EXHIBIT 99.10
CREDIT AGREEMENT
DATED AS OF AUGUST 22, 2002
AMONG
URS CORPORATION,
AS BORROWER,
THE LENDERS LISTED HEREIN,
AS LENDERS,
AND
CREDIT SUISSE FIRST BOSTON,
AS CO-LEAD ARRANGER AND ADMINISTRATIVE AGENT
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS CO-LEAD ARRANGER AND SYNDICATION AGENT
AND
BNP PARIBAS,
XXXXXX TRUST & SAVINGS BANK AND
THE ROYAL BANK OF SCOTLAND PLC,
AS CO-DOCUMENTATION AGENTS
TABLE OF CONTENTS
PAGE
Section 1. DEFINITIONS......................................................................... 2
1.1 Certain Defined Terms............................................................... 2
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement..................................................................... 29
1.3 Other Definitional Provisions and Rules of Construction............................. 29
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS.......................................... 30
2.1 Commitments; Making of Loans; the Register; Optional Notes.......................... 30
2.2 Interest on the Loans............................................................... 36
2.3 Fees................................................................................ 41
2.4 Repayments, Prepayments and Reductions in Revolving Loan Commitments;
General Provisions Regarding Payments; Application of Proceeds of
Collateral and Payments Under Subsidiary Guaranty................................... 42
2.5 Use of Proceeds..................................................................... 49
2.6 Special Provisions Governing Eurodollar Rate Loans.................................. 50
2.7 Increased Costs; Taxes; Capital Adequacy............................................ 52
2.8 Obligation of Lenders and Issuing Lenders to Mitigate............................... 56
2.9 Replacement of a Lender............................................................. 58
Section 3. LETTERS OF CREDIT................................................................... 58
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations
Therein............................................................................. 58
3.2 Letter of Credit Fees............................................................... 61
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit.................. 61
3.4 Obligations Absolute................................................................ 64
Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT........................................... 66
4.1 Conditions to Term Loans and Revolving Loans........................................ 66
4.2 Conditions to All Loans............................................................. 71
4.3 Conditions to Letters of Credit..................................................... 72
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 5. COMPANY'S REPRESENTATIONS AND WARRANTIES............................................ 72
5.1 Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries........................................................................ 72
5.2 Authorization of Borrowing, etc..................................................... 73
5.3 Financial Condition................................................................. 74
5.4 No Material Adverse Change; No Restricted Junior Payments........................... 75
5.5 Title to Properties; Liens; Real Property; Licenses, Trademarks; etc................ 75
5.6 Litigation; Adverse Facts........................................................... 76
5.7 Payment of Taxes.................................................................... 76
5.8 Performance of Agreements; Materially Adverse Agreements; Material
Contracts........................................................................... 77
5.9 Governmental Regulation............................................................. 77
5.10 Securities Activities............................................................... 77
5.11 Employee Benefit Plans.............................................................. 77
5.12 Certain Fees........................................................................ 78
5.13 Environmental Protection............................................................ 78
5.14 Employee Matters.................................................................... 79
5.15 Solvency............................................................................ 79
5.16 Matters Relating to Collateral...................................................... 79
5.17 Related Agreements.................................................................. 80
5.18 Disclosure.......................................................................... 81
5.19 Subordinated Indebtedness........................................................... 81
Section 6. COMPANY'S AFFIRMATIVE COVENANTS..................................................... 81
6.1 Financial Statements and Other Reports.............................................. 81
6.2 Corporate Existence, etc............................................................ 86
6.3 Payment of Taxes and Claims; Tax Consolidation...................................... 86
6.4 Maintenance of Properties; Insurance; Application of Net Insurance/
Condemnation Proceeds............................................................... 87
6.5 Inspection Rights; Lender Meeting................................................... 88
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TABLE OF CONTENTS
(CONTINUED)
PAGE
6.6 Compliance with Laws, etc........................................................... 89
6.7 Execution of Subsidiary Guaranty and Personal Property Collateral
Documents by Certain Additional Subsidiaries........................................ 89
6.8 Matters Relating to Real Property Collateral........................................ 91
6.9 Deposit Accounts.................................................................... 91
6.10 Stock Certificates.................................................................. 91
Section 7. COMPANY'S NEGATIVE COVENANTS........................................................ 91
7.1 Indebtedness........................................................................ 92
7.2 Liens and Related Matters........................................................... 93
7.3 Investments; Acquisitions........................................................... 95
7.4 Contingent Obligations.............................................................. 97
7.5 Restricted Junior Payments; Payments on Certain Other Indebtedness.................. 98
7.6 Financial Covenants................................................................. 99
7.7 Restriction on Fundamental Changes; Asset Sales..................................... 100
7.8 Consolidated Capital Expenditures................................................... 101
7.9 Sales and Lease-Backs............................................................... 102
7.10 Transactions with Shareholders and Affiliates....................................... 102
7.11 Conduct of Business................................................................. 102
7.12 Amendments or Waivers of Related Agreements; Amendments of Documents
Relating to Other Indebtedness...................................................... 103
7.13 Fiscal Year......................................................................... 103
Section 8. EVENTS OF DEFAULT................................................................... 103
8.1 Failure to Make Payments When Due................................................... 103
8.2 Default in Other Agreements......................................................... 103
8.3 Breach of Certain Covenants......................................................... 104
8.4 Breach of Warranty.................................................................. 104
8.5 Other Defaults Under Loan Documents................................................. 104
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc................................ 104
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TABLE OF CONTENTS
(CONTINUED)
PAGE
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.................................. 105
8.8 Judgments and Attachments........................................................... 105
8.9 Dissolution......................................................................... 105
8.10 Employee Benefit Plans.............................................................. 106
8.11 Change in Control................................................................... 106
8.12 Invalidity of Subsidiary Guaranty; Failure of Security; Repudiation
of Obligations...................................................................... 106
8.13 Failure to Consummate Merger........................................................ 106
Section 9. ADMINISTRATIVE AGENT................................................................ 107
9.1 Appointment......................................................................... 107
9.2 Powers and Duties; General Immunity................................................. 108
9.3 Representations and Warranties; No Responsibility For Appraisal of
Creditworthiness.................................................................... 109
9.4 Right to Indemnity.................................................................. 110
9.5 Successor Administrative Agent...................................................... 110
9.6 Collateral Documents and Guaranties................................................. 110
9.7 Agents.............................................................................. 111
9.8 Administrative Agent May File Proofs of Claim....................................... 111
Section 10. MISCELLANEOUS....................................................................... 112
10.1 Successors and Assigns; Assignments and Participations in Loans and
Letters of Credit................................................................... 112
10.2 Expenses............................................................................ 116
10.3 Indemnity........................................................................... 117
10.4 Set-Off; Security Interest in Deposit Accounts...................................... 118
10.5 Ratable Sharing..................................................................... 119
10.6 Amendments and Waivers.............................................................. 119
10.7 Independence of Covenants........................................................... 121
10.8 Notices; Effectiveness of Signatures................................................ 121
10.9 Survival of Representations, Warranties and Agreements.............................. 122
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TABLE OF CONTENTS
(CONTINUED)
PAGE
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative............................... 122
10.11 Marshalling; Payments Set Aside..................................................... 122
10.12 Severability........................................................................ 122
10.13 Obligations Several; Independent Nature of Lenders' Rights; Damage
Waiver.............................................................................. 123
10.14 Release of Security Interest or Guaranty............................................ 123
10.15 Applicable Law...................................................................... 123
10.16 Construction of Agreement; Nature of Relationship................................... 124
10.17 Consent to Jurisdiction and Service of Process...................................... 124
10.18 Waiver of Jury Trial................................................................ 125
10.19 Confidentiality..................................................................... 125
10.20 Counterparts; Effectiveness......................................................... 126
10.21 Successor Swing Line Lender......................................................... 126
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EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT
IV FORM OF REVOLVING NOTE
V FORM OF TRANCHE A TERM NOTE
VI FORM OF TRANCHE B TERM NOTE
VII FORM OF SWING LINE NOTE
VIII FORM OF COMPLIANCE CERTIFICATE
IX FORM OF OPINION OF COMPANY'S COUNSEL
X FORM OF ASSIGNMENT AGREEMENT
XI FORM OF SECURITY AGREEMENT
XII FORM OF SUBSIDIARY GUARANTY
XIII FORM OF FINANCIAL CONDITION CERTIFICATE
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URS CORPORATION
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of August 22, 2002 and
entered into by and among URS CORPORATION, a Delaware corporation ("COMPANY"),
THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (each
individually referred to herein as a "LENDER" and collectively as "LENDERS"),
CREDIT SUISSE FIRST BOSTON ("CSFB"), as a Co-Lead Arranger and administrative
agent for Lenders (in such capacity, "ADMINISTRATIVE AGENT"), XXXXX FARGO BANK,
NATIONAL ASSOCIATION ("XXXXX FARGO"), as a Co-Lead Arranger (collectively with
CSFB, in such capacity, "CO-ARRANGERS") and syndication agent for Lenders (in
such capacity, "SYNDICATION AGENT"), and BNP PARIBAS, XXXXXX TRUST & SAVINGS
BANK and THE ROYAL BANK OF SCOTLAND PLC, as co-documentation agents for Lenders
(collectively, in such capacity, "CO-DOCUMENTATION AGENTS").
R E C I T A L S
WHEREAS, Company's direct wholly owned Subsidiaries, EG&G
Merger Sub and Xxxx Merger Sub (these and other capitalized terms used in these
recitals without definition being used as defined in subsection 1.1), plan to
acquire all of the outstanding shares of Capital Stock of EG&G and Xxxx;
WHEREAS, on or before the Closing Date, Company plans to issue
and sell approximately $200,000,000 in aggregate principal amount of Senior
Notes;
WHEREAS, on the Closing Date, EG&G Merger Sub will be merged
with EG&G pursuant to the Merger Agreement, with EG&G Merger Sub being the
surviving corporation in such merger, and Xxxx Merger Sub will be merged with
Xxxx pursuant to the Merger Agreement, with Xxxx Merger Sub being the surviving
corporation in such merger;
WHEREAS, Lenders, at the request of Company, have agreed to
extend certain credit facilities to Company, the proceeds of which will be used,
together with the proceeds of the issuance and sale of the Senior Notes, (i) to
fund the Acquisition Financing Requirements and (ii) to provide financing for
working capital and other general corporate purposes of Company and its
Subsidiaries;
WHEREAS, Company desires to secure all of the Obligations
hereunder and under the other Loan Documents by granting to Administrative
Agent, on behalf of Lenders, a First Priority Lien on substantially all of its
personal property and certain of its real property, including a pledge of 100%
of the Capital Stock held by Company of certain of its Domestic Subsidiaries;
and
WHEREAS, certain of the Domestic Subsidiaries of Company have
agreed to guarantee the Obligations hereunder and under the other Loan Documents
and to secure their guaranties by granting to Administrative Agent, on behalf of
Lenders, a First Priority Lien on substantially all of their respective personal
property and certain of their respective real property,
including a pledge of 100% of the Capital Stock held by such Domestic
Subsidiaries of certain of their respective Domestic Subsidiaries:
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Company, Lenders,
Co-Arrangers, Syndication Agent, Co-Documentation Agents and Administrative
Agent agree as follows:
SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the following meanings:
"ACQUISITION FINANCING REQUIREMENTS" means the aggregate of
all amounts necessary (i) to finance the purchase price payable in connection
with the Merger, (ii) to refinance all Indebtedness outstanding under the
Existing Credit Agreements, and (iii) to pay Transaction Costs.
"ADMINISTRATIVE AGENT" has the meaning assigned to that term
in the introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 9.5A.
"AFFECTED LENDER" has the meaning assigned to that term in
subsection 2.6C.
"AFFECTED LOANS" has the meaning assigned to that term in
subsection 2.6C.
"AFFILIATE", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise. Any Person, other than a Lender, who owns beneficially
or of record Securities representing more than 5% of the total outstanding
Securities of Company shall be an Affiliate of Company.
"AGENTS" means Administrative Agent, Syndication Agent,
Co-Documentation Agents and Co-Arrangers.
"AGGREGATE AMOUNTS DUE" has the meaning assigned to that term
in subsection 10.5.
"AGREEMENT" means this Credit Agreement dated as of August 22,
2002, as it may be amended, supplemented or otherwise modified from time to
time.
"APPROVED FUND" means a Fund that is administered or managed
by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an
Affiliate of an entity that administers or manages a Lender.
2
"ASSET SALE" means the sale by Company or any of its
Subsidiaries to any Person other than Company or any of its wholly-owned
Domestic Subsidiaries of (i) any of the stock of any of Company's Subsidiaries,
other than any stock sold to licensed professionals employed by such Subsidiary
in order to comply with licensing laws or any stock sold to qualify directors if
required by applicable law, (ii) substantially all of the assets of any division
or line of business of Company or any of its Subsidiaries, or (iii) any other
assets (whether tangible or intangible) of Company or any of its Subsidiaries
(other than (a) obsolete, worn out or surplus property in the ordinary course of
business, (b) sales, assignments, transfers or dispositions of accounts in the
ordinary course of business for purposes of collection, (c) the assets set forth
on Schedule 1.1 of the Company Disclosure Letter, and (d) any such other assets
(other than accounts) to the extent that the aggregate value of such assets sold
in any single transaction or in any related series of transactions is less than
$5,000,000).
"ASSIGNMENT AGREEMENT" means an Assignment Agreement
substantially in the form of Exhibit X annexed hereto.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any successor statute.
"BASE RATE" means, at any time, the higher of (i) the Prime
Rate or (ii) the rate which is 1/2 of 1% in excess of the Federal Funds
Effective Rate. Any change in the Base Rate due to a change in the Prime Rate or
the Federal Funds Effective Rate shall be effective on the effective date of
such change.
"BASE RATE LOANS" means Loans bearing interest at rates
determined by reference to the Base Rate as provided in subsection 2.2A.
"BASE RATE MARGIN" means the margin over the Base Rate used in
determining the rate of interest of Base Rate Loans pursuant to subsection 2.2A.
"BUSINESS DAY" means (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of California or New York,
and (ii) with respect to all notices, determinations, fundings and payments in
connection with the Eurodollar Rate or any Eurodollar Rate Loans, any day that
is a Business Day described in clause (i) above and that is also a day for
trading by and between banks in Dollar deposits in the London interbank market.
"CAPITAL LEASE", as applied to any Person, means any lease of
any property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"CAPITAL STOCK" means the capital stock or other equity
interests of a Person.
"CASH" means money, currency or a credit balance in a Deposit
Account.
"CASH EQUIVALENTS" means, as at any date of determination, (i)
marketable securities (a) issued or directly and unconditionally guaranteed as
to interest and principal by the United States Government or (b) issued by any
agency of the United States the obligations of
3
which are backed by the full faith and credit of the United States, in each case
maturing within one year after such date; (ii) marketable direct obligations
issued by any state of the United States or any political subdivision of any
such state or any public instrumentality thereof, in each case maturing within
one year after such date and having, at the time of the acquisition thereof, the
highest rating obtainable from either S&P or Xxxxx'x; (iii) commercial paper
maturing no more than one year from the date of creation thereof and having, at
the time of the acquisition thereof, a rating of at least A-1 from S&P or at
least P-1 from Xxxxx'x; (iv) certificates of deposit or bankers' acceptances
maturing within one year after such date and issued or accepted by any Lender or
by any commercial bank organized under the laws of the United States, any state
thereof, the District of Columbia or any foreign country recognized by the
United States that (a) is at least "adequately capitalized" (as defined in the
regulations of its primary Federal banking regulator), (b) has Tier 1 capital
(as defined in such regulations) of not less than $100,000,000 (or the foreign
currency equivalent thereof) and (c) has outstanding debt which is rated "A" (or
such similar equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the Securities
Act); and (v) shares of any money market mutual fund that (a) has at least 95%
of its assets invested continuously in the types of investments referred to in
clauses (i) and (ii) above, (b) has net assets of not less than $500,000,000,
and (c) has the highest rating obtainable from either S&P or Xxxxx'x.
"CHANGE IN CONTROL" means (i) any Person or any two or more
Persons, other than TCG Holdings, L.L.C. and Xxxxxxx X. Xxxx & Associates, L.P.
and their respective Affiliates, acting in concert shall have acquired after the
date hereof beneficial ownership, directly or indirectly, of 35% or more of the
Voting Securities of Company unless (a) either TCG Holdings, L.L.C. or Xxxxxxx
X. Xxxx & Associates, L.P. and their respective Affiliates holds more than the
percentage held by such Person or group or (b) TCG Holdings, L.L.C. and Xxxxxxx
X. Xxxx & Associates, L.P. and their respective Affiliates together hold more
than the percentage held by such Person or group and have agreed to act in
concert on all matters relating to such Voting Securities pursuant to a written
agreement; or (ii) the occurrence of any "change of control" as defined in any
indenture or agreement relating to Securities of Company that have been
privately placed pursuant to Rule 144A of the Securities Act or publicly
registered under the Securities Act; or (iii) the occurrence of a change in the
composition of the Governing Body of Company such that a majority of the members
of any such Governing Body are not Continuing Members. As used herein, the term
"beneficially own" or "beneficial ownership" shall have the meaning set forth in
the Exchange Act and the rules and regulations promulgated thereunder.
"CLASS", as applied to Lenders, means each of the following
three classes of Lenders: (i) Lenders having Revolving Loan Exposure, (ii)
Lenders having Tranche A Term Loan Exposure, and (iii) Lenders having Tranche B
Term Loan Exposure.
"CLOSING DATE" means the date on which the initial Loans are
made.
"CO-ARRANGERS" has the meaning assigned to that term in the
introduction to this Agreement.
"CO-DOCUMENTATION AGENTS" has the meaning assigned to that
term in the introduction to this Agreement.
4
"COLLATERAL" means, collectively, all of the real, personal
and mixed property (including Capital Stock) in which Liens are purported to be
granted pursuant to the Collateral Documents as security for the Obligations.
"COLLATERAL ACCOUNT" has the meaning assigned to that term in
the Security Agreement.
"COLLATERAL DOCUMENTS" means the Security Agreement, the
Mortgages, and all other instruments or documents delivered by any Loan Party
pursuant to this Agreement or any of the other Loan Documents in order to grant
to Administrative Agent, on behalf of Lenders, a Lien on any real, personal or
mixed property (including Capital Stock) of that Loan Party as security for the
Obligations.
"COMMITMENT FEE PERCENTAGE" has the meaning assigned to that
term in subsection 2.3A.
"COMMITMENTS" means the commitments of Lenders to make Loans
as set forth in subsection 2.1A and subsection 3.3.
"COMPANY" has the meaning assigned to that term in the
introduction to this Agreement.
"COMPANY CERTIFICATES OF DESIGNATIONS" means the Certificates
of Designations for Company Series D Preferred Stock and Company Series E
Preferred Stock, in the form delivered to Administrate Agent on July 16, 2002,
in each case, as such Certificates of Designations may be further amended form
time to time to the extent permitted under subsection 7.12B.
"COMPANY DISCLOSURE LETTER" means the letter dated the Closing
Date delivered to Administrative Agent by Company containing information with
respect to Company and its Subsidiaries and Targets and their Subsidiaries.
"COMPANY SERIES D PREFERRED STOCK" means the Series D Senior
Convertible Participating Preferred Stock, $1.00 par value per share, of
Company.
"COMPANY SERIES E PREFERRED STOCK" means the Series E Senior
Cumulative Convertible Participating Preferred Stock, $1.00 par value per share,
of Company.
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of Exhibit VIII annexed hereto.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
sum of (i) the aggregate of all expenditures (whether paid in cash or other
consideration or accrued as a liability and including that portion of Capital
Leases which is capitalized on the consolidated balance sheet of Company and its
Subsidiaries) by Company and its Subsidiaries during that period that, in
conformity with GAAP, are included in "additions to property, plant or
equipment" or comparable items reflected in the consolidated statement of cash
flows of Company and its Subsidiaries (net of any proceeds of any related
financing with respect to such
5
expenditures) plus (ii) to the extent not covered by clause (i) of this
definition, the aggregate of all expenditures by Company and its Subsidiaries
during that period to purchase or develop computer software or systems (but only
to the extent such expenditures are capitalized on the consolidated balance
sheet of Company and its Subsidiaries in conformity with GAAP minus (iii) to the
extent included in clause (i) of this definition, the total cash consideration
expended by Company and its Subsidiaries during such period to acquire (by
purchase or otherwise) the business, property or fixed assets of any Person, or
the stock or other evidence of beneficial ownership of any Person that, as a
result of such acquisition, becomes a Subsidiary of Company. For purposes of
this definition, the purchase price of equipment that is purchased
simultaneously with the trade-in of existing equipment or with insurance
proceeds shall be included in Consolidated Capital Expenditures only to the
extent of the gross amount of such purchase price less the credit granted by the
seller of such equipment for the equipment being traded in at such time or the
amount of such proceeds, as the case may be.
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period,
Consolidated Interest Expense for such period, excluding, however, any interest
expense not payable in Cash (including amortization of discount and amortization
of debt issuance costs).
"CONSOLIDATED CURRENT ASSETS" means, as at any date of
determination, the total assets of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current assets in
conformity with GAAP minus any Cash in excess of $30,000,000.
"CONSOLIDATED CURRENT LIABILITIES" means, as at any date of
determination, the total liabilities of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current liabilities in
conformity with GAAP, (i) excluding (a) the aggregate principal amount of all
outstanding Revolving Loans and (b) the maximum aggregate amount which is or at
any time thereafter may become available for drawing under all Letters of Credit
then outstanding and (ii) including the current portion of the aggregate
principal amount of all outstanding Term Loans.
"CONSOLIDATED EBITDA" means, for any period, the sum of the
amounts for such period of (i) Consolidated Net Income, (ii) Consolidated
Interest Expense, (iii) provisions for taxes based on income, (iv) total
depreciation expense, (v) total amortization expense, and (vi) other non-cash
items (other than any such non-cash item to the extent it represents an accrual
of or reserve for cash expenditures in any future period), but only, in the case
of clauses (ii)-(vi), to the extent deducted in the calculation of Consolidated
Net Income, less other non-cash items added in the calculation of Consolidated
Net Income (other than any such non-cash item to the extent it will result in
the receipt of cash payments in any future period), all of the foregoing as
determined on a consolidated basis for Company and its Subsidiaries in
conformity with GAAP; provided, however, that all components of Consolidated
EBITDA for such period shall include or exclude, as the case may be, without
duplication, such components of Consolidated EBITDA attributable to any
Permitted Acquisition consummated during such period, the Merger if consummated
during such period or any business or assets that have been disposed of by
Company or any of its Subsidiaries after the first day of such period and prior
to the end of such period, in each case as determined on a pro forma basis, in
accordance with Regulation S-X promulgated by the Securities and Exchange
Commission, or as may be agreed upon by Company and Administrative Agent; and
provided further that (a) Consolidated EBITDA for the
6
four Fiscal Quarter period ending October 31, 2002 shall be equal to the sum of
Consolidated EBITDA for such four Fiscal Quarter period and $9,108,000, (b)
Consolidated EBITDA for the four Fiscal Quarter period ending January 31, 2003
shall be equal to the sum of Consolidated EBITDA for such four Fiscal Quarter
period and $4,127,000, (c) Consolidated EBITDA for the four Fiscal Quarter
period ending April 30, 2003 shall be equal to the sum of Consolidated EBITDA
for such four Fiscal Quarter period and $1,471,000, and (d) Consolidated EBITDA
for the four Fiscal Quarter period ending July 31, 2003 shall be equal to the
sum of Consolidated EBITDA for such four Fiscal Quarter period and $313,000.
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an
amount (if positive) equal to (i) Consolidated EBITDA for such period minus (ii)
the sum, without duplication, of the amounts for such period of (a) to the
extent not otherwise excluded from Consolidated EBITDA, Cash expenditures during
such period relating to the Merger or any Permitted Acquisition applied against
accruals and reserves taken against goodwill established in prior periods as
approved by Administrative Agent, (b) voluntary and scheduled repayments of
Consolidated Total Funded Debt (excluding repayments of Revolving Loans except
to the extent the Revolving Loan Commitments are permanently reduced in
connection with such repayments), (c) Consolidated Capital Expenditures, (d)
Consolidated Cash Interest Expense and (e) the provision for current taxes based
on income of Company and its Subsidiaries on a consolidated basis and payable in
Cash with respect to such period.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum
(without duplication) of the amounts for such period of (i) Consolidated Cash
Interest Expense, (ii) scheduled principal payments in respect of Consolidated
Total Funded Debt, and (iii) provisions for taxes based on income, all of the
foregoing as determined on a consolidated basis for Company and its Subsidiaries
in conformity with GAAP; provided that the amounts in clauses (i) and (ii) shall
be calculated (a) for the first full Fiscal Quarter following the initial
Funding Date by multiplying the amount for the Fiscal Quarter ended on such date
by four, (b) for the second full Fiscal Quarter following the initial Funding
Date by multiplying the sum of the amounts for that Fiscal Quarter and the
immediately preceding Fiscal Quarter by two, and (c) for the third full Fiscal
Quarter following the initial Funding Date by multiplying the sum of the amounts
for that Fiscal Quarter and the two immediately preceding Fiscal Quarters by
1.33.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total
interest expense (including that portion attributable to Capital Leases in
accordance with GAAP and capitalized interest) of Company and its Subsidiaries
on a consolidated basis with respect to all outstanding Indebtedness of Company
and its Subsidiaries during such period, including all commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers'
acceptance financing, net costs under Interest Rate Agreements and amounts
referred to in subsection 2.3 payable to Administrative Agent and Lenders that
are considered interest expense in accordance with GAAP, but excluding, however,
any such amounts referred to in subsection 2.3 paid to Administrative Agent and
Lenders on or before the Closing Date.
"CONSOLIDATED LEVERAGE RATIO" means, as at any date, the ratio
of (i) Consolidated Total Funded Debt as at such date to (ii) Consolidated
EBITDA for the consecutive four Fiscal Quarters ending on such date.
7
"CONSOLIDATED NET INCOME" means, for any period, the net
income (or loss) of Company and its Subsidiaries on a consolidated basis for
such period taken as a single accounting period determined in conformity with
GAAP; provided that there shall be excluded (i) the income (or loss) of any
Person (other than a Subsidiary of Company) in which any other Person (other
than Company or any of its Subsidiaries) has a joint interest, except to the
extent of the amount of dividends or other distributions actually paid to
Company or any of its Subsidiaries by such Person during such period, (ii) the
income (or loss) of any Person accrued prior to the date it becomes a Subsidiary
of Company or is merged into or consolidated with Company or any of its
Subsidiaries or that Person's assets are acquired by Company or any of its
Subsidiaries, (iii) the income of any Subsidiary of Company to the extent that
the declaration or payment of dividends or similar distributions by that
Subsidiary of that income is not at the time permitted by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Subsidiary, (iv) any
after-tax gains or losses attributable to asset sales or returned surplus assets
of any Pension Plan of Company or any of its Subsidiaries, and (v) (to the
extent not included in clauses (i) through (iv) above) any net extraordinary
gains or net non-cash extraordinary losses.
"CONSOLIDATED TOTAL FUNDED DEBT" means, as at any date of
determination, the sum, on a consolidated basis, without duplication, of (i) the
aggregate principal amount of all outstanding Term Loans, (ii) the aggregate
amount of that portion of obligations with respect to Capital Leases of Company
or any of its Subsidiaries that is properly classified as a liability on a
balance sheet in conformity with GAAP, (iii) the aggregate principal amount of
all outstanding Indebtedness of Company or any of its Subsidiaries for borrowed
money evidenced by a note or similar written instrument, (iv) the aggregate
principal amount of all outstanding Subordinated Indebtedness, and (v) the
aggregate principal amount of all outstanding Revolving Loans.
"CONTINGENT OBLIGATION", as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person (i) with
respect to any Indebtedness, lease, dividend or other obligation of another if
the primary purpose or intent thereof by the Person incurring the Contingent
Obligation is to provide assurance to the obligee of such obligation of another
that such obligation of another will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected (in whole or in part) against loss in respect
thereof, (ii) with respect to any letter of credit issued for the account of
that Person or as to which that Person is otherwise liable for reimbursement of
drawings, or (iii) under Hedge Agreements. Contingent Obligations shall include
(a) the direct or indirect guaranty, endorsement (otherwise than for collection
or deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the obligation of another, (b)
the obligation to make take-or-pay or similar payments if required regardless of
non-performance by any other party or parties to an agreement, and (c) any
liability of such Person for the obligation of another through any agreement
(contingent or otherwise) (1) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) or (2) to maintain the solvency
or any balance sheet item, level of income or financial condition of another if,
in the case of any agreement described under subclauses (1) or (2) of this
sentence, the primary purpose or intent thereof is as described in the preceding
sentence. The amount of any Contingent Obligation in the form of a letter of
credit or a guaranty of a specified amount shall be equal to the face amount
8
of the letter of credit or the amount of the obligation so guaranteed or
otherwise supported, as the case may be, or, if less, the amount to which such
Contingent Obligation is specifically limited. The amount of any Contingent
Obligation which is not in the form of a guaranty of a specified amount shall be
equal to the reasonably anticipated maximum amount of such Contingent Obligation
as determined by Company in good faith.
"CONTINUING MEMBER" means, during any period of twelve
consecutive months after the Closing Date, any member of the Governing Body of
Company who (i) was a member of such Governing Body at the beginning of such
twelve-month period or (ii) was nominated for election or elected to such
Governing Body with the affirmative vote of a majority of the members who were
either members of such Governing Body at the beginning of such twelve-month
period or whose nomination or election was previously so approved.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"CONTROL AGREEMENT" means an agreement, satisfactory in form
and substance to Administrative Agent and executed by the financial institution
at which a Deposit Account is maintained, pursuant to which such financial
institution confirms and acknowledges Administrative Agent's security interest
in such Deposit Account and agrees that the financial institution will comply
with instructions originated by Administrative Agent as to disposition of funds
in the Deposit Account, without further consent by Company or any Subsidiary.
"CSFB" has the meaning assigned to that term in the
introduction to this Agreement.
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement, futures contract, option contract, synthetic cap or
other similar agreement or arrangement to which Company or any of its
Subsidiaries is a party.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or
similar account maintained with a Person engaged in the business of banking,
including a savings bank, savings and loan association, credit union or trust
company.
"DOLLARS" and the sign "$" mean the lawful money of the United
States of America.
"DOMESTIC SUBSIDIARY" means any Subsidiary of Company that is
incorporated or organized under the laws of a state of the United States, any
state thereof or in the District of Columbia.
"EG&G" means Carlyle-EG&G Holdings Corp., a Delaware
corporation.
"EG&G MERGER SUB" means URS Holdings, Inc., a Delaware
corporation.
9
"ELIGIBLE ASSIGNEE" means (i) any Lender, any Affiliate of any
Lender and any Approved Fund of any Lender; and (ii) (a) a commercial bank
organized under the laws of the United States or any state thereof and having a
combined capital and surplus of at least $100,000,000; (b) a savings and loan
association or savings bank organized under the laws of the United States or any
state thereof and having a combined capital and surplus of at least
$100,000,000; (c) a commercial bank organized under the laws of any other
country or a political subdivision thereof and having a combined capital and
surplus of at least $100,000,000; provided that (1) such bank is acting through
a branch or agency located in the United States or (2) such bank is organized
under the laws of a country that is a member of the Organization for Economic
Cooperation and Development or a political subdivision of such country; and (d)
any other entity that is a "qualified institutional buyer" (as defined in
Regulation D under the Securities Act) that extends credit or buys loans as one
of its businesses including insurance companies, mutual funds, lease financing
companies and any other financial institutions and which has a combined capital
and surplus, a net worth or total assets of at least $100,000,000; provided that
neither Company nor any Affiliate of Company shall be an Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as
defined in Section 3(3) of ERISA which is or was maintained or contributed to by
Company, any of its Subsidiaries or any of their respective ERISA Affiliates.
"ENVIRONMENTAL CLAIM" means any investigation, notice, notice
of violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any Government Authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law, (ii) in connection with any
Hazardous Materials or any actual or alleged Hazardous Materials Activity, or
(iii) in connection with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.
"ENVIRONMENTAL LAWS" means any and all current or future
statutes, ordinances, orders, rules, regulations, guidance documents, judgments,
Governmental Authorizations, or any other requirements of any Government
Authority relating to (i) environmental matters, including those relating to any
Hazardous Materials Activity, (ii) the generation, use, storage, transportation
or disposal of Hazardous Materials, or (iii) occupational safety and health,
industrial hygiene, land use or the protection of human, plant or animal health
or welfare, in any manner applicable to Company or any of its Subsidiaries or
any Facility.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor thereto.
"ERISA AFFILIATE," as applied to any Person, means (i) any
corporation that is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Internal Revenue Code of which that Person is a
member; (ii) any trade or business (whether or not incorporated) that is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that Person is a
member; and (iii) any member of an affiliated service group within the meaning
of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any
corporation described in clause (i) above or any trade or business described in
clause (ii) above is a member.
10
Any former ERISA Affiliate of Company or any of its Subsidiaries shall continue
to be considered an ERISA Affiliate of Company or such Subsidiary within the
meaning of this definition with respect to the period such entity was an ERISA
Affiliate of Company or such Subsidiary and with respect to liabilities arising
after such period for which Company or such Subsidiary could be liable under the
Internal Revenue Code or ERISA.
"ERISA EVENT" means (i) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued thereunder with
respect to any Pension Plan of Company or any of its Subsidiaries (excluding
those for which the provision for 30-day notice to the PBGC has been waived by
regulation); (ii) the failure to meet the minimum funding standard of Section
412 of the Internal Revenue Code with respect to any Pension Plan of Company or
any of its Subsidiaries (whether or not waived in accordance with Section 412(d)
of the Internal Revenue Code) or the failure by Company or any of its
Subsidiaries to make by its due date a required installment under Section 412(m)
of the Internal Revenue Code with respect to any Pension Plan or the failure by
Company or any of its Subsidiaries to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan
of Company or any of its Subsidiaries pursuant to Section 4041(a)(2) of ERISA of
a notice of intent to terminate such plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the withdrawal by Company, any of its
Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan
with two or more contributing sponsors or the termination of any such Pension
Plan resulting in liability pursuant to Section 4063 or 4064 of ERISA; (v) the
institution by the PBGC of proceedings to terminate any Pension Plan of Company
or any of its Subsidiaries or the occurrence of any event or condition which
might constitute grounds under ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan of Company or any of its
Subsidiaries; (vi) the imposition of liability on Company, any of its
Subsidiaries or any of their respective ERISA Affiliates pursuant to Section
4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of
ERISA; (vii) the withdrawal of Company, any of its Subsidiaries or any of their
respective ERISA Affiliates in a complete or partial withdrawal (within the
meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there
is any potential liability therefor, or the receipt by Company, any of its
Subsidiaries or any of their respective ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated
under Section 4041A or 4042 of ERISA; (viii) the assertion of a material claim
(other than routine claims for benefits) against any Employee Benefit Plan of
Company or any of its Subsidiaries other than a Multiemployer Plan or the assets
thereof, or against Company, any of its Subsidiaries or any of their respective
ERISA Affiliates in connection with any Employee Benefit Plan; (ix) receipt from
the Internal Revenue Service of notice of the failure of any Pension Plan of
Company or any of its Subsidiaries (or any other Employee Benefit Plan of
Company or any of its Subsidiaries intended to be qualified under Section 401(a)
of the Internal Revenue Code) to qualify under Section 401(a) of the Internal
Revenue Code, or the failure of any trust forming part of any Pension Plan of
Company or any of its Subsidiaries to qualify for exemption from taxation under
Section 501(a) of the Internal Revenue Code; or (x) the imposition of a Lien
pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan of Company or any of its
Subsidiaries.
11
"EURODOLLAR RATE" means, for any Interest Rate Determination
Date with respect to any Eurodollar Rate Loan for any Interest Period, the rate
per annum obtained by dividing (i) the rate per annum determined by the
Administrative Agent at approximately 11:00 a.m. (London time) on the date which
is two Business Days prior to the beginning of such Interest Period by reference
to the British Bankers' Association Interest Settlement Rates for deposits in
Dollars (as set forth by any service selected by the Administrative Agent which
has been nominated by the British Bankers' Association as an authorized
information vendor for the purpose of displaying such rates) for a period equal
to such Interest Period; provided that, to the extent that an interest rate is
not ascertainable pursuant to the foregoing provisions of this definition the
"Eurodollar Rate" shall be the interest rate per annum determined by the
Administrative Agent to be the average of the rates per annum at which deposits
in Dollars are offered for such Interest Period to major banks in the London
interbank market in London, England at approximately 11:00 a.m. (London time) on
the date which is two Business Days prior to the beginning of such Interest
Period by (ii) a percentage equal to 100% minus the stated maximum rate of all
reserve requirements (including any marginal, emergency, supplemental, special
or other reserves) applicable on such Interest Rate Determination Date to any
member bank of the Federal Reserve System in respect of "Eurocurrency
liabilities" as defined in Regulation D (or any successor category of
liabilities under Regulation D). Each determination by the Administrative Agent
pursuant to this definition shall be conclusive absent manifest error.
"EURODOLLAR RATE LOANS" means Loans bearing interest at rates
determined by reference to the Eurodollar Rate as provided in subsection 2.2A.
"EURODOLLAR RATE MARGIN" means the margin over the Eurodollar
Rate used in determining the rate of interest of Eurodollar Rate Loans pursuant
to subsection 2.2A.
"EVENT OF DEFAULT" means each of the events set forth in
Section 8.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"EXCHANGE RATE" means, on any date when an amount expressed in
a currency other than Dollars is to be determined with respect to any Letter of
Credit, the nominal rate of exchange of the Issuing Lender of such Letter of
Credit in the New York foreign exchange market for the sale of such currency in
exchange for Dollars at 12:00 noon (New York time) one Business Day prior to
such date, expressed as a number of units of such currency per one Dollar.
"EXISTING LETTERS OF CREDIT" means those letters of credit
issued for the account of Company or Targets or their respective Subsidiaries
and identified on Schedule 1.2 of the Company Disclosure Letter.
"EXISTING CREDIT AGREEMENTS" means (i) that certain Credit
Agreement dated as of June 9, 1999 among Company, the lenders party thereto, and
Xxxxx Fargo, as administrative agent, (ii) that certain Credit Agreement dated
as of August 20, 1999 among EG&G, EG&G Technical Services, Inc., the lenders
party thereto, and CitiCorp USA, Inc., as administrative agent, and (iii) that
certain Credit Agreement dated as of September 16, 1997 among Xxxx, UNC Aviation
Services, Inc., LSS Holdings, L.L.C., the lenders party thereto and CitiCorp
USA, Inc.,
12
as administrative agent.
"EXISTING SENIOR SUBORDINATED INDENTURE" means the Indenture,
dated as of June 23, 1999, between US Bank, N.A., successor to Firststar Bank of
Minnesota, N.A., Company and certain Subsidiaries of Company, as such indenture
may be amended from time to time to the extent permitted under subsection 7.12B.
"EXISTING SENIOR SUBORDINATED NOTES" means Company's 12 1/4%
Senior Subordinated Notes due 2009 in the original aggregate principal amount of
$200,000,000.
"EXISTING SUBORDINATED INDENTURES" means (i) the Indenture,
dated as of March 16, 1989, between Thortec International, Inc. and JPMorgan
Chase Bank, successor to MTrust Corp, National Association, as amended by
Amendment Number 1 and Amendment Number 2 and (ii) the Indenture, dated as of
February 15, 1987, between Company and The Bank of New York as assignee of First
Interstate Bank of California, as amended by Amendment Number 1, as any such
indenture may be further amended from time to time to the extent permitted under
subsection 7.12B.
"EXISTING SUBORDINATED NOTES" means (i) Company's 8 5/8%
Senior Subordinated Debentures due 2004 in the original aggregate principal
amount of $36,814,500 and the remaining aggregate principal amount of $6,454,750
as of the Closing Date and (ii) Company's 6 1/2% Convertible Subordinated Notes
due 2012 in the original aggregate principal amount of $57,500,000 and the
remaining aggregate principal amount of $1,798,250 as of the Closing Date.
"FACILITIES" means any and all real property (including all
buildings, fixtures or other improvements located thereon) now, hereafter or
heretofore owned, leased, operated or used by Company or any of its Subsidiaries
or any of their respective predecessors or Affiliates.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by Administrative Agent from three Federal funds
brokers of recognized standing selected by Administrative Agent.
"FINANCIAL PLAN" has the meaning assigned to that term in
subsection 6.1(xii).
"FIRST PRIORITY" means, with respect to any Lien purported to
be created in any Collateral pursuant to any Collateral Document, that (i) such
Lien is perfected and has priority over any other Lien on such Collateral (other
than Permitted Encumbrances) and (ii) such Lien is the only Lien (other than
Permitted Encumbrances and Liens permitted pursuant to subsection 7.2) to which
such Collateral is subject.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
13
"FISCAL YEAR" means the fiscal year of Company and its
Subsidiaries ending on October 31 of each calendar year. For purposes of this
Agreement, any particular Fiscal Year shall be designated by reference to the
calendar year in which such Fiscal Year ends.
"FLOOD HAZARD PROPERTY" means a Mortgaged Property located in
an area designated by the Federal Emergency Management Agency as having special
flood or mud slide hazards.
"FOREIGN SUBSIDIARY" means any Subsidiary of Company that is
not a Domestic Subsidiary.
"FUND" means any Person (other than a natural Person) that (i)
is (or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business and (ii) is a "qualified institutional buyer" (as defined in Regulation
D under the Securities Act).
"FUNDING AND PAYMENT OFFICE" means (i) the office of
Administrative Agent located at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or
(ii) such other office of Administrative Agent as may from time to time
hereafter be designated as such in a written notice delivered by Administrative
Agent to Company and each Lender.
"FUNDING DATE" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application
thereof set forth in subsection 1.2, generally accepted accounting principles
set forth in opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, in each case as the same are applicable to the
circumstances as of the date of determination.
"GOVERNING BODY" means the board of directors or other body
having the power to direct or cause the direction of the management and policies
of a Person that is a corporation, partnership, trust or limited liability
company.
"GOVERNMENT AUTHORITY" means any political subdivision or
department thereof, any other governmental or regulatory body, commission,
central bank, board, bureau, organ or instrumentality or any court, in each case
whether federal, state, local or foreign.
"GOVERNMENTAL AUTHORIZATION" means any permit, license,
registration, authorization, plan, directive, consent order or consent decree of
or from, or notice to, any Government Authority.
"GRANTING LENDER" has the meaning assigned to that term in
subsection 10.1B(iv).
"HAZARDOUS MATERIALS" means (i) any chemical, material or
substance at any time defined as or included in the definition of "hazardous
substances", "hazardous wastes",
14
"hazardous materials", "extremely hazardous waste", "acutely hazardous waste",
"radioactive waste", "biohazardous waste", "pollutant", "toxic pollutant",
"contaminant", "restricted hazardous waste", "infectious waste", "toxic
substances", or any other term or expression intended to define, list or
classify substances by reason of properties harmful to health, safety or the
indoor or outdoor environment (including harmful properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive
toxicity, "TCLP toxicity" or "EP toxicity" or words of similar import under any
applicable Environmental Laws); (ii) any oil, petroleum, petroleum fraction or
petroleum derived substance; (iii) any drilling fluids, produced waters and
other wastes associated with the exploration, development or production of crude
oil, natural gas or geothermal resources; (iv) any flammable substances or
explosives; (v) any radioactive materials; (vi) any asbestos-containing
materials; (vii) urea formaldehyde foam insulation; (viii) electrical equipment
which contains any oil or dielectric fluid containing polychlorinated biphenyls;
(ix) pesticides; and (x) any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any Government Authority or which
may or could pose a hazard to the health and safety of the owners, occupants or
any Persons in the vicinity of any Facility or to the indoor or outdoor
environment.
"HAZARDOUS MATERIALS ACTIVITY" means any past, current, proposed or
threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"HEDGE AGREEMENT" means an Interest Rate Agreement or a Currency
Agreement designed to hedge against fluctuations in interest rates or currency
values, respectively.
"INACTIVE SUBSIDIARY" has the meaning assigned to that term in
subsection 5.1E.
"INDEBTEDNESS", as applied to any Person, means (i) all indebtedness
for borrowed money, (ii) that portion of obligations with respect to Capital
Leases that is properly classified as a liability on a balance sheet in
conformity with GAAP, (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed money,
(iv) any obligation owed for all or any part of the deferred purchase price of
property or services (excluding any such obligations incurred under ERISA),
which purchase price is (a) due more than six months from the date of incurrence
of the obligation in respect thereof or (b) evidenced by a note or similar
written instrument, excluding, in the case of both clauses (a) and (b), accounts
payable from Company and Subsidiary Guarantors arising in the ordinary course of
business and (v) all indebtedness secured by any Lien on any property or asset
owned or held by that Person regardless of whether the indebtedness secured
thereby shall have been assumed by that Person or is nonrecourse to the credit
of that Person. Obligations under Interest Rate Agreements and Currency
Agreements constitute (1) in the case of Hedge Agreements, Contingent
Obligations, and (2) in all other cases, Investments, and in neither case
constitute Indebtedness.
15
"INDEMNIFIED LIABILITIES" has the meaning assigned to that
term in subsection 10.3.
"INDEMNITEE" has the meaning assigned to that term in
subsection 10.3.
"INTELLECTUAL PROPERTY" means all patents, trademarks, trade
names, copyrights, technology, software, know-how and processes used in or
necessary for the conduct of the business of Company and its Subsidiaries as
currently conducted that are material to the condition (financial or otherwise),
business or operations of Company and its Subsidiaries, taken as a whole.
"INTEREST PAYMENT DATE" means (i) with respect to any Base
Rate Loan, the last Business Day of each January, April, July and October of
each year, commencing on the first such date to occur after the Closing Date;
provided, however, that the first Interest Payment Date with respect to any Base
Rate Loan shall be October 31, 2002 and (ii) with respect to any Eurodollar Rate
Loan, the last day of each Interest Period applicable to such Loan; provided
that in the case of each Interest Period of longer than three months, "Interest
Payment Date" shall also include each date that is three months, or a multiple
thereof, after the commencement of such Interest Period.
"INTEREST PERIOD" has the meaning assigned to that term in
subsection 2.2B.
"INTEREST RATE AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement or arrangement to which Company or any of its Subsidiaries is
a party.
"INTEREST RATE DETERMINATION DATE", with respect to any
Interest Period, means the second Business Day prior to the first day of such
Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended to the date hereof and from time to time hereafter, and any
successor statute.
"INVESTMENT" means (i) any direct or indirect purchase or
other acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, any Securities of any other Person (including any Subsidiary of
Company), (ii) any direct or indirect redemption, retirement, purchase or other
acquisition for value, by any Subsidiary of Company from any Person other than
Company or any of its Subsidiaries, of any equity Securities of such Subsidiary,
(iii) any direct or indirect loan, advance (other than advances to employees for
moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contribution by
Company or any of its Subsidiaries to any other Person, including all
indebtedness and accounts receivable from that other Person that , in the case
of accounts receivable from Persons other than Company and Subsidiary
Guarantors, are not current assets or did not arise from sales to that other
Person and, in the case of accounts receivable from Company and Subsidiary
Guarantors, did not arise in the ordinary course of business, or (iv) Interest
Rate Agreements or Currency Agreements not constituting Hedge Agreements. The
amount of any Investment shall be the original cost of such Investment plus the
cost of all additions thereto, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to such
Investment (other than adjustments for the
16
repayment of, or the refund of capital with respect to the original principal
amount of any such Investment (not to exceed the original cost of such
Investment plus the cost of all additions thereto)).
"ISSUING LENDER", with respect to any Letter of Credit, means
the Revolving Lender that agrees or is otherwise obligated to issue such Letter
of Credit, determined as provided in subsection 3.1B(ii).
"JOINT VENTURE" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form;
provided that in no event shall any Subsidiary of any Person be considered to be
a Joint Venture to which such Person is a party.
"XXXX" means Xxxx Xxxxxxx Services, Inc., a Delaware
corporation.
"XXXX MERGER SUB" means URS-LSS Holdings, Inc., a Delaware
corporation.
"LENDER" and "LENDERS" means the Persons identified as
"Lenders" and listed on the signature pages of this Agreement, together with
their successors and permitted assigns pursuant to subsection 10.1, and the term
"Lenders" shall include Swing Line Lender unless the context otherwise requires;
provided that the term "Lenders", when used in the context of a particular
Commitment, shall mean Lenders having that Commitment.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means (i) any letter
of credit or similar instrument issued or to be issued by an Issuing Lender for
the account of Company pursuant to subsection 3.1 for the purpose of supporting
(a) Indebtedness of Company or any of its Subsidiaries in respect of industrial
revenue or development bonds or financings, (b) workers' compensation
liabilities of Company or any of its Subsidiaries, (c) the obligations of third
party insurers of Company or any of its Subsidiaries arising by virtue of the
laws of any jurisdiction requiring third party insurers, (d) obligations with
respect to Capital Leases or Operating Leases of Company or any of its
Subsidiaries, and (e) performance, payment, deposit or surety obligations of
Company or any of its Subsidiaries, in any case if required by law or
governmental rule or regulation or in accordance with custom and practice in the
industry; provided that Letters of Credit may not be issued for the purpose of
supporting any Indebtedness constituting "antecedent debt" (as that term is used
in Section 547 of the Bankruptcy Code), and (ii) the Existing Letters of Credit.
"LETTER OF CREDIT USAGE" means, as at any date of
determination, the sum of (i) the maximum aggregate amount which is or at any
time thereafter may become available for drawing under all Letters of Credit
then outstanding plus (ii) the aggregate amount of all drawings under Letters of
Credit honored by an Issuing Lender and not theretofore reimbursed out of the
proceeds of Revolving Loans pursuant to subsection 3.3B or otherwise reimbursed
by Company). For purposes of this definition, any amount described in clause (i)
or (ii) of the preceding sentence which is denominated in a currency other than
Dollars shall be valued based on the applicable Exchange Rate for such currency
as of the applicable date of determination.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any
17
lease in the nature thereof, and any agreement to give any security interest)
and any option, trust or other preferential arrangement having the practical
effect of any of the foregoing.
"LOAN" or "LOANS" means one or more of the Term Loans,
Revolving Loans or Swing Line Loans or any combination thereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Letters
of Credit (and any applications for, or reimbursement agreements or other
documents or certificates executed by Company in favor of an Issuing Lender
relating to, the Letters of Credit), the Subsidiary Guaranty and the Collateral
Documents.
"LOAN PARTY" means each of Company and any Subsidiary
Guarantor, and "LOAN PARTIES" means all such Persons, collectively.
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System as in
effect from time to time.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse change
in the business, assets, condition (financial or otherwise), operations,
liabilities (whether contractual, environmental or otherwise), properties or
prospects of Company and its Subsidiaries, taken as a whole, or (ii) the
material impairment of the ability of any Loan Party to perform, or of
Administrative Agent or Lenders to enforce, the Obligations.
"MATERIAL CONTRACT" means any contract or other arrangement to
which Company or any of its Subsidiaries is a party (other than the Loan
Documents) for which breach, nonperformance, cancellation or failure to renew
would be likely to have a Material Adverse Effect.
"MATERIAL DOMESTIC SUBSIDIARY" means, as at any date of
determination, each Domestic Subsidiary now existing or hereafter acquired or
formed by Company which, on a consolidated basis for such Subsidiary and its
Subsidiaries, had more than $5,000,000 of revenues for the most recently ended
Fiscal Year.
"MATERIAL REAL PROPERTY" means, as at any date of
determination, any fee interest in real property of Company or any of its
Subsidiaries having a fair market value of $10,000,000 or more.
"MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT" has the
meaning assigned to that term in subsection 7.8.
"MERGER" means the acquisition of the Capital Stock of EG&G
and Xxxx and the subsequent mergers of EG&G with EG&G Merger Sub and of Xxxx
with Xxxx Merger Sub in accordance with the terms of the Merger Agreement, with
EG&G Merger Sub and Xxxx Merger Sub being the surviving corporations in such
mergers, respectively.
"MERGER AGREEMENT" means that certain Agreement and Plan of
Merger by and among Targets, Company and Merger Subs dated as of July 16, 2002
in the form delivered to Administrative Agent and Lenders prior to their
execution of this Agreement and as such
18
agreement may be amended from time to time thereafter to the extent permitted
under subsection 7.12A.
"MERGER DATE" means the date that the Merger becomes effective
in accordance with the terms of the Merger Agreement.
"MERGER SUBS" means EG&G Merger Sub and Xxxx Merger Sub.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MORTGAGE" means a security instrument (whether designated as
a deed of trust or a mortgage or by any similar title) executed and delivered by
any Loan Party, in such form as may be approved by Administrative Agent in its
sole discretion, as such security instrument may be amended, supplemented or
otherwise modified from time to time. "MORTGAGES" means all such instruments,
collectively.
"MORTGAGED PROPERTY" has the meaning assigned to that term in
subsection 6.8.
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan that is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset
Sale, Cash payments (including any Cash received by way of deferred payment
pursuant to, or by monetization of, a note receivable or otherwise, but only as
and when so received) received from such Asset Sale, net of any bona fide direct
costs incurred in connection with such Asset Sale, including (i) income taxes
reasonably estimated to be actually payable within two years of the date of such
Asset Sale as a result of any gain recognized in connection with such Asset Sale
and (ii) payment of the outstanding principal amount of, premium or penalty, if
any, and interest on any Indebtedness (other than the Loans) that is secured by
a Lien on the stock or assets in question and that is required to be repaid
under the terms thereof as a result of such Asset Sale; provided, however, that
Net Asset Sale Proceeds shall not include any cash payments received from any
Asset Sale by a Foreign Subsidiary unless (a) such Net Asset Sale Proceeds are
repatriated (by reason of a repayment of an intercompany note or otherwise) to
the United States or may be repatriated (by reason of a repayment of an
intercompany note or otherwise) to the United States without (in the reasonable
judgment of Company) resulting in a material tax liability to Company or (b)
such Net Asset Sale Proceeds from any Asset Sale or any series of related Asset
Sales exceed $25,000,000.
"NET INSURANCE/CONDEMNATION PROCEEDS" means any Cash payments
or proceeds attributable to a loss by Company or any of its Subsidiaries (i)
under any business interruption or casualty insurance policy in respect of a
covered loss thereunder or (ii) as a result of the taking of any assets of
Company or any of its Subsidiaries by any Person pursuant to the power of
eminent domain, condemnation or otherwise, or pursuant to a sale of any such
assets to a purchaser with such power under threat of such a taking, in each
case net of any actual and reasonable documented costs incurred by Company or
any of its Subsidiaries in connection with the adjustment or settlement of any
claims of Company or such Subsidiary in respect thereof; provided, however, that
Net Insurance/Condemnation Proceeds shall not include any cash payments received
from any such loss by a Foreign Subsidiary unless (a) such Net
19
Insurance/Condemnation Proceeds are repatriated (by reason of a repayment of an
intercompany note or otherwise) to the United States or may be repatriated (by
reason of a repayment of an intercompany note or otherwise) to the United States
without (in the reasonable judgment of Company) resulting in a material tax
liability to Company or (b) such Net Insurance/Condemnation Proceeds from any
such loss exceed $25,000,000.
"NET SECURITIES PROCEEDS" means the cash proceeds (net of
underwriting discounts and commissions and other reasonable costs and expenses
associated therewith, including reasonable legal fees and expenses) from the (i)
issuance of Capital Stock of or incurrence of Indebtedness by Company or any of
its Subsidiaries and (ii) capital contributions made by a holder of Capital
Stock of Company.
"NON-CONSENTING LENDER" has the meaning assigned to that term
in subsection 2.9.
"NON US LENDER" has the meaning assigned to that term in
subsection 2.7(B)(iii)(a).
"NOTES" means one or more of the Tranche A Term Notes, Tranche
B Term Notes, Revolving Notes or Swing Line Note or any combination thereof.
"NOTICE OF BORROWING" means a notice substantially in the form
of Exhibit I annexed hereto.
"NOTICE OF CONVERSION/CONTINUATION" means a notice
substantially in the form of Exhibit II annexed hereto.
"OBLIGATIONS" means all obligations of every nature of each
Loan Party from time to time owed to Administrative Agent, Lenders or any of
them under the Loan Documents, whether for principal, interest, reimbursement of
amounts drawn under Letters of Credit, fees, expenses, indemnification or
otherwise.
"OFFICER" means the president, chief executive officer, an
executive vice president, chief financial officer, treasurer, controller,
general partner (if an individual), managing member (if an individual) or other
individual appointed by the Governing Body or the Organizational Documents of a
corporation, partnership, trust or limited liability company to serve in a
similar capacity as the foregoing.
"OFFICER'S CERTIFICATE", as applied to any Person that is a
corporation, partnership, trust or limited liability company, means a
certificate executed on behalf of such Person by one or more Officers of such
Person or one or more Officers of a general partner or a managing member if such
general partner or managing member is a corporation, partnership, trust or
limited liability company.
"OPERATING LEASE", as applied to any Person, means any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) that is not a Capital Lease other
than any such lease under which that Person is the lessor.
20
"ORGANIZATIONAL DOCUMENTS" means the documents (including
Bylaws, if applicable) pursuant to which a Person that is a corporation,
partnership, trust or limited liability company is organized.
"PARTICIPANT" means a purchaser of a participation in the
rights and obligations under this Agreement pursuant to subsection 10.1C.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, that is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"PERMITTED ACQUISITION" has the meaning assigned to that term
in subsection 7.3(ix).
"PERMITTED ENCUMBRANCES" means the following types of Liens
(excluding any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or by ERISA and any such Lien relating to or imposed in
connection with any Environmental Claim):
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not, at the time, required by subsection
6.3;
(ii) statutory Liens of landlords, statutory Liens of
carriers, warehousemen, mechanics, repairmen, workmen and materialmen,
and other Liens imposed by law, in each case incurred in the ordinary
course of business (a) for amounts not yet overdue or (b) for amounts
that are overdue and that (in the case of any such amounts overdue for
a period in excess of five days) are being contested in good faith by
appropriate proceedings, so long as (1) such reserves or other
appropriate provisions, if any, as shall be required by GAAP shall have
been made for any such contested amounts, and (2) in the case of a Lien
with respect to any portion of the Collateral, such contest proceedings
operate to stay the sale of any portion of the Collateral on account of
such Lien;
(iii) Liens arising solely by virtue of any statutory or
common law provision relating to banker's Liens, rights of set-off or
similar rights and remedies as to Deposit Accounts or other funds
maintained with a creditor depository institution; provided that (a)
such Deposit Account is not a dedicated cash collateral account and is
not subject to restriction against access by Company or any of its
Subsidiaries owning the affected Deposit Account and (b) such Deposit
Account is not intended by Company or any of its Subsidiaries to
provide collateral to the depository institution;
(iv) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety, bid and appeal
bonds, bids, leases, government contracts, trade contracts, performance
and return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money), so long as no
foreclosure, sale or similar proceedings have been commenced with
respect to any portion of the Collateral on account thereof;
21
(v) any attachment or judgment Lien not constituting an Event
of Default under subsection 8.8;
(vi) licenses (with respect to Intellectual Property and other
property), leases or subleases granted to third parties in accordance
with any applicable terms of the Collateral Documents and not
interfering in any material respect with the ordinary conduct of the
business of Company or any of its Subsidiaries;
(vii) easements, rights-of-way, restrictions, encroachments,
and other minor defects or irregularities in title, in each case which
do not and will not interfere in any material respect with the ordinary
conduct of the business of Company or any of its Subsidiaries;
(viii) any (a) interest or title of a lessor or sublessor
under any lease not prohibited by this Agreement, (b) Lien or
restriction that the interest or title of such lessor or sublessor may
be subject to, or (c) subordination of the interest of the lessee or
sublessee under such lease to any Lien or restriction referred to in
the preceding clause (b), so long as the holder of such Lien or
restriction agrees to recognize the rights of such lessee or sublessee
under such lease;
(ix) Liens arising from filing UCC financing statements
relating solely to leases and Liens permitted by this Agreement;
(x) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection
with the importation of goods;
(xi) any zoning or similar law or right reserved to or vested
in any governmental office or agency to control or regulate the use of
any real property;
(xii) Liens granted pursuant to the Collateral Documents;
(xiii) Liens securing obligations (other than obligations
representing Indebtedness for borrowed money) under operating,
reciprocal easement or similar agreements entered into in the ordinary
course of business of Company and its Subsidiaries; and
(xiv) Liens in favor of United States Government Authorities
on Deposit Accounts in connection with auctions conducted on behalf of
such Government Authorities in the ordinary course of business;
provided that such Liens apply only to the amounts actually obtained
from auctions conducted on behalf of such Government Authorities.
"PERSON" means and includes natural persons, corporations,
limited partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
22
"PLEDGED COLLATERAL" means, collectively, the "Pledged
Collateral" as defined in the Security Agreement.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that,
after notice or lapse of time or both, would constitute an Event of Default.
"PRICING CERTIFICATE" means an Officer's Certificate of
Company certifying the Consolidated Leverage Ratio as at the last day of any
Fiscal Quarter and setting forth the calculation of such Consolidated Leverage
Ratio in reasonable detail, which Officer's Certificate may be delivered to
Administrative Agent at any time on or after the date of delivery by Company of
the Compliance Certificate with respect to the period ending on the last day of
such Fiscal Quarter.
"PRIME RATE" means the rate that CSFB announces from time to
time as its prime lending rate, as in effect from time to time. The Prime Rate
is a reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. CSFB or any other Lender may make commercial
loans or other loans at rates of interest at, above or below the Prime Rate.
"PROCEEDINGS" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration.
"PRO RATA SHARE" means (i) with respect to all payments,
computations and other matters relating to the Tranche A Term Loan Commitment or
the Tranche A Term Loan of any Lender, the percentage obtained by dividing (a)
the Tranche A Term Loan Exposure of that Lender by (b) the aggregate Tranche A
Term Loan Exposure of all Lenders, (ii) with respect to all payments,
computations and other matters relating to the Tranche B Term Loan Commitment or
the Tranche B Term Loan of any Lender, the percentage obtained by dividing (a)
the Tranche B Term Loan Exposure of that Lender by (b) the aggregate Tranche B
Term Loan Exposure of all Lenders, (iii) with respect to all payments,
computations and other matters relating to the Revolving Loan Commitment or the
Revolving Loans of any Lender or any Letters of Credit issued or participations
therein deemed purchased by any Lender or any assignments of any Swing Line
Loans deemed purchased by any Lender, the percentage obtained by dividing (a)
the Revolving Loan Exposure of that Lender by (b) the aggregate Revolving Loan
Exposure of all Lenders, and (iv) for all other purposes with respect to each
Lender, the percentage obtained by dividing (a) the sum of the Tranche A Term
Loan Exposure of that Lender plus the Tranche B Term Loan Exposure of that
Lender plus the Revolving Loan Exposure of that Lender by (b) the sum of the
aggregate Tranche A Term Loan Exposure of all Lenders plus the aggregate Tranche
B Term Loan Exposure of all Lenders plus the aggregate Revolving Loan Exposure
of all Lenders, in any such case as the applicable percentage may be adjusted by
assignments permitted pursuant to subsection 10.1. The initial Pro Rata Share of
each Lender for purposes of each of clauses (i), (ii), (iii) and (iv) of the
preceding sentence is set forth opposite the name of that Lender in Schedule 2.1
annexed hereto.
"PTO" means the United States Patent and Trademark Office or
any successor or substitute office in which filings are necessary or, in the
opinion of Administrative Agent, desirable in order to create or perfect Liens
on any Collateral.
23
"REAL PROPERTY ASSET" means, at any time of determination, any
interest then owned by any Loan Party in any real property.
"REFUNDED SWING LINE LOANS" has the meaning assigned to that
term in subsection 2.1A(iv).
"REGISTER" has the meaning assigned to that term in subsection
2.1D.
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"REIMBURSEMENT DATE" has the meaning assigned to that term in
subsection 3.3B.
"RELATED AGREEMENTS" means, collectively, the Merger
Agreement, the Senior Indenture, and the Company Certificates of Designations.
"RELEASE" means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal,
dumping, leaching or migration of Hazardous Materials into the indoor or outdoor
environment (including, without limitation, the abandonment or disposal of any
barrels, containers or other closed receptacles containing any Hazardous
Materials), including the movement of any Hazardous Materials through the air,
soil, surface water or groundwater.
"REQUEST FOR ISSUANCE" means a request substantially in the
form of Exhibit III annexed hereto.
"REQUISITE CLASS LENDERS" means, at any date of determination
(i) for the Class of Lenders having Revolving Loan Exposure, Lenders having or
holding at least 51% of the aggregate Revolving Loan Exposure of all Lenders,
(ii) for the Class of Lenders having Tranche A Term Loan Exposure, Lenders
having or holding at least 51% of the aggregate Tranche A Term Loan Exposure of
all Lenders, and (iii) for the Class of Lenders having Tranche B Term Loan
Exposure, Lenders having or holding at least 51% of the aggregate Tranche B Term
Loan Exposure of all Lenders.
"REQUISITE LENDERS" means, at any date of determination,
Lenders having or holding at least 51% of the sum of (i) the aggregate Tranche A
Term Loan Exposure of all Lenders plus (ii) the aggregate Tranche B Term Loan
Exposure of all Lenders plus (iii) the aggregate Revolving Loan Exposure of all
Lenders.
"RESPONSIBLE OFFICER" means, with respect to any Person, the
chief executive officer, the president, the chief financial officer, the
treasurer, the controller, the general counsel or any other employee who is a
member of the Governing Body of such Person.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of Company or any of its Subsidiaries now or hereafter outstanding, except a
dividend payable solely in shares of that class of stock to the holders of that
class, (ii) any redemption, retirement, sinking fund or similar payment,
24
purchase or other acquisition for value, direct or indirect, of any shares of
any class of stock of Company or any of its Subsidiaries now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of stock of Company or any of its Subsidiaries now or hereafter outstanding, and
(iv) any payment or prepayment of principal of, premium, if any, interest on, or
fees with respect to, or redemption, purchase, retirement, defeasance (including
in-substance or legal defeasance), sinking fund or similar payment with respect
to, any Subordinated Indebtedness.
"REVOLVING LENDER" means a Lender that has a Revolving Loan
Commitment and/or that has an outstanding Revolving Loan.
"REVOLVING LOAN COMMITMENT" means the commitment of a
Revolving Lender to make Revolving Loans to Company pursuant to subsection
2.1A(iii), and "REVOLVING LOAN COMMITMENTS" means such commitments of all
Revolving Lenders in the aggregate.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means August 22,
2007.
