CREDIT AGREEMENT
dated as of March 22, 2000
among
XXXXXXXX COMMUNICATIONS GROUP, INC.,
as Borrower
The Lenders Party Hereto
and
PARIBAS,
as Administrative Agent
---------------------------
PARIBAS,
as Lead Arranger and Book Runner
CREDIT AGREEMENT, dated as of March 22, 2000, among XXXXXXXX
COMMUNICATIONS GROUP, INC., the LENDERS party hereto and PARIBAS, as
Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1. DEFINITIONS
Section 1.1 Defined Terms
As used in this Credit Agreement, the following terms have the
meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Adjusted Consolidated EBITDA" means, for any period, the sum of (i)
Consolidated EBITDA for such period and (ii) the aggregate amount of all
contracted savings in management compensation (demonstrated satisfactorily to
the Administrative Agent) made during such period by the Borrower and the
Subsidiaries, determined on a consolidated basis in accordance with GAAP, which
amount shall not, for purposes of this definition, exceed (a) with respect to
such period ending on December 31, 1999, $3,788,000, (b) with respect to such
period ending on March 31, 2000, $3,697,000, (c) with respect to such period
ending on June 30, 2000, $3,089,000, (d) with respect to such period ending on
September 30, 2000, $2,602,000 and (e) with respect to such period ending on
December 31, 2000, $649,000.
"Administrative Agent" means Paribas, in its capacity as administrative
agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (i) the Prime Rate in effect on such day and (ii) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Margin" means, at all times during the applicable
periods set forth below: (i) with respect to ABR Borrowings, the percentage set
forth below under the heading "ABR Margin" and (ii) with respect to Eurodollar
Borrowings and fees payable under Section 3.3(b), the percentage set forth below
under the heading "Eurodollar and LC Fee Margin":
--------------------------------------=============
When the
Total
Leverage
Ratio is
greater than Eurodollar
or equal to and less ABR Margin and LC Fee
than Margin
--------------------------------------=============
3.50:1.00 2.50% 3.50%
--------------------------------------=============
--------------------------------------=============
3.00:1.00 3.50:1.00 2.25% 3.25%
--------------------------------------=============
--------------------------------------=============
2.00:1.00 3.00:1.00 2.00% 3.00%
--------------------------------------=============
--------------------------------------=============
2.00:1.00 1.50% 2.50%
--------------------------------------=============
Changes in the Applicable Margin resulting from a change in the
Total Leverage Ratio shall be based upon the certificate most recently delivered
under Section 6.1(c) and shall become effective on the second Business Day after
the date such certificate is delivered to the Administrative Agent.
Notwithstanding anything to the contrary in this definition, (a) if the Borrower
shall fail to deliver to the Administrative Agent such a certificate on or prior
to any date required hereby, the Total Leverage Ratio for purposes of this
defined term only shall be deemed to be 3.50:1.00 from and including such date
to the date of delivery to the Administrative Agent of such certificate and (b)
during the period commencing on the Effective Date and ending on the date that
is six months after the Effective Date, the Total Leverage Ratio for purposes of
this defined term only shall be deemed to be 3.50:1.00.
"Applicable Percentage" means, with respect to any applicable
Lender, the percentage of the total Revolving Commitments or the total LC
Commitments, as applicable, represented by such Lender's Revolving Commitment or
LC Commitment, as applicable. If the Revolving Commitments or LC Commitments, as
applicable, have terminated or expired, the Applicable Percentages shall be
determined based upon the Revolving Commitments or the LC Commitments, as
applicable, most recently in effect, giving effect to any assignments.
"Approved Fund" means, with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4), and accepted by the Administrative Agent,
substantially in the form of Exhibit A or any other form approved by the
Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Revolving Maturity Date and
the date of termination of the Revolving Commitments.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" means Xxxxxxxx Communications Group, Inc., a Delaware
corporation.
"Borrowing" means Revolving Loans, Term Loans or LC Loans, as
applicable, of the same Type made, converted or continued on the same date and,
in the case of Eurodollar Loans, as to which a single Interest Period is in
effect.
"Borrowing Base" means, at any time, an amount equal to the sum of
85% of the sum of the aggregate of all Receivables of the Borrower and the
Subsidiaries that are Guarantors, determined on a consolidated basis in
accordance with GAAP, in each case payable in dollars which is a good and valid
account representing an undisputed bona fide indebtedness incurred by the
relevant account debtor for a fixed sum as set forth in the invoice relating
thereto with respect to an absolute sale and delivery upon the stated terms of
goods sold or services rendered and which is and at all times shall continue to
be acceptable to the Administrative Agent in all respects in accordance with its
reasonable credit judgment. Standards of eligibility may be established and
revised from time to time (upon notice to the Lenders) by the Administrative
Agent in its reasonable credit judgment; provided, however, that notwithstanding
anything in any Loan Document to the contrary, for purposes hereof, the term
"Borrowing Base" shall not include:
(a) Receivables that remain unpaid more than 120 days after the original date
of the applicable invoice;
(b) Receivables owing by a single account debtor if 50% of the balance owing
by such account debtor remains unpaid more than 120 days after the
original date of the applicable invoice;
(c) Receivables with respect to which the account debtor is a director,
officer, employee, subsidiary or other affiliate of the Borrower or any
Subsidiary;
(d) Receivables with respect to which the account debtor is not a resident of
the United States or Canada, unless (i) such account debtor has supplied
the Borrower or the relevant Subsidiary, as applicable, with an irrevocable
letter of credit issued by a financial institution satisfactory to the
Administrative Agent sufficient to cover such receivable, in form and
substance satisfactory to the Administrative Agent, or (ii) the Borrower
has requested the inclusion of such a Receivable and has provided the
Administrative Agent with a description thereof and such other information
with respect thereto as the Administrative Agent shall reasonably request,
and the Administrative Agent and Required Lenders shall have consented to
such inclusion;
(e) Receivables with respect to which the account debtor has (i) disputed such
receivable or asserted a counterclaim or any other claim or defense or
(ii) a right of setoff, but only to the extent of such counterclaim or
setoff;
(f) Receivables with respect to which the account debtor is the subject of
bankruptcy or a similar insolvency proceeding or has made an assignment
for the benefit of creditors or whose assets have been conveyed to a
receiver or trustee;
(g) Receivables with respect to which the account debtor's obligation to pay
is conditional upon the account debtor's approval or is otherwise subject
to any repurchase obligation or return right, as with sales made on a
xxxx-and-hold, guaranteed sale, sale-and-return, sale on approval (except
with respect to Receivables in connection with which account debtors are
entitled to return inventory on the basis of the quality of such
inventory) or consignment basis;
(h) Receivables not subject to a fully perfected first priority security
interest in favor of the Secured Parties or subject to any security
interest or Lien in favor of any Person other than the Lien of the Secured
Parties;
(i) Receivables, the account debtor of which is a Governmental Authority;
(j) Receivables with respect to which the account debtor's obligation does not
constitute its legal, valid and binding obligation, enforceable against it
in accordance with its terms;
(k) Receivables with respect to which the Borrower or the relevant Subsidiary,
as applicable, has not yet shipped the applicable goods or performed the
applicable service; and
(l) Receivables which the Administrative Agent, exercising reasonable
discretion, has determined to be unacceptable.
"Borrowing Request" means a request by the Borrower for a Borrowing
in accordance with Section 2.3.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed, provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" of any Person means expenditures for fixed or
capital assets and all other capitalized expenditures (including in respect of
software), in each case whether paid in cash or other consideration or accrued
as a liability (excluding any capitalized interest and any such expenditure in
respect of an asset acquired in connection with normal replacement and
maintenance programs properly charged to current operations and excluding any
such expenditure in respect of replacement assets acquired with the proceeds of
insurance) made by such Person.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (i) the ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the
Securities Exchange Act of 1934 as in effect on the date hereof) of shares
representing 35% or more of the aggregate ordinary voting power or economic
interests represented by the issued and outstanding equity securities of the
Parent on a fully diluted basis, (ii) the occupation of a majority of the seats
(other than vacant seats) on the board of directors of the Parent by Persons who
were neither (a) nominated by the board of directors of the Parent nor (b)
appointed by directors so nominated or (iii) the failure of the Parent to own
directly, beneficially and of record, 100% of the aggregate ordinary voting
power represented by the issued and outstanding equity securities of the
Borrower on a fully diluted basis.
"Change in Law" means (i) the adoption of any law, rule or
regulation after the date of this Credit Agreement, (ii) any change in any law,
rule or regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Credit Agreement or (iii)
compliance by any Credit Party (or, for purposes of Section 3.5(b), by any
lending office of such Credit Party or by such Credit Party's holding company,
if any) with any request, guideline or directive (whether or not having the
force of law) of any Governmental Authority made or issued after the date of
this Credit Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Term Loans or LC Loans.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means any and all "Collateral" as defined in any applicable
Security Document.
"Consent and Intercreditor Agreement" means the Consent and
Intercreditor Agreement, substantially in the form of Exhibit G, between Xxxxxxx
Factors, Inc. and the Administrative Agent, for the benefit of the Secured
Parties.
"Consolidated EBITDA" means, for any period, net income for such
period of the Borrower and the Subsidiaries, determined on a consolidated basis
in accordance with GAAP, plus, without duplication and to the extent deducted in
determining such net income, the sum of (i) Consolidated Interest Expense for
such period, (ii) provision for income taxes for such period, (iii) the
aggregate amount attributable to depreciation and amortization for such period,
(iv) the aggregate amount of extraordinary or non-recurring charges during such
period and (v) the aggregate amount of non-cash losses resulting from the
disposition of assets and other non-cash expenses during such period, and minus,
without duplication and to the extent added in determining such net income for
such period, the aggregate amount of extraordinary, non-cash and non-recurring
gains resulting from the disposition of assets and other extraordinary, non-cash
and non-recurring additions to income during such period. Notwithstanding
anything to the contrary in this definition, for purposes hereof, the term
"Consolidated EBITDA" shall be computed, on a consistent basis, to reflect
purchases, acquisitions, sales, transfers and dispositions made by the Borrower
and the Subsidiaries during the relevant period as if they occurred at the
beginning of such period.
"Consolidated Fixed Charges" means, for any period, the sum of each
of the following with respect to the Borrower and the Subsidiaries, determined
on a consolidated basis in accordance with GAAP: (i) Consolidated Interest
Expense for such period, (ii) the sum of the aggregate amount of all Capital
Expenditures made in cash during such period, (iii) the aggregate of all
scheduled principal amounts that become payable during such period in respect of
Indebtedness (excluding any prepayment under the second sentence of Section
2.7(b) and any prepayment under Section 2.7(e)) and (iv) the aggregate amount of
cash income taxes paid for such period in accordance with the Tax Sharing
Agreement.
"Consolidated Interest Expense" means, for any period, interest and
fees accrued or accreted by the Borrower and the Subsidiaries during such period
in respect of the Indebtedness of the Borrower and the Subsidiaries, determined
on a consolidated basis in accordance with GAAP, including (i) the amortization
of debt discounts to the extent included in interest expense in accordance with
GAAP, (ii) the amortization of all fees (including fees with respect to interest
rate cap agreements or other agreements or arrangements entered into by the
Borrower or any Subsidiary designed to protect the Borrower or such Subsidiary,
as applicable, against fluctuations in interest rates) payable in connection
with the incurrence of Indebtedness to the extent included in interest expense
in accordance with GAAP and (iii) the portion of any rents payable under capital
leases allocable to interest expense in accordance with GAAP, but excluding (a)
pay-in-kind or accreted interest expense not involving any payment of cash and
(b) all fees and other similar consideration (and the amortization of all debt
discounts relating thereto) paid to the Credit Parties on the Effective Date.
"Consolidated Total Debt" means, as of any date, the sum of the
aggregate principal amount of all Indebtedness of the Borrower and the
Subsidiaries that would be reflected as liabilities on a consolidated balance
sheet of the Borrower and the Subsidiaries as of such date prepared in
accordance with GAAP and, to the extent not otherwise included, the aggregate
amount of all obligations as of such date of the Borrower and the Subsidiaries,
determined on a consolidated basis in accordance with GAAP, of the type
described in clause (xiii) of the definition of the term "Indebtedness".
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
The terms "Controlling" and "Controlled" have meanings correlative thereto.
"Credit Parties" means the Administrative Agent, the Issuing Bank and the
Lenders.
"Default" means any event or condition which constitutes an Event of
Default or that upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 4.6.
"dollars" or "$" refers to lawful money of the United States of America.
"Effective Date" means the date on which the conditions specified in
Section 5.1 are satisfied (or waived in accordance with Section 10.2).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of any Loan Party or other
Subsidiary directly or indirectly resulting from or based upon (i) violation of
any Environmental Law, (ii) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (iii) exposure to any
Hazardous Materials, (iv) the release or threatened release of any Hazardous
Materials into the environment or (v) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with any Loan Party or any other Subsidiary, is
treated as a single employer under Section 414(b) or (c) of the Code or, solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as
a single employer under Section 414 of the Code.
"ERISA Event" means (i) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (ii)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (iii) the filing pursuant to Section 412(d) of the Code or Section
303(d) of ERISA of an application for a waiver of the minimum funding standard
with respect to any Plan; (iv) the incurrence by any Loan Party, any other
Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA with
respect to the termination of any Plan; (v) the receipt by any Loan Party, any
other Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of
any notice relating to an intention to terminate any Plan or Plans or to appoint
a trustee to administer any Plan; (vi) the incurrence by any Loan Party, any
other Subsidiary or any ERISA Affiliate of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (vii)
the receipt by any Loan Party, any other Subsidiary or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from any Loan Party, any
other Subsidiary or any ERISA Affiliate of any notice, concerning the imposition
of Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article 8.
"Excess Cash Flow" means, for any period, Consolidated EBITDA in
respect of such period, minus, without duplication, the sum of each of the
following with respect to the Borrower and the Subsidiaries, determined on a
consolidated basis in accordance with GAAP, (i) the sum of the aggregate amount
of all Capital Expenditures (to the extent not financed using the proceeds of
any Indebtedness) permitted under Section 7.15 and made in cash during such
period, (ii) the sum of the aggregate of all scheduled principal amounts that
became payable during such period in respect of Indebtedness (excluding any
prepayment under the second sentence of Section 2.7(b) in respect of any prior
period and any prepayment under Section 2.7(e)) and all prepayments of Term Loan
Borrowings and LC Loan Borrowings under Section 2.7(a) to the extent such
prepayments are made from Consolidated EBITDA, (iii) the aggregate amount of
cash income taxes paid for such period in accordance with the Tax Sharing
Agreement and (iv) Consolidated Interest Expense for such period.
"Excluded Taxes" means, with respect to any Credit Party or any
other recipient of any payment to be made by or on account of any obligation of
any Loan Party under any Loan Document, (i) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Credit Party, in which its
applicable lending office is located, (ii) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which such Loan Party is located and (iii) in the case of a
Foreign Lender, any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Credit
Agreement (or designates a new lending office) or is attributable to such
Foreign Lender's failure to comply with Section 3.7(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from such Loan Party with respect to such withholding tax pursuant to
Section 3.7(a).
"Federal Funds Effective Rate" means, for any day, a rate per annum
(expressed as a decimal, rounded upwards, if necessary, to the next higher 1/100
of 1%) equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, provided that (i) if the day for
which such rate is to be determined is not a Business Day, the Federal Funds
Effective Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day and
(ii) if such rate is not so published for any day, the Federal Funds Effective
Rate for such day shall be the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by it.
"Fixed Charge Coverage Ratio" means, as of the end of any fiscal
quarter, the quotient of (i) Consolidated EBITDA for the period of four
consecutive fiscal quarters ending thereon divided by (ii) Consolidated Fixed
Charges for such period. Notwithstanding anything to the contrary in this
definition, for purposes hereof, until a period of four consecutive fiscal
quarters shall have elapsed after the date hereof, the term "Consolidated Fixed
Charges" shall be computed, on a consistent basis, solely from the period of
consecutive fiscal quarters that shall have elapsed as of the relevant fiscal
quarter end.
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the applicable Loan Party is located.
For purposes of this definition, the United States of America, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles in effect from
time to time in the United States of America.
"Governmental Authority" means the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (ii) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (iii)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor as to enable the primary obligor
to pay such Indebtedness or other obligation or (iv) as an account party in
respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation, provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guaranteed" has a meaning correlative thereto.
"Guarantee Agreement" means the Guarantee Agreement, substantially
in the form of Exhibit D, among the Borrower, the Guarantors and the
Administrative Agent, for the benefit of the Secured Parties.
"Guarantee Documents" means the Guarantee Agreement and each other
guarantee agreement, instrument or other document executed or delivered pursuant
to Section 6.12 or 6.13 or Section 10(k), 10(l) or 10(m) of the Guarantee
Agreement to guarantee any of the Obligations.
"Guarantor" means the Parent and any subsidiary of the Parent that
executes and delivers the Security Documents and the Guarantee Documents, in
each case in accordance with Sections 5.1(g), 5.1(h), 6.12 and 6.13, Sections
10(k), 10(l) and 10(m) of the Guarantee Agreement and Sections 5(e) and 24 of
the Security Agreement.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price swap, cap, collar,
hedging or other like arrangement.
"Holdback Agreement" means the Holdback Agreement, dated as of March 22,
2000, among the Parent, the Borrower and Xxxxxx X. Xxxxxxxx, Xx., as
Stockholder's Representative.
"Indebtedness" of any Person means, without duplication, (i) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (ii) all obligations of such Person evidenced by or
otherwise in respect of bonds, debentures, notes or similar instruments,
including seller paper, (iii) all obligations of such Person upon which interest
charges are customarily paid, (iv) all obligations of such Person under
conditional sale or other title retention agreements relating to property
acquired by such Person, (v) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (vi) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (vii) all Guarantees by such Person of Indebtedness of others,
(viii) all Capital Lease Obligations of such Person, (ix) all obligations,
contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guaranty securing Indebtedness of others, (x)
the principal balance outstanding under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet financing
product of the Borrower or any Subsidiary where such transaction is considered
borrowed money indebtedness for tax purposes but is classified as an operating
lease under GAAP, (xi) all obligations of such Person to pay a specified
purchase price for goods or services whether or not delivered or accepted (e.g.,
take-or-pay obligations) or similar obligations, (xii) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances and
(xiii) to the extent not otherwise included, all net obligations of such Person
under Hedging Agreements. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning assigned to such term in Section 10.3(b).
"Initial Syndication Period" means the period commencing on the
Effective Date and ending on the day on which the Administrative Agent notifies
the Borrower in writing that the initial syndication of the credit facilities
established under this Credit Agreement has been completed, but in no event
later than six months after the Effective Date.
"Initial Transaction Documents" means (i) the Agreement and Plan of
Merger, dated as of July 8, 1999, by and among the Parent, the Borrower and
Xxxxxxxx Advertising Incorporated, (ii) the Holdback Agreement and (iii) each
other agreement, instrument or other document executed or delivered in
connection therewith, including all approvals and consents obtained, and all
legal opinions delivered, in connection with the Initial Transactions (and, in
the case of each such legal opinion, evidence satisfactory to the Administrative
Agent that the Credit Parties shall be permitted to rely thereon).
