CONSENTS. The execution, delivery and performance
by each Credit Party of this Agreement and the other Credit Documents to
which it is a party and the consummation of the transactions contemplated
by this Agreement and the other Credit Documents do not and will not
require any Governmental Authorization or any other action to, with or by
any Government Authority other than that which has been obtained.
D. BINDING OBLIGATION. Each of this Agreement, the other Credit
Documents and the Related Documents has been duly executed and delivered by
each Credit Party that is a party thereto and is the legally valid and
binding obligation of such Credit Party, enforceable against such Credit
Party in accordance with its respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
5.3 FINANCIAL CONDITION.
A. FINANCIAL STATEMENTS. Borrower has heretofore delivered to
Lenders, at Lenders' request, the financial statements and information
described in subsections 4.1G(i)(a) - (c) as they relate to Borrower and
subsection 4.1G(ii)(a) as it relates to WRP. All such financial statements
were prepared in conformity with GAAP and fairly present, in all material
respects, the financial position (on a consolidated and, where applicable,
on a consolidating basis) of the entities described in such financial
statements as at the respective dates thereof and the results of operations
and cash flows (on a consolidated and consolidating basis, where
applicable) of the entities described therein for each of the periods then
ended, subject, in the case of any such unaudited financial statements, to
the absence of footnote disclosure and changes resulting from audit and
normal year-end adjustments (which will not be material in the aggregate).
None of Borrower and the other Credit Parties has (or will have following
the funding of the initial Delayed Draw Term Loans) any Contingent
Obligation (other than Contingent Obligations created under the Credit
Documents, including, without limitation, any off-balance sheet transaction
or any liability in respect thereof), contingent liability or liability for
taxes, long-term lease or unusual forward or long-term commitment that, as
of the Closing Date, is not reflected in the foregoing financial statements
or the notes thereto and, as of any Funding Date subsequent to the Merger
Transaction Funding Date, is not reflected in the most recent financial
statements delivered to Lenders pursuant to subsection 6.1 or the notes
thereto and that, in any such case, is material in relation to the
business, operations, properties, assets, condition (financial or
otherwise) of Borrower and its Subsidiaries on a consolidated basis.
B. PROJECTIONS. The projected financial statements delivered
pursuant to subsection 4.1G(i)(d) as it relates to Borrower and subsection
4.1G(ii)(b) as it relates to WRP have been prepared by Borrower or WRP,
where applicable, in light of the past operations of the businesses of
Borrower and its Subsidiaries but including future payments of known
contingent liabilities. Such projections are based upon the same accounting
principles as those used in the preparation of the financial statements
described above and the estimates and assumptions stated therein, all of
which Borrower believes to be reasonable and fair in light of current
conditions and current facts known to Borrower and, as of the time
delivered, reflect or will reflect Borrower's good faith and reasonable
estimates of the future financial performance of Borrower and its
Subsidiaries for the periods set forth therein.
5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR PAYMENTS; NO
INDEBTEDNESS.
Since October 31, 2005, no event or change has occurred that has
resulted in or evidences, or that could reasonably be expected to result in or
evidence, either in any case or in the aggregate, a Material Adverse Effect.
None of Borrower and the other Credit Parties has directly or indirectly
declared, ordered, paid or made, or set apart any sum or property for, any
Restricted Junior
73
Payment or agreed to do so except as permitted by subsection 7.5. None of the
Borrower or the other Credit Parties have any Indebtedness except as permitted
by subsection 7.1.
5.5 TITLE TO PROPERTIES; LIENS; REAL PROPERTY; INTELLECTUAL PROPERTY.
A. TITLE TO PROPERTIES; LIENS. The Credit Parties have (i) good,
sufficient and legal title to (in the case of fee interests in real
property), (ii) valid leasehold interests in (in the case of leasehold
interests in real or personal property), or (iii) good title to (in the
case of all other personal property), all of their respective properties
and assets reflected in the financial statements referred to in subsection
5.3 or in the most recent financial statements delivered pursuant to
subsection 6.1, in each case except for assets disposed of since the date
of such financial statements in the ordinary course of business or as
otherwise permitted under subsection 7.7. Except as permitted by this
Agreement, all such properties and assets are free and clear of Liens.
B. REAL PROPERTY. SCHEDULE 5.5B annexed hereto contains a true,
accurate and complete list of (i) all fee interests in any Real Property
Assets and (ii) all leases, subleases or assignments of leases (together
with all amendments, modifications, supplements, renewals or extensions of
any thereof) affecting each Real Property Asset, regardless of whether a
Credit Party is the landlord or tenant (whether directly or as an assignee
or successor in interest) under such lease, sublease or assignment. Except
as specified in SCHEDULE 5.5B annexed hereto, each agreement listed in
clause (ii) of the immediately preceding sentence is in full force and
effect, and Borrower and the other Credit Parties do not have knowledge of
any default that has occurred and is continuing thereunder that could be
reasonably expected to result in a Material Adverse Effect, and each such
agreement constitutes the legally valid and binding obligation of each
applicable Credit Party, enforceable against such Credit Party in
accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles.
C. INTELLECTUAL PROPERTY.
(i) Set forth on SCHEDULE 5.5C is a true, accurate and complete list
of all Intellectual Property owned or licensed by Borrower and the other
Credit Parties and that is material to the conduct of the respective
owner's business as presently conducted. No license, franchise or other
agreement with respect to such Intellectual Property has been entered into
by Borrower, any other Credit Party or any of their respective Subsidiaries
with a third party (other than licenses granted by Borrower, such other
Credit Party or Subsidiaries in the ordinary course of their business,
forms of which licenses have been provided to Lender). Except as set forth
on SCHEDULE 5.5C, Borrower and the other Credit Parties are not currently
aware of any Intellectual Property owned by any third party, which is valid
and enforceable and which is needed by Borrower or any other Credit Party
to conduct its business as currently conducted or contemplated. Borrower
and the other Credit Parties have good, valid, subsisting, unexpired and
enforceable title (free and clear of all liens, mortgages, encumbrances,
security interests, claims, charges or pledges, other than Permitted
Encumbrances), to all of the Intellectual Property owned or used by
Borrower and the other Credit Parties that is material to the conduct of
the respective owner's business as presently conducted.
(ii) Except for common law copyrights and trademarks described in
SCHEDULE 5.5C, each item constituting part of the Intellectual Property
that is owned by Borrower or any other Credit Party or any of its
Subsidiaries and is material to the conduct of the respective owner's
business as presently conducted, has been duly and validly registered with,
filed in or issued by, as the case may be, the PTO, the United States
Copyright Office or the appropriate foreign
74
registry, and such registrations, filings and issuances remain in full
force and effect, and there have been no material failures in complying
with such requirements, and no registered copyrights, patents or trademarks
have lapsed or been canceled or abandoned. Borrower and the other Credit
Parties own or have the right to use, all Intellectual Property material to
the conduct of their business as presently conducted. Borrower, each other
Credit Party and their Subsidiaries have taken all reasonable measures to
maintain and protect such Intellectual Property used in the conduct of
their businesses.
(iii) To the knowledge of Borrower and each other Credit Party, the
conduct of its business as currently conducted does not infringe on or
misappropriate, either directly or indirectly (such as through contributory
infringement or inducement to infringe), the Intellectual Property rights
of any Person, and the use by Borrower and each of the other Credit Parties
of any Intellectual Property does not violate or cause a breach or default
of any agreement, the violation of which could reasonably be expected to
result in a Material Adverse Effect.
(iv) To the knowledge of Borrower and each other Credit Party, no
Person has, in any respect, interfered with, infringed upon,
misappropriated or otherwise violated any Intellectual Property rights of
Borrower or the other Credit Party, which rights are material to the
conduct of the respective owner's business as presently conducted. No
claims, suits, arbitrations or other adversarial proceedings have been
brought or threatened against Borrower or any other Credit Party, which are
related to the Intellectual Property used or owned by Borrower or any other
Credit Party, where such Intellectual Property is material to the conduct
of the respective owner's business as presently conducted.
(v) Neither Borrower nor any other Credit Party has received any
written notice by any Person of any pending or threatened claim, suit,
action, mediation, arbitration, order or other adversarial proceeding which
could reasonably be expected to result in a Material Adverse Effect: (i)
alleging infringement (or other violation) by either Borrower or any other
Credit Party of Intellectual Property or other rights of any Person; or
(ii) challenging the Borrower's or any other Credit Party's ownership or
use of, or the validity, enforcement, registrability or maintenance of, any
Intellectual Property owned or exclusively licensed by Borrower or any
other Credit Party. No Intellectual Property owned by Borrower or any other
Credit Party, which is material to the conduct of the respective owner's
business as presently conducted, is being used or enforced in a manner that
would reasonably be expected to result in the abandonment, cancellation or
unenforceability of such Intellectual Property.
(vi) All Intellectual Property owned by Borrower or any other Credit
Party, which is material to the conduct of the respective owner's business
as presently conducted: (i) has been duly maintained where all maintenance,
registration and renewal fees necessary to preserve the rights of the
applicable owner in connection with such Intellectual Property have been
paid in a timely manner; (ii) is valid and enforceable; and (iii) has not
expired, been cancelled or abandoned.
(vii) Neither Borrower nor any other Credit Party has entered into any
consent, judgment, order, indemnification, forbearance to xxx, settlement
agreement, license or other arrangement that: (i) restricts Borrower's
right or such other Credit Party's right, as applicable, to use any
Intellectual Property owned by or licensed to Borrower or the other Credit
Party, (ii) restricts the business of Borrower or any other Credit Party,
as applicable, in order to accommodate a Person's Intellectual Property
rights, and (iii) conveys a contractual right to a third party to use any
Borrower or any other Credit Party Intellectual Property, which in any case
could reasonably be expected to result in a Material Adverse Effect.
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(viii) Each Person (including any current and former employee of or
consultant to either Borrower or any other Credit Party) who has
contributed to or participated in research and development activities of
Borrower or any other Credit Party, has granted to Borrower or the other
Credit Party, as applicable, on an exclusive and unrestricted basis,
ownership of or a contractual right to use all Intellectual Property that
is material to the conduct of the respective owner's business as presently
conducted arising out of such Person's research and development activities.
To the knowledge of Borrower and each other Credit Party, each of such
party's employees has not utilized any Intellectual Property or trade
secrets owned by such employee and created prior to such employee's
employment by Borrower or the other Credit Party, as applicable.
(ix) Except pursuant to agreements listed in SCHEDULE 5.8 and as could
not reasonably be expected to result in a Material Adverse Effect, neither
Borrower nor any other Credit Party has agreed to indemnify any Person for
or against any interference, infringement, misappropriation, or other
conflict with respect to the Intellectual Property or trade secret of such
Person. To the knowledge of Borrower and each other Credit Party, the loss
of such party's Intellectual Property is not pending or threatened, except
for losses due to natural expiration and that could not reasonably be
expected to result in a Material Adverse Effect.
(x) Borrower and each other Credit Party have taken all reasonable
security measures to protect the secrecy and confidentiality of such
party's Intellectual Property, which is material to the conduct of the
respective owner's business as presently conducted.
(xi) To the knowledge of Borrower and each other Credit Party, each
claim in patent (that is material to the conduct of the respective owner's
business as presently conducted) owned by such party: (i) is valid,
subsisting and enforceable; and (ii) there is no basis for a claim that any
granted patent claim is not valid, subsisting and enforceable. None of the
patents owned by Borrower or any other Credit Party that are material to
the conduct of the respective owner's business as presently conducted have
been abandoned. All assignment of rights necessary to vest full and
complete ownership of the patents owned by Borrower or any other Credit
Party have been executed by all inventors and correctly recorded in the
United States Patent and Trademark Office or foreign registry, as
applicable. Neither Borrower nor any other Credit Party is aware of any
inventorship disputes regarding any patents owned by Borrower or a Credit
Party.
5.6 LITIGATION; COMPLIANCE WITH LAWS.
There are no Proceedings (whether or not purportedly on behalf of
any Credit Party) at law or in equity, or before or by any court or other
Government Authority (including any Environmental Claims) that are pending or,
to the knowledge of any Credit Party, threatened against or affecting any Credit
Party or any property, assets, business or revenues of any Credit Party and that
(i) individually or in the aggregate, could reasonably be expected to result in
a Material Adverse Effect or (ii) affect the legality, validity or
enforceability of any of the Credit Documents or the Related Documents. No
Credit Party (i) is subject to or in default with respect to any final
judgments, writs, injunctions, decrees, rules or regulations of any court or
other Government Authority that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect, or (ii) is in
violation of, or has violated any applicable laws (including Environmental
Laws), the violation of which, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.
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5.7 PAYMENT OF TAXES.
Except as set forth in SCHEDULE 5.7 annexed hereto and except to
the extent permitted by subsection 6.3, all tax returns and reports of each
Credit Party (and WRP from and after the Merger Transaction Funding Date)
required to be filed by it have been timely filed, and all taxes due and payable
by each such Credit Party (and WRP from and after the Merger Transaction Funding
Date) (or by any member or partner thereof with respect to such Credit Party
(and WRP from and after the Merger Transaction Funding Date)) and all
assessments, fees and other governmental charges upon any Credit Party (and WRP
from and after the Merger Transaction Funding Date) (or on any member or partner
thereof with respect to such Credit Party (and WRP from and after the Merger
Transaction Funding Date)) and upon its properties, assets, income, businesses
and franchises that are due and payable have been paid when due and payable. No
Credit Party (or WRP from and after the Merger Transaction Funding Date) knows
of any proposed tax assessment against any Credit Party (or WRP from and after
the Merger Transaction Funding Date) (or against any member or partner thereof
with respect to such Credit Party (or WRP from and after the Merger Transaction
Funding Date)) that is not being actively contested by such Credit Party or (or
WRP from and after the Merger Transaction Funding Date) in good faith (or such
member or partner) and by appropriate proceedings; provided that such reserves
or other appropriate provisions, if any, as shall be required in conformity with
GAAP shall have been made or provided therefor.
5.8 PERFORMANCE OF AGREEMENTS; MATERIAL CONTRACTS.
A. No Credit Party is in default in the performance, observance
or fulfillment of any of the obligations, covenants or conditions contained
in any of its Contractual Obligations, and no condition exists that, with
the giving of notice or the lapse of time or both, would constitute such a
default, except where the consequences, direct or indirect, of such default
or defaults, if any, could not reasonably be expected to result in a
Material Adverse Effect.
B. No Credit Party is a party to or is otherwise subject to any
agreements or instruments or any charter or other internal restrictions
that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
C. SCHEDULE 5.8 contains a true, correct and complete list of all
Material Contracts in effect, as such SCHEDULE 5.8 may be supplemented from
time to time. Except as described on SCHEDULE 5.8, all such Material
Contracts are in full force and effect, and no material defaults currently
exist thereunder.
5.9 GOVERNMENTAL REGULATION.
No Credit Party is subject to regulation under the Federal Power
Act, the Interstate Commerce Act or the Investment Company Act of 1940 or under
any other federal or state statute or regulation that limits its ability to
incur Indebtedness or that may otherwise render all or any portion of the
Obligations unenforceable.
5.10 SECURITIES ACTIVITIES.
A. No Credit Party is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose
of purchasing or carrying any Margin Stock.
B. Following application of the proceeds of each Loan, not more
than twenty-five (25%) of the value of the assets (either of Borrower only
or of Borrower and its Subsidiaries on a
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consolidated basis) subject to the provisions of subsection 7.1(v) or 7.7
or subject to any restriction contained in any agreement or instrument,
between Borrower and any Lender or any Affiliate of any Lender, relating to
Indebtedness and within the scope of subsection 7.1(v), will be Margin
Stock.
5.11 EMPLOYEE BENEFIT PLANS.
Except as set forth in SCHEDULE 5.11 annexed hereto:
A. Each Credit Party and each of its ERISA Affiliates are in
compliance in all material respects with all applicable provisions and
requirements of ERISA and the regulations and published interpretations
thereunder with respect to each Employee Benefit Plan, and have performed
all obligations thereunder. Each Employee Benefit Plan that is intended to
qualify under Section 401(a) of the Internal Revenue Code is so qualified;
B. No ERISA Event has occurred or is reasonably expected to
occur;
C. Except to the extent required under Section 4980B of the
Internal Revenue Code, no Employee Benefit Plan provides health or welfare
benefits (through the purchase of insurance or otherwise) for any retired
or former employee of any Credit Party or any of its ERISA Affiliates;
D. As of the most recent valuation date for any Pension Plan, the
amount of unfunded benefit liabilities (as defined in Section 4001(a)(18)
of ERISA), individually or in the aggregate for all Pension Plans
(excluding for purposes of such computation any Pension Plans with respect
to which assets exceed benefit liabilities), does not exceed Fifty Thousand
Dollars ($50,000); and
E. As of the most recent valuation date for each Multiemployer
Plan for which the actuarial report is available, the potential liability
of Borrower, its Subsidiaries and their respective ERISA Affiliates for a
complete withdrawal from such Multiemployer Plan (within the meaning of
Section 4203 of ERISA), when aggregated with such potential liability for a
complete withdrawal from all Multiemployer Plans, based on information
available pursuant to Section 4221(e) of ERISA, does not exceed Fifty
Thousand Dollars ($50,000).
5.12 CERTAIN FEES.
Except as set forth in SCHEDULE 5.12 annexed hereto, no broker's
or finder's fee or commission will be payable by the Borrower with respect to
this Agreement or the other Credit Documents or any of the material transactions
contemplated hereby, and Borrower hereby indemnifies Administrative Agent and
Lenders against, and agree that it will hold Administrative Agent and Lenders
harmless from, any claim, demand or liability for any such broker's or finder's
fees alleged to have been incurred in connection herewith or therewith and any
expenses (including reasonable fees, expenses and disbursements of counsel)
arising in connection with any such claim, demand or liability.
5.13 ENVIRONMENTAL PROTECTION.
Except as set forth in SCHEDULE 5.13 annexed hereto:
(i) the operations of each Credit Party (including all operations and
conditions at or in the Facilities) comply in all respects with all
Environmental Laws, except where the failure to comply could not reasonably
be expected to result in a Material Adverse Effect;
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(ii) each Credit Party has obtained all Governmental Authorizations
under Environmental Laws necessary to its operations, and all such
Governmental Authorizations are in good standing, and each Credit Party is
in compliance with all terms and conditions of such Governmental
Authorizations, except where the failure to comply could not reasonably be
expected to result in a Material Adverse Effect;
(iii) no Credit Party or any of its Facilities or operations are
subject to any outstanding written order, consent decree or settlement
agreement with any Person relating to (a) any Environmental Law, (b) any
Environmental Claim, or (c) any Hazardous Materials Activity, except as
could not reasonably be expected to result in a Material Adverse Effect;
(iv) no Credit Party has received any letter or request for
information under Section 104 of the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. Section 9604) or any comparable
state law;
(v) there are and, to the knowledge of the Credit Parties, have been
no conditions, occurrences, or Hazardous Materials Activities that could
reasonably be expected to form the basis of an Environmental Claim against
any Credit Party, except as could not reasonably be expected to result in a
Material Adverse Effect; and
(vi) no Credit Party or, to the knowledge of the Credit Parties, any
predecessor of such Credit Party has filed any notice under any
Environmental Law indicating past or present treatment of Hazardous
Materials at any Facility; and no Credit Party's operations involve the
generation, transportation, treatment, storage or disposal of hazardous
waste, as defined under 40 C.F.R. Parts 260-270 or any state equivalent,
except as could not reasonably be expected to result in a Material Adverse
Effect.
