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EXHIBIT 10.20
CREDIT AGREEMENT
among
EYE CARE CENTERS OF AMERICA, INC.,
VARIOUS LENDERS,
BANKERS TRUST COMPANY,
as ADMINISTRATIVE AGENT
and
XXXXXXX XXXXX CAPITAL CORPORATION,
as SYNDICATION AGENT
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Dated as of April 23, 1998
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CREDIT AGREEMENT, dated as of April 23, 1998, among EYE CARE CENTERS
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OF AMERICA, INC., a Texas corporation (the "Borrower"), the Lenders party hereto
from time to
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time, BANKERS TRUST COMPANY, as Administrative Agent (in such capacity, the
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"Administrative Agent") and XXXXXXX XXXXX CAPITAL CORPORATION, as Syndication
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Agent (in such capacity, the "Syndication Agent" and, together with the
Administrative Agent, each
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an "Agent" and collectively the "Agents") (all capitalized terms used herein and
defined in Section
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11 are used herein as therein defined).
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W I T N E S S E T H :
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WHEREAS, subject to and upon the terms and conditions herein set
forth, the Lenders are willing to make available to the Borrower the respective
credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 THE COMMITMENTS. (a) Subject to and upon the terms and
conditions set forth herein, each Lender with a Term Loan Commitment severally
agrees to make, on the Initial Borrowing Date, a term loan (each, a "Term Loan"
and, collectively, the "Term Loans") to the Borrower, which Term Loans (i) shall
be made and initially maintained as a single Borrowing of Base Rate Loans
(subject to the option to convert such Term Loans pursuant to Section 1.06) and
(ii) shall be made by each Lender in that initial aggregate principal amount as
is equal to the Term Loan Commitment of such Lender on such date (before giving
effect to any reductions thereto on such date pursuant to Section 3.03(b)(i) but
after giving effect to any reductions thereto on or prior to such date pursuant
to Section 3.03(b)(ii)). Once repaid, Term Loans incurred hereunder may not be
reborrowed.
(b) Subject to and upon the terms and conditions set forth herein,
each Lender with an Acquisition Loan Commitment severally agrees to make, from
time to time, on and after the Initial Borrowing Date, and prior to the
Acquisition Facility Expiry Date, a term loan or term loans (each such loan
incurred prior to the Acquisition Facility Reduction Date, an "A Acquisition
Loan" and any such loan incurred on or after the Acquisition Facility Reduction
Date a "B Acquisition Loan" and each such A Acquisition Loan and B Acquisition
Loan, an "Acquisition Loan" and, collectively, the "Acquisition Loans") to the
Borrower, which Acquisition Loans (i) shall, at the option of the Borrower, be
Base Rate Loans or Eurodollar Loans, PROVIDED that (A) except as otherwise
specifically provided in Section 1.10(b), all Acquisition Loans comprising the
same Borrowing shall at all times be of the same Type and (B) prior to the
earlier of (1) the 65th day after the Initial Borrowing Date and (2) the
Syndication Date, Acquisition Loans may only be incurred as Eurodollar Loans to
the extent comprising all or part of a single Borrowing of Eurodollar Loans
incurred on the first day of a PSD Interest Period, and (ii) shall not exceed
for any Lender at the time of incurrence thereof that aggregate principal amount
which equals the Acquisition Loan Commitment of such Lender (after giving effect
to the assumption of any Acquisition Loan Commitments on such date pursuant to
Section 1.14 but before giving effect to any reductions on such date pursuant to
Section 3.03(c)(i) and after giving effect to any reductions thereto prior to
such date under 3.03(c)(i) and on or prior to such date pursuant to Section
3.03(c)(ii)). Once repaid, Acquisition Loans incurred hereunder may not be
reborrowed.
(c) Subject to and upon the terms and conditions set forth herein,
each Lender with a Revolving Loan Commitment severally agrees, at any time and
from time to time on and after the Initial Borrowing Date and prior to the RL/AL
Maturity Date, to make a revolving loan or revolving loans (each, a "Revolving
Loan" and, collectively, the "Revolving Loans") to the Borrower, which
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Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans or
Eurodollar Loans, PROVIDED that (A) except as otherwise specifically provided in
Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all
times be of the same Type and (B) prior to the earlier of (1) the 65th day after
the Initial Borrowing Date and (2) the Syndication Date, Revolving Loans may
only be incurred as Eurodollar Loans to the extent comprising all or part of a
single Borrowing of Eurodollar Loans incurred on the first day of a PSD Interest
Period, (ii) may be repaid and reborrowed in accordance with the provisions
hereof, (iii) shall not exceed for any Lender at any time outstanding that
aggregate principal amount which, when added to the product of (x) such Lender's
Percentage and (y) the sum of (I) the aggregate amount of all Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time and (II) the aggregate principal amount of all
Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such
Lender at such time and (iv) shall not exceed for all Lenders at any time
outstanding that aggregate principal amount which, when added to (x) the amount
of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) at such time and (y) the aggregate
principal amount of all Swingline Loans (exclusive of Swingline Loans which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) then outstanding, equals the Total
Available Revolving Loan Commitment at such time.
(d) Subject to and upon the terms and conditions herein set forth,
the Swingline Lender in its individual capacity agrees to make at any time and
from time to time on and after the Initial Borrowing Date and prior to the
Swingline Expiry Date, a revolving loan or revolving loans (each, a "Swingline
Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline
Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid
and reborrowed in accordance with the provisions hereof, (iii) shall not exceed
in aggregate principal amount at any time outstanding, when combined with the
aggregate principal amount of all Revolving Loans then outstanding and the
Letter of Credit Outstandings at such time, an amount equal to the Total
Available Revolving Loan Commitment at such time (after giving effect to any
reductions to the Total Available Revolving Loan Commitment on such date), (iv)
shall not exceed at any time outstanding the Maximum Swingline Amount and (v)
shall not be extended if the Swingline Lender receives a written notice from any
Agent or the Required Lenders that has not been rescinded that there is a
Default or an Event of Default in existence hereunder. The Swingline Lender
shall not be obligated to make any Swingline Loans at a time when a Lender
Default exists unless the Swingline Lender has entered into arrangements
satisfactory to it and the Borrower to eliminate the Swingline Lender's risk
with respect to the Defaulting Lender's or Lenders' participation in such
Swingline Loans, including by cash collateralizing such Defaulting Lender's or
Lenders' Percentage of the outstanding Swingline Loans.
(e) On any Business Day, the Swingline Lender may, in its sole
discretion, give notice to the other Lenders that its outstanding Swingline
Loans shall be funded with a Borrowing
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of Revolving Loans (PROVIDED that such notice shall be deemed to have been
automatically given upon the occurrence of a Default or an Event of Default
under Section 10.05 or upon the exercise of any of the remedies provided in the
last paragraph of Section 10), in which case a Borrowing of Revolving Loans
constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing")
shall be made on the immediately succeeding Business Day by all Lenders with a
Revolving Loan Commitment (without giving effect to any reductions thereto
pursuant to the last paragraph of Section 10) PRO RATA based on each Lender's
Percentage (determined before giving effect to any termination of the Revolving
Loan Commitments pursuant to the last paragraph of Section 10) and the proceeds
thereof shall be applied directly to the Swingline Lender to repay the Swingline
Lender for such outstanding Swingline Loans. Each such Lender hereby irrevocably
agrees to make Revolving Loans upon one Business Day's notice pursuant to each
Mandatory Borrowing in the amount and in the manner specified in the preceding
sentence and on the date specified in writing by the Swingline Lender
notwithstanding (i) the amount of the Mandatory Borrowing may not comply with
the minimum amount for Borrowings otherwise required hereunder, (ii) whether any
conditions specified in Section 6 are then satisfied, (iii) whether a Default or
an Event of Default then exists, (iv) the date of such Mandatory Borrowing and
(v) the amount of the Total Revolving Loan Commitment or the Total Available
Revolving Loan Commitment at such time. In the event that any Mandatory
Borrowing cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a proceeding
under the Bankruptcy Code with respect to the Borrower), then each such Lender
hereby agrees that it shall forthwith purchase (as of the date the Mandatory
Borrowing would otherwise have occurred, but adjusted for any payments received
from the Borrower on or after such date and prior to such purchase) from the
Swingline Lender such participations in the outstanding Swingline Loans as shall
be necessary to cause such Lenders to share in such Swingline Loans ratably
based upon their respective Percentages (determined before giving effect to any
termination of the Revolving Loan Commitments pursuant to the last paragraph of
Section 10), PROVIDED that (x) all interest payable on the Swingline Loans shall
be for the account of the Swingline Lender until the date as of which the
respective participation is required to be purchased and, to the extent
attributable to the purchased participation, shall be payable to the participant
from and after such date and (y) at the time any purchase of participations
pursuant to this sentence is actually made, the purchasing Lender shall be
required to pay the Swingline Lender interest on the principal amount of
participation purchased for each day from and including the day upon which the
Mandatory Borrowing would otherwise have occurred to but excluding the date of
payment for such participation, at the overnight Federal Funds Rate for the
first three days and at the rate otherwise applicable to Revolving Loans
maintained as Base Rate Loans hereunder for each day thereafter. The Swingline
Lender shall not be obligated to make any Swingline Loans at a time when a
Lender Default exists unless the Swingline Lender has entered into arrangements
satisfactory to it and the Borrower to eliminate the Swingline Lender's risk
with respect to the Defaulting Lender's or Lenders' participation in such
Swingline Loans, including by cash collateralizing such Defaulting Lender's or
Lenders' Percentage of the outstanding Swingline Loans.
1.02 MINIMUM AMOUNT OF EACH BORROWING. (a) The aggregate principal
amount of each Borrowing of any Tranche of Loans shall not be less than the
Minimum Borrowing Amount
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for such Tranche. More than one Borrowing may occur on the same date, but at no
time prior to the earlier to occur of (i) the Syndication Date and (ii) the 65th
day after the Closing Date, shall there be outstanding more than one Borrowing
of Eurodollar Loans, and at no time thereafter shall there be outstanding more
than fifteen Borrowings of Eurodollar Loans.
1.03 NOTICE OF BORROWING. (a) Whenever the Borrower desires to make
a Borrowing hereunder (excluding Borrowings of Swingline Loans and Mandatory
Borrowings), it shall give the Administrative Agent at its Notice Office at
least one Business Day's prior written notice (or telephonic notice promptly
confirmed in writing) of each Base Rate Loan and at least three Business Days'
prior written notice (or telephonic notice promptly confirmed in writing) of
each Eurodollar Loan to be made hereunder, PROVIDED that any such notice shall
be deemed to have been given on a certain day only if given before 3:00 P.M.
(New York time) in the case of a Borrowing of Eurodollar Loans and 3:00 P.M.
(New York time) in the case of a Borrowing of Base Rate Loans on such day. Each
such written notice or written confirmation of telephonic notice (each, a
"Notice of Borrowing"), except as otherwise expressly provided in Section 1.10,
shall be irrevocable and shall be given by the Borrower in the form of Exhibit
A, appropriately completed to specify the aggregate principal amount of the
Loans to be made pursuant to such Borrowing, the date of such Borrowing (which
shall be a Business Day), whether the Loans being made pursuant to such
Borrowing shall constitute Term Loans, Acquisition Loans or Revolving Loans and
whether the Loans being made pursuant to such Borrowing are to be initially
maintained as Base Rate Loans or Eurodollar Loans and, if Eurodollar Loans, the
initial Interest Period to be applicable thereto. The Administrative Agent shall
promptly give each Lender which is required to make Loans of the Tranche
specified in the respective Notice of Borrowing, notice of such proposed
Borrowing, of such Lender's proportionate share thereof and of the other matters
required by the immediately preceding sentence to be specified in the Notice of
Borrowing.
(b) (i) Whenever the Borrower desires to make a Borrowing of
Swingline Loans hereunder, it shall give the Swingline Lender not later than
12:00 Noon (New York time) on the date that a Swingline Loan is to be made,
written notice or telephonic notice promptly confirmed in writing of each
Swingline Loan to be made hereunder. Each such notice shall be irrevocable and
specify in each case (A) the date of Borrowing (which shall be a Business Day)
and (B) the aggregate principal amount of the Swingline Loans to be made
pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(e), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of the Mandatory Borrowings as set forth in
Section 1.01(e).
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice of any Borrowing of Loans, the
Administrative Agent or the Swingline Lender, as the case may be, may act
without liability upon the basis of telephonic notice of such Borrowing,
believed by the Administrative Agent or the Swingline Lender, as the case may
be, in good faith to be from the Authorized Officer of the Borrower prior to
receipt of written confirmation. In each such case, the Borrower hereby waives
the right to dispute the Administrative Agent's and the
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Swingline Lender's record of the terms of such telephonic notice of such
Borrowing of Loans (except in the case of gross negligence or willful
misconduct).
1.04 DISBURSEMENT OF FUNDS. Except as otherwise specifically
provided in the immediately succeeding sentence, no later than 12:00 Noon (New
York time) on the date specified in each Notice of Borrowing (or (x) in the case
of Swingline Loans, not later than 2:00 P.M. (New York time) on the date
specified pursuant to Section 1.03(b)(i) or (y) in the case of Mandatory
Borrowings, not later than 12:00 Noon (New York time) on the date specified in
Section 1.01(e)), each Lender with a Commitment of the respective Tranche will
make available its PRO RATA portion of each such Borrowing requested to be made
on such date (or in the case of Swingline Loans, the Swingline Lender shall make
available the full amount thereof). All such amounts shall be made available in
Dollars and in immediately available funds at the Payment Office of the
Administrative Agent, and the Administrative Agent will make available to the
Borrower at the Payment Office the aggregate of the amounts so made available by
the Lenders (for Loans other than Swingline Loans, prior to 1:00 P.M. (New York
time) on such day, to the extent of funds actually received by the
Administrative Agent prior to 12:00 Noon (New York time) on such day). Unless
the Administrative Agent shall have been notified by any Lender prior to the
date of Borrowing that such Lender does not intend to make available to the
Administrative Agent such Lender's portion of any Borrowing to be made on such
date, the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on such date of Borrowing and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Lender, the Administrative
Agent shall be entitled to recover such corresponding amount on demand from such
Lender. If such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify the Borrower and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent. The Administrative Agent shall also be
entitled to recover on demand from such Lender or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to the
Borrower until the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (i) if recovered from such
Lender, at the overnight Federal Funds Rate and (ii) if recovered from the
Borrower, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be
deemed to relieve any Lender from its obligation to make Loans hereunder or to
prejudice any rights which the Borrower may have against any Lender as a result
of any failure by such Lender to make Loans hereunder.
1.05 EVIDENCE OF DEBT; NOTES. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of the Borrower to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
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(b) The Administrative Agent shall maintain the Register pursuant to
Section 13.17, and a subaccount therein for each Lender in which shall be
recorded (i) the amount of each Loan made by such Lender hereunder, the Type
thereof and each Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) both the amount of any sum received
by the Administrative Agent hereunder from the Borrower and each Lender's share
thereof (if any).
(c) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 1.05(b) shall, to the extent permitted by
applicable law, be PRIMA FACIE evidence of the existence and amounts of the
obligations of the Borrower therein recorded; PROVIDED, HOWEVER, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made by
such Lender in accordance with the terms of this Agreement.
(d) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Loans made by such Lender shall be evidenced (i) if
Term Loans, by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B-1 with blanks appropriately completed in
conformity herewith (each, a "Term Note" and, collectively, the "Term Notes"),
(ii) if Acquisition Loans, by a promissory note duly executed and delivered by
the Borrower substantially in the form of Exhibit B-2 with blanks appropriately
completed in conformity herewith (each, an "Acquisition Note" and, collectively,
the "Acquisition Notes"), (iii) if Revolving Loans, by a promissory note duly
executed and delivered by the Borrower substantially in the form of Exhibit B-3,
with blanks appropriately completed in conformity herewith (each, a "Revolving
Note" and, collectively, the "Revolving Notes") and (iv) if Swingline Loans, by
a promissory note duly executed and delivered by the Borrower substantially in
the form of Exhibit B-4, with blanks appropriately completed in conformity
herewith (the "Swingline Note").
(e) The Term Note issued to each Lender requesting same shall (i) be
executed by the Borrower, (ii) be payable to the order of such Lender and be
dated the Initial Borrowing Date (or, in the case of Term Notes issued after the
Initial Borrowing Date, be dated the date of the issuance thereof), (iii) be in
a stated principal amount equal to the Term Loan made by such Lender on the
Initial Borrowing Date (or, in the case of Term Notes issued after the Initial
Borrowing Date, be in a stated principal amount equal to the outstanding
principal amount of the Term Loan of such Lender on the date of the issuance
thereof) and be payable in the principal amount of Term Loans evidenced thereby,
(iv) mature on the Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 4.01 and mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this Agreement
and the other Credit Documents.
(f) The Acquisition Note issued to each Lender requesting same shall
(i) be executed by the Borrower, (ii) be payable to the order of such Lender or
its registered assigns and be dated
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the Initial Borrowing Date (or, in the case of Acquisition Notes issued after
the Initial Borrowing Date, be dated the date of the issuance thereof), (iii) be
in a stated principal amount equal to the Acquisition Loan Commitment of such
Lender on the Initial Borrowing Date (or, in the case of Acquisition Notes
issued after the Initial Borrowing Date, be in a stated principal amount equal
to the sum of the Acquisition Loan Commitment plus the outstanding Acquisition
Loans of such Lender on such date of the issuance) and be payable in the
principal amount of Acquisition Loans evidenced thereby, (iv) mature on the
RL/AL Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary prepayment as provided
in Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(g) The Revolving Note issued to each Lender requesting same shall
(i) be executed by the Borrower, (ii) be payable to the order of such Lender and
be dated the Initial Borrowing Date (or, in the case of Revolving Notes issued
after the Initial Borrowing Date, be dated the date of the issuance thereof),
(iii) be in a stated principal amount equal to the Revolving Loan Commitment of
such Lender and be payable in the principal amount of the Revolving Loans
evidenced thereby, (iv) mature on the RL/AL Maturity Date, (v) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the Base Rate
Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be
subject to voluntary prepayment as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02 and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.
(h) The Swingline Note (if any) issued to the Swingline Lender shall
(i) be executed by the Borrower, (ii) be payable to the order of the Swingline
Lender and be dated the Initial Borrowing Date (or, in the case of any Swingline
Note issued after the Initial Borrowing Date, be dated the date of the issuance
thereof), (iii) be in a stated principal amount equal to the Maximum Swingline
Amount and be payable in the principal amount of the outstanding Swingline Loans
evidenced thereby from time to time, (iv) mature on the Swingline Expiry Date,
(v) bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans evidenced thereby and (vi) be entitled to the
benefits of this Agreement and the other Credit Documents.
(i) Each Lender holding a Note will, prior to any transfer of such
Note, endorse on the reverse side thereof the outstanding principal amount of
Loans evidenced thereby. Failure to make any such notation or any error in any
such notation or endorsement shall not affect the Borrower's obligations in
respect of such Loans.
1.06 CONVERSIONS. The Borrower shall have the option to convert,
subject to the conditions set forth below, on any Business Day all or a portion
equal to at least the applicable Minimum Borrowing Amount of the outstanding
principal amount of Loans pursuant to a single Tranche into a Borrowing or
Borrowings (of the same Tranche) of another Type of Loan, PROVIDED that (i) no
conversion of Base Rate Loans into Eurodollar Loans may be made prior to the
earlier of (A) the 65th day after the Initial Borrowing Date and (B) the
Syndication Date, except to the extent
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comprising all or part of a single Borrowing of Eurodollar Loans occurring on
the first day of a PSD Interest Period, (ii) if for any reason whatsoever any
Eurodollar Loans are converted into Base Rate Loans on a day which is not the
last day of an Interest Period applicable to the Loans being converted, the
Borrower shall pay all amounts owing in connection therewith as required by
Section 1.11, (iii) no partial conversion of a Borrowing shall reduce the
outstanding principal amount of such Loans made pursuant to such Borrowing to
less than the Minimum Borrowing Amount applicable thereto, (iv) unless the
Required Lenders otherwise specifically agree in writing, Base Rate Loans may
only be converted into Eurodollar Loans if no Default or Event of Default is in
existence on the date of the conversion, (v) no conversion pursuant to this
Section 1.06 shall result in a greater number of Eurodollar Borrowings than is
permitted under Section 1.02 and (vi) Swingline Loans may not be converted
pursuant to this Section 1.06. Each such conversion shall be effected by the
Borrower by giving the Administrative Agent at its Notice Office prior to 3:00
P.M. (New York time) at least (x) in the case of a conversion to Eurodollar
Loans, three Business Days' prior notice and (y) in the case of a conversion to
Base Rate Loans, one Business Day's prior notice (each, a "Notice of
Conversion") specifying the Loans to be so converted, the Borrowing(s) pursuant
to which such Loans were made and, if to be converted into Eurodollar Loans, the
Interest Period to be initially applicable thereto. The Administrative Agent
shall give each Lender prompt notice of any such proposed conversion affecting
any of its Loans.
1.07 PRO RATA BORROWINGS. All Borrowings of Term Loans, Acquisition
Loans and Revolving Loans under this Agreement shall be incurred from the
Lenders PRO RATA on the basis of their Term Loan Commitments, Acquisition Loan
Commitments or Revolving Loan Commitments, as the case may be. It is understood
that no Lender shall be responsible for any default by any other Lender of its
obligation to make Loans hereunder and that each Lender shall be obligated to
make the Loans provided to be made by it hereunder, regardless of the failure of
any other Lender to make its Loans hereunder.
1.08 INTEREST. (a) The Borrower agrees to pay interest in respect of
the unpaid principal amount of each Base Rate Loan from the date the proceeds
thereof are made available to the Borrower until the earlier of (i) the maturity
(whether by acceleration or otherwise) of such Base Rate Loan and (ii) the
conversion of such Base Rate Loan to a Eurodollar Loan pursuant to Section 1.06,
at a rate per annum which shall be equal to the sum of the Applicable Margin
plus the Base Rate in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan from the date the proceeds thereof are
made available to the Borrower until the earlier of (i) the maturity (whether by
acceleration or otherwise) of such Eurodollar Loan and (ii) the conversion of
such Eurodollar Loan to a Base Rate Loan pursuant to Section 1.06, 1.09 or
1.10(b), as applicable, at a rate per annum which shall, during each Interest
Period applicable thereto, be equal to the sum of the Applicable Margin plus the
Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable hereunder
shall, in each case, bear interest at
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a rate per annum equal to 2% per annum in excess of the rate otherwise
applicable to Base Rate Loans of the respective Tranche of Loans from time to
time; PROVIDED that principal in respect of Eurodollar Loans shall bear interest
after the same becomes due (whether by acceleration or otherwise) until the end
of the applicable Interest Period for such Eurodollar Loan at a per annum rate
equal to 2% in excess of the rate of interest applicable on the due date
therefor.
(d) Accrued (and theretofore unpaid) interest shall be payable (i)
in respect of each Base Rate Loan, quarterly in arrears on each Quarterly
Payment Date, (ii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and (iii) in respect of each Loan, on any
repayment or prepayment (on the amount repaid or prepaid), at maturity (whether
by acceleration or otherwise) and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the Administrative Agent
shall determine the Eurodollar Rate for each Interest Period applicable to
Eurodollar Loans and shall promptly notify the Borrower and the Lenders thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
1.09 INTEREST PERIODS. At the time it gives any Notice of Borrowing
or Notice of Conversion in respect of the making of, or conversion into, any
Eurodollar Loan (in the case of the initial Interest Period applicable thereto)
or on the third Business Day prior to the expiration of an Interest Period
applicable to such Eurodollar Loan (in the case of any subsequent Interest
Period), the Borrower shall have the right to elect, by giving the
Administrative Agent notice thereof, the interest period (each, an "Interest
Period") applicable to such Eurodollar Loan, which Interest Period shall, at the
option of the Borrower, be a one, two, three or six month period, PROVIDED that:
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including the
date of any conversion thereto from a Loan of a different Type) and each
Interest Period occurring thereafter in respect of such Eurodollar Loan
shall commence on the day on which the next preceding Interest Period
applicable thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan begins on
a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest Period shall end
on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; PROVIDED, HOWEVER, that if any Interest Period
for a Eurodollar Loan would otherwise expire on a day
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which is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall
expire on the next preceding Business Day;
(v) subject to the foregoing clauses (i) through (iv), only two
sequential one month interest periods shall be available to be selected
prior to the earlier of (A) the 65th day following the Initial Borrowing
Date and (B) the Syndication Date, with all Loans constituting Eurodollar
Loans during such period to be outstanding pursuant to a single Borrowing,
and the second such Interest Period to commence on the date the first such
Interest Period expires;
(vi) unless the Required Lenders otherwise specifically agree in
writing, no Interest Period may be selected at any time when a Default or
Event of Default is then in existence;
(vii) no Interest Period in respect of any Borrowing of any Tranche
of Loans shall be selected which extends beyond the respective Maturity
Date for such Tranche of Loans; and
(viii) no Interest Period of any Borrowing of Term Loans or
Acquisition Loans, as the case may be, shall be selected which extends
beyond any date upon which a mandatory repayment of such Tranche of Loans
will be required to be made under Section 4.02(b) or (c), as the case may
be, if the aggregate principal amount of Term Loans or Acquisition Loans,
as the case may be, which have Interest Periods which will expire after
such date will be in excess of the aggregate principal amount of Term
Loans or Acquisition Loans, as the case may be, then outstanding less the
aggregate amount of such required prepayment.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Borrower shall be deemed to have elected to convert
such Eurodollar Loans into Base Rate Loans effective as of the expiration date
of such current Interest Period.
1.10 INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that (x) in
the case of clause (i) below, the Administrative Agent or (y) in the case of
clauses (ii) and (iii) below, any Lender, shall have determined (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto but, with respect to clause (i) below, may be made only
by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the interbank
Eurodollar market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition
of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loan because of (x) any change since the date of this
Agreement in any applicable law or governmental rule,
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regulation, order, guideline or request (whether or not having the force
of law) or in the interpretation or administration thereof and including
the introduction of any new law or governmental rule, regulation, order,
guideline or request, such as, for example, but not limited to: (A) a
change in the basis of taxation of payments to any Lender of the principal
of or interest such Eurodollar Loan or any other amounts payable hereunder
(except for changes in the rate of tax on, or determined by reference to,
the net income or profits of such Lender, or any franchise tax based on
the net income or profits of such Lender, in either case pursuant to the
laws of the United States of America, the jurisdiction in which it is
organized or in which its principal office or applicable lending office is
located or any subdivision thereof or therein), but without duplication of
any amounts payable in respect of Taxes pursuant to Section 4.04(a), or
(B) a change in official reserve requirements, but, in all events,
excluding reserves required under Regulation D to the extent included in
the computation of the Eurodollar Rate and/or (y) other circumstances
since the date of this Agreement affecting such Lender or the interbank
Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has been made (x) unlawful by any law or governmental rule,
regulation or order, (y) impossible by compliance by any Lender in good
faith with any governmental request (whether or not having force of law)
or (z) impracticable as a result of a contingency occurring after the date
of this Agreement which materially and adversely affects the interbank
Eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in
the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice by the Administrative
Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given
by the Borrower with respect to Eurodollar Loans which have not yet been
incurred (including by way of conversion) shall be deemed rescinded by the
Borrower, (y) in the case of clause (ii) above, the Borrower shall, subject to
the provisions of Section 13.15 (to the extent applicable) pay to such Lender,
upon written demand therefor, such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its sole discretion shall determine) as shall be required to
compensate such Lender for such increased costs or reductions in amounts
received or receivable hereunder (a written notice as to the additional amounts
owed to such Lender, showing the basis for and the calculation thereof,
submitted to the Borrower by such Lender in good faith shall, constitute PRIMA
FACIE evidence of such amounts due and (z) in the case of clause (iii) above,
the Borrower shall take one of the actions specified in Section 1.10(b) as
promptly as possible and, in any event, within the time period required by law.
Each of the Administrative Agent and each Lender agrees that if it gives notice
to the Borrower of any of the events described in clause (i) or (iii) above, it
shall promptly notify the Borrower and, in the case of any such Lender, the
Administrative Agent, if such event ceases to exist. If any such event described
in clause (iii) above ceases to exist as to a Lender, the
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obligations of such Lender to make Eurodollar Loans and to convert Base Rate
Loans into Eurodollar Loans on the terms and conditions contained herein shall
be reinstated.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent telephonic notice (confirmed in
writing) on the same date that the Borrower was notified by the affected Lender
or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if
the affected Eurodollar Loan is then outstanding, upon at least one Business
Day's written notice to the Administrative Agent, require the affected Lender to
convert such Eurodollar Loan into a Base Rate Loan, PROVIDED that, if more than
one Lender is affected at any time, then all affected Lenders must be treated
the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Lender
determines that the introduction of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or request (whether
or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by any governmental authority, central
bank or comparable agency, in each case introduced or changed after the date
hereof, will have the effect of increasing the amount of capital required or
expected to be maintained by such Lender or any corporation controlling such
Lender based on the existence of such Lender's Commitments hereunder or its
obligations hereunder, then the Borrower shall, subject to the provisions of
Section 13.15 (to the extent applicable), pay to such Lender, upon its written
demand therefor, such additional amounts as shall be required to compensate such
Lender or such other corporation for the increased cost to such Lender or such
other corporation or the reduction in the rate of return to such Lender or such
other corporation as a result of such increase of capital. In determining such
additional amounts, each Lender will act reasonably and in good faith and will
use averaging and attribution methods which are reasonable, PROVIDED that such
Lender's determination of compensation owing under this Section 1.10(c) shall,
absent manifest error, be final and conclusive and binding on all the parties
hereto. Each Lender, upon determining that any additional amounts will be
payable pursuant to this Section 1.10(c), will give prompt written notice
thereof to the Borrower, which notice shall show in reasonable detail the basis
for and calculation of such additional amounts.
1.11 COMPENSATION. The Borrower shall, subject to the provisions of
Section 13.15 (to the extent applicable), compensate each Lender, upon its
written request (which request shall set forth in reasonable detail the basis
for requesting and the calculation of such compensation), for all reasonable
losses, expenses and liabilities (including, without limitation, any loss,
expense or liability incurred by reason of the liquidation or reemployment of
deposits or other funds required by such Lender to fund its Eurodollar Loans but
excluding any loss of anticipated profit) which such Lender may sustain: (i) if
for any reason (other than a default by such Lender or the Administrative Agent)
a Borrowing of, or conversion from or into, Eurodollar Loans does not occur on a
date specified therefor in a Notice of Borrowing or Notice of Conversion
(whether or not withdrawn by
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the Borrower or deemed withdrawn pursuant to Section 1.10(a)); (ii) if any
repayment (including any repayment made pursuant to Section 4.02, as a result of
an acceleration of the Loans pursuant to Section 10 or in connection with the
replacement of a Lender pursuant to Section 1.13 or Section 13.12(b)) or
conversion of any of its Eurodollar Loans occurs on a date which is not the last
day of an Interest Period with respect thereto; (iii) if any prepayment of any
of its Eurodollar Loans is not made on any date specified in a notice of
prepayment given by the Borrower; or (iv) as a consequence of (x) any other
default by the Borrower to repay its Loans when required by the terms of this
Agreement or any Note held by such Lender or (y) any election made pursuant to
Section 1.10(b). Calculation of all amounts payable to a Lender under this
Section 1.11 shall be made as though that Lender had actually funded its
relevant Eurodollar Loan through the purchase of a Eurodollar deposit bearing
interest at the Eurodollar Rate in an amount equal to the amount of that Loan,
having a maturity comparable to the relevant Interest Period and through the
transfer of such Eurodollar deposit from an offshore office of that Lender to a
domestic office of that Lender in the United States of America; PROVIDED,
HOWEVER, that each Lender may fund each of its Eurodollar Loans in any manner it
sees fit and the foregoing assumption shall be utilized only for the calculation
of amounts payable under this Section 1.11.
1.12 CHANGE OF LENDING OFFICE. Each Lender agrees that on the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.05 or Section 4.04 with respect to such
Lender, it will, if requested by the Borrower, use reasonable efforts (subject
to overall policy considerations of such Lender) to designate another lending
office for any Loans or Letters of Credit affected by such event, or, upon the
occurrence of any event giving rise to the operation of Section 4.04(a), use
such other reasonable efforts to eliminate or reduce such increased Taxes,
PROVIDED that such designation or other action is made on such terms that, in
the sole judgment of such Lender, such Lender and its lending office suffer no
economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of such Section. Nothing
in this Section 1.12 shall affect or postpone any of the obligations of the
Borrower or the right of any Lender provided in Sections 1.10, 2.05 and 4.04.
1.13 REPLACEMENT OF LENDERS. (x) If any Lender becomes a Defaulting
Lender or otherwise defaults in its obligations to make Loans or fund Unpaid
Drawings, (y) upon the occur rence of any event giving rise to the operation of
Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.05 or Section 4.04 with
respect to any Lender which results in such Lender charging to the Borrower
increased costs in excess of those being generally charged by the other Lenders,
or (z) as provided in Section 13.12(b) in the case of certain refusals by a
Lender to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Lenders, the Borrower shall have the right, if no Default or Event of
Default will exist immediately after giving effect to the respective
replacement, to either replace such Lender (the "Replaced Lender") with one or
more other Eligible Transferee or Transferees, none of whom shall constitute a
Defaulting Lender at the time of such replacement (collectively, the
"Replacement Lender") and each of whom shall be reasonably acceptable to the
Administrative Agent or, at the option of the Borrower, to replace only (a) the
Revolving Loan Commitment (and outstandings pursuant thereto) of the Replaced
Lender with an identical Revolving Loan
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Commitment provided by the Replacement Lender, (b) the Acquisition Loan
Commitment of the Replaced Lender with an identical Acquisition Loan Commitment
provided by the Replacement Lender or (c) in the case of a replacement as
provided in Section 13.12(b) where the consent of the respective Lender is
required with respect to less than all Tranches of its Loans or Commitments, the
Commitments and/or outstanding Loans of such Lender in respect of each Tranche
where the consent of such Lender would otherwise be individually required, with
identical Commitments and/or Loans of the respective Tranche provided by the
Replacement Lender, PROVIDED that (i) at the time of any replacement pursuant to
this Section 1.13, the Replacement Lender shall enter into one or more
Assignment and Assumption Agreements pursuant to Section 13.04(b) (and with all
fees payable pursuant to said Section 13.04(b) to be paid by the Replacement
Lender) pursuant to which the Replacement Lender shall acquire all of the
Commitments and outstanding Loans (or, in the case of the replacement of only
(a) the Revolving Loan Commitment, the Revolving Loan Commitment and outstanding
Revolving Loans, (b) the Acquisition Loan Commitment and/or outstanding
Acquisition Loans, the Acquisition Loan Commitment and/or outstanding
Acquisition Loans or (c) the outstanding Term Loans, such outstanding Term
Loans) and in each case (except for the replacement of only the outstanding
Acquisition Loan Commitments, Acquisition Loans and/or Term Loans of the
respective Lender) participations in Letters of Credit by, the Replaced Lender
and, in connection therewith, shall pay to (x) the Replaced Lender in respect
thereof an amount equal to the sum (without duplication) of (A) an amount equal
to the principal of, and all accrued interest on, all applicable outstanding
Loans of the Replaced Lender, (B) except in the case of the replacement of only
the outstanding Acquisition Loan Commitments, Acquisition Loans and/or Term
Loans of a Replaced Lender, an amount equal to all Unpaid Drawings that have
been funded by (and not reimbursed to) such Replaced Lender, together with all
then unpaid interest with respect thereto at such time and (C) an amount equal
to all accrued, but theretofore unpaid, Fees owing to the Replaced Lender (but
only with respect to the relevant Tranche, in the case of the replacement of
less than all Tranches of Loans then held by the respective Replaced Lender)
pursuant to Section 3.01 and (y) except in the case of the replacement of only
the outstanding Acquisition Loan Commitments, Acquisition Loans and/or Term
Loans of a Replaced Lender, the respective Issuing Lender an amount equal to
such Replaced Lender's Percentage of any Unpaid Drawing (which at such time
remains an Unpaid Drawing) to the extent such amount was not theretofore funded
by such Replaced Lender and to the Swingline Lender an amount equal to such
Replaced Lender's Percentage of any Mandatory Borrowing to the extent such
amount was not theretofore funded by such Replaced Lender, and (ii) all
obligations of the Borrower owing to the Replaced Lender (other than those (a)
specifically described in clause (i) above in respect of which the assignment
purchase price has been, or is concurrently being, paid or (b) relating to any
Tranche of Loans and/or Commitments of the respective Replaced Lender which will
remain outstanding after giving effect to the respective replacement) shall be
paid in full to such Replaced Lender concurrently with such replacement. Upon
the execution of the respective Assignment and Assumption Agreements, the
payment of amounts referred to in clauses (i) and (ii) above and, if so
requested by the Replacement Lender, delivery to the Replacement Lender of the
appropriate Note or Notes executed by the Borrower, the Replacement Lender shall
become a Lender hereunder and, unless the respective Replaced Lender continues
to have outstanding Loans or a Commitment hereunder, the Replaced Lender shall
cease to constitute a Lender hereunder, except with respect to indemnification
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provisions under this Agreement (including, without limitation, Sections 1.10,
1.11, 2.05, 4.04, 13.01 and 13.06), which shall survive as to such Replaced
Lender.
1.14 ADDITIONAL ACQUISITION LOAN COMMITMENTS. At any time and from
time to time on and after the Effective Date and prior to the Business Day
immediately preceding the Acquisition Facility Expiry Date, the Borrower may
request one or more Lenders or other lending institutions to assume an
additional Acquisition Loan Commitment and to make Acquisition Loans to the
Borrower as provided in Section 1.01(b) and, in the sole discretion of each such
Lender or other institution, any such Lender or other institution may agree to
so commit; PROVIDED that (i) no Default or Event of Default then exists, (ii)
the increase in the Total Acquisition Loan Commitment pursuant to any such
request shall be in an aggregate amount of at least $10,000,000 or, if less, the
maximum increase permitted pursuant hereto, (iii) after the Effective Date, the
Total Acquisition Loan Commitment shall not increase pursuant to this Section
1.14 by an aggregate amount of more than $50,000,000, (iv) on and after the
Acquisition Facility Reduction Date, the Total Acquisition Loan Commitment shall
not increase pursuant to this Section 1.14 by an aggregate amount of more than
the Fourth Year AL Facility Amount, and (v) after giving effect to any such
increase, the Total Acquisition Loan Commitment shall not exceed $100,000,000.
The Borrower and each such Lender or other lending institution (each, an
"Assuming Lender") which agrees to commit to assume such an Acquisition Loan
Commitment and to make such Acquisition Loans shall execute and deliver to the
Administrative Agent an Acquisition Commitment Assumption Agreement
substantially in the form of Exhibit C (with the increase in, or in the case of
a new Assuming Lender, assumption of, such Lender's Acquisition Loan Commitment
to be effective upon delivery of such Acquisition Commitment Assumption
Agreement to the Administrative Agent). The Administrative Agent shall promptly
notify each Lender as the occurrence of each Acquisition Commitment Assumption
Date. On each Acquisition Commitment Assumption Date, (x) Schedule I shall be
deemed modified to reflect the revised Acquisition Loan Commitments of such
Lenders, and (y) the Borrower shall pay to each such Assuming Lender and each
Agent such up front fees (if any) as may have been agreed between the Borrower
and such Assuming Lender and/or such Agent. Notwithstanding anything to the
contrary contained in this Agreement, on and after each Acquisition Commitment
Assumption Date, the Borrower shall cooperate with the Administrative Agent in
arranging its Borrowings of Acquisition Loans such that, to the maximum extent
reasonably practicable, Borrowings are combined and/or converted at times and in
amounts so that the various Lenders with Acquisition Loans will ultimately
participate in each such Borrowing on a PRO RATA basis based upon their
respective AL Percentages.
SECTION 2. Letters of Credit.
2.01 LETTERS OF CREDIT. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request that any Issuing Lender
issue, at any time and from time to time on and after the Initial Borrowing Date
and prior to the RL/AL Maturity Date, (x) for the account of the Borrower and
for the benefit of any holder (or any trustee, agent or other similar
representative for any such holders) of L/C Supportable Indebtedness of the
Borrower or any of its Subsidiaries, an irrevocable sight standby letter of
credit, in a form customarily used by such Issuing Lender or in
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such other form as has been approved by such Issuing Lender (each such standby
letter of credit, a "Standby Letter of Credit") in support of such L/C
Supportable Indebtedness and (y) for the account of the Borrower and for the
benefit of sellers of goods or materials to the Borrower or any of its
Subsidiaries, an irrevocable sight commercial letter of credit in a form
customarily used by such Issuing Lender or in such other form as has been
approved by such Issuing Lender (each such commercial letter of credit, a "Trade
Letter of Credit," and each such Trade Letter of Credit and each Standby Letter
of Credit, a "Letter of Credit") in support of commercial transactions of the
Borrower and its Subsidiaries.
(b) Subject to the terms and conditions contained herein, the
Administrative Agent hereby agrees that it will (and at the Borrower's request
each other Issuing Lender may, at its option, agree that it will), at any time
and from time to time on or after the Initial Borrowing Date and prior to the
RL/AL Maturity Date, following its receipt of the respective Letter of Credit
Request, issue for the account of the Borrower one or more Letters of Credit (x)
in the case of Standby Letters of Credit, in support of such L/C Supportable
Indebtedness of the Borrower or any of its Subsidiaries as is permitted to
remain outstanding without giving rise to a Default or Event of Default
hereunder and (y) in the case of Trade Letters of Credit, in support of sellers
of goods or materials as referenced in Section 2.01(a), PROVIDED that the
respective Issuing Lender shall be under no obligation to issue any Letter of
Credit of the types described above if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Issuing
Lender from issuing such Letter of Credit or any requirement of law
applicable to such Issuing Lender or any request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over such Issuing Lender shall prohibit, or request that such
Issuing Lender refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon such Issuing
Lender with respect to such Letter of Credit any restriction or reserve or
capital requirement (for which such Issuing Lender is not otherwise
compensated) not in effect on the date hereof, or any unreimbursed loss,
cost or expense which was not applicable, in effect or known to such
Issuing Lender as of the date hereof and which such Issuing Lender in good
xxxxx xxxxx material to it; or
(ii) such Issuing Lender shall have received notice from any Lender
prior to the issuance of such Letter of Credit of the type described in
the second sentence of Section 2.02(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time would
exceed either (x) $10,000,000 or (y) when added to the aggregate principal
amount of all Revolving Loans then outstanding and Swingline Loans then
outstanding, an amount equal to the Total Available Revolving Loan Commitment at
such time, (ii) each Letter of Credit shall be denominated in Dollars, (iii)
each Letter of Credit shall by its terms terminate (x) in the case of
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Standby Letters of Credit, on or before the earlier of (A) the date which occurs
12 months after the date of the issuance thereof (although any such Standby
Letter of Credit may be extendible for successive periods of up to 12 months, on
terms acceptable to the Issuing Lender thereof) and (B) the date which is five
Business Days prior to the RL/AL Maturity Date, and (y) in the case of Trade
Letters of Credit, on or before the earlier of (A) the date which occurs 360
days after the date of issuance thereof and (B) the date which is 30 days prior
to the RL/AL Maturity Date and (iv) the Stated Amount of each Letter of Credit
upon issuance shall be not less than $10,000 or such lesser amount as is
acceptable to the respective Issuing Lender.
(d) Notwithstanding the foregoing, in the event a Lender Default
exists, no Issuing Lender shall be required to issue any Letter of Credit unless
such Issuing Lender has entered into arrangements satisfactory to it and the
Borrower to eliminate such Issuing Lender's risk with respect to the Defaulting
Lender's or Lenders' participation in all Letters of Credit, including by cash
collateralizing such Defaulting Lender's or Lenders' Percentage of all Letter of
Credit Outstandings.
2.02 LETTER OF CREDIT REQUESTS. (a) Whenever the Borrower desires
that a Letter of Credit be issued for its account, the Borrower shall give the
Administrative Agent and the respective Issuing Lender at least five Business
Days' (or such shorter period as is acceptable to the respective Issuing Lender)
written notice thereof. Each notice shall be in the form of Exhibit D (each, a
"Letter of Credit Request").
(b) The making of each Letter of Credit Request shall be deemed to
be a representation and warranty by the Borrower that such Letter of Credit may
be issued in accordance with, and will not violate the requirements of, Section
2.01(c). Unless the respective Issuing Lender has received notice from any
Lender before it issues a Letter of Credit that one or more of the conditions
specified in Section 5 or Section 6, as applicable, are not then satisfied, or
that the issuance of such Letter of Credit would violate Section 2.01(c), then
such Issuing Lender shall issue the requested Letter of Credit for the account
of the Borrower in accordance with such Issuing Lender's usual and customary
practices. Upon the issuance of or amendment to any Standby Letter of Credit,
such Issuing Lender shall promptly notify each Lender of such issuance or
amendment and such notice shall be accompanied by a copy of the issued Standby
Letter of Credit or amendment, as the case may be. For Trade Letters of Credit
on which the Issuing Lender is other than the Administrative Agent, the Issuing
Lender will send to the Administrative Agent by facsimile transmission, promptly
on the first Business Day of each week, the daily aggregate Stated Amount of
Trade Letters of Credit issued by such Issuing Lender and outstanding during the
preceding week. The Administrative Agent shall deliver to each Lender, after
each calendar month end and upon each payment of the Letter of Credit Fee, a
report setting forth for the relevant period the daily aggregate Stated Amount
of all outstanding Trade Letters of Credit during such period.
2.03 LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the
issuance by any Issuing Lender of any Letter of Credit, such Issuing Lender
shall be deemed to have sold and transferred to each Lender with a Revolving
Loan Commitment, other than such Issuing Lender (each such Lender, in its
capacity under this Section 2.03, a "Participant"), and each such Participant
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shall be deemed irrevocably and unconditionally to have purchased and received
from such Issuing Lender, without recourse or warranty, an undivided interest
and participation, to the extent of such Participant's Percentage, in such
Letter of Credit, each drawing made thereunder and the obligations of the
Borrower under this Agreement with respect thereto, and any security therefor or
guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments
or Percentages of the Lenders pursuant to Section 1.13 or 13.04, it is hereby
agreed that, with respect to all outstanding Letters of Credit and Unpaid
Drawings, there shall be an automatic adjustment to the participations pursuant
to this Section 2.03 to reflect the new Percentages of the assignor and assignee
Lender or of all Lenders with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, such
Issuing Lender shall have no obligation relative to the other Lenders other than
to confirm that any documents required to be delivered under such Letter of
Credit appear to have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by any Issuing Lender under or in connection with
any Letter of Credit if taken or omitted in the absence of gross negligence or
willful misconduct as determined by a court of competent jurisdiction, shall not
create for such Issuing Lender any resulting liability to the Borrower or any
Lender.
(c) In the event that any Issuing Lender makes any payment under any
Letter of Credit and the Borrower shall not have reimbursed such amount in full
to such Issuing Lender pursuant to Section 2.04(a), such Issuing Lender shall
promptly notify the Administrative Agent, which shall promptly notify each
Participant, of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Lender the amount of such Participant's
Percentage of such unreimbursed payment in Dollars and in same day funds. If the
Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any
Business Day, any Participant required to fund a payment under a Letter of
Credit, such Participant shall make available to such Issuing Lender in Dollars
such Participant's Percentage of the amount of such payment on such Business Day
in same day funds. If and to the extent such Participant shall not have so made
its Percentage of the amount of such payment available to such Issuing Lender,
such Participant agrees to pay to such Issuing Lender, forthwith on demand such
amount, together with interest thereon, for each day from such date until the
date such amount is paid to such Issuing Lender at the overnight Federal Funds
Rate. The failure of any Participant to make available to such Issuing Lender
its Percentage of any payment under any Letter of Credit shall not relieve any
other Participant of its obligation hereunder to make available to such Issuing
Lender its Percentage of any Letter of Credit on the date required, as specified
above, but no Participant shall be responsible for the failure of any other
Participant to make available to such Issuing Lender such other Participant's
Percentage of any such payment.
(d) Whenever any Issuing Lender receives a payment of a
reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, such Issuing Lender shall forward
such payment to the Administrative Agent, which in turn shall distribute to each
Participant which has paid its Percentage thereof, in Dollars and in same day
funds, an amount equal to such Participant's share (based upon the proportionate
aggregate amount
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originally funded by such Participant to the aggregate amount funded by all
Participants) of the principal amount of such reimbursement obligation and
interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall
furnish to such Participant copies of any Letter of Credit issued by it and such
other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each
Issuing Lender with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right
which the Borrower or any of its Subsidiaries may have at any time against
a beneficiary named in a Letter of Credit, any transferee of any Letter of
Credit (or any Person for whom any such transferee may be acting), the
Administrative Agent, any Issuing Lender, any Participant, or any other
Person, whether in connection with this Agreement, any Letter of Credit,
the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Borrower and the
beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.04 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The Borrower
hereby agrees to reimburse the respective Issuing Lender, by making payment to
the Administrative Agent in immediately available funds at the Payment Office,
for any payment or disbursement made by it under any Letter of Credit (each such
amount, so paid until reimbursed, an "Unpaid Drawing"), no later than three
Business Days after the date of such payment or disbursement, with interest on
the amount so paid or disbursed by such Issuing Lender, to the extent not
reimbursed prior to 1:00 P.M. (New York time) on the date of such payment or
disbursement, from and including the date paid or disbursed to but excluding the
date such Issuing Lender was reimbursed by the Borrower therefor at a rate per
annum which shall be the Base Rate in effect from time to time plus the
Applicable Margin for Revolving Loans maintained as Base Rate Loans; PROVIDED,
HOWEVER, to the extent such
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amounts are not reimbursed prior to 1:00 P.M. (New York time) on the third
Business Day following such payment or disbursement, interest shall thereafter
accrue on the amounts so paid or disbursed by such Issuing Lender (and until
reimbursed by the Borrower) at a rate per annum which shall be the Base Rate in
effect from time to time plus the Applicable Margin for Revolving Loans
maintained as Base Rate Loans plus 2%, in each such case, with interest to be
payable on demand. The respective Issuing Lender shall give the Borrower prompt
notice of each Drawing under any Letter of Credit, PROVIDED that the failure to
give any such notice shall in no way affect, impair or diminish the Borrower's
obligations hereunder.
(b) The obligations of the Borrower under this Section 2.04 to
reimburse the respective Issuing Lender with respect to payments on Letters of
Credit (each, a "Drawing") (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower may have or
have had against any Lender (including in its capacity as issuer of the Letter
of Credit or as Participant), or any nonapplication or misapplication by the
beneficiary of the proceeds of such Drawing, the respective Issuing Lender's
only obligation to the Borrower being to confirm that any documents required to
be delivered under such Letter of Credit appear to have been delivered and that
they appear to substantially comply on their face with the requirements of such
Letter of Credit; PROVIDED that the Borrowers shall not be obligated to
reimburse such Issuing Lender for any wrongful payment made by such Issuing
Lender under a Letter of Credit as a result of acts or omissions constituting
gross negligence or willful misconduct as determined by a court of competent
jurisdiction on the part of such Issuing Lender.
2.05 INCREASED COSTS. If at any time after the date of this
Agreement, the introduction of or any change in any applicable law, rule,
regulation, order, guideline or request or in the interpretation or
administration thereof by any governmental authority charged with the inter
pretation or administration thereof, or compliance by any Issuing Lender or any
Participant with any request or directive by any such authority (whether or not
having the force of law), or any change in generally accepted accounting
principles, shall either (i) impose, modify or make applicable any reserve,
deposit, capital adequacy or similar requirement against letters of credit
issued by any Issuing Lender or participated in by any Participant, or (ii)
impose on any Issuing Lender or any Participant any other conditions relating,
directly or indirectly, to this Agreement or any Letter of Credit; and the
result of any of the foregoing is to increase the cost to any Issuing Lender or
any Participant of issuing, maintaining or participating in any Letter of
Credit, or reduce the amount of any sum received or receivable by any Issuing
Lender or any Participant hereunder or reduce the rate of return on its capital
with respect to Letters of Credit (except for changes in the rate of tax on, or
determined by reference to, the net income or profits of such Issuing Lender or
such Participant, or any franchise tax based on the net income or profits of
such Lender or Participant, in either case pursuant to the laws of the United
States of America, the jurisdiction in which it is organized or in which its
principal office or applicable lending office is located or any subdivision
thereof or therein), but without duplication of any amounts payable in respect
of Taxes pursuant to Section 4.04(a), then, upon demand to the Borrower by such
Issuing Lender or any Participant (a copy of which demand shall be sent by such
Issuing Lender or such Participant to the Administrative Agent)
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and subject to the provisions of Section 13.15 (to the extent applicable), the
Borrower shall pay to such Issuing Lender or such Participant such additional
amount or amounts as will compensate such Lender for such increased cost or
reduction in the amount receivable or reduction on the rate of return on its
capital. Any Issuing Lender or any Participant, upon determining that any
additional amounts will be payable pursuant to this Section 2.05, will give
prompt written notice thereof to the Borrower, which notice shall include a
certificate submitted to the Borrower by such Issuing Lender or such Participant
(a copy of which certificate shall be sent by such Issuing Lender or such
Participant to the Administrative Agent), setting forth in reasonable detail the
basis for and the calculation of such additional amount or amounts necessary to
compensate such Issuing Lender or such Participant. The certificate required to
be delivered pursuant to this Section 2.05 shall, if delivered in good faith and
absent manifest error, be final and conclusive and binding on the Borrower.