"Initial Transactions" means (i) the merger of Xxxxxxxx Advertising
Incorporated, a Texas corporation, into the Borrower, (ii) the change of the
Borrower's name from "GCG Merger Corp." to "Xxxxxxxx Communications Group, Inc."
and (iii) the payment of certain amounts in connection with such merger and the
other transactions contemplated hereby as described in Schedule 1.1B, all to
occur on the Effective Date pursuant to the Initial Transaction Documents, and
each other transaction contemplated by the Initial Transaction Documents to
occur on the Effective Date.
"Interest Coverage Ratio" means, as of the end of any fiscal
quarter, the quotient of (i) Consolidated EBITDA for the period of four
consecutive fiscal quarters ending thereon divided by (ii) Consolidated Interest
Expense for such period. Notwithstanding anything to the contrary in this
definition, for purposes hereof, until a period of four consecutive fiscal
quarters shall have elapsed after the date hereof, the term "Consolidated
Interest Expense" shall be computed, on a consistent basis, solely from the
period of consecutive fiscal quarters that shall have elapsed as of the relevant
fiscal quarter end.
"Interest Election Request" means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 3.2.
"Interest Payment Date" means (i) with respect to any ABR Loan, the
last day of each March, June, September and December, (ii) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Loan with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period, (iii) as to all Revolving Loans,
the Revolving Maturity Date, (iv) as to all Term Loans, the Term Maturity Date,
and (v) as to all LC Loans, the LC Maturity Date.
"Interest Period" means, with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six thereafter, as the Borrower may elect, provided that (i) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day, unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day, (ii) any Interest Period
that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period and (iii) during the Initial Syndication Period,
the Borrower may only select Interest Periods of not greater than one month all
of which shall commence on the same date and end on the same date. For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"Internet Subsidiaries" means, at any time, (i) WiredEmpire Inc. and
Pegasus Internet Inc., (ii) any investment at such time in XxxxxxxXxxx.xxx.,
Screenzone Media Networks, Fusion Networks or Xxxxxxxxx.xxx and (iii) any other
Subsidiary, or any other investments in any entity, that at such time is engaged
primarily in the internet business or any business reasonably related thereto.
"Issuing Bank" means Paribas, in its capacity as issuer of the Letter of
Credit.
"LC Commitment" means, with respect to each Lender having an LC
Commitment, the commitment of such Lender to acquire participations in the
Letter of Credit hereunder and to make LC Loans hereunder, expressed as an
amount representing the maximum aggregate amount of such Lender's participation
in the Letter of Credit and such Lender's LC Loans hereunder, as such commitment
may be reduced as a result of a reduction in the amount of the Letter of Credit
pursuant to Sections 2.1 and 2.8 or reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 10.4. The
initial amount of each applicable Lender's LC Commitment is set forth on
Schedule 2.1, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its LC Commitment, as applicable. The initial aggregate
amount of the LC Commitments is $5,000,000.
"LC Disbursement" means a payment made by the Issuing Bank pursuant
to the Letter of Credit.
"LC Exposure" means, at any time, the sum, without duplication, of
(i) the aggregate undrawn amount of the Letter of Credit at such time plus (ii)
the aggregate amount of all LC Disbursements that have not yet been reimbursed
by or on behalf of the Borrower at such time plus (iii) the aggregate
outstanding principal amount of all LC Loans at such time. The LC Exposure of
any Lender at any time shall be its Applicable Percentage of the total LC
Exposure at such time.
"LC Loan" means a Loan referred to in Section 2.1(c) and made
pursuant to Section 2.8(e).
"LC Maturity Date" means March 31, 2005.
"Lenders" means the Persons listed on Schedule 2.1 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"Letter of Credit" means the letter of credit issued pursuant to
this Credit Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate at which dollar deposits of $5,000,000 and for a
maturity comparable to such Interest Period are offered by the principal London
office of the Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (i) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (ii) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement relating
to such asset and (iii) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan Documents" means this Credit Agreement, the Notes, the
Guarantee Documents, the Security Documents and the Subordination Agreement.
"Loan Parties" means the Borrower and the Guarantors.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Credit Agreement.
"Margin Stock" has the meaning assigned to such term in Regulation U.
"Material Adverse Effect" means a material adverse effect on (i) the
business, assets, operations, prospects or condition, financial or otherwise, of
the Borrower and the Subsidiaries, taken as a whole, (ii) the ability of any
Loan Party to perform any of its obligations under any Loan Document or (iii)
the rights of or benefits available to any Credit Party under any Loan Document.
"Material Obligations" means (i) Indebtedness or other obligations
of one or more of the Loan Parties to Xxxxxxx Factors, Inc. and (ii) other
Indebtedness (other than Indebtedness under the Loan Documents) or other
obligations of any one or more of the Loan Parties and the other Subsidiaries in
an aggregate principal amount exceeding $500,000. For purposes of determining
Material Obligations, the "principal amount" of the obligations of any Loan
Party or any other Subsidiary in respect of any Hedging Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting agreements)
that such Loan Party or other Subsidiary, as applicable, would be required to
pay if such Hedging Agreement were terminated at such time.
"Xxxxxxx Financing Documents" means each agreement, instrument or
other document executed or delivered by any Loan Party in connection with the
Indebtedness and other obligations incurred by the Loan Parties to Xxxxxxx
Factors, Inc.
"Mortgage" means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall be
satisfactory in form and substance to the Administrative Agent.
"Mortgaged Property" means, initially, each parcel of real property
and the improvements thereto owned by the Borrower or any Guarantor and
identified on Schedule 1.1A, and includes each other parcel of real property and
improvements thereto with respect to which a Mortgage is granted pursuant to
Section 6.12 or 6.13 or Sections 10(k), 10(l) or 10(m) of the Guarantee
Agreement.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event, (a) the cash
proceeds received in respect of such event, including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in the
case of a casualty, insurance proceeds and (iii) in the case of a condemnation
or similar event, condemnation awards and similar payments, (b) net of the sum
of (i) all reasonable fees and out-of-pocket expenses paid by the Loan Parties
and the other Subsidiaries to third parties in connection with such event, (ii)
in the case of a sale, transfer, lease or other disposition of an asset
(including pursuant to a sale and leaseback transaction), the amount of all
payments required to be made by the Loan Parties and the other Subsidiaries as a
result of such event to repay Indebtedness (other than Indebtedness under the
Loan Documents) secured by such asset or otherwise subject to mandatory payment
as a result of such event, and (iii) the amount of all taxes paid (or reasonably
estimated to be payable after giving effect to all net operating losses and
other tax credits available under the Tax Sharing Agreement) by the Loan Parties
and the other Subsidiaries, and the amount of any reserves established by the
Loan Parties and the other Subsidiaries to fund contingent liabilities
reasonably estimated to be payable, in each case during the year that such event
occurred or the next succeeding year and that are directly attributable to such
event (as determined reasonably and in good faith by the chief financial officer
of the Borrower), provided, however, that, subject to Section 6.11 and Section
5(l) of the Security Agreement, with respect to any such casualty or
condemnation or similar event, if (A) the Borrower shall deliver a certificate
of its chief financial officer to the Administrative Agent at the time of event
setting forth the intent of the relevant Loan Parties and other Subsidiaries to
use the proceeds of such event to replace or repair the assets that are the
subject thereof with, or otherwise purchase, other assets to be used in the same
line of business within 180 days of receipt of such proceeds and (B) no Default
shall have occurred and shall be continuing at the time of such certificate or
at the proposed time of the application of such proceeds, such proceeds shall
not constitute Net Proceeds except to the extent not so used at the end of such
180-day period, at which time such proceeds shall be deemed Net Proceeds.
"Notes" means, with respect to each Lender, a promissory note
evidencing such Lender's Loans payable to the order of such Lender (or, if
required by such Lender, to such Lender and its registered assigns),
substantially in the form of Exhibit C.
"Obligations" has the meaning assigned to such term in the Security
Agreement.
"Other Taxes" means any and all current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, the Loan Documents.
"Parent" means Marketing Services Group, Inc., a Nevada corporation.
"Participant" has the meaning assigned to such term in Section 10.4(e).
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of Annex 1
to the Security Agreement or any other form approved by the Administrative
Agent.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being contested
in compliance with Section 6.4;
(b) landlords', vendors', carriers', warehousemen's, mechanics',
materialmen's, repairmen's and other like Liens imposed by law, arising in
the ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 6.4;
(c) pledges and deposits made in the ordinary course of business in compliance
with workers' compensation, unemployment insurance and other social
security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts (other than
contracts for the payment of money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an Event of
Default under clause (k) of Article 8;
(f) easements, zoning restrictions, rights-of-way and similar encumbrances on
real property imposed by law or arising in the ordinary course of business
that do not secure any monetary obligations and do not materially detract
from the value of the affected property or interfere with the ordinary
conduct of business of any Loan Party or other Subsidiary and other
encumbrances disclosed in any policy of title insurance satisfactory to
the Administrative Agent issued in respect of any Mortgage; and
(g) Liens on Margin Stock to the extent that a prohibition on such Liens would
violate Regulation U.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States of America (or
by any agency thereof to the extent that such obligations are backed by
the full faith and credit of the United States of America), in each case
measuring within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date of
acquisition thereof and having, at such date of acquisition, the highest
credit rating obtainable from Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, or any successor thereto, or from
Xxxxx'x Investors Service, Inc. or any successor thereto;
(c) investments in certificates of deposit, banker's acceptances and time
deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof that
has a combined capital and surplus and undivided profits of not less than
$500,000,000 or, to the extent not otherwise included, any Lender; and
(d) fully collateralized repurchase agreements with a term of not more than 30
days for securities described in clause (a) of this definition and entered
into with a financial institution satisfying the criteria described in
clause (c) of this definition.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which any Loan Party,
any other Subsidiary or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Prepayment/Reduction Event" means, without duplication:
(a) any of the following events with respect to the Borrower or any Subsidiary:
(i) any casualty or other insured damage to, or any taking under power of
eminent domain or by condemnation or similar proceeding of, any property or
asset of any Loan Party and (ii) the receipt by the Borrower or any
Subsidiary of any capital contribution (other than in connection with the
Initial Transactions) if at the time thereof or immediately after giving
effect thereto a Default or Event of Default shall have occurred and be
continuing (other than a Default of the Borrower's obligations under
Section 2.7(e)); and
(b) any of the following events with respect to the Guarantors (other than the
Subsidiaries): (i) the issuance by any such Guarantor of any equity
securities other than (A) the issuance of restricted equity securities for
executive compensation in the ordinary course of business, (B) the issuance
of equity securities to any other of such Guarantors and (C) the issuance
of equity securities (and any warrants, options or other rights to acquire
equity securities) to the extent the proceeds thereof have been used to
make a redemption or repurchase pursuant to Section 10(x)(iv) of the
Guarantee Agreement, (ii) the receipt by any such Guarantor of any capital
contribution other than from any other of such Guarantors, (iii) any sale,
transfer, lease or other disposition by any such Guarantor of any Internet
Subsidiary and (iii) the receipt by any such Guarantor of any cash dividend
or other distribution from any Internet Subsidiary, other than any such
dividend or other distribution for the purpose of enabling the Parent, as a
consolidated taxpayer, to pay taxes attributable such Internet Subsidiary
in accordance with the Tax Sharing Agreement.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan Bank as its prime commercial lending
rate; each change in the Prime Rate being effective from and including the date
such change is publicly announced as being effective. The Prime Rate is not
intended to be lowest rate of interest charged by The Chase Manhattan Bank or
any Credit Party in connection with extensions of credit to borrowers.
"Private Placement Documents" means (i) the Securities Purchase
Agreement, dated as of February 18, 2000, among the Parent, Xxxxxxxx Capital
Management, Inc. and RGC International Investors, LDC, (ii) the Certificate of
Designations, Preferences, and Rights of Series E Convertible Preferred Stock of
Marketing Services Group, Inc., dated February 22, 2000, (iii) the Stock
Purchase Warrant issued to each of Xxxxxxxx Capital Management, Inc. and RGC
International Investors, LDC, dated February 24, 2000, in connection with such
Securities Purchase Agreement, (iv) the Registration Rights Agreement, dated as
of February 18, 2000, among the Parent, Xxxxxxxx Capital Management, Inc. and
RGC International Investors, LDC and (v) each other agreement, instrument or
other document executed or delivered in connection with any of the foregoing.
"Receivable" means any right to payment arising as a result of, or
in connection with, a sale of inventory or the performance of services by, and
in the ordinary course of business of, the Borrower or any Subsidiary.
"Register" has the meaning assigned to such term in Section 10.4(c).
"Regulation T" means Regulation T of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" means Regulation U of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having outstanding
Revolving Loans, outstanding Term Loans, LC Exposures and unused Revolving
Commitments representing more than 50% of the sum of the total outstanding
Revolving Loans, outstanding Term Loans, LC Exposures and unused Revolving
Commitments at such time.
"Restricted Payment" means, as to any Person, (i) any dividend or
other distribution by such Person (whether in cash, securities or other
property) with respect to any shares of any class of equity securities of such
Person, (ii) any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any such
shares or any option, warrant or other right to acquire any such shares and
(iii) any payment of principal or interest or any purchase, redemption,
retirement, acquisition or defeasance with respect to any Indebtedness of such
Person which is subordinated to the payment of the Obligations.
"Revolving Commitment" means, with respect to each Lender having a
Revolving Commitment, the commitment of such Lender to make Revolving Loans
hereunder, expressed as an amount representing the maximum aggregate outstanding
principal amount of such Lender's Revolving Loans hereunder, as such commitment
may be reduced or increased from time to time pursuant to Section 2.5 or
pursuant to assignments by or to such Lender pursuant to Section 10.4. The
initial amount of each applicable Lender's Revolving Commitment is set forth on
Schedule 2.1, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Revolving Commitment, as applicable. The initial
aggregate amount of the Revolving Commitments is $13,000,000.
"Revolving Loan" means a Loan referred to in Section 2.1(a) and made
pursuant to Section 2.4.
"Revolving Maturity Date" means March 31, 2005.
"Secured Parties" means the "Secured Parties" as defined in the Security
Agreement.
"Security Agreement" means the Security Agreement, substantially in
the form of Exhibit E, among the Borrower, the Guarantors and the Administrative
Agent, for the benefit of the Secured Parties.
"Security Documents" means the Security Agreement, the Mortgages and
each other security agreement, instrument or other document executed or
delivered pursuant to Section 6.12 or 6.13, Section 10(k), 10(l) or 10(m) of the
Guarantee Agreement or Section 5(e) or 24 of the Security Agreement to secure
any of the Obligations.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"Subordination Agreement" means the Subordination Agreement,
substantially in the form of Exhibit F, among the Parent, Xxxxxxxx Capital
Management, Inc., RGC International Investors, LDC and the Administrative Agent,
for the benefit of the Secured Parties.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or, in the case
of a partnership, more than 50% of the general partnership interests are, as of
such date, owned, controlled or held by the parent or one or more subsidiaries
of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Tax Sharing Agreement" means the Federal Income Tax Allocation
Agreement, dated as of March 22, 2000, among the Parent and its subsidiaries.
"Taxes" means any and all current or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Commitment" means, with respect to each Lender having a Term
Commitment, the commitment of such Lender to make a Term Loan hereunder,
expressed as an amount representing the maximum aggregate amount of such
Lender's Term Loan hereunder. The amount of each applicable Lender's Term
Commitment is set forth on Schedule 2.1. The aggregate amount of the Term
Commitments is $40,000,000.
"Term Loan" means a Loan referred to in Section 2.1(b) and made
pursuant to Section 2.4.
"Term Maturity Date" means March 31, 2005.
"Total Leverage Ratio" means, as of any date, the quotient of (i)
Consolidated Total Debt as of such date divided by (ii) Adjusted Consolidated
EBITDA for the period of four consecutive fiscal quarters ending on, or most
recently before, such date.
"Transactions" means (i) the execution, delivery and performance by
each Loan Party of each Loan Document to which it is a party, (ii) the borrowing
of the Loans and the issuance of the Letter of Credit, (iii) the use of the
proceeds of the Loans and the Letter of Credit and (iv) the Initial
Transactions.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2 Classification of Loans and Borrowings
For purposes of this Credit Agreement, Loans may be classified and
referred to by Class (e.g., a "Term Loan") or by Type (e.g., a "Eurodollar
Loan") or by Class and Type (e.g., a "Eurodollar Term Loan"). Borrowings may
also be classified and referred to by Class (e.g., a "Term Borrowing") or by
Type (e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
Term Borrowing").
Section 1.3 Terms Generally
The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include", "includes" and "including" shall be deemed to be followed
by the phrase "without limitation". The word "will" shall be construed to have
the same meaning and effect as the word "shall". Unless the context requires
otherwise, (i) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (ii) any definition of or reference to any
law shall be construed as referring to such law as from time to time amended and
any successor thereto and the rules and regulations promulgated from time to
time thereunder, (iii) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (iv) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Credit Agreement in its entirety and not to any particular provision
hereof, (v) all references herein to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, this Credit Agreement and (vi) the words "asset" and "property"
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights. Any reference to an "applicable Lender" shall mean
(a) in the case of Revolving Borrowings, Lenders having a Revolving Commitment,
(b) in the case of the Letter of Credit and LC Borrowings, Lenders having an LC
Commitment and (c) in the case of Term Borrowings, Lenders having a Term
Commitment.
Section 1.4 Accounting Terms; GAAP
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time, provided that, if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith. Unless the context otherwise requires, any reference to a
fiscal period shall refer to the relevant fiscal period of the Borrower.
ARTICLE 2. THE CREDITS
Section 2.1 Commitments
(a) Subject to the terms and conditions set forth herein, each Lender having a
Revolving Commitment agrees to make Revolving Loans to the Borrower in dollars
from time to time during the Availability Period in an aggregate principal
amount that will not result in (i) the sum of the aggregate outstanding
principal amount of such Lender's Revolving Loans exceeding such Lender's
Revolving Commitment and (ii) the sum of the aggregate outstanding principal
amount of all Revolving Loans exceeding the Borrowing Base. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Revolving Loans.
(b) Subject to the terms and conditions hereof, each Lender having a Term
Commitment severally agrees to make a Term Loan to the Borrower in dollars on
the Effective Date in a principal amount equal to such Term Commitment. Term
Loans which are prepaid or repaid, in whole or in part, may not be reborrowed.
(c) Subject to the terms and conditions hereof, each Lender having an LC
Commitment severally agrees to make LC Loans to the Borrower in dollars from
time to time prior to the expiration of the Letter of Credit in an aggregate
principal amount that will not result in such Lender's LC Exposure exceeding
such Lender's LC Commitment, provided that immediately after giving effect
thereto the aggregate undrawn amount of the Letter of Credit shall have been
automatically reduced in accordance with the Holdback Agreement by an amount
equal to the amount of such LC Loan.