"REVOLVING LOAN EXPOSURE" means, with respect to any Revolving
Lender as of any date of determination (i) prior to the termination of the
Revolving Loan Commitments, that Lender's Revolving Loan Commitment, and (ii)
after the termination of the Revolving Loan Commitments, the sum of (a) the
aggregate outstanding principal amount of the Revolving Loans of that Lender
plus (b) in the event that Lender is an Issuing Lender, the aggregate Letter of
Credit Usage in respect of all Letters of Credit issued by that Lender (in each
case net of any participations purchased by other Revolving Lenders in such
Letters of Credit or any unreimbursed drawings thereunder) plus (c) the
aggregate amount of all participations purchased by that Lender in any
outstanding Letters of Credit or any unreimbursed drawings under any Letters of
Credit plus (d) in the case of Swing Line Lender, the aggregate outstanding
principal amount of all Swing Line Loans (net of any participations therein
purchased by other Revolving Lenders) plus (e) the aggregate amount of all
assignments purchased by that Lender in any outstanding Swing Line Loans.
"REVOLVING LOANS" means the Loans made by Revolving Lenders to
Company pursuant to subsection 2.1A(iii).
"REVOLVING NOTES" means (i) any promissory notes of Company
issued pursuant to subsection 2.1E on the Closing Date and (ii) any promissory
notes issued by Company pursuant to the next to last sentence of subsection
10.1B(i) in connection with assignments of the Revolving Loan Commitments or
Revolving Loans of any Lenders, in each case substantially in the form of
Exhibit IV annexed hereto, as they may be amended, supplemented or otherwise
modified from time to time.
"S&P" means Standard & Poor's, a Division of The XxXxxx-Xxxx
Companies.
"SECURITIES" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated, certificated or uncertificated, or otherwise, or in general any
instruments commonly known as "securities" or any certificates of interest,
shares or
25
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"SECURITY AGREEMENT" means the Security Agreement executed and
delivered on the Closing Date, substantially in the form of Exhibit XI annexed
hereto, as such Security Agreement may thereafter be amended, supplemented or
otherwise modified from time to time.
"SENIOR INDENTURE" means the Indenture, dated as of August 22,
2002, by and among Company, Subsidiary Guarantors and U.S. Bank, N.A. as
trustee, pursuant to which the Senior Notes are issued, as such indenture may be
amended from time to time to the extent permitted under subsection 7.12B.
"SENIOR NOTES" means the 11-1/2% Senior Notes due 2009 of
Company issued pursuant to the Senior Indenture.
"SOLVENT" means, with respect to any Person, that as of the
date of determination both (i) (a) the then fair saleable value of the property
of such Person is (1) greater than the total amount of liabilities (including
contingent liabilities) of such Person and (2) not less than the amount that
will be required to pay the probable liabilities on such Person's then existing
debts as they become absolute and due considering all financing alternatives and
potential asset sales reasonably available to such Person; (b) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (c) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (ii) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"SPC" has the meaning assigned to that term in subsection
10.1B(iv).
"SUBJECT LENDER" has the meaning assigned to that term in
subsection 2.9.
"SUBORDINATED INDEBTEDNESS" means (i) the Existing
Subordinated Notes and the Existing Senior Subordinated Notes and (ii) any
Indebtedness of Company or any of its Subsidiaries incurred from time to time
and subordinated in right of payment to the Obligations.
"SUBSIDIARY" means, with respect to any Person, any
corporation, partnership, trust, limited liability company, association, or
other business entity of which more than 50% of the total voting power of shares
of stock or other ownership interests entitled (without regard to the occurrence
of any contingency) to vote in the election of the members of the Governing Body
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof;
provided that in no event shall any Joint Venture be considered to be a
Subsidiary of any Person.
26
"SUBSIDIARY GUARANTOR" means any Material Domestic Subsidiary
and any other Domestic Subsidiary that executes and delivers a counterpart of
the Subsidiary Guaranty on the Closing Date or from time to time thereafter
pursuant to subsection 6.7.
"SUBSIDIARY GUARANTY" means the Subsidiary Guaranty executed
and delivered by certain existing Subsidiaries of Company on the Closing Date
and to be executed and delivered by additional Subsidiaries of Company from time
to time thereafter in accordance with subsection 6.7 substantially in the form
of Exhibit XII annexed hereto, as such Subsidiary Guaranty may hereafter be
amended, supplemented or otherwise modified from time to time.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning assigned to
that term in subsection 9.1B.
"SWING LINE FUNDING AND PAYMENT OFFICE" means the office of
Swing Line Lender located at 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 or such other offices of Swing Line Lender as may from time to
time be hereafter designated as such in a written notice delivered by Swing Line
Lender to Company and each other Lender.
"SWING LINE LENDER" means Xxxxx Fargo or any Person serving as
a successor Swing Line Lender hereunder.
"SWING LINE LOAN COMMITMENT" means the commitment of Swing
Line Lender to make Swing Line Loans to Company pursuant to subsection 2.1A(iv).
"SWING LINE LOANS" means the Loans made by Swing Line Lender
to Company pursuant to subsection 2.1A(iv).
"SWING LINE NOTE" means any promissory note of Company issued
pursuant to subsection 2.1E to evidence the Swing Line Loans of Swing Line
Lender, substantially in the form of Exhibit VII annexed hereto, as it may be
amended, supplemented or otherwise modified from time to time.
"SYNDICATION AGENT" has the meaning assigned to that term in
the introduction to this Agreement.
"TARGETS" means EG&G and Xxxx.
"TARGETS FISCAL YEAR" means, prior to consummation of the
Merger, the fiscal year of each of the Targets and their Subsidiaries ending on
December 31 in each calendar year.
"TAX" or "TAXES" means any present or future tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied, collected,
withheld or assessed, including interest, penalties, additions to tax and any
similar liabilities with respect thereto; except that, in the case of a Lender,
there shall be excluded (i) taxes that are imposed on the overall net income or
net profits (including franchise taxes imposed in lieu thereof) (a) by the
United States, (b) by any other Government Authority under the laws of which
such Lender is organized or has its principal office or maintains its applicable
lending office, or (c) by any jurisdiction solely as a
27
result of a present or former connection between such Lender and such
jurisdiction (other than any such connection arising solely from such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, any of the Loan Documents), and (ii) any branch profits
taxes imposed by the United States or any similar tax imposed by any other
jurisdiction in which such Lender is located.
"TERM LOANS" means, collectively, the Tranche A Term Loans and
the Tranche B Term Loans.
"TOTAL UTILIZATION OF REVOLVING LOAN COMMITMENTS" means, as at
any date of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans plus (ii) the aggregate principal amount of all
outstanding Swing Line Loans plus (iii) the Letter of Credit Usage.
"TRANCHE A TERM LOAN COMMITMENT" means the commitment of a
Lender to make a Tranche A Term Loan to Company pursuant to subsection 2.1A(i),
and "TRANCHE A TERM LOAN COMMITMENTS" means such commitments of all Lenders in
the aggregate.
"TRANCHE A TERM LOAN EXPOSURE" means, with respect to any
Lender as of any date of determination (i) prior to the funding of the Tranche A
Term Loans, that Lender's Tranche A Term Loan Commitment and (ii) after the
funding of the Tranche A Term Loans, the outstanding principal amount of the
Tranche A Term Loan of that Lender.
"TRANCHE A TERM LOAN MATURITY DATE" means August 22, 2007.
"TRANCHE A TERM LOANS" means the Loans made by Lenders to
Company pursuant to subsection 2.1A(i).
"TRANCHE A TERM NOTES" means (i) any promissory notes of
Company issued pursuant to subsection 2.1E on the Closing Date and (ii) any
promissory notes issued by Company pursuant to the next to last sentence of
subsection 10.1B(i) in connection with assignments of the Tranche A Term Loan
Commitments or Tranche A Term Loans of any Lenders, in each case substantially
in the form of Exhibit V annexed hereto, as they may be amended, supplemented or
otherwise modified from time to time.
"TRANCHE B TERM LOAN COMMITMENT" means the commitment of a
Lender to make a Tranche B Term Loan to Company pursuant to subsection 2.1A(ii),
and "TRANCHE B TERM LOAN COMMITMENTS" means such commitments of all Lenders in
the aggregate.
"TRANCHE B TERM LOAN EXPOSURE" means, with respect to any
Lender as of any date of determination (i) prior to the funding of the Tranche B
Term Loans, that Lender's Tranche B Term Loan Commitment and (ii) after the
funding of the Tranche B Term Loans, the outstanding principal amount of the
Tranche B Term Loan of that Lender.
"TRANCHE B TERM LOAN MATURITY DATE" means August 22, 2008.
"TRANCHE B TERM LOANS" means the Loans made by Lenders to
Company pursuant to subsection 2.1A(ii).
28
"TRANCHE B TERM NOTES" means (i) any promissory notes of
Company issued pursuant to subsection 2.1E on the Closing Date and (ii) any
promissory notes issued by Company pursuant to the next to last sentence of
subsection 10.1B(i) in connection with assignments of the Tranche B Term Loan
Commitments or Tranche B Term Loans of any Lenders, in each case substantially
in the form of Exhibit VI annexed hereto, as they may be amended, supplemented
or otherwise modified from time to time.
"TRANSACTION COSTS" means the fees, costs and expenses payable
by Company on or before the Closing Date in connection with the transactions
contemplated by the Loan Documents and the Related Agreements.
"UCC" means the Uniform Commercial Code (or any similar or
equivalent legislation) as in effect in any applicable jurisdiction.
"VOTING SECURITIES" means, with respect to any Person, the
combined voting power of all of the Securities of such Person (or Securities
convertible into the Securities of such Person) entitled to vote in the election
of directors, other than Securities having such power only by virtue of the
happening of a contingency.
"XXXXX FARGO" has the meaning assigned to that term in the
introduction to this Agreement.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS UNDER
AGREEMENT.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Company to Lenders pursuant to clauses (i), (ii) and
(xii) of subsection 6.1 shall be prepared in accordance with GAAP as in effect
at the time of such preparation (and delivered together with the reconciliation
statements provided for in subsection 6.1(iv)). Calculations in connection with
the definitions, covenants and other provisions of this Agreement shall utilize
GAAP as in effect on the date of determination, applied in a manner consistent
with that used in preparing the financial statements referred to in subsection
5.3. If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and Company,
Administrative Agent or Requisite Lenders shall so request, Administrative
Agent, Lenders and Company shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of Requisite Lenders), provided that, until so
amended, such ratio or requirement shall continue to be computed in accordance
with GAAP prior to such change therein and Company shall provide to
Administrative Agent and Lenders reconciliation statements provided for in
subsection 6.1(iv).
1.3 OTHER DEFINITIONAL PROVISIONS AND RULES OF CONSTRUCTION.
A. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference.
29
B. References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided.
C. The use herein of the word "include" or "including", when following
any general statement, term or matter, shall not be construed to limit such
statement, term or matter to the specific items or matters set forth immediately
following such word or to similar items or matters, whether or not nonlimiting
language (such as "without limitation" or "but not limited to" or words of
similar import) is used with reference thereto, but rather shall be deemed to
refer to all other items or matters that fall within the broadest possible scope
of such general statement, term or matter.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; MAKING OF LOANS; THE REGISTER; OPTIONAL NOTES.
A. COMMITMENTS. Subject to the terms and conditions of this Agreement
and in reliance upon the representations and warranties of Company herein set
forth, each Lender hereby severally agrees to make the Loans described in
subsections 2.1A(i), 2.1A(ii) and 2.1A(iii) and Swing Line Lender hereby agrees
to make the Swing Line Loans described in subsection 2.1A(iv).
(i) Tranche A Term Loans. Each Lender that has a Tranche A
Term Loan Commitment severally agrees to lend to Company on the Closing
Date an amount not exceeding its Pro Rata Share of the aggregate amount
of the Tranche A Term Loan Commitments to be used for the purposes
identified in subsection 2.5A. The amount of each Lender's Tranche A
Term Loan Commitment is set forth opposite its name on Schedule 2.1
annexed hereto and the aggregate amount of the Tranche A Term Loan
Commitments is $125,000,000; provided that the Tranche A Term Loan
Commitments of Lenders shall be adjusted to give effect to any
assignments of the Tranche A Term Loan Commitments pursuant to
subsection 10.1B. Company may make only one borrowing under the Tranche
A Term Loan Commitments. Amounts borrowed under this subsection 2.1A(i)
and subsequently repaid or prepaid may not be reborrowed.
(ii) Tranche B Term Loans. Each Lender that has a Tranche B
Term Loan Commitment severally agrees to lend to Company on the Closing
Date an amount not exceeding its Pro Rata Share of the aggregate amount
of the Tranche B Term Loan Commitments to be used for the purposes
identified in subsection 2.5A. The amount of each Lender's Tranche B
Term Loan Commitment is set forth opposite its name on Schedule 2.1
annexed hereto and the aggregate amount of the Tranche B Term Loan
Commitments is $350,000,000; provided that the Tranche B Term Loan
Commitments of Lenders shall be adjusted to give effect to any
assignments of the Tranche B Term Loan Commitments pursuant to
subsection 10.1B. Company may make only one borrowing under the Tranche
B Term Loan Commitments. Amounts borrowed under this subsection
2.1A(ii) and subsequently repaid or prepaid may not be reborrowed.
(iii) Revolving Loans. Each Revolving Lender severally agrees,
subject to the limitations set forth below with respect to the maximum
amount of Revolving Loans
30
permitted to be outstanding from time to time, to lend to Company from
time to time during the period from the Closing Date to but excluding
the Revolving Loan Commitment Termination Date an aggregate amount not
exceeding its Pro Rata Share of the aggregate amount of the Revolving
Loan Commitments to be used for the purposes identified in subsection
2.5C. The original amount of each Revolving Lender's Revolving Loan
Commitment is set forth opposite its name on Schedule 2.1 annexed
hereto and the aggregate original amount of the Revolving Loan
Commitments is $200,000,000; provided that the Revolving Loan
Commitments of Revolving Lenders shall be adjusted to give effect to
any assignments of the Revolving Loan Commitments pursuant to
subsection 10.1B. Each Revolving Lender's Revolving Loan Commitment
shall expire on the Revolving Loan Commitment Termination Date and all
Revolving Loans and all other amounts owed hereunder with respect to
the Revolving Loans and the Revolving Loan Commitments shall be paid in
full no later than that date. Amounts borrowed under this subsection
2.1A(iii) may be repaid and reborrowed to but excluding the Revolving
Loan Commitment Termination Date. Anything contained in this Agreement
to the contrary notwithstanding, the Revolving Loans and the Revolving
Loan Commitments shall be subject to the limitation that in no event
shall the Total Utilization of Revolving Loan Commitments at any time
exceed the Revolving Loan Commitments then in effect.
(iv) Swing Line Loans.
(a) General Provisions. Swing Line Lender hereby agrees,
subject to the limitations set forth below with respect to the maximum
amount of Swing Line Loans permitted to be outstanding from time to
time, to make a portion of the Revolving Loan Commitments available to
Company from time to time during the period from the Closing Date to
but excluding the Revolving Loan Commitment Termination Date by making
Swing Line Loans to Company in an aggregate amount not exceeding the
amount of the Swing Line Loan Commitment to be used for the purposes
identified in subsection 2.5B, notwithstanding the fact that such Swing
Line Loans, when aggregated with Swing Line Lender's outstanding
Revolving Loans and Swing Line Lender's Pro Rata Share of the Letter of
Credit Usage then in effect, may exceed Swing Line Lender's Revolving
Loan Commitment. The original amount of the Swing Line Loan Commitment
is $20,000,000; provided that any reduction of the Revolving Loan
Commitments made pursuant to subsection 2.4B(ii) that reduces the
aggregate Revolving Loan Commitments to an amount less than the then
current amount of the Swing Line Loan Commitment shall result in an
automatic corresponding reduction of the Swing Line Loan Commitment to
the amount of the Revolving Loan Commitments, as so reduced, without
any further action on the part of Company, Administrative Agent or
Swing Line Lender. The Swing Line Loan Commitment shall expire on the
Revolving Loan Commitment Termination Date and all Swing Line Loans and
all other amounts owed hereunder with respect to the Swing Line Loans
shall be paid in full no later than that date. Amounts borrowed under
this subsection 2.1A(iv) may be repaid and reborrowed to but excluding
the Revolving Loan Commitment Termination Date.
(b) Swing Line Loan Prepayment with Proceeds of Revolving
Loans. With respect to any Swing Line Loans that have not been
voluntarily prepaid by Company
31
pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in
its sole and absolute discretion, deliver to Administrative Agent (with
a copy to Company), no later than 10:00 A.M. (New York City time) on
the first Business Day in advance of the proposed Funding Date, a
notice (which shall be deemed to be a Notice of Borrowing given by
Company) requesting Revolving Lenders to make Revolving Loans that are
Base Rate Loans on such Funding Date in an amount equal to the amount
of such Swing Line Loans (the "REFUNDED SWING LINE LOANS") outstanding
on the date such notice is given. Company hereby authorizes the giving
of any such notice and the making of any such Revolving Loans. Anything
contained in this Agreement to the contrary notwithstanding, (1) the
proceeds of such Revolving Loans made by Revolving Lenders other than
Swing Line Lender shall be immediately delivered by Administrative
Agent to Swing Line Lender (and not to Company) and applied to repay a
corresponding portion of the Refunded Swing Line Loans and (2) on the
day such Revolving Loans are made, Swing Line Lender's Pro Rata Share
of the Refunded Swing Line Loans shall be deemed to be paid with the
proceeds of a Revolving Loan made by Swing Line Lender, and such
portion of the Swing Line Loans deemed to be so paid shall no longer be
outstanding as Swing Line Loans and shall no longer be due under the
Swing Line Note, if any, of Swing Line Lender but shall instead
constitute part of Swing Line Lender's outstanding Revolving Loans and
shall be due under the Revolving Note, if any, of Swing Line Lender. If
any portion of any such amount paid (or deemed to be paid) to Swing
Line Lender should be recovered by or on behalf of Company from Swing
Line Lender in any bankruptcy proceeding, in any assignment for the
benefit of creditors or otherwise, the loss of the amount so recovered
shall be ratably shared among all Lenders in the manner contemplated by
subsection 10.5.
(c) Swing Line Loan Assignments. If for any reason (1)
Revolving Loans are not made upon the request of Swing Line Lender as
provided in the immediately preceding paragraph in an amount sufficient
to repay any amounts owed to Swing Line Lender in respect of any
outstanding Swing Line Loans or (2) the Revolving Loan Commitments are
terminated at a time when any Swing Line Loans are outstanding, each
Revolving Lender shall be deemed to, and hereby agrees to, have
purchased an assignment of such outstanding Swing Line Loans in an
amount equal to its Pro Rata Share (calculated, in the case of the
foregoing clause (2), immediately prior to such termination of the
Revolving Loan Commitments) of the unpaid amount of such Swing Line
Loans together with accrued interest thereon. Upon one Business Day's
notice from Swing Line Lender, each Revolving Lender shall deliver to
Swing Line Lender an amount equal to its respective assignment in same
day funds at the Funding and Payment Office. In order to further
evidence such assignment (and without prejudice to the effectiveness of
the assignment provisions set forth above), each Revolving Lender
agrees to enter into an Assignment Agreement at the request of Swing
Line Lender in form and substance reasonably satisfactory to Swing Line
Lender. In the event any Revolving Lender fails to make available to
Swing Line Lender the amount of such Revolving Lender's assignment as
provided in this paragraph, Swing Line Lender shall be entitled to
recover such amount on demand from such Revolving Lender together with
interest thereon at the rate customarily used by Swing Line Lender for
the correction of errors among banks for three Business Days and
thereafter at the Base Rate. In the event Swing Line Lender receives a
payment of any amount in which other Revolving Lenders
32
have purchased assignments as provided in this paragraph, Swing Line
Lender shall promptly distribute to each such other Revolving Lender
its Pro Rata Share of such payment.
(d) Revolving Lenders' Obligations. Anything contained herein
to the contrary notwithstanding, each Revolving Lender's obligation to
make Revolving Loans for the purpose of repaying any Refunded Swing
Line Loans pursuant to subsection 2.1A(iv)(b) and each Revolving
Lender's obligation to purchase an assignment of any unpaid Swing Line
Loans pursuant to the immediately preceding paragraph shall be absolute
and unconditional and shall not be affected by any circumstance,
including (1) any set-off, counterclaim, recoupment, defense or other
right which such Revolving Lender may have against Swing Line Lender,
Company or any other Person for any reason whatsoever; (2) the
occurrence or continuation of an Event of Default or a Potential Event
of Default; (3) the occurrence of any Material Adverse Effect; (d) any
breach of this Agreement or any other Loan Document by any party
thereto; or (e) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; provided that such
obligations of each Revolving Lender are subject to the condition that
(y) Swing Line Lender believed in good faith that all conditions under
Section 4 to the making of the applicable Refunded Swing Line Loans or
other unpaid Swing Line Loans, as the case may be, were satisfied at
the time such Refunded Swing Line Loans or unpaid Swing Line Loans were
made or (z) the satisfaction of any such condition not satisfied had
been waived in accordance with subsection 10.6 prior to or at the time
such Refunded Swing Line Loans or other unpaid Swing Line Loans were
made.
(e) Accounts Maintained with Swing Line Lender. So long as
Xxxxx Fargo is Swing Line Lender, if at any time the amounts to be
drawn on that certain concentration account number 4520105693 of
Company maintained with Swing Line Lender shall exceed the funds
deposited in such account, (1) Company shall be deemed to have
delivered a timely executed Notice of Borrowing to Swing Line Lender
requesting Swing Line Lender to make a Swing Line Loan in an amount
equal to the amount of such shortfall, and (2) Swing Line Lender shall
make a Swing Line Loan to Company in the amount of such shortfall, the
proceeds of which shall be deposited into such account and shall be
deemed to have been applied to eliminate such shortfall prior to such
draws being made; provided that so long as any Swing Line Loans are
outstanding pursuant to this subsection, all funds on deposit in such
account shall be applied on a daily basis to the prepayment of the then
aggregate outstanding principal amount of such Swing Line Loans until
such Swing Line Loans have been prepaid in full.
B. BORROWING MECHANICS. Term Loans or Revolving Loans made on any
Funding Date (other than Revolving Loans made pursuant to a request by Swing
Line Lender pursuant to subsection 2.1A(iv) or Revolving Loans made pursuant to
subsection 3.3B) shall be in an aggregate minimum amount of $5,000,000 and
multiples of $1,000,000 in excess of that amount; provided that Term Loans made
on any Funding Date as Eurodollar Rate Loans with a particular Interest Period
shall be in an aggregate minimum amount equal to or in excess of $5,000,000.
Swing Line Loans made on any Funding Date may be in any aggregate amount.
Whenever Company desires that Lenders make Term Loans or Revolving Loans it
shall deliver to Administrative Agent a duly executed Notice of Borrowing no
later than 2:00 P.M. (New York
33
City time) at least (i) three Business Days in advance of the proposed Funding
Date (in the case of a Eurodollar Rate Loan); or (ii) one Business Day in
advance of the proposed Funding Date (in the case of a Base Rate Loan). Whenever
Company desires that Swing Line Lender make a Swing Line Loan (other than
pursuant to subsection 2.1A(iv)(e)), it shall deliver to Swing Line Lender at
the Swing Line Funding and Payment Office a duly executed Notice of Borrowing no
later than 2:00 P.M. (New York City time) on the proposed Funding Date. Term
Loans and Revolving Loans may be continued as or converted into Base Rate Loans
and Eurodollar Rate Loans in the manner provided in subsection 2.2D. In lieu of
delivering a Notice of Borrowing, Company may give Administrative Agent (or in
the case of Swing Line Loans, Swing Line Lender) telephonic notice by the
required time of any proposed borrowing under this subsection 2.1B; provided
that such notice shall be promptly confirmed in writing by delivery of a duly
executed Notice of Borrowing to Administrative Agent (and Swing Line Lender, in
the case of Swing Line Loans) on or before the applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur any
liability to Company in acting upon any telephonic notice referred to above that
Administrative Agent (or Swing Line Lender, as applicable) believes in good
faith to have been given by an Officer or other person authorized to borrow on
behalf of Company or for otherwise acting in good faith under this subsection
2.1B or under subsection 2.2D, and upon funding of Loans by Lenders, and upon
conversion or continuation of the applicable basis for determining the interest
rate with respect to any Loans pursuant to subsection 2.2D, in each case in
accordance with this Agreement, pursuant to any such telephonic notice Company
shall have effected Loans hereunder.
Company shall notify Administrative Agent (or, in the case of
Swing Line Loans, Swing Line Lender) prior to the funding of any Loans in the
event that any of the matters to which Company is required to certify in the
applicable Notice of Borrowing is no longer true and correct in all material
respects as of the applicable Funding Date, and the acceptance by Company of the
proceeds of any Loans shall constitute a re-certification by Company, as of the
applicable Funding Date, as to the matters to which Company is required to
certify in the applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and
2.6G, a Notice of Borrowing for, or a Notice of Conversion/Continuation for
conversion to, or continuation of, a Eurodollar Rate Loan (or telephonic notice
in lieu thereof) shall be irrevocable and Company shall be bound to make a
borrowing or to effect a conversion or continuation in accordance therewith.
C. DISBURSEMENT OF FUNDS. All Term Loans and Revolving Loans shall be
made by Lenders simultaneously and proportionately to their respective Pro Rata
Shares, it being understood that neither Administrative Agent nor any Lender
shall be responsible for any default by any other Lender in that other Lender's
obligation to make a Loan requested hereunder nor shall the Commitment of any
Lender to make the particular type of Loan requested or Pro Rata Share of any
Lender be increased or decreased as a result of a default by any other Lender in
that other Lender's obligation to make a Loan requested hereunder. Promptly
after receipt by Administrative Agent of a Notice of Borrowing pursuant to
subsection 2.1B (or telephonic notice in lieu thereof), Administrative Agent
shall notify each Lender for that type of Loan of the proposed borrowing. Each
such Lender shall make the amount of its Loan available to
34
Administrative Agent at the Funding and Payment Office not later than 12:00 Noon
(New York City time) on the applicable Funding Date in same day funds in
Dollars. Except as provided in subsection 2.1A(iv) and subsection 3.3B with
respect to Revolving Loans used to repay Refunded Swing Line Loans or to
reimburse an Issuing Lender for the amount of a drawing under a Letter of Credit
issued by it, upon satisfaction or waiver of the conditions precedent specified
in subsection 4.1 (in the case of Loans made on the Closing Date) and 4.2 (in
the case of all Loans), Administrative Agent shall make the proceeds of such
Loans available to Company on the applicable Funding Date by causing an amount
of same day funds in Dollars equal to the proceeds of all such Loans received by
Administrative Agent from Lenders to be credited to the account designated by
Company in the applicable Notice of Borrowing.
Promptly after receipt by Swing Line Lender of a Notice of
Borrowing pursuant to subsection 2.1B (or telephonic notice in lieu thereof),
Swing Line Lender shall make the amount of its Swing Line Loan available to
Company not later than 2:00 P.M. (New York City time) on the applicable Funding
Date, in each case in same day funds in Dollars, at the Swing Line Funding and
Payment Office. Except as set forth in subsection 2.1A(iv)(e), Swing Line Lender
shall make the proceeds of any Swing Line Loan available to Company on the
applicable Funding Date by causing an amount of same day funds, in Dollars,
equal to the proceeds of such Swing Line Loan to be credited to the account
designated by Company in the applicable Notice of Borrowing.
Unless Administrative Agent shall have been notified by any
Lender prior to a Funding Date for any Loans that such Lender does not intend to
make available to Administrative Agent the amount of such Lender's Loan
requested on such Funding Date, Administrative Agent may assume that such Lender
has made such amount available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to Company a corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest thereon,
for each day from such Funding Date until the date such amount is paid to
Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three Business Days and thereafter at the
Base Rate. If such Lender does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent shall promptly
notify Company and Company shall immediately pay such corresponding amount to
Administrative Agent together with interest thereon, for each day from such
Funding Date until the date such amount is paid to Administrative Agent, at the
rate payable under this Agreement for Base Rate Loans. Nothing in this
subsection 2.1C shall be deemed to relieve any Lender from its obligation to
fulfill its Commitments hereunder or to prejudice any rights that Company may
have against any Lender as a result of any default by such Lender hereunder.
D. THE REGISTER. Administrative Agent, acting for these purposes solely
as an agent of Company (it being acknowledged that Administrative Agent, in such
capacity, and its officers, directors, employees, agent and affiliates shall
constitute Indemnitees under subsection 10.3), shall maintain (and make
available for inspection by Company upon reasonable prior notice at reasonable
times) at its address referred to in subsection 10.8 a register for the
recordation of, and shall record, the names and addresses of Lenders and the
Tranche A Term Loan
35
Commitment, Tranche B Term Loan Commitment, Revolving Loan Commitment, Swing
Line Loan Commitment, Tranche A Term Loan, Tranche B Term Loan, Revolving Loans
and Swing Line Loans of each Lender from time to time (the "REGISTER"). Swing
Line Lender shall provide Administrative Agent (and make available for
inspection by Company upon reasonable prior notice at reasonable times) a copy
of its register of Swing Line Loans from time to time upon Administrative
Agent's reasonable request. Company, Administrative Agent and Lenders shall deem
and treat the Persons listed as Lenders in the Register as the holders and
owners of the corresponding Commitments and Loans listed therein for all
purposes hereof; all amounts owed with respect to any Commitment or Loan shall
be owed to the Lender listed in the Register as the owner thereof; and any
request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is listed in the Register as a
Lender shall be conclusive and binding on any subsequent holder, assignee or
transferee of the corresponding Commitments or Loans. Each Lender shall record
on its internal records the amount of its Loans and Commitments and each payment
in respect hereof, and any such recordation shall be conclusive and binding on
Company, absent manifest error, subject to the entries in the Register, which
shall, absent manifest error, govern in the event of any inconsistency with any
Lender's records. Failure to make any recordation in the Register or in any
Lender's records, or any error in such recordation, shall not affect any Loans
or Commitments or any Obligations in respect of any Loans.
E. OPTIONAL NOTES. If so requested by any Lender by written notice to
Company at least two Business Days prior to the Closing Date or at any time
thereafter, Company shall execute and deliver to such Lender (and/or, if
applicable and if so specified in such notice, to any Person who is an assignee
of such Lender pursuant to subsection 10.1) on the Closing Date (or, if such
notice is delivered after the Closing Date, promptly after Company's receipt of
such notice) a promissory note or promissory notes to evidence such Lender's
Tranche A Term Loan, Tranche B Term Loan, Revolving Loans or Swing Line Loans,
substantially in the form of Exhibit IV, Exhibit V, Exhibit VI or Exhibit VII
annexed hereto, respectively, with appropriate insertions.
2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of subsections 2.6 and
2.7, each Term Loan and each Revolving Loan shall bear interest on the unpaid
principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Base Rate or
the Eurodollar Rate. Subject to the provisions of subsection 2.7, each Swing
Line Loan shall bear interest on the unpaid principal amount thereof from the
date made through maturity (whether by acceleration or otherwise) at a rate
determined by reference to the Base Rate. The applicable basis for determining
the rate of interest with respect to any Term Loan or any Revolving Loan shall
be selected by Company initially at the time a Notice of Borrowing is given with
respect to such Loan pursuant to subsection 2.1B, and the basis for determining
the interest rate with respect to any Term Loan or any Revolving Loan may be
changed from time to time pursuant to subsection 2.2D. If on any day a Term Loan
or Revolving Loan is outstanding with respect to which notice has not been
delivered to Administrative Agent in accordance with the terms of this Agreement
specifying the applicable basis for determining the rate of interest, then for
that day that Loan shall bear interest determined by reference to the Base Rate.
36
(i) Subject to the provisions of subsections 2.2E, 2.2G and
2.7, the Tranche A Term Loans and the Revolving Loans shall bear
interest through maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base
Rate plus the Base Rate Margin set forth in the table below
opposite the Consolidated Leverage Ratio for the four Fiscal
Quarter period for which the applicable Pricing Certificate
has been delivered pursuant to subsection 6.1(iii); or
(b) if a Eurodollar Rate Loan, then at the sum of the
Eurodollar Rate plus the Eurodollar Rate Margin set forth in
the table below opposite the Consolidated Leverage Ratio for
the four Fiscal Quarter period for which the applicable
Pricing Certificate has been delivered pursuant to subsection
6.1(iii):
Consolidated Eurodollar Rate Base
Leverage Ratio Margin Rate Margin
-------------- ------ -----------
Greater than
Or equal to 3.00:1.00 3.00% 2.00%
Greater than or equal to but 2.50:1.00
less than 3.00:1.00 2.75% 1.75%
Greater than or equal to but 2.00:1.00
less than 2.50:1.00 2.50% 1.50%
Less than 2.00:1.00 2.25% 1.25%
provided that, until the delivery of the Pricing Certificate for the Fiscal
Quarter ending January 31, 2003, the applicable margin for Tranche A Term Loans
and Revolving Loans that are Eurodollar Rate Loans shall be 3.00% per annum and
for Tranche A Term Loans and Revolving Loans that are Base Rate Loans shall be
2.00% per annum.
(ii) Subject to the provisions of subsections 2.2E, 2.2G and
2.7, the Tranche B Term Loans shall bear interest through maturity as
follows:
(a) if a Base Rate Loan, then at the sum of the Base
Rate plus the Base Rate Margin set forth in the table below
opposite the Consolidated Leverage Ratio for the four-Fiscal
Quarter period for which the applicable Pricing Certificate
has been delivered pursuant to subsection 6.1(iii); or
(b) if a Eurodollar Rate Loan, then at the sum of the
Eurodollar Rate plus the Eurodollar Rate Margin set forth in
the table below opposite the Consolidated Leverage Ratio for
the four-Fiscal Quarter period for which the applicable
Pricing Certificate has been delivered pursuant to subsection
6.1(iii):
37
Consolidated Eurodollar Rate Base
Leverage Ratio Margin Rate Margin
-------------- ------ -----------
Greater than
or equal to 2.75:1.00 3.50% 2.50%
Less than 2.75:1.00 3.25% 2.25%
provided that, until the delivery of the Pricing Certificate for the
Fiscal Quarter ending January 31, 2003, the applicable margin for
Tranche B Term Loans that are Eurodollar Rate Loans shall be 3.50% per
annum and for Tranche B Term Loans that are Base Rate Loans shall be
2.50% per annum.
(iii) Upon delivery of the Pricing Certificate by Company to
Administrative Agent pursuant to subsection 6.1(iii), the Base Rate
Margin and the Eurodollar Rate Margin shall automatically be adjusted
in accordance with such Pricing Certificate, such adjustment to become
effective on the next succeeding Business Day following the receipt by
Administrative Agent of such Pricing Certificate (subject to the
provisions of the foregoing clauses (i) and (ii)); provided that, if at
any time a Pricing Certificate is not delivered at the time required
pursuant to subsection 6.1(iii), from the time such Pricing Certificate
was required to be delivered until delivery of such Pricing
Certificate, the applicable margins shall be the maximum percentage
amount for the relevant Loan set forth above.
(iv) Subject to the provisions of subsections 2.2E, 2.2G and
2.7, the Swing Line Loans shall bear interest through maturity at the
sum of the Base Rate plus the applicable Base Rate Margin for Revolving
Loans minus the Commitment Fee Percentage.
B. INTEREST PERIODS. In connection with each Eurodollar Rate Loan,
Company may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"INTEREST PERIOD") to be applicable to such Loan, which Interest Period shall
be, at Company's sole option, either a one, two, three, six or, if deposits in
the interbank Eurodollar market are generally available for such period (as
determined by each Lender making, converting to or continuing such Eurodollar
Rate Loan), twelve-month period; provided that:
(i) the initial Interest Period for any Eurodollar Rate Loan
shall commence on the Funding Date in respect of such Loan, in the case
of a Loan initially made as a Eurodollar Rate Loan or on the date
specified in the applicable Notice of Conversion/Continuation, in the
case of a Loan converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods
applicable to a Eurodollar Rate Loan continued as such pursuant to a
Notice of Conversion/Continuation, each successive Interest Period
shall commence on the day on which the next preceding Interest Period
expires;
38
(iii) if an Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided that, if any Interest Period
would otherwise expire on a day that is not a Business Day but is a day
of the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (v) of this subsection 2.2B, end on
the last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the
Tranche A Term Loans shall extend beyond the Tranche A Term Loan
Maturity Date, no Interest Period with respect to any portion of the
Tranche B Term Loans shall extend beyond the Tranche B Term Loan
Maturity Date and no Interest Period with respect to any portion of the
Revolving Loans shall extend beyond the Revolving Loan Commitment
Termination Date;
(vi) no Interest Period with respect to any type of Term Loans
shall extend beyond a date on which Company is required to make a
scheduled payment of principal of such type of Term Loans unless the
sum of (a) the aggregate principal amount of such type of Term Loans
that are Base Rate Loans plus (b) the aggregate principal amount of
such type of Term Loans that are Eurodollar Rate Loans with Interest
Periods expiring on or before such date equals or exceeds the principal
amount required to be paid on such type of Term Loans on such date;
(vii) there shall be no more than ten Interest Periods
outstanding at any time; and
(viii) in the event Company fails to specify an Interest
Period for any Eurodollar Rate Loan in the applicable Notice of
Borrowing or Notice of Conversion/Continuation, Company shall be deemed
to have selected an Interest Period of one month.
C. INTEREST PAYMENTS. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid), upon any conversion of a Loan from
a Loan bearing interest at a rate determined by reference to one basis to a Loan
bearing interest at a rate determined by reference to an alternative basis and
at maturity (including final maturity); provided that in the event any Swing
Line Loans or any Revolving Loans that are Base Rate Loans are prepaid pursuant
to subsection 2.4B(i), interest accrued on such Loans through the date of such
prepayment shall be payable on the next succeeding Interest Payment Date
applicable to Base Rate Loans (or, if earlier, at final maturity).
D. CONVERSION OR CONTINUATION. Subject to the provisions of subsection
2.6, Company shall have the option (i) to convert at any time all or any part of
its outstanding Tranche A Term Loans or Tranche B Term Loans equal to or in
excess of $5,000,000 or all or any part of its outstanding Revolving Loans equal
to $5,000,000 and multiples of $1,000,000 in excess of that
39
amount from Loans bearing interest at a rate determined by reference to one
basis to Loans bearing interest at a rate determined by reference to an
alternative basis or (ii) upon the expiration of any Interest Period applicable
to a Eurodollar Rate Loan that is a Tranche A Term Loan or Tranche B Term Loan,
to continue all or any portion of such Loan equal to or in excess of $5,000,000
as a Eurodollar Rate Loan or upon the expiration of any Interest Period
applicable to a Eurodollar Rate Loan that is a Revolving Loan, to continue all
or any portion of such Loan equal to $5,000,000 and multiples of $1,000,000 in
excess of that amount as a Eurodollar Rate Loan; provided, however, that a
Eurodollar Rate Loan may only be converted into a Base Rate Loan on the
expiration date of an Interest Period applicable thereto.
Company shall deliver a duly executed Notice of Conversion/Continuation
to Administrative Agent no later than 2:00 P.M. (New York City time) at least
(i) one Business Day in advance of the proposed conversion date (in the case of
a conversion to a Base Rate Loan) or (ii) three Business Days in advance of the
proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan). In lieu of delivering a Notice of
Conversion/Continuation, Company may give Administrative Agent telephonic notice
by the required time of any proposed conversion/continuation under this
subsection 2.2D; provided that such notice shall be promptly confirmed in
writing by delivery of a duly executed Notice of Conversion/Continuation to
Administrative Agent on or before the proposed conversion/continuation date.
Upon receipt of written or telephonic notice of any proposed
conversion/continuation under this subsection 2.2D, Administrative Agent shall
promptly notify each Lender of the Loan subject to the Notice of
Conversion/Continuation.
E. DEFAULT RATE. Upon the occurrence and during the continuation of any
Event of Default, the outstanding principal amount of all Loans and, to the
extent permitted by applicable law, any interest payments thereon not paid when
due and any fees and other amounts then due and payable hereunder, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable upon
demand at a rate that is 2% per annum in excess of the interest rate otherwise
payable under this Agreement with respect to the applicable Loans (or, in the
case of any such fees and other amounts, at a rate which is 2% per annum in
excess of the interest rate otherwise payable under this Agreement for Base Rate
Loans); provided that, in the case of Eurodollar Rate Loans, upon the expiration
of the Interest Period in effect at the time any such increase in interest rate
is effective such Eurodollar Rate Loans shall thereupon become Base Rate Loans
and shall thereafter bear interest payable upon demand at a rate which is 2% per
annum in excess of the interest rate otherwise payable under this Agreement for
Base Rate Loans. Payment or acceptance of the increased rates of interest
provided for in this subsection 2.2E is not a permitted alternative to timely
payment and shall not constitute a waiver of any Event of Default or otherwise
prejudice or limit any rights or remedies of Administrative Agent or any Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans shall be computed (i)
in the case of Base Rate Loans, on the basis of a 365-day or 366-day year, as
the case may be, and (ii) in the case of Eurodollar Rate Loans, on the basis of
a 360-day year, in each case for the actual number of days elapsed in the period
during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period applicable to such
Loan or, with respect to a Base Rate Loan being converted from a Eurodollar Rate
Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate
Loan, as the case may be, shall be
40
included, and the date of payment of such Loan or the expiration date of an
Interest Period applicable to such Loan or, with respect to a Base Rate Loan
being converted to a Eurodollar Rate Loan, the date of conversion of such Base
Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded;
provided that if a Loan is repaid on the same day on which it is made, one day's
interest shall be paid on that Loan.
G. MAXIMUM RATE. Notwithstanding the foregoing provisions of this
subsection 2.2, in no event shall the rate of interest payable by Company with
respect to any Loan exceed the maximum rate of interest permitted to be charged
under applicable law.
2.3 FEES.
A. COMMITMENT FEES. Company agrees to pay to Administrative Agent, for
distribution to each Revolving Lender in proportion to that Lender's Pro Rata
Share of the Revolving Loan Commitments, commitment fees for the period from and
including the Closing Date to and excluding the Revolving Loan Commitment
Termination Date equal to the average of the daily excess of the Revolving Loan
Commitments over the sum of (i) the aggregate principal amount of outstanding
Revolving Loans (excluding any Swing Line Loans) plus (ii) the Letter of Credit
Usage multiplied by a rate per annum equal to the percentage (the "Commitment
Fee Percentage") set forth in the table below opposite the Consolidated Leverage
Ratio for the four Fiscal Quarter period for which the applicable Pricing
Certificate has been delivered pursuant to subsection 6.1(iii);
Consolidated Commitment Fee
Leverage Ratio Percentage
-------------- ----------
Greater than
or equal to 2.75:1.00 0.500%
Less than 2.75:1.00 0.375%
such commitment fees to be calculated on the basis of a 365/366-day year and the
actual number of days elapsed and to be payable quarterly in arrears on the last
Business Day of each January, April, July and October of each year, commencing
on the first such date to occur after the Closing Date, and on the Revolving
Loan Commitment Termination Date; provided that until the delivery of the
Pricing Certificate for the Fiscal Quarter ending January 31, 2003, the
applicable commitment fee percentage shall be 0.50% per annum. Upon delivery of
the Pricing Certificate by Company to Administrative Agent pursuant to
subsection 6.1(iii), the applicable commitment fee percentage shall
automatically be adjusted in accordance with such Pricing Certificate, such
adjustment to become effective on the next succeeding Business Day following the
receipt by Administrative Agent of such Pricing Certificate; provided that, if
at any time a Pricing Certificate is not delivered at the time required pursuant
to subsection 6.1(iii), from the time such Pricing Certificate was required to
be delivered until delivery of such Pricing Certificate, the applicable
commitment fee percentage shall be the maximum percentage amount set forth
above.
B. OTHER FEES. Company agrees to pay to Administrative Agent such fees
in the amounts and at the times separately agreed upon between Company and
Administrative Agent.
41
2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN COMMITMENTS;
GENERAL PROVISIONS REGARDING PAYMENTS; APPLICATION OF PROCEEDS OF COLLATERAL AND
PAYMENTS UNDER SUBSIDIARY GUARANTY.
A. SCHEDULED PAYMENTS OF TERM LOANS.
(i) Scheduled Payments of Tranche A Term Loans. Company shall
make principal payments on the Tranche A Term Loans in quarterly
installments on the dates and in the amounts set forth below:
Scheduled Repayment
Date of Tranche A Term Loans
---- -----------------------
January 31, 2003 $3,125,000
April 30, 2003 $3,125,000
July 31, 2003 $3,125,000
October 31, 2003 $3,125,000
January 31, 2004 $4,687,500
April 30, 2004 $4,687,500
July 31, 2004 $4,687,500
October 31, 2004 $4,687,500
January 31, 2005 $6,250,000
April 30, 2005 $6,250,000
July 31, 2005 $6,250,000
October 31, 2005 $6,250,000
January 31, 2006 $7,812,500
April 30, 2006 $7,812,500
July 31, 2006 $7,812,500
October 31, 2006 $7,812,500
January 31, 2007 $9,375,000
April 30, 2007 $9,375,000
July 31, 2007 $9,375,000
August 22, 2007 $9,375,000
----------
$125,000,000
============
; provided, that the scheduled installments of principal of the Tranche
A Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche A Term Loans in
accordance with subsection 2.4B(iv); and provided further, that the
Tranche A Term Loans and all other amounts owed hereunder with respect
to the Tranche A Term Loans shall be paid in full no later than the
Tranche A Term Loan Maturity Date, and the final installment payable by
Company in respect of the Tranche A Term Loans on such date shall be in
an amount, if such amount is different from that specified above,
sufficient to repay all amounts owing by Company under this Agreement
with respect to the Tranche A Term Loans.
42
(ii) Scheduled Payments of Tranche B Term Loans. Company shall
make principal payments on the Tranche B Term Loans in quarterly
installments on the dates and in the amounts set forth below:
Scheduled Repayment
Date of Tranche B Term Loans
---- -----------------------
January 31, 2003 $875,000
April 30, 2003 $875,000
July 31, 2003 $875,000
October 31, 2003 $875,000
January 31, 2004 $875,000
April 30, 2004 $875,000
July 31, 2004 $875,000
October 31, 2004 $875,000
January 31, 2005 $875,000
April 30, 2005 $875,000
July 31, 2005 $875,000
October 31, 2005 $875,000
January 31, 2006 $875,000
April 30, 2006 $875,000
July 31, 2006 $875,000
October 31, 2006 $875,000
January 31, 2007 $875,000
April 30, 2007 $875,000
July 31, 2007 $875,000
October 31, 2007 $875,000
January 31, 2008 $83,125,000
April 30, 2008 $83,125,000
July 31, 2008 $83,125,000
August 22, 2008 $83,125,000
-----------
$350,000,000
============
; provided that the scheduled installments of principal of the Tranche
B Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche B Term Loans in
accordance with subsection 2.4B(iv); and provided, further that the
Tranche B Term Loans and all other amounts owed hereunder with respect
to the Tranche B Term Loans shall be paid in full no later than the
Tranche B Term Loan Maturity Date, and the final installment payable by
Company in respect of the Tranche B Term Loans on such date shall be in
an amount, if such amount is different from that specified above,
sufficient to repay all amounts owing by Company under this Agreement
with respect to the Tranche B Term Loans.
B. PREPAYMENTS AND UNSCHEDULED REDUCTIONS IN REVOLVING LOAN
COMMITMENTS.
(i) Voluntary Prepayments. Company may at any time and from
time to time prepay any Swing Line Loan on any Business Day in whole or
in part in any aggregate
43
amount. Company may, upon not less than one Business Day's prior
written or telephonic notice, in the case of Base Rate Loans, and three
Business Days' prior written or telephonic notice, in the case of
Eurodollar Rate Loans in each case given to Administrative Agent by
2:00 P.M. (New York City time) on the date required and, if given by
telephone, promptly confirmed in writing to Administrative Agent who
will promptly notify each Lender whose Loans are to be prepaid of such
prepayment, at any time and from time to time prepay, without premium
or penalty (except as provided in subsection 2.6D), any Term Loans or
Revolving Loans on any Business Day in whole or in part in an aggregate
minimum amount of $5,000,000 and multiples of $1,000,000 in excess of
that amount. Notice of prepayment having been given as aforesaid, the
principal amount of the Loans specified in such notice shall become due
and payable on the prepayment date specified therein. Any such
voluntary prepayment shall be applied as specified in subsection
2.4B(iv).
(ii) Voluntary Reductions of Revolving Loan Commitments.
Company may, upon not less than five Business Days' prior written or
telephonic notice confirmed in writing to Administrative Agent (who
will promptly notify each Lender of such notification from Company), at
any time and from time to time terminate in whole or permanently reduce
in part, without premium or penalty, the Revolving Loan Commitments in
an amount up to the amount by which the Revolving Loan Commitments
exceed the Total Utilization of Revolving Loan Commitments at the time
of such proposed termination or reduction; provided that any such
partial reduction of the Revolving Loan Commitments shall be in an
aggregate minimum amount of $2,000,000 and multiples of $500,000 in
excess of that amount. Company's notice to Administrative Agent shall
designate the date (which shall be a Business Day) of such termination
or reduction and the amount of any partial reduction, and such
termination or reduction of the Revolving Loan Commitments shall be
effective on the date specified in Company's notice and shall reduce
the Revolving Loan Commitment of each Revolving Lender proportionately
to its Pro Rata Share. Any such voluntary reduction of the Revolving
Loan Commitments shall be applied as specified in subsection 2.4B(iv).
(iii) Mandatory Prepayments. The Loans shall be prepaid in the
amounts and under the circumstances set forth below, all such
prepayments and/or reductions to be applied as set forth below or as
more specifically provided in subsection 2.4B(iv):
(a) Prepayments from Net Asset Sale Proceeds. No
later than the date of receipt by Company or any of its
Subsidiaries of any Net Asset Sale Proceeds in respect of any
Asset Sale, Company shall either (1) prepay the Term Loans in
an aggregate amount equal to 100% of such Net Asset Sale
Proceeds; or (2), so long as no Potential Event of Default or
Event of Default shall have occurred and be continuing and to
the extent that aggregate Net Asset Sale Proceeds from any
Asset Sale or any series of related Asset Sales do not exceed
$20,000,000, deliver to Administrative Agent an Officer's
Certificate setting forth (A) that portion of such Net Asset
Sale Proceeds that Company or such Subsidiary intends to (x)
reinvest in equipment or other productive assets of the
general type used or useful in the business of, or reasonably
similar or related to the nature or type of property and
assets of, Company and its Subsidiaries or (y) invest in a
Person having
44
property or assets of a similar nature or type as, or engaged
in a similar business as, Company and its Subsidiaries within
270 days of such date of receipt and (B) the proposed use of
such portion of the Net Asset Sale Proceeds and such other
information with respect to such reinvestment as
Administrative Agent may reasonably request, and Company
shall, or shall cause one or more of its Subsidiaries to,
promptly and diligently apply such portion to such
reinvestment purposes; provided, however, that, pending such
reinvestment, such portion of the Net Asset Sale Proceeds
shall be applied to prepay outstanding Revolving Loans
(without a reduction in Revolving Loan Commitments) to the
full extent thereof. In addition, Company shall, no later than
270 days after receipt of such Net Asset Sale Proceeds that
have not theretofore been applied to the Obligations or that
have not been so reinvested as provided above, make an
additional prepayment of the Loans in the full amount of all
such Net Asset Sale Proceeds. Nothing contained in this clause
(2) shall be construed to permit any sale of assets prohibited
by subsection 7.7.
(b) Prepayments and Reductions from Net
Insurance/Condemnation Proceeds. No later than the first
Business Day following the date of receipt by Administrative
Agent or by Company or any of its Subsidiaries of any Net
Insurance/Condemnation Proceeds that are required to be
applied to prepay the Loans pursuant to the provisions of
subsection 6.4C, Company shall prepay the Term Loans in an
aggregate amount equal to the amount of such Net
Insurance/Condemnation Proceeds.
(c) Prepayments and Reductions Due to Issuance of
Equity Securities. On the date of receipt of the Net
Securities Proceeds from the issuance of any Capital Stock of
Company or any of its Subsidiaries or any capital contribution
to Company (other than (1) issuances of Capital Stock to or
capital contributions by TCG Holdings, L.L.C., Xxxxxxx X. Xxxx
& Associates, L.P. or their respective Affiliates, (2)
issuances of Capital Stock of Company to directors and
employees of Company and its Subsidiaries pursuant to a
written employee benefit plan maintained by Company or any of
its Subsidiaries, approved by Company's Governing Body and
issuances of Capital Stock of Company pursuant to the exercise
of options or warrants issued under any such plan, and (3)
issuances of Capital Stock, the Net Securities Proceeds of
which are applied by Company or its Subsidiaries to the
consideration paid by Company or such Subsidiary for a
Permitted Acquisition), Company shall prepay the Loans in an
aggregate amount equal to (A) 50% of such Net Securities
Proceeds or (B) 25% of such Net Securities Proceeds in the
event the remaining Net Securities Proceeds are applied to
redeem the Existing Subordinated Notes, the Existing Senior
Subordinated Notes or the Senior Notes as permitted by
subsections 7.5A and 7.5B and the Consolidated Leverage Ratio
as of the last day of the immediately preceding Fiscal Quarter
is less than 2.50:1.00.
(d) Prepayments and Reductions Due to Issuance of
Indebtedness. On the date of receipt of the Net Securities
Proceeds from the issuance of any Indebtedness of Company or
any of its Subsidiaries after the Closing Date (other
45
than (1) Indebtedness permitted pursuant to subsection 7.1,
and (2) issuances of Indebtedness, the Net Securities Proceeds
of which are applied by Company or its Subsidiaries to the
consideration paid by Company or such Subsidiary for a
Permitted Acquisition), Company shall prepay the Loans in an
aggregate amount equal to 100% of such Net Securities
Proceeds; provided, that such percentage shall be reduced to
50% for the Fiscal Quarter immediately following any Fiscal
Quarter during which the Consolidated Leverage Ratio as of the
last day of such Fiscal Quarter is less than 2.50:1.00.
(e) Prepayments and Reductions from Consolidated
Excess Cash Flow. In the event that there shall be
Consolidated Excess Cash Flow for any Fiscal Year (commencing
with Fiscal Year ending October 31, 2003), Company shall, no
later than 100 days after the end of such Fiscal Year, prepay
the Loans in an aggregate amount equal to 75% of such
Consolidated Excess Cash Flow; provided, that such percentage
shall be reduced to 50% for any Fiscal Year during which the
Consolidated Leverage Ratio as of the last day of such Fiscal
Year is less than 2.50:1.00.
(f) Calculations of Net Proceeds Amounts; Additional
Prepayments Based on Subsequent Calculations. Company shall
provide Administrative Agent with not less than three Business
Days' prior written notice of any prepayment of the Loans
pursuant to subsection 2.4B(iii)(a)-(e) which notice, if given
by telephone, shall be promptly confirmed in writing to
Administrative Agent. Administrative Agent shall promptly
notify each Lender of such prepayment and of the amount of the
prepayment proposed to be applied to such Lender's Loans.
Concurrently with any prepayment of the Loans pursuant to
subsections 2.4B(iii)(a)-(e), Company shall deliver to
Administrative Agent an Officer's Certificate demonstrating
the calculation of the amount of the applicable Net Asset Sale
Proceeds, Net Insurance/Condemnation Proceeds, Net Securities
Proceeds or Consolidated Excess Cash Flow, as the case may be,
that gave rise to such prepayment. In the event that Company
shall subsequently determine that the actual amount was
greater than the amount set forth in such Officer's
Certificate, Company shall promptly make an additional
prepayment of the Loans in an amount equal to the amount of
such excess, and Company shall concurrently therewith deliver
to Administrative Agent an Officer's Certificate demonstrating
the derivation of the additional amount resulting in such
excess.
(g) Prepayments Due to Reductions or Restrictions of
Revolving Loan Commitments. Company shall from time to time
prepay first the Swing Line Loans and second the Revolving
Loans to the extent necessary so that the Total Utilization of
Revolving Loan Commitments shall not at any time exceed the
Revolving Loan Commitments then in effect. For purposes of
calculating the Total Utilization of Revolving Loan
Commitments, any Letters of Credit denominated in a currency
other than Dollars shall be valued by Administrative Agent
based on the applicable Exchange Rate for such currency as of
the applicable date of determination once per calendar quarter
or at such other times as reasonably determined by
Administrative Agent.
46
(iv) Application of Prepayments.
(a) Application of Voluntary Prepayments by Type of
Loans and Order of Maturity. Any voluntary prepayments
pursuant to subsection 2.4B(i) shall be applied as specified
by Company in the applicable notice of prepayment; provided
that in the event Company fails to specify the Loans to which
any such prepayment shall be applied, such prepayment shall be
applied first, to repay outstanding Swing Line Loans to the
full extent thereof, second, to repay outstanding Revolving
Loans to the full extent thereof and third, to repay
outstanding Term Loans to the full extent thereof. Any
voluntary prepayments of the Term Loans pursuant to subsection
2.4B(i) shall be applied to prepay the Tranche A Term Loans
and the Tranche B Term Loans on a pro rata basis (in
accordance with the respective outstanding principal amounts
thereof) and to reduce the scheduled installments of principal
of the Tranche A Term Loans and Tranche B Term Loans set forth
in subsections 2.4A(i) and 2.4A(ii), respectively, in forward
chronological order with respect to installments due during
the immediately succeeding twelve months and thereafter on a
pro rata basis (in accordance with the respective outstanding
principal amounts thereof) to each remaining scheduled
installment of principal of the Tranche A Term Loans or the
Tranche B Term Loans, as the case may be, set forth in
subsection 2.4A(i) or 2.4A(ii), respectively.
(b) Application of Mandatory Prepayments by Type of
Loans. Except as provided in subsection 2.4D, any amount
required to be applied as a mandatory prepayment of the Loans
pursuant to subsections 2.4B(iii)(a)-(e) shall be applied
first, to prepay the Term Loans to the full extent thereof,
second, to the extent of any remaining portion of such amount,
to prepay the Swing Line Loans to the full extent thereof and
third, to the extent of any remaining portion of such amount,
to prepay the Revolving Loans to the full extent thereof.
(c) Application of Mandatory Prepayments of Term
Loans to Tranche A Term Loans and Tranche B Term Loans and the
Scheduled Installments of Principal Thereof. Any mandatory
prepayments of the Term Loans pursuant to subsection 2.4B(iii)
shall be applied to prepay the Tranche A Term Loans and the
Tranche B Term Loans on a pro rata basis (in accordance with
the respective outstanding principal amounts thereof) and
shall be applied to reduce the scheduled installments of
principal of the Tranche A Term Loans or the Tranche B Term
Loans, as the case may be, set forth in subsection 2.4A(i) or
2.4A(ii), respectively, on a pro rata basis (in accordance
with the respective outstanding principal amounts thereof) to
each scheduled installment of principal of the Tranche A Term
Loans or the Tranche B Term Loans, as the case may be, set
forth in subsection 2.4A(i) or 2.4A(ii), respectively, that is
unpaid at the time of such prepayment. Notwithstanding the
foregoing, in the case of any mandatory prepayment of the
Tranche B Term Loans, Administrative Agent shall notify the
Lenders of the Tranche B Term Loans of such mandatory
prepayment and each such Lender shall have the option to waive
the right to receive the amount of such mandatory prepayment
of the Tranche B Term Loans. If any Lender or Lenders
47
elect to waive the right to receive the amount of such
mandatory prepayment, 50% of the amount that otherwise would
have been applied to mandatorily prepay the Tranche B Term
Loans of such Lender or Lenders shall be applied instead to
the further prepayment of the Tranche A Term Loans to the
extent any are then outstanding.
(d) Application of Prepayments to Base Rate Loans and
Eurodollar Rate Loans. Considering Tranche A Term Loans,
Tranche B Term Loans and Revolving Loans being prepaid
separately, (1) any voluntary prepayment thereof or any
mandatory prepayment of Tranche A Term Loans or Revolving
Loans shall be applied first to Base Rate Loans to the full
extent thereof before application to Eurodollar Rate Loans, in
each case in a manner that minimizes the amount of any
payments required to be made by Company pursuant to subsection
2.6D and (2) any mandatory prepayment of Tranche B Term Loans
shall be applied to Base Rate Loans and Eurodollar Rate Loans
on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof).
C. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) Manner and Time of Payment. All payments by Company of
principal, interest, fees and other Obligations shall be made in
Dollars in same day funds, without defense, setoff or counterclaim,
free of any restriction or condition, and delivered to Administrative
Agent not later than 2:00 P.M. (New York City time) on the date due at
the Funding and Payment Office for the account of Lenders; funds
received by Administrative Agent after that time on such due date shall
be deemed to have been paid by Company on the next succeeding Business
Day.
(ii) Application of Payments to Principal and Interest. Except
as provided in subsection 2.2C, all payments in respect of the
principal amount of any Loan shall include payment of accrued interest
on the principal amount being repaid or prepaid, and all such payments
(and, in any event, any payments in respect of any Loan on a date when
interest is due and payable with respect to such Loan) shall be applied
to the payment of interest before application to principal.
(iii) Apportionment of Payments. Aggregate principal and
interest payments in respect of Term Loans and Revolving Loans shall be
apportioned among all outstanding Loans to which such payments relate,
in each case proportionately to Lenders' respective Pro Rata Shares.
Administrative Agent shall promptly distribute to each Lender, at its
primary address set forth below its name on the appropriate signature
page hereof or at such other address as such Lender may request, its
Pro Rata Share of all such payments received by Administrative Agent
and the commitment fees of such Lender, if any, when received by
Administrative Agent pursuant to subsection 2.3. Notwithstanding the
foregoing provisions of this subsection 2.4C(iii), if, pursuant to the
provisions of subsection 2.6C, any Notice of Conversion/Continuation is
withdrawn as to any Affected Lender or if any Affected Lender makes
Base Rate Loans in lieu of its Pro Rata Share of any Eurodollar Rate
Loans, Administrative Agent shall give effect thereto in apportioning
payments received thereafter.
48
(iv) Payments on Business Days. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a
Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the
computation of the payment of interest hereunder or of the commitment
fees hereunder, as the case may be.
(v) Notation of Payment. Each Lender agrees that before
disposing of any Note held by it, or any part thereof (other than by
granting participations therein), that Lender will make a notation
thereon of all Loans evidenced by that Note and all principal payments
previously made thereon and of the date to which interest thereon has
been paid; provided that the failure to make (or any error in the
making of) a notation of any Loan made under such Note shall not limit
or otherwise affect the obligations of Company hereunder or under such
Note with respect to any Loan or any payments of principal or interest
on such Note.
D. APPLICATION OF PROCEEDS OF COLLATERAL AND PAYMENTS AFTER EVENT OF
DEFAULT.
Upon the occurrence and during the continuation of an Event of
Default, if requested by Requisite Lenders or upon termination of the Revolving
Loan Commitments (a) all payments received on account of the Obligations,
whether from Company, from any Guarantor or otherwise, shall be applied by
Administrative Agent against the Obligations and (b) all proceeds received by
Administrative Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral under any Collateral Document
may, in the discretion of Administrative Agent, be held by Administrative Agent
as Collateral for, and/or (then or at any time thereafter) applied in full or in
part by Administrative Agent against, the applicable Secured Obligations (as
defined in such Collateral Document), in each case in the following order of
priority:
(i) to the payment of all costs and expenses of such sale,
collection or other realization, all other expenses, liabilities and
advances made or incurred by Administrative Agent in connection
therewith, and all amounts for which Administrative Agent is entitled
to compensation (including the fees described in subsection 2.3),
reimbursement and indemnification under any Loan Document and all
advances made by Administrative Agent thereunder for the account of the
applicable Loan Party, and to the payment of all costs and expenses
paid or incurred by Administrative Agent in connection with the Loan
Documents, all in accordance with the terms of this Agreement and the
Loan Documents;
(ii) thereafter, to the payment of all other Obligations for
the ratable benefit of the holders thereof (subject to the provisions
of subsection 2.4C(ii)) hereof); and
(iii) thereafter, to the payment to or upon the order of such
Loan Party or to whosoever may be lawfully entitled to receive the same
or as a court of competent jurisdiction may direct.
2.5 USE OF PROCEEDS.
49
A. TERM LOANS. The proceeds of the Term Loans, together with the
proceeds of the debt capitalization of Company described in subsection 4.1E,
shall be applied by Company to fund the Acquisition Financing Requirements.
B. REVOLVING LOANS; SWING LINE LOANS. The proceeds of any Revolving
Loans and any Swing Line Loans shall be applied by Company for working capital
and other general corporate purposes, which may include the making of
intercompany loans to any of Company's Subsidiaries in accordance with
subsections 7.3(ii) and 7.3(iii) for their own general corporate purposes.
C. MARGIN REGULATIONS. No portion of the proceeds of any borrowing
under this Agreement shall be used by Company or any of its Subsidiaries in any
manner that might cause the borrowing or the application of such proceeds to
violate Regulation U, Regulation T or Regulation X of the Board of Governors of
the Federal Reserve System or any other regulation of such Board or to violate
the Exchange Act, in each case as in effect on the date or dates of such
borrowing and such use of proceeds.
2.6 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS.
Notwithstanding any other provision of this Agreement to the
contrary, the following provisions shall govern with respect to Eurodollar Rate
Loans as to the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. On each Interest Rate
Determination Date, Administrative Agent shall determine in accordance with the
terms of this Agreement (which determination shall, absent manifest error, be
conclusive and binding upon all parties) the interest rate that shall apply to
the Eurodollar Rate Loans for which an interest rate is then being determined
for the applicable Interest Period and shall promptly give notice thereof (in
writing or by telephone confirmed in writing) to Company and each Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event that
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date, that by reason of circumstances affecting the London
interbank market adequate and fair means do not exist for ascertaining the
interest rate applicable to such Loans on the basis provided for in the
definition of Eurodollar Rate, Administrative Agent shall on such date give
notice (by telefacsimile or by telephone confirmed in writing) to Company and
each Lender of such determination, whereupon (i) no Loans may be made as, or
converted to, Eurodollar Rate Loans until such time as Administrative Agent
notifies Company and Lenders that the circumstances giving rise to such notice
no longer exist and (ii) any Notice of Borrowing or Notice of
Conversion/Continuation given by Company with respect to the Loans in respect of
which such determination was made shall be deemed to be for a Base Rate Loan.
C. ILLEGALITY OR IMPRACTICABILITY OF EURODOLLAR RATE LOANS. In the
event that on any date any Lender shall have determined (which determination
shall be conclusive and binding upon all parties hereto but shall be made only
after consultation with Company and Administrative Agent) that the making,
maintaining or continuation of its Eurodollar Rate Loans
50
(i) has become unlawful as a result of compliance by such Lender in good faith
with any law, treaty, governmental rule, regulation, guideline or order (or
would conflict with any such treaty, governmental rule, regulation, guideline or
order not having the force of law even though the failure to comply therewith
would not be unlawful) or (ii) has become impracticable, or would cause such
Lender material hardship, as a result of contingencies occurring after the date
of this Agreement which materially and adversely affect the London interbank
market or the position of such Lender in that market, then, and in any such
event, such Lender shall be an "AFFECTED LENDER" and it shall on that day give
notice (by telefacsimile or by telephone confirmed in writing) to Company and
Administrative Agent of such determination (Administrative Agent shall promptly
notify each Lender of the receipt of such notice). Thereafter (a) the obligation
of the Affected Lender to make Loans as, or to convert Loans to, Eurodollar Rate
Loans shall be suspended until such notice shall be withdrawn by the Affected
Lender, (b) to the extent such determination by the Affected Lender relates to a
Eurodollar Rate Loan then being requested by Company pursuant to a Notice of
Borrowing or a Notice of Conversion/ Continuation, the Affected Lender shall
make such Loan as (or convert such Loan to, as the case may be) a Base Rate
Loan, (c) the Affected Lender's obligation to maintain its outstanding
Eurodollar Rate Loans (the "AFFECTED LOANS") shall be terminated at the earlier
to occur of the expiration of the Interest Period then in effect with respect to
the Affected Loans or when required by law, and (d) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such termination.