5.14 EMPLOYEE MATTERS.
There is no strike or work stoppage in existence or threatened
involving any Credit Party that could reasonably be expected to result in a
Material Adverse Effect.
5.15 SOLVENCY.
Each Credit Party is and, upon the incurrence of any Obligations
by such Credit Party on any date on which this representation is made, will be,
Solvent.
5.16 MATTERS RELATING TO COLLATERAL.
A. CREATION, PERFECTION AND PRIORITY OF LIENS. The execution and
delivery of the Collateral Documents by Credit Parties, together with (i)
the actions taken on or prior to the Initial Funding Date pursuant to
subsections 4.2I, 6.8 and 6.9 and (ii) the delivery to Administrative Agent
of any Pledged Collateral not delivered to Administrative Agent at the time
of execution and delivery of the applicable Collateral Document (all of
which Pledged Collateral shall be so delivered) shall be effective to
create in favor of Administrative Agent for the benefit of Lenders, as
security for the respective Secured Obligations (as defined in the
applicable Collateral Document in respect of any Collateral), a valid First
Priority Lien on all of the Collateral, except for any Collateral that is
not required to be so perfected under the express terms of the Credit
Documents, and all filings and other actions necessary or desirable to
perfect and maintain the perfection and First Priority status of such Liens
shall be duly made or taken and remain in full force and effect, other than
the periodic filing of
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UCC continuation statements in respect of UCC financing statements filed by
or on behalf of Administrative Agent.
B. GOVERNMENTAL AUTHORIZATIONS. No authorization, approval or
other action by, and no notice to or filing with, any Government Authority
is required for either (i) the pledge or grant by any Credit Party of the
Liens purported to be created in favor of Administrative Agent pursuant to
any of the Collateral Documents or (ii) the exercise by Administrative
Agent of any rights or remedies in respect of any Collateral (whether
specifically granted or created pursuant to any of the Collateral Documents
or created or provided for by applicable law), except (a) for filings or
recordings contemplated by subsection 5.16A (except for any Collateral that
is not required to be perfected under the express terms of the Credit
Documents), (b) as may be required, in connection with the disposition of
any Pledged Collateral or the exercise of Administrative Agent's and
Lenders' rights and remedies in respect thereof and by laws generally
affecting the offering and sale of securities and the enforcement of
creditors rights generally, and (c) for accounts receivable of Governmental
Authorities.
C. ABSENCE OF THIRD-PARTY FILINGS. Except such as may have been
filed in favor of Administrative Agent as contemplated by subsection 5.16A
and to evidence permitted lease obligations and other Liens permitted
pursuant to subsection 7.1(v), (i) no effective UCC financing statement,
fixture filing or other instrument similar in effect covering all or any
part of the Collateral is on file in any filing or recording office and
(ii) no effective filing covering all or any part of the IP Collateral is
on file in the PTO.
D. MARGIN REGULATIONS. The pledge of the Pledged Collateral
pursuant to the Collateral Documents does not and will not violate
Regulation T, U or X of the Board of Governors of the Federal Reserve
System.
E. INFORMATION REGARDING COLLATERAL. All information supplied to
Administrative Agent by or on behalf of any Credit Party with respect to
any of the Collateral (in each case taken as a whole with respect to any
particular Collateral) is accurate and complete in all material respects.
Other than as may be supplemented by written notices delivered to
Administrative Agent pursuant to the Security Agreement or the Pledge
Agreement:
(i) the chief executive office and principal place of business of each
Credit Party is as set forth in Part One of SCHEDULE 5.16E annexed hereto;
(ii) the office where each Credit Party keeps its records concerning
Accounts (as defined in the Security Agreement) and all originals of all
chattel paper which evidence any Accounts is located at the address
specified for such Credit Party in Part Two of SCHEDULE 5.16E annexed
hereto;
(iii) the location where each Credit Party keeps any Inventory (as
defined in the Security Agreement) in the aggregate in excess of Fifty
Thousand Dollars ($50,000) is at the address specified for such Credit
Party in Part Three of SCHEDULE 5.16E annexed hereto, as such SCHEDULE
5.16E may be supplemented from time to time pursuant to the provisions of
this Agreement; and
(iv) other than as set forth in Part Four of SCHEDULE 5.16E annexed
hereto, as such SCHEDULE 5.16E may be supplemented from time to time
pursuant to the provisions of this Agreement, no Credit Party does any
business under any fictitious business names or tradenames
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or has done business under any fictitious business names or tradenames
during the preceding five (5) years.
5.17 RELATED AGREEMENTS.
A. Delivery of Related Agreements. Borrower has delivered to
Lenders complete and correct copies of each Related Agreement (including
all exhibits, annexes and schedules thereto).
B. WRP's and Merger Subsidiary's Warranties. Each of the
representations and warranties given to or to be given to Borrower by WRP
and the Merger Subsidiary in the Merger Agreement is true and correct in
all material respects as of the date hereof (or as of any earlier date to
which such representation and warranty specifically relates) and will be
true and correct in all material respects as of the Closing Date, the
Initial Funding Date and the Merger Transaction Funding Date.
C. Warranties of Borrower. Each of the representations and
warranties given or to be given by Borrower to WRP in the Merger Agreement
is true and correct in all material respects as of the date hereof (or as
of any earlier date to which such representation and warranty specifically
relates) and will be true and correct in all material respects as of the
Closing Date, the Initial Funding Date and the Merger Transaction Funding
Date.
D. Survival. Notwithstanding anything in the Merger Agreement to
the contrary, the representations and warranties of Borrower set forth in
subsections 5.17B and 5.17C shall, solely for purposes of this Agreement,
survive the Closing Date for the benefit of Administrative Agent and
Lenders.
5.18 SUBORDINATED INDEBTEDNESS.
The Obligations constitute senior indebtedness that is entitled
to the benefits of the subordination provisions, if any, of all Indebtedness of
any of the Credit Parties.
5.19 DEPOSIT ACCOUNTS.
All of the Deposit Accounts of any Credit Party are identified in
SCHEDULE 5.19 annexed hereto, as such SCHEDULE 5.19 may be supplemented from
time to time pursuant to the provisions of subsection 6.1(xviii).
5.20 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
Except as permitted by subsection 7.9, no Credit Party has,
directly or indirectly, entered into or permitted to exist any transaction,
arrangement or agreement (including the purchase, sale, lease or exchange of any
property or the rendering of any service) with any holder of any class of equity
Securities or any Capital Stock of any Credit Party or with any Affiliate of any
Credit Party or of any such holder, on terms that are less favorable to the
Credit Party or any Affiliate thereof, as the case may be, than those that might
be obtained at the time from Persons who are not such a holder or Affiliate;
provided, however, that prior to the consummation of the Merger Transaction,
Borrower shall be permitted to issue stock options to management and key
employees pursuant to its current stock option plan in the ordinary course of
business consistent with its past practices. All material transactions,
arrangements and agreements of any Credit Party (including the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
holder of any class of equity Securities or any Capital Stock of any Credit
Party or with
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any Affiliate of any Credit Party or of any such holder are disclosed in
reasonable detail in SCHEDULE 5.20 annexed hereto.
5.21 DISCLOSURE.
No representation or warranty of any Credit Party contained in
this Agreement or in any other Credit Document or in any other document,
certificate or written statement furnished to Lenders by or on behalf of any
Credit Party for use in connection with the transactions contemplated by this
Agreement, any other Credit Document or any Related Agreement contains any
untrue statement of a material fact or omits to state a material fact (known to
such Credit Party, in the case of any document not furnished by it) necessary in
order to make the statements contained herein or therein not misleading in light
of the circumstances in which the same were made. Any projections and pro forma
financial information contained in such materials are based upon good faith
estimates and assumptions believed by each Credit Party to be reasonable at the
time made, it being recognized by Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ from the projected
results. There are no facts known (or which should upon the reasonable exercise
of diligence be known) to any Credit Party (other than matters of a general
economic nature) that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect and that have not been disclosed
herein or in such other documents, certificates and statements furnished to
Lenders for use in connection with the transactions contemplated hereby.
SECTION 6. BORROWER'S AFFIRMATIVE COVENANTS
Borrower covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and all other Obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, Borrower shall perform, and shall cause each other Credit Party to
perform, all covenants in this Section 6.
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Borrower will maintain, and cause each of its Subsidiaries to
maintain, a system of accounting established and administered in accordance with
sound business practices to permit preparation of financial statements in
conformity with GAAP. Borrower will deliver to Administrative Agent and Lenders:
(i) Events of Default, etc.: Promptly upon any officer of any
Credit Party obtaining knowledge (a) of any condition or event that
constitutes an Event of Default or Potential Event of Default, or
becoming aware that any Lender has given any notice (other than to
Administrative Agent) or taken any other action with respect to a
claimed Event of Default or Potential Event of Default, (b) that any
Person has given any notice to any Credit Party or taken any other
action with respect to a claimed default or event or condition of the
type referred to in subsection 8.2, or (c) of the occurrence of any
event or change that has caused or evidences, or that could reasonably
be expected to cause or evidence, either in any case or in the
aggregate, a Material Adverse Effect, an Officer's Certificate
specifying the nature and period of existence of such condition, event
or change, or specifying the notice given or action taken by any such
Person and the nature of such claimed Event of Default, Potential
Event of Default, default, event or condition, and what action such
Credit Party has taken, is taking and proposes to take with respect
thereto;
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(ii) Monthly Financial Information: as soon as available and in
any event within twenty (20) days after the end of each month (except
months in which quarterly financial statements are delivered under
subsection 6.1(iii)), the internally generated consolidated and
consolidating statements setting forth the revenue in accordance with
GAAP of each of Borrower and its Subsidiaries for such month and for
the period from the beginning of the then current Fiscal Year to the
end of such month, setting forth in comparative form the corresponding
figures for the corresponding periods of the previous Fiscal Year, all
in reasonable detail and certified by the chief financial officer of
Borrower or other Officer of Borrower acceptable to Administrative
Agent that they fairly present, in all material respects, the revenues
of Borrower and its Subsidiaries for the periods indicated, subject to
changes resulting from audit and normal year-end adjustments (which
shall not be material, either individually or in the aggregate);
(iii) Quarterly Financials: as soon as available and in any event
within forty-five (45) days after the end of each Fiscal Quarter
(excluding the last Fiscal Quarter ending in a given Fiscal Year), if
the Merger Transaction is consummated (a) (i) the consolidated balance
sheets of WRP and its Subsidiaries and the related consolidated
statements of income and cash flows for such Fiscal Quarter and for
the period from the beginning of the then current Fiscal Year to the
end of such Fiscal Quarter on a comparative basis with the
corresponding periods of the previous Fiscal Year as contained in the
quarterly report on Form 10-Q as filed with the SEC by WRP, (ii)
consolidating financial statements which identify the balance sheet
and statements of income and cash flows of Borrower, when added to the
balance sheets and income statements of WRP's other Subsidiaries and
the consideration of intercompany eliminations, equals the amounts
presented for each balance sheet and income statement period as
presented by WRP as identified in (i) above, and (iii) a certification
by the chief financial officer of Borrower and WRP reasonably
acceptable to Administrative Agent that the statements referred to in
(i) and (ii) above fairly present, in all material respects, the
financial condition, results of operations and cash flows for the
periods indicated of WRP and the consolidating balance sheets and
income statements which present the related information of the
Borrower, subject to changes resulting from audit and normal year-end
adjustments (which shall not be material, either individually or in
the aggregate) and (b) the description of business and results of
operations as presented in Management's Discussion and Analysis of
Financial Condition and Results of Operations as contained in the
quarterly report on Form 10-Q as filed with the SEC by WRP; provided
that prior to the consummation of the Merger Transaction and/or if the
Merger Transaction does not occur, from and after the Merger
Transaction Termination Date, Borrower will deliver (y) the
consolidated balance sheets of Borrower and its Subsidiaries as at the
end of such Fiscal Quarter and the related consolidated statements of
income, shareholder's equity and cash flows of Borrower and its
Subsidiaries for such Fiscal Quarter and for the period from the
beginning of the then current Fiscal Year to the end of such Fiscal
Quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous
Fiscal Year, all in reasonable detail and certified by the chief
financial officer of Borrower or other Officer of Borrower reasonably
acceptable to Administrative Agent that they fairly present, in all
material respects, the financial condition, results of operations and
cash flows for the periods indicated of Borrower and its Subsidiaries,
subject to changes resulting from audit and normal year-end
adjustments (which shall not be material, either individually or in
the aggregate), and (z) a brief narrative report describing the
operations and liquidity of Borrower and its Subsidiaries for such
Fiscal Quarter and for the period from the beginning of the then
current Fiscal Year to the end of such Fiscal Quarter;
(iv) Year-End Financials: as soon as available and in any event
within ninety (90) days after the end of each Fiscal Year (including,
for the avoidance of doubt, any stub or partial periods resulting from
any change in the fiscal year of Borrower and its Subsidiaries), if
the
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Merger Transaction is consummated, (a) (i) the consolidated balance
sheets of WRP and its Subsidiaries and the related consolidated
statements of income, shareholder's equity and cash flows for such
Fiscal Year on a comparative basis with the corresponding previous
Fiscal Year as contained in the annual report on Form 10-K as filed
with the SEC by WRP, (ii) consolidating financial statements which
identify the balance sheet and income statements of Borrower, when
added to the balance sheets and income statements of WRP's other
Subsidiaries and the consideration of intercompany eliminations,
equals the amounts presented for each balance sheet and income
statement period as presented by WRP as identified in (i) above and
(iii) a certification by the chief financial officer of Borrower and
WRP reasonably acceptable to the Administrative Agent that the
statements referred to in (i) and (ii) above fairly present, in all
material respects, the financial condition, results of operations and
cash flows for the Fiscal Years indicated of WRP and the consolidating
balance sheets and income statements which present the related
information of Borrower, (b) the description of business and results
of operations as presented in Management's Discussion and Analysis of
Financial Condition and Results of Operations as contained in the
annual report on Form 10-K as filed with the SEC by WRP and (c) (1)
prior to the Merger Transaction Termination Date, in the case of
Borrower's financial statements, reports thereon of Marks Paneth &
Shron LLP, or other independent certified public accountants selected
by Borrower and reasonably satisfactory to Administrative Agent, and
(2) from and after the consummation of the Merger Transaction, in the
case of WRP's and Borrower's financial statements, reports thereon of
Ernst & Young LLP, or other independent certified public accountants
selected by WRP and reasonably satisfactory to Administrative Agent,
which reports shall be unqualified, shall express no doubts about the
ability of any or all of Borrower and its Subsidiaries and WRP and its
Subsidiaries, as applicable, to continue as a going concern, and as
applicable to such report, (i) shall state that such consolidated
financial statements fairly present, in all material respects, the
consolidated financial position of Borrower and WRP and its
Subsidiaries as at the dates indicated and the results of their
operations and cash flows for the periods indicated in conformity with
GAAP applied on a basis consistent with prior years (except as
otherwise disclosed in such financial statements), (ii) shall state
that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with
generally accepted auditing standards, and (iii) only in the event
that the Merger Transaction is consummated, the report will include a
statement with regards to the consolidating financial statements as
indicated in (a) (ii) above that such consolidating financial
statements were subjected to the auditing procedures as applied in the
audit of the basic WRP financial statements and that such
consolidating financial statements are fairly stated in relation to
the basic WRP financial statements when taken as a whole; provided
that prior to the consummation of the Merger Transaction and/or if the
Merger Transaction does not occur, from and after the Merger
Transaction Termination Date, Borrower will deliver (y) the
consolidated balance sheets of Borrower and its Subsidiaries as at the
end of such Fiscal Year and the related consolidated statements of
income, shareholder's equity and cash flows of Borrower and its
Subsidiaries for such Fiscal Year, setting forth in each case in
comparative form the corresponding figures for the previous Fiscal
Year, all in reasonable detail and certified by the chief financial
officer or other Officer of Borrower reasonably acceptable to
Administrative Agent that they fairly present, in all material
respects, the financial condition, results of operations and cash
flows for the Fiscal Years indicated of Borrower and its Subsidiaries
as at the dates indicated and (z) the report is from a firm as
described in (iv)(c)(1) above and in a form as required by (iv)(c)(i)
above for Borrower;
(v) Officers' and Compliance Certificates: if the Merger
Transaction is consummated, together with each delivery of financial
statements pursuant to subsections 6.1(ii), 6.1(iii) and 6.1(iv) above
and promptly following the completion of the audit examination of each
Fiscal Year by WRP's and Borrower's independent certified public
accountants, (a) an Officer's
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Certificate of Borrower stating that the signer has reviewed the terms
of this Agreement and has made, or caused to be made under his or her
supervision, a review in reasonable detail of the transactions and
condition of WRP, Borrower and their Subsidiaries during the
accounting period covered by such financial statements and that such
review has not disclosed the existence during or at the end of such
accounting period, and that Borrower and its Subsidiaries do not have
knowledge of the existence as at the date of such Officer's
Certificate, of any condition or event that constitutes an Event of
Default or Potential Event of Default, or, if any such condition or
event existed or exists, specifying the nature and period of existence
thereof and what action Borrower or any of its Subsidiaries has taken,
is taking and proposes to take with respect thereto, and (b) a
Compliance Certificate demonstrating in reasonable detail compliance
during and at the end of the applicable accounting periods with the
covenants contained in Section 7.6; provided, that from and after the
Merger Transaction Termination Date, Borrower shall not be required to
provide the foregoing financial information for WRP;
(vi) Reconciliation Statements:
(a) if, as a result of any change in accounting principles
and policies from those used in the preparation of the financial
statements referred to in subsection 5.3, the consolidated and
consolidating financial statements of WRP, Borrower and their
Subsidiaries delivered pursuant to subsections 6.1(ii), 6.1(iii),
6.1(iv) or 6.1(xiii) will differ in any material respect from the
consolidated financial statements that would have been delivered
pursuant to such subdivisions had no such change in accounting
principles and policies been made, then (a) together with the
first delivery of financial statements pursuant to subsections
6.1(ii), 6.1(iii), 6.1(iv) or 6.1(xiii) following such change,
consolidated and consolidating financial statements of WRP,
Borrower and their Subsidiaries for (y) the current Fiscal Year
to the effective date of such change and (z) the two full Fiscal
Years immediately preceding the Fiscal Year in which such change
is made, in each case prepared on a pro forma basis as if such
change had been in effect during such periods, and (b) together
with each delivery of financial statements pursuant to
subsections 6.1(ii), 6.1(iii), 6.1(iv) or 6.1(xiii) following
such change, if required pursuant to subsection 1.2, a written
statement of the chief accounting officer or chief financial
officer of each of WRP and Borrower or other Officer of each of
WRP and Borrower acceptable to Administrative Agent setting forth
the differences (including any differences that would affect any
calculations relating to the financial covenants set forth in
subsection 7.6) that would have resulted if such financial
statements had been prepared without giving effect to such
change; provided, that from and after the Merger Transaction
Termination Date, Borrower shall not be required to provide the
foregoing reconciliation statements for WRP; provided further
that the foregoing reconciliation statements shall not be
required for changes related to liquidation accounting for WRP;
and
(b) to the extent the audited financial statements delivered
pursuant to subsection 6.1(iv) differ in any material respect
from the consolidated and consolidating financial statements of
WRP, Borrower and their Subsidiaries delivered pursuant to
subsection 6.1(iii) above, then Borrower shall deliver with such
audited financial statements a written statement of the chief