Section 2.2 Loans and Borrowings
(a) Each Revolving Loan, Term Loan and LC Loan shall be made as part of a
Borrowing consisting of Revolving Loans, Term Loans or LC Loans, as applicable,
made by the applicable Lenders ratably in accordance with their respective
Revolving Commitments, Term Commitments and LC Commitments. The failure of any
applicable Lender to make any Loan required to be made by it shall not relieve
any other Lender of its obligations hereunder, provided that the Revolving
Commitments, Term Commitments and LC Commitments of the applicable Lenders are
several, and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 3.4, each Borrowing shall be comprised entirely of (i)
Revolving Loans, Term Loans or LC Loans, as applicable, and (ii) ABR Loans or
Eurodollar Loans, as applicable, in each case as the Borrower may request in
accordance herewith. Each applicable Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan, provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Credit Agreement.
(c) At the commencement of each Interest Period for any Eurodollar Revolving
Borrowing or Eurodollar Term Borrowing, such Borrowing shall be in an aggregate
amount that is an integral multiple of $250,000 and not less than $500,000. At
the time that each ABR Revolving Borrowing or ABR Term Borrowing is made, such
Borrowing shall be in an aggregate amount that is an integral multiple of
$250,000 and not less than $500,000, provided that an ABR Revolving Borrowing or
an ABR Term Borrowing may be in an aggregate amount that is equal to the entire
unused balance of the total Revolving Commitments or the entire aggregate
outstanding principal amount of the Term Loans, as applicable. Borrowings of
more than one Type may be outstanding at the same time, provided that there
shall not at any time be more than a total of six Eurodollar Borrowings
outstanding.
(d) Notwithstanding any other provision of this Credit Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
(i) the Revolving Maturity Date, in the case of Revolving Loans, (ii) the Term
Maturity Date, in the case of Term Loans or (iii) the LC Maturity Date, in the
case of LC Loans.
Section 2.3 Requests for Borrowings
(a) To request a Borrowing, the Borrower shall notify the Administrative Agent
of such request by telephone (i) in the case of a Eurodollar Borrowing, not
later than 11:00 a.m., New York City time, three Business Days before the date
of the proposed Borrowing or (ii) in the case of an ABR Borrowing, not later
than 11:00 a.m., New York City time, one Business Day before the date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or facsimile to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent signed by the Borrower. Each such telephonic and written
Borrowing Request shall specify the following information in compliance with
Section 2.2:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Revolving Borrowing, Term Borrowing
or LC Loan Borrowing;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest Period to
be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which funds are to
be disbursed, which shall comply with the requirements of Section 2.4.
(b) If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each applicable Lender of the details thereof
and of the amount of such Lender's Loan to be made as part of the requested
Borrowing.
Section 2.4 Funding of Borrowings
(a) Each Lender shall make each Loan to be made by it hereunder on the proposed
date thereof by wire transfer of immediately available funds by 1:00 p.m., New
York City time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders. Subject to Section
5.2, the Administrative Agent will make such Loans available to the Borrower by
promptly crediting or otherwise transferring the amounts so received, in like
funds, to an account of the Borrower designated by it in the applicable
Borrowing Request.
(b) Unless the Administrative Agent shall have received notice from a Lender
prior to the proposed date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of the Borrower, the interest rate
that would be otherwise applicable to such Borrowing. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
Section 2.5 Termination and Reduction of Revolving Commitments
(a) Unless previously terminated, the Revolving Commitments shall terminate on
the Revolving Maturity Date.
(b) The Borrower may at any time terminate, or from time to time reduce, the
Revolving Commitments, provided that (i) the Borrower shall not terminate or
reduce the Revolving Commitments if, after giving effect to any concurrent
repayment or prepayment of the Revolving Loans in accordance with Section 2.6 or
2.7, the aggregate outstanding principal amount of the Revolving Loans would
exceed the total Revolving Commitments, and (iii) each such reduction shall be
in an amount that is an integral multiple of $250,000 and not less than
$500,000.
(c) The Borrower shall notify the Administrative Agent of any election to
terminate or reduce the Revolving Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable, provided that a notice
of termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Revolving
Commitments hereunder shall be permanent. Each reduction of the Revolving
Commitments hereunder shall be made ratably among the applicable Lenders in
accordance with their respective Revolving Commitments.
(d) In addition to any termination or reduction of the Revolving Commitments
under paragraph (a) or (b) of this Section, the Revolving Commitments shall be
reduced as required under Section 2.7(b).
Section 2.6 Repayment of Loans; Evidence of Debt
(a) The Borrower hereby unconditionally promises to pay to the Administrative
Agent for the account of each applicable Lender the then unpaid principal amount
of each Revolving Loan, Term Loan and LC Loan on the Revolving Maturity Date,
Term Maturity Date and LC Maturity Date, respectively.
(b) On each date below, the aggregate unpaid principal balance of the Term Loans
shall be due and payable in the amount set forth below adjacent to such date:
--------------------------------============================
Date Amount
--------------------------------============================
December 31, 2000 $1,500,000
--------------------------------============================
--------------------------------============================
March 31, 2001 $1,500,000
--------------------------------============================
--------------------------------============================
June 30, 2001 $1,500,000
--------------------------------============================
--------------------------------============================
September 30, 2001 $1,500,000
--------------------------------============================
December 31, 2001 $2,400,000
--------------------------------============================
--------------------------------============================
March 31, 2002 $2,400,000
--------------------------------============================
--------------------------------============================
June 30, 2002 $2,400,000
--------------------------------============================
--------------------------------============================
September 30, 2002 $2,400,000
--------------------------------============================
December 31, 2002 $2,400,000
--------------------------------============================
--------------------------------============================
March 31, 2003 $2,400,000
--------------------------------============================
--------------------------------============================
June 30, 2003 $2,400,000
--------------------------------============================
--------------------------------============================
September 30, 2003 $2,400,000
--------------------------------============================
December 31, 2003 $2,400,000
--------------------------------============================
--------------------------------============================
March 31, 2004 $2,400,000
--------------------------------============================
--------------------------------============================
June 30, 2004 $2,400,000
--------------------------------============================
--------------------------------============================
September 30, 2004 $2,400,000
--------------------------------============================
December 31, 2004 $2,400,000.
--------------------------------============================
(c) On the date of each fiscal quarter end, commencing on March 31, 2004, the
aggregate unpaid principal balance of the LC Loans shall be due and payable in
an amount equal to (i) the aggregate unpaid principal balance of the LC Loans as
of March 31, 2004 multiplied by (ii) 20%.
(d) Each Lender shall maintain in accordance with its usual practice an account
or accounts evidencing the debt of the Borrower to such Lender resulting from
each Loan made by such Lender, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.
(e) The Administrative Agent shall maintain accounts in which it shall record
(i) the amount of each Loan made hereunder, the Class and Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender's share thereof.
(f) The entries made in the accounts maintained pursuant to paragraphs (d) or
(e) of this Section shall, to the extent not inconsistent with entries made in
the Notes, be prima facie evidence of the existence and amounts of the
obligations recorded therein, provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this Credit Agreement.
(g) The Loans evidenced by each Note and interest thereon shall at all times
(including after assignment pursuant to Section 10.4) be represented by one or
more Notes in such form payable to the order of the payee named therein and its
registered assigns.
Section 2.7 Prepayment of Loans
(a) The Borrower shall have the right at any time and from time to time to
prepay any Borrowing in whole or in part, subject to the requirements of this
Section.
(b) In the event and on each occasion that any Net Proceeds are received by or
on behalf of any Loan Party or any other Subsidiary in respect of any
Prepayment/Reduction Event, then, immediately after such Net Proceeds are
received, the Borrower shall prepay Borrowings in an amount equal to (i) in the
case of any event referred to in clause (b) of the definition of the term
"Prepayment/Reduction Event", 50% of such Net Proceeds, provided that the
aggregate amount of all prepayments made under this clause (i) in respect of all
such events shall not exceed $20,000,000, and (ii) in all other cases, 100% of
such Net Proceeds. In addition, on October 31st of each year (commencing on
October 31, 2001), the Borrower shall prepay Borrowings in an amount equal to
(i) 75% of the Excess Cash Flow attributable to the most recently completed
fiscal year of the Borrower, in the event that the Total Leverage Ratio in
respect of such fiscal year is greater than or equal to 2.00:1.00 or (ii) 50% of
such Excess Cash Flow, in the event that such Leverage Ratio is less than
2.00:1.00. Notwithstanding anything to the contrary herein, each prepayment
under this Section 2.7(b) shall be applied in the following order: (A) first, as
a prepayment of the Term Borrowings then outstanding, (B) second, to the extent
of any excess, as a reduction of the Revolving Commitments then outstanding, (C)
third, to the extent of any excess, as a prepayment of the LC Borrowings then
outstanding and (D) fourth, to the extent of any excess, as a cash deposit into
the account referred to in Section 2.8(i) to be held by the Administrative Agent
in accordance with such Section as additional collateral for the payment and
performance of the Borrower's obligations hereunder.
(c) In the event of any partial reduction or termination of the Revolving
Commitments, then (i) at or prior to the date of such reduction or termination,
the Administrative Agent shall notify the Borrower and the applicable Lenders of
the aggregate outstanding principal amount of the Revolving Loans after giving
effect thereto and (ii) if such amount would exceed the total Revolving
Commitments after giving effect to such reduction or termination, then the
Borrower shall, on the date of such reduction or termination, prepay Revolving
Borrowings in an amount sufficient to eliminate such excess.
(d) If on any day the aggregate outstanding principal amount of the Revolving
Loans would exceed the Borrowing Base, then the Borrower shall, within three
Business Days of such day, prepay Revolving Borrowings in an amount sufficient
to eliminate such excess.
(e) During the period from February 1st to April 30th of each year (commencing
on February 1, 2001), the Borrower shall cause the sum of the aggregate
outstanding principal amount of the Revolving Loans not to exceed $2,500,000 for
a period of not less than 30 consecutive days.
(f) The Borrower shall notify the Administrative Agent by telephone (confirmed
by facsimile) of any prepayment hereunder (i) in the case of a prepayment of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of prepayment or (ii) in the case of prepayment of
an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business
Day before the date of prepayment. Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid, provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Revolving
Commitments as contemplated by Section 2.5, then such notice of prepayment may
be revoked if such notice of termination is revoked in accordance with Section
2.5. Promptly following receipt of any such notice relating to a Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing under Sections 2.5(b) and 2.7(a) shall, when
added to the amount of each concurrent reduction of the Revolving Commitments
and prepayment of Borrowings under such Sections, be in an integral multiple of
$250,000 and not less than $500,000. Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Each prepayment
of Term Loans or LC Loans shall be applied ratably among the remaining
installments of principal required under Section 2.6(b) or 2.6(c), as
applicable. Prepayments shall be accompanied by accrued interest to the extent
required by Section 3.1.
Section 2.8 Letter of Credit
(a) General. Subject to the terms and conditions set forth herein, the Borrower
may request the issuance on the Effective Date of the Letter of Credit
denominated in dollars for its own account, in all respects acceptable to the
Administrative Agent and the Issuing Bank.
(b) Notice of Issuance; Certain Conditions. To request the issuance of the
Letter of Credit, the Borrower shall hand deliver or facsimile (or transmit by
electronic communication, if arrangements for doing so have been approved by the
Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably in
advance of the requested date of issuance) a notice requesting the issuance of
the Letter of Credit and specifying the date of issuance (which shall be a
Business Day), the date on which the Letter of Credit is to expire (which shall
comply with paragraph (c) of this Section), the amount of the Letter of Credit,
the name and address of the beneficiary thereof and such other information as
shall be necessary to issue the Letter of Credit. The initial undrawn amount of
the Letter of Credit shall be $5,000,000.
(c) Expiration Date. The Letter of Credit shall expire at or prior to the close
of business on June 30, 2003. The Letter of Credit may not be renewed or
extended or increased.
(d) Participations. By the issuance of the Letter of Credit and without any
further action on the part of the Issuing Bank or the applicable Lenders, the
Issuing Bank hereby grants to each Lender having an LC Commitment, and each such
Lender hereby acquires from the Issuing Bank, a participation in the Letter of
Credit equal to such Lender's Applicable Percentage of the aggregate amount
available to be drawn under the Letter of Credit. In consideration and in
furtherance of the foregoing, each such Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the Issuing Bank, such Lender's Applicable Percentage of each LC Disbursement
made by the Issuing Bank and not reimbursed on the date due as provided in
paragraph (e) of this Section, or of any reimbursement payment required to be
refunded to the Borrower for any reason. Each such Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of the Letter of Credit is absolute and unconditional and shall not
be affected by any circumstance whatsoever, including the occurrence and
continuance of a Default, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement; LC Loans. If the Issuing Bank shall make any LC Disbursement
in respect of the Letter of Credit, then the Issuing Bank shall either (i)
notify the Borrower to reimburse the Issuing Bank therefor, in which case the
Borrower shall reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement and any accrued interest thereon
not later than 1:00 p.m., New York City time, on the date that such LC
Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 12:00 noon, New York City time, on such date, or if such
notice has not been received by the Borrower prior to such time on such date,
then not later than 1:00 p.m., New York City time, on (A) the Business Day that
the Borrower receives such notice, if such notice is received prior to 12:00
noon, New York City time, on the day of receipt or (B) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt, provided that
the Borrower may, subject to the conditions of borrowing set forth herein,
request in accordance with Sections 2.1 and 2.3 that such payment be financed
with an ABR LC Loan Borrowing in an equal amount and, to the extent so financed,
the Borrower's obligation to make such payment shall be discharged and replaced
by the resulting ABR LC Borrowing or (ii) notify the Administrative Agent that
that the Issuing Bank is requesting that the applicable Lenders make an ABR LC
Borrowing in an amount equal to such LC Disbursement and any accrued interest
thereon, in which case (A) the Administrative Agent shall notify each applicable
Lender of the details thereof and of the amount of such Lender's LC Loan to be
made as part of such ABR LC Borrowing and (B) each Lender shall, whether or not
any Default shall have occurred and be continuing, any representation or
warranty shall be accurate, any condition to the making of any Loan hereunder
shall have been fulfilled, or any other matter whatsoever, make the Loan to be
made by it under this paragraph by wire transfer of immediately available funds
to the account of the Administrative Agent most recently designated by it for
such purpose by notice to the Lenders, (X) on such date, in the event that such
Lender shall have received notice of such ABR LC Borrowing prior to 12:00 noon,
New York City time, or (Y) if such notice has not been received by such Lender
prior to such time on such date, then not later than 1:00 p.m., New York City
time, on (I) the Business Day that such Lender receives such notice, if such
notice is received prior to 12:00 noon, New York City time, on the day of
receipt or (II) the Business Day immediately following the day that such Lender
receives such notice, if such notice is not received prior to such time on the
day of receipt. Such Loans shall, for all purposes hereof, be deemed to be an
ABR LC Borrowing, and the Lenders obligations to make such Loans shall be
absolute and unconditional. The Administrative Agent will make such Loans
available to the Issuing Bank by promptly crediting or otherwise transferring
the amounts so received, in like funds, to the Issuing Bank for the purpose of
repaying in full the LC Disbursement and all accrued interest thereon.
(f) Obligations Absolute. The Borrower's obligations to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Credit Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of the
Letter of Credit or this Credit Agreement, or any term or provision therein or
herein, (ii) any draft or other document presented under the Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect, (iii) payment by the Issuing
Bank under the Letter of Credit against presentation of a draft or other
document that does not comply with the terms of the Letter of Credit or (iv) any
other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder. Neither any Credit Party nor any of their
respective Related Parties shall have any liability or responsibility by reason
of or in connection with the issuance or transfer of the Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to the Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under the Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or willful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented that appear on their
face to be in substantial compliance with the terms of the Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of the Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for
payment under the Letter of Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by facsimile) of
such demand for payment and whether the Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in giving
such notice shall not relieve the Borrower of its obligation to reimburse the
Issuing Bank and the applicable Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in full on the date
such LC Disbursement is made, the unpaid amount thereof shall bear interest, for
each day from and including the date such LC Disbursement is made to but
excluding the date that the Borrower reimburses such LC Disbursement, at the
rate per annum then applicable to ABR Revolving Loans; provided that, if the
Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph
(e) of this Section, then Section 3.1(b) shall apply. Interest accrued pursuant
to this paragraph shall be for the account of the Issuing Bank, except that
interest accrued on and after the date of payment by any Lender pursuant to
paragraph (e) of this Section to reimburse the Issuing Bank shall be for the
account of such Lender to the extent of such payment.
(i) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing greater than 50% of
the total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
applicable Lenders, an amount in cash equal to the LC Exposure as of such date
plus any accrued and unpaid interest thereon; provided that the obligation to
deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice
of any kind, upon the occurrence of any Event of Default with respect to the
Borrower described in clause (h) or (i) of Article 8. Such deposit shall be held
by the Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Credit Agreement. The Administrative
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposit, which investments shall be in direct short-term
obligations of, or short-term obligations the principal of and interest on which
are unconditionally guaranteed by, the United States of America, in each case
maturing no later than the expiry date of the Letter of Credit giving rise to
the relevant LC Exposure, such deposit shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys in
such account shall be applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated (but subject to the consent of
Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Borrower under this
Credit Agreement. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to the
Borrower within three Business Days after the Administrative Agent's shall have
received a request therefor from the Borrower, provided that all Events of
Default have been cured or waived.
Section 2.9 Payments Generally; Pro Rata Treatment; Sharing of Setoffs
(a) Each Loan Party shall make each payment required to be made by it hereunder
or under any other Loan Document (whether of principal of Loans, LC
Disbursements, interest or fees, or of amounts payable under Sections 3.5, 3.6,
3.7 or 10.3, or otherwise) prior to 12:00 noon, New York City time, on the date
when due, in immediately available funds, without setoff or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its office at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, or such other office as to which the Administrative Agent
may notify the other parties hereto, except payments to be made to the Issuing
Bank as expressly provided herein and except that payments pursuant to Sections
3.5, 3.6, 3.7 and 10.3 shall be made directly to the Persons entitled thereto.
The Administrative Agent shall distribute any such payments received by it for
the account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal of Loans,
unreimbursed LC Disbursements, interest, fees and commissions then due
hereunder, such funds shall be applied (i) first, towards payment of interest,
fees and commissions then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest, fees and commissions then
due to such parties and (ii) second, towards payment of principal of Loans and
unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal of Loans and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of any principal of, or interest on, any of
its Loans or participations in LC Disbursements resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its Loans
and participations in LC Disbursements and accrued interest thereon than the
proportion received by any other applicable Lender, then the applicable Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans and participations in LC Disbursements of other
applicable Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the applicable Lenders ratably in accordance with
the aggregate amount of principal of, and accrued interest on, their respective
Loans and participations in LC Disbursements, provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Credit Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). Each Loan Party consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against such Loan Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Loan
Party in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from a Loan Party
prior to the date on which any payment is due to the Administrative Agent for
the account of the applicable Credit Parties hereunder that such Loan Party will
not make such payment, the Administrative Agent may assume that such Loan Party
has made such payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to such Credit Parties the amount due. In such
event, if such Loan Party has not in fact made such payment, then each such
Credit Party severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Credit Party with interest thereon, for
each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(e) If any Credit Party shall fail to make any payment required to be made by it
pursuant to Section 2.4(b) or 2.8(e), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Credit
Party to satisfy such Credit Party's obligations under such Sections until all
such unsatisfied obligations are fully paid.