SECTION 3. Commitment Commission; Fees; Reductions of Commitment.
3.01 FEES. (a) (i) The Borrower agrees to pay to the Administrative
Agent for distribution to each Non-Defaulting Lender with an Acquisition Loan
Commitment a commitment commission (the "AL Commitment Commission") for the
period from the Effective Date to but not including the Acquisition Facility
Expiry Date (or to but not including such earlier date as the Total Commitment
shall have been terminated), computed at a rate per annum for each day equal to
the Applicable Commitment Commission Percentage on the Acquisition Loan
Commitment of such Non-Defaulting Lender on such day. Accrued Acquisition Loan
Commitment Commission shall be due and payable quarterly in arrears on each
Quarterly Payment Date and on the Acquisition Facility Expiry Date or such
earlier date upon which the Total Commitment is terminated.
(ii) The Borrower agrees to pay to the Administrative Agent for
distribution to each Non-Defaulting Lender with a Revolving Loan Commitment a
commitment commission (the "RL Commitment Commission") for the period from the
Initial Borrowing Date to but not including the RL/AL Maturity Date (or to but
not including such earlier date as the Total Revolving Loan Commitment shall
have been terminated), computed at a rate per annum for each day equal to the
Applicable Commitment Commission Percentage on the Unutilized Revolving Loan
Commitment of such Non-Defaulting Lender on such day. Accrued Revolving Loan
Commitment Commission shall be due and payable quarterly in arrears on each
Quarterly Payment Date and on the RL/AL Maturity Date or such earlier date upon
which the Total Revolving Loan Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent for
distribution to each Non-Defaulting Lender with a Revolving Loan Commitment
(based on their respective Percentages) a fee in respect of each Letter of
Credit issued hereunder (the "Letter of Credit Fee"), for the period from and
including the date of issuance of such Letter of Credit to and including the
termination of such Letter of Credit, computed at a rate per annum equal to the
Applicable Margin then in effect for Revolving Loans maintained as Eurodollar
Loans on the daily average Stated Amount of such Letter of Credit. Accrued
Letter of Credit Fees shall be due and payable quarterly in arrears on each
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Quarterly Payment Date and upon the first day on or after the termination of the
Total Revolving Loan Commitment upon which no Letters of Credit remain
outstanding.
(c) The Borrower agrees to pay to the respective Issuing Lender, for
its own account, a facing fee in respect of each Letter of Credit issued for its
account hereunder (the "Facing Fee") for the period from and including the date
of issuance of such Letter of Credit to and including the termination of such
Letter of Credit, computed at a rate equal to 1/4 of 1% per annum of the daily
average Stated Amount of such Letter of Credit; PROVIDED that in no event shall
the annual Facing Fee with respect to any Letter of Credit be less than $500, it
being agreed that, on the date of issuance of any Letter of Credit and on each
anniversary thereof prior to the termination of such Letter of Credit, $500 will
be paid toward the next year's Facing Fees for such Letter of Credit, which
amount shall be credited in direct order to the Facing Fees which would
otherwise be payable with respect to such Letter of Credit in the succeeding
annual period. Accrued Facing Fees shall be due and payable quarterly in arrears
on each Quarterly Payment Date and on the date upon which the Total Revolving
Loan Commitment has been terminated and such Letter of Credit has been
terminated in accordance with its terms.
(d) The Borrower shall pay, upon each payment under, issuance of, or
amendment to, any Letter of Credit, such amount as shall at the time of such
event be the administrative charge which the respective Issuing Lender is
generally imposing in connection with such occurrence with respect to letters of
credit.
(e) The Borrower shall pay to each of the Agents, for their own
account, such other fees as have been agreed to in writing by the Borrower and
the Agents.
3.02 VOLUNTARY TERMINATION OF UNUTILIZED COMMITMENTS. (a) Upon at
least one Business Day's prior notice to the Administrative Agent at its Notice
Office (which notice the Administrative Agent shall promptly transmit to each of
the Lenders), the Borrower shall have the right, at any time or from time to
time, without premium or penalty, to terminate the Total Unutilized Revolving
Loan Commitment and/or the Total Acquisition Loan Commitment in each case, in
whole or in part, in a minimum amount of $500,000 and integral multiples of
$100,000 thereafter in the case of partial reductions to the Total Revolving
Loan Commitment or the Total Acquisition Loan Commitment, as the case may be,
PROVIDED that (i) each such reduction shall apply proportionately to permanently
reduce the Revolving Loan Commitment or Acquisition Loan Commitment, as the case
may be, of each Lender with such a Commitment and (ii) no such reduction to the
Total Unutilized Revolving Loan Commitment shall in any case be in an amount
which would cause the Revolving Loan Commitment of any Lender to be reduced (as
required by preceding clause (i)) by an amount which exceeds the remainder of
(x) the Unutilized Revolving Loan Commitment of such Lender as in effect
immediately before giving effect to such reduction minus (y) such Lender's
Percentage of the aggregate principal amount of Swingline Loans then
outstanding.
(b) In the event of certain refusals by a Lender as provided in
Section 13.12(b) to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Lenders, the Borrower may, subject to the
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requirements of said Section 13.12(b) and upon five Business Days' written
notice to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), terminate
all of the Acquisition Loan Commitment and/or the Revolving Loan Commitment of
such Lender so long as, in the case of a termination of such Lender's Revolving
Loan Commitment all Revolving Loans, together with accrued and unpaid interest,
fees and all other amounts, owing to such Lender are repaid concurrently with
the effectiveness of such termination (at which time Schedule I shall be deemed
modified to reflect such changed amounts), and at such time, unless the
respective Lender continues to have other outstanding Loans hereunder, such
Lender shall no longer constitute a "Lender" for purposes of this Agreement,
except with respect to indemnification provisions under this Agreement
(including, without limitation, Sections 1.10, 1.11, 2.05, 4.04, 13.01 and
13.06), which shall survive as to such repaid Lender.
3.03 MANDATORY REDUCTION OF COMMITMENTS. (a) The Total Commitment
(and the Term Loan Commitment, the Acquisition Loan Commitment and the Revolving
Loan Commitment of each Lender) shall terminate in its entirety on June 30, 1998
unless the Initial Borrowing Date shall have occurred on or prior to such date.
(b) (i) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Term Loan Commitment (and the Term Loan
Commitment of each Lender) shall (i) terminate in its entirety on the Initial
Borrowing Date (after giving effect to the making of the Term Loans on such
date) and (ii) prior to the termination of the Total Term Loan Commitment as
provided in clause (i) above, be reduced from time to time to the extent
required by Section 4.02.
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Acquisition Loan Commitment (and the
Acquisition Loan Commitment of each Lender) shall (i) be reduced on the date of
each Borrowing of Acquisition Loans hereunder, in each case after giving effect
to, and in an amount equal to, the Acquisition Loans made on such date, and (ii)
be reduced on the Acquisition Facility Reduction Date by an amount equal to 50%
of the Total Acquisition Loan Commitment immediately prior to giving effect to
such reduction and after giving effect to any reductions thereto pursuant to
clause (i) of this Section 3.03(c). Notwithstanding anything to the contrary
contained in this Agreement, the Total Acquisition Loan Commitment (and the
Acquisition Loan Commitment of each Lender) shall terminate in its entirety (if
not theretofore terminated) at 5:00 P.M. (New York time) on the Acquisition
Facility Expiry Date.
(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each Lender) shall terminate in its entirety on the
RL/AL Maturity Date.
(e) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date after the Initial Borrowing Date
upon which a mandatory prepayment of Loans pursuant to Sections 4.02(d) through
(h), inclusive, is required (and exceeds in amount the aggregate principal
amount of Loans then outstanding) or would be required if Loans were then
outstanding, to extent that but for the reduction provided for in this Section
3.03(e), the Borrower
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would be required to make an offer to purchase Senior Subordinated Notes and/or
Additional Subordinated Debt as a result of any event set forth in such
Sections, the Total Revolving Loan Commitment (and the Revolving Loan Commitment
of each Lender with such a Commitment) shall be permanently reduced by the
amount, if any, by which the amount required to be applied pursuant to said
Section (determined as if an unlimited amount of Loans were actually
outstanding) exceeds the aggregate principal amount of Loans then outstanding.
(f) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Commitment (and the Term Loan
Commitment, Acquisition Loan Commitment and Revolving Loan Commitment of each
Lender) shall terminate on any date on which a Change of Control shall occur.
(g) Each reduction to the Total Term Loan Commitment, the Total
Acquisition Loan Commitment and the Total Revolving Loan Commitment pursuant to
this Section 3.03 (or pursuant to Section 4.02) shall be applied proportionately
to reduce the Term Loan Commitment, the Acquisition Loan Commitment or the
Revolving Loan Commitment, as the case may be, of each Lender with such a
Commitment.
SECTION 4. Prepayments; Payments; Taxes.
4.01 VOLUNTARY PREPAYMENTS. The Borrower shall have the right to
prepay the Loans, without premium or penalty, in whole or in part at any time
and from time to time on the following terms and conditions: (i) the Borrower
shall give the Administrative Agent prior to 3:00 P.M. (New York time) at its
Notice Office at least one Business Day's prior written notice (or telephone
notice promptly confirmed in writing) of its intent to prepay Loans (or same day
notice in the case of Swingline Loans provided such notice is given prior to
3:00 P.M. (New York time)) whether Term Loans, Acquisition Loans, Revolving
Loans or Swingline Loans shall be prepaid, the amount of such prepayment and the
Types of Loans to be prepaid and, in the case of Eurodollar Loans, the specific
Borrowing or Borrowings pursuant to which made, which notice the Administrative
Agent shall promptly transmit to each of the Lenders; (ii) each prepayment shall
be in an aggregate principal amount of at least $500,000 (or $25,000 in the case
of Swingline Loans) or such lesser amount of a Borrowing which is outstanding,
PROVIDED that if any partial prepayment of Eurodollar Loans made pursuant to any
Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, then such Borrowing may not be continued as a Borrowing of Eurodollar
Loans and any election of an Interest Period with respect thereto given by the
Borrower shall have no force or effect; (iii) at the time of any prepayment of
Eurodollar Loans pursuant to this Section 4.01 on any date other than the last
day of the Interest Period applicable thereto, the Borrower shall pay the
amounts required pursuant to Section 1.11; (iv) in the event of certain refusals
by a Lender as provided in Section 13.12(b) to consent to certain proposed
changes, waivers, discharges or terminations with respect to this Agreement
which have been approved by the Required Lenders, the Borrower may, upon five
Business Days' written notice to the Administrative Agent at its Notice Office
(which notice the Administrative Agent shall promptly transmit to each of the
Lenders) repay all Loans, together with
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accrued and unpaid interest, Fees, and other amounts owing to such Lender (or
owing to such Lender with respect to each Tranche which gave rise to the need to
obtain such Lender's individual consent) in accordance with said Section
13.12(b) so long as (A) in the case of the repayment of Revolving Loans of any
Lender pursuant to this clause (iv) the Revolving Loan Commitment of such Lender
is terminated concurrently with such repayment (at which time Schedule I shall
be deemed modified to reflect the changed Revolving Loan Commitments), and (B)
the consents required by Section 13.12(b) in connection with the repayment
pursuant to this clause (iv) have been obtained; and (v) except as expressly
provided in preceding clause (iv) and except with respect to prepayments of
Acquisition Loans which shall be applied PRO RATA based upon the AL Percentages
of Lenders with Acquisition Loans then outstanding (with the Borrower to
designate the Borrowing or Borrowings of Acquisition Loans to be prepaid,
subject to the foregoing provision), each prepayment in respect of any Loans
made pursuant to a Borrowing shall be applied PRO RATA among the Loans
comprising such Borrowing; PROVIDED that at the Borrower's election in
connection with any prepayment of Revolving Loans pursuant to this Section 4.01,
such prepayment shall not be applied to any Revolving Loan of a Defaulting
Lender. Each prepayment of principal of any Term Loans pursuant to this Section
4.01 shall be applied to reduce the then remaining TL Scheduled Repayments PRO
RATA based upon the then remaining principal amounts of the TL Scheduled
Repayments after giving effect to all prior reductions thereto. Each prepayment
of principal of Acquisition Loans (x) if made on or prior to the Acquisition
Facility Reduction Date, shall have no effect on the amortization of Acquisition
Loans as set forth in Section 4.02(c), (y) if made after the Acquisition
Facility Reduction Date and prior to or on the Acquisition Facility Expiry Date,
shall be applied, at the Borrower's election, (I) to reduce on a PRO RATA basis
the then remaining principal amounts of the AL Year 3 Scheduled Repayments after
giving effect to all prior reductions thereto or (II) to reduce Year 4 Reference
Amount as calculated on the date of such prepayment, and (z) if made after the
Acquisition Facility Expiry Date, shall be applied at the Borrower's election,
(I) to reduce on a PRO RATA basis the then remaining principal amounts of the AL
Year 3 Scheduled Repayments after giving effect to all prior reductions thereto
or (II) to reduce on a PRO RATA basis the then remaining principal amounts of
the AL Year 4 Scheduled Repayments after giving effect to all prior reductions
thereto, PROVIDED that if, as a result of an application described in subclause
(I) or (II) of clause (x) or (y) above, such applicable amounts shall have been
reduced to zero, the remainder of such prepayment shall be applied as provided
in the other such subclause.
4.02 MANDATORY REPAYMENTS AND COMMITMENT REDUCTIONS. (a) On any day
on which the sum of the aggregate outstanding principal amount of the Revolving
Loans, Swingline Loans and the Letter of Credit Outstandings exceeds the Total
Revolving Loan Commitment as then in effect, the Borrower shall prepay on such
day principal of Swingline Loans and, after the Swingline Loans have been repaid
in full, Revolving Loans in an amount equal to such excess. If, after giving
effect to the prepayment of all outstanding Swingline Loans and Revolving Loans,
the aggregate amount of the Letter of Credit Outstandings exceeds the Total
Revolving Loan Commitment as then in effect, the Borrower shall pay to the
Administrative Agent at the Payment Office on such date an amount of cash or
Cash Equivalents equal to the amount of such excess (up to a maximum amount
equal to the Letter of Credit Outstandings at such time), such cash or Cash
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Equivalents to be held as security for all obligations of the Borrower hereunder
in a cash collateral account to be established by the Administrative Agent.
(b) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Borrower shall be required to repay that principal amount of Term Loans, to the
extent then outstanding, as is set forth opposite such date (each such
repayment, as the same may be reduced as provided in Sections 4.01 and 4.02(i),
a "TL Scheduled Repayment," and each such date, a "TL Scheduled Repayment
Date"):
TL
Scheduled Repayment Date Amount
------------------------ ------
The last Business Day of June, 1999 $1,000,000
The last Business Day of September, 1999 $1,000,000
The last Business Day of December, 1999 $1,000,000
The last Business Day of March, 2000 $1,000,000
The last Business Day of June, 2000 $3,000,000
The last Business Day of September, 2000 $3,000,000
The last Business Day of December, 2000 $3,000,000
The last Business Day of March, 2001 $3,000,000
The last Business Day of June, 2001 $4,500,000
The last Business Day of September, 2001 $4,500,000
The last Business Day of December, 2001 $4,500,000
The last Business Day of March, 2002 $4,500,000
The last Business Day of June, 2002 $5,250,000
The last Business Day of September, 2002 $5,250,000
The last Business Day of December, 2002 $5,250,000
Term Loan Maturity Date $5,250,000
(c) (i) In addition to any other mandatory repayments or commitment
reductions pur suant to this Section 4.02, on each date set forth below, the
Borrower shall be required to repay that percentage as is set forth opposite
such date multiplied by the aggregate principal amount of Acquisition Loans
(such amount, the "Year 3 Reference Amount") outstanding on the Acquisition
Facility Reduction Date (each such repayment, as the same may be reduced as
provided in Sections 4.01 and 4.02(i) and (j) an "AL Year 3 Scheduled
Repayment," and each such date, an "Initial AL Scheduled Repayment Date"):
Initial AL Scheduled Repayment Date Percentage Of Year 3 Reference Amount
----------------------------------- -------------------------------------
The last Business Day of June, 2001 6.25%
The last Business Day of September, 2001 6.25%
The last Business Day of December, 2001 6.25%
The last Business Day of March, 2002 6.25%
The last Business Day of June, 2002 6.25%
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The last Business Day of September, 2002 6.25%
The last Business Day of December, 2002 6.25%
The last Business Day of March, 2003 6.25%
The last Business Day of June, 2003 12.5%
The last Business Day of September, 2003 12.5%
The last Business Day of December, 2003 12.5%
The RL/AL Maturity Date 12.5%
(ii) In addition to any other mandatory repayments or commitment
reductions pur suant to this Section 4.02, on the last Business Day of each
March, June, September and December, commencing in June of 2002 and ending in
December of 2003 and on the RL/AL Maturity Date, the Borrower shall be required
to repay an amount of Acquisition Loans equal to 12.5% multiplied by the
aggregate principal amount (such amount, at any time of calculation thereof, the
"Year 4 Reference Amount") of Acquisition Loans initially extended on or after
the Acquisition Facility Reduction Date and on or prior to the Acquisition
Facility Expiry Date (as such amount may be reduced pursuant to Section 4.01 and
4.02(i)) (each such repayment, as the same may be reduced as provided in
Sections 4.01 and 4.02(i) and (j) an "AL Year 4 Scheduled Repayment," and each
such date, an "Additional AL Scheduled Repayment Date").
(d) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within one Business Day following each
date after the Effective Date upon which the Borrower or any of its Subsidiaries
receives any proceeds from any sale or issuance of its equity (other than
proceeds received (x) on or prior to the Initial Borrowing Date as a result of
the Equity Contribution, (y) from the exercise of stock options granted to
management as permitted hereunder, and (z) issuance of common equity by a
Subsidiary of the Borrower to the Borrower or a Subsidiary Guarantor (the
proceeds described in such clauses (x), (y) and (z) collectively, the "Excluded
Proceeds")) an amount equal to 50% of the cash proceeds of the respective sale
or issuance (net of underwriting discounts and commissions and other direct
costs associated therewith, including, without limitation, legal fees and
expenses) shall be applied as a mandatory repayment of principal of outstanding
Loans (or, if the Initial Borrowing Date has not yet occurred, 100% of such
amounts shall be applied as a mandatory reduction to the Total Commitment) in
accordance with the requirements of Section 4.02(i) and (j); PROVIDED that the
Borrower shall not be required to comply with this Section 4.02(d) until such
time as the net proceeds from all such issuances of equity exceed $1,000,000.
(e) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within one Business Day following
each date after the Effective Date upon which the Borrower or any of its
Subsidiaries receives any proceeds from any incurrence by the Borrower or any of
its Subsidiaries of Indebtedness for borrowed money (other than Indebtedness for
borrowed money permitted to be incurred pursuant to Section 9.04 as such Section
is in effect on the Effective Date), an amount equal to 100% of the cash
proceeds (net of underwriting discounts and commissions and other costs
associated therewith including, without limitation, legal fees and expenses) of
the respective incurrence of Indebtedness shall be applied as a mandatory
repayment
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of principal of outstanding Loans (or, if the Initial Borrowing Date has not yet
occurred, such amounts shall be applied as a mandatory reduction to the Total
Commitment) in accordance with the requirements of Sections 4.02(i) and (j).
(f) In addition to any other mandatory repayments or commitment
reductions pur suant to this Section 4.02, within two Business Days following
each date after the Effective Date upon which the Borrower or any of its
Subsidiaries receives proceeds from any sale of assets (including capital stock
and securities held thereby, but excluding (i) sales or transfers of inventory
in the ordinary course of business, (ii) sales or transfers of assets in
accordance with Sections 9.02(iii) and (vi) as originally in effect, and (iii)
sales of assets between the Borrower and its Wholly-Owned Subsidiaries and/or
sales of assets between Wholly-Owned Subsidiaries of the Borrower, in each case
to the extent permitted by Section 9.02), an amount equal to 100% of the Net
Sale Proceeds therefrom shall be applied as a mandatory repayment of principal
of outstanding Loans (or, if the Initial Borrowing Date has not yet occurred,
such amounts shall be applied as a mandatory reduction to the Total Commitment)
in accordance with the requirements of Sections 4.02(i) and (j), PROVIDED that
so long as no Default or Event of Default then exists, (i) with respect to no
more than (I) $2,000,000 in aggregate amount of consideration received in any
transaction or series of related transactions and (II) no more than $5,000,000
in the aggregate of such Net Sale Proceeds in any fiscal year of the Borrower,
such Net Sale Proceeds shall not be required to be so applied on such date to
the extent that no Default or Event of Default then exists and the Borrower
delivers a certificate to the Administrative Agent on or prior to such date
stating that such Net Sale Proceeds shall be used to purchase assets used or to
be used in, or, to the extent otherwise permitted by this Agreement, to acquire
the capital stock of a Person engaged and to be engaged in, the businesses
referred to in Section 9.01 within 360 days following the date of such asset
sale (which certificate shall set forth the estimates of the proceeds to be so
expended) and (ii) the Borrower shall not be required to comply with this clause
(f) until such time as the cumulative Net Sale Proceeds from all asset sales not
yet applied as a mandatory repayment hereunder equals or exceeds $2,000,000, and
PROVIDED FURTHER, that if all or any portion of such Net Sale Proceeds not so
applied to the repayment of Loans have not yet resulted in a requirement that
the Borrower make an offer to repurchase Senior Subordinated Notes and/or
Additional Subordinated Debt (a "Note Offer") and are either (A) not so used (or
contractually committed to be used to purchase assets) within such 360-day
period or (B) if committed to be used within such 360-day period and not so used
within two years after the date of the respective asset sale then, in either
such case, such remaining portion not used or committed to be used in the case
of preceding clause (A) and not used in the case of preceding clause (B) shall
be applied on the last day of such period or, if earlier, the date on which the
Borrower would be obligated to make a Note Offer with respect to such Asset Sale
as a mandatory repayment of principal of outstanding Loans in accordance with
the requirements of Section 4.02(i) and (j).
(g) In addition to any other mandatory repayments pursuant to this
Section 4.02, on each Excess Cash Payment Date, an amount equal to 50% of the
Excess Cash Flow for the relevant Excess Cash Payment Period shall be applied as
a mandatory repayment of principal of outstanding Loans in accordance with the
requirements of Sections 4.02(i) and (j).
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(h) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within 30 days following each date
after the Initial Borrowing Date on which the Borrower or any of its
Subsidiaries receives any proceeds from any Recovery Event, an amount equal to
100% of the proceeds of such Recovery Event (net of reasonable costs including,
without limitation, legal costs and expenses, and taxes incurred in connection
with such Recovery Event) shall be applied as a mandatory repayment of principal
of outstanding Loans (or, if the Initial Borrowing Date has not yet occurred,
such amounts shall be applied as a mandatory reduction to the Total Commitment)
in accordance with the requirements of Sections 4.02(i) and (j), PROVIDED that
so long as no Default or Event of Default then exists, such proceeds shall not
be required to be so applied on such date to the extent that the Borrower has
delivered a certificate to the Administrative Agent on or prior to such date
stating that such proceeds shall be used or shall be committed to be used to
replace or restore any properties or assets in respect of which such proceeds
were paid within 360 days following the date of such Recovery Event (which
certificate shall set forth the estimates of the proceeds to be so expended),
and PROVIDED FURTHER, that if all or any portion of such proceeds not required
to be applied to the repayment of Loans are either (A) not so used or committed
to be so used within 360 days after the date of the respective Recovery Event or
(B) if committed to be used within 360 days after the date of receipt of such
Net Sale Proceeds and not so used within two years after the date of the
respective Recovery Event then, in either such case, such remaining portion not
used or committed to be used in the case of preceding clause (A) and not used in
the case of preceding clause (B) shall be applied on the last day of the
respective period above as a mandatory repayment of principal of outstanding
Loans in accordance with the requirements of Section 4.02(i) and (j).
(i) Each amount required to be applied to repay Loans (or to reduce
Commitments) pursuant to Sections 4.02(d), (e), (f), (g) and (h) shall be
applied FIRST, to repay Term Loans (or if the Initial Borrowing Date has not
occurred, to reduce the Total Term Loan Commitment); SECOND, after all Term
Loans shall have been repaid (and the Total Term Loan Commitment reduced to
zero), to repay Acquisition Loans; THIRD, after all Acquisition Loans shall have
been repaid, to repay Swingline Loans and FOURTH after all Swingline Loans shall
have been repaid, to repay Revolving Loans and, concurrently with the prepayment
described in THIRD and FOURTH above, to the extent provided in Section 3.03(e),
to reduce the Total Revolving Loan Commitment. The amount of each principal
repayment of Term Loans made as required by Sections 4.02(d), (e), (f), (g) and
(h) shall be applied to reduce the then remaining TL Scheduled Repayments PRO
RATA based upon the then remaining TL Scheduled Repayments after giving effected
to all prior reduction thereto. The amount of each principal repayment of
Acquisition Loans pursuant to this Section 4.02(i) shall be applied in the same
manner set forth in Section 4.01 with respect to voluntary prepayments of
Acquisition Loans.
(j) With respect to each repayment of Loans required by this Section
4.02, the Borrower may designate the Types of Loans of the respective Tranche
which are to be repaid and, in the case of Eurodollar Loans, the specific
Borrowing or Borrowings of the respective Tranche pursuant to which made,
PROVIDED that: (i) repayments of Eurodollar Loans pursuant to this Section 4.02
may only be made on the last day of an Interest Period applicable thereto unless
all Eurodollar
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Loans of the respective Tranche with Interest Periods ending on such date of
required repayment and all Base Rate Loans of the respective Tranche have been
paid in full; (ii) if any repayment of Eurodollar Loans made pursuant to a
single Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount with respect
to such Tranche, such Borrowing shall be converted at the end of the then
current Interest Period into a Borrowing of Base Rate Loans; and (iii) each
repayment of any Loans comprising a Borrowing shall be applied PRO RATA among
such Loans; PROVIDED FURTHER that, notwithstanding the foregoing clauses (i) -
(iii), prepayments of Acquisition Loans shall be applied PRO RATA based upon the
AL Percentages of Lenders with Acquisition Loans then outstanding. In the
absence of a designation by the Borrower as described in the preceding sentence,
the Administrative Agent shall, subject to the above, make such designation in
its sole discretion with a view, but no obligation, to minimize breakage costs
under Section 1.11.
(k) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, (i) all then outstanding Swingline Loans shall be repaid in full
on the Swingline Expiry Date and (ii) all other then outstanding Loans shall be
repaid in full on the respective Maturity Date for such Loans.
4.03 METHOD AND PLACE OF PAYMENT. Except as otherwise specifically
provided herein, all payments under this Agreement or any Note shall be made to
the Administrative Agent for the account of the Lender or Lenders entitled
thereto not later than 12:00 Noon (New York time) on the date when due and shall
be made in Dollars in immediately available funds at the Payment Office of the
Administrative Agent, it being understood that written or facsimile transmission
notice by the Borrower to the Administrative Agent to make a payment from the
funds in the Borrower's account at the Payment Office shall constitute the
making of such payment to the extent of such funds held in such account. Any
payments under this Agreement or under any Note which are made later than 12:00
Noon (New York time) shall be deemed to have been made on the next succeeding
Business Day. Whenever any payment to be made hereunder or under any Note shall
be stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and, with respect to
payments of principal, interest shall be payable at the applicable rate during
such extension.
4.04 NET PAYMENTS; TAXES. (a) All payments made by any Credit Party
hereunder, or under any Note or other Credit Document will be made without
setoff, counterclaim or other defense. Except as provided in Section 4.04(b),
all such payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein with respect to such payments (but excluding, except as provided in the
second succeeding sentence, any Excluded Taxes) and all interest, penalties or
similar liabilities with respect thereto (all such nonexcluded taxes, levies,
imposts, duties, fees, assessments or other charges being referred to
collectively as "Taxes"). If any Taxes are so levied or imposed, (i) the sum
payable shall be increased by the amount necessary so that every payment of all
amounts due under this Agreement or under any Note, after withholdings
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or deductions for or on account of Taxes will not be less than the amount
provided for herein or in such Note, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount of such Taxes to the
relevant taxing authority in accordance with applicable law. If any amounts are
payable in respect of Taxes pursuant to the preceding sentence, the Borrower
agrees to reimburse each Lender, upon the written request of such Lender, for
taxes relating to such amounts imposed on or measured by the net income or net
profits of such Lender pursuant to the laws of the jurisdiction in which the
principal office or applicable lending office of such Lender is located or under
the laws of any political subdivision or taxing authority of any such
jurisdiction in which the principal office or applicable lending office of such
Lender is located and for any withholding of taxes as such Lender shall
determine are payable by, or withheld from, such Lender in respect of such
amounts so paid to or on behalf of such Lender pursuant to the preceding
sentence and in respect of any amounts paid to or on behalf of such Lender
pursuant to this sentence. The Borrower will furnish to the Administrative Agent
promptly, and in any event within 45 days after the date the payment of any
Taxes is due, certified copies of tax receipts, if any, issued by such taxing
authority, or other evidence reasonably acceptable to the Administrative Agent
evidencing such payment by the Borrower (or, if the Borrower has not received
such certified copies of tax receipts within such time period, then the Borrower
shall furnish such certified copies of tax receipts to the Administrative Agent
promptly, and in any event within 15 days after the Borrower has received such
certified copies of tax receipts). The Borrower agrees to indemnify and hold
harmless each Lender, and reimburse such Lender upon its written request, for
the amount of any Taxes so levied or imposed and paid by such Lender, other than
penalties, additions to tax, interest and expenses arising as a result of the
willful misconduct or gross negligence of such Lender. Such indemnification
shall be made promptly, and in any event within 30 days after the date upon
which such Lender makes written demand therefor, which demand shall identify the
nature and amount of Taxes for which indemnification is sought. In addition, the
Borrower agrees to pay any present and future stamp, documentary taxes or any
other excise, property, transfer or similar taxes, and any charges relating
thereto, arising from any payment made hereunder or from the execution,
delivery, enforcement or registration of, or otherwise in connection with, this
Agreement.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to the Borrower
and the Administrative Agent on or prior to the Effective Date, or in the case
of a Lender that is an assignee or transferee of an interest under this
Agreement pursuant to Section 1.13, 1.14 or 12.04 (unless the respective Lender
was already a Lender hereunder immediately prior to such assignment or
transfer), on the date of such assignment or transfer to such Lender, (i) two
accurate and complete original signed copies of Internal Revenue Service Form
4224 or 1001 (or successor forms) certifying to such Lender's entitlement to a
complete exemption from United States withholding tax with respect to payments
to be made under this Agreement and under any Note, or (ii) if the Lender is not
a "bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Internal Revenue Service Form 1001 or 4224 pursuant to clause (i)
above, (x) a certificate substantially in the form of Exhibit E (any such
certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and
complete original signed copies of Internal Revenue Service Form W-8 (or
successor form) certifying to such Lender's entitlement as of such date to a
complete exemption from United States withholding tax with respect
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to payments of interest to be made under this Agreement and under any Note. In
addition, each Lender agrees that from time to time after the Effective Date,
when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will, but only
so long as such Lender or Eligible Transferee remains lawfully able to do so,
deliver to the Borrower and the Administrative Agent two new accurate and
complete original signed copies of Internal Revenue Service Form 4224 or 1001,
or Form W-8 and a Section 4.04(b)(ii) Certificate, as the case may be, and such
other forms as may be required in order to confirm or establish the entitlement
of such Lender to a continued exemption from or reduction in United States
withholding tax with respect to payments under this Agreement and any Note, or
it shall immediately notify the Borrower and the Administrative Agent of its
inability to deliver any such Form or Certificate. Notwithstanding any other
provision of this Section 4.04(b) and Section 12.04, a Lender or Eligible
Transferee shall be required to deliver any form and/or certification pursuant
to this Section 4.04(b) only if such Lender or Eligible Transferee is lawfully
able to do so and is legally entitled to claim an exemption from United States
withholding and is otherwise legally entitled to provide such form and/or
certification. Notwithstanding anything to the contrary contained in Section
4.04(a), but subject to Section 12.04(b) and the immediately succeeding
sentence, (x) the Borrower shall be entitled, to the extent it is required to do
so by law, to deduct or withhold income or similar taxes imposed by the United
States (or any political subdivision or taxing authority thereof or therein)
from interest, fees or other amounts payable hereunder for the account of any
Lender which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that
such Lender has not provided to the Borrower U.S. Internal Revenue Service Forms
that establish a complete exemption from or reduction in such deduction or
withholding except if such Lender or Eligible Transferee is not lawfully able to
deliver such forms and (y) the Borrower shall not be obligated pursuant to
Section 4.04(a) hereof to gross-up payments to be made to a Lender in respect of
income or similar taxes imposed by the United States if such Lender has not
provided to the Borrower the Internal Revenue Service Forms required to be
provided to the Borrower pursuant to this Section 4.04(b) except if such Lender
or Eligible Transferee is not lawfully able to deliver such forms. Subject to
Section 13.04(b), the Borrower agrees to pay additional amounts and to indemnify
each Lender in the manner set forth in Section 4.04(a) (without regard to the
identity of the jurisdiction requiring the deduction or withholding) in respect
of any amounts deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes that are effective after the
Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of income or similar Taxes.
(c) If any Lender receives a refund in respect of any Taxes as to
which it has been indemnified by any of the Borrower pursuant to this Section
4.04, it shall promptly notify the Borrower of such refund and, within 30 days
of receipt, pay over such refund to the Borrower (to the extent of amounts that
have been paid by any of the Borrower under this Section 4.04 with respect to
such refund and not previously reimbursed), net of all reasonably documented
out-of-pocket expenses of such Lender and without interest (other than the
interest, if any, included in such refund net of any Taxes payable with respect
to receipt of such refund), provided that such Borrower,
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upon written request of the Lender agrees to return such refund (plus penalties,
interest or other charges) to such Lender in the event such bank is required to
repay such refund.
SECTION 5. CONDITIONS PRECEDENT TO LOANS. The obligation of each
Lender to make Loans, and the obligation of each Issuing Lender to issue Letters
of Credit, on the Initial Borrowing Date, is subject at the time of the making
of such Loans or the issuance of such Letters of Credit to the satisfaction of
the following conditions:
5.01 EXECUTION OF AGREEMENT; NOTES. On or prior to the Initial
Borrowing Date (i) the Effective Date shall have occurred and (ii) there shall
have been delivered to the Administrative Agent for the account of each of the
Lenders requesting same the appropriate Term Note, Acquisition Note and/or
Revolving Note executed by the Borrower, and to the Swingline Lender the
Swingline Note executed by the Borrower, in each case in the amount, maturity
and as otherwise provided herein.
5.02 FEES, ETC. On the Initial Borrowing Date, the Borrower shall
have paid to the Agents and the Lenders all costs, fees and expenses (including,
without limitation, legal fees and expenses) payable to the respective Agents
and the Lenders to the extent then due.
5.03 OPINIONS OF COUNSEL. On the Initial Borrowing Date, the
Administrative Agent shall have received (i) from Xxxxxxxx, Xxxxxxx & Xxxxxxx,
special counsel to the Borrower and its Subsidiaries, an opinion addressed to
each of the Agents and each of the Lenders and dated the Initial Borrowing Date
covering the matters set forth in Exhibit F and (ii) from Xxx & Xxxxx
Incorporated, special Texas counsel satisfactory to the Agents, an opinion which
(x) shall be addressed to each of the Agents and each of the Lenders and dated
the Initial Borrowing Date, (y) shall be in form and substance satisfactory to
the Agents and the Required Lenders and (z) shall cover the perfection of the
security interests granted pursuant to the Security Agreement and such other
matters incident to the transactions contemplated herein as the Agents may
reasonably request.
5.04 CORPORATE DOCUMENTS; PROCEEDINGS; ETC. (a) On the Initial
Borrowing Date, the Administrative Agent shall have received a certificate,
dated the Initial Borrowing Date, signed by the Chairman of the Board, the
President, any Vice President or the Treasurer of each Credit Party, and
attested to by the Secretary or any Assistant Secretary of such Credit Party, in
the form of Exhibit G with appropriate insertions, together with copies of the
Certificate of Incorporation and By-Laws of such Credit Party and the
resolutions of such Credit Party referred to in such certificate, and the
foregoing shall be reasonably acceptable to the Agents.
(b) All corporate and legal proceedings and all material instruments
and agreements in connection with the transactions contemplated by this
Agreement and the other Documents shall be reasonably satisfactory in form and
substance to the Agents and the Required Lenders, and the Administrative Agent
shall have received all information and copies of all documents and papers,
including records of corporate proceedings, governmental approvals, good
standing certificates and bring-down telegrams or facsimiles, if any, which any
Agent reasonably may have requested in
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connection therewith, such documents and papers where appropriate to be
certified by proper corporate or governmental authorities.
5.05 EMPLOYEE BENEFIT PLANS; SHAREHOLDERS' AGREEMENTS; MANAGEMENT
AGREEMENTS; COLLECTIVE BARGAINING AGREEMENTS; DEBT AGREEMENTS; ACQUISITION
DOCUMENTS; TAX SHARING AGREEMENTS. On the Initial Borrowing Date, there shall
have been made available for review by the Agents and by any Bank requesting
same true and correct copies of the following documents (which copies in the
case of the documents described in clauses (ii), (iii), (v), (vi) and (vii)
shall be certified by the President or any Vice President of the Borrower):
(i) all Plans and all Multiemployer Plans (and for each such plan
that is required to file an annual report on Internal Revenue Service Form
5500-series, a copy of the most recent such report (including, to the
extent required, the related financial and actuarial statements and
opinions and other supporting statements, certifications, schedules and
information), and for each such plan that is a "single-employer plan," as
defined in Section 4001(a)(15) of ERISA, the most recently prepared
actuarial valuation therefor) and any other "employee benefit plans," as
defined in Section 3(3) of ERISA, and any other material agreements, plans
or arrangements, with or for the benefit of current or former employees of
the Borrower or any of its Subsidiaries or any ERISA Affiliate (provided
that the foregoing shall apply in the case of any multiemployer plan, as
defined in 4001(a)(3) of ERISA, only to the extent that any document
described therein is in the possession of the Borrower or any of its
Subsidiaries or any ERISA Affiliate or reasonably available thereto from
the sponsor or trustee of any such plan) (collectively, the "Employee
Benefit Plans");
(ii) all agreements entered into by the Borrower or any of its
Subsidiaries governing the terms and relative rights of its capital stock
and any agreements entered into by shareholders relating to any such
entity with respect to its capital stock (collectively, the "Shareholders'
Agreements");
(iii) all agreements with members of, or with respect to, the
management of the Borrower or any of its Subsidiaries (collectively, the
"Management Agreements");
(iv) all collective bargaining agreements applying or relating to
any employee of the Borrower or any of its Subsidiaries (collectively, the
"Collective Bargaining Agreements");
(v) all agreements evidencing or relating to Indebtedness of the
Borrower or any of its Subsidiaries which is to remain outstanding after
giving effect to the incurrence of Loans on the Initial Borrowing Date
(collectively, the "Debt Agreements");
(vi) all tax sharing, tax allocation and other similar agreements
entered into by the Borrower or any of its Subsidiaries (collectively, the
"Tax Sharing Agreements"); and
(vii) the Visionworks Lease;
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all of which Employee Benefit Plans, Shareholders' Agreements, Management
Agreements, Collective Bargaining Agreements, Debt Agreements, Tax Sharing
Agreements and the Visionworks Lease shall be in form and substance reasonably
satisfactory to the Agents and the Required Lenders and shall be in full force
and effect on the Initial Borrowing Date.
5.06 CONSUMMATION OF RECAPITALIZATION TRANSACTION. (a) On or prior
to the Initial Borrowing Date, there shall have been delivered to the Agents and
the Lenders true and correct copies of the Recapitalization Documents, and with
all such Recapitalization Documents to be in form and substance satisfactory to
the Agents and the Required Lenders. All Recapitalization Documents shall have
been duly executed and delivered by the parties thereto and shall be in full
force and effect. All conditions precedent to the consummation of the
Recapitalization Transaction as set forth in the Recapitalization Documents
shall have been satisfied in all material respects, and not waived except with
the consent (which will not be unreasonably withheld) of each Agent and the
Required Lenders, to the satisfaction of each Agent and the Required Lenders.
The Recapitalization Transaction shall have been, or shall substantially
contemporaneously (and in any event on the Initial Borrowing Date) be,
consummated in accordance with the Recapitalization Documents and all applicable
law (excluding immaterial violations of law which could not reasonably be
expected to have, in the aggregate for all such violations, a material adverse
effect on the consummation of the Recapitalization Transaction or a Material
Adverse Effect).
(b) On or prior to the Initial Borrowing Date, the Borrower shall
have received as equity contributions (x) approximately $77.0 million
(consisting of at least $65.0 million of cash contributed by THL and the THL
Affiliates and the remainder constituting a continuing equity investment by
certain shareholders of the Borrower which were shareholders prior to the
Initial Borrowing Date and an investment by certain members of management
(collectively, the "Additional Investors")), in return for which the Borrower
shall have issued 618,950 shares of Borrower Common Stock, as such number may be
adjusted for fractional shares (the "Common Equity Contribution") and (y)
approximately $30.0 million (consisting of at least $25.0 million of cash from
THL and its Affiliates and the remainder in constituting a continuing equity
investment by certain of the Additional Investors) in return for which the
Borrower shall have issued 300,000 shares of Borrower Preferred Stock, as such
number may be adjusted for fractional shares (the "Preferred Equity
Contribution," and together with the Common Equity Contribution, the "Equity
Contribution"). After giving effect to the consummation of the Recapitalization
Transaction, THL and the THL Affiliates shall own, collectively, in excess of
90% of each of the voting and economic interest in the Borrower. On or prior to
the Initial Borrowing Date there shall have been delivered to the Agent and the
Lenders true and correct copies of the Equity Contribution Documents which
documents shall be in form and substance satisfactory to the Agents and the
Required Lenders. All conditions precedent to the consummation of the Equity
Contribution (and each component thereof) as set forth in the Equity
Contribution Documents shall have been satisfied and not waived except with the
consent (which will not be unreasonably withheld) of each Agent and the Required
Lenders. The Equity Contribution shall have been consummated in accordance with
the Equity Contribution Documents and all applicable laws (excluding immaterial
violations of law which have not had, and
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could not reasonably be expected to have, in the aggregate for all such
violations, a material adverse effect on the consummation of the Equity
Contribution or a Material Adverse Effect).
(c) On or prior to the Initial Borrowing Date, the Borrower shall
have used all the cash proceeds of the Equity Contribution to make payments
owing in connection with the Recapitalization Transaction before (or
concurrently with) utilizing any proceeds of Loans pursuant to this Agreement
for such purpose.
5.07 SENIOR SUBORDINATED NOTES. (a) On or prior to the Initial
Borrowing Date, the Borrower shall have received aggregate gross cash proceeds
of $150,000,000 from the issuance of Senior Subordinated Notes. All terms and
conditions of the Senior Subordinated Notes and the documentation with respect
thereto (including, without limitation, the maturity thereof, the required
repayments with respect thereto, the covenants, events of default and
subordination provisions with respect thereto, and the interest rate payable
with respect thereto) shall be in form and substance reasonably satisfactory to
each Agent and the Required Lenders. On or prior to the Initial Borrowing Date,
each Lender shall have received copies of all Senior Subordinated Note Documents
entered into, or proposed to be entered into, in respect of all of the
foregoing, certified on behalf of the Borrower as true and complete by the
President or any Vice President of the Borrower.
(b) On or prior to the Initial Borrowing Date, the Borrower shall
have used all cash proceeds (net of any underwriting commissions, fees or other
expenses) described in preceding clause (a) to make payments owing in connection
with the Recapitalization Transaction before (or concurrently with) utilizing
any proceeds of Loans pursuant to this Agreement for such purpose. The cash
proceeds received on or prior to the Initial Borrowing Date from the Senior
Subordinated Notes, when added to the cash proceeds of the Equity Contribution
plus the aggregate principal amount of Term Loans and Revolving Loans permitted
to be incurred on the Initial Borrowing Date, shall be sufficient to effect the
Recapitalization Transaction and to pay all fees and expenses in connection
therewith.
5.08 EXISTING NOTE DEFEASANCE. On or prior to the Initial Borrowing
Date, the Borrower shall have (i) effected a defeasance of the Existing Notes
Indenture in accordance with the terms thereof including, without limitation, by
depositing with the trustee under the Existing Notes Indenture such amounts as
are required thereunder to effect the same, which defeasance shall result in the
elimination of the operating covenants contained in the Existing Notes Indenture
and (ii) shall have delivered irrevocable notice to the Existing Notes Trustee
that the Borrower shall redeem (the "Existing Notes Redemption") the entire
principal amount of Existing Notes on October 1, 1998 at the price provided
therefor in the Existing Notes Indenture as in effect on the Effective Date and
as permitted by the terms thereof (the "Existing Notes Defeasance"). All terms
and conditions of the Existing Notes Defeasance shall be reasonably satisfactory
to the Agents and, on or prior to the Initial Borrowing Date, there shall have
been delivered to the Agents and the Lenders true and correct copies of the
Defeasance Documents, which documents shall be in form and substance
satisfactory to the Agents and the Required Lenders and which documents, in the
case of any legal opinions, shall be addressed also to each Agent and each
Lender. All material conditions precedent
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to the consummation of the Existing Notes Defeasance (and each component
thereof) as set forth in the Defeasance Documents and the Existing Notes
Indenture shall have been satisfied and not waived except with the consent
(which will not be unreasonably withheld) of each Agent and the Required
Lenders. The Existing Notes Defeasance shall have been consummated in accordance
with the Defeasance Documents, the Existing Notes Indenture and all applicable
laws (excluding immaterial violations of law which have not had, and could not
reasonably be expected to have, in the aggregate for all such violations, a
material adverse effect on the consummation of the Existing Note Defeasance or a
Material Adverse Effect).
5.09 REFINANCING. (a) On or prior to the Initial Borrowing Date, the
total commitments in respect of the Existing Credit Agreement shall have been
terminated, and all loans and notes with respect thereto shall have been repaid
in full, together with interest thereon, all letters of credit issued thereunder
and foreign currency contracts contemplated thereunder shall have been
terminated and all other amounts (including premiums) owing pursuant to the
Existing Credit Agreement shall have been repaid in full and all documents in
respect of the Existing Credit Agreement and all guarantees with respect thereto
shall have been terminated and be of no further force and effect.
(b) On the Initial Borrowing Date, the creditors in respect of the
Existing Credit Agreement shall have terminated and released all security
interests and Liens on the assets owned by the Borrower and Subsidiaries. The
Administrative Agent shall have received such releases of security interests in
and Liens on the assets owned by the Borrower and its Subsidiaries as may have
been requested by the Administrative Agent, which releases shall be in form and
substance reasonably satisfactory the Administrative Agent. Without limiting the
foregoing, there shall have been delivered (i) proper termination statements
(Form UCC-3 or the appropriate equivalent) for filing under the UCC of each
jurisdiction where a financing statement (Form UCC-1 or the appropriate
equivalent) was filed with respect to the Borrower or any of its Subsidiaries in
connection with the security interests created with respect to the Existing
Credit Agreement and the documentation related thereto, (ii) termination or
reassignment of any security interest in, or Lien on, any patents, trademarks,
copyrights, or similar interests of the Borrower or any of its Subsidiaries on
which filings have been made, (iii) terminations of all mortgages, leasehold
mortgages, deeds of trust and leasehold deeds of trust created with respect to
property of the Borrower or any of its Subsidiaries, in each case, to secure the
obligations in respect of the Existing Credit Agreement, all of which shall be
in form and substance reasonably satisfactory to the Agent, (iv) termination
notices and agreements with respect to all lockbox, warehousing, bailee and
similar agreements, duly acknowledged by all counterparties thereto, all of
which shall be in form and substance reasonably satisfactory to the
Administrative Agent, and (v) all collateral owned by the Borrower or any of its
Subsidiaries in the possession of any of the creditors in respect of the
Existing Credit Agreement or any collateral agent or trustee under any related
security document shall have been returned to the Borrower or such Subsidiary.
5.10 INDEBTEDNESS. Each element of the Transaction shall have been
consummated to the reasonable satisfaction of the Agents. After giving effect to
the consummation of the
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Transaction, the Borrower and its Subsidiaries shall have no outstanding
Indebtedness except (i) the Senior Subordinated Notes, (ii) the Loans, (iii) for
the period until October 1, 1998, the Existing Notes and (iv) such other
indebtedness, if any, as shall be permitted to remain outstanding by the Agents
and the Required Lenders and which is listed on Schedule V hereto.
5.11 SUBSIDIARIES GUARANTY. On the Initial Borrowing Date, each
Subsidiary Guarantor shall have duly authorized, executed and delivered a
Subsidiaries Guaranty in the form of Exhibit H hereto (as modified, supplemented
or amended from time to time, the "Subsidiaries Guaranty").
5.12 PLEDGE AGREEMENT. On the Initial Borrowing Date, each Credit
Party shall have duly authorized, executed and delivered a Pledge Agreement in
the form of Exhibit I (as modified, supplemented or amended from time to time,
the "Pledge Agreement") and shall have delivered to the Collateral Agent, as
pledgee, all the Pledged Securities, if any, referred to therein then owned by
such Credit Party, (x) endorsed in blank in the case of promissory notes
constituting Pledged Securities and (y) together with executed and undated stock
powers, in the case of capital stock constituting Pledged Securities.
5.13 SECURITY AGREEMENT. On the Initial Borrowing Date, each Credit
Party shall have duly authorized, executed and delivered a Security Agreement in
the form of Exhibit J (as modified, supplemented or amended from time to time,
the "Security Agreement") covering all of such Credit Party's present and future
Security Agreement Collateral, in each case together with:
(a) proper Financing Statements (Form UCC-1) fully executed for
filing under the UCC or other appropriate filing offices of each
jurisdiction as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests purported
to be created by the Security Agreement;
(b) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, listing all effective financing statements
that name any Credit Party as debtor and that are filed in the
jurisdictions referred to in clause (a) above, together with copies of
such other financing statements (none of which shall cover the Collateral
except to the extent evidencing Permitted Liens or in respect of which the
Collateral Agent shall have received termination statements (Form UCC-3)
or such other termination statements as shall be required by local law)
fully executed for filing;
(c) evidence of execution for post-closing filing and recordation of
all other recordings and filings of, or with respect to, the Security
Agreement as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests intended to
be created by such Security Agreement; and
(d) evidence that all other actions necessary or, in the reasonable
opinion of the Collateral Agent, desirable to perfect and protect the
security interests purported to be created by the Security Agreement have
been taken.
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5.14 CONSENT LETTER. On the Initial Borrowing Date, the
Administrative Agent shall have received a letter from CT Corporation System,
presently located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in form and
substance satisfactory to the Administrative Agent indicating its consent to its
appointment by each Credit Party as its agent to receive service of process as
specified in Section 13.08.
5.15 ADVERSE CHANGE, ETC. (a) On the Initial Borrowing Date, there
shall not have occurred or become known to the Agents any events, conditions
and/or contingencies that have had, or could reasonably be expected to have, a
Material Adverse Effect on the Borrower or on the Borrower and its Subsidiaries
taken as a whole since January 3, 1998.
(b) On or prior to the Initial Borrowing Date, all necessary
material governmental (domestic and foreign) and third party approvals and/or
consents in connection with the Transaction, the transactions contemplated by
the Credit Documents and otherwise referred to herein or therein shall have been
obtained and remain in effect (other than those third party approvals with
respect to the Recapitalization not so obtained which approvals are not
material, individually or in the aggregate), and all applicable waiting periods
shall have expired without any action being taken by any competent authority
which restrains, prevents or imposes materially adverse conditions upon the
consummation of the Transaction or the transactions contemplated by this
Agreement. Additionally, there shall not exist any judgment, order, injunction
or other restraint prohibiting or imposing materially adverse conditions upon
the Transaction or the transactions contemplated by this Agreement.
5.16 LITIGATION. On the Initial Borrowing Date, no litigation by any
entity (private or governmental) shall be pending or threatened with respect to
the Transaction or this Agreement or any documentation executed in connection
therewith, or which has had, or could reasonably be expected to have, a
materially adverse effect on the Transaction or a Material Adverse Effect (after
giving effect to the Transaction).
5.17 SOLVENCY OPINION; ENVIRONMENTAL ANALYSES; INSURANCE. On or
before the Initial Borrowing Date, the Borrower shall cause to be delivered to
the Administrative Agent (i) a solvency opinion from Valuation Research
Corporation, which shall be addressed to each Agent and each of the Lenders and
dated the Initial Borrowing Date, setting forth the conclusion that, after
giving effect to the Transaction and the incurrence of all the financings
contemplated herein, the Borrower (on a stand alone basis) and the Borrower and
its Subsidiaries taken as a whole (on a consolidated basis), are not insolvent
and will not be rendered insolvent by the indebtedness incurred in connection
therewith, and will not be left with unreasonably small capital with which to
engage in their businesses and will not have incurred debts beyond their ability
to pay debts as they mature and (ii) certificates of insurance complying with
the requirements of Section 8.03 for the business and properties of the Borrower
and its Subsidiaries, in scope, form and substance reasonably satisfactory to
the Agents and the Required Lenders and naming the Collateral Agent as an
additional insured and/or loss payee, and stating that such insurance shall not
be canceled or revised without 30 days prior written notice by the insurer to
the Collateral Agent.