accounting officer or chief financial officer of each of WRP,
Borrower and their Subsidiaries or by any executive officer of
WRP, Borrower and their Subsidiaries designated by any of the
above-described officers on behalf of WRP, Borrower and their
Subsidiaries in a writing delivered to Administrative Agent
(together with an adjusted Compliance Certificate) setting forth
the differences (including any differences that would affect any
calculations relating to the financial
85
covenants set forth in subsection 7.6), and the Applicable Margin
and related rate of interest shall be adjusted accordingly on a
retroactive basis to the date that the change should have
occurred; provided, that from and after the Merger Transaction
Termination Date, Borrower shall not be required to provide the
foregoing reconciliation statements for WRP;
(vii) Accountants' Certification: together with each delivery of
consolidated and consolidating financial statements pursuant to
subsection 6.1(iv), a written statement in the form of EXHIBIT XIV to
this Agreement by the independent certified public accountants giving
the report thereon stating whether, in connection with their audit
examination, anything came to their attention that caused them to
believe that Borrower failed to comply with the terms, covenants,
provisions or conditions of this Agreement insofar as they related to
accounting matters;
(viii) Accountants' Reports: promptly upon receipt thereof
(unless restricted by applicable professional standards), complete
copies of all reports submitted to any Credit Party by independent
certified public accountants in connection with each annual, interim
or special audit of the financial statements of WRP, Borrower and
their Subsidiaries made by such accountants, including any comment
letter submitted by such accountants to management in connection with
their annual audit; provided, that from and after the Merger
Transaction Termination Date, Borrower shall not be required to
provide the foregoing accountants' reports for WRP;
(ix) SEC Filings and Press Releases: promptly upon their becoming
available, copies of (a) all financial statements, reports, notices
and proxy statements sent or made available generally by WRP or any
Credit Party to its members, partners, stockholders or other security
holders, (b) all regular and periodic reports and all registration
statements (other than on Form S-8 or a similar form) and
prospectuses, if any, filed by WRP or any Credit Party with any
securities exchange or with the Securities and Exchange Commission or
any Governmental Authority or private regulatory authority, and (c)
all press releases and other statements made available generally by
WRP or any Credit Party to the public concerning material developments
in the business of WRP, Borrower or any of their Subsidiaries;
provided, that from and after the Merger Transaction Termination Date,
Borrower shall not be required to provide the foregoing documentation
for WRP;
(x) Litigation or Other Proceedings: promptly upon any Officer of
any Credit Party obtaining knowledge of (1) the institution of, or
non-frivolous threat of, any Proceeding against or affecting any
Credit Party or any property of any Credit Party not previously
disclosed in writing by the Credit Parties to Administrative Agent and
Lenders or (2) any material development in any Proceeding that, in any
case of (1) or (2):
(a) if adversely determined, could reasonably be expected to
result in a Material Adverse Effect; or
(b) seeks to enjoin or otherwise prevent the consummation
of, or to recover any damages or obtain relief as a result of,
the Merger Transaction or the Loans contemplated hereby;
written notice thereof together with, if so requested by Administrative
Agent, such other information as may be reasonably available to the Credit
Parties to enable Administrative Agent, Lenders and their counsel to
evaluate such matters;
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(xi) ERISA Events: promptly upon becoming aware of the occurrence
of or forthcoming occurrence of any ERISA Event, a written notice
specifying the nature thereof, what action any Credit Party or its
ERISA Affiliates has taken, is taking or proposes to take with respect
thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor or the PBGC with
respect thereto;
(xii) ERISA Notices: with reasonable promptness, copies of (a)
each Schedule B (Actuarial Information) to the annual report (Form
5500 Series) filed by any Credit Party or its ERISA Affiliates with
the Internal Revenue Service with respect to each Pension Plan, (b)
all notices received by any Credit Party or its ERISA Affiliates from
a Multiemployer Plan sponsor concerning an ERISA Event, and (c) copies
of such other documents or governmental reports or filings relating to
any Employee Benefit Plan as Administrative Agent shall reasonably
request;
(xiii) Financial Plans: as soon as practicable and in any event
no later than thirty (30) days after the beginning of each Fiscal
Year, a consolidated plan and financial forecast for such Fiscal Year
(the "FINANCIAL PLAN" for such Fiscal Year), consisting of (a)
forecasted monthly consolidated statements of income and forecasted
monthly consolidated statements of cash flows of Borrower and its
Subsidiaries for such Fiscal Year, together with an explanation of the
key assumptions on which such forecasts are based and with the line
items presented in the same manner as in the financial statements
delivered pursuant to subsections 6.1(ii), 6.1(iii) and 6.1(iv) above,
(b) a forecasted consolidated summary statement of cash flows of WRP
and its Subsidiaries for such Fiscal Year, together with an
explanation of the key assumptions on which such forecasts are based,
and (c) such other information and projections as Administrative Agent
or any Lender may reasonably request;
(xiv) Insurance: as soon as practicable after any material change
in insurance coverage maintained by any or all of Borrower and its
Subsidiaries, notice thereof to Administrative Agent specifying the
changes and reasons therefor;
(xv) Governing Body: with reasonable promptness, written notice
of any change, directly or indirectly, in the Governing Body of any
Credit Party;
(xvi) New Subsidiaries: promptly upon any Person becoming a
Subsidiary of Borrower after the Closing Date, a written notice
setting forth with respect to such Person (a) the date on which such
Person became a Subsidiary of Borrower and (b) all of the data
required to be set forth in SCHEDULE 5.1 annexed hereto with respect
to all Subsidiaries of Borrower (it being understood that such written
notice shall be deemed to supplement SCHEDULE 5.1 annexed hereto for
all purposes of this Agreement);
(xvii) Material Contracts: promptly, and in any event within ten
(10) Business Days after any Material Contract is terminated or
amended in a manner that is materially adverse to any Credit Party, or
any new Material Contract is entered into, a written statement
describing such event with true, correct and complete copies of such
material amendments or new contracts, and an explanation of any
actions being taken with respect thereto; and
(xviii) Deposit Accounts: promptly upon the opening by any Credit
Party of any Deposit Account on or after the Closing Date, a written
notice setting forth with respect to such Credit Party all of the data
required to be set forth in SCHEDULE 5.19 annexed hereto with respect
to any Credit Party (it being understood that such written notice
shall be deemed to supplement SCHEDULE 5.19 annexed hereto for all
purposes of this Agreement); and
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(xix) Other Information: with reasonable promptness, such other
information and data with respect to any Credit Party as from time to
time may be reasonably requested by Administrative Agent or any
Lender.
6.2 EXISTENCE, ETC.
Except for the consummation of the Merger Transaction in
accordance with the terms and conditions hereof (including the satisfaction of
the conditions set forth in subsection 4.2) and as otherwise permitted under
subsection 7.7, each Credit Party will, and will cause its Subsidiaries to, at
all times (a) preserve and keep in full force and effect its existence in the
jurisdiction of organization specified on SCHEDULE 5.1 and all rights and
franchises material to its business and (b) comply with all terms and provisions
of all franchises, licenses, permits, agreements and leases to which it is a
party or by which its is bound, and shall suffer no loss or forfeiture thereof
or thereunder, the failure or loss of which could reasonably be expected to
result in a Material Adverse Effect.
6.3 PAYMENT OF TAXES AND CLAIMS; TAX.
A. Each Credit Party will, and will cause each of its
Subsidiaries to, pay all taxes, assessments and other governmental charges
imposed upon it or any of its properties or assets or in respect of any of
its income, businesses or franchises before any penalty accrues thereon,
and all claims (including claims for labor, services, materials and
supplies) for sums that have become due and payable and that by law have or
may become a Lien upon any of their properties or assets, prior to the time
when any penalty or fine shall be incurred with respect thereto; provided
that no such tax, assessment, charge or claim need be paid if it is being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted, so long as (i) such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have
been made therefor and (ii) in the case of a tax, assessment, charge or
claim which has or may become a Lien against any of the Collateral, such
proceedings conclusively operate to stay the sale of any portion of the
Collateral to satisfy such charge or claim.
B. No Credit Party will, nor will it permit any of its
Subsidiaries to, file or consent to the filing of any consolidated income
tax return with any Person (other than with the other Credit Parties and
WRP and its Subsidiaries).
6.4 MAINTENANCE OF PROPERTIES; INSURANCE; APPLICATION OF NET
INSURANCE/ CONDEMNATION PROCEEDS.
A. MAINTENANCE OF PROPERTIES. Each Credit Party will, and will
cause each of its Subsidiaries to, maintain or cause to be maintained in
good repair, working order and condition, ordinary wear and tear excepted,
all material properties used or useful in the business of such Credit Party
and its Subsidiaries (including all Intellectual Property), and from time
to time will make or cause to be made all appropriate or necessary repairs,
renewals and replacements thereof, the failure of which could reasonably be
expected to result in a Material Adverse Effect.
B. INSURANCE. Each Credit Party will maintain or cause to be
maintained, with financially sound and reputable insurers, such public
liability insurance, third party property damage insurance, business
interruption insurance and casualty insurance with respect to liabilities,
losses or damage in respect of the assets, properties and businesses of
such Credit Party and its Subsidiaries as may customarily be carried or
maintained under similar circumstances by companies of established
reputation and of similar size and location engaged in similar businesses,
in each case in such amounts (giving effect to self-insurance), with such
deductibles, covering such risks and otherwise
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on such terms and conditions as shall be customary for companies similarly
situated in the industry. Without limiting the generality of the foregoing,
each Credit Party will maintain or cause to be maintained (i) flood
insurance with respect to each Flood Hazard Property that is located in a
community that participates in the National Flood Insurance Program, in
each case in compliance with any applicable regulations of the Board of
Governors of the Federal Reserve System, and (ii) replacement value
casualty insurance on the Collateral under such policies of insurance, with
such insurance companies, in such amounts, with such deductibles, and
covering such risks as are at all times satisfactory to Administrative
Agent in its commercially reasonable judgment. Each such policy of
insurance shall (a) name Administrative Agent for the benefit of Lenders as
an additional insured thereunder as its interests may appear and (b) in the
case of each business interruption and casualty insurance policy, contain a
loss payable clause or endorsement, satisfactory in form and substance to
Administrative Agent, that names Administrative Agent for the benefit of
Lenders as the loss payee thereunder for any covered loss in excess of Five
Hundred Thousand Dollars ($500,000) and provides for at least thirty (30)
days' prior written notice to Administrative Agent of any modification or
cancellation of such policy.
C. APPLICATION OF NET INSURANCE/CONDEMNATION PROCEEDS.
(i) Business Interruption Insurance. Upon receipt by any Credit
Party or any of its Subsidiaries of any business interruption
insurance proceeds constituting Net Insurance/Condemnation Proceeds,
(a) so long as no Event of Default or Potential Event of Default shall
have occurred and be continuing, Borrower or its applicable Subsidiary
may retain and apply such Net Insurance/Condemnation Proceeds for
working capital purposes, and (b) if an Event of Default or Potential
Event of Default shall have occurred and be continuing, Borrower shall
apply an amount equal to such Net Insurance/Condemnation Proceeds to
prepay the Loans (and/or the Revolving Loan Commitments shall be
reduced) as provided in subsection 2.4B;
(ii) Net Insurance/Condemnation Proceeds Received by Borrower.
Upon receipt by any Credit Party or any of its Subsidiaries of any Net
Insurance/Condemnation Proceeds other than from business interruption
insurance, (a) so long as no Event of Default or Potential Event of
Default shall have occurred and be continuing, Borrower may deliver to
Administrative Agent an Officer's Certificate setting forth (1) that
portion of such Net Insurance/Condemnation Proceeds (the "PROPOSED
INSURANCE REINVESTMENT PROCEEDS") that such Credit Party or such
Subsidiary intends to use within one hundred eighty (180) days of such
date of receipt to pay or reimburse the costs of repairing, restoring
or replacing the assets in respect of which such Net
Insurance/Condemnation Proceeds were received or to reinvest in
Eligible Assets and (2) the proposed use of the Proposed Insurance
Reinvestment Proceeds and such other information with respect to such
proposed use as Administrative Agent may reasonably request, such
Credit Party shall, or shall cause one or more of its Subsidiaries to,
promptly and diligently apply such Net Insurance/Condemnation Proceeds
to pay or reimburse the costs of repairing, restoring or replacing the
assets in respect of which such Net Insurance/Condemnation Proceeds
were received or, to the extent not so applied, to prepay the Loans
(and/or the Revolving Loan Commitments shall be reduced) as provided
in subsection 2.4B, and (b) if an Event of Default or Potential Event
of Default shall have occurred and be continuing, if required by the
Administrative Agent, Borrower shall apply an amount equal to such Net
Insurance/Condemnation Proceeds to prepay the Loans (and/or the
Revolving Loan Commitments shall be reduced) as provided in subsection
2.4B.
(iii) Net Insurance/Condemnation Proceeds Received by
Administrative Agent. Upon receipt by Administrative Agent of any Net
Insurance/Condemnation Proceeds as loss payee, (a) if and to the
extent Borrower would have been required to apply such Net
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Insurance/Condemnation Proceeds (if it had received them directly) to
prepay the Loans and/or reduce the Revolving Loan Commitments,
Administrative Agent shall, and Borrower hereby authorizes
Administrative Agent to, apply such Net Insurance/Condemnation
Proceeds to prepay the Loans (and/or the Revolving Loan Commitments
shall be reduced) as provided in subsection 2.4B, and (b) to the
extent the foregoing clause (a) does not apply and (1) the aggregate
amount of such Net Insurance/Condemnation Proceeds received (and
reasonably expected to be received) by Administrative Agent in respect
of any covered loss does not exceed Five Hundred Thousand Dollars
($500,000), Administrative Agent shall deliver such Net
Insurance/Condemnation Proceeds to Borrower, and Borrower shall, or
shall cause one or more of the other Credit Parties and their
respective Subsidiaries to, promptly apply such Net
Insurance/Condemnation Proceeds to the costs of repairing, restoring,
or replacing the assets in respect of which such Net
Insurance/Condemnation Proceeds were received, and (2) if the
aggregate amount of Net Insurance/Condemnation Proceeds received (and
reasonably expected to be received) by Administrative Agent in respect
of any covered loss exceeds Five Hundred Thousand Dollars ($500,000),
Administrative Agent shall hold such Net Insurance/Condemnation
Proceeds pursuant to the terms of the Security Agreement and, so long
as Borrower, any other applicable Credit Parties and their applicable
Subsidiaries proceed diligently to repair, restore or replace the
assets of Borrower or such other applicable Credit Party or Subsidiary
in respect of which such Net Insurance/Condemnation Proceeds were
received, Administrative Agent shall from time to time disburse to
Borrower or such other applicable Credit Party or Subsidiary from the
Collateral Account (as defined in the Security Agreement), to the
extent of any such Net Insurance/Condemnation Proceeds remaining
therein in respect of the applicable covered loss, amounts necessary
to pay the cost of such repair, restoration or replacement after the
receipt by Administrative Agent of invoices or other documentation
reasonably satisfactory to Administrative Agent relating to the amount
of costs so incurred and the work performed (including, if required by
Administrative Agent, lien releases and architects' certificates);
provided, however that if at any time Administrative Agent reasonably
determines (A) that Borrower or such other applicable Credit Party or
Subsidiary are not proceeding diligently with such repair, restoration
or replacement or (B) that such repair, restoration or replacement
cannot be completed with the Net Insurance/Condemnation Proceeds then
held by Administrative Agent for such purpose, together with funds
otherwise available to Borrower, the other Credit Parties and their
Subsidiaries for such purpose, or that such repair, restoration or
replacement cannot be completed within one hundred eighty (180) days
after the receipt by Administrative Agent of such Net
Insurance/Condemnation Proceeds, Administrative Agent shall, and the
Credit Parties hereby authorize Administrative Agent to, apply such
Net Insurance/ Condemnation Proceeds to prepay the Loans (and/or the
Revolving Loan Commitments shall be reduced) as provided in subsection
2.4B.
6.5 INSPECTION RIGHTS; LENDER MEETING.
A. INSPECTION RIGHTS. Each Credit Party shall, and shall cause
each of its Subsidiaries to, permit any authorized representatives
designated by Administrative Agent or any Lender to visit and inspect any
of the properties of such Credit Party or of any of its Subsidiaries, to
inspect, copy and take extracts from its and their financial and accounting
records, and to discuss its and their affairs, finances and accounts with
its and their officers and independent public accountants (provided that
Borrower may, if it so chooses, be present at or participate in any such
discussion), all upon reasonable notice and at such reasonable times during
normal business hours and as often as may reasonably be requested.
B. LENDER MEETING. Without limiting the generality of subsection
6.5A, Borrower will, and will cause the other Credit Parties and their
Subsidiaries, upon the request of
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Administrative Agent or Requisite Lenders to, participate in a meeting of
Administrative Agent and Lenders once during each Fiscal Year to be held at
Borrower's principal offices (or at such other location as may be agreed to
by Borrower and Administrative Agent) at such time as may be agreed to by
Borrower and Administrative Agent.
6.6 COMPLIANCE WITH LAWS.
Each Credit Party shall comply, and shall cause each of its
Subsidiaries to comply, in all material respects, with the requirements of all
applicable laws, rules, regulations and orders of any Government Authority
(including all Environmental Laws). Each Credit Party shall obtain and maintain,
and cause each of its Subsidiaries to obtain and maintain, in full force and
effect, all licenses, permits, franchises or other Governmental Authorizations
and approvals (including those required under all Environmental Laws) necessary
to conduct their respective businesses and own, acquire or dispose of their
respective properties that are material to the conduct of their respective
businesses.
6.7 ENVIRONMENTAL MATTERS.
A. ENVIRONMENTAL REVIEW AND INVESTIGATION. Each Credit Party
agrees that Administrative Agent may, at any time that Administrative Agent
determines in its reasonable discretion, (i) retain, at Borrower's expense,
an independent professional consultant to review any environmental audits,
investigations, analyses and reports relating to Hazardous Materials
prepared by or for any Credit Party or any of its Subsidiaries that any
violation of Environmental Laws or risk of any Environmental Claim may
exist or (ii) in the event (a) Administrative Agent reasonably believes
that any Credit Party or any of its Subsidiaries has breached any
representation, warranty or covenant contained in subsection 5.6, 5.13, 6.6
or 6.7 or that there has been a material violation of Environmental Laws at
any Facility or by such Credit Party or any of its Subsidiaries at any
other location or (b) an Event of Default has occurred and is continuing,
conduct its own investigation of any Facility; provided that, in the case
of any Facility no longer owned, leased, operated or used by Credit Party
or any of its Subsidiaries, the Credit Parties shall only be obligated to
use their commercially reasonable efforts to obtain permission for
Administrative Agent's professional consultant to conduct an investigation
of such Facility. For purposes of conducting such a review and/or
investigation, the Credit Parties hereby grant to Administrative Agent and
its agents, employees, consultants and contractors the right to enter into
or onto any Facilities currently owned, leased, operated or used by any
Credit Party or any of its Subsidiaries and to perform such tests on such
property (including taking samples of soil, groundwater and suspected
asbestos-containing materials) as are reasonably necessary in connection
therewith. Any such investigation of any Facility shall be conducted,
unless otherwise agreed to by Borrower and Administrative Agent, during
normal business hours and, to the extent reasonably practicable, shall be
conducted so as not to unreasonably interfere with the ongoing operations
at such Facility or to cause any damage or loss to any property at such
Facility. Each Credit Party and Administrative Agent hereby acknowledge and
agree that any report of any investigation conducted at the request of
Administrative Agent pursuant to this subsection 6.7A will be obtained and
shall be used by Administrative Agent and Lenders for the purposes of
Lenders' internal credit decisions, to monitor and police the Loans and to
protect Lenders' security interests, if any, created by the Credit
Documents. Administrative Agent agrees to deliver a copy of any such report
to Borrower with the understanding and agreement that the Credit Parties
acknowledge and agree that (x) they will indemnify and hold harmless
Administrative Agent and each Lender from any costs, losses or liabilities
relating to the Credit Parties' use of or reliance on such report, (y)
neither Administrative Agent nor any Lender makes any representation or
warranty with respect to such report, and (z) by delivering such report to
Borrower, neither Administrative Agent nor any Lender is requiring or
recommending the implementation of any suggestions or recommendations
contained in such report.