ARTICLE 3. INTEREST, FEES, YIELD PROTECTION, ETC.
Section 3.1 Interest
(a) The Loans comprising each ABR Borrowing shall bear interest at the Alternate
Base Rate plus the Applicable Margin, and the Loans comprising each Eurodollar
Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period
in effect for such Borrowing plus the Applicable Margin.
(b) Notwithstanding the foregoing, if any principal of or interest on any Loan
or any fee or other amount payable by the Borrower hereunder is not paid when
due, whether at stated maturity, upon acceleration or otherwise, such overdue
amount shall bear interest, after as well as before judgment, at a rate per
annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraph of
this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Borrowings as provided in the preceding paragraph of this
Section. In addition, notwithstanding the foregoing, if an Event of Default has
occurred and is continuing, then, so long as such Event of Default is
continuing, all outstanding principal of each Loan shall, without duplication of
amounts payable under the preceding sentence, bear interest, after as well as
before judgment, at a rate per annum equal to 2% plus the rate otherwise
applicable to such Loan as provided in the preceding paragraph of this Section.
(c) Accrued interest on each Loan shall be payable in arrears on each Interest
Payment Date for such Loan, provided that (i) interest accrued pursuant to
paragraph (b) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than the prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
(d) All interest hereunder shall be computed on the basis of a year of 360 days,
except that interest computed by reference to the Alternate Base Rate at times
when the Alternate Base Rate is based on the Prime Rate shall be computed on the
basis of a year of 365 days (or 366 days in a leap year), and in each case shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate
or LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent clearly demonstrable error.
Section 3.2 Interest Elections
(a) Each Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the applicable
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing
Request would be required under Section 2.3 if the Borrower were requesting a
Borrowing of the Type resulting from such election to be made on the effective
date of such election. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or facsimile to the
Administrative Agent of a written Interest Election Request in a form approved
by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify the
following information in compliance with Section 2.2:
(i) the Borrowing to which such Interest Election Request applies and, if
different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) of this paragraph shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest
Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term
"Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each applicable Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request prior to
the end of the Interest Period applicable thereto, then, unless such Borrowing
is repaid as provided herein, at the end of such Interest Period, such Borrowing
shall be converted to an ABR Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing, (i) no outstanding
Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii)
unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing
at the end of the Interest Period applicable thereto.
Section 3.3 Fees
(a) The Borrower agrees to pay to the Administrative Agent for the account of
each Lender having a Revolving Commitment, a commitment fee, which shall accrue
at a rate per annum equal to (i) 0.75%, at all times when the Total Leverage
Ratio is greater than or equal to 2.00:1.00 and (ii) 0.50%, at all other times,
on the daily amount of the unused Revolving Commitment during the period from
and including the date on which this Credit Agreement shall have become
effective in accordance with Section 10.6 to but excluding the date on which
such Revolving Commitment terminates. Accrued commitment fees shall be payable
in arrears on the last day of March, June, September and December of each year,
each date on which the Revolving Commitments are permanently reduced and on the
date on which the Revolving Commitments terminate, commencing on the first such
date to occur after the date hereof. All commitment fees shall be computed on
the basis of a year of 365 days (or 366 days in a leap year) and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). Changes in the rate at which commitment fees accrue
resulting from a change in the Total Leverage Ratio shall be based upon the
certificate most recently delivered under Section 6.1(c) and shall become
effective on the second Business Day after the date such certificate is
delivered to the Administrative Agent. Notwithstanding anything to the contrary
in this paragraph, (A) if the Borrower shall fail to deliver to the
Administrative Agent such a certificate on or prior to any date required hereby,
the Total Leverage Ratio for purposes of this paragraph only shall be deemed to
be 2.00:1.00 from and including such date to the date of delivery to the
Administrative Agent of such certificate and (ii) during the period commencing
on the Effective Date and ending on the date that is six months after the
Effective Date, the Total Leverage Ratio for purposes of this paragraph only
shall be deemed to be 2.00:1.00.
(b) The Borrower agrees to pay (i) to the Administrative Agent for the account
of each Lender having an LC Commitment a participation fee with respect to its
participations in the Letter of Credit, which shall accrue at rate per annum
equal to the Applicable Margin on the average daily amount of such Lender's LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements or the LC Loans) during the period from and including the date on
which this Credit Agreement shall become effective in accordance with Section
10.6 to but excluding the later of the date on which such Lender's LC Commitment
terminates and the date on which such Lender ceases to have any such LC Exposure
and (ii) the Issuing Bank's standard fees with respect to the issuance of the
Letter of Credit or processing of drawings thereunder. Accrued participation
fees and fronting fees shall be payable in arrears on the last day of March,
June, September and December of each year, commencing on the first such date to
occur after the date hereof; provided that all such fees shall be payable on the
date on which the LC Commitments terminate, and any such fees accruing after the
date on which the LC Commitments terminate shall be payable on demand. Any other
fees payable to the Issuing Bank pursuant to this paragraph shall be payable
within ten days after demand. All participation fees and fronting fees shall be
computed on the basis of a year of 365 days (or 366 days in a leap year) and
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day). Notwithstanding anything to the contrary herein, at
all times during the continuance of an Event of Default, all participation fees
and fronting fees shall be calculated at a rate per annum equal to 2% plus the
rate otherwise applicable thereto and shall be payable on demand.
(c) The Borrower agrees to pay to each Credit Party, for its own account, fees
and other amounts payable in the amounts and at the times separately agreed upon
between the Borrower and such Credit Party.
(d) All fees and other amounts payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in each case of fees payable to it) for distribution, in the case of
commitment and participation fees, to the Lenders. Fees and other amounts paid
shall not be refundable under any circumstances.
Section 3.4 Alternate Rate of Interest
If prior to the commencement of any Interest Period for a Eurodollar
Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
(b) the Administrative Agent is advised by any applicable Lender that the
Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such Lender of
making or maintaining its Loan included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
applicable Lenders by telephone or facsimile as promptly as practicable
thereafter and, until the Administrative Agent notifies the Borrower and the
applicable Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any
Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall
be ineffective, and (ii) if any Borrowing Request requests a Eurodollar
Borrowing, such Borrowing shall be made as an ABR Borrowing.
Section 3.5 Increased Costs; Illegality
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Credit Party (except any such reserve
requirement reflected in the Adjusted LIBO Rate);
(ii) impose on any Credit Party or the London interbank market any other
condition affecting this Credit Agreement, any Eurodollar Loans made by
such Credit Party or any participation therein or the Letter of Credit
or participation therein,
and the result of any of the foregoing shall be to increase the cost to such
Credit Party of making or maintaining any Eurodollar Loan or the cost to such
Credit Party of issuing, participating in or maintaining the Letter of Credit
hereunder or to increase the cost to such Credit Party or to reduce the amount
of any sum received or receivable by such Credit Party hereunder (whether of
principal, interest or otherwise), then the Borrower will pay to such Credit
Party such additional amount or amounts as will compensate such Credit Party for
such additional costs incurred or reduction suffered.
(b) If any Credit Party determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Credit Party's capital or on the capital of such Credit Party's holding company,
if any, as a consequence of this Credit Agreement or the Loans made, the Letter
of Credit issued or the participations therein held, by such Credit Party to a
level below that which such Credit Party or such Credit Party's holding company
could have achieved but for such Change in Law (taking into consideration such
Credit Party's policies and the policies of such Credit Party's holding company
with respect to capital adequacy), then from time to time the Borrower will pay
to such Credit Party such additional amount or amounts as will compensate such
Credit Party or such Credit Party's holding company for any such reduction
suffered.
(c) A certificate of a Credit Party setting forth the amount or amounts
necessary to compensate such Credit Party or its holding company, as applicable,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Credit Party the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Credit Party to demand compensation
pursuant to this Section shall not constitute a waiver of such Credit Party's
right to demand such compensation.
(e) Notwithstanding any other provision of this Credit Agreement, if, after the
date of this Credit Agreement, any Change in Law shall make it unlawful for any
Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not thereafter (for the
duration of such unlawfulness) be made by such Lender hereunder (or be
continued for additional Interest Periods and ABR Loans will not thereafter
(for such duration) be converted into Eurodollar Loans), whereupon any
request for a Eurodollar Borrowing or to convert an ABR Borrowing to a
Eurodollar Borrowing or to continue a Eurodollar Borrowing, as applicable,
for an additional Interest Period shall, as to such Lender only, be deemed
a request for an ABR Loan (or a request to continue an ABR Loan as such for
an additional Interest Period or to convert a Eurodollar Loan into an ABR
Loan, as applicable), unless such declaration shall be subsequently
withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be
automatically converted to ABR Loans, as of the effective date of such
notice as provided in the last sentence of this paragraph.
In the event any Lender shall exercise its rights under (i) or (ii) of this
paragraph (e), all payments and prepayments of principal that would otherwise
have been applied to repay the Eurodollar Loans that would have been made by
such Lender or the converted Eurodollar Loans of such Lender shall instead be
applied to repay the ABR Loans made by such Lender in lieu of, or resulting from
the conversion of, such Eurodollar Loans, as applicable. For purposes of this
paragraph, a notice to the Borrower by any Lender shall be effective as to each
Eurodollar Loan made by such Lender, if lawful, on the last day of the Interest
Period currently applicable to such Eurodollar Loan; in all other cases such
notice shall be effective on the date of receipt by the Borrower.
Section 3.6 Break Funding Payments
In the event of (a) the payment or prepayment (voluntary or
otherwise) of any principal of any Eurodollar Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto or (c) the failure to borrow, convert,
continue or prepay any Eurodollar Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.7(f) and is revoked in accordance therewith), then, in any such
event, the Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or
expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest that would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest that would accrue on such principal amount for such period at
the interest rate that such Lender would bid were it to bid, at the commencement
of such period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
Section 3.7 Taxes
(a) Any and all payments by or on account of any obligation of any Loan Party
hereunder and under any other Loan Document shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes, provided that, if
such Loan Party shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so
that, after making all required deductions (including deductions applicable to
additional sums payable under this Section), the applicable Credit Party
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Loan Party shall make such deductions and (iii)
such Loan Party shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Loan Parties shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Each Loan Party shall indemnify each Credit Party, within ten days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by such Credit Party on or with respect to any payment by or on
account of any obligation of such Loan Party under the Loan Documents (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Credit Party, or by the
Administrative Agent on its own behalf or on behalf of a Credit Party, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes
by the Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the relevant Loan
Party is located, or any treaty to which such jurisdiction is a party, with
respect to payments under the Loan Documents shall deliver to the Borrower (with
a copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by
applicable law or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate.
Section 3.8 Mitigation Obligations
If any Lender requests compensation under Section 3.5, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.7,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans or Letter of Credit (or any
participation therein) hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 3.5 or 3.7, as applicable, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Credit Parties that:
Section 4.1 Organization; Powers
Each of the Borrower and the Subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
Section 4.2 Authorization; Enforceability
The Transactions are within the corporate, partnership or other
analogous powers of each of the Borrower and the Subsidiaries to the extent it
is a party thereto and have been duly authorized by all necessary corporate,
partnership or other analogous and, if required, equityholder action. Each Loan
Document has been duly executed and delivered by each of the Borrower and the
Subsidiaries to the extent it is a party thereto and constitutes a legal, valid
and binding obligation thereof, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally.
Section 4.3 Governmental Approvals; No Conflicts
The Transactions (i) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (ii)
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of the Borrower or any of the Subsidiaries or any
order of any Governmental Authority, (iii) will not violate or result in a
default under any material indenture, agreement or other instrument binding upon
the Borrower or any of the Subsidiaries or its assets, or give rise to a right
thereunder to require any payment to be made by the Borrower or any of the
Subsidiaries, and (iv) will not result in the creation or imposition of any Lien
on any asset of the Borrower or any of the Subsidiaries (other than Liens
permitted by Section 7.2).
Section 4.4 Financial Condition; No Material Adverse Change
(a) The Borrower has heretofore furnished to the Credit Parties (i) its
consolidated balance sheet and statements of income, stockholders' equity and
cash flows as of and for the fiscal year ended December 31, 1998, reported on by
Deloitte & Touche LLP, independent public accountants, (ii) its consolidated
balance sheet and statements of income, stockholders' equity and cash flows as
of and for the twelve consecutive month period ended December 31, 1999 and (iii)
the related consolidated balance sheet and statement of operations of the Parent
for the fiscal year ended June 30, 1999, in each case under this clause (iii)
prepared on a pro forma basis after giving effect to, among other things, all of
the Initial Transactions. The consolidated financial statements referred to in
clauses (i) and (ii) above present fairly, in all material respects, the
financial position and results of operations and cash flows of the Borrower and
consolidated Subsidiaries as of such dates and for the indicated periods in
accordance with GAAP and are consistent with the books and records of the
Borrower (which books and records are correct and complete), subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above, and the financial statements referred to in
clause (iii) above have been prepared in accordance with GAAP on a consistent
basis throughout the indicated periods indicated and present fairly, in all
material respects, the pro form financial position, results of operations and
changes in financial position of the Parent as of the indicated dates and for
the indicated periods and are consistent with the books and records of the
Parent (which books and records are correct and complete).
(b) Since December 31, 1998, there has been no material adverse change in the
business, assets, operations, prospects or condition, financial or otherwise, of
the Borrower and the Subsidiaries, taken as a whole, and since June 30, 1999,
there has been no material adverse change in the business, assets, operations,
prospects or condition, financial or otherwise, of the Parent and its
subsidiaries, taken as a whole, from the business, assets, operations, prospects
or condition, financial or otherwise, described in the financial statements
referred to in Section 4.4(a)(iii).
Section 4.5 Properties
(a) Each of the Borrower and the Subsidiaries has good title to, or valid
leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not materially interfere
with its ability to conduct its business as currently conducted or to utilize
such properties for their intended purposes.
(b) Each of the Borrower and the Subsidiaries owns, or is entitled to use, all
trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Borrower and the
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(c) Schedule 4.5 sets forth the address of each real property that is owned or
leased by any Loan Party or other Subsidiary as of the Effective Date after
giving effect to the Transactions.
(d) Neither the Borrower nor any of the Subsidiaries have received notice of, or
have knowledge of, any pending or contemplated condemnation proceeding affecting
any Mortgaged Property or any sale or disposition thereof in lieu of
condemnation. Neither any Mortgaged Property of the Borrower or any Subsidiary
nor any interest therein is subject to any right of first refusal, option or
other contractual right to purchase such Mortgaged Property or interest therein.
Section 4.6 Litigation and Environmental Matters
(a) There are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of the Subsidiaries (i)
that, if adversely determined (and there exists a reasonable possibility of such
adverse determination), could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any Loan Document or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any other
matters that, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect, neither the Borrower nor any of its
Subsidiaries (i) have failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) have become subject to any Environmental Liability,
(iii) have received notice of any claim with respect to any Environmental
Liability or (iv) know of any basis for any Environmental Liability.
(c) Since the date of this Credit Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
Section 4.7 Compliance with Laws and Agreements
Each of the Borrower and the Subsidiaries is in compliance with all
laws, regulations and orders of any Governmental Authority applicable to it or
its property and all indentures, agreements and other instruments binding upon
it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
Section 4.8 Investment and Holding Company Status
Neither the Borrower nor any of the Subsidiaries are (i) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (ii) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
Section 4.9 Taxes
Each of the Borrower and the Subsidiaries has timely filed or caused
to be filed all Tax returns and reports required to have been filed and has paid
or caused to be paid all Taxes required to have been paid by it, except (i)
Taxes that are being contested in good faith by appropriate proceedings and for
which the Borrower or such Subsidiary, as applicable, has set aside on its books
adequate reserves or (ii) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
Section 4.10 ERISA
No ERISA Event has occurred or is reasonably expected to occur that,
when taken together with all other such ERISA Events for which liability is
reasonably expected to occur, could reasonably be expected to result in a
Material Adverse Effect. The present value of all accumulated benefit
obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed by more
than $500,000 the fair market value of the assets of such Plan, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $500,000 the fair market value of
the assets of all such underfunded Plans. As of the Effective Date, neither the
Borrower nor any Subsidiary has any obligation or liability in respect of any
Plan or Multiemployer Plan.
Section 4.11 Disclosure
The Borrower has disclosed to the Credit Parties all agreements,
instruments and corporate or other restrictions to which it or any of the
Subsidiaries is subject, and all other matters known to it, that, individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect. None of the reports, financial statements, certificates or other
information furnished by or on behalf of the Borrower or any Subsidiary to any
Credit Party in connection with the negotiation of the Loan Documents or
delivered thereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, provided that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
Section 4.12 Subsidiaries
Schedule 4.12 sets forth the name of, and the ownership interest of
the Borrower in, each Subsidiary and identifies each Subsidiary that is a
Guarantor, in each case as of the Effective Date.
Section 4.13 Insurance
Schedule 4.13 sets forth a description of all insurance maintained
by or on behalf of the Borrower and the Subsidiaries as of the Effective Date.
As of the Effective Date, all premiums in respect of such insurance that are due
and payable have been paid.
Section 4.14 Labor Matters
Except for the Disclosed Matters, (i) as of the Effective Date,
there are no strikes, lockouts or slowdowns against the Borrower or any
Subsidiary pending or, to the knowledge of the Borrower, threatened, (ii) the
hours worked by and payments made to employees of the Borrower and the
Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable Federal, state, local or foreign law dealing with such matters,
except where any such violations, individually and in the aggregate, would not
be reasonably likely to result in a Material Adverse Effect, (iii) all material
payments due from the Borrower or any Subsidiary, or for which any claim may be
made against the Borrower or any Subsidiary, on account of wages and employee
health and welfare insurance and other benefits, have been paid or accrued as a
liability on the books of the Borrower or such Subsidiary and (iv) the
consummation of the Transactions will not give rise to any right of termination
or right of renegotiation on the part of any union under any collective
bargaining agreement to which the Borrower or any Subsidiary is bound.
Section 4.15 Solvency
Immediately after the consummation of each Transaction and
immediately following the making of each Loan, if any, and the issuance of the
Letter of Credit made or issued on the date thereof and after giving effect to
the application of the proceeds of such Loan and the Letter of Credit, (i) the
fair value of the assets of the Borrower and the Subsidiaries, taken as a whole,
at a fair valuation, will exceed their debts and liabilities, subordinated,
contingent or otherwise; (ii) the present fair saleable value of the property of
the Borrower and the Subsidiaries, taken as a whole, will be greater than the
amount that will be required to pay the probable liability of their debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (iii) each of the Borrower and
the Subsidiaries that are Guarantors will be able to pay its debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (iv) each of the Borrower and the
Subsidiaries that are Guarantors will not have unreasonably small capital with
which to conduct the business in which it is engaged as such business is now
conducted and is proposed to be conducted following such date.