Notwithstanding the foregoing, to the extent a determination by an Affected
Lender as described above relates to a Eurodollar Rate Loan then being requested
by Company pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, Company shall have the option, subject to the
provisions of subsection 2.6D, to rescind such Notice of Borrowing or Notice of
Conversion/Continuation as to all Lenders by giving notice (by telefacsimile or
by telephone confirmed in writing) to Administrative Agent of such rescission on
the date on which the Affected Lender gives notice of its determination as
described above (Administrative Agent shall promptly notify each other Lender of
the receipt of such notice of rescission). Except as provided in the immediately
preceding sentence, nothing in this subsection 2.6C shall affect the obligation
of any Lender other than an Affected Lender to make or maintain Loans as, or to
convert Loans to, Eurodollar Rate Loans in accordance with the terms of this
Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST PERIODS.
Company shall compensate each Lender, upon written request by that Lender
pursuant to subsection 2.8, for all reasonable losses, expenses and liabilities
(including any interest paid by that Lender to lenders of funds borrowed by it
to make or carry its Eurodollar Rate Loans and any reasonable loss, expense or
liability sustained by that Lender in connection with the liquidation or
re-employment of such funds) which that Lender may sustain: (i) if for any
reason (other than a default by that Lender) a borrowing of any Eurodollar Rate
Loan does not occur on a date specified therefor in a Notice of Borrowing or a
telephonic request therefor, or a conversion to or continuation of any
Eurodollar Rate Loan, does not occur on a date specified therefor in a Notice of
Conversion/Continuation or a telephonic request therefor, (ii) if any prepayment
(including any prepayment pursuant to subsection 2.4B(i)) or other principal
payment or any conversion of any of its Eurodollar Rate Loans (including any
prepayment or conversion occasioned by the circumstances described in subsection
2.6C) occurs on a date prior to the last day of an Interest Period applicable to
that Loan, (iii) if any prepayment of any of its Eurodollar Rate Loans is not
made on any date specified in a notice of prepayment given by
51
Company, or (iv) as a consequence of any other default by Company in the
repayment of its Eurodollar Rate Loans when required by the terms of this
Agreement.
E. BOOKING OF EURODOLLAR RATE LOANS. Any Lender may make, carry or
transfer Eurodollar Rate Loans at, to, or for the account of any of its branch
offices or the office of an Affiliate of that Lender.
F. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR RATE LOANS. Calculation
of all amounts payable to a Lender under this subsection 2.6 and under
subsection 2.7A shall be made as though that Lender had funded each of its
Eurodollar Rate Loans through the purchase of a Eurodollar deposit bearing
interest at the rate obtained pursuant to clause (i) of the definition of
Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan
and having a maturity comparable to the relevant Interest Period, whether or not
its Eurodollar Rate Loans had been funded in such manner.
G. EURODOLLAR RATE LOANS AFTER DEFAULT. After the occurrence of and
during the continuation of a Potential Event of Default or an Event of Default,
(i) Company may not elect to have a Loan be made or maintained as, or converted
to, a Eurodollar Rate Loan after the expiration of any Interest Period then in
effect for that Loan and (ii) subject to the provisions of subsection 2.6D, any
Notice of Borrowing or Notice of Conversion/Continuation given by Company with
respect to a requested borrowing or conversion/continuation that has not yet
occurred shall be deemed to be for a Base Rate Loan or, if the conditions to
making a Loan set forth in subsection 4.2 cannot then be satisfied, to be
rescinded by Company.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS. Subject to the provisions of
subsection 2.7B (which shall be controlling with respect to the matters covered
thereby), in the event that any Lender (including any Issuing Lender) shall
reasonably determine (which determination shall, absent manifest error, be final
and conclusive and binding upon all parties hereto) that any law, treaty or
governmental rule, regulation or order, or any change therein or in the
interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or other Government Authority, in each case that
becomes effective after the date hereof, or compliance by such Lender with any
guideline, request or directive issued or made after the date hereof by any
central bank or other Government Authority (whether or not having the force of
law):
(i) subjects such Lender to any additional Tax with respect to
this Agreement or any of its obligations hereunder (including with
respect to issuing or maintaining any Letters of Credit or purchasing
or maintaining any participations therein or maintaining any Commitment
hereunder) or any payments to such Lender of principal, interest, fees
or any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve,
special deposit, compulsory loan, insurance charge or similar
requirement against assets held by, or deposits or other liabilities in
or for the account of, or advances or loans by, or other credit
extended by, or any other acquisition of funds by, any office of such
Lender (other
52
than any such reserve or other requirements with respect to Eurodollar
Rate Loans that are reflected in the definition of Eurodollar Rate); or
(iii) imposes any other condition (other than with respect to
Taxes) on or affecting such Lender or its obligations hereunder or the
London interbank market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining its Loans or Commitments or agreeing to
issue, issuing or maintaining any Letter of Credit or agreeing to purchase,
purchasing or maintaining any participation therein or to reduce any amount
received or receivable by such Lender with respect thereto; then, in any such
case, Company shall promptly pay to such Lender, upon receipt of the statement
referred to in subsection 2.8A, such additional amount or amounts (in the form
of an increased rate of, or a different method of calculating, interest or
otherwise as such Lender reasonably shall determine) as may be necessary to
compensate such Lender for any such increased cost or reduction in amounts
received or receivable hereunder and additional amounts to the extent necessary
to take into account any taxes (including for these purposes any income,
recordation, mortgage, stamp or documentary taxes) such Lender may incur as a
result of such additional amounts; provided, however, that Company shall not be
obligated to pay such Lender any compensation attributable to any period prior
to the date that is 90 days prior to the date on which such Lender gave notice
to Company of the circumstances entitling such Lender to compensation.
B. TAXES.
(i) Payments to Be Free and Clear. All sums payable by Company
under this Agreement and the other Loan Documents shall be paid free
and clear of, and without any deduction or withholding on account of,
any Tax imposed, levied, collected, withheld or assessed by or within
the United States or any political subdivision in or of the United
States or any other jurisdiction from or to which a payment is made by
or on behalf of Company or by any federation or organization of which
the United States or any such jurisdiction is a member at the time of
payment.
(ii) Grossing-up of Payments. If Company or any other Person
is required by law to make any deduction or withholding on account of
any such Tax from any sum paid or payable by Company to Administrative
Agent or any Lender under any of the Loan Documents:
(a) Company shall notify Administrative Agent of any
such requirement or any change in any such requirement as soon
as Company becomes aware of it;
(b) Company shall pay any such Tax when such Tax is
due, such payment to be made (if the liability to pay is
imposed on Company) for its own account or (if that liability
is imposed on Administrative Agent or such Lender, as the case
may be) on behalf of and in the name of Administrative Agent
or such Lender;
(c) the sum payable by Company in respect of which
the relevant deduction, withholding or payment is required
shall be increased to the extent
53
necessary to ensure that, after the making of that deduction,
withholding or payment, Administrative Agent or such Lender,
as the case may be, receives on the due date a net sum equal
to what it would have received had no such deduction,
withholding or payment been required or made, and shall be
increased to the extent necessary to take into account any
taxes (including for these purposes any income, recordation,
mortgage, stamp and documentary taxes) Administrative Agent or
such Lender, as the case may be, may incur as a result of such
payment; and
(d) within 30 days after paying any sum from which it
is required by law to make any deduction or withholding, and
within 30 days after the due date of payment of any Tax which
it is required by clause (b) above to pay, Company shall
deliver to Administrative Agent evidence satisfactory to the
other affected parties of such deduction, withholding or
payment and of the remittance thereof to the relevant taxing
or other authority;
provided that no such additional amount shall be required to be paid to
any Lender under clause (c) above except to the extent that any change
after the date on which such Lender became a Lender in any such
requirement for a deduction, withholding or payment as is mentioned
therein shall result in an increase in the rate of such deduction,
withholding or payment from that in effect on the date on which such
Lender became a Lender, in respect of payments to such Lender.
(iii) Evidence of Exemption from U.S. Withholding Tax.
(a) Each Lender that is organized under the laws of
any jurisdiction other than the United States or any state or
other political subdivision thereof (a "Non US Lender") shall
deliver to Administrative Agent and to Company, on or prior to
the Closing Date (in the case of each Lender listed on the
signature pages hereof) or on or prior to the date of the
Assignment Agreement pursuant to which it becomes a Lender (in
the case of each other Lender), and at such other times as may
be necessary in the determination of Company or Administrative
Agent (each in the reasonable exercise of its discretion), two
original copies of Internal Revenue Service Form W-8BEN or
W-8ECI (or any successor forms) properly completed and duly
executed by such Lender, or, in the case of a Non-US Lender
claiming exemption from United States federal withholding tax
under Section 871(h) or 881(c) of the Internal Revenue Code
with respect to payments of "portfolio interest", a form
W-8BEN, and, in the case of a Lender that has certified in
writing to Administrative Agent that it is not a "bank" (as
defined in Section 881(c)(3)(A) of the Internal Revenue Code),
a certificate of such Lender certifying that such Lender is
not (i) a "bank" for purposes of Section 881(c) of the
Internal Revenue Code, (ii) a ten-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Internal Revenue
Code) of Company or (iii) a controlled foreign corporation
related to Company (within the meaning of Section 864(d)(4) of
the Internal Revenue Code) in each case together with any
other certificate or statement of exemption required under the
Internal Revenue Code or the regulations issued thereunder to
establish that such Lender is not subject to
54
United States withholding tax with respect to any payments to
such Lender of interest payable under any of the Loan
Documents.
(b) Each Non-US Lender, to the extent it does not act
or ceases to act for its own account with respect to any
portion of any sums paid or payable to such Lender under any
of the Loan Documents (for example, in the case of a typical
participation by such Lender), shall deliver to Administrative
Agent and to Company, on or prior to the Closing Date (in the
case of each Lender listed on the signature pages hereof), on
or prior to the date of the Assignment Agreement pursuant to
which it becomes a Lender (in the case of each other Lender),
or on such later date when such Lender ceases to act for its
own account with respect to any portion of any such sums paid
or payable, and at such other times as may be necessary in the
determination of Company or Administrative Agent (each in the
reasonable exercise of its discretion), (1) two original
copies of the forms or statements required to be provided by
such Lender under subsection 2.7B(iii)(a), properly completed
and duly executed by such Lender, to establish the portion of
any such sums paid or payable with respect to which such
Lender acts for its own account that is not subject to United
States withholding tax, and (2) two original copies of
Internal Revenue Service Form W-8IMY (or any successor forms)
properly completed and duly executed by such Lender, together
with any information, if any, such Lender chooses to transmit
with such form, and any other certificate or statement of
exemption required under the Internal Revenue Code or the
regulations issued thereunder, to establish that such Lender
is not acting for its own account with respect to a portion of
any such sums payable to such Lender.
(c) Each Non-US Lender hereby agrees, from time to
time after the initial delivery by such Lender of such forms,
whenever a lapse in time or change in circumstances renders
such forms, certificates or other evidence so delivered
obsolete or inaccurate in any material respect, that such
Lender shall promptly (1) deliver to Administrative Agent and
to Company two original copies of renewals, amendments or
additional or successor forms, properly completed and duly
executed by such Lender, together with any other certificate
or statement of exemption required in order to confirm or
establish that such Lender is not subject to United States
withholding tax with respect to payments to such Lender under
the Loan Documents and, if applicable, that such Lender does
not act for its own account with respect to any portion of
such payment, or (2) notify Administrative Agent and Company
of its inability to deliver any such forms, certificates or
other evidence.
(d) Company shall not be required to pay any
additional amount to any Non-US Lender under clause (c) of
subsection 2.7B(ii), (1) with respect to any Tax required to
be deducted or withheld on the basis of the information,
certificates or statements of exemption such Lender chooses to
transmit with an Internal Revenue Service Form W-8IMY pursuant
to subsection 2.7B(iii)(b)(2) or (2) if such Lender shall have
failed to satisfy the requirements of clause (a), (b) or
(c)(1) of this subsection 2.7B(iii); provided that if such
Lender shall have satisfied
55
the requirements of subsection 2.7B(iii)(a) on the date such
Lender became a Lender, nothing in this subsection
2.7B(iii)(d) shall relieve Company of its obligation to pay
any amounts pursuant to subsection 2.7B(ii)(c) in the event
that, as a result of any change in any applicable law, treaty
or governmental rule, regulation or order, or any change in
the interpretation, administration or application thereof,
such Lender is no longer properly entitled to deliver forms,
certificates or other evidence at a subsequent date
establishing the fact that such Lender is not subject to
withholding as described in subsection 2.7B(iii)(a).
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have determined
that the adoption, effectiveness, phase-in or applicability after the date
hereof of any law, rule or regulation (or any provision thereof) regarding
capital adequacy, or any change therein or in the interpretation or
administration thereof by any Government Authority charged with the
interpretation or administration thereof, or compliance by any Lender with any
guideline, request or directive regarding capital adequacy (whether or not
having the force of law) of any such Government Authority, has or would have the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to,
such Lender's Loans or Commitments or Letters of Credit or participations
therein or other obligations hereunder with respect to the Loans or the Letters
of Credit to a level below that which such Lender or such controlling
corporation could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy),
then from time to time, within five Business Days after receipt by Company from
such Lender of the statement referred to in subsection 2.8A, Company shall pay
to such Lender such additional amount or amounts as will compensate such Lender
or such controlling corporation on an after-tax basis for such reduction,
increased to the extent necessary to take into account any taxes (including for
these purposes any income, recordation, mortgage, stamp or documentary taxes)
such Lender may incur as a result of such additional amounts; provided, however,
that Company shall not be obligated to pay such Lender any compensation
attributable to any period prior to the date that is 90 days prior to the date
on which such Lender gave notice to Company of the circumstances entitling such
Lender to compensation.
2.8 OBLIGATION OF LENDERS AND ISSUING LENDERS TO MITIGATE.
A. STATEMENTS. Each Lender claiming compensation or reimbursement
pursuant to subsection 2.6D, 2.7 or 2.8B shall deliver to Company (with a copy
to Administrative Agent) a written statement, setting forth in reasonable detail
the basis of the calculation of such compensation or reimbursement, which
statement shall be conclusive and binding upon all parties hereto absent
manifest error.
B. MITIGATION. Each Lender and Issuing Lender agrees that, as promptly
as practicable after the officer of such Lender or Issuing Lender responsible
for administering the Loans or Letters of Credit of such Lender or Issuing
Lender, as the case may be, becomes aware of the occurrence of an event or the
existence of a condition that would cause such Lender to become an Affected
Lender or that would entitle such Lender or Issuing Lender to receive payments
under subsection 2.7, use reasonable effort to make, issue, fund or maintain the
Commitments of such Lender or the Affected Loans or Letters of Credit of such
Lender or Issuing Lender through
56
another lending or letter of credit office of such Lender or Issuing Lender, if
(i) as a result thereof the circumstances which would cause such Lender to be an
Affected Lender would cease to exist or the additional amounts which would
otherwise be required to be paid to such Lender or Issuing Lender pursuant to
subsection 2.7 would be materially reduced and (ii) as determined by such Lender
or Issuing Lender in its sole discretion, such action would not otherwise be
disadvantageous to such Lender or Issuing Lender; provided that such Lender or
Issuing Lender will not be obligated to utilize such other lending or letter of
credit office pursuant to this subsection 2.8B unless Company agrees to pay all
incremental expenses incurred by such Lender or Issuing Lender as a result of
utilizing such other lending or letter of credit office as described above.
57
2.9 REPLACEMENT OF A LENDER.
If Company receives a statement of amounts due pursuant to
subsection 2.8A from a Lender, a Revolving Lender defaults in its obligations to
fund a Revolving Loan pursuant to this Agreement, a Lender (a "NON-CONSENTING
LENDER") refuses to consent to an amendment, modification or waiver of this
Agreement that, pursuant to subsection 10.6, requires consent of 100% of the
Lenders or 100% of the Lenders with Obligations directly affected or a Lender
becomes an Affected Lender (any such Lender, a "SUBJECT LENDER"), so long as (i)
no Potential Event of Default or Event of Default shall have occurred and be
continuing and Company has obtained a commitment from another Lender or an
Eligible Assignee to purchase at par the Subject Lender's Loans and assume the
Subject Lender's Commitments and all other obligations of the Subject Lender
hereunder, (ii) such Lender is not an Issuing Lender with respect to any Letters
of Credit outstanding (unless all such Letters of Credit are terminated or
arrangements acceptable to such Issuing Lender (such as a "back-to-back" letter
of credit) are made) and (iii), if applicable, the Subject Lender is unwilling
to withdraw the notice delivered to Company pursuant to subsection 2.8, Company
may require the Subject Lender to assign all of its Loans and Commitments to
such other Lender, Lenders, Eligible Assignee or Eligible Assignees pursuant to
the provisions of subsection 10.1B; provided that, prior to or concurrently with
such replacement, (1) the Subject Lender shall have received payment in full of
all principal, interest, fees and other amounts (including all amounts under
subsections 2.6D, 2.7 and/or 2.8B (if applicable)) through such date of
replacement and a release from its obligations under the Loan Documents, (2) the
processing fee required to be paid by subsection 10.1B(i) shall have been paid
to Administrative Agent, (3) all of the requirements for such assignment
contained in subsection 10.1B, including, without limitation, the consent of
Administrative Agent (if required) and the receipt by Administrative Agent of an
executed Assignment Agreement and other supporting documents, have been
fulfilled, and (4) in the event such Subject Lender is a Non-Consenting Lender,
each assignee shall consent, at the time of such assignment, to each matter in
respect of which such Subject Lender was a Non-Consenting Lender and Company
also requires each other Subject Lender that is a Non-Consenting Lender to
assign its Loans and Commitments.
SECTION 3. LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF PARTICIPATIONS
THEREIN.
A. LETTERS OF CREDIT. In addition to Company requesting that Lenders
make Revolving Loans pursuant to subsection 2.1A(iii) and that Swing Line Lender
make Swing Line Loans pursuant to subsection 2.1A(iv), Company may request, in
accordance with the provisions of this subsection 3.1, from time to time during
the period from the Closing Date to but excluding the Revolving Loan Commitment
Termination Date, that one or more Revolving Lenders issue Letters of Credit for
the account of Company for the purposes specified in the definition of Letters
of Credit. Subject to the terms and conditions of this Agreement and in reliance
upon the representations and warranties of Company herein set forth, any one or
more Revolving Lenders shall issue such Letters of Credit in accordance with the
provisions of this subsection 3.1; provided that Company shall not request that
any Revolving Lender issue (and no Revolving Lender shall issue):
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(i) any Letter of Credit if, after giving effect to such
issuance, the Total Utilization of Revolving Loan Commitments would
exceed the Revolving Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such
issuance, the Letter of Credit Usage would exceed $100,000,000;
(iii) any Letter of Credit having an expiration date later
than the earlier of (a) five days prior to the Revolving Loan
Commitment Termination Date and (b) the date which is one year from the
date of issuance of such Letter of Credit; provided that the
immediately preceding clause (b) shall not prevent any Issuing Lender
from agreeing that a Letter of Credit will automatically be extended
for one or more successive periods not to exceed one year each unless
such Issuing Lender elects not to extend for any such additional
period; and provided further that such Issuing Lender shall elect not
to extend such Letter of Credit if it has knowledge that an Event of
Default has occurred and is continuing (and has not been waived in
accordance with subsection 10.6) at the time such Issuing Lender must
elect whether or not to allow such extension; or
(iv) any Letter of Credit issued for the purpose of supporting
(a) trade payables or (b) any Indebtedness constituting "antecedent
debt" as such is used in Section 547 of the Bankruptcy Code).
On and after the Closing Date, the Existing Letters of Credit
shall be deemed for all purposes, including for purposes of the fees to be
collected pursuant to subsection 3.2, and reimbursement of costs and expenses to
the extent provided herein, to be Letters of Credit outstanding under this
Agreement and entitled to the benefits of this Agreement and the other Loan
Documents, and shall be governed by the applications and agreements pertaining
thereto and by this Agreement; provided, however, that, notwithstanding any
other provision of this Agreement, no fees with respect to the issuance of the
Existing Letters of Credit shall be due hereunder.
B. MECHANICS OF ISSUANCE.
(i) Request for Issuance. Whenever Company desires the
issuance of a Letter of Credit, it shall deliver to a Revolving Lender
(which shall be the Issuing Lender with respect thereto), with a copy
to Administrative Agent, a Request for Issuance no later than 2:00 P.M.
(New York City time) at least three Business Days, or such shorter
period as may be agreed to by the Issuing Lender in any particular
instance, in advance of the proposed date of issuance. The Issuing
Lender, in its reasonable discretion, may require changes in the text
of the proposed Letter of Credit or any documents described in or
attached to the Request for Issuance. In furtherance of the provisions
of subsection 10.8, and not in limitation thereof, Company may submit
Requests for Issuance by telefacsimile and Administrative Agent and
Issuing Lenders may rely and act upon any such Request for Issuance
without receiving an original signed copy thereof. No Letter of Credit
shall require payment against a conforming demand for payment to be
made thereunder on the same business day (under the laws of the
jurisdiction in which the office of the Issuing Lender to which such
demand for payment is required to be
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presented is located) that such demand for payment is presented if such
presentation is made after 10:00 A.M. (in the time zone of such office
of the Issuing Lender) on such business day.
Company shall notify the applicable Issuing Lender
(and Administrative Agent, if Administrative Agent is not such Issuing
Lender) prior to the issuance of any Letter of Credit in the event that
any of the matters to which Company is required to certify in the
applicable Request for Issuance is no longer true and correct in all
material respects as of the proposed date of issuance of such Letter of
Credit, and upon the issuance of any Letter of Credit Company shall be
deemed to have re-certified, as of the date of such issuance, as to the
matters to which Company is required to certify in the applicable
Request for Issuance.
(ii) Determination of Issuing Lender. Company may request any
Revolving Lender to issue a Letter of Credit by delivering to such
Revolving Lender, with a copy to Administrative Agent, a Request for
Issuance pursuant to subsection 3.1B(i) requesting the issuance of a
Letter of Credit. In the event that such Revolving Lender, in its sole
discretion, elects not to issue such Letter of Credit, such Revolving
Lender shall promptly so notify Company and Administrative Agent,
whereupon Company may request any other Revolving Lender to issue such
Letter of Credit by delivering to such Revolving Lender a copy of the
applicable Request for Issuance. Any Revolving Lender so requested to
issue such Letter of Credit shall promptly notify Company and
Administrative Agent whether or not, in its sole discretion, it has
elected to issue such Letter of Credit, and any such Revolving Lender
that so elects to issue such Letter of Credit shall be the Issuing
Lender with respect thereto. In the event all other Revolving Lenders
requested by Company have declined to issue such Letter of Credit,
Administrative Agent shall be obligated to issue such Letter of Credit
and shall be the Issuing Lender with respect thereto, notwithstanding
the fact that the Letter of Credit Usage with respect to such Letter of
Credit and with respect to all other Letters of Credit issued by
Administrative Agent, when aggregated with Administrative Agent's
outstanding Revolving Loans and Swing Line Loans, may exceed
Administrative Agent's Revolving Loan Commitment then in effect;
provided that the Issuing Lender shall not be obligated to issue any
Letter of Credit denominated in a foreign currency which in the
judgment of Administrative Agent is not readily and freely available.
(iii) Issuance of Letter of Credit. Upon satisfaction or
waiver (in accordance with subsection 10.6) of the conditions set forth
in subsection 4.3, the Issuing Lender shall issue the requested Letter
of Credit in accordance with the Issuing Lender's standard operating
procedures.
(iv) Notification to Revolving Lenders. Upon the issuance of
or amendment to any Letter of Credit the applicable Issuing Lender
shall promptly notify Administrative Agent and Company of such issuance
or amendment in writing and such notice shall be accompanied by a copy
of such Letter of Credit or amendment. Upon receipt of such notice (or,
if Administrative Agent is the Issuing Lender, together with such
notice), Administrative Agent shall notify each Revolving Lender in
writing of such issuance or amendment and the amount of such Revolving
Lender's respective participation in such
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Letter of Credit or amendment, and, if so requested by a Revolving
Lender, Administrative Agent shall provide such Lender with a copy of
such Letter of Credit or amendment.
C. REVOLVING LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF
CREDIT. Immediately upon the issuance of each Letter of Credit, each Revolving
Lender shall be deemed to, and hereby agrees to, have irrevocably purchased from
the Issuing Lender a participation in such Letter of Credit and any drawings
honored thereunder in an amount equal to such Revolving Lender's Pro Rata Share
of the maximum amount that is or at any time may become available to be drawn
thereunder.
3.2 LETTER OF CREDIT FEES.
Company agrees to pay the following amounts with respect to
Letters of Credit issued hereunder:
(i) with respect to each Letter of Credit, (a) a fronting fee,
payable directly to the applicable Issuing Lender for its own account,
equal to 0.125% per annum of the daily amount available to be drawn
under such Letter of Credit and (b) a letter of credit fee, payable to
Administrative Agent for the account of Revolving Lenders, equal to the
applicable Eurodollar Rate Margin for Revolving Loans multiplied by the
daily amount available to be drawn under such Letter of Credit, each
such fronting fee or letter of credit fee to be payable in arrears on
and to (but excluding) the last Business Day of each January, April,
July and October of each year and computed on the basis of a 360-day
year for the actual number of days elapsed; and
(ii) with respect to the issuance, amendment or transfer of
each Letter of Credit and each payment of a drawing made thereunder
(without duplication of the fees payable under clause (i) above),
documentary and processing charges payable directly to the applicable
Issuing Lender for its own account in accordance with such Issuing
Lender's standard schedule for such charges in effect at the time of
such issuance, amendment, transfer or payment, as the case may be.
For purposes of calculating any fees payable under clause (i) of this subsection
3.2, (1) the daily amount available to be drawn under any Letter of Credit shall
be determined as of the close of business on any date of determination and (2)
any amount described in such clause which is denominated in a currency other
than Dollars shall be valued based on the applicable Exchange Rate for such
currency as of the applicable date of determination.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS PAID UNDER LETTERS OF CREDIT.
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO DRAWINGS. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care so as to
ascertain whether they appear on their face to be in accordance with the terms
and conditions of such Letter of Credit.
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B. REIMBURSEMENT BY COMPANY OF AMOUNTS PAID UNDER LETTERS OF CREDIT. In
the event an Issuing Lender has determined to honor a drawing under a Letter of
Credit issued by it, such Issuing Lender shall immediately notify Company and
Administrative Agent, and Company shall reimburse such Issuing Lender on or
before the Business Day immediately following the date on which such drawing is
honored (the "REIMBURSEMENT DATE") in an amount in Dollars (which amount, in the
case of a payment under a Letter of Credit which is denominated in a currency
other than Dollars, shall be calculated by reference to the applicable Exchange
Rate) and in same day funds equal to the amount of such payment; provided that,
anything contained in this Agreement to the contrary notwithstanding, (i) unless
Company shall have notified Administrative Agent and such Issuing Lender prior
to 10:00 A.M. (New York City time) on the date such drawing is honored that
Company intends to reimburse such Issuing Lender for the amount of such payment
with funds other than the proceeds of Revolving Loans, Company shall be deemed
to have given a timely Notice of Borrowing to Administrative Agent requesting
Revolving Lenders to make Revolving Loans that are Base Rate Loans on the
Reimbursement Date in an amount in Dollars (which amount, in the case of a
drawing under a Letter of Credit which is denominated in a currency other than
Dollars, shall be calculated by reference to the applicable Exchange Rate) equal
to the amount of such payment and (ii) subject to satisfaction or waiver of the
conditions specified in subsection 4.2B, Revolving Lenders shall, on the
Reimbursement Date, make Revolving Loans that are Base Rate Loans in the amount
of such payment, the proceeds of which shall be applied directly by
Administrative Agent to reimburse such Issuing Lender for the amount of such
payment; and provided further that if for any reason proceeds of Revolving Loans
are not received by such Issuing Lender on the Reimbursement Date in an amount
equal to the amount of such payment, Company shall reimburse such Issuing
Lender, on demand, in an amount in same day funds equal to the excess of the
amount of such payment over the aggregate amount of such Revolving Loans, if
any, which are so received. Nothing in this subsection 3.3B shall be deemed to
relieve any Revolving Lender from its obligation to make Revolving Loans on the
terms and conditions set forth in this Agreement, and Company shall retain any
and all rights it may have against any Revolving Lender resulting from the
failure of such Revolving Lender to make such Revolving Loans under this
subsection 3.3B.
C. PAYMENT BY LENDERS OF UNREIMBURSED AMOUNTS PAID UNDER LETTERS OF
CREDIT.
(i) Payment by Revolving Lenders. In the event that Company
shall fail for any reason to reimburse any Issuing Lender as provided
in subsection 3.3B in an amount (calculated, in the case of a payment
under a Letter of Credit denominated in a currency other than Dollars,
by reference to the applicable Exchange Rate) equal to the amount of
any payment by such Issuing Lender under a Letter of Credit issued by
it, such Issuing Lender shall promptly notify Administrative Agent and
Administrative Agent shall notify each other Revolving Lender of the
unreimbursed amount of such honored drawing and of such other Revolving
Lender's respective participation therein based on such Revolving
Lender's Pro Rata Share. Each Revolving Lender (other than the Issuing
Lender) shall make available to Administrative Agent an amount equal to
its respective participation, in Dollars and in same day funds, at the
Funding and Payment Office, not later than 12:00 Noon (New York City
time) on the first Business Day after the date notified by
Administrative Agent and Administrative Agent shall make available to
such Issuing Lender in Dollars in same day funds, at the office of such
Issuing Lender on such Business Day, the aggregate amount of the
participation payments so received by
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Administrative Agent. In the event that any Revolving Lender fails to
make available to such Issuing Lender on such Business Day the amount
of such Revolving Lender's participation in such Letter of Credit as
provided in this subsection 3.3C, such Issuing Lender shall be entitled
to recover such amount on demand from such Revolving Lender together
with interest thereon at the Federal Funds Effective Rate. Nothing in
this subsection 3.3C shall be deemed to prejudice the right of
Administrative Agent, for the benefit of Revolving Lenders, or
Revolving Lenders to recover from any Issuing Lender any amounts made
available to such Issuing Lender pursuant to this subsection 3.3C in
the event that it is determined by the final judgment of a court of
competent jurisdiction that the payment with respect to a Letter of
Credit by such Issuing Lender in respect of which such participation
payments were made by Revolving Lenders constituted gross negligence or
willful misconduct on the part of such Issuing Lender.
(ii) Distribution to Lenders of Reimbursements Received From
Company. In the event any Issuing Lender shall have been reimbursed by
other Revolving Lenders pursuant to subsection 3.3C(i) for all or any
portion of any payment by such Issuing Lender under a Letter of Credit
issued by it, and Administrative Agent or such Issuing Lender
thereafter receives any payments from Company in reimbursement of such
payment under the Letter of Credit, Administrative Agent, or, in the
case of payments received by such Issuing Lender, such Issuing Lender,
shall distribute to Administrative Agent and Administrative Agent shall
distribute to each other Revolving Lender that has paid all amounts
payable by it under subsection 3.3C(i) with respect to such payment
such Revolving Lender's Pro Rata Share of all payments subsequently
received by Administrative Agent or by such Issuing Lender from
Company. Any such distribution shall be made to a Revolving Lender at
its primary address set forth below its name on the appropriate
signature page hereof or at such other address as such Revolving Lender
may request.
D. INTEREST ON AMOUNTS PAID UNDER LETTERS OF CREDIT.
(i) Payment of Interest by Company. Company agrees to pay to
Administrative Agent, with respect to payments under any Letters of
Credit issued by any Issuing Lender, interest on the amount paid by
such Issuing Lender in respect of each such payment from the date a
drawing is honored to but excluding the date such amount is reimbursed
by Company (including any such reimbursement out of the proceeds of
Revolving Loans pursuant to subsection 3.3B) at a rate equal to (a) for
the period from the date such drawing is honored to but excluding the
Reimbursement Date, the rate then in effect under this Agreement with
respect to Revolving Loans that are Base Rate Loans and (b) thereafter,
a rate which is 2% per annum in excess of the rate of interest
otherwise payable under this Agreement with respect to Revolving Loans
that are Base Rate Loans. Interest payable pursuant to this subsection
3.3D(i) shall be computed on the basis of a 360-day year for the actual
number of days elapsed in the period during which it accrues and shall
be payable on demand or, if no demand is made, on the date on which the
related drawing under a Letter of Credit is reimbursed in full.
(ii) Distribution of Interest Payments by Administrative
Agent. Promptly upon receipt by Administrative Agent of any payment of
interest pursuant to subsection
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3.3D(i) with respect to a payment under a Letter of Credit, (a)
Administrative Agent shall distribute to (x) each Revolving Lender, out
of the interest received by Administrative Agent in respect of the
period from the date such drawing is honored to but excluding the date
on which such Issuing Lender is reimbursed for the amount of such
payment (including any such reimbursement out of the proceeds of
Revolving Loans pursuant to subsection 3.3B), the amount that such
Revolving Lender would have been entitled to receive in respect of the
letter of credit fee that would have been payable in respect of such
Letter of Credit for such period pursuant to subsection 3.2 if no
drawing had been honored under such Letter of Credit and (y) to such
Issuing Lender the amount, if any, remaining after payment of the
amounts applied pursuant to the immediately preceding clause (x), and
(b) in the event such Issuing Lender shall have been reimbursed by
other Revolving Lenders pursuant to subsection 3.3C(i) for all or any
portion of such payment, Administrative Agent shall distribute to each
Revolving Lender (including such Issuing Lender) that has paid all
amounts payable by it under subsection 3.3C(i) with respect to such
payment such Revolving Lender's Pro Rata Share of any interest received
by Administrative Agent in respect of that portion of such payment so
made by Revolving Lenders for the period from the date on which such
Issuing Lender was so reimbursed by other Revolving Lenders to but
excluding the date on which such portion of such payment is reimbursed
by Company. Any such distribution shall be made to a Revolving Lender
at its primary address set forth below its name on the appropriate
signature page hereof or at such other address as such Revolving Lender
may request.
3.4 OBLIGATIONS ABSOLUTE
The obligation of Company to reimburse each Issuing Lender for
payments under the Letters of Credit issued by it and to repay any Revolving
Loans made by Revolving Lenders pursuant to subsection 3.3B and the obligations
of Revolving Lenders under subsection 3.3C(i) shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances including any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other
right which Company or any Lender may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any Persons
for whom any such transferee may be acting), any Issuing Lender or
other Revolving Lender or any other Person or, in the case of a
Revolving Lender, against Company, whether in connection with this
Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between Company or
one of its Subsidiaries and the beneficiary for which any Letter of
Credit was procured);
(iii) any draft or other document presented under any Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
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(iv) payment by the applicable Issuing Lender under any Letter of
Credit against presentation of a draft or other document which does not
substantially comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any
of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by
any party thereto;
(vii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing;
provided, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question
(as determined by a final judgment of a court of competent jurisdiction).
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDERS' DUTIES.
A. INDEMNIFICATION. In addition to amounts payable as provided in
subsection 2.7, Company hereby agrees to protect, indemnify, pay and save
harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of outside counsel and allocated costs of
internal counsel) which such Issuing Lender may incur or be subject to as a
consequence, direct or indirect, of (i) the issuance of any Letter of Credit by
such Issuing Lender, other than as a result of (a) the gross negligence or
willful misconduct of such Issuing Lender as determined by a final judgment of a
court of competent jurisdiction or (b) subject to the following clause (ii), the
wrongful dishonor by such Issuing Lender of a proper demand for payment made
under any Letter of Credit issued by it or (ii) the failure of such Issuing
Lender to honor a drawing under any such Letter of Credit as a result of any act
or omission, whether rightful or wrongful, of any present or future de jure or
de facto Government Authority.
B. NATURE OF ISSUING LENDERS' DUTIES. As between Company and any Issuing
Lender, Company assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by such Issuing Lender by, the respective beneficiaries
of such Letters of Credit. In furtherance and not in limitation of the
foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
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delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond the
control of such Issuing Lender, including any act or omission by a Government
Authority, and none of the above shall affect or impair, or prevent the vesting
of, any of such Issuing Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to Company.
Notwithstanding anything to the contrary contained in this
subsection 3.5, Company shall retain any and all rights it may have against any
Issuing Lender for any liability arising solely out of the gross negligence or
willful misconduct of such Issuing Lender, as determined by a final judgment of
a court of competent jurisdiction.
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of Letters of
Credit hereunder are subject to the satisfaction of the following conditions.
4.1 CONDITIONS TO TERM LOANS AND REVOLVING LOANS.
The obligations of Lenders to make the Term Loans and any Revolving Loans
and Swing Line Loans to be made, and to issue any Letters of Credit to be
issued, on the Closing Date are, in addition to the conditions precedent
specified in subsection 4.2, subject to prior or concurrent satisfaction of the
following conditions:
A. LOAN PARTY DOCUMENTS. On or before the Closing Date, Company shall, and
shall cause each other Loan Party to, deliver to Lenders (or to Administrative
Agent with sufficient originally executed copies, where appropriate, for each
Lender) the following with respect to Company or such Loan Party, as the case
may be, each, unless otherwise noted, dated the Closing Date:
(i) Copies of the Organizational Documents of such Person,
certified by the Secretary of State of its jurisdiction of organization
or, if such document is of a type that may not be so certified, certified
by the secretary or similar officer of the applicable Loan Party, together
with a good standing certificate from the Secretary of State of its
jurisdiction of organization and, to the extent generally available, a
certificate or other evidence of good standing as to payment of any
applicable franchise or similar taxes from the appropriate taxing
authority of such jurisdiction, each dated a recent date prior to the
Closing Date;
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(ii) Resolutions of the Governing Body of such Person approving and
authorizing the execution, delivery and performance of the Loan Documents
to which it is a party, certified as of the Closing Date by the secretary
or similar officer of such Person as being in full force and effect
without modification or amendment;
(iii) Signature and incumbency certificates of the officers of such
Person executing the Loan Documents to which it is a party;
(iv) Executed originals of the Loan Documents to which such Person
is a party; and
(v) Such other documents as Administrative Agent or Co-Arrangers
may reasonably request.
B. FEES. Company shall have paid to Administrative Agent, for distribution
(as appropriate) to Administrative Agent and Lenders, the fees payable on the
Closing Date referred to in subsection 2.3.
C. CORPORATE AND CAPITAL STRUCTURE; OWNERSHIP.
(i) Corporate Structure. The corporate organizational structure of
Company and its Subsidiaries, giving effect to the Merger, shall be as set
forth on Schedule 4.1C of the Company Disclosure Letter.
(ii) Capital Structure and Ownership. The capital structure and
ownership of Company and its Domestic Subsidiaries, after giving effect to
the Merger, shall be as set forth on Schedule 4.1C of the Company
Disclosure Letter.
D. RELATED AGREEMENTS. Administrative Agent shall have received a fully
executed or conformed copy of the Merger Agreement and each Related Agreement
and any documents executed in connection therewith, and the Merger Agreement and
each Related Agreement shall be in full force and effect, in compliance in all
material respects with applicable laws and regulations, and no provision thereof
shall have been amended, supplemented, waived or otherwise modified in any
respect determined by Co-Arrangers to be material, in each case without the
prior written consent of Co-Arrangers.
E. DEBT CAPITALIZATION OF COMPANY. On or before the Closing Date, Company
shall have issued and sold Senior Notes in an aggregate principal amount of
$200,000,000 which, when added to the proceeds of the Term Loans, shall be not
less than the amount necessary to consummate the Merger.
F. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS. Company
shall have delivered to Administrative Agent an Officer's Certificate, in form
and substance satisfactory to Administrative Agent, to the effect that the
representations and warranties in Section 5 are true, correct and complete in
all material respects on and as of the Closing Date to the same extent as though
made on and as of that date (or, to the extent such representations and
warranties specifically relate to an earlier date, that such representations and
warranties were true, correct and complete in all material respects on and as of
such earlier date) and that
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Company shall have performed in all material respects all agreements and
satisfied all conditions which this Agreement provides shall be performed or
satisfied by it on or before the Closing Date except as otherwise disclosed to
and agreed to in writing by Administrative Agent; provided that where a
representation and warranty is qualified as to materiality, such representation
and warranty shall be true, correct and complete as so qualified.
G. FINANCIAL STATEMENTS; PRO FORMA FINANCIAL STATEMENTS. On or before the
Closing Date, Lenders shall have received from Company (i) audited financial
statements of each Target and its Subsidiaries for the Targets Fiscal Year ended
December 31, 2001, including balance sheets and income and cash flow statements,
audited by Ernst & Young and prepared in conformity with GAAP, together with
such accountants' report thereon, (ii) unaudited interim financial statements
for Company and its Subsidiaries for the Fiscal Quarter ended April 30, 2002 and
for each of the Targets and their respective Subsidiaries for the fiscal quarter
ended Xxxxx 00, 0000, (xxx) a pro forma balance sheet of Company and its
Subsidiaries as of the Closing Date, giving effect to the Merger and the
transactions contemplated by this Agreement, and (iv) projected financial
statements (including balance sheets, income and cash flow statements) of
Company and its Subsidiaries for the five-year period after the Closing Date,
giving effect to the Merger and the transactions contemplated by this Agreement,
all of the foregoing in form and substance satisfactory to Co-Lead Arrangers.
H. OPINIONS OF COUNSEL TO LOAN PARTIES. Lenders shall have received
originally executed copies of one or more favorable written opinions of Xxxxxx
Godward LLP, counsel for Loan Parties, in form and substance reasonably
satisfactory to Administrative Agent and its counsel, dated as of the Closing
Date and setting forth substantially the matters in the opinions designated in
Exhibit IX annexed hereto and as to such other matters as Administrative Agent
acting on behalf of Lenders may reasonably request, and favorable written
opinions of other counsel to the Loan Parties in form and substance reasonably
satisfactory to Administrative Agent setting forth such matters as
Administrative Agent may reasonably request (this Credit Agreement constituting
a written request by Company to such counsel to deliver such opinions to
Lenders).
I. SOLVENCY ASSURANCES. On the Closing Date, Administrative Agent and
Lenders shall have received an Officer's Certificate of Company dated the
Closing Date, substantially in the form of Exhibit XIII annexed hereto and with
appropriate attachments, in each case demonstrating that, after giving effect to
the consummation of the transactions contemplated by the Loan Documents,
Company, Targets and each Subsidiary Guarantor taken as a whole will be Solvent.
J. EVIDENCE OF INSURANCE. Administrative Agent shall have received a
certificate from Company's insurance broker or other evidence satisfactory to it
that all insurance required to be maintained pursuant to subsection 6.4 is in
full force and effect and that Administrative Agent on behalf of Lenders has
been named as additional insured and/or loss payee thereunder to the extent
required under subsection 6.4.
K. NECESSARY GOVERNMENTAL AUTHORIZATIONS AND CONSENTS; EXPIRATION OF
WAITING PERIODS, ETC. Company shall have obtained all Governmental
Authorizations and all consents of other Persons, in each case that are
necessary in connection with the Merger and the other
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transactions contemplated by the Loan Documents and the Related Agreements and
each of the foregoing shall be in full force and effect, in each case other than
those the failure to obtain or maintain which, either individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.
All applicable waiting periods shall have expired without any action being taken
or threatened by any competent authority which would restrain, prevent or
otherwise impose adverse conditions on the Merger or the financing thereof. No
action, request for stay, petition for review or rehearing, reconsideration, or
appeal with respect to any of the foregoing shall be pending, and the time for
any applicable Government Authority to take action to set aside its consent on
its own motion shall have expired.
L. CONSUMMATION OF MERGER.
(i) All conditions to the Merger set forth in the Merger Agreement
shall have been satisfied or the fulfillment of any such conditions shall
have been waived and in the case of a waiver of a material condition to
the performance of the obligations of Company with the consent of the
Co-Arrangers;
(ii) The Merger shall become effective concurrently with the making
of the Loans in accordance with the terms of the Merger Agreement and any
documents executed or delivered in connection therewith and in accordance
with the laws of the State of Delaware;
(iii) Transaction Costs shall be approximately $42,000,000, and
Administrative Agent shall have received evidence to its satisfaction to
such effect; and
(iv) Administrative Agent shall have received satisfactory evidence
of the filing of the documents with the Delaware Secretary of State
effecting the Merger.
M. SECURITY INTERESTS IN COLLATERAL. Administrative Agent shall have
received evidence satisfactory to it that Company and Subsidiary Guarantors
shall have taken or caused to be taken all such actions, executed and delivered
or caused to be executed and delivered all such agreements, documents and
instruments, and made or caused to be made all such filings and recordings
(other than the filing or recording of items described in clauses (ii), (iii)
and (iv) below) that may be necessary or, in the opinion of Administrative
Agent, desirable in order to create in favor of Administrative Agent, for the
benefit of Lenders, a valid and (upon such filing and recording) perfected First
Priority security interest in all Collateral. Such actions shall include the
following:
(i) Stock Certificates and Instruments. Delivery to Administrative
Agent of (a) certificates (which certificates shall be accompanied by
irrevocable undated stock powers, duly endorsed in blank and otherwise
satisfactory in form and substance to Administrative Agent) representing
all Capital Stock pledged pursuant to the Security Agreement and (b) all
promissory notes or other instruments (duly endorsed, where appropriate,
in a manner satisfactory to Administrative Agent) evidencing any
Collateral;
(ii) Lien Searches and UCC Termination Statements. Delivery to
Administrative Agent of (a) the results of a recent search, by a Person
satisfactory to Administrative Agent, of all effective UCC financing
statements and fixture filings and
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all judgment and tax lien filings which may have been made with respect to
any personal property of any Loan Party, together with copies of all such
filings disclosed by such search, and (b) UCC termination statements duly
executed by all applicable Persons for filing in all applicable
jurisdictions as may be necessary to terminate any effective UCC financing
statements or fixture filings disclosed in such search (other than any
such financing statements or fixture filings in respect of Liens permitted
to remain outstanding pursuant to the terms of this Agreement).
(iii) UCC Financing Statements. Delivery to Administrative Agent of
UCC financing statements, duly executed by each applicable Loan Party (if
required) with respect to all personal property Collateral of such Loan
Party, for filing in all jurisdictions as may be necessary or, in the
opinion of Administrative Agent, desirable to perfect the security
interests created in such Collateral pursuant to the Collateral Documents;
(iv) PTO Cover Sheets, Etc. Delivery to Administrative Agent of all
cover sheets or other documents or instruments required to be filed with
the PTO in order to create or perfect Liens in respect of any IP
Collateral; and
(v) Control Agreements. Delivery to Administrative Agent of such
Control Agreements with financial institutions and other Persons in order
to perfect Liens in respect of material Deposit Accounts, securities
accounts and other Collateral pursuant to the Collateral Documents.
N. MATTERS RELATING TO EXISTING INDEBTEDNESS OF COMPANY, TARGETS AND THEIR
SUBSIDIARIES. On the Closing Date, Company and its Subsidiaries shall have (a)
repaid in full all Indebtedness outstanding under the Existing Credit
Agreements, (b) terminated any commitments to lend or make other extensions of
credit thereunder, (c) delivered to Administrative Agent all documents or
instruments necessary to release all Liens securing Indebtedness or other
obligations of Company and its Subsidiaries thereunder, and (d) made
arrangements satisfactory to Administrative Agent with respect to the
cancellation of any letters of credit outstanding thereunder or the issuance of
Letters of Credit to support the obligations of Company and its Subsidiaries
with respect thereto.
O. MATTERS RELATING TO EXISTING SUBORDINATED INDEBTEDNESS. On or prior to
the Closing Date, Company shall have delivered to Administrative Agent a fully
executed or conformed copy of the Existing Subordinated Indentures and the
Existing Senior Subordinated Indenture.
P. COMPLETION OF PROCEEDINGS. All corporate and other proceedings taken or
to be taken in connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by Administrative
Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in
form and substance to Administrative Agent and such counsel, and Administrative
Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents as Administrative Agent may reasonably
request.
Q. COMPANY DISCLOSURE LETTER. Company shall have delivered to
Administrative Agent the Company Disclosure Letter.
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R. SUBSIDIARY GUARANTOR GROSS REVENUES. The aggregate gross revenues for
the Fiscal Year ended October 31, 2001 of Company and the Subsidiary Guarantors
as of the Closing Date shall be equal to at least 90% of the aggregate gross
revenues of Company and its Domestic Subsidiaries on a consolidated basis for
such Fiscal Year and each Material Domestic Subsidiary shall have executed the
Subsidiary Guaranty as of the Closing Date. Company shall deliver to
Administrative Agent a certificate demonstrating in reasonable detail compliance
with such requirements.
S. NO LITIGATION. There shall not be pending or threatened any Proceeding
in any court or before any arbitrator or Government Authority that could
reasonably be expected to have a Material Adverse Effect on the Loan Parties,
the Merger or the transactions contemplated by this Agreement.
4.2 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding Date are subject
to the following further conditions precedent:
A. Administrative Agent shall have received before that Funding Date, in
accordance with the provisions of subsection 2.1B, an originally executed Notice
of Borrowing, in each case signed by a duly authorized Officer of Company.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in the
other Loan Documents shall be true, correct and complete in all material
respects on and as of that Funding Date to the same extent as though made
on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true, correct and complete
in all material respects on and as of such earlier date; provided that
where a representation and warranty is already qualified as to
materiality, such representation and warranty shall be true, correct and
complete as so qualified;
(ii) No event shall have occurred and be continuing or would result
from the consummation of the borrowing contemplated by such Notice of
Borrowing that would constitute an Event of Default or a Potential Event
of Default;
(iii) Each Loan Party shall have performed in all material respects
all agreements and satisfied all conditions which this Agreement provides
shall be performed or satisfied by it on or before that Funding Date; and
(iv) No order, judgment or decree of any arbitrator or Government
Authority shall purport to enjoin or restrain any Lender from making the
Loans to be made by it on that Funding Date.
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4.3 CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder (whether or not the
applicable Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
A. On or before the date of issuance of the initial Letter of Credit
pursuant to this Agreement, the initial Loans shall have been made.
B. On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions of
subsection 3.1B(i), an originally executed Request for Issuance (or a facsimile
copy thereof), in each case signed by a duly authorized Officer of Company,
together with all other information specified in subsection 3.1B(i) and such
other documents or information as the applicable Issuing Lender may reasonably
require in connection with the issuance of such Letter of Credit.
C. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.2B shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Loan and the date
of issuance of such Letter of Credit were a Funding Date.
SECTION 5. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make
the Loans, to induce Issuing Lenders to issue Letters of Credit and to induce
Revolving Lenders to purchase participations therein, Company represents and
warrants to each Lender:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Each Loan Party is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization. Each Loan Party has all requisite power and authority to own and
operate its properties, to carry on its business as now conducted and as
proposed to be conducted, to enter into the Loan Documents and the Related
Agreements to which it is a party and to carry out the transactions contemplated
thereby.
B. QUALIFICATION AND GOOD STANDING. Each Loan Party is qualified to do
business and in good standing in every jurisdiction where its assets are located
and wherever necessary to carry out its business and operations, in each case
except in jurisdictions where the failure to be so qualified or in good standing
has not had and would not be likely to result in a Material Adverse Effect with
respect to such Loan Party.
C. CONDUCT OF BUSINESS. Company and its Subsidiaries are engaged only in
the businesses permitted to be engaged in pursuant to subsection 7.11.
D. SUBSIDIARIES. All of the Subsidiaries of Company as of the Closing Date
(including Targets and their respective Subsidiaries) and their jurisdictions of
organization are identified on Schedule 5.1D of the Company Disclosure Letter.
Each of the Subsidiary Guarantors, in each case identified on Schedule 5.1D of
the Company Disclosure Letter, is duly organized and
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formed, validly existing and in good standing under the laws of its respective
jurisdiction of organization, has all requisite power and authority to own and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted, and is qualified to do business and in good standing
in every jurisdiction where its assets are located and wherever necessary to
carry out its business and operations, in each case except where failure to be
so qualified or in good standing or a lack of such power and authority has not
had and would not be likely to result in a Material Adverse Effect.
E. INACTIVE SUBSIDIARIES. None of the Subsidiaries of Company or Targets
identified on Schedule 5.1E of the Company Disclosure Letter under the heading
"Inactive Subsidiaries" ("INACTIVE SUBSIDIARIES"), as said Schedule 5.1E may be
supplemented from time to time pursuant to the provisions of subsection 6.1(xv),
is conducting any material business, owns any material property or is generating
any material revenue.
F. CAPITALIZATION. As of the Closing Date, Schedule 4.1C of the Company
Disclosure Letter correctly sets forth the ownership interest of Company and
each of its Domestic Subsidiaries in each of the Domestic Subsidiaries of
Company identified therein and of Targets and each of their respective
Subsidiaries in each of the respective Subsidiaries of Targets identified
therein. Schedule 4.1C of the Company Disclosure Letter correctly sets forth, as
of the Closing Date, the total number of outstanding shares of such
Subsidiaries' Capital Stock. As of the Closing Date, no other class of Capital
Stock of Company or Targets is outstanding. The Capital Stock of Company,
Targets and each of their respective Subsidiaries identified on Schedule 4.1C of
the Company Disclosure Letter is duly authorized, validly issued, fully paid and
nonassessable and none of such Capital Stock constitutes Margin Stock.
G. OPTIONS AND OTHER RIGHTS. As of the Closing Date, except as set forth
on Schedule 5.1G of the Company Disclosure Letter and except for issuances of
options to directors and employees of Company and its Subsidiaries pursuant to a
written employee benefit plan maintained by Company or any of its Subsidiaries,
there are no outstanding subscriptions, warrants, calls, options, rights
(including unsatisfied preemptive rights), commitments or agreements to which
Company or any of its Subsidiaries or Targets or any of their respective
Subsidiaries is bound that permit or entitle any Person to purchase or otherwise
to receive from or to be issued any shares of Capital Stock of Company or any of
its Subsidiaries or Targets or any of their respective Subsidiaries or any
security or obligation of any kind convertible into any class of Capital Stock
of Company or any of its Subsidiaries or Targets or any of their respective
Subsidiaries.
5.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and performance of
the Loan Documents and the Related Agreements have been duly authorized by all
necessary action on the part of each Loan Party that is a party thereto.
B. NO CONFLICT. The execution, delivery and performance by each Loan Party
of the Loan Documents and the Related Agreements to which it is a party and the
consummation of the transactions contemplated by the Loan Documents and such
Related Agreements do not and will not (i) violate any provision of any law or
any governmental rule or regulation applicable to
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Company or any of its Subsidiaries, the Organizational Documents of Company or
any of its Subsidiaries or any order, judgment or decree of any court or other
Government Authority binding on Company or any of its Subsidiaries, (ii)
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any Contractual Obligation of Company or any of
its Subsidiaries in any manner that would be likely to result in a Material
Adverse Effect; (iii) result in or require the creation or imposition of any
Lien upon any of the properties or assets of Company or any of its Subsidiaries
(other than any Liens created under any of the Loan Documents in favor of
Administrative Agent on behalf of Lenders or Permitted Encumbrances); or (iv)
require any approval of stockholders or any approval or consent of any Person
under any Contractual Obligation of Company or any of its Subsidiaries, except
for such approvals or consents which will be obtained on or before the Closing
Date and disclosed in writing to Lenders.
C. GOVERNMENTAL CONSENTS. The execution, delivery and performance by each
Loan Party of the Loan Documents and the Related Agreements to which it is a
party and the consummation of the transactions contemplated by the Loan
Documents and such Related Agreements do not and will not require any
Governmental Authorization.
D. BINDING OBLIGATION. Each of the Loan Documents and the Related
Agreements has been duly executed and delivered by each Loan Party that is a
party thereto and is the legally valid and binding obligation of such Loan
Party, enforceable against such Loan Party in accordance with its respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability.
E. VALID ISSUANCE OF SENIOR NOTES. Company has the power and authority to
issue the Senior Notes. The Senior Notes when executed and delivered or issued
and paid for, as the case may be, will be the legally valid and binding
obligations of Company, enforceable against Company in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability. The
Senior Notes when issued and sold will either (a) have been registered or
qualified under applicable federal and state securities laws or (b) be exempt
therefrom.
5.3 FINANCIAL CONDITION.
Company has heretofore delivered to Lenders, at Lenders' request,
(i) the audited consolidated balance sheet of Company and its Subsidiaries as at
October 31, 2001 and the related consolidated statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for the
Fiscal Year then ended and (ii) the unaudited consolidated balance sheets of
Company and its Subsidiaries as at January 31, 2002 and April 30, 2002 and the
related unaudited consolidated statements of income, stockholders' equity and
cash flows of Company and its Subsidiaries for the periods then ended. All such
statements were prepared in conformity with GAAP and fairly present, in all
material respects, the financial position (on a consolidated basis) of the
entities described in such financial statements as at the respective dates
thereof and the results of operations and cash flows (on a consolidated basis)
of the entities described therein for each of the periods then ended, subject,
in the case of any such unaudited financial
74
statements, to changes resulting from audit and normal year-end adjustments.
Neither Company nor any of its Subsidiaries has (and will not have following the
funding of the initial Loans) any Contingent Obligation, contingent liability or
liability for taxes, long-term lease or unusual forward or long-term commitment
that is not reflected in the foregoing financial statements or the notes thereto
and, as of any Funding Date subsequent to the Closing Date, is not reflected in
the most recent financial statements delivered to Lenders pursuant to subsection
6.1 or the notes thereto and that, in any such case, is material in relation to
the business, operations, properties, assets, condition (financial or otherwise)
or prospects of Company or any of its Subsidiaries taken as a whole.
Company has heretofore delivered to Lenders, at Lenders' request,
(i) the audited consolidated balance sheets of both Targets and their respective
Subsidiaries as at December 31, 2001 and the related consolidated statements of
income, stockholders' equity and cash flows of both Targets and their respective
Subsidiaries for the Targets Fiscal Year then ended and (ii) the unaudited
consolidated balance sheets of both Targets and their respective Subsidiaries as
at March 31, 2002 and the related unaudited consolidated statements of income,
stockholders' equity and cash flows of the Targets and their respective
Subsidiaries for the periods then ended. All such statements were prepared in
conformity with GAAP and fairly present, in all material respects, the financial
position (on a consolidated basis) of the entities described in such financial
statements as at the respective dates thereof and the results of operations and
cash flows (on a consolidated basis) of the entities described therein for each
of the periods then ended, subject, in the case of any such unaudited financial
statements, to changes resulting from audit and normal year-end adjustments.
None of the Targets has (and will not following the funding of the initial Loans
have) any Contingent Obligation, contingent liability or liability for taxes,
long-term lease or unusual forward or long-term commitment that is not reflected
in the foregoing financial statements or the notes thereto and which in any such
case is material in relation to the business, operations, properties, assets,
financial condition or prospects of either of the Targets or any of their
respective Subsidiaries taken as a whole.
5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR PAYMENTS.
Since October 31, 2001, no event or change has occurred that has
resulted in or evidences, either in any case or in the aggregate, a Material
Adverse Effect. Neither Company nor any of its Subsidiaries has directly or
indirectly declared, ordered, paid or made, or set apart any sum or property
for, any Restricted Junior Payment or agreed to do so except as permitted by
subsection 7.5.
5.5 TITLE TO PROPERTIES; LIENS; REAL PROPERTY; LICENSES, TRADEMARKS; ETC.
A. TITLE TO PROPERTIES; LIENS. Company and its Subsidiaries (including
Targets and their respective Subsidiaries) have (i) good, sufficient and legal
title to (in the case of fee interests in real property), (ii) valid leasehold
interests in (in the case of leasehold interests in real or personal property),
or (iii) good title to (in the case of all other personal property), all of
their respective properties and assets reflected in the financial statements
referred to in subsection 5.3 or in the most recent financial statements
delivered pursuant to subsection 6.1, in each case except for assets disposed of
since the date of such financial statements in the ordinary course of
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business or as otherwise permitted under subsection 7.7. Except as permitted by
this Agreement, all such properties and assets are free and clear of Liens.
B. REAL PROPERTY. As of the Closing Date, Schedule 5.5B of the Company
Disclosure Letter contains a true, accurate and complete list of all fee
interests in any Real Property Asset of Company or any of its Subsidiaries
(including Targets or any of their respective Subsidiaries).
C. INTELLECTUAL PROPERTY. As of the Closing Date, Company and its
Subsidiaries (including Targets and their respective Subsidiaries) own or have
the right to use, all Intellectual Property used in the conduct of their
business, except where the failure to own or have such right to use in the
aggregate could not reasonably be expected to result in a Material Adverse
Effect. No claim has been asserted and is pending by any Person challenging or
questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does Company know of any
valid basis for any such claim, except for such claims that in the aggregate
could not reasonably be expected to result in a Material Adverse Effect. To
Company's knowledge, the use of such Intellectual Property by Company and its
Subsidiaries (including Targets and their respective Subsidiaries) does not
infringe on the rights of any Person, except for such claims and infringements
that, in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. All federal and state and all material foreign registrations of
and applications for Intellectual Property, and all material unregistered
Intellectual Property, that are owned or licensed by Company or any of its
Subsidiaries (including Targets and their respective Subsidiaries) on the
Closing Date are described on Schedule 5.5C of the Company Disclosure Letter.
5.6 LITIGATION; ADVERSE FACTS.
Except as set forth on Schedule 5.13 of the Company Disclosure
Letter, there are no Proceedings (whether or not purportedly on behalf of
Company, Targets or any of their respective Subsidiaries) at law or in equity,
or before or by any court or other Government Authority (including any
Environmental Claims) that are pending or, to the knowledge of any Responsible
Officer of Company, threatened against or affecting Company, Targets or any of
their respective Subsidiaries or any property of Company, Targets or any of
their respective Subsidiaries and that, individually or in the aggregate, would
be likely to result in a Material Adverse Effect. None of Company, Targets nor
any of their respective Subsidiaries (i) is in violation of any applicable laws
(including Environmental Laws) that, individually or in the aggregate, would be
likely to result in a Material Adverse Effect, or (ii) is subject to or in
default with respect to any final judgments, writs, injunctions, decrees, rules
or regulations of any court or other Government Authority, that, individually or
in the aggregate, would be likely to result in a Material Adverse Effect.
5.7 PAYMENT OF TAXES.
Except to the extent permitted by subsection 6.3 or to the extent
that failure to perform would not be likely to result in a Material Adverse
Effect, all tax returns and reports of Company and its Subsidiaries required to
be filed by any of them have been timely filed, and all taxes shown on such tax
returns to be due and payable and all assessments, fees and other governmental
charges upon Company and its Subsidiaries and upon their respective properties,
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assets, income, businesses and franchises that are due and payable have been
paid when due and payable. Company knows of no proposed tax assessment against
Company or any of its Subsidiaries that is not being actively contested by
Company or such Subsidiary in good faith and by appropriate proceedings;
provided that such reserves or other appropriate provisions, if any, as shall be
required in conformity with GAAP shall have been made or provided therefor.
5.8 PERFORMANCE OF AGREEMENTS; MATERIALLY ADVERSE AGREEMENTS; MATERIAL
CONTRACTS.
Neither Company nor any of its Subsidiaries (including Targets and
their respective Subsidiaries) is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
of its Contractual Obligations, and no condition exists that, with the giving of
notice or the lapse of time or both, would constitute such a default, except
where the consequences, direct or indirect, of such default or defaults, if any,
would not be likely to result in a Material Adverse Effect.
5.9 GOVERNMENTAL REGULATION.
Neither Company nor any of its Subsidiaries is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act or the Investment Company Act of 1940 or under any other
federal or state statute or regulation which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of the Obligations
unenforceable.
5.10 SECURITIES ACTIVITIES.
A. Neither Company nor any of its Subsidiaries is engaged principally, or
as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock.
B. Following application of the proceeds of each Loan, not more than 25%
of the value of the assets (either of Company only or of Company and its
Subsidiaries on a consolidated basis) subject to the provisions of subsection
7.2 or 7.7 or subject to any restriction contained in any agreement or
instrument, between Company and any Lender or any Affiliate of any Lender,
relating to Indebtedness and within the scope of subsection 8.2, will be Margin
Stock.
5.11 EMPLOYEE BENEFIT PLANS.
A. Company, each of its Subsidiaries and each of their respective ERISA
Affiliates are in compliance with all applicable provisions and requirements of
ERISA and the regulations thereunder with respect to each Employee Benefit Plan
of Company and its Subsidiaries, and have performed all their obligations under
each such Employee Benefit Plan, except where such failure to comply or failure
to perform would not be likely to result in a Material Adverse Effect. Each such
Employee Benefit Plan that is intended to qualify under Section 401(a) of the
Internal Revenue Code is so qualified.
B. No ERISA Event has occurred or is reasonably expected to occur.
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C. Except to the extent required under Section 4980B of the Internal
Revenue Code or except as set forth on Schedule 5.11 of the Company Disclosure
Letter, no such Employee Benefit Plan provides health or welfare benefits
(through the purchase of insurance or otherwise) for any retired or former
employee of Company, any of its Subsidiaries or any of their respective ERISA
Affiliates.
D. As of the most recent valuation date for any Pension Plan of Company
and its Subsidiaries, the amount of unfunded benefit liabilities (as defined in
Section 4001(a)(18) of ERISA), individually or in the aggregate for all such
Pension Plans (excluding for purposes of such computation any such Pension Plans
with respect to which assets exceed benefit liabilities), does not exceed
$10,000,000.
E. Either (i) as of the most recent valuation date for each Multiemployer
Plan, the potential liability of Company, its Subsidiaries and their respective
ERISA Affiliates for a complete withdrawal from such Multiemployer Plan (within
the meaning of Section 4203 of ERISA), when aggregated with such potential
liability for a complete withdrawal from all Multiemployer Plans, based on
information available pursuant to Section 4221(e) of ERISA, does not exceed
$10,000,000, or (ii) the current obligation of Company, its Subsidiaries and
their respective ERISA Affiliates to make payments required under Subtitle E of
Title IV of ERISA with respect to all Multiemployer Plans does not exceed
$2,000,000 per Fiscal Year.
5.12 CERTAIN FEES.
No broker's or finder's fee or commission will be payable with
respect to this Agreement or any of the transactions contemplated hereby, other
than those payable in connection with the Merger, and Company hereby indemnifies
Lenders against, and agrees that it will hold Lenders harmless from, any claim,
demand or liability for any such broker's or finder's fees alleged to have been
incurred in connection herewith or therewith and any expenses (including
reasonable fees, expenses and disbursements of counsel) arising in connection
with any such claim, demand or liability.