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B. ENVIRONMENTAL DISCLOSURE. Borrower will deliver to
Administrative Agent and Lenders:
(i) Environmental Audits and Reports. As soon as practicable following
receipt thereof, copies of all environmental audits, investigations,
analyses and reports of any kind or character, whether prepared by
personnel of any Credit Party or any of its Subsidiaries or by independent
consultants, Government Authorities or any other Persons, with respect to
significant environmental matters at any Facility;
(ii) Notice of Certain Releases, Remedial Actions, Etc. Promptly upon
the occurrence thereof, written notice describing in reasonable detail (a)
any Release required to be reported to any federal, state or local
governmental or regulatory agency under any applicable Environmental Laws,
(b) any remedial action taken by any Credit Party or any of its
Subsidiaries or any other Person in response to (1) any Hazardous Materials
Activities the existence of which could reasonably be expected to result in
one or more Environmental Claims, or (2) any Environmental Claims, and (c)
any Credit Party's discovery of any occurrence or condition on any real
property adjoining or in the vicinity of any Facility that could cause such
Facility or any part thereof to be subject to any material restrictions on
the ownership, occupancy, transferability or use thereof under any
Environmental Laws;
(iii) Written Communications Regarding Environmental Claims, Releases,
Etc. As soon as practicable following the sending or receipt thereof by any
Credit Party or any of its Subsidiaries, a copy of any and all written
communications with respect to (a) any Environmental Claims, (b) any
Release required to be reported to any federal, state or local governmental
or regulatory agency, and (c) any request for information from any
Government Authority that suggests such agency is investigating whether any
Credit Party or any of its Subsidiaries may be potentially responsible for
any Hazardous Materials Activity;
(iv) Notice of Certain Proposed Actions Having Environmental Impact.
Prompt written notice describing in reasonable detail (a) any proposed
acquisition of stock, assets, or property by any Credit Party or any of its
Subsidiaries that could reasonably be expected to (1) expose any Credit
Party or any of its Subsidiaries to, or result in, Environmental Claims, or
(2) affect the ability of any Credit Party or any of its Subsidiaries to
maintain in full force and effect all material Governmental Authorizations
required under any Environmental Laws for their respective operations and
(b) any proposed action to be taken by any Credit Party or any of its
Subsidiaries to commence manufacturing or other industrial operations or to
modify current operations in a manner that could reasonably be expected to
subject any Credit Party or any of its Subsidiaries to any additional
material obligations or requirements under any Environmental Laws.
C. ACTIONS REGARDING HAZARDOUS MATERIALS ACTIVITIES,
ENVIRONMENTAL CLAIMS AND VIOLATIONS OF ENVIRONMENTAL LAWS.
(i) Remedial Actions Relating to Hazardous Materials Activities. Each
Credit Party shall, in compliance with all applicable Environmental Laws,
promptly undertake, and shall cause each of its Subsidiaries promptly to
undertake, any and all investigations, studies, sampling, testing,
abatement, cleanup, removal, remediation or other response actions
necessary to remove, remediate, clean up or xxxxx any Hazardous Materials
Activity on, under or about any Facility that is in violation of any
Environmental Laws or that presents a material risk of giving rise to an
Environmental Claim.
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(ii) Actions with Respect to Environmental Claims and Violations of
Environmental Laws. Each Credit Party shall promptly take, and shall cause
each of its Subsidiaries promptly to take, any and all actions necessary to
(i) cure any material violation of applicable Environmental Laws by any
Credit Party or any of its Subsidiaries, and (ii) make an appropriate
response to any Environmental Claim against any Credit Party or any of its
Subsidiaries and discharge, in all material respects, any obligations it
may have to any Person thereunder.
6.8 EXECUTION OF SUBSIDIARY GUARANTY AND PERSONAL PROPERTY COLLATERAL
DOCUMENTS AFTER THE CLOSING DATE.
A. EXECUTION OF SUBSIDIARY GUARANTY AND PERSONAL PROPERTY
COLLATERAL DOCUMENTS. In the event that any Person becomes a Domestic
Subsidiary of Borrower after the date hereof, Borrower will promptly notify
Administrative Agent of that fact and cause such Domestic Subsidiary to
execute and deliver to Administrative Agent a Subsidiary Guaranty and a
counterpart of the Security Agreement and to take all such further actions
and execute all such further documents and instruments (including actions,
documents and instruments comparable to those described in subsection 4.2I)
as may be necessary or, in the opinion of Administrative Agent, desirable
to create in favor of Administrative Agent, for the benefit of Lenders, a
valid and perfected First Priority Lien on all of the personal and mixed
property assets of such Domestic Subsidiary described in the applicable
forms of Collateral Documents. In addition, as provided in the Security
Agreement, Borrower shall, or shall cause the Subsidiary that owns the
Capital Stock of such Person, to execute and deliver to Administrative
Agent a supplement to the Security Agreement and to deliver to
Administrative Agent all certificates representing such Capital Stock of
such Person (accompanied by irrevocable undated stock powers, duly endorsed
in blank).
B. SUBSIDIARY ORGANIZATIONAL DOCUMENTS, LEGAL OPINIONS, ETC.
Borrower shall deliver to Administrative Agent, together with such Credit
Documents, (i) certified copies of such Subsidiary's Organizational
Documents, together with a good standing certificate from the Secretary of
State of the jurisdiction of its organization and each other state in which
such Subsidiary is qualified to do business and, to the extent generally
available, a certificate or other evidence of good standing as to payment
of any applicable franchise or similar taxes from the appropriate taxing
authority of each of such jurisdictions, each to be dated a recent date
prior to their delivery to Administrative Agent, (ii) a certificate
executed by the secretary or similar officer of such Subsidiary as to (a)
the fact that the attached resolutions of the Governing Body of such
Subsidiary approving and authorizing the execution, delivery and
performance of such Credit Documents are in full force and effect and have
not been modified or amended and (b) the incumbency and signatures of the
officers of such Subsidiary executing such Credit Documents, (iii) an
executed supplement to the Security Agreement evidencing the pledge of the
Capital Stock of such Subsidiary by Borrower or a Subsidiary of Borrower
that owns such Capital Stock, accompanied by any certificate evidencing
such Capital Stock, together with irrevocable undated stock powers duly
endorsed in blank and satisfactory in form and substance to Administrative
Agent, and (iv) a favorable opinion of counsel to such Subsidiary, in form
and substance reasonably satisfactory to Administrative Agent and its
counsel, as to (a) the due organization and good standing of such
Subsidiary, (b) the due authorization, execution and delivery by such
Subsidiary of such Credit Documents, (c) the enforceability of such Credit
Documents against such Subsidiary and (d) such other matters (including
matters relating to the creation and perfection of Liens in any Collateral
pursuant to such Credit Documents) as Administrative Agent may reasonably
request, all of the foregoing to be satisfactory in form and substance to
Administrative Agent and its counsel.
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6.9 MATTERS RELATING TO ADDITIONAL REAL PROPERTY COLLATERAL.
A. ADDITIONAL MORTGAGES, ETC. From and after the Closing Date, at
the request of Administrative Agent in its discretion, in the event that
(i) Borrower or any Subsidiary Guarantor acquires any fee interest in
material real property or any Material Leasehold Property or (ii) at the
time any Person becomes a Subsidiary Guarantor, such Person owns or holds
any fee interest in material real property or any Material Leasehold
Property, in either case excluding any such Real Property Asset the
encumbrancing of which requires the consent of any applicable lessor or (in
the case of clause (ii) above) then-existing senior lienholder, where any
or all of Borrower and its Subsidiaries have attempted in good faith, but
are unable, to obtain such lessor's or senior lienholder's consent (any
such non-excluded Real Property Asset described in the foregoing clause (i)
or (ii) being an "ADDITIONAL MORTGAGED PROPERTY"), Borrower or such
Subsidiary Guarantor shall deliver to Administrative Agent, as soon as
practicable after such Person acquires such Additional Mortgaged Property
or becomes a Subsidiary Guarantor, as the case may be, a fully executed and
notarized Mortgage (an "ADDITIONAL MORTGAGE"), in proper form for recording
in all appropriate places in all applicable jurisdictions, encumbering the
interest of such Credit Party in such Additional Mortgaged Property; and
such Leasehold Collateral Assignments, Leasehold Consent and Estoppels,
opinions, appraisal, documents, title insurance, environmental reports that
may be reasonably required by Administrative Agent.
B. REAL ESTATE APPRAISALS. Borrower shall, and shall cause each
of its Subsidiaries to, permit an independent real estate appraiser
satisfactory to Administrative Agent, upon reasonable notice, to visit and
inspect any Additional Mortgaged Property for the purpose of preparing an
appraisal of such Additional Mortgaged Property satisfying the requirements
of any applicable laws and regulations (in each case to the extent required
under such laws and regulations as determined by Administrative Agent in
its discretion).
6.10 INTEREST RATE PROTECTION.
If at any time as of or after the Initial Funding Date, the Total
Leverage Ratio is greater than 3.50:1.00, then, within sixty (60) days
thereafter, Borrower will obtain, and thereafter shall maintain in full force
and effect at all times for a minimum of three (3) years, one or more Interest
Rate Agreements with respect to the Loans, in an aggregate notional principal
amount of not less than fifty percent (50%) of the aggregate principal amount of
the Total Debt outstanding, each such Interest Rate Agreement to be in form and
substance reasonably satisfactory to Administrative Agent and with a term of not
less than three (3) years; provided that Borrower shall have no obligation to
obtain or maintain Interest Rate Agreements in an aggregate notional principal
amount exceeding Twelve Million Five Hundred Dollars ($12,500,000).
6.11 CASH MANAGEMENT.
Each Credit Party shall, and shall cause each of its Subsidiaries
to, use and maintain their Deposit Accounts and cash management systems in a
manner reasonably satisfactory to Administrative Agent. On or prior to the
Initial Funding Date and at all times thereafter, the Credit Parties shall, or
shall cause each of their respective Subsidiaries to, (i) deliver to
Administrative Agent and maintain in full force and effect a Control Agreement
in respect of each material Deposit Account as designated by the Administrative
Agent in its reasonable discretion, and (ii) take all other steps necessary or,
in the opinion of Administrative Agent in its reasonable discretion, desirable
to ensure that Administrative Agent has a perfected security interest in each
such material Deposit Account.
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SECTION 7. BORROWER'S NEGATIVE COVENANTS
Borrower covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations, unless Requisite Lenders shall otherwise give
prior written consent, Borrower shall perform, and shall cause each other Credit
Party and their respective Subsidiaries to perform, all covenants in this
Section 7.
7.1 INDEBTEDNESS.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, create, incur, assume or
guaranty, or otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness, except:
(i) The Credit Parties may become and remain liable with respect to
the Obligations;
(ii) Borrower and its Subsidiaries may become and remain liable with
respect to Interest Rate Agreement Obligations and Contingent Obligations
permitted by subsection 7.4 and, upon any matured obligations actually
arising pursuant thereto, the Indebtedness corresponding to the Interest
Rate Agreement Obligations and Contingent Obligations so extinguished;
(iii) Borrower and its Subsidiaries may become and remain liable with
respect to Indebtedness existing as of the Closing Date that is identified
in SCHEDULE 7.1(III) annexed hereto, and refinancing of such Indebtedness
in a principal amount not in excess of that which is outstanding on the
Closing Date (as such amount may be reduced following the Closing Date) and
on material terms and conditions no more onerous to Borrower and its
Subsidiaries than the terms and conditions of the Indebtedness being
refinanced; provided that Borrower shall repay the Existing Senior
Indebtedness in full on or prior to the Initial Funding Date;
(iv) Borrower may become and remain liable with respect to
Indebtedness to any Subsidiary Guarantor, and any wholly-owned Subsidiary
of Borrower may become and remain liable with respect to Indebtedness to
Borrower or any Subsidiary Guarantor; provided that (a) a Lien on all such
intercompany Indebtedness shall have been granted to Administrative Agent
for the benefit of Lenders and (b) such intercompany Indebtedness shall be
evidenced by a promissory note or other instrument in form and substance
acceptable to Administrative Agent, and such promissory note or instrument
shall have been pledged to Administrative Agent pursuant to the Security
Agreement; and
(v) Borrower and its Subsidiaries may become and remain liable with
respect to additional Indebtedness in respect of Capital Leases and
purchase money security interests permitted under subsection 7.2A(iv) and
other unsecured Indebtedness in an aggregate principal amount not to exceed
One Million Dollars ($1,000,000) at any time outstanding.
7.2 LIENS AND RELATED MATTERS.
A. PROHIBITION ON LIENS. The Credit Parties shall not, and shall
not permit any of their respective Subsidiaries to, directly or indirectly,
create, incur, assume or permit to exist any Lien on or with respect to any
property or asset of any kind (including any document or instrument in
respect of goods or accounts receivable) of Borrower, any other Credit
Party or any of their Subsidiaries, whether now owned or hereafter
acquired, or any income or profits therefrom, or file or permit the filing
of, or permit to remain in effect, any financing statement or other similar
notice of
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any Lien with respect to any such property, asset, income or profits under
the UCC or under any similar recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents;
(iii) Liens existing as of the Closing Date and disclosed in SCHEDULE
7.1(III) securing Indebtedness described in subsection 7.1(iii), and the
refinancing of such Indebtedness; provided that no such Liens shall
encumber any additional property and the amount of Indebtedness secured by
such Liens is not increased from that existing on the Closing Date (as such
Indebtedness may have been permanently reduced subsequent to the Closing
Date); provided that all Liens securing the Existing Senior Indebtedness
shall be terminated on or prior to the Initial Funding Date; and
(iv) Liens to secure the payment of all or any part of the purchase
price of an asset upon the acquisition of such asset by Borrower or any
Subsidiary Guarantor or to secure any Indebtedness permitted hereby
incurred by Borrower or any Subsidiary Guarantor at the time of or within
ninety (90) days after the acquisition of such asset, which Indebtedness is
incurred for the purpose of financing all or any part of the purchase price
thereof; provided, however, that the Lien shall apply only to the asset so
acquired and proceeds thereof; and provided further, that all such Liens do
not, at any time, in the aggregate secure Indebtedness in excess of the
difference of One Million Dollars ($1,000,000) minus the amount of other
Indebtedness permitted under subsection 7.1(v) at such time outstanding.
B. EQUITABLE LIEN IN FAVOR OF LENDERS. If any Credit Party or any
of its Subsidiaries shall create or assume any Lien upon any of its
properties or assets, whether now owned or hereafter acquired, other than
Liens excepted by the provisions of subsection 7.2A, it or they shall make
or cause to be made effective provision whereby the Obligations will be
secured by such Lien equally and ratably with any and all other
Indebtedness secured thereby as long as any such Indebtedness shall be so
secured; provided that, notwithstanding the foregoing, this covenant shall
not be construed as a consent by Requisite Lenders to the creation or
assumption of any such Lien not permitted by the provisions of subsection
7.2A.
C. NO FURTHER NEGATIVE PLEDGES. Except as provided in this
Agreement and the other Credit Documents, none of the Credit Parties and
their respective Subsidiaries shall enter into any agreement (other than an
agreement prohibiting only the creation of Liens securing Subordinated
Indebtedness) prohibiting the creation or assumption of any Lien upon any
of its or their properties or assets, whether now owned or hereafter
acquired except for Liens on assets securing debt under subsections
7.1(iii) and 7.1(v).
D. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO BORROWER OR
OTHER SUBSIDIARIES. Except as expressly provided in this Agreement, the
Credit Parties will not, and will not permit any of their respective
Subsidiaries to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the
ability of any such Subsidiary to (i) pay dividends or make any other
distributions on any of such Subsidiary's Capital Stock owned by such
Credit Party or any other Subsidiary of such Credit Party, (ii) repay or
prepay any Indebtedness owed by such Subsidiary to such Credit Party or any
other Subsidiary of such Credit Party, (iii) make loans or advances to such
Credit Party or any other Subsidiary of such Credit Party, or (iv) transfer
any of its property or assets to such Credit Party or any other Subsidiary
of such Credit Party.
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7.3 INVESTMENTS; ACQUISITIONS.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, make or own any Investment
in any Person, including any Joint Venture, or acquire, by purchase or
otherwise, all or substantially all the business, property or fixed assets of,
or Capital Stock or other ownership interest of any Person, or any division or
line of business of any Person except:
(i) Borrower and the Subsidiary Guarantors may make and own
Investments in Cash Equivalents;
(ii) The Credit Parties and their respective Subsidiaries may continue
to own the Investments owned by them as of the Closing Date (and the Merger
Transaction Funding Date after the consummation of the Merger Transaction)
in any of their respective Subsidiaries;
(iii) The Credit Parties may make intercompany loans to the extent
permitted under subsection 7.1(iv);
(iv) Borrower and its Subsidiaries may make Other Capital Expenditures
permitted by subsection 7.8;
(v) Borrower may make and own Investments in Subsidiaries in
connection with Permitted Acquisitions permitted under subsection 7.7;
provided that such Subsidiaries have executed all documents and delivered
all items required to be executed or delivered by such Subsidiaries
pursuant to subsections 6.8 and 6.9; and
(vi) Permitted Acquisitions.
7.4 CONTINGENT OBLIGATIONS; HEDGING OBLIGATIONS.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, create or become or remain
liable with respect to any Contingent Obligation or Hedging Obligation, except:
(i) Borrower may become and remain liable with respect to Contingent
Obligations in respect of Letters of Credit;
(ii) Subsidiaries may become and remain liable with respect to
Contingent Obligations in respect of the Subsidiary Guaranty and the other
Credit Documents;
(iii) Borrower and its Subsidiaries may become and remain liable with
respect to Interest Rate Agreement Obligations under Interest Rate
Agreements required under subsection 6.10; and
(iv) The Credit Parties may become and remain liable with respect to
Contingent Obligations in respect of customary indemnification and purchase
price adjustment obligations incurred in connection with Permitted
Acquisitions and Asset Sales or other sales of assets permitted hereunder.