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5.18 PRO FORMA BALANCE SHEET; FINANCIAL STATEMENTS; PROJECTIONS. On
or prior to the Initial Borrowing Date, the Agents and each Lender shall have
received copies of the financial statements (including the PRO FORMA financial
statements) and Projections referred to in Sections 7.10(b) and (e).
SECTION 6. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The obligation
of each Lender to make Loans (including Loans made on the Initial Borrowing Date
but excluding Mandatory Borrowings made thereafter, which shall be made as
provided in Section 1.01(e)), and the obligation of an Issuing Lender to issue
any Letter of Credit, is subject, at the time of each such Credit Event (except
as hereinafter indicated), to the satisfaction of the following conditions:
6.01 NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of each
such Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein or in any other Credit Document shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of the making of such Credit Event (it
being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct in
all material respects only as of such specified date).
6.02 NOTICE OF BORROWING; LETTER OF CREDIT REQUEST. (a) Prior to the
making of each Loan (excluding Swingline Loans), the Administrative Agent shall
have received the notice required by Section 1.03(a). Prior to the making of any
Swingline Loan, the Swingline Lender shall have received the notice required by
Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Issuing Lender shall have received a
Letter of Credit Request meeting the requirements of Section 2.02.
The acceptance of the proceeds of each Credit Event shall constitute
a representation and warranty by the Borrower to each of the Agents and each of
the Lenders that all the conditions specified in Section 5 and in this Section 6
and applicable to such Credit Event exist as of that time. All of the Notes,
certificates, legal opinions and other documents and papers referred to in
Section 5 and in this Section 6, unless otherwise specified, shall be delivered
to the Administrative Agent at the Notice Office for the account of each of the
Lenders and, except for the Notes, in sufficient counterparts for each of the
Lenders and shall be in form and substance reasonably satisfactory to the
Agents.
SECTION 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In order to
induce the Lenders to enter into this Agreement and to make the Loans and issue
and/or participate in the Letters of Credit provided for herein, the Borrower
makes the following representations, warranties and agreements in each case
after giving effect to the Transaction, all of which shall survive the execution
and delivery of this Agreement, the making of the Loans and the issuance of the
Letters of Credit (with the occurrence of each Credit Event being deemed to
constitute a representation and warranty that the matters specified in this
Section 6 are true and correct in all material respects on
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and as of the date of each such Credit Event, unless stated to relate to a
specific earlier date, in which case all representations and warranties
specifically relating to an earlier date shall be true and correct in all
material respects as of such earlier date):
7.01 CORPORATE STATUS. Each of the Credit Parties and each of the
Borrower's other Material Subsidiaries (i) is a duly organized and validly
existing corporation (or, in the case of any of the foregoing that is not a
corporation, other form of legal entity) in good standing under the laws of the
jurisdiction of its organization, (ii) has the corporate or other power and
authority to own its property and assets and to transact the business in which
it is engaged and presently proposes to engage and (iii) is duly qualified and
is authorized to do business and is in good standing in all jurisdictions where
it is required to be so qualified except for failures to be so qualified which,
either individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect.
7.02 CORPORATE POWER AND AUTHORITY. Each Credit Party has the
corporate or other power and authority to execute, deliver and carry out the
terms and provisions of each of the Documents to which it is a party and has
taken all necessary corporate or other action to authorize the execution,
delivery and performance of the each of such Documents. Each Credit Party has
duly executed and delivered each Document to which it is a party and each such
Document constitutes the legal, valid and binding obligation of such Credit
Party enforceable in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws generally affecting creditors' rights
and by equitable principles (regardless of whether enforcement is sought in
equity or at law).
7.03 NO VIOLATION. Neither the execution, delivery or performance by
any Credit Party of the Documents to which it is a party nor compliance by any
Credit Party with the terms and provisions thereof, nor the consummation of the
transactions contemplated herein or therein, (i) will materially contravene any
applicable provision of any law, statute, rule or regulation, or any order,
writ, injunction or decree of any court or governmental instrumentality, (ii)
(A) will conflict or be inconsistent with, or result in any breach of, any of
the terms, covenants, conditions or provisions of, or constitute a default
under, the Existing Notes Indenture or (B) will materially conflict or be
inconsistent with or result in any breach of, any of the terms, covenants,
conditions or provisions of, or constitute a default under, or (other than
pursuant to the Security Documents) result in the creation or imposition of (or
the obligation to create or impose) any Lien upon any of the property or assets
of the Borrower or any of its Subsidiaries pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement, credit agreement or any
other material agreement or instrument to which the Borrower or any of its
Subsidiaries is a party or by which it or any of its property or assets are
bound or to which it may be subject, except for such conflicts, inconsistencies,
breaches or defaults described in this clause (B) which, either individually or
in the aggregate, have not had, and could not reasonably be expected to have, a
Material Adverse Effect, or (iii) will violate any provision of the Certificate
of Incorporation or By-Laws of the Borrower or any of its Subsidiaries.
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7.04 LITIGATION. There are no actions, suits or proceedings pending
or, to the knowledge of the Borrower or any of its Subsidiaries, threatened,
with respect to the Borrower or any of its Subsidiaries (i) that have had, or
could reasonably be expected to have, a Material Adverse Effect or (ii) that
have had, or could reasonably be expected to have, a material adverse effect on
the rights or remedies of any Agent or the Lenders or on the ability of any
Credit Party to perform its respective obligations to the Agents or the Lenders
hereunder and under the other Credit Documents to which it is, or will be, a
party. Additionally, there does not exist any judgment, order or injunction
prohibiting or imposing material adverse conditions upon the occurrence of any
Credit Event.
7.05 USE OF PROCEEDS: MARGIN REGULATIONS. (a) The proceeds of all
Term Loans and Revolving Loans incurred on the Initial Borrowing Date shall be
utilized directly or indirectly (i) to finance a portion of the cash
consideration to be paid in connection with the Recapitalization Transaction,
and (ii) to pay the fees and expenses incurred in connection therewith.
(b) The proceeds of all Revolving Loans and Swingline Loans incurred
after the Initial Borrowing Date shall be utilized for working capital purposes
and other general corporate purposes of the Borrower and its Subsidiaries;
PROVIDED that (x) the proceeds of all Revolving Loans and/or Swingline Loans
incurred on the Visionworks Lease Expiry Date shall be utilized first to pay all
amounts owing in connection with the expiration of the Visionworks Lease, (y) no
more than $4,000,000 in aggregate principal amount of Revolving Loans and no
Swingline Loans may be incurred on the Initial Borrowing Date and (z) no
Revolving Loans or Swingline Loans may be incurred to finance Permitted
Acquisitions.
(c) The proceeds of all Acquisition Loans incurred on any date after
the Initial Borrowing Date shall be utilized directly or indirectly (i) to
finance the cash consideration to be paid in connection with one or more
Permitted Acquisitions consummated on such date and (ii) to pay the fees and
expenses incurred in connection therewith.
(d) Neither the making of any Loan, nor the use of the proceeds
thereof nor the occurrence of any other Credit Event, will violate or be
inconsistent with the provisions of Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System and no part of the proceeds of any Loan
will be used to purchase or carry any Margin Stock or to extend credit for the
purpose of purchasing or carrying any Margin Stock.
7.06 GOVERNMENTAL APPROVALS. All orders, consents, approvals,
licenses, authorizations, and validations of, and filings, recordings or
registrations with, or exemptions by, any foreign or domestic governmental or
public body or authority, or any subdivision thereof, which may be required to
authorize, or is required in connection with, (i) the execution, delivery and
performance by the Borrower or any Subsidiary of any Document or (ii) the
legality, validity, binding effect or enforceability of any Document, have been
obtained or made.
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7.07 INVESTMENT COMPANY ACT. Neither the Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.08 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower nor
any of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
7.09 TRUE AND COMPLETE DISCLOSURE. All factual information (taken as
a whole) heretofore or contemporaneously furnished by or on behalf of ECCA, the
Borrower or any of its Subsidiaries in writing to any Agent or any Lender
(including, without limitation, all information so furnished which is contained
in the Documents, the Offering Circular or in the Confidential Information
Memorandum dated April, 1998 for purposes of or in connection with this
Agreement, the other Credit Documents or any transaction contemplated herein or
therein is, and all other such factual information (taken as a whole) hereafter
furnished by or on behalf of any such Persons in writing to any Agent or any
Lender will be, true and accurate in all material respects on the date as of
which such information is dated or certified and not incomplete by omitting to
state any material fact necessary to make such information (taken as a whole)
not misleading at such time in light of the circumstances under which such
information was provided; PROVIDED that, with respect to projected financial
information, the Borrower makes only the representation set forth in Section
7.10(e) below.
7.10 FINANCIAL CONDITION, FINANCIAL STATEMENTs (a) On and as of the
Initial Borrowing Date, on a PRO FORMA basis after giving effect to the
Transaction and all other transactions contemplated by the Documents and to all
Indebtedness (including the Loans) incurred or assumed, and to be incurred or
assumed, and Liens created, and to be created, by each Credit Party in
connection therewith, with respect to the Borrower and its Subsidiaries (on a
consolidated basis) and the Borrower (on a stand alone basis) (x) the sum of the
assets, at a fair valuation, of each of the Borrower and its Subsidiaries (on a
consolidated basis) and of the Borrower (on a stand alone basis) will exceed its
or their debts, (y) it has not incurred, nor intended to, nor believes that it
will, incur, debts beyond its ability to pay such debts as such debts mature and
(z) it will have sufficient capital with which to conduct its business. For
purposes of this Section 7.10, "debt" means any liability on a claim, and
"claim" means (i) right to payment whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (ii) right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
(b) (i) The PRO FORMA (both immediately before and after giving
effect to the Transaction, the related financing thereof (including the Loans
and the Senior Subordinated Notes) and the other transactions contemplated
hereby and thereby) consolidated balance sheets of the Borrower and its
Subsidiaries taken as a whole as at the Initial Borrowing Date prepared on a
basis
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consistent with the Projections and copies of which have heretofore been
delivered to each Lender pursuant to Section 5.18 and (ii) the consolidated
balance sheets of the Borrower and its Subsidiaries at January 3, 1998 and the
related consolidated statements of income, stockholders' equity and cash flows
of the Borrower and its Subsidiaries for the fiscal year ended as of said date
(which financial statements have been audited by Ernst & Young LLP), copies of
which have heretofore been furnished to each Lender prior to the Effective Date
pursuant to Section 5.18, in each such case set forth in (i) and (ii) above are
true and correct in all material respects and present fairly in all material
respects the combined financial position of the Borrower and its Subsidiaries at
the date of said statements and the results for the period covered thereby (or,
in the case of the PRO FORMA balance sheets, present a good faith estimate of
the PRO FORMA consolidated financial condition of the Borrower and its
Subsidiaries both immediately before and immediately after giving effect to the
Transaction, and the related financing thereof at the date thereof). All such
financial statements described in clause (ii) above have been prepared in
accordance with GAAP consistently applied except to the extent provided in the
notes to said financial statements.
(c) Since January 3, 1998, nothing has occurred that has had or
could reasonably be expected to have a Material Adverse Effect.
(d) Except as fully reflected in the financial statements described
in Section 7.10(b) and the Indebtedness incurred under this Agreement, there
were as of the Initial Borrowing Date (and after giving effect to any Loans made
on such date), no liabilities or obligations with respect to the Borrower or any
of its Subsidiaries (whether absolute, accrued, contingent or otherwise and
whether or not due), and neither the Borrower nor any of its Subsidiaries know
of any basis for the assertion against the Borrower or any of its Subsidiaries
of any such liability or obligation, which, either individually or in the
aggregate, have had, or are or could be reasonably expected to have, a Material
Adverse Effect.
(e) The financial projections set forth in the Confidential
Information Memorandum dated April, 1998 (the "Projections"), which include the
projected results of the Borrower and its Subsidiaries for the five years ended
after the Initial Borrowing Date, have been prepared on a basis consistent with
the financial statements referred to in Section 7.01(a) and are based on good
faith estimates and assumptions made by the management of the Borrower and
believed reasonable and attainable at the time of execution of this Agreement,
and on the Initial Borrowing Date such management believed that the Projections
were reasonable and attainable and there are no statements or conclusions in any
of the Projections which are based upon or include information known to the
Borrower or any of its Subsidiaries to be misleading or which fail to take into
account material information including the matters reported therein, it being
recognized by the Agents and the Lenders, however, that projections as to future
events are not to be viewed as facts and that the actual results during the
period or periods covered by the Projections probably will differ from the
projected results and that such differences may be material.
7.11 SECURITY INTERESTS. On and after the Initial Borrowing Date,
each of the Security Documents creates (or after the execution and delivery
thereof will create), as security for the
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Obligations and the other obligations purportedly secured thereby, a legal,
valid and enforceable (and, after effecting the filing referred to in the next
succeeding sentence, perfected) security interest in and Lien on all of the
Collateral subject thereto, superior to and prior to the rights of all third
Persons, and subject to no other Liens (except that the Security Agreement
Collateral, the Mortgaged Properties and the Collateral covered by the
Additional Security Documents may be subject to Permitted Liens relating
thereto), in favor of the Collateral Agent. No filings or recordings are
required in order to perfect the security interests created under any Security
Document except for filings or recordings required in connection with any such
Security Document which will be prepared for filing and delivered to the
Collateral Agent and which shall have been made on or prior to the Initial
Borrowing Date as contemplated by Section 5.13 or on or prior to the execution
and delivery thereof as contemplated by Sections 8.11 and 8.12. Each of the
Credit Parties party to a Security Document has good and valid title to all
Collateral described therein, free and clear of all Liens except those described
in this Section 9.03.
7.12 REPRESENTATIONS AND WARRANTIES IN OTHER DOCUMENTS. All
representations and warranties set forth in the other Documents were true and
correct in all material respects as of the time such representations and
warranties were made and shall be true and correct in all material respects as
of the Initial Borrowing Date as if such representations and warranties were
made on and as of such date, unless stated to relate to a specific earlier date,
in which case such representations and warranties shall be true and correct in
all material respects as of such earlier date.
7.13 TRANSACTION. At the time of consummation thereof, all consents
and approvals of, and filings and registrations with, and all other actions in
respect of, all governmental agencies, authorities or instrumentality's required
to make or consummate the Transaction have been obtained, given, filed or taken
and are or will be in full force and effect (or effective judicial relief with
respect thereto has been obtained) except where the failure to obtain, give,
file, or take has not had, and could not reasonably be expected to have, a
Material Adverse Effect. All applicable waiting periods with respect thereto
have or, prior to the time when required, will have, expired without, in all
such cases, any action being taken by any competent authority which restrains,
prevents, or imposes material adverse conditions upon the Transaction.
Additionally, there does not exist any judgment, order or injunction prohibiting
or imposing material adverse conditions upon the Transaction, or the occurrence
of any Credit Event or the performance by any Credit Party of their obligations
under the Documents and all applicable laws. All actions taken by the Borrower
and its Subsidiaries pursuant to or in furtherance of the Transaction have been
taken, and the Transaction has been consummated, in accordance with the
respective Documents and all applicable laws.
7.14 COMPLIANCE WITH ERISA. (a) Except for any noncompliance,
liabilities, obligations and other matters or events that, individually or in
the aggregate, have not had, and could not reasonably be expected to have, a
Material Adverse Effect: each Plan is in substantial compliance with its terms
and with all applicable laws including, without limitation, ERISA and the Code;
no Reportable Event has occurred with respect to a Plan during the five year
period prior to the date on which this representation is made or deemed made
with respect to any Plan; no Multiemployer Plan is insolvent or in
reorganization; no Plan has an Unfunded Current Liability; no Plan has an
accumu-
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lated or waived funding deficiency, or has applied for a waiver of the minimum
funding standard or an extension of any amortization period within the meaning
of Section 412 of the Code during the five year period prior to the date on
which this representation is made or deemed made with respect to any Plan; all
contributions required to be made by the Borrower, any Subsidiary of the
Borrower, or any ERISA Affiliate with respect to each Plan, Multiemployer Plan
and Foreign Pension Plan have been timely made; neither the Borrower nor any of
its Subsidiaries nor any ERISA Affiliate has incurred any material liability to
or on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975
or 4980 of the Code or reasonably expects to incur any material liability
(including any indirect, contingent or secondary liability) under any of the
foregoing Sections with respect to any Plan (other than liabilities of any ERISA
Affiliate which could not, by operation of law or otherwise, become a liability
of the Borrower or any of its Subsidiaries); no proceedings have been instituted
to terminate by the PBGC, or to appoint a trustee to administer, any Plan; no
condition exists which presents a material risk to the Borrower or any of its
Subsidiaries or any ERISA Affiliate of incurring a liability to or on account of
a Plan pursuant to the foregoing provisions of ERISA and the Code; using
actuarial assumptions and computation methods consistent with subpart I of
subtitle E of Title IV of ERISA, the aggregate liabilities of the Borrower and
its Subsidiaries and its ERISA Affiliates to all Plans which are multiemployer
plans (as defined in Section 4001(a)(3) of ERISA) in the event of a complete
withdrawal therefrom, as of the close of the most recent fiscal year of each
such Plan ended prior to the date of the most recent Credit Event, could not
reasonably be expected to result in a Material Adverse Effect; no lien has been
imposed under the Code or ERISA on the assets of the Borrower or any of its
Subsidiaries or any ERISA Affiliate or is likely to be imposed on account of any
Plan; and the Borrower and its Subsidiaries do not maintain or contribute to any
Retiree Welfare Plan.
(b) Except for any noncompliance, liabilities or other matters or
events that, individually or in the aggregate, have not had, and could not
reasonably be expected to have, a Material Adverse Effect: any Foreign Pension
Plan has been maintained in substantial compliance with its terms and with the
requirements of any and all applicable laws, statutes rules, regulations and
orders and has been maintained, where required, in good standing with applicable
regulatory authorities; the Borrower and all of its Subsidiaries have performed
all obligations to be performed in connection with any Foreign Pension Plan and
any funding agreements therefor in a timely fashion; neither the Borrower nor
any of its Subsidiaries has incurred any obligation in connection with the
termination of or withdrawal from any Foreign Pension Plan; and the present
value of the accrued benefit liabilities (whether or not vested) under any
Foreign Pension Plan which is funded, determined on the basis of the most
recently completed actuarial valuation using actuarial assumptions, each of
which is reasonable, did not exceed the current value of the assets of such
Foreign Pension Plan, and for any Foreign Pension Plan which is not funded, the
obligations of such Foreign Pension Plan are properly accrued.
7.15 CAPITALIZATION. On the Initial Borrowing Date and after giving
effect to the Transaction and the other transactions contemplated hereby, the
authorized and issued capital stock of the Borrower shall be as set forth on
Schedule VIII. All outstanding shares of capital stock of the
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Borrower have been duly and validly issued, are fully paid and nonassessable and
were not subject to any preemptive rights which were exercisable in connection
with the issuance thereof. On the Initial Borrowing Date and after giving effect
to the Transaction, the Borrower does not have outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any rights
to subscribe for or to purchase, or any options for the purchase of, or any
agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its capital stock,
except as set forth on Schedule VIII.
7.16 SUBSIDIARIES. On and after the Initial Borrowing Date and after
giving effect to the consummation of the Transaction, ECCA has been merged into
the Borrower in accordance with the Recapitalization Documents and the Borrower
has no Subsidiaries other than (i) the Subsidiaries listed on Schedule VII as
Subsidiaries remaining after the Initial Borrowing Date and (ii) new
Subsidiaries created in compliance with Section 9.15. Schedule VII correctly
sets forth, as of the Initial Borrowing Date and after giving effect to the
Transaction, the percentage ownership (direct and indirect) of the Borrower in
each class of capital stock of each of its Subsidiaries and also identifies the
direct owner thereof and whether such Subsidiary is a Domestic Subsidiary or
Foreign Subsidiary and whether such Subsidiary is a Material Subsidiary.
7.17 INTELLECTUAL PROPERTY. Each of the Borrower and each of its
Subsidiaries owns or holds, free from Liens, a valid license or otherwise has
the right to use all the patents, trademarks, service marks, trade names,
technology, know-how, copyrights, licenses, franchises and formulas or other
rights with respect to the foregoing that are used in the operation of the
business of the Borrower and each of its Subsidiaries as presently conducted
except where the failure to do so has not had, and could not reasonably be
expected to have, a Material Adverse Effect.
7.18 COMPLIANCE WITH STATUTES, ETC. The Borrower and each of its
Subsidiaries is in compliance with all applicable statutes. regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property (including compliance with all applicable Environmental Laws
with respect to any Real Property or governing its business and the requirements
of any permits issued under such Environmental Laws with respect to any such
Real Property or the operations of the Borrower or any of its Subsidiaries),
except such non-compliance as, individually or in the aggregate, has not had,
and could not reasonably be expected to have, a Material Adverse Effect.
7.19 ENVIRONMENTAL MATTERS. (a) Each of the Borrower and each of its
Subsidiaries has complied with, and on the date of each Credit Event is in
compliance with, all applicable Environmental Laws and the requirements of any
permits issued under such Environmental Laws. There are no pending or, to the
best knowledge of the Borrower, past or threatened Environmental Claims against
the Borrower or any of its Subsidiaries or any Real Property owned or operated
by the Borrower or any of its Subsidiaries. To the best knowledge of the
Borrower, there are no facts, circumstances, conditions or occurrences on any
Real Property owned or operated by the Borrower or any of its Subsidiaries or,
on any property adjoining or in the vicinity of any such Real Property that
could reasonably be expected (i) to form the basis of an Environmental Claim
against the
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Borrower or any of its Subsidiaries or any such Real Property or (ii) to cause
any such Real Property to be subject to any restrictions on the ownership,
occupancy, use or transferability of such Real Property by the Borrower or any
of its Subsidiaries under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated, treated
or stored on, or transported to or from, any Real Property owned or operated by
the Borrower or any of its Subsidiaries where such generation, use, treatment or
storage has violated or given rise to any Environmental Claim under any
Environmental Law. Hazardous Materials have not at any time been Released on or
from any Real Property owned or operated by the Borrower or any of its
Subsidiaries in a manner that have formed or would reasonably be expected to
form the basis for an Environmental Claim against the Borrower or any of its
Subsidiaries.
(c) Notwithstanding anything to the contrary in this Section 7.19,
the representations made in this Section 7.19 shall only be untrue if the
aggregate effect of all conditions, failures, noncompliances, Environmental
Claims, Releases and presence of underground storage tanks, in each case of the
types described above, has had, or could reasonably be expected to have, a
Material Adverse Effect.
(d) The representations and warranties in Section 7.18 and this
Section 7.19 are the sole and exclusive representations and warranties in this
Agreement relating to environmental matters.
7.20 PROPERTIES. All Real Property owned by the Borrower or any of
its Subsidiaries and all Leaseholds leased by the Borrower or any of its
Subsidiaries, in each case as of the Initial Borrowing Date and after giving
effect to the Transaction, and the nature of the interest therein, are correctly
set forth in Schedule III. Each of the Borrower and each of its Subsidiaries has
good and marketable title to, or a validly subsisting leasehold interest in, all
material properties owned or leased by it, including all Real Property reflected
in Schedule III or in the financial statements referred to in Section 7.10(b)
(in each case, except as disposed of after the Initial Borrowing Date in
accordance with this Agreement), free and clear of all Liens, other than
Permitted Liens. The Borrower and its Subsidiaries have good and marketable
title to all other property owned by them, including all property reflected in
the financial statements referred to in Section 7.10(b) (except as otherwise
disposed of since the date of such balance sheet in the ordinary cause of
business, or, if disposed of after the Effective Date, as permitted by the terms
of this Agreement).
7.21 LABOR RELATIONS. Neither the Borrower nor any of its
Subsidiaries is engaged in any unfair labor practice that has had, or could
reasonably be expected to have, a Material Adverse Effect. There is (i) no
unfair labor practice complaint pending against the Borrower or any of its
Subsidiaries or, to the best knowledge of the Borrower, threatened against any
of them, before the National Labor Relations Board or any other applicable
Government Authority, and no grievance or arbitration proceeding arising out of
or under any collective bargaining agreement is so pending against the Borrower
or any of its Subsidiaries or, to the best knowledge of the Borrower, threatened
against any of them, (ii) no strike, labor dispute, slowdown or stoppage pending
against the Borrower or any of its Subsidiaries or, to the best knowledge of the
Borrower, threatened against the
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Borrower or any of its Subsidiaries and (iii) to the best knowledge of the
Borrower, no union representation proceeding is pending or question exists, in
each case, with respect to the employees of the Borrower or any of its
Subsidiaries and, to the best knowledge of the Borrower, no union organizing
activities are taking place, except (with respect to any matter specified in
clause (i), (ii) or (iii) above, either individually or in the aggregate) such
as has not had, and could not reasonably be expected to have, a Material Adverse
Effect.
7.22 TAX RETURNS AND PAYMENTS. All domestic and foreign Federal,
state, provincial and other material returns, statements, forms and reports for
taxes (the "Returns") required to be filed by or with respect to the income,
properties or operations of the Borrower and/or any of its Subsidiaries have
been timely filed (taking into account all extensions of due dates) with the
appropriate taxing authority. The Returns accurately reflect all material
liabilities for taxes of the Borrower and its Subsidiaries for the periods
covered thereby. The Borrower and each of its Subsidiaries have paid all taxes
payable by them other than immaterial taxes and other taxes which are not yet
due and payable, and other than taxes contested in good faith and for which
adequate reserves have been established in accordance with GAAP and disclosed on
the financial statements of the Borrower. Except as disclosed in the financial
statements referred to in Section 7.10(b), there is no material action, suit,
proceeding, investigation, audit, or claim now pending or, to the knowledge of
the Borrower or any of its Subsidiaries, threatened by any authority regarding
any material taxes relating to the Borrower or any of its Subsidiaries. Neither
the Borrower nor any of its Subsidiaries has entered into an agreement or waiver
or been requested to enter into an agreement or waiver extending any statute of
limitations relating to the payment or collection of material taxes of the
Borrower or any of its Subsidiaries, or is aware of any circumstances that would
cause the taxable years or other taxable periods of the Borrower or any of its
Subsidiaries not to be subject to the normally applicable statute of
limitations. Neither the Borrower nor any of its Subsidiaries has provided, with
respect to themselves or property held by them, any consent under Section 341 of
the Code. Neither the Borrower nor any of its Subsidiaries has incurred, or will
incur, any material tax liability in connection with the Transaction and the
other transactions contemplated hereby.
7.23 EXISTING INDEBTEDNESS. Schedule V sets forth a true and
complete list of all Indebtedness of the Borrower and its Subsidiaries as of the
Initial Borrowing Date and which is to remain outstanding after giving effect to
the Transaction and the incurrence of Loans on such date excluding (i) the
Senior Subordinated Notes and (ii) the Loans and the Letters of Credit
(collectively, the "Existing Indebtedness"), in each case showing the aggregate
principal amount thereof and the name of the respective borrower and any other
entity which directly or indirectly guaranteed such debt.
7.24 SENIOR SUBORDINATED NOTES. On and after the issuance thereof,
the subordination provisions contained in the Senior Subordinated Note Documents
and any documents relating to the Additional Subordinated Debt (if any) are
enforceable against the Borrower, the respective Subsidiary Guarantors and the
holders thereof, and all Obligations and Guaranteed Obligations (as defined
herein and in the Guaranty) and all obligations of the Borrower in respect of
the Xxxx Loan
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are within the definition of "Senior Indebtedness," "Guarantor Senior
Indebtedness" and any similar term, as the case may be, included in such
subordination provisions.
SECTION 8. AFFIRMATIVE COVENANTS. The Borrower hereby covenants and
agrees that as of the Effective Date and thereafter for so long as this
Agreement is in effect and until the Commitments have terminated, no Letters of
Credit (other than any Letter of Credit, together with all Fees that have
accrued and will accrue thereon through the stated termination date of such
Letter of Credit, which have either been (a) cash collateralized in a manner
reasonably satisfactory to the respective Issuing Lender or (b) backstopped by a
letter of credit or other security acceptable to the respective Issuing Lender)
or Notes are outstanding and the Loans and Unpaid Drawings, together with
interest, Fees and all other Obligations (other than any indemnities described
in Section 13.01 which are not then due and payable) incurred hereunder, are
paid in full:
8.01 INFORMATION COVENANTS. The Borrower will furnish to the
Administrative Agent (with copies sufficient for each Lender):
(a) MONTHLY REPORTS. Within 30 days after the end of each fiscal
month of the Borrower a statement of the Borrower setting forth the gross
and net sales figures, Consolidated EBITDA and store count for the
Borrower and its Subsidiaries for the preceding monthly period.
(b) QUARTERLY FINANCIAL STATEMENTS. Within the earlier of (A) 50
days after the close of each quarterly accounting period in each fiscal
year of the Borrower or (B) one Business Day following the filing of such
quarterly financial statements with the SEC, the consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such quarterly
accounting period and the related consolidated statements of income and
retained earnings and of cash flows for such quarterly accounting period
and for the elapsed portion of the fiscal year ended with the last day of
such quarterly accounting period, in each case, setting forth comparative
figures for the related periods in the prior fiscal year and, after
delivery of the first budget pursuant to Section 8.01(d), the budgeted
figures for such quarterly periods as set forth in the respective budget
delivered pursuant to Section 8.01(d); all of which shall be in reasonable
detail and certified by the chief financial officer or other Authorized
Officer of the Borrower that they fairly present in all material respects
the financial condition of the Borrower and its Subsidiaries as of the
dates indicated and the results of their operations and changes in their
cash flows for the periods indicated, subject to normal year-end audit
adjustments and the absence of footnotes.
(c) ANNUAL FINANCIAL STATEMENTS. Within the earlier of (A) 100 days
after the close of each fiscal year of the Borrower or (B) one Business
Day following the filing of such annual financial statements with the SEC,
the consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such fiscal year and the related consolidated statements of
income and retained earnings and of cash flows for such fiscal year and
setting forth comparative consolidated figures for the preceding fiscal
year and certified by Ernst & Young LLP or such other independent
certified public accountants of recognized national
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standing as shall be reasonably acceptable to the Administrative Agent, in
each case to the effect that such statements fairly present the financial
condition of the Borrower and its Subsidiaries as of the dates indicated
and the results of their operations and changes in cash flows, together
with a certificate of such accounting firm stating that in the course of
its regular audit of the business of the Borrower and its Subsidiaries,
which audit was conducted in accordance with generally accepted auditing
standards, no Default or Event of Default which has occurred and is
continuing has come to their attention, or if such a Default or an Event
of Default has come to their attention a statement as to the nature
thereof.
(d) BUDGETS. No later than 60 days following the commencement of the
first day of each fiscal year of the Borrower, a budget in form
satisfactory to the Agents (including budgeted statements of income
(including sources and uses of cash and balance sheets)) prepared by the
Borrower for (x) each of the four fiscal quarters of such fiscal year
prepared in detail and (y) the next year following such fiscal year
prepared in summary form, in each case, of the Borrower and its
Subsidiaries, accompanied by the statement of the chief financial officer
of the Borrower to the effect that, to the best of his knowledge, the
budget is a reasonable estimate for the period covered thereby.
(e) OFFICER'S CERTIFICATES. At the time of the delivery of the
financial statements provided for in Sections 8.01(a), (b) and (c), a
certificate of the chief financial officer or other Authorized Officer of
the Borrower to the effect that no Default or Event of Default exists or,
if any Default or Event of Default does exist, specifying the nature and
extent thereof, which certificate shall, in the case of any such financial
statements delivered in respect of a period ending on the last day of a
fiscal quarter or year of the Borrower set forth the calculations required
to establish whether the Borrower and its Subsidiaries were in compliance
with the provisions of Sections 9.09 through and including 9.12, as at the
end of such fiscal quarter or year, as the case may be (including a
schedule setting forth the calculations with respect to compliance with
such sections, which shall be in reasonable detail and certified by the
chief financial officer or other Authorized Officer). In addition, at the
time of the delivery of the financial statements provided for in Section
8.01(c), a certificate of the chief financial officer or other Authorized
Officer of the Borrower setting forth (i) the amount of, and calculations
required to establish the amount of, Excess Cash Flow for the Excess Cash
Flow Period ending on the last day of the respective fiscal year and the
Equity Proceeds Amount, if any at such time and (ii) the calculations
required to establish whether the Borrower was in compliance with Section
4.02(f) and (h) for the respective fiscal year.
(f) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any event
within three Business Days (or 10 Business Days in the case of clause (y)
below) after any officer of the Borrower obtains knowledge thereof, notice
of (x) the occurrence of any event which constitutes a Default or an Event
of Default, which notice shall specify the nature thereof, the period of
existence thereof and what action the Borrower proposes to take with
respect thereto and (y) the commencement of, or threat of, or any
significant development in, any litigation or
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governmental proceeding pending against the Borrower or any of its
Subsidiaries (i) in which the amount involved is $3,000,000 or more or
(ii) where there is a reasonable possibility of an adverse determination
and which could reasonably be expected to have a Material Adverse Effect,
or a material adverse effect on the ability of any Credit Party to perform
its respective obligations hereunder or under any other Credit Document.
(g) AUDITORS' REPORTS. Promptly upon receipt thereof, a copy of each
final report or "management letter," if any, submitted to the Borrower or
any of its Subsidiaries by its independent accountants in connection with
any annual, interim or special audit made by them of the books of the
Borrower of any of its Subsidiaries.
(h) ENVIRONMENTAL MATTERS. Promptly after obtaining knowledge of any
of the following, written notice of one or more of the following
environmental matters, unless such environmental matters could not
individually or when aggregated result in a Material Adverse Effect:
(i) any pending or threatened material Environmental Claim
against the Borrower or any of its Subsidiaries or any Real Property
owned or operated by the Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real
Property owned or operated by the Borrower or any of its
Subsidiaries that (x) results in noncompliance by the Borrower or
any of its Subsidiaries with any applicable Environmental Law or (y)
could reasonably be anticipated to form the basis of an
Environmental Claim against the Borrower or any of its Subsidiaries
or any such Real Property;
(iii) any condition or occurrence on any Real Property owned
or operated by the Borrower or any of its Subsidiaries that could
reasonably be anticipated to result in any liability under
Environmental Law;
(iv) any condition or occurrence on any Real Property owned or
operated by the Borrower or any of its Subsidiaries that could
reasonably be expected to cause such Real Property to be subject to
any restrictions on the ownership, occupancy, use or transferability
by the Borrower or any of its Subsidiaries of such Real Property
under any Environmental Law; and
(v) the taking of any removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any
Real Property owned or operated by the Borrower or any of its
Subsidiaries as required by any Environmental Law or any
governmental or other administrative agency; PROVIDED that in any
event the Borrower shall deliver to each Lender all notices of, or
relating to, a material matter or event received by it or any of
their respective Subsidiaries from any government or governmental
agency under, or pursuant to, CERCLA.
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All such notices shall describe in reasonable detail the nature of
the claim, investi gation, condition, occurrence or removal or remedial
action and the Borrower's or such Subsidiary's response thereto. In
addition, the Borrower agrees to provide the Lenders with copies of all
material written communications by the Borrower or any of its Subsidiaries
with any Person (other than its counsel) or Governmental Authority
relating to any of the matters set forth in clauses (i)-(v) above, and
such detailed reports relating to any of the matters set forth in clauses
(i)-(v) above as may reasonably be requested by the Administrative Agent
or the Required Lenders.
(i) OTHER INFORMATION. Promptly upon transmission thereof, copies of
any filings and registrations with, and reports to, the SEC by the
Borrower or any of its Subsidiaries and copies of all financial
statements, proxy statements, notices and reports as the Borrower or any
of its Subsidiaries shall send generally to analysts, the holders of their
capital stock or of the Senior Subordinated Notes or Additional
Subordinated Debt (if any) in their capacity as such holders (in each case
to the extent not theretofore delivered to the Lenders pursuant to this
Agreement) and, with reasonable promptness, such other information or
documents (financial or otherwise) as any Agent on its own behalf or on
behalf of the Required Lenders may reasonably request from time to time.
8.02 BOOKS, RECORDS AND INSPECTIONS. The Borrower will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which
full, true and correct entries in conformity with generally accepted accounting
principles and all requirements of law shall be made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit, upon two Business Days' prior
notice to the chief financial officer or other Authorized Officer of the
Borrower (except when a Default or Event of Default has occurred and is
continuing, in which case, no notice shall be required), officers and designated
representatives of any Agent or any Lender (after notice to, and coordination
with, the Administra tive Agent) (at the expense of the applicable Agent or
Lender, except when a Default or Event of Default has occurred and is
continuing, in which case the Borrower shall pay such expenses), to visit and
inspect any of the properties or assets of the Borrower and any of its
Subsidiaries in whomsoever's possession, and to examine the books of account of
the Borrower and any of its Subsidiaries and discuss the affairs, finances and
accounts of the Borrower and of any of its Subsidiaries with, and be advised as
to the same by, their officers and independent accountants, all at such
reasonable times and to such reasonable extent as any Agent or any Lender may
desire, PROVIDED that all such visits and inspections by any Lender in its
capacity as such shall be limited to ONE such inspection and visit per Lender in
each year (except when a Default or Event of Default has occurred and is
continuing, in which case there shall be no limitations on such inspections and
visits).
8.03 INSURANCE. (a) Schedule VI sets forth a true and complete
listing of all insurance maintained by the Borrower and its Subsidiaries as of
the Effective Date. The Borrower will, and will cause each of its Subsidiaries
to, at all times from and after the Effective Date maintain in full force and
effect insurance with reputable and solvent insurance carriers in such amounts,
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covering such risks and liabilities and with such deductibles or self-insured
retentions as are in accordance with normal industry practice, and shall furnish
to the Administrative Agent upon written request full information as to the
insurance so carried.
(b) The Borrower will, and will cause their respective Subsidiaries
to, at all times keep their respective property insured in favor of the
Collateral Agent, and all policies (including Mortgage Policies) or certificates
(or certified copies thereof) with respect to such insurance (and any other
insurance maintained by the Borrower or any of its Subsidiaries) (i) shall be
endorsed to the Collateral Agent's satisfaction for the benefit of the
Collateral Agent (including, without limitation, by naming the Collateral Agent
as loss payee or as an additional insured), (ii) shall state that such insurance
policies shall not be canceled without 30 days' prior written notice thereof by
the respective insurer to the Collateral Agent, (iii) shall provide that the
respective insurers irrevocably waive any and all rights of subrogation with
respect to the Collateral Agent and the Secured Creditors, (iv) shall contain
the standard non-contributing mortgagee clause endorsement in favor of the
Collateral Agent with respect to hazard liability insurance, and (v) shall,
except in the case of public liability insurance, provide that any losses shall
be payable notwithstanding (A) any act or neglect of the Borrower or any of its
Subsidiaries, (B) the occupation or use of the properties for purposes more
hazardous than those permitted by the terms of the respective policy if such
coverage is obtainable at commercially reasonable rates and is of the kind from
time to time customarily insured against by Persons owning or using similar
property and in such amounts as are customary, (C) any foreclosure or other
proceeding relating to the insured properties or (D) any change in the title to
or ownership or possession of the insured properties.
(c) If the Borrower or any of its Subsidiaries shall fail to
maintain all insurance in accordance with this Section 8.03, or if the Borrower
or any of its Subsidiaries shall fail to so endorse and deposit all policies or
certificates with respect thereto, the Administrative Agent and/or the
Collateral Agent shall have the right (but shall be under no obligation), upon
thirty days' advance notice to the Borrower or any of its Subsidiaries, as the
case may be, to procure such insurance and the Borrower agrees to reimburse the
Administrative Agent or the Collateral Agent as the case may be, for all costs
and expenses of procuring such insurance.
8.04 PAYMENT OF TAXES. The Borrower and each of its Subsidiaries
will file all income tax returns and other material tax returns required to be
filed by it, and pay and discharge all tax liabilities reflected thereon, and
will cause each of its Subsidiaries to pay and discharge, all other taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which material penalties attach thereto, and all lawful claims for sums that
have become due and payable which, if unpaid, might become a Lien not otherwise
permitted under Section 9.03(i) or charge upon any properties of the Borrower or
any of its Subsidiaries; provided that neither the Borrower nor any of its
Subsidiaries shall be required to pay any such tax, assessment, charge, levy or
claim (i) which is being contested in good faith and by proper proceedings if it
has maintained adequate reserves with respect thereto in accordance with GAAP,
or (ii) where the failure to pay such tax, assessment, charge, levy or claim has
not had, and could not reasonably be expected to have, a Material Adverse
Effect.
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8.05 CORPORATE FRANCHISES. The Borrower will do, and will cause each
of its Subsidiaries to do, or cause to be done, all things necessary to preserve
and keep in full force and effect (a) its existence and (b) except where the
failure to do so, individually or in the aggregate, has not had, and could not
reasonably be expected to have, a Material Adverse Effect or a material adverse
effect on the ability of any Credit Party to perform its obligations under any
Credit Document to which it is a party or on its rights, franchises and
authority to do business; PROVIDED, HOWEVER, that any transaction permitted by
Section 9.02 will not constitute a breach of this Section 8.05.
8.06 COMPLIANCE WITH STATUTES, ETC. The Borrower will, and will
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls) except for such noncompliances as, individually or in the aggregate,
have not had, and could not be reasonably expected to have, a Material Adverse
Effect or a material adverse effect on the ability of any Credit Party to
perform its obligations under any Credit Document to which it is a party.
8.07 COMPLIANCE WITH ENVIRONMENTAL LAWS. (a) The Borrower will pay,
and will cause each of its Subsidiaries to pay, all costs and expenses incurred
by it in keeping in compliance with all Environmental Laws, and will keep or
cause to be kept all Real Properties owned or operated by the Borrower or any of
its Subsidiaries free and clear of any Liens imposed pursuant to such
Environmental Laws; and (b) neither the Borrower nor any of its Subsidiaries
will generate, use, treat, store, release or dispose of, or permit the
generation, use, treatment, storage, release or disposal of, Hazardous Materials
on any Real Property owned or operated by the Borrower or any of its
Subsidiaries, or transport or permit the transportation of Hazardous Materials
to or from any such Real Property, unless the failure to comply with the
requirements specified in clause (a) or (b) above, either individually or in the
aggregate, has not had, and could not reasonably be expected to have, a Material
Adverse Effect. If the Borrower or any of its Subsidiaries, or any tenant or
occupant of any Real Property owned or operated by the Borrower or any of its
Subsidiaries, cause or permit any intentional or unintentional act or omission
resulting in the presence or Release of any Hazardous Material (except in
compliance with applicable Environmental Laws), the Borrower agrees to
undertake, and/or to cause any of its Subsidiaries, tenants or occupants to
undertake, without any expense to the Lenders, any clean up, removal, remedial
or other action required pursuant to Environmental Laws to remove and clean up
any Hazardous Materials from any Real Property except where the failure to do so
has not had, and could not reasonably be expected to have, a Material Adverse
Effect, PROVIDED that neither the Borrower nor any of its Subsidiaries shall be
required to comply with any order or directive with respect to such removal or
clean up which is being contested in good faith and by proper proceedings so
long as it has maintained adequate reserves with respect to such compliance to
the extent required in accordance with GAAP.
(b) At the written request of the Administrative Agent or the
Required Lenders, which request shall specify in reasonable detail the basis
therefor, at any time and from time to time,
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the Borrower will provide, at the Borrower's sole cost and expense, an
environmental site assessment report concerning any Real Property now or
hereafter owned or operated by the Borrower or any of its Subsidiaries, prepared
by an environmental consulting firm approved by the Administrative Agent,
indicating the presence or absence of Hazardous Materials and the potential cost
of any removal or remedial action in connection with any Hazardous Materials on
such Real Property; PROVIDED that such request may be made only if (i) there has
occurred and is continuing a Default or Event of Default, (ii) the
Administrative Agent or the Required Lenders reasonably believe that the
Borrower or any such Real Property is not in material compliance with
Environmental Law, or (iii) circumstances exist that reasonably could be
expected to form the basis of a material Environmental Claim against the
Borrower or any such Real Property. If the Borrower fails to provide the same
within 90 days after such request was made, the Administrative Agent may order
the same, and the Borrower shall grant and hereby grants to the Administrative
Agent and the Lenders and their agents reasonable access to such Real Property
and specifically grants the Administrative Agent and the Lenders an irrevocable
non-exclusive license, subject to the rights of tenants, to undertake such an
assessment, all at the Borrower's expense.
8.08 ERISA. As soon as possible and, in any event, within 10 days
after the Borrower or any Subsidiary of the Borrower or any ERISA Affiliate
knows or has reason to know of the occurrence of any of the following events to
the extent that one or more of such events is reasonably likely to result in a
liability to any one or more of the Borrower and its Subsidiaries in an
aggregate amount in excess of $3,000,000, the Borrower will deliver to each of
the Lenders a certificate of the chief financial officer of the Borrower setting
forth details as to such occurrence and the action, if any, which the Borrower,
such Subsidiary or such ERISA Affiliate is required or proposes to take,
together with a copy of any notices required or proposed to be given to or filed
with or by the Borrower, the Subsidiary, the ERISA Affiliate, the PBGC, a Plan
participant or the Plan administrator with respect thereto: that a Reportable
Event has occurred; that a contributing sponsor (as defined in Section
4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA is subject to the
advance reporting requirement of PBGC Regulation Section 4043.61 (without regard
to subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
.64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected
to occur with respect to such Plan within the following 30 days; that an
accumulated funding deficiency has been incurred or an application may be or has
been made to the Secretary of the Treasury for a waiver or modification of the
minimum funding standard (including any required installment payments) or an
extension of any amortization period under Section 412 of the Code or Section
303 or 304 of ERISA with respect to a Plan; that a contribution required to be
made by the Borrower, a Subsidiary of the Borrower or any ERISA Affiliate to a
Plan, Multiemployer Plan or Foreign Pension Plan has not been timely made; that
a Plan has been or may be terminated, reorganized, partitioned or declared
insolvent under Title IV of ERISA; that a Plan has an Unfunded Current Liability
giving rise to a lien under ERISA or the Code; that proceedings may be or have
been instituted by the PBGC to terminate or appoint a trustee to administer a
Plan; that a proceeding has been instituted pursuant to Section 515 of ERISA to
collect a delinquent contribution to a Multiemployer Plan; that the Borrower,
any Subsidiary of the Borrower or any ERISA Affiliate will or could reasonably
be expected to incur any liability (including any contingent or secondary
liability) to or on account of the termination of or withdrawal
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from a Plan or Multiemployer Plan under Section 4062, 4063, 4064, 4069, 4201,
4204 or 4212 of ERISA or with respect to a Plan under Section 401(a)(29), 4971,
or 4975 of the Code or Section 409, 502(i) or 502(l) of ERISA or with respect to
a group health plan (as defined in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) under Section 4980B of the Code; or that the Borrower
or any Subsidiary of the Borrower has or may incur any material liability under
any Retiree Welfare Plan or Foreign Pension Plan. At the request of any Lender,
the Borrower will deliver to such Lender a complete copy of the annual report
(Form 5500) of each Plan required to be filed with the Internal Revenue Service.
In addition to any certificates or notices delivered to the Lenders pursuant to
the first sentence hereof, copies of annual reports and any notices received by
the Borrower or any Subsidiary of the Borrower or any ERISA Affiliate with
respect to any Plan or Foreign Pension Plan shall be delivered to the Lenders no
later than 10 days after the date such report has been filed with the Internal
Revenue Service or received by the Borrower or the Subsidiary or the ERISA
Affiliate. The Borrower and each of its applicable Subsidiaries shall ensure
that each Foreign Pension Plan administered by it or into which it makes
payments obtains or retains (as applicable) registered status under and as
required by applicable law and is administered in a timely manner in all
respects in compliance with all applicable laws except where the failure to do
any of the foregoing has not had, and could not be reasonably expected to result
in, a Material Adverse Effect.
8.09 GOOD REPAIR. The Borrower will, and will cause each of its
Subsidiaries to, ensure that its material properties and equipment used in its
business are kept in good repair, working order and condition, normal wear and
tear and damage by casualty excepted, and, subject to Section 9.09, that from
time to time there are made in such properties and equipment all needful and
proper repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto, to the extent and in the manner consistent with prior
practice.
8.10 END OF FISCAL YEARS; FISCAL QUARTERS. The Borrower will, for
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries', fiscal years to end on the Saturday closest to December 31 of
each year and (ii) each of its, and each of its Subsidiaries', fiscal quarters
to end on in a manner consistent therewith.
8.11 ADDITIONAL SECURITY; FURTHER ASSURANCES. (a) The Borrower will,
and will cause each of its Domestic Subsidiaries to, grant, to the extent
permitted by applicable law, to the Collateral Agent security interests and
mortgages in such assets and properties of the Borrower and its Domestic
Subsidiaries as are not covered by the original Security Documents, and as may
be requested from time to time by the Administrative Agent or the Required
Lenders. All such security interests and mortgages shall be granted pursuant to
documentation reasonably satisfactory in form and substance to the
Administrative Agent and shall constitute valid and enforceable perfected
security interests and mortgages superior to and prior to the rights of all
third Persons and subject to no other Liens except for Permitted Liens (i) at
the time of perfection thereof or (ii) arising and having priority by operation
of law. The Additional Security Documents or instruments related thereto shall
be duly recorded or filed in such manner and in such places as are required by
law to establish, perfect, preserve and protect the Liens in favor of the
Collateral Agent required to be granted pursuant to such Additional Security
Documents (it being understood that perfection of
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Liens on intellectual property shall not be required outside the United States)
and all taxes, fees and other charges payable in connection therewith shall be
paid in full by the Borrower.
(b) The Borrower will, and will cause each of its Domestic
Subsidiaries to, at the expense of the Borrower, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral Agent from time to time such
vouchers, invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports and other assurances or instruments and take such
further steps relating to the Collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require. Furthermore, the
Borrower shall cause to be delivered to the Collateral Agent such opinions of
counsel, title insurance and other related documents as may be reasonable
requested by the Administrative Agent to assure themselves that this Section
8.11 has been complied with.
(c) If the Administrative Agent or the Required Lenders determine
that they are required by law or regulation to have appraisals prepared in
respect of the Real Property of the Borrower and its Subsidiaries constituting
Collateral, the Borrower shall provide to the Administrative Agent appraisals
which satisfy the applicable requirements of the Real Estate Appraisal Reform
Amendments of the Financial Institution Reform, Recovery and Enforcement Act of
1989 and which shall be in form and substance reasonably satisfactory to the
Administrative Agent.
(d) The Borrower agrees to cause each Domestic Subsidiary
established or created in accordance with Section 9.15 to execute and deliver a
guaranty of all Obligations and all obligations under Interest Rate Protection
or Other Hedging Agreements in substantially the form of the Subsidiaries
Guaranty.
(e) The Borrower agrees to pledge and deliver, or cause to be
pledged and delivered, all of the capital stock of each new Subsidiary
(excluding that portion of the voting stock of any Foreign Subsidiary which
would be in excess of 65% of the total outstanding voting stock of such Foreign
Subsidiary) established or created after the Effective Date, to the extent owned
by the Borrower or any Domestic Subsidiary, to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Pledge Agreement.
(f) The Borrower will cause each Domestic Subsidiary established or
created in accordance with Section 9.15 to grant to the Collateral Agent a first
priority (subject to Permitted Liens) Lien on property (tangible and intangible)
of such Subsidiary upon terms and with exceptions similar to those set forth in
the Security Documents as appropriate, and satisfactory in form and substance to
the Borrower, the Administrative Agent and Required Lenders. The Borrower shall
cause each such Domestic Subsidiary, at its own expense, to execute, acknowledge
and deliver, or cause the execution, acknowledgment and delivery of, and
thereafter register, file or record in any appropriate governmental office, any
document or instrument reasonably deemed by the Collateral Agent to be necessary
or desirable for the creation and perfection of the foregoing Liens. The
Borrower will cause each of such Domestic Subsidiaries to take all actions
reasonably requested by the Administrative Agent (including, without limitation,
the filing of UCC-1's) in connection with the granting of such security
interests.
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(g) The security interests required to be granted pursuant to this
Section 8.11 shall be granted pursuant to security documentation (which shall be
substantially similar to the Security Documents already executed and delivered
by the Borrower or its Subsidiaries, as applicable) or otherwise satisfactory in
form and substance to the Collateral Agent and the Borrower and shall constitute
valid and enforceable perfected security interests prior to the rights of all
third Persons and subject to no other Liens except such Liens as are permitted
by Section 9.03. The Additional Security Documents and other instruments related
thereto shall be duly recorded or filed in such manner and in such places and at
such times as are required by law to establish, perfect, preserve and protect
the Liens, in favor of the Collateral Agent for the benefit of the respective
Secured Creditors, required to be granted pursuant to the Additional Security
Documents and all taxes, fees and other charges payable in connection therewith
shall be paid in full by the Borrower. At the time of the execution and delivery
of the Additional Security Documents, the Borrower shall cause to be delivered
to the Collateral Agent such opinions of counsel, Mortgage Policies, title
surveys, real estate appraisals and other related documents as may be reasonably
requested by the Agents or the Required Lenders to assure themselves that this
Section 8.11 has been complied with.
(h) The Borrower agrees that each action required above by Section
8.11(a) shall be completed within 90 days after such action is requested to be
taken by either the Administrative Agent or the Required Lenders, PROVIDED that
in no event shall the Borrower be required to take any action, other than using
its reasonable commercial efforts, to obtain consents from third parties with
respect to its compliance with this Section 8.11. The Borrower further agrees
that each action required by Section 8.11(d), (e), (f) and (g) with respect to
the creation or acquisition of a new Subsidiary shall be completed
contemporaneously with (or, in the case of any documents or instruments to be
registered, filed or recorded, within 10 days of) the creation of such new
Subsidiary.