Section 4.16 Security Documents
(a) The Security Agreement is effective to create in favor of the Administrative
Agent, for the ratable benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Collateral (as defined in the Security
Agreement) and, when (i) the pledged property constituting such Collateral is
delivered to the Administrative Agent, (ii) the financing statements in
appropriate form are filed in the offices specified on Schedule 6 to the
Perfection Certificate and (iii) all other applicable filings under the Uniform
Commercial Code or otherwise that are required under the Loan Documents are
made, the Security Agreement shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the grantors thereunder
in such Collateral to the extent that a security interest may be perfected by
filing, recording or registering a financing statement or analogous document, or
by the secured party's taking possession, in the United States (or any political
subdivision thereof) and its territories and possessions pursuant to the Uniform
Commercial Code or other applicable law in such jurisdictions, in each case
prior and superior in right to any other Person, other than with respect to
Liens expressly permitted by Section 7.2 and Section 10(r) of the Guarantee
Agreement and except for any such Collateral as to which the representations and
warranties in this Section would not be true solely by virtue of such Collateral
having been used or disposed of in a manner expressly permitted by the Security
Agreement.
(b) When the Security Agreement is filed in the United States Patent and
Trademark Office and the United States Copyright Office, the Security Agreement
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the Borrower and the Guarantors in the Intellectual
Property (as defined in the Security Agreement) in which a security interest may
be perfected by filing, recording or registering a security agreement, financing
statement or analogous document in the United States Patent and Trademark Office
or the United States Copyright Office, as applicable, in each case prior and
superior in right to any other Person, other than with respect to Liens
expressly permitted by Section 7.2 and Section 10(r) of the Guarantee Agreement
(it being understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary to
perfect a Lien on registered trademarks, trademark applications and copyrights
acquired by the Borrower and the Guarantors after the date hereof).
(c) The Mortgages are effective to create, subject to the exceptions listed in
each title insurance policy covering such Mortgage, in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable Lien on all of the right, title and interest of the
Borrower and the Guarantors in and to the Mortgaged Properties thereunder and
the proceeds thereof, and when the Mortgages are filed in the offices specified
on Schedule 4.16 and all other applicable offices, the Mortgages shall
constitute a Lien on, and security interest in, all right, title and interest of
the Borrower and the Guarantors in such Mortgaged Properties and the proceeds
thereof, in each case prior and superior in right to any other Person, other
than with respect to the rights of Persons pursuant to Liens expressly permitted
by Section 7.2 and Section 10(r) of the Guarantee Agreement.
Section 4.17 Federal Reserve Regulations
(a) Neither the Borrower nor any of the Subsidiaries are engaged principally, or
as one of their important activities, in the business of extending credit for
the purpose of buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or the Letter of Credit will be used,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase, acquire or carry any Margin Stock or for any purpose
that entails a violation of, or that is inconsistent with, the provisions of the
regulations of the Board, including Regulation T, U or X.
ARTICLE 5. CONDITIONS
Section 5.1 Effective Date
The obligations of the Lenders to make Loans and of the Issuing Bank
to issue Letter of Credit hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance
with Section 10.2):
(a) The Administrative Agent (or its counsel) shall have received from each
party hereto either (i) a counterpart of this Credit Agreement signed on behalf
of such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include facsimile transmission of a signed signature page of this
Credit Agreement) that such party has signed a counterpart of this Credit
Agreement.
(b) The Administrative Agent shall have received a Note for each Lender signed
on behalf of the Borrower.
(c) The Administrative Agent shall have received favorable written opinions
(addressed to the Credit Parties and dated the Effective Date) from (i) Xxxxxx &
Bird LLP on behalf of the Borrower and the Subsidiaries and (ii) Camhy Xxxxxxxxx
& Xxxxx LLP on behalf of the Loan Parties, substantially in the form of Exhibits
B-1 and B-2, respectively, and covering such other matters relating to the Loan
Parties, the Loan Documents and the Transactions as the Required Lenders shall
reasonably request. The Borrower hereby requests such counsel to deliver such
opinion.
(d) The Administrative Agent shall have received such documents and certificates
as the Administrative Agent or its counsel may reasonably request relating to
the organization, existence and good standing of each Loan Party, the
authorization of the Transactions and any other legal matters relating to the
Loan Parties, the Loan Documents or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the
Effective Date and signed by the chief executive officer or the chief financial
officer of each of the Borrower and the Parent, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 5.2.
(f) The Administrative Agent shall have received all fees and other amounts due
and payable on or prior to the Effective Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Borrower hereunder.
(g) The Administrative Agent shall have received counterparts of the Security
Agreement signed on behalf of the Borrower, the Parent and each subsidiary of
the Parent party thereto, together with the following:
(i) any stock certificates representing shares of capital stock owned by or
on behalf of any Loan Party constituting Collateral as of the Effective
Date after giving effect to the Transactions;
(ii) any promissory notes and other instruments evidencing loans, advances
and other debt owed or owing to any Loan Party constituting Collateral
as of the Effective Date after giving effect to the Transactions;
(iii) stock powers and instruments of transfer, endorsed in blank, with
respect to such stock certificates, promissory notes and other
instruments;
(iv) all instruments and other documents, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded to create or
perfect the Liens intended to be created under the Security Agreement;
and
(v) a completed Perfection Certificate, dated the Effective Date and signed by
the chief executive officer or the chief financial officer of each of the
Borrower and the Parent, together with all attachments contemplated
thereby, including the results of a search of the Uniform Commercial Code
(or equivalent) filings made with respect to the Loan Parties in the
jurisdictions contemplated by the Perfection Certificate and copies of the
financing statements (or similar documents) disclosed by such search and
evidence reasonably satisfactory to the Administrative Agent that the Liens
indicated by such financing statements (or similar documents) are permitted
by Section 7.2 or Section 10(r) of the Guarantee Agreement or have been
released.
(h) The Administrative Agent shall have received (i) counterparts of a Mortgage
with respect to each Mortgaged Property listed on Schedule 1.1A signed on behalf
of the record owner of such Mortgaged Property, (ii) a policy or policies of
title insurance issued by a nationally recognized title insurance company,
insuring the Lien of each such Mortgage as a valid first Lien on the Mortgaged
Property described therein, free of any other Liens except as permitted by
Section 7.2 or Section 10(r) of the Guarantee Agreement, in form and substance
reasonably acceptable to the Administrative Agent, together with such
endorsements, coinsurance and reinsurance as the Administrative Agent or the
Required Lenders may reasonably request, (iii) such surveys as may be required
pursuant to such Mortgages or as the Administrative Agent or the Required
Lenders may reasonably request, (iv) a copy of the original permanent
certificate or temporary certificate of occupancy as the same may have been
amended or issued from time to time, covering each improvement located upon such
Mortgaged Properties, that were required to have been issued by the appropriate
Governmental Authority for such improvement, (v) written confirmation from the
applicable zoning commission or other appropriate Governmental Authority stating
that, with respect to each such Mortgaged Property as built, it complies with
existing land use and zoning ordinances, regulations and restrictions applicable
to such Mortgaged Property, (vi) a copy of any phase I environmental report
issued for each such Mortgaged Property, each such report to be satisfactory to
the Administrative Agent, (vii) such opinions of local counsel to the relevant
Loan Parties with respect to such Mortgages as the Administrative Agent shall
require and (viii) such other customary documentation with respect to such
Mortgages and such Mortgaged Property, including copies of all appraisals issued
with respect thereto, as the Administrative Agent or the Required Lenders may
reasonably request.
(i) The Administrative Agent shall have received (i) a certificate, dated the
Effective Date and signed by the chief executive officer or the chief financial
officer of each of the Borrower and the Parent, (A) confirming that each Initial
Transaction has been consummated in accordance with the terms and conditions of
the applicable Initial Transaction Documents, all of which shall be satisfactory
to the Administrative Agent, and (B) attaching a true, complete and correct copy
of each Initial Transaction Document, each Private Placement Document, each
Xxxxxxx Financing Document and the Tax Sharing Agreement, each of which shall be
in form and substance satisfactory to the Administrative Agent, and (ii) other
evidence satisfactory to it that (A) an agreement of merger and/or certificate
of merger, as applicable, in respect of the merger contemplated by the Initial
Transaction Documents has been filed with the Secretary of State of each of the
State of Delaware and Texas indicating that such merger has been consummated and
(B) the change of the Borrower's name from "GCG Merger Corp." to "Xxxxxxxx
Communications Group, Inc." has become effective.
(j) The litigation and other legal proceedings in Xxxxxxx X. Xxxxxxx, Xx. vs.
Xxxxxxxx Advertising Incorporated and Xxxxxxx X. Xxxxxxx, 269th Judicial
District Court of Xxxxxx County, Texas, Cause No. 200002591, shall have been
resolved in a manner in all respects satisfactory to the Administrative Agent,
and the Administrative Agent shall have received evidence satisfactory to it
that all amounts to be paid to Xxxxxxx X. Xxxxxxx in connection therewith shall
have been transferred to the Borrower in immediately available funds.
(k) The Administrative Agent shall have received counterparts of the Guarantee
Agreement signed on behalf of the Parent and each subsidiary thereof party
thereto.
(l) The Administrative Agent shall have received (i) counterparts of the
Subordination Agreement signed on behalf of the Parent, Xxxxxxxx Capital
Management, Inc. and RGC International Investors, LDC and (ii) a counterpart of
the Consent and Intercreditor Agreement signed on behalf of Xxxxxxx Factors,
Inc.
(m) The Administrative Agent shall have received evidence satisfactory to it
that the insurance required by Section 6.10 and by the other Loan Documents is
in effect.
(n) The performance by each Loan Party of its obligations under each Loan
Document shall not (i) violate any applicable law, statute, rule or regulation
or (ii) conflict with, or result in a default or event of default under, any
material agreement of any Loan Party or any other Subsidiary, and the
Administrative Agent shall have received one or more legal opinions and/or
officer's certificates to such effect, satisfactory to the Administrative Agent.
(o) The Lenders shall be reasonably satisfied as to the amount and nature of any
environmental and employee health and safety exposures to which the Loan Parties
and the other Subsidiaries may be subject, and with the plans of the Borrower
with respect thereto.
(p) The Lenders shall be reasonably satisfied that there shall be no litigation
or administrative proceeding, or regulatory development, that would reasonably
be expected to have a material adverse effect on (i) the business, assets,
operations, prospects, condition (financial or otherwise) or material agreements
of the Loan Parties and the other Subsidiaries, taken as a whole, (ii) the
ability of any Loan Party to perform any of its obligations under any Loan
Document or (iii) the rights of or benefits available to any Credit Party under
any Loan Document.
(q) After giving effect to the Transactions occurring on the Effective Date,
none of the Loan Parties or any other Subsidiary shall have outstanding any
shares of preferred equity securities or any Indebtedness, other than as
permitted under Section 7.1 and Sections 10(p) and 10(q) of the Guarantee
Agreement.
(r) The Administrative Agent shall have received a certificate, dated the
Effective Date and signed by the chief financial officer of the Borrower,
setting forth (i) a reasonably detailed calculation demonstrating compliance
with Section 7.14, (ii) a reasonably detailed calculation demonstrating that
Adjusted Consolidated EBITDA for the period of four consecutive fiscal quarters
ending on, or most recently before, the Effective Date shall not be less than
$15,000,000, and (iii) a reasonably detailed calculation of the Borrowing Base
as of the Effective Date, in each case on a pro forma basis immediately after
giving effect to the Transactions occurring on the Effective Date.
The Administrative Agent shall notify the Borrower and the Credit Parties of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and the Issuing Bank
to issue the Letter of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to Section 10.2) at
or prior to 3:00 p.m., New York City time, on March 22, 2000 (and, in the event
such conditions are not so satisfied or waived, the Revolving Commitments, the
Term Commitments and the LC Commitments shall terminate at such time).
Section 5.2 Each Credit Event
The obligation of each Lender to make a Loan on the occasion of any
Borrowing, and of the Issuing Bank to issue the Letter of Credit, is subject to
the satisfaction of the following conditions:
(a) The representations and warranties of the Loan Parties set forth in the Loan
Documents shall be true and correct on and as of the date of such Borrowing or
the date of such issuance, as applicable.
(b) At the time of and immediately after giving effect to such Borrowing or such
issuance, as applicable, no Default shall have occurred and be continuing.
(c) The Administrative Agent shall have received a certificate of the chief
financial officer of the Borrower, in form and substance satisfactory to the
Administrative Agent, setting forth a reasonably detailed calculation of the
Total Leverage Ratio and, in the case of each Revolving Borrowing, the Borrowing
Base, in each case on a pro forma basis immediately after giving effect to such
Borrowing.
(d) The Administrative Agent shall have received such other documentation and
assurances as shall be reasonably required by it in connection therewith.
Each Borrowing and the issuance of the Letter of Credit shall be deemed to
constitute a representation and warranty by the Borrower on the date thereof as
to the matters specified in paragraphs (a) and (b) of this Section.
ARTICLE 6. AFFIRMATIVE COVENANTS
Until the Revolving Commitments and the LC Commitments have expired or
been terminated and the principal of and interest on each Loan and all fees and
other amounts payable under the Loan Documents shall have been paid in full and
the Letter of Credit has expired and all LC Disbursements have been reimbursed,
the Borrower covenants and agrees with the Lenders that:
Section 6.1 Financial Statements and Other Information
The Borrower will furnish to the Administrative Agent and each
Lender:
(a) within 90 days after the end of each fiscal year, (i) its audited
consolidated balance sheet and related statements of income, stockholders'
equity and cash flows as of the end of and for such year, setting forth in each
case in comparative form the figures for the previous fiscal year, all reported
on by Deloitte & Touche LLP or other independent public accountants of
recognized national standing (without a "going concern" or like qualification or
exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied and (ii) financial projections
consisting of pro forma consolidated statements of income and cash flows in form
and substance reasonably satisfactory to the Administrative Agent, prepared on a
quarterly basis for the immediately succeeding fiscal year and, thereafter, on
an annual basis for each succeeding fiscal year through maturity, together with
a certificate of the chief financial officer of the Borrower, setting forth
reasonably detailed calculations demonstrating pro forma compliance with
Sections 7.12, 7.13, 7.14, 7.15, 7.16 and 7.17, in each case based upon such
financial projections;
(b) within 45 days after the end of each of the first three fiscal quarters of
each fiscal year, (i) its consolidated balance sheet and related statements of
income, stockholders' equity and cash flows as of the end of and for such fiscal
quarter and the then elapsed portion of the fiscal year, setting forth in each
case in comparative form the figures for the corresponding period or periods of
(or, in the case of the balance sheet, as of the end of) the previous fiscal
year and (ii) unaudited financial information for each of the Borrower's
business lines, all certified by its chief financial officer as presenting
fairly in all material respects the financial condition and results of
operations of the Borrower and the consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a) or
(b) above, a certificate of the chief financial officer of the Borrower (i)
certifying as to whether a Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or proposed to be taken with
respect thereto, (ii) setting forth (A) reasonably detailed calculations
demonstrating compliance with Sections 7.12, 7.13, 7.14, 7.15, 7.16 and 7.17 and
(B) the Guarantors as of the date of such certificate and (iii) stating whether
any change in GAAP or in the application thereof has occurred since the date of
the audited financial statements referred to in Section 4.4 and, if any such
change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) on or prior to April 7, 2000, its audited consolidated balance sheet and
related statements of income, stockholders' equity and cash flows as of the end
of and for the twelve consecutive month period ending on December 31, 1999,
setting forth in each case in comparative form the figures for the previous
twelve consecutive month period, all reported on by Deloitte & Touche LLP or
other independent public accountants of recognized national standing (without a
"going concern" or like qualification or exception and without any qualification
or exception as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied;
(e) within 15 days after the end of each month, a certificate of the chief
financial officer of the Borrower, in form and substance satisfactory to the
Administrative Agent, setting forth a reasonably detailed calculation of the
Borrowing Base as of the end such month;
(f) concurrently with any delivery of financial statements under clauses (a) and
(d) above, a certificate of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of their
examination of such financial statements of any Default (which certificate may
be limited to the extent required by accounting rules or guidelines);
(g) promptly after the same become publicly available, copies of all periodic
and other reports, proxy statements and other materials filed by the Borrower or
any Subsidiary with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of said Commission, or with
any national securities exchange, or distributed by the Borrower to its
shareholders generally, as the case may be; and
(h) promptly following any request therefor, such other information regarding
the operations, business affairs and financial condition of the Borrower or any
Subsidiary or compliance with the terms of the Loan Documents, as the
Administrative Agent or any Lender may reasonably request.
Section 6.2 Notices of Material Events
The Borrower will furnish to the Administrative Agent and each
Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or before
any arbitrator or Governmental Authority against or affecting the Borrower or
any Affiliate thereof that, if adversely determined, could in the good faith
opinion of the Borrower reasonably be expected to result in a Material Adverse
Effect;
(c) the occurrence of any ERISA Event that, alone or together with any other
ERISA Events that have occurred, could reasonably be expected to result in
liability of the Loan Parties and the other Subsidiaries in an aggregate amount
exceeding $250,000; and
(d) any other development that results in, or could reasonably be expected to
result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
the chief financial officer or other executive officer of the Borrower setting
forth the details of the event or development requiring such notice and any
action taken or proposed to be taken with respect thereto.
Section 6.3 Existence; Conduct of Business
The Borrower will, and will cause each of the Subsidiaries to, do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business.
Section 6.4 Payment and Performance of Obligations
The Borrower will, and will cause each of the Subsidiaries to, pay
or perform its obligations, including Tax liabilities, that, if not paid or
performed, could reasonably be expected to result in a Material Adverse Effect
before the same shall become delinquent or in default, except where (i) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (ii) the Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (iii) the
failure to make payment pending such contest could not reasonably be expected to
result in a Material Adverse Effect.
Section 6.5 Maintenance of Properties
The Borrower will, and will cause each of the Subsidiaries to, keep
and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
Section 6.6 Books and Records; Inspection Rights
The Borrower will, and will cause each of the Subsidiaries to, keep
proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of the Subsidiaries to,
permit any representatives designated by the Administrative Agent or any Lender,
upon reasonable prior notice, to visit and inspect its properties, to examine
and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants, all at
such reasonable times and as often as reasonably requested.