5.13 ENVIRONMENTAL PROTECTION.
Except as set forth on Schedule 5.13 of the Company Disclosure
Letter:
(i) neither Company nor any of its Subsidiaries nor, to the
knowledge of each Responsible Officer of Company, any of their respective
Facilities or operations are subject to any outstanding written order,
consent decree or settlement agreement with any Person relating to (a) any
Environmental Law, (b) any Environmental Claim, or (c) any Hazardous
Materials Activity that, individually or in the aggregate, would be likely
to result in a Material Adverse Effect;
(ii) neither Company nor any of its Subsidiaries has received on
its own behalf any letter or request for information under Section 104 of
the Comprehensive Environmental Response, Compensation, and Liability Act
(42 U.S.C. Section 9604) or any comparable state law;
78
(iii) there are and, to the knowledge of each Responsible Officer of
Company, have been no conditions, occurrences, or Hazardous Materials
Activities that could reasonably be expected to form the basis of an
Environmental Claim against Company or any of its Subsidiaries that,
individually or in the aggregate, would be likely to result in a Material
Adverse Effect;
(iv) neither Company nor any of its Subsidiaries nor, to the
knowledge of each Responsible Officer of Company, any predecessor of
Company or any of its Subsidiaries has filed on its own behalf any notice
under any Environmental Law indicating past or present treatment of
Hazardous Materials at any Facility, and none of Company's or any of its
Subsidiaries' operations involves (other than in a solely advisory
capacity) the generation, transportation, treatment, storage or disposal
of hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any state
equivalent; and
(v) compliance by Company and its Subsidiaries with all current or
reasonably foreseeable future requirements pursuant to or under
Environmental Laws would not, individually or in the aggregate, be likely
to result in a Material Adverse Effect.
5.14 EMPLOYEE MATTERS.
There is no strike or work stoppage in existence or threatened
involving Company or any of its Subsidiaries that would be likely to result in a
Material Adverse Effect.
5.15 SOLVENCY.
Each Loan Party, upon the incurrence of any Obligations by such Loan
Party on any date on which this representation is made, will be Solvent.
5.16 MATTERS RELATING TO COLLATERAL.
A. CREATION, PERFECTION AND PRIORITY OF LIENS. The execution and delivery
of the Collateral Documents by Loan Parties, together with (i) the actions taken
on or prior to the Closing Date pursuant to subsections 4.1M and 6.7 and (ii)
the delivery to Administrative Agent of any Pledged Collateral not delivered to
Administrative Agent at the time of execution and delivery of the applicable
Collateral Document (all of which Pledged Collateral has been so delivered) are
effective to create in favor of Administrative Agent for the benefit of Lenders,
as security for the respective Secured Obligations (as defined in the applicable
Collateral Document in respect of any Collateral), a valid First Priority Lien
on all of the Collateral, and all filings and other actions necessary or
desirable to perfect and maintain the perfection and First Priority status of
such Liens have been duly made or taken and remain in full force and effect,
other than the filing of any UCC financing statements delivered to
Administrative Agent for filing (but not yet filed) and the periodic filing of
UCC continuation statements in respect of UCC financing statements filed by or
on behalf of Administrative Agent.
B. GOVERNMENTAL AUTHORIZATIONS. No authorization, approval or other action
by, and no notice to or filing with, any Government Authority is required for
either (i) the pledge or grant by any Loan Party of the Liens purported to be
created in favor of Administrative Agent pursuant
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to any of the Collateral Documents or (ii) the exercise by Administrative Agent
of any rights or remedies in respect of any Collateral (whether specifically
granted or created pursuant to any of the Collateral Documents or created or
provided for by applicable law), except for filings or recordings contemplated
by subsection 5.16A and except as may be required, in connection with the
disposition of any Pledged Collateral, by laws generally affecting the offering
and sale of securities.
C. ABSENCE OF THIRD-PARTY FILINGS. Except such as may have been filed in
favor of Administrative Agent as contemplated by subsection 5.16A and to
evidence Liens permitted pursuant to subsection 7.2, (i) no effective UCC
financing statement, fixture filing or other instrument similar in effect
covering all or any part of the Collateral is on file in any filing or recording
office and (ii) no document granting any rights to any third party with respect
to any Intellectual Property that constitutes Collateral has been recorded with
the PTO.
D. MARGIN REGULATIONS. The pledge of the Pledged Collateral pursuant to
the Collateral Documents does not violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
E. INFORMATION REGARDING COLLATERAL. All information supplied to
Administrative Agent by or on behalf of any Loan Party with respect to any of
the Collateral (in each case taken as a whole with respect to any particular
Collateral) is accurate and complete in all material respects.
5.17 RELATED AGREEMENTS.
A. DELIVERY OF RELATED AGREEMENTS. Company has delivered to Lenders
complete and correct copies of each Related Agreement and of all exhibits and
schedules thereto.
B. TARGETS' WARRANTIES. Except to the extent otherwise set forth herein or
in the schedules to the Company Disclosure Letter, each of the representations
and warranties given by Targets to Company and Merger Subs in the Merger
Agreement is true and correct in all material respects as of the date hereof (or
as of any earlier date to which such representation and warranty specifically
relates) and will be true and correct in all material respects as of the Closing
Date and the Merger Date (or as of such earlier date, as the case may be), in
each case subject to the qualifications set forth in the schedules to the Merger
Agreement.
C. WARRANTIES OF COMPANY. Subject to the qualifications set forth therein,
each of the representations and warranties given by Company to Targets in the
Merger Agreement is true and correct in all material respects as of the date
hereof and will be true and correct in all material respects as of the Closing
Date.
D. SURVIVAL. Notwithstanding anything in the Merger Agreement to the
contrary, the representations and warranties of Company set forth in subsections
5.17B and 5.17C shall, solely for purposes of this Agreement, survive the
Closing Date for the benefit of Lenders.
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5.18 DISCLOSURE.
No representation or warranty of Company or any of its Subsidiaries
(including Targets and their respective Subsidiaries) contained in any Loan
Document or Related Agreement or in any other document, certificate or written
statement furnished to Lenders by or on behalf of Company or any of its
Subsidiaries (including Targets and their respective Subsidiaries) for use in
connection with the transactions contemplated by this Agreement, including the
Company Disclosure Letter, contains any untrue statement of a material fact or
omits to state a material fact (known to Company, in the case of any document
not furnished by it) necessary in order to make the statements contained herein
or therein not misleading in light of the circumstances in which the same were
made. Any projections and pro forma financial information contained in such
materials are based upon good faith estimates and assumptions believed by
Company to be reasonable at the time made, it being recognized by Lenders that
such projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by any such projections may
differ from the projected results. There are no facts known (or which should
upon the reasonable exercise of diligence be known) to Company (other than
matters of a general economic nature) that, individually or in the aggregate,
would be likely to result in a Material Adverse Effect and that have not been
disclosed herein or in such other documents, certificates and statements
furnished to Lenders for use in connection with the transactions contemplated
hereby.
5.19 SUBORDINATED INDEBTEDNESS.
The Obligations constitute "Senior Debt", "Senior Indebtedness" and
"Guarantor Senior Indebtedness" (as defined therein) that is entitled to the
benefits of the subordination provisions of the Existing Subordinated Indentures
and the Existing Senior Subordinated Indenture, as the case may be.
SECTION 6. COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 6.
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Company will maintain, and cause each of its Subsidiaries to
maintain, a system of accounting established and administered in accordance with
sound business practices to permit preparation of consolidated financial
statements in conformity with GAAP. Company will deliver to Administrative Agent
and Lenders:
(i) Company Quarterly Financials: (a) as soon as available and in
any event within 55 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year, the consolidated balance sheet of Company
and its Subsidiaries as at the end of such Fiscal Quarter and the related
consolidated statements of income and cash flows of Company and its
Subsidiaries for such Fiscal Quarter and for the period from the
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beginning of the then current Fiscal Year to the end of such Fiscal
Quarter, setting forth in each case in comparative form the corresponding
figures for the corresponding periods of the previous Fiscal Year, all in
reasonable detail and certified by the chief financial officer of Company
that they fairly present, in all material respects, the financial
condition of Company and its Subsidiaries as at the dates indicated and
the results of their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and normal year-end
adjustments, and (b) as soon as available and in any event within 90 days
after the end of each Fiscal Quarter, a summary of such consolidated
statements setting forth in comparative form the corresponding figures
from the Financial Plan for the current Fiscal Year and a narrative report
describing the operations of Company and its Subsidiaries in each case in
the form prepared for presentation to the Governing Body of Company for
such Fiscal Quarter and for the period from the beginning of the then
current Fiscal Year to the end of such Fiscal Quarter;
(ii) Company Year-End Financials: as soon as available and in any
event within 100 days after the end of each Fiscal Year, (a) the
consolidated balance sheet of Company and its Subsidiaries as at the end
of such Fiscal Year and the related consolidated statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for
such Fiscal Year, setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year, all in reasonable
detail and certified by the chief financial officer of Company that they
fairly present, in all material respects, the financial condition of
Company and its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods indicated, (b) a
summary of such consolidated statements setting forth in comparative form
the corresponding figures from the Financial Plan for the current Fiscal
Year and a narrative report describing the operations of Company and its
Subsidiaries in each case in the form prepared for presentation to the
Governing Body of Company for such Fiscal Year, and (c) in the case of
such consolidated financial statements, a report thereon of
PriceWaterhouse Coopers or other independent certified public accountants
of recognized national standing selected by Company and satisfactory to
Administrative Agent, which report shall be unqualified, shall express no
doubts about the ability of Company and its Subsidiaries to continue as a
going concern, and shall state that such consolidated financial statements
fairly present, in all material respects, the consolidated financial
position of Company and its Subsidiaries as at the dates indicated and the
results of their operations and their cash flows for the periods indicated
in conformity with GAAP applied on a basis consistent with prior years
(except as otherwise disclosed in such financial statements) and that the
examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally accepted
auditing standards;
(iii) Officer's Compliance and Pricing Certificates: together with
each delivery of financial statements of Company and its Subsidiaries
pursuant to subdivisions (i) and (ii) above, (a) an Officer's Certificate
of Company stating that the signers have reviewed the terms of this
Agreement and have made, or caused to be made under their supervision, a
review in reasonable detail of the transactions and condition of Company
and its Subsidiaries during the accounting period covered by such
financial statements and that such review has not disclosed the existence
during or at the end of
82
such accounting period, and that the signers do not have knowledge of the
existence as at the date of such Officer's Certificate, of any condition
or event that constitutes an Event of Default or Potential Event of
Default, or, if any such condition or event existed or exists, specifying
the nature and period of existence thereof and what action Company has
taken, is taking and proposes to take with respect thereto; and (b) a
Compliance Certificate demonstrating in reasonable detail compliance
during and at the end of the applicable accounting periods with the
restrictions contained in subsections 7.1(iv), (x), (xi), (xii) and
(xiii), 7.2A(viii), 7.3(ix), (xii) and (xiii), 7.4(x), 7.6, and 7.8, in
each case to the extent compliance with such restrictions is required to
be tested at the end of the applicable accounting period; in addition, on
or before the 55th day following the end of each Fiscal Quarter, a Pricing
Certificate demonstrating in reasonable detail the calculation of the
Consolidated Leverage Ratio as of the end of the four-Fiscal Quarter
period then ended;
(iv) Reconciliation Statements: if, as a result of any change in
accounting principles and policies from those used in the preparation of
the audited financial statements referred to in subsection 5.3, the
consolidated financial statements of Company and its Subsidiaries
delivered pursuant to subdivisions (i), (ii) or (xii) of this subsection
6.1 will differ in any material respect from the consolidated financial
statements that would have been delivered pursuant to such subdivisions
had no such change in accounting principles and policies been made, then
(a) together with the first delivery of financial statements pursuant to
subdivision (i), (ii) or (xii) of this subsection 6.1 following such
change, consolidated financial statements of Company and its Subsidiaries
for (y) the current Fiscal Year to the effective date of such change and
(z) the two full Fiscal Years immediately preceding the Fiscal Year in
which such change is made, in each case prepared on a pro forma basis as
if such change had been in effect during such periods, and (b) together
with each delivery of financial statements pursuant to subdivision (i),
(ii) or (xii) of this subsection 6.1 following such change, if required
pursuant to subsection 1.2, a written statement of the chief accounting
officer or chief financial officer of Company setting forth the
differences (including any differences that would affect any calculations
relating to the financial covenants set forth in subsection 7.6) which
would have resulted if such financial statements had been prepared without
giving effect to such change;
(v) Accountants' Certification: together with each delivery of
consolidated financial statements pursuant to subdivision (ii) above, a
written statement by the independent certified public accountants giving
the report thereon (a) stating that their audit examination has included a
review of the terms of this Agreement and the other Loan Documents as they
relate to accounting matters, (b) stating that, in connection with their
audit examination, nothing came to their attention that caused them to
believe that Company failed to comply with the terms, covenants,
provisions or conditions of subsections 7.6 and 7.8 insofar as they relate
to accounting matters, and (c) stating that based on their audit
examination nothing has come to their attention that causes them to
believe either or both that the information contained in the certificates
delivered therewith pursuant to subdivision (ii) above is not correct or
that the matters set forth in the Compliance Certificates delivered
therewith pursuant to clause (b) of subdivision (ii)
83
above for the applicable Fiscal Year are not stated in accordance with the
terms of this Agreement;
(vi) Accountants' Reports: promptly upon receipt thereof (unless
restricted by applicable professional standards), copies of all reports
submitted to Company by independent certified public accountants in
connection with each annual, interim or special audit of the financial
statements of Company and its Subsidiaries made by such accountants,
including any comment letter submitted by such accountants to the
Governing Body of Company in connection with their annual audit;
(vii) SEC Filings and Press Releases: promptly upon their becoming
available, copies of (a) all financial statements, reports, notices and
proxy statements sent or made available generally by Company to its
security holders or by any Subsidiary of Company to its security holders
other than Company or another Subsidiary of Company, (b) all regular and
periodic reports and all registration statements (other than on Form S-8
or a similar form) and prospectuses, if any, filed by Company or any of
its Subsidiaries with any securities exchange or with the Securities and
Exchange Commission or any governmental or private regulatory authority,
and (c) all press releases and other statements made available generally
by Company or any of its Subsidiaries to the public concerning material
developments in the business of Company or any of its Subsidiaries;
(viii) Events of Default, etc.: promptly upon any Responsible
Officer of Company obtaining knowledge (a) of any condition or event that
constitutes an Event of Default or Potential Event of Default, or becoming
aware that any Lender has given any notice (other than to Administrative
Agent) or taken any other action with respect to a claimed Event of
Default or Potential Event of Default, (b) that any Person has given any
notice to Company or any of its Subsidiaries or taken any other action
with respect to a claimed default or event or condition of the type
referred to in subsection 8.2, (c) of any condition or event that would be
required to be disclosed in a current report filed by Company with the
Securities and Exchange Commission on Form 8-K (Items 1, 2, 4, 5 and 6 of
such Form as in effect on the date hereof) if Company were required to
file such reports under the Exchange Act, or (d) of the occurrence of any
event or change that has caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect, an Officer's Certificate specifying
the nature and period of existence of such condition, event or change, or
specifying the notice given or action taken by any such Person and the
nature of such claimed Event of Default, Potential Event of Default,
default, event or condition, and what action Company has taken, is taking
and proposes to take with respect thereto;
(ix) Litigation or Other Proceedings: (a) promptly upon any
Responsible Officer of Company obtaining knowledge of (x) the institution
of, or non-frivolous threat of, any Proceeding against or affecting
Company or any of its Subsidiaries or any property of Company or any of
its Subsidiaries not previously disclosed in writing by Company to Lenders
or (y) any material development in any Proceeding that, in any case:
(1) is reasonably likely to result in a Material
Adverse Effect; or
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(2) seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief
as a result of, the transactions contemplated hereby;
written notice thereof together with such other information as may be
reasonably available to Company to enable Lenders and their counsel to
evaluate such matters; and (b) promptly upon request by Administrative
Agent, a copy of the list of Proceedings delivered by Company to its
independent certified public accountants in connection with the report
prepared by them on the consolidated financial statements of Company and
its Subsidiaries for each Fiscal Year, and promptly after request by
Administrative Agent such other information as may be reasonably requested
by Administrative Agent to enable Administrative Agent and its counsel to
evaluate any of such Proceedings;
(x) ERISA Events: promptly upon becoming aware of the occurrence
of or forthcoming occurrence of any ERISA Event, a written notice
specifying the nature thereof, what action Company, any of its
Subsidiaries or any of their respective ERISA Affiliates has taken, is
taking or proposes to take with respect thereto and, when known, any
action taken or threatened by the Internal Revenue Service, the Department
of Labor or the PBGC with respect thereto;
(xi) ERISA Notices: with reasonable promptness, copies of (a) all
notices received by Company, any of its Subsidiaries or any of their
respective ERISA Affiliates from a Multiemployer Plan sponsor concerning
an ERISA Event; and (b) copies of such other documents or governmental
reports or filings relating to any Employee Benefit Plan of Company or any
of its Subsidiaries as Administrative Agent shall reasonably request;
(xii) Financial Plans: as soon as practicable and in any event no
later than 75 days following the end of each Fiscal Year, a consolidated
plan and financial forecast for the then current Fiscal Year (the
"FINANCIAL PLAN" for such Fiscal Year), including, (a) a forecasted
consolidated balance sheet and forecasted consolidated statements of
income and cash flows of Company and its Subsidiaries for such Fiscal
Year, together with a projected Compliance Certificate for such Fiscal
Year and an explanation of the assumptions on which such forecasts are
based, (b) forecasted consolidated statements of income and cash flows of
Company and its Subsidiaries for each Fiscal Quarter of such Fiscal Year,
together with an explanation of the assumptions on which such forecasts
are based, and (c) such other information and projections as any Lender
may reasonably request;
(xiii) Insurance: as soon as practicable after any material change
in insurance coverage maintained by Company and its Subsidiaries, notice
thereof to Administrative Agent specifying the changes and reasons
therefor;
(xiv) Board of Directors: with reasonable promptness, written
notice of any change in the Governing Body of Company;
(xv) New Subsidiaries or Change in Status of Subsidiaries:
annually within 100 days of the end of each Fiscal Year, all of the data
required to be set forth on
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Schedule 4.1C of the Company Disclosure Letter with respect to all
Domestic Subsidiaries of Company and an Officer's Certificate, together
with supporting documentation in form and substance satisfactory to
Requisite Lenders, setting forth the aggregate gross revenues for the
immediately preceding Fiscal Year of the Subsidiary Guarantors, the
aggregate gross revenues for the immediately preceding Fiscal Year of all
Subsidiaries of Company, the Capital Stock of which constitutes Pledged
Collateral, a list of all Material Domestic Subsidiaries and a list of all
Subsidiaries of Company that have executed a guaranty in respect of the
obligations of Company under any indenture or agreement relating to
Securities of Company that have been privately placed pursuant to Rule
144A of the Securities Act or publicly registered under the Securities
Act;
(xvi) Subordinated Debt Notices: promptly upon receipt by Company
or any of its Subsidiaries of any notice with respect to any Subordinated
Indebtedness, and promptly upon the giving of notice by Company or any of
its Subsidiaries with respect to any Subordinated Indebtedness, in each
case relating to any default or payment or prepayment of principal of,
premium, if any, redemption, purchase, retirement, defeasance (including
in-substance or legal defeasance), sinking fund or similar payment with
respect to such Subordinated Indebtedness, a copy of such notice;
(xvii) Good Standing Certificates: Upon request by Administrative
Agent, good standing certificates as to each Loan Party from its
jurisdiction of organization; and
(xviii) Other Information: with reasonable promptness, such other
information and data with respect to Company or any of its Subsidiaries as
from time to time may be reasonably requested by any Lender.
6.2 CORPORATE EXISTENCE, ETC.
Except as permitted under subsection 7.7, Company will, and will
cause each of its Subsidiaries to, at all times preserve and keep in full force
and effect its existence in the jurisdiction of organization specified on
Schedule 5.1 and all rights and franchises material to its business; provided,
however, that neither Company nor any of its Subsidiaries shall be required to
preserve any such right or franchise if the Governing Body of Company or such
Subsidiary shall determine that the preservation thereof is no longer desirable
in the conduct of the business of Company or such Subsidiary, as the case may
be, and that the loss thereof is not disadvantageous in any material respect to
Company, such Subsidiary or Lenders.
6.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
A. Company will, and will cause each of its Subsidiaries to, pay all
taxes, assessments and other governmental charges imposed upon it or any of its
properties or assets or in respect of any of its income, businesses or
franchises before any penalty accrues thereon, and all claims (including, claims
for labor, services, materials and supplies) for sums that have become due and
payable and that by law have or may become a Lien upon any of its properties or
assets, prior to the time when any penalty or fine shall be incurred with
respect thereto, except where the failure to pay such taxes, assessments and
governmental charges would not be likely to result in a Material Adverse Effect;
provided that no such charge or claim need be paid if it is being
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contested in good faith by appropriate proceedings promptly instituted and
diligently conducted, so long as (i) such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made therefor and (ii) in the case of a charge or claim which has or may become
a Lien against any of the Collateral, such proceedings conclusively operate to
stay the sale of any portion of the Collateral to satisfy such charge or claim.
B. Company will not, nor will it permit any of its Subsidiaries to, file
or consent to the filing of any consolidated income tax return with any Person
(other than Company or any of its Subsidiaries).
6.4 MAINTENANCE OF PROPERTIES; INSURANCE; APPLICATION OF NET INSURANCE/
CONDEMNATION PROCEEDS.
A. MAINTENANCE OF PROPERTIES. Company will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good repair, working
order and condition, ordinary wear and tear excepted, all material properties
used or useful in the business of Company and its Subsidiaries (including all
Intellectual Property) and from time to time will make or cause to be made all
appropriate repairs, renewals and replacements thereof the failure of which
would be likely to result in a Material Adverse Effect.
B. INSURANCE. Company will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third
party property damage insurance, business interruption insurance and property
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by corporations
of established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for
corporations similarly situated in the industry. Without limiting the generality
of the foregoing, Company will maintain or cause to be maintained (i) flood
insurance with respect to each Flood Hazard Property that is located in a
community that participates in the National Flood Insurance Program, in each
case in compliance with any applicable regulations of the Board of Governors of
the Federal Reserve System, and (ii) replacement value property insurance on the
Collateral under such policies of insurance, with such insurance companies, in
such amounts, with such deductibles, and covering such risks as are at all times
satisfactory to Administrative Agent in its commercially reasonable judgment.
Each such policy of insurance shall (a) name Administrative Agent for the
benefit of Lenders as an additional insured thereunder as its interests may
appear and (b) in the case of each business interruption and property insurance
policy, contain a loss payable clause or endorsement, satisfactory in form and
substance to Administrative Agent, that names Administrative Agent for the
benefit of Lenders as the loss payee thereunder and provides for at least 30
days prior written notice to Administrative Agent of any modification or
cancellation of such policy.
C. APPLICATION OF NET INSURANCE/CONDEMNATION PROCEEDS.
(i) Business Interruption Insurance. Upon receipt by Company or
any of its Subsidiaries of any business interruption insurance proceeds
constituting Net Insurance/Condemnation Proceeds, (a) so long as no Event
of Default or Potential Event
87
of Default shall have occurred and be continuing, Company or such
Subsidiary may retain and apply such Net Insurance/Condemnation Proceeds
for working capital purposes, and (b) if an Event of Default or Potential
Event of Default shall have occurred and be continuing, Company shall
apply an amount equal to such Net Insurance/ Condemnation Proceeds to
prepay the Loans as provided in subsection 2.4B(iii)(b);
(ii) Net Insurance/Condemnation Proceeds Received by Company. Upon
receipt by Company or any of its Subsidiaries of any Net
Insurance/Condemnation Proceeds other than from business interruption
insurance, (a) so long as no Event of Default or Potential Event of
Default shall have occurred and be continuing, Company shall, or shall
cause one or more of its Subsidiaries to, promptly and diligently (and in
any event within 360 days of the date of receipt of such Net
Insurance/Condemnation Proceeds) apply such Net Insurance/Condemnation
Proceeds to pay or reimburse the costs of repairing, restoring or
replacing the assets in respect of which such Net Insurance/Condemnation
Proceeds were received or, to the extent not so applied within such
360-day period), to prepay the Loans as provided in subsection
2.4B(iii)(b), and (b) if an Event of Default or Potential Event of Default
shall have occurred and be continuing, Company shall apply an amount equal
to such Net Insurance/Condemnation Proceeds to prepay the Loans as
provided in subsection 2.4B(iii)(b); and
(iii) Net Insurance/Condemnation Proceeds Received by Administrative
Agent. Upon receipt by Administrative Agent of any Net
Insurance/Condemnation Proceeds as loss payee, (a) if and to the extent
Company would have been required to apply such Net Insurance/Condemnation
Proceeds (if it had received them directly) to prepay the Loans under
subsection 6.4C(ii), Administrative Agent shall, and Company hereby
authorizes Administrative Agent to, apply such Net Insurance/Condemnation
Proceeds to prepay the Loans as provided in subsection 2.4B(iii)(b), and
(b) to the extent the foregoing clause (a) does not apply, Administrative
Agent shall deliver such Net Insurance/Condemnation Proceeds to Company,
and Company shall, or shall cause one or more of its Subsidiaries to,
promptly apply such Net Insurance/Condemnation Proceeds to the costs of
repairing, restoring, or replacing the assets in respect of which such Net
Insurance/Condemnation Proceeds were received, and to the extent not so
applied, to prepay the Loans as provided in subsection 2.4B(iii)(b).
6.5 INSPECTION RIGHTS; LENDER MEETING.
A. INSPECTION RIGHTS. Company shall, and shall cause each of its
Subsidiaries to, permit any authorized representatives designated by
Administrative Agent, including representatives designated by Administrative
Agent at the request of any Requisite Class Lenders, to visit and inspect any of
the properties of Company or of any of its Subsidiaries, to inspect, copy and
take extracts from its and their financial and accounting records, and to
discuss its and their affairs, finances and accounts with its and their officers
and independent public accountants (provided that Company may, if it so chooses,
be present at or participate in any such discussion), all upon reasonable notice
and at such reasonable times during normal business hours one time per Fiscal
Year as Administrative Agent may request and, following the occurrence and
during the continuation of any Event of Default, at any time or from time to
time.
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B. LENDER MEETING. Company will, upon the request of Administrative Agent
or Requisite Lenders, participate in a meeting of Administrative Agent and
Lenders once during each Fiscal Year to be held at such location and at such
time as may be agreed to by Company and Administrative Agent.
6.6 COMPLIANCE WITH LAWS, ETC.
Company shall comply, and shall cause each of its Subsidiaries to comply,
with the requirements of all applicable laws, rules, regulations and orders of
any Government Authority (including all Environmental Laws), noncompliance with
which would be likely to cause, individually or in the aggregate, a Material
Adverse Effect.
6.7 EXECUTION OF SUBSIDIARY GUARANTY AND PERSONAL PROPERTY COLLATERAL
DOCUMENTS BY CERTAIN ADDITIONAL SUBSIDIARIES.
A. EXECUTION OF SUBSIDIARY GUARANTY AND PERSONAL PROPERTY COLLATERAL
DOCUMENTS. In the event that the aggregate gross revenues for any Fiscal Year,
commencing with the Fiscal Year ending October 31, 2002, of Company and the
Subsidiary Guarantors is less than 90% of the aggregate gross revenues of
Company and its Domestic Subsidiaries on a consolidated basis for such Fiscal
Year, Company will, within 100 days after the end of such Fiscal Year, (i) cause
one or more additional Domestic Subsidiaries to execute and deliver to
Administrative Agent a counterpart of the Subsidiary Guaranty and Security
Agreement such that the aggregate gross revenues for such Fiscal Year of Company
and all Subsidiary Guarantors shall be equal to at least 90% of the aggregate
gross revenues of Company and its Domestic Subsidiaries on a consolidated basis
for such Fiscal Year, and (ii) take, or cause each such Domestic Subsidiary to
take, all such further actions and execute all such further documents and
instruments (including actions, documents and instruments comparable to those
described in subsection 4.1M) as may be necessary or, in the opinion of
Administrative Agent, desirable to create in favor of Administrative Agent, for
the benefit of Lenders, a valid First Priority Lien on substantially all
personal property and all Material Real Property of each such Domestic
Subsidiary described in the applicable forms of Collateral Documents. In
addition, in the event that (i) any Person becomes a Material Domestic
Subsidiary after the date hereof, and such Material Domestic Subsidiary has not
previously executed the Subsidiary Guaranty, or (ii) any Subsidiary of Company
that has not previously executed the Subsidiary Guaranty becomes a guarantor in
respect of the obligations of Company under any indenture or agreement relating
to Securities of Company that have been privately placed pursuant to Rule 144A
of the Securities Act or publicly registered under the Securities Act, Company
will promptly (a) cause such Subsidiary to execute and deliver to Administrative
Agent a counterpart of the Subsidiary Guaranty and the Security Agreement and
(b) take, or cause such Subsidiary to take, all such further actions and execute
all such further documents and instruments (including actions, documents and
instruments comparable to those described in subsection 4.1M) as may be
necessary or, in the opinion of Administrative Agent, desirable to create in
favor of Administrative Agent, for the benefit of Lenders, a valid First
Priority Lien on substantially all personal property and all Material Real
Property of each such Subsidiary described in the applicable forms of Collateral
Documents. In addition, as provided in the Security Agreement, Company shall, or
shall cause the Domestic Subsidiary that owns the Capital Stock of any Domestic
Subsidiary required to execute a counterpart of the Subsidiary Guaranty and
Security Agreement or any Material Domestic
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Subsidiary (and any direct or indirect parent of such Domestic Subsidiary or
Material Domestic Subsidiary), to execute and deliver to Administrative Agent a
supplement to the Security Agreement and to deliver to Administrative Agent all
certificates representing such Capital Stock of such Domestic Subsidiary or
Material Domestic Subsidiary (accompanied by irrevocable undated stock powers,
duly endorsed in blank).
B. SUBSIDIARY ORGANIZATIONAL DOCUMENTS, LEGAL OPINIONS, ETC. Company shall
deliver to Administrative Agent, together with such Loan Documents, (i)
certified copies of the Organizational Documents of each Domestic Subsidiary or
Material Domestic Subsidiary required to execute a counterpart of the Subsidiary
Guaranty and Security Agreement pursuant to subsection 6.7A, together with a
good standing certificate from the Secretary of State of the jurisdiction of its
organization and, to the extent generally available, a certificate or other
evidence of good standing as to payment of any applicable franchise or similar
taxes from the appropriate taxing authority of such jurisdiction, each to be
dated a recent date prior to their delivery to Administrative Agent, (ii) a
certificate executed by the secretary or similar officer of such Domestic
Subsidiary or Material Domestic Subsidiary as to (a) the fact that the attached
resolutions of the Governing Body of such Subsidiary approving and authorizing
the execution, delivery and performance of such Loan Documents are in full force
and effect and have not been modified or amended and (b) the incumbency and
signatures of the officers of such Subsidiary executing such Loan Documents,
(iii) an executed supplement to the Security Agreement evidencing the pledge of
the Capital Stock of such Domestic Subsidiary or Material Domestic Subsidiary by
Company or the Domestic Subsidiary that owns such Capital Stock, accompanied by
certificate evidencing such Capital Stock, together with an irrevocable undated
stock powers duly endorsed in blank and satisfactory in form and substance to
Administrative Agent, and, if requested by Administrative Agent, (iv) a
favorable opinion of counsel to such Domestic Subsidiary or Material Domestic
Subsidiary, in form and substance reasonably satisfactory to Administrative
Agent and its counsel, as to (a) the due organization and good standing of such
Subsidiary, (b) the due authorization, execution and delivery by such Subsidiary
of such Loan Documents, (c) the enforceability of such Loan Documents against
such Subsidiary and (d) such other matters (including matters relating to the
creation and perfection of Liens in any Collateral pursuant to such Loan
Documents) as Administrative Agent may reasonably request, all of the foregoing
to be in form and substance reasonably satisfactory to Administrative Agent and
its counsel.
C. OPTIONAL GUARANTY. In the event that any Subsidiary of Company executes
a guaranty of the Senior Notes or Existing Senior Subordinated Notes, Company
will (i) cause such Subsidiary to execute and deliver to Administrative Agent a
counterpart of the Subsidiary Guaranty and Security Agreement and (ii) take, or
cause each such Subsidiary to take, all such further actions and execute all
such further documents and instruments (including actions, documents and
instruments comparable to those described in subsection 4.1M) as may be
necessary or, in the opinion of Administrative Agent, desirable to create in
favor of Administrative Agent, for the benefit of Lenders, a valid First
Priority Lien on substantially all personal property and all Material Real
Property of each such Subsidiary described in the applicable forms of Collateral
Documents.
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6.8 MATTERS RELATING TO REAL PROPERTY COLLATERAL.
From and after the Closing Date, in the event that (i) Company or any
Subsidiary Guarantor acquires any Material Real Property or (ii) at the time any
Person becomes a Subsidiary Guarantor, such Person owns or holds any Material
Real Property, in either case excluding any such Real Property Asset the
encumbrancing of which requires the consent of any then-existing senior
lienholder, where Company and its Subsidiaries have attempted in good faith, but
are unable, to obtain such senior lienholder's consent (any such non-excluded
Material Real Property described in the foregoing clause (i) or (ii) being a
"MORTGAGED PROPERTY"), Company or such Subsidiary Guarantor shall deliver to
Administrative Agent, as soon as practicable after such Person acquires such
Mortgaged Property or becomes a Subsidiary Guarantor, as the case may be, a
fully executed and notarized Mortgage in proper form for recording in all
appropriate places in all applicable jurisdictions, encumbering the interest of
such Loan Party in such Mortgaged Property; and such opinions, appraisal,
documents, title insurance, environmental reports that may be reasonably
required by Administrative Agent.
6.9 DEPOSIT ACCOUNTS.
From and after the date which is 30 days after the Closing Date, Company
and Subsidiary Guarantors shall not permit any Deposit Accounts at any time to
have a principal balance in excess of $85,000 unless Company or such Subsidiary
Guarantor, as the case may be, has (i) executed and delivered to Administrative
Agent a Control Agreement and (ii) taken all other steps necessary or, in the
opinion of Administrative Agent, desirable to ensure that Administrative Agent
has a perfected security interest in such Deposit Account; provided that (a) if
Company or such Subsidiary Guarantor is unable to obtain a Control Agreement
from such financial institution Company shall, or shall cause such Subsidiary
Guarantor to, within 30 days after receiving a written request by Administrative
Agent to do so, transfer all amounts in the applicable Deposit Account to a
Deposit Account maintained at a financial institution from which Company or such
Subsidiary Guarantor has obtained a Control Agreement, and (b) Company and
Subsidiary Guarantors shall not be required to deliver Control Agreements with
respect to Deposit Accounts maintained for the purpose of paying claims under
self-insured health care plans.
6.10 STOCK CERTIFICATES.
On or before the date which is 60 days after the Closing Date, Company and
Subsidiary Guarantors shall have delivered certificates representing the Capital
Stock listed on Schedule 6.10 of the Company Disclosure Letter to Administrative
Agent to be held for the benefit of Lenders pursuant to the Security Agreement.
SECTION 7. COMPANY'S NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 7.
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7.1 INDEBTEDNESS.
Company shall not, and shall not permit any of its Subsidiaries or
any Joint Venture in which Company or any of its Subsidiaries has any interest
to, directly or indirectly, create, incur, assume or guaranty, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Company and its Subsidiaries may become and remain liable with
respect to the Obligations;
(ii) Company, its Subsidiaries and such Joint Ventures may become
and remain liable with respect to Contingent Obligations permitted by
subsection 7.4 and, upon any matured obligations actually arising pursuant
thereto, the Indebtedness corresponding to the Contingent Obligations so
extinguished;
(iii) Company may become and remain liable with respect to
Indebtedness to any Subsidiary Guarantor, and any Subsidiary Guarantor may
become and remain liable with respect to Indebtedness to Company or any
other Subsidiary Guarantor; provided that (a) Company or such Subsidiary
Guarantor grants to Administrative Agent, on behalf of Lenders, a security
interest in all such intercompany Indebtedness; (b) all such intercompany
Indebtedness shall be evidenced by promissory notes delivered to
Administrative Agent; (c) all such intercompany Indebtedness owed by
Company to any such Subsidiary Guarantor and by any such Subsidiary
Guarantor to Company shall be subordinated in right of payment to the
payment in full of the Obligations pursuant to the terms of the applicable
promissory notes or an intercompany subordination agreement; and (d) any
payment by any such Subsidiary Guarantor under any guaranty of the
Obligations shall result in a pro tanto reduction of the amount of any
intercompany Indebtedness owed by such Subsidiary Guarantor to Company or
to any such Subsidiary Guarantor for whose benefit such payment is made;
(iv) any Subsidiary of Company (other than an Inactive Subsidiary
or any Foreign Subsidiary that has become and remains liable for
Indebtedness in an aggregate principal amount of $5,000,000 or more
permitted by clause (x) below) and any such Joint Venture may become and
remain liable with respect to Indebtedness to Company or any of its
Subsidiaries; provided that (a) Company or such Subsidiary, if such
Subsidiary is a Subsidiary Guarantor, grants to Administrative Agent, on
behalf of Lenders, a security interest in all such intercompany
Indebtedness; (b) Company delivers to Administrative Agent all promissory
notes evidencing such Indebtedness, if any; and (c) the aggregate
principal amount of all such Indebtedness does not exceed $25,000,000 at
any time outstanding;
(v) Any Foreign Subsidiary may become and remain liable with
respect to Indebtedness to any other Foreign Subsidiary;
(vi) Company may remain liable with respect to Indebtedness
evidenced by the Senior Notes in an aggregate principal amount not to
exceed $200,000,000 at any time outstanding;
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(vii) any Joint Venture may become and remain liable with respect
to Indebtedness to Persons other than Company or any of its Subsidiaries,
provided that such Indebtedness is nonrecourse to Company, its
Subsidiaries and their respective assets;
(viii) any Joint Venture may become and remain liable with respect
to Indebtedness to Company or any Subsidiary of Company (other than an
Inactive Subsidiary) to the extent such corresponding Investment by
Company or any such Subsidiary is permitted by subsections 7.3(xii) and
(xiii);
(ix) Company, its Subsidiaries and any Joint Venture, as
applicable, may remain liable with respect to Indebtedness (including the
amount of any committed lines of credit) described on Schedule 7.1 of the
Company Disclosure Letter;
(x) Foreign Subsidiaries may become and remain liable with
respect to Indebtedness to Persons other than Company or any of its
Subsidiaries in an aggregate principal amount (including the amount of any
such Indebtedness listed on Schedule 7.1 of the Company Disclosure Letter)
not to exceed $40,000,000 at any time outstanding; provided that such
amount shall be increased by 5% as of the last day of each Fiscal Year,
commencing with the Fiscal Year ending October 31, 2003;
(xi) Company and its Domestic Subsidiaries (other than Inactive
Subsidiaries) may remain liable with respect to Capital Leases listed on
Schedule 7.1 of the Company Disclosure Letter and may become and remain
liable with respect to additional Capital Leases in an aggregate principal
amount not to exceed (a) $8,000,000 in the Fiscal Year ending October 31,
2002, and (b) $20,000,000 in any Fiscal Year thereafter; provided that
such amount shall be increased by $5,000,000 for each Fiscal Year,
commencing with the Fiscal Year ending October 31, 2004;
(xii) Company may become and remain liable with respect to up to
$200,000,000 of unsecured Subordinated Indebtedness of Company issued in
connection with an acquisition permitted pursuant to subsection 7.3(ix);
and
(xiii) Company and its Domestic Subsidiaries (other than Inactive
Subsidiaries) may become and remain liable with respect to other
Indebtedness to Persons other than Company or any of its Subsidiaries in
an aggregate principal amount not to exceed $25,000,000 at any time
outstanding; provided that such amount shall be increased by 10% as of the
last day of each Fiscal Year, commencing with the Fiscal Year ending
October 31, 2003.
7.2 LIENS AND RELATED MATTERS.
A. PROHIBITION ON LIENS. Company shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any
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such property, asset, income or profits under the UCC or under any similar
recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents;
(iii) Liens listed on Schedule 7.2 of the Company Disclosure
Letter;
(iv) Liens on any asset existing at the time of acquisition of
such asset by Company or a Subsidiary, or Liens to secure the payment of
all or any part of the purchase price of an asset upon the acquisition of
such asset by Company or a Subsidiary or to secure any Indebtedness
permitted hereby incurred by Company or a Subsidiary at the time of or
within ninety days after the acquisition of such asset, which Indebtedness
is incurred for the purpose of financing all or any part of the purchase
price thereof; provided, however, that (a) the Lien shall apply only to
the asset so acquired and proceeds thereof and (b) the aggregate amount of
all Indebtedness secured thereby does not exceed $5,000,000;
(v) Liens on property or assets of any Foreign Subsidiary (other
than the Capital Stock of any Foreign Subsidiary directly owned by Company
or a Domestic Subsidiary) to secure Indebtedness permitted by subsection
7.1(x);
(vi) Liens arising as a result of progress payments under
government contracts to which Company or one of its Subsidiaries is a
party;
(vii) Liens incurred in connection with the extension, renewal or
refinancing of the Indebtedness secured by the Liens described in clauses
(iii) and (iv) above; and
(viii) other Liens (other than on the Capital Stock of any Foreign
Subsidiary directly owned by Company or any Domestic Subsidiary) in an
aggregate amount not to exceed $2,500,000 at any time.
B. EQUITABLE LIEN IN FAVOR OF LENDERS. If Company or any of its
Subsidiaries shall create or assume any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, other than Liens excepted by
the provisions of subsection 7.2A, it shall make or cause to be made effective
provision whereby the Obligations will be secured by such Lien equally and
ratably with any and all other Indebtedness secured thereby as long as any such
Indebtedness shall be so secured; provided that, notwithstanding the foregoing,
this covenant shall not be construed as a consent by Requisite Lenders to the
creation or assumption of any such Lien not permitted by the provisions of
subsection 7.2A.
C. NO FURTHER NEGATIVE PLEDGES. Neither Company nor any of its
Subsidiaries shall enter into any agreement prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned
or hereafter acquired, except (i) restrictions on the encumbrance of specific
property encumbered to secure payment of particular permitted Indebtedness or to
be sold pursuant to an executed agreement with respect to an Asset Sale, (ii)
customary non-assignment provisions contained in leases, subleases, licenses and
sublicenses
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permitted by this Agreement, (iii) restrictions contained in agreements relating
to Indebtedness of Company and its Domestic Subsidiaries permitted pursuant to
subsection 7.1(vi), (ix), and (xii) that expressly permit Liens in favor of
Administrative Agent for the benefit of the Lenders (or the administrative agent
under any successor or replacement credit facility) and (iv) restrictions on the
encumbrance of specific property encumbered to secure payment of Indebtedness of
Foreign Subsidiaries permitted by subsection 7.1(x), provided that such
restrictions do not apply to the stock of Foreign Subsidiaries owned by Company
or its Domestic Subsidiaries.
D. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO COMPANY OR OTHER
SUBSIDIARIES. Except as provided herein and except for restrictions contained in
the terms of any Indebtedness of Foreign Subsidiaries of Company permitted by
subsection 7.1(x) if such restriction applies only in the event of a payment
default or a default with respect to a financial covenant in such Indebtedness,
Company determines that any such restriction will not materially affect
Company's ability to make principal or interest payments on the Loans and the
restriction is not materially more disadvantageous to Lenders than is customary
in comparable financings, Company will not, and will not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any such Subsidiary to (i) pay dividends or make any other distributions on
any of such Subsidiary's Capital Stock owned by Company or any other Subsidiary
of Company, (ii) repay or prepay any Indebtedness owed by such Subsidiary to
Company or any other Subsidiary of Company, (iii) make loans or advances to
Company or any other Subsidiary of Company, except as provided in the Existing
Senior Subordinated Indenture and the Senior Indenture, or (iv) transfer any of
its property or assets to Company or any other Subsidiary of Company, except for
(a) restrictions contained in the Existing Senior Subordinated Indenture and the
Senior Indenture in the form approved by Requisite Lenders, (b) customary
non-assignment provisions contained in leases, subleases, licenses and
sublicenses, (c) restrictions on the transfer of Joint Venture interests
contained in the organizational documents of any Joint Venture, and (d)
restrictions in an executed agreement with respect to an Asset Sale.
7.3 INVESTMENTS; ACQUISITIONS.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, make or own any Investment in any Person, including any
Joint Venture, or acquire, by purchase or otherwise, all or substantially all
the business, property or fixed assets of, or Capital Stock or other ownership
interest of any Person, or any division or line of business of any Person,
except:
(i) Company and its Subsidiaries (other than Inactive
Subsidiaries) may make and own Investments in Cash Equivalents;
(ii) Company and Subsidiary Guarantors may make intercompany loans
to the extent permitted by subsection 7.1(iii);
(iii) Company and its Subsidiaries (other than Inactive
Subsidiaries) may make intercompany loans to the extent permitted by
subsection 7.1(iv);
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(iv) Company and its Subsidiaries (other than Inactive
Subsidiaries) may make Consolidated Capital Expenditures permitted by
subsection 7.8;
(v) Company and its Subsidiaries may continue to own the
Investments owned by them and described on Schedule 7.3 of the Company
Disclosure Letter;
(vi) Company and Subsidiary Guarantors may make and own additional
equity Investments in Subsidiary Guarantors;
(vii) Company and its Subsidiaries may acquire Securities in
connection with the satisfaction or enforcement of Indebtedness or claims
due or owing to Company or any of its Subsidiaries or as security for any
such Indebtedness or claim;
(viii) any Foreign Subsidiary may make and own Investments in any
other Foreign Subsidiary;
(ix) Company and its Subsidiaries may acquire assets (including
Capital Stock and including Capital Stock of Subsidiaries formed in
connection with any such acquisition) of any Person in the same or similar
line of business as Company and having positive EBITDA for the most
recently ended twelve-month period (calculated, as applicable, in
accordance with the definition of "CONSOLIDATED EBITDA" herein, or such
other definition of EBITDA as may be reasonably acceptable to
Administrative Agent), (a) through the issuance of Capital Stock of
Company, (b) with Cash, provided that the aggregate Cash portion of the
purchase price of all such acquisitions does not exceed (1) $25,000,000 in
the aggregate or (2) $50,000,000 in the aggregate in the event that the
ratio of all secured Indebtedness of Company and its Subsidiaries on a
consolidated basis to Consolidated EBITDA as of the most recently ended
Fiscal Quarter is less than 1.50 to 1.0, (c) with the proceeds of not more
than $200,000,000 of Subordinated Indebtedness of Company or (d) with any
combination of (a) through (c); provided that (1)(A) after giving effect
to such acquisition, at least $75,000,000 is available in Revolving Loan
Commitments, (B) any such Subordinated Indebtedness is unsecured and has
no mandatory payment of principal for at least one year after the maturity
of the Tranche B Term Loans, and (C) the documentation for any such
indebtedness contains subordination provisions that are standard in the
market for publicly traded or privately held subordinated debt securities
at the time of issuance thereof or such other subordination provisions as
may be reasonably acceptable to Administrative Agent, and contains such
other terms and conditions as are reasonably satisfactory to
Administrative Agent, and (D) after giving effect to the incurrence of any
such Subordinated Indebtedness, no Event of Default or Potential Event of
Default shall have occurred or be continuing and the pro forma
Consolidated Leverage Ratio (after giving effect to such acquisition) is
less than the then-permitted maximum Consolidated Leverage Ratio minus
0.25 or (2) Requisite Lenders consent thereto (each a "PERMITTED
ACQUISITION");
(x) any Person who becomes a Subsidiary or who is merged or
consolidated into a Subsidiary after the date hereof pursuant to a
Permitted Acquisition may continue to own Investments owned by such Person
on the date of such Permitted Acquisition; provided that (a) such
Investment was not incurred in connection with, or anticipation or
96
contemplation of, such Permitted Acquisition and (b) neither Company nor
any of its Subsidiaries (other than such Person or the Subsidiary into
which such Person is merged or consolidated) shall become liable with
respect to such Investment;
(xi) Company or any of its Subsidiaries (other than Inactive
Subsidiaries) may make and own Investments consisting of non-Cash
consideration in the form of Capital Stock, notes or similar obligations
in connection with an Asset Sale permitted by subsection 7.7; provided
that (a) the aggregate amount of such non-Cash consideration received in
connection with such Asset Sale shall not exceed 10% of the total
consideration received in connection with such Asset Sale and (b) such
non-Cash consideration is pledged pursuant to the Security Agreement;
(xii) Company or any of its Subsidiaries may make and own
additional Investments in Joint Ventures in an aggregate amount not to
exceed $30,000,000 at any time; and
(xiii) Company and its Subsidiaries (other than Inactive
Subsidiaries) may make and own other Investments in an aggregate amount
not to exceed $25,000,000 at any time; provided that such amount shall be
increased to $35,000,000 as of the last day of the first Fiscal Year
ending on or after October 31, 2004 during which the Consolidated Leverage
Ratio as of the last day of such Fiscal Year is less than 3.00:1.00.
7.4 CONTINGENT OBLIGATIONS.
Company shall not, and shall not permit any of its Subsidiaries or
any Joint Venture in which Company or any of its Subsidiaries has an interest
to, directly or indirectly, create or become or remain liable with respect to
any Contingent Obligation, except:
(i) Subsidiaries of Company may become and remain liable with
respect to Contingent Obligations in respect of the Subsidiary Guaranty;
(ii) Company may become and remain liable with respect to
Contingent Obligations in respect of the Letters of Credit;
(iii) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations in respect of customary
indemnification and purchase price adjustment obligations incurred in
connection with Asset Sales or other sales of assets;
(iv) Company may become and remain liable with respect to
Contingent Obligations under Hedge Agreements in the ordinary course of
business;
(v) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations described on Schedule 7.4 of the
Company Disclosure Letter;
(vi) Company and its Domestic Subsidiaries (other than Inactive
Subsidiaries) may become and remain liable with respect to Contingent
Obligations in respect of any Indebtedness of Company or any of its
Domestic Subsidiaries permitted by subsection 7.1; provided, however, that
in the event such Indebtedness is Subordinated Indebtedness,
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any Contingent Obligation in respect thereof shall be subordinated to the
Subsidiary Guaranty to the same extent such Subordinated Indebtedness is
subordinated to the Obligations of Company or such Domestic Subsidiary, as
the case may be;
(vii) Joint Ventures may become and remain liable with respect to
Contingent Obligations; provided that such Contingent Obligations are
nonrecourse to Company, its Subsidiaries and their respective assets;
(viii) Company, its Subsidiaries (other than Inactive Subsidiaries)
and Joint Ventures may become and remain liable with respect to Contingent
Obligations in respect of performance bonds, bid bonds, appeal bonds,
surety bonds, and similar obligations provided in the ordinary course of
business to support the obligations of such Subsidiaries and Joint
Ventures;
(ix) Subsidiary Guarantors may become and remain liable with
respect to Contingent Obligations arising under their subordinated
unsecured guaranties of the Existing Senior Subordinated Notes and their
unsecured guaranties of the Senior Notes; and
(x) Company and its Subsidiaries (other than Inactive
Subsidiaries) may become and remain liable with respect to other
Contingent Obligations; provided that the maximum aggregate liability,
contingent or otherwise, of Company and its Subsidiaries in respect of all
such other Contingent Obligations shall at no time exceed $10,000,000;
provided that such amount shall be increased to $20,000,000 as of the last
day of the first Fiscal Year ending on or after October 31, 2004 during
which the Consolidated Leverage Ratio as of the last day of such Fiscal
Year is less than 3.00:1.00.
7.5 RESTRICTED JUNIOR PAYMENTS; PAYMENTS ON CERTAIN OTHER INDEBTEDNESS.
A. Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, declare, order, pay, make or set apart any sum for any
Restricted Junior Payment; provided that (i) Company may make regularly
scheduled payments of interest on the Existing Subordinated Notes in accordance
with the terms of, and only to the extent required by, and subject to the
subordination provisions contained in, the Existing Subordinated Indentures;
(ii) Company may make regularly scheduled payments of interest on the Existing
Senior Subordinated Notes in accordance with the terms of, and only to the
extent required by, and subject to the subordination provisions contained in,
the Existing Senior Subordinated Indenture; (iii) Company may redeem the
Existing Subordinated Notes and the Existing Senior Subordinated Notes in
accordance with the terms of the Existing Subordinated Indentures and the
Existing Senior Subordinated Indenture, respectively, in an amount not to exceed
the amount of any Net Securities Proceeds from the issuance of Capital Stock of
Company remaining after application of such Net Securities Proceeds to
prepayment of the Loans as required in subsection 2.4B(iii)(c), provided that in
no event shall the aggregate redemption price pursuant to this clause (iii)
exceed $50,000,000; (iv) Company may repay the outstanding principal amount of
the Existing Subordinated Notes on the scheduled maturity thereof; (v) Company
may make regularly scheduled payments of interest on Subordinated Indebtedness
incurred in connection
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with a Permitted Acquisition pursuant to subsection 7.3(ix) in accordance with
the terms of, and only to the extent required by, and subject to the
subordination provisions contained in, the agreement governing such Subordinated
Indebtedness; (vi) Company may exchange Company Series D Preferred Stock for
Company Series E Preferred Stock and may exchange Company Series D Preferred
Stock and Company Series E Preferred Stock for common stock of Company; (vii)
Company may repurchase common stock of Company that constitutes odd lots
pursuant to a program established by Company for the repurchase of such odd lots
in an aggregate amount not to exceed $100,000; (viii) any Subsidiary may declare
and pay dividends to Company or any wholly-owned Subsidiary of Company; (ix)
Company and its Subsidiaries may purchase shares of Capital Stock of any
Subsidiary owned by professional engineers in connection with licensing
requirements in an aggregate amount not to exceed $500,000; (x) Company may
purchase shares of Capital Stock of Company and any warrants or other rights
with respect to the Capital Stock of Company from its employees, by net exercise
or otherwise, pursuant to the terms of any employee stock option, restricted
stock or incentive stock plan in an aggregate amount not to exceed $2,000,000 in
any Fiscal Year; and (xi) Company may repurchase common stock of Company in an
aggregate amount not to exceed $25,000,000, provided that after giving effect to
any such repurchase, (a) Company and its Subsidiaries have sufficient Cash
available, consistent with past practices, for their ordinary business
operations and (b) there are no Swing Line Loans or Revolving Loans outstanding.
B. Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, declare order, pay, make or set apart any sum for any
payment or prepayment of principal of, premium, if any, interest on, or fees
with respect to, or redemption, purchase, retirement, defeasance (including
in-substance or legal defeasance), sinking fund or similar payment with respect
to the Senior Notes; provided that (i) Company may make regularly scheduled
payments of interest in respect of the Senior Notes in accordance with the terms
of, and only to the extent required by, the Senior Indenture; and (ii) Company
may redeem the Senior Notes in accordance with section 3.01(b) of the Senior
Indenture, in an amount not to exceed the amount of any Net Securities Proceeds
from the issuance of Capital Stock of Company remaining after application of
such Net Securities Proceeds to prepayment of the Loans as required by
subsection 2.4B(iii)(c).
7.6 FINANCIAL COVENANTS.
A. MINIMUM CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Company shall not
permit the ratio of (i) Consolidated EBITDA minus Consolidated Capital
Expenditures to (ii) Consolidated Fixed Charges for any four-Fiscal Quarter
period ending during any of the periods set forth below to be less than the
correlative ratio indicated:
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MINIMUM CONSOLIDATED
PERIOD FIXED CHARGE COVERAGE RATIO
------ ---------------------------
November 1, 2002 through January 31, 2003 1.05:1.00
February 1, 2003 through April 30, 2003 1.10:1.00
May 1, 2003 through October 31, 2003 1.15:1.00
November 1, 2003 through October 31, 2007 1.20:1.00
November 1, 2007 and thereafter 1.05:1.00
B. MAXIMUM CONSOLIDATED LEVERAGE RATIO. Company shall not permit the
Consolidated Leverage Ratio as of the last day of any Fiscal Quarter ending
during any of the periods set forth below to exceed the correlative ratio
indicated:
PERIOD MAXIMUM CONSOLIDATED LEVERAGE RATIO
------ -----------------------------------
Closing Date through April 30, 2003 4.25:1.00
May 1, 2003 through July 31, 2003 4.00:1.00
August 1, 2003 through October 31, 2003 3.90:1.00
November 1, 2003 through July 31, 2004 3.75:1.00
August 1, 2004 through October 31, 2004 3.60:1.00
November 1, 2004 through April 30, 2005 3.50:1.00
May 1, 2005 through October 31, 2005 3.25:1.00
November 1, 2005 and thereafter 3.00:1.00
C. MINIMUM CONSOLIDATED CURRENT RATIO. Company shall not permit the ratio
of Consolidated Current Assets to Consolidated Current Liabilities as of the
last day of any Fiscal Quarter ending after January 31, 2003 to be less than
1.50 to 1.00.
7.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES.
Company shall not, and shall not permit any of its Subsidiaries to,
alter the corporate, capital or legal structure of Company or any of its
Subsidiaries, or enter into any transaction of merger or consolidation, or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor),
transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, property or assets (including its
notes or receivables and Capital Stock of a Subsidiary, whether newly issued or
outstanding), whether now owned or hereafter acquired, except:
(i) any Subsidiary of Company may be merged with or into Company
or any wholly-owned Subsidiary Guarantor, or be liquidated, wound up or
dissolved, or all or any part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed of, in one
transaction or a series of transactions, to Company or any wholly-owned
Subsidiary Guarantor; provided that, in the case of such a merger, Company
or such wholly-owned Subsidiary Guarantor shall be the continuing or
surviving Person;
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(ii) Company and its Subsidiaries may dispose of obsolete, worn
out or surplus property in the ordinary course of business;
(iii) Company and its Subsidiaries may sell or otherwise dispose of
assets in transactions that do not constitute Asset Sales; provided that
the consideration received for such assets shall be in an amount at least
equal to the fair market value thereof;
(iv) Company and its Subsidiaries may make Asset Sales of assets
having a fair market value not in excess of $20,000,000 during any Fiscal
Year, provided that (a) the consideration received for such assets shall
be in an amount at least equal to the fair market value thereof and shall
be Cash or non-Cash consideration permitted by subsection 7.3(xi); and (b)
the proceeds of such Asset Sales shall be applied as required by
subsection 2.4B(iii)(a);
(v) in order to resolve disputes that occur in the ordinary
course of business, Company and its Subsidiaries may discount or otherwise
compromise for less than the face value thereof, notes or accounts
receivable;
(vi) Company or a Subsidiary may sell or dispose of shares of
Capital Stock of any of its Subsidiaries in order to qualify members of
the Governing Body of the Subsidiary if required by applicable law;
(vii) any Person may be merged with any Subsidiary of Company if
the acquisition of the Capital Stock of such Person by Company or such
Subsidiary would have been permitted pursuant to subsection 7.3; provided
that if a Subsidiary is not the surviving or continuing Person, the
surviving Person becomes a Subsidiary and complies with the provisions of
subsection 6.7 and (c) no Potential Event of Default or Event of Default
shall have occurred or be continuing after giving effect thereto;
(viii) licenses or sublicenses by Company and its Subsidiaries of
software, trademarks, patents and other intellectual property in the
ordinary course of business and which do not materially interfere with the
business of Company or any of its Subsidiaries;
(ix) transfers of condemned property to the respective
governmental authority or agency that has condemned the same (whether by
deed in lieu of condemnation or otherwise), and transfers of properties
that have been subject to a casualty to the respective insurer of such
property or its designee as part of an insurance settlement; and
(x) Company and its Subsidiaries may sell or otherwise dispose of
Cash Equivalents permitted to be made or owned by subsection 7.3(i).
7.8 CONSOLIDATED CAPITAL EXPENDITURES.
Company shall not, and shall not permit its Subsidiaries to, make or
incur Consolidated Capital Expenditures, in any Fiscal Year indicated below, in
an aggregate amount in excess of the corresponding amount (the "MAXIMUM
CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth below opposite such Fiscal
Year; provided that the Maximum Consolidated Capital Expenditures Amount for any
Fiscal Year shall be increased by an amount equal to 100%
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of the excess, if any, of the Maximum Consolidated Capital Expenditures Amount
for the previous Fiscal Year (without giving effect to any adjustment in
accordance with this proviso) over the actual amount of Consolidated Capital
Expenditures for such previous Fiscal Year:
MAXIMUM CONSOLIDATED
FISCAL YEAR CAPITAL EXPENDITURES AMOUNT
----------- ---------------------------
2002 $70,000,000
2003 and each
Fiscal Year thereafter $50,000,000
7.9 SALES AND LEASE-BACKS.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, become or remain liable as lessee or as a guarantor or
other surety with respect to any lease, whether an Operating Lease or a Capital
Lease, of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, (i) that Company or any of its Subsidiaries has sold or
transferred or is to sell or transfer to any other Person (other than Company or
any of its Subsidiaries) or (ii) that Company or any of its Subsidiaries intends
to use for substantially that same purpose as any other property that has been
or is to be sold or transferred by Company or any of its Subsidiaries to any
Person (other than Company or any of its Subsidiaries) in connection with such
lease.
7.10 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
Except as described on Schedule 7.10 of the Company Disclosure
Letter, Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, (i) make any payment in respect of any management fees
to any holder of 5% or more of any class of equity Securities of Company or to
any Affiliate of Company or any such holder or (ii) enter into or permit to
exist any transaction (including the purchase, sale, lease or exchange of any
property or the rendering of any service) with any holder of 5% or more of any
class of equity Securities of Company or with any Affiliate of Company or of any
such holder, on terms that are less favorable to Company or that Subsidiary, as
the case may be, than those that might be obtained at the time from Persons who
are not such a holder or Affiliate; provided that the foregoing restriction
shall not apply to (a) any transaction between Company and any of its
wholly-owned Subsidiaries or between any of its wholly-owned Subsidiaries, (b)
reasonable and customary fees paid to members of the Governing Bodies of Company
and its Subsidiaries or (c) existing related party transactions described in
Company's Annual Report on Form 10-K for the 2001 Fiscal Year.
7.11 CONDUCT OF BUSINESS.
From and after the Closing Date, Company shall not, and shall not
permit any of its Subsidiaries to, engage in any business other than (i) the
businesses engaged in by Company and its Subsidiaries on the Closing Date and
similar or related businesses and (ii) such other lines of business as may be
consented to by Requisite Lenders.
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7.12 AMENDMENTS OR WAIVERS OF RELATED AGREEMENTS; AMENDMENTS OF DOCUMENTS
RELATING TO OTHER INDEBTEDNESS.
A. AMENDMENTS OR WAIVERS OF RELATED AGREEMENTS. Neither Company nor any of
its Subsidiaries will agree to any material amendment to, or waive any of its
material rights under, any Related Agreement (other than the Senior Indenture),
or Company's Certificates of Designations) after the Closing Date without in
each case obtaining the prior written consent of Requisite Lenders to such
amendment or waiver. Neither Company nor any of its Subsidiaries will agree to
any amendment to, or waive any of its rights under, Company Certificates of
Designations in any respect that would be adverse to Company or Lenders after
the Closing Date without in each case obtaining the prior written consent of
Requisite Lenders to such amendment or wavier.
B. AMENDMENTS OF DOCUMENTS RELATING TO OTHER INDEBTEDNESS. Company shall
not, and shall not permit any of its Subsidiaries to, amend or otherwise change
the terms of any Existing Subordinated Notes, the Existing Subordinated
Indentures, the Existing Senior Subordinated Notes, the Existing Senior
Subordinated Indenture, the Senior Notes or the Senior Indenture, or make any
payment consistent with an amendment thereof or change thereto.
C. DESIGNATED SENIOR INDEBTEDNESS. Company shall not designate any
Indebtedness as "Designated Senior Indebtedness" or "Designated Guarantor Senior
Indebtedness" other than the Obligations for purposes of the Existing Senior
Subordinated Indenture without the prior written consent of Requisite Lenders.
7.13 FISCAL YEAR.
Company shall not change its Fiscal Year-end from October 31.
SECTION 8. EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF DEFAULT")
shall occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by Company to pay any installment of principal of any Loan
when due, whether at stated maturity, by acceleration, by notice of voluntary
prepayment, by mandatory prepayment or otherwise; failure by Company to pay when
due any amount payable to an Issuing Lender in reimbursement of any drawing
under a Letter of Credit; or failure by Company to pay any interest on any Loan
or any fee or any other amount due under this Agreement within five days after
the date due; or
8.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of Company or any of its Subsidiaries to pay when due
any principal of or interest on or any other amount payable in respect of
any Subordinated Indebtedness or one or more items of any other
Indebtedness (other than Indebtedness referred to in subsection 8.1) or
Contingent Obligations in an individual principal amount
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of $20,000,000 or more or with an aggregate principal amount of
$20,000,000 or more, in each case beyond the end of any grace period
provided therefor; or
(ii) breach or default by Company or any of its Subsidiaries with
respect to any other material term of (a) any Subordinated Indebtedness or
one or more items of any other Indebtedness or Contingent Obligations in
the individual or aggregate principal amounts referred to in clause (i)
above or (b) any loan agreement, mortgage, indenture or other agreement
relating to such item(s) of Indebtedness or Contingent Obligation(s), if
the effect of such breach or default is to cause, or to permit the holder
or holders of that Indebtedness or Contingent Obligation(s) (or a trustee
on behalf of such holder or holders) to cause, that Indebtedness or
Contingent Obligation(s) to become or be declared due and payable prior to
its stated maturity or the stated maturity of any underlying obligation,
as the case may be (upon the giving or receiving of notice, lapse of time,
both, or otherwise); or
8.3 BREACH OF CERTAIN COVENANTS.
Failure of Company to perform or comply with any term or condition
contained in subsection 2.5, 6.1(viii) (with respect to any condition or event
that constitutes an Event of Default) or 6.2 or Section 7 of this Agreement; or
8.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement made
by Company or any of its Subsidiaries in any Loan Document or in any statement
or certificate at any time given by Company or any of its Subsidiaries in
writing pursuant hereto or thereto or in connection herewith or therewith shall
be false in any material respect on the date as of which made; or
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Loan Party shall default in the performance of or compliance
with any term contained in this Agreement or any of the other Loan Documents,
other than any such term referred to in any other subsection of this Section 8,
and such default shall not have been remedied or waived within 30 days after the
earlier of (i) a Responsible Officer of Company becoming aware of such default
or (ii) receipt by Company and such Loan Party of notice from Administrative
Agent or any Lender of such default; or
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of Company or any of its
Subsidiaries in an involuntary case under the Bankruptcy Code or under any
other applicable bankruptcy, insolvency or similar law now or hereafter in
effect, which decree or order is not stayed; or any other similar relief
shall be granted under any applicable federal or state law; or
(ii) an involuntary case shall be commenced against Company or any
of its Subsidiaries under the Bankruptcy Code or under any other
applicable bankruptcy,
104
insolvency or similar law now or hereafter in effect; or a decree or order
of a court having jurisdiction in the premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or other officer
having similar powers over Company or any of its Subsidiaries, or over all
or a substantial part of its property, shall have been entered; or there
shall have occurred the involuntary appointment of an interim receiver,
trustee or other custodian of Company or any of its Subsidiaries for all
or a substantial part of its property; or a warrant of attachment,
execution or similar process shall have been issued against any
substantial part of the property of Company or any of its Subsidiaries,
and any such event described in this clause (ii) shall continue for 60
days unless dismissed, bonded or discharged; or
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Company or any of its Subsidiaries shall have an order for
relief entered with respect to it or commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, or shall consent to the entry of
an order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, or shall consent
to the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; or Company or any
of its Subsidiaries shall make any assignment for the benefit of
creditors; or
(ii) Company or any of its Subsidiaries shall be unable, or shall
fail generally, or shall admit in writing its inability, to pay its debts
as such debts become due; or the Governing Body of Company or any of its
Subsidiaries (or any committee thereof) shall adopt any resolution or
otherwise authorize any action to approve any of the actions referred to
in clause (i) above or this clause (ii); or
8.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment or similar process
involving (i) in any individual case an amount in excess of $10,000,000 or (ii)
in the aggregate at any time an amount in excess of $10,000,000 (in either case
not adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) shall be entered or filed against
Company or any of its Subsidiaries or any of their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for a period of 60 days (or
in any event later than five days prior to the date of any proposed sale
thereunder); or
8.9 DISSOLUTION.
Any order, judgment or decree shall be entered against Company or any of
its Material Domestic Subsidiaries decreeing the dissolution or split up of
Company or that Material Domestic Subsidiary and such order shall remain
undischarged or unstayed for a period in excess of 30 days; or
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8.10 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events that individually or in the
aggregate results in or might reasonably be expected to result in liability of
Company, any of its Subsidiaries or any of their respective ERISA Affiliates in
excess of $10,000,000 during the term of this Agreement; or there shall exist an
amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans of Company and
its Subsidiaries (excluding for purposes of such computation any Pension Plans
with respect to which assets exceed benefit liabilities), which exceeds
$20,000,000; or
8.11 CHANGE IN CONTROL.
A Change in Control shall have occurred; or
8.12 INVALIDITY OF SUBSIDIARY GUARANTY; FAILURE OF SECURITY; REPUDIATION OF
OBLIGATIONS.