8.12 FOREIGN SUBSIDIARIES SECURITY. If following a change in the
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for the
Borrower reasonably acceptable to the Administrative Agent does not within 60
days after a written request from the Administrative Agent or the Required
Lenders deliver evidence, in form and substance satisfactory to the
Administrative Agent, the Required Lenders and the Borrower, with respect to any
Foreign Subsidiary which has not already had all of its stock pledged pursuant
to the Pledge Agreement that (i) a pledge of 66-2/3% or more of the total
combined voting power of all classes of capital stock of such Foreign Subsidiary
entitled to vote, (ii) the entering into by such Foreign Subsidiary of a
security agreement in substantially the form of the Security Agreement and (iii)
the entering into by such Foreign Subsidiary of a guaranty in substantially the
form of the Guaranty, in any such case would cause the undistributed earnings of
such Foreign Subsidiary as determined for Federal income tax purposes to be
treated as a deemed dividend to such Foreign Subsidiary's United States parent
for Federal income tax purposes, then in the case of a failure to deliver the
evidence described in clause (i) above, that portion of such Foreign
Subsidiary's outstanding capital stock not theretofore pledged pursuant to the
Pledge Agreement shall be pledged to the Collateral Agent for the benefit of the
Secured Creditors pursuant to the Pledge Agreement (or another pledge agreement
in substantially similar form, if needed), and
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in the case of a failure to deliver the evidence described in clause (ii) above,
such Foreign Subsidiary shall execute and deliver the Security Agreement (or
another security agreement in substantially similar form, if needed), granting
the Secured Creditors a security interest in all of such Foreign Subsidiary's
assets and securing the Obligations of the Borrowers under the Credit Documents
and under any Interest Rate Protection Agreement or Other Hedging Agreement and,
in the event the Guaranty shall have been executed by such Foreign Subsidiary,
the obligations of such Foreign Subsidiary thereunder, and in the case of a
failure to deliver the evidence described in clause (iii) above, such Foreign
Subsidiary shall execute and deliver the Subsidiaries Guaranty (or another
guaranty in substantially similar form, if needed), guaranteeing the Obligations
of the Borrower under the Credit Documents and under any Interest Rate
Protection Agreement or Other Hedging Agreement, in each case to the extent that
the entering into of such Security Agreement or Guaranty is permitted by the
laws of the respective foreign jurisdiction and with all documents delivered
pursuant to this Section 8.12 to be in form and substance reasonably
satisfactory to the Administrative Agent.
8.13 PERFORMANCE OF OBLIGATIONS. The Borrower will, and will cause
each of its Subsidiaries to, perform all of its obligations under the terms of
each mortgage, indenture, security agreement and other debt instrument by which
it is bound, except such non-performances as , individually or in the aggregate,
have not had, and could not reasonably be expected to have, a Material Adverse
Effect.
8.14 CONSUMMATION OF TRANSACTION. The Borrower shall take all
required action necessary to cause the Transaction to be consummated on the
Initial Borrowing Date, and all conditions precedent specified in Sections 5.06,
5.07, 5.08 and 5.09 to be satisfied on such date.
8.15 EXISTING NOTES REDEMPTION. The Borrower shall take all actions
necessary or advisable to effect the Existing Notes Redemption on October 1,
1998.
SECTION 9. NEGATIVE COVENANTS. The Borrower hereby covenants and
agrees that as of the Effective Date and thereafter for so long as this
Agreement is in effect and until the Commitments have terminated, no Letters of
Credit (other than Letters of Credit, together with all Fees that have accrued
and will accrue thereon through the stated termination date of such Letters of
Credit, which have either been (a) cash collateralized in a manner reasonably
satisfactory to the applicable Issuing Lender or (b) backstopped by a letter of
credit or other security acceptable to the applicable Issuing Lender) or Notes
are outstanding and the Loans, together with interest, Fees and all other
Obligations (other than any indemnities described in Section 13.01 which are not
then due and payable) incurred hereunder, are paid in full:
9.01 BUSINESS. The Borrower will not, and will not permit any of its
Subsidiaries to, engage (directly or indirectly) in any business other than the
business in which the Borrower and its Subsidiaries are engaged on the Effective
Date and other businesses reasonably related thereto.
9.02 CONSOLIDATION, MERGER, PURCHASE OR SALE OF ASSETS, ETC. The
Borrower will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into
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any transaction of merger or consolidation, or convey, sell, lease or otherwise
dispose of (or agree to do any of the foregoing at any future time) all or any
part of its property or assets (other than inventory in the ordinary course of
business), or enter into any sale-leaseback transactions, or purchase or
otherwise acquire (in one or a series of related transactions) any part of the
property or assets (other than purchases or other acquisitions of inventory,
materials, equipment and intangible assets in the ordinary course of business)
of any Person (or agree to do any of the foregoing at any future time), except
that:
(i) the consummation of the Transaction shall be permitted;
(ii) Capital Expenditures by the Borrower and its Subsidiaries shall
be permitted to the extent not in violation of Section 9.09;
(iii) each of the Borrower and its Subsidiaries may in the ordinary
course of business, sell, lease or otherwise dispose of any assets which,
in the reasonable judgment of such Person, are obsolete, worn out or
otherwise no longer useful in the conduct of such Person's business;
(iv) advances, investments and loans may be made to the extent
permitted by Section 9.06;
(v) (i) the Visionworks Lease shall be permitted for the stated term
thereof and (ii) each of the Borrower and its Subsidiaries (x) may lease
(as lessee) real or personal property in the ordinary course of business
(so long as any such lease does not create a Capitalized Lease Obligation
except to the extent permitted by Section 9.04) and (y) may lease or
sublease property to third Persons which leases and subleases do not
interfere in any material respect with the business of the Borrower or any
of its Subsidiaries;
(vi) the Borrower and its Subsidiaries may sell or discount, in each
case without recourse and in the ordinary course of business, accounts
receivable arising in the ordinary course of business, but only in
connection with the compromise or collection thereof consistent with
customary industry practice (and not as part of any bulk sale);
(vii) licenses or sublicenses by the Borrower and its Subsidiaries of
software, copyrights, trademarks, patents, know-how and other intellectual
property in the ordinary course of business and which do not materially
interfere with the business of the Borrower or the Borrower and its
Subsidiaries taken as a whole shall be permitted;
(viii) the Borrower or any Domestic Wholly-Owned Subsidiary of the
Borrower may transfer or lease assets to or acquire or lease assets from
the Borrower or any other Domestic Wholly-Owned Subsidiary or any
Subsidiary may be merged or liquidated into the Borrower (as long as the
Borrower is the surviving corporation of such merger) or any other
Domestic Wholly-Owned Subsidiary of the Borrower so long as, in each such
case (x) the security interests granted to the Collateral Agent for the
benefit of the Secured Creditors pursuant to
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the Security Documents in the assets so transferred shall be in full force
and effect and shall be perfected and of first priority to the extent
provided therein, and (y) any Indebtedness of, or Liens on the assets of,
the Subsidiary transferring assets or being dissolved or liquidated shall
be otherwise permitted to be incurred by, and to exist on the assets of,
such Wholly-Owned Domestic Subsidiary, pursuant to the other provisions
of this Agreement;
(ix) each of the Borrower and its Subsidiaries may sell, lease or
otherwise dispose of any equipment and other assets, to the extent not
otherwise permitted under any other clause of this Section 9.02, at the
fair market value thereof (as determined in good faith by the Borrower),
PROVIDED that the Net Sale Proceeds thereof (x) shall consist of at least
75% in cash, (y) to the extent required to do so by Section 4.02, shall be
applied by the Borrower to repay Loans and (z) do not exceed $5,000,000 in
the aggregate in any fiscal year of the Borrower;
(x) the Borrower and its Subsidiaries may sell or exchange any item
of equipment, so long as the purpose of each such sale or exchange is to
acquire (and results within 360 days before or after such sale or exchange
in the acquisition of) replacement items of equipment which are the
functional equivalent of the item of equipment so sold or exchanged; and
(xi) so long as no Default or Event of Default then exists or would
result there from, the Borrower and its Wholly-Owned Subsidiaries may
acquire assets or the capital stock of any Person (any such acquisition
permitted by this clause (xi), a "Permitted Acquisition"), PROVIDED that
(i) such Person (or the assets so acquired) was, immediately prior to such
acquisition, engaged (or used) primarily in the business permitted
pursuant to Section 9.01, (ii) if such acquisition is structured as a
stock acquisition, then either (A) the Person so acquired becomes a
Wholly-Owned Subsidiary of the Borrower or (B) such Person is merged with
and into a Wholly-Owned Subsidiary of the Borrower (with such Wholly-Owned
Subsidiary being the surviving corporation of such merger), and in any
case, all of the provisions of Section 9.15 have been complied with in
respect of such Person, (iii) any Liens or Indebtedness assumed or issued
in connection with such acquisition are otherwise permitted under Section
9.03 or 9.04, as the case may be, (iv) the only consideration paid in
connection with any such Permitted Acquisitions shall consist of (I)
borrowings of Acquisition Loans, (II) Net Sale Proceeds permitted to be
reinvested in accordance with Section 4.02(f), (III) net cash proceeds
from the issuance of common equity of the Borrower to the extent the
aggregate amount of same so used in connection with any Permitted
Acquisition shall not exceed the Equity Proceeds Amount at such time and
(IV) an amount equal to 50% of the Excess Cash Flow of the Borrower and
its Subsidiaries for the Excess Cash Flow Period then last ended LESS the
aggregate amount of any such Excess Cash Flow previously expended in
connection with Permitted Acquisitions, (v) as of the date of such
Permitted Acquisition and after giving effect thereto (including without
limitation, to the incurrence and assumption of all Indebtedness to be
incurred or assumed in connection therewith), the ratio of
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Consolidated Indebtedness at such time to Consolidated EBITDA for the Test
Period then last ended (determined on a PRO FORMA Basis) shall be less
than the Maximum Adjusted Leverage Ratio applicable at such time, and (vi)
the Borrower and its Subsidiaries are in compliance, after giving effect
to such acquisition and the incurrence or assumption of any Indebtedness
related thereto, with the covenants contained in Sections 9.09, 9.10, 9.11
and 9.12 for the Test Period than most recently ended on a PRO FORMA Basis
as if such Permitted Acquisition had been consummated on the first day of
such Test Period, (vii) such Permitted Acquisition shall be permitted
pursuant to the terms of the Senior Subordinated Note Documents and any
documents entered into in connection with any Additional Subordinated Debt
and (viii) at least five Business Days prior to the consummation of any
Permitted Acquisition, the Borrower shall deliver to each Agent a
certificate of its chief financial officer or other Authorized Officer
certifying (and showing the calculations therefor) compliance with the
foregoing clauses (i) through (vii).
To the extent the Required Lenders waive the provisions of this Section 9.02
with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 9.02, such Collateral shall be sold free and clear of
the Liens created by the Security Documents, and the Administrative Agent and
Collateral Agent shall be authorized to take any actions deemed appropriate in
order to effect the foregoing.
9.03 LIENS. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
the Borrower or any of its Subsidiaries, whether now owned or hereafter
acquired, or sell any such property or assets subject to an understanding or
agreement, contingent or otherwise, to repurchase such property or assets
(including sales of accounts receivable with recourse to the Borrower or any of
its Subsidiaries), or assign any right to receive income or permit the filing of
any financing statement under the UCC or any other similar notice of Lien under
any similar recording or notice statute; PROVIDED that the provisions of this
Section 9.03 shall not prevent the creation, incurrence, assumption or existence
of the following (Liens described below are herein referred to as "Permitted
Liens"):
(i) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been established
in accordance with generally accepted accounting principles in the United
States (or the equivalent thereof in any country in which a Foreign
Subsidiary is doing business, as applicable);
(ii) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law, which were incurred in the ordinary
course of business and do not secure Indebtedness for borrowed money, such
as carriers', warehousemen's, materialmen's and mechanics' liens and other
similar Liens arising in the ordinary course of business, and (x) which do
not in the aggregate materially detract from the value of the property or
assets of the Borrower or the Borrower and its Subsidiaries taken as a
whole and do not materially impair the use thereof in the operation of the
business of the Borrower or the Borrower and
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its Subsidiaries taken as a whole or (y) which are being contested in good
faith by appropriate proceedings, which proceedings (or orders entered in
connection with such proceedings) have the effect of preventing the
forfeiture or sale of the property or assets subject to any such Lien;
(iii) Liens in existence on the Effective Date which are listed, and
the property subject thereto described, in Schedule IV, but only to the
respective date, if any, set forth in such Schedule IV for the removal and
termination of any such Liens, plus renewals and extensions of such Liens
to the extent set forth on Schedule IV, PROVIDED that (x) the aggregate
principal amount of the Indebtedness, if any, secured by such Liens does
not increase from that amount outstanding at the time of any such renewal
or extension and (y) any such renewal or extension does not encumber any
additional assets or properties of the Borrower or any of its
Subsidiaries;
(iv) Permitted Encumbrances;
(v) Liens created pursuant to this Agreement and the Security
Documents;
(vi) licenses, sublicenses, leases or subleases granted to other
Persons in the ordinary course of business not materially interfering with
the conduct of the business of the Borrower or any of its Subsidiaries;
(vii) Liens upon assets of the Borrower and its Subsidiaries subject to
Capitalized Lease Obligations to the extent permitted by Section 9.04,
PROVIDED that (x) such Liens only serve to secure the payment of
Indebtedness arising under such Capitalized Lease Obligation and (y) the
Lien encumbering the asset giving rise to the Capitalized Lease Obligation
does not encumber any other asset (other than proceeds thereof) of the
Borrower or any Subsidiary of the Borrower;
(viii) Liens placed upon assets used in the ordinary course of business
of the Borrower or any of its Subsidiaries at the time of acquisition
thereof by the Borrower or any such Subsidiary or within 90 days
thereafter to secure Indebtedness incurred to pay all or a portion of the
purchase price thereof, PROVIDED that (x) the aggregate outstanding
principal amount of all Indebtedness secured by Liens permitted by this
clause (viii) shall not at any time exceed $7,500,000, (y) the
Indebtedness secured by any such Lien does not exceed 100%, nor is less
than 70%, of the lesser of the fair market value and the purchase price of
the property being purchased at the time of incurrence of such
Indebtedness and (z) in all events, the Lien encumbering the assets so
acquired does not encumber any other asset (other than proceeds thereof)
of the Borrower or such Subsidiary;
(ix) easements, rights-of-way, restrictions (including zoning
restrictions), encroachments, protrusions and other similar charges or
encumbrances, and minor title deficiencies, in each case whether now or
hereafter in existence, not securing Indebtedness and not
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materially interfering with the conduct of the business of the Borrower or
the Borrower and its Subsidiaries taken as a whole;
(x) Liens arising from precautionary UCC financing statement filings
regarding operating leases entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business;
(xi) Liens arising out of judgments or awards in circumstances not
constituting an Event of Default under Section 10.09;
(xii) statutory and common law landlords' liens under leases or
subleases to which the Borrower or any of its Subsidiaries is a party;
(xiii) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business (x) in connection with workers'
compensation, unemployment insurance and other types of social security,
(y) to secure the performance of tenders, statutory obligations (other
than excise taxes), surety, stay, customs and appeal bonds, statutory
bonds, bids, leases, government contracts, trade contracts, performance
and return of money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money) or (z) to secure liability
for premiums to insurance carriers;
(xiv) any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this Agreement;
(xv) Liens in favor of customs and revenue authorities arising as a
matter of law to secure the payment of customs duties in connection with
the importation of goods;
(xvi) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
the Borrower or any of its Subsidiaries in the ordinary course of business
in accordance with the past practices of the Borrower and its Subsidiaries
prior to the Initial Borrowing Date;
(xvii) Liens on property or assets acquired pursuant to a Permitted
Acquisition, or on property or assets of a Subsidiary of the Borrower in
existence at the time such Subsidiary is acquired pursuant to a Permitted
Acquisition, PROVIDED that (i) any Indebtedness that is secured by such
Liens is permitted to exist under Section 9.04(xiv), and (ii) such Liens
are not incurred in connection with, or in contemplation or anticipation
of, such Permitted Acquisition and do not attach to any other asset of the
Borrower or any of its Subsidiaries;
(xviii) Liens on assets of Foreign Subsidiaries to secure Indebtedness
permitted to be outstanding pursuant to Section 9.04(xv) of this
Agreement;
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(xix) Until October 1, 1998, Liens encumbering the cash and investments
deposited on the Initial Borrowing Date with the Existing Notes Trustee to
effect the Existing Notes Defeasance; and
(xx) Liens not otherwise permitted by the foregoing clauses (i)
through (xix) to the extent attaching to properties and assets with an
aggregate fair value not in excess of, and securing liabilities not in
excess of, $5,000,000 in the aggregate at any time outstanding.
9.04 INDEBTEDNESS. The Borrower will not, and will not permit any of
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(ii) Indebtedness of the Borrower pursuant to the Senior Subordinated
Notes and/or Additional Subordinated Debt in an aggregate principal amount
not to exceed $150,000,000 in the aggregate at any time outstanding so
long as any such Additional Subordinated Debt shall be permitted to be
incurred by the other provisions of this Agreement;
(iii) Until October 1, 1998, the Existing Notes in an aggregate
principal amount not to exceed $70,000,000 may remain outstanding;
(iv) Existing Indebtedness shall be permitted to the extent the same
is listed on Schedule V, but no refinancings or renewals thereof other
than as specifically contemplated by the Transaction and/or this
Agreement;
(v) Accrued expenses and current trade accounts payable incurred in
the ordinary course;
(vi) Indebtedness under non-speculative Interest Rate Protection
Agreements which may be entered into from time to time by the Borrower and
which the Borrower in good faith believes will provide protection against
fluctuations in interest rates with respect to outstanding floating rate
Indebtedness then outstanding, and permitted to remain outstanding,
pursuant to the other provisions of this Section 9.04;
(vii) Indebtedness evidenced by Capitalized Lease Obligations to the
extent permitted pursuant to Section 9.09, PROVIDED that in no event shall
the aggregate principal amount of Capitalized Lease Obligations permitted
by this clause (vii) exceed $7,500,000 at any time outstanding;
(viii) Indebtedness subject to Liens otherwise permitted under Section
9.03(viii), so long as the aggregate outstanding principal amount of all
such Indebtedness does not exceed $7,500,000;
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(ix) Intercompany Indebtedness of any Domestic Wholly-Owned Subsidiary
owing to the Borrower or any other Domestic Wholly-Owned Subsidiary, or of
the Borrower owing to any Domestic Wholly-Owned Subsidiary, to the extent
permitted by Section 9.06(vii);
(x) In addition to any Indebtedness permitted by the preceding clause
(ix), Indebtedness of any Wholly-Owned Subsidiary to the Borrower or
another Wholly-Owned Subsidiary constituting the purchase price in respect
of intercompany transfers of goods made in the ordinary course of business
to the extent not constituting Indebtedness for borrowed money;
(xi) Indebtedness evidenced by Other Hedging Agreements entered into
pursuant to Section 9.06(vi);
(xii) Indebtedness under performance bonds, letter of credit
obligations to provide security for worker's compensation claims and bank
overdrafts, in each case incurred in the ordinary course of business,
PROVIDED that any obligations arising in connection with such bank
overdraft Indebtedness is extinguished within five Business Days;
(xiii) Indebtedness consisting of guaranties (x) by the Borrower of
Indebtedness, leases and any other obligation or liability permitted to be
incurred by Wholly-Owned Domestic Subsidiaries of the Borrower, and (y) by
Domestic Subsidiaries of the Borrower of Indebtedness, leases and any
other obligation or liability permitted to be incurred by the Borrower or
other Wholly-Owned Domestic Subsidiaries of the Borrower; PROVIDED that
the aggregate principal amount of indebtedness permitted by this clause
(xiii) shall not exceed $20,000,000 at any time outstanding;
(xiv) Indebtedness of a Subsidiary acquired pursuant to a Permitted
Acquisition and existing at the time of consummation thereof (or
Indebtedness assumed at the time of a Permitted Acquisition of an asset
securing such Indebtedness), PROVIDED that such Indebtedness (x) was not
incurred in connection with, or in anticipation or contemplation of, such
Permitted Acquisition and (y) does not exceed in aggregate principal
amount for any Permitted Acquisition or group of related Permitted
Acquisitions, an amount equal to 20% of the fair market value of the
assets acquired in such Permitted Acquisition or Permitted Acquisitions;
(xv) Indebtedness consisting of (x) local loans from local lenders in
jurisdictions outside the United States to Foreign Subsidiaries located in
such jurisdictions; PROVIDED that the aggregate principal amount of all
such Indebtedness does not exceed $500,000 at any time outstanding and (y)
Indebtedness of the Borrower and its Domestic Subsidiaries consisting of
guarantees of the foregoing Indebtedness so long as the sum of (I) the
aggregate amount of Indebtedness so guaranteed at any time, (II) the
aggregate amount of investments made in Foreign Subsidiaries pursuant to
Section 9.06(xiv) after the Effective Date (without giving effect to any
write-offs or write-downs thereof) and (III) the aggregate amount of
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intercompany loans extended to Foreign Subsidiaries pursuant to Section
9.06(vii) hereof (without giving effect to any write-offs or write-downs
thereof) shall not exceed $2,000,000;
(xvi) Indebtedness of the Borrower pursuant to its guaranty of the Xxxx
Loan; and
(xvii) Additional Indebtedness of the Borrower and its Subsidiaries to
the extent not permitted by the foregoing clauses of this Section 9.04 not
to exceed $7,500,000 in aggregate principal amount at any time
outstanding.
9.05 DESIGNATED SENIOR DEBT. The Borrower will not, and will not
permit any of its Subsidiaries to, designate any Indebtedness (other than the
Obligations) as "Designated Senior Indebtedness", "Designated Guarantor Senior
Indebtedness" or any similar term for purposes of, and as defined in, the Senior
Subordinated Note Documents and the documents entered into in connection with
any Additional Subordinated Debt.
9.06 ADVANCES, INVESTMENTS AND LOANS. The Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly, lend money
or credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any other Person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any
cash or Cash Equivalents, except that the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold accounts
receivables owing to any of them;
(ii) the Borrower and its Subsidiaries may acquire and hold cash and
Cash Equivalents;
(iii) the Borrower and its Subsidiaries may make loans and advances in
the ordinary course of business to their respective employees for moving,
travel and similar expenses so long as the aggregate principal amount
thereof at any time outstanding (determined without regard to any
write-downs or write-offs of such loans and advances) shall not exceed
$2,000,000;
(iv) the Borrower may enter into Interest Rate Protection Agreements
to the extent permitted in Section 9.04(vi);
(v) the Recapitalization Transaction may be effected on the Initial
Borrowing Date;
(vi) the Borrower may enter into and perform its obligations under
Other Hedging Agreements entered into in the ordinary course of business
and so long as any such Other Hedging Agreement is not speculative in
nature and is (x) related to income derived from foreign operations of the
Borrower or any Subsidiary or otherwise related to purchases
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permitted hereunder from foreign suppliers or (y) entered into to protect
the Borrower and/or its Subsidiaries against fluctuations in the prices of
raw materials used in their Businesses;
(vii) any Subsidiary may make intercompany loans to the Borrower or any
Wholly-Owned Subsidiary and the Borrower may make intercompany loans and
advances to any Wholly-Owned Subsidiary, PROVIDED that any promissory
notes evidencing such intercompany loans shall be pledged (and delivered)
by the Borrower or the respective Domestic Wholly-Owned Subsidiary that is
the lender of such intercompany loan as Collateral pursuant to the
applicable Pledge Agreement, PROVIDED FURTHER, that the aggregate amount
of intercompany loans from the Borrower or any Domestic Subsidiary to
Foreign Subsidiaries (without giving effect to any write-downs or
write-offs thereof) shall not when added to (I) the aggregate principal
amount of all Indebtedness guaranteed pursuant to Section 9.04(xv) then
outstanding and (II) the aggregate amount of investments in Foreign
Subsidiaries pursuant to Section 9.06(xiv) hereof (without giving effect
to any write-offs or write-downs thereof), exceed $2,000,000;
(viii) the Borrower and it Subsidiaries may sell or transfer assets to
the extent permitted by Section 9.02;
(ix) the Borrower may establish Subsidiaries to the extent permitted
by Section 9.15;
(x) the Borrower and its Subsidiaries may acquire and own investments
(including debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising
in the ordinary course of business;
(xi) advances, loans and investments in existence on the Initial
Borrowing Date and listed on Schedule IX shall be permitted, without
giving effect to any additions thereto or replacements thereof;
(xii) (i) the Borrower may acquire and hold obligations of one or more
officers or other employees of the Borrower or its Subsidiaries in
connection with such officers' or employees' acquisition of shares of the
Borrower Common Stock so long as no cash is paid by the Borrower or any of
its Subsidiaries in connection with the acquisition of any such
obligations, (ii) the Borrower may extend loans to officers and employees
of the Borrower and its Subsidiaries on or after the date on which any
such officers and employees exercise their options to purchase capital
stock of the Borrower issued to them in connection with the Transaction so
long as the proceeds of such loans are required to be promptly used by
such officers and employees to pay taxes payable by them as a result of
such exercise and (iii) investments consisting of loans by the Borrower or
its Subsidiaries to employees of the Borrower or its Subsidiaries made
solely for the purpose of funding purchases by such employees of Borrower
Common Stock shall be permitted; PROVIDED that the aggregate principal
amount at any time outstanding of the obligations and loans extended
pursuant to clauses (i), (ii) and (iii) shall not exceed $3,000,000;
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(xiii) Permitted Acquisitions shall be permitted;
(xiv) investments by the Borrower and its Subsidiaries in (A)
Wholly-Owned Domestic Subsidiaries of the Borrower and (B) in Wholly-Owned
Foreign Subsidiaries of the Borrower, so long as in the case of this
clause (B), the sum of (I) the aggregate amount of all such investments
since the Effective Date (without giving effect to any write-offs or
write-downs thereof), (II) the aggregate amount of all Indebtedness of
Foreign Subsidiaries guaranteed pursuant to Section 9.04(xv) then
outstanding plus (III) the aggregate amount of intercompany loans extended
to Foreign Subsidiaries pursuant to Section 9.06(vii) hereof (without
giving effect to any write-offs or write-downs thereof) shall not exceed
$2,000,000;
(xv) the Borrower may make cash investments in Wholly-Owned Domestic
Subsidiaries of the Borrower so long as the aggregate amount so invested
since the Effective Date does not exceed $5,000,000;
(xvi) investments by the Borrower and its Subsidiaries in
non-Wholly-Owned Subsidiaries and joint entities so long as (I) after
giving effect to such investment, the Borrower and its Subsidiaries are in
compliance with the covenants set forth in Section 9.09, 9.10, 9.11 and
9.12 for the Test Period then most recently ended on a PRO FORMA Basis as
if such investment had been consummated on the last day of such Test
Period, (II) such investment is permitted pursuant to the terms of the
Senior Subordinated Note Documents and pursuant to any documents entered
into in connection with any Additional Subordinated Debt and no such
Subsidiary or joint venture shall be obligated to, guarantee the Senior
Subordinated Notes or any Additional Subordinated Debt and (III) the
aggregate amount expended on all such investments after the Effective Date
shall not exceed $5,000,000;
(xvii) deposits made in the ordinary course of business to secure the
performance of leases shall be permitted; and
(xviii) additional investments of the Borrower and its Subsidiaries to
the extent not permitted by the foregoing clauses of this Section 9.06 not
to exceed $3,000,000 at any time.
9.07 DIVIDENDS. The Borrower shall not, and shall not permit any of
its Subsidiaries to, authorize, declare or pay any dividends (other than
dividends payable solely in common stock of the Borrower or any such Subsidiary,
as the case may be) or return any capital to, its stockholders or authorize or
make any other distribution, payment or delivery of property or cash to its
stockholders as such, or redeem, retire, purchase or otherwise acquire, directly
or indirectly, for a consideration, any shares of any class of its capital
stock, now or hereafter outstanding (or any warrants for or options or stock
appreciation rights in respect of any of such shares), or set aside any funds
for any of the foregoing purposes, and the Borrower will not permit any of its
Subsidiaries to purchase or otherwise acquire for consideration any shares of
any class of the capital stock of the Borrower or any Subsidiary, as the case
may be, now or hereafter outstanding (or any options or warrants or stock
appreciate rights issued by such Person with respect to its capital stock) (all
of the foregoing and including all payments made or required to be made by such
Person with respect to
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any stock appreciation rights, plans, equity incentive or achievement plans or
any similar plans or setting aside of any funds for the foregoing purposes,
"Dividends"), except that:
(i) any Subsidiary of the Borrower (x) may pay cash Dividends to the
Borrower or any Wholly-Owned Subsidiary of the Borrower and (y) if such
Subsidiary is not a Wholly-Owned Subsidiary, may pay cash Dividends to
its shareholders generally so long as the Borrower or its respective
Subsidiary which owns the equity interest or interests in the Subsidiary
paying such Dividends receives at least its proportionate share thereof
(based upon its relative holdings of equity interests in the Subsidiary
paying such Dividends and taking into account the relative preferences, if
any, of the various classes of equity interests in such Subsidiary);
(ii) Borrower Preferred Stock may be issued as a dividend on the
Borrower Preferred Stock;
(iii) so long as no Default or Event of Default shall have occurred or
shall result therefrom, the Borrower will be permitted to redeem or
repurchase, shares of its common stock or options in respect thereof, in
each case, in connection with the repurchase provisions under employee
stock option or stock purchase agreements or other agreements to
compensate management employees; PROVIDED that such redemptions or
repurchases pursuant to this clause (iii) shall not exceed $5,000,000 in
the aggregate after the Initial Borrowing Date; and
(iv) so long as no Default or Event of Default shall have occurred or
shall result therefrom, the Borrower will be permitted to make payments in
respect of any redemption, repurchase, acquisition, cancellation or other
retirement for value of shares of capital stock of the Borrower or
options, stock appreciation or similar securities, in each case held by
then current or former officers, directors or employees of the Borrower or
any of its Subsidiaries (or their estates or beneficiaries under their
estates) or by an employee benefit plan, upon the death, disability,
retirement or termination of employment of such officers, directors and
employees, not to exceed $2,500,000 in the aggregate in any fiscal year of
the Borrower and not to exceed $10,000,000 in the aggregate after the
Initial Borrowing Date.
9.08 TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any of its Affiliates or any of its Subsidiaries, other than in the ordinary
course of business and on terms and conditions substantially as favorable to the
Borrower or such Subsidiary as would reasonably be obtained by the Borrower or
such Subsidiary at that time in a comparable arm's-length transaction with a
Person other than an Affiliate, except that:
(i) Dividends may be paid to the extent provided in Section 9.07;
(ii) loans may be made and other transactions may be entered into
between the Borrower and its Subsidiaries to the extent permitted by
Sections 9.04 and 9.06;
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(iii) customary fees may be paid to non-officer directors of the
Borrower;
(iv) the Transaction shall be effected;
(v) the payment, on a quarterly basis, of management fees to THL
and/or THL Affiliates in accordance with the management agreement between
THL and/or THL Affiliates and the Borrower in an aggregate amount (for all
such Persons taken together) not to exceed $125,000 in any fiscal quarter
of the Borrower; PROVIDED that, the payment of such management fees in any
quarter in excess of $125,000 ("Additional Management Fees") shall be
permitted so long as (w) no Default or Event of Default shall then exist
or shall result therefrom, (x) on any date on which such Additional
Management Fees are paid, and after giving effect thereto, the ratio of
Consolidated Indebtedness at such time to Consolidated EBITDA for the Test
Period then last ended (determined on a PRO FORMA Basis) shall be less
than the Maximum Adjusted Leverage Ratio applicable at such time, (y) such
payment shall be permitted pursuant to the Senior Subordinated Note
Documents and the Additional Subordinated Debt (if any) and (z) in no
event shall the aggregate amount of management fees paid in any fiscal
quarter of the Borrower exceed $250,000;
(vi) the reimbursement of THL and/or THL Affiliates for their
reasonable out-of-pocket expenses incurred by them in connection with
performing management services to the Borrower and its Subsidiaries;
(vii) the payment of one time fees to THL and/or the THL Affiliates in
connection with each acquisition of a company or a line of business by the
Borrower or its Subsidiaries, such fees to be payable at the time of each
such acquisition and not to exceed 1% of the aggregate consideration paid
by the Borrower and its Subsidiaries for any such acquisition; and
(viii) the payment of consulting fees to Xxxxxx Xxxxxxxx pursuant to a
consulting arrangement entered into on or prior to the Initial Borrowing
Date on an aggregate amount not to exceed $50,000 in any fiscal year of
the Borrower.
9.09 CAPITAL EXPENDITURES. (a) The Borrower will not, and will not
permit any of its Subsidiaries to, make any Capital Expenditures, except that
(x) during the fiscal year (taken as one accounting period) ending on or about
December 31, 1998, the Borrower and its Subsidiaries may make Capital
Expenditures in an aggregate amount not to exceed $22,000,000 and (y) during
each fiscal year thereafter (taken as one accounting period), the Borrower and
its Subsidiaries may make Capital Expenditures in an aggregate amount not to
exceed $20,000,000; PROVIDED that for any fiscal year of the Borrower,
commencing with the fiscal year ending closest to December 31, 2000, in the
event the Consolidated EBITDA of the Borrower and its subsidiaries shall be less
than the Specified EBITDA Amount for such fiscal year (the amount of such
deficiency, the "EBITDA Shortfall"), the aggregate amount of Capital
Expenditures permitted in the next succeeding fiscal year shall equal
$20,000,000 LESS the EBITDA Shortfall.
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(b) Notwithstanding the foregoing, in the event that the amount of
Capital Expenditures permitted to be made by the Borrower and its Subsidiaries
pursuant to clause (a) above in any fiscal year (after giving effect to the
proviso thereto, but before giving effect to any increase in such permitted
expenditure amount pursuant to this clause (b)) is greater than the amount of
such Capital Expenditures made by the Borrower and its Subsidiaries during such
fiscal year, such excess (the "Rollover Amount") may be carried forward and
utilized to make Capital Expenditures in succeeding fiscal years, PROVIDED that
in no event shall the aggregate amount of Capital Expenditures made by the
Borrower and its Subsidiaries during any fiscal year pursuant to Section 9.09(a)
exceed 135% of the amount permitted with respect to such fiscal year in such
Section 9.09(a) (after giving effect to the proviso thereto).
(c) Notwithstanding the foregoing, the Borrower and its Subsidiaries
may make Capital Expenditures (which Capital Expenditures will not be included
in any determination under the foregoing clause (a)) with the Net Sale Proceeds
of asset sales to the extent such proceeds are not required to be applied to
repay Loans pursuant to Section 4.02(f).
(d) Notwithstanding the foregoing, the Borrower and its Subsidiaries
may make Capital Expenditures (which Capital Expenditures will not be included
in any determination under the foregoing clause (a)) with the insurance proceeds
received by the Borrower or any of its Subsidiaries from any Recovery Event so
long as such Capital Expenditures are to replace or restore any properties or
assets in respect of which such proceeds were paid within 360 days following the
date of the receipt of such insurance proceeds to the extent such insurance
proceeds are not required to be applied to repay Loans pursuant to Section
4.02(h).
(e) Notwithstanding the foregoing, the Borrower may make Capital
Expenditures (which Capital Expenditures will not be included in any
determination under the foregoing clause (a)) constituting Permitted
Acquisitions.
(f) Notwithstanding the foregoing, the Borrower may make Capital
Expenditures at any time (which Capital Expenditures will not be included in any
determination under the foregoing clause (a)) with proceeds received from the
sale of common equity so long as at the time of the making of any such Capital
Expenditure, the aggregate amount to be expended in connection therewith does
not exceed the Equity Proceeds Amount at such time.
(g) Notwithstanding the foregoing, the Borrower may make Capital
Expenditures (which Capital Expenditures will not be included in any
determination under the foregoing clause (a)) in connection with the termination
of the Visionworks Lease on the Visionworks Lease Expiry Date.
9.10 CONSOLIDATED INTEREST COVERAGE RATIO. The Borrower will not
permit the Consolidated Interest Coverage Ratio for any period of four
consecutive fiscal quarters (or, if shorter, the period beginning on the Initial
Borrowing Date and ended on the last day of a fiscal quarter ended after the
Initial Borrowing Date), in each case taken as one accounting period, ended on
the
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last day of a fiscal quarter described below to be less than the amount set
forth opposite such fiscal quarter below:
Fiscal Quarter Ended In, Or Closest To Ratio
-------------------------------------- -----
June, 1998 1.60:1.00
September, 1998 1.60:1.00
December, 1998 1.60:1.00
March, 1999 1.60:1.00
June, 1999 1.70:1.00
September, 1999 1.70:1.00
December, 1999 1.80:1.00
March, 2000 1.80:1.00
June, 2000 1.90:1.00
September, 2000 1.90:1.00
December, 2000 2.00:1.00
March, 2001 2.00:1.00
June, 2001 2.00:1.00
September, 2001 2.00:1.00
December, 2001 2.25:1.00
March, 2002 2.25:1.00
June, 2002 2.25:1.00
September, 2002 2.25:1.00
December, 2002 2.50:1.00
March, 2003 2.50:1.00
June, 2003 2.50:1.00
September, 2003 2.50:1.00
December, 2003 2.75:1.00
March, 2004 2.75:1.00
RL/AL Maturity Date 2.75:1.00
9.11 MINIMUM CONSOLIDATED EBITDA. The Borrower will not permit
Consolidated EBITDA for any period of four consecutive fiscal quarters (in each
case taken as one accounting period), ended on the last day of any fiscal
quarter from the Effective Date to and including the fiscal quarter ending in or
closest to March, 2000, to be less than $32,500,000:
9.12 MAXIMUM LEVERAGE RATIO. The Borrower will not permit the
Leverage Ratio at any time during a fiscal quarter set forth below to be greater
than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ended In, Or Closest To Ratio
-------------------------------------- -----
June, 1998 6.75:1.00
September, 1998 6.75:1.00
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Fiscal Quarter Ended In, Or Closest To Ratio
-------------------------------------- -----
December, 1998 6.50:1.00
March, 1999 6.50:1.00
June, 1999 6.50:1.00
September, 1999 6.50:1.00
December, 1999 6.25:1.00
March, 2000 6.00:1.00
June, 2000 5.75:1.00
September, 2000 5.75:1.00
December, 2000 5.50:1.00
March, 2001 5.50:1.00
June, 2001 5.00:1.00
September, 2001 5.00:1.00
December, 2001 4.75:1.00
March, 2002 4.75:1.00
June, 2002 4.50:1.00
September, 2002 4.50:1.00
December, 2002 4.25:1.00
March, 2003 and thereafter 4.25:1.00
9.13 LIMITATION ON PREPAYMENTS AND MODIFICATIONS OF INDEBTEDNESS;
MODIFICATIONS OF CERTIFICATE OF INCORPORATION, BY-LAWS AND CERTAIN OTHER
AGREEMENTS; ETC. The Borrower will not, and will not permit any of its
Subsidiaries to, (i) amend or modify, or permit the amendment or modification
of, any provision of the Existing Indebtedness, the Existing Notes, the Senior
Subordinated Notes or, if issued, any Additional Subordinated Debt or of any
agreement (including, without limitation, any purchase agreement, indenture,
loan agreement or security agreement) relating thereto except for any amendment
or modifications which are not in any way adverse to the interests of the
Lenders and are effected pursuant to documentation satisfactory in form and
substance to the Agents in their sole judgment, (ii) make (or give any notice in
respect thereof) any voluntary or optional payment or prepayment on or
redemption or acquisition for value of, or any prepayment or redemption as a
result of any asset sale, change of control or similar event of, any Existing
Indebtedness, Existing Notes (other than pursuant to the Existing Notes
Redemption) Senior Subordinated Notes or any Additional Subordinated Debt, (iii)
amend or modify, or permit the amendment or modification of, the
Recapitalization Agreement, any other Transaction Document or the Visionworks
Lease, except for amendments or modifications which are not in any way adverse
to the interests of the Lenders or (iv) amend, modify or change its Certificate
of Incorporation (including, without limitation, by the filing or modification
of any certificate of designation) or By-Laws, or any agreement entered into by
it, with respect to its capital stock (including any Shareholders' Agreement),
or enter into any new agreement with respect to its capital stock, other than
any amendments, modifications or changes pursuant to this clause (iv) or any
such new agreements pursuant to this clause (iv) which do not in any way
adversely affect the interests of the Lenders or such as are otherwise approved
by the Required Lenders, provided that (a) nothing in this Section 9.13 shall
prevent the Borrower or any of its Subsidiaries from amending its Certificate of
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Incorporation or By-Laws to provide indemnification to any officer or director
of the Borrower or any such Subsidiary to the maximum extent permitted by Texas
law and provided that the Borrower may issue such capital stock as is provided
in Section 9.17; (b) the Senior Subordinated Notes may be repaid with the
proceeds of common stock of the Borrower to the extent permitted by the "equity
clawback" provisions of the Senior Subordinated Note Documents so long as (I) no
Default or Event of Default then exists or would exist after giving effect
thereto, (II) the aggregate amount of such proceeds expended in connection with
any such repayment does not exceed the Equity Proceeds Amount at such time and
(III) after giving effect to such repayment the Leverage Ratio (determined on a
PRO FORMA BASIS) would be less than 5.00:1.00 and (c) the Senior Subordinated
Notes may be repaid with the proceeds of the concurrent issuance of Additional
Subordinated Debt so long as (I) no Default or Event of Default then exists or
would exist after giving effect thereto, (II) the aggregate principal amount of
such Additional Subordinated Debt does not exceed the principal amount of Senior
Subordinated Notes refinanced thereby and (III) after giving effect to such
issuance, the Borrower and its Subsidiaries are in compliance with the covenants
contained in Sections 9.10, 9.11 and 9.12 for the Test Period most recently
ended on a PRO FORMA Basis as if such Additional Subordinated Debt had been
issued on the first day of such Test Period.
9.14 LIMITATION ON CERTAIN RESTRICTIONS ON SUBSIDIARIES. The
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any Subsidiary
of the Borrower, or pay any Indebtedness owed to the Borrower or a Subsidiary of
the Borrower, (b) make loans or advances to the Borrower or any of the
Borrower's Subsidiaries or (c) transfer any of its properties or assets to the
Borrower or any of the Borrower's Subsidiaries, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) this
Agreement and the other Credit Documents, (iii) the Debt Agreements, Senior
Subordinated Note Documents and Additional Subordinated Debt (if any), (iv)
customary provisions restricting subletting or assignment of any lease governing
a leasehold interest of the Borrower or a Subsidiary of the Borrower, (v)
customary provisions restricting assignment of any licensing agreement entered
into by the Borrower or a Subsidiary of the Borrower in the ordinary course of
business, (vi) any holder of a Permitted Lien may restrict the transfer of the
asset or assets subject thereto and (vii) any Indebtedness incurred after the
Effective Date in accordance with the provisions of this Agreement may contain
restrictions which are not more restrictive than those contained in this
Agreement.
9.15 LIMITATION ON CREATION OF SUBSIDIARIES. The Borrower shall not
establish, create or acquire any additional Subsidiaries without the prior
written consent of the Required Lenders; PROVIDED that the Borrower and its
Wholly-Owned Domestic Subsidiaries (a) may make investments permitted under
Section 9.06 (xvi) without such consent and (b) may establish or create one or
more Wholly-Owned Subsidiaries of the Borrower without such consent so long as,
in the case of Subsidiaries created as provided in this clause (b) and in the
case of any Subsidiary created as contemplated in clause (a) but only in the
event such Subsidiary guarantees, or is required to guaranty, any amounts in
respect of the Senior Subordinated Notes or any Additional Subordinated
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Debt, (i) 100% of the capital stock of any new Domestic Subsidiary (or all
capital stock of any new Foreign Subsidiary which is owned by any Credit Party,
except that not more than 65% of the voting stock of any such Foreign Subsidiary
shall be required to be so pledged) is upon the creation or establishment of any
such new Subsidiary pledged and delivered to the Collateral Agent for the
benefit of the Secured Creditors under the Pledge Agreement and (ii) upon the
creation or establishment of any such new Domestic Subsidiary such Domestic
Subsidiary executes the additional Security Documents and guaranty required to
be executed by it in accordance with Section 8.11.
9.16 MAINTENANCE OF CORPORATE SEPARATENESS, ETC. The Borrower will
not, and will not permit any of its Subsidiaries to, (a) fail to satisfy
customary corporate formalities, including, without limitation, (i) the holding
of regular board of directors' and shareholders' meetings, (ii) the maintenance
of separate corporate offices and records and (iii) the maintenance of separate
bank accounts in its own name; or (b) fail to act solely in its own corporate
name and through its authorized officers and agents.
9.17 LIMITATION ON ISSUANCE OF CAPITAL STOCK. (a) The Borrower will
not, and will not permit any of its Subsidiaries to issue (i) any preferred
stock (except for the issuance of the Borrower Preferred Stock on or prior to
the Initial Borrowing Date pursuant to the Equity Contribution Documents) and
the issuance of Borrower Preferred Stock as a dividend on Borrower Preferred
Stock then outstanding or (ii) any class of redeemable common stock.
(b) The Borrower will not permit any of its Subsidiaries to issue
any capital stock (including by way of sales of treasury stock) or any options
or warrants to purchase, or securities convertible into, capital stock, except
(i) for transfers and replacements of then outstanding shares of capital stock,
(ii) for stock splits, stock dividends and additional issuances which do not
decrease the percentage ownership of the Borrower or any of its Subsidiaries in
any class of the capital stock of such Subsidiary, (iii) in the case of Foreign
Subsidiaries of the Borrower, to qualify directors to the extent required by
applicable law, and (iv) Subsidiaries of the Borrower formed after the Effective
Date pursuant to Section 9.15 may issue capital stock to the Borrower or the
respective Subsidiary of the Borrower which is to own such stock in accordance
with the requirements of Section 9.15. All capital stock issued in accordance
with this Section 9.17(b) shall, to the extent required by the Pledge Agreement,
be delivered to the Collateral Agent for pledge pursuant to the Pledge
Agreement.
SECTION 10. EVENTS OF DEFAULT. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
10.01 PAYMENTS. The Borrower shall (i) default in the payment when
due of any principal of the Loans or (ii) default, and such default shall
continue for three or more days, in the payment when due of any Unpaid Drawing,
any interest on any Loan or any Fees or any other amounts owing hereunder or
under any other Credit Document; or
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10.02 REPRESENTATIONS, ETC. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or in
any statement or certificate delivered pursuant hereto or thereto shall prove to
be untrue in any material respect on the date as of which made or deemed made;
or
10.03 COVENANTS. Any Credit Party shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(f), 8.10, 8.11 or 9, or (b) default in the due performance or
observance by it of any term, covenant or agreement (other than those referred
to in Section 10.01, 10.02 or clause (a) of this Section 10.03) contained in
this Agreement and such default shall continue unremedied for a period of at
least 30 days after notice to the defaulting party by any Agent or the Required
Lenders; or
10.04 DEFAULT UNDER OTHER AGREEMENTS. (a) The Borrower or any of its
Subsidiaries shall (i) default in any payment with respect to any Indebtedness
(other than the Obligations) beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created or (ii)
default in the observance or performance of any agreement or condition relating
to any Indebtedness (other than the Obligations) or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause (determined
without regard to whether any notice is required) any such Indebtedness to
become due prior to its stated maturity; or (b) any Indebtedness (other than the
Obligations) of the Borrower or any of its Subsidiaries shall be declared to be
due and payable, or shall be required to be prepaid other than by a regularly
scheduled required prepayment, prior to the stated maturity thereof, PROVIDED
that it shall not constitute an Event of Default pursuant to clause (a) or (b)
of this Section 10.04 unless the principal amount of any one issue of such
Indebtedness, or the aggregate amount of all such Indebtedness referred to in
clauses (a) and (b) above, exceeds $5,000,000 at any one time; or
10.05 BANKRUPTCY, ETC. The Borrower or any of its Material
Subsidiaries shall commence a voluntary case concerning itself under Title 11 of
the United States Code entitled "Bankruptcy," as now or hereafter in effect, or
any successor thereto (the "Bankruptcy Code"); or an involuntary case is
commenced against the Borrower or any of its Material Subsidiaries and the
petition is not controverted within 10 days, or is not dismissed within 60 days,
after commencement of the case; or a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or substantially all of the
property of the Borrower or any of its Material Subsidiaries; or the Borrower or
any of its Material Subsidiaries commences any other proceeding under any
reorganization, bankruptcy, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to the Borrower or any of its
Material Subsidiaries, or there is commenced against the Borrower or any of its
Material Subsidiaries any such proceeding which remains undismissed for a period
of 60 days; or the Borrower or any of its Material Subsidiaries is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any such
case or proceeding is entered; or the Borrower or any of its Material
Subsidiaries suffers any appointment of any custodian or the like for it or any
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substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or the Borrower or any of its Material Subsidiaries makes a
general assignment for the benefit of creditors; or any corporate action is
taken by the Borrower or any of its Material Subsidiaries for the purpose of
effecting any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof or a waiver of such standard
or extension of any amortization period is sought or granted under Section 412
of the Code, or Section 303 or 304 of ERISA, a Reportable Event shall have
occurred, a contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of
a Plan subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days, any Plan shall have had
a trustee appointed to administer such Plan, any Plan is terminated or shall
have been terminated or the subject of termination proceedings under ERISA, any
Plan shall have an Unfunded Current Liability, a contribution required to be
made to a Plan or a Foreign Pension Plan has not been timely made, the Borrower
or any of its Subsidiaries or any ERISA Affiliate has incurred or is likely to
incur a liability to or on account of a Plan under Section 409, 502(i), 502(l),
515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29),
4971, 4975, 4980 of the Code, or the Borrower or any of its Subsidiaries has
incurred liabilities pursuant to one or more Retiree Welfare Plan or Foreign
Pension Plans; (b) there shall result from any such event or events the
imposition of a lien, the granting of a security interest, or a liability or a
material risk of incurring a liability; and (c) which lien, security interest or
liability which arises from such event or events has had, or, in the opinion of
the Required Lenders, could reasonably be expected to have, a Material Adverse
Effect; or
10.07 SECURITY DOCUMENTS. (a) Except in each case to the extent
resulting from the failure of the Collateral Agent to retain possession of the
applicable Pledged Securities, any Security Document shall cease to be, or shall
be asserted by any Credit Party not to be, in full force and effect, or shall
cease to give the Collateral Agent the Liens, rights, powers and privileges
purported to be created thereby in favor of the Collateral Agent, (including,
without limitation, a perfected security interest in, and Lien on, all of the
Collateral, other than Collateral with an aggregate value of less than or equal
to $1,000,000; PROVIDED that if the Borrower is notified by the Administrative
Agent of a lack of perfection with respect to any of the Collateral, the
Borrower will take such steps as are necessary or advisable to perfect the
Collateral Agent's security interest in such Collateral), or (b) any Credit
Party shall default in the due performance or observance of any term, covenant
or agreement on its part to be performed or observed pursuant to any such
Security Document and such default (except to the extent that same will
adversely affect the continued perfection and priority of the Liens created by
any such Security Document in Collateral with an aggregate value in excess of
$1,000,000, in which case clause (a) of this Section 10.07 will be applicable)
shall continue unremedied for a period of 30 days; or
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10.08 GUARANTIES. Any Guaranty or any provision thereof shall cease
to be in full force and effect as to the relevant Subsidiary Guarantor (unless
such Subsidiary Guarantor is no longer a Subsidiary by virtue of a liquidation,
sale, merger or consolidation permitted by Section 9.02), or any Subsidiary
Guarantor or any Person acting by or on behalf of such Subsidiary Guarantor
shall deny or disaffirm such Subsidiary Guarantor's obligations under any
Guaranty or any Subsidiary Guarantor shall default in the due performance or
observance of any term, covenant or agreement on its part to be performed or
observed pursuant to any Guaranty; or
10.09 JUDGMENTS. One or more judgments or decrees shall be entered
against the Borrower or any of its Subsidiaries involving a liability (to the
extent not paid or not fully covered by a reputable and solvent insurance
company) in excess of $5,000,000 for all such judgments and decrees and all such
judgments or decrees either shall be final and non-appealable or shall not have
been vacated, discharged or stayed or bonded pending appeal within 60 days from
the entry thereof; or
10.10 OWNERSHIP. A Change of Control shall have occurred;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Lenders, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of any Agent, any
Lender or the holder of any Note to enforce its claims against any Credit Party,
except as otherwise specifically provided for in this Agreement (PROVIDED that
if an Event of Default specified in Section 10.05 shall occur with respect to
the Borrower, the result which would occur upon the giving of written notice by
the Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon all Commitments of each Lender shall forthwith
terminate immediately and any Commitment Commission shall forthwith become due
and payable without any other notice of any kind; (ii) declare the principal of
and any accrued interest in respect of all Loans and any Notes and all other
Obligations owing hereunder and thereunder (including Unpaid Drawings) to be,
whereupon the same shall become, forthwith due and payable without presentiment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; (iii) enforce, as Collateral Agent (or direct the Collateral Agent
to enforce), any or all of the Liens and security interests created pursuant to
the Security Documents; (iv) terminate any Letter of Credit which may be
terminated in accordance with its terms; (v) direct the Borrower to pay (and the
Borrower hereby agrees upon receipt of such notice, or upon the occurrence of
any Event of Default specified in Section 10.05, to pay) to the Collateral Agent
at the Payment Office such additional amounts of cash, to be held as security
for the Borrower's reimbursement obligations in respect of Letters of Credit
then outstanding, equal to the aggregate Stated Amount of all Letters of Credit
then outstanding; and (vi) apply any cash collateral as provided in Section
4.02(a).