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7.5 RESTRICTED JUNIOR PAYMENTS.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, declare, order, pay, make or
set apart any sum for any Restricted Junior Payment; provided that, so long as
no Event of Default or Potential Event of Default shall have occurred and be
continuing or shall be caused thereby and the payment shall be subordinated to
the Obligations on terms satisfactory to Administrative Agent:
(i) From and after the consummation of the Merger Transaction in
accordance with the terms and conditions hereof (including the satisfaction
of the conditions set forth in subsection 4.2), the Credit Parties may make
Permitted Tax Distributions;
(ii) From and after the consummation of the Merger Transaction in
accordance with the terms and conditions hereof (including the satisfaction
of the conditions set forth in subsection 4.2), Borrower may pay Management
Fees pursuant to the Management Agreement; provided, however, such
Management Fees shall not include the payment of any public company costs,
fees or expenses (whether internal or external) until after December 31,
2008;
(iii) In addition to the above, if the Merger Transaction is
consummated in accordance with the terms and conditions hereof (including
the satisfaction of the conditions set forth in subsection 4.2), after
December 31, 2008, through the Final Maturity Date, Borrower may pay
Management Fees comprised of public company costs, fees or expenses
(whether internal or external), provided that no Potential Event of Default
or Event of Default shall have occurred and be continuing and after giving
effect to the payment of such public company costs, fees or expenses, the
Leverage Ratio shall not exceed 2.50:1.00, and Borrower shall have
delivered an Officer's Certificate, in form and substance reasonably
satisfactory to Administrative Agent, to such effect and demonstrating such
compliance, including all appropriate calculations and attachments; and
(iv) From and after the consummation of the Merger Transaction in
accordance with the terms and conditions hereof (including the satisfaction
of the conditions set forth in subsection 4.2), if no Potential Event of
Default or Event of Default shall have occurred and be continuing and the
Leverage Ratio shall not exceed 3.50:1.00, Borrower may purchase or redeem
any Capital Stock issued to WRP in accordance with subsection
2.4B(iii)(c)(3) in an aggregate amount of up to Two Million Dollars
($2,000,000).
7.6 FINANCIAL COVENANTS.
A. MINIMUM FIXED CHARGE COVERAGE RATIO. Borrower shall not
permit, at any time, the ratio of (i) EBITDA for the immediately preceding
four (4) Fiscal Quarter period to (ii) Fixed Charges for such period to be
less than 1.10:1.00.
B. MAXIMUM TOTAL LEVERAGE RATIO. Borrower shall not permit, at
any time, the Total Leverage Ratio as at any date during any of the periods
set forth below to exceed the correlative ratio indicated:
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PERIOD
-------------------------------------
FISCAL YEAR END FISCAL YEAR END MAXIMUM
OCTOBER 31 DECEMBER 31 TOTAL LEVERAGE RATIO
----------------- ----------------- --------------------
Closing - 4/30/07 Closing - 3/31/07 5.25:1.00
5/1/07 - 10/31/07 4/1/07 - 9/30/07 4.75:1.00
11/1/07 - 4/30/08 10/1/07 - 3/31/08 4.25:1.00
5/1/08 - 1/31/09 4/1/08 - 12/31/08 3.50:1.00
2/1/09 - 7/31/09 1/1/09 - 6/30/09 3.00:1.00
8/1/09 - 1/31/10 7/1/09 - 12/31/09 2.50:1.00
Thereafter Thereafter 2.00:1.00
C. MINIMUM INTEREST COVERAGE RATIO. Borrower shall not permit the
ratio of (i) EBITDA for the immediately preceding four (4) Fiscal Quarter
period ending at any time during any of the periods set forth in the table
below to (ii) Cash Interest Expense for such period to be less than the
correlative ratio indicated:
PERIOD
--------------------------------------
FISCAL YEAR END FISCAL YEAR END
OCTOBER 31 DECEMBER 31 MINIMUM RATIO
------------------ ----------------- -------------
Closing - 10/31/07 Closing - 9/30/07 2.00:1.00
11/1/07 - 10/31/08 10/1/07 - 9/30/08 2.25:1.00
Thereafter Thereafter 2.50:1.00
D. CERTAIN CALCULATIONS. With respect to any period during which
a Permitted Acquisition occurs, for purposes of determining EBITDA, Cash
Interest Expense and Fixed Charges pursuant to subsection 7.6 and for
purposes of calculating Total Leverage Ratio under this Agreement, such
determination shall be made with respect to such period on a pro forma
basis by (i) adding (without duplication) to the amount of such EBITDA
(determined as if all references to Borrower and its Subsidiaries in the
definition of "EBITDA" and in the definitions of the components thereof
were references to the business that is the subject of the Permitted
Acquisition) for such business so acquired for the most recent immediately
preceding four (4) Fiscal Quarter period for which historical financial
statements are available, and, further, making reasonable pro forma
adjustments thereto, if any, satisfactory to Administrative Agent, (ii)
assuming that any related borrowings occurred on the first day of such
period and adding (without duplication) to the amount
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of such Cash Interest Expense the pro forma interest accrued on such
borrowings, calculated as an amount equal to the product of (a) actual Cash
Interest Expense attributable to such borrowings (based on the actual
interest rate requested and received by Borrower in connection with such
Permitted Acquisition) during the period from the date such borrowings were
made to the date of determination multiplied by (b) the ratio (1) 365 to
(2) the number of days in such period, all such calculations to be
reasonably satisfactory to Administrative Agent.
7.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES; PERMITTED
ACQUISITIONS.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, alter their respective corporate, limited liability
company, limited partnership, capital or legal structures, or enter into any
transaction of merger or consolidation, or liquidate, wind-up or dissolve itself
(or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease
(as lessor or sublessor), transfer or otherwise dispose of, in one transaction
or a series of transactions, all or any part of their business, property or
assets (including their notes or receivables and Capital Stock of a Subsidiary,
whether newly issued or outstanding), whether now owned or hereafter acquired,
or acquire by purchase or otherwise all or substantially all the business,
property, or assets of, or stock or other evidence of beneficial ownership of,
any Person or any division or line of business of any Person or create any
additional Subsidiaries, except:
(i) Borrower and its Subsidiaries may dispose of obsolete, worn out or
surplus property in the ordinary course of business;
(ii) Borrower and its Subsidiaries may (a) sell or otherwise dispose
of assets in transactions that do not constitute Asset Sales and (b) may
make Asset Sales of assets having a fair market value not in excess of Two
Hundred Fifty Thousand ($250,000) individually or in the aggregate for a
Fiscal Year, provided that (x) the consideration received for such assets
shall be in an amount at least equal to the fair market value thereof, (y)
the sole consideration received shall be cash, and (z) the proceeds of such
asset sales or other disposition shall be applied as required by subsection
2.4B(iii)(a), subsection 2.4D or subsection 7.7;
(iii) Borrower may consummate the Merger Transaction in accordance
with the terms and conditions hereof, provided that all of the conditions
set forth in subsections 4.2 and 4.4 have been satisfied; and
(iv) On and after the Merger Transaction Termination Date, Borrower
and its Subsidiaries may make acquisitions of Real Estate Market
Information Assets (in each case a "PERMITTED ACQUISITION"), subject to
satisfaction of each of the following conditions:
(a) Administrative Agent and Lenders shall receive at least
fifteen (15) Business Days' prior written notice (or such shorter
period as Administrative Agent may agree) of such proposed Permitted
Acquisition, which notice shall include a reasonably detailed
description of such proposed Permitted Acquisition;
(b) Concurrently with delivery of the notice referred to in
clause (a) above, Borrower shall have delivered to Administrative
Agent and Lenders, in form and substance reasonably satisfactory to
Administrative Agent:
(I) such historical financial statements of the Real Estate
Market Information Assets to be acquired as Administrative Agent
shall, in its sole discretion, request (the "HISTORICAL FINANCIAL
STATEMENTS");
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(II) a pro forma consolidated balance sheet and statements
of operations and cash flows of Borrower and its Subsidiaries
(the "ACQUISITION PRO FORMA"), based on recent financial
statements and including pro forma EBITDA adjustments approved by
Administrative Agent, which financial statements shall be
complete and shall fairly present in all material respects the
assets, liabilities, financial condition and results of
operations of Borrower and its Subsidiaries in accordance with
GAAP consistently applied, but taking into account such Permitted
Acquisition and the funding of all Loans in connection therewith,
and such Acquisition Pro Forma shall reflect that, on a pro forma
basis, no Event of Default or Potential Event of Default has
occurred and is continuing or would result after giving effect to
such Permitted Acquisition and Borrower and its Subsidiaries
would have been in compliance with requirements set forth in
Section 7 (including the financial covenants set forth in
subsection 7.6) for the four (4) Fiscal Quarter period reflected
in the Compliance Certificate most recently delivered to
Administrative Agent pursuant to subsection 6.1(v) prior to the
consummation of such Permitted Acquisition (after giving effect
to such Permitted Acquisition and all Loans funded in connection
therewith as if made on the first day of such period), provided
that the actual Total Leverage Ratio on the Permitted Acquisition
closing date, taking into account substantially all of the
closing costs and related expenses, shall be at least twenty-five
(25) basis points less than the maximum Total Leverage Ratio for
the next Fiscal Quarter end;
(III) updated versions of the most recently delivered
projected financial statements of Borrower and its Subsidiaries
(the "ACQUISITION PROJECTIONS"), which projected financial
statements shall be based upon historical financial data of a
recent date reasonably satisfactory to Administrative Agent and
Requisite Lenders, taking into account such Permitted
Acquisition; and
(IV) a certificate of the chief financial officer of
Borrower or other Officer of Borrower acceptable to
Administrative Agent to the effect that (x) the applicable
Historical Financial Statements fairly present, in all material
respects, the financial condition of the applicable Real Estate
Market Information Assets as at the dates indicated and the
results of their operations and their cash flows for the periods
indicated, (y) the Acquisition Pro Forma fairly presents in all
material respects the financial condition of Borrower, its
Subsidiaries, and the Real Estate Market Information Assets as of
the date thereof after giving effect to the Permitted
Acquisition; (y) the Acquisition Projections are reasonable
estimates of the future financial performance of Borrower, its
Subsidiaries and the applicable Real Estate Market Information
Assets subsequent to the date thereof based upon the historical
performance of Borrower, its Subsidiaries and the applicable Real
Estate Market Information Assets and show that Borrower shall
continue to be in compliance with the financial covenants set
forth in subsection 7.6 through the later of Final Maturity Date,
and (z) Borrower has completed its due diligence investigation
with respect to the applicable Real Estate Market Information
Assets and such Permitted Acquisition, which investigation was
conducted in a manner similar to that which would have been
conducted by a prudent purchaser of a comparable business and the
results of which investigation were delivered and acceptable to
Administrative Agent.
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(c) at least ten (10) days prior to the date of such Permitted
Acquisition, Administrative Agent and Lenders shall have received, in
form and substance reasonably satisfactory to Administrative Agent,
copies of the acquisition agreement and related agreements and
instruments, and all opinions, certificates, lien search results and
other documents reasonably requested by Administrative Agent including
those specified in the subsections 6.8 and 6.9;
(d) with respect to any proposed Permitted Acquisition, if the
purchase price or other consideration (including without limitation,
all deferred payments, non-compete or consulting payments, all
transaction costs and all Indebtedness, liabilities and contingent
obligations incurred or assumed in connection therewith or otherwise
reflected or to be reflected in a consolidated balance sheet of
Borrower and its Subsidiaries) therefor exceeds Five Million Dollars
($5,000,000), then such proposed Permitted Acquisition shall have been
approved in advance in writing by the Requisite Lenders; provided that
the sum of all amounts payable in connection with all Permitted
Acquisitions (including without limitation, all deferred payments,
non-compete payments, all transaction costs and all Indebtedness,
liabilities and contingent obligations incurred or assumed in
connection therewith or otherwise reflected in a consolidated balance
sheet of Borrower, its Subsidiaries and the Real Estate Market
Information Assets) shall not exceed Ten Million Dollars ($10,000,000)
in the aggregate;
(e) no Event of Default or Potential Event of Default shall have
occurred and be continuing, or would result from, such Permitted
Acquisition, and Borrower shall have delivered to Administrative Agent
an Officer's Certificate to such effect;
(f) Administrative Agent, on behalf of Lenders, receives a First
Priority Lien (to the extent required under subsections 5.16, 6.8A,
and 6.9) on all real and personal property acquired by Borrower or any
Subsidiary in such acquisition (it being understood that all Capital
Stock of any Subsidiary of Borrower in existence immediately after
such acquisition shall be pledged pursuant to the Security Agreement
and that each such Subsidiary shall execute a counterpart of the
Security Agreement) and Borrower shall deliver an opinion of counsel
as to such matters, in form and substance satisfactory to
Administrative Agent, substantially in the form of the corresponding
opinions of counsel delivered on the Closing Date; and
(g) Borrower shall have updated each of the Schedules to the
Agreement and the other Credit Documents to the extent necessary to
reflect changes resulting from the consummation of such Permitted
Acquisition, in each case in form and substance satisfactory to
Administrative Agent, and Borrower shall have delivered to
Administrative Agent an Officer's Certificate to which such updated
Schedules shall be attached certifying that such Schedules are true,
correct and complete as of the date of such Permitted Acquisition.
7.8 OTHER CAPITAL EXPENDITURES.
The Credit Parties shall not make or incur, and shall not permit
their respective Subsidiaries to make or incur, Other Capital Expenditures for
Borrower and its Subsidiaries in an aggregate amount in excess of Seven Hundred
Fifty Thousand Dollars ($750,000) for the Fiscal Year ending as at October 31 or
December 31, 2007, as applicable; Eight Hundred Seventy-Five Thousand Dollars
($875,000) for the Fiscal Year ending as at October 31 or December 31, 2008, as
applicable; and One Million Dollars
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($1,000,000) for the Fiscal Year ending as at October 31 or December 31, 2009,
as applicable, and for each Fiscal Year thereafter.
7.9 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction, agreement or arrangement (including the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
holder of any Capital Stock or class of equity Securities of any Credit Party or
with any Affiliate of any Credit Party (including any members thereof) or of any
such holder, on terms that are less favorable to such Credit Party or that
Subsidiary, as the case may be, than those that might be obtained at the time
from Persons who are not such a holder or Affiliate; provided that the foregoing
restriction shall not apply to (i) any transaction between or among the Credit
Parties that are expressly permitted under the terms and provisions of this
Agreement, (ii) the payment of Management Fees under the Management Agreement to
the extent permitted hereunder, and (iii) the Merger Transaction and Related
Agreements.
7.10 SALES AND LEASE-BACKS.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, become or remain liable as
lessee or as a guarantor or other surety with respect to any lease, whether an
Operating Lease or a Capital Lease, of any property (whether real, personal or
mixed), whether now owned or hereafter acquired, (i) that any Credit Party or
any of its Subsidiaries has sold or transferred or is to sell or transfer to any
other Person or (ii) that any Credit Party or any of its Subsidiaries intends to
use for substantially the same purpose as any other property that has been or is
to be sold or transferred by any Credit Party or any of its Subsidiaries to any
Person in connection with such lease.
7.11 SALE OR DISCOUNT OF RECEIVABLES.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, sell with recourse, or
discount or otherwise sell for less than the face value thereof, any of their
notes or accounts receivable other than in the ordinary course of business.
7.12 CONDUCT OF BUSINESS.
From and after the Closing Date, the Credit Parties shall not,
and shall not permit any of their respective Subsidiaries to, engage in any
business other than (i) the businesses engaged in by such Credit Parties and
their Subsidiaries on the Closing Date and similar or related businesses and
(ii) such other lines of business as may be consented to by Requisite Lenders.
7.13 AMENDMENTS OR WAIVERS OF CERTAIN AGREEMENTS; AMENDMENTS OF
DOCUMENTS RELATED TO SUBORDINATED INDEBTEDNESS.
A. NO AMENDMENT OR WAIVER OF RELATED AGREEMENTS. The Credit
Parties shall not, and shall not permit any of their respective
Subsidiaries to, agree to any amendment to, or waive any of their rights
under, any of the Related Agreements (other than non-material amendments or
waivers which individually or in the aggregate would not be materially
adverse to any Credit Party or any of its Subsidiaries, Administrative
Agent or any Lender) without in each case obtaining the prior written
consent of Administrative Agent to such amendment or waiver.
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B. ORGANIZATIONAL DOCUMENTS. The Credit Parties shall not, and
shall not permit any of their respective Subsidiaries to, amend,
supplement, waive any rights under, or otherwise modify their respective
Organizational Documents (other than amendments or waivers in connection
with consummation of the Merger Transaction in accordance with the terms
and conditions hereof (including the satisfaction of the conditions set
forth in subsection 4.2) and non-material amendments or waivers which
individually or in the aggregate would not be materially adverse to any
Credit Party or any of its Subsidiaries, Administrative Agent or any
Lender) without in each case obtaining the prior written consent of
Administrative Agent to such amendment, supplement or waiver.
C. AMENDMENTS OF DOCUMENTS RELATING TO SUBORDINATED INDEBTEDNESS.
The Credit Parties shall not, and shall not permit any of their respective
Subsidiaries to, amend or otherwise change the terms of any Subordinated
Indebtedness, or make any payment consistent with an amendment thereof or
change thereto, if the effect of such amendment or change is to change (to
earlier dates) any dates upon which payments of principal or interest are
due thereon, change any event of default or condition to an event of
default with respect thereto (other than to eliminate any such event of
default or increase any grace period related thereto), change the
redemption, prepayment or defeasance provisions thereof, change the
subordination provisions of such Subordinated Indebtedness (or of any
guaranty thereof), or change any collateral therefor (other than to release
such collateral), or if the effect of such amendment or change, together
with all other amendments or changes made, is to increase materially the
obligations of the obligor thereunder or to confer any additional rights on
any holders of such Subordinated Indebtedness (or a trustee or other
representative on their behalf) which would be adverse to any of the Credit
Parties, any of their Subsidiaries, Administrative Agent or Lenders.
7.14 FISCAL YEAR.
Prior to the consummation of the Merger Transaction, the Credit
Parties shall not, and shall not permit any of their respective Subsidiaries to,
change their Fiscal Year-end from October 31 without the consent of the
Requisite Lenders; provided, however, that on or immediately prior to the Merger
Transaction Funding Date, the Credit Parties shall, and shall cause their
respective Subsidiaries to, change their Fiscal Year-end to December 31 and,
thereafter, the neither the Credit Parties nor WRP shall, and shall not permit
any of their respective Subsidiaries to, change their Fiscal Year-end from
December 31 without the consent of the Requisite Lenders.