Section 6.7 Compliance with Laws
The Borrower will, and will cause each of the Subsidiaries to,
comply with all laws, rules, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
Section 6.8 Use of Proceeds
The proceeds of the Revolving Loans will be used only for general
corporate purposes (excluding the payment or prepayment of the principal of any
Indebtedness), the proceeds of the Letter of Credit will be used only to satisfy
the Parent's and the Borrower's obligations in respect of the Holdback Agreement
and the other Initial Transaction Documents, the proceeds of the LC Loans will
be used only to pay reimbursement obligations in respect of LC Disbursements and
to finance payments made by the Borrower and the Parent in respect of underlying
claims the types and amounts of which are covered (and only to the extent so
covered) by the Letter of Credit in accordance with the Holdback Agreement, and
the Term Loans will be used only to refinance certain existing Indebtedness of
the Borrower, to fund a portion of the cash consideration payable in connection
with the merger contemplated by the Initial Transaction Documents and to pay
fees and other transaction expenses related to the credit facilities established
hereunder and the Initial Transactions, in each case not inconsistent with the
terms hereof. No part of the proceeds of any Loan or the Letter of Credit will
be used, whether directly or indirectly, and whether immediately, incidentally
or ultimately, to purchase, acquire or carry any Margin Stock or for any purpose
that entails a violation of any of the regulations of the Board, including
Regulations T, U and X.
Section 6.9 Information Regarding Collateral
(a) The Borrower will furnish to the Administrative Agent prompt written notice
of any change in (i) the legal name of any Loan Party or in any trade name used
to identify it in the conduct of its business or in the ownership of its
properties, (ii) the location of the chief executive office of any Loan Party,
its principal place of business, any office in which it maintains books or
records relating to Collateral owned or held by it or on its behalf or, except
to the extent permitted by Section 5(j) of the Security Agreement, any office or
facility at which Collateral owned or held by it or on its behalf is located
(including the establishment of any such new office or facility), (iii) the
identity or organizational structure of any Loan Party such that a filed
financing statement becomes misleading or (iv) the Federal Taxpayer
Identification Number of any Loan Party. The Borrower agrees not to effect or
permit any change referred to in the preceding sentence unless all filings have
been made under the Uniform Commercial Code or otherwise that are required in
order for the Administrative Agent to continue at all times following such
change to have a valid, legal and perfected security interest in all the
Collateral. The Borrower also agrees promptly to notify the Administrative Agent
if any material portion of the Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial statements with
respect to the preceding fiscal year pursuant to Section 6.1(a), the Borrower
and the Parent shall deliver to the Administrative Agent a certificate of the
chief executive officer or the chief financial officer of each of the Borrower
or the Parent, (i) setting forth the information required pursuant to Sections
1, 2, 8, 9 and 10 of the Perfection Certificate or confirming that there has
been no change in such information since the date of the Perfection Certificate
or the date of the most recent certificate delivered pursuant to this Section
and (ii) certifying that all Uniform Commercial Code financing statements or
other appropriate filings, recordings or registrations, including all refilings,
rerecordings and reregistrations, containing a description of the Collateral
have been filed of record in each governmental, municipal or other appropriate
office in each jurisdiction identified pursuant to clause (i) above, and all
other actions have been taken, to the extent necessary to protect and perfect
the security interests under the Security Agreement for a period of not less
than 18 months after the date of such certificate (except as noted therein with
respect to any continuation statements to be filed within such period).
Section 6.10 Insurance
The Borrower will, and will cause each of the Subsidiaries to,
maintain, with financially sound and reputable insurance companies, (i) adequate
insurance for its insurable properties, all to such extent and against such
risks, including fire, casualty, business interruption and other risks insured
against by extended coverage, as is customary with companies in the same or
similar businesses operating in the same or similar locations, and (ii) such
other insurance as is required pursuant to the terms of any Security Document.
Section 6.11 Casualty and Condemnation
(a) The Borrower will furnish to the Administrative Agent and the Lenders prompt
written notice of any casualty or other insured damage to any portion of any
Collateral owned or held by or on behalf of itself or any Subsidiary or the
commencement of any action or proceeding for the taking of any such Collateral
or any part thereof or interest therein under power of eminent domain or by
condemnation or similar proceeding.
(b) If any Prepayment/Reduction Event results in Net Proceeds (whether in the
form of insurance proceeds, condemnation award or otherwise), the Administrative
Agent is authorized to collect such Net Proceeds and, if received by any Loan
Party or any other Subsidiary, such Net Proceeds shall be paid over to the
Administrative Agent, and the Administrative Agent shall, and the Borrower, on
behalf of the relevant Loan Parties and other Subsidiaries, hereby authorizes
the Administrative Agent to, apply such Net Proceeds, to the extent that they
are Net Proceeds, to prepay the Loans in accordance with Section 2.7, provided
that all proceeds of business interruption insurance shall be paid over to the
Borrower, on behalf of the relevant Loan Parties and other Subsidiaries, unless
an Event of Default has occurred and is continuing.
(c) All proceeds retained by or paid to the Administrative Agent that do not
constitute Net Proceeds shall be paid over to the Borrower, on behalf of the
relevant Loan Parties and other Subsidiaries, unless an Event of Default has
occurred and is continuing.
Section 6.12 Additional Subsidiaries
If any Subsidiary is formed or acquired after the Effective Date,
the Borrower will notify the Administrative Agent and the Lenders in writing
thereof within ten Business Days after the date on which such Subsidiary is
formed or acquired and (i) the Borrower will cause such Subsidiary to (a)
execute and deliver each applicable Guarantee Document (or otherwise become a
party thereto in the manner provided therein) and become a party to each
applicable Security Document in the manner provided therein, in each case within
ten Business Days after the date on which such Subsidiary is formed or acquired
and (ii) promptly take such actions to create and perfect Liens on such
Subsidiary's assets to secure the Obligations as the Administrative Agent or the
Required Lenders shall reasonably request and (b) if any equity securities
issued by any such Subsidiary are owned or held by or on behalf of the Borrower
or any Subsidiary that is a Guarantor or any loans, advances or other debt is
owed or owing by any such Subsidiary to the Borrower or any Subsidiary that is a
Guarantor, the Borrower will cause such equity securities and promissory notes
and other instruments evidencing such loans, advances and other debt to be
pledged pursuant to the Security Documents within ten Business Days after the
date on which such Subsidiary is formed or acquired.
Section 6.13 Further Assurances; Certain Real Estate Matters
(a) The Borrower will, and will cause each Subsidiary that is a Guarantor to,
execute any and all further documents, financing statements, agreements
(including guarantee agreements and security agreements) and instruments, and
take all such further actions (including the filing and recording of financing
statements, fixture filings, Mortgages and other documents), that may be
required under any applicable law, or which the Administrative Agent or the
Required Lenders may reasonably request, to effectuate the transactions
contemplated by the Loan Documents or to grant, preserve, protect or perfect
(including as a result of any change in applicable law) the Liens created or
intended to be created by the Security Documents or the validity or priority of
any such Lien, all at the expense of the Borrower and the Subsidiaries that are
Guarantors. The Borrower also agrees to provide to the Administrative Agent,
from time to time upon request, evidence reasonably satisfactory to the
Administrative Agent as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.
(b) On or prior to April 30, 2000, the Borrower will cause to be delivered to
the Administrative Agent, with respect to each Mortgaged Property listed on
Schedule 1.1A, a phase I environmental report therefor, each such report to be
satisfactory to the Administrative Agent, and such other customary documentation
with respect to such Mortgaged Property and the Mortgages relating thereto as
the Administrative Agent or the Required Lenders may reasonably request.
(c) If any material assets (including any real property or improvements thereto
or any interest therein other than leasehold interests in real property) are
acquired by the Borrower or any Subsidiary that is a Guarantor after the
Effective Date (other than assets constituting Collateral under the Security
Documents that become subject to the Lien of the Security Documents upon
acquisition thereof), the Borrower will notify the Administrative Agent and the
Lenders thereof, and, if requested by the Administrative Agent or the Required
Lenders, the Borrower will cause such assets to be subjected to a Lien securing
the Obligations and will take, and cause the Subsidiaries that are Guarantors to
take, such actions as shall be necessary or reasonably requested by the
Administrative Agent to grant and perfect such Liens, including actions
described in paragraph (a) of this Section, all at the expense of the Borrower
and the Subsidiaries that are Guarantors.
Section 6.14 Environmental Compliance
The Borrower will, and will cause each Subsidiary to, use and
operate all of its facilities and property in compliance with all Environmental
Laws, keep all necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain in
compliance therewith, and handle all Hazardous Materials in compliance with all
applicable Environmental Laws, except where noncompliance with any of the
foregoing could not reasonably be expected to have a Material Adverse Effect.
Section 6.15 Hedging Agreements
At the request of the Administrative Agent, the Borrower will,
within 90 days after the Effective Date, enter into, and thereafter maintain,
one or more Hedging Agreements in all respects satisfactory to the
Administrative Agent having an initial term of not less than two years with
respect to a notional amount of not less than 50% of the aggregate outstanding
principal amount of the Term Loans, provided, however, that the Borrower shall
have no obligation or further obligation, as applicable, under this Section at
any time after the sum of the aggregate amount of all prepayments made under
Section 2.7(b)(i) plus the aggregate amount of all other payments (including
prepayments) of Term Borrowings shall equal or exceed $20,000,000.
ARTICLE 7. NEGATIVE COVENANTS
Until the Revolving Commitments and the LC Commitments have expired
or been terminated and the principal of and interest on each Loan and all fees
and other amounts payable under the Loan Documents shall have been paid in full
and the Letter of Credit has expired and all LC Disbursements have been
reimbursed, the Borrower covenants and agrees with the Lenders that:
Section 7.1 Indebtedness
(a) The Borrower will not, and will not permit any Subsidiary to, create, incur,
assume or permit to exist any Indebtedness, except:
(i) Indebtedness under the Loan Documents and under the Initial Transaction
Documents;
(ii) Indebtedness existing on the date hereof and set forth in Schedule 7.1,
but not any extensions, renewals or replacements of any such
Indebtedness;
(iii) Indebtedness of the Borrower or any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations and any Indebtedness
assumed in connection with the acquisition of any such assets or
secured by a Lien on any such assets prior to the acquisition thereof,
and extensions, renewals and replacements of any such Indebtedness that
do not increase the outstanding principal amount thereof, provided that
(A) such Indebtedness is incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement and
(B) the aggregate principal amount of Indebtedness permitted by this
clause (iii) shall not, without duplication, exceed $3,000,000 at any
time outstanding;
(iv) Indebtedness of the Borrower or any Subsidiary that is a Guarantor to
the Borrower or any Subsidiary that is a Guarantor;
(v) Indebtedness of Xxxxxxxx Canada Advertising (Canada) Ltd. to the
Borrower or any Subsidiary in an aggregate amount not, without
duplication, exceeding $500,000 at any time outstanding;
(vi) temporary loans or advances made or deemed made to the Borrower or any
Subsidiary by the Parent or any of its subsidiaries in respect of any
healthcare, insurance, payroll, accounting or other general administrative
services provided in the ordinary course of business, provided that the
sum, without duplication, of the aggregate amount of all such loans or
advances plus the aggregate amount of all loans and advances permitted by
Section 7.4(d)(iii) and Sections 10(p)(v) and 10(t)(iv) of the Guarantee
Agreement shall not, without duplication, exceed $500,000 at any time
outstanding; and
(vii) other unsecured Indebtedness of the Borrower and its Subsidiaries in an
aggregate amount not, without duplication, exceeding $250,000 at any
time outstanding.
(b) The Borrower will not, and it will not permit any Subsidiary to, (i) issue
any equity securities or (ii) be or become liable in respect of any obligation
(contingent or otherwise) to purchase, redeem, retire, acquire or make any other
payment in respect of any shares of equity securities of the Borrower or any
Subsidiary or any option, warrant or other right to acquire any such shares of
equity securities, except as permitted under Section 7.8.
Section 7.2 Liens
The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now
owned or hereafter acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof, except:
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Borrower or any Subsidiary existing
on the date hereof and set forth in Schedule 7.2, provided that (i) such Lien
shall not apply to any other property or asset of the Borrower or any Subsidiary
and (ii) such Lien shall secure only those obligations which it secures on the
date hereof and any extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof; and
(d) security interests on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary, provided that (i) such security
interests secure Indebtedness permitted by clause (iii) of Section 7.1, (ii)
such security interests and the Indebtedness secured thereby are incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby does not
exceed the cost of acquiring, constructing or improving such fixed or capital
assets and (iv) such security interests shall not apply to any other property or
assets of the Borrower or any Subsidiary.
Section 7.3 Fundamental Changes
(a) The Borrower will not, and will not permit any Subsidiary to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or substantially all of its
assets, or all or substantially all of the equity securities of any of the
Subsidiaries (in each case, whether now owned or hereafter acquired), or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto, no Default shall have occurred and be continuing:
(i) any Subsidiary may merge into the Borrower in a transaction in which
the Borrower is the surviving entity, and any Subsidiary may merge into
any other Subsidiary that is a Guarantor in a transaction in which such
other Subsidiary is the surviving entity;
(ii) any Subsidiary may sell, transfer, lease or otherwise dispose of all or
substantially all of its assets to the Borrower or any Subsidiary that
is a Guarantor; and
(iii) any Subsidiary (other than a Subsidiary that is a Guarantor) may
liquidate or dissolve if the Borrower determines in good faith that
such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders.
(b) The Borrower will not, and will not permit any of the Subsidiaries to,
engage to any material extent in any business other than businesses of the type
conducted by the Borrower and the Subsidiaries on the date of execution of this
Credit Agreement and businesses reasonably related thereto.
Section 7.4 Investments, Loans, Advances, Guarantees and Acquisitions
The Borrower will not, and will not permit any of the Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger) any capital
stock, evidences of indebtedness or other securities (including any option,
warrant or other right to acquire any of the foregoing) of, make or permit to
exist any loans or advances to, make or permit to exist any Guarantees of any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions (including pursuant to any merger)) any assets of any
other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments existing on the date hereof and set forth in Schedules 4.12 and
7.4;
(c) investments made by the Borrower or any Subsidiary in the equity
securities of any Subsidiary that is a Guarantor;
(d) (i) loans or advances made by the Borrower or any Subsidiary that is a
Guarantor to the Borrower or any Subsidiary that is a Guarantor, (ii)
Indebtedness permitted by Section 7.1(a)(v) and (iii) other temporary loans
or advances made or deemed made by the Borrower or any Subsidiary to the
Parent or any of its subsidiaries in respect of any healthcare, insurance,
payroll, accounting or other general administrative services provided in
the ordinary course of business, provided that the sum, without
duplication, of the aggregate amount of all such loans or advances under
this clause (iii) plus the aggregate amount of all loans or advances
permitted by Section 7.1(a)(vi) and Sections 10(p)(v) and 10(t)(iv) of the
Guarantee Agreement shall not, without duplication, exceed $500,000 at any
time outstanding; and
(e) acquisitions made by the Borrower or any Subsidiary that is a Guarantor
from the Borrower or any Subsidiary that is a Guarantor.
Section 7.5 Asset Sales
The Borrower will not, and will not permit any of the Subsidiaries
to, sell, transfer, lease or otherwise dispose (including pursuant to a merger)
of any asset, including any equity securities, nor will the Borrower permit any
of the Subsidiaries to issue any additional shares of its equity securities,
except:
(a) sales, transfers, leases and other dispositions of inventory, used or
surplus equipment and Permitted Investments, in each case in the ordinary
course of business;
(b) sales, transfers, leases and other dispositions made by the Borrower or
any Subsidiary that is a Guarantor to the Borrower or any Subsidiary that
is a Guarantor; and
(c) if at the time thereof and immediately after giving effect thereto no
Default shall have occurred and be continuing other sales, transfers,
leases and other dispositions of assets (other than the equity securities
in any Subsidiary), provided that (i) the aggregate fair market value of
all assets, sold, transferred, leased or otherwise disposed of in reliance
upon this clause (c) shall not exceed $1,000,000 in the aggregate and (ii)
all sales, transfers, leases and other dispositions permitted by this
clause (c) shall be made for fair value and solely for cash consideration.
Section 7.6 Sale and Lease-Back Transactions
The Borrower will not, and will not permit any of the Subsidiaries
to, enter into any arrangement, directly or indirectly, with any Person whereby
it shall sell or transfer any property, real or personal, used or useful in its
business, whether now owned or hereafter acquired, and thereafter rent or lease
such property or other property that it intends to use for substantially the
same purpose or purposes as the property being sold or transferred.
Section 7.7 Hedging Agreements
The Borrower will not, and will not permit any of the Subsidiaries
to, enter into any Hedging Agreement, other (i) than Hedging Agreements entered
into in the ordinary course of business to hedge or mitigate risks to which the
Borrower or any Subsidiary is exposed in the conduct of its business or the
management of its liabilities and (ii) Hedging Agreements required by Section
6.15.
Section 7.8 Restricted Payments
The Borrower will not, and will not permit any of the Subsidiaries
to, declare or make, or agree to pay for or make, directly or indirectly, any
Restricted Payment, except that (i) the Borrower may declare and pay dividends
with respect to its equity securities payable solely in shares of its perpetual
common stock, (ii) any wholly-owned Subsidiary may declare and pay dividends
with respect to its equity securities to the Borrower or any other wholly-owned
Subsidiary and (iii) the Borrower and the Subsidiaries may make Restricted
Payments to the Parent for purposes of enabling the Parent, as a consolidated
taxpayer, to pay taxes attributable to the Borrower and the Subsidiaries in
accordance with the Tax Sharing Agreement.
Section 7.9 Transactions with Affiliates
The Borrower will not, and will not permit any of the Subsidiaries
to, sell, transfer, lease or otherwise dispose (including pursuant to a merger)
any property or assets to, or purchase, lease or otherwise acquire (including
pursuant to a merger) any property or assets from, or otherwise engage in any
other transactions with, any of its Affiliates, except in the ordinary course of
business at prices and on terms and conditions not less favorable to the
Borrower or such Subsidiary than could be obtained on an arms-length basis from
unrelated third parties, provided that this Section shall not apply to any
transaction that is permitted under Section 7.8, or Section 10(x) of the
Guarantee Agreement, between or among the Loan Parties and not involving any
other Affiliate.
Section 7.10 Restrictive Agreements
The Borrower will not, and will not permit any of the Subsidiaries
to, directly or indirectly, enter into, incur or permit to exist any agreement
or other arrangement that prohibits, restricts or imposes any condition upon (i)
the ability of the Borrower or any Subsidiary to create, incur or permit to
exist any Lien upon any of its property or assets (unless such agreement or
arrangement does not prohibit, restrict or impose any condition upon the ability
of any Loan Party to create, incur or permit to exist any Lien in favor of the
Secured Parties created under the Loan Documents) or (ii) the ability of any
Subsidiary to pay dividends or other distributions with respect to any shares of
its equity securities or to make or repay loans or advances to the Borrower or
any other Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary, provided that (a) the foregoing shall not apply to restrictions and
conditions imposed by law or by the Loan Documents, (b) the foregoing shall not
apply to restrictions and conditions existing on the date hereof identified on
Schedule 7.10 (but shall apply to any extension or renewal of, or any amendment
or modification expanding the scope of, any such restriction or condition), (c)
clause (i) of this Section shall not apply to restrictions or conditions imposed
by any agreement relating to secured Indebtedness permitted by this Credit
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness and (d) clause (i) of this Section shall not
apply to customary provisions in leases restricting the assignment thereof.