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SECTION 11. DEFINITIONS AND ACCOUNTING TERMS.
11.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"A Acquisition Loan" shall have the meaning provided in 1.01(b).
"Acquisition Commitment Assumption Agreement" shall mean and include
each Acquisition Commitment Assumption Agreement in the form of Exhibit C hereto
executed and delivered in accordance with Section 1.14 hereof.
"Acquisition Commitment Assumption Date" shall mean the date on
which each Additional Acquisition Commitment Assumption Agreement is delivered
to the Administrative Agent pursuant to Section 1.14 of this Agreement.
"Acquisition Facility Expiry Date" shall mean April 24, 2002.
"Acquisition Facility Reduction Date" shall mean April 24, 2001.
"Acquisition Loan" shall have the meaning provided in Section
1.01(b).
"Acquisition Loan Borrowing Date" shall mean one or more dates
occurring after the Effective Date and on or prior to the Acquisition Facility
Expiry Date on which Acquisition Loans are incurred hereunder.
"Acquisition Loan Commitment" shall mean with respect to each
Lender, the amount (if any) set forth opposite such Lender's name on Schedule I
hereto directly below the column entitled "Acquisition Loan Commitment" on the
Effective Date or with respect to a Lender's subsequently assuming its first
such Commitment after the Effective Date pursuant to Section 1.14, on the
applicable Acquisition Commitment Assumption Date, as the same may be (x)
increased from time to time pursuant to Section 1.14, (y) reduced from time to
time pursuant to Sections 3.02, 3.03, 4.02, and/or 10 or (z) adjusted from time
to time as a result of assignments to or from such Lender pursuant to Section
1.13 or 13.04(b).
"Acquisition Note" shall have the meaning provided in Section
1.05(d).
"Additional AL Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(c)(ii).
"Additional Collateral" shall mean all property (whether real or
personal) in which security interests are granted (or have been purported to be
granted) (and continue to be in effect at the time of determination) pursuant to
Section 8.11 or Section 8.12.
"Additional Investors" shall have the meaning provided in Section
5.06(b).
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"Additional Management Fees" shall have the meaning provided in
Section 9.08(v).
"Additional Mortgage" shall mean and include each mortgage, deed of
trust or other security instrument with respect to Real Property executed in
accordance with Section 8.11 or Section 8.12.
"Additional Security Documents" shall mean all mortgages, pledge
agreements, security agreements and other security documents entered into
pursuant to Section 8.11 on Section 8.12 with respect to Additional Collateral.
"Additional Subordinated Debt" shall mean subordinated indebtedness
of the Borrower issued after the Initial Borrowing Date (i) which contains no
financial maintenance covenants or cross-default (as opposed to
cross-acceleration) provisions, (ii) which does not provide for any collateral
security, (iii) all of the terms and conditions of which (including, without
limitation, as to the issuer, interest rates, amortization, maturities,
covenants, defaults, remedies, sinking fund provisions, subordination provisions
and other terms), taken as a whole, are not less favorable to the Borrower or
the Lenders than those contained in the Senior Subordinated Notes, (iv) the
subordination provisions of which are no less favorable to the Lenders than
those contained in the Senior Subordinated Notes and (v) the documentation with
respect to which shall reflect the foregoing and shall otherwise be in form and
substance satisfactory to the Agents.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement, and shall include any successor thereto.
"Affiliate" shall mean, with respect to any Person, any other Person
(including, for purposes of Section 9.08 only, all directors, officers and
partners of such Person) directly or indirectly controlling, controlled by, or
under direct or indirect common control with, such Person; PROVIDED, HOWEVER,
that for purposes of Section 9.08, an Affiliate of the Borrower shall include
any Person that directly or indirectly votes or has the power to vote more than
10% of any class of the capital stock of the Borrower and any officer or
director of the Borrower or any of its Subsidiaries. A Person shall be deemed to
control another Person if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of such
other Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agent" shall have the meaning set forth in the first paragraph of
this Agreement.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented, amended, restated, extended, renewed or replaced from time to
time.
"AL Commitment Commission" shall have the meaning provided in
Section 3.01(a)(i).
"AL Percentage" of any Lender at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the aggregate principal
amount of Acquisition Loans of such
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Lender then outstanding and the denominator of which is the aggregate principal
amount of all Acquisition Loans then outstanding.
"AL Scheduled Repayment" shall mean AL Year 3 Scheduled Repayments
and AL Year 4 Scheduled Repayments.
"AL Scheduled Repayment Dates" shall mean Initial AL Scheduled
Repayment Dates and Additional AL Scheduled Repayment Dates.
"AL Year 3 Scheduled Repayment" shall have the meaning provided in
Section 4.02(c)(i).
"AL Year 4 Scheduled Repayment" shall have the meaning provided in
Section 4.02(c)(ii).
"Applicable Commitment Commission Percentage" shall mean, during
each Margin Adjustment Period beginning after the Initial Borrowing Date, the
percentage per annum set forth below opposite the respective Level indicated to
have been achieved on the applicable Start Date for such Margin Adjustment
Period (as shown on the respective officer's certificate delivered pursuant to
Section 8.01(e)) in accordance with the Requirements for the various Levels
specified in the table below:
--------------------------------------------------------------------------------
APPLICABLE
LEVEL REQUIREMENTS COMMIT-
MENT COM-
MISSION
PERCENTAGE
--------------------------------------------------------------------------------
1 The Leverage Ratio was equal to or less than 0.300%
3.25:1.00 on the last day of the Margin
Adjustment Test Period last ended.
--------------------------------------------------------------------------------
2 The Leverage Ratio was greater than 3.25:1.00 0.375%
and equal to or less than or equal to 3.75:1.00
on the last day of the Margin Adjustment Test
Period last ended last ended.
--------------------------------------------------------------------------------
3 The Leverage Ratio was greater than 3.75:1.00 0.375%
and equal to or less than 4.25:1.00 on the last
day of the Margin Adjustment Test Period last
ended.
--------------------------------------------------------------------------------
4 The Leverage Ratio was greater than 4.25:1.00 0.500%
and equal to or less than 4.75:1.00 on the last
day of the Margin Adjustment Test Period last
ended.
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
APPLICABLE
LEVEL REQUIREMENTS COMMIT-
MENT COM-
MISSION
PERCENTAGE
--------------------------------------------------------------------------------
5 Level 5 pricing shall apply at all times when 0.500%
the Requirements set forth above for Levels 1
through 4 are not met.
--------------------------------------------------------------------------------
; PROVIDED, HOWEVER, that Level 5 pricing shall also apply (x) from the period
from the Initial Borrowing Date to but excluding the first day of the first
Margin Adjustment Period occurring after the Initial Borrowing Date and (y) at
any time when any Default or Event of Default is in existence.
"Applicable Margin" shall mean during each Margin Adjustment Period
beginning after the Initial Borrowing Date, the percentage per annum set forth
below opposite the respective Level indicated to have been achieved on the
applicable Start Date for such Margin Adjustment Period (as shown on the
respective officer's certificate delivered pursuant to Section 8.01(e)) in
accordance with the Requirements for the various Levels specified in the table
below:
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--------------------------------------------------------------------------------
APPLICABLE APPLICABLE
LEVEL REQUIREMENTS MARGIN FOR MARGIN FOR
BASE RATE EURODOLLAR
LOANS LOANS
--------------------------------------------------------------------------------
1 The Leverage Ratio was equal to or less than 0.25% 1.25%
3.25:1.00 on the last day of the Margin
Adjustment Test Period last ended
--------------------------------------------------------------------------------
2 The Leverage Ratio was greater than 3.25:1.00 0.50% 1.50%
and equal to or less than 3.75:1.00 on the last
day of the Margin Adjustment Test Period last
ended
--------------------------------------------------------------------------------
3 The Leverage Ratio was greater than 3.75:1.00 0.75% 1.75%
and equal to or less than 4.25:1.00 on the last
day of the Margin Adjustment Test Period last
ended
--------------------------------------------------------------------------------
4 The Leverage Ratio was greater than 4.25:1.00 1.00% 2.00%
and equal to or less than 4.75:1.00 on the last
day of the Margin Adjustment Test Period last
ended
--------------------------------------------------------------------------------
5 Level 5 pricing shall apply at all times when 1.25% 2.25%
the requirements set forth above for Levels I
through 4 are not met
--------------------------------------------------------------------------------
; PROVIDED, HOWEVER, that Level 5 pricing shall also apply (x) from the period
from the Initial Borrowing Date to but excluding the first day of the first
Margin Adjustment Period occurring after the Initial Borrowing Date and (y) at
any time when any Default or Event of Default is in existence.
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit K (appropriately
completed).
"Assuming Lender" shall have the meaning set forth in Section 1.14.
"Authorized Officer" shall mean any senior officer of the Borrower
or a Subsidiary Borrower designated as such in writing to the Administrative
Agent by the Borrower, in each case to the extent reasonably acceptable to the
Administrative Agent.
"B Acquisition Loan" shall have the meaning provided in Section
1.01(b).
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"Base Rate" shall mean for any day, a rate of interest per annum
equal to the higher of (i) the Prime Lending Rate for such day and (ii) the
overnight Federal Funds Rate for such day plus 1/2 of 1%.
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"Base Rate Loan" shall mean (i) each Swingline Loan and (ii) each
Loan designated or deemed designated as such by the Borrower at the time of the
incurrence thereof or conversion thereto.
"Borrower" shall have the meaning set forth in the first paragraph
of this Agreement.
"Borrower Common Stock" shall mean the common stock of the Borrower.
"Borrower Preferred Stock" shall mean the Series A Preferred Stock
of the Borrower, par value $.01 per share.
"Borrowing" shall mean the borrowing of one Type of Loan of a single
Tranche from all the Lenders (other than any Lender which has not funded its
share of a Borrowing in accordance with this Agreement) having Commitments of
the respective Tranche (or from the Swingline Lender in the case of Swingline
Loans) on a given date (or resulting from a conversion or conversions on such
date) having in the case of Eurodollar Loans the same Interest Period, PROVIDED
that Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered
part of the related Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company in its individual capacity.
"Business Day" shall mean (i) with respect to any borrowing, payment
or rate selection of Eurodollar Loans, a day (other than a Saturday or Sunday)
on which banks generally are open in New York for the conduct of substantially
all of their commercial lending activities and on which dealings in United
States dollars are carried on in the London interbank market and (ii) for all
other purposes, a day (other than a Saturday or Sunday) on which banks generally
are open in New York for the conduct of substantially all of their commercial
lending activities.
"Calculation Period" shall mean the Test Period most recently ended
on prior to the date that any determination is required to be made hereunder on
a PRO FORMA Basis.
"Capital Expenditures" shall mean, with respect to any Person, all
expenditures by such Person which should be capitalized in accordance with
generally accepted accounting principles, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with
generally accepted accounting principles) and the amount of Capitalized Lease
Obligations incurred by such Person.
"Capitalized Lease Obligations" of any Person shall mean all rental
obligations which, under generally accepted accounting principles, are or will
be required to be capitalized on the books of such Person, in each case taken at
the amount thereof accounted for as indebtedness in accordance with such
principles.
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"Cash Equivalents" shall mean, as to any Person, (i) securities
issued or directly and fully guaranteed or insured by the United States or any
agency or instrumentality thereof (PROVIDED that the full faith and credit of
the United States is pledged in support thereof) having maturities of not more
than one year from the date of acquisition, (ii) time deposits, certificates of
deposit and bankers' acceptances of any commercial bank having, or which is the
principal banking subsidiary of a bank holding company organized under the laws
of the United States, any State thereof, the District of Columbia or any foreign
jurisdiction rated at least A-1 or the equivalent by Standard & Poor's
Corporation or at least P-1 or the equivalent by Xxxxx'x Investors Service,
Inc., with maturities of not more than one year from the date of acquisition by
such Person, (iii) repurchase obligations with a term of not more than 90 days
for underlying securities of the types described in clause (i) above entered
into with any bank meeting the qualifications specified in clause (ii) above,
(iv) commercial paper issued by any Person incorporated in the United States
rated at least A-1 or the equivalent thereof by Standard & Poor's Corporation or
at least P-1 or the equivalent thereof by Xxxxx'x Investors Service, Inc. and in
each case maturing not more than one year after the date of acquisition by such
Person, (v) investments in money market funds substantially all of whose assets
are comprised of securities of the types described in clauses (i) through (iv)
above and (vi) demand deposit accounts maintained in the ordinary course of
business, in each case to the extent constituting a "Cash Equivalent" under, and
as defined in, the Senior Subordinated Notes and the Additional Subordinated
Debt (if any).
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. Sec. 9601 ET SEQ.
"Change of Control" shall mean (a) prior to the date of an initial
registered public offering by the Borrower of its common stock, the Permitted
Holders shall cease to own on a fully diluted basis in the aggregate at least
51% of the economic and voting interest in the Borrower's capital stock free of
Liens except Liens granted by individuals who are principals or employees of THL
to secure personal financing arrangements so long as the holders of such Liens
do not exercise or attempt to exercise rights in respect of such stock, (b) on
or after the date of an initial registered public offering by the Borrower of
its common stock, (A) any other Person or "group" (within the meaning of Rules
13d-3 and 13d-5 under the Securities Exchange Act of 1934, as in effect on the
Initial Borrowing Date) shall own more than 20% of the voting and/or economic
interest in the Borrower's capital stock, (B) the Board of Directors of the
Borrower shall cease to consist of a majority of Continuing Directors or (C) the
Permitted Holders shall cease to own on a fully diluted basis in the aggregate
at least 30% of the economic and voting interest in the Borrower's capital stock
free of Liens except Liens granted by individuals who are employees of THL to
secure personal financing arrangements so long as the holders of such Liens do
not exercise or attempt to exercise rights in respect of such stock, or (c) a
"change of control" or similar event shall occur as provided in the Senior
Subordinated Note Indenture or in any document relating to the Additional
Subordinated Debt (if any).
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are
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to the Code, as in effect at the date of this Agreement and any subsequent
provisions of the Code, amendatory thereof, supplemental thereto or substituted
therefor.
"Collateral" shall mean all property (whether real or personal) with
respect to which any security interests have been granted (or purported to be
granted) pursuant to any Security Document, including, without limitation, all
Pledge Agreement Collateral, all Security Agreement Collateral, all Mortgaged
Properties, all cash and Cash Equivalents delivered as collateral pursuant to
Section 4.02 or 10 hereof and all Additional Collateral, if any.
"Collateral Agent" shall mean the Administrative Agent acting as
collateral agent for the Secured Creditors pursuant to the Security Documents.
"Collective Bargaining Agreements" shall have the meaning provided
in Section 5.05.
"Commitment" shall mean any of the commitments of any Lender, I.E.,
whether the Term Loan Commitment, Acquisition Loan Commitment or Revolving Loan
Commitment.
"Commitment Commission" shall mean and include the RL Commitment
Commission and the AL Commitment Commission.
"Common Equity Contribution" shall have the meaning provided in
Section 5.06(b).
"Consolidated Current Assets" shall mean, at any time, the current
assets (other than cash, Cash Equivalents and deferred income taxes to the
extent included in current assets) of the Borrower and its Subsidiaries at such
time determined on a consolidated basis.
"Consolidated Current Liabilities" shall mean, at any time, the
consolidated current liabilities of the Borrower and its Subsidiaries at such
time, but excluding (i) the current portion of any Indebtedness under this
Agreement and any other long-term Indebtedness which would otherwise be included
therein, (ii) accrued but unpaid interest with respect to the Indebtedness
described in clause (i), (iii) the current portion of Indebtedness constituting
Capitalized Lease Obligations and (iv) deferred income taxes.
"Consolidated EBIT" shall mean, for any period, Consolidated Net
Income of the Company and its Subsidiaries determined as provided in the
definition of Consolidated Net Income, before total interest expense (whether
cash or non-cash) and provisions for taxes based on income, and determined (i)
without giving effect to any extraordinary gains or losses but with giving
effect to gains or losses from sales of assets sold in the ordinary course of
business, (ii) without giving effect to nonrecurring cash and non-cash charges
in an aggregate amount not to exceed $20,000,000 (for all periods combined),
(iii) without giving effect to any non-cash charges deducted in determining
Consolidated Net Income for such period related to the issuance by the Borrower
of stock, warrants or options to management (or any exercise of any such
warrants or options), and (iv) without giving effect to management fees
permitted to be paid to THL and the THL Affiliates pursuant to Section 9.08
PROVIDED that for purposes of any calculation pursuant to Section 9.08(v),
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Consolidated EBIT shall give effect to any Additional Management Fees previously
paid or then contemplated to be paid at the time of such calculation.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT,
adjusted by adding thereto the amount of all depreciation, amortization and,
without duplication, other non-cash expenses that were deducted in determining
Consolidated EBIT for such period, PROVIDED that for purposes of the definition
of the Consolidated Interest Coverage Ratio, the Leverage Ratio and for purposes
of calculating the ratio set forth in Sections 9.02(xii) and 9.08(v) only, (x)
for the Test Period ending June 30, 1998, Consolidated EBITDA shall be the
actual Consolidated EBITDA for the fiscal quarter of the Borrower ending on or
about June 30, 1998 (taken as one accounting period) multiplied by 4, (y) for
the Test Period ending on or about September 30, 1998, Consolidated EBITDA shall
be the actual Consolidated EBITDA for the period of two fiscal quarters ending
on or about June 30, 1998 and September 30, 1998 (taken as one accounting
period) multiplied by 2, and (z) for the Test Period ending on or about December
31, 1998, Consolidated EBITDA shall be the actual Consolidated EBITDA for the
period of three consecutive fiscal quarters ending on or about June 30, 1998,
September 30, 1998 and December 31, 1998 (taken as one accounting period)
multiplied by 4/3.
"Consolidated Indebtedness" shall mean, as at any date of
determination, the aggregate stated balance sheet amount of all Indebtedness
(but including in any event the then outstanding principal amount of all Loans,
and the Senior Subordinated Notes, any Additional Subordinated Debt, all
Capitalized Lease Obligations and all Letter of Credit Outstandings) of the
Borrower and its Subsidiaries but, until October 1, 1998, excluding Indebtedness
represented by the Existing Notes on a consolidated basis as determined in
accordance with GAAP.
"Consolidated Interest Coverage Ratio" shall mean, for any period,
the ratio of (i) Consolidated EBITDA for such period to (ii) Consolidated
Interest Expense for such period.
"Consolidated Interest Expense" shall mean, for any period, total
interest expense (including that attributable to Capital Leases in accordance
with GAAP) of the Borrower and its Subsidiaries determined on a consolidated
basis with respect to all outstanding Indebtedness of the Company and its
Subsidiaries, including, without limitation, (i) all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing, and (ii) net costs or benefits under Interest Rate
Protection Agreements, but excluding, however, amortization of original issue
discount, amortization of any payments made to obtain any Interest Rate
Protection Agreement, deferred financing costs and any interest expense on
deferred compensation arrangements and any non-cash interest to the extent
included in total interest expense; PROVIDED that for purposes of the definition
of Consolidated Interest Coverage Ratio only, (x) for the Test Period ending on
or about June 30, 1998, Consolidated Interest Expense shall be the actual
Consolidated Interest Expense for the fiscal quarter of the Borrower ending on
or about June 30, 1998 (taken as one accounting period) multiplied by 4, (y) for
the Test Period ending on or about September 30, 1998, Consolidated Interest
Expense shall be the actual Consolidated Interest Expense for the period of two
fiscal quarters ending on or about June 30, 1998 and September 30, 1998 (taken
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as one accounting period) multiplied by 2, and (z) for the Test Period ending on
or about December 31, 1998, Consolidated Interest Expense shall be the actual
Consolidated Interest Expense for the period of three consecutive fiscal
quarters ending on or about June 30, 1998, September 30, 1998 and December 31,
1998 (taken as one accounting period) multiplied by 4/3.
"Consolidated Net Income" shall mean, for any period, the net income
(or loss) after provision for taxes but before any pay-in-kind or non-cash
accumulating dividends on the Borrower Preferred Stock of the Borrower and its
Subsidiaries on a consolidated basis for such period taken as a single
accounting period, but excluding any unrealized losses and gains for such period
resulting from xxxx-to-market of Other Hedging Agreements; PROVIDED, HOWEVER,
that (A) there shall be excluded (without duplication) (i) income (or loss) of
any Person in which any other Person (other than such Person or any of its
consolidated Subsidiaries) has a joint interest, except to the extent of the
amount of dividends or other distributions actually paid to such Person or
subject to subclause (iii) below) any of its consolidated Subsidiaries by such
other Person during such period, (ii) the income (or loss) of any Person during
such period accrued prior to the date it becomes a consolidated Subsidiary of
such Person or is merged into or consolidated with such Person or any of its
consolidated Subsidiaries, (iii) the income of any consolidated Subsidiary or
the Borrower to the extent attributable to minority interests held therein by
Persons other than the Borrower and its Wholly-Owned Subsidiaries, and (iv) the
income of any consolidated Subsidiary or the Borrower during such period to the
extent that the declaration or payment of dividends or similar distributions by
that consolidated Subsidiary of such income is not at the tine 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 or the Borrower or any of its other Subsidiaries, (B) for purposes of
determining compliance with Section 9.12 and the definitions of Applicable
Commitment Commission Percentage and Applicable Margin there shall be included
(to the extent not already included) in determining Consolidated Net Income for
any period the net income (or loss) of any Person, business, property or asset
acquired during such period pursuant to a Permitted Acquisition and not
subsequently sold or otherwise disposed or by the Borrower or one of its
Subsidiaries during such period (each Person, business, property or asset
acquired and not subsequently disposed of during such period, an "Acquired
Entity or Business') based on the actual net income (or loss) of such Acquired
Entity or Business for the entire period (including the portion thereof
occurring prior to such acquisition) and (C) for purposes of calculating
Consolidated Net Income for any period, Consolidated Net Income shall be
adjusted for factually supportable and identifiable PRO FORMA cost savings
related to cost of goods sold, selling, general administrative or occupancy
expenses for such period, in each case, that are directly attributable to the
acquisition of an Acquired Entity or Business (it being understood that in order
for the Borrower to adjust Consolidated Net Income pursuant to this clause (C),
the Borrower shall deliver to the Agent and the Banks a certificate of the chief
financial officer or other Authorized Officer demonstrating in reasonable detail
such factually supportable and identifiable cost savings).
"Contingent Obligation" shall mean, as to any Person, any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly
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or indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (x) for the purchase or payment of any such primary obligation or
(y) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect thereof;
PROVIDED, HOWEVER, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business and any products warranties extended in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made (or, if the less, the
maximum amount of such primary obligation for which such Person may be liable
pursuant to the terms of the instrument evidencing such Contingent Obligation)
or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.
"Continuing Directors" shall mean the (i) directors of the Borrower
on the Initial Borrowing Date and (ii) each other director, if such director's
nomination for election to the Board of Directors of the Borrower is recommended
by a majority of the then Continuing Directors.
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note, each Security Document and the Subsidiaries Guaranty and, after the
execution and delivery thereof, each additional guaranty or security document
executed pursuant to Section 8.11 or Section 8.12.
"Credit Event" shall mean the making of any Loan or the issuance of
any Letter of Credit.
"Credit Party" shall mean the Borrower, each Subsidiary Guarantor
and any other Subsidiary which at any time executes and delivers any Credit
Document as required by this Agreement.
"Debt Agreements" shall have the meaning provided in Section 5.05.
"Defeasance Documents" shall mean all documents entered into or
distributed in connection with the Existing Notes Defeasance.
"Default" shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a
Lender Default is in effect.
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"Dividend" shall have the meaning provided in Section 9.07.
"Documents" shall mean the Credit Documents and the Transaction
Documents.
"Dollars" and the sign "$" shall each mean lawful money of the
United States.
"Domestic Subsidiary" shall mean each Subsidiary of the Borrower
incorporated or organized in the United States or any State or territory
thereof.
"Domestic Wholly-Owned Subsidiary" shall mean each Domestic
Subsidiary which is a Wholly-Owned Subsidiary of the Borrower.
"Drawing" shall have the meaning provided in Section 2.04(b).
"ECCA" shall mean ECCA Merger Corp., a Delaware corporation.
"Effective Date" shall have the meaning provided in Section 13.10.
"Eligible Transferee" shall mean and include a commercial bank,
financial institution, fund or other Person which regularly purchases interests
in loans or extensions of credit of the types made pursuant to this Agreement,
any other Person which would constitute a "qualified institutional buyer" within
the meaning of Rule 144A under the Securities Act as in effect on the Effective
Date and any other "accredited investor" (as defined in Regulation D of the
Securities Act).
"Employee Benefit Plans" shall have the meaning provided in Section
5.05.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of non-compliance or violation, investigations or proceedings relating
in any way to any Environmental Law (hereafter "Claims") or any permit issued to
the Company or any of its Subsidiaries under any such Law, including, without
limitation, (a) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and (b) any and all Claims by any
third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief arising from alleged injury or threat of
injury to health, safety or the environment, as a result of a release or
threatened release of Hazardous Materials.
"Environmental Law" shall mean any domestic or foreign, federal,
state, provincial or local statute, law, rule, regulation, ordinance, code or
applicable and binding rule of common law now or hereafter in effect and in each
case as amended, and any applicable judicial or administrative order, consent,
decree or judgment (for purposes of this definition (collectively, "Laws")),
relating to the environment, or Hazardous Materials or health and safety to the
extent such health and safety issues arise under the Occupational Safety and
Health Act of 1970, as amended, or any such similar Laws.
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"Equity Contribution" shall have the meaning provided in Section
5.06(b).
"Equity Contribution Documents" shall mean and include any and all
subscription agreements and similar agreements, the certificate of designation
with respect to the Borrower Preferred Stock and all other documents entered
into or delivered in connection with the Common Equity Contribution and/or the
Preferred Equity Contribution.
"Equity Proceeds Amount" shall mean, on any date in connection with
any transaction, an amount equal to (i) 50% of the aggregate amount of net cash
proceeds (other than Excluded Proceeds) received by the Borrower from the
issuance of its common equity after the Initial Borrowing Date LESS the sum of
the aggregate amount of such proceeds expended on or prior to such date (before
giving effect to the transaction then being considered) (x) to effect Permitted
Acquisitions, (y) to effect Capital Expenditures pursuant to Section 9.09(f)
hereof and (z) to repay Senior Subordinated Notes.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at the
date of this Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the Borrower or a Subsidiary of the Borrower would
be deemed to be a "single employer" within the meaning of Section 414(b), (c),
(m) or (o) of the Code.
Eurodollar Loan" shall mean each Loan (excluding Swingline Loans)
designated as such by the Borrower at the time of the incurrence thereof or
conversion thereto.
"Eurodollar Rate" shall mean the sum of (i) the quotient of (a) the
rate determined by the Administrative Agent to be the rate at which deposits in
U.S. dollars are offered by BTCo to first-class banks in the London interbank
market at approximately 11 a.m. (London time) two Business Days prior to the
first day of the Interest Period applicable to such Eurodollar Loan, in the
approximate amount of BTCo's relevant Eurodollar Loan and having a maturity
approximately equal to the Interest Period applicable to such Eurodollar Loan
divided by (b) a percentage equal to 100% minus the then stated maximum rate of
all reserve requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves required by applicable law)
applicable to any member bank of the Federal Reserve System in respect of
Eurocurrency funding or liabilities as defined in Regulation D (or any successor
category of liabilities under Regulation D). The Eurodollar Rate shall be
rounded to the next higher multiple of 1/100 of 1% if the rate is not such a
multiple.
"Event of Default" shall have the meaning provided in Section 10.
"Excess Cash Flow" shall mean, for any period (i) the sum of (A)
Consolidated Net Income for such period plus (B) the amount of all non-cash
charges (including, without limitation,
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or duplication, depreciation, amortization and non-cash interest expense, but
excluding those non-cash charges that had the effect of decreasing Working
Capital for such period) included in determining Consolidated Net Income for
such period plus (C) the decrease, if any, in Working Capital from the first day
to the last day of such period, minus (ii) the sum (without duplication) of (A)
any non-cash credits (including from sales or other dispositions of assets)
included in determining Consolidated Net Income for such period, (B) gains from
sales or other dispositions of assets (other than sales of inventory in the
ordinary course of business) included in determining Consolidated Net Income for
such period, (C) an amount equal to (1) all Capital Expenditures (other than
Capital Expenditures made pursuant to Section 9.09(c), (d), (e), (f) or (g))
made during such period that are not financed by Indebtedness (including
Capitalized Lease Obligations but excluding Loans hereunder) plus (or minus, if
negative) (2) the Rollover Amount for such period to be carried forward to the
next period less the Rollover Amount (if any) for the preceding period carried
forward to the current period, (D) the amount expended in respect of Permitted
Acquisitions during such period, except to the extent constituting Capital
Expenditures or financed with Indebtedness, (E) the aggregate principal amount
of permanent principal payments of Indebtedness for borrowed money of the
Company and its Subsidiaries (other than (I) repayments of Indebtedness in
connection with the Refinancing or the Existing Notes Redemption or with the
proceeds of the Indebtedness or equity or with the proceeds of asset sales or
Recovery Events and (II) repayments of Loans, PROVIDED that repayments of Loans
shall be deducted in determining Excess Cash Flow if such repayments were (x)
required as a result of a Scheduled Repayment under Section 4.02(b) or (c), or
(y) made as a voluntary prepayment with internally generated funds (but in the
case of a voluntary prepayment of Revolving Loans or Swingline Loans, only to
the extent accompanied by a voluntary reduction to the Total Revolving Loan
Commitment)) during such period, (F) non-cash charges added back in a previous
period pursuant to clause (i) (B) above to the extent any such charge has become
a cash item in the current period, (G) the increase, if any, in Working Capital
from the first day to the last day of such period, (H) any cash disbursements
made against noncurrent liabilities (such as transition reserves and deferred
taxes) to the extent not deducted in determining Consolidated Net Income for
such period and (I) the amount of expenditures which are not classified as
Capital Expenditures but which were capitalized and not expensed during such
period.
"Excess Cash Payment Date" shall mean the date occurring 90 days
after the last day of each fiscal year of the Borrower (beginning with its
fiscal year ending closest to December 31, 1998).
"Excess Cash Payment Period" shall mean, with respect to the
repayment required on each Excess Cash Payment Date, the immediately preceding
fiscal year of the Borrower.
"Excluded Proceeds" shall have the meaning provided in Section
4.02(d).
"Excluded Taxes" shall mean (a) all taxes (including franchise
taxes), levies, imposts, duties, charges, fees, deductions and withholdings
imposed on or measured by net income or capital, in each case, imposed:
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(i) by the United States or any political subdivision or taxing
authority thereof or therein; or
(ii) by any jurisdiction under the laws of which any Agent, Lender or
lending office is organized or controlled, or in which its lending office
is located, or in which its principal office is located or any political
subdivision or taxing authority thereof or therein; or
(b) any withholding tax imposed by reason of the failure of any
Agent or Lender to comply with its obligations, if any, under Section 4.04
hereof.
"Existing Credit Agreement" shall mean the Amended and Restated
Credit Agreement, dated as of October 7, 1993, among the Borrower, Credit
Agricole Indosuez (formerly Banque Indosuez, New York Branch), as Agent and the
lending institutions party thereto, and the documents related thereto in each
case as in effect on the Effective Date.
"Existing Indebtedness" shall have the meaning provided in Section
7.23.
"Existing Notes" shall mean the 12% Senior Notes of the Borrower due
2003.
"Existing Notes Defeasance" shall have the meaning provided in
Section 5.08.
"Existing Notes Indenture" shall mean the Indenture, dated as of
October 7, 1993, between Eye Care Holdings, Inc. and the Existing Notes Trustee
in the form delivered to the Lenders prior to the Initial Borrowing Date, as
such Indenture shall be amended in accordance with the terms hereof and thereof.
"Existing Notes Redemption" shall have the meaning provided in
Section 5.08.
"Existing Notes Trustee" shall mean the United States Trust Company
of New York, or any successor thereto, as Trustee under the Existing Notes
Indenture.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Rate" shall mean, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately 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 at approximately 11 a.m. (New York
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion. Any change to the Base Rate due to
a change in the Federal Funds Rate shall be effective as of the opening of
business on the effective date of such change in the Federal Funds Rate.
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"Fees" shall mean all amounts payable pursuant to or referred to in
Section 3.01.
"Foreign Pension Plan" shall mean any plan, fund (including, without
limitation, any superannuating fund) or other similar program established or
maintained outside the United States of America by the Borrower or any one or
more of its Subsidiaries primarily for the benefit of employees of the Borrower
or such Subsidiaries residing outside the United States of America and into
which the Borrower or any of its Subsidiaries makes, or is obliged by law on
behalf of its employees to make payments, which plan, fund or other similar
program provides, or results in, retirement income, a deferral of income in
contemplation of retirement or payments to be made upon termination of
employment, and which plan is not subject to ERISA or the Code.
"Foreign Subsidiary" shall mean each Subsidiary of the Borrower that
is incorporated under the laws of any jurisdiction other than the United States
of America, any State thereof, the United States Virgin Islands or Puerto Rico.
"Fourth Year AL Facility Amount" shall mean the amount calculated on
the Acquisition Facility Reduction Date which is equal to (I) (x) $50,000,000
LESS (y) the aggregate amount of Acquisition Loan Commitments assumed after the
Effective Date and prior to such Acquisition Facility Reduction Date pursuant to
Section 1.14 hereof DIVIDED BY (II) two.
"GAAP" shall have the meaning provided in Section 13.07(a).
"Governmental Authority" shall mean the government of the United
States of America, any other nation or any political subdivision thereof,
whether state, provincial, or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"Guaranteed Obligations" shall mean all obligations of the Borrower
(i) to each Lender for the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of the principal and interest on
each Loan made by such Lender and each Note (if any) issued by the Borrower to
such Lender, and Loans made, under the Credit Agreement and all reimbursement
obligations and Unpaid Drawings with respect to Letters of Credit, together with
all the other obligations and liabilities (including, without limitation,
indemnities, fees and interest thereon) of the Borrower to such Lender now
existing or hereafter incurred under, arising out of or in connection with the
Credit Agreement or any other Credit Document and the due performance and
compliance with all the terms, conditions and agreements contained in the Credit
Documents by the Borrower and (ii) to each Lender and each Affiliate of a Lender
which enters into an Interest Rate Protection or Other Hedging Agreement with
the Borrower, the full and prompt payment when due (whether by acceleration or
otherwise) of all obligations of the Borrower owing under any such Interest Rate
Protection or Other Hedging Agreement, whether now in existence or hereafter
arising, and the due performance and compliance with all terms, conditions and
agreements contained therein.
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"Guaranty" shall mean the Subsidiaries Guaranty and any other
guarantee executed and delivered by a Subsidiary of the Borrower pursuant to
Section 8.11 or Section 8.12.
"Hazardous Materials" shall mean (a) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (b) any chemicals, materials or substances defined as or included
in the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "restricted hazardous materials," "extremely hazardous wastes,"
"restrictive hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants" or "pollutants," or words of similar meaning and regulatory
effect.
"Highest Lawful Rate" shall mean, with respect to any indebtedness
owed to any Lender hereunder or under any other Credit Document, the maximum
nonusurious interest rate, if any, that at any time or from time to time may be
contracted for, taken, reserved, charged or received by such Lender with respect
to such indebtedness under applicable law.
"Immaterial Subsidiary" shall mean, at any time, any subsidiary,
direct or indirect, that (a) has less than 5% of the consolidated assets of the
Borrower and its consolidated Subsidiaries as of the last day of the most
recently ended Test Period and (b) has less than 5% of the Consolidated EBITDA
of the Borrower and its consolidated Subsidiaries for the Test Period most
recently ended; PROVIDED that if more than one subsidiary is deemed an
Immaterial Subsidiary pursuant to this definition, all Immaterial Subsidiaries
shall be considered to be a single consolidated subsidiary for purposes of
determining whether the conditions specified above are satisfied.
"Indebtedness" shall mean, as to any Person, without duplication,
(i) all indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money or for the deferred purchase price of property or
services, (ii) the maximum amount available to be drawn under all letters of
credit issued for the account of such Person and, without duplication, all
unpaid drawings in respect of such letters of credit, (iii) all Indebtedness of
the types described in clause (i), (ii), (iv), (v), (vi) or (vii) of this
definition secured by any Lien on any property owned by such Person, whether or
not such Indebtedness has been assumed by such Person (to the extent of the
value of the respective property), (iv) the aggregate amount required to be
capitalized under leases under which such Person is the lessee, (v) all
obligations of such person to pay a specified purchase price for goods or
services, whether or not delivered or accepted, I.E., take-or-pay and similar
obligations, (vi) all Contingent Obligations of such Person and (vii) all
obligations under any Interest Rate Protection Agreement or Other Hedging
Agreement or under any similar type of agreement; PROVIDED that Indebtedness
shall not include trade payables and accrued expenses, in each case arising in
the ordinary course of business.
"Initial AL Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(c)(i).
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"Initial Borrowing Date" shall mean the date occurring on or after
the Effective Date on which the Borrowing of Term Loans hereunder occurs.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate
swap agreement, interest rate cap agreement, interest collar agreement, interest
rate hedging agreement, interest rate floor agreement or other similar agreement
or arrangement.
"Issuing Lender" shall mean the Administrative Agent and any Lender
which at the request of the Borrower and with the consent of the Administrative
Agent (which shall not be unreasonably withheld) agrees, in such Lender's sole
discretion, to become an Issuing Lender for the purpose of issuing Letters of
Credit pursuant to Section 2.
"L/C Supportable Indebtedness" shall mean (i) obligations of the
Borrower or its Subsidiaries incurred in the ordinary course of business with
respect to insurance obligations and workers' compensation, surety bonds and
other similar statutory obligations and (ii) such other obligations of the
Borrower or any of its Subsidiaries as are reasonably acceptable to the
Administrative Agent and the Letter of Credit Issuer and otherwise are permitted
to exist pursuant to the terms of this Agreement.
"Leaseholds" of any Person means all the right, title and interest
of such Person as lessee or licensee in, to and under leases or licenses of
land, improvements and/or fixtures.
"Lender" shall mean each financial institution listed on Schedule I,
as well as any Person which becomes a "Lender" hereunder pursuant to Section
1.13, 1.14 or 13.04(b).
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any Borrowing (including
any Mandatory Borrowing) or to fund its portion of any unreimbursed payment
under Section 2.03(c) or (ii) a Lender having notified in writing the Borrower
and/or the Administrative Agent that it does not intend to comply with its
obligations under Section 1.01 or Section 2.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the sum
(without duplication) of (i) the aggregate Stated Amount of all outstanding
Letters of Credit and (ii) the amount of all Unpaid Drawings.
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"Letter of Credit Request" shall have the meaning provided in
Section 2.02(a).
"Leverage Ratio" shall mean, at any date of determination, the ratio
of Consolidated Indebtedness on such date to Consolidated EBITDA for the Test
Period last ended.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall mean each Term Loan, each Acquisition Loan, each
Revolving Loan and each Swingline Loan.
"Majority Lenders" of any Tranche shall mean those Non-Defaulting
Lenders which would constitute the Required Lenders under, and as defined in,
this Agreement if all outstanding Obligations of the other Tranches under this
Agreement were repaid in full and all Commitments with respect thereto were
terminated.
"Management Agreements" shall have the meaning provided in Section
5.05.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(e).
"Margin Adjustment Period" shall mean each period which shall
commence on a date occurring after the first date occurring at least six months
following the Initial Borrowing Date on which the financial statements are
delivered pursuant to Section 8.01(b) or (c) for a fiscal quarter or year, as
the case may be, which ends at least six months after the Initial Borrowing Date
and which Margin Adjustment Period shall end on the earlier of (i) the date of
actual delivery of the next financial statements pursuant to Section 8.01(b) or
(c) and (ii) the latest date on which the next financial statements are required
to be delivered pursuant to Section 8.01(b) or (c).
"Margin Adjustment Test Period" shall mean, with respect to each
Margin Adjustment Period, the Test Period ended on the last day of the fiscal
quarter or year, as the case may be, for which financial statements were last
delivered or required to be delivered pursuant to Section 8.01(b) or (c).
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse effect on
the business, properties, assets, liabilities or condition (financial or
otherwise) of the Borrower (on a stand alone basis) or of the Borrower and its
Subsidiaries taken as a whole (on a consolidated basis).
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"Material Subsidiary" means any Subsidiary of the Borrower, direct
or indirect other than an Immaterial Subsidiary.
"Maturity Date" shall mean, with respect to any Tranche of Loans,
the Term Loan Maturity Date, the RL/AL Maturity Date or the Swingline Expiry
Date, as the case may be.
"Maximum Adjusted Leverage Ratio" shall mean at any time during a
fiscal quarter set forth below, the ratio set forth opposite such fiscal quarter
below:
Fiscal Quarter Ended In Or Closest To Ratio
------------------------------------- -----
June, 1998 6.25:1.00
September, 1998 6.25:1.00
December, 1998 6.00:1.00
March, 1999 6.00:1.00
June, 1999 6.00:1.00
September, 1999 6.00:1.00
December, 1999 5.75:1.00
March, 2000 5.50:1.00
June, 2000 5.25:1.00
September, 2000 5.25:1.00
December, 2000 5.00:1.00
March, 2001 5.00:1.00
June, 2001 4.50:1.00
September, 2001 4.50:1.00
December, 2001 4.25:1.00
March, 2002 4.25:1.00
June, 2002 4.00:1.00
September, 2002 4.00:1.00
December, 2002 3.75:1.00
March, 2003 and thereafter 3.75:1.00
"Maximum Swingline Amount" shall mean $5,000,000.
"Merger " shall have the meaning provided in the Recapitalization
Agreement.
"Minimum Borrowing Amount" shall mean (x) with respect to each
Borrowing of Eurodollar Loans, $1,000,000, (y) with respect to each Borrowing of
Base Rate Loans (other than Swingline Loans), $500,000, and (z) with respect to
each Borrowing of Swingline Loans, $50,000.
"Mortgage", after the execution and delivery thereof, shall include
each Additional Mortgage.
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"Mortgage Policies" shall mean mortgage title insurance policies on
each Mortgaged Property issued by title insurers, and having other terms
(including any exceptions and endorsements thereon) reasonably satisfactory to
the Collateral Agent.
"Mortgaged Property", after the execution and delivery of any
Additional Mortgage, shall include the respective additional property subject
thereto.
"Multiemployer Plan" shall mean any multiemployer plan (within the
meaning of Section 4001(a)(3) of ERISA) to which the Borrower or any of its
Subsidiaries has any liability or contributes (or has at any time within the
past five years contributed to or had any liability to contribute).
"Net Sale Proceeds" shall mean for any sale of assets, the gross
cash proceeds (including any cash received by way of deferred payment pursuant
to a promissory note, receivable or otherwise, but only as and when received)
received from any sale of assets, net of (i) reasonable transaction costs
(including, without limitation, any underwriting, brokerage or other customary
selling commissions and reasonable legal, advisory and other fees and expenses,
including title and recording expenses, associated therewith), (ii) payments of
unassumed liabilities relating to the assets sold at the time of, or within 90
days after, the date of such sale, (iii) the amount of such gross cash proceeds
required to be used to repay any Indebtedness (other than Indebtedness of the
Lenders pursuant to this Agreement) which is secured by the respective assets
which were sold, (iv) the estimated marginal increase in income taxes paid, or
which are estimated to be payable by the Borrower's consolidated group with
respect to the fiscal year in which the sale occurs as a result of such sale and
(v) the amount of any reserves established by the Borrower and its Subsidiaries
to fund contingent liabilities reasonably estimated to be payable during the
year that such sale of assets occurred for the next succeeding year that are
directly attributable to such sale of assets; PROVIDED that if any such reserves
are terminated or the amount is reduced, the amount of such eliminated reserves
shall be deemed Net Sale Proceeds on the date so terminated or reduced.
"Non-Defaulting Lender" shall mean and include each Lender other
than a Defaulting Lender.
"Note" shall mean each Term Note, each Acquisition Note, each
Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03.
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Administrative Agent
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx Xxxxxxx or
such other office as the Administrative Agent may hereafter designate in writing
as such to the other parties hereto.
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"Obligations" shall mean all amounts owing to any of the Agents, the
Collateral Agent or any Lender pursuant to the terms of this Agreement or any
other Credit Document.
"Offering Circular" shall mean the Offering Circular dated April 17,
1998, and prepared in connection with the Senior Subordinated Notes.
"Other Hedging Agreement" shall mean any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency or
commodity values.
"Participant" shall have the meaning provided in Section 2.03(a).
"Payment Office" shall mean the office of the Administrative Agent
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other office as
the Administrative Agent may hereafter designate in writing as such to the other
parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" of any Lender at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Lender at such time and the denominator of which is the Total
Revolving Loan Commitment at such time and, PROVIDED that if the Percentage of
any Lender is to be determined after the Total Revolving Loan Commitment has
been terminated, then the Percentages of the Lenders shall be determined
immediately prior (and without giving effect) to such termination.
"Permitted Acquisitions" shall have the meaning provided in Section
9.02(xi).
"Permitted Encumbrance" shall mean, with respect to any Mortgaged
Property, such exceptions to title as are set forth in the title insurance
policy or title commitment delivered with respect thereto, all of which
exceptions must be acceptable to the Agents in their reasonable judgment, which
acceptance will not be unreasonably withheld.
"Permitted Holders" shall mean (a) THL, THL Affiliates, THL
Investors and those certain members of the management of the Borrower who are
Additional Investors as of the Initial Borrowing Date, and (b) with respect to
the Common Stock so purchased, senior management employees and directors of the
Borrower who acquire common stock of the Borrower within 90 days after the
Initial Borrowing Date for an aggregate purchase price not in excess of
$5,000,000.
"Permitted Liens" shall have the meaning provided in Section 9.03.
"Person" shall mean any individual, partnership, joint venture,
firm, corporation, association, limited liability company, trust or other
enterprise or any government or political subdivision or any agency, department
or instrumentality thereof.
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"Plan" shall mean any employee pension benefit plan (within the
meaning of Section 3(2) of ERISA) which is maintained or contributed to by the
Borrower or any of its Subsidiaries, or for which the Borrower or any of its
Subsidiaries has any liability or contingent liability, other than a
Multiemployer Plan.
"Pledge Agreement" shall have the meaning provided in Section 5.12.
"Pledge Agreement Collateral" shall mean all "Collateral" as defined
in each of the Pledge Agreements.
"Pledged Securities" shall mean "Pledged Securities" as defined in
the Pledge Agreement.
"Xxxx Loan" shall mean the loan to Xx. Xxxxxx Xxxx in connection
with his previous purchase of the stock of Hour Eyes Doctors of Optometry, P.C.,
as the same may be amended or modified from time to time pursuant to the terms
hereof and thereof, provided that the aggregate principal amount of such loan
shall not exceed $1,000,000.
"Preferred Equity Contribution" shall have the meaning provided in
Section 5.06(b).
"Prime Lending Rate" shall mean the rate which BTCo announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending rate changes. The Prime Lending Rate is a reference
rate and does not necessarily represent the lowest or best rate actually charged
to any customer. BTCo may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
"PRO FORMA Basis" in connection with any calculation of compliance
with any financial covenant or financial term, the calculation thereof after
giving effect on a pro forma basis to (w) if the relevant period to be tested
includes any period occurring prior to the Initial Borrowing Date, the
consummation of the Transaction as if the same had occurred on the first day of
such period, (x) the assumption, incurrence or issuance of any Indebtedness
(other than revolving Indebtedness, except to the extent same is incurred to
finance the Transaction or to refinance other outstanding Indebtedness) after
the first day of the relevant Calculation Period as if such Indebtedness had
been incurred (and the proceeds thereof applied) on the first day of the
relevant Calculation Period and (y) the permanent repayment of any Indebtedness
(other than revolving Indebtedness unless accompanied by a corresponding
commitment reduction) after the first day of the relevant Calculation Period as
if such Indebtedness had been retired, redeemed or repurchased on the first day
of the relevant Calculation Period, with the following rules to apply in
connection therewith:
(i) all Indebtedness (x) (other than revolving Indebtedness, except to the
extent same is incurred to finance the Transaction or to refinance other
outstanding Indebtedness) assumed, incurred or issued after the first day of the
relevant Calculation Period (whether incurred to refinance Indebtedness or
otherwise) shall be deemed to have been incurred or issued (and the
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proceeds thereof applied) on the first day of the respective Calculation period
and remain outstanding through the date of determination and (y) (other than
revolving Indebtedness unless accompanied by a corresponding commitment
reduction) permanently retired or redeemed after the first day of the relevant
Calculation Period shall be deemed to have been retired or redeemed on the first
day of the respective Calculation Period and remain retired through the date of
determination; and
(ii) all Indebtedness assumed to be outstanding pursuant to preceding
clause (i) shall be deemed to have borne interest at (x) the rate applicable
thereto, in the case of fixed rate Indebtedness or (y) the rates which would
have been applicable thereto during the respective period when same was deemed
outstanding, in the case of floating rate Indebtedness (although interest
expense with respect to any Indebtedness for periods while same was actually
outstanding during the respective shall be calculated using the actual rates
applicable thereto while same was actually outstanding).
"Projections" shall have the meaning provided in Section 7.10(e).
"PSD Interest Period" shall mean an Interest Period commencing on or
after the fifth day following the Initial Borrowing Date and prior to the
earlier of (A) the 65th day after the Initial Borrowing Date and (b) the
Syndication Date, each of which Interest Periods must satisfy the requirements
of Section 1.09(v).
"Quarterly Payment Date" shall mean the last Business Day of May,
August, November and February occurring after the Initial Borrowing Date.
"RCRA" shall mean the Resource Conservation and Recovery Act, as the
same may be amended from time to time, 42 U.S.C. Sec. 6901 ET SEQ.
"Real Property" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recapitalization Agreement" shall mean the Agreement and Plan of
Recapitalization, dated as of March 6, 1998, among the Borrower, ECCA and the
sellers party thereto, as in effect on the Initial Borrowing Date and as the
same may be amended, modified or supplemented from time to time pursuant to the
terms hereof and thereof.
"Recapitalization Documents" shall mean the Recapitalization
Agreement and all other documents entered into or delivered in connection with
the Recapitalization Agreement.
"Recapitalization Transaction" shall mean, collectively, the
transactions to occur on or prior to the Closing (as defined in the
Recapitalization Agreement) pursuant to the Recapitalization Documents,
including without limitation (x) the consummation of (i) the Merger and (ii) the
Equity Contribution, and (y) the payment of all fees and expenses to be paid on
or prior to such Closing or the Initial Borrowing Date and owing in connection
with the foregoing.
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"Recovery Event" shall mean the receipt by the Borrower or any of
its Subsidiaries of any cash insurance proceeds or condemnation award payable
(i) by reason of theft, loss, physical destruction or damage or any other
similar event with respect to any property or assets of the Borrower or any of
its Subsidiaries and (ii) under any policy of insurance maintained by the
Borrower and its Subsidiaries or required to be so maintained under Section
8.03.
"Refinancing" shall mean the refinancing and repayment in full of
all amounts outstanding under, and the termination in full of all commitments
and letters of credit in respect of, the Existing Credit Agreement.
"Register" shall have the meaning provided in Section 13.17.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation G" shall mean Regulation G of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing or
migration into the environment.
"Replaced Lender" shall have the meaning provided in Section 1.13.
"Replacement Lender" shall have the meaning provided in Section
1.13.
"Reportable Event" shall mean an event described in Section 4043(c)
of ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
.22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
"Required Lenders" shall mean Non-Defaulting Lenders, the sum of
whose outstanding Term Loans (or, if prior to the Initial Borrowing Date, Term
Loan Commitments), Acquisition Loans, Acquisition Loan Commitments and Revolving
Loan Commitments (or after the termination thereof, outstanding Revolving Loans
and Percentage of Swingline Loans and Letter of Credit Outstandings) represent
an amount greater than 50% of the sum of all outstanding Term Loans (or, if
prior to the Initial Borrowing Date, Term Loan Commitments), Acquisition Loans,
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Acquisition Loan Commitments of Non-Defaulting Lenders and the Total Revolving
Loan Commitment (or after the termination thereof, the sum of the then total
outstanding Revolving Loans of Non-Defaulting Lenders and the aggregate
Percentages of all Non-Defaulting Lenders of the total outstanding Swingline
Loans and Letter of Credit Outstandings at such time).
"Retiree Welfare Plan" shall mean any employee welfare benefit plan
(within the meaning of section 3(1) of ERISA) which provides benefits to retired
or other former employees of the Borrower or any of its Subsidiaries (other than
continuation of group health plan coverage under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended, or pursuant to applicable state law).
"Returns" shall have the meaning provided in Section 7.22.
"Revolving Loan" shall have the meaning provided in Section 1.01(c).
"Revolving Loan Commitment" shall mean, for each Lender, the amount
set forth opposite such Lender's name in Schedule I hereto directly below the
column entitled "Revolving Loan Commitment," as same may be (x) reduced from
time to time pursuant to Sections 3.02, 3.03, 4.02 and/or 10 or (y) adjusted
from time to time as a result of assignments to or from such Lender pursuant to
Section 1.13 or 13.04(b).