SECTION 8. EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF
DEFAULT") shall occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by Borrower to pay (i) interest on any Loan within two
(2) Business Days after the date due or (ii) any installment of principal of any
Loan when due, in either case whether at stated maturity, by acceleration, by
notice of voluntary prepayment, by mandatory prepayment or otherwise; failure by
Borrower to pay any amount payable to an Issuing Lender in reimbursement of any
drawing under any Letter of Credit; or failure by Borrower or any other Credit
Party to pay any fee or any other amount due under this Agreement or any other
Credit Document within three (3) Business Days after the date due; or
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8.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of any Credit Party or any of its Subsidiaries to pay
when due any principal of or interest on or any other amount payable
in respect of one or more items of Indebtedness (other than
Indebtedness referred to in subsection 8.1) or Contingent Obligations
or Hedging Obligations in an individual principal amount of Two
Hundred Fifty Thousand Dollars ($250,000) or more or with an aggregate
principal amount of Two Hundred Fifty Thousand Dollars ($250,000) or
more, in each case beyond the end of any grace period provided
therefor; or
(ii) Breach or default by any Credit Party or any of its
Subsidiaries with respect to any other material term of (a) one or
more items of Indebtedness, Contingent Obligations or Hedging
Obligations in the individual or aggregate principal amounts referred
to in clause (i) above or in respect of or (b) any loan agreement,
mortgage, indenture or other agreement relating to such item(s) of
Indebtedness, Contingent Obligations or Hedging Obligations, if the
effect of such breach or default is to cause, or to permit the holder
or holders of that Indebtedness, Contingent Obligations or Hedging
Obligations (or a trustee on behalf of such holder or holders) to
cause, that Indebtedness, Contingent Obligations or Hedging
Obligations to become or be declared due and payable prior to its
stated maturity or the stated maturity of any underlying obligation,
as the case may be (upon the giving or receiving of notice, lapse of
time, both, or otherwise); or
8.3 BREACH OF CERTAIN COVENANTS.
Failure of any Credit Party or any of its Subsidiaries to perform
or comply with any term or condition contained in subsection 2.5, subsection
6.1(i), subsection 6.2, subsection 6.4B, subsection 6.10, subsection 6.11 or
Section 7 of this Agreement; or
8.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement
made by any Credit Party or any of its Subsidiaries in this Agreement or any
other Credit Document or in any statement or certificate at any time given by
any Credit Party or any of its Subsidiaries or WRP or any of its Subsidiaries in
writing pursuant hereto or thereto or in connection herewith or therewith shall
be false in any material respect on the date as of which made or deemed made; or
8.5 OTHER DEFAULTS UNDER CREDIT DOCUMENTS.
Any Credit Party or any of its Subsidiaries shall default in the
performance of or compliance with any term contained in this Agreement or any of
the other Credit Documents, other than any such term referred to in any other
subsection of this Section 8, and such default shall not have been remedied or
waived within thirty (30) days or more; or
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of any Credit Party or any of
its Subsidiaries (or WRP after the consummation of the Merger
Transaction) in an involuntary case under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, which decree or order is not stayed; or any other
similar relief shall be granted under any applicable federal or state
law; or
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(ii) an involuntary case shall be commenced against any Credit
Party or any of its Subsidiaries (or WRP after the consummation of the
Merger Transaction) under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over any
Credit Party or any of its Subsidiaries (or WRP after the consummation
of the Merger Transaction), or over all or a substantial part of any
of property of any Credit Party or any of its Subsidiaries (or WRP
after the consummation of the Merger Transaction), shall have been
entered; or there shall have occurred the involuntary appointment of
an interim receiver, trustee or other custodian of any Credit Party or
any of its Subsidiaries (or WRP after the consummation of the Merger
Transaction) for all or a substantial part of the property any Credit
Party or any of its Subsidiaries or (or WRP after the consummation of
the Merger Transaction); or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of
the property of any Credit Party or any of its Subsidiaries (or WRP
after the consummation of the Merger Transaction), and any such event
described in this clause (ii) shall continue for sixty (60) days
unless dismissed, bonded or discharged; or
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC..
(i) Any Credit Party or any of its Subsidiaries (or WRP after the
consummation of the Merger Transaction) shall have an order for relief
entered with respect to it or commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency
or similar law now or hereafter in effect, or shall consent to the
entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such
law, or shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of
its property; or any Credit Party or any of its Subsidiaries (or WRP
after the consummation of the Merger Transaction) shall make any
assignment for the benefit of creditors; or
(ii) Any Credit Party or any of its Subsidiaries (or WRP after
the consummation of the Merger Transaction) shall be unable, or shall
fail generally, or shall admit in writing its inability, to pay its
debts as such debts become due; or the Governing Body of any Credit
Party or any of its Subsidiaries (or WRP after the consummation of the
Merger Transaction) (or any committee thereof) shall adopt any
resolution or otherwise authorize any action to approve any of the
actions referred to in clause (i) above or this clause (ii); or
8.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment or similar
process involving (i) in any individual case an amount in excess of Two Hundred
Fifty Thousand Dollars ($250,000) or (ii) in the aggregate at any time an amount
in excess of Two Thousand Fifty Dollars ($250,000) (in either case not
adequately covered by insurance as to which a solvent and unaffiliated insurance
company has acknowledged coverage) shall be entered or filed against any Credit
Party or any of its Subsidiaries or any of their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for a period of thirty (30)
days (or in any event later than five (5) days prior to the date of any proposed
sale thereunder); or
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8.9 DISSOLUTION.
Any order, judgment or decree shall be entered against any Credit
Party or any of its Subsidiaries decreeing the dissolution or split up of any
Credit Party or any of its Subsidiaries, and such order shall remain
undischarged or unstayed for a period in excess of thirty (30) days; or
8.10 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events that individually or
in the aggregate results in or might reasonably be expected to result in
liability of any Credit Party or any of its Subsidiaries or their respective
ERISA Affiliates in excess of One Hundred Thousand Dollars ($100,000) during the
term of this Agreement; or there shall exist an amount of unfunded benefit
liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the
aggregate for all Pension Plans (excluding for purposes of such computation any
Pension Plans with respect to which assets exceed benefit liabilities), which
exceeds One Hundred Thousand Dollars ($100,000); or
8.11 MATERIAL ADVERSE EFFECT.
Any event or change shall occur that has caused or evidences,
either in any case or in the aggregate, a Material Adverse Effect; or
8.12 CHANGE OF CONTROL.
Any Change of Control shall have occurred; or
8.13 INVALIDITY OF CREDIT DOCUMENTS; FAILURE OF SECURITY; REPUDIATION
OF OBLIGATIONS.
At any time after the execution and delivery thereof, (i) the
Subsidiary Guaranty, any Collateral Document or any other Credit Document or any
provision of the foregoing, for any reason other than the satisfaction in full
of all Obligations, shall cease to be in full force and effect (other than in
accordance with its terms) or shall be declared to be null and void; (ii)
Administrative Agent shall not have or shall cease to have a valid and perfected
First Priority Lien in Collateral (except for any Collateral that is not
required to be so perfected under the express terms of the Credit Documents)
covered by the Collateral Documents (a) having a value in excess of Two Hundred
Fifty Thousand Dollars ($250,000), or (b) having a value of less than Two
Hundred Fifty Thousand Dollars ($250,000) but that is otherwise material to any
Credit Party's business; or (iii) any Credit Party shall contest the validity or
enforceability of any Credit Document or any provision thereof in writing or
deny in writing that it has any further liability, including with respect to
future advances by Lenders, under any Credit Document or any provision thereof
to which it is a party; or
8.14 CERTAIN CRIMES.
Any Credit Party or any of their respective directors or senior
officers is criminally indicted or convicted of or under (a) a felony or (b) any
law that could lead to a forfeiture of any material (as determined by
Administrative Agent or Requisite Lenders in their respective reasonable
discretion) Collateral; or
THEN (i) upon the occurrence of any Event of Default described in
subsection 8.6 or 8.7, each of (a) the unpaid principal amount of and accrued
interest on the Loans, and (b) an amount equal to the maximum amount that may at
any time be drawn under all Letters of Credit then outstanding (whether or not
any beneficiary under any such Letter of Credit shall have presented, or shall
be entitled at such
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time to present, the drafts or other documents or certificates required to draw
under such Letter of Credit), and (c) all other Obligations (other than Interest
Rate Agreement Obligations) shall automatically become immediately due and
payable, without presentment, demand, protest or other requirements of any kind,
all of which are hereby expressly waived by Borrower and the other Credit
Parties, and the obligation of each Lender to make any Loan shall thereupon
terminate, and (ii) upon the occurrence and during the continuation of any other
Event of Default, Administrative Agent shall, upon the written request or with
the written consent of Requisite Lenders, by written notice to Borrower, declare
all or any portion of the amounts described in clauses (a) through (c) above to
be, and the same shall forthwith become, immediately due and payable, and the
obligation of each Lender to make any Loan, the obligation of Administrative
Agent or the Issuing Lender to issue any Letter of Credit and the right of any
Lender to issue any Letter of Credit hereunder shall thereupon terminate,
provided that the foregoing shall not affect in any way the obligations of
Revolving Lenders under subsection 3.3C(i).
SECTION 9. ADMINISTRATIVE AGENT
9.1 APPOINTMENT.
A. APPOINTMENT OF ADMINISTRATIVE AGENT. Bank of Montreal, Chicago
Branch is hereby appointed Administrative Agent hereunder and under the
other Credit Documents. Each Lender hereby authorizes Administrative Agent
to act as its agent in accordance with the terms of this Agreement and the
other Credit Documents. Administrative Agent agrees to act upon the express
conditions contained in this Agreement and the other Credit Documents, as
applicable. The provisions of this Section 9 are solely for the benefit of
Administrative Agent and Lenders, and none of the Credit Parties and their
respective Subsidiaries shall have any rights as a third party beneficiary
of any of the provisions thereof. In performing its functions and duties
under this Agreement, Administrative Agent shall act solely as an agent of
Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for any
Credit Party or any of its Subsidiaries.
B. APPOINTMENT OF SUPPLEMENTAL COLLATERAL AGENTS. It is the
purpose of this Agreement and the other Credit Documents that there shall
be no violation of any law of any jurisdiction denying or restricting the
right of banking corporations or associations to transact business as agent
or trustee in such jurisdiction. It is recognized that in case of
litigation under this Agreement or any of the other Credit Documents, and
in particular in case of the enforcement of any of the Credit Documents, or
in case Administrative Agent deems that by reason of any present or future
law of any jurisdiction it may not exercise any of the rights, powers or
remedies granted herein or in any of the other Credit Documents or take any
other action which may be desirable or necessary in connection therewith,
it may be necessary that Administrative Agent appoint an additional
individual or institution as a separate trustee, co-trustee, collateral
agent or collateral co-agent (any such additional individual or institution
being referred to herein individually as a "SUPPLEMENTAL COLLATERAL AGENT"
and collectively as "SUPPLEMENTAL COLLATERAL AGENTS").
In the event that Administrative Agent appoints a Supplemental
Collateral Agent with respect to any Collateral, (i) each and every right,
power, privilege or duty expressed or intended by this Agreement or any of
the other Credit Documents to be exercised by or vested in or conveyed to
Administrative Agent with respect to such Collateral shall be exercisable
by and vest in such Supplemental Collateral Agent to the extent, and only
to the extent, necessary to enable such Supplemental Collateral Agent to
exercise such rights, powers and privileges with respect to such Collateral
and to perform such duties with respect to such Collateral, and every
covenant and obligation contained in the Credit Documents and necessary to
the exercise or performance thereof by such Supplemental Collateral Agent
shall run to and be enforceable by either Administrative
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Agent or such Supplemental Collateral Agent, and (ii) the provisions of
this Section 9 and of subsections 10.2 and 10.3 that refer to
Administrative Agent shall inure to the benefit of such Supplemental
Collateral Agent, and all references therein to Administrative Agent shall
be deemed to be references to Administrative Agent and/or such Supplemental
Collateral Agent, as the context may require.
Should any instrument in writing from Borrower or any other
Credit Party be required by any Supplemental Collateral Agent so appointed
by Administrative Agent for more fully and certainly vesting in and
confirming to him or it such rights, powers, privileges and duties,
Borrower shall, or shall cause such Credit Party to, execute, acknowledge
and deliver any and all such instruments promptly upon request by
Administrative Agent. In case any Supplemental Collateral Agent, or a
successor thereto, shall die, become incapable of acting, resign or be
removed, all the rights, powers, privileges and duties of such Supplemental
Collateral Agent, to the extent permitted by law, shall vest in and be
exercised by Administrative Agent until the appointment of a new
Supplemental Collateral Agent.
9.2 POWERS AND DUTIES; GENERAL IMMUNITY.
X. XXXXXX; DUTIES SPECIFIED. Each Lender irrevocably authorizes
Administrative Agent to take such action on such Lender's behalf and to
exercise such powers, rights and remedies hereunder and under the other
Credit Documents as are specifically delegated or granted to Administrative
Agent by the terms hereof and thereof, together with such powers, rights
and remedies as are reasonably incidental thereto. Administrative Agent
shall have only those duties and responsibilities that are expressly
specified in this Agreement and the other Credit Documents. Administrative
Agent may exercise such powers, rights and remedies and perform such duties
by or through its agents or employees. Administrative Agent shall not have,
by reason of this Agreement or any of the other Credit Documents, a
fiduciary relationship in respect of any Lender, any Credit Party or any of
its Subsidiaries; and nothing in this Agreement or any of the other Credit
Documents, expressed or implied, is intended to or shall be so construed as
to impose upon Administrative Agent any obligations in respect of this
Agreement or any of the other Credit Documents except as expressly set
forth herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. Administrative Agent
shall not be responsible to any Lender for the execution, effectiveness,
genuineness, validity, enforceability, collectibility or sufficiency of
this Agreement or any other Credit Document or for any representations,
warranties, recitals or statements made herein or therein or made in any
written or oral statements or in any financial or other statements,
instruments, reports or certificates or any other documents furnished or
made by Administrative Agent to Lenders or by or on behalf of any Credit
Party or any of its Subsidiaries to Administrative Agent or any Lender in
connection with the Credit Documents and the transactions contemplated
thereby or for the financial condition or business affairs of any Credit
Party or any of its Subsidiaries or any other Person liable for the payment
of any Obligations, nor shall Administrative Agent be required to ascertain
or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the
Credit Documents or as to the use of the proceeds of the Loans or the use
of the Letters of Credit or as to the existence or possible existence of
any Event of Default or Potential Event of Default. Anything contained in
this Agreement to the contrary notwithstanding, Administrative Agent shall
not have any liability arising from confirmations of the amount of
outstanding Loans or Letter of Credit Usage or the component amounts
thereof.
C. EXCULPATORY PROVISIONS. Neither Administrative Agent nor any
of its officers, directors, employees or agents shall be liable to Lenders
for any action taken or omitted by
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Administrative Agent or such Persons under or in connection with any of the
Credit Documents except to the extent caused by their own gross negligence
or willful misconduct as determined by final judgment of a court of
competent jurisdiction. Administrative Agent shall be entitled to refrain
from any act or the taking of any action (including the failure to take an
action) in connection with this Agreement or any of the other Credit
Documents or from the exercise of any power, discretion or authority vested
in it hereunder or thereunder unless and until Administrative Agent shall
have received instructions in respect thereof from Requisite Lenders (or
such other Lenders as may be required to give such instructions under
subsection 10.6) and, upon receipt of such instructions from Requisite
Lenders (or such other Lenders, as the case may be), Administrative Agent
shall be entitled to act or (where so instructed) refrain from acting, or
to exercise such power, discretion or authority, in accordance with such
instructions. Without prejudice to the generality of the foregoing, (i)
Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any communication, instrument or document
believed by it to be genuine and correct and to have been signed or sent by
the proper person or persons, and shall be entitled to rely and shall be
protected in relying on opinions and judgments of attorneys (who may be
attorneys for any Credit Party or any of its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender
shall have any right of action whatsoever against Administrative Agent as a
result of Administrative Agent acting or (where so instructed) refraining
from acting under this Agreement or any of the other Credit Documents in
accordance with the instructions of Requisite Lenders (or such other
Lenders as may be required to give such instructions under subsection
10.6).
D. ADMINISTRATIVE AGENT ENTITLED TO ACT AS LENDER. The agency
hereby created shall in no way impair or affect any of the rights and
powers of, or impose any duties or obligations upon, Administrative Agent
in its individual capacity as a Lender hereunder. With respect to its
participation in the Loans and the Letters of Credit, Administrative Agent
shall have the same rights and powers hereunder as any other Lender and may
exercise the same as though it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" or "Lenders" or any
similar term shall, unless the context clearly otherwise indicates, include
Administrative Agent in its individual capacity. Administrative Agent and
its Affiliates may accept deposits from, lend money to, acquire equity
interests in and generally engage in any kind of commercial banking,
investment banking, trust, financial advisory or other business with any
Credit Party or any of its Subsidiaries or any of their Affiliates as if it
were not performing the duties specified herein, and may accept fees and
other consideration from any Credit Party or any of its Subsidiaries or any
of their Affiliates for services in connection with this Agreement and
otherwise without having to account for the same to Lenders.
9.3 INDEPENDENT INVESTIGATION BY LENDERS; NO RESPONSIBILITY FOR
APPRAISAL OF CREDITWORTHINESS.
Each Lender agrees that it has made its own independent
investigation of the financial condition and affairs of the Credit Parties and
their respective Subsidiaries in connection with the making of the Loans and the
issuance of Letters of Credit hereunder and that it has made and shall continue
to make its own appraisal of the creditworthiness of the Credit Parties and
their respective Subsidiaries. Administrative Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of Lenders or to provide any
Lender with any credit or other information with respect thereto, whether coming
into its possession before the making of the Loans or the issuance of Letters of
Credit or at any time or times thereafter, and Administrative Agent shall not
have any responsibility with respect to the accuracy of or the completeness of
any information provided to Lenders.
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9.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally
agrees to indemnify Administrative Agent and its officers, directors, employees,
agents, attorneys, professional advisors and Affiliates to the extent that any
such Person shall not have been reimbursed by Borrower or any other Credit
Party, for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including counsel fees
and disbursements and fees and disbursements of any financial advisor engaged by
Administrative Agent) or disbursements of any kind or nature whatsoever that may
be imposed on, incurred by or asserted against Administrative Agent or any other
such Persons in exercising the powers, rights and remedies of Administrative
Agent or performing duties of Administrative Agent hereunder or under the other
Credit Documents or otherwise in its capacity as Administrative Agent in any way
relating to or arising out of this Agreement or the other Credit Documents;
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of Administrative Agent resulting from Administrative
Agent's gross negligence or willful misconduct as determined by a final judgment
of a court of competent jurisdiction. If any indemnity furnished to
Administrative Agent or any other such Person for any purpose shall, in the
opinion of Administrative Agent, be insufficient or become impaired,
Administrative Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished.
9.5 SUCCESSOR ADMINISTRATIVE AGENT.
Administrative Agent may resign at any time by giving thirty (30)
days' prior written notice thereof to Lenders and Borrower. Upon any such notice
of resignation, Requisite Lenders shall have the right, upon five (5) Business
Days' notice to Borrower, to appoint a successor Administrative Agent. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, that successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Section 9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement.
9.6 LEAGUE TABLE AGENTS.
To the extent any other Lender or any Affiliates thereof is
identified in this Agreement as a documentation agent (or co-documentation
agent), syndication agent (or co-syndication agent), lead arranger (or co-lead
arranger) or other league table agent, such Lender or its Affiliate shall not
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such (if such agent is a
Lender). Without limiting the foregoing, none of such Lenders and their
Affiliates shall have or be deemed to have a fiduciary relationship with
Borrower or any other Credit Party or any of their respective Subsidiaries or
any other Lender by virtue of such designation. Each of Borrower, all other
Credit Parties and their Subsidiaries, Administrative Agent and Lenders
acknowledges that it has not relied, and will not rely, on the Lender or its
Affiliate so designated in deciding to enter into this Agreement or in taking or
omitting any action hereunder.