At any time after the execution and delivery thereof, any Loan Document or
any provision thereof for any reason, other than the satisfaction in full of all
Obligations, shall cease to be in full force and effect (other than in
accordance with its terms) or shall be declared to be null and void or
Administrative Agent shall not have or shall cease to have a valid First
Priority Lien in any material part of the Collateral purported to be covered by
the Collateral Documents, in each case for any reason other than the failure of
Administrative Agent or any Lender to take any action within its control, or any
Loan Party shall contest the validity or enforceability of any Loan Document or
any provision thereof in writing or deny in writing that it has any further
liability, including with respect to future advances by Lenders, under any Loan
Document or any provision thereof to which it is a party; or
8.13 FAILURE TO CONSUMMATE MERGER.
The Merger shall not be consummated in accordance with the Merger
Agreement or the Merger shall be unwound, reversed or otherwise rescinded in
whole or in part for any reason;
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7 with respect to Company or any of its Material Domestic Subsidiaries,
each of (a) the unpaid principal amount of and accrued interest on the Loans,
(b) an amount equal to the maximum amount that may at any time be drawn under
all Letters of Credit then outstanding (whether or not any beneficiary under any
such Letter of Credit shall have presented, or shall be entitled at such time to
present, the drafts or other documents or certificates required to draw under
such Letter of Credit), and (c) all other Obligations shall automatically become
immediately due and payable, without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by Company,
and the obligation of each Lender to make any Loan and the obligation of the
Issuing Lenders to issue any Letter of Credit hereunder shall thereupon
terminate, and (ii) upon the occurrence and during the continuation of any other
Event of Default, Administrative Agent shall, upon the written request or with
the written consent of Requisite Lenders, by written notice to Company, declare
all or any portion of the amounts described in clauses (a) through (c) above to
be, and the same shall forthwith become, immediately due and payable, without
presentment, demand, protest or other requirements of any kind, all of which are
hereby expressly waived by Company, and the obligation of each Lender
106
to make any Loan and the obligation of the Issuing Lenders to issue any Letter
of Credit hereunder shall thereupon terminate; provided that the foregoing shall
not affect in any way the obligations of Revolving Lenders under subsection
3.3C(i) or the obligations of Revolving Lenders to purchase assignments of any
unpaid Swing Line Loans as provided in subsection 2.1A(iv).
Any amounts described in clause (b) above, when received by
Administrative Agent, shall be held by Administrative Agent pursuant to the
terms of the Security Agreement and shall be applied as therein provided.
SECTION 9. ADMINISTRATIVE AGENT
9.1 APPOINTMENT.
A. APPOINTMENT OF ADMINISTRATIVE AGENT. CSFB is hereby appointed
Administrative Agent hereunder and under the other Loan Documents. Each Lender
hereby authorizes Administrative Agent to act as its agent in accordance with
the terms of this Agreement and the other Loan Documents. Administrative Agent
agrees to act upon the express conditions contained in this Agreement and the
other Loan Documents, as applicable. The provisions of this Section 9 are solely
for the benefit of Administrative Agent and Lenders and no Loan Party shall have
any rights as a third party beneficiary of any of the provisions thereof. In
performing its functions and duties under this Agreement, Administrative Agent
(other than as provided in subsection 2.10) shall act solely as an agent of
Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for Company or any
other Loan Party.
B. APPOINTMENT OF SUPPLEMENTAL COLLATERAL AGENTS. It is the purpose of
this Agreement and the other Loan Documents that there shall be no violation of
any law of any jurisdiction denying or restricting the right of banking
corporations or associations to transact business as agent or trustee in such
jurisdiction. It is recognized that in case of litigation under this Agreement
or any of the other Loan Documents, and in particular in case of the enforcement
of any of the Loan Documents, or in case Administrative Agent deems that by
reason of any present or future law of any jurisdiction it may not exercise any
of the rights, powers or remedies granted herein or in any of the other Loan
Documents or take any other action which may be desirable or necessary in
connection therewith, it may be necessary that Administrative Agent appoint an
additional individual or institution as a separate trustee, co-trustee,
collateral agent or collateral co-agent (any such additional individual or
institution being referred to herein individually as a "SUPPLEMENTAL COLLATERAL
AGENT" and collectively as "SUPPLEMENTAL COLLATERAL AGENTS").
In the event that Administrative Agent appoints a Supplemental
Collateral Agent with respect to any Collateral, (i) each and every right,
power, privilege or duty expressed or intended by this Agreement or any of the
other Loan Documents to be exercised by or vested in or conveyed to
Administrative Agent with respect to such Collateral shall be exercisable by and
vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Administrative Agent to
exercise such rights, powers and privileges with respect to such Collateral and
to perform such duties with respect to such
107
Collateral, and every covenant and obligation contained in the Loan Documents
and necessary to the exercise or performance thereof by such Supplemental
Collateral Agent shall run to and be enforceable by either Administrative Agent
or such Supplemental Collateral Agent, and (ii) the provisions of this Section 9
and of subsections 10.2 and 10.3 that refer to Administrative Agent shall inure
to the benefit of such Supplemental Collateral Agent and all references therein
to Administrative Agent shall be deemed to be references to Administrative Agent
and/or such Supplemental Collateral Agent, as the context may require.
Should any instrument in writing from Company or any other Loan
Party be required by any Supplemental Collateral Agent so appointed by
Administrative Agent for more fully and certainly vesting in and confirming to
him or it such rights, powers, privileges and duties, Company shall, or shall
cause such Loan Party to, execute, acknowledge and deliver any and all such
instruments promptly upon request by Administrative Agent. In case any
Supplemental Collateral Agent, or a successor thereto, shall die, become
incapable of acting, resign or be removed, all the rights, powers, privileges
and duties of such Supplemental Collateral Agent, to the extent permitted by
law, shall vest in and be exercised by Administrative Agent until the
appointment of a new Supplemental Collateral Administrative Agent.
9.2 POWERS AND DUTIES; GENERAL IMMUNITY.
X. XXXXXX; DUTIES SPECIFIED. Each Lender irrevocably authorizes
Administrative Agent to take such action on such Lender's behalf and to exercise
such powers, rights and remedies hereunder and under the other Loan Documents as
are specifically delegated or granted to Administrative Agent by the terms
hereof and thereof, together with such powers, rights and remedies as are
reasonably incidental thereto. Administrative Agent shall have only those duties
and responsibilities that are expressly specified in this Agreement and the
other Loan Documents. Administrative Agent may exercise such powers, rights and
remedies and perform such duties by or through its agents or employees.
Administrative Agent shall not have, by reason of this Agreement or any of the
other Loan Documents, a fiduciary relationship in respect of any Lender or
Company; and nothing in this Agreement or any of the other Loan Documents,
expressed or implied, is intended to or shall be so construed as to impose upon
Administrative Agent any obligations in respect of this Agreement or any of the
other Loan Documents except as expressly set forth herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. No Agent shall be responsible to
any Lender for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement or any other
Loan Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statements or in any
financial or other statements, instruments, reports or certificates or any other
documents furnished or made by such Agent to Lenders or by or on behalf of
Company to such Agent or any Lender in connection with the Loan Documents and
the transactions contemplated thereby or for the financial condition or business
affairs of Company or any other Person liable for the payment of any
Obligations, nor shall such Agent be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained in any of the Loan Documents or as to the use of the
proceeds of the Loans or the use of the Letters of Credit or as to the existence
or possible existence of any Event of Default or Potential Event of Default.
Anything contained in this Agreement to the contrary
108
notwithstanding, Administrative Agent shall not have any liability arising from
confirmations of the amount of outstanding Loans or the Letter of Credit Usage
or the component amounts thereof.
C. EXCULPATORY PROVISIONS. No Agent or any of its officers, directors,
employees or agents shall be liable to Lenders for any action taken or omitted
by such Agent under or in connection with any of the Loan Documents except to
the extent caused by such Agent's gross negligence or willful misconduct. Each
Agent shall be entitled to refrain from any act or the taking of any action
(including the failure to take an action) in connection with this Agreement or
any of the other Loan Documents or from the exercise of any power, discretion or
authority vested in it hereunder or thereunder unless and until such Agent shall
have received instructions in respect thereof from Requisite Lenders (or such
other Lenders as may be required to give such instructions under subsection
10.6) and, upon receipt of such instructions from Requisite Lenders (or such
other Lenders, as the case may be), such Agent shall be entitled to act or
(where so instructed) refrain from acting, or to exercise such power, discretion
or authority, in accordance with such instructions. Without prejudice to the
generality of the foregoing, (i) each Agent shall be entitled to rely, and shall
be fully protected in relying, upon any communication, instrument or document
believed by it to be genuine and correct and to have been signed or sent by the
proper person or persons, and shall be entitled to rely and shall be protected
in relying on opinions and judgments of attorneys (who may be attorneys for
Company and its Subsidiaries), accountants, experts and other professional
advisors selected by it; and (ii) no Lender shall have any right of action
whatsoever against such Agent as a result of such Agent acting or (where so
instructed) refraining from acting under this Agreement or any of the other Loan
Documents in accordance with the instructions of Requisite Lenders (or such
other Lenders as may be required to give such instructions under subsection
10.6).
D. AGENTS ENTITLED TO ACT AS LENDER. The agency hereby created shall in no
way impair or affect any of the rights and powers of, or impose any duties or
obligations upon, an Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Loans and the Letters of Credit, an
Agent shall have the same rights and powers hereunder as any other Lender and
may exercise the same as though it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" or "Lenders" or any similar
term shall, unless the context clearly otherwise indicates, include each Agent
in its individual capacity. An Agent and its Affiliates may accept deposits
from, lend money to, acquire equity interests in and generally engage in any
kind of commercial banking, investment banking, trust, financial advisory or
other business with Company or any of its Affiliates as if it were not
performing the duties specified herein, and may accept fees and other
consideration from Company for services in connection with this Agreement and
otherwise without having to account for the same to Lenders.
9.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR APPRAISAL OF
CREDITWORTHINESS.
Each Lender agrees that it has made its own independent
investigation of the financial condition and affairs of Company and its
Subsidiaries in connection with the making of the Loans and the issuance of
Letters of Credit hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Company and its Subsidiaries. No Agent
shall have any duty or responsibility, either initially or on a continuing
basis, to make any such
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investigation or any such appraisal on behalf of Lenders or to provide any
Lender with any credit or other information with respect thereto, whether coming
into its possession before the making of the Loans or at any time or times
thereafter, and no Agent shall have any responsibility with respect to the
accuracy of or the completeness of any information provided to Lenders.
9.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally agrees
to indemnify each Agent and its officers, directors, employees, agents,
attorneys, professional advisors and Affiliates to the extent that any such
Person shall not have been reimbursed by Company, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including counsel fees and disbursements and fees and
disbursements of any financial advisor engaged by Agent) or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against an Agent or such other Persons in exercising the powers, rights and
remedies of an Agent or performing the duties of an Agent hereunder or under the
other Loan Documents or otherwise in its capacity as an Agent in any way
relating to or arising out of this Agreement or the other Loan Documents;
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of an Agent resulting from such Agent's gross
negligence or willful misconduct. If any indemnity furnished to an Agent or
other Persons for any purpose shall, in the opinion of such Agent, be
insufficient or become impaired, such Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished.
9.5 SUCCESSOR ADMINISTRATIVE AGENT.
Administrative Agent may resign at any time by giving 30 days' prior
written notice thereof to Lenders and Company. Upon any such notice of
resignation, Requisite Lenders shall have the right, upon five Business Days'
notice to Company, to appoint a successor Administrative Agent, except during
the continuation of an Event of Default, with the consent of Company (which
consent shall not be unreasonably withheld or delayed). If Requisite Lenders
have not appointed a successor Administrative Agent by the date set for
Administrative Agent's resignation, Administrative Agent shall appoint such
successor Administrative Agent in consultation with Company. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, that successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Section 9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement.
9.6 COLLATERAL DOCUMENTS AND GUARANTIES.
Each Lender hereby further authorizes Administrative Agent, on
behalf of and for the benefit of Lenders, to enter into each Collateral Document
as secured party and to be the agent for and representative of Lenders under the
Subsidiary Guaranty, and each Lender agrees
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to be bound by the terms of each Collateral Document and the Subsidiary
Guaranty; provided that Administrative Agent shall not (i) enter into or consent
to any material amendment, modification, termination or waiver of any provision
contained in any Collateral Document or the Subsidiary Guaranty or (ii) release
any Collateral (except as otherwise expressly permitted or required pursuant to
the terms of this Agreement or the applicable Collateral Document), in each case
without the prior consent of Requisite Lenders (or, if required pursuant to
subsection 10.6, all Lenders); provided further, however, that, without further
written consent or authorization from Lenders, Administrative Agent may execute
any documents or instruments necessary to (a) release any Lien encumbering any
item of Collateral that is the subject of a sale or other disposition of assets
permitted by this Agreement or to which Requisite Lenders have otherwise
consented, (b) release any Subsidiary Guarantor from the Subsidiary Guaranty if
all of the Capital Stock of such Subsidiary Guarantor is sold to any Person
(other than an Affiliate of Company) pursuant to a sale or other disposition
permitted hereunder or to which Requisite Lenders have otherwise consented or
(c) subordinate the Liens of Administrative Agent, on behalf of Lenders, to any
Liens permitted by subsection 7.2; provided that, in the case of a sale of such
item of Collateral or stock referred to in subdivision (a) or (b), the
requirements of subsection 10.14 are satisfied. Anything contained in any of the
Loan Documents to the contrary notwithstanding, Company, Administrative Agent
and each Lender hereby agree that (1) no Lender shall have any right
individually to realize upon any of the Collateral under any Collateral Document
or to enforce the Subsidiary Guaranty, it being understood and agreed that all
powers, rights and remedies under the Collateral Documents and the Subsidiary
Guaranty may be exercised solely by Administrative Agent for the benefit of
Lenders in accordance with the terms thereof, and (2) in the event of a
foreclosure by Administrative Agent on any of the Collateral pursuant to a
public or private sale, Administrative Agent or any Lender may be the purchaser
of any or all of such Collateral at any such sale and Administrative Agent, as
agent for and representative of Lenders (but not any Lender or Lenders in its or
their respective individual capacities unless Requisite Lenders shall otherwise
agree in writing) shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the
Collateral sold at any such public sale, to use and apply any of the Obligations
as a credit on account of the purchase price for any collateral payable by
Administrative Agent at such sale.
9.7 AGENTS.
Syndication Agent, Co-Documentation Agents and each of the Co-Agents
shall have no right, power, obligation, liability, responsibility or duty under
this Agreement other than those applicable to all Lenders as such or to
Syndication Agent, Co-Documentation Agents or any Co-Agent as such.
9.8 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to Company or any of the Subsidiaries of
Company, Administrative Agent (irrespective of whether the principal of any Loan
shall then be due and payable as herein expressed or by declaration or otherwise
and irrespective of whether Administrative Agent shall have made any demand on
Company) shall be entitled and empowered, by intervention in such proceeding or
otherwise
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(i) to file and prove a claim for the whole amount of principal
and interest owing and unpaid in respect of the Loans and any other
Obligations that are owing and unpaid and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
Lenders and Agents (including any claim for the reasonable compensation,
expenses, disbursements and advances of Lenders and Agents and their
agents and counsel and all other amounts due Lenders and Agents under
subsections 2.3 and 10.2) allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to Administrative Agent and, in the event that
Administrative Agent shall consent to the making of such payments directly to
Lenders, to pay to Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of Agents and their agents
and counsel, and any other amounts due Agents under subsections 2.3 and 10.2.
Nothing herein contained shall be deemed to authorize Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lenders or to authorize Administrative Agent to
vote in respect of the claim of any Lender in any such proceeding.
SECTION 10. MISCELLANEOUS
10.1 SUCCESSORS AND ASSIGNS; ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND
LETTERS OF CREDIT.
A. GENERAL. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of the parties hereto and the successors and assigns of Lenders (it
being understood that Lenders' rights of assignment are subject to the further
provisions of this subsection 10.1). Neither Company's rights or obligations
hereunder nor any interest therein may be assigned or delegated by Company
without the prior written consent of all Lenders (and any attempted assignment
or transfer by Company without such consent shall be null and void). No sale,
assignment or transfer or participation of any Letter of Credit or any
participation therein may be made separately from a sale, assignment, transfer
or participation of a corresponding interest in the Revolving Loan Commitment
and the Revolving Loans of the Revolving Lender effecting such sale, assignment,
transfer or participation. Anything contained herein to the contrary
notwithstanding, except as provided in subsection 2.1A(iv) and subsection 10.5,
the Swing Line Loan Commitment and the Swing Line Loans of Swing Line Lender may
not be sold, assigned or transferred as described below to any Person other than
a successor Administrative Agent and Swing Line Lender to the extent
contemplated by subsection 9.5. Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby and, to the extent
expressly contemplated hereby, the Affiliates of each of Administrative Agent
and Lenders) any legal or equitable right, remedy or claim under
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or by reason of this Agreement. In addition, no sale, assignment, transfer or
participation of any Loan or Commitment by any Lender shall, without consent of
Company, require Company to file a registration statement with the Securities
and Exchange Commission or apply to qualify such sale, assignment, transfer or
participation under the securities laws of any state.
B. ASSIGNMENTS.
(i) Amounts and Terms of Assignments. Any Lender may assign to one
or more Eligible Assignees all or any portion of its rights and
obligations under this Agreement; provided that (a), except (1) in the
case of an assignment of the entire remaining amount of the assigning
Lender's rights and obligations under this Agreement or (2) in the case of
an assignment to a Lender or an Affiliate of a Lender or an Approved Fund
of a Lender, the aggregate amount of the Revolving Loan Exposure, Tranche
A Term Loan Exposure or Tranche B Term Loan Exposure, as the case may be,
of the assigning Lender and the assignee subject to each such assignment
shall not be less than $5,000,000, in the case of any assignment of a
Revolving Loan or a Tranche A Term Loan, or $1,000,000, in the case of any
assignment of a Tranche B Term Loan, unless each of Administrative Agent
and, so long as no Event of Default has occurred and is continuing,
Company otherwise consents (each such consent not to be unreasonably
withheld or delayed), (b) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights
and obligations under this Agreement with respect to the Loans or
Commitments assigned and in the case of any assignment of all or any
portion of a Revolving Loan Commitment or Letter of Credit Participation
participations shall be made only as an assignment of the same
proportionate part of the assigning Lender's Revolving Loan Commitment,
Revolving Loans and Letter of Credit participations, (c) the parties to
each assignment shall execute and deliver to Administrative Agent an
Assignment Agreement, together with a processing and recordation fee of
$3,500, at Administrative Agent's discretion (unless the assignee is
already a Lender, an Affiliate or an Approved Fund of the assignor, in
which case no fee shall be required), and the Eligible Assignee, if it
shall not already be a Lender, shall deliver to Administrative Agent
information reasonably requested by Administrative Agent, including an
administrative questionnaire and such forms, certificates or other
evidence, if any, with respect to United States federal income tax
withholding matters as the assignee under such Assignment Agreement may be
required to deliver to Administrative Agent pursuant to subsection
2.7B(iii), (d) in the case of an assignment of all or a portion of a
Revolving Loan Commitment of any Lender, Administrative Agent, Swing Line
Lender and each Issuing Lender shall have given their prior written
consent to such assignment, and (e), except in the case of an assignment
to another Lender, an Affiliate of a Lender or an Approved Fund of a
Lender, Administrative Agent and, if no Event of Default has occurred and
is continuing, Company, shall have consented thereto (which consent shall
not be unreasonably withheld). Upon such acceptance and recording by
Administrative Agent pursuant to clause (ii) below, from and after the
effective date specified in such Assignment Agreement, (y) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment
Agreement, shall have the rights and obligations of a Lender hereunder and
(z) the assigning Lender thereunder shall, to the extent that rights and
obligations hereunder
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have been assigned by it pursuant to such Assignment Agreement, relinquish
its rights (other than any rights which survive the termination of this
Agreement under subsection 10.9B) and be released from its obligations
under this Agreement (and, in the case of an Assignment Agreement covering
all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party
hereto; provided that, anything contained in any of the Loan Documents to
the contrary notwithstanding, if such Lender is the Issuing Lender such
Lender shall continue to have all rights and obligations of an Issuing
Lender until the date such Issuing Lender has been replaced in accordance
with subsection 10.3 and thereafter, with respect to any Letters of Credit
issued prior to such date until the cancellation or expiration of such
Letters of Credit and the reimbursement of any amounts drawn thereunder).
The assigning Lender shall, upon the effectiveness of such assignment or
as promptly thereafter as practicable, surrender its Notes, if any, to
Administrative Agent for cancellation, and thereupon new Notes shall, if
so requested by the assignee and/or the assigning Lender in accordance
with subsection 2.1E, be issued to the assignee and/or to the assigning
Lender, substantially in the form of Exhibit IV, Exhibit V or Exhibit VI
annexed hereto, as the case may be, with appropriate insertions, to
reflect the new Commitments and/or outstanding Revolving Loans and/or
outstanding Tranche A Term Loans and/or Tranche B Term Loans, as the case
may be, of the assignee and/or the assigning Lender. Other than as
provided in subsection 2.1A(iv) and subsection 10.5, any assignment or
transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection 10.1B shall be treated for purposes
of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection 10.1C.
(ii) Acceptance by Administrative Agent; Recordation in Register.
Upon its receipt of an Assignment Agreement executed by an assigning
Lender and an assignee representing that it is an Eligible Assignee,
together with the processing fee referred to in subsection 10.1B(i) and
any forms, certificates or other evidence with respect to United States
federal income tax withholding matters that such assignee may be required
to deliver to Administrative Agent pursuant to subsection 2.7B(iii),
Administrative Agent shall, if Administrative Agent has consented to the
assignment evidenced thereby to the extent such consent is required
pursuant to subsection 10.1B(i)), (a) accept such Assignment Agreement by
executing a counterpart thereof as provided therein (which acceptance
shall evidence any required consent of Administrative Agent to such
assignment), (b) record the information contained therein in the Register
and (c) give prompt notice thereof to Company. Administrative Agent shall
maintain a copy of each Assignment Agreement delivered to and accepted by
it as provided in this subsection 10.1B(ii). No assignment shall be
effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this clause (ii).
(iii) Deemed Consent by Company. If the consent of Company to an
assignment or to an Eligible Assignee is required hereunder (including a
consent to an assignment which does not meet the minimum assignment
thresholds specified in subsection 10.1B(i)), Company shall be deemed to
have given its consent five Business Days after the date notice thereof
has been delivered by the assigning Lender (through Administrative Agent)
unless such consent is expressly refused by Company prior to such fifth
Business Day.
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(iv) Special Purpose Funding Vehicles. Notwithstanding anything to
the contrary contained herein, any Lender (a "GRANTING LENDER") may grant
to a special purpose funding vehicle (a "SPC"), identified as such in
writing from time to time by the Granting Lender to the Administrative
Agent and Company, the option to provide to Company all or any part of any
Loan that such Granting Lender would otherwise be obligated to make to
Company pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to make any Loan, and (ii) if an SPC
elects not to exercise such option or otherwise fails to provide all or
any part of such Loan, the Granting Lender shall be obligated to make such
Loan pursuant to the terms hereof. The making of a Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement (all liability for which
shall remain with the Granting Lender). In furtherance of the foregoing,
each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year
and one day after the payment in full of all outstanding commercial paper
or other senior indebtedness of any SPC, it will not institute against, or
join any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under
the laws of the United States or any state thereof. In addition,
notwithstanding anything to the contrary contained in this subsection
10.1B(iv), any SPC may (i) with notice to, but without the prior written
consent of, Company and the Administrative Agent and without paying any
processing fee therefor, assign all or a portion of its interests in any
Loans to the Granting Lender or to any financial institutions (consented
to by Company and Administrative Agent) providing liquidity and/or credit
support to or for the account of such SPC to support the funding or
maintenance of Loans and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC. This subsection 10.1B(iv) may not be
amended without the written consent of the SPC.
C. PARTICIPATIONS. Any Lender may, without the consent of, or
notice to, Company or Administrative Agent, sell participations to one or more
Persons (other than a natural Person or Company or any of its Affiliates) in all
or a portion of such Lender's rights and/or obligations under this Agreement;
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) Company, Administrative
Agent and Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver directly affecting (i) the extension of the
regularly scheduled maturity of any portion of the principal amount of or
interest on any Loan allocated to such participation or (ii) a reduction of the
principal amount of or the rate of interest payable on any Loan allocated to
such participation. Subject to the further provisions of this subsection 10.1C,
Company agrees that each Participant shall be entitled to the benefits of
subsections 2.6D and 2.7 to the same extent as
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if it were a Lender and had acquired its interest by assignment pursuant to
subsection 10.1B. To the extent permitted by law, each Participant also shall be
entitled to the benefits of subsection 10.4 as though it were a Lender, provided
such Participant agrees to be subject to subsection 10.5 as though it were a
Lender. A Participant shall not be entitled to receive any greater payment under
subsections 2.6D and 2.7 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant unless the
sale of the participation to such Participant is made with Company's prior
written consent. A Participant that would be a Non-US Lender if it were a Lender
shall not be entitled to the benefits of subsection 2.7 unless Company is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of Company, to comply with subsection 2.7B(iii) as
though it were a Lender.
D. PLEDGES AND ASSIGNMENTS. Any Lender may at any time pledge or
assign a security interest in all or any portion of its Loans, and the other
Obligations owed to such Lender, to secure obligations of such Lender, including
without limitation any pledge or assignment to secure obligations to any Federal
Reserve Bank; provided that (i) no Lender shall be relieved of any of its
obligations hereunder as a result of any such assignment or pledge and (ii) in
no event shall any assignee or pledgee be considered to be a "Lender" or be
entitled to require the assigning Lender to take or omit to take any action
hereunder.
E. INFORMATION. Each Lender may furnish any information
concerning Company and its Subsidiaries in the possession of that Lender from
time to time to assignees and participants (including prospective assignees and
participants), subject to subsection 10.19.
F. AGREEMENTS OF LENDERS. Each Lender listed on the signature
pages hereof hereby agrees (i) that it is an Eligible Assignee described in
clause (ii) of the definition thereof; (ii) that it has experience and expertise
in the making of loans such as the Loans; and (iii) that it will make its Loans
for its own account in the ordinary course of its business and without a view to
distribution of such Loans within the meaning of the Securities Act or the
Exchange Act or other federal securities laws (it being understood that, subject
to the provisions of this subsection 10.1, the disposition of such Loans or any
interests therein shall at all times remain within its exclusive control). Each
Lender that becomes a party hereto pursuant to an Assignment Agreement shall be
deemed to agree that the agreements of such Lender contained in Section 2(c) of
such Assignment Agreement are incorporated herein by this reference.
10.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, Company agrees to pay promptly (i) all actual and reasonable costs
and expenses of negotiation, preparation and execution of the Loan Documents and
any consents, amendments, waivers or other modifications thereto; (ii) all costs
and expenses of furnishing all opinions by counsel for Company required
hereunder and of Company's performance of and compliance with all agreements and
conditions on its part to be performed or complied with under this Agreement and
the other Loan Documents including with respect to confirming compliance with
environmental, insurance and solvency requirements; (iii) all reasonable fees,
expenses and disbursements of counsel to Administrative Agent (including
allocated costs of internal counsel) in connection with the negotiation,
preparation, execution and administration of the Loan Documents and any
consents, amendments, waivers or other modifications thereto and any other
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documents or matters requested by Company; (iv) all the actual costs and
reasonable expenses of creating and perfecting Liens in favor of Administrative
Agent on behalf of Lenders pursuant to any Collateral Document, including filing
and recording fees, expenses and taxes, stamp or documentary taxes, search fees,
title insurance premiums, and reasonable fees, expenses and disbursements of
counsel to Administrative Agent and of counsel providing any opinions required
hereunder; (v) all actual costs and reasonable expenses (including the
reasonable fees, expenses and disbursements of any auditors, accountants or
appraisers and any environmental or other consultants, advisors and agents
employed or retained by Administrative Agent or its counsel) of obtaining and
reviewing any environmental audits or reports provided for under subsection
6.8(d); (vi) all actual costs and reasonable expenses incurred by Administrative
Agent in connection with the custody or preservation of any of the Collateral;
(vii) all actual costs and reasonable expenses incurred by Administrative Agent
in connection with the syndication of the Commitments; (viii) all actual costs
and reasonable expenses, including reasonable attorneys' fees (including
allocated costs of internal counsel) and fees, costs and expenses of
accountants, advisors and consultants, incurred by Administrative Agent and its
counsel relating to efforts to (a) evaluate or assess any Loan Party, its
business or financial condition and (b) protect, evaluate, assess or dispose of
any of the Collateral; and (ix) all costs and expenses, including reasonable
attorneys' fees (including allocated costs of internal counsel), fees, costs and
expenses of accountants, advisors and consultants and costs of settlement,
incurred by Administrative Agent and Lenders in enforcing any Obligations of or
in collecting any payments due from any Loan Party hereunder or under the other
Loan Documents (including in connection with the sale of, collection from, or
other realization upon any of the Collateral or the enforcement of the Loan
Documents) or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or
pursuant to any insolvency or bankruptcy proceedings.
10.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection 10.2,
whether or not the transactions contemplated hereby shall be consummated,
Company agrees to defend (subject to Indemnitees' selection of counsel),
indemnify, pay and hold harmless Agents and Lenders (including Issuing Lenders),
and the officers, directors, employees, agents and Affiliates of Agents and
Lenders (collectively called the "INDEMNITEES"), from and against any and all
Indemnified Liabilities (as hereinafter defined); provided that Company shall
not have any obligation to any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities arise solely
from the gross negligence or willful misconduct of that Indemnitee as determined
by a final judgment of a court of competent jurisdiction.
As used herein, "INDEMNIFIED LIABILITIES" means, collectively, any
and all liabilities, obligations, losses, damages (including natural resource
damages), penalties, actions, judgments, suits, claims (including Environmental
Claims), costs (including the costs of any investigation, study, sampling,
testing, abatement, cleanup, removal, remediation or other response action
necessary to remove, remediate, clean up or xxxxx any Hazardous Materials
Activity), expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto,
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and any fees or expenses incurred by Indemnitees in enforcing this indemnity),
whether direct, indirect or consequential and whether based on any federal,
state or foreign laws, statutes, rules or regulations (including securities and
commercial laws, statutes, rules or regulations and Environmental Laws), on
common law or equitable cause or on contract or otherwise, that may be imposed
on, incurred by, or asserted against any such Indemnitee, in any manner relating
to or arising out of (i) this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby (including Lenders' agreement to
make the Loans hereunder or the use or intended use of the proceeds thereof or
the issuance of Letters of Credit hereunder or the use or intended use of any
thereof, the failure of an Issuing Lender to honor a drawing under a Letter of
Credit as a result of any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto Government Authority, or any enforcement
of any of the Loan Documents (including any sale of, collection from, or other
realization upon any of the Collateral or the enforcement of the Subsidiary
Guaranty)), (ii) the statements contained in the commitment letter delivered by
any Lender to Company with respect thereto, or (iii) any Environmental Claim or
any Hazardous Materials Activity relating to or arising from, directly or
indirectly, any past or present activity, operation, land ownership, or practice
of Company or any of its Subsidiaries.
To the extent that the undertakings to defend, indemnify, pay and
hold harmless set forth in this subsection 10.3 may be unenforceable in whole or
in part because they are violative of any law or public policy, Company shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.
Promptly after receipt by an Indemnitee of notice of the
commencement of any action, such Indemnitee shall use reasonable efforts to
notify Company of the commencement of such action.
10.4 SET-OFF; SECURITY INTEREST IN DEPOSIT ACCOUNTS.
In addition to any rights now or hereafter granted under applicable
law and not by way of limitation of any such rights, upon the occurrence of any
Event of Default each Lender is hereby authorized by Company at any time or from
time to time, without notice to Company or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and to apply any
and all deposits (general or special, time or demand, provisional or final,
including Indebtedness evidenced by certificates of deposit, whether matured or
unmatured, but not including trust accounts) and any other Indebtedness at any
time held or owing by that Lender or any Affiliate of that Lender to or for the
credit or the account of Company and each other Loan Party against and on
account of the Obligations of Company or any other Loan Party to that Lender (or
any Affiliate of that Lender) or to any other Lender (or any Affiliate of any
other Lender) under this Agreement, the Letters of Credit and participations
therein and the other Loan Documents, including all claims of any nature or
description arising out of or connected with this Agreement, the Letters of
Credit and participations therein or any other Loan Document, irrespective of
whether or not (i) that Lender shall have made any demand hereunder or (ii) the
principal of or the interest on the Loans or any amounts in respect of the
Letters of Credit or any other amounts due hereunder shall have become due and
payable pursuant to Section 8 and although said obligations and liabilities, or
any of them, may be contingent or unmatured. Company hereby further grants to
Administrative Agent, Swing Line Lender and
118
each Lender a security interest in all deposits and accounts maintained with
Administrative Agent, Swing Line Lender or such Lender as security for the
Obligations.
10.5 RATABLE SHARING.
Lenders hereby agree among themselves that if any of them shall,
whether by voluntary payment (other than a voluntary prepayment of Loans made
and applied in accordance with the terms of this Agreement), by realization upon
security, through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Loan
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to that
Lender hereunder or under the other Loan Documents (collectively, the "AGGREGATE
AMOUNTS DUE" to such Lender) that is greater than the proportion received by any
other Lender in respect of the Aggregate Amounts Due to such other Lender, then
the Lender receiving such proportionately greater payment shall (i) notify
Administrative Agent and each other Lender of the receipt of such payment and
(ii) apply a portion of such payment to purchase assignments (which it shall be
deemed to have purchased from each seller of an assignment simultaneously upon
the receipt by such seller of its portion of such payment) of the Aggregate
Amounts Due to the other Lenders so that all such recoveries of Aggregate
Amounts Due shall be shared by all Lenders in proportion to the Aggregate
Amounts Due to them; provided that if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy or reorganization of Company or otherwise, those
purchases shall be rescinded and the purchase prices paid for such assignments
shall be returned to such purchasing Lender ratably to the extent of such
recovery, but without interest. Company expressly consents to the foregoing
arrangement and agrees that any purchaser of an assignment so purchased may
exercise any and all rights of a Lender as to such assignment as fully as if
that Lender had complied with the provisions of subsection 10.1B with respect to
such assignment. In order to further evidence such assignment (and without
prejudice to the effectiveness of the assignment provisions set forth above),
each purchasing Lender and each selling Lender agree to enter into an Assignment
Agreement at the request of a selling Lender or a purchasing Lender, as the case
may be, in form and substance reasonably satisfactory to each such Lender.
10.6 AMENDMENTS AND WAIVERS.
No amendment (including increases in the Commitments or the addition
of additional Term Loan tranches hereunder), modification, termination or waiver
of any provision of this Agreement or of the Notes, and no consent to any
departure by Company therefrom, shall in any event be effective without the
written concurrence of Requisite Lenders; provided that no such amendment,
modification, termination, waiver or consent shall, without the written
concurrence of each Lender with Obligations directly affected (whose consent
shall be sufficient for any such amendment, modification, termination or waiver
without the consent of Requisite Lenders) (1) reduce the principal amount of any
Loan, (2) postpone the date or reduce the amount of any scheduled payment (but
not prepayment) of principal of any Loan, (3) postpone the date on which any
interest or any fees are payable, (4) decrease the interest rate borne by any
Loan (other than any waiver of any increase in the interest rate applicable to
any of the Loans
119
pursuant to subsection 2.2E) or the amount of any fees payable hereunder
(excluding any change in the manner in which any financial ratio used in
determining any interest rate or fee is calculated that would result in a
reduction of any such rate or fee), (5) reduce the amount or postpone the due
date of any amount payable in respect of any Letter of Credit, (6) extend the
expiration date of any Letter of Credit beyond the Revolving Loan Commitment
Termination Date, (7) change in any manner the obligations of Revolving Lenders
relating to the purchase of participations in Letters of Credit, (8) change in
any manner subsection 10.5 or the obligations of Lenders to make Loans
proportionately to their respective Pro Rata Shares or the definition of "Class"
or the definition of "Pro Rata Share" or the definition of "Requisite Class
Lenders" or the definition of "Requisite Lenders" (except for any changes
resulting solely from an increase in Commitments or the addition of another
"Class" of Revolving Loans or Term Loans hereunder approved by Requisite
Lenders), (9) change in any manner any provision of this Agreement that, by its
terms, expressly requires the approval or concurrence of all Lenders, (10)
increase the maximum duration of Interest Periods permitted hereunder, (11)
release any Lien granted in favor of Administrative Agent with respect to all or
substantially all of the Collateral or release all or substantially all of the
Subsidiary Guarantors from their obligations under the Subsidiary Guaranty, in
each case other than in accordance with the terms of the Loan Documents, or (12)
change in any manner or waive the provisions contained in subsection 8.1 or this
subsection 10.6. In addition, (i) any amendment, modification, termination or
waiver of any of the provisions contained in Section 4 shall be effective only
if evidenced by a writing signed by or on behalf of Administrative Agent and
Requisite Lenders, (ii) no amendment, modification, termination or waiver of any
provision of any Note shall be effective without the written concurrence of the
Lender which is the holder of that Note, (iii) no amendment, modification,
termination or waiver of any provision of subsection 2.1A(iv) or of any other
provision of this Agreement relating to the Swing Line Loan Commitment or the
Swing Line Loans shall be effective without the written concurrence of Swing
Line Lender, (iv) no amendment, modification, termination or waiver of any
provision of Section 3 shall be effective without the written concurrence of
Administrative Agent and, with respect to the purchase of participations in
Letters of Credit, without the written concurrence of each Issuing Lender that
has issued an outstanding Letter of Credit or has not been reimbursed for a
payment under a Letter of Credit, (v) no amendment, modification, termination or
waiver of any provision of Section 9 or of any other provision of this Agreement
which, by its terms, expressly requires the approval or concurrence of
Administrative Agent shall be effective without the written concurrence of
Administrative Agent, (vi) no amendment, modification, termination or waiver of
any provision of subsection 2.4 that has the effect of changing any voluntary or
mandatory prepayments, or Commitment reductions applicable to a Class in a
manner that disproportionately disadvantages such Class relative to any other
Class shall be effective without the written concurrence of Requisite Class
Lenders of such affected Class (it being understood and agreed that any
amendment, modification, termination or waiver of any such provision which only
postpones or reduces any voluntary or mandatory prepayment, or Commitment
reduction from those set forth in subsection 2.4 with respect to one Class but
not any other Class shall be deemed to disproportionately disadvantage such one
Class but not to disproportionately disadvantage any such other Class for
purposes of this clause (vi)), (vii) no Commitment of a Lender shall be
increased without the written concurrence of such Lender, (viii) no amendment,
modification, termination or waiver of any provision that, by its terms,
expressly requires the approval or concurrence of Requisite Class Lenders shall
be effective without the written concurrence of
120
such Requisite Class Lenders, and (ix) notwithstanding clause (i) above, no
amendment, modification, termination or waiver of any provision of this
Agreement that has the effect of enabling Company to satisfy a condition
precedent to the making of a Revolving Loan shall be effective against the
Revolving Lenders for purposes of the Revolving Commitments without the written
concurrence of Lenders having or holding at least 51% of the aggregate Revolving
Loan Exposure of all Lenders. Any waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given.
Administrative Agent may, but shall have no obligation to, with the written
concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of that Lender. No notice to or demand on Company in any case
shall entitle Company to any other or further notice or demand in similar or
other circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this subsection 10.6 shall be binding upon each
Lender at the time outstanding, each future Lender and, if signed by Company, on
Company.
10.7 INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so that if
a particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or would otherwise be within
the limitations of, another covenant shall not avoid the occurrence of an Event
of Default or Potential Event of Default if such action is taken or condition
exists.
10.8 NOTICES; EFFECTIVENESS OF SIGNATURES.
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, or sent by telefacsimile or United States mail or
courier service and shall be deemed to have been given when delivered in person
or by courier service, upon receipt of telefacsimile in complete and legible
form, or three Business Days after depositing it in the United States mail with
postage prepaid and properly addressed; provided that notices to Administrative
Agent, Swing Line Lender and any Issuing Lender shall not be effective until
received. For the purposes hereof, the address of each party hereto shall be as
set forth under such party's name on the signature pages hereof or (i) as to
Company and Administrative Agent, such other address as shall be designated by
such Person in a written notice delivered to the other parties hereto and (ii)
as to each other party, such other address as shall be designated by such party
in a written notice delivered to Administrative Agent. Electronic mail and
Internet and intranet websites may be used to distribute routine communications,
such as financial statements and other information; provided, however, that no
signature with respect to any notice, request, agreement, waiver, amendment or
other document or any notice that is intended to have binding effect may be sent
by electronic mail.
Loan Documents and notices under the Loan Documents may be
transmitted and/or signed by telefacsimile. The effectiveness of any such
documents and signatures shall, subject to applicable law, have the same force
and effect as an original copy with manual signatures and shall be binding on
all Loan Parties, Agents and Lenders. Administrative Agent may also require that
any such documents and signature be confirmed by a manually-signed copy
thereof; provided, however, that the failure to request or deliver any such
manually-signed copy
121
shall not affect the effectiveness of any facsimile document or signature.
10.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made herein
shall survive the execution and delivery of this Agreement and the making of the
Loans and the issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law
to the contrary, the agreements of Company set forth in subsections 2.6D, 2.7,
10.2, 10.3, 10.4, 10.17 and 10.18 and the agreements of Lenders set forth in
subsections 9.2C, 9.4, 10.5 and 10.18 shall survive the payment of the Loans,
the cancellation or expiration of the Letters of Credit and the reimbursement of
any amounts drawn thereunder, and the termination of this Agreement.
10.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of an Agent or any Lender in the
exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.11 MARSHALLING; PAYMENTS SET ASIDE.
Neither any Agent nor any Lender shall be under any obligation to
marshal any assets in favor of Company or any other party or against or in
payment of any or all of the Obligations. To the extent that Company makes a
payment or payments to Administrative Agent or Lenders (or to Administrative
Agent for the benefit of Lenders), or Agents or Lenders enforce any security
interests or exercise their rights of setoff, and such payment or payments or
the proceeds of such enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies therefor
or related thereto, shall be revived and continued in full force and effect as
if such payment or payments had not been made or such enforcement or setoff had
not occurred.
10.12 SEVERABILITY.
In case any provision in or obligation under this Agreement or the
Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
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10.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS; DAMAGE WAIVER.
The obligations of Lenders hereunder are several and no Lender shall
be responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders, or
Lenders and Company, as a partnership, an association, a Joint Venture or any
other kind of entity. The amounts payable at any time hereunder to each Lender
shall be a separate and independent debt, and each Lender shall be entitled to
protect and enforce its rights arising out of this Agreement and it shall not be
necessary for any other Lender to be joined as an additional party in any
proceeding for such purpose.
To the extent permitted by law, (i) Company shall not assert, and
hereby waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) and (ii) except as expressly set forth in this Agreement, each
Agent and Lender shall not assert, and hereby waives, any claim against Company,
any Subsidiaries and their respective officers, directors, employees, agents and
Affiliates, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages), in each case arising
out of, in connection with or as a result of this Agreement (including, without
limitation, subsection 2.1C hereof), any other Loan Document, any transaction
contemplated by the Loan Documents, any Loan or the use of proceeds thereof.
10.14 RELEASE OF SECURITY INTEREST OR GUARANTY.
Upon the proposed sale or other disposition of any Collateral that
is permitted by this Agreement or to which Requisite Lenders have otherwise
consented, or the sale or other disposition of all of the Capital Stock of a
Subsidiary Guarantor to any Person (other than an Affiliate of Company)
permitted by this Agreement or to which Requisite Lenders have otherwise
consented, for which a Loan Party desires to obtain a security interest release
or a release of the Subsidiary Guaranty from Administrative Agent, such Loan
Party shall deliver an Officer's Certificate (i) stating that the Collateral or
the Capital Stock subject to such disposition is being sold or otherwise
disposed of in compliance with the terms hereof and (ii) specifying the
Collateral or Capital Stock being sold or otherwise disposed of in the proposed
transaction. Upon the receipt of such Officer's Certificate, Administrative
Agent shall, at such Loan Party's expense, so long as Administrative Agent (a)
has no reason to believe that the facts stated in such Officer's Certificate are
not true and correct and (b), if the sale or other disposition of such item of
Collateral or Capital Stock constitutes an Asset Sale, shall have received
evidence satisfactory to it that arrangements satisfactory to it have been made
for delivery of the Net Asset Sale Proceeds if and as required by subsection
2.4, execute and deliver such releases of its security interest in such
Collateral or such Subsidiary Guaranty, as may be reasonably requested by such
Loan Party.
10.15 APPLICABLE LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS XX XXX XXXXX
000
XX XXX XXXX (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD
REQUIRE APPLICATION OF ANOTHER LAW.
10.16 CONSTRUCTION OF AGREEMENT; NATURE OF RELATIONSHIP.
Each of the parties hereto acknowledges that (i) it has been
represented by counsel in the negotiation and documentation of the terms of this
Agreement, (ii) it has had full and fair opportunity to review and revise the
terms of this Agreement, (iii) this Agreement has been drafted jointly by all of
the parties hereto, and (iv) neither Administrative Agent nor any Lender or
other Agent has any fiduciary relationship with or duty to Company arising out
of or in connection with this Agreement or any of the other Loan Documents, and
the relationship between Administrative Agent, the other Agents and Lenders, on
one hand, and Company, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor. Accordingly, each of the parties hereto
acknowledges and agrees that the terms of this Agreement shall not be construed
against or in favor of another party.
10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS
THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY EXECUTING AND
DELIVERING THIS AGREEMENT, COMPANY, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN
ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO COMPANY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SUBSECTION 10.8;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN
THE COURTS OF ANY OTHER JURISDICTION; AND
124
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.17 RELATING
TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST
EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402
OR OTHERWISE.
10.18 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this transaction, including
contract claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a material
inducement to enter into a business relationship, that each has already relied
on this waiver in entering into this Agreement, and that each will continue to
rely on this waiver in their related future dealings. Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 10.18 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
10.19 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained pursuant
to the requirements of this Agreement that has been identified in writing as
confidential by Company in accordance with such Lender's customary procedures
for handling confidential information of this nature, it being understood and
agreed by Company that in any event a Lender may make disclosures (a) to its and
its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such information and instructed to keep such information
confidential), (b) to the extent requested by any Government Authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this subsection 10.19, to (i) any Eligible Assignee of or participant
in, or any prospective Eligible Assignee of or Participant in, any of its rights
or obligations under this
125
Agreement or (ii) any direct or indirect contractual counterparty or prospective
counterparty (or such contractual counterparty's or prospective counterparty's
professional advisor) to any credit derivative transaction relating to
obligations of Company, (g) with the written consent of Company, (h) to the
extent such information (i) becomes publicly available other than as a result of
a breach of this subsection 10.19 or (ii) becomes available to Administrative
Agent or any Lender on a nonconfidential basis from a source other than Company,
so long as Administrative Agent or such Lender had no knowledge that such other
source provided such information in violation of any confidentiality agreement
with Company or (i) to the National Association of Insurance Commissioners or
any other similar organization or any nationally recognized rating agency that
requires access to information about a Lender's or its Affiliates' investment
portfolio in connection with ratings issued with respect to such Lender or its
Affiliates and that no written or oral communications from counsel to an Agent
and no information that is or is designated as privileged or as attorney work
product may be disclosed to any Person unless such Person is a Lender or a
participant hereunder; provided that, unless specifically prohibited by
applicable law or court order, each Lender shall notify Company of any request
by any Government Authority or representative thereof (other than any such
request in connection with any examination of the financial condition of such
Lender by such Government Authority) for disclosure of any such non-public
information prior to disclosure of such information; and provided further that
in no event shall any Lender be obligated or required to return any materials
furnished by Company or any of its Subsidiaries. In addition, Administrative
Agent and Lenders may disclose the existence of this Agreement and information
about this Agreement to market data collectors, similar service providers to the
lending industry, and service providers to Administrative Agent and Lenders.
10.20 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or supplements
hereto or in connection herewith may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto.
10.21 SUCCESSOR SWING LINE LENDER.
A. RESIGNATION OR REMOVAL. Swing Line Lender may resign, with the
consent of Requisite Lenders in their sole discretion, at any time by giving 30
days' prior written notice thereof to Lenders and Company provided that
Requisite Lenders have appointed a successor Swing Line Lender and such
appointment has been accepted as provided below. Unless Swing Line Lender is
Administrative Agent, Swing Line Lender may be removed at any time with or
without cause by an instrument or concurrent instruments in writing delivered to
Company and Administrative Agent and signed by Requisite Lenders. Upon any such
notice of resignation or removal, Requisite Lenders shall have the right, upon
five Business Days' notice to Company, to appoint a successor Swing Line Lender,
subject to Company's consent, which shall not be unreasonably withheld or
delayed. Upon the acceptance of any appointment as
126
Swing Line Lender hereunder by a successor Swing Line Lender, that successor
Swing Line Lender shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring or removed Swing Line
Lender and the retiring or removed Swing Line Lender shall be discharged from
its duties and obligations under this Agreement.
B. SUCCESSOR SWING LINE LENDER. In the event of a resignation or
removal of any Swing Line Lender pursuant to subsection 11.2A, (i) Company shall
prepay any outstanding Swing Line Loans made by the retiring or removed Swing
Line Lender, (ii) upon such prepayment, the retiring or removed Swing Line
Lender shall surrender any Swing Line Notes held by it to Company for
cancellation, and (iii) if so requested by the successor Swing Line Lender in
accordance with subsection 2.1E, Company shall issue a new Swing Line Note to
the successor Swing Line Lender substantially in the form of Exhibit VII annexed
hereto, in the principal amount of the Swing Line Loan Commitment then in effect
and with other appropriate insertions.
127
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY:
URS CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
Notice Address:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxxxxxx
Executive Vice President and
Chief Financial Officer
Telefacsimile: (000) 000-0000
Credit Agreement
S-1
LENDERS:
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
By: /s/ Xxxx X'Xxxx
---------------------------------
Name: Xxxx X'Xxxx
Title: Director
By: /s/ Xxxxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Associate
Notice Address:
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Agency Department Manager
Telefacsimile: (000) 000-0000
Payment Instructions:
_________________________________________________
_________________________________________________
ABA #____________________________________________
For Acct.: ______________________________________
Ref: ____________________________________________
Credit Agreement
S-2
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
Individually and as Syndication Agent
By: /s/ Xxxxx Xxxxxxxx
--------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
Notice Address:
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxxxx
Vice President
Telefacsimile: (000) 000-0000
Payment Instructions:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
San Francisco, CA
ABA #1210-00248
For Acct.: 4518-105598
Ref: URS Corporation
Credit Agreement
S-3
CREDIT SUISSE FIRST BOSTON, CAYMAN ISLANDS BRANCH
By: /s/ Xxxx X'Xxxx
---------------------------------------
Name: Xxxx X'Xxxx
Title: Director
By: /s/ Xxxxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Associate
Notice Address:
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telefacsimile: (000) 000-0000
Payment Instructions:
_________________________________________________
_________________________________________________
ABA #____________________________________________
For Acct.: ______________________________________
Ref: ____________________________________________
Credit Agreement
S-4
BANK LEUMI USA
By: /s/ Xxxx Sadan
---------------------
Name: Xxxx Sadan
Title: Assistant Vice President
Notice Address (Credit):
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Sadan
Telefacsimile: (000) 000-0000
Notice Address (Operations):
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxx
Telefacsimile: (000) 000-0000
Payment Instructions:
BANK LEUMI USA
Attn: Loan Operations/Corporate Finance
New York, NY
ABA #000000000
For Acct.: 80024742-00
Account Name: URS Corporation
Ref: URS
Credit Agreement
S-5
BNP PARIBAS,
Individually and as a Co-Documentation Agent
By: /s/ Xxxxx X. Low
----------------------
Name: Xxxxx X. Low
Title: Director
By: /s/ Xxxx Xxxxxxxx
----------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
Notice Address (Credit):
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Low
Telefacsimile: (000) 000-0000
Notice Address (Operations):
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Telefacsimile: (000) 000-0000
Payment Instructions:
FEDERAL RESERVE BANK OF NEW YORK
Attention: Xxxxx Xxxxx
New York, NY
ABA #000000000 BNP NY
For Acct.: 14334000176
Account Name: BNP Paribas San Francisco
Ref: URS Corporation
Credit Agreement
S-6
ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Erste Bank New York Branch
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
Erst Bank New York Branch
Notice Address (Credit):
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telefacsimile: (000) 000-0000
Notice Address (Administrative):
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx / Xx Xxxxxxx
Telefacsimile: (000) 000-0000
Payment Instructions:
BANK OF AMERICA, NEW YORK
New York, NY
ABA #000000000
For Acct.: 000-0000-000
Account Name: Erste Bank, New York
Ref: URS Corp.
Credit Agreement
S-7
FORTIS CAPITAL CORP.
By: /s/ Xxxxxxx Xxxxx /s/ Xxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxxxx Xxxxx Xxxx X. Xxxxxxx
Title:Vice President Executive Vice President
Notice Address (Credit):
0 Xxxxxxxx Xxxxx
000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxx / Xxxx Xxxxx
Telefacsimile: (000) 000-0000
Notice Address (Operations):
0 Xxxxxxxx Xxxxx
000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxx Silver / Xxxxxxx Xxxxx
Telefacsimile: (000) 000-0000
Payment Instructions:
Chase Xxxxxxxxx Xxxx
XXX #000 000 000
Xxx Xxxx.: 001 624 418
Account Name: Fortis Capital Corp.
Ref: URS Corporation
Credit Agreement
S-8
XXXXXX TRUST & SAVINGS BANK,
Individually and as a Co-Documentation Agent
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
Notice Address (Credit):
000 Xxxx Xxxxxx Xxxxxx, 0X
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx / Xxxxxxx Xxxx
Telefacsimile: (000) 000-0000 / (000) 000-0000
Notice Address (Operations):
000 Xxxx Xxxxxx Xxxxxx, 0X
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telefacsimile: (000) 000-0000
Payment Instructions:
XXXXXX TRUST & SAVINGS BANK
Attention: Xxxxx Xxxxxx
Chicago, IL
ABA #071 000 288
For Acct.: 109 215 4
Account Name: Credit Account
Ref: URS Corporation
Credit Agreement
S-9
ING CAPITAL LLC
/s/ Xxxxxxx Xxxxx
By: _________________________________________________
Name: Xxxxxxx Xxxxx
Title: Managing Director
Notice Address (Credit):
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx Xxxxx
Telefacsimile: 000-000-0000
Notice Address (Operations):
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Codorniga
Telefacsimile: 000-000-0000
Payment Instructions:
XX Xxxxxx Chase
Bank Name: ______________________________________
Attention: ______________________________________
New York, NY
City, State: ____________________________________
000-000-000
ABA #____________________________________________
000-000-000
For Acct.: ______________________________________
Account Name: ING Capital LLC
URS Corp.
Ref: ____________________________________________
Credit Agreement
S-10
THE NORINCHUKIN BANK, NEW YORK BRANCH
/s/ Toshiyuki Futaoka
By: _________________________________________________
Name: Toshiyuki Futaoka
Title: Joint General Manager
Notice Address (Credit):
000 Xxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Junya Morishita
Telefacsimile: 000-000-0000
Notice Address (Operations):
000 Xxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Au Xxxxx
Telefacsimile: 000-000-0000
Payment Instructions:
The Chase Manhattan Bank
Bank Name: ______________________________________
Attention: ______________________________________
New York, NY
City, State: ____________________________________
021000021
ABA #____________________________________________
000-0-00000
For Acct.: ______________________________________
The Norinchukin Bank, New York
Account Name: ___________________________________
URS Corp.
Ref: ____________________________________________
Credit Agreement
S-11
THE ROYAL BANK OF SCOTLAND PLC,
Individually and as a Co-Documentation Agent
/s/ Xxxx Xxxxxx
By: _________________________________________________
Name: Xxxx Xxxxxx
Title: Director
Notice Address (Credit):
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Senior Vice President
Telefacsimile: (000) 000-0000
Notice Address (Operations):
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx / Xxxx Xxxxxxxx
Telefacsimile: (000) 000-0000
Payment Instructions:
Chase Manhattan Bank
New York, NY
ABA #000-000-000
For Acct.: 000-000-000
Account Name: Royal Bank of Scotland PLC
Ref: URS Corporation
Credit Agreement
S-12
TRANSAMERICA BUSINESS CAPITAL CORPORATION
/s/ Xxxxx Xxxxxxxx
By: _________________________________________________
Name: Xxxxx Xxxxxxxx
Title: Executive Vice President
Notice Address (Credit):
000 Xxxxxxxx Xxxxx Xxxxxx
Xxxxx X-000
Xxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telefacsimile: (000) 000-0000
Notice Address (Operations):
000 Xxxxxxxx Xxxxx Xxxxxx
Xxxxx X-000
Xxx, XX 00000
Attention: Xxxx Xxxxx
Telefacsimile: (000) 000-0000
Payment Instructions:
BANK ONE
Chicago, IL
ABA #000-000-000
For Acct.: 52-97184
Ref: URS Corporation
Credit Agreement
X-00
XXXXX XXXX XX XXXXXXXXXX, N.A.
/s/ Xxxxx X. Xxxxxxx
By: _________________________________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Notice Address (Credit):
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Telefacsimile: (000) 000-0000
Notice Address (Operations):
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Syndication Participation Group
Telefacsimile: (000) 000-0000
Payment Instructions:
UNION BANK OF CALIFORNIA, N.A.
Attention: Commercial Loan Operation
Monterey Park, CA
ABA #0000-0000-00
For Acct.: 070196431
Account Name: Wire Transfer Clearing Account
Ref: URS Corporation
Credit Agreement
S-14
U.S. BANK NATIONAL ASSOCIATION
/s/ Xxxxxxx X. Xxxx
By: _________________________________________________
Name: Xxxxxxx X. Xxxx
Title: Vice President
Notice Address (Credit):
US Bank N.A.
000 XX Xxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx or Xxxxx Xxxxxxx
Telefacsimile: 503/275-5420
Notice Address (Operations):
US Bank N.A.
000 XX Xxx Xxxxxx, 0xx floor
Mail Code: PO - OR - P4LN
Xxxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxxxx
Telefacsimile: 503/275-4600
Payment Instructions:
U.S. Bank National Association
Bank Name: _____________________________________
Xxxxxx Xxxxxxxx,
Participation Specialist
Attention: _____________________________________
Xxxxxxxx, Xxxxxx 00000
Xxxx, Xxxxx: ___________________________________
000-000-000
ABA #____________________________________________
00340012160600
For Acct.: _____________________________________
Commercial Load Servicing West
Account Name: __________________________________
Ref: URS Corporation
Answerback: USNATLBANKPTL
Tax ID #: 00-0000000
Telex: 360549
Credit Agreement
S-15
SCHEDULE 2.1
LENDERS' COMMITMENTS AND PRO RATA SHARES
Revolving Tranche A Tranche B
Loan Term Loan Term Loan
Commitment Commitment Commitment
Credit Suisse First $34,889,230.77 $21,805,769.23 $350,000,000
Boston
Xxxxx Fargo Bank, 28,735,384.62 17,959,615.38
National Association
Bank Leumi USA 2,221,538.46 1,388,461.54
BNP Paribas 21,538,461.54 13,461,538.46
Erste Bank der 4,923,076.92 3,076,923.08
Oesterreichischen
Sparkassen AG
Fortis Capital Corp. 9,230,769.23 5,769,230.77
Xxxxxx Trust & Savings 21,538,461.54 13,461,538.46
Bank
ING Capital LLC 15,384,615.38 9,615,384.62
The Norinchukin Bank, 9,230,769.23 5,769,230.77
New York Branch
The Royal Bank of 21,538,461.54 13,461,538.46
Scotland PLC
Transamerica Business 6,153,846.15 3,846,153.85
Capital Corporation
Union Bank of 15,384,615.38 9,615,384.62
California, X.X.
X.X. Bank National 9,230,769.23 5,769,230.77
Association
------------ -------------- ------------
Total $200,000,000 $125,000,000 $350,000,000
EXHIBIT I
[FORM OF NOTICE OF BORROWING]
NOTICE OF BORROWING
Pursuant to that certain Credit Agreement dated as of August 22,
2002, as amended, supplemented or otherwise modified to the date hereof (said
Credit Agreement, as so amended, supplemented or otherwise modified, being the
"CREDIT AGREEMENT", the terms defined therein and not otherwise defined herein
being used herein as therein defined), by and among URS Corporation, a Delaware
corporation ("COMPANY"), the financial institutions listed therein as Lenders
("LENDERS"), Credit Suisse First Boston, as a Co-Lead Arranger and
administrative agent for Lenders (in such capacity, "ADMINISTRATIVE AGENT"),
Xxxxx Fargo Bank, National Association, as a Co-Lead Arranger and syndication
agent for Lenders, and Bank of Montreal, BNP Paribas and The Royal Bank of
Scotland PLC, as documentation agents for Lenders, this represents Company's
request to borrow as follows:
1. Date of borrowing: ___________________, _________
2. Amount of borrowing: $___________________
3 Amount of outstanding Swing Line Loans: $ _____________________
4. Lender(s): [ ] a. Lenders, in accordance with their
Pro Rata Shares
[ ] b. Swing Line Lender
5. Type of Loans: [ ] a. Tranche A Term Loans
[ ] b. Tranche B Term Loans
[ ] c. Revolving Loans
[ ] d. Swing Line Loans
6. Interest rate option: [ ] a. Base Rate Loan(s)
[ ] b. Eurodollar Rate Loan(s) with an
initial Interest Period of __________
month(s) (for Tranche A Term Loans,
Tranche B Term Loans and Revolving
Loans only)
The proceeds of such Loans are to be deposited in the following accounts:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
I-1
The undersigned officer, to the best of his or her knowledge, on
behalf of Company, certifies that:
(i) The representations and warranties contained in the Credit
Agreement and the other Loan Documents are true, correct and complete in all
material respects on and as of the date hereof to the same extent as though made
on and as of the date hereof, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties were true, correct and complete in all material
respects on and as of such earlier date; provided that where a representation
and warranty is already qualified as to materiality, such representation and
warranty shall be true, correct and complete as so qualified;
(ii) No event has occurred and is continuing or would result from
the consummation of the borrowing contemplated hereby that would constitute an
Event of Default or a Potential Event of Default;
(iii) Each Loan Party has performed in all material respects all
agreements and satisfied all conditions which the Credit Agreement provides
shall be performed or satisfied by such Loan Party on or before the date hereof;
and
(iv) No order, judgment or decree of any arbitrator or Government
Authority shall purport to enjoin or restrain any Lender from making the Loans
to be made by it on and as of the date hereof.
DATED: ____________________ URS CORPORATION
By: _________________________________
Title: ______________________________
I-2
EXHIBIT II
[FORM OF NOTICE OF CONVERSION/CONTINUATION]
NOTICE OF CONVERSION/CONTINUATION
Pursuant to that certain Credit Agreement dated as of August ___,
2002, as amended, supplemented or otherwise modified to the date hereof (said
Credit Agreement, as so amended, supplemented or otherwise modified, being the
"CREDIT AGREEMENT", the terms defined therein and not otherwise defined herein
being used herein as therein defined), by and among URS Corporation, a Delaware
corporation ("COMPANY"), the financial institutions listed therein as Lenders
("LENDERS"), Credit Suisse First Boston, as a Co-Lead Arranger and
administrative agent for Lenders (in such capacity, "ADMINISTRATIVE AGENT"),
Xxxxx Fargo Bank, National Association, as a Co-Lead Arranger and syndication
agent for Lenders, and Bank of Montreal, BNP Paribas and The Royal Bank of
Scotland PLC, as documentation agents for Lenders, this represents Company's
request to convert or continue Loans as follows:
1. Date of conversion/continuation: __________________, _______
2. Amount of Loans being converted/continued: $___________________
3. Type of Loans being
converted/continued: [ ] a. Tranche A Term Loans
[ ] b. Tranche B Term Loans
[ ] c. Revolving Loans
4. Nature of conversion/continuation:
[ ] a. Conversion of Base Rate Loans to Eurodollar Rate Loans
[ ] b. Conversion of Eurodollar Rate Loans to Base Rate Loans
[ ] c. Continuation of Eurodollar Rate Loans as such
5. If Loans are being continued as or converted to Eurodollar Rate
Loans, the duration of the new Interest Period that commences on the
conversion/continuation date: _______________ month(s)
In the case of a conversion to or continuation of Eurodollar Rate
Loans, the undersigned officer, to the best of his or her knowledge, on behalf
of Company, certifies that no Event of Default or Potential Event of Default has
occurred and is continuing under the Credit Agreement.