"Revolving Note" shall have the meaning provided in Section 1.05(d).
"RL Commitment Commission" shall have the meaning provided in
Section 3.01(a)(ii).
"RL/AL Maturity Date" shall mean April 24, 2004.
"Rollover Amount" shall have the meaning provided in Section
9.09(b).
"Scheduled Repayments" shall mean TL Scheduled Repayments and AL
Scheduled Repayments.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b).
"Secured Creditors" shall have the meaning assigned that term in the
Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Security Agreement" shall have the meaning provided in Section
5.13.
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"Security Agreement Collateral" shall mean all "Collateral" as
defined in the Security Agreement.
"Security Document" shall mean the Pledge Agreement, the Security
Agreement and, after the execution and delivery thereof, each Additional
Mortgage and each Additional Security Document.
"Senior Subordinated Note Documents" shall mean the Senior
Subordinated Notes, the Senior Subordinated Note Indenture and all other
documents executed and delivered with respect to the Senior Subordinated Notes
or Senior Subordinated Note Indenture.
"Senior Subordinated Note Indenture" shall mean the indenture dated
as of April 24, 1998, between the Borrower and the Senior Subordinated Note
Indenture Trustee, as in effect on the Effective Date and as thereafter amended
from time to time in accordance with the requirements thereof and of this
Agreement.
"Senior Subordinated Note Indenture Trustee" shall mean United
States Trust Company of New York or any Successor thereto as trustee under the
Senior Subordinated Note Indenture.
"Senior Subordinated Notes" shall mean the Borrower's 9 1/8% Senior
Subordinated Notes due 2008 and Floating Interest Rate Subordinated Term
Securities due 2008, in each case issued pursuant to the Senior Subordinated
Note Indenture, as such notes may be modified, supplemented or amended from time
to time pursuant to the terms hereof and thereof.
"Shareholders' Agreements" shall have the meaning provided in
Section 5.05.
"Specified EBITDA Amount" shall mean (x) for the fiscal year of the
Borrower ending closest to December 31, 2000, $42,500,000, (y) for the fiscal
year of the Borrower ending closest to December 31, 2001, $47,500,000, and (z)
for the fiscal year of the Borrower ending closest to December 31, 2002,
$52,500,000.
"Standby Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Stated Amount" of each Letter of Credit shall, at any time, mean
the maximum amount available to be drawn thereunder (in each case determined
without regard to whether any conditions to drawing could then be met).
"Start Date" shall mean, with respect to any Margin Adjustment
Period, the first day of such Margin Adjustment Period.
"Subsidiaries Guaranty" shall have the meaning provided in Section
5.11.
"Subsidiary" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a
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majority of the directors of such corporation (irrespective of whether or not at
the time stock of any class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at the time
owned by such Person and/or one or more Subsidiaries of such Person and (ii) any
partnership, association, joint venture or other entity in which such Person
and/or one or more Subsidiaries of such Person has more than a 50% equity
interest at the time.
"Subsidiary Guarantor" shall mean each Subsidiary of the Borrower
designated as a "Subsidiary Guarantor" on Schedule VII hereto or which executes
a guarantee after the Initial Borrowing Date pursuant to Section 8.11 or Section
8.12.
"Swingline Expiry Date" shall mean the date which is two Business
Days prior to the RL/AL Maturity Date.
"Swingline Lender" shall mean BTCo.
"Swingline Loan" shall have the meaning provided in Section 1.01(d).
"Swingline Note" shall have the meaning provided in Section 1.05(d).
"Syndication Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Syndication Date" shall mean that date upon which the
Administrative Agent determines in its sole discretion (and notifies the
Borrower) that the primary syndication (and resultant addition of institutions
as Lenders pursuant to Section 13.04) has been completed.
"Tax Sharing Agreement" shall have the meaning provided in Section
5.05.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Term Loan" shall have the meaning provided in Section 1.01(a).
"Term Loan Commitment" shall mean, for each Lender, the amount set
forth opposite such Lender's name in Schedule I hereto directly below the column
entitled "Term Loan Commitment," as same may be (x) reduced from time to time
pursuant to Sections 3.03, 4.02 and/or 10 or (y) adjusted from time to time as a
result of assignments to or from such Lender pursuant to Section 1.13 or 13.04.
"Term Loan Maturity Date" shall mean April 24, 2003.
"Term Note" shall have the meaning provided in Section 1.05(d).
"Test Period" shall mean, except as otherwise provided in the
definitions of Consolidated EBITDA and Consolidated Interest Expense, each
period of four consecutive fiscal
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quarters of the Borrower then last ended taken as one accounting period, ended
after the Initial Borrowing Date.
"THL" shall mean Xxxxxx X. Xxx Company, a sole proprietorship
located in Massachusetts.
"THL Affiliates" shall mean any Affiliate of THL, PROVIDED that for
purpose of the definition of "Change of Control," the term THL Affiliate shall
not include any portfolio company of either THL or any Affiliate of THL.
"THL Investor" shall mean and include Xxxxxx X. Xxx Equity Fund IV,
L.P. or any limited or general partner, stockholder, officer, or employee of
such THL Investor or any officer or employee of THL.
"TL Scheduled Repayment" shall have the meaning provided in Section
4.02(b).
"TL Scheduled Repayment Date" shall have the meaning provided in
Section 4.02(b).
"Total Acquisition Loan Commitment" shall mean, at any time, the sum
of the Acquisition Loan Commitments of each of the Lenders.
"Total Available Revolving Loan Commitment" shall mean, (x) at any
time prior to the Visionworks Lease Expiry Date, an amount (not less than zero)
equal to the Total Revolving Loan Commitment at such time less $10,000,000 and
(y) at any time thereafter, the Total Revolving Loan Commitment.
"Total Commitments" shall mean, at any time, the sum of the
Commitments of each of the Lenders.
"Total Revolving Loan Commitment" shall mean, at any time, the sum
of the Revolving Loan Commitments of each of the Lenders.
"Total Term Loan Commitment" shall mean, at any time, the sum of the
Term Loan Commitments of each of the Lenders.
"Total Unutilized Revolving Loan Commitment" shall mean, at any
time, an amount equal to the remainder of (x) the then Total Revolving Loan
Commitment, less (y) the sum of the aggregate principal amount of Revolving
Loans and Swingline Loans then outstanding plus the then aggregate amount of
Letter of Credit Outstandings.
"Trade Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being four separate Tranches,
I.E., Term Loans, Acquisition Loans, Revolving Loans and Swingline Loans.
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"Transaction" shall mean, collectively, (i) the Recapitalization
Transaction, (ii) the Refinancing, (iii) the Existing Notes Defeasance, (iv) the
incurrence of Loans and the issuance of the Senior Subordinated Notes on the
Initial Borrowing Date and (v) the payment of fees and expenses owing in
connection with the foregoing.
"Transaction Documents" shall mean, collectively, (i) the
Recapitalization Documents, (ii) the documents entered into in connection with
the Refinancing, (iii) the Senior Subordinated Note Documents, (iv) the Equity
Contribution Documents and (v) the Defeasance Documents.
"Type" shall mean the type of Loan determined with regard to the
interest option applicable thereto, I.E., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Plan as of the close of its most recent plan year, determined in accordance
with actuarial assumptions at such time consistent with Statement of Financial
Accounting Standards No. 87, exceeds the market value of the assets allocable
thereto.
"United States" and "U.S." shall each mean the United States of
America.
"Unpaid Drawing" shall have the meaning provided for in Section
2.04(a).
"Unutilized Revolving Loan Commitment" with respect to any Lender,
at any time, shall mean such Lender's Revolving Loan Commitment at such time
less the sum of (i) the aggregate outstanding principal amount of Revolving
Loans made by such Lender and (ii) such Lender's Percentage of the Letter of
Credit Outstandings in respect of Letters of Credit issued under this Agreement.
"Visionworks Lease" shall mean Sublease, dated as of March 29, 1994,
between Eckerd Corporation and Visionworks, Inc., as the same may be amended or
modified pursuant to the terms hereof and thereof.
"Visionworks Lease Expiry Date" shall mean the date on which the
Visionworks Lease expires and the Borrower makes all payments required in
connection with the expiration thereof as provided in such Visionworks Lease.
"Voting Stock" shall mean any class or classes of capital stock of
the Borrower pursuant to which the holders thereof have the general voting power
under ordinary circumstances to elect at least a majority of the Board of
Directors of the Borrower.
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"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying shares
and/or other nominal numbers of shares required to be held by others under
applicable law) is at the time owned by such Person and/or one or more
Wholly-Owned Subsidiaries of such Person and (ii) any partnership, association,
joint venture or other entity in which such Person and/or one or more
Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such
time.
"Working Capital" at any time shall mean Consolidated Current Assets
(but excluding therefrom all cash and Cash Equivalents) less Consolidated
Current Liabilities.
"Year 4 Reference Amount" shall have the meaning provided in Section
4.02(c)(ii).
SECTION 12. THE AGENTS.
12.01 APPOINTMENT. The Lenders hereby designate Bankers Trust
Company as Administrative Agent (for purposes of this Section 12, the term
"Administrative Agent" shall include Bankers Trust Company (and/or any of its
affiliates) in its capacity as Collateral Agent pursuant to the Security
Documents) to act as specified herein and in the other Credit Documents. The
Lenders hereby designate Xxxxxxx Xxxxx Capital Corporation as Syndication Agent
to act as specified herein and in the other Credit Documents. Each Lender hereby
irrevocably authorizes, and each holder of any Note by the acceptance of such
Note shall be deemed irrevocably to authorize, the Agents to take such action on
its behalf under the provisions of this Agreement, the other Credit Documents
and any other instruments and agreements referred to herein or therein and to
exercise such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the respective Agent by the terms
hereof and thereof and such other powers as are reasonably incidental thereto.
Each of the Agents may perform any of its duties hereunder by or through its
respective officers, directors, agents, employees or affiliates.
12.02 NATURE OF DUTIES. No Agent shall have any duties or
responsibilities except those expressly set forth in this Agreement and the
Security Documents. None of the Agents nor any of their respective officers,
directors, agents, employees or affiliates shall be liable for any action taken
or omitted by it or them hereunder or under any other Credit Document or in
connection herewith or therewith, unless caused by the respective such Person's
gross negligence or willful misconduct. The duties of each Agent shall be
mechanical and administrative in nature; no Agent shall have by reason of this
Agreement or any other Credit Document a fiduciary relationship in respect of
any Lender or the holder of any Note; and nothing in this Agreement or any other
Credit Document, expressed or implied, is intended to or shall be so construed
as to impose upon any Agent any obligations in respect of this Agreement or any
other Credit Document except as expressly set forth herein or therein.
12.03 LACK OF RELIANCE ON THE AGENTS. Independently and without
reliance upon any Agent, each Lender and the holder of each Note, to the extent
it deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of the Borrower
and its Subsidiaries in connection with the making and the continuance of the
Loans
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and the taking or not taking of any action in connection herewith and (ii) its
own appraisal of the creditworthiness of the Borrower and its Subsidiaries and,
except as expressly provided in this Agreement, no Agent shall have any duty or
responsibility, either initially or on a continuing basis, to provide any Lender
or the holder of any Note 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. No Agent shall be responsible to any Lender or the
holder of any Note for any recitals, statements, information, representations or
warranties herein or in any document, certificate or other writing delivered in
connection herewith or for the execution, effectiveness, genuineness, validity,
enforceability, perfection, collectibility, priority or sufficiency of this
Agreement or any other Credit Document or the financial condition of the
Borrower and its Subsidiaries or be required to make any inquiry concerning
either the performance or observance of any of the terms, provisions or
conditions of this Agreement or any other Credit Document, or the financial
condition of the Borrower and its Subsidiaries or the existence or possible
existence of any Default or Event of Default.
12.04 CERTAIN RIGHTS OF THE AGENTS. If any Agent shall request
instructions from the Required Lenders with respect to any act or action
(including failure to act) in connection with this Agreement or any other Credit
Document, such Agent shall be entitled to refrain from such act or taking such
action unless and until such Agent shall have received instructions from the
Required Lenders; and such Agent shall not incur liability to any Person by
reason of so refraining. Without limiting the foregoing, no Lender or the holder
of any Note shall have any right of action whatsoever against any Agent as a
result of such Agent acting or refraining from acting hereunder or under any
other Credit Document in accordance with the instructions of the Required
Lenders.
12.05 RELIANCE. Each Agent shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
any Person that such Agent believed to be the proper Person, and, with respect
to all legal matters pertaining to this Agreement and any other Credit Document
and its duties hereunder and thereunder, upon advice of counsel selected by such
Agent.
12.06 INDEMNIFICATION. To the extent any Agent is not reimbursed and
indemnified by the Borrower the Lenders will reimburse and indemnify such Agent,
in proportion to their respective "percentages" as used in determining the
Required Lenders, for and against any and all liabilities, obligations, losses,
damages, penalties, claims, actions, judgments, costs, expenses or disbursements
of whatsoever kind or nature which may be imposed on, asserted against or
incurred by such Agent in performing its respective duties hereunder or under
any other Credit Document, in any way relating to or arising out of this
Agreement or any other Credit Document; PROVIDED that no Lender shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Agent's gross negligence or willful misconduct.
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12.07 EACH AGENT IN ITS INDIVIDUAL CAPACITY. With respect to its
obligation to make Loans under this Agreement, each Agent shall have the rights
and powers specified herein for a "Lender" and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
term "Lenders," "Required Lenders," "holders of Notes" or any similar terms
shall, unless the context clearly otherwise indicates, include each Agent in its
individual capacity. Each Agent may accept deposits from, lend money to, and
generally engage in any kind of banking, trust or other business with any Credit
Party or any Affiliate of any Credit Party as if they were not performing the
duties specified herein, and may accept fees and other consideration from the
Borrower or any other Credit Party for services in connection with this
Agreement and otherwise without having to account for the same to the Lenders.
12.08 HOLDERS. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or endorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
12.09 RESIGNATION BY THE AGENTS. (a) The Administrative Agent may
resign from the performance of all its functions and duties hereunder and/or
under the other Credit Documents at any time by giving 20 Business Days' prior
written notice to the Borrower and the Lenders. Such resignation shall take
effect upon the appointment of a successor Administrative Agent pursuant to
clauses (b) and (c) below or as otherwise provided below. Each other Agent may
resign from the performance of all of its functions and duties hereunder and/or
under the other Credit Documents at any time by giving notice to the Borrower,
the Administrative Agent and the Lenders. Such resignation shall take effect
upon delivery of such notice.
(b) Upon any such notice of resignation by the Administrative Agent,
the Lenders shall appoint a successor Administrative Agent hereunder or
thereunder who shall be a commercial bank or trust company reasonably acceptable
to the Borrower.
(c) If a successor Administrative Agent shall not have been so
appointed within such 20 Business Day period, the Administrative Agent, with the
consent of the Borrower (which shall not be unreasonably withheld or delayed),
shall then appoint a commercial bank or trust company with capital and surplus
of not less than $500,000,000 as successor Administrative Agent who shall serve
as Administrative Agent hereunder or thereunder until such time, if any, as the
Lenders appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 30th Business Day after the date such notice
of resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Agents (if one or more so agrees), or
if there are no Agents or no Agent so agrees, then the Required Lenders, shall
thereafter perform all the duties of the Administrative Agent hereunder and/or
under
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any other Credit Document until such time, if any, as the Required Lenders
appoint a successor Administrative Agent as provided above.
SECTION 13. MISCELLANEOUS.
13.01 PAYMENT OF EXPENSES, ETC. The Borrower shall: (i) whether or
not the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of (a) the Agents (including, without
limitation, the reasonable fees and disbursements of White & Case and local
counsel) in connection with the preparation, execution and delivery of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein and any amendment, waiver or consent relating
hereto or thereto relating to the syndication of Commitments hereunder or
requested by any Credit Party, and of the Agents in connection with their
syndication efforts with respect to this Agreement and of (b) the Agents and,
following and during the continuation of an Event of Default, each of the
Lenders in connection with the enforcement of this Agreement and the other
Credit Documents and the documents and instruments referred to herein and
therein (including, without limitation, the reasonable fees and disbursements of
counsel for the Agents and, following and during the continuation of an Event of
Default, for each of the Lenders, PROVIDED that the Borrower shall be obligated
to pay the fees and disbursements of only one counsel to the Agents and the
Lenders pursuant to this clause (i)(b) unless an Agent or Lender notifies the
Borrower that it reasonably believes that its legal position differs from the
other Agents or Lenders or that it may be subject to different claims or
defenses than the other Agents and Lenders, in which case the Borrower will also
pay the reasonable fees and disbursements of counsel of such Agent or Lender;
(iii) pay and hold each of the Lenders harmless from and against any and all
present and future stamp, excise and other similar taxes with respect to the
foregoing matters and save each of the Lenders harmless from and against any and
all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to such Lender) to pay such taxes; and (iv)
indemnify each Agent and each Lender, and each of their respective officers,
directors, employees, representatives and agents from and hold each of them
harmless against any and all liabilities, obligations (including removal or
remedial actions), losses, damages, penalties, claims, actions, judgments,
suits, costs, expenses and disbursements (including reasonable attorneys' and
consultants' fees and disbursements) incurred by, imposed on or assessed against
any of them as a result of, or arising out of, or in any way related to, or by
reason of, (a) any investigation, litigation or other proceeding (whether or not
any Agent or any Lender is a party thereto) related to the entering into and/or
performance of this Agreement or any other Credit Document or the use of any
Letter of Credit or the proceeds of any Loans hereunder or the consummation of
any transactions contemplated in any Document (including, without limitation,
the Transaction), or in any other Credit Document or the exercise of any of
their rights or remedies provided herein or in the other Credit Documents, or
(b) the actual or alleged presence of Hazardous Materials in the air, surface
water or groundwater or on the surface or subsurface of any Real Property owned
or at any time operated by the Borrower or any of its Subsidiaries, the
generation, storage, transportation, handling or disposal of Hazardous Materials
at any location, whether or not owned or operated by the Borrower or any of its
Subsidiaries, the non-compliance of any Real Property with foreign, federal,
state and local laws, regulations, and ordinances (including applicable
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permits thereunder) applicable to any Real Property, or any Environmental Claim
asserted against the Borrower, any of its Subsidiaries or any Real Property
owned or at any time operated by the Borrower or any of its Subsidiaries,
including, in each case, without limitation, the reasonable fees and
disbursements of counsel and other consultants incurred in connection with any
such investigation, litigation or other proceeding (but, also in each case,
excluding any losses, liabilities, claims, damages or expenses to the extent
incurred by reason of the gross negligence or willful misconduct of the Person
to be indemnified). To the extent that the undertaking to indemnify, pay or hold
harmless the Agents or any Lender set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Borrower
shall make the maximum contribution to the payment and satisfaction of each of
the indemnified liabilities which is permissible under applicable law.
13.02 RIGHT OF SETOFF. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, each Lender is hereby authorized at any time or from time to time,
without presentment, demand, protest or other notice of any kind to the Borrower
or to any other Person, any such notice being hereby expressly waived, to set
off and to appropriate and apply any and all deposits (general or special) and
any other Indebtedness at any time held or owing by such Lender (including,
without limitation, by branches and agencies of such Lender wherever located) to
or for the credit or the account of any Credit Party against and on account of
the Obligations and liabilities of the Borrower or such Credit Party, as
applicable, to such Agent or such Lender under this Agreement or under any of
the other Credit Documents, including, without limitation, all interests in
Obligations purchased by such Lender pursuant to Section 13.06(b), and all other
claims of any nature or description arising out of or connected with this
Agreement or any other Credit Document, irrespective of whether or not such
Lender shall have made any demand hereunder and although said Obligations,
liabilities or claims, or any of them, shall be contingent or unmatured.
13.03 NOTICES. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, facsimile or cable communication) and mailed, telexed,
telecopied, cabled or delivered: if to the Borrower, at the Borrower's address
specified opposite its signature below; if to any Lender, at its address
specified opposite its name on Schedule II below; and if to the Administrative
Agent, at its Notice Office; or, as to any Credit Party or any of the Agents, at
such other address as shall be designated by such party in a written notice to
the other parties hereto and, as to each Lender, at such other address as shall
be designated by such Lender in a written notice to the Borrower and the Agents.
All such notices and communications shall, when mailed, telegraphed, telexed,
telecopied or cabled or sent by overnight courier, be effective when deposited
in the mails or delivered to the overnight courier, prepaid and properly
addressed for delivery on such or the next Business Day, or sent by telex,
telegraph, cable or telecopier, except that notices and communications to the
Agents and the Borrower shall not be effective until received by the Agents or
the Borrower, as the case may be.
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13.04 BENEFIT OF AGREEMENT. (a) This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; PROVIDED, HOWEVER, no Credit Party may assign or
transfer any of its rights, obligations or interest hereunder or under any other
Credit Document without the prior written consent of the Lenders and, PROVIDED
FURTHER, that, although any Lender may transfer, assign or grant participations
in its rights hereunder, such Lender shall remain a "Lender" for all purposes
hereunder (and may not transfer or assign all or any portion of its Commitments
hereunder except as provided in Section 13.04(b)) and the transferee, assignee
or participant, as the case may be, shall not constitute a "Lender" hereunder
and, PROVIDED FURTHER, that no Lender shall transfer or grant any participation
under which the participant shall have rights to approve any amendment to or
waiver of this Agreement or any other Credit Document except to the extent such
amendment or waiver would (i) extend the final scheduled maturity of any Loan,
Note or Letter of Credit (unless such Letter of Credit is not extended beyond
the Revolving Loan Maturity Date) in which such participant is participating, or
reduce the rate or extend the time of payment of interest or Fees thereon
(except (x) in connection with a waiver of applicability of any post-default
increase in interest rates and (y) that any amendment or modification to the
financial definitions in this Agreement shall not constitute a reduction in the
rate of interest for purposes of this clause (i)) or reduce the principal amount
thereof, or increase the amount of the participant's participation over the
amount thereof then in effect (it being understood that a waiver of any Default
or Event of Default or of a mandatory reduction in the Total Commitment shall
not constitute a change in the terms of such participation, and that an increase
in any Commitment or Loan shall be permitted without the consent of any
participant if the participant's participation is not increased as a result
thereof), (ii) consent to the assignment or transfer by the Borrower of any of
its rights and obligations under this Agreement or (iii) release all or
substantially all of the Collateral under all of the Security Documents (except
as expressly provided in the Credit Documents) supporting the Loans hereunder in
which such participant is participating. In the case of any such participation,
the participant shall not have any rights under this Agreement or any of the
other Credit Documents (the participant's rights against such Lender in respect
of such participation to be those set forth in the agreement executed by such
Lender in favor of the participant relating thereto) and all amounts payable by
the Borrower hereunder shall be determined as if such Lender had not sold such
participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender
together with one or more other Lenders) may (x) assign all or a portion of its
Revolving Loan Commitment or its Acquisition Loan Commitment (and related
outstanding Obligations hereunder), its outstanding Term Loans (or, if prior to
the Initial Borrowing Date, its Term Loan Commitment) and/or its outstanding
Acquisition Loans to (I) its parent company and/or any affiliate of such Lender
which is at least 50% owned by such Lender or its parent company, (II) to one or
more Lenders or (III) in the case of any Lender that is a fund that invests in
bank loans, any other fund that invests in bank loans and is managed or advised
by the same investment advisor of such Lender or by an Affiliate of such
investment advisor or (y) assign all, or if less than all, a portion equal to at
least $5,000,000 in the aggregate for the assigning Lender or assigning Lenders,
of such Revolving Loan Commitments, Acquisition Loan Commitment and/or
outstanding principal amount of Acquisition Loans and Term Loans (or, if prior
to the Initial Borrowing Date, Term Loan Commitment)
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hereunder to one or more Eligible Transferees (treating any fund that invests in
bank loans and any other fund that invests in bank loans and is managed or
advised by the same investment advisor of such fund or by an Affiliate of such
investment advisor as a single Eligible Transferee), each of which assignees
shall become a party to this Agreement as a Lender by execution of an Assignment
and Assumption Agreement, PROVIDED that, (i) at such time Schedule I shall be
deemed modified to reflect the Commitments (and/or outstanding Loans, as the
case may be) of such new Lender and of the existing Lenders, (ii) upon surrender
of the old Notes, new Notes will be issued, at the Borrower's expense, to such
new Lender and to the assigning Lender upon the request of such new Lender or
assigning Lender to the extent it is retaining any Commitments or Leases, such
new Notes to be in conformity with the requirements of Section 1.05 (with
appropriate modifications) to the extent needed to reflect the revised
Commitments (and/or outstanding Loans, as the case may be), (iii) the consent of
the Administrative Agent and so long as no Default under Section 10.05 and no
Event of Default then exists, the Borrower, shall be required in connection with
any such assignment (each of which consents shall not be unreasonably withheld
or delayed) and (iv) the Administrative Agent shall receive at the time of each
such assignment pursuant to preceding clause (y), from the assigning or assignee
Lender, the payment of a non-refundable assignment fee of $3,500. To the extent
of any assignment pursuant to this Section 13.04(b), the assigning Lender shall
be relieved of its obligations hereunder with respect to its assigned
Commitments. At the time of each assignment pursuant to this Section 13.04(b) to
a Person which is not already a Lender hereunder and which is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) for
Federal income tax purposes, the respective assignee Lender shall provide to the
Borrower and the Agent the appropriate Internal Revenue Service Forms (and, if
applicable, a Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To
the extent that an assignment of all or any portion of a Lender's Commitments
and related outstanding Obligations pursuant to Section 1.13 or this Section
13.04(b) would, at the time of such assignment, result in increased costs under
Section 1.10, 1.11 or 4.04 from those being charged by the respective assigning
Lender prior to such assignment, then the Borrower shall not be obligated to pay
such increased costs (although the Borrower shall be obligated to pay any other
increased costs of the type described above resulting from changes after the
date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Lender
from pledging its Loans and Notes hereunder to a Federal Reserve Bank in support
of borrowings made by such Lender from such Federal Reserve Bank.
13.05 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of any Agent or any Lender or any holder of any Note in exercising any
right, power or privilege hereunder or under any other Credit Document and no
course of dealing between the Borrower or any other Credit Party and any Agent
or any Lender or the holder of any Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
or under any other Credit Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights, powers and remedies herein or in any other Credit
Document expressly provided are cumulative and not exclusive of any rights,
powers or remedies which any Agent or any Lender or the holder of any Note would
otherwise have. No notice
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to or demand on any Credit Party in any case shall entitle any Credit Party to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of any Agent or any Lender or the holder of
any Note to any other or further action in any circumstances without notice or
demand.
13.06 PAYMENTS PRO RATA. (a) Except as otherwise provided in this
Agreement, the Administrative Agent agrees that promptly after its receipt of
each payment from or on behalf of the Borrower or any Subsidiary Guarantor in
respect of any Obligations hereunder, it shall distribute such payment to the
Lenders (other than any Lender that has consented in writing to waive its PRO
RATA share of any such payment) PRO RATA based upon their respective shares, if
any, of the Obligations with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Commitment Commission or Letter of Credit Fees,
of a sum which with respect to the related sum or sums received by other Lenders
is in a greater proportion than the total of such Obligation then owed and due
to such Lender bears to the total of such Obligation then owed and due to all of
the Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Lenders an interest in the Obligations of the respective Credit Party to
such Lenders in such amount as shall result in a proportional participation by
all the Lenders in such amount; PROVIDED that if all or any portion of such
excess amount is thereafter recovered from such Lender, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 13.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
13.07 CALCULATIONS; COMPUTATIONS. (a) The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with generally accepted accounting principles in the United States
(or the equivalent thereof in any country in which a Foreign Subsidiary is doing
business, as applicable) consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Lenders); PROVIDED that, except as otherwise specifically
provided herein, all computations of Excess Cash Flow and all computations
determining compliance with Section 4.02 and Sections 9.09 through 9.12,
inclusive, shall utilize accounting principles and policies in conformity with
those used to prepare the historical financial statements delivered to the
Lenders for the first fiscal year of the Borrower ended January 3, 1998 (with
the foregoing generally accepted accounting principles, subject to the preceding
proviso, herein called "GAAP"), except that such computations shall not, in any
event, (i) give effect to purchase accounting adjustments required or permitted
by APB 16
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(including non-cash write-up and non-cash charges relating to inventory and
fixed assets, in each case arising in connection with the Borrower), and APB 17
(including non-cash charges relating to intangibles and goodwill arising in
connection with the Borrower) and (ii) without duplication to the other
adjustments provided herein, give effect to any charges in connection with
accounting for the Transaction.
(b) All computations of interest, Commitment Commission and Fees
hereunder shall be made on the basis of a year of 360 days (except for Base Rate
Loans where the rate of interest is based on the Prime Lending Rate, in which
case such computation shall be made on the basis of 365 or 366 days, as the case
may be) for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest, Commitment Commission
or Fees are payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE
PROVIDED IN CERTAIN OF THE MORTGAGES, BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE
BORROWER HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION
SYSTEM, WITH OFFICES ON THE DATE HEREOF AT 0000 XXXXXXXX, XXX XXXX, XXX XXXX
00000 AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE
FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL
LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH
ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL
CEASE TO BE AVAILABLE TO ACT AS SUCH, EACH CREDIT PARTY AGREES TO DESIGNATE A
NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE
PURPOSES OF THIS PROVISION SATISFACTORY TO THE AGENT UNDER THIS AGREEMENT. THE
BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY CREDIT
PARTY AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO
BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF THE AGENT UNDER THIS AGREEMENT, ANY BANK OR THE HOLDER OF ANY NOTE TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
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PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY CREDIT PARTY IN ANY OTHER
JURISDICTION.
(b) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS
OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
13.10 EFFECTIVENESS. This Agreement shall become effective on the
date (the "Effective Date") on which the Borrower and each of the Lenders shall
have signed a counterpart hereof (whether the same or different counterparts)
and shall have delivered the same to the Administrative Agent or, in the case of
the Lenders, shall have given to the Administrative Agent telephonic (confirmed
in writing), written or telex notice (actually received) at such office that the
same has been signed and mailed to it. The Administrative Agent will give the
Borrower and each Lender prompt written notice of the occurrence of the
Effective Date.
13.11 HEADINGS DESCRIPTIVE. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 AMENDMENT OR WAIVER; ETC. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Lenders, PROVIDED that no such change, waiver, discharge or termination
shall, without the consent of each Lender (other than a Defaulting Lender) (with
Obligations being directly affected in the case of following clause (i)), (i)
extend the final scheduled maturity of any Loan or Note or extend the stated
maturity of any Letter of Credit beyond the RL/AL Maturity Date, or reduce the
rate or extend the time of payment of interest or Fees thereon (except
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(x) in connection with the waiver of applicability of any post-default increase
in interest rates and (y) that any amendment or modification to the financial
definitions in this Agreement shall not constitute a reduction in the rate of
interest for purposes of this clause (i)), or reduce the principal amount
thereof (except to the extent repaid in cash), (ii) release all or substantially
all of the Collateral (except as expressly provided in the Credit Documents)
under all the Security Documents, (iii) amend, modify or waive any provision of
this Section 13.12, (iv) reduce the percentage specified in the definition of
Required Lenders (it being understood that, (x) without the consent of any
Lender (other than such institution assuming an Acquisition Loan Commitment),
additional extensions of credit resulting from the assumption of additional
Acquisition Loan Commitments as set forth in Section 1.14 as in effect on the
Effective Date and (y) with the consent of the Required Lenders, additional
extensions of credit pursuant to this Agreement, in each such case, may be
included in the determination of the Required Lenders on substantially the same
basis as the extensions of Term Loans, Acquisition Loans, the Acquisition Loan
Commitments and the Revolving Loan Commitments are included on the Effective
Date) or (v) consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement; PROVIDED FURTHER, that no such
change, waiver, discharge or termination shall (u) increase the Commitments of
any Lender over the amount thereof then in effect without the consent of such
Lender (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default or of a mandatory reduction
in the Total Commitment shall not constitute an increase of the Commitment of
any Lender, and that an increase in the available portion of any Commitment of
any Lender shall not constitute an increase in the Commitment of such Lender),
(v) without the consent of the Swingline Lender or, in the case of Letters of
Credit, the respective Issuing Lender, amend, modify or waive any provision of
Section 2 or alter its rights or obligations with respect to Letters of Credit
or Swingline Loans, (w) without the consent of each Agent affected thereby,
amend, modify or waive any provision of Section 12 as same applies to such Agent
or any other provision as same relates to the rights or obligations of such
Agent, (x) without the consent of the Collateral Agent, amend, modify or waive
any provision relating to the rights or obligations of the Collateral Agent, or
(y) without the consent of (I) the Majority Lenders of the respective Tranche,
reduce the amount of, or extend the date of, any Scheduled Repayment applicable
to such Tranche and (II) the Majority Lenders of each Tranche which is being
allocated a lesser prepayment, repayment or commitment reduction as a result of
the actions described below (or without the consent of the Majority Lenders of
each Tranche in the case of an amendment to the definition of Majority Lenders),
amend the definition of Majority Lenders (it being understood that (x) without
the consent of any Lender (other than such institution assuming an Acquisition
Loan Commitment), additional extensions of credit resulting from the assumption
of additional Acquisition Loan Commitments as set forth in Section 1.14 as in
effect on the Effective Date, and (y) with the consent of the Requird Lenders,
additional extensions of credit pursuant to this Agreement, in each such case,
may be included in the determination of the Majority Lenders on substantially
the same basis as the extensions of Term Loans, Acquisition Loans, the
Acquisition Loan Commitments and the Revolving Loan Commit ments are included on
the Effective Date) or alter the required application of any prepayments or
repayments (or commitment reductions), as between the various Tranches, pursuant
to Section 4.01(a) or 4.02 (excluding Sections 4.02(b) and (c)) (although (x)
the Required Lenders may waive, in whole or in part, any such prepayment,
repayment or commitment reduction, so long as the
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application, as amongst the various Tranches, of any such prepayment, repayment
or commitment reduction which is still required to be made is not altered and
(y) if an additional Tranche or Tranches of Term Loans are extended after the
Initial Borrowing Date with the consent of the Required Lenders as required
above, such Tranches may be included on a pro rata basis in the various
prepayments or repayments of Term Loans required pursuant to Sections 4.01(a)
and 4.02 (excluding Sections 4.02(b) and (c) and any section providing Scheduled
Repayments for any new Tranche of Term Loans).
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Lenders is obtained but the consent of one or more
of such other Lenders whose consent is required is not obtained, then the
Borrower shall have the right, so long as all non-consenting Lenders whose
individual consent is required are treated as described in either clauses (A) or
(B) below, to either (A) replace each such non-consenting Lender or Lenders (or,
at the option of the Borrower if the respective Lender's consent is required
with respect to less than all Tranches of Loans (or related Commitments), to
replace only the respective Tranche or Tranches of Commitments and/or Loans of
the respective non-consenting Lender which gave rise to the need to obtain such
Lender's individual consent) with one or more Replacement Lenders pursuant to
Section 1.13 so long as at the time of such replacement, each such Replacement
Lender consents to the proposed change, waiver, discharge or termination or (B)
terminate such non-consenting Lender's Acquisition Loan Commitment or Revolving
Loan Commitment (if such Lender's consent is required as a result of its
Acquisition Loan Commitment or Revolving Loan Commitment) and/or repay each
outstanding Acquisition Loans or Term Loans of such Lender which gave rise to
the need to obtain such Lender's consent, in accordance with Sections 3.02(b)
and/or 4.01(iv), PROVIDED that, unless the Commitments are terminated, and Loans
repaid, pursuant to preceding clause (B) are immediately replaced in full at
such time through the addition of new Lenders or the increase of the Commitments
and/or outstanding Loans of Existing Lenders (who in each case must specifically
consent thereto), then in the case of any action pursuant to preceding clause
(B) the Required Lenders (determined before giving effect to the proposed
action) shall specifically consent thereto, PROVIDED further, that in any event
the Borrower shall not have the right to replace a Lender, terminate its
Revolving Loan Commitment or Acquisition Loan Commitment or repay its Loans
solely as a result of the exercise of such Lender's rights (and the withholding
of any required consent by such Lender) pursuant to the second proviso to
Section 13.12(a).
13.13 SURVIVAL. All indemnities set forth herein including, without
limitation, in Sections 1.10, 1.11, 2.05, 4.04, 13.01 and 13.06 shall, subject
to Section 13.15 (to the extent applicable), survive the execution, delivery and
termination of this Agreement and the Notes and the making and repayment of the
Loans.
13.14 DOMICILE OF LOANS. Each Lender may transfer and carry its
Loans at, to or for the account of any office, Subsidiary or Affiliate of such
Lender. Notwithstanding anything to the contrary contained herein, to the extent
that a transfer of Loans pursuant to this Section 13.14 would,
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at the time of such transfer, result in increased costs under Section 1.10,
1.11, 2.05 or 4.04 from those being charged by the respective Lender prior to
such transfer, then the Borrower shall not be obligated to pay such increased
costs (although the Borrower shall be obligated to pay any other increased costs
of the type described above resulting from changes after the date of the
respective transfer).
13.15 LIMITATION ON ADDITIONAL AMOUNTS, ETC. Notwithstanding
anything to the contrary contained in Sections 1.10, 1.11, 2.05 or 4.04 of this
Agreement, unless a Lender gives notice to the Borrower that it is obligated to
pay an amount under any such Section within one year after the later of (x) the
date the Lender incurs the respective increased costs, Taxes, loss, expense or
liability, reduction in amounts received or receivable or reduction in return on
capital or (y) the date such Lender has actual knowledge of its incurrence of
the respective increased costs, Taxes, loss, expense or liability, reductions in
amounts received or receivable or reduction in return on capital, then such
Lender shall only be entitled to be compensated for such amount by the Borrower
pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be, to the
extent the costs, Taxes, loss, expense or liability, reduction in amounts
received or receivable or reduction in return on capital are incurred or
suffered on or after the date which occurs one year prior to such Lender giving
notice to the Borrower that it is obligated to pay the respective amounts
pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be. This
Section 13.15 shall have no applicability to any Section of this Agreement other
than said Sections 1.10, 1.11, 2.05 and 4.04.
13.16 CONFIDENTIALITY. (a) Subject to the provisions of clause (b)
of this Section 13.16, each Lender agrees that it will use its reasonable
efforts not to disclose without the prior consent of the Borrower (other than to
its employees, auditors, professional advisors or counsel, to affiliates or to
another Lender if the Lender or such Lender's holding or parent company in its
sole discretion determines that any such party should have access to such
information, provided such Persons shall be subject to the provisions of this
Section 13.16 to the same extent as such Lender) any information with respect to
the Borrower or any of its Subsidiaries which is now or in the future furnished
pursuant to this Agreement or any other Credit Document and which is designated
by the Borrower to the Lenders in writing as confidential, PROVIDED that any
Lender may disclose any such information (a) as has become generally available
to the public other than by virtue of a breach of this Section 13.16(a) by the
respective Lender, (b) as may be required or appropriate in any report,
statement or testimony submitted to any municipal, state or Federal regulatory
body having or claiming to have jurisdiction over such Lender or to the Federal
Reserve Board or the Federal Deposit Insurance Corporation or similar
organizations (whether in the United States or elsewhere) or their successors or
to the National Association of Insurance Commissioners (to the extent necessary
to receive the benefits of any law or regulation governing such Lender's
investments), (c) as may be required or appropriate in respect to any summons or
subpoena or in connection with any litigation, (d) in order to comply with any
law, order, regulation or ruling applicable to such Lender, (e) to the Agents or
the Collateral Agent, (f) to the National Association of Insurance Commissioners
or any similar organization or any nationally recognized rating agency that
requires access to information about such Lender's investment portfolio in
connection with ratings issued with respect to such Lender, (g) to any
prospective or actual transferee or participant in connection with any
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contemplated assignment, transfer or participation of any of the Notes or
Commitments or any interest therein by such Lender and (h) to any direct or
indirect counterparty with a Lender or its affiliate in a swap agreement with
respect to such Lender's Loans, PROVIDED that in he case of clauses (g) and (h)
such prospective transferee agrees to be bound by the confidentiality provisions
contained in this Section 13.16.
(b) The Borrower hereby acknowledges and agrees that each Lender may
share with any of its affiliates any information related to the Borrower or any
of its Subsidiaries (including, without limitation, any nonpublic customer
information regarding the creditworthiness of the Borrower and its Subsidiaries,
provided such Persons shall be subject to the provisions of this Section 13.16
to the same extent as such Lender).
13.17 REGISTER. The Borrower hereby designates the Administrative
Agent to serve as the Borrower's agent, solely for purposes of this Section
13.17, to maintain a register (the "Register") on which it will record the
Commitments from time to time of each of the Lenders, the Loans made by each of
the Lenders and each repayment in respect of the principal amount of the Loans
of each Lender. Failure to make any such recordation, or any error in such
recordation shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Lender, the transfer of the Commitments of such
Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such transfer is
recorded on the Register maintained by the Administrative Agent with respect to
ownership of such Commitments and Loans and prior to such recordation all
amounts owing to the transferor with respect to such Commitments and Loans shall
remain owing to the transferor. The registration of assignment or transfer of
all or part of any Commitments and Loans shall be recorded by the Administrative
Agent on the Register only upon the acceptance by the Administrative Agent of a
properly executed and delivered Assignment and Assumption Agreement pursuant to
Section 13.04(b). Coincident with the delivery of such an Assignment and
Assumption Agreement to the Administrative Agent for acceptance and registration
of assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Lender shall surrender the Note
evidencing such Loan, and thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the assigning or transferor Lender and/or
the new Lender. The Borrower agrees to indemnify the Administrative Agent from
and against any and all losses, claims, damages and liabilities of whatsoever
nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section 13.17 except
when caused by the gross negligence or willful misconduct of the Administrative
Agent.
13.18 USURY LAWS. (a) It is the intention of the parties hereto that
each Lender shall conform strictly to usury laws applicable to it. Accordingly,
the parties hereto stipulate and agree that none of the terms and provisions
contained in the Notes, this Agreement, or any of the other Credit Documents
shall ever be construed to create a contract to pay to any Lender for the use,
forbearance, or detention of money at a rate in excess of the Highest Lawful
Rate applicable to such Lender, and that for purposes hereof, "interest" shall
include the aggregate of all charges or other consideration which constitute
interest under applicable laws and are contracted for, taken, reserved,
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charged, or received under any of this Agreement, the Notes, or the other Credit
Documents or otherwise in connection with the transactions contemplated by this
Agreement. Further, if the transactions contemplated hereby would be usurious as
to any Lender under laws applicable to it then, in that event, notwithstanding
anything to the contrary in the Notes, this Agreement or in any other Credit
Document or agreement entered into in connection with or as security for the
Notes, it is agreed as follows: the aggregate of all consideration which
constitutes interest under law applicable to each such Lender that is contracted
for, taken, reserved, charged, or received by such Lender under the Notes, this
Agreement, or under any of the other aforesaid Credit Documents or agreements or
otherwise in connection with the Notes shall under no circumstances exceed the
maximum amount allowed by the law applicable to such Lender, and any excess
shall be credited by such Lender on the principal amount of the Indebtedness of
the Borrower owed to such Lender (or, if the principal amount of such
Indebtedness shall have been paid in full, to the extent such interest has been
received by a Lender, it shall be refunded by such Lender to the Borrower). The
provisions of this Section 13.18(a) shall control over all other provisions of
this Agreement, the Notes, and the other Credit Documents which may be in
apparent conflict herewith. The parties further stipulate and agree that,
without limitation on the foregoing, all calculations of the rate or amount of
interest contracted for, taken, reserved, charged or received under any of this
Agreement, the Notes, and the other Credit Documents which are made for the
purpose of determining whether such rate or amount exceed the Highest Lawful
Rate shall be made, to the extent permitted by applicable law, by amortizing,
prorating, allocting, and spreading during the period of the full stated term of
the Indebtedness, and if longer and if permitted by applicable law, until
payment in full, all interest at any time so contracted for, taken, reserved,
charged, or received.
(b) If at any time the effective rate of interest any Lender's Notes
would exceed the Highest Lawful Rate applicable to such Lender (taking into
account the interest rate applicable to such Indebtedness pursuant to the other
provisions of this Agreement, plus all additional charges and consideration
which have been contracted for, taken, reserved, charged, or received under this
Agreement, such Lender's Notes and the other Credit Documents, or any of them,
and which additional charges or consideration (the "Additional Charges")
constitute interest with respect to such Indebtedness), the effective interest
rate to apply to such Indebtedness made by a Lender shall be limited to the
Highest Lawful Rate, but any subsequent reductions in the interest rate
applicable to such Indebtedness owed to such Lender shall not reduce the
effective interest rate to apply to such Indebtedness owed to such Lender below
the Highest Lawful Rate applicable to such Lender until the total amount of
interest accrued on such Indebtedness equals the amount of interest which would
have accrued if the Interest Rate from time to time applicable to such
Indebtedness owed to such Lender had at all times been in effect with respect to
such Indebtedness pursuant to the other provisions of this Agreement and if the
Lender had collected all Additional Charges called for under this Agreement, the
Notes, and the other Credit Documents. If at maturity or final payment of such
Lender's Notes the total amount of interest accrued on such Lender's Notes
(including amounts designated as "interest" plus any Additional Charges which
constitute interest with respect to such Lender's Notes, and taking into account
the limitations of the first sentence of this Section 13.18(b)) is less than the
total amount of interest which would have accrued if the interest rate or
interest rates applicable to the Indebtedness from time to time outstanding
under such Lender's Notes had at all
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times been in effect pursuant to the other provisions of this Agreement, then
the respective Borrower agrees, to the fullest extent permitted by the laws
applicable to such Lender, to pay to such Lender an amount equal to the
difference between (i) the lesser of (1) the amount of interest which would have
accrued on such lender's Notes if the Highest Lawful Rate had at all times been
in effect (but excluding, for purposes of calculating such amount of interest,
any Additional Charges which constitute interest with respect to such Lender's
Notes), or (2) the amount of interest which would have accrued on such lender's
Notes if the interest rate or interest rates applicable to the Indebtedness from
time to time outstanding under such Lender's Notes had at all times been in
effect pursuant to the other provisions of this Agreement (including amounts
designated as "interest" plus any Additional Charges which constitute interest
with respect to such lender's Notes) less (ii) the amount of interest actually
accrued on such lender's Notes (including amounts designated as "interest" plus
any Additional Charges which constitute interest with respect to such Lender's
Notes).
13.19 MISCELLANEOUS. The parties hereto acknowledge and agree that
the maximum aggregate amount of the commitments hereunder on the Initial
Borrowing Date and permitted in the future under this Agreement as in effect on
the Initial Borrowing Date equals $190,000,000.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
137
officers to execute and deliver this Agreement as of the date first above
written.
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138
ADDRESS
3
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11103 Xxxx Xxxxxx XXX XXXX XXXXXXX XX
Xxx Xxxxxxx, XX 00000 AMERICA, INC.
By: /S/ XXXX XXXXXXX
-------------------------
Title: Chief Financial Officer
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5
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6
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SCHEDULE I
COMMITMENTS
REVOLVING LOAN TERM LOAN ACQUISITION LOAN
BANK COMMITMENT COMMITMENT COMMITMENT
---- ---------- ---------- ----------
Bankers Trust Company $3,625,000.00 $5,696,428.58 $5,178,571.42
Xxxxxxx Xxxxx Capital Corporation $3,625,000.00 $5,696,428.58 $5,178,571.42
Creditanstalt Corporate Finance, $3,000,000.00 $4,714,285.71 $4,285,714.29
Inc.