9.7 COLLATERAL DOCUMENTS AND GUARANTIES.
A. COLLATERAL DOCUMENTS. Each Lender hereby authorizes
Administrative Agent to enter into each Collateral Document as secured
party, and to accept the Subsidiary Guaranty, in each case on behalf of and
for the benefit of Lenders and agrees to be bound by the terms of each
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Collateral Document and the Subsidiary Guaranty; provided that
Administrative Agent shall not enter into or consent to any material
amendment, modification, termination or waiver of any provision contained
in any Collateral Document or the Subsidiary Guaranty without the prior
consent of Requisite Lenders, subject to subsection 10.6; provided further,
however, that anything in this Agreement or the other Credit Documents to
the contrary notwithstanding:
(i) Administrative Agent is authorized on behalf of all Lenders,
without the necessity of any notice to or further consent from the
Lenders, from time to time to take any action with respect to any
Collateral or the Collateral Documents that may be necessary to
perfect and maintain perfected the security interest in and Liens upon
the Collateral granted pursuant to the Collateral Documents;
(ii) The Lenders irrevocably authorize Administrative Agent, at
its option and in its discretion, to release any Lien granted to or
held by Administrative Agent upon any Collateral (a) upon termination
of the Commitments and payment in full of the Loans and all other
Obligations payable under this Agreement and under any other Credit
Document; (b) constituting property sold or to be sold or disposed of
as part of or in connection with any disposition permitted hereunder
or under the Collateral Documents; (c) constituting property in which
any Credit Party or any of its Subsidiaries owned no interest at the
time the Lien was granted or at any time thereafter; (d) constituting
property leased to any Credit Party or any of its Subsidiaries under a
lease that has expired or been terminated in a transaction permitted
under this Agreement or is about to expire and that has not been, and
is not intended by any Credit Party or any of its Subsidiaries to be,
renewed or extended; (e) consisting of an instrument evidencing
Indebtedness if the Indebtedness evidenced thereby has been paid in
full; or (f) if otherwise approved, authorized or ratified in writing
by Requisite Lenders, subject to subsection 10.6. Upon request by
Administrative Agent at any time, Lenders will confirm in writing
Administrative Agent's authority to release particular types or items
of Collateral pursuant to this subsection 9.7; and
(iii) Without further written consent or authorization from
Lenders, Administrative Agent may execute any documents or instruments
necessary to (a) release any Subsidiary Guarantor from the Subsidiary
Guaranty if all of the Capital Stock of such Subsidiary Guarantor is
sold to any Person (other than an Affiliate of any Credit Party or any
of its Subsidiaries) pursuant to a sale or other disposition permitted
hereunder or to which Requisite Lenders have otherwise consented,
subject to subsection 10.6 or (b) subordinate the Liens of
Administrative Agent, on behalf of Lenders, to any Liens permitted by
subsection 7.2A(i) (solely with respect to clauses (v) and (vii) of
the definition of Permitted Encumbrances), and subsection 7.2A(iii).
B. LENDER ACTION. Anything contained in any of the Credit
Documents to the contrary notwithstanding, each Credit Party and its
Subsidiaries, Administrative Agent and each Lender agrees that (1) no
Lender shall have any right individually to realize upon any of the
Collateral under the Collateral Documents (including, without limitation,
through the exercise of a right of set-off against call deposits of such
Lender in which any funds on deposit in the Collateral Documents may from
time to time be invested) or enforce any remedy or make any demand pursuant
to the Subsidiary Guaranty, it being understood and agreed that all powers,
rights and remedies under the Collateral Documents and the Subsidiary
Guaranty may be exercised solely by Administrative Agent for the benefit of
Lenders in accordance with the terms thereof, and (2) in the event of a
foreclosure by Administrative Agent on any of the Collateral pursuant to a
public or private sale, Administrative Agent or any Lender may be the
purchaser of any or all of such Collateral at any such sale and
Administrative Agent, as agent for and representative of Lenders (but not
any Lender or Lenders in its or their respective individual capacities
unless Requisite Lenders shall otherwise agree in writing) shall be
entitled, for the purpose of bidding and making settlement or payment of
the
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purchase price for all or any portion of the Collateral sold at any such
public sale, to use and apply any of the Obligations as a credit on account
of the purchase price for any collateral payable by Administrative Agent at
such sale.
9.8 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to any Credit Party or any of its
Subsidiaries, Administrative Agent (irrespective of whether the principal of any
Loan shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether Administrative Agent shall have made any
demand on Borrower or any other Credit Party) shall be entitled and empowered,
by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Loans and any other Obligations
that are owing and unpaid and to file such other papers or documents as may
be necessary or advisable in order to have the claims of Lenders,
Administrative Agent and other agents (including any claim for the
reasonable compensation, expenses, disbursements and advances of Lenders,
Administrative Agent and other agents and their agents and counsel and all
other amounts due Lenders, Administrative Agent and other agents under
subsections 2.3 and 10.2) allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to Administrative Agent and, in the event that
Administrative Agent shall consent to the making of such payments directly to
Lenders, to pay to Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of Administrative Agent and
it agents and counsel, and any other amounts due Administrative Agent and other
agents under subsections 2.3 and 10.2.
Nothing herein contained shall be deemed to authorize
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lenders or to authorize
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
SECTION 10. MISCELLANEOUS
10.1 SUCCESSORS AND ASSIGNS; ASSIGNMENTS AND PARTICIPATIONS IN LOANS
AND LETTERS OF CREDIT.
A. GENERAL.
(i) This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the
parties hereto and the successors and assigns of Lenders (it being
understood that Lenders' rights of assignment are subject to the further
provisions of this subsection 10.1). Except as otherwise set forth in
subsection 10.1A(ii) below, neither Borrower's rights or obligations
hereunder nor any interest therein may be assigned or delegated by Borrower
without the prior written consent of all Lenders (and any attempted
assignment or transfer by Borrower without such consent shall be null and
void). No sale, assignment or transfer or participation of any Letter of
Credit or any participation therein
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may be made separately from a sale, assignment, transfer or participation
of a corresponding interest in the Revolving Loan Commitment and the
Revolving Loans of the Revolving Lender effecting such sale, assignment,
transfer or participation. Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to
the extent expressly contemplated hereby, the Affiliates of each of
Administrative Agent and Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(ii) Notwithstanding anything to the contrary herein, Borrower's
rights and obligations hereunder and its interest herein may be assigned or
delegated by Borrower by operation of law to the surviving Merger
Subsidiary pursuant to the Merger Transaction Documents, without the prior
written consent of the Lenders, provided that (i) the Merger Transaction
shall comply with the terms and conditions hereof (including the
satisfaction of the conditions set forth in subsection 4.2), and (ii) such
surviving Merger Subsidiary and each Credit Party shall have entered into
reaffirmation documentation (including, without limitation, the Pledge
Agreement), in form and substance acceptable to the Administrative Agent,
pursuant to which the surviving Merger Subsidiary and each Credit Party
restates, ratifies and reaffirms each and every term and condition set
forth in this Credit Agreement and the Credit Documents, effective as of
the Merger Funding Date.
B. ASSIGNMENTS.
(i) Amounts and Terms of Assignments. Any Lender may assign to one or
more Eligible Assignees all or any portion of its rights and obligations
under this Agreement; provided that (a), except (1) in the case of an
assignment of the entire remaining amount of the assigning Lender's rights
and obligations under this Agreement or (2) in the case of an assignment to
a Lender or an Affiliate of a Lender or an Approved Fund of a Lender, the
aggregate amount of the Revolving Loan Exposure or Delayed Draw Term Loan
Exposure, as the case may be, of the assigning Lender and the assignee
subject to each such assignment shall not be less than One Million Dollars
($1,000,000), in the case of any assignment of a Revolving Loan, or One
Million Dollars ($1,000,000), in the case of any assignment of a Delayed
Draw Term Loan, unless Administrative Agent otherwise consents (such
consent not to be unreasonably withheld or delayed), (b) each partial
assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement with
respect to the Loan or the Commitment assigned, (c) the parties to each
assignment shall execute and deliver to Administrative Agent an Assignment
Agreement, together with a processing and recordation fee of Three Thousand
Five Hundred Dollars ($3,500) (unless the assignee is an Affiliate or an
Approved Fund of the assignor, in which case no fee shall be required), and
the Eligible Assignee, if it shall not be a Lender, shall deliver to
Administrative Agent information reasonably requested by Administrative
Agent, including such forms, certificates or other evidence, if any, with
respect to United States federal income tax withholding matters as the
assignee under such Assignment Agreement may be required to deliver to
Administrative Agent pursuant to subsection 2.7B(iii), (d) except in the
case of an assignment to another Lender, an Affiliate of a Lender or an
Approved Fund of a Lender, Administrative Agent shall have consented
thereto (which consent shall not be unreasonably withheld or delayed), and
(e) except in the case of an assignment to another Lender, an Affiliate of
a Lender or an Approved Fund of a Lender or a commercial bank organized
under the laws of the United States of America or any state thereof or the
District of Columbia and, if no Event of Default or Potential Event of
Default has occurred and is continuing, Borrower shall have consented
thereto (which consent shall not be unreasonably withheld or delayed). Upon
such execution, delivery and consent, from and after the effective date
specified in such Assignment Agreement, (y) the assignee thereunder shall
be a
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party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment Agreement, shall have the
rights and obligations of a Lender hereunder and (z) the assigning Lender
thereunder shall, to the extent that rights and obligations hereunder have
been assigned by it pursuant to such Assignment Agreement, relinquish its
rights (other than any rights which survive the termination of this
Agreement under subsection 10.9B) and be released from its obligations
under this Agreement (and, in the case of an Assignment Agreement covering
all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party
hereto; provided that, anything contained in any of the Credit Documents to
the contrary notwithstanding, if such Lender is the Issuing Lender with
respect to any outstanding Letters of Credit such Lender shall continue to
have all rights and obligations of an Issuing Lender with respect to such
Letters of Credit until the cancellation or expiration of such Letters of
Credit and the reimbursement of any amounts drawn thereunder). The
assigning Lender shall, upon the effectiveness of such assignment or as
promptly thereafter as practicable, surrender its Notes (if any) to
Administrative Agent for cancellation, and thereupon new Notes shall be
issued to the assignee and/or to the assigning Lender, substantially in the
form of EXHIBIT III or EXHIBIT IV annexed hereto, as the case may be, with
appropriate insertions, to reflect the new Commitments and/or outstanding
Revolving Loans and/or outstanding Delayed Draw Term Loans, as the case may
be, of the assignee and/or the assigning Lender. Other than as provided in
subsection 10.5, any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this subsection
10.1B shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection 10.1C.
(ii) Acceptance by Administrative Agent; Recordation in Register. Upon
its receipt of an Assignment Agreement executed by an assigning Lender and
an assignee representing that it is an Eligible Assignee, together with the
processing and recordation fee referred to in subsection 10.1B(i) and any
forms, certificates or other evidence with respect to United States federal
income tax withholding matters that such assignee may be required to
deliver to Administrative Agent pursuant to subsection 2.7B(iii),
Administrative Agent shall, if Administrative Agent has consented to the
assignment evidenced thereby (in each case to the extent such consent is
required pursuant to subsection 10.1B(i)), (a) accept such Assignment
Agreement by executing a counterpart thereof as provided therein (which
acceptance shall evidence any required consent of Administrative Agent to
such assignment), (b) record the information contained therein in the
Register, and (c) give prompt notice thereof to Borrower. Administrative
Agent shall maintain a copy of each Assignment Agreement delivered to and
accepted by it as provided in this subsection 10.1B(ii).
C. PARTICIPATIONS. Any Lender may, without the consent of, or
notice to, Borrower (or any other Credit Party) or Administrative Agent,
sell participations to one or more Persons (other than a natural Person or
any Credit Party or any of its Affiliates) in all or a portion of such
Lender's rights and/or obligations under this Agreement; provided that (i)
such Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) Borrower, the other Credit
Parties, Administrative Agent and Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender
will not, without the consent of the Participant, agree to any amendment,
modification or waiver directly affecting (i) the extension of the
scheduled final maturity date of any Loan allocated to such participation
or (ii) a reduction of the principal amount of or the rate of
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interest payable on any Loan allocated to such participation. Subject to
the further provisions of this subsection 10.1C, Borrower agrees that each
Participant shall be entitled to the benefits of subsections 2.6D and 2.7
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection 10.1B. To the extent permitted by law,
each Participant also shall be entitled to the benefits of subsection 10.4
as though it were a Lender, provided such Participant agrees to be subject
to subsection 10.5 as though it were a Lender. A Participant shall not be
entitled to receive any greater payment under subsections 2.6D and 2.7 than
the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant unless the sale of the
participation to such Participant is made with Borrower's prior written
consent. A Participant that would be a Non-US Lender if it were a Lender
shall not be entitled to the benefits of subsection 2.7 unless Borrower is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of Borrower, to comply with subsection 2.7B(iii) as
though it were a Lender.
D. PLEDGES AND ASSIGNMENTS. Any Lender may at any time pledge or
assign a security interest in all or any portion of its Loans, and the
other Obligations owed to such Lender, to secure obligations of such
Lender, including, without limitation, any pledge or assignment to secure
obligations to any Federal Reserve Bank; provided that (i) no Lender shall
be relieved of any of its obligations hereunder as a result of any such
assignment or pledge and (ii) in no event shall any assignee or pledgee be
considered to be a "Lender" or be entitled to require the assigning Lender
to take or omit to take any action hereunder.
E. INFORMATION. Each Lender may furnish any information
concerning any Credit Party or any of its Subsidiaries in the possession of
that Lender from time to time to eligible assignees and participants
(including prospective assignees and participants), subject to subsection
10.19.
F. AGREEMENTS OF LENDERS. Each Lender listed on the signature
pages hereof hereby agrees (i) that it is an Eligible Assignee described in
clause (ii) of the definition thereof; (ii) that it has experience and
expertise in the making of loans such as the Loans; and (iii) that it will
make its Loans for its own account in the ordinary course of its business
and without a view to distribution of such Loans within the meaning of the
Securities Act or the Exchange Act or other federal securities laws (it
being understood that, subject to the provisions of this subsection 10.1,
the disposition of such Loans or any interests therein shall at all times
remain within its exclusive control). Each Lender that becomes a party
hereto pursuant to an Assignment Agreement shall be deemed to agree that
the agreements of such Lender contained in Section 2(c) of such Assignment
Agreement are incorporated herein by this reference.
10.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, Borrower agrees to pay promptly (i) all reasonable costs and
expenses of the Administrative Agent in connection with the negotiation,
preparation and execution of the Credit Documents and any consents, amendments,
waivers or other modifications thereto; (ii) all costs and expenses of
furnishing all opinions by counsel for any Credit Party and its Subsidiaries
(including any opinions requested by Administrative Agent or Lenders as to any
legal matters arising hereunder) and of the Credit Parties' performance of and
compliance with all agreements and conditions on their part to be performed or
complied with under this Agreement and the other Credit Documents including with
respect to confirming compliance with environmental, insurance and solvency
requirements; (iii) all reasonable fees, expenses and disbursements of counsel
to Administrative Agent in connection with the negotiation, preparation,
execution and administration of the Credit Documents and any consents,
amendments, waivers or other modifications
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thereto and any other documents or matters requested by Borrower; (iv) all costs
and expenses of creating and perfecting Liens in favor of Administrative Agent
on behalf of Lenders pursuant to any Collateral Document, including filing and
recording fees, expenses and taxes, stamp or documentary taxes, search fees,
title insurance premiums, and reasonable fees, expenses and disbursements of
counsel to Administrative Agent and of counsel providing any opinions that
Administrative Agent or Requisite Lenders may reasonably request in respect of
the Collateral Documents or the Liens created pursuant thereto; (v) all costs
and expenses incurred by Administrative Agent in connection with the custody or
preservation of any of the Collateral; (vii) all other costs and expenses
incurred by Administrative Agent in connection with the syndication of the
Commitments; (viii) all reasonable costs and expenses, including reasonable
attorneys' fees and fees, costs and expenses of accountants, advisors and
consultants, incurred by Administrative Agent and its counsel relating to
efforts to (a) evaluate or assess any Credit Party, its business or financial
condition and (b) protect, evaluate, assess or dispose of any of the Collateral;
and (ix) all costs and expenses, including reasonable attorneys' fees, fees,
costs and expenses of accountants, advisors and consultants and costs of
settlement, incurred by Administrative Agent and Lenders in enforcing any
Obligations of or in collecting any payments due from any Credit Party hereunder
or under the other Credit Documents (including in connection with the sale of,
collection from, or other realization upon any of the Collateral or the
enforcement of the Credit Documents) or in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or pursuant to any insolvency or bankruptcy proceedings.
10.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection
10.2, whether or not the transactions contemplated hereby shall be consummated,
Borrower agrees to defend (subject to Indemnitees' selection of counsel),
indemnify, pay and hold harmless Administrative Agent and Lenders (including any
Issuing Lender), and the officers, directors, employees, representatives, agents
and Affiliates of Administrative Agent and Lenders (collectively called the
"INDEMNITEES"), from and against any and all Indemnified Liabilities (as
hereinafter defined); provided that Borrower shall not have any obligation to
any Indemnitee hereunder with respect to any Indemnified Liabilities to the
extent such Indemnified Liabilities arise solely from the gross negligence or
willful misconduct of that Indemnitee as determined by a final judgment of a
court of competent jurisdiction; provided further, however, that any such
amounts shall be without duplication of amounts to which an Indemnitee is
entitled under any other section of this Agreement.
As used herein, "INDEMNIFIED LIABILITIES" means, collectively,
any and all liabilities, obligations, losses, damages (including natural
resource damages), penalties, actions, judgments, suits, claims (including
Environmental Claims), costs (including the costs of any investigation, study,
sampling, testing, abatement, cleanup, removal, remediation or other response
action necessary to remove, remediate, clean up or xxxxx any Hazardous Materials
Activity), expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto, and any fees or expenses
incurred by Indemnitees in enforcing this indemnity), whether direct, indirect
or consequential and whether based on any federal, state or foreign laws,
statutes, rules or regulations (including securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of (i) this Agreement or the other Credit Documents or the
transactions contemplated hereby or thereby (including Lenders' agreement to
make the Loans hereunder or the use or intended use of the proceeds thereof, or
the issuance of Letters of Credit hereunder or the use or intended use of any
thereof, the failure of an Issuing Lender to honor a drawing under a Letter of
Credit as a result of any act or omission, whether rightful or wrongful,
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of any or any enforcement of any of the Credit Documents (including any sale of,
collection from, or other realization upon any of the Collateral or the
enforcement of the Subsidiary Guaranty)), (ii) the statements contained in the
commitment letter delivered by any Lender to Borrower with respect thereto, or
(iii) any Environmental Claim or any Hazardous Materials Activity relating to or
arising from, directly or indirectly, any past or present activity, operation,
land ownership, or practice of any Credit Party or any of its Subsidiaries.
To the extent that the undertakings to defend, indemnify, pay and
hold harmless set forth in this subsection 10.3 may be unenforceable in whole or
in part because they are violative of any law or public policy, Borrower shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.
NO INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER
PARTY TO ANY LOAN DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY
OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH
PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE
ALLEGED AS A RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED
UNDER ANY LOAN DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED
HEREUNDER OR THEREUNDER.