Section 7.11 Amendment of Material Documents
The Borrower will not, and will not permit any Subsidiary to, amend,
modify or waive any Initial Transaction Document, the Tax Sharing Agreement or
its certificate of incorporation, by-laws or other organizational documents
(other than, with respect to such certificate of incorporation, by-laws or other
organizational document, immaterial amendments, modifications or waivers that
could not reasonably be expected to adversely affect the Credit Parties,
provided that the Borrower shall deliver or cause to be delivered to the
Administrative Agent and each Lender a copy of each such amendment, modification
or waiver promptly after the execution and delivery thereof).
Section 7.12 Interest Coverage Ratio
The Borrower will not permit the Interest Coverage Ratio as of the
end of any fiscal quarter during any period set forth below to be less than the
ratio set forth below with respect to such period:
------------------------------------------============================
Period Ratio
------------------------------------------============================
------------------------------------------============================
Effective Date through September 30, 2000 2.25:1.00
------------------------------------------============================
------------------------------------------============================
October 1, 2000 through December 31, 2000 2.75:1.00
------------------------------------------============================
------------------------------------------============================
January 1, 2001 through September 30, 3.00:1.00
2001
------------------------------------------============================
------------------------------------------============================
October 1, 2001 through December 31, 2001 3.50:1.00
------------------------------------------============================
------------------------------------------============================
January 1, 2002 through September 30, 4.00:1.00
2002
------------------------------------------============================
------------------------------------------============================
October 1, 2002 and thereafter 4.50:1.00.
------------------------------------------============================
Section 7.13 Fixed Charge Coverage Ratio
The Borrower will not permit the Fixed Charge Coverage Ratio as of
the end of any fiscal quarter during any period set forth below to be less than
the ratio set forth below with respect to such period:
------------------------------------------============================
Period Ratio
------------------------------------------============================
------------------------------------------============================
December 31, 2000 through December 31, 1.05:1.00
2002
------------------------------------------============================
------------------------------------------============================
January 1, 2002 through December 31, 2003 1.10:1.00
------------------------------------------============================
------------------------------------------============================
January 1, 2004 and thereafter 1.15:1.00.
------------------------------------------============================
Section 7.14 Total Leverage Ratio
The Borrower will not permit the Total Leverage Ratio at any time
during any period set forth below to be greater than the ratio set forth below
with respect to such period:
------------------------------------------============================
Period Ratio
------------------------------------------============================
------------------------------------------============================
Effective Date through September 30, 2000 3.85:1.00
------------------------------------------============================
------------------------------------------============================
October 1, 2000 through December 31, 2000 3.75:1.00
------------------------------------------============================
------------------------------------------============================
January 1, 2001 through September 30, 3.00:1.00
2001
------------------------------------------============================
------------------------------------------============================
October 1, 2001 through December 31, 2001 2.75:1.00
------------------------------------------============================
------------------------------------------============================
January 1, 2002 through December 31, 2002 2.25:1.00
------------------------------------------============================
------------------------------------------============================
January 1, 2003 through December 31, 2003 1.50:1.00
------------------------------------------============================
------------------------------------------============================
January 1, 2004 and thereafter 1.00:1.00.
------------------------------------------============================
Section 7.15 Capital Expenditures
The Borrower will not permit Capital Expenditures made or obligated
to be made by the Borrower and the Subsidiaries in respect of any period set
forth below to be greater than the amount set forth below with respect to such
period, provided that if at the time thereof and immediately after giving effect
thereto no Event of Default shall have occurred and be continuing any amounts
not expended in any period may be carried over and expended in the immediately
subsequent period only:
------------------------------------------============================
Period Amount
------------------------------------------============================
------------------------------------------============================
Effective Date through December 31, 2000 $5,975,000
------------------------------------------============================
------------------------------------------============================
January 1, 2001 through December 31, 2001 $3,825,000
------------------------------------------============================
------------------------------------------============================
January 1, 2002 through December 31, 2002 $4,350,000
------------------------------------------============================
------------------------------------------============================
January 1, 2003 through December 31, 2003 $4,600,000
------------------------------------------============================
------------------------------------------============================
January 1, 2004 through December 31, 2004 $4,850,000.
------------------------------------------============================
Section 7.16 Minimum Adjusted Consolidated EBITDA
As of the end of any fiscal quarter during any period set forth
below, the Borrower will not permit Adjusted Consolidated EBITDA for the period
of four consecutive fiscal quarters ending on such date to be less than the
amount set forth below with respect to such period:
------------------------------------------============================
Period Amount
------------------------------------------============================
------------------------------------------============================
Effective Date through March 31, 2000 $14,400,000
------------------------------------------============================
------------------------------------------============================
April 1, 2000 through June 30, 2000 $13,200,000
------------------------------------------============================
------------------------------------------============================
July 1, 2000 through September 30, 2000 $13,300,000
------------------------------------------============================
------------------------------------------============================
October 1, 2000 through December 31, 2000 $14,850,000
------------------------------------------============================
------------------------------------------============================
January 1, 2001 through March 31, 2001 $15,000,000
------------------------------------------============================
------------------------------------------============================
April 1, 2001 through June 30, 2001 $15,100,000
------------------------------------------============================
------------------------------------------============================
July 1, 2001 through September 30, 2001 $15,500,000
------------------------------------------============================
------------------------------------------============================
October 1, 2001 through December 31, 2001 $16,950,000
------------------------------------------============================
------------------------------------------============================
January 1, 2002 through March 31, 2002 $17,100,000
------------------------------------------============================
------------------------------------------============================
April 1, 2002 through June 30, 2002 $17,300,000
------------------------------------------============================
------------------------------------------============================
July 1, 2002 through September 30, 2002 $17,600,000
------------------------------------------============================
------------------------------------------============================
October 1, 2002 through December 31, 2002 $18,850,000
------------------------------------------============================
------------------------------------------============================
January 1, 2003 through March 31, 2003 $19,500,000
------------------------------------------============================
------------------------------------------============================
April 1, 2003 through June 30, 2003 $20,150,000
------------------------------------------============================
------------------------------------------============================
July 1, 2003 through September 30, 2003 $20,500,000
------------------------------------------============================
------------------------------------------============================
October 1, 2003 through December 31, 2003 $21,900,000
------------------------------------------============================
------------------------------------------============================
January 1, 2004 through March 31, 2004 $22,100,000
------------------------------------------============================
------------------------------------------============================
April 1, 2004 through June 30, 2004 $22,300,000
------------------------------------------============================
------------------------------------------============================
July 1, 2004 through September 30, 2004 $22,800,000
------------------------------------------============================
------------------------------------------============================
October 1, 2004 through December 31, 2004 $24,200,000
------------------------------------------============================
------------------------------------------============================
January 1, 2005 and thereafter $25,000,000.
------------------------------------------============================
Section 7.17 Maximum Days Receivables Amount
As of the end of each March 31st, June 30th, September 30th and
December 31st (other than December 31, 2000), the Borrower will not permit the
product of (i) 365 and (ii) the quotient of (a) the Receivables of the Borrower
and the Subsidiaries, determined on a consolidated basis in accordance with
GAAP, as of such date divided by (b) the gross revenues of the Borrower and the
Subsidiaries, determined on a consolidated basis in accordance with GAAP, for
the period of four consecutive fiscal quarters ending thereon to exceed 85, 76,
78 and 120, respectively, and the Borrower will not permit such product as of
December 31, 2000 to exceed 135.
Section 7.18 Prepayments
The Borrower will not, and will not permit any Subsidiary to, prepay
or obligate itself to prepay (whether by payment, purchase, defeasance or
otherwise), in whole or in part, any Indebtedness, provided that Indebtedness
permitted by Sections 7.1(a)(iii) and 7.1(a)(vii) may be refinanced with other
Indebtedness that immediately after giving effect thereto would be permitted by
Sections 7.1(a)(iii) and 7.1(a)(vii), respectively.
Section 7.19 Initial Transactions
Notwithstanding anything to the contrary in any Loan Document,
nothing contained in this Article shall prevent the consummation of any of the
Initial Transactions.
ARTICLE 8. EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or on any
reimbursement obligation in respect of any LC Disbursement or any fee,
commission or any other amount (other than an amount referred to in clause (a)
of this Article) payable under any Loan Document, when and as the same shall
become due and payable, and such failure shall continue unremedied for a period
of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf of any
Loan Party or any other Subsidiary in or in connection with any Loan Document or
any amendment or modification hereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with any Loan Document or any amendment or modification hereof or
waiver thereunder, shall prove to have been incorrect in any material respect
when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant, condition or
agreement contained in Section 6.3, 6.8, 6.10, 6.12, 6.13 or 6.15 or in Article
7, or any Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in the Security Documents, the Subordination Agreement or
Section 1, 10(c), 10(i), 10(k), 10(l), 10(m) or 10(p) through 10(cc) of the
Guarantee Agreement;
(e) any Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in any Loan Document to which it is a party (other than
those specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after such Loan Party shall
have obtained knowledge thereof;
(f) any Loan Party or any other Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any
Material Obligations, when and as the same shall become due and payable (after
giving effect to any applicable grace period);
(g) any event or condition occurs that results in any Material Obligations
becoming due prior to its scheduled maturity or payment date, or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Obligations or any trustee or agent on its or
their behalf to cause any Material Obligations to become due prior to its
scheduled maturity or payment date (in each case after giving effect to any
applicable cure period);
(h) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed seeking (i) liquidation, reorganization or other relief in
respect of any Loan Party or any other Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for any Loan Party or any other Subsidiary or for a substantial
part of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 45 days or an order or decree approving or ordering any
of the foregoing shall be entered;
(i) any Loan Party or any other Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for any Loan Party or any other Subsidiary or for a substantial
part of its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(j) any Loan Party or any other Subsidiary shall become unable, admit in writing
its inability or fail generally to pay its debts as they become due;
(k) any event or condition occurs that results (with or without the giving of
notice, the lapse of time or both) in (i) any payment (whether in cash,
securities (other than to the extent such payment shall be made solely in shares
of common equity securities) or other property) on account of the puchase,
redemption, retirement or conversion of any equity securities under the Private
Placement Documents becoming due (or any notice shall be given requiring any
such payment to be made (including a "Mandatory Redemption Notice" under and as
defined in the Private Placement Documents), which notice shall not have been
retracted or otherwise withdrawn), or (ii) any other payment under the Private
Placement Documents becoming due (other than to the extent such payment shall be
made solely in shares of common equity securities);
(l) one or more judgments for the payment of money in an aggregate amount in
excess of $500,000 shall be rendered against any Loan Party or any other
Subsidiary or any combination thereof (which shall not be fully covered by
insurance without taking into account any applicable deductibles) and the same
shall remain undischarged or unbonded for a period of 30 consecutive days during
which execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of any Loan Party
or any other Subsidiary to enforce any such judgment;
(m) an ERISA Event shall have occurred that, in the opinion of the Required
Lenders, when taken together with all other ERISA Events that have occurred,
could reasonably be expected to result in liability of the Loan Parties and the
other Subsidiaries in an aggregate amount exceeding $500,000 at any time;
(n) (i) any Loan Document or the Tax Sharing Agreement shall cease, for any
reason, to be in full force and effect or any Loan Party shall so assert in
writing or shall disavow any of its obligations thereunder, (ii) the Consent and
Intercreditor Agreement shall cease, for any reason (other than in accordance
with its terms), to be in full force and effect or Xxxxxxx shall so assert in
writing or shall disavow any of its obligations thereunder or (iii) any
representation, warranty, covenant or other obligation for the benefit of the
Borrower or any of its Affiliates contained in any Initial Transaction Document,
any Private Placement Document or the Tax Sharing Agreement that, by its terms,
survives for any period shall cease, for any reason, to so survive;
(o) any Lien purported to be created under any Security Document shall cease to
be, or shall be asserted by any Loan Party not to be, a valid and perfected Lien
on any Collateral, with the priority required by the applicable Security
Document, except as a result of the Administrative Agent's failure to maintain
possession of any stock certificates, promissory notes or other instruments
delivered to it under the Security Agreement, or any foreclosure, distraint,
sale or similar proceedings have been commenced with respect to any Collateral;
(p) a Change in Control shall occur;
(q) Xxxxxxx Xxxxxxx shall for any reason fail to be the chief executive officer
of the Borrower and a Person in all respects reasonably satisfactory to the
Administrative Agent shall not have been hired, appointed or otherwise
designated to serve in such capacity within 90 days thereafter or Xxxxxx Xxxxxxx
shall for any reason fail to be the chief executive officer of the Parent and a
Person in all respects reasonably satisfactory to the Administrative Agent shall
not have been hired, appointed or otherwise designated to serve in such capacity
within 90 days thereafter; or
(r) the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and the Subsidiaries, taken as a whole, as reflected
in the financial statements delivered under Section 6.1(d) shall differ in any
material and adverse respect from the business, assets, operations, prospects or
condition, financial or otherwise, of the Borrower and the Subsidiaries, taken
as a whole, as reflected in the financial statements referred to in Section
4.4(a);
then, and in every such event (other than an event described in clause (h) or
(i) of this Article with respect to the Borrower or any Subsidiary), and at any
time thereafter during the continuance of such event, the Administrative Agent
may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different
times: (i) terminate the Revolving Commitments, and thereupon the Revolving
Commitments shall terminate immediately and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the principal of the Loans so declared to be due
and payable, together with accrued interest thereon and all fees and other
obligations of each Loan Party accrued under the Loan Documents, shall become
due and payable immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower; and in case
of any event described in clause (h) or (i) of this Article with respect to the
Borrower or any Subsidiary, the Revolving Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and all fees and other obligations of each Loan Party accrued
under the Loan Documents, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE 9. THE ADMINISTRATIVE AGENT
Each Credit Party hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
Person and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated by the Loan Documents that the
Administrative Agent is required to exercise in writing by the Required Lenders
(or such other number or percentage of the Credit Parties as shall be necessary
under the circumstances as provided in Section 10.2), and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower, any of the Subsidiaries or any other Loan Party that
is communicated to or obtained by the Person serving as Administrative Agent or
any of its Affiliates in any capacity. The Administrative Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Credit Parties as shall be necessary under the circumstances as provided in
Section 10.2) or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of
any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Credit Party (and, promptly after its
receipt of any such notice, it shall give each Credit Party and the Borrower
notice thereof), and the Administrative Agent shall not be responsible for or
have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered thereunder or in
connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth therein, (iv) the
validity, enforceability, effectiveness or genuineness thereof or any other
agreement, instrument or other document or (v) the satisfaction of any condition
set forth in Article 5 or elsewhere herein, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent, provided that no such delegation shall
serve as a release of the Administrative Agent or waiver by the Borrower of any
rights hereunder. The Administrative Agent and any such sub-agent may perform
any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Credit Parties and the Borrower. Upon any
such resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the Credit
Parties, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall 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
hereunder. The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 10.3 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while it was acting as Administrative
Agent.
Each Credit Party acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Credit Party and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Credit Agreement. Each
Credit Party also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Credit Party and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon any Loan Document, any related agreement or any document furnished
thereunder.
ARTICLE 10. MISCELLANEOUS
Section 10.1 Notices
Except in the case of notices and other communications expressly permitted
to be given by telephone, all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by facsimile, as
follows:
(a) if to the Borrower, to it at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention of: Chief Financial Officer (Telephone No. (000) 000-0000); Facsimile
No. (000) 000-0000), with a copy to Camhy Xxxxxxxxx & Xxxxx LLP at 0000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of: Xxxx X. Annex,
Esq. (Telephone No. (000) 000-0000); Facsimile No. (000) 000-0000);
(b) if to the Administrative Agent or the Issuing Bank, to it at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of: Xxxxx X. Xxxxxxx (Telephone No.
(000) 000-0000); Facsimile No. (000) 000-0000), with a copy to Xxxx X. Xxxxxxx
(Telephone No. (000) 000-0000; Facsimile No. (000) 000-0000); and
(c) if to any other Credit Party, to it at its address (or facsimile number) set
forth in its Administrative Questionnaire.
Any party hereto may change its address or facsimile number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Credit Agreement shall be deemed to have been given on
the date of receipt.
Section 10.2 Waivers; Amendments
(a) No failure or delay by any Credit Party in exercising any right or power
under any Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Credit Parties under the Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of any Loan Document or consent to any departure by any
Loan Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
the issuance of the Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether any Credit Party may have had notice or knowledge
of such Default at the time.
(b) Neither any Loan Document nor any provision thereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders, provided that no
such agreement shall (i) increase the Revolving Commitment, Term Commitment or
LC Commitment of any Lender without the written consent of such Lender, (ii)
reduce the principal amount of any Loan or any reimbursement obligation with
respect to an LC Disbursement, or reduce the rate of any interest, or reduce any
fees, payable under the Loan Documents, without the written consent of each
Credit Party affected thereby, (iii) postpone the date of payment at stated
maturity of any Loan or the date of payment of any reimbursement obligation with
respect to an LC Disbursement, any interest or any fees payable under the Loan
Documents, or reduce the amount of, waive or excuse any such payment, or
postpone the stated termination or expiration of the Revolving Commitments or
the LC Commitments, without the written consent of each Credit Party affected
thereby, (iv) change any provision hereof in a manner that would alter the pro
rata sharing of payments required by any Loan Document, without the written
consent of each Credit Party affected thereby, (v) change any of the provisions
of this Section or the definition of the term "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender, (vi) release
any Guarantor from its Guarantee under the Guarantee Documents (except as
expressly provided therein), or limit its liability in respect of such
Guarantee, without the written consent of each Lender, or (vii) release all or
substantially all of the Collateral from the Liens of the Loan Documents (except
as expressly provided in the Security Documents), without the consent of each
Lender, and provided, further, that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent or the Issuing
Bank hereunder without the prior written consent of the Administrative Agent or
the Issuing Bank, as applicable.
Section 10.3 Expenses; Indemnity; Damage Waiver
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by
the Administrative Agent and its Affiliates, including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent, in connection
with the syndication of the credit facilities provided for herein, the
preparation and administration of this Credit Agreement or any amendments,
modifications or waivers of the provisions of any Loan Document (whether or not
the transactions contemplated thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Bank in connection with the
issuance of the Letter of Credit or any demand for payment thereunder, and (iii)
all reasonable out-of-pocket expenses incurred by any Credit Party, including
the fees, charges and disbursements of any counsel for any Credit Party, in
connection with the enforcement or protection of its rights in connection with
the Loan Documents, including its rights under this Section, or in connection
with the Loans made or Letter of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or the Letter of Credit.