Fleet National Bank $3,000,000.00 $4,714,285.71 $4,285,714.29
NationsBank of Texas $3,000,000.00 $4,714,285.71 $4,285,714.29
BankBoston, N.A. $2,250,000.00 $3,535,714.29 $3,214,285.71
The Long-Term Credit Bank of $2,250,000.00 $3,535,714.29 $3,214,285.71
Japan, Limited, New York Branch
Societe Generale $2,250,000.00 $3,535,714.29 $3,214,285.71
Bank of Nova Scotia $2,000,000.00 $3,142,857.14 $2,857,142.86
City National Bank $2,000,000.00 $3,142,857.14 $2,857,142.86
Compagnie Financiere de CIC et $2,000,000.00 $3,142,857.14 $2,857,142.86
de L'Union Europeenne
Credit Lyonnais New York Branch $2,000,000.00 $3,142,857.14 $2,857,142.86
Xxxxxx Financial, Inc. $2,000,000.00 $3,142,857.14 $2,857,142.86
Royal Bank of Canada $2,000,000.00 $3,142,857.14 $2,857,142.86
-----------------------------------------------------------------------------------------------------------------------
TOTALS $35,000,000.00 $55,000,000.00 $50,000,000.00
=======================================================================================================================
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9
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10
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SCHEDULE II
BANK ADDRESSES
Bankers Trust Company 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxx Xxxxxxx
Xxxxxxx Xxxxx Capital Corporation World Financial Center
x/x Xxxxxxx Xxxxx & Xx. Xxxxx Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxx Xxx
Xx. Xxxxxx X. Xxxxxxx
Creditanstalt Corporate Finance, Inc. Xxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Mr. Xxxx Xxxxxx
Fleet National Bank One Federal Street
MS: MA OF DO3C
Xxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxx Xxxxx
NationsBank of Texas 000 Xxxxxxx
Xxx Xxxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Mr. D. Xxxx XxXxxxxx
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148
BankBoston, N.A. 000 Xxxxxxx Xxxxxx
XX: 01-08-05
Xxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Mr. Xxxx Xxxxx
The Long-Term Credit Bank of 165 Broadway
Japan, Limited, Xxx Xxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx
Societe Generale 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxx Xxxxxxxxx
Bank of Nova Scotia 00 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Mr. Xxxxx Xxxxx
City National Bank 000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Mr. Xxx Xxxxxxx
Compagnie Financiere de CIC et 000 Xxxxxxx Xxxxxx
de L'Union Europeenne 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxx Xxxxxxx
13
149
Credit Lyonnais New York Branch 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxx Xxxxxxx
Xxxxxx Financial, Inc. 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Mr. Xxxxxxx Xxxxx
Royal Bank of Canada 000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxx Xxxx
14
150
TABLE OF CONTENTS
Page
----
SECTION 1. Amount and Terms of Credit.......................................1
1.01 The Commitments...............................................1
1.02 Minimum Amount of Each Borrowing..............................4
1.03 Notice of Borrowing...........................................4
1.04 Disbursement of Funds.........................................5
1.05 Evidence of Debt; Notes.......................................5
1.06 Conversions...................................................7
1.07 Pro Rata Borrowings...........................................8
1.08 Interest......................................................8
1.09 Interest Periods..............................................9
1.10 Increased Costs, Illegality, etc.............................10
1.11 Compensation.................................................12
1.12 Change of Lending Office.....................................13
1.13 Replacement of Lenders.......................................13
1.14 Additional Acquisition Loan Commitments......................14
SECTION 2. Letters of Credit...............................................15
2.01 Letters of Credit............................................15
2.02 Letter of Credit Requests....................................16
2.03 Letter of Credit Participations..............................17
2.04 Agreement to Repay Letter of Credit Drawings.................19
2.05 Increased Costs..............................................20
SECTION 3. Commitment Commission; Fees; Reductions of Commitment...........20
3.01 Fees.........................................................20
3.02 Voluntary Termination of Unutilized Commitments..............21
3.03 Mandatory Reduction of Commitments...........................22
SECTION 4. Prepayments; Payments; Taxes....................................23
4.01 Voluntary Prepayments........................................23
4.02 Mandatory Repayments and Commitment Reductions...............25
4.03 Method and Place of Payment..................................29
4.04 Net Payments; Taxes..........................................29
1
151
Page
----
SECTION 5. Conditions Precedent to Loans..................................32
5.01 Execution of Agreement; Notes...............................32
5.02 Fees, etc...................................................32
5.03 Opinions of Counsel.........................................32
5.04 Corporate Documents; Proceedings; etc.......................32
5.05 Employee Benefit Plans; Shareholders' Agreements;
Management Agreements; Collective Bargaining Agreements;
Debt Agreements; Acquisition
Documents; Tax Sharing Agreements..........................33
5.06 Consummation of Recapitalization Transaction................34
5.07 Senior Subordinated Notes...................................35
5.08 Existing Note Defeasance.....................................35
5.09 Refinancing.................................................36
5.10 Indebtedness................................................36
5.11 Subsidiaries Guaranty.......................................36
5.12 Pledge Agreement............................................36
5.13 Security Agreement..........................................37
5.14 Consent Letter..............................................37
5.15 Adverse Change, etc.........................................37
5.16 Litigation..................................................38
5.17 Solvency Opinion; Environmental Analyses; Insurance.........38
5.18 Pro Forma Balance Sheet; Financial Statements; Projections..38
SECTION 6. Conditions Precedent to All Credit Events......................38
6.01 No Default; Representations and Warranties..................38
6.02 Notice of Borrowing; Letter of Credit Request...............39
SECTION 7. Representations, Warranties and Agreements.....................39
7.01 Corporate Status............................................39
7.02 Corporate Power and Authority...............................39
7.03 No Violation................................................40
7.04 Litigation..................................................40
7.05 Use of Proceeds: Margin Regulations.........................40
7.06 Governmental Approvals......................................41
7.07 Investment Company Act......................................41
7.08 Public Utility Holding Company Act..........................41
7.09 True and Complete Disclosure................................41
7.10 Financial Condition, Financial Statements...................42
7.11 Security Interests..........................................43
7.12 Representations and Warranties in Other Documents...........43
2
152
Page
----
7.13 Transaction..................................................43
7.14 Compliance with ERISA........................................44
7.15 Capitalization...............................................45
7.16 Subsidiaries.................................................45
7.17 Intellectual Property........................................45
7.18 Compliance with Statutes, etc................................45
7.19 Environmental Matters........................................46
7.20 Properties...................................................46
7.21 Labor Relations..............................................47
7.22 Tax Returns and Payments.....................................47
7.23 Existing Indebtedness........................................47
7.24 Senior Subordinated Notes....................................48
SECTION 8. Affirmative Covenants...........................................48
8.01 Information Covenants........................................48
8.02 Books, Records and Inspections...............................51
8.03 Insurance....................................................52
8.04 Payment of Taxes.............................................52
8.05 Corporate Franchises.........................................53
8.06 Compliance with Statutes, etc................................53
8.07 Compliance with Environmental Laws...........................53
8.08 ERISA........................................................54
8.09 Good Repair..................................................55
8.10 End of Fiscal Years; Fiscal Quarters.........................55
8.11 Additional Security; Further Assurances......................55
8.12 Foreign Subsidiaries Security................................57
8.13 Performance of Obligations...................................58
8.14 Consummation of Transaction..................................58
8.15 Existing Notes Redemption....................................58
SECTION 9. Negative Covenants..............................................58
9.01 Business.....................................................58
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc.......58
9.03 Liens........................................................61
9.04 Indebtedness.................................................63
9.05 Designated Senior Debt.......................................65
9.06 Advances, Investments and Loans..............................65
9.07 Dividends....................................................68
9.08 Transactions with Affiliates.................................69
3
153
Page
----
9.09 Capital Expenditures.........................................70
9.10 Consolidated Interest Coverage Ratio.........................71
9.11 Minimum Consolidated EBITDA..................................72
9.12 Maximum Leverage Ratio.......................................72
9.13 Limitation on Prepayments and Modifications of Indebtedness;
Modifications of Certificate of Incorporation,
By-Laws and Certain Other Agreements; etc....................73
9.14 Limitation on Certain Restrictions on Subsidiaries...........73
9.15 Limitation on Creation of Subsidiaries.......................74
9.16 Maintenance of Corporate Separateness, etc...................74
9.17 Limitation on Issuance of Capital Stock......................74
SECTION 10. Events of Default..............................................75
10.01 Payments....................................................75
10.02 Representations, etc........................................75
10.03 Covenants...................................................75
10.04 Default Under Other Agreements..............................75
10.05 Bankruptcy, etc.............................................76
10.06 ERISA.......................................................76
10.07 Security Documents..........................................77
10.08 Guaranties..................................................77
10.09 Judgments...................................................77
10.10 Ownership...................................................77
SECTION 11. Definitions and Accounting Terms...............................78
11.01 Defined Terms...............................................78
SECTION 12. The Agents.....................................................06
12.01 Appointment.................................................06
12.02 Nature of Duties............................................07
12.03 Lack of Reliance on the Agents..............................07
12.04 Certain Rights of the Agents................................07
12.05 Reliance....................................................08
12.06 Indemnification.............................................08
12.07 Each Agent in its Individual Capacity.......................08
12.08 Holders.....................................................08
12.09 Resignation by the Agents...................................08
SECTION 13. Miscellaneous..................................................09
13.01 Payment of Expenses, etc....................................09
4
154
Page
----
13.02 Right of Setoff.............................................110
13.03 Notices.....................................................111
13.04 Benefit of Agreement........................................111
13.05 No Waiver; Remedies Cumulative..............................113
13.06 Payments Pro Rata...........................................113
13.07 Calculations; Computations..................................114
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL.......................................114
13.09 Counterparts................................................115
13.10 Effectiveness...............................................115
13.11 Headings Descriptive........................................115
13.12 Amendment or Waiver; etc....................................116
13.13 Survival....................................................117
13.14 Domicile of Loans...........................................118
13.15 Limitation on Additional Amounts, etc.......................118
13.16 Confidentiality.............................................118
13.17 Register....................................................119
13.18 Usury Laws..................................................119
13.19 Miscellaneous...............................................121
SCHEDULE I Commitments (sec.sec. 3.02, 4.01, 11.01,
13.04(b))
SCHEDULE II Bank Addresses (sec. 13.03)
SCHEDULE III Real Property (sec.sec. 5.14, 7.11, 7.20)
SCHEDULE IV Existing Liens (sec. 9.03)
SCHEDULE V Existing Indebtedness (sec.sec. 5.10, 7.23,
9.04)
SCHEDULE VI Insurance (sec. 8.03)
SCHEDULE VII Subsidiaries (sec.sec. 7.16)
SCHEDULE VIII Capitalization (sec. 7.15)
SCHEDULE IX Investments (sec. 9.06)
EXHIBIT A Notice of Borrowing (sec. 1.03(a))
EXHIBIT B-1 Term Note (sec. 1.05(d))
EXHIBIT B-2 Acquisition Note (sec. 1.05(d))
EXHIBIT B-3 Revolving Note (sec. 1.05(d))
EXHIBIT B-4 Swingline Note (sec. 1.05(d))
EXHIBIT C Acquisition Commitment Assumption Agreement
(sec. 1.14)
5
155
EXHIBIT D Letter of Credit Request (sec. 2.02(a))
EXHIBIT E Section 4.04(b)(ii) Certificate
(sec. 4.04(b)(ii))
EXHIBIT F Opinion of Xxxxxxxx, Xxxxxxx & Xxxxxxx
(sec. 5.03)
EXHIBIT G Officers' Certificate (sec. 5.04(a))
EXHIBIT H Subsidiaries Guaranty (sec. 5.11)
EXHIBIT I Pledge Agreement (sec. 5.12)
EXHIBIT J Security Agreement (sec. 5.13)
EXHIBIT K Assignment and Assumption Agreement
(sec.sec. 1.13, 13.04(b), 13.17)
6
156
EXHIBIT A
NOTICE OF BORROWING
____, 19__
Bankers Trust Company, as
Administrative Agent for the Lenders
party to the Credit Agreement
referred to below
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx
Ladies and Gentlemen:
The undersigned, Eye Care Centers of America, Inc. (the "Borrower"), refers to
the Credit Agreement, dated as of April 23, 1998 (as amended from time to time,
the "Credit Agreement", the terms defined therein being used herein as therein
defined), among Eye Care Centers of America, Inc., various Lenders from time to
time party thereto, Bankers Trust Company, as Administrative Agent for such
Lenders, and Xxxxxxx Xxxxx Capital Corporation, as Syndication Agent, and hereby
gives you notice, irrevocably, pursuant to Section 1.03(a) of the Credit
Agreement, that the undersigned hereby requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Borrowing (the "Proposed Borrowing") as required by Section 1.03(a) of the
Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ____________.(1)
(ii) The aggregate principal amount of the Proposed Borrowing is
$_________.
(iii) The Proposed Borrowing is to consist of [Term Loans]
[Acquisition Loans] [Revolving Loans] [Swingline Loans].
(iv) The Loans to be made pursuant to the Proposed Borrowing shall
be initially maintained as [Base Rate Loans] [Eurodollar Loans].
--------
(1) Shall be a Business Day at least one Business Day in the case of Base Rate
Loans and three Business Days in the case of Eurodollar Loans, in each case,
after the date hereof.
157
(v) The initial Interest Period for the Proposed Borrowing is
month(s)___.(2)
The undersigned hereby certifies that the following statements are
true and correct on the date hereof, and will be true and correct on the date of
the Proposed Borrowing:
(A) the representations and warranties contained in the Credit
Documents are and will be true and correct in all material respects, both before
and after giving effect to the Proposed Borrowing and to the application of the
proceeds thereof, as though made on such date (it being understood and agreed
that any representation or warranty which by its terms is made as of a specified
date shall be required to be true and correct in all material respects only as
of such specified date); and
(B) no Default or Event of Default has occurred and is continuing,
or would result from such Proposed Borrowing or from the application of the
proceeds thereof.
Very truly yours,
EYE CARE CENTERS OF AMERICA, INC.
By
---------------------------------
Name:
Title:
----------
(2) To be included for a Proposed Borrowing of Eurodollar Loans.
2
158
EXHIBIT B-1
TERM NOTE
$5,696,428.58 New York, New York
April 24, 1998
FOR VALUE RECEIVED, EYE CARE CENTERS OF AMERICA, INC., a Texas
corporation (the "Borrower"), hereby promises to pay to BANKERS TRUST COMPANY or
its registered assigns (the "Lender"), in lawful money of the United States of
America in immediately available funds, at the office of Bankers Trust Company
(the "Administrative Agent") located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X.
00000, on the Term Loan Maturity Date (as defined in the Agreement referred to
below) the principal sum of FIVE MILLION SIX HUNDRED NINETY SIX THOUSAND FOUR
HUNDRED TWENTY EIGHT DOLLARS AND FIFTY EIGHT CENTS ($5,696,428.58) or, if less,
the then unpaid principal amount of all Term Loans (as defined in the Agreement)
made by the Lender pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid principal
amount hereof in like money at said office from the date hereof until paid at
the rates and at the times provided in Section 1.08 of the Agreement.
This Note is one of the Term Notes referred to in the Credit
Agreement, dated as of April 23, 1998, among Eye Care Centers of America, Inc.,
various lending institutions from time to time party thereto, Bankers Trust
Company, as Administrative Agent, and Xxxxxxx Xxxxx Capital Corporation, as
Syndication Agent (as from time to time in effect, the "Agreement") and is
entitled to the benefits thereof and of the other Credit Documents (as defined
in the Agreement). This Note is secured by the Security Documents (as defined in
the Agreement) and is entitled to the benefits of each Guaranty (as defined in
the Agreement). As provided in the Agreement, this Note is subject to voluntary
prepayment and mandatory repayment prior to the Term Loan Maturity Date, in
whole or in part, as provided in the Agreement and Term Loans may be converted
from one Type (as defined in the Agreement) into another Type to the extent
provided in the Agreement.
In case an Event of Default (as defined in the Agreement) shall
occur and be continuing, the principal of and accrued interest on this Note may
be declared to be due and payable in the manner and with the effect provided in
the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
159
Exhibit B-1
Page 2
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.
EYE CARE CENTERS OF
AMERICA, INC.
By:
--------------------
Title:
160
EXHIBIT B-2
ACQUISITION NOTE
$5,178,571.42 New York, New York
April 24, 1998
FOR VALUE RECEIVED, EYE CARE CENTERS OF AMERICA, INC., a Texas
corporation (the "Borrower"), hereby promises to pay to BANKERS TRUST COMPANY or
its registered assigns (the "Lender"), in lawful money of the United States of
America in immediately available funds, at the office of Bankers Trust Company
(the "Adminsitrative Agent") located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X.
00000, on the RL/AL Maturity Date (as defined in the Agreement referred to
below) the principal sum of FIVE MILLION ONE HUNDRED SEVENTY EIGHT THOUSAND FIVE
HINDRED SEVENTY ONE DOLLARS AND FORTY TWO CENTS ($5,178,571.42) or, if less, the
then unpaid principal amount of all Acquisition Loans (as defined in the
Agreement) made by the Lender pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid principal
amount hereof in like money at said office from the date hereof until paid at
the rates and at the times provided in Section 1.08 of the Agreement.
This Note is one of the Acquisition Notes referred to in the Credit
Agreement, dated as of April 23, 1998, among Eye Care Centers of America, Inc.,
various lending institutions from time to time party thereto, Bankers Trust
Company, as Administrative Agent, and Xxxxxxx Xxxxx Capital Corporation, as
Syndication Agent (as from time to time in effect, the "Agreement") and is
entitled to the benefits thereof and of the other Credit Documents (as defined
in the Agreement). This Note is secured by the Security Documents (as defined in
the Agreement) and is entitled to the benefits of each Guaranty (as defined in
the Agreement). As provided in the Agreement, this Note is subject to voluntary
prepayment and mandatory repayment prior to the RL/AL Maturity Date, in whole or
in part, as provided in the Agreement and Acquisition Loans may be converted
from one Type (as defined in the Agreement) into another Type to the extent
provided in the Agreement.
In case an Event of Default (as defined in the Agreement) shall
occur and be continuing, the principal of and accrued interest on this Note may
be declared to be due and payable in the manner and with the effect provided in
the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
161
Exhibit B-2
Page 2
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
EYE CARE CENTERS OF
AMERICA, INC.
By
Title:
162
EXHIBIT B-3
REVOLVING NOTE
$3,625,000.00 New York, New York
April 24, 1998
FOR VALUE RECEIVED, EYE CARE CENTERS OF AMERICA, INC., a Texas
corporation (the "Borrower"), hereby promises to pay to BANKERS TRUST COMPANY or
its registered assigns (the "Lender"), in lawful money of the United States of
America in immediately available funds, at the office of Bankers Trust Company
(the "Adminsitrative Agent") located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X.
00000, on the RL/AL Maturity Date (as defined in the Agreement referred to
below) the principal sum of THREE MILLION SIX HUNDRED TWENTY FIVE THOUSAND
DOLLARS ($3,625,000.00) or, if less, the then unpaid principal amount of all
Revolving Loans (as defined in the Agreement) made by the Lender pursuant to the
Agreement.
The Borrower promises also to pay interest on the unpaid principal
amount hereof in like money at said office from the date hereof until paid at
the rates and at the times provided in Section 1.08 of the Agreement.
This Note is one of the Revolving Notes referred to in the Credit
Agreement, dated as of April 23, 1998, among Eye Care Centers of America, Inc.,
various lending institutions from time to time party thereto, Bankers Trust
Company, as Administrative Agent, and Xxxxxxx Xxxxx Capital Corporation, as
Syndication Agent (as from time to time in effect, the "Agreement") and is
entitled to the benefits thereof and of the other Credit Documents (as defined
in the Agreement). This Note is secured by the Security Documents (as defined in
the Agreement) and is entitled to the benefits of each Guaranty (as defined in
the Agreement). As provided in the Agreement, this Note is subject to voluntary
prepayment and mandatory repayment prior to the RL/AL Maturity Date, in whole or
in part, as provided in the Agreement and Revolving Loans may be converted from
one Type (as defined in the Agreement) into another Type to the extent provided
in the Agreement.
In case an Event of Default (as defined in the Agreement) shall
occur and be continuing, the principal of and accrued interest on this Note may
be declared to be due and payable in the manner and with the effect provided in
the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
163
Exhibit B-3
Page 2
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.
EYE CARE CENTERS OF
AMERICA, INC.
By
Title:
164
EXHIBIT B-4
SWINGLINE NOTE
$5,000,000.00 New York, New York
April 24, 1998
FOR VALUE RECEIVED, EYE CARE CENTERS OF AMERICA, INC., a Texas
corporation (the "Borrower"), hereby promises to pay to BANKERS TRUST COMPANY or
its registered assigns (the "Bank"), in lawful money of the United States of
America in immediately available funds, at the office of Bankers Trust Company
(the "Administrative Agent") located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X.
00000, on the Swingline Expiry Date (as defined in the Agreement referred to
below) the principal sum of FIVE MILLION DOLLARS ($5,000,000.00) or, if less,
the then unpaid principal amount of all Swingline Loans (as defined in the
Agreement) made by the Lender pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid principal
amount hereof in like money at said office from the date hereof until paid at
the rates and at the times provided in Section 1.08 of the Agreement.
This Note is the Swingline Note referred to in the Credit Agreement,
dated as of April 23, 1998, among Eye Care Centers of America, Inc., various
Lenders from time to time party thereto, Bankers Trust Company, as
Administrative Agent for such Lender, and Xxxxxxx Xxxxx Capital Corporation, as
Syndication Agent (as from time to time in effect, the "Agreement") and is
entitled to the benefits thereof and of the other Credit Documents (as defined
in the Agreement). This Note is secured by the Security Documents (as defined in
the Agreement) and is entitled to the benefits of each Guaranty (as defined in
the Agreement). This Note is subject to voluntary prepayment and mandatory
prepayment prior to the Swingline Expiry Date, in whole or in part, as provided
in the Agreement.
In case an Event of Default (as defined in the Agreement) shall
occur and be continuing, the principal of and accrued interest on this Note may
be declared to be due and payable in the manner and with the effect provided in
the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
165
Exhibit B-4
Page 2
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
EYE CARE CENTERS OF
AMERICA, INC.
By
Title:
166
EXHIBIT C
FORM OF ACQUISITION COMMITMENT ASSUMPTION AGREEMENT
[Letterhead of Bank]
_____________, 000__
Xxx Xxxx Xxxxxxx xx Xxxxxxx, Inc.
00000 Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxx 00000
RE ACQUISITION LOAN COMMITMENTS
Gentlemen:
Reference is hereby made to the Credit Agreement, dated as of April
23, 1998, among Eye Care Centers of America, Inc., various lending institutions
from time to time party thereto, Bankers Trust Company, as Administrative Agent,
and Xxxxxxx Xxxxx Capital Corporation, as Syndication Agent (as amended,
modified or supplemented from time to time, the "Credit Agreement"). Unless
otherwise defined herein, capitalized terms used herein shall have the
respective meanings set forth in the Credit Agreement.
We hereby commit to provide $____________ of the Total Acquisition
Loan Commitment (our "New Commitment"), on the terms and subject to the
conditions set forth in the Credit Agreement.
[We (i) confirm that we have received a copy of the Credit Agreement
and the other Credit Documents, together with copies of the financial statements
referred to therein and such other documents and information as we have deemed
appropriate to make our own credit analysis and decision to enter into this
Acquisition Commitment Assumption Agreement; (ii) agree that we will,
independently and without reliance upon the Administrative Agent or any other
Lender or Agent and based on such documents and information as we shall deem
appropriate at the time, continue to make our own credit decisions in taking or
not taking action under the Credit Agreement; (iii) appoint and authorize the
Administrative Agent and the Collateral Agent to take such action as agent on
our behalf and to exercise such powers under the Credit Agreement and the other
Credit Documents as are delegated to the Administrative Agent and the Collateral
Agent, as the case may be, by the terms thereof, together with such powers as
are reasonably incidental thereto; [and] (iv) agree that we will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by us as a Lender[; and (v) to the
extent legally entitled to do so, attaches the forms
167
EXHIBIT C
Page 2
described in Section 13.04(b) of the Credit Agreement.](1) Upon the delivery of
a fully executed original hereof to the Administrative Agent, we shall be a
party to the Credit Agreement and, to the extent provided in this Acquisition
Commitment Assumption Agreement, have the rights and obligations of a Lender
thereunder and under the other Credit Documents.](2)
You may accept this letter by signing the enclosed copies in the
space provided below, and returning one copy of same to us and delivering one
copy of same to the Administrative Agent before the close of business on
____________, 19__. If you do not so accept this letter, our New Commitment
shall be deemed cancelled.
----------
(1) Insert bracketed language if the lending institution is organized under the
laws of a jurisdiction outside the United States.
(2) Insert bracketed language if the lending institution is not already a
Lender.
168
EXHIBIT C
Page 3
THIS LETTER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK AND MAY BE MODIFIED ONLY IN WRITING.
Very truly yours,
[NAME OF LENDER]
By:
-------------------
Title:
Agreed and Accepted
this____day of_____, 19__:
EYE CARE CENTERS OF AMERICA, INC.
By:
--------------------------------
Title:
Consented to by:
BANKERS TRUST COMPANY,
as Administrative Agent
By:
----------------------------------
Title:
169
EXHIBIT D
LETTER OF CREDIT REQUEST
No. 1 Dated 2
---- ----
Bankers Trust Company, as Administrative Agent under the Credit Agreement (as
amended, modified or supplemented from time to time, the "Credit
Agreement"), dated as of April 23, 1998, among Eye Care Centers of America,
Inc., various lending institutions from time to time party thereto, Bankers
Trust Company, as Administrative Agent, and Xxxxxxx Xxxxx Capital
Corporation, as Syndication Agent
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
[Name and Address of applicable Issuing Lender
Attention: ]
--------------------------
Dear Sirs:
We hereby request that [name of proposed Issuing Bank], in its individual
capacity, issue a [Standby] [Trade] Letter of Credit for the account of the
undersigned on (3) (the "Date of Issuance") in the aggregate stated amount of
(4) The requested Letter of Credit shall be denominated in Dollars.
For purposes of this Letter of Credit Request, unless otherwise
defined herein, all capitalized terms used herein which are defined in the
Credit Agreement shall have the respective meaning provided therein.
The beneficiary of the requested Letter of Credit will be (5) , and
such Letter of Credit will be in support of (6) and will have a stated
expiration date of (7) .
----------
(1) Letter of Credit Request Number.
(2) Date of Letter of Credit Request.
(3) Date of Issuance which shall be at least five Business Days after the date
of this Letter of Credit Request (or such shorter period as is acceptable
to the respective Issuing Lender).
(4) Aggregate initial stated amount of Letter of Credit.
(5) Insert name and address of beneficiary.
(6) Insert description of L/C Supportable Indebtedness and describe obligation
to which it relates in the case of Standby Letters of Credit and a description
of the sellers and sale of goods or
(continued...)
170
EXHIBIT D
Page 2
We hereby certify that:
(1) the representations and warranties contained in the Credit
Documents will be true and correct in all material respects on the
Date of Issuance, both before and after giving effect to the
issuance of the Letter of Credit requested hereby (it being
understood and agreed that any representation or warranty which by
its terms is made as of a specified date shall be required to be
true and correct in all material respects only as of such specified
date); and
(2) no Default or Event of Default has occurred and is
continuing nor, after giving effect to the issuance of the Letter of
Credit requested hereby, would such a Default or an Event of Default
occur.
Copies of all relevant documentation with respect to the
supported transaction are attached hereto.
EYE CARE CENTERS OF AMERICA, INC.
By
------------------------
Title:
----------
(continued...)
materials which is being supported in the case of Trade Letters of Credit.
(7) Insert last date upon which drafts may be presented which may not be later
than (i) in the case of Trade Letters of Credit, the earlier of (x) the
date which occurs 180 days after the Date of Issuance and (y) the date
which is 30 days prior to the Maturity Date or (ii) in the case of Standby
Letters of Credit, the earlier of (x) the date which occurs 12 months
after the Date of Issuance (although any such Standby Letter of Credit may
be extendible for successive periods of up to 12 months, on terms
acceptable to the Issuing Lender thereof) and (y) the tenth Business Day
prior to the RL/AL Maturity Date.
171
EXHIBIT E
SECTION 4.04(B)(II) CERTIFICATE
Reference is hereby made to the Credit Agreement, dated as of April
23, 1998, among Eye Care Centers of America, Inc., various lending institutions
from time to time party thereto, Bankers Trust Company, as Administrative Agent,
and Xxxxxxx Xxxxx Capital Corporation, as Syndication Agent (the "Credit
Agreement"). Pursuant to the provisions of Section 4.04(b)(ii) of the Credit
Agreement, the undersigned hereby certifies that it is not a "bank" as such term
is used in Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as
amended.
[NAME OF BANK]
By:
-------------------
Title:
172
EXHIBIT F
[HWD Letterhead]
April 24, 1998
Bankers Trust Company, as Administrative Agent
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx Capital Corporation, as Syndication Agent
North Tower
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
And Each of the Lenders Party to the Credit Agreement
referred to below
Ladies and Gentlemen:
We have acted as special counsel to Eye Care Centers of America, Inc., a
Texas corporation (the "Borrower"), in connection with the negotiation,
execution and delivery of a Credit Agreement, dated as of April 23, 1998 (the
"Credit Agreement"), by and among the Borrower, the Lenders party thereto (the
"Lenders"), Bankers Trust Company, as Administrative Agent, and Xxxxxxx Xxxxx
Capital Corporation, as Syndication Agent, and certain other documents
contemplated by the Credit Agreement. We have also acted as special counsel to
the Subsidiaries of the Borrower identified on SCHEDULE A attached hereto (the
"Subsidiaries"), each of which is identified as a Subsidiary Guarantor under the
Credit Agreement.
The opinions expressed below are furnished to you on and as of the Initial
Borrowing Date pursuant to Section 5.03 of the Credit Agreement. Capitalized
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Credit Agreement.
In connection with our representation of the Borrower and the Subsidiaries
as described above, we have examined originals, or copies identified to our
satisfaction as being true copies, of the following:
1. The Credit Agreement;
173
Bankers Trust Coompany, as Administrative Agent
Xxxxxxx Xxxxx Capital Corporation, as Syndication Agent
And Each Of the Lenders Party to the Credit Agreenmet
refered to below
April 24, 1998
Page 2
2. The Notes;
3. The Security Agreement, including the Assignment of Security Interest
in United States Trademark and Patents;
4. The Pledge Agreement;
5. The Subsidiaries Guaranty;
6. The Guaranty, dated as of April 24, 1998, of the Borrower to the
Administrative Agent entered into in connection with the Xxxx Loan (the "Xxxx
Guaranty");
7. The Transaction Documents;
8. The certificate or articles of incorporation or similar charter
documents of the Borrower and each of the Subsidiaries, each as amended to date
and certified by the Secretary of State of the state where each such entity is
incorporated;
9. The by-laws of the Borrower and each of the Subsidiaries, each as
amended to date and certified by the respective clerk or secretary of each such
entity;
10. Resolutions of the Directors of the Borrower and each of the
Subsidiaries, in each case certified by the respective secretary or clerk of
each such entity, approving the transactions contemplated by the Credit
Documents to which such entity is a party;
11. Certificates of the Secretary of State of Texas as to the Borrower and
the Secretary of State of the states listed on SCHEDULE A hereto where each of
the respective Subsidiaries is incorporated, in each case regarding the legal
existence and corporate good standing of such entity and dated as of a recent
date; and
12. Copies of financing statements, executed by the Borrower and various
of the Subsidiaries, to be filed in those filing offices listed in SCHEDULE B
attached hereto (the "Filing Offices") pursuant to the Uniform Commercial Code
("UCC") as in effect on the date hereof in the various states listed on SCHEDULE
B in which such Filing Offices are located (the "Applicable States"), in each
case naming the Borrower or one or more of the Subsidiaries as Debtor and
174
Bankers Trust Coompany, as Administrative Agent
Xxxxxxx Xxxxx Capital Corporation, as Syndication Agent
And Each Of the Lenders Party to the Credit Agreenmet
refered to below
April 24, 1998
Page 3
Collateral Agent as secured party with respect to the Security Agreement
Collateral (as so described, the "Financing Statements").
For purposes of this opinion, (i) the agreements, documents and instruments
referred to in clauses (1) through (6) above are sometimes referred to as the
"Loan Documents", (ii) the Borrower and the Subsidiaries are sometimes referred
to as the "Loan Parties", (iii) the Subsidiaries which are incorporated in the
State of Texas are sometimes referred to in this letter as the "Texas
Subsidiaries", and (iv) the Subsidiaries which are incorporated in states other
than the State of Texas are sometimes referred to in this letter as "Other
Subsidiaries".
We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such agreements and instruments, corporate
records, certificates of public officials and of officers of the Loan Parties,
and such other documents and records and such matters of law as we have deemed
necessary as a basis for the opinions set forth below. As to questions of fact
material to such opinions, we have relied, without independent verification,
upon certificates of public officials and of officers of the Loan Parties,
copies of which have been delivered to you, and the factual accuracy and
completeness of all the representations and warranties made by the parties to
the Loan Documents and the other documents executed by Borrower and the
Subsidiaries in connection with the transactions contemplated by the Loan
Documents. The opinion expressed in paragraph 1 below as to the valid existence
and corporate good standing of each of the Other Subsidiaries is as of the date
of the certificates relating to such entities referred to in clause (11) above
and is based solely on such certificates.
As used in this opinion and unless otherwise specified herein, the phrases
"to our knowledge," "known to us" and the like refer to the actual present
knowledge of lawyers currently in this firm who have performed substantive legal
services on behalf of Borrower and the Subsidiaries in connection with the
transactions referred to herein, without any independent investigation or file
or docket review.
For purposes of this opinion, we have assumed, with your permission and
without independent verification, (a) the genuineness of all signatures (except
for signatures of executing officers of the Loan Parties), (b) the legal
capacity of all natural persons who have signed documents examined by us, and
(c) the authenticity of all documents submitted to us as originals and the
conformity to original documents of all documents submitted to us as certified
or photostatic copies.
175
Bankers Trust Coompany, as Administrative Agent
Xxxxxxx Xxxxx Capital Corporation, as Syndication Agent
And Each Of the Lenders Party to the Credit Agreenmet
refered to below
April 24, 1998
Page 4
We are members of the Bar of The Commonwealth of Massachusetts and, except
to the extent specifically set forth hereinbelow, we express no opinion as to
the laws of any jurisdiction other than the federal laws of the United States of
America and the laws of The Commonwealth of Massachusetts. With respect to our
opinions set forth in paragraphs 1 and 2 below as to the general corporate power
and authority of each Other Subsidiary and the due authorization by such Other
Subsidiary of the execution, delivery and performance of the Loan Documents to
which it is a party by all requisite corporate action, such opinions are based
solely upon our examination of the text of the respective business corporation
act or statute in effect in the state where such Other Subsidiary is
incorporated, as listed in SCHEDULE C attached hereto (individually, a
"Corporation Statute" and collectively, the "Corporation Statutes"), together
with our examination of the charter documents, bylaws and corporate resolutions
recited in clauses (8), (9) and (10) above. Also, our opinions set forth in
paragraphs 4(ii), 5 and 12 are based on our examination of all or certain of the
Corporation Statutes, to the extent stated in such opinion paragraphs or
relevant to the subject matter thereof. With respect to our opinions set forth
in paragraphs 10 and 11 below as they relate to the perfection of security
interests in the Pledged Securities as held by the Collateral Agent in the State
of New York and in any Security Agreement Collateral located in the Applicable
States, such opinions are based solely upon our review of a compilation of the
UCC as in effect in each such jurisdiction as set forth in the UNIFORM LAWS
ANNOTATED, West Publishing Co. (as supplemented, 1997), and not upon any special
expertise in or independent review of the laws of such jurisdictions.
We call to your attention that the Loan Documents provide that they are to
be governed by and construed in accordance with the laws of the State of New
York, as to which we have no knowledge, have made no independent investigation
and express no opinion. Accordingly, our opinion set forth in paragraph 3 below
is based on the assumption, with your consent and without verification, that the
laws of the State of New York applicable to the Loan Documents are the same as
the laws of The Commonwealth of Massachusetts in all respects.
Each of you is also receiving additional opinions from local or special
counsel with respect to the transactions contemplated by the Credit Agreement,
as follows:
(i) the opinion of the firm of Xxx & Xxxxx, Incorporated, of San
Antonio, Texas, with respect to (a) the valid existence and
corporate good standing of the Borrower and the Texas Subsidiaries,
(b) the requisite corporate power and authority of the Borrower and
the Texas Subsidiaries to own and operate their respective
properties and enter into and perform their respective obligations
under
176
Bankers Trust Coompany, as Administrative Agent
Xxxxxxx Xxxxx Capital Corporation, as Syndication Agent
And Each Of the Lenders Party to the Credit Agreenmet
refered to below
April 24, 1998
Page 5
the Loan Documents to which they are a party, (c) the due corporate
authorization by the Borrower and the Texas Subsidiaries of the
execution, delivery and performance of the Loan Documents, (d) the
enforceability in Texas of the choice of law provision of the Credit
Agreement, as such provision relates to usury matters, (e) the
absence of any violation of Texas law or of the charter or By-laws
of the Borrower and the Texas Subsidiaries as a result of the
execution, delivery and performance by the Borrower and the Texas
Subsidiaries of the Credit Documents, (f) the consummation of the
Merger in accordance with Texas law, and (g) the perfection under
the UCC as in effect in the State of Texas of the security interest
created by the Security Agreement in such portion of the Security
Agreement Collateral as may be located in, or require filing in,
Texas; and
(ii) the opinion of the firm of Weingarten, Schurgin, Xxxxxxxx & Xxxxx,
L.L.P., of Boston, Massachusetts, with respect to the perfection of
a security interest on behalf of the Collateral Agent in patents and
trademarks held by the Borrower and the Subsidiaries by appropriate
filings in the U.S. Patent and Trademark Office.
We express no opinion as to the matters addressed by the special or local
opinions identified hereinabove, and we have relied upon such opinions where
relevant for the purposes of expressing the opinions set forth in this letter.
Based upon the foregoing and in reliance thereon and subject to the
assumptions, limitations, qualifications and exceptions set forth below, we are
of the opinion that:
1. Each Other Subsidiary is a corporation validly existing and in
corporate good standing under the laws of its jurisdiction of incorporation.
Each Other Subsidiary has all requisite corporate power and authority to own and
operate its properties and to carry on its business in which to our knowledge it
is presently engaged or proposed to be engaged, and to enter into and perform
its obligations under each Loan Document to which it is a party.
2. The execution and delivery by each Other Subsidiary and the performance
by each Other Subsidiary of its obligations under each Loan Document to which it
is a party have been duly authorized by all requisite corporate action by each
such Other Subsidiary.
3. Each Loan Document to which each Loan Party is a party has been duly
executed and delivered by such Loan Party and each such Loan Document
constitutes the valid and
177
Bankers Trust Coompany, as Administrative Agent
Xxxxxxx Xxxxx Capital Corporation, as Syndication Agent
And Each Of the Lenders Party to the Credit Agreenmet
refered to below
April 24, 1998
Page 6
binding obligation of such Loan Party, enforceable against such Loan Party in
accordance with its terms.
4. The execution and delivery by each Loan Party and the performance by
each Loan Party of its obligations under each Loan Document to which it is a
party and the consummation of the transactions pursuant thereto do not (i)
violate the charter documents or By-laws of the Other Subsidiaries, (ii) violate
any federal or Massachusetts law, statute, rule or regulation or any provision
of the Corporation Statute to which it is subject or, to our knowledge, any
order of any court or governmental agency specifically naming or otherwise
binding upon any Loan Party, or (iii) violate or constitute a breach or default
under any term or provision of the Existing Notes Indenture or, to our
knowledge, any other mortgage, indenture, contract or agreement to which any
Loan Party is a party or, to our knowledge, result in the creation or imposition
of any Lien upon any of the properties or assets of any Loan Party, other than
pursuant to the Security Documents.
5. No governmental consents, approvals, authorizations, registrations,
declarations or filings (other than such of the foregoing as (a) have been
obtained or completed prior to the closing of the transactions contemplated by
the Loan Documents or (b) are filings required to perfect security interests
pursuant to the Security Documents) are required by any Loan Party in connection
with the execution, delivery and performance by any Loan Party of the Loan
Documents or in order to make the Loan Documents the valid, binding and
enforceable obligations of each Loan Party which is a party thereto.
6. The making of the Loans and the application of the proceeds thereof by
Borrower, as provided in the Credit Agreement, do not violate Regulation G (12
CFR Part 207), Regulation T (12 CFR Part 220), Regulation U (12 CFR Part 221) or
Regulation X (12 CFR Part 224) of the Board of Governors of the Federal Reserve
System.
7. No Loan Party is (a) an "investment company" or a company "controlled"
by an "investment company," as such terms are defined in the Investment Company
Act of 1940, as amended, (b) a "holding company" or a "subsidiary company" of a
"holding company" or an "affiliate" of a "holding company" or an "affiliate" of
a "subsidiary company" of a "holding company" within the meaning of the Public
Utility Holding Act of 1935, or (c) subject to regulation under the Federal
Power Act or the Interstate Commerce Act.
178
Bankers Trust Coompany, as Administrative Agent
Xxxxxxx Xxxxx Capital Corporation, as Syndication Agent
And Each Of the Lenders Party to the Credit Agreenmet
refered to below
April 24, 1998
Page 7
8. The subordination provisions set forth in the Senior Subordinated Note
Indenture are enforceable against the Borrower, the Subsidiaries and the holders
of the Subordinated Notes in accordance with such Senior Subordinated Note
Indenture. All Obligations and Guaranteed Obligations under the Loan Documents
and all "Guaranteed Obligations" (as defined in the Xxxx Guaranty), to the
extent that each of them constitute payment obligations, are within the
definition of "Senior Indebtedness", "Guarantor Senior Indebtedness" and
"Designated Senior Indebtedness", as the case may be, included in such
subordinated provisions.
9. To our knowledge, based solely upon a review of (i) those corporate
stock records and minute books of the Subsidiaries which were made available to
us, (ii) certain originals or copies of stock certificates previously issued by
the Subsidiaries and remaining outstanding or previously cancelled, as the case
may be, and (iii) corporate transactional documents relating to the original
acquisition by the Borrower or any of its Subsidiaries of the capital stock of
any Subsidiary, and an inquiry of appropriate officers of the Borrower and the
Subsidiaries, ANNEX A to the Pledge Agreement correctly sets forth the direct
and indirect ownership interests of record of the Borrower and each of the
Subsidiaries, as the case may be, in and to each class of capital stock of each
of the Subsidiaries as of the Initial Borrowing Date.
10. Assuming the delivery to and the continuing possession by the
Collateral Agent in the State of New York of the Pledged Securities with
appropriate executed stock powers or note endorsements, (i) the security
interest created in favor of the Collateral Agent under the Pledge Agreement
constitutes a valid and enforceable perfected security interest in such Pledged
Securities under the UCC as in effect in the State of New York, and (ii) no
filings or recordings are required in order to perfect such security interest in
the Pledged Securities. Assuming that neither the Collateral Agent nor any
Lender has notice of any adverse claim as to the Pledged Securities, the
Collateral Agent will hold the aforesaid security interest free of any adverse
claims.
11. The Security Agreement creates in favor of the Collateral Agent a
valid and enforceable security interest in those items and types of Security
Agreement Collateral in which a security interest may be created under Article 9
of the UCC. The Financing Statements have been duly executed and delivered by
each Loan Party named therein, and, as to the Other Subsidiaries, such execution
and delivery have been duly authorized by all requisite corporate action. Upon
the due filing of the Financing Statements duly executed by Borrower and the
Subsidiaries in the respective Filing Offices as specified in SCHEDULE B
attached hereto, such security interest will be perfected under the UCC as in
effect in each of the Applicable States in
179
Bankers Trust Coompany, as Administrative Agent
Xxxxxxx Xxxxx Capital Corporation, as Syndication Agent
And Each Of the Lenders Party to the Credit Agreenmet
refered to below
April 24, 1998
Page 8
that portion of the Security Agreement Collateral in which a security interest
is perfected by the filing of financing statements under the UCC as in effect in
such Applicable State.
12. The Recapitalization Transaction, the Refinancing and the issuance of
the Senior Subordinated Notes have each been consummated in accordance with the
terms of the respective Transaction Documents applicable thereto. The
Recapitalization Transaction has been consummated in accordance with the
Delaware General Corporate Law, to the extent the same is applicable thereto.
13. The Existing Notes Defeasance has been consummated in accordance with
the Existing Notes Indenture.
14. There are to our knowledge no actions, suits, or proceedings pending
or overtly threatened against any Loan Party (i) with respect to any aspect of
the Transaction or seeking to enjoin or prevent the consummation of any aspect
of the Transaction, or (ii) with respect to any Indebtedness for borrowed money
known to us of the Borrower or any of its Subsidiaries.
The opinions contained herein are subject to the following conditions and
qualifications:
(A) We have not been requested to render, and with your permission we do
not express, an opinion as to the application of any fraudulent conveyance,
fraudulent transfer, fraudulent obligation or similar laws.
(B) We express no opinion as to any provision of the Loan Agreement to the
extent it provides that the Lender may set off and apply any deposits at any
time held, or any other indebtedness at any time owing, by such Lender or
participant to or for the account of any Loan Party.
(C) Our opinions in paragraphs 2, 10 and 11 above, with respect to the
validity, binding effect and enforceability of the agreements or provisions
thereof referred to in such paragraphs, are subject to the following: (i)
bankruptcy, insolvency, reorganization, moratorium, receivership and other laws
now or hereafter in effect relating to or affecting the enforcement of
creditors' rights, (ii) the effect of general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, and the possible unavailability of specific performance or injunctive
relief, whether considered in a proceeding in equity or at law, and to the
discretion of the court before which any such proceeding may be
180
Bankers Trust Coompany, as Administrative Agent
Xxxxxxx Xxxxx Capital Corporation, as Syndication Agent
And Each Of the Lenders Party to the Credit Agreenmet
refered to below
April 24, 1998
Page 9
brought, (iii) public policy considerations or court decisions which may limit
the rights of any party to obtain certain remedies and to indemnification,
including indemnification for tortious or criminal acts or violations of law,
and (iv) our assumptions that the parties to the Loan Documents other than the
Loan Parties have each duly authorized, executed and delivered such Loan
Documents and all other relevant documents and instruments, and that each of the
parties to the Loan Documents other than the Loan Parties has all requisite
power and authority to enter into and perform its respective obligations in
connection with the transactions described in the Loan Documents to which it is
a party.
(D) Our opinions set forth in paragraphs 10 and 11 above are limited to
Articles 8 and 9 of the UCC as in effect in the Applicable States. Accordingly,
those opinion paragraphs do not address (i) laws of any Applicable State, other
than Articles 8 and/or 9, as the case may be, of the UCC, (ii) collateral of a
type not subject to Articles 8 and/or 9, as the case may be, of the UCC, and
(iii) under ss.9-103 of the UCC, what law governs perfection of the security
interests granted in the Security Agreement Collateral covered by this opinion
letter.
(E) Our opinion in paragraph 4 as to compliance with statutes, rules and
regulations (other than the Corporation Statutes) is limited to those that, in
our experience, are normally applicable to transactions of the type contemplated
by the Loan Documents.
The opinions set forth in this letter are limited to the specific issues
addressed herein and to statutes, regulations, rules, decisions, decrees and
facts existing on the date hereof. In rendering such opinions, we disclaim any
obligation to advise any party to whom this opinion is addressed of any change
in any of these sources of law or of any subsequent legal or factual
developments which might affect any matters addressed or opinions set forth
herein.
This opinion is being furnished only to the addressees of this letter
and is solely for their benefit and the benefit of their assignees and
participants under the Credit Agreement in
181
Bankers Trust Coompany, as Administrative Agent
Xxxxxxx Xxxxx Capital Corporation, as Syndication Agent
And Each Of the Lenders Party to the Credit Agreenmet
refered to below
April 24, 1998
Page 10
connection with the transactions being undertaken thereunder. This opinion may
not be relied upon for any other purpose, or relied upon by any other person,
firm or corporation, for any purpose, without our prior written consent.
Very truly yours,
/s/ Xxxxxxxx, Xxxxxxx & Xxxxxxx
Xxxxxxxx, Xxxxxxx & Xxxxxxx
A Professional Corporation
182
SCHEDULE A TO XXXXXXXX, XXXXXXX & XXXXXXX OPINION
SUBSIDIARIES
JURISDICTION
NAME OF INCORPORATION
---- ----------------
Eye Care Holdings, Inc. Delaware
Enclave Advancement Group,Inc. Texas
ECCA Managed Vision Care, Inc. Texas
Visionworks Holdings, Inc. Florida
Visionworks, Inc. Florida
Visionworks Properties, Inc. Florida
Visionary Retail Management, Inc. Delaware
Visionary Properties, Inc. Delaware
Visionary MSO, Inc. Delaware
The Xxxxx Group, Inc. Delaware
Hour Eyes, Inc. Maryland
Skylab Optical, Inc. Xxxxxxx
Metropolitan Vision Services, Inc. Xxxxxxx
183
SCHEDULE B TO XXXXXXXX, XXXXXXX & XXXXXXX OPINION
A. Listing of Applicable States
Alabama
Arizona
District of Columbia
Florida
Idaho
Iowa
Kansas
Louisiana
Maryland
Missippi
Missouri
Nebraska
New York
New Mexico
North Carolina
Ohio
Oklahoma
Oregon
South Carolina
Ohio
Oklahoma
Oregon
South Carolina
Tennessee
Xxxxxxxx
Xxxxxxxxxx
184
SCHEDULE B TO XXXXXXXX, XXXXXXX & XXXXXXX OPINION
B. Listing of Filling Offices
SEE ATTACHED CHART.
000
Xxx Xxxx Xxxxxxx xx Xxxxxxx
UCC-1 FILING CHART
1104031-0060
Secured Party:
Bankers Trust Company,
=====================================================================================================================
State FILED WITH: DEBTOR NAME:
=====================================================================================================================
VIRGINIA State Corporation Commission Eye Care Centers Of America, Inc.
The Xxxxx Group, Inc.
Hour Eyes, Inc.
Skylab Optical, Inc.
Metropolitan Vision Services, Inc.
DEBTOR ADDRESS FOR VIRGINIA FILINGS:
0000 Xxxxxxx Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xx 00000
---------------------------------------------------------------------------------------------------------------------
LOUISIANA Secretary Of State Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Bossier County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Calcasieu County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Caddo County Eye Care Centers Of America, Inc.
=====================================================================================================================
186
=====================================================================================================================
Jefferson County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Lafayette County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Ouachita County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
East Baton Rouge County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Orleans County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Saint Tammany County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Rapides County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
OKLAHOMA Secretary Of State Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Cleveland County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Oklahoma County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Tulsa County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
FLORIDA Secretary Of State Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Escambia County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Bay County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Okaloosa County Eye Care Centers Of America, Inc.
Visionworks, Inc.
=====================================================================================================================
2
187
=====================================================================================================================
Pinellas County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Sarasota County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxx Xxxxxx Xxx Xxxx Xxxxxxx Xx Xxxxxxx, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Orange County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Seminole County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Broward County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Polk County Eye Care Centers Of America, Inc.
Visionworks, Inc.
=====================================================================================================================
3
188
=====================================================================================================================
Pasco County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Dade County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxx County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Clay County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxx County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxx County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx County Eye Care Centers Of America, Inc.
=====================================================================================================================
4
189
=====================================================================================================================
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Hillsborough County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Brevard County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Volusia County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Monroe County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
ALABAMA Secretary Of State Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Houston County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Mobile County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
NEVADA Secretary Of State Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
IDAHO Secretary Of State Eye Care Centers Of America, Inc.
=====================================================================================================================
5
190
=====================================================================================================================
Ada County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Twin Falls County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Kootenai County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
NEW MEXICO Secretary Of State Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxx Xxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Bernalillo County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Santa Fe County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
ARIZONA Secretary Of State Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Coconino County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Maricopa County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
KANSAS Secretary Of State Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Sedgwick County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
NORTH CAROLINA Secretary Of State Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Mecklenburg County Eye Care Centers Of America, Inc.
Visionworks, Inc.
=====================================================================================================================
6
191
=====================================================================================================================
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Guilford County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Forsyth County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Wake County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
New Hanover County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxxxxx County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Rowan County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Buncombe County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
SOUTH CAROLINA Secretary Of State Eye Care Centers Of America, Inc.
Visionworks, Inc.
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7
192
=====================================================================================================================
Greenville County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Richland County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Spartanburg County Eye Care Centers Of America, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
NEBRASKA Secretary Of State Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
IOWA Secretary Of State Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Pottawattamie County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
MISSOURI Secretary Of State Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
TENNESSEE Secretary Of State Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxxxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Davidson County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Shelby County Eye Care Centers Of America, Inc.
=====================================================================================================================
8
193
=====================================================================================================================
MISSISSIPPI Secretary Of State Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Madison County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
OHIO Secretary Of State Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Cuyahoga County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Lake County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Summit County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Lorain County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
OREGON Secretary Of State Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Linn County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Multnomah County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Lane County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Washington County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
MARYLAND Secretary Of State Eye Care Centers Of America, Inc.
=====================================================================================================================
-9-
194
=====================================================================================================================
Visionary Retail Management, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxxxxxx County Eye Care Centers Of America, Inc.
Visionary Retail Management, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxx Arundel County Eye Care Centers Of America, Inc.
Visionary Retail Management, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxx County Eye Care Centers Of America, Inc.
Visionary Retail Management, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx County Eye Care Centers Of America, Inc.
Visionary Retail Management, Inc.
Visionworks, Inc.
---------------------------------------------------------------------------------------------------------------------
TEXAS Secretary Of State Eye Care Centers Of America, Inc.
Eye Care Holdings, Inc.
Enclave Advancement Group, Inc.
Ecca Managed Vision Care, Inc.
Visionworks Holdings, Inc.
=====================================================================================================================
-10-
195
=====================================================================================================================
Visionworks, Inc.
Visionworks Properties, Inc.
Visionary Retail Management, Inc.
Visionary Properties, Inc.
Visionary Mso, Inc.
---------------------------------------------------------------------------------------------------------------------
Collin County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Dallas County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Ector County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Midland County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Tarrant County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Bexar County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Cameron County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Victoria County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Wichita County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxxxx County Eye Care Centers Of America, Inc.
=====================================================================================================================
-11-
196
=====================================================================================================================
Xxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Lubbock County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxx Xxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Galveston County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Jefferson County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Brazoria County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Potter County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxxxxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Fort Bend County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Nueces County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxx County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Brazos County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxx County Eye Care Centers Of America, Inc.
=====================================================================================================================
-12-
197
=====================================================================================================================
WASHINGTON Recorder Of The Deeds Of The Eye Care Centers Of America, Inc.
D.C. District Visionary Retail Management, Inc.
---------------------------------------------------------------------------------------------------------------------
WASHINGTON Secretary Of State Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Spokane County Eye Care Centers Of America, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxx County Eye Care Centers Of America, Inc.
=====================================================================================================================
-13-
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SCHEDULE C TO XXXXXXXX, XXXXXXX & XXXXXXX OPINION
LISTING OF CORPORATION STATUTES
Name Of Jurisdiction Of Incorporation Title Of Corporation Statute
------------------------------------- ----------------------------
Delaware Delaware Corporation Law Annotated tit 8.
chapter 1 sec.sec. 101-330.
Florida Florida General Corporation Act
sec.sec. 607.001-607.414
Maryland Maryland General Corporation Law sec.sec. 1-
000-0-000
Virginia Virginia Stock Corporation Act sec.sec. 13.1-
601-13.1-780
199
EXHIBIT G
FORM OF OFFICER'S CERTIFICATE
[NAME OF CREDIT PARTY]
Officers' Certificate
I, the undersigned, [Chairman of the Board/President/Vice
President/Treasurer] of [NAME OF CREDIT PARTY], a corporation organized and
existing under the laws of the State of ___________ (the "Company"), do hereby
certify, as such officer and not individually, that:
1. This Certificate is furnished pursuant to Section 5.04 of the
Credit Agreement, dated as of April 23, 1998, among Eye Care Centers of America,
Inc., various lending institutions from time to time party thereto, Bankers
Trust Company, as Administrative Agent, and Xxxxxxx Xxxxx Capital Corporation,
as Syndication Agent (such Credit Agreement, as in effect on the date of this
Certificate, being herein called the "Credit Agreement"). Unless otherwise
defined herein, capitalized terms used in this Certificate shall have the
meanings set forth in the Credit Agreement.
2. The following named individuals are elected officers of the
Company, each holds the office of the Company set forth opposite his name and
has held such office since __________, 19__.(1) The signature written opposite
the name and title of each such officer is his correct signature.
Name(2) Office Signature
--------------- ------------- ---------------
--------------- ------------- ---------------
--------------- ------------- ---------------
--------------- ------------- ---------------
3. Attached hereto as Exhibit A is a certified copy of the
Certificate of Incorporation of the Company as filed in the Office of the
Secretary of State of the State of
----------
(1) Insert a date prior to the time of any corporate action relating to the
Credit Agreement or any other Credit Document.
(2) Include name, office and signature of each officer who will sign any Credit
Document, including the officer who will sign the certification at the end of
this Certificate.
200
EXHIBIT G
__________ on ___________, 19__, together with all amendments thereto adopted
through the date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of the
By-Laws of the Company which were duly adopted, are in full force and effect on
the date hereof, and have been in effect since _____________, 19__.
5. Attached hereto as Exhibit C is a true and correct copy of
resolutions which were duly adopted on __________, 19__ [by unanimous written
consent of the Board of Directors of the Company] [by a meeting of the Board of
Directors of the Company at which a quorum was present and acting throughout],
and said resolutions have not been rescinded, amended or modified. Except as
attached hereto as Exhibit C, no resolutions have been adopted by the Board of
Directors of the Company which deal with the execution, delivery or performance
of any of the Credit Documents or any other Documents to which the Company is
party.
[6. On the date hereof, all of the conditions in Sections 5.02,
5.05, 5.06, 5.07, 5.08, 5.09, 5,10, 5.16, 5.17 and 6.01 of the Credit Agreement
have been satisfied.]
7. Attached hereto as Exhibit D is a list of all Recapitalization
Documents, true and correct copies of which have been provided to the Agents.
8. Attached hereto as Exhibit E is a list of all Refinancing
Documents, true and correct copies of which have been provided to the Agents.
9. Attached hereto as Exhibit F is a list of all Employee Benefit
Plans of the Company and its Subsidiaries and the other documents referred to in
Section 5.05(i), true and correct copies of which have been provided to the
Agents.
10. Attached hereto as Exhibit G is a list of all Collective
Bargaining Agreements of the Company and its Subsidiaries, true and correct
copies of which have been provided to the Agents.
11. Attached hereto as Exhibit H is a list of all Debt Agreements of
the Company and its Subsidiaries, true and correct copies of which have been
provided to the Agents.
12. Attached hereto as Exhibit I is a list of all Shareholders'
Agreements of the Company and its Subsidiaries, true and correct copies of which
have been provided to the Agents.