10.4 SET-OFF; SECURITY INTEREST IN DEPOSIT ACCOUNTS.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default, each Lender is hereby authorized by the
Credit Parties at any time or from time to time, without notice to the Credit
Parties or to any other Person, any such notice being hereby expressly waived,
to the fullest extent permitted by applicable law, to set off and to appropriate
and to apply any and all deposits (general or special, time or demand,
provisional or final, including Indebtedness evidenced by certificates of
deposit, whether matured or unmatured, but not including trust accounts) and any
other Indebtedness at any time held or owing by that Lender or any Affiliate of
that Lender to or for the credit or the account of Borrower and each other
Credit Party against and on account of the Obligations of Borrower or any other
Credit Party to that Lender (or any Affiliate of that Lender) or to any other
Lender (or any Affiliate of any other Lender) under this Agreement, the Letters
of Credit and participations therein and the other Credit Documents, including
all claims of any nature or description arising out of or connected with this
Agreement, the Letters of Credit and participations therein or any other Credit
Document, irrespective of whether or not (i) that Lender shall have made any
demand hereunder or (ii) the principal of or the interest on the Loans or any
amounts in respect of Letters of Credit or any other amounts due hereunder shall
have become due and payable pursuant to Section 8 and although said obligations
and liabilities, or any of them, may be contingent or unmatured. Borrower and
each other Credit Party hereby further grant to Administrative Agent and each
Lender a security interest in all deposits and accounts maintained with
Administrative Agent or such Lender as security for the Obligations.
10.5 RATABLE SHARING.
Lenders hereby agree among themselves that if any of them shall,
whether by voluntary payment (other than a voluntary prepayment of Loans made
and applied in accordance with the terms of this Agreement), by realization upon
security, through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Credit
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts
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payable in respect of Letters of Credit, fees and other amounts then due and
owing to that Lender hereunder or under the other Credit Documents
(collectively, the "AGGREGATE AMOUNTS DUE" to such Lender) that is greater than
the proportion received by any other Lender in respect of the Aggregate Amounts
Due to such other Lender, then the Lender receiving such proportionately greater
payment shall (i) notify Administrative Agent and each other Lender of the
receipt of such payment and (ii) apply a portion of such payment to purchase
assignments (which it shall be deemed to have purchased from each seller of an
assignment simultaneously upon the receipt by such seller of its portion of such
payment) of the Aggregate Amounts Due to the other Lenders so that all such
recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion
to the Aggregate Amounts Due to them; provided that if all or part of such
proportionately greater payment received by such purchasing Lender is thereafter
recovered from such Lender upon the bankruptcy or reorganization of Borrower,
any other Credit Party or otherwise, those purchases shall be rescinded and the
purchase prices paid for such assignments shall be returned to such purchasing
Lender ratably to the extent of such recovery, but without interest. Borrower
and each other Credit Party expressly consent to the foregoing arrangement and
agree that any purchaser of an assignment so purchased may exercise any and all
rights of a Lender as to such assignment as fully as if that Lender had complied
with the provisions of subsection 10.1B with respect to such assignment. In
order to further evidence such assignment (and without prejudice to the
effectiveness of the assignment provisions set forth above), each purchasing
Lender and each selling Lender agree to enter into an Assignment Agreement at
the request of a selling Lender or a purchasing Lender, as the case may be, in
form and substance reasonably satisfactory to each such Lender.
10.6 AMENDMENTS AND WAIVERS.
No amendment, modification, termination or waiver of any
provision of this Agreement or of any other Credit Document, and no consent to
any departure by Borrower or any other Credit Party therefrom, shall in any
event be effective without the written concurrence of Requisite Lenders;
provided that no such amendment, modification, termination, waiver or consent
shall, without the written consent of: (a) each Lender with Obligations directly
affected (whose consent shall be sufficient for any such amendment,
modification, termination or waiver without the consent of Requisite Lenders)
(1) reduce the principal amount of any Loan, (2) postpone the date or reduce the
amount of any scheduled payment (but not prepayment) of principal of any Loan,
(3) postpone the date or reduce the amount of any scheduled reduction of the
Revolving Loan Commitments, (4) postpone the date on which any interest or any
fees are payable, (5) decrease the interest rate borne by any Loan (other than
any waiver of any increase in the interest rate applicable to any of the Loans
pursuant to subsection 2.2E) or the amount of any fees payable hereunder
(excluding any change in the manner in which any financial ratio used in
determining any interest rate or fee is calculated that would result in a
reduction of any such rate or fee), (6) reduce the amount or postpone the due
date of any amount payable in respect of any Letter of Credit, (7) extend the
expiration date of any Letter of Credit beyond the Final Maturity Date or (8)
change in any manner the obligations of Revolving Lenders relating to the
purchase of participations in Letters of Credit; (b) each Lender, (1) change in
any manner the definition of "Pro Rata Share" or the definition of "Requisite
Lenders" (except for any changes resulting solely from an increase in
Commitments approved by Requisite Lenders), (2) change in any manner any
provision of this Agreement that, by its terms, expressly requires the approval
or concurrence of all Lenders, (3) increase the maximum duration of Interest
Periods permitted hereunder, (4) release any Lien granted in favor of
Administrative Agent with respect to all or substantially all of the Collateral
or release all or substantially all of the Subsidiary Guarantors from their
obligations under, or subordinate the rights of Administrative Agent and the
Lenders under, the Subsidiary Guaranty, in each case other than in accordance
with the terms of the Credit Documents (it being acknowledged that
Administrative Agent shall be permitted to release any Liens in respect of any
sale or other disposition of Collateral permitted under the terms of this
Agreement), or (5) change in any manner or waive the provisions contained in
subsection 8.1 or this subsection 10.6. In addition, (i) any amendment,
modification, termination or waiver of any of the
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material provisions contained in Section 4 shall be effective only if evidenced
by a writing signed by or on behalf of Administrative Agent and Requisite
Lenders, (ii) no amendment, modification, termination or waiver of any provision
of any Note shall be effective without the written concurrence of the Lender
which is the holder of that Note, (iii) no amendment, modification, termination
or waiver of any provision of Section 3 shall be effective without the written
concurrence of Administrative Agent and, with respect to the purchase of
participations in Letters of Credit, without the written concurrence of each
Issuing Lender that has issued an outstanding Letter of Credit or has not been
reimbursed for a payment under a Letter of Credit, (iv) no amendment,
modification, termination or waiver of any provision of Section 9 or of any
other provision of this Agreement which, by its terms, expressly requires the
approval or concurrence of Administrative Agent shall be effective without the
written concurrence of Administrative Agent, and (v) no Commitment or Pro Rata
Share of a Lender shall be increased without the consent of such Lender.
Administrative Agent may, but shall have no obligation to, with the concurrence
of any Lender, execute amendments, modifications, waivers or consents on behalf
of that Lender. Any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on Borrower or any other Credit Party in any case shall entitle Borrower
or any other Credit Party to any other or further notice or demand in similar or
other circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this subsection 10.6 shall be binding upon each
Lender at the time outstanding, each future Lender and, if signed by Borrower,
on Borrower and each other Credit Party.
10.7 INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so that
if a particular action or condition is not permitted by any of such covenants,
the fact that it would be permitted by an exception to, or would otherwise be
within the limitations of, another covenant shall not avoid the occurrence of an
Event of Default or Potential Event of Default if such action is taken or
condition exists.
10.8 NOTICES; EFFECTIVENESS OF SIGNATURES.
Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, or sent by facsimile or sent by United States mail
or sent by courier service and shall be deemed to have been given when received.
For the purposes hereof, the address of each party hereto shall be as set forth
under such party's name on the signature pages hereof or (i) as to Borrower and
Administrative Agent, such other address as shall be designated by such Person
in a written notice delivered to the other parties hereto and (ii) as to each
other party, such other address as shall be designated by such party in a
written notice delivered to Administrative Agent.
Credit Documents, consents, waivers and notices under the Credit
Documents may be transmitted and/or signed by facsimile or by email in .pdf
format. The effectiveness of any such documents and signatures shall, subject to
applicable law, have the same force and effect as an original copy with manual
signatures and shall be binding on all Credit Parties, Agents and Lenders.
Administrative Agent may also require that any such documents and signature be
confirmed by a manually-signed copy thereof; provided, however, that the failure
to request or deliver any such manually-signed copy shall not affect the
effectiveness of any facsimile or permitted email document or signature.
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10.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made herein
shall survive the execution and delivery of this Agreement and the making
of the Loans and the issuance of Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law
to the contrary, the agreements of Borrower set forth in subsections 2.6D,
2.7, 10.2, 10.3, 10.4, 10.17 and 10.18 and the agreements of Lenders set
forth in subsections 9.2C, 9.4, 10.5 and 10.18 shall survive the payment of
the Loans, the cancellation or expiration of the Letters of Credit and the
reimbursement of any amounts drawn thereunder, and the termination of this
Agreement.
10.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of an Agent or any Lender in the
exercise of any power, right or privilege hereunder or under any other Credit
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Credit Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.11 MARSHALLING; PAYMENTS SET ASIDE.
Neither any Agent nor any Lender shall be under any obligation to
marshal any assets in favor of Borrower, any other Credit Party or any other
party or against or in payment of any or all of the Obligations. To the extent
that Borrower or any other Credit Party makes a payment or payments to
Administrative Agent or Lenders (or to Administrative Agent for the benefit of
Lenders), or Agents or Lenders enforce any security interests or exercise their
rights of setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, any other state
or federal law, common law or any equitable cause, then, to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied,
and all Liens, rights and remedies therefor or related thereto, shall be revived
and continued in full force and effect as if such payment or payments had not
been made or such enforcement or setoff had not occurred.
10.12 SEVERABILITY.
In case any provision in or obligation under this Agreement, the
Notes or any other Credit Documents shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
10.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS;
DAMAGE WAIVER.
The obligations of Lenders hereunder are several and no Lender
shall be responsible for the obligations or Commitments of any other Lender
hereunder. Nothing contained herein or in any other Credit Document, and no
action taken by Lenders pursuant hereto or thereto, shall be deemed to
constitute Lenders, or Lenders and Borrower or any other Credit Party, as a
partnership, an association, a Joint Venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights
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arising out of this Agreement and it shall not be necessary for any other Lender
to be joined as an additional party in any proceeding for such purpose.
To the extent permitted by law, Borrower and each other Credit
Party shall not assert, and hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with or as a result of this Agreement (including, without limitation, subsection
2.1C hereof), any other Credit Document, any transaction contemplated by the
Credit Documents, any Loan or the use of proceeds thereof.
10.14 RELEASE OF SECURITY INTEREST OR GUARANTY.
Upon the proposed sale or other disposition of any Collateral
that is permitted by this Agreement or to which Requisite Lenders have otherwise
consented, or the sale or other disposition of all of the Capital Stock of a
Subsidiary Guarantor to any Person (other than an Affiliate of any Credit Party)
permitted by this Agreement or to which Requisite Lenders have otherwise
consented, for which a Credit Party desires to obtain a security interest
release or a release of the Guaranty from Administrative Agent, such Credit
Party shall deliver an Officer's Certificate of such Credit Party (i) stating
that the Collateral or the Capital Stock subject to such disposition is being
sold or otherwise disposed of in compliance with the terms hereof and (ii)
specifying the Collateral or Capital Stock being sold or otherwise disposed of
in the proposed transaction. Upon the receipt of such Officer's Certificate,
Administrative Agent shall, at such Credit Party's expense, so long as
Administrative Agent (a) has no reason to believe that the facts stated in such
Officer's Certificate are not true and correct and (b), if the sale or other
disposition of such item of Collateral or Capital Stock constitutes an Asset
Sale, shall have received evidence satisfactory to it that arrangements
satisfactory to it have been made for delivery of the Net Asset Sale Proceeds if
and to the extent required by subsection 2.4, execute and deliver such releases
of its security interest in such Collateral or such Subsidiary Guaranty, as may
be reasonably requested by such Credit Party.
10.15 APPLICABLE LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER OR ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT
WOULD REQUIRE APPLICATION OF ANOTHER LAW.
10.16 CONSTRUCTION OF AGREEMENT; NATURE OF RELATIONSHIP.
Each of the parties hereto acknowledges that (i) it has been
represented by counsel in the negotiation and documentation of the terms of this
Agreement, (ii) it has had full and fair opportunity to review and revise the
terms of this Agreement, (iii) this Agreement has been drafted jointly by all of
the parties hereto, and (iv) neither Administrative Agent nor any Lender or
other agent has any fiduciary relationship with or duty to Borrower or any other
Credit Party arising out of or in connection with this Agreement or any of the
other Credit Documents, and the relationship between Administrative Agent, the
other agents and Lenders, on one hand, and Borrower or any other Credit Party,
on the other hand, in connection herewith or therewith is solely that of debtor
and creditor. Accordingly, each of the parties hereto acknowledges and agrees
that the terms of this Agreement shall not be construed against or in favor of
another party.
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10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST BORROWER OR ANY OTHER
CREDIT PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT, OR ANY OBLIGATIONS THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY
EXECUTING AND DELIVERING THIS AGREEMENT, BORROWER AND ANY OTHER CREDIT PARTY,
FOR THEMSELVES AND IN CONNECTION WITH THEIR PROPERTIES, IRREVOCABLY
(I) ACCEPT GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVE ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREE THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN
ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO BORROWER AT ITS ADDRESS PROVIDED IN ACCORDANCE
WITH SUBSECTION 10.8;
(IV) AGREE THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER BORROWER AND ANY OTHER
CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE
CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(V) AGREE THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST BORROWER
AND ANY OTHER CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION;
AND
(VI) AGREE THAT THE PROVISIONS OF THIS SUBSECTION 10.17 RELATING
TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE
FULLEST EXTENT PERMISSIBLE UNDER FEDERAL LAW AND NEW YORK GENERAL
OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
10.18 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ITS RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER
RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver is intended to
be all-encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction, including contract
claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a material
inducement to enter into a business relationship, that each has already relied
on this waiver in entering into this Agreement, and that each will continue to
rely on this waiver in their related future dealings. Each party hereto further
warrants and
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represents that it has reviewed this waiver with its legal counsel and that it
knowingly and voluntarily waives, to the fullest extent permitted by applicable
law, its jury trial rights following consultation with legal counsel. THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS
SUBSECTION 10.18 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS
OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the event of litigation,
this Agreement may be filed as a written consent to a trial by the court.
10.19 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained
pursuant to the requirements of this Agreement that has been identified in
writing as confidential by Borrower in accordance with such Lender's customary
procedures for handling confidential information of this nature, it being
understood and agreed by Borrower and each other Credit Party that in any event
a Lender may make disclosures (a) to its and its Affiliates' directors,
officers, employees and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such information and instructed
to keep such information confidential), (b) to the extent requested by any
Government Authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this subsection 10.19, to (i) any Eligible
Assignee of or participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any direct or indirect contractual counterparty or prospective counterparty (or
such contractual counterparty's or prospective counterparty's professional
advisor) to any credit derivative transaction relating to obligations of
Borrower or any other Credit Party, (g) with the consent of Borrower, (h) to the
extent such information (i) becomes publicly available other than as a result of
a breach of this subsection 10.19 or (ii) becomes available to Administrative
Agent or any Lender on a nonconfidential basis from a source other than Borrower
or any other Credit Party or (i) to the National Association of Insurance
Commissioners or any other similar organization or any nationally recognized
rating agency that requires access to information about a Lender's or its
Affiliates' investment portfolio in connection with ratings issued with respect
to such Lender or its Affiliates; provided that, unless specifically prohibited
by applicable law or court order, each Lender shall notify Borrower of any
request by any Government Authority or representative thereof (other than any
such request in connection with any examination of the financial condition of
such Lender by such Government Authority) for disclosure of any such non-public
information prior to disclosure of such information; and provided, further that
in no event shall any Lender be obligated or required to return any materials
furnished by Borrower, any other Credit Party or any of their respective
Subsidiaries. In addition, Administrative Agent and Lenders may disclose the
existence of this Agreement and information about this Agreement to market data
collectors, similar service providers to the lending industry, and service
providers to Administrative Agent and Lenders. Notwithstanding anything to the
contrary set forth herein or in any other Credit Document or any other express
or implied agreement, arrangement or understanding, if any, the obligations of
confidentiality contained herein and therein shall not apply to the tax
structure or tax treatment of the transactions contemplated herein and under the
Related Agreements, and each party hereto (and any employee, representative, or
agent of any party hereto) may disclose to any and all Persons, without
limitation of any kind, the tax structure and tax treatment of such transactions
except where confidentiality is reasonably necessary to comply with U.S. federal
or state securities laws. The preceding sentence is intended to cause such
transactions not to be treated as having been offered under
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conditions of confidentiality for purposes of Section 1.6011-4(b)(3) (or any
successor provision) of the Treasury Regulations promulgated under Section 6011
of the IRC and shall be construed in a manner consistent with such purpose. In
addition, each party hereto acknowledges that it has no proprietary or exclusive
rights to the tax structure of such transactions or any tax matter or tax idea
related to such transactions.
10.20 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto.
10.21 USA PATRIOT ACT NOTICE.
Each Lender and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies Borrower, the other Credit Parties and
their Subsidiaries that pursuant to the requirements of the PATRIOT Act, it is
required to obtain, verify and record information that identifies Borrower, the
other Credit Parties and their Subsidiaries, which information includes the
names and addresses of Borrower, the other Credit Parties and their Subsidiaries
and other information that will allow such Lender or the Administrative Agent,
as applicable, to identify Borrower, the other Credit Parties and their
Subsidiaries in accordance with the PATRIOT Act.
* * * * *
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; THE NEXT THREE
PAGES ARE THE SIGNATURE PAGES]
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IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BORROWER:
XXXX, INC.
By:
------------------------------------
Xxxxxxxx Xxxxxxxx,
Executive Vice President
Notice Address:
Xxxx, Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxx Xxxxxxx,
Chief Executive Officer
Telephone: 000.000.0000
Facsimile: 212.921.2533
E-mail: x.xxxxxxx@xxxx.xxx
with a copy to:
Xxxxx Xxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxx X. Xxxxx, Esq.
Telephone: 000.000.0000
Facsimile: 212.541.1394
E-mail: xxxxxxx@xxxxxxxxx.xxx
S-1
ADMINISTRATIVE AGENT:
BANK OF MONTREAL, CHICAGO BRANCH
as Administrative Agent
By:
------------------------------------
Title: Xxxxxx Xxxxxx, Director
Notice Address:
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx Xxxxxx
Telephone: 000.000.0000
Facsimile: 212.702.1825
E-mail: xxxxxx.xxxxxx@xxx.xxx
LENDERS:
BANK OF MONTREAL, CHICAGO BRANCH
as Lender
By:
------------------------------------
Title: Xxxxxx Xxxxxx, Director
Notice Address:
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx Xxxxxx
Telephone: 000.000.0000
Facsimile: 212.702.1825
E-mail: xxxxxx.xxxxxx@xxx.xxx
BMO CAPITAL MARKETS FINANCING, INC.,
as Lender
By:
------------------------------------
Title: Xxxxxx Xxxxxx, Director
Notice Address:
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx Xxxxxx
Telephone: 000.000.0000
Facsimile: 212.702.1825
E-mail: xxxxxx.xxxxxx@xxx.xxx
S-2