(b) The Borrower shall indemnify each Credit Party and each Related Party
thereof (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related reasonable expenses, including the fees, charges and disbursements of
any counsel for any Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the execution or
delivery of any Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties to the Loan Documents of their
respective obligations thereunder or the consummation of the Transactions or any
other transactions contemplated thereby, (ii) any Loan or the Letter of Credit
or the use of the proceeds thereof, including any refusal of the Issuing Bank to
honor a demand for payment under the Letter of Credit if the documents presented
in connection with such demand do not strictly comply with the terms of the
Letter of Credit, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Loan Parties or any
of the other Subsidiaries, or any Environmental Liability related in any way to
the Loan Parties or any of the other Subsidiaries or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto, provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to be paid
by it to the Administrative Agent or the Issuing Bank under paragraph (a) or (b)
of this Section, each Lender severally agrees to pay to the Administrative Agent
or the Issuing Bank, as applicable, an amount equal to the product of such
unpaid amount multiplied by a fraction, the numerator of which is the sum of
such Lender's Revolving Commitment plus the sum of the aggregate outstanding
principal amount of such Lender's Loans and the denominator of which is the sum
of the total of all Lenders' Revolving Commitments plus the sum of the aggregate
outstanding principal amount of all Lenders' Loans (in each case determined as
of the time that the applicable unreimbursed expense or indemnity payment is
sought).
(d) To the extent permitted by applicable law, the Borrower 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
and actual damages) arising out of, in connection with, or as a result of, any
Loan Document or any agreement, instrument or other document contemplated
thereby, the Transactions, or any Loan or the Letter of Credit or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be payable promptly but in no event
later than ten days after written demand therefor.
Section 10.4 Successors and Assigns
(a) The provisions of this Credit Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Credit Party (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void). Nothing in this Credit 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 Related Parties of each
Credit Party) any legal or equitable right, remedy or claim under or by reason
of any Loan Document.
(b) Any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Credit Agreement (including all or a portion
of its Revolving Commitment and outstanding Revolving Loans, its LC Commitment
and outstanding LC Loans and/or its outstanding Term Loans, as applicable),
provided that (i) except in the case of an assignment to a Lender or an
Affiliate or an Approved Fund of a Lender, each of the Borrower and the
Administrative Agent (and, in the case of an assignment of all or any portion of
its LC Commitment or obligations in respect of its LC Exposure, the Issuing
Bank) must give its prior written consent to such assignment (which consent
shall not be unreasonably withheld), (ii) except in the case of an assignment to
a Lender or an Affiliate or an Approved Fund of a Lender or an assignment of the
entire remaining amount of the assigning Lender's Revolving Commitment and
outstanding Revolving Loans, LC Commitment and outstanding LC Loans and/or
outstanding Term Loans, as applicable, the amount of the Revolving Commitment
and outstanding Revolving Loans, LC Commitment and outstanding LC Loans and/or
outstanding Term Loans, as applicable, of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000, unless the Administrative Agent otherwise consent,
(iii) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance together with, unless
otherwise agreed by the Administrative Agent, a processing and recordation fee
of $3,500, and (iv) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire, and provided further
that any consent of the Borrower otherwise required under this paragraph shall
not be required if a Default has occurred and is continuing or during the
Initial Syndication Period. Subject to acceptance and recording thereof pursuant
to paragraph (d) of this Section, from and after the effective date specified in
each Assignment and Acceptance, the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under the Loan Documents, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under the Loan
Documents (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under the Loan Documents, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.5, 3.6, 3.7 and 10.3). Any assignment or transfer by a
Lender of rights or obligations under the Loan Documents that does not comply
with this paragraph shall be treated for purposes of the Loan Documents as a
sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in New York City a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Revolving Commitment and LC
Commitment of, and principal amount of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive absent clearly demonstrable error, and the Borrower
and each Credit Party may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Credit Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower and any Credit Party, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance executed by
an assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Credit Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or any Credit Party,
sell participations to one or more banks or other entities (each such bank or
other entity being called a "Participant") in all or a portion of such Lender's
rights and obligations under the Loan Documents (including all or a portion of
its Revolving Commitment and outstanding Revolving Loans, its LC Commitment and
outstanding LC Loans and/or its outstanding Term Loans), provided that (i) such
Lender's obligations under the Loan Documents shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Loan Parties and the Credit
Parties shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the Loan Documents.
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 the Loan Documents and to approve any amendment, modification or waiver
of any provision of any Loan Documents, 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 described in the
first proviso to Section 10.2(b) that affects such Participant. Subject to
paragraph (f) of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 3.5 and 3.6 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 10.8 as though it were a Lender, provided
that such Participant agrees to be subject to Section 3.7(e) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater payment under
Section 3.5 or 3.7 than the 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 the Borrower's prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 3.7 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 3.7(e) as though it were a
Lender.
(g) Any Lender may at any time pledge or assign a security interest in all or
any portion of its rights under the Loan Documents to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest, provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations under the Loan
Documents or substitute any such pledgee or assignee for such Lender as a party
hereto.
Section 10.5 Survival
All covenants, agreements, representations and warranties made by
the Borrower herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Credit Agreement or any other
Loan Document shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of any Loan Document and the
making of any Loans and the issuance of the Letter of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that any Credit Party may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any LC Disbursement or any fee or any
other amount payable under the Loan Documents is outstanding and unpaid or the
Letter of Credit is outstanding and so long as the Revolving Commitments and the
LC Commitments have not expired or terminated. The provisions of Sections 3.5,
3.6, 3.7 and 10.3 and Article 9 shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans and the LC Disbursements, the expiration or
termination of the Letter of Credit and the termination of the Revolving
Commitments and the LC Commitments or the termination of this Credit Agreement
or any provision hereof.
Section 10.6 Counterparts; Integration; Effectiveness
This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an
original, but all of which, when taken together, shall constitute but one
contract. This Agreement and any separate letter agreements with respect to fees
payable to any Credit Party or the syndication of the credit facilities
established hereunder constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 5.1, this Credit Agreement shall become effective when it
shall have been executed by the Administrative Agent and when the Administrative
Agent shall have received counterparts hereof which, when taken together, bear
the signatures of each of the other parties hereto, and thereafter shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of this Credit
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart of this Credit Agreement.
Section 10.7 Severability
In the event any one or more of the provisions contained in this
Credit Agreement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). The parties shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
Section 10.8 Right of Setoff
If the Loans shall have been declared due and payable in whole or in
part pursuant to Article 8 or if an Event of Default shall have occurred and be
continuing under clause (a) or (b) of such Article, each of the Lenders and
their respective Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable law, to setoff and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other obligations at any time owing by it to or for the credit
or the account of the Borrower against any of and all the obligations of the
Borrower now or hereafter existing under this Credit Agreement held by it,
irrespective of whether or not it shall have made any demand under this Credit
Agreement and although such obligations may be unmatured. The rights of each the
Lenders and their respective Affiliates under this Section are in addition to
other rights and remedies (including other rights of setoff) that it may have.
Section 10.9 Governing Law; Jurisdiction; Consent to Service of Process
(a) This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Credit Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that, to the extent permitted by
applicable law, all claims in respect of any such action or proceeding may be
heard and determined in such New York State court or, to the extent permitted by
applicable law, in such Federal court. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Credit Agreement shall affect any right that
the Administrative Agent or any other Credit Party may otherwise have to bring
any action or proceeding relating to this Credit Agreement or the other Loan
Documents against the Borrower, or any of its property, in the courts of any
jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Credit Agreement or the other Loan Documents in any
court referred to in paragraph (b) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by applicable law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Credit Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.1. Nothing in this
Credit Agreement will affect the right of any party to this Credit Agreement to
serve process in any other manner permitted by law.
Section 10.10 WAIVER OF JURY TRIAL
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
Section 10.11 Headings
Article and Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this Credit Agreement and
shall not affect the construction of, or be taken into consideration in
interpreting, this Credit Agreement.
Section 10.12 Interest Rate Limitation
Notwithstanding anything herein to the contrary, if at any time the
interest rate applicable to any Loan, together with all fees, charges and other
amounts that are treated as interest on such Loan under applicable law
(collectively the "charges"), shall exceed the maximum lawful rate (the "maximum
rate") that may be contracted for, charged, taken, received or reserved by the
Lender holding such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all of the charges
payable in respect thereof, shall be limited to the maximum rate and, to the
extent lawful, the interest and the charges that would have been payable in
respect of such Loan but were not payable as a result of the operation of this
Section shall be cumulated, and the interest and the charges payable to such
Lender in respect of other Loans or periods shall be increased (but not above
the maximum rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Effective Rate to the date of repayment, shall have
been received by such Lender.
Section 10.13 Treatment of Certain Information
Each Credit Party agrees to use reasonable precautions to keep
confidential, in accordance with their customary procedures for handling
confidential information of the same nature, all non-public information supplied
by the Borrower or any Subsidiary pursuant to this Credit Agreement which (i) is
clearly identified by such Person as being confidential at the time the same is
delivered to such Credit Party or (ii) constitutes any financial statement,
financial projections or forecasts, budget, compliance certificate, audit
report, management letter or accountants' certification delivered hereunder
("information"), provided, however, that nothing herein shall limit the
disclosure of any information (a) to such of their respective Related Parties as
need to know such information, (b) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, or requested by any
bank regulatory authority, (c) on a confidential basis, to prospective lenders
or their counsel, (d) to auditors or accountants, and any analogous counterpart
thereof, (e) to any other Credit Party, (f) in connection with any litigation to
which any one or more of the Credit Parties is a party, (g) to the extent such
information (A) becomes publicly available other than as a result of a breach of
this Credit Agreement, (B) becomes available to any of the Credit Parties on a
non-confidential basis from a source other than the Borrower or any Subsidiary
or (C) was available to the Credit Parties on a non-confidential basis prior to
its disclosure to any of them by the Borrower or any Subsidiary; and (h) to the
extent the Borrower shall have consented to such disclosure in writing.
XXXXXXXX COMMUNICATIONS GROUP, INC.
CREDIT AGREEMENT
XXXXXXXX COMMUNICATIONS GROUP, INC.
CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
XXXXXXXX COMMUNICATIONS GROUP, INC.
By:
Name:
Title:
PARIBAS, individually, as Issuing Bank
and as Administrative Agent
By:
Name:
Title:
By:
Name:
Title:
iii
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS.................................................1
SECTION 1.1 DEFINED TERMS........................................1
-------------
SECTION 1.2 CLASSIFICATION OF LOANS AND BORROWINGS..............21
--------------------------------------
SECTION 1.3 TERMS GENERALLY.....................................21
---------------
SECTION 1.4 ACCOUNTING TERMS; GAAP..............................22
----------------------
ARTICLE 2. THE CREDITS................................................22
SECTION 2.1 COMMITMENTS.........................................22
-----------
SECTION 2.2 LOANS AND BORROWINGS................................23
--------------------
SECTION 2.3 REQUESTS FOR BORROWINGS.............................24
-----------------------
SECTION 2.4 FUNDING OF BORROWINGS...............................24
---------------------
SECTION 2.5 TERMINATION AND REDUCTION OF REVOLVING COMMITMENTS..25
--------------------------------------------------
SECTION 2.6 REPAYMENT OF LOANS; EVIDENCE OF DEBT................26
------------------------------------
SECTION 2.7 PREPAYMENT OF LOANS.................................27
-------------------
SECTION 2.8 LETTER OF CREDIT....................................29
----------------
SECTION 2.9 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SETOFFS 32
----------------------------------------------------------
ARTICLE 3. INTEREST, FEES, YIELD PROTECTION, ETC......................34
SECTION 3.1 INTEREST............................................34
--------
SECTION 3.2 INTEREST ELECTIONS..................................35
------------------
SECTION 3.3 FEES................................................36
----
SECTION 3.4 ALTERNATE RATE OF INTEREST..........................37
--------------------------
SECTION 3.5 INCREASED COSTS; ILLEGALITY.........................38
---------------------------
SECTION 3.6 BREAK FUNDING PAYMENTS..............................40
----------------------
SECTION 3.7 TAXES...............................................40
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SECTION 3.8 MITIGATION OBLIGATIONS..............................41
----------------------
ARTICLE 4. REPRESENTATIONS AND WARRANTIES.............................41
SECTION 4.1 ORGANIZATION; POWERS................................41
--------------------
SECTION 4.2 AUTHORIZATION; ENFORCEABILITY.......................42
-----------------------------
SECTION 4.3 GOVERNMENTAL APPROVALS; NO CONFLICTS................42
------------------------------------
SECTION 4.4 FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.....42
-----------------------------------------------
SECTION 4.5 PROPERTIES..........................................43
----------
SECTION 4.6 LITIGATION AND ENVIRONMENTAL MATTERS................43
------------------------------------
SECTION 4.7 COMPLIANCE WITH LAWS AND AGREEMENTS.................44
-----------------------------------
SECTION 4.8 INVESTMENT AND HOLDING COMPANY STATUS...............44
-------------------------------------
SECTION 4.9 TAXES...............................................44
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SECTION 4.10 ERISA...............................................44
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SECTION 4.11 DISCLOSURE..........................................45
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SECTION 4.12 SUBSIDIARIES........................................45
------------
SECTION 4.13 INSURANCE...........................................45
---------
SECTION 4.14 LABOR MATTERS.......................................45
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SECTION 4.15 SOLVENCY............................................46
--------
SECTION 4.16 SECURITY DOCUMENTS..................................46
------------------
SECTION 4.17 FEDERAL RESERVE REGULATIONS.........................47
---------------------------
ARTICLE 5. CONDITIONS.................................................47
SECTION 5.1 EFFECTIVE DATE......................................47
--------------
SECTION 5.2 EACH CREDIT EVENT ..................................51
-----------------
ARTICLE 6. AFFIRMATIVE COVENANTS......................................52
SECTION 6.1 FINANCIAL STATEMENTS AND OTHER INFORMATION..........52
------------------------------------------
SECTION 6.2 NOTICES OF MATERIAL EVENTS..........................54
--------------------------
SECTION 6.3 EXISTENCE; CONDUCT OF BUSINESS......................54
------------------------------
SECTION 6.4 PAYMENT AND PERFORMANCE OF OBLIGATIONS..............54
--------------------------------------
SECTION 6.5 MAINTENANCE OF PROPERTIES...........................55
-------------------------
SECTION 6.6 BOOKS AND RECORDS; INSPECTION RIGHTS................55
------------------------------------
SECTION 6.7 COMPLIANCE WITH LAWS................................55
--------------------
SECTION 6.8 USE OF PROCEEDS.....................................55
---------------
SECTION 6.9 INFORMATION REGARDING COLLATERAL....................56
--------------------------------
SECTION 6.10 INSURANCE...........................................56
---------
SECTION 6.11 CASUALTY AND CONDEMNATION...........................57
-------------------------
SECTION 6.12 ADDITIONAL SUBSIDIARIES.............................57
-----------------------
SECTION 6.13 FURTHER ASSURANCES; CERTAIN REAL ESTATE MATTERS.....58
-----------------------------------------------
SECTION 6.14 ENVIRONMENTAL COMPLIANCE............................58
------------------------
SECTION 6.16 HEDGING AGREEMENTS..................................59
------------------
ARTICLE 7. NEGATIVE COVENANTS.........................................59
SECTION 7.1 INDEBTEDNESS........................................59
------------
SECTION 7.2 LIENS...............................................60
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SECTION 7.3 FUNDAMENTAL CHANGES.................................61
-------------------
SECTION 7.4 INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND ACQUISITIONS 61
---------------------------------------------------------
SECTION 7.5 ASSET SALES.........................................62
-----------
SECTION 7.6 SALE AND LEASE-BACK TRANSACTIONS....................63
--------------------------------
SECTION 7.7 HEDGING AGREEMENTS..................................63
------------------
SECTION 7.8 RESTRICTED PAYMENTS.................................63
-------------------
SECTION 7.9 TRANSACTIONS WITH AFFILIATES........................63
----------------------------
SECTION 7.10 RESTRICTIVE AGREEMENTS..............................63
----------------------
SECTION 7.11 AMENDMENT OF MATERIAL DOCUMENTS.....................64
-------------------------------
SECTION 7.12 INTEREST COVERAGE RATIO.............................64
-----------------------
SECTION 7.14 FIXED CHARGE COVERAGE RATIO.........................65
---------------------------
SECTION 7.15 TOTAL LEVERAGE RATIO................................65
--------------------
SECTION 7.16 CAPITAL EXPENDITURES................................65
--------------------
SECTION 7.17 MINIMUM ADJUSTED CONSOLIDATED EBITDA................66
------------------------------------
SECTION 7.18 MAXIMUM DAYS RECEIVABLES AMOUNT.....................67
-------------------------------
SECTION 7.19 PREPAYMENTS.........................................67
-----------
SECTION 7.20 INITIAL TRANSACTIONS................................68
--------------------
ARTICLE 8. EVENTS OF DEFAULT..........................................68
ARTICLE 9. THE ADMINISTRATIVE AGENT...................................71
ARTICLE 10. MISCELLANEOUS.............................................73
SECTION 10.1 NOTICES.............................................73
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SECTION 10.2 WAIVERS; AMENDMENTS.................................74
-------------------
SECTION 10.3 EXPENSES; INDEMNITY; DAMAGE WAIVER..................75
----------------------------------
SECTION 10.4 SUCCESSORS AND ASSIGNS..............................76
----------------------
SECTION 10.5 SURVIVAL............................................78
--------
SECTION 10.6 COUNTERPARTS; INTEGRATION; EFFECTIVENESS............79
----------------------------------------
SECTION 10.7 SEVERABILITY .......................................79
------------
SECTION 10.8 RIGHT OF SETOFF ....................................79
---------------
SECTION 10.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS .80
----------------------------------------------------------
SECTION 10.10 WAIVER OF JURY TRIAL ...............................81
--------------------
SECTION 10.11 HEADINGS ...........................................81
--------
SECTION 10.12 INTEREST RATE LIMITATION ...........................81
------------------------
SECTION 10.13 TREATMENT OF CERTAIN INFORMATION ...................81
--------------------------------
SCHEDULES:
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Schedule 1.1A List of Mortgaged Properties
---------------------======================================================
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Schedule 1.1B Flow of Funds Memorandum
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Schedule 2.1 List of Commitments
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Schedule 4.5 List of Real Property
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Schedule 4.6 Disclosed Matters
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Schedule 4.12 List of Subsidiaries
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Schedule 4.13 List of Insurance
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Schedule 4.16 List of Mortgage Filing Offices
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Schedule 7.1 Existing Indebtedness
---------------------======================================================
---------------------======================================================
Schedule 7.2 Existing Liens
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Schedule 7.4 Existing Investments
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Schedule 7.10 Existing Restrictions
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EXHIBITS:
---------------------======================================================
Exhibit A Form of Assignment and Acceptance
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---------------------======================================================
Exhibit B Form of Opinion of Counsel to the Loan Parties
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Exhibit C Form of Note
---------------------======================================================
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Exhibit D Form of Guarantee Agreement
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Exhibit E Form of Security Agreement
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Exhibit F Form of Subordination Agreement
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Exhibit G Form of Consent and Intercreditor Agreement
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