DATED: _____________________ URS CORPORATION
By: _________________________
Title: ________________________
EXHIBIT III
[FORM OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT]
REQUEST FOR ISSUANCE OF LETTER OF CREDIT
Pursuant to that certain Credit Agreement dated as of August 22,
2002, as amended, supplemented or otherwise modified to the date hereof (said
Credit Agreement, as so amended, supplemented or otherwise modified, being the
"CREDIT AGREEMENT", the terms defined therein and not otherwise defined herein
being used herein as therein defined), by and among URS Corporation, a Delaware
corporation ("COMPANY"), the financial institutions listed therein as Lenders
("LENDERS"), Credit Suisse First Boston, as a Co-Lead Arranger and
administrative agent for Lenders (in such capacity, "ADMINISTRATIVE AGENT"),
Xxxxx Fargo Bank, National Association, as a Co-Lead Arranger and syndication
agent for Lenders, and Bank of Montreal, BNP Paribas and The Royal Bank of
Scotland PLC, as documentation agents for Lenders, this represents Company's
request for the issuance of a Letter of Credit as follows:
1. Issuing Lender: [ ] a. Administrative Agent
[ ] b. ________________________________
2. Date of issuance of Letter of Credit: _______________________
3. Face amount of Letter of Credit: $___________________________
4. Expiration date of Letter of Credit: ________________________
5. Currency in which Letter of Credit is to be denominated: _____
6. Name and address of beneficiary:
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
7. Attached hereto is:
[ ] a. the verbatim text of such proposed Letter of Credit
[ ] b. a description of the proposed terms and conditions
of such Letter of Credit, including a precise
description of any documents to be presented by the
beneficiary which, if presented by the beneficiary prior
to the expiration date of such Letter of Credit, would
require the Issuing Lender to make payment under such
Letter of Credit.
The undersigned officer, to the best of his or her knowledge, on
behalf of Company, certifies that:
(i) The representations and warranties contained in the Credit
Agreement and the other Loan Documents are true, correct and complete in all
material respects on and as of the
III-1
date hereof to the same extent as though made on and as of the date hereof,
except to the extent such representations and warranties specifically relate to
an earlier date, in which case such representations and warranties were true,
correct and complete in all material respects on and as of such earlier date;
provided that where a representation and warranty is already qualified as to
materiality, such representation and warranty shall be true, correct and
complete as so qualified;
(ii) No event has occurred and is continuing or would result from
the issuance of the Letter of Credit contemplated hereby that would constitute
an Event of Default or a Potential Event of Default;
(iii) Each Loan Party has performed in all material respects all
agreements and satisfied all conditions which the Credit Agreement provides
shall be performed or satisfied by it on or before the date hereof; and
(iv) No order, judgment or decree of any arbitrator or Government
Authority shall purport to enjoin or restrain the Issuing Lender from issuing
the Letter of Credit to be issued by it on and as of the date hereof.
DATED: ____________________ URS CORPORATION
By: ____________________________
Title: _________________________
III-2
EXHIBIT IV
[FORM OF REVOLVING NOTE]
URS CORPORATION
PROMISSORY NOTE DUE AUGUST 22, 2007
$_______________ New York, New York
____________, _____
FOR VALUE RECEIVED, URS CORPORATION, a Delaware corporation
("COMPANY"), promises to pay to ________________ ("PAYEE") or its registered
assigns, the lesser of (x) _______________________ ($____________________) and
(y) the unpaid principal amount of all advances made by Payee to Company as
Revolving Loans under the Credit Agreement referred to below. The principal
amount of this Note shall be payable on the dates and in the amounts specified
in the Credit Agreement referred to below.
Company also promises to pay interest on the unpaid principal amount
hereof, from the date hereof until paid in full, at the rates and at the times
which shall be determined in accordance with the provisions of that certain
Credit Agreement dated as of August 22, 2002, by and among Company, the
financial institutions listed therein as Lenders, Credit Suisse First Boston, as
a Co-Lead Arranger and administrative agent for Lenders, Xxxxx Fargo Bank,
National Association, as a Co-Lead Arranger and syndication agent for Lenders,
and Bank of Montreal, BNP Paribas and The Royal Bank of Scotland PLC, as
documentation agents for Lenders (said Credit Agreement, as it may be amended,
supplemented or otherwise modified from time to time, being the "CREDIT
AGREEMENT", the terms defined therein and not otherwise defined herein being
used herein as therein defined).
This Note is one of Company's "Revolving Notes" and is issued
pursuant to and entitled to the benefits of the Credit Agreement, to which
reference is hereby made for a more complete statement of the terms and
conditions under which the Revolving Loans evidenced hereby were made and are to
be repaid.
All payments of principal and interest in respect of this Note shall
be made in lawful money of the United States of America in same day funds at the
Funding and Payment Office or at such other place as shall be designated in
writing for such purpose in accordance with the terms of the Credit Agreement.
Unless and until an Assignment Agreement effecting the assignment or transfer of
this Note shall have been accepted by Administrative Agent and recorded in the
Register and, if required, consented to by Company and Administrative Agent as
provided in the Credit Agreement, Company and Administrative Agent shall be
entitled to deem and treat Payee as the owner and holder of this Note and the
Loans evidenced hereby. Payee hereby agrees, by its acceptance hereof, that
before disposing of this Note or any part hereof it will make a notation hereon
of all principal payments previously made hereunder and of the date to which
interest hereon has been paid; provided, however, that the failure to make a
notation of any payment made on this Note shall not limit or otherwise affect
the obligations of Company hereunder with respect to payments of principal of or
interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day
which is
IV-1 Revolving Note
not a Business Day, such payment shall be made on the next succeeding Business
Day and such extension of time shall be included in the computation of the
payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in the
Credit Agreement and to prepayment at the option of Company as provided in the
Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of
the principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment as
provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligations of Company,
which are absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, and in the currency herein
prescribed.
Company promises to pay all costs and expenses, including reasonable
attorneys' fees, all as provided in the Credit Agreement, incurred in the
collection and enforcement of this Note. Company and any endorsers of this Note
hereby consent to renewals and extensions of time at or after the maturity
hereof, without notice, and hereby waive diligence, presentment, protest, demand
and notice of every kind and, to the full extent permitted by law, the right to
plead any statute of limitations as a defense to any demand hereunder.
IV-2 Revolving Note
IN WITNESS WHEREOF, Company has caused this Note to be duly executed
and delivered by its officer thereunto duly authorized as of the date and at the
place first written above.
URS CORPORATION
By: _________________________________
Name: _______________________________
Title: ______________________________
IV-3 Revolving Note
TRANSACTIONS
ON
REVOLVING NOTE
Outstanding
Type of Amount of Amount of Principal
Loan Made Loan Made Principal Paid Balance Notation
Date This Date This Date This Date This Date Made By
---- --------- --------- --------- --------- -------
Revolving Note
IV-4
EXHIBIT V
[FORM OF TRANCHE A TERM NOTE]
URS CORPORATION
PROMISSORY NOTE DUE AUGUST 22, 2007
$___________________ New York, New York
__________, ______
FOR VALUE RECEIVED, URS CORPORATION, a Delaware corporation
("COMPANY"), promises to pay to ________________________________ ("PAYEE") or
its registered assigns, the principal amount of ___________________
($____________). The principal amount of this Note shall be payable on the dates
and in the amounts specified in the Credit Agreement referred to below; provided
that the last such installment shall be in an amount sufficient to repay the
entire unpaid principal balance of this Note, together with all accrued and
unpaid interest thereon.
Company also promises to pay interest on the unpaid principal amount
hereof, from the date hereof until paid in full, at the rates and at the times
which shall be determined in accordance with the provisions of that certain
Credit Agreement dated as of August 22, 2002, by and among Company, the
financial institutions listed therein as Lenders, Credit Suisse First Boston, as
a Co-Lead Arranger and administrative agent for Lenders, Xxxxx Fargo Bank,
National Association, as a Co-Lead Arranger and syndication agent for Lenders,
and Bank of Montreal, BNP Paribas and The Royal Bank of Scotland PLC, as
documentation agents for Lenders (said Credit Agreement, as it may be amended,
supplemented or otherwise modified from time to time, being the "CREDIT
AGREEMENT", the terms defined therein and not otherwise defined herein being
used herein as therein defined).
This Note is one of Company's "Tranche A Term Notes" and is issued
pursuant to and entitled to the benefits of the Credit Agreement, to which
reference is hereby made for a more complete statement of the terms and
conditions under which the Tranche A Term Loan evidenced hereby was made and is
to be repaid.
All payments of principal and interest in respect of this Note shall
be made in lawful money of the United States of America in same day funds at the
Funding and Payment Office or at such other place as shall be designated in
writing for such purpose in accordance with the terms of the Credit Agreement.
Unless and until an Assignment Agreement effecting the assignment or transfer of
this Note shall have been accepted by Administrative Agent and recorded in the
Register and, if required, consented to by Company and Administrative Agent as
provided in the Credit Agreement, Company and Administrative Agent shall be
entitled to deem and treat Payee as the owner and holder of this Note and the
Loan evidenced hereby. Payee hereby agrees, by its acceptance hereof, that
before disposing of this Note or any part hereof it will make a notation hereon
of all principal payments previously made hereunder and of the date to which
interest hereon has been paid; provided, however, that the failure to make a
notation of any payment made on this Note shall not limit or otherwise affect
the obligations of Company hereunder with respect to payments of principal of or
interest on this Note.
V-1
Whenever any payment on this Note shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in the
Credit Agreement and to prepayment at the option of Company as provided in the
Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of
the principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment as
provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligations of Company,
which are absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, and in the currency herein
prescribed.
Company promises to pay all costs and expenses, including reasonable
attorneys' fees, all as provided in the Credit Agreement, incurred in the
collection and enforcement of this Note. Company and any endorsers of this Note
hereby consent to renewals and extensions of time at or after the maturity
hereof, without notice, and hereby waive diligence, presentment, protest, demand
and notice of every kind and, to the full extent permitted by law, the right to
plead any statute of limitations as a defense to any demand hereunder.
IN WITNESS WHEREOF, Company has caused this Note to be duly executed
and delivered by its officer thereunto duly authorized as of the date and at the
place first written above.
URS CORPORATION
By: _________________________________
Name: _______________________________
Title: ______________________________
V-2
EXHIBIT VI
[FORM OF TRANCHE B TERM NOTE]
URS CORPORATION
PROMISSORY NOTE DUE AUGUST 22, 2008
$___________________ New York, New York
_____________, ______
FOR VALUE RECEIVED, URS CORPORATION, a Delaware corporation
("COMPANY"), promises to pay to ________________________________ ("PAYEE") or
its registered assigns, the principal amount of ___________________
($____________). The principal amount of this Note shall be payable on the dates
and in the amounts specified in the Credit Agreement referred to below; provided
that the last such installment shall be in an amount sufficient to repay the
entire unpaid principal balance of this Note, together with all accrued and
unpaid interest thereon.
Company also promises to pay interest on the unpaid principal amount
hereof, from the date hereof until paid in full, at the rates and at the times
which shall be determined in accordance with the provisions of that certain
Credit Agreement dated as of August 22, 2002, by and among Company, the
financial institutions listed therein as Lenders, Credit Suisse First Boston, as
a Co-Lead Arranger and administrative agent for Lenders, Xxxxx Fargo Bank,
National Association, as a Co-Lead Arranger and syndication agent for Lenders,
and Bank of Montreal, BNP Paribas and The Royal Bank of Scotland PLC, as
documentation agents for Lenders (said Credit Agreement, as it may be amended,
supplemented or otherwise modified from time to time, being the "CREDIT
AGREEMENT", the terms defined therein and not otherwise defined herein being
used herein as therein defined).
This Note is one of Company's "Tranche B Term Notes" and is issued
pursuant to and entitled to the benefits of the Credit Agreement, to which
reference is hereby made for a more complete statement of the terms and
conditions under which the Tranche B Term Loan evidenced hereby was made and is
to be repaid.
All payments of principal and interest in respect of this Note shall
be made in lawful money of the United States of America in same day funds at the
Funding and Payment Office or at such other place as shall be designated in
writing for such purpose in accordance with the terms of the Credit Agreement.
Unless and until an Assignment Agreement effecting the assignment or transfer of
this Note shall have been accepted by Administrative Agent and recorded in the
Register and, if required, consented to by Company and Administrative Agent as
provided in the Credit Agreement, Company and Administrative Agent shall be
entitled to deem and treat Payee as the owner and holder of this Note and the
Loan evidenced hereby. Payee hereby agrees, by its acceptance hereof, that
before disposing of this Note or any part hereof it will make a notation hereon
of all principal payments previously made hereunder and of the date to which
interest hereon has been paid; provided, however, that the failure to make a
notation of any payment made on this Note shall not limit or otherwise affect
the obligations of Company hereunder with respect to payments of principal of or
interest on this Note.
VI-1
Whenever any payment on this Note shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in the
Credit Agreement and to prepayment at the option of Company as provided in the
Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of
the principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment as
provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligations of Company,
which are absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, and in the currency herein
prescribed.
Company promises to pay all costs and expenses, including reasonable
attorneys' fees, all as provided in the Credit Agreement, incurred in the
collection and enforcement of this Note. Company and any endorsers of this Note
hereby consent to renewals and extensions of time at or after the maturity
hereof, without notice, and hereby waive diligence, presentment, protest, demand
and notice of every kind and, to the full extent permitted by law, the right to
plead any statute of limitations as a defense to any demand hereunder.
IN WITNESS WHEREOF, Company has caused this Note to be duly executed
and delivered by its officer thereunto duly authorized as of the date and at the
place first written above.
URS CORPORATION
By: _________________________________
Name: _______________________________
Title: ______________________________
VI-2
EXHIBIT VII
[FORM OF SWING LINE NOTE]
URS CORPORATION
PROMISSORY NOTE DUE AUGUST 22, 2007
$___________ New York, New York
_____________, _____
FOR VALUE RECEIVED, URS CORPORATION, a Delaware corporation
("COMPANY"), promises to pay to ________________ ("PAYEE") or its registered
assigns, the lesser of (x) _______________________ ($____________________) and
(y) the unpaid principal amount of all advances made by Payee to Company as
Swing Line Loans under the Credit Agreement referred to below. The principal
amount of this Note shall be payable on the dates and in the amounts specified
in the Credit Agreement.
Company also promises to pay interest on the unpaid principal amount
hereof, from the date hereof until paid in full, at the rates and at the times
which shall be determined in accordance with the provisions of that certain
Credit Agreement dated as of August 22, 2002, by and among Company, the
financial institutions listed therein as Lenders, Credit Suisse First Boston, as
a Co-Lead Arranger and administrative agent for Lenders, Xxxxx Fargo Bank,
National Association, as a Co-Lead Arranger and syndication agent for Lenders,
and Bank of Montreal, BNP Paribas and The Royal Bank of Scotland PLC, as
documentation agents for Lenders (said Credit Agreement, as it may be amended,
supplemented or otherwise modified from time to time, being the "CREDIT
AGREEMENT", the terms defined therein and not otherwise defined herein being
used herein as therein defined).
This Note is Company's "Swing Line Note" and is issued pursuant to
and entitled to the benefits of the Credit Agreement, to which reference is
hereby made for a more complete statement of the terms and conditions under
which the Swing Line Loans evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note shall
be made in lawful money of the United States of America in same day funds at the
Funding and Payment Office or at such other place as shall be designated in
writing for such purpose in accordance with the terms of the Credit Agreement.
Whenever any payment on this Note shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in the
Credit Agreement and to prepayment at the option of Company as provided in
subsection 2.4B(i) of the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY
VIII-1
AND PAYEE HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of
the principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment as
provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligations of Company,
which are absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, and in the currency herein
prescribed.
Company promises to pay all costs and expenses, including reasonable
attorneys' fees, all as provided in the Credit Agreement, incurred in the
collection and enforcement of this Note. Company and any endorsers of this Note
hereby consent to renewals and extensions of time at or after the maturity
hereof, without notice, and hereby waive diligence, presentment, protest, demand
and notice of every kind and, to the full extent permitted by law, the right to
plead any statute of limitations as a defense to any demand hereunder.
IN WITNESS WHEREOF, Company has caused this Note to be duly executed
and delivered by its officer thereunto duly authorized as of the date and at the
place first written above.
URS CORPORATION
By: __________________________
Name: ________________________
Title: _________________________
VIII-2
TRANSACTIONS
ON
SWING LINE NOTE
Outstanding
Amount of Amount of Principal
Loan Made Principal Paid Balance Notation
Date This Date This Date This Date Made By
---- --------- --------- --------- -------
VIII-3
EXHIBIT VIII
[FORM OF COMPLIANCE CERTIFICATE]
COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFIES THAT:
(1) I am the duly elected [President] [Chief Financial Officer] of
URS Corporation, a Delaware corporation ("COMPANY");
(2) I have reviewed the terms of that certain Credit Agreement
dated as of August 22, 2002, as amended, supplemented or otherwise
modified to the date hereof (said Credit Agreement, as so amended,
supplemented or otherwise modified, being the "CREDIT AGREEMENT",
the terms defined therein and not otherwise defined herein
(including Attachment No. 1 annexed hereto and made a part hereof)
being used herein as therein defined), by and among Company, the
financial institutions listed therein as Lenders ("LENDERS"), Credit
Suisse First Boston, as a Co-Lead Arranger and administrative agent
for Lenders (in such capacity, "ADMINISTRATIVE AGENT"), Xxxxx Fargo
Bank, National Association, as a Co-Lead Arranger and syndication
agent for Lenders, and Bank of Montreal, BNP Paribas and The Royal
Bank of Scotland PLC, as documentation agents for Lenders, and the
terms of the other Loan Documents, and I have made, or have caused
to be made under my supervision, a review in reasonable detail of
the transactions and condition of Company and its Subsidiaries
during the accounting period covered by the attached financial
statements; and
(3) The examination described in paragraph (2) above did not
disclose, and I have no actual knowledge of, the existence of any
condition or event which constitutes an Event of Default or
Potential Event of Default during or at the end of the accounting
period covered by the attached financial statements or as of the
date of this Certificate, except as set forth below.
Set forth below are all exceptions to paragraph (3) above listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which Company has taken, is taking, or proposes to take
with respect to each such condition or event:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
VIII-1
The foregoing certifications, together with the computations set
forth in Attachment No. 1 annexed hereto and made a part hereof and the
financial statements delivered with this Certificate in support hereof, are made
and delivered this __________ day of _____________, ____ pursuant to subsection
6.1(iii) of the Credit Agreement.
The undersigned executes this Compliance Certificate as an officer
of Company and not in the undersigned's individual capacity.
URS CORPORATION
By:_______________________________
Name:_____________________________
Title:____________________________
VIII-2
ATTACHMENT NO. 1
TO COMPLIANCE CERTIFICATE
This Attachment No. 1 is attached to and made a part of a Compliance
Certificate dated as of ____________, ____ and pertains to the period from
____________, 200_ to ____________, 200_. Subsection references herein relate to
subsections of the Credit Agreement.
A. MINIMUM CONSOLIDATED FIXED CHARGE COVERAGE RATIO (7.6A)
1. Consolidated Net Income: $______________
2. Consolidated Interest Expense: $______________
3. Provisions for taxes based on income: $______________
4. Total depreciation expense: $______________
5. Total amortization expense: $______________
6. Other non-cash items (other than any such non-cash
item to the extent it represents an accrual of or
reserve for cash expenditures in any future
period), but only, in the case of items (2)-(6), to
the extent deducted in the calculation of
Consolidated Net Income: $______________
7 Applicable additional amount, which shall be equal
to (a) for the four Fiscal Quarter period ending
October 31, 2002, $9,108,000, (b) for the four
Fiscal Quarter period ending January 31, 2003,
$4,127,000, (c) for the four Fiscal Quarter period
ending April 30, 2003, $1,471,000, and (d) for the
four Fiscal Quarter period ending July 31, 2003,
$313,000: $______________
8 Pro forma adjustments attributable to any Permitted
Acquisition consummated during such period, the
Merger if consummated during such period or any
business or assets that have been disposed of by
Company or any of its Subsidiaries after the first
day of such period and prior to the end of such
period: $______________
9. Other non-cash items added in the calculation of
VIII-3
Consolidated Net Income (other than any such
non-cash item to the extent it will result in the
receipt of cash payments in any future period): $______________
10. Consolidated EBITDA (1+2+3+4+5+6+7+8-9): $______________
11. Consolidated Capital Expenditures: $______________
12. (10) - (11): $______________
13. Consolidated Cash Interest Expense; provided that
such amount shall be calculated (a) for the first
full Fiscal Quarter following the initial Funding
Date by multiplying the amount for the Fiscal
Quarter ended on such date by four, (b) for the
second full Fiscal Quarter following the initial
Funding Date by multiplying the sum of the amounts
for that Fiscal Quarter and the immediately
preceding Fiscal Quarter by two, and (c) for the
third full Fiscal Quarter following the initial
Funding Date by multiplying the sum of the amounts
for that Fiscal Quarter and the two immediately
preceding Fiscal Quarters by 1.33: $______________
14. Scheduled principal payments in respect of
Consolidated Total Funded Debt; provided that such
amount shall be calculated (a) for the first full
Fiscal Quarter following the initial Funding Date
by multiplying the amount for the Fiscal Quarter
ended on such date by four, (b) for the second full
Fiscal Quarter following the initial Funding Date
by multiplying the sum of the amounts for that
Fiscal Quarter and the immediately preceding Fiscal
Quarter by two, and (c) for the third full Fiscal
Quarter following the initial Funding Date by
multiplying the sum of the amounts for that Fiscal
Quarter and the two immediately preceding Fiscal
Quarters by 1.33: $______________
15. Provisions for taxes based on income: $______________
16. Consolidated Fixed Charges (13+14+15): $______________
17. Ratio of (12):(16): (__):(__)
18. Minimum Fixed Charge Coverage Ratio required
pursuant to subsection 7.6A: (__):(__)
VIII-4
B. MAXIMUM CONSOLIDATED LEVERAGE RATIO (7.6B)
1. Consolidated Total Funded Debt: $______________
2. Consolidated EBITDA (A10): $______________
3. Ratio of (1):(2): (__):(__)
4. Maximum Leverage Ratio permitted pursuant to (__):(__)
subsection 7.6B:
C. MINIMUM CONSOLIDATED CURRENT RATIO (7.6C)
1. Consolidated Current Assets: $______________
2. Cash in excess of $30,000,000: $______________
3. Total liabilities of Company and its Subsidiaries
on a consolidated basis which may properly be
classified as current liabilities in conformity
with GAAP (including current portion of the
aggregate principal amount of all outstanding Term $______________
Loans):
4. Aggregate principal amount of all outstanding
Revolving Loans: $______________
5. Maximum aggregate amount which is or at any time
thereafter may become available for drawing under
all Letters of Credit then outstanding: $______________
6. Consolidated Current Liabilities
(3-4-5): $______________
7. Ratio of ((1)-(2)):(6): (__):(__)
8. Minimum Current Ratio required pursuant to
subsection 7.6C: ___:___
D. INDEBTEDNESS (7.1)
1. Indebtedness of any Subsidiary of Company (other than an Inactive
Subsidiary or any Foreign Subsidiary that has become and remains
liable for Indebtedness in an aggregate principal amount of
$5,000,000 or more permitted by subsection 7.1(x)) and any Joint
Venture to Company or any of its Subsidiaries:
(Maximum permitted by subsection 7.1(iv) -
VIII-5
$25,000,000) $______________
2. Indebtedness of Company evidenced by the Senior
Notes:
(Maximum permitted by subsection 7.1(vi) -
$200,000,000) $______________
3. Indebtedness of Foreign Subsidiaries to Persons other than
Company or any of its Subsidiaries (including the amount of any
such Indebtedness listed on Schedule 7.1 of the Company
Disclosure Letter):
(Maximum permitted by subsection 7.1(x) -
$40,000,000; provided that such amount shall be
increased by 5% as of the last day of each Fiscal
Year, commencing with the Fiscal Year ending
October 31, 2003 ) $______________
4. Indebtedness of Company and its Domestic Subsidiaries (other than
Inactive Subsidiaries) with respect to additional Capital Leases
not listed on Schedule 7.1 of the Company Disclosure Letter:
(Maximum permitted by subsection 7.1(xi) -
$8,000,000 in the Fiscal Year ending October 31,
2002, and $20,000,000 in any Fiscal Year
thereafter; provided that such amount shall be
increased by $5,000,000 for each Fiscal Year, $______________
commencing with the Fiscal Year ending October 31,
2004)
5. Indebtedness of Company that is unsecured
Subordinated Indebtedness issued in connection with
an acquisition permitted pursuant to subsection
7.3(ix):
(Maximum permitted by subsection 7.1(xii) -
$200,000,000) $______________
6. Other Indebtedness of Company and its Domestic
Subsidiaries (other than Inactive Subsidiaries) to
Persons other than Company or any of its
Subsidiaries:
(Maximum permitted by subsection 7.1(xiii) -
$25,000,000; provided that such amount shall be
increased by 10% as of the last day of each Fiscal
Year, commencing with the Fiscal Year ending
October 31, 2003) $______________
VIII-6
E. LIENS (7.2A)
1. Liens existing on assets at the time of acquisition
by the Company or its Subsidiaries or securing the
purchase price thereof:
(Maximum permitted by subsection 7.2A(iv) -
$5,000,000) $______________
2. Other Liens (other than on the Capital Stock of any
Foreign Subsidiary directly owned by Company or any
Domestic Subsidiary):
(Maximum permitted by subsection 7.2A(viii) -
$2,500,000) $______________
F. INVESTMENTS AND ACQUISITIONS (7.3)
1. Acquisition by Company and its Subsidiaries of
assets (including Capital Stock and including Capital Stock of
Subsidiaries formed in connection with any such acquisition) of
any Person in the same or similar line of business as Company and
having positive EBITDA for the most recently ended twelve-month
period, subject to the requirements of subsection 7.3(ix)
(a) through the issuance of Capital Stock of Company: $______________
(b) with Cash:
(Maximum permitted by subsection 7.3(ix)(b) -
$25,000,000 in the aggregate or $50,000,000 in the
aggregate in the event that the ratio of all
secured Indebtedness of Company and its
Subsidiaries on a consolidated basis to
Consolidated EBITDA as of the most recently ended $______________
Fiscal Quarter is less than 1.50 to 1.00)
(c) with the proceeds of Subordinated Indebtedness:
(Maximum permitted by subsection 7.3(ix)(c) - $______________
$200,000,000)
VIII-7
2. Investments of Company and its Subsidiaries
in the Joint Ventures described on Schedule
7.3(xii) of the Company Disclosure Letter:
(Maximum permitted by subsection 7.3(xii) -
$30,000,000) $______________
3. Other Investments of Company and its Subsidiaries:
(Maximum permitted by subsection 7.3(xiii) -
$25,000,000; provided that such amount shall be
increased to $35,000,000 as of the last day of the
first Fiscal Year ending on or after October 31,
2004 during which the Consolidated Leverage Ratio
as of the last day of such Fiscal Year is less than
3.00:1.00) $______________
G. CONTINGENT OBLIGATIONS (7.4)
1. Other Contingent Obligations:
(Maximum permitted by subsection 7.4(x) -
$10,000,000; provided that such amount shall be
increased to $20,000,000 as of the last day of the
first Fiscal Year ending on or after October 31,
2004 during which the Consolidated Leverage Ratio
as of the last day of such Fiscal Year is less than
3.00:1.00) $______________
H. CAPITAL EXPENDITURES (7.8)
1. Consolidated Capital Expenditures: $______________
2. Maximum Consolidated Capital Expenditures permitted
by subsection 7.8: $______________
I. ASSET SALES; ACQUISITIONS (7.7)
1. Asset Sales:
(Maximum permitted by subsection 7.7(iv)-
$20,000,000 during any Fiscal Year) $______________
VIII-8
EXHIBIT IX
[FORM OF LEGAL OPINION]
ATTORNEYS AT LAW
Xxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX
00000-0000
Main 415 693-2000
Fax 000 000-0000
August 22, 2002
xxx.xxxxxx.xxx
Credit Suisse First Boston,
as Administrative Agent XXXXXXX X. XXXXXX
Eleven Madison Avenue 000 000-0000
Xxx Xxxx, Xxx Xxxx 00000 xxxxxxxx@xxxxxx.xxx
and
Lenders Listed on SCHEDULE A Hereto
RE: CREDIT AGREEMENT, DATED AS OF AUGUST 22, 2002, BY AND AMONG URS
CORPORATION, A DELAWARE CORPORATION, THE FINANCIAL INSTITUTIONS
LISTED THEREIN AS LENDERS, CREDIT SUISSE FIRST BOSTON AND XXXXX FARGO
BANK, NATIONAL ASSOCIATION, AS CO-LEAD ARRANGERS, CREDIT SUISSE FIRST
BOSTON AS ADMINISTRATIVE AGENT, XXXXXX TRUST & SAVINGS BANK, BNP
PARIBAS AND THE ROYAL BANK OF SCOTLAND PLC, AS DOCUMENTATION AGENTS
AND XXXXX FARGO BANK, NATIONAL ASSOCIATION AS SYNDICATION AGENT
Ladies and Gentlemen:
We have acted as counsel for URS Corporation, a Delaware corporation
("Company"), in connection with that certain Credit Agreement dated as of August
22, 2002 (the "Credit Agreement") by and among Company, the financial
institutions listed therein as Lenders ("Lenders"), Credit Suisse First Boston
("CSFB") and Xxxxx Fargo Bank, National Association ("WFB"), as Co-Lead
Arrangers, CSFB as Administrative Agent ("Administrative Agent"), Xxxxxx Trust &
Savings Bank, BNP Paribas and The Royal Bank of Scotland PLC, as Documentation
Agents, and WFB as Syndication Agent. In connection therewith we have acted as
counsel for Company in the mergers of (i) Carlyle-EG&G Holdings Corp., a
Delaware corporation ("EG&G"), with and into URS Holdings, Inc., a Delaware
corporation and a wholly-owned subsidiary of Company (the "EG&G Merger Sub"),
with the EG&G Merger Sub being the surviving corporation (the "EG&G Merger") and
(ii) Xxxx Xxxxxxx Services, Inc., a Delaware corporation ("Xxxx"), with and into
URS-LSS Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of
Company (the "Xxxx Merger Sub"), with the Xxxx Merger Sub being the surviving
corporation (the "Xxxx Merger" and, together with the Carlyle Merger, the
"Mergers"). The consummation of the Mergers is subject to the terms and
conditions of the Agreement and Plan of Merger dated as of July 16, 2002 (the
"Merger Agreement") by and among Company, the EG&G Merger Sub, the Xxxx Merger
Sub, EG&G, Xxxx and EG&G Technical Services Holdings, L.L.C. We are providing
this opinion to you at the request of Company pursuant to Section 4.1H of the
Credit Agreement. Except as otherwise indicated, capitalized terms used in this
opinion and defined in the Credit Agreement will have the meanings given in the
Credit Agreement.
Credit Suisse First Boston
August 22, 2002
Page Two
In connection with this opinion, we have examined the following documents, each
of which is dated as of August 22, 2002, unless another date is specified below:
1. the Credit Agreement;
2. the Security Agreement;
3. the Notes;
4. the Subsidiary Guaranty;
5. the financing statements attached hereto as EXHIBIT A (the
"Financing Statements");
6. the Certificate of Incorporation of Company, dated as of
February 13, 1976, as amended by:
(a) that Certificate of Determination dated February 13,
1976;
(b) that Certificate of Merger dated May 18, 1976;
(c) that Certificate of Amendment dated March 30, 1987;
(d) that Certificate of Ownership and Merger dated
November 18, 1987;
(e) that Certificate of Amendment dated February 21,
1990;
(f) that Certificate of Ownership and Merger dated
February 21, 1990;
(g) that Certificate of Amendment to Certificate of
Determination dated March 27, 1991;
(h) that Certificate of Elimination of the Certificate of
Determination dated September 30, 1991;
(i) that Certificate of Change of Location of Registered
Office and of Registered Agent dated June 12, 1999;
(j) that Certificate of Designation of Series A Preferred
Stock dated June 9, 1999;
(k) that Certificate of Designation of Series B
Exchangeable Convertible Preferred Stock dated June
9, 1999;
Credit Suisse First Boston
August 22, 2002
Page Three
(l) that Certificate of Designation of Series C Preferred
Stock dated June 9, 1999;
(m) that Certificate of Amendment dated October 12,1999;
and
(n) that Certificate of Change of Registered Agent dated
February 7, 2001;
7. the Bylaws of Company, as amended through May 5, 1999, and in
effect as of the date hereof;
8. the resolutions of the Board of Directors of Company relating
to the Loan Documents (as defined below) and the transactions
contemplated thereby adopted at a meeting held on July 16,
2002;
9. the Articles of Incorporation, Certificate of Incorporation or
Certificate of Formation, as applicable, of each Listed
Subsidiary (as defined below) in the form delivered to
Administrative Agent on the Closing Date;
10. the Bylaws or operating agreement, as applicable, of each
Listed Subsidiary, in the form delivered to Administrative
Agent on the Closing Date;
11. the resolutions of the Board of Directors or Members
Committee, as applicable, of each Listed Subsidiary relating
to the Loan Documents and the transactions contemplated
thereby adopted at a meeting or by unanimous written consent,
in the form delivered to Administrative Agent on the Closing
Date;
12. the documents, orders, judgments, decrees and Material
Agreements (as defined below) listed in the Company
Certificate dated the Closing Date and attached hereto as
ANNEX 1 (the "Company Certificate");
13. the Certificate of Status issued by the Secretary of State of
Delaware stating that Company is a domestic corporation in
good standing in such state, dated as of August 16, 2002; and
14. the certificates listed on SCHEDULE B dated the indicated
dates and issued by the secretary of state or other similar
governmental authority of the indicated states stating that
each Listed Subsidiary is a domestic corporation or limited
liability company, as applicable, in good standing in such
state.
As used herein, the term "Loan Documents" shall mean documents 1 through 4
above; the terms "Listed Subsidiary" or "Listed Subsidiaries" shall mean those
Subsidiary Guarantors of Company organized in California and Delaware and listed
on SCHEDULE C hereto; the terms
Credit Suisse First Boston
August 22, 2002
Page Four
"Subsidiary Guarantor" or "Subsidiary Guarantors" shall mean those Subsidiary
Guarantors of Company listed on SCHEDULE D hereto, and the term "URS Subsidiary"
or "URS Subsidiaries" shall mean those Subsidiary Guarantors that are
Subsidiaries of Company prior to the Closing Date.
In connection with this opinion, we have examined and relied upon the
representations and warranties as to factual matters contained in and made
pursuant to the Loan Documents by the various parties and upon originals or
copies certified to our satisfaction of such records, documents, certificates,
opinions, memoranda and other instruments as in our judgment are necessary or
appropriate to enable us to render the opinion expressed below.
In rendering this opinion, we have assumed: the genuineness and authenticity of
all signatures on original documents; the authenticity of all documents
submitted to us as originals (other than the signatures on behalf of Company on
the Loan Documents); the conformity to originals of all documents submitted to
us as copies; the accuracy, completeness and authenticity of certificates of
public officials; the due incorporation or formation, valid existence and the
corporate power or similar power to enter into, and perform in accordance with
their respective terms, the Loan Documents, of all parties thereto (other than
Company and Listed Subsidiaries); and the due authorization, execution and
delivery of all documents including, without limitation, the Loan Documents and
the Company Certificate (except the due authorization, execution and delivery by
Company and Listed Subsidiaries of any Loan Documents or the Company Certificate
to which Company or such Listed Subsidiary is a party) where authorization,
execution and delivery are prerequisites to the effectiveness of such documents.
We do not hold ourselves out as experts in the corporation laws of any
jurisdiction but California and Delaware and express no opinion as to the
reasonableness of the foregoing assumptions with respect to Subsidiary
Guarantors that are not incorporated in California or Delaware. We have also
assumed that all individuals executing and delivering the Loan Documents have
the legal capacity to so execute and deliver; that the Loan Documents are
obligations binding upon you; that each Lender has filed any required California
franchise or income tax returns and has paid any required California franchise
or income taxes; and that there are no extrinsic agreements or understandings
among the parties to the Loan Documents that would modify or interpret the terms
of the Loan Documents or the respective rights or obligations of the parties
thereunder.
We have assumed that: (a) Lenders will disburse the Loans in accordance with the
terms of the Credit Agreement; (b) all Loans required to be disbursed will be
disbursed by Lenders to, or on behalf of, Company; (c) all payments of principal
and interest due under the Loan Documents, and all fees and reimbursable costs
paid by Company with respect thereto, will be received by Administrative Agent
and Lenders for their own account and be applied in payment of the obligations
under the Loan Documents; (d) at the time of each such disbursement and payment,
all facts and applicable law will be the same as those existing as of the date
of this opinion; and (e) Administrative Agent and Lenders (i) will act fairly,
in good faith and in a commercially
Credit Suisse First Boston
August 22, 2002
Page Five
reasonable manner in exercising their rights and (ii) will not trespass or
commit any breach of the peace in any taking of possession of the Collateral.
Except with respect to our opinions expressed: (a) in paragraphs 3 and 9 below,
in which our opinion as to the enforceability and binding effect of the Loan
Documents is provided solely with respect to the laws of the State of New York
and (b) in paragraphs 14 through 16 below, in which our opinion is based upon
our examination of the New York Uniform Commercial Code (the "NYUCC") and the
Delaware Uniform Commercial Code (the "DUCC") in addition to the California
Uniform Commercial Code ("CUCC"), our opinions are expressed only with respect
to the federal laws of the United States of America, the laws of the State of
California and the General Corporation Law of the State of Delaware. We express
no opinion as to whether the laws of any particular jurisdiction apply, and no
opinion to the extent that the laws of any jurisdiction other than those
identified above are applicable to the subject matter hereof. With respect to
the NYUCC and the DUCC, we have based our opinion solely upon our examination of
such statutes, all as reported in unofficial compilations. We have not obtained
opinions of counsel in said jurisdictions.
Our opinions in paragraphs 1 and 7 below, as to the good standing of each of
Company and the Listed Subsidiaries as a domestic corporation or limited
liability company, as applicable, in its respective state of incorporation or
organization, are based solely upon our review of the Good Standing
Certificates. We have made no further investigation.
We have assumed that Lenders are relying on the Subsidiary Guaranty and the
Security Agreement and would not make advances under the Loan Documents in the
absence of the Subsidiary Guaranty and the Security Agreement.
We express no opinion relative to the applicability or effect of (a) any law,
rule or regulation relating to securities or to the sale or issuance thereof,
(b) any pension, employee benefit or tax laws, including, without limitation,
the Internal Revenue Code, the California Revenue and Taxation Code and the
Employee Retirement Income Security Act of 1974, as amended, and other similar
laws, statutes, rules, acts, regulations or ordinances, or any decrees or
decisional law with respect thereto, (c) any federal or state law, rule or
regulation relating to antitrust, unfair competition, trade practice laws or
regulations or limitations on corporate distributions, (d) compliance with
fiduciary requirements, (e) any federal or state environmental, land use, safety
or similar law, laws or regulations, (f) compliance with any antifraud law, or
(g) any federal or state laws or regulations concerning filing requirements,
other than requirements applicable to charter-related documents and the
Financing Statements.
We express no opinion as to the enforceability of provisions in the Loan
Documents (a) imposing late charges, premiums, penalties, or forfeitures, (b)
imposing an increase in interest rate upon delinquency in payment or the
occurrence of a default or (c) requiring any prepayment
Credit Suisse First Boston
August 22, 2002
Page Six
fee, breakage or yield maintenance charges, including, without limitation, a
requirement for the payment thereof upon the occurrence of a default under the
Loan Documents for whatever cause or upon acceleration of the Loans.
We express no opinion regarding any law or rule or regulation regarding bulk
transfers or fraudulent conveyances or transfers and express no opinion as to
the applicability to the obligations of Company or Subsidiary Guarantors under
the Loan Documents of Section 548 of the Bankruptcy Code and Section 3439 et
seq. of the California Civil Code relating to fraudulent transfers and
obligations with respect to Company or Subsidiary Guarantors, or state
corporation laws governing dividends and distributions. We express no opinion
nor have we made any independent investigation to determine whether Company or
Subsidiary Guarantors are solvent, whether Company or any Subsidiary Guarantor
will be rendered insolvent by the transactions contemplated by the Loan
Documents, and after giving effect to such transactions, whether Company or any
Subsidiary Guarantor will be left with unreasonably small capital with which to
engage in its respective anticipated businesses and whether Company or any
Subsidiary Guarantor will have intended to incur, or will have believed it has
incurred, debts beyond its ability to pay as such debts mature. With regard to
our opinion in paragraph 9, we express no opinion as to the enforceability of
the Subsidiary Guaranty to the extent that the application of Subsections 1(b)
and (c) thereof raises issues as to whether the amount due and owing by any
Subsidiary Guarantor at any point in time may be readily ascertained.
We have not made or undertaken to make any investigation of the state of title
to the Collateral described in the Loan Documents and the Financing Statements
and we express no opinion as to the existence, condition, location or ownership
of the Collateral. We have assumed that the descriptions of the personal
property Collateral contained in the Loan Documents (and the Financing
Statements) are accurate and sufficient within the meaning of Section 9-108 of
the NYUCC to enable a subsequent purchaser or mortgagee to identify such
Collateral. With respect to our opinions in paragraphs 14 through 16 below, with
your further permission, we have assumed that Company and each Subsidiary
Guarantor has rights, or the power to transfer to a secured party rights in, the
Collateral in which it purports to create a security interest under the Loan
Documents to which it is a party within the meaning of Section 9-203(b)(2) of
the NYUCC, and our opinions expressed below are expressed only to the extent
Company and each Subsidiary Guarantor has such rights. We express no opinion
with respect to the existence or nature of such rights.
Except as set forth in the last sentence of paragraph 15 below, we express no
opinion as to the relative priority of any security interest, lien, charge or
other encumbrance created by or under the Loan Documents, nor as to the effect
of any such security interest, lien, charge or other encumbrance on any rights
or interests, if any, of Persons other than Company, nor as to the effect of any
security interest perfected prior to July 1, 2001, whether pursuant to the
NYUCC, the CUCC, the DUCC, or otherwise.
Credit Suisse First Boston
August 22, 2002
Page Seven
Our opinions expressed below are limited by the following: (a) NYUCC, CUCC and
DUCC Section 9-320 provides that a secured party's rights to collateral can be
defeated by the rights of subsequent purchasers of goods in certain
circumstances; (b) NYUCC, CUCC and DUCC Sections 9-330 and 9-331 provide that a
secured party's rights to collateral can be defeated by the rights of certain
subsequent purchasers or holders of chattel paper and negotiable documents when
the security interest is perfected only by filing; (c) NYUCC, CUCC and DUCC
Section 9-313 provides that a security interest in certain instruments and
certificated securities may be perfected by possession, and that loss of
possession terminates the perfection of a security interest perfected only by
possession of the collateral; (d) NYUCC, CUCC and DUCC Section 9-315 creates
certain limitations on rights to proceeds; and (e) NYUCC Section 9-328 provides
that conflicting security interests in the same investment property of secured
parties each of whom has control rank temporally.
With respect to our opinion in paragraphs 14 through 16 below, we express no
opinion as to property and transactions excluded from the coverage of the NYUCC
pursuant to Section 9-109 thereof or otherwise.
We have assumed the due recording or filing, as the case may be, at the time the
Loans are initially made and this opinion letter is issued, of the Financing
Statements with the respective filing office listed on SCHEDULE E with regard to
each of Company and the Subsidiary Guarantors (each, a "Filing Office").
With regard to our opinions in paragraphs 14 through 16 below, to the extent
that the Financing Statements are comprised of an electronic record, we have
examined and relied upon a certificate executed by an officer of Company and
each Subsidiary Guarantor to the effect that the Loan Documents to which it is a
party were authenticated, by execution or otherwise, by Company or such
Subsidiary Guarantor with the present intent to adopt and accept the Loan
Documents to which it is a party, and we have undertaken no independent
verification with respect to the authentication thereof.
We express no opinion as to the effect of non-compliance by Lenders with any
state or federal laws or regulations applicable to the transactions contemplated
by the Loan Documents because of the nature of such Lenders' business.
We express no opinion with respect to any provision of the Collateral Documents
that purports to permit Administrative Agent or any other person to sell or
otherwise dispose of any Collateral subject thereto except in compliance with
the NYUCC and any other applicable federal and state laws, or to impose
standards of care of Collateral in Administrative Agent's possession other than
as provided in Section 9-207 of the NYUCC. We advise you that federal and state
securities laws may limit the right to transfer or dispose of Collateral that
may constitute securities under such laws.
Credit Suisse First Boston
August 22, 2002
Page Eight
With respect to our opinions in paragraphs 4 and 10 below, with respect to
defaults under any Material Agreement (as defined below), we have relied solely
upon, (i) an inquiry of officers of Company and the Subsidiary Guarantors, (ii)
a list of material agreements certified to us in the Company Certificate by an
officer of Company as to all the material loan, debt, indenture, note, mortgage,
financing or similar agreements of Company and such Subsidiary Guarantors, as
the case may be, involving amounts exceeding $20,000,000, excluding personal
property leases and lease lines (such material agreements listed on ANNEX 1
hereto are referred to collectively herein as the "Material Agreements"), and
(iii) an examination of the Material Agreements; we have made no further
investigation and reviewed no other documents.
With respect of our opinions in paragraphs 9, 14 and 15 below, insofar as such
opinion relates to the Subsidiary Guarantors, we have relied upon the opinions
rendered to you by Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP (New York),
Marshall, Hill, Cassas & de Lipkau (Nevada), Xxxxxxxx Xxxx LLP (Ohio) and Xxx
Xxxxxxx & Xxxxxxx (Utah) with regard to the due incorporation and existence in
good standing of, and the due authorization, execution and delivery of the
relevant Loan Documents by the Subsidiary Guarantors listed therein that are not
Listed Subsidiaries. With respect to Subsidiary Guarantors which are neither
listed in such opinions nor are Listed Subsidiaries, we have assumed, with your
permission, the conclusions set forth in paragraphs 7 and 8 are applicable to
each such Subsidiary Guarantor.
On the basis of the foregoing, in reliance thereon, and with the foregoing
qualifications, we are of the opinion that:
1. Company has been duly incorporated, and is validly existing in
good standing under the laws of the State of Delaware, with
corporate power to enter into the Loan Documents to which it
is a party, and to perform its obligations thereunder.
2. The execution and delivery by Company of and performance of
its obligations under the Loan Documents to which it is a
party have been duly authorized by all necessary corporate
action on the part of Company, and the Loan Documents to which
it is a party have been duly executed and delivered by
Company.
3. The Loan Documents to which Company is a party constitute
legally valid and binding obligations of Company, enforceable
against Company in accordance with their respective terms.
4. Company's execution and delivery of and performance of its
obligations under the Loan Documents to which it is a party
will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under: (a) the
charter or bylaws of Company, (b) any Material Agreement to
which Company is a party or by which Company is bound, or (c)
any existing obligation of or restriction on
Credit Suisse First Boston
August 22, 2002
Page Nine
Company under any order, judgment or decree by which it is
bound or to which any of its properties is subject identified
in the Company Certificate.
5. The execution and delivery by Company of, and performance of
its obligations under, the Loan Documents to which it is a
party do not violate or contravene any California or federal
statute or regulation which we are aware is applicable
generally to borrowers in commercial transactions of the
nature contemplated by the Loan Documents.
6. All orders, consents, permits or approvals of any California
or federal governmental authority which we are aware are
applicable generally to borrowers in commercial transactions
of the nature contemplated by the Loan Documents and required
for the execution and delivery by Company of, and performance
by Company of its obligations under, the Loan Documents, have
been obtained except for filings, recordings or registrations
that are required to perfect Administrative Agent's security
interests in property identified and described as Collateral
for the Obligations in the Loan Documents.
7. Each Listed Subsidiary has been duly organized and is validly
existing in good standing under the laws of its state of
incorporation or organization, with power to enter into the
Loan Documents to which it is a party, and to perform its
obligations thereunder.
8. Each Listed Subsidiary's execution and delivery of and
performance of its respective obligations under the Loan
Documents to which it is a party have been duly authorized by
all necessary corporate or limited liability company action,
as applicable, on the part of each Listed Subsidiary, and the
Loan Documents to which it is a party have been duly executed
and delivered by each Listed Subsidiary.
9. The Loan Documents to which any Subsidiary Guarantor is a
party constitute legally valid and binding obligations of such
Subsidiary Guarantor, enforceable against such Subsidiary
Guarantor in accordance with their respective terms.
10. Each Listed Subsidiary's execution and delivery of and
performance of its obligations under the Loan Documents to
which it is a party will not result in a breach or violation
of any of the terms and provisions of the charter or the
bylaws or operating agreement (as applicable) of such Listed
Subsidiary. Each Subsidiary Guarantor's execution and delivery
of and performance of its obligations under the Loan Documents
to which it is a party will not result in a breach or
violation of any of the terms and provisions of, or constitute
a default under: (a) any Material Agreement to which such
Subsidiary Guarantor is a party
Credit Suisse First Boston
August 22, 2002
Page Ten
or by which it is bound, or (b) any existing obligation of or
restriction on such Subsidiary Guarantor under any order,
judgment or decree by which it is bound or to which any of its
properties is subject identified in the Company Certificate.
11. The execution and delivery by each Subsidiary Guarantor of and
performance of its obligations under the Loan Documents to
which it is a party do not violate or contravene any
California or federal statute or regulation which we are aware
is applicable generally to borrowers or guarantors in
commercial transactions of the nature contemplated by the Loan
Documents.
12. All orders, consents, permits or approvals of any California
or federal governmental authority which we are aware are
applicable generally to borrowers in commercial transactions
of the nature contemplated by the Loan Documents and required
for each Subsidiary Guarantor's execution and delivery of, and
performance by each Subsidiary Guarantor of its obligations
under, the Loan Documents, have been obtained except for
filings, recordings or registrations that are required to
perfect Administrative Agent's security interests in property
identified and described as Collateral for the Obligations in
the Loan Documents.
13. We are not representing Company or any Subsidiary Guarantor in
connection with, any actions, suits or proceedings pending or
threatened against Company or any Subsidiary Guarantor before
any court, arbitrator or governmental agency, which (a) seek
to affect the enforceability of any of the Loan Documents or
(b) seek damages in excess of $1,000,000 or any relief other
than damages. We call your attention to the fact that our
engagement by Company is limited to specific matters as to
which we are consulted by Company and the URS Subsidiaries.
14. With regard to the personal property Collateral identified and
described in the Security Agreement, the Security Agreement
creates a security interest under the NYUCC in such personal
property Collateral in favor of Administrative Agent.
15. The provisions of the Security Agreement create a security
interest, which has attached, in the right, title and interest
of Company and each Subsidiary Guarantor to the shares of
capital stock of the Domestic Subsidiaries listed on Schedule
1(e)(i) to the Security Agreement (the "Pledged
Certificates"). Assuming that Administrative Agent has
possession, in the State of New York, of the original
certificates, in registered form, evidencing the Pledged
Certificates, and that such Pledged Certificates are
accompanied by undated stock powers, endorsed in blank by an
effective endorsement, the security interest granted to
Administrative Agent and Lenders pursuant to the Security
Agreement constitutes a perfected security interest in the
Pledged Certificates. Assuming further that Administrative
Agent
Credit Suisse First Boston
August 22, 2002
Page Eleven
and Lenders acquire such security interest in the Pledged
Certificates in good faith, for value and without notice of
any adverse claim (as defined in NYUCC Section 8-102) to the
Pledged Certificates, Administrative Agent and Lenders will
acquire the security interest in the Pledged Certificates free
of any adverse claim.
16. The Financing Statements to be filed with the respective
Filing Offices are in form sufficient for filing with such
Filing Offices. Upon the due filing of such Financing
Statements with the respective Filing Offices, the security
interest of Administrative Agent in the personal property
Collateral identified and described in both the Security
Agreement and such Financing Statements will be perfected to
the extent that a security interest in such Collateral can be
perfected under the NYUCC, CUCC and DUCC, as applicable, by
the filing of a UCC-1 financing statement in such Filing
Offices.
17. Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
18. Neither Company nor any URS Subsidiary is a "holding company,"
or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
19. When the Certificate of Ownership and Merger (as defined in
the Merger Agreement) has been filed with the Secretary of
State of the State of Delaware, the Merger shall have become
effective under the laws of the State of Delaware in
accordance with the terms of the Merger Agreement.
The opinions expressed herein are subject to and limited by the following
additional qualifications, assumptions, limitations and exceptions:
(a) Our opinions are subject to the effect of the limitations
imposed by the NYUCC relating to or affecting the rights and remedies available
to secured creditors (e.g., NYUCC Sections 9-601 through 9-629 regarding the
exercise of rights and remedies with respect to the personal property
Collateral). Notwithstanding the limitations on rights, remedies and waivers set
forth herein, such limitations do not render the Loan Documents invalid as a
whole, and there exist (in the Loan Documents and pursuant to applicable law)
legally adequate remedies for the realization by Administrative Agent and the
Lenders of the principal benefits intended to be provided by the Loan Documents
(but subject to the economic consequences of any delay that may result under
applicable law or judicial decisions).
(b) We express no opinion as to the enforceability of "choice
of forum" or "submission to jurisdiction" provisions contained in any of the
Loan Documents.
Credit Suisse First Boston
August 22, 2002
Page Twelve
(c) The legality, validity, binding nature and enforceability
of the Company's and each Subsidiary Guarantor's obligations under the Loan
Documents may be subject to or limited by (1) general equity principles and the
limitations on the availability of equitable relief, including, without
limitation, specific performance, concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether in a proceeding in equity or at
law and (2) the effect of applicable bankruptcy, insolvency, fraudulent transfer
or conveyance, reorganization, arrangement, dissolution, moratorium or other
similar laws relating to or affecting creditors' rights generally.
Our opinions set forth above are limited to the matters expressly set forth in
this opinion letter, and no opinion is implied or may be inferred beyond the
matters expressly stated. This opinion speaks only as to law and facts in effect
or existing as of the date hereof and we undertake no obligation or
responsibility to update or supplement this opinion to reflect any facts or
circumstances that may hereafter come to our attention or any changes in law
which may hereafter occur.
This opinion is intended solely for your benefit and is not to be made available
to or relied upon by any other person, firm, or entity (other than other Lenders
listed on the signature page of the Credit Agreement and their assignees
thereunder who are Eligible Assignees as described in clauses (a) through (d) of
the definition thereof) without our prior written consent.
Very truly yours,
XXXXXX GODWARD LLP
Xxxxxxx X. Xxxxxx
DLB:ng
SCHEDULE A
LENDERS
Xxxxx Fargo Bank, National Association
Credit Suisse First Boston, Cayman Islands Branch
Bank Leumi USA
Erste Bank Der Oesterreichischen Sparkassen AG
Fortis Capital Corp.
The Royal Bank of Scotland PLC
Transamerica Business Capital Corporation
Union Bank of California, X.X.
Xxxxxx Trust & Savings Bank
BNP Paribas
SCHEDULE B
GOOD STANDING CERTIFICATES
NAME OF SUBSIDIARY DATE OF GOOD STANDING
Aman Environmental Construction, Inc. (CA) July 23, 2002
Banshee Construction Company, Inc. (CA) July 23, 2002
Cleveland Wrecking Company (CA) July 23, 2002
Contracting Resources International, Inc. (DE) July 25, 2002
EG&G Technical Services, Inc. July 29, 2002
Xxxx Xxxxxxx Services, Inc. July 25, 2002
X'Xxxxx-Xxxxxxxxxx Inc. (CA) July 23, 2002
Radian International LLC (DE) July 23, 2002
Signet Testing Laboratories, Inc. (DE) July 23, 0000
XXX Xxxxxxxxxxx Xxxxxxxx (XX) July 23, 2002
URS Group, Inc. (DE) July 23, 2002
URS Holdings, Inc. (DE) July 23, 2002
URS International, Inc. August 16, 2002
URS-LSS Holdings, Inc. (DE) August 7, 2002
URS Operating Services, Inc. (DE) July 23, 2002
SCHEDULE C
LISTED SUBSIDIARIES
Aman Environmental Construction, Inc.
Banshee Construction Company, Inc.
Cleveland Wrecking Company
Contracting Resources International, Inc.
EG&G Technical Services, Inc.
X'Xxxxx-Xxxxxxxxxx Inc.
Radian International LLC
Signet Testing Laboratories, Inc.
URS Corporation Southern
URS Group, Inc.
URS Holdings, Inc.
URS International, Inc.
URS-LSS Holdings, Inc.
URS Operating Services, Inc.
SCHEDULE D
SUBSIDIARY GUARANTORS
Aman Environmental Construction, Inc.
Banshee Construction Company, Inc.
BRW, Inc.
Cleveland Wrecking Company
Contracting Resources International, Inc.
EG&G Defense Materials, Inc.
EG&G Technical Services, Inc.
X'Xxxxx-Xxxxxxxxxx Inc.
Radian International LLC
Signet Testing Laboratories, Inc.
URS Construction Services, Inc.
URS Corporation
URS Corporation Great Lakes
URS Corporation Group Consultants
URS Corporation-Maryland
URS Corporation - Ohio
URS Corporation Southern
URS Group, Inc.
URS Holdings, Inc.
URS International, Inc.
URS-LSS Holdings, Inc.
URS Operating Services, Inc.
Walk, Xxxxxx & Associates, Inc.
SCHEDULE E
FILING OFFICES FOR FINANCING STATEMENTS
ENTITY FILING OFFICE
URS CORPORATION Delaware
AMAN ENVIRONMENTAL CONSTRUCTION, INC. California
BANSHEE CONSTRUCTION COMPANY, INC. California
BRW, INC. Wyoming
CLEVELAND WRECKING COMPANY California
CONTRACTING RESOURCES INTERNATIONAL, INC. Delaware
X'XXXXX-XXXXXXXXXX INC. California
RADIAN INTERNATIONAL LLC Delaware
SIGNET TESTING LABORATORIES, INC. Delaware
URS CONSTRUCTION SERVICES, INC. Florida
URS CORPORATION Nevada
URS CORPORATION GREAT LAKES Michigan
URS GROUP CONSULTANTS New York
URS CORPORATION-MARYLAND Maryland
URS CORPORATION - OHIO Ohio
URS CORPORATION SOUTHERN California
1.
ENTITY FILING OFFICE
URS GROUP, INC. Delaware
URS HOLDINGS, INC. Delaware
URS INTERNATIONAL, INC. Delaware
URS-LSS HOLDINGS, INC. Delaware
WALK, XXXXXX & ASSOCIATES, INC. Louisiana
URS OPERATING SERVICES, INC. Delaware
EG&G DEFENSE MATERIALS, INC. Utah
EG&G TECHNICAL SERVICES, INC. Delaware
2.
EXHIBIT A
FINANCING STATEMENTS
EXHIBIT X
[FORM OF] ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "ASSIGNMENT") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "ASSIGNOR") and [Insert name of Assignee]
(the "ASSIGNEE"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below, as amended,
supplemented or otherwise modified to the date hereof (said Credit Agreement, as
so amended, supplemented or otherwise modified, being the "CREDIT AGREEMENT"),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to
and incorporated herein by reference and made a part of this Assignment as if
set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably
sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases
and assumes from the Assignor, subject to and in accordance with the Standard
Terms and Conditions and the Credit Agreement, as of the Effective Date inserted
by the Administrative Agent as contemplated below, the interest in and to all of
the Assignor's rights and obligations under the Credit Agreement and any other
documents or instruments delivered pursuant thereto that represents the amount
and percentage interest identified below of all of the Assignor's outstanding
rights and obligations under the respective facilities identified below
(including, to the extent included in any such facilities, letters of credit and
swingline loans) (the "ASSIGNED INTEREST"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment,
without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an
Affiliate/Approved Fund (1)]
3. Borrower(s): URS Corporation
4. Administrative Agent: Credit Suisse First Boston, as the
administrative agent under the Credit
Agreement
5. Credit Agreement The Credit Agreement dated as of August 22,
2002 by and among URS Corporation, a
Delaware corporation, the financial
institutions listed therein as Lenders,
Credit Suisse First Boston, as a Co-Lead
Arranger and administrative agent for
Lenders, Xxxxx Fargo Bank, National
Association, as a Co-Lead Arranger and
syndication agent for Lenders, and Bank of
Montreal, BNP Paribas and The Royal Bank of
Scotland PLC, as documentation agents for
Lenders
----------
(1) Select as applicable.
X-1
6. Assigned Interest:
Aggregate
Amount of Amount of Percentage
Commitment/Loans Commitment/Loans Assigned of
Facility Assigned for all Lenders Assigned Commitment/Loans(2)
----------------- --------------- -------- -------------------
(3) $ $ %
---------------- ------------- ------------- ----------
$ $ %
---------------- ------------- ------------- ----------
$ $ %
---------------- ------------- ------------- ----------
Effective Date: , 20 [TO BE INSERTED BY ADMINISTRATIVE AGENT
------------- --- ---
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
---------------------------------
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
---------------------------------
Title:
[Consented to and](4) Accepted:
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
By:
----------------------------
Title:
[Consented to:](5)
[NAME OF RELEVANT PARTY]
By:
----------------------------
Title:
----------
(2) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
(3) Fill in the appropriate terminology for the types of facilities under the
Credit Agreement that are being assigned under this Assignment (e.g. "Revolving
Credit Commitment", "Term Loan Commitment", etc.)
(4) To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
(5) To be added only if the consent of the Borrower and/or other parties (e.g.
Swingline Lender, Issuing Lender) is required by the terms of the Credit
Agreement.
X-2
ANNEX 1
URS CORPORATION
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ASSUMPTION AGREEMENT
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that
(i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with any Credit Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or any
other instrument or document delivered pursuant thereto, other than this
Assignment (herein collectively the "CREDIT DOCUMENTS"), or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any
Credit Document or (iv) the performance or observance by the Borrower, any of
its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Credit Document.
1.2 Assignee. The Assignee (a) represents and warrants that
(i) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement, (iii)
from and after the Effective Date, it shall be bound by the provisions of the
Credit Agreement and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to subsection 6.1 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and to purchase the Assigned
Interest on the basis of which it has made such analysis and decision, and (v)
if it is a Non US Lender, attached to the Assignment is any documentation
required to be delivered by it pursuant to the terms of the Credit Agreement,
duly completed and executed by the Assignee; and (b) agrees that (i) it will,
independently and without reliance on the Administrative Agent, the Assignor or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the
Assignor for amounts which have accrued to but
X-3
excluding the Effective Date and to the Assignee for amounts which have accrued
from and after the Effective Date.(6)
3. General Provisions. This Assignment shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors
and assigns. This Assignment may be executed in any number of counterparts,
which together shall constitute one instrument. Delivery of an executed
counterpart of a signature page of this Assignment by telecopy shall be
effective as delivery of a manually executed counterpart of this Assignment.
This Assignment shall be governed by, and construed in accordance with, the law
of the State of New York.
----------
(6) Administrative Agent should consider whether this method conforms to its
systems. In some circumstances, the following alternative language may be
appropriate: "From and after the Effective Date, the Administrative Agent shall
make all payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignee whether such
amounts have accrued prior to or on or after the Effective Date. The Assignor
and the Assignee shall make all appropriate adjustments in payments by the
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves."
X-4
EXHIBIT XI
[FORM OF] SECURITY AGREEMENT
This SECURITY AGREEMENT (this "AGREEMENT") is dated as of
August 22, 2002 and entered into by and among URS CORPORATION, a Delaware
corporation ("COMPANY"), each of THE UNDERSIGNED DIRECT AND INDIRECT
SUBSIDIARIES of Company (each of such undersigned Subsidiaries being a
"SUBSIDIARY GRANTOR" and collectively "SUBSIDIARY GRANTORS") and each ADDITIONAL
GRANTOR that may become a party hereto after the date hereof in accordance with
Section 22 hereof (each of the Company, each Subsidiary Grantor, and each
Additional Grantor being a "GRANTOR" and collectively the "GRANTORS") and CREDIT
SUISSE FIRST BOSTON, as administrative agent for and representative of (in such
capacity herein called "SECURED PARTY") the financial institutions ("LENDERS")
party to the Credit Agreement referred to below and any Interest Rate Exchangers
(as hereinafter defined).
PRELIMINARY STATEMENTS
A. Pursuant to the Credit Agreement dated as of August 22,
2002 (said Credit Agreement, as amended, restated, supplemented or otherwise
modified from time to time, being the "CREDIT AGREEMENT"; the terms defined
therein and not otherwise defined herein being used herein as therein defined),
by and among Company, the financial institutions listed therein as Lenders,
Credit Suisse First Boston, as a Co-Lead Arranger and administrative agent for
Lenders (in such capacity, "ADMINISTRATIVE AGENT"), Xxxxx Fargo Bank, National
Association, as a Co-Lead Arranger and syndication agent for Lenders, and Bank
of Montreal, BNP Paribas and The Royal Bank of Scotland PLC, as documentation
agents for Lenders, Lenders have made certain commitments, subject to the terms
and conditions set forth in the Credit Agreement, to extend certain credit
facilities to Company.
B. Company may from time to time enter, or may from time to
time have entered, into one or more Interest Rate Agreements (collectively, the
"LENDER INTEREST RATE AGREEMENTS") with one or more Persons that are Lenders or
Affiliates of Lenders at the time such Interest Rate Agreements are entered into
(in such capacity, collectively, "INTEREST RATE EXCHANGERS") in accordance with
the terms of the Credit Agreement, and it is desired that the obligations of
Company under the Lender Interest Rate Agreements, including without limitation
the obligation of Company to make payments thereunder in the event of early
termination thereof (all such obligations being the "INTEREST RATE
OBLIGATIONS"), together with all obligations of Company under the Credit
Agreement and the other Loan Documents, be secured hereunder.
C. Subsidiary Grantors have executed and delivered that
certain Subsidiary Guaranty dated the date hereof (said Subsidiary Guaranty, as
amended, restated, supplemented or otherwise modified from time to time, being
the "SUBSIDIARY GUARANTY") in favor of Secured Party for the benefit of Lenders
and any Interest Rate Exchangers, pursuant to which each Subsidiary Grantor has
guarantied the prompt payment and performance when due of all obligations of
Company under the Credit Agreement and all obligations of Company under the
Lender Interest Rate Agreements, including without limitation the obligation of
Company to make payments thereunder in the event of early termination thereof.
XI-1 Security Agreement
D. It is a condition precedent to the initial extensions of
credit by Lenders under the Credit Agreement that Grantors shall have granted
the security interests and undertaken the obligations contemplated by this
Agreement.
NOW, THEREFORE, in consideration of the premises and in order
to induce Lenders to make Loans and other extensions of credit under the Credit
Agreement and to induce Interest Rate Exchangers to enter into the Lender
Interest Rate Agreements, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, each Grantor hereby
agrees with Secured Party as follows:
SECTION 1. GRANT OF SECURITY.