13. Attached hereto as Exhibit J is a list of all Management
Agreements of the Company and its Subsidiaries, true and correct copies of which
have been provided to the Agents.
-2-
201
EXHIBIT G
14. Attached hereto as Exhibit K is a list of all Tax Allocation
Agreements of the Company and its Subsidiaries, true and correct copies of which
have been provided to the Agent.
15. Attached hereto as Exhibit L is a list of all documents related
to the Visisonworks Lease of the Company and its subsidiaries, true and correct
copies of which have been provided to the Agents.
16. Attached hereto as Exhibit M is a list of all Documents, true
and correct copies of which have been provided to the Agents.
17. Attached hereto as Exhibit N is a list of all Subordinated Notes
Documents, true and correct copies of which have been provided to the
Agents.(3)
[7.][18.] On the date hereof, the representations and warranties
contained in the Credit Agreement and in the other Credit Documents to which the
Company is a party are true and correct in all material respects, both before
and after giving effect to each Credit Event to occur on the date hereof and the
application of the proceeds thereof (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date).
[7.][19.] On the date hereof, no Default or Event of Default has
occurred and is continuing under any Credit Document to which the Company is a
party or would result from the Credit Events to occur on the date hereof or from
the application of the proceeds thereof.
[8.][20.] There is no proceeding for the dissolution or liquidation
of the Company or, to the knowledge of the Company, threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of
__________, 1998.
[NAME OF CREDIT PARTY]
By:
-------------------------
Name:
Title:
----------
(3) Insert bracketed items 6 through 17 in the Certificate delivered by the
Borrower only.
-3-
202
EXHIBIT G
[NAME OF CREDIT PARTY]
I, the undersigned, [Secretary/Assistant Secretary] of the Company, do hereby
certify, as such officer and not individually, that:
1. [Name of Person making above certifications] is the duly elected
and qualified [Chairman of the Board/President/Vice President/Treasurer] of the
Company and the signature above is his genuine signature.
2. The certifications made by [name of Person making above
certifications] in Items 2, 3, 4, 5 and [8][20] above are true and correct.
IN WITNESS WHEREOF, I have hereunto set my hand this ______ day of
________, 1998.
--------------------------------------
Name:
Title:
-4-
203
[CONFORMED AS EXECUTED]
EXHIBIT H
SUBSIDIARIES GUARANTY
GUARANTY, dated as of April 24, 1998 (as amended, modified or
supplemented from time to time, this "Guaranty"), made by each of the
undersigned (each, a "Guarantor" and, together with any other entity that
becomes a party hereto pursuant to Section 25 hereof, the "Guarantors"), to
BANKERS TRUST COMPANY, as Collateral Agent, for the benefit of the Secured
Creditors (as defined below). Except as otherwise defined herein, terms used
herein and defined in the Credit Agreement (as defined below) shall be used
herein as therein defined.
W I T N E S S E T H :
WHEREAS, Eye Care Centers of America, Inc. (the "Borrower"), various
lending institutions party thereto from time to time (the "Lenders"), Bankers
Trust Company, as Administrative Agent (together with any successor
administrative agent, the "Administrative Agent"), and Xxxxxxx Xxxxx Capital
Corporation, as Syndication Agent have entered into a Credit Agreement, dated as
of April 23, 1998 (as amended, modified or supplemented from time to time, the
"Credit Agreement"), providing for the making of Loans to the Borrower and the
issuance of, and participation in, Letters of Credit for the account of the
Borrower, all as contem plated therein (the Lenders, the Administrative Agent,
the Syndication Agent are herein called the "Bank Creditors");
WHEREAS, Bankers Trust Company, in its individual capacity (together
with its successors, participants and assigns, the "Xxxx Creditors"), has made a
loan in an aggregate principal amount of $1,000,000 to Xx. Xxxxxx Xxxx (the
"Xxxx Loan") pursuant to a Note, dated April 24, 1998 (the "Xxxx Note") which
Xxxx Loan and all obligations relating thereto have been guaranteed by the
Borrower pursuant to that certain Guaranty, dated as of April 24, 1998, executed
by the Borrower (the "Xxxx Guaranty");
WHEREAS, the Borrower may at any time and from time to time enter
into one or more Interest Rate Protection Agreements or Other Hedging Agreements
with one or more Lenders or any affiliate thereof (each such Lender or
affiliate, even if the respective Lender subsequently ceases to be a Lender
under the Credit Agreement for any reason, together with such Lender's or
affiliate's successors and assigns, if any, collectively, the "Other Creditors,"
and together with the Bank Creditors and the Xxxx Creditors, the "Secured
Creditors");
WHEREAS, each Guarantor is a Subsidiary of the Borrower;
204
WHEREAS, it is a condition to the making of Loans and issuing of
Letters of Credit under the Credit Agreement and to the making of the Xxxx Loan
that each Guarantor shall have executed and delivered this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the incurrence of
the Xxxx Loan and of Loans to the Borrower and the issuance of Letters of Credit
pursuant to the Credit Agreement and the entering into of Interest Rate
Protection Agreements or Other Hedging Agreements and, accordingly, desires to
execute this Guaranty in order to (i) satisfy the condi tions described in the
preceding paragraph and (ii) induce (x) the Lenders to make Loans and issue
Letters of Credit to the Borrower , (y) the Xxxx Creditors to extend the Xxxx
Loan, and (z) the Other Creditors to enter into Interest Rate Protection
Agreements or Other Hedging Agreements with the Borrower;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Guarantor, the receipt and sufficiency of which are hereby
acknowledged, each Guarantor hereby makes the following representations and
warranties to the Secured Creditors and hereby covenants and agrees with each
Secured Creditor as follows:
1. Each Guarantor, jointly and severally, irrevocably and
unconditionally guarantees: (i) to the Bank Creditors the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of (x) the principal of and interest on the Loans made to, and any Notes issued
by, the Borrower under the Credit Agreement and all reimbursement obligations
and Unpaid Drawings with respect to Letters of Credit and (y) all other
obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due) and liabilities owing
by the Borrower to the Bank Creditors under the Credit Agreement (including,
without limitation, indemnities, Fees and interest thereon (including any
interest accruing after the commencement of any bankruptcy, insolvency,
receivership or similar proceeding, whether or not such interest is an allowed
claim against the debtor in any such proceeding)) and the other Credit Documents
to which the Borrower is a party, whether now existing or hereafter incurred
under, arising out of or in connection with the Credit Agreement or any such
other Credit Document and the due performance and compliance with the terms of
the Credit Documents by the Borrower (all such principal, interest, liabilities
and obligations under this clause (i), except to the extent consisting of
obligations or liabilities with respect to Interest Rate Protection Agreements
or Other Hedging Agreements, being herein collectively called the "Credit
Document Obligations"); (ii) to each Xxxx Creditor the full and prompt payment
when due (whether at the stated maturity, by acceleration or otherwise) of (x)
the principal of and interest on the Xxxx Loan and the Xxxx Note and (y) all
other obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due) and liabilities of the
Borrower now existing or hereafter incurred under, arising out of or in
connection with, the Xxxx Loan (including, without limitation, indemnities, fees
and interest thereon (including any interest accruing after the commencement of
any bankruptcy, insolvency, receivership or similar
-2-
205
proceeding, whether or not such interest is an allowed claim against the debtor
in any such proceeding)) and the other documents entered into in connection with
the Xxxx Loan, whether now existing or hereafter incurred under, arising out of
or in connection with the Xxxx Loan or any such document and the due performance
and compliance with the terms of such documents by Xx. Xxxxxx Xxxx and the
Borrower (all such principal, interest, liabilities and obligations under this
clause (ii) being herein collectively called the "Xxxx Obligations"); and (iii)
to each Other Creditor the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities owing by the Borrower to one
or more Other Creditors under any Interest Rate Protection Agreements or Other
Hedging Agreements, whether now in existence or hereafter arising, and the due
performance and compliance by the Borrower with all terms, conditions and
agreements contained therein (all such obligations and liabilities being herein
collectively called the "Other Obligations", and together with the Credit
Document Obligations and the Xxxx Obligations are herein collectively called the
"Guaranteed Obligations"). Each Guarantor understands, agrees and confirms that
this Guaranty is a guarantee of payment and not of collection, and that the
Secured Creditors may enforce this Guaranty up to the full amount of the
Guaranteed Obligations against such Guarantor without proceeding against any
other Guarantor, the Borrower, against any security for the Guaranteed
Obligations, or under any other guaranty covering all or a portion of the
Guaranteed Obligations.
2. Additionally, each Guarantor, jointly and severally,
unconditionally and irrevocably, guarantees the payment of any and all
Guaranteed Obligations to the Secured Creditors whether or not due or payable by
the Borrower upon the occurrence in respect of the Borrower or any Subsidiary of
any of the events of the type specified in Section 10.05 of the Credit
Agreement, and unconditionally and irrevocably, jointly and severally, promises
to pay such Guaranteed Obligations to the Secured Creditors, or order, on
demand, in lawful money of the United States.
3. The liability of each Guarantor hereunder is exclusive and
independent of any security for or other guaranty of the Guaranteed Obligations
of the Borrower whether executed by such Guarantor, any other Guarantor, any
other guarantor or by any other party, and the liability of each Guarantor
hereunder shall not be affected or impaired by (a) any direction as to
application of payment by the Borrower or by any other party, (b) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor or
of any other party as to the Guaranteed Obligations, (c) any payment on or in
reduction of any such other guaranty or under taking, (d) any dissolution,
termination or increase, decrease or change in personnel by the Borrower, (e)
any payment made to any Secured Creditor on the Guaranteed Obligations which any
Secured Creditor repays the Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
each Guarantor waives any right to the deferral or modification of its
obligations hereunder by reason of any
-3-
206
such proceeding, (f) any action or inaction by the Secured Creditors as
contemplated in Section 6 hereof, or (g) any invalidity, irregularity or
unenforceability of all or part of the Guaranteed Obligations or of any security
therefor.
4. The obligations of each Guarantor hereunder are independent of
the obligations of any other Guarantor, any other guarantor or the Borrower, and
a separate action or actions may be brought and prosecuted against each
Guarantor whether or not action is brought against any other Guarantor, any
other guarantor or the Borrower and whether or not any other Guarantor, any
other guarantor of the Borrower or the Borrower be joined in any such action or
actions. Each Guarantor waives, to the fullest extent permitted by law, the
benefit of any statute of limitations affecting its liability hereunder or the
enforcement thereof. Any payment by the Bor rower or other circumstance which
operates to toll any statute of limitations as to the Borrower shall operate to
toll the statute of limitations as to each Guarantor.
5. Each Guarantor hereby waives (to the fullest extent permitted by
applicable law) notice of acceptance of this Guaranty and notice of any
liability to which it may apply, and waives promptness, diligence, presentment,
demand of payment, protest, notice of dishonor or nonpayment of any such
liabilities, suit or taking of other action by the Administrative Agent or any
other Secured Creditor against, and any other notice to, any party liable
thereon (including such Guarantor or any other guarantor or the Borrower).
6. Any Secured Creditor may (except as shall be required by
applicable statute and cannot be waived) at any time and from time to time
without the consent of, or notice to, any Guarantor, without incurring
responsibility to such Guarantor, without impairing or releasing the obligations
of such Guarantor hereunder, upon or without any terms or conditions and in
whole or in part:
(a) change the manner, place or terms of payment of, and/or change
or extend the time of payment of, renew, increase, accelerate or alter,
any of the Guaranteed Obligations, any security therefor, or any liability
incurred directly or indirectly in respect thereof, and the guaranty
herein made shall apply to the Guaranteed Obligations as so changed,
extended, renewed or altered;
(b) sell, exchange, release, surrender, realize upon or otherwise
deal with in any manner and in any order any property by whomsoever at any
time pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst;
(c) exercise or refrain from exercising any rights against the
Borrower or others or otherwise act or refrain from acting;
-4-
207
(d) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower to creditors of the
Borrower;
(e) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities constituting Guaranteed Obligations to the
Secured Creditors regardless of what liabilities remain unpaid;
(f) consent to or waive any breach of, or any act, omission or
default under, any of the Interest Rate Protection Agreements or Other
Hedging Agreements, the Credit Documents , any document entered into in
connection with the Xxxx Loan or any of the instruments or agreements
referred to therein, or otherwise amend, modify or supplement any of the
Interest Rate Protection Agreements or Other Hedging Agreements, the
Credit Documents or any of such other documents, instruments or
agreements;
(g) act or fail to act in any manner referred to in this Guaranty
which may deprive such Guarantor of its right to subrogation against the
Borrower or any other person to recover full indemnity for any payments
made pursuant to this Guaranty; and/or
(h) release or substitute any one or more endorsers, guarantors, the
Borrower or other obligors.
7. No invalidity, irregularity or unenforceability of all or any
part of the Guaranteed Obligations or of any security therefor shall affect,
impair or be a defense to this Guaranty, and this Guaranty shall be primary,
absolute and unconditional notwithstanding the occurrence of any event or the
existence of any other circumstances which might constitute a legal or equitable
dis charge of a surety or guarantor except payment in full of the Guaranteed
Obligations.
8. This Guaranty is a continuing one and all liabilities to which it
applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. No failure or delay on the part of any
Secured Creditor in exercising any right, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exer cise of any other right, power or privilege. The rights and
remedies herein expressly specified are cumulative and not exclusive of any
rights or remedies which any Secured Creditor would otherwise have. No notice to
or demand on any Guarantor in any case shall entitle such Guarantor to any other
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of any Secured Creditor to any other or further action in
any circumstances without notice or demand. It is not necessary for any Secured
Creditor to inquire into the
-5-
208
capacity or powers of the Borrower or any of its Subsidiaries or the officers,
directors, partners or agents acting or purporting to act on its behalf, and any
indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
9. Any indebtedness of the Borrower now or hereafter held by any
Guarantor is hereby subordinated to the Guaranteed Obligations; and such
indebtedness of the Borrower to any Guarantor, if the Administrative Agent,
after an Event of Default has occurred and is continuing, so requests, shall be
collected, enforced and received by such Guarantor as trustee for the Secured
Creditors and be paid over to the Administrative Agent for the benefit of the
Secured Creditors on account of the Guaranteed Obligations, but without
affecting or impairing in any manner the liability of such Guarantor under the
other provisions of this Guaranty. Prior to the transfer by any Guarantor of any
note or negotiable instrument evidencing any indebtedness of the Borrower to
such Guarantor, such Guarantor shall xxxx such note or negotiable instrument
with a legend that the same is subject to this subordination. Without limiting
the generality of the foregoing, each Guarantor hereby agrees with the Secured
Creditors that it will not exercise any right of subrogation which it may at any
time otherwise have as a result of this Guaranty (whether contractual, under
Section 509 of the Bankruptcy Code or otherwise) until all Guaranteed
Obligations have been irrevocably paid in full in cash.
-6-
209
10. (a) Each Guarantor waives any right (except as shall be required
by applicable statute or law and cannot be waived) to require the Secured
Creditors to: (i) proceed against the Borrower, any other Guarantor, any other
guarantor of the Borrower or any other party; (ii) proceed against or exhaust
any security held from the Borrower, any other Guarantor, any other guarantor of
the Borrower or any other party; or (iii) pursue any other remedy in the Secured
Creditors' power whatsoever. Each Guarantor waives (to the fullest extent
permitted by applicable law) any defense based on or arising out of any defense
of the Borrower, any other Guarantor, any other guarantor of the Borrower or any
other party other than payment in full of the Guaranteed Obligations, including,
without limitation, any defense based on or arising out of the disability of the
Borrower, any other Guarantor, any other guarantor of the Borrower or any other
party, or the unenforceability of the Guaranteed Obligations or any part thereof
from any cause, or the cessation from any cause of the liability of the Borrower
other than payment in full of the Guaranteed Obligations. The Secured Creditors
may, at their election, foreclose on any security held by the Administrative
Agent, the Collateral Agent or the other Secured Creditors by one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Secured Creditors may have
against the Borrower or any other party, or any security, without affecting or
impairing in any way the liability of any Guarantor hereunder except to the
extent the Guaranteed Obligations have been paid in full. Each Guarantor waives
any defense arising out of any such election by the Secured Creditors, even
though such election operates to impair or extinguish any right of reimbursement
or subrogation or other right or remedy of such Guarantor against the Borrower
or any other party or any security.
(b) Each Guarantor waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incur ring of new or additional
indebtedness. Each Guarantor assumes all responsibility for being and keeping
itself informed of the Borrower's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which such Guarantor
assumes and incurs hereunder, and agrees that the Secured Creditors shall have
no duty to advise any Guarantor of information known to them regarding such
circumstances or risks.
11. The Secured Creditors agree that this Guaranty may be enforced
only by the action of the Administrative Agent or the Collateral Agent, in each
case acting upon the instructions of the Required Lenders (or, after the date on
which all Credit Document Obligations have been paid in full, the holders of at
least a majority of the outstanding Other Obligations) and that no other Secured
Creditor shall have any right individually to seek to enforce or to enforce this
Guaranty or to realize upon the security to be granted by the Security
Documents, it being understood and agreed that such rights and remedies may be
exercised by the Administrative Agent or the Collateral Agent or the holders of
at least a majority of the outstanding Other Obligations, as the case may be,
for the benefit of the Secured Creditors upon the terms of this
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Guaranty and the Security Documents. The Secured Creditors further agree that
this Guaranty may not be enforced against any director, officer, employee, or
stockholder of any Guarantor (except to the extent such stockholder is also a
Guarantor hereunder).
12. In order to induce the Lenders to make Loans and issue Letters
of Credit pursuant to the Credit Agreement, and in order to induce the Other
Creditors to execute, deliver and perform the Interest Rate Protection
Agreements or Other Hedging Agreements, each Guarantor represents, warrants and
covenants that:
(a) Such Guarantor (i) is a duly organized and validly existing
corporation in good standing under the laws of the jurisdiction of its
incorporation, (ii) has the corporate power and authority to own its
property and assets and to transact the business in which it is engaged
and presently proposes to engage and (iii) is duly qualified and is
authorized to do business and is in good standing in each jurisdiction
where the conduct of its business requires such qualification except for
failures to be so qualified which, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
(b) Such Guarantor has the corporate power and authority to execute,
deliver and perform the terms and provisions of this Guaranty and each
other Credit Document to which it is a party and has taken all necessary
corporate action to authorize the execution, delivery and performance by
it of each such Credit Document. Such Guarantor has duly executed and
delivered this Guaranty and each other Credit Document to which it is a
party, and each such Credit Document constitutes the legal, valid and
binding obligation of such Guarantor enforceable in accordance with its
terms, except to the extent that the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at
law).
(c) Neither the execution, delivery or performance by such Guarantor
of this Guaranty or any other Credit Document to which it is a party, nor
compliance by it with the terms and provisions hereof and thereof, (i)
will materially contravene any provision of any applicable provision of
any law, statute, rule or regulation, or any order, writ, injunction or
decree of any court or governmental instrumentality, (ii) (A) will
conflict or be inconsistent with, or result in any breach of, any of the
terms, covenants, conditions or provisions of, or constitute a default
under, the Existing Notes Indenture or (B) will materially conflict with
or result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien (except
pursuant to the Security Documents) upon any of the property or assets of
such Guarantor or any of its Subsidiaries pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement, credit agreement, or
any other material agreement or other instrument to which such Guarantor
or any of its
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Subsidiaries is a party or by which it or any of its property or assets is
bound or to which it may be subject, except for such conflicts,
inconsistencies, breaches or defaults described in this clause (B) which,
either individually or in the aggregate, have not had, and could not
reasonably be expected to have, a Material Adverse Effect or (iii) will
violate any provision of the certificate of incorporation or by-laws (or
equivalent organizational documents) of such Guarantor or any of its
Subsidiaries.
(d) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as have
been obtained or made), or exemption by, any governmental or public body
or authority, or any subdivision thereof, is required to authorize, or is
required in connection with, (i) the execution, delivery and performance
of this Guaranty or any other Credit Document to which such Guarantor is a
party or (ii) the legality, validity, binding effect or enforceability of
this Guaranty or any other Credit Document to which such Guarantor is a
party.
(e) There are no actions, suits or proceedings (private or
governmental) pending or, to the best knowledge of such Guarantor,
threatened (i) with respect to any Credit Documents to which such
Guarantor is a party or (ii) with respect to such Guarantor that have had,
or could reasonably be expected to have, (a) a Material Adverse Effect or
(b) a material adverse effect on the rights or remedies of the Secured
Creditors or the ability of such Guarantor to perform its respective
obligations to the Secured Creditors hereunder and under the other Credit
Documents to which it is a party.
13. Each Guarantor covenants and agrees that on and after the date
hereof and until the termination of the Total Commitment and all Interest Rate
Protection Agreements or Other Hedging Agreements, when no Loan, no Note nor
Letter of Credit remains outstanding and neither the Xxxx Loan nor the Xxxx Note
remain outstanding and all Guaranteed Obligations have been paid in full, such
Guarantor shall take, or will refrain from taking, as the case may be, all
actions that are necessary to be taken or not taken so that no violation of any
provision, covenant or agreement contained in Section 8 or 9 of the Credit
Agreement, and so that no Default or Event of Default, is caused by the actions
of such Guarantor or any of its Subsidiaries.
14. The Guarantors hereby jointly and severally agree to pay all
reasonable out-of-pocket costs and expenses of each Secured Creditor in
connection with the enforcement of this Guaranty and any amendment, waiver or
consent relating hereto (including, without limitation, the reasonable fees and
disbursements of counsel (including in-house counsel) employed by any of the
Secured Creditors).
15. Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated except with the written consent of each
Guarantor directly affected thereby and either (x) the Required Lenders (or to
the extent required by Section 13.12 of the Credit Agreement, with the written
consent of each Lender) at all times prior to the time on
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which all Credit Document Obligations have been paid in full, (y) the holders of
at least a majority of the outstanding Xxxx Obligations at all times after the
time on which all Credit Document Obligations have been paid in full, or (z) the
holders of at least a majority of the outstanding Other Obligations at all times
after the time on which all Credit Document Obligations and all Xxxx Obligations
have been paid in full; PROVIDED, that any change, waiver, modification or
variance affecting the rights and benefits of a single Class (as defined below)
of Secured Creditors (and not all Secured Creditors in a like or similar manner)
shall require the written consent of the Requisite Creditors (as defined below)
of such Class of Secured Creditors (it being understood that the addition or
release of any Guarantor hereunder shall not constitute a change, waiver,
discharge or termination affecting any Guarantor other than the Guarantor so
added or released). For the purpose of this Guaranty the term "Class" shall mean
each class of Secured Creditors, I.E., whether (x) the Bank Creditors as holders
of the Credit Document Obligations, (y) the Xxxx Creditors as holders of the
Xxxx Obligations, or (z) the Other Creditors as the holders of the Other
Obligations. For the purpose of this Guaranty, the term "Requisite Creditors" of
any Class shall mean each of (x) with respect to the Credit Document
Obligations, the Required Lenders (or to the extent required by Section 13.12 of
the Credit Agreement, each Lender) and (y) with respect to the Other Obligations
or Xxxx Obligations, the holders of at least a majority of all Xxxx Obligations
or obligations outstanding from time to time under the Interest Rate Protection
Agreements or Other Hedging Agreements, as the case may be.
16. Each Guarantor acknowledges that an executed (or conformed) copy
of each of the Credit Documents, Interest Rate Protection Agreements or Other
Hedging Agreements and each document relating to the Xxxx Loan has been made
available to its principal executive officers and such officers are familiar
with the contents thereof.
17. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Creditor Law) and not by way of limitation of any such rights, upon
the occurrence and during the continuance of an Event of Default (such term to
mean and include any "Event of Default" as defined in the Credit Agreement or
any payment default under any Interest Rate Protection Agreement or Other
Hedging Agreement continuing after any applicable grace period), each Secured
Creditor is hereby authorized at any time or from time to time, without notice
to any Guarantor or to any other Person, any such notice being expressly waived,
to set off and to appropriate and apply any and all deposits (general or
special) and any other indebtedness at any time held or owing by such Secured
Creditor to or for the credit or the account of such Guarantor but in any event
excluding assets held in trust for any such Person, against and on account of
the obligations and liabilities of such Guarantor to such Secured Creditor under
this Guaranty, irrespective of whether or not such Secured Creditor shall have
made any demand hereunder and although said obligations, liabilities, deposits
or claims, or any of them, shall be contingent or unmatured. Each Secured
Creditor acknowledges and agrees that the provisions set forth in this Section
17 are subject to the sharing provisions set forth in Section 13.06 of the
Credit Agreement.
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18. All notices, requests, demands or other communications pursuant
hereto shall be deemed to have been duly given or made when delivered to the
Person to which such notice, request, demand or other communication is required
or permitted to be given or made under this Guaranty, addressed to such party at
(i) in the case of any Bank Creditor, as provided in the Credit Agreement, (ii)
in the case of any Guarantor, at its address set forth opposite its signature
below and (iii) in the case of any Other Creditor, at such address as such Other
Creditor shall have specified in writing to the Guarantor; or in any case at
such other address as any of the Persons listed above may hereafter notify the
others in writing.
19. If claim is ever made upon any Secured Creditor for repayment or
recovery of any amount or amounts received in payment or on account of any of
the Guaranteed Obligations and any of the aforesaid payees repays all or part of
said amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property
or (ii) any settlement or compromise of any such claim effected in good faith by
such payee with any such claimant (including the Borrower), then and in such
event each Guarantor agrees that any such judgment, decree, order, settlement or
compromise shall be binding upon such Guarantor, notwithstanding any revocation
hereof or other instrument evidencing any liability of the Borrower, and such
Guarantor shall be and remain liable to the aforesaid payees hereunder for the
amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.
20. (A) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE SECURED
CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. Any legal action or proceeding
with respect to this Guaranty or any other Credit Document to which any
Guarantor is a party may be brought in the courts of the State of New York or of
the United States of America for the Southern District of New York, and, by
execution and delivery of this Guaranty, each Guarantor hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Each Guarantor hereby
irrevocably designates, appoints and empowers CT Corporation System, with
offices on the date hereof at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its
designee, appointee and agent to receive, accept and acknowledge for and on its
behalf, and in respect of its property, service of any and all legal process,
summons, notices and documents which may be served in any such action or
proceeding. If for any reason such designee, appointee and agent shall cease to
be available to act as such, each Guarantor agrees to designate a new designee,
appointee and agent in the State of New York on the terms and for the purposes
of this provision satisfactory to the Administrative Agent. Each Guarantor
further irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to such Guarantor at
its address set forth opposite its signature below, such service to become
effective 30 days after such mailing. Nothing herein shall affect the right of
any of the
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Secured Creditors to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against each Guarantor in any
other jurisdiction.
(B) Each Guarantor hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Guaranty or any other
Credit Document to which such Guarantor is a party brought in the courts
referred to in clause (A) above and hereby further irrevocably waives and agrees
not to plead or claim in any such court that such action or proceeding brought
in any such court has been brought in an inconvenient forum.
(C) EACH GUARANTOR AND EACH SECURED CREDITOR (BY ITS ACCEPTANCE OF
THE BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH SUCH GUARANTOR IS A PARTY OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
21. In the event that all of the capital stock of one or more
Guarantors is sold or otherwise disposed of (except to the Borrower or any of
its Subsidiaries) or liquidated in compliance with the requirements of Section
9.02 of the Credit Agreement (or such sale or other disposition or liquidation
has been approved in writing by the Required Lenders) and the proceeds of such
sale, disposition or liquidation are applied in accordance with the provisions
of the Credit Agreement, and such guarantor is released or is concurrently being
released from its guaranty entered into in respect of the Senior Subordinated
Notes and the Additional Subordinated Debt, to the extent applicable, such
Guarantor shall be released from this Guaranty and this Guaranty shall, as to
each such Guarantor or Guarantors, terminate, and have no further force or
effect (it being understood and agreed that the sale of one or more Persons that
own, directly or indirectly, all of the capital stock or partnership interests
of any Guarantor shall be deemed to be a sale of such Guarantor for the purposes
of this Section 21).
22. To the extent that any Guarantor shall be required hereunder to
pay a portion of the Guaranteed Obligations which shall exceed the greater of
(i) the amount of the economic benefit actually received by such Guarantor from
the incurrence of the Loans and the issuance of Letters of Credit under the
Credit Agreement and the entering into of Interest Rate Protection Agreements or
Other Hedging Agreements and (ii) the amount which such Guarantor would
otherwise have paid if such Guarantor had paid the aggregate amount of the
Guaranteed Obligations (excluding the amount thereof repaid by the Borrower and
the other Guarantors) in the same proportion as such Guarantor's net worth at
the date enforcement hereunder is sought bears to the aggregate net worth of all
the Guarantors at the date enforcement hereunder is sought (the "Contribution
Percentage"), then such Guarantor shall have a right of contribution against
each other Guarantor who has made payments in respect of the Guaranteed
Obligations to and including the date enforcement hereunder is sought in an
aggregate amount less than such other Guarantor's Contribution Percentage of the
aggregate payments made to and including the date
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enforcement hereunder is sought by all Guarantors in respect of the Guaranteed
Obligations; PROVIDED, that no Guarantor may take any action to enforce such
right until the Guaranteed Obligations have been indefeasibly paid in full and
the Total Commitments, the Xxxx Note, all Letters of Credit and all Interest
Rate Protection Agreements and Other Hedging Agreements have been terminated, it
being expressly recognized and agreed by all parties hereto that any Guarantor's
right of contribution arising pursuant to this Section 22 against any other
Guarantor shall be expressly junior and subordinate to such other Guarantor's
obligations and liabilities in respect of the Guaranteed Obligations and any
other obligations owing under this Guaranty. All parties hereto recognize and
agree that, except for any right of contribution arising pursuant to this
Section 22, each Guarantor who makes any payment in respect of the Guaranteed
Obligations shall have no right of contribution or subrogation against any other
Guarantor in respect of such payment. Each of the Guarantors recognizes and
acknowledges that the rights to contribution arising hereunder shall constitute
an asset in favor of the party entitled to such contribution. In this
connection, each Guarantor has the right to waive its contribution right against
any Guarantor to the extent that after giving effect to such waiver such
Guarantor would remain solvent, in the determination of the Required Banks.
23. Each Guarantor hereby confirms that it is its intention that
this Guaranty not constitute a fraudulent transfer or conveyance for purposes of
the Bankruptcy Code, the Uniform Fraudulent Conveyance Act or any similar
Federal or state law. To effectuate the foregoing intention, each Guarantor
hereby irrevocably agrees that the Guaranteed Obligations guaranteed by such
Guarantor shall be limited to such maximum amount as will, after giving effect
to such maximum amount and all other (contingent or otherwise) liabilities of
such Guarantor that are relevant under such laws, and after giving effect to any
rights to contribution pursuant to any agreement providing for an equitable
contribution among such Guarantor and the other Guarantors, result in the
Guaranteed Obligations of such Guarantor in respect of such maximum amount not
constituting a fraudulent transfer or conveyance.
24. This Guaranty may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts executed by all
the parties hereto shall be lodged with the Borrower and the Administrative
Agent.
25. All payments made by any Guarantor hereunder will be made
without setoff, counterclaim or other defense, and on the same basis as payments
are made by the Borrower under Sections 4.03 and 4.04 of the Credit Agreement.
26. It is understood and agreed that any Subsidiary of the Borrower
that is required to execute a counterpart of this Guaranty after the date hereof
pursuant to the Credit Agreement shall automatically become a Guarantor
hereunder by executing a counterpart hereof and delivering the same to the
Administrative Agent.
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* * *
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
Address:
00000 Xxxx Xxxxxx XXX CARE HOLDINGS, INC.
Xxx Xxxxxxx, XX 00000 as a Guarantor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
00000 Xxxx Xxxxxx XXXXXXX XXXXXXXXXXX
Xxx Xxxxxxx, XX 00000 GROUP, INC., as a Guarantor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
00000 Xxxx Xxxxxx ECCA MANAGED VISION
Xxx Xxxxxxx, XX 00000 CARE, INC., as a Guarantor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
00000 Xxxx Xxxxxx XXXXXXXXXXX XXXXXXXX, XXX.,
Xxx Xxxxxxx, XX 00000 as a Guarantor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
218
00000 Xxxx Xxxxxx XXXXXXXXXXX, XXX.,
Xxx Xxxxxxx, XX 00000 as a Guarantor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
00000 Xxxx Xxxxxx XXXXXXXXXXX XXXXXXXXXX,
Xxx Xxxxxxx, XX 00000 INC., as a Guarantor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
00000 Xxxx Xxxxxx XXXXXXXXX XXXXXX
Xxx Xxxxxxx, XX 00000 MANAGEMENT, INC.,
Attention: Xxxxxxx X. Xxxxxxx as a Guarantor
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
-------------------------
Title: Treasurer
00000 Xxxx Xxxxxx VISIONARY PROPERTIES, INC.,
Xxx Xxxxxxx, XX 00000 as a Guarantor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
00000 Xxxx Xxxxxx XXXXXXXXX XXX, XXX.,
Xxx Xxxxxxx, XX 00000 as a Guarantor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
219
5568 General Washington Drive THE XXXXX GROUP, INC.,
Xxxxxxxxxx, XX 00000 as a Guarantor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
0000 Xxxxxxx Xxxxxxxxxx Xxxxx HOUR EYES, INC.,
Xxxxxxxxxx, XX 00000 as a Guarantor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
5568 General Washington Drive SKYLAB OPTICAL, INC.,
Xxxxxxxxxx, XX 00000 as a Guarantor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
0000 Xxxxxxx Xxxxxxxxxx Xxxxx XXXXXXXXXXXX XXXXXX
Xxxxxxxxxx, XX 00000 SERVICES, INC.,
Attention: Xxxxxxx X. Xxxxxxx as a Guarantor
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
220
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Administrative Agent and
Collateral Agent
By: /s/ Xxxxxxx XxXxxxxx
-------------------------
Title: Vice President
221
[CONFORMED AS EXECUTED]
EXHIBIT I
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of April 24, 1998 (as amended, modified
or supplemented from time to time, this "Agreement") made by each of the
undersigned (each a "Pledgor" and, together with any other entity that becomes a
party hereto pursuant to Section 23 hereof, the "Pledgors"), to BANKERS TRUST
COMPANY, as Collateral Agent (the "Pledgee"), for the benefit of the Secured
Creditors (as defined below). Except as otherwise defined herein, capitalized
terms used herein and defined in the Credit Agreement (as defined below) shall
be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, Eye Care Centers of America, Inc. (the "Borrower"), various
lending institutions from time to time party thereto (the "Lenders"), Bankers
Trust Company, as Administrative Agent (together with any successor
administrative agent, the "Administrative Agent"), and Xxxxxxx Xxxxx Capital
Corporation, as Syndication Agent (the "Syndication Agent") have entered into a
Credit Agreement, dated as of April 23, 1998 (the "Credit Agreement"), providing
for the making of Loans and the issuance of, and participation in, Letters of
Credit as contemplated therein and Bankers Trust Company, in its individual
capacity (together with its successors, participants and assigns, the "Xxxx
Creditors"), has made a loan in an aggregate principal amount of $1,000,000 to
Xx. Xxxxxx Xxxx (the "Xxxx Loan") pursuant to a Note, dated April 24, 1998 (the
"Xxxx Note") which Xxxx Loan and all obligations relating thereto have been
guaranteed by the Borrower pursuant to that certain Guaranty, dated as of April
24, 1998, executed by the Borrower (the "Xxxx Guaranty") (as used herein, the
terms "Credit Agreement", "Xxxx Note" and "Xxxx Guaranty" means the Credit
Agreement, Xxxx Note or Xxxx Guaranty, as the case may be, described above in
this paragraph, as the same may be amended, modified, extended, renewed,
replaced, restated or supplemented from time to time, and including any
agreement extending the maturity of, or restructuring the Indebtedness under
such agreement or any successor agreements) (the Lenders, the Administrative
Agent, the Syndication Agent, the Documentation Agent and the Pledgee are herein
called the "Bank Creditors");
WHEREAS, the Borrower may at any time and from time to time enter
into one or more Interest Rate Protection Agreements or Other Hedging Agreements
with one or more Lenders or any affiliate thereof (each such Lender or
affiliate, even if the respective Lender subsequently ceases to be a Lender
under the Credit Agreement for any reason, together with
222
such Lender's or affiliate's successors and assigns, if any, collectively, the
"Other Creditors," and together with the Bank Creditors and the Xxxx Creditors,
the "Secured Creditors");
WHEREAS, pursuant to the Subsidiaries Guaranty, each Subsidiary
Guarantor has jointly and severally guaranteed to the Secured Creditors the
payment when due of all Guaranteed Obligations as described therein;
WHEREAS, it is a condition to the making of Loans and the issuance
of Letters of Credit under the Credit Agreement and to the making of the Xxxx
Loan that each Pledgor shall have executed and delivered this Agreement; and
WHEREAS, each Pledgor will obtain benefits from the incurrence of
Loans and the issuance of Letters of Credit under the Credit Agreement, the
incurrence of the Xxxx Loan and the entering into of Interest Rate Protection
Agreements or Other Hedging Agreements and, accordingly, each Pledgor desires to
enter into this Agreement in order to satisfy the conditions described in the
preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Pledgor, the receipt and sufficiency of which are hereby
acknowledged, each Pledgor hereby makes the following representations and
warranties to the Pledgee for the benefit of the Secured Creditors and hereby
covenants and agrees with the Pledgee for the benefit of the Secured Creditors
as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each Pledgor
for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and liabilities
(including obligations which, but for the automatic stay under Section
362(a) of the Bankruptcy Code, would become due) of such Pledgor to the
Bank Creditors, whether now existing or hereafter incurred under, arising
out of, or in connection with the Credit Agreement and the other Credit
Documents to which such Pledgor is a party (including without limitation
(x) in the case of the Borrower, all such obligations and indebtedness of
the Borrower under the Credit Agreement and (y) in the case of each other
Pledgor, all such obligations and indebtedness under the Guaranty to which
such Pledgor is a party) and the due performance and compliance by such
Pledgor with all of the terms, conditions and agreements contained in the
Credit Agreement and such other Credit Documents (all such obligations and
liabilities under this clause (i), except to the extent consisting of
obligations or indebtedness with respect to Interest Rate Protection
Agreements or Other Hedging Agreements, being herein collectively called
the "Credit Document Obligations");
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(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and liabilities
(including obligations which, but for the automatic stay under Section
362(a) of the Bankruptcy Code, would become due) and liabilities of such
Pledgor to the Xxxx Creditors, whether now existing or hereafter incurred
under, arising out of or in connection with, the Xxxx Loan and the other
documents entered into by such Pledgor in connection therewith (including,
without limitation (x) in the case of the Borrower, all such obligations
and indebtedness of the Borrower under the Xxxx Guaranty and (y) in the
case of each other Pledgor, all obligations of such Pledgor under the
Guaranty to which such Pledgor is a party in respect of the Xxxx Loan (all
such obligations and liabilities under this clause (ii) being herein
collectively called the "Xxxx Obligations");
(iii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and liabilities
(including obligations which, but for the automatic stay under Section
362(a) of the Bankruptcy Code, would become due) owing by such Pledgor to
the Other Creditors under, or with respect to, any Interest Rate
Protection Agreement or Other Hedging Agreement, whether such Interest
Rate Protection Agreement or Other Hedging Agreement is now in existence
or hereafter arising, and the due performance and compliance by such
Pledgor with all of the terms, conditions and agreements contained therein
(all such obligations and liabilities described in this clause (iii) being
herein collectively called the "Other Obligations");
(iv) any and all sums advanced by the Pledgee in order to preserve
the Collateral (as hereinafter defined) or preserve its security interest
in the Collateral (to the extent provided for in the Credit Documents);
(v) in the event of any proceeding for the collection or enforcement
of any indebtedness, obligations, or liabilities of such Pledgor referred
to in clauses (i), (ii), (iii) and (iv) above, after an Event of Default
(as such term is defined in the Security Agreement) shall have occurred
and be continuing, the reasonable expenses of retaking, holding, preparing
for sale or lease, selling or otherwise disposing of or realizing on the
Collateral, or of any exercise by the Pledgee of its rights hereunder,
together with reasonable attorneys' fees and court costs; and
(vi) all amounts paid by any Secured Creditor as to which such
Secured Creditor has the right to reimbursement under Section 11 of this
Agreement.
All such obligations, liabilities, sums and expenses set forth in clauses (i)
through (vi) of this Section 1 being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
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2. DEFINITION OF STOCK, NOTES, SECURITIES, ETC. As used herein: (i)
the term "Stock" shall mean (x) with respect to corporations incorporated under
the laws of the United States or any State or territory thereof (each a
"Domestic Corporation"), all of the issued and outstanding shares of capital
stock of any Domestic Corporation at any time owned by each Pledgor and (y) with
respect to corporations not Domestic Corporations (each a "Foreign
Corporation"), all of the issued and outstanding shares of capital stock at any
time owned by any Pledgor of any Foreign Corporation, provided that, subject to
Section 8.12 of the Credit Agreement, such Pledgor shall not be required to
pledge hereunder, and nothing herein shall be deemed to constitute a pledge
hereunder of, more than 65% of the total combined voting power of all classes of
capital stock of any Foreign Corporation entitled to vote; (ii) the term "Notes"
shall mean all promissory notes from time to time issued to, or held by, each
Pledgor; and (iii) the term "Securities" shall mean all of the Stock and Notes.
Each Pledgor represents and warrants that on the date hereof (i) each Subsidiary
of such Pledgor, and the direct ownership thereof, is listed in Annex A hereto;
(ii) the Stock held by such Pledgor consists of the number and type of shares of
the stock of the corporations as described in Annex A hereto; (iii) such Stock
constitutes that percentage of the issued and outstanding capital stock of the
issuing corporation as is set forth in Annex A hereto; (iv) the Notes held by
such Pledgor consist of the promissory notes described in Annex B hereto where
such Pledgor is listed as the Lender; (v) such Pledgor is the holder of record
and sole beneficial owner of the Stock and the Notes held by such Pledgor and
there exist no options or preemption rights in respect of any of such Stock; and
(vi) on the date hereof, such Pledgor owns no other Securities.
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3. PLEDGE OF SECURITIES, ETC.
3.1. PLEDGE. To secure the Obligations of such Pledgor and for the
purposes set forth in Section 1 hereof, each Pledgor hereby (i) grants to the
Pledgee a security interest in all of the Collateral (as defined herein) owned
by such Pledgor, (ii) pledges and deposits as security with the Pledgee the
Securities owned by such Pledgor on the date hereof, and delivers to the Pledgee
certificates or instruments therefor, duly endorsed in blank by such Pledgor in
the case of Notes and accompanied by undated stock powers duly executed in blank
by such Pledgor (and accompanied by any transfer tax stamps required in
connection with the pledge of such Securities) in the case of Stock, or such
other instruments of transfer as are reasonably acceptable to the Pledgee and
(iii) assigns, transfers, hypothecates, mortgages, charges and sets over to the
Pledgee all of such Pledgor's right, title and interest in and to such
Securities (and in and to the certificates or instruments evidencing such
Securities), to be held by the Pledgee upon the terms and conditions set forth
in this Agreement.
3.2. SUBSEQUENTLY ACQUIRED SECURITIES. If any Pledgor shall acquire
(by purchase, stock dividend or otherwise) any additional Securities at any time
or from time to time after the date hereof, such Pledgor will promptly
thereafter pledge and deposit such Securities (or certificates or instruments
representing such Securities) as security with the Pledgee and deliver to the
Pledgee certificates or instruments therefor, duly endorsed in blank in the case
of such Notes, and accompanied by undated stock powers duly executed in blank by
such Pledgor (and accompanied by any transfer tax stamps required in connection
with the pledge of such Securities) in the case of such Stock, or such other
instruments of transfer as are reasonably acceptable to the Pledgee, and will
promptly thereafter deliver to the Pledgee a certificate executed by a principal
executive officer of such Pledgor describing such Securities and certifying that
the same has been duly pledged with the Pledgee hereunder. Subject to Section
8.12 of the Credit Agreement, no Pledgor shall be required at any time to pledge
hereunder any Stock which is more than 65% of the total combined voting power of
all classes of capital stock of any Foreign Subsidiary entitled to vote.
3.3. UNCERTIFICATED SECURITIES. Notwithstanding anything to the
contrary contained in Sections 3.1 and 3.2 hereof, if any Securities (whether
now owned or hereafter acquired) are uncertificated securities, the relevant
Pledgor shall promptly notify the Pledgee thereof, and shall promptly take all
actions required to perfect the security interest of the Pledgee under
applicable law (including, in any event, Article 8 of the New York Uniform
Commercial Code, if applicable). Each Pledgor further agrees to take such
actions as the Pledgee deems reasonably necessary or desirable to effect the
foregoing and to permit the Pledgee to exercise any of its rights and remedies
hereunder.
3.4. DEFINITIONS OF PLEDGED STOCK; PLEDGED NOTES; PLEDGED SECURITIES
AND COLLATERAL. All Stock at any time pledged or required to be pledged
hereunder is hereinafter called the "Pledged Stock;" all Notes at any time
pledged or required to be pledged hereunder are
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hereinafter called the "Pledged Notes;" all Pledged Stock and Pledged Notes
together are called the "Pledged Securities;" and the Pledged Securities,
together with all proceeds thereof, including any securities and moneys received
and at the time held by the Pledgee hereunder, are hereinafter called the
"Collateral."
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee shall
have the right to appoint one or more sub-agents for the purpose of retaining
physical possession of the Pledged Securities, which may be held (in the
discretion of the Pledgee) in the name of the relevant Pledgor, endorsed or
assigned in blank or in favor of the Pledgee or any nominee or nominees of the
Pledgee or a sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until there
shall have occurred and be continuing an Event of Default, each Pledgor shall be
entitled to exercise any and all voting and other consensual rights pertaining
to the Pledged Securities owned by it, and to give consents, waivers or
ratifications in respect thereof, PROVIDED, that no vote shall be cast or any
consent, waiver or ratification given or any action taken which would violate or
be inconsistent with any of the terms of this Agreement, the Credit Agreement,
any other Credit Document, the Xxxx Note or the Xxxx Guaranty, or any document
relating thereto or any Interest Rate Protection Agreement or Other Hedging
Agreement (collectively, the "Secured Debt Agreements"). All such rights of each
Pledgor to vote and to give consents, waivers and ratifications shall cease in
case an Event of Default has occurred and is continuing, and Section 7 hereof
shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there shall
have occurred and be continuing an Event of Default, all cash dividends and
distributions payable in respect of the Pledged Stock and all payments in
respect of the Pledged Notes shall be paid to the respective Pledgor. The
Pledgee shall be entitled to receive directly, and to retain as part of the
Collateral:
(i) all other or additional stock or other securities (other than
cash) paid or distributed by way of dividend or otherwise, as the case may
be, in respect of the Pledged Stock;
(ii) all other or additional stock or other securities paid or
distributed in respect of the Pledged Stock by way of stock-split,
spin-off, split-up, reclassification, combination of shares or similar
rearrangement; and
(iii) all other or additional stock or other securities or property
which may be paid in respect of the Collateral by reason of any
consolidation, merger, exchange of stock, conveyance of assets,
liquidation or similar corporate reorganization.
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Nothing contained in this Section 6 shall limit or restrict in any way the
Pledgee's right to receive proceeds of the Collateral in any form in accordance
with Section 3 of this Agreement. All dividends, distributions or other payments
which are received by any Pledgor contrary to the provisions of this Section 6
and Section 7 hereof shall be received in trust for the benefit of the Pledgee,
shall be segregated from other property or funds of such Pledgor and shall be
promptly paid over to the Pledgee as Collateral in the same form as so received
(with any necessary endorsement).
7. REMEDIES IN CASE OF EVENTS OF DEFAULT. If there shall have
occurred and be continuing an Event of Default, then and in every such case, the
Pledgee shall be entitled to (i) exercise all of the rights, powers and remedies
(whether vested in it by this Agreement, any other Secured Debt Agreement or by
law) for the protection and enforcement of its rights in respect of the
Collateral, (ii) exercise all the rights and remedies of a secured party under
the Uniform Commercial Code and (iii) without limitation, exercise the following
rights, which each Pledgor hereby agrees to be commercially reasonable:
(a) to receive all amounts payable in respect of the Collateral
otherwise payable under Section 6 hereof to the Pledgor;
(b) to transfer all or any part of the Collateral into the Pledgee's
name or the name of its nominee or nominees;
(c) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other action to collect upon any
Pledged Note (including, without limitation, to make any demand for
payment thereon);
(d) to vote all or any part of the Pledged Stock (whether or not
transferred into the name of the Pledgee) and give all consents, waivers
and ratifications in respect of the Collateral and otherwise act with
respect thereto as though it were the outright owner thereof (each Pledgor
hereby irrevocably constituting and appointing the Pledgee the proxy and
attorney-in-fact of such Pledgor, with full power of substitution to do
so); and
(e) at any time and from time to time to sell, assign and deliver,
or grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the time
or place of sale or adjournment thereof or to redeem or otherwise (all of
which are hereby waived by each Pledgor), for cash, on credit or for other
property, for immediate or future delivery without any assumption of
credit risk, and for such price or prices and on such terms as the Pledgee
in its absolute discretion may determine, PROVIDED that at least 10 days'
prior notice of the time and place of any such sale shall be given to such
Pledgor. The Pledgee shall not be obligated to make any such sale of
Collateral regardless of whether any such notice of sale has theretofore
been given. Each Pledgor hereby waives and releases to the fullest extent
permitted by law any right or equity of redemption with respect to the
Collateral, whether before or after sale
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hereunder, and all rights, if any, of marshalling the Collateral and any
other security for the Obligations or otherwise. At any such sale, unless
prohibited by applicable law, the Pledgee on behalf of the Secured
Creditors may bid for and purchase all or any part of the Collateral so
sold free from any such right or equity of redemption. Neither the Pledgee
nor any other Secured Creditor shall be liable for failure to collect or
realize upon any or all of the Collateral or for any delay in so doing nor
shall any of them be under any obligation to take any action whatsoever
with regard thereto.
8. REMEDIES, ETC., CUMULATIVE. Each and every right, power and
remedy of the Pledgee provided for in this Agreement or any other Secured Debt
Agreement, or now or hereafter existing at law or in equity or by statute shall
be cumulative and concurrent and shall be in addition to every other such right,
power or remedy. The exercise or beginning of the exercise by the Pledgee or any
other Secured Creditor of any one or more of the rights, powers or remedies
provided for in this Agreement or any other Secured Debt Agreement or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the Pledgee or any other Secured
Creditor of all such other rights, powers or remedies, and no failure or delay
on the part of the Pledgee or any other Secured Creditor to exercise any such
right, power or remedy shall operate as a waiver thereof. No notice to or demand
on any Pledgor in any case shall entitle it to any other or further notice or
demand in similar or other circumstances or constitute a waiver of any of the
rights of the Pledgee or any other Secured Creditor to any other or further
action in any circumstances without notice or demand. The Secured Creditors
agree that this Agreement may be enforced only by the action of the Pledgee
acting upon the instructions of the Required Lenders (or, after the date on
which all Credit Document Obligations have been paid in full, the holders of at
least the majority of the outstanding Xxxx Obligations, or after the date on
which all Credit Document Obligations and all Xxxx Obligations have been paid in
full, the holders of at least the majority of the outstanding Other Obligations)
and that no other Secured Creditor shall have any right individually to seek to
enforce or to enforce this Agreement or to realize upon the security to be
granted hereby, it being understood and agreed that such rights and remedies may
be exercised by the Pledgee or the holders of at least a majority of the
outstanding Xxxx Obligation or Other Obligations, as the case may be, for the
benefit of the Secured Creditors upon the terms of this Agreement.
9. APPLICATION OF PROCEEDS. (a) All moneys collected by the Pledgee
upon any sale or other disposition of the Collateral, together with all other
moneys received by the Pledgee hereunder, shall be applied to the payment of the
Obligations in the manner provided in Section 7.4 of the Security Agreement.
(b) It is understood and agreed that the Pledgors shall remain
jointly and severally liable to the extent of any deficiency between the amount
of the proceeds of the Collateral hereunder and the aggregate amount of the
Obligations.
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10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the
Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
11. INDEMNITY. Each Pledgor jointly and severally agrees (i) to
indemnify and hold harmless the Pledgee in such capacity and each other Secured
Creditor and their respective successors, assigns, employees, agents and
servants (individually an "Indemnitee," and collectively the "Indemnitees") from
and against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever kind or nature, and (ii) to
reimburse each Indemnitee for all costs and expenses, including reasonable
attorneys' fees, in each case growing out of or resulting from this Agreement or
the exercise by any Indemnitee of any right or remedy granted to it hereunder or
under any other Secured Debt Agreement (but excluding any claims, demands,
losses, judgments and liabilities or expenses to the extent incurred by reason
of gross negligence or willful misconduct of such Indemnitee). In no event shall
the Pledgee be liable, in the absence of gross negligence or willful misconduct
on its part, for any matter or thing in connection with this Agreement other
than to account for moneys actually received by it in accordance with the terms
hereof. If and to the extent that the obligations of any Pledgor under this
Section 11 are unenforceable for any reason, such Pledgor hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable law.
12. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor agrees
that it will join with the Pledgee in executing and, at such Pledgor's own
expense, file and refile under the Uniform Commercial Code or other applicable
law such financing statements, continuation statements and other documents in
such offices as the Pledgee may deem necessary and wherever required by law in
order to perfect and preserve the Pledgee's security interest in the Collateral
and hereby authorizes the Pledgee to file financing statements and amendments