Each Grantor hereby assigns to Secured Party, and hereby
grants to Secured Party a security interest in, all of such Grantor's right,
title and interest in and to the following, in each case whether now or
hereafter existing, whether tangible or intangible, or in which such Grantor now
has or hereafter acquires an interest and wherever the same may be located (the
"COLLATERAL"):
(a) all equipment in all of its forms, all parts thereof and
all accessions thereto (collectively, the "EQUIPMENT");
(b) all inventory in all of its forms, including but not
limited to (i) all goods held by such Grantor for sale or lease or to be
furnished under contracts of service or so leased or furnished, (ii) all raw
materials, work in process, finished goods, and materials used or consumed in
the manufacture, packing, shipping, advertising, selling, leasing, furnishing or
production of such inventory or otherwise used or consumed in such Grantor's
business, (iii) all goods in which such Grantor has an interest in mass or a
joint or other interest or right of any kind, and (iv) all goods which are
returned to or repossessed by such Grantor and all accessions thereto and
products thereof (collectively the "INVENTORY") and all negotiable and
non-negotiable documents of title (including without limitation warehouse
receipts, dock receipts and bills of lading) issued by any Person covering any
Inventory (collectively, "NEGOTIABLE DOCUMENTS OF TITLE");
(c) all accounts, contract rights, chattel paper, documents,
instruments, letter-of-credit rights and other rights and obligations of any
kind owned by or owing to such Grantor and all rights in, to and under all
security agreements, leases and other contracts securing or otherwise relating
to any such accounts, contract rights, chattel paper, documents, instruments,
letter-of-credit rights or other rights and obligations (any and all such
accounts, contract rights, chattel paper, documents, instruments,
letter-of-credit rights and other rights and obligations being the "ACCOUNTS",
and any and all such security agreements, leases and other contracts being the
"RELATED CONTRACTS");
(d) all deposit accounts, including the restricted deposit
account established and maintained by Secured Party pursuant to Section 12
hereof (the "COLLATERAL ACCOUNT"), together with (i) all amounts on deposit from
time to time in such deposit accounts and (ii) all interest, cash, instruments,
securities and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the
foregoing ("DEPOSIT ACCOUNTS");
XI-2 Security Agreement
(e) the "SECURITIES COLLATERAL", which term means:
(i) all shares of stock, partnership interests,
interests in joint ventures, limited liability company interests and
all other equity interests in a Person that is, or becomes, a direct
Domestic Subsidiary of such Grantor required to be pledged by the
Credit Agreement, including all securities convertible into, and
rights, warrants, options and other rights to purchase or otherwise
acquire, any of the foregoing now or hereafter owned by such
Grantor, including those owned on the date hereof and described on
Schedule 1(e)(i), and the certificates or other instruments
representing any of the foregoing and any interest of such Grantor
in the entries on the books of any securities intermediary
pertaining thereto (the "PLEDGED SHARES"), and all dividends,
distributions, returns of capital, cash, warrants, option, rights,
instruments, rights to vote or manage the business of such Person
pursuant to organizational documents governing the rights and
obligations of the stockholders, partners, members or other owners
thereof and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all of such Pledged Shares; and all dividends, cash,
warrants, rights, instruments and other property or proceeds from
time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such Pledged Shares;
(ii) all indebtedness from time to time owed to such
Grantor by any obligor that is, or becomes, a direct or indirect
Subsidiary of such Grantor, or by any obligor of which Grantor is a
direct or indirect Subsidiary, including the indebtedness described
on Schedule 1(e)(ii) and issued by the obligors named therein, and
the instruments evidencing such indebtedness (the "PLEDGED DEBT"),
and all interest, cash, instruments and other property or proceeds
from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Debt; and
(iii) all other investment property of such Grantor;
(f) the "INTELLECTUAL PROPERTY COLLATERAL", which term means:
(i) all rights, title and interest (including rights
acquired pursuant to a license or otherwise) in and to all
trademarks, service marks, designs, logos, indicia, tradenames,
trade dress, corporate names, company names, business names,
fictitious business names, trade styles and/or other source and/or
business identifiers and applications pertaining thereto, owned by
such Grantor, or hereafter adopted and used, in its business
(including, without limitation, the trademarks specifically
identified in Schedule 1(f)(i), as the same may be amended pursuant
hereto from time to time) (collectively, the "TRADEMARKS"), all
registrations that have been or may hereafter be issued or applied
for thereon in the United States and any state thereof and in
foreign countries (including, without limitation, the registrations
and applications specifically identified in Schedule 1(f)(i), as the
same may be amended pursuant hereto from time to time) (the
"TRADEMARK REGISTRATIONS"), all common law and other rights in and
to the Trademarks in the United States and any state thereof and in
foreign countries (the "TRADEMARK RIGHTS"), and all goodwill of such
Grantor's business symbolized by the Trademarks and associated
therewith (the "ASSOCIATED GOODWILL"):
XI-3 Security Agreement
(ii) all rights, title and interest (including rights
acquired pursuant to a license or otherwise) in and to all patents
and patent applications and rights and interests in patents and
patent applications under any domestic or foreign law that are
presently, or in the future may be, owned or held by such Grantor
and all patents and patent applications and rights, title and
interests in patents and patent applications under any domestic or
foreign law that are presently, or in the future may be, owned by
such Grantor in whole or in part (including, without limitation, the
patents and patent applications listed on Schedule 1(f)(ii), as the
same may be amended pursuant hereto from time to time), all rights
corresponding thereto (including, without limitation, the right,
exercisable only upon the occurrence and during the continuance of
an Event of Default, to xxx for past, present and future
infringements in the name of such Grantor or in the name of Secured
Party or Lenders), and all re-issues, divisions, continuations,
renewals, extensions and continuations-in-part thereof (all of the
foregoing being collectively referred to as the "PATENTS"); it being
understood that the rights and interests included in the
Intellectual Property Collateral hereby shall include, without
limitation, all rights and interests pursuant to licensing or other
contracts in favor of such Grantor pertaining to patent applications
and patents presently or in the future owned or used by third
parties but, in the case of third parties which are not Affiliates
of such Grantor, only to the extent permitted by such licensing or
other contracts and, if not so permitted, only with the consent of
such third parties; and
(iii) all rights, title and interest (including rights
acquired pursuant to a license or otherwise) under copyright in
various published and unpublished works of authorship including,
without limitation, computer programs, computer data bases, other
computer software, layouts, trade dress, drawings, designs,
writings, and formulas owned by such Grantor (including, without
limitation, the works listed on Schedule 1(f)(iii), as the same may
be amended pursuant hereto from time to time) (collectively, the
"COPYRIGHTS"), all copyright registrations issued to such Grantor
and applications for copyright registration that have been or may
hereafter be issued or applied for thereon by such Grantor in the
United States and any state thereof and in foreign countries
(including, without limitation, the registrations listed on Schedule
1(f)(iii), as the same may be amended pursuant hereto from time to
time) (collectively, the "COPYRIGHT REGISTRATIONS"), all common law
and other rights in and to the Copyrights in the United States and
any state thereof and in foreign countries including all copyright
licenses (but with respect to such copyright licenses, only to the
extent permitted by such licensing arrangements) (the "COPYRIGHT
RIGHTS"), including, without limitation, each of the Copyrights,
rights, titles and interests in and to the Copyrights, all
derivative works and other works protectable by copyright, which are
presently, or in the future may be, owned, created (as a work for
hire for the benefit of such Grantor), authored (as a work for hire
for the benefit of such Grantor), or acquired by such Grantor, in
whole or in part, and all Copyright Rights with respect thereto and
all Copyright Registrations therefor, heretofore or hereafter
granted or applied for, and all renewals and extensions thereof,
throughout the world, including all proceeds thereof (such as, by
way of example and not by limitation, license royalties and proceeds
of infringement suits), the right to renew and extend such Copyright
Registrations and Copyright Rights and to register works protectable
by copyright and the right to xxx for past, present and future
infringements of the Copyrights and Copyright Rights;
XI-4 Security Agreement
(g) all information used or useful or arising from the
business including all goodwill, trade secrets, trade secret rights,
know-how, customer lists, processes of production, ideas, confidential
business information, techniques, processes, formulas, and all other
proprietary information;
(h) all agreements to which such Grantor is a party, as each
such agreement may be amended, restated, supplemented or otherwise
modified from time to time (said agreements, as so amended, restated,
supplemented or otherwise modified, being referred to herein
individually as an "ASSIGNED AGREEMENT" and collectively as the
"ASSIGNED AGREEMENTS"), including, without limitation, (i) all rights
of such Grantor to receive moneys due or to become due under or
pursuant to the Assigned Agreements, (ii) all rights of such Grantor to
receive proceeds of any insurance, indemnity, warranty or guaranty with
respect to the Assigned Agreements, (iii) all claims of such Grantor
for damages arising out of any breach of or default under the Assigned
Agreements, and (iv) all rights of such Grantor to terminate, amend,
supplement, modify or exercise rights or options under the Assigned
Agreements, to perform thereunder and to compel performance and
otherwise exercise all remedies thereunder;
(i) to the extent not included in any other paragraph of this
Section 1, all general intangibles, including, without limitation, tax
refunds, payment intangibles, other rights to payment or performance,
choses in action, software and judgments taken on any rights or claims
included in the Collateral);
(j) all plant fixtures, business fixtures and other fixtures
and storage and office facilities, and all accessions thereto and
products thereof;
(k) all books, records, ledger cards, files, correspondence,
computer programs, tapes, disks and related data processing software
that at any time evidence or contain information relating to any of the
Collateral or are otherwise necessary or helpful in the collection
thereof or realization thereupon; and
(l) all proceeds, products, rents and profits of or from any
and all of the foregoing Collateral and, to the extent not otherwise
included, all payments under insurance (whether or not Secured Party is
the loss payee thereof), or any indemnity, warranty or guaranty,
payable by reason of loss or damage to or otherwise with respect to any
of the foregoing Collateral. For purposes of this Agreement, the term
"PROCEEDS" includes whatever is receivable or received when Collateral
or proceeds are sold, exchanged, collected or otherwise disposed of,
whether such disposition is voluntary or involuntary.
Each item of Collateral listed in this Section 1 that is
defined in Articles 8 or 9 of the Uniform Commercial Code, as it exists on the
date of this Agreement or as it may hereafter be amended, in the State of
California (the "UCC") shall have the meaning set forth in the UCC, it being the
intention of the Grantors that the description of the Collateral set forth above
be construed to include the broadest possible range of assets, except for assets
expressly excluded as set forth above.
XI-5 Security Agreement
SECTION 0.XXXXXXXX FOR OBLIGATIONS.
This Agreement secures, and the Collateral assigned by each
Grantor is collateral security for, the prompt payment or performance in full
when due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including without limitation the payment of
amounts that would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code), of all Secured Obligations of such
Grantor. "SECURED OBLIGATIONS" means:
(a) with respect to Company, all obligations and liabilities
of every nature of Company now or hereafter existing under or arising out of or
in connection with the Credit Agreement and the other Loan Documents and any
Lender Interest Rate Agreement, and
(b) with respect to each Subsidiary Grantor and Additional
Grantor, all obligations and liabilities of every nature of such Grantors now or
hereafter existing under or arising out of or in connection with the Subsidiary
Guaranty;
in each case together with all extensions or renewals thereof, whether for
principal, interest (including without limitation interest that, but for the
filing of a petition in bankruptcy with respect to Company or any other Grantor,
would accrue on such obligations, whether or not a claim is allowed against
Company or such Grantor for such interest in the related bankruptcy proceeding),
reimbursement of amounts drawn under Letters of Credit, payments for early
termination of Lender Interest Rate Agreements, fees, expenses, indemnities or
otherwise, whether voluntary or involuntary, direct or indirect, absolute or
contingent, liquidated or unliquidated, whether or not jointly owed with others,
and whether or not from time to time decreased or extinguished and later
increased, created or incurred, and all or any portion of such obligations or
liabilities that are paid, to the extent all or any part of such payment is
avoided or recovered directly or indirectly from Secured Party or any Lender or
Interest Rate Exchanger as a preference, fraudulent transfer or otherwise, and
all obligations of every nature of Grantors now or hereafter existing under this
Agreement.
SECTION 3.GRANTORS REMAIN LIABLE.
Anything contained herein to the contrary notwithstanding, (a)
each Grantor shall remain liable under any contracts, licenses and agreements
included in the Collateral, to the extent set forth therein, to perform all of
its duties and obligations thereunder to the same extent as if this Agreement
had not been executed, (b) the exercise by Secured Party of any of its rights
hereunder shall not release any Grantor from any of its duties or obligations
under the contracts, licenses and agreements included in the Collateral, and (c)
Secured Party shall not have any obligation or liability under any contracts,
licenses, and agreements included in the Collateral by reason of this Agreement,
nor shall Secured Party be obligated to perform any of the obligations or duties
of any Grantor thereunder or to take any action to collect or enforce any claim
for payment assigned hereunder.
XI-6 Security Agreement
SECTION 4.REPRESENTATIONS AND WARRANTIES.
Each Grantor represents and warrants as follows:
(a) OWNERSHIP OF COLLATERAL. Except as expressly permitted by
the Credit Agreement and for the security interest created by this Agreement,
such Grantor owns the Collateral owned by such Grantor free and clear of any
Lien. Except as expressly permitted by the Credit Agreement and such as may have
been filed in favor of Secured Party relating to this Agreement, no effective
financing statement or other instrument similar in effect covering all or any
part of the Collateral is on file in any filing or recording office.
(b) LOCATIONS OF EQUIPMENT AND INVENTORY. All of the Equipment
and Inventory is, as of the date hereof, or in the case of an Additional
Grantor, the date of the applicable counterpart entered into pursuant to Section
22 (each, a "COUNTERPART") located at the places specified on Schedule 4(b),
except for Inventory and Equipment which, in the ordinary course of business, is
in transit either (i) from a supplier to a Grantor, (ii) between the locations
specified on Schedule 4(b), or (ii) to customers of a Grantor.
(c) NEGOTIABLE DOCUMENTS OF TITLE. No Negotiable Documents of
Title are outstanding with respect to any of the Inventory.
(d) OFFICE LOCATIONS; TYPE AND JURISDICTION OF ORGANIZATION.
The chief place of business, the chief executive office and the office where
such Grantor keeps its records regarding the Accounts and all originals of all
chattel paper that evidence Accounts are, as of the date hereof, and, except as
set forth on Schedule 4(d), have been for the four month period preceding the
date hereof, or, in the case of an Additional Grantor, the date of the
applicable Counterpart, located at the locations set forth on Schedule 4(d), as
Schedule 4(d) may be updated as to an additional Grantor solely in connection
with the execution of this Agreement by such additional Grantor; such Grantor's
type of organization (i.e. corporation, limited partnership, etc.), jurisdiction
of organization and organization number provided by the applicable Government
Authority of the jurisdiction of organization are listed on Schedule 4(d), as
Schedule 4(d) may be updated as to an additional Grantor solely in connection
with the execution of this Agreement by such Additional Grantor.
(e) NAMES. No Grantor (or predecessor by merger or otherwise
of such Grantor) has, within the four month period preceding the date hereof,
or, in the case of an Additional Grantor, the date of the applicable
Counterpart, had a different name from the name of such Grantor listed or the
signature pages hereof, except the names listed on Schedule 4(e), as Schedule
4(e) may be updated as to an additional Grantor solely in connection with the
execution of this Agreement by such Additional Grantor, annexed hereto.
(f) DELIVERY OF CERTAIN COLLATERAL. All certificates or
instruments (excluding checks) evidencing, comprising or representing the
Collateral (including, without limitation, the Securities Collateral) have been
delivered to Secured Party duly endorsed or accompanied by duly executed
instruments of transfer or assignment in blank.
(g) SECURITIES COLLATERAL. (i) All of the Pledged Shares
described on Schedule 1(e)(i) have been duly authorized and validly issued and
are fully paid and non-
XI-7 Security Agreement
assessable; (ii) all of the Pledged Debt described on Schedule 1(e)(ii) has been
duly authorized, authenticated or issued, and delivered and is the legal, valid
and binding obligation of the issuers thereof and is not in default; (iii) the
Pledged Shares constitute the percentage set forth on Schedule 1(e)(i) of the
issued and outstanding shares of stock or other equity interests of each issuer
thereof, and there are no outstanding warrants, options or other rights to
purchase, or other agreements outstanding with respect to, or property that is
now or hereafter convertible into, or that requires the issuance or sale of, any
Pledged Shares; (iv) the Pledged Debt constitutes all of the issued and
outstanding intercompany indebtedness evidenced by a promissory note of the
respective issuers thereof owing to such Grantor; (v) Schedule 1(e)(i) sets
forth all of the Pledged Shares owned by each Grantor on the date hereof; and
(vi) Schedule 1(e)(ii) sets forth all of the Pledged Debt in existence on the
date hereof.
(h) INTELLECTUAL PROPERTY COLLATERAL.
(i) a true and complete list of all federal Trademark
Registrations and Trademark applications and material foreign
Trademark Registrations and Trademark applications owned, held
(whether pursuant to a license or otherwise) or used by such
Grantor, in whole or in part, is set forth on Schedule 1(f)(i);
(ii) a true and complete list of all federal Patents and
material foreign Patents owned, held (whether pursuant to a license
or otherwise) or used by such Grantor, in whole or in part, is set
forth in Schedule 1(f)(ii);
(iii) a true and complete list of all federal Copyright
Registrations and applications for Copyright Registrations and all
material foreign Copyright Registrations and applications for
Copyright Registrations held (whether pursuant to a license or
otherwise) by such Grantor, in whole or in part, is set forth in
Schedule 1(f)(iii);
(iv) after reasonable inquiry, such Grantor is not aware
of any pending or threatened claim by any third party that any of
the Intellectual Property Collateral owned, held or used by such
Grantor is invalid or unenforceable; and
(v) no effective security interest or other Lien (other
than in favor of Administrative Agent) covering all or any part of
the Intellectual Property Collateral is on file in the United States
Patent and Trademark Office or the United States Copyright Office.
(i) PERFECTION. The security interests in the Collateral
granted to Secured Party for the ratable benefit of the Lenders and Interest
Rate Exchangers hereunder constitute valid security interests in the Collateral,
securing the payment of the Secured Obligations. Upon (i) the filing of UCC
financing statements naming each Grantor as "debtor", naming Secured Party as
"secured party" and describing the Collateral in the filing offices with respect
to such Grantor set forth on Schedule 4(i), (ii) in the case of the Securities
Collateral consisting of certificated securities or evidenced by instruments,
delivery of the certificates representing such certificated securities and
delivery of such instruments to Secured Party, in each case duly endorsed or
accompanied by duly executed instruments of assignment or transfer in blank, and
(iii) in the case of the Intellectual Property Collateral (excluding
Intellectual Property Collateral
XI-8 Security Agreement
directly applied for in foreign jurisdictions), in addition to the filing of
such UCC financing statements, the filing of a Grant of Trademark Security
Interest, substantially in the form of Exhibit I, and a Grant of Patent Security
Interest, substantially in the form of Exhibit II, with the United States Patent
and Trademark Office and the filing of a Grant of Copyright Security Interest,
substantially in the form of Exhibit III, with the United States Copyright
Office (each such Grant of Trademark Security Interest, Grant of Patent Security
Interest and Grant of Copyright Security Interest being referred to herein as a
"GRANT"), the security interests in the Collateral granted to Secured Party for
the ratable benefit of the Lenders and Interest Rate Exchangers will constitute
perfected security interests therein prior to all other Liens (except for
Permitted Encumbrances on Collateral other than the Securities Collateral) to
the extent such security interests may be perfected by the actions described in
clauses (i), (ii) and (iii) above, and all filings and other actions necessary
or desirable to perfect and protect such security interest have been duly made
or taken.
SECTION 5.FURTHER ASSURANCES.
(a) GENERALLY. Each Grantor agrees that from time to time, at
the expense of Grantors, such Grantor will promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or desirable, or that Secured Party may reasonably request, in order
to perfect and protect any security interest granted or purported to be granted
hereby or to enable Secured Party to exercise and enforce its rights and
remedies hereunder with respect to any Collateral. Without limiting the
generality of the foregoing, each Grantor will: (i) at the request of Secured
Party, xxxx conspicuously each item of chattel paper included in the Accounts,
each Related Contract and, at the request of Secured Party, each of its records
pertaining to the Collateral, with a legend, in form and substance satisfactory
to Secured Party, indicating that such Collateral is subject to the security
interest granted hereby, (ii) at the request of Secured Party, deliver and
pledge to Secured Party hereunder all promissory notes and other instruments
(including checks) and all original counterparts of chattel paper constituting
Collateral, duly endorsed and accompanied by duly executed instruments of
transfer or assignment, all in form and substance satisfactory to Secured Party,
(iii) (A) execute and file such financing or continuation statements, or
amendments thereto, (B) execute and deliver, and cause to be executed and
delivered, agreements establishing that Secured Party has control of specified
items of Collateral and (C) deliver such other instruments or notices, in each
case, as may be necessary or desirable, or as Secured Party may request, in
order to perfect and preserve the security interests granted or purported to be
granted hereby, (iv) furnish to Secured Party from time to time statements and
schedules further identifying and describing the Collateral and such other
reports in connection with the Collateral as Secured Party may reasonably
request, all in reasonable detail, (v) so long as no Event of Default has
occurred and is continuing, at any reasonable time during normal business hours,
one time per Fiscal Year upon reasonable notice by Secured Party and upon the
occurrence and during the continuance of an Event of Default, at any time,
exhibit the Collateral to and allow inspection of the Collateral by Secured
Party, or persons designated by Secured Party, (vi) at Secured Party's request,
appear in and defend any action or proceeding that may affect such Grantor's
title to or Secured Party's security interest in all or any part of the
Collateral, (vii) use commercially reasonable efforts to obtain any necessary
consents of third parties to the assignment and perfection of a security
interest to Secured Party with respect to any Collateral. Each Grantor hereby
authorizes Secured Party to file one or more financing or continuation
statements, and amendments thereto, relative to all or any part of the
XI-9 Security Agreement
Collateral without the signature of any Grantor. Each Grantor agrees that a
carbon, photographic or other reproduction of this Agreement or of a financing
statement signed by such Grantor shall be sufficient as a financing statement
and may be filed as a financing statement in any and all jurisdictions, and
(viii) at the request of the Secured Party, take steps to comply with the
Federal Anti-Claims Act, 31 U.S.C. Section 3727 (1988), and the Federal
Anti-Assignment Act, 41 U.S.C. Section 15 (1994).
(b) SECURITIES COLLATERAL. Without limiting the generality of
the foregoing Section 5(a), each Grantor agrees that it will, upon obtaining any
additional shares of stock or other securities required to be pledged hereunder,
promptly (and in any event within five Business Days) deliver to Secured Party a
Pledge Supplement, duly executed by such Grantor, in substantially the form of
Exhibit IV (a "PLEDGE SUPPLEMENT"), in respect of the additional Pledged Shares
or Pledged Debt to be pledged pursuant to this Agreement. Upon each delivery of
a Pledge Supplement to Secured Party and the update of Schedule 1(e)(i) effected
thereby, the representations and warranties contained in clauses (i)-(iv) of
Section 4(g) hereof shall be deemed to have been made by such Grantor as to the
Securities Collateral described in such Pledge Supplement as of the date
thereof. Each Grantor hereby authorizes Secured Party to attach each Pledge
Supplement to this Agreement and agrees that all Pledged Shares or Pledged Debt
of such Grantor listed on any Pledge Supplement shall for all purposes hereunder
be considered Collateral of such Grantor; provided, the failure of any Grantor
to execute a Pledge Supplement with respect to any additional Pledged Shares or
Pledged Debt pledged pursuant to this Agreement shall not impair the security
interest of Secured Party therein or otherwise adversely affect the rights and
remedies of Secured Party hereunder with respect thereto.
(c) INTELLECTUAL PROPERTY COLLATERAL. Without limiting the
generality of the foregoing Section 5(a), if any Grantor shall hereafter obtain
rights to any new Intellectual Property Collateral or become entitled to the
benefit of (i) any patent application or patent or any reissue, division,
continuation, renewal, extension or continuation-in-part of any Patent or any
improvement of any Patent or (ii) any Copyright Registration, application for
Copyright Registration or renewals or extension of any Copyright, then in any
such case, the provisions of this Agreement shall automatically apply thereto.
Each Grantor shall promptly notify Secured Party in writing of any of the
foregoing rights acquired by such Grantor after the date hereof and of (i) any
Trademark Registrations issued or application for a Trademark Registration or
application for a Patent made, and (ii) any Copyright Registrations issued or
applications for Copyright Registration made, in any such case, after the date
hereof. Promptly after the filing of an application for any (1) Trademark
Registration; (2) Patent; and (3) Copyright Registration, each Grantor shall
execute and deliver to Secured Party an IP Supplement, substantially in the form
of Exhibit V (an "IP SUPPLEMENT"), pursuant to which such Grantor shall grant to
Secured Party a security interest to the extent of its interest in such
Intellectual Property Collateral; provided, if, in the reasonable judgment of
such Grantor, after due inquiry, granting such interest would result in the
grant of a Trademark Registration or Copyright Registration in the name of
Secured Party, such Grantor shall give written notice to Secured Party as soon
as reasonably practicable and the filing shall instead be undertaken as soon as
practicable but in no case later than immediately following the grant of the
applicable Trademark Registration or Copyright Registration, as the case may be.
Upon delivery to Secured Party of an IP Supplement, Schedules 1(f)(i), 1(f)(ii),
and 1(f)(iii) hereto and Schedule A to each Grant, as applicable, shall be
deemed modified to include reference to any right, title or interest in any
existing Intellectual
XI-10 Security Agreement
Property Collateral or any Intellectual Property Collateral included on Schedule
A to such IP Supplement. Each Grantor hereby authorizes Secured Party to modify
this Agreement without the signature or consent of any Grantor by attaching
Schedules 1(f)(i), 1(f)(ii), and 1(f)(iii), as applicable, that have been
modified to include such Intellectual Property Collateral or to delete any
reference to any right, title or interest in any Intellectual Property
Collateral in which any Grantor no longer has or claims any right, title or
interest; provided, the failure of any Grantor to execute an IP Supplement with
respect to any additional Intellectual Property Collateral pledged pursuant to
this Agreement shall not impair the security interest of Secured Party therein
or otherwise adversely affect the rights and remedies of Secured Party hereunder
with respect thereto.
SECTION 6. CERTAIN COVENANTS OF GRANTORS.
Each Grantor shall:
(a) not use or permit any Collateral to be used unlawfully or
in violation of any provision of this Agreement or any applicable material
statute, regulation or ordinance or any policy of insurance covering the
Collateral;
(b) notify Secured Party of any change in such Grantor's name,
identity or corporate structure within 15 days of such change;
(c) give Secured Party 30 days' prior written notice of any
change in such Grantor's chief place of business, chief executive office or
residence or the office where such Grantor keeps its records regarding the
Accounts and all originals of all chattel paper that evidence Accounts or a
reincorporation, reorganization or other action that results in a change of the
jurisdiction of organization of such Grantor;
(d) if Secured Party gives value to enable such Grantor to
acquire rights in or the use of any Collateral, use such value for such
purposes; and
(e) except as expressly permitted by the Credit Agreement, pay
promptly when due all property and other taxes, assessments and governmental
charges or levies imposed upon, and all claims (including claims for labor,
services, materials and supplies) against, the Collateral, except to the extent
the validity thereof is being contested in good faith; provided that such
Grantor shall in any event pay such taxes, assessments, charges, levies or
claims not later than five days prior to the date of any proposed sale under any
judgment, writ or warrant of attachment entered or filed against such Grantor or
any of the Collateral as a result of the failure to make such payment.
SECTION 7. SPECIAL COVENANTS WITH RESPECT TO EQUIPMENT AND
INVENTORY.
Each Grantor shall:
(a) keep the Equipment and Inventory owned by such Grantor at
the places therefor specified on Schedule 4(b) or that such Grantor has
disclosed to Security Party within 15 days of the removal of such collateral;
XI-11 Security Agreement
(b) cause the Equipment owned by such Grantor to be maintained
and preserved in the same condition, repair and working order as when new,
ordinary wear and tear excepted, and in accordance with such Grantor's past
practices, and shall forthwith make or cause to be made all repairs,
replacements and other improvements in connection therewith that, in the good
faith determination of such Grantor, are necessary or desirable to such end; and
shall promptly furnish to Secured Party a statement respecting any material loss
or damage to any of the Equipment owned by such Grantor;
(c) keep correct and accurate records of Inventory owned by
such Grantor, itemizing and describing the kind, type and quantity of such
Inventory, such Grantor's cost therefor and (where applicable) the current list
prices for such Inventory;
(d) promptly upon the issuance and delivery to such Grantor of
any Negotiable Document of Title, deliver such Negotiable Document of Title to
Secured Party; and
(e) each Grantor shall, at its own expense, maintain insurance
with respect to the Equipment and Inventory in accordance with the terms of the
Credit Agreement.
SECTION 8. SPECIAL COVENANTS WITH RESPECT TO ACCOUNTS AND
RELATED CONTRACTS.
(a) Each Grantor shall keep its chief place of business and
chief executive office and the office where it keeps its records concerning the
Accounts and Related Contracts, and all originals of all chattel paper that
evidence Accounts, at the locations therefor set forth on Schedule 4(d) or that
Grantor has disclosed to Secured Party within 15 days of the relocation thereof.
Each Grantor will hold and preserve such records and chattel paper and will
permit representatives of Secured Party at any reasonable time during normal
business hours one time per Fiscal Year to inspect and make abstracts from such
records and chattel paper, and each Grantor agrees to render to Secured Party,
at Grantor's cost and expense, such clerical and other assistance as may be
reasonably requested with regard thereto. Promptly upon the request of Secured
Party, each Grantor shall deliver to Secured Party complete and correct copies
of each Related Contract.
(b) Each Grantor shall, for not less than three (3) years from
the date on which each Account of such Grantor arose, maintain (i) complete
records of such Account, including records of all payments received, credits
granted and merchandise returned, and (ii) all documentation relating thereto.
(c) Except as otherwise provided in this subsection (c), each
Grantor shall continue to collect, at its own expense, all amounts due or to
become due to such Grantor under the Accounts and Related Contracts. In
connection with such collections, each Grantor may take (and, upon the
occurrence and during the continuance of an Event of Default, at Secured Party's
direction, shall take) such action as such Grantor or Secured Party may deem
necessary or advisable to enforce collection of amounts due or to become due
under the Accounts; provided, however, that Secured Party shall have the right
at any time, upon the occurrence and during the continuance of an Event of
Default and upon written notice to such Grantor of its intention to do so, to
notify the account debtors or obligors under any Accounts of the assignment of
such
XI-12 Security Agreement
Accounts to Secured Party and to direct such account debtors or obligors to make
payment of all amounts due or to become due to such Grantor thereunder directly
to Secured Party, to notify each Person maintaining a lockbox or similar
arrangement to which account debtors or obligors under any Accounts have been
directed to make payment to remit all amounts representing collections on checks
and other payment items from time to time sent to or deposited in such lockbox
or other arrangement directly to Secured Party and, upon such notification and
at the expense of Grantors, to enforce collection of any such Accounts and to
adjust, settle or compromise the amount or payment thereof, in the same manner
and to the same extent as such Grantor might have done. After receipt by such
Grantor of the notice from Secured Party referred to in the proviso to the
preceding sentence, (i) all amounts and proceeds (including checks and other
instruments) received by such Grantor in respect of the Accounts and the Related
Contracts shall be received in trust for the benefit of Secured Party hereunder,
shall be segregated from other funds of such Grantor and shall be forthwith paid
over or delivered to Secured Party in the same form as so received (with any
necessary endorsement) to be held as cash Collateral and applied as provided by
Section 18, and (ii) such Grantor shall not adjust, settle or compromise the
amount or payment of any Account, or release wholly or partly any account debtor
or obligor thereof, or allow any credit or discount thereon without the consent
of Secured Party.
SECTION 9. SPECIAL COVENANTS WITH RESPECT TO THE SECURITIES
COLLATERAL.
(a) DELIVERY. Each Grantor agrees that all certificates or
instruments, if any, representing or evidencing the Securities Collateral shall
be delivered to and held by or on behalf of Secured Party pursuant hereto and
shall be in suitable form for transfer by delivery or, as applicable, shall be
accompanied by such Grantor's endorsement, where necessary, or duly executed
instruments of transfer or assignment in blank, all in form and substance
reasonably satisfactory to Secured Party.
(b) COVENANTS. Each Grantor shall (i) not, except as expressly
permitted by the Credit Agreement, permit any issuer of Pledged Shares to merge
or consolidate unless all the outstanding capital stock or other equity
interests of the surviving or resulting Person is, upon such merger or
consolidation, pledged hereunder and no cash, securities or other property is
distributed in respect of the outstanding shares of any other constituent
corporation; (ii) cause each issuer of Pledged Shares not to issue any stock,
other equity interests or other securities in addition to or in substitution for
the Pledged Shares issued by such issuer, except to such Grantor; (iii) pledge
hereunder, immediately upon its acquisition (directly or indirectly) thereof,
any and all additional shares of stock, other equity interests or other
securities of each issuer of Pledged Shares; (iv) if required by the Credit
Agreement, pledge hereunder, immediately upon its acquisition (directly or
indirectly) thereof, any and all shares of stock or other equity interests of
any Person that, after the date of this Agreement, becomes, as a result of any
occurrence, a direct Domestic Subsidiary of such Grantor; (v) pledge hereunder,
immediately upon their issuance, any and all instruments or other evidences of
additional indebtedness from time to time owed to such Grantor by any obligor on
the Pledged Debt; (vi) pledge hereunder, immediately upon their issuance, any
and all instruments or other evidences of indebtedness from time to time owed to
such Grantor by any Person that after the date of this Agreement becomes, as a
result of any occurrence, a direct or indirect Subsidiary of such Grantor; (vii)
promptly notify Secured Party of any event of which such Grantor becomes aware
causing material loss or depreciation in
XI-13 Security Agreement
the value of the Securities Collateral; (viii) promptly deliver to Secured Party
all written notices received by it with respect to the Securities Collateral;
and (ix), at the request of Secured Party, promptly execute and deliver to
Secured Party an agreement providing for the control, as that term is defined in
the UCC, by Secured Party of all securities entitlements and securities accounts
of such Grantor.
(c) VOTING AND DISTRIBUTIONS. So long as no Event of Default
shall have occurred and be continuing, (i) each Grantor shall be entitled to
exercise any and all voting and other consensual rights pertaining to the
Securities Collateral or any part thereof for any purpose not inconsistent with
the terms of this Agreement or the Credit Agreement; provided, no Grantor shall
exercise or refrain from exercising any such right if Secured Party shall have
notified such Grantor that, in Secured Party's reasonable, good faith judgment,
such action would have a material adverse effect on the value of the Securities
Collateral or any part thereof; and provided further, such Grantor shall give
Secured Party at least five Business Days' prior written notice of the manner in
which it intends to exercise, or the reasons for refraining from exercising, any
such right (it being understood, however, that neither (A) the voting by such
Grantor of any Pledged Shares for or such Grantor's consent to the election of
directors or other members of a governing body of an issuer of Pledged Shares at
a regularly scheduled annual or other meeting of stockholders or holders of
equity interests or with respect to incidental matters at any such meeting, nor
(B) such Grantor's consent to or approval of any action otherwise permitted
under this Agreement and the Credit Agreement shall be deemed inconsistent with
the terms of this Agreement or the Credit Agreement within the meaning of this
Section, and no notice of any such voting or consent need be given to Secured
Party); (ii) each Grantor shall be entitled to receive and retain, and to
utilize free and clear of the lien of this Agreement, any and all dividends,
other distributions and interest paid in respect of the Securities Collateral;
provided, any and all (A) dividends, distributions and interest paid or payable
other than in cash in respect of, and instruments and other property received,
receivable or otherwise distributed in respect of, or in exchange for, any
Securities Collateral, (B) dividends and other distributions paid or payable in
cash in respect of any Securities Collateral in connection with a partial or
total liquidation or dissolution or in connection with a reduction of capital,
capital surplus or paid-in-surplus, and (C) cash paid, payable or otherwise
distributed in respect of principal or in redemption of or in exchange for any
Securities Collateral, shall be, and shall forthwith be delivered to Secured
Party to hold as, Securities Collateral and shall, if received by such Grantor,
be received in trust for the benefit of Secured Party, be segregated from the
other property or funds of such Grantor and be forthwith delivered to Secured
Party as Securities Collateral in the same form as so received (with all
necessary endorsements); and (iii) Secured Party shall promptly execute and
deliver (or cause to be executed and delivered) to such Grantor all such
proxies, dividend payment orders and other instruments as such Grantor may from
time to time reasonably request for the purpose of enabling such Grantor to
exercise the voting and other consensual rights which it is entitled to exercise
pursuant to clause (i) above and to receive the dividends, distributions,
principal or interest payments which it is authorized to receive and retain
pursuant to clause (ii) above.
Upon the occurrence and during the continuance of an Event of
Default, (x) upon written notice from Secured Party to any Grantor, all rights
of such Grantor to exercise the voting and other consensual rights which it
would otherwise be entitled to exercise pursuant hereto shall cease, and all
such rights shall thereupon become vested in Secured Party who shall
XI-14 Security Agreement
thereupon have the sole right to exercise such voting and other consensual
rights; (y) all rights of such Grantor to receive the dividends, other
distributions and interest payments which it would otherwise be authorized to
receive and retain pursuant hereto shall cease, and all such rights shall
thereupon become vested in Secured Party who shall thereupon have the sole right
to receive and hold as Securities Collateral such dividends, other distributions
and interest payments; and (z) all dividends, principal, interest payments and
other distributions which are received by such Grantor contrary to the
provisions of clause (ii) of the immediately preceding paragraph or clause (y)
above shall be received in trust for the benefit of Secured Party, shall be
segregated from other funds of such Grantor and shall forthwith be paid over to
Secured Party as Securities Collateral in the same form as so received (with any
necessary endorsements).
In order to permit Secured Party to exercise the voting and
other consensual rights which it may be entitled to exercise pursuant hereto and
to receive all dividends and other distributions which it may be entitled to
receive hereunder, (I) each Grantor shall promptly execute and deliver (or cause
to be executed and delivered) to Secured Party all such proxies, dividend
payment orders and other instruments as Secured Party may from time to time
reasonably request, and (II) without limiting the effect of clause (I) above,
each Grantor hereby grants to Secured Party an irrevocable proxy to vote the
Pledged Shares and to exercise all other rights, powers, privileges and remedies
to which a holder of the Pledged Shares would be entitled (including giving or
withholding written consents of shareholders or other holders of equity
interests, calling special meetings of shareholders or other holders of equity
interests and voting at such meetings), which proxy shall be effective,
automatically and without the necessity of any action (including any transfer of
any Pledged Shares on the record books of the issuer thereof) by any other
Person (including the issuer of the Pledged Shares or any officer or agent
thereof), only upon the occurrence and during the continuance of an Event of
Default and which proxy shall only terminate upon the payment in full of the
Secured Obligations.
SECTION 10. SPECIAL COVENANTS WITH RESPECT TO THE INTELLECTUAL
PROPERTY COLLATERAL.
(a) Each Grantor shall:
(i) diligently keep reasonable records respecting the
Intellectual Property Collateral and at all times keep at least one
complete set of its records concerning such Collateral at its chief
executive office or principal place of business;
(ii) use best efforts so as not to permit the inclusion
in any contract to which it hereafter becomes a party of any
provision that could or might in any way impair or prevent the
creation of a security interest in, or the assignment of, such
Grantor's rights and interests in any property included within the
definitions of any Intellectual Property Collateral acquired under
such contracts;
(iii) take any and all reasonable steps to protect the
secrecy of all trade secrets relating to the products and services
sold or delivered under or in connection with the Intellectual
Property Collateral, including, without limitation, where
appropriate entering into confidentiality agreements with employees
and labeling and restricting access to secret information and
documents;
XI-15 Security Agreement
(iv) use proper statutory notice in connection with its
use of any of the Intellectual Property Collateral;
(v) use a commercially appropriate standard of quality
(which may be consistent with such Grantor's past practices) in the
manufacture, sale and delivery of products and services sold or
delivered under or in connection with the Trademarks; and
(vi) furnish to Secured Party from time to time at
Secured Party's reasonable request statements and schedules further
identifying and describing any Intellectual Property Collateral and
such other reports in connection with such Collateral, all in
reasonable detail.
(b) Except as otherwise provided in this Section 10, each
Grantor shall continue to collect, at its own expense, all amounts due or to
become due to such Grantor in respect of the Intellectual Property Collateral or
any portion thereof. In connection with such collections, each Grantor may take
(and, upon the occurrence and during the continuance of any Event of Default, at
Secured Party's reasonable direction, shall take) such action as such Grantor or
Secured Party may deem reasonably necessary or advisable to enforce collection
of such amounts; provided, Secured Party shall have the right at any time, upon
the occurrence and during the continuance of an Event of Default and upon
written notice to such Grantor of its intention to do so, to notify the obligors
with respect to any such amounts of the existence of the security interest
created hereby and to direct such obligors to make payment of all such amounts
directly to Secured Party, and, upon such notification and at the expense of
such Grantor, to enforce collection of any such amounts and to adjust, settle or
compromise the amount or payment thereof, in the same manner and to the same
extent as such Grantor might have done. After receipt by any Grantor of the
notice from Secured Party referred to in the proviso to the preceding sentence
and during the continuance of any Event of Default, (i) all amounts and proceeds
(including checks and other instruments) received by each Grantor in respect of
amounts due to such Grantor in respect of the Intellectual Property Collateral
or any portion thereof shall be received in trust for the benefit of Secured
Party hereunder, shall be segregated from other funds of such Grantor and shall
be forthwith paid over or delivered to Secured Party in the same form as so
received (with any necessary endorsement) to be held as cash Collateral and
applied as provided by Section 18, and (ii) such Grantor shall not adjust,
settle or compromise the amount or payment of any such amount or release wholly
or partly any obligor with respect thereto or allow any credit or discount
thereon.
(c) Each Grantor shall have the duty diligently to prosecute,
file and/or make, unless and until such Grantor, in its commercially reasonable
judgment, decides otherwise, (i) any application relating to any of the
Intellectual Property Collateral owned, held or used by such Grantor and
identified on Schedules 1(f)(i), 1(f)(ii) or 1(f)(iii), as applicable, that is
pending as of the date of this Agreement, (ii) any Copyright Registration on any
existing or future unregistered but copyrightable works (except for works of
nominal commercial value or with respect to which such Grantor has determined in
the exercise of its commercially reasonable judgment that it shall not seek
registration), (iii) application on any future patentable but unpatented
innovation or invention comprising Intellectual Property Collateral, and (iv)
any Trademark opposition and cancellation proceedings, renew Trademark
Registrations and Copyright Registrations and do any and all acts which are
necessary or desirable to preserve and
XI-16 Security Agreement
maintain all rights in all Intellectual Property Collateral. Any expenses
incurred in connection therewith shall be borne solely by Grantors. Subject to
the foregoing, each Grantor shall give Secured Party prior written notice of any
abandonment of any Intellectual Property Collateral or any pending patent
application or any Patent.
(d) Except as provided herein, each Grantor shall have the
right to commence and prosecute in its own name, as real party in interest, for
its own benefit and at its own expense, such suits, proceedings or other actions
for infringement, unfair competition, dilution, misappropriation or other
damage, or reexamination or reissue proceedings as are necessary to protect the
Intellectual Property Collateral. Secured Party shall provide, at such Grantor's
expense, all reasonable and necessary cooperation in connection with any such
suit, proceeding or action including, without limitation, joining as a necessary
party. Each Grantor shall promptly, following its becoming aware thereof, notify
Secured Party of the institution of, or of any adverse determination in, any
proceeding (whether in the United States Patent and Trademark Office, the United
States Copyright Office or any federal, state, local or foreign court) or
regarding such Grantor's ownership, right to use, or interest in any
Intellectual Property Collateral. Each Grantor shall provide to Secured Party
any information with respect thereto requested by Secured Party.
(e) In addition to, and not by way of limitation of, the
granting of a security interest in the Collateral pursuant hereto, each Grantor,
effective upon the occurrence and during the continuance of an Event of Default,
hereby assigns, transfers and conveys to Secured Party the nonexclusive right
and license to use all trademarks, tradenames, copyrights, patents or technical
processes (including, without limitation, the Intellectual Property Collateral)
owned or used by such Grantor that relate to the Collateral and any other
collateral granted by such Grantor as security for the Secured Obligations,
together with any goodwill associated therewith, all to the extent necessary to
enable Secured Party to realize on the Collateral in accordance with this
Agreement and to enable any transferee or assignee of the Collateral to enjoy
the benefits of the Collateral. This right shall inure to the benefit of all
successors, assigns and transferees of Secured Party and its successors, assigns
and transferees, whether by voluntary conveyance, operation of law, assignment,
transfer, foreclosure, deed in lieu of foreclosure or otherwise. Such right and
license shall be granted free of charge, without requirement that any monetary
payment whatsoever be made to such Grantor. In addition, each Grantor hereby
grants to Secured Party and its employees, representatives and agents the right
to visit such Grantor's and any of its Affiliate's or subcontractor's plants,
facilities and other places of business that are utilized in connection with the
manufacture, production, inspection, storage or sale of products and services
sold or delivered under any of the Intellectual Property Collateral (or which
were so utilized during the prior six month period), and to inspect the quality
control and all other records relating thereto upon reasonable advance written
notice to such Grantor and at reasonable dates and times during normal business
hours one time per Fiscal Year. If and to the extent that any Grantor is
permitted to license the Intellectual Property Collateral, Secured Party shall
promptly enter into a non-disturbance agreement or other similar arrangement, at
such Grantor's request and expense, with such Grantor and any licensee of any
Intellectual Property Collateral permitted hereunder in form and substance
reasonably satisfactory to Secured Party pursuant to which (i) Secured Party
shall agree not to disturb or interfere with such licensee's rights under its
license agreement with such Grantor so long as such licensee is not in default
thereunder, and (ii) such licensee shall acknowledge and agree that the
Intellectual Property Collateral licensed to
XI-17 Security Agreement
it is subject to the security interest created in favor of Secured Party and the
other terms of this Agreement.
SECTION 11. SPECIAL PROVISIONS WITH RESPECT TO THE ASSIGNED
AGREEMENTS.
Each Grantor shall at its expense:
(i) unless determined in its good faith judgment nor to
be the best interests of Grantor's business or sound business
practices, perform and observe all terms and provisions of the
Assigned Agreements to be performed or observed by it, maintain the
Assigned Agreements in full force and effect, enforce the Assigned
Agreements in accordance with their terms, and take all such action
to such end as may be from time to time reasonably requested by
Secured Party; and
(ii) upon the reasonable request of Secured Party,
furnish to Secured Party, promptly upon receipt thereof, copies of
all notices, requests and other documents received by such Grantor
under or pursuant to the Assigned Agreements, and from time to time
(A) furnish to Secured Party such information and reports regarding
the Assigned Agreements as Secured Party may reasonably request and
(B) upon the occurrence and during the continuance of an Event of
Default and upon request of Secured Party make to the parties to
such Assigned Agreements such demands and requests for information
and reports or for action as such Grantor is entitled to make under
the Assigned Agreements.
(b) Upon the occurrence and during the continuance of an Event
of Default, no Grantor shall:
(i) cancel or terminate any of the Assigned Agreements
or consent to or accept any cancellation or termination thereof;
(ii) amend or otherwise modify the Assigned Agreements
or give any consent, waiver or approval thereunder;
(iii) waive any default under or breach of the Assigned
Agreements;
(iv) consent to or permit or accept any prepayment of
amounts to become due under or in connection with the Assigned
Agreements, except as expressly provided therein; or
(v) take any other action in connection with the
Assigned Agreements that could reasonably be expected to materially
impair the value of the interest or rights of such Grantor
thereunder or that could reasonably be expected to materially impair
the interest or rights of Secured Party.
SECTION 12. COLLATERAL ACCOUNT.
Secured Party is hereby authorized to establish and maintain
at its office at [____________] as a blocked account in the name of Company and
under the sole dominion and control of Secured Party, a restricted deposit
account designated as "URS Corporation Collateral
XI-18 Security Agreement
Account" for purposes of depositing any Aggregate Available Amount required to
be deposited pursuant to Section 16(c). All amounts at any time held in the
Collateral Account shall be beneficially owned by Grantors but shall be held in
the name of Secured Party hereunder, for the benefit of Lenders, as collateral
security for the Secured Obligations upon the terms and conditions set forth
herein. Grantors shall have no right to withdraw, transfer or, except as
expressly set forth herein, otherwise receive any funds deposited into the
Collateral Account. Anything contained herein to the contrary notwithstanding,
the Collateral Account shall be subject to such applicable laws, and such
applicable regulations of the Board of Governors of the Federal Reserve System
and of any other appropriate banking or Government Authority, as may now or
hereafter be in effect. All deposits of funds in the Collateral Account shall be
made by wire transfer (or, if applicable, by intra-bank transfer from another
account of a Grantor) of immediately available funds, in each case addressed in
accordance with instructions of Secured Party. Each Grantor shall, promptly
after initiating a transfer of funds to the Collateral Account, give notice to
Secured Party by telefacsimile of the date, amount and method of delivery of
such deposit. Cash held by Secured Party in the Collateral Account shall not be
invested by Secured Party but instead shall be maintained as a cash deposit in
the Collateral Account pending application thereof as elsewhere provided in this
Agreement. To the extent permitted under Regulation Q of the Board of Governors
of the Federal Reserve System, any cash held in the Collateral Account shall
bear interest at the standard rate paid by Secured Party to its customers for
deposits of like amounts and terms. Subject to Secured Party's rights hereunder,
any interest earned on deposits of cash in the Collateral Account shall be
deposited directly in, and held in the Collateral Account.
SECTION 13. SECURED PARTY APPOINTED ATTORNEY-IN-FACT.
Each Grantor hereby irrevocably appoints Secured Party as such
Grantor's attorney-in-fact, with full authority in the place and stead of such
Grantor and in the name of such Grantor, Secured Party or otherwise, from time
to time in Secured Party's discretion to take any action and to execute any
instrument that Secured Party may deem necessary or advisable to accomplish the
purposes of this Agreement, including without limitation:
(a) upon the occurrence and during the continuance of an Event
of Default, to obtain and adjust insurance required to be maintained by such
Grantor or paid to Secured Party pursuant to Section 7;
(b) upon the occurrence and during the continuance of an Event
of Default, to ask for, demand, collect, xxx for, recover, compound, receive and
give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral;
(c) upon the occurrence and during the continuance of an Event
of Default, to receive, endorse and collect any drafts or other instruments,
documents and chattel paper in connection with clauses (a) and (b) above;
(d) upon the occurrence and during the continuance of an Event
of Default, to file any claims or take any action or institute any proceedings
that Secured Party may deem necessary or desirable for the collection of any of
the Collateral or otherwise to enforce the rights of Secured Party with respect
to any of the Collateral;
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(e) to pay or discharge taxes or Liens (other than Liens
permitted under this Agreement or the Credit Agreement) levied or placed upon or
threatened against the Collateral, the legality or validity thereof and the
amounts necessary to discharge the same to be determined by Secured Party in its
sole discretion, any such payments made by Secured Party to become obligations
of such Grantor to Secured Party, due and payable immediately without demand;
(f) upon the occurrence and during the continuance of an Event
of Default, to sign and endorse any invoices, freight or express bills, bills of
lading, storage or warehouse receipts, drafts against debtors, assignments,
verifications and notices in connection with Accounts and other documents
relating to the Collateral; and
(g) upon the occurrence and during the continuance of an Event
of Default, generally to sell, transfer, pledge, make any agreement with respect
to or otherwise deal with any of the Collateral as fully and completely as
though Secured Party were the absolute owner thereof for all purposes, and to
do, at Secured Party's option and Grantors' expense, at any time or from time to
time, all acts and things that Secured Party deems necessary to protect,
preserve or realize upon the Collateral and Secured Party's security interest
therein in order to effect the intent of this Agreement, all as fully and
effectively as such Grantor might do.
SECTION 14. SECURED PARTY MAY PERFORM.
If any Grantor fails to perform any agreement contained
herein, Secured Party may itself perform, or cause performance of, such
agreement, and the expenses of Secured Party incurred in connection therewith
shall be payable by Grantors under Section 19(b).
SECTION 15. STANDARD OF CARE.
The powers conferred on Secured Party hereunder are solely to
protect its interest in the Collateral and shall not impose any duty upon it to
exercise any such powers. Except for the exercise of reasonable care in the
custody of any Collateral in its possession and the accounting for moneys
actually received by it hereunder, Secured Party shall have no duty as to any
Collateral or as to the taking of any necessary steps to preserve rights against
prior parties or any other rights pertaining to any Collateral. Secured Party
shall be deemed to have exercised reasonable care in the custody and
preservation of Collateral in its possession if such Collateral is accorded
treatment substantially equal to that which Secured Party accords its own
property.
SECTION 16. REMEDIES.
(a) GENERALLY. If any Event of Default (as defined in the
Credit Agreement) or the occurrence of an Early Termination Date (as defined in
a Master Agreement in the form prepared by the International Swap and
Derivatives Association, Inc. or a similar event under any similar swap
agreement) under any Lender Interest Rate Agreement (either such occurrence
being an "Event of Default" for purposes of this Agreement) shall have occurred
and be continuing, Secured Party may exercise in respect of the Collateral, in
addition to all other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party on default under
the UCC (whether or not the UCC applies to the affected Collateral), and also
may (i) require each Grantor to, and each Grantor hereby agrees that it will at
its expense and upon request of Secured Party forthwith, assemble all or part of
the Collateral
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as directed by Secured Party and make it available to Secured Party at a place
to be designated by Secured Party that is reasonably convenient to both parties,
(ii) enter onto the property where any Collateral is located and take possession
thereof with or without judicial process, (iii) prior to the disposition of the
Collateral, store, process, repair or recondition the Collateral or otherwise
prepare the Collateral for disposition in any manner to the extent Secured Party
deems appropriate, (iv) take possession of any Grantor's premises or place
custodians in exclusive control thereof, remain on such premises and use the
same and any of such Grantor's equipment for the purpose of completing any work
in process, taking any actions described in the preceding clause (iii) and
collecting any Secured Obligation, (v) without notice except as specified below,
sell the Collateral or any part thereof in one or more parcels at public or
private sale, at any of Secured Party's offices or elsewhere, for cash, on
credit or for future delivery, at such time or times and at such price or prices
and upon such other terms as Secured Party may deem commercially reasonable,
(vi) exercise dominion and control over and refuse to permit further withdrawals
from any Deposit Account maintained with Secured Party or any Lender and provide
instructions directing the disposition of funds in Deposit Accounts not
maintained with Secured Party or any Lender and (vii) provide entitlement orders
with respect to security entitlements and other investment property constituting
a part of the Collateral and, without notice to any Grantor, transfer to or
register in the name of Secured Party or any of its nominees any or all of the
Securities Collateral. Secured Party or any Lender or Interest Rate Exchanger
may be the purchaser of any or all of the Collateral at any such sale and
Secured Party, as agent for and representative of Lenders and Interest Rate
Exchangers (but not any Lender or Interest Rate Exchanger in its individual
capacity unless Requisite Obligees (as defined in Section 21(a)) shall otherwise
agree in writing), shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the
Collateral sold at any such public sale, to use and apply any of the Secured
Obligations as a credit on account of the purchase price for any Collateral
payable by Secured Party at such sale. Each purchaser at any such sale shall
hold the property sold absolutely free from any claim or right on the part of
any Grantor, and each Grantor hereby waives (to the extent permitted by
applicable law) all rights of redemption, stay and/or appraisal which it now has
or may at any time in the future have under any rule of law or statute now
existing or hereafter enacted. Each Grantor agrees that, to the extent notice of
sale shall be required by law, at least ten days' notice to such Grantor of the
time and place of any public sale or the time after which any private sale is to
be made shall constitute reasonable notification. Secured Party shall not be
obligated to make any sale of Collateral regardless of notice of sale having
been given. Secured Party may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. Each Grantor hereby waives any claims against Secured Party arising
by reason of the fact that the price at which any Collateral may have been sold
at such a private sale was less than the price which might have been obtained at
a public sale, even if Secured Party accepts the first offer received and does
not offer such Collateral to more than one offeree. If the proceeds of any sale
or other disposition of the Collateral are insufficient to pay all the Secured
Obligations, Grantors shall be jointly and severally liable for the deficiency
and the fees of any attorneys employed by Secured Party to collect such
deficiency. Each Grantor further agrees that a breach of any of the covenants
contained in this Section will cause irreparable injury to Secured Party, that
Secured Party has no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this Section shall be
specifically enforceable against such
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Grantor, and each Grantor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants except for a
defense that no default has occurred giving rise to the Secured Obligations
becoming due and payable prior to their stated maturities.
(b) SECURITIES COLLATERAL. Each Grantor recognizes that, by
reason of certain prohibitions contained in the Securities Act and applicable
state securities laws, Secured Party may be compelled, with respect to any sale
of all or any part of the Securities Collateral conducted without prior
registration or qualification of such Securities Collateral under the Securities
Act and/or such state securities laws, to limit purchasers to those who will
agree, among other things, to acquire the Securities Collateral for their own
account, for investment and not with a view to the distribution or resale
thereof. Each Grantor acknowledges that any such private sales may be at prices
and on terms less favorable than those obtainable through a public sale without
such restrictions (including a public offering made pursuant to a registration
statement under the Securities Act) and, notwithstanding such circumstances and
the registration rights granted to Secured Party by such Grantor pursuant hereto
and notwithstanding the provisions of Section 9610(c) of the UCC, which each
Grantor hereby waives, each Grantor agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner and that Secured
Party shall have no obligation to engage in public sales and no obligation to
delay the sale of any Securities Collateral for the period of time necessary to
permit the issuer thereof to register it for a form of public sale requiring
registration under the Securities Act or under applicable state securities laws,
even if such issuer would, or should, agree to so register it. If Secured Party
determines to exercise its right to sell any or all of the Securities
Collateral, upon written request, each Grantor shall and shall cause each issuer
of any Pledged Shares to be sold hereunder from time to time to furnish to
Secured Party all such information as Secured Party may request in order to
determine the number of shares and other instruments included in the Securities
Collateral which may be sold by Secured Party in exempt transactions under the
Securities Act and the rules and regulations of the Securities and Exchange
Commission thereunder, as the same are from time to time in effect.
(c) COLLATERAL ACCOUNT. If an Event of Default has occurred
and is continuing and, in accordance with Section 8 of the Credit Agreement,
Company is required to pay to Secured Party an amount (the "AGGREGATE AVAILABLE
AMOUNT") equal to the maximum amount that may at any time be drawn under all
Letters of Credit then outstanding under the Credit Agreement, Company shall
deliver funds in such an amount for deposit in the Collateral Account. If for
any reason the aggregate amount delivered by Company for deposit in the
Collateral Account as aforesaid is less than the Aggregate Available Amount, the
aggregate amount so delivered by Company shall be apportioned among all
outstanding Letters of Credit for purposes of this Section in accordance with
the ratio of the maximum amount available for drawing under each such Letter of
Credit (as to such Letter of Credit, the "MAXIMUM AVAILABLE AMOUNT") to the
Aggregate Available Amount. Upon any drawing under any outstanding Letter of
Credit in respect of which Company has deposited in the Collateral Account any
amounts described above, Secured Party shall apply such amounts to reimburse the
Issuing Lender for the amount of such drawing. In the event of cancellation or
expiration of any Letter of Credit in respect of which Company has deposited in
the Collateral Account any amounts described above, or in the event of any
reduction in the Maximum Available Amount under such Letter of Credit, Secured
Party shall apply the amount then on deposit in the Collateral Account in
respect of such Letter of Credit (less, in the case of such a reduction, the
Maximum Available Amount
XI-22 Security Agreement
under such Letter of Credit immediately after such reduction) first, to the
payment of any amounts payable to Secured Party pursuant to Section 18 hereof,
second, to the extent of any excess, to the cash collateralization pursuant to
the terms of this Agreement of any outstanding Letters of Credit in respect of
which Company has failed to pay all or a portion of the amounts described above
(such cash collateralization to be apportioned among all such Letters of Credit
in the manner described above), third, to the extent of any further excess, to
the payment of any other outstanding Secured Obligations in such order as
Secured Party shall elect, and fourth, to the extent of any further excess, to
the payment to whomsoever shall be lawfully entitled to receive such funds.
SECTION 17. ADDITIONAL REMEDIES FOR INTELLECTUAL PROPERTY
COLLATERAL.
(a) Anything contained herein to the contrary notwithstanding,
upon the occurrence and during the continuance of an Event of Default, (i)
Secured Party shall have the right (but not the obligation) to bring suit, in
the name of any Grantor, Secured Party or otherwise, to enforce any Intellectual
Property Collateral, in which event each Grantor shall, at the request of
Secured Party, do any and all lawful acts and execute any and all documents
required by Secured Party in aid of such enforcement and each Grantor shall
promptly, upon demand, reimburse and indemnify Secured Party as provided in
Sections 10.2 and 10.3 of the Credit Agreement and Section 19 hereof, as
applicable, in connection with the exercise of its rights under this Section,
and, to the extent that Secured Party shall elect not to bring suit to enforce
any Intellectual Property Collateral as provided in this Section, each Grantor
agrees to use all reasonable measures, whether by action, suit, proceeding or
otherwise, to prevent the infringement of any of the Intellectual Property
Collateral by others and for that purpose agrees to use its commercially
reasonable judgment in maintaining any action, suit or proceeding against any
Person so infringing reasonably necessary to prevent such infringement; (ii)
upon written demand from Secured Party, each Grantor shall execute and deliver
to Secured Party an assignment or assignments of the Intellectual Property
Collateral and such other documents as are necessary or appropriate to carry out
the intent and purposes of this Agreement; (iii) each Grantor agrees that such
an assignment and/or recording shall be applied to reduce the Secured
Obligations outstanding only to the extent that Secured Party (or any Lender)
receives cash proceeds in respect of the sale of, or other realization upon, the
Intellectual Property Collateral; and (iv) within five Business Days after
written notice from Secured Party, each Grantor shall make available to Secured
Party, to the extent within such Grantor's power and authority, such personnel
in such Grantor's employ on the date of such Event of Default as Secured Party
may reasonably designate, by name, title or job responsibility, to permit such
Grantor to continue, directly or indirectly, to produce, advertise and sell the
products and services sold or delivered by such Grantor under or in connection
with the Trademarks, Trademark Registrations and Trademark Rights, such persons
to be available to perform their prior functions on Secured Party's behalf and
to be compensated by Secured Party at such Grantor's expense on a per diem,
pro-rata basis consistent with the salary and benefit structure applicable to
each as of the date of such Event of Default.
(b) If (i) an Event of Default shall have occurred and, by
reason of cure, waiver, modification, amendment or otherwise, no longer be
continuing, (ii) no other Event of Default shall have occurred and be
continuing, (iii) an assignment to Secured Party of any rights, title and
interests in and to the Intellectual Property Collateral shall have been
previously made,
XI-23 Security Agreement
and (iv) the Secured Obligations shall not have become immediately due and
payable, upon the written request of any Grantor, Secured Party shall promptly
execute and deliver to such Grantor such assignments as may be necessary to
reassign to such Grantor any such rights, title and interests as may have been
assigned to Secured Party as aforesaid, subject to any disposition thereof that
may have been made by Secured Party; provided, after giving effect to such
reassignment, Secured Party's security interest granted pursuant hereto, as well
as all other rights and remedies of Secured Party granted hereunder, shall
continue to be in full force and effect; and provided further, the rights, title
and interests so reassigned shall be free and clear of all Liens other than
Liens (if any) encumbering such rights, title and interest at the time of their
assignment to Secured Party and Permitted Encumbrances.
SECTION 18. APPLICATION OF PROCEEDS.
Except as expressly provided elsewhere in this Agreement, all
proceeds received by Secured Party in respect of any sale of, collection from,
or other realization upon all or any part of the Collateral shall be applied as
provided in subsection 2.4 of the Credit Agreement.
SECTION 19. INDEMNITY AND EXPENSES.
(a) Grantors jointly and severally agree to indemnify Secured
Party, each Lender and each Interest Rate Exchanger from and against any and all
claims, losses and liabilities in any way relating to, growing out of or
resulting from this Agreement and the transactions contemplated hereby
(including without limitation enforcement of this Agreement), except to the
extent such claims, losses or liabilities result solely from Secured Party's or
such Lender's or Interest Rate Exchanger's gross negligence or willful
misconduct as finally determined by a court of competent jurisdiction.
(b) Grantors jointly and severally agree to pay to Secured
Party upon demand the amount of any and all costs and expenses, including the
reasonable fees and expenses of its counsel and of any experts and agents, that
Secured Party may incur in connection with (i) the administration of this
Agreement, (ii) the custody, preservation, use or operation of, or the sale of,
collection from, or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights of Secured Party hereunder, or (iv)
the failure by any Grantor to perform or observe any of the provisions hereof.
(c) The obligations of Grantors in this Section 19 shall (i)
survive the termination of this Agreement and the discharge of Grantors' other
obligations under this Agreement, the Lender Interest Rate Agreements, the
Credit Agreement and the other Loan Documents and (ii), as to any Grantor that
is a party to a Subsidiary Guaranty, be subject to the provisions of Section
1(b) thereof.
SECTION 20. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS;
TERMINATION AND RELEASE.
(a) This Agreement shall create a continuing security interest
in the Collateral and shall (i) remain in full force and effect until the
payment in full of the Secured Obligations, the cancellation or termination of
the Commitments and the cancellation or expiration of all outstanding Letters of
Credit, (ii) be binding upon Grantors and their respective successors and
XI-24 Security Agreement
assigns, and (iii) inure, together with the rights and remedies of Secured Party
hereunder, to the benefit of Secured Party and its successors, transferees and
assigns. Without limiting the generality of the foregoing clause (iii), (A) but
subject to the provisions of subsection 10.1 of the Credit Agreement, any Lender
may assign or otherwise transfer any Loans held by it to any other Person, and
such other Person shall thereupon become vested with all the benefits in respect
thereof granted to Lenders herein or otherwise and (B) any Interest Rate
Exchanger may assign or otherwise transfer any Lender Interest Rate Agreement to
which it is a party to any other Person in accordance with the terms of such
Lender Interest Rate Agreement, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to Interest Rate
Exchangers herein or otherwise.
(b) Upon the payment in full of all Secured Obligations, the
cancellation or termination of the Commitments and the cancellation or
expiration of all outstanding Letters of Credit, the security interest granted
hereby shall terminate and all rights to the Collateral shall revert to the
applicable Grantors. Upon any such termination Secured Party will, at Grantors'
expense, execute and deliver to Grantors such documents as Grantors shall
reasonably request to evidence such termination. In addition, upon the proposed
sale or other disposition of any Collateral by a Grantor in accordance with the
Credit Agreement for which such Grantor desires to obtain a security interest
release from Secured Party, a security interest release may be obtained pursuant
to the provisions of subsection 10.14 of the Credit Agreement.
SECTION 21. SECURED PARTY AS AGENT.
(a) Secured Party has been appointed to act as Secured Party
hereunder by Lenders and, by their acceptance of the benefits hereof, Interest
Rate Exchangers. Secured Party shall be obligated, and shall have the right
hereunder, to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking any action (including
without limitation the release or substitution of Collateral), solely in
accordance with this Agreement and the Credit Agreement; provided that Secured
Party shall exercise, or refrain from exercising, any remedies provided for in
Section 16 in accordance with the instructions of (i) Requisite Lenders or (ii)
after payment in full of all Obligations under the Credit Agreement and the
other Loan Documents, the cancellation or expiration of all Letters of Credit
and the termination of the Commitments, (A) the holders of a majority of the
aggregate notional amount under all Lender Interest Rate Agreements (including
Lender Interest Rate Agreements that have been terminated) or (B) if all Lender
Interest Rate Agreements have been terminated in accordance with their terms,
the aggregate amount then due and payable (exclusive of expenses and similar
payments but including any early termination payments then due) under such
Lender Interest Rate Agreements (Requisite Lenders or, if applicable, such
holders being referred to herein as "REQUISITE OBLIGEES"). In furtherance of the
foregoing provisions of this Section 21(a), each Interest Rate Exchanger, by its
acceptance of the benefits hereof, agrees that it shall have no right
individually to realize upon any of the Pledged Collateral hereunder, it being
understood and agreed by such Interest Rate Exchanger that all rights and
remedies hereunder may be exercised solely by Secured Party for the benefit of
Lenders and Interest Rate Exchangers in accordance with the terms of this
Section 21(a).
(b) Secured Party shall at all times be the same Person that
is Administrative Agent under the Credit Agreement. Written notice of
resignation by Administrative Agent
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pursuant to subsection 9.5 of the Credit Agreement shall also constitute notice
of resignation as Secured Party under this Agreement and appointment of a
successor Administrative Agent pursuant to subsection 9.5 of the Credit
Agreement shall also constitute appointment of a successor Secured Party under
this Agreement. Upon the acceptance of any appointment as Administrative Agent
under subsection 9.5 of the Credit Agreement by a successor Administrative
Agent, that successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Secured Party under this Agreement, and the retiring Secured Party under this
Agreement shall promptly (i) transfer to such successor Secured Party all sums,
securities and other items of Collateral held hereunder, together with all
records and other documents necessary or appropriate in connection with the
performance of the duties of the successor Secured Party under this Agreement,
and (ii) execute and deliver to such successor Secured Party such amendments to
financing statements, and take such other actions, as may be necessary or
appropriate in connection with the assignment to such successor Secured Party of
the security interests created hereunder, whereupon such retiring Secured Party
shall be discharged from its duties and obligations under this Agreement. After
any retiring Administrative Agent's resignation hereunder as Secured Party, the
provisions of this Agreement shall inure to its benefit as to any actions taken
or omitted to be taken by it under this Agreement while it was Secured Party
hereunder.
(c) Secured Party shall not be deemed to have any duty
whatsoever with respect to any Interest Rate Exchanger until it shall have
received written notice in form and substance satisfactory to Secured Party from
a Pledgor or the Interest Rate Exchanger as to the existence and terms of the
applicable Lender Interest Rate Agreement.
SECTION 22. ADDITIONAL GRANTORS.
The initial Subsidiary Grantors hereunder shall be such of the
Subsidiaries of Company as are signatories hereto on the date hereof. From time
to time subsequent to the date hereof, additional Subsidiaries of Company may
become parties hereto as additional Grantors (each an "ADDITIONAL GRANTOR"), by
executing a Counterpart substantially in the form of Exhibit VI annexed hereto.
Upon delivery of any such Counterpart to Secured Party, notice of which is
hereby waived by Grantors, each such Additional Grantor shall be a Grantor and
shall be as fully a party hereto as if such Additional Grantor were an original
signatory hereto. Each Grantor expressly agrees that its obligations arising
hereunder shall not be affected or diminished by the addition or release of any
other Grantor hereunder, nor by any election of Administrative Agent not to
cause any Subsidiary of Company to become an Additional Grantor hereunder. This
Agreement shall be fully effective as to any Grantor that is or becomes a party
hereto regardless of whether any other Person becomes or fails to become or
ceases to be a Grantor hereunder.
SECTION 23. AMENDMENTS; ETC.
No amendment, modification, termination or waiver of any
provision of this Agreement, and no consent to any departure by any Grantor
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Secured Party and, in the case of any such amendment or
modification, by Grantors; provided this Agreement may be modified by the
execution of a Counterpart by an Additional Grantor in accordance with Section
22 and Grantors
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hereby waive any requirement of notice of or consent to any such amendment. Any
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which it was given.
SECTION 24. NOTICES.
Any notice or other communication herein required or permitted
to be given shall be in writing and may be personally served or sent by
telefacsimile or United States mail or courier service and shall be deemed to
have been given when delivered in person or by courier service, upon receipt of
telefacsimile, or three Business Days after depositing it in the United States
mail with postage prepaid and properly addressed; provided that notices to
Secured Party shall not be effective until received. For the purposes hereof,
the address of each party hereto shall be as provided in subsection 10.8 of the
Credit Agreement or as set forth under such party's name on the signature pages
hereof or such other address as shall be designated by such party in a written
notice delivered to the other parties hereto.
SECTION 25. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES
CUMULATIVE.
No failure or delay on the part of Secured Party in the
exercise of any power, right or privilege hereunder shall impair such power,
right or privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or
privilege preclude any other or further exercise thereof or of any other power,
right or privilege. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
SECTION 26. SEVERABILITY.
In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 27. HEADINGS.
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
SECTION 28. GOVERNING LAW; TERMS; RULES OF CONSTRUCTION.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT
THE UCC PROVIDES THAT THE PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE
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GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. Unless
otherwise defined herein or in the Credit Agreement, terms used in Articles 8
and 9 of the Uniform Commercial Code in the State of New York are used herein as
therein defined. The rules of construction set forth in subsection 1.3 of the
Credit Agreement shall be applicable to this Agreement mutatis mutandis.
SECTION 29. CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY GRANTOR ARISING
OUT OF OR RELATING TO THIS AGREEMENT, OR ANY OBLIGATIONS HEREUNDER, MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE ,
COUNTY AND CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH
GRANTOR, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (I)
ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF
SUCH COURTS; (II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (III) AGREES THAT
SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO SUCH GRANTOR AT ITS
ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 24; (IV) AGREES THAT SERVICE AS
PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION
OVER SUCH GRANTOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE
CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; (V) AGREES THAT
SECURED PARTY RETAINS THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH GRANTOR IN THE COURTS OF ANY OTHER
JURISDICTION; AND (VI) AGREES THAT THE PROVISIONS OF THIS SECTION 29 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT
PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402.
SECTION 30. WAIVER OF JURY TRIAL.
GRANTORS AND SECURED PARTY HEREBY AGREE TO WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court and that
relate to the subject matter of this transaction, including without limitation
contract claims, tort claims, breach of duty claims, and all other common law
and statutory claims. Each Grantor and Secured Party acknowledge that this
waiver is a material inducement for Grantors and Secured Party to enter into a
business relationship, that Grantors and Secured Party have already relied on
this waiver in entering into this Agreement and that each will continue to rely
on this waiver in their related future dealings. Each Grantor and Secured Party
further warrant and represent that each has reviewed this waiver with its legal
counsel, and that each knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL
WRITTEN
XI-28 Security Agreement
WAIVER SPECIFICALLY REFERRING TO THIS SECTION 30 AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. In the event of
litigation, this Agreement may be filed as a written consent to a trial by the
court.
SECTION 31. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and
by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
[Remainder of page intentionally left blank]
XI-29 Security Agreement
IN WITNESS WHEREOF, Grantors and Secured Party have caused
this Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
URS CORPORATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
EACH OF THE ENTITIES LISTED ON SCHEDULE A
ANNEXED HERETO
By:
--------------------------------
on behalf of each of the entities listed
on Schedule A annexed hereto
Name:
------------------------------
Title:
-----------------------------
CREDIT SUISSE FIRST BOSTON,
as Secured Party
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
S-1 Security Agreement
SCHEDULE A
Name Notice Address for each Subsidiary Grantor
---- ------------------------------------------
A-1
SCHEDULE 1(e)(i) TO
SECURITY AGREEMENT
CLASS PERCENTAGE OF
OF STOCK OR EQUITY STOCK PAR NUMBER OF OUTSTANDING
STOCK ISSUER INTEREST CERTIFICATE NOS. VALUE SHARES SHARES PLEDGED
------------ -------- ---------------- ----- ------ --------------
1(e)(i)-1
SCHEDULE 1(e)(ii) TO
SECURITY AGREEMENT
AMOUNT OF
DEBT ISSUER INDEBTEDNESS
----------- ------------
1(e)(ii)-1
SCHEDULE 1(f)(i) TO
SECURITY AGREEMENT
U.S. TRADEMARKS:
Trademark Registration Registration
Registered Owner Description Number Date
---------------- ----------- ------ ----
FOREIGN TRADEMARKS:
Trademark Registration Registration
Registered Owner Description Number Date
---------------- ----------- ------ ----
1(f)(i)-1
SCHEDULE 1(f)(ii) TO
SECURITY AGREEMENT
U.S. PATENTS ISSUED:
Patent No. Issue Date Invention Inventor
---------- ---------- --------- --------
U.S. PATENTS PENDING:
Applicant's Date Application
Name Filed Number Invention Inventor
---- ----- ------ --------- --------
FOREIGN PATENTS ISSUED:
Patent No. Issue Date Invention Inventor
---------- ---------- --------- --------
1(f)(ii)-1
FOREIGN PATENTS PENDING:
Applicant's Date Application
Name Filed Number Invention Inventor
---- ----- ------ --------- --------
1(f)(ii)-2
SCHEDULE 1(f)(iii) TO
SECURITY AGREEMENT
U.S. COPYRIGHTS:
Title Registration No. Date of Issue Registered Owner
----- ---------------- ------------- ----------------
FOREIGN COPYRIGHT REGISTRATIONS:
Country Title Registration No. Date of Issue
------- ----- ---------------- -------------
PENDING U.S. COPYRIGHT REGISTRATIONS & APPLICATIONS:
Title Reference No. Date of Application Copyright Claimant
----- ------------- ------------------- ------------------
PENDING FOREIGN COPYRIGHT REGISTRATIONS & APPLICATIONS:
Country Title Registration No. Date of Issue
------- ----- ---------------- -------------
1(f)(iii)-1
SCHEDULE 4(b)
TO
SECURITY AGREEMENT
LOCATIONS OF EQUIPMENT AND INVENTORY
NAME OF GRANTOR LOCATIONS OF EQUIPMENT AND INVENTORY
--------------- ------------------------------------
4(b)-1
SCHEDULE 4(d)
TO
SECURITY AGREEMENT
OFFICE LOCATIONS, TYPE AND JURISDICTION OF ORGANIZATION
-------------------------------------------------------
NAME OF TYPE OF OFFICE JURISDICTION OF ORGANIZATION
GRANTOR ORGANIZATION LOCATIONS ORGANIZATION NUMBER
------- ------------ --------- ------------ -------------
4(d)-1
SCHEDULE 4(e)
TO
SECURITY AGREEMENT
OTHER NAMES
-----------
NAME OF GRANTOR OTHER NAMES
--------------- -----------
4(e)-1
SCHEDULE 4(i)
TO
SECURITY AGREEMENT
FILING OFFICES
--------------
Grantor Filing Offices
------- --------------
4(i)-1
EXHIBIT I TO
SECURITY AGREEMENT
[FORM OF] GRANT OF TRADEMARK SECURITY INTEREST
WHEREAS, [NAME OF GRANTOR], a ___________ corporation ("GRANTOR"), owns
and uses in its business, and will in the future adopt and so use, various
intangible assets, including the Trademark Collateral (as defined below); and
WHEREAS, URS Corporation, a Delaware corporation ("COMPANY"), has
entered into a Credit agreement dated as of August ___, 2002 (said Credit
Agreement, as it may heretofore have been and as it may hereafter be amended,
supplemented, restated or otherwise modified from time to time, being the
"CREDIT AGREEMENT") with the financial institutions named therein (collectively,
together with their respective successors and assigns party to the Credit
Agreement from time to time, the "LENDERS"), and Credit Suisse First Boston, as
Administrative Agent for the Lenders (in such capacity, "SECURED PARTY")
pursuant to which Lenders have made certain commitments, subject to the terms
and conditions set forth in the Credit Agreement, to extend certain credit
facilities to Company; and
WHEREAS, Company may from time to time enter, or may from time to time
have entered, into one or more Interest Rate Agreements (collectively, the
"Lender Interest Rate Agreements") with one or more Persons that are Lenders or
Affiliates of Lenders at the time such Lender Interest Rate Agreements are
entered into (in such capacity, collectively, "Interest Rate Exchangers"); and
[Insert if Grantor is a Subsidiary:] [WHEREAS, Grantor has executed and
delivered that certain Subsidiary Guaranty dated as of August ___, 2002 (said
Subsidiary Guaranty, as it may hereafter be amended, supplemented or otherwise
modified from time to time, being the "GUARANTY") in favor of Secured Party for
the benefit of Lenders and any Interest Rate Exchangers, pursuant to which
Grantor has guarantied the prompt payment and performance when due of all
obligations of Company under the Credit Agreement and the other Loan Documents
and all obligations of Company under the Lender Interest Rate Agreements,
including without limitation the obligation of Company to make payments
thereunder in the event of early termination thereof; and]
WHEREAS, pursuant to the terms of a Security Agreement dated as of
August ___. 2002 (as amended, supplemented or otherwise modified from time to
time, the "SECURITY AGREEMENT"), among Grantor, Secured Party and the other
grantors named therein, Grantor has agreed to create in favor of Secured Party a
secured and protected interest in, and Secured Party has agreed to become a
secured creditor with respect to, the Trademark Collateral;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, subject to the terms and conditions
of the Security Agreement, Grantor hereby grants to Secured Party a security
interest in all of Grantor's right, title and interest in and to the following,
in each case whether now or hereafter existing or in which Grantor now has or
hereafter acquires an interest and wherever the same may be located (the
"TRADEMARK COLLATERAL"):
I-1 Grant of Trademark
Security Interest
(i) all rights, title and interest (including rights acquired
pursuant to a license or otherwise but only to the extent permitted by
agreements governing such license or other use) in and to all
trademarks, service marks, designs, logos, indicia, tradenames, trade
dress, corporate names, company names, business names, fictitious
business names, trade styles and/or other source and/or business
identifiers and applications pertaining thereto, owned by such Grantor,
or hereafter adopted and used, in its business (including, without
limitation, the trademarks specifically identified in Schedule A)
(collectively, the "TRADEMARKS"), all registrations that have been or
may hereafter be issued or applied for thereon in the United States and
any state thereof and in foreign countries (including, without
limitation, the registrations and applications specifically identified
in Schedule A) (the "TRADEMARK REGISTRATIONS"), all common law and
other rights (but in no event any of the obligations) in and to the
Trademarks in the United States and any state thereof and in foreign
countries (the "TRADEMARK RIGHTS"), and all goodwill of such Grantor's
business symbolized by the Trademarks and associated therewith (the
"ASSOCIATED GOODWILL"); and
(ii) all proceeds, products, rents and profits of or from any
and all of the foregoing Trademark Collateral and, to the extent not
otherwise included, all payments under insurance (whether or not
Secured Party is the loss payee thereof), or any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise with
respect to any of the foregoing Trademark Collateral. For purposes of
this Grant of Trademark Security Interest, the term "PROCEEDS" includes
whatever is receivable or received when Trademark Collateral or
proceeds are sold, exchanged, collected or otherwise disposed of,
whether such disposition is voluntary or involuntary.
Grantor does hereby further acknowledge and affirm that the rights and
remedies of Secured Party with respect to the security interest in the Trademark
Collateral granted hereby are more fully set forth in the Security Agreement,
the terms and provisions of which are incorporated by reference herein as if
fully set forth herein.
[Remainder of page intentionally left blank]
I-2 Grant of Trademark
Security Interest
IN WITNESS WHEREOF, Grantor has caused this Grant of Trademark Security
Interest to be duly executed and delivered by its officer thereunto duly
authorized as of the __ day of _______, _____.
[NAME OF GRANTOR]
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
I-3 Grant of Trademark
Security Interest
SCHEDULE A
TO
GRANT OF TRADEMARK SECURITY INTEREST
United States
Trademark Registration Registration
Registered Owner Description Number Date
---------------- ----------- ------ ------------
A-1
EXHIBIT II TO
SECURITY AGREEMENT
[FORM OF] GRANT OF PATENT SECURITY INTEREST
WHEREAS, [NAME OF GRANTOR], a ___________ corporation ("GRANTOR"), owns
and uses in its business, and will in the future adopt and so use, various
intangible assets, including the Patent Collateral (as defined below); and
WHEREAS, URS Corporation, a Delaware corporation ("COMPANY"), has
entered into a Credit Agreement dated as of August ___, 2002 (said Credit
Agreement, as it may heretofore have been and as it may hereafter be amended,
supplemented or otherwise modified from time to time, being the "CREDIT
AGREEMENT") with the financial institutions named therein (collectively,
together with their respective successors and assigns party to the Credit
Agreement from time to time, the "LENDERS"), and Credit Suisse First Boston, as
Administrative Agent for the Lenders (in such capacity, "SECURED PARTY"),
pursuant to which Lenders have made certain commitments, subject to the terms
and conditions set forth in the Credit Agreement, to extend certain credit
facilities to Company; and
WHEREAS, Company may from time to time enter, or may from time to time
have entered, into one or more Interest Rate Agreements (collectively, the
"Lender Interest Rate Agreements") with one or more Persons that are Lenders or
Affiliates of Lenders at the time such Lender Interest Rate Agreements are
entered into (in such capacity, collectively, "Interest Rate Exchangers"); and
[Insert if Grantor is a Subsidiary:] [WHEREAS, Grantor has executed and
delivered that certain Subsidiary Guaranty dated as of August ___, 2002 (said
Subsidiary Guaranty, as it may hereafter be amended, supplemented or otherwise
modified from time to time, being the "GUARANTY") in favor of Secured Party for
the benefit of Lenders and any Interest Rate Exchangers, pursuant to which
Grantor has guarantied the prompt payment and performance when due of all
obligations of Company under the Credit Agreement and the other Loan Documents
and all obligations of Company under the Lender Interest Rate Agreements,
including without limitation the obligation of Company to make payments
thereunder in the event of early termination thereof; and]
WHEREAS, pursuant to the terms of a Security Agreement dated as of
August ___, 2002 (as amended, supplemented or otherwise modified from time to
time, the "SECURITY AGREEMENT"), among Grantor, Secured Party and the other
grantors named therein, Grantor has agreed to create in favor of Secured Party a
secured and protected interest in, and Secured Party has agreed to become a
secured creditor with respect to, the Patent Collateral;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, subject to the terms and conditions
of the Security Agreement, Grantor hereby grants to Secured Party a security
interest in all of Grantor's right, title and interest in and to the following,
in each case whether now or hereafter existing or in which Grantor now has or
hereafter acquires an interest and wherever the same may be located (the "PATENT
COLLATERAL"):
II-1 Grant of Trademark
Security Interest
(i) all rights, title and interest (including rights acquired
pursuant to a license or otherwise but only to the extent permitted by
agreements governing such license or other use) in and to all patents
and patent applications and rights and interests in patents and patent
applications under any domestic or foreign law that are presently, or
in the future may be, owned or held by such Grantor and all patents and
patent applications and rights, title and interests in patents and
patent applications under any domestic or foreign law that are
presently, or in the future may be, owned by such Grantor in whole or
in part (including, without limitation, the patents and patent
applications listed on Schedule A), all rights (but not obligations)
corresponding thereto to xxx for past, present and future infringements
and all re-issues, divisions, continuations, renewals, extensions and
continuations-in-part thereof (all of the foregoing being collectively
referred to as the "PATENTS"); and
(ii) all proceeds, products, rents and profits of or from any
and all of the foregoing Patent Collateral and, to the extent not
otherwise included, all payments under insurance (whether or not
Secured Party is the loss payee thereof), or any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise with
respect to any of the foregoing Patent Collateral. For purposes of this
Grant of Patent Security Interest, the term "PROCEEDS" includes
whatever is receivable or received when Patent Collateral or proceeds
are sold, exchanged, collected or otherwise disposed of, whether such
disposition is voluntary or involuntary.
Grantor does hereby further acknowledge and affirm that the rights and
remedies of Secured Party with respect to the security interest in the Patent
Collateral granted hereby are more fully set forth in the Security Agreement,
the terms and provisions of which are incorporated by reference herein as if
fully set forth herein.
[Remainder of page intentionally left blank]
II-2 Grant of Patent
Security Interest
IN WITNESS WHEREOF, Grantor has caused this Grant of Patent Security
Interest to be duly executed and delivered by its officer thereunto duly
authorized as of the ___ day of ____________, _____.
[NAME OF GRANTOR]
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
S-1
SCHEDULE A
TO
GRANT OF PATENT SECURITY INTEREST
PATENTS ISSUED:
Patent No. Issue Date Invention Inventor
---------- ---------- --------- --------
PATENTS PENDING:
Applicant's Date Application
Name Filed Number Invention Inventor
----------- ----- ------------ --------- --------
A-1
EXHIBIT III TO
SECURITY AGREEMENT
[FORM OF] GRANT OF COPYRIGHT SECURITY INTEREST
WHEREAS, [NAME OF GRANTOR], a ___________ corporation ("GRANTOR"), owns
and uses in its business, and will in the future adopt and so use, various
intangible assets, including the Copyright Collateral (as defined below); and
WHEREAS, URS Corporation, a Delaware corporation ("COMPANY"), has
entered into a Credit Agreement dated as of August ____, 2002 (said Credit
Agreement, as it may heretofore have been and as it may hereafter be amended,
supplemented or otherwise modified from time to time, being the "CREDIT
AGREEMENT") with the financial institutions named therein (collectively,
together with their respective successors and assigns party to the Credit
Agreement from time to time, the "LENDERS"), and Credit Suisse First Boston, as
Administrative Agent for the Lenders (in such capacity, "SECURED PARTY"),
pursuant to which Lenders have made certain commitments, subject to the terms
and conditions set forth in the Credit Agreement, to extend certain credit
facilities to Company; and
WHEREAS, Company may from time to time enter, or may from time to time
have entered, into one or more Interest Rate Agreements (collectively, the
"Lender Interest Rate Agreements") with one or more Persons that are Lenders or
Affiliates of Lenders at the time such Lender Interest Rate Agreements are
entered into (in such capacity, collectively, "Interest Rate Exchangers"); and
[Insert if Grantor is a Subsidiary:] [WHEREAS, Grantor has executed and
delivered that certain Guaranty dated as of August ___, 2002 (said Subsidiary
Guaranty, as it may hereafter be amended, supplemented or otherwise modified
from time to time, being the "GUARANTY") in favor of Secured Party for the
benefit of Lenders and any Interest Rate Exchangers, pursuant to which Grantor
has guarantied the prompt payment and performance when due of all obligations of
Company under the Credit Agreement and the other Loan Documents and all
obligations of Company under the Lender Interest Rate Agreements, including
without limitation the obligation of Company to make payments thereunder in the
event of early termination thereof; and]
WHEREAS, pursuant to the terms of a Security Agreement dated as of
August ____, 2002 (as amended, supplemented or otherwise modified from time to
time, the "SECURITY AGREEMENT"), among Grantor, Secured Party and the other
grantors named therein, Grantor has agreed to create in favor of Secured Party a
secured and protected interest in, and Secured Party has agreed to become a
secured creditor with respect to, the Copyright Collateral;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, subject to the terms and conditions
of the Security Agreement, Grantor hereby grants to Secured Party a security
interest in all of Grantor's right, title and interest in and to the following,
in each case whether now or hereafter existing or in which Grantor now has or
hereafter acquires an interest and wherever the same may be located (the
"COPYRIGHT COLLATERAL"):
Grant of Copyright
Security Interest
III-1
(i) all rights, title and interest (including rights acquired
pursuant to a license or otherwise but only to the extent permitted by
agreements governing such license or other use) under copyright in
various published and unpublished works of authorship including,
without limitation, computer programs, computer data bases, other
computer software layouts, trade dress, drawings, designs, writings,
and formulas (including, without limitation, the works listed on
Schedule A, as the same may be amended pursuant hereto from time to
time) (collectively, the "COPYRIGHTS"), all copyright registrations
issued to Grantor and applications for copyright registration that have
been or may hereafter be issued or applied for thereon in the United
States and any state thereof and in foreign countries (including,
without limitation, the registrations listed on Schedule A, as the same
may be amended pursuant hereto from time to time) (collectively, the
"COPYRIGHT REGISTRATIONS"), all common law and other rights in and to
the Copyrights in the United States and any state thereof and in
foreign countries including all copyright licenses (but with respect to
such copyright licenses, only to the extent permitted by such licensing
arrangements) (the "COPYRIGHT RIGHTS"), including, without limitation,
each of the Copyrights, rights, titles and interests in and to the
Copyrights, all derivative works and other works protectable by
copyright, which are presently, or in the future may be, owned, created
(as a work for hire for the benefit of Grantor), authored (as a work
for hire for the benefit of Grantor), or acquired by Grantor, in whole
or in part, and all Copyright Rights with respect thereto and all
Copyright Registrations therefor, heretofore or hereafter granted or
applied for, and all renewals and extensions thereof, throughout the
world, including all proceeds thereof (such as, by way of example and
not by limitation, license royalties and proceeds of infringement
suits), the right (but not the obligation) to renew and extend such
Copyright Registrations and Copyright Rights and to register works
protectable by copyright and the right (but not the obligation) to xxx
in the name of such Grantor or in the name of Secured Party or Lenders
for past, present and future infringements of the Copyrights and
Copyright Rights; and
(ii) all proceeds, products, rents and profits of or from any
and all of the foregoing Copyright Collateral and, to the extent not
otherwise included, all payments under insurance (whether or not
Secured Party is the loss payee thereof), or any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise with
respect to any of the foregoing Copyright Collateral. For purposes of
this Grant of Copyright Security Interest, the term "PROCEEDS" includes
whatever is receivable or received when Copyright Collateral or
proceeds are sold, exchanged, collected or otherwise disposed of,
whether such disposition is voluntary or involuntary.
Grantor does hereby further acknowledge and affirm that the rights and
remedies of Secured Party with respect to the security interest in the Copyright
Collateral granted hereby are more fully set forth in the Security Agreement,
the terms and provisions of which are incorporated by reference herein as if
fully set forth herein.
Grant of Copyright
Security Interest
III-2
IN WITNESS WHEREOF, Grantor has caused this Grant of Copyright Security
Interest to be duly executed and delivered by its officer thereunto duly
authorized as of the ___ day of ___________, _____.
[NAME OF GRANTOR]
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Grant of Copyright
Security Interest
S-1
SF1:476834.8
SCHEDULE A
TO
GRANT OF COPYRIGHT SECURITY INTEREST
U.S. COPYRIGHTS:
Title Registration No. Date of Issue Registered Owner
----- ---------------- ------------- ----------------
PENDING U.S. COPYRIGHT REGISTRATIONS & APPLICATIONS:
Title Reference No. Date of Application Copyright Claimant
A-1
EXHIBIT IV TO
SECURITY AGREEMENT
PLEDGE SUPPLEMENT
This Pledge Supplement, dated __________________, is delivered pursuant
to the Security Agreement, dated August ___, 2002 between URS Corporation, a
_______________ ("GRANTOR"), the other Grantors named therein, and Credit Suisse
First Boston (as it may be from time to time amended, modified or supplemented,
the "SECURITY AGREEMENT"). Capitalized terms used herein not otherwise defined
herein shall have the meanings ascribed thereto in the Security Agreement.
Grantor hereby agrees that the [Pledged Shares] [Pledged Debt] listed
on the schedule attached hereto shall be deemed to be part of the [Pledged
Shares] [Pledged Debt] and shall become part of the Securities Collateral and
shall secure all Secured Obligations.
IN WITNESS WHEREOF, Grantor has caused this Amendment to be duly
executed and delivered by its duly authorized officer as of _______________.
[NAME OF GRANTOR]
By: _______________________________________
Title:
IV-1
EXHIBIT V TO
SECURITY AGREEMENT
IP SUPPLEMENT
This IP SUPPLEMENT, dated _______, is delivered pursuant to and
supplements (i) the Security Agreement, dated as of August ___, 2002 (as it may
be from time to time amended, modified or supplemented, the "SECURITY
AGREEMENT"), among URS Corporation, [Insert Name of Grantor], the other Grantors
named therein, and Credit Suisse First Boston, as Secured Party, and (ii) the
[Grant of Trademark Security Interest] [Grant of Patent Security Interest]
[Grant of Copyright Security Interest] dated as of ___________, _____ (the
"GRANT") executed by Grantor. Capitalized terms used herein not otherwise
defined herein shall have the meanings ascribed thereto in the Grant.
["Grantor"] grants to Secured Party a security interest in all of
Grantor's right, title and interest in and to the [Trademark Collateral] [Patent
Collateral] [Copyright Collateral] listed on Schedule A attached hereto. All
such [Trademark Collateral] [Patent Collateral] [Copyright Collateral] shall be
deemed to be part of the [Trademark Collateral] [Patent Collateral] [Copyright
Collateral] and shall be hereafter subject to each of the terms and conditions
of the Security Agreement and the Grant.
IN WITNESS WHEREOF, Grantor has caused this Supplement to be duly
executed and delivered by its duly authorized officer as of ______________.
[NAME OF GRANTOR]
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
V-1
EXHIBIT VI TO
SECURITY AGREEMENT
[FORM OF COUNTERPART]
This COUNTERPART (this "COUNTERPART"), dated _______, is delivered
pursuant to Section 22 of the Security Agreement referred to below. The
undersigned hereby agrees that this Counterpart may be attached to the Security
Agreement, dated as of August ____, 2002 (as it may be from time to time
amended, modified or supplemented, the "SECURITY AGREEMENT"; capitalized terms
used herein not otherwise defined herein shall have the meanings ascribed
therein), among URS Corporation, the other Grantors named therein, and Credit
Suisse First Boston, as Secured Party. The undersigned by executing and
delivering this Counterpart hereby becomes a Grantor under the Security
Agreement in accordance with Section 22 thereof and agrees to be bound by all of
the terms thereof. Without limiting the generality of the foregoing, the
undersigned hereby:
(i) authorizes the Secured Party to add the information set forth on
the Schedules to this Agreement to the correlative Schedules attached to the
Security Agreement(1);
(ii) agrees that all Collateral of the undersigned, including the items
of property described on the Schedules hereto, shall become part of the
Collateral and shall secure all Secured Obligations; and
(iii) makes the representations and warranties set forth in the
Security Agreement, as amended hereby, to the extent relating to the
undersigned.
[NAME OF GRANTOR]
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
________
(1) The Schedules to the Counterpart should include copies of all Schedules that
identify collateral to be granted by the Additional Grantor.
EXHIBIT XII
[FORM OF SUBSIDIARY GUARANTY]
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY is entered into as of August 22, 2002 by the
undersigned (each a "GUARANTOR," and together with any future Subsidiaries
executing this Guaranty, being collectively referred to herein as the
"GUARANTORS") in favor of and for the benefit of CREDIT SUISSE FIRST BOSTON, as
agent for and representative of (in such capacity herein called "GUARANTIED
PARTY") the financial institutions ("LENDERS") party to the Credit Agreement
referred to below and any Interest Rate Exchangers (as hereinafter defined), and
for the benefit of the other Beneficiaries (as hereinafter defined).
RECITALS
A. URS Corporation, a Delaware corporation ("COMPANY"), has entered
into that certain Credit Agreement dated as of August 22, 2002 (said Credit
Agreement, as amended, restated, supplemented or otherwise modified from time to
time, being the "CREDIT AGREEMENT"; the terms defined therein and not otherwise
defined herein being used herein as therein defined), by and among Company, the
financial institutions listed therein as Lenders, Credit Suisse First Boston, as
a Co-Lead Arranger and administrative agent for Lenders, Xxxxx Fargo Bank,
National Association, as a Co-Lead Arranger and syndication agent for Lenders,
and Bank of Montreal, BNP Paribas and The Royal Bank of Scotland PLC, as
documentation agents for Lenders.
B. Company may from time to time enter, or may from time to time have
entered, into one or more Interest Rate Agreements (collectively, the "LENDER
INTEREST RATE AGREEMENTS") with one or more Persons that are Lenders or
Affiliates of Lenders at the time such Interest Rate Agreements are entered into
(in such capacity, collectively, "INTEREST RATE EXCHANGERS") in accordance with
the terms of the Credit Agreement, and it is desired that the obligations of
Company under the Lender Interest Rate Agreements, including without limitation
the obligation of Company to make payments thereunder in the event of early
termination thereof (all such obligations being the "INTEREST RATE
OBLIGATIONS"), together with all obligations of Company under the Credit
Agreement and the other Loan Documents, be guarantied hereunder.
C. Guarantied Party, Lenders and each Interest Rate Exchanger for which
Guarantied Party has received the notice required by Section 18 hereof are
sometimes referred to herein as "BENEFICIARIES".
D. A portion of the proceeds of the Loans may be advanced to other
Guarantors that are Subsidiaries of Company, and thus the Guarantied Obligations
(as hereinafter defined) are being incurred for and will inure to the benefit of
Guarantors (which benefits are hereby acknowledged).
E. It is a condition precedent to the making of the initial Loans under
the Credit Agreement that Company's obligations thereunder be guarantied by
Guarantors.
XII-1
F. Guarantors are willing irrevocably and unconditionally to guaranty
such obligations of Company.
NOW, THEREFORE, based upon the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to induce Lenders and Guarantied Party to enter into the Credit
Agreement and to make Loans and other extensions of credit thereunder and to
induce Interest Rate Exchangers to enter into the Lender Interest Rate
Agreements, Guarantors hereby agree as follows:
1. GUARANTY. (a) In order to induce Lenders to extend credit to Company
pursuant to the Credit Agreement and the entry by Interest Rate Exchangers into
the Lender Interest Rate Agreements, Guarantors jointly and severally
irrevocably and unconditionally guaranty, as primary obligors and not merely as
sureties, the due and punctual payment in full of all Guarantied Obligations (as
hereinafter defined) when the same shall become due, whether at stated maturity,
by acceleration, demand or otherwise (including amounts that would become due
but for the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. Section 362(a)). The term "GUARANTIED OBLIGATIONS" is
used herein in its most comprehensive sense and includes any and all Obligations
of Company and all obligations of Company under Lender Interest Rate Agreements,
now or hereafter made, incurred or created, whether absolute or contingent,
liquidated or unliquidated, whether due or not due, and however arising under or
in connection with the Credit Agreement, the Lender Interest Rate Agreements,
this Guaranty and the other Loan Documents, including those arising under
successive borrowing transactions under the Credit Agreement which shall either
continue the Obligations of Company or from time to time renew them after they
have been satisfied.
Each Guarantor acknowledges that a portion of the Loans may be advanced
to it, that Letters of Credit may be issued for the benefit of its business and
that the Guarantied Obligations are being incurred for and will inure to its
benefit.
Any interest on any portion of the Guarantied Obligations that accrues
after the commencement of any proceeding, voluntary or involuntary, involving
the bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of Company (or, if interest on any portion of the Guarantied
Obligations ceases to accrue by operation of law by reason of the commencement
of said proceeding, such interest as would have accrued on such portion of the
Guarantied Obligations if said proceeding had not been commenced) shall be
included in the Guarantied Obligations because it is the intention of each
Guarantor and Guarantied Party that the Guarantied Obligations should be
determined without regard to any rule of law or order that may relieve Company
of any portion of such Guarantied Obligations.
In the event that all or any portion of the Guarantied Obligations is
paid by Company, the obligations of each Guarantor hereunder shall continue and
remain in full force and effect or be reinstated, as the case may be, in the
event that all or any part of such payment(s) is rescinded or recovered directly
or indirectly from Guarantied Party or any other Beneficiary as a preference,
fraudulent transfer or otherwise, and any such payments that are so rescinded or
recovered shall constitute Guarantied Obligations.
XII-2
Subject to the other provisions of this Section 1, upon the failure of
Company to pay any of the Guarantied Obligations when and as the same shall
become due, each Guarantor will upon demand pay, or cause to be paid, in cash,
to Guarantied Party for the ratable benefit of Beneficiaries, an amount equal to
the aggregate of the unpaid Guarantied Obligations.
(b) Anything contained in this Guaranty to the contrary
notwithstanding, the obligations of each Guarantor under this Guaranty and the
other Loan Documents shall be limited to a maximum aggregate amount equal to the
largest amount that would not render its obligations hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11
of the United States Code or any applicable provisions of comparable state law
(collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect
to all other liabilities of such Guarantor, contingent or otherwise, that are
relevant under the Fraudulent Transfer Laws (specifically excluding, however,
any liabilities of such Guarantor (x) in respect of intercompany indebtedness to
Company or other affiliates of Company to the extent that such indebtedness
would be discharged in an amount equal to the amount paid by such Guarantor
hereunder and (y) under any guaranty of Subordinated Indebtedness which guaranty
contains a limitation as to maximum amount similar to that set forth in this
Section 1(b), pursuant to which the liability of such Guarantor hereunder is
included in the liabilities taken into account in determining such maximum
amount) and after giving effect as assets to the value (as determined under the
applicable provisions of the Fraudulent Transfer Laws) of any rights to
subrogation, reimbursement, indemnification or contribution of such Guarantor
pursuant to applicable law or pursuant to the terms of any agreement.
(c) Each Guarantor under this Guaranty, and each guarantor under other
guaranties, if any, relating to the Credit Agreement (the "RELATED GUARANTIES")
that contain a contribution provision similar to that set forth in this Section
1(c), together desire to allocate among themselves (collectively, the
"CONTRIBUTING GUARANTORS"), in a fair and equitable manner, their obligations
arising under this Guaranty and the Related Guaranties. Accordingly, in the
event any payment or distribution is made on any date by a Guarantor under this
Guaranty or a guarantor under a Related Guaranty, each such Guarantor or such
other guarantor shall be entitled to a contribution from each of the other
Contributing Guarantors in the maximum amount permitted by law so as to maximize
the aggregate amount of the Guarantied Obligations paid to Beneficiaries.
2. GUARANTY ABSOLUTE; CONTINUING GUARANTY. The obligations of each
Guarantor hereunder are irrevocable, absolute, independent and unconditional and
shall not be affected by any circumstance which constitutes a legal or equitable
discharge of any other guarantor or surety other than payment in full of the
Guarantied Obligations. In furtherance of the foregoing and without limiting the
generality thereof, each Guarantor agrees that: (a) this Guaranty is a guaranty
of payment when due and not of collectibility; (b) Guarantied Party may enforce
this Guaranty upon the occurrence and during the continuance of an Event of
Default under the Credit Agreement or the occurrence of an early termination
date or similar event under any Lender Interest Rate Agreements notwithstanding
the existence of any dispute between Company and any Beneficiary with respect to
the existence of such event; (c) the obligations of each Guarantor hereunder are
independent of the obligations of Company under the Loan
XII-3
Documents or the Lender Interest Rate Agreements and the obligations of any
other guarantor, and a separate action or actions may be brought and prosecuted
against each Guarantor whether or not any action is brought against Company or
any of such other guarantors and whether or not Company is joined in any such
action or actions; and (d) a payment of a portion, but not all, of the
Guarantied Obligations by one or more Guarantors shall in no way limit, affect,
modify or abridge the liability of such or any other Guarantor for any portion
of the Guarantied Obligations that has not been paid. This Guaranty is a
continuing guaranty and shall be binding upon each Guarantor and its successors
and assigns, and each Guarantor irrevocably waives any right to revoke this
Guaranty as to future transactions giving rise to any Guarantied Obligations.
3. ACTIONS BY BENEFICIARIES. Any Beneficiary may from time to time,
without notice or demand and without affecting the validity or enforceability of
this Guaranty or giving rise to any limitation, impairment or discharge of any
Guarantor's liability hereunder, (a) renew, extend, accelerate, or otherwise
change the time, place, manner or terms of payment of the Guarantied
Obligations, (b) settle, compromise, release or discharge, or accept or refuse
any offer of performance with respect to, or substitutions for, the Guarantied
Obligations or any agreement relating thereto and/or subordinate the payment of
the same to the payment of any other obligations, (c) request and accept other
guaranties of the Guarantied Obligations and take and hold security for the
payment of this Guaranty or the Guarantied Obligations, (d) release, exchange,
compromise, subordinate or modify, with or without consideration, any security
for payment of the Guarantied Obligations, any other guaranties of the
Guarantied Obligations, or any other obligation of any Person with respect to
the Guarantied Obligations, (e) enforce and apply any security now or hereafter
held by or for the benefit of any Beneficiary in respect of this Guaranty or the
Guarantied Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that Guarantied Party or the other
Beneficiaries, or any of them, may have against any such security, as Guarantied
Party in its discretion may determine consistent with the Credit Agreement, the
Lender Interest Rate Agreements and any applicable security agreement, including
foreclosure on any such security pursuant to one or more judicial or nonjudicial
sales, whether or not every aspect of any such sale is commercially reasonable
and (f) exercise any other rights available to Guarantied Party or the other
Beneficiaries, or any of them, under the Loan Documents or the Lender Interest
Rate Agreements.
4. NO DISCHARGE. This Guaranty and the obligations of Guarantors
hereunder shall be valid and enforceable and shall not be subject to any
limitation, impairment, or discharge for any reason (other than payment in full
of the Guarantied Obligations), including without limitation the occurrence of
any of the following, whether or not any Guarantor shall have had notice or
knowledge of any of them: (a) any failure to assert or enforce or agreement not
to assert or enforce, or the stay or enjoining, by order of court, by operation
of law or otherwise, of the exercise or enforcement of, any claim or demand or
any right, power or remedy with respect to the Guarantied Obligations or any
agreement relating thereto, or with respect to any other guaranty of or security
for the payment of the Guarantied Obligations, (b) any waiver or modification
of, or any consent to departure from, any of the terms or provisions of the
Credit Agreement, any of the other Loan Documents, the Lender Interest Rate
Agreements or any agreement or instrument executed pursuant thereto, or of any
other guaranty or security for the Guarantied Obligations, (c) the Guarantied
Obligations, or any agreement relating thereto, at any time being found to be
illegal, invalid or unenforceable in any respect, (d) the application of
XII-4
payments received from any source to the payment of indebtedness other than the
Guarantied Obligations, even though Guarantied Party or the other Beneficiaries,
or any of them, might have elected to apply such payment to any part or all of
the Guarantied Obligations, (e) any failure to perfect or continue perfection of
a security interest in any collateral which secures any of the Guarantied
Obligations, (f) any defenses, set-offs or counterclaims which Company may
assert against Guarantied Party or any Beneficiary in respect of the Guarantied
Obligations, including but not limited to failure of consideration, breach of
warranty, payment, statute of frauds, statute of limitations, accord and
satisfaction and usury, and (g) any other act or thing or omission, or delay to
do any other act or thing, which may or might in any manner or to any extent
vary the risk of a Guarantor as an obligor in respect of the Guarantied
Obligations.
5. WAIVERS. Each Guarantor waives, for the benefit of Beneficiaries:
(a) any right to require Guarantied Party or the other Beneficiaries, as a
condition of payment or performance by such Guarantor, to (i) proceed against
Company, any other guarantor of the Guarantied Obligations or any other Person,
(ii) proceed against or exhaust any security held from Company, any other
guarantor of the Guarantied Obligations or any other Person, (iii) proceed
against or have resort to any balance of any deposit account or credit on the
books of any Beneficiary in favor of Company or any other Person, or (iv) pursue
any other remedy in the power of any Beneficiary; (b) any defense arising by
reason of the incapacity, lack of authority or any disability or other defense
of Company, including, without limitation, any defense based on or arising out
of the lack of validity or the unenforceability of the Guarantied Obligations or
any agreement or instrument relating thereto or by reason of the cessation of
the liability of Company from any cause other than payment in full of the
Guarantied Obligations; (c) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than that of the principal; (d) any
defense based upon Guarantied Party's or any other Beneficiary's errors or
omissions in the administration of the Guarantied Obligations, except behavior
that amounts to bad faith or gross negligence; (e) (i) any principles or
provisions of law, statutory or otherwise, that are or might be in conflict with
the terms of this Guaranty and any legal or equitable discharge of such
Guarantor's obligations hereunder, (ii) the benefit of any statute of
limitations affecting such Guarantor's liability hereunder or the enforcement
hereof, (iii) any rights to set-offs, recoupments and counterclaims, and (iv)
promptness, diligence and any requirement that any Beneficiary protect, secure,
perfect or insure any Lien or any property subject thereto; (f) notices,
demands, presentments, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance of this Guaranty,
notices of default under the Credit Agreement, notices of default or early
termination under any Lender Interest Rate Agreement or any agreement or
instrument related thereto, notices of any renewal, extension or modification of
the Guarantied Obligations or any agreement related thereto, notices of any
extension of credit to Company and notices of any of the matters referred to in
Sections 3 and 4 and any right to consent to any thereof; and (g) to the fullest
extent permitted by law, any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate guarantors or
sureties, or which may conflict with the terms of this Guaranty.
As used in this paragraph, any reference to "the principal" includes
Company, and any reference to "the creditor" includes Guarantied Party and each
other Beneficiary. In accordance with Section 2856 of the California Civil Code
(a) each Guarantor waives any and all rights and
XII-5
defenses available to it by reason of Sections 2787 to 2855, inclusive, of the
California Civil Code, including, without limitation, any and all rights or
defenses such Guarantor or any other guarantor of the Guarantied Obligations may
have because the Guarantied Obligations are secured by real property. This
means, among other things: (1) the creditor may collect from such Guarantor
without first foreclosing on any real or personal property collateral pledged by
the principal; and (2) if the creditor forecloses on any real property
collateral pledged by the principal: (A) the amount of the Guarantied
Obligations may be reduced only by the price for which the collateral is sold at
the foreclosure sale, even if the collateral is worth more than the sale price
and (B) the creditor may collect from such Guarantor even if the creditor, by
foreclosing on the real property collateral, has destroyed any right such
Guarantor may have to collect from the principal. This is an unconditional and
irrevocable waiver of any right and defenses such Guarantor may have because the
Guarantied Obligations are secured by real property. These rights and defenses
include, but are not limited to, any rights and defenses based upon Section
580a, 580b, 580d, or 726 of the California Code of Civil Procedure. Each
Guarantor also waives all rights and defenses arising out of an election of
remedies by the creditor, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for a Guarantied Obligation,
has destroyed such Guarantor's rights of subrogation and reimbursement against
the principal by the operation of Section 580d of the Code of Civil Procedure or
otherwise; and even though that election of remedies by the creditor, such as
nonjudicial foreclosure with respect to security for an obligation of any other
guarantor of any of the Guarantied Obligations, has destroyed such Guarantor's
rights of contribution against such other guarantor. No other provision of this
Guaranty shall be construed as limiting the generality of any of the covenants
and waivers set forth in this paragraph. As provided below, this Guaranty shall
be governed by, and shall be construed and enforced in accordance with, the
internal laws of the State of New York, without regard to conflicts of laws
principles. This paragraph is included solely out of an abundance of caution,
and shall not be construed to mean that any of the above-referenced provisions
of California law are in any way applicable to this Guaranty or to any of the
Guarantied Obligations.
6. GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC.; SUBORDINATION
OF OTHER OBLIGATIONS. Each Guarantor waives any claim, right or remedy, direct
or indirect, that such Guarantor now has or may hereafter have against Company
or any of its assets in connection with this Guaranty or the performance by such
Guarantor of its obligations hereunder, in each case whether such claim, right
or remedy arises in equity, under contract, by statute (including without
limitation under California Civil Code Section 2847, 2848 or 2849), under common
law or otherwise and including without limitation (a) any right of subrogation,
reimbursement or indemnification that such Guarantor now has or may hereafter
have against Company, (b) any right to enforce, or to participate in, any claim,
right or remedy that any Beneficiary now has or may hereafter have against
Company, and (c) any benefit of, and any right to participate in, any collateral
or security now or hereafter held by any Beneficiary. In addition, until the
Guarantied Obligations shall have been paid in full and the Commitments shall
have terminated and all Letters of Credit shall have expired or been cancelled,
each Guarantor shall withhold exercise of any right of contribution such
Guarantor may have against any other guarantor of any of the Guarantied
Obligations. Each Guarantor further agrees that, to the extent the waiver or
agreement to withhold the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of
competent jurisdiction
XII-6
to be void or voidable for any reason, any rights of subrogation, reimbursement
or indemnification such Guarantor may have against Company or against any
collateral or security, and any rights of contribution such Guarantor may have
against any such other guarantor, shall be junior and subordinate to any rights
Guarantied Party or the other Beneficiaries may have against Company, to all
right, title and interest Guarantied Party or the other Beneficiaries may have
in any such collateral or security, and to any right Guarantied Party or the
other Beneficiaries may have against such other guarantor.
Any indebtedness of Company now or hereafter held by any Guarantor is
subordinated in right of payment to the Guarantied Obligations, and any such
indebtedness of Company to a Guarantor collected or received by such Guarantor
after an Event of Default has occurred and is continuing, and any amount paid to
a Guarantor on account of any subrogation, reimbursement, indemnification or
contribution rights referred to in the preceding paragraph when all Guarantied
Obligations have not been paid in full, shall be held in trust for Guarantied
Party on behalf of Beneficiaries and shall forthwith be paid over to Guarantied
Party for the benefit of Beneficiaries to be credited and applied against the
Guarantied Obligations.
7. EXPENSES. Guarantors jointly and severally agree to pay, or cause to
be paid, on demand, and to save Guarantied Party and the other Beneficiaries
harmless against liability for, (i) any and all costs and expenses (including
reasonable fees, costs of settlement, and disbursements of counsel and allocated
costs of internal counsel) incurred or expended by Guarantied Party or any other
Beneficiary in connection with the enforcement of or preservation of any rights
under this Guaranty and (ii) any and all costs and expenses (including those
arising from rights of indemnification) required to be paid by Guarantors under
the provisions of any other Loan Document.
8. FINANCIAL CONDITION OF COMPANY. No Beneficiary shall have any
obligation, and each Guarantor waives any duty on the part of any Beneficiary,
to disclose or discuss with such Guarantor its assessment, or such Guarantor's
assessment, of the financial condition of Company or any matter or fact relating
to the business, operations or condition of Company. Each Guarantor has adequate
means to obtain information from Company on a continuing basis concerning the
financial condition of Company and its ability to perform its obligations under
the Loan Documents and the Lender Interest Rate Agreements and each Guarantor
assumes the responsibility for being and keeping informed of the financial
condition of Company and of all circumstances bearing upon the risk of
nonpayment of the Guarantied Obligations.
9. REPRESENTATIONS AND WARRANTIES. Each Guarantor makes, for the
benefit of Beneficiaries, each of the representations and warranties made in the
Credit Agreement by Company as to such Guarantor, its assets, financial
condition, operations, organization, legal status, business and the Loan
Documents to which it is a party.
10. COVENANTS. Each Guarantor agrees that, so long as any part of the
Guarantied Obligations shall remain unpaid, any Letter of Credit shall be
outstanding, or any Lender shall have any Commitment or any Interest Rate
Exchanger shall have any obligation under any Lender Interest Rate Agreement,
such Guarantor will, unless Requisite Lenders shall otherwise consent in
writing, perform or observe, and cause such Guarantor's Subsidiaries to perform
or
XII-7
observe, all of the terms, covenants and agreements that the Loan Documents
state that Company is to cause a Guarantor and such Subsidiaries to perform or
observe.
11. SET OFF. In addition to any other rights any Beneficiary may have
under law or in equity, if any amount shall at any time be due and owing by a
Guarantor to any Beneficiary under this Guaranty, such Beneficiary is authorized
at any time or from time to time, without notice (any such notice being
expressly waived), to set off and to appropriate and to apply any and all
deposits (general or special, including but not limited to indebtedness evidence
by certificates of deposit, whether matured or unmatured) and any other
indebtedness of such Beneficiary owing to a Guarantor and any other property of
such Guarantor held by a Beneficiary to or for the credit or the account of such
Guarantor against and on account of the Guarantied Obligations and liabilities
of such Guarantor to any Beneficiary under this Guaranty.
12. DISCHARGE OF GUARANTY UPON SALE OF GUARANTOR. Upon the proposed
sale or other disposition (including by merger or consolidation) of the stock of
a Guarantor or any of its successors in interest under this Guaranty in
accordance with the Credit Agreement, such Guarantor or such successor in
interest, as the case may be, may request Guarantied Party to execute and
deliver documents or instruments necessary to evidence the release and discharge
of this Guaranty pursuant to the provisions of subsection 10.14 of the Credit
Agreement.
13. AMENDMENTS AND WAIVERS. No amendment, modification, termination or
waiver of any provision of this Guaranty, and no consent to any departure by any
Guarantor therefrom, shall in any event be effective without the written
concurrence of Guarantied Party and, in the case of any such amendment or
modification, Guarantors. Any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given.
14. MISCELLANEOUS. It is not necessary for Beneficiaries to inquire
into the capacity or powers of any Guarantor or Company or the officers,
directors or any agents acting or purporting to act on behalf of any of them.
The rights, powers and remedies given to Beneficiaries by this Guaranty
are cumulative and shall be in addition to and independent of all rights, powers
and remedies given to Beneficiaries by virtue of any statute or rule of law or
in any of the Loan Documents or Lender Interest Rate Agreements or any agreement
between one or more Guarantors and one or more Beneficiaries or between Company
and one or more Beneficiaries. Any forbearance or failure to exercise, and any
delay by any Beneficiary in exercising, any right, power or remedy hereunder
shall not impair any such right, power or remedy or be construed to be a waiver
thereof, nor shall it preclude the further exercise of any such right, power or
remedy.
In case any provision in or obligation under this Guaranty shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF GUARANTORS, GUARANTIED
PARTY AND THE OTHER BENEFICIARIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND
XII-8
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
This Guaranty shall inure to the benefit of Beneficiaries and their
respective successors and assigns.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY GUARANTOR ARISING OUT OF
OR RELATING TO THIS GUARANTY MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE OF NEW YORK AND BY EXECUTION AND DELIVERY OF
THIS GUARANTY EACH GUARANTOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS
GUARANTY. Each Guarantor agrees that service of all process in any such
proceeding in any such court may be made by registered or certified mail, return
receipt requested, to such Guarantor at its address set forth below its
signature hereto or such other address as shall be designated by such Guarantor
in a written notice to the other parties hereto, such service being acknowledged
by such Guarantor to be sufficient for personal jurisdiction in any action
against such Guarantor in any such court and to be otherwise effective and
binding service in every respect. Nothing herein shall affect the right to serve
process in any other manner permitted by law or shall limit the right of
Guarantied Party or any Beneficiary to bring proceedings against such Guarantor
in the courts of any other jurisdiction.
EACH GUARANTOR AND, BY ITS ACCEPTANCE OF THE BENEFITS HEREOF,
GUARANTIED PARTY EACH AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY. The
scope of this waiver is intended to be all encompassing of any and all disputes
that may be filed in any court and that relate to the subject matter of this
transaction, including, without limitation, contract claims, tort claims, breach
of duty claims and all other common law and statutory claims. Each Guarantor
and, by its acceptance of the benefits hereof, Guarantied Party, for and on
behalf of itself and the other Lenders, (i) acknowledges that this waiver is a
material inducement for such Guarantor and Beneficiaries to enter into a
business relationship, that such Guarantor and Guarantied Party have already
relied on this waiver in entering into this Guaranty or accepting the benefits
thereof, as the case may be, and that each will continue to rely on this waiver
in their related future dealings, and (ii) further warrants and represents that
each has reviewed this waiver with its legal counsel and that each knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS OF THIS GUARANTY. In the event of
litigation, this Guaranty may be filed as a written consent to a trial by the
court.
XII-9
15. ADDITIONAL GUARANTORS. The initial Guarantor(s) hereunder shall be
such of the Subsidiaries of Company as are signatories hereto on the date
hereof. From time to time subsequent to the date hereof, Subsidiaries of Company
may become parties hereto, as additional Guarantors (each an "ADDITIONAL
GUARANTOR"), by executing a counterpart of this Guaranty. A form of such a
counterpart is attached as Exhibit A. Upon delivery of any such counterpart to
Guarantied Party, notice of which is hereby waived by Guarantors, each such
Additional Guarantor shall be a Guarantor and shall be as fully a party hereto
as if such Additional Guarantor were an original signatory hereof. Each
Guarantor expressly agrees that its obligations arising hereunder shall not be
affected or diminished by the addition or release of any other Guarantor
hereunder, nor by any election of the Guarantied Party not to cause any
Subsidiary of Company to become an Additional Guarantor hereunder. This Guaranty
shall be fully effective as to any Guarantor that is or becomes a party hereto
regardless of whether any other Person becomes or fails to become or ceases to
be a Guarantor hereunder.
16. COUNTERPARTS; EFFECTIVENESS. This Guaranty may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original for all purposes; but all such counterparts together shall
constitute but one and the same instrument. This Guaranty shall become effective
as to each Guarantor upon the execution of a counterpart hereof by such
Guarantor (whether or not a counterpart hereof shall have been executed by any
other Guarantor) and receipt by the Guarantied Party of written or telephonic
notification of such execution and authorization of delivery thereof.
17. GUARANTIED PARTY AS AGENT.
(a) Guarantied Party has been appointed to act as Guarantied
Party hereunder by Lenders. Guarantied Party shall be obligated, and shall have
the right hereunder, to make demands, to give notices, to exercise or refrain
from exercising any rights, and to take or refrain from taking any action,
solely in accordance with this Guaranty and the Credit Agreement.
(b) Guarantied Party shall at all times be the same Person
that is Administrative Agent under the Credit Agreement. Written notice of
resignation by Administrative Agent pursuant to subsection 9.5 of the Credit
Agreement shall also constitute notice of resignation as Guarantied Party under
this Guaranty and appointment of a successor Administrative Agent pursuant to
subsection 9.5 of the Credit Agreement shall also constitute appointment of a
successor Guarantied Party under this Guaranty. Upon the acceptance of any
appointment as Administrative Agent under subsection 9.5 of the Credit Agreement
by a successor Administrative Agent, that successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Guarantied Party under this Guaranty, and the
retiring Guarantied Party under this Guaranty shall promptly (i) transfer to
such successor Guarantied Party all sums held hereunder, together with all
records and other documents necessary or appropriate in connection with the
performance of the duties of the successor Guarantied Party under this Guaranty,
and (ii) take such other actions as may be necessary or appropriate in
connection with the assignment to such successor Guarantied Party of the rights
created hereunder, whereupon such retiring Guarantied Party shall be discharged
XII-10
from its duties and obligations under this Guaranty. After any retiring
Guarantied Party's resignation hereunder as Guarantied Party, the provisions of
this Guaranty shall inure to its benefit as to any actions taken or omitted to
be taken by it under this Guaranty while it was Guarantied Party hereunder.
18. NOTICE OF INTEREST RATE AGREEMENTS. Guarantied Party shall not be
deemed to have any duty whatsoever with respect to any Interest Rate Exchanger
until it shall have received written notice in form and substance satisfactory
to Guarantied Party from Company, a Guarantor or the Interest Rate Exchanger as
to the existence and terms of the applicable Lender Interest Rate Agreement.
XII-11
IN WITNESS WHEREOF, each Guarantor and Guarantied Party, solely for the
purposes of the waiver of the right to jury trial contained in Section 14, have
caused this Guaranty to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date first written above.
[NAME OF GRANTOR]
By:
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Name:
----------------------------------------
Address:
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[NAME OF GRANTOR]
By:
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Name:
----------------------------------------
Address:
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[NAME OF GRANTOR]
By:
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Name:
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Address:
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CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
By:
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Name:
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Address:
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XII-12
EXHIBIT A
[FORM OF COUNTERPART FOR ADDITIONAL GUARANTORS]
This COUNTERPART (this "COUNTERPART"), dated _______, 20__, is
delivered pursuant to Section 15 of the Guaranty referred to below. The
undersigned hereby agrees that this Counterpart may be attached to the Guaranty,
dated as of _____________, 20___ (as it may be from time to time amended,
modified or supplemented, the "GUARANTY"; capitalized terms used herein not
otherwise defined herein shall have the meanings ascribed therein), among the
Guarantors named therein and Credit Suisse First Boston, as Guarantied Party.
The undersigned, by executing and delivering this Counterpart, hereby becomes an
Additional Guarantor under the Guaranty in accordance with Section 15 thereof
and agrees to be bound by all of the terms thereof.
IN WITNESS WHEREOF, the undersigned has caused this Counterpart to be
duly executed and delivered by its officer thereunto duly authorized as of
______________, 20__.
[NAME OF ADDITIONAL GUARANTOR]
By:
__________________________________________
Name:
________________________________________
Address:
_______________________________
_______________________________
_______________________________
XII-13
EXHIBIT XIII
[FORM OF FINANCIAL CONDITION CERTIFICATE]
FINANCIAL CONDITION CERTIFICATE
This FINANCIAL CONDITION CERTIFICATE (this "CERTIFICATE") is delivered
in connection with that certain Credit Agreement dated as of August 22, 2002
(the "CREDIT AGREEMENT") by and among URS Corporation, a Delaware corporation
("COMPANY"), the financial institutions referred to therein as Lenders
("LENDERS"), Credit Suisse First Boston, as a Co-Lead Arranger and
administrative agent for Lenders (in such capacity, "ADMINISTRATIVE AGENT"),
Xxxxx Fargo Bank, National Association, as a Co-Lead Arranger and syndication
agent for Lenders, and Bank of Montreal, BNP Paribas and The Royal Bank of
Scotland PLC, as documentation agents for Lenders. Capitalized terms used herein
without definition have the same meanings as in the Credit Agreement.
A. I am, and at all pertinent times mentioned herein have been, the
duly qualified and acting chief financial officer of Company. In such capacity I
have participated actively in the management of its financial affairs and am
familiar with its financial statements and those of its Subsidiaries. I have,
together with other officers of Company, acted on behalf of Company in
connection with the evaluation and negotiation of the proposed acquisition of
Carlyle-EG&G Holdings Corp. and Xxxx Xxxxxxx Services, Inc. and the negotiation
of the Credit Agreement and I am familiar with the terms and conditions thereof.
B. I have carefully reviewed the contents of this Certificate, and I
have conferred with counsel for Company for the purpose of discussing the
meaning of its contents.
C. In connection with preparing for the Merger and the consummation of
the transactions and financings contemplated by the Credit Agreement (the
"PROPOSED TRANSACTIONS"), I have participated in the preparation of, and I have
reviewed, projections of net income and cash flows for Company and its
Subsidiaries for the fiscal years of Company ending October 31, 2002 through
October 31, 2006, inclusive (the "PROJECTED FINANCIAL STATEMENTS"). The
Projected Financial Statements, attached hereto as Exhibit A, give effect to the
consummation of the Proposed Transactions. The Projected Financial Statements
were prepared on the basis of information available as of ___________, 2002. I
know of no facts that have occurred since such date that would lead me to
reasonably believe that the Projected Financial Statements are inaccurate in any
material respect. The Projected Financial Statements do not reflect (i) any
potential changes in interest rates from those assumed as the initial interest
rates in the Projected Financial Statements, (ii) any potential material,
adverse changes in general business conditions, or (iii) any potential changes
in income tax laws.
D. In connection with the preparation of the Projected Financial
Statements, I have made such investigations and inquiries as I have deemed
reasonably necessary and prudent therefor and, specifically, have relied on
historical information with respect to revenues, expenses and other relevant
items supplied by the supervisory personnel of Company and its Subsidiaries
directly responsible for the various operations involved. The assumptions upon
which the Projected Financial Statements are based are stated therein. Although
any
XIII-1
assumptions and any projections by necessity involve uncertainties and
approximations, I believe, based on my discussions with other members of
management, that the assumptions on which the Projected Financial Statements are
based are reasonable. Based thereon, I believe to the best of my knowledge that
the projections for Company and its Subsidiaries, taken as a whole, reflected in
the Projected Financial Statements provide reasonable estimations of future
performance, subject, as stated above, to the uncertainties and approximations
inherent in any projections.
Based on the foregoing, I have reached the following conclusions:
1. Company is not now, nor will the incurrence of the Obligations under
the Credit Agreement and the incurrence of the other obligations contemplated by
the Proposed Transactions render Company "insolvent" as defined in this
paragraph 1. The recipients of this Certificate and I have agreed that, in this
context, "insolvent" means that the present fair value of assets is less than
the amount that will be required to pay the probable liability on existing debts
as they become absolute and matured. We have also agreed that the term "debts"
includes any legal liability, whether matured or unmatured, liquidated or
unliquidated, absolute, fixed or contingent.
2. By the incurrence of the Obligations under the Credit Agreement and
the incurrence of the other obligations contemplated by the Proposed
Transactions, Company will not incur debts beyond its ability to pay as such
debts mature. I have based my conclusion in part on the Projected Financial
Statements, which demonstrate that Company will have positive cash flow after
paying all of its scheduled anticipated indebtedness (including scheduled
payments under the Credit Agreement, the other obligations contemplated by the
Proposed Transactions and other currently outstanding permitted indebtedness). I
have concluded that, as of the date hereof, the realization of current assets in
the ordinary course of business will be sufficient to pay recurring current debt
and short-term and long-term debt service as such debts mature, and that the
cash flow (including earnings plus non-cash charges to earnings and the
disposition of surplus fixed assets held for sale) will be sufficient to provide
cash necessary to repay the Loans and other Obligations under the Credit
Agreement, the other obligations contemplated by the Proposed Transactions and
other long-term indebtedness as such debt matures.
3. The incurrence of the Obligations under the Credit Agreement and the
incurrence of the other obligations contemplated by the Proposed Transactions
will not leave Company with property remaining in its hands constituting
"unreasonably small capital." In reaching this conclusion, I understand that
"unreasonably small capital" depends upon the nature of the particular business
or businesses conducted or to be conducted, and I have reached my conclusion
based on the needs and anticipated needs for capital of the businesses conducted
or anticipated to be conducted by Company and its Subsidiaries in light of the
Projected Financial Statements and available credit capacity.
4. To the best of my knowledge, Company has not executed the Credit
Agreement or any documents mentioned therein, or made any transfer or incurred
any obligations thereunder, with actual intent to hinder, delay or defraud
either present or future creditors.
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I understand that Administrative Agent and Lenders are relying on the
truth and accuracy of the foregoing in connection with the extension of credit
to Company pursuant to the Credit Agreement.
I represent the foregoing information to be, to the best of my
knowledge and belief, true and correct and execute this Certificate this ____
day of August 2002.
The undersigned executes this Certificate as an officer of the Company
and not in the undersigned's individual capacity.
URS CORPORATION
By:
_________________________________________
Name:
_______________________________________
Title:
______________________________________
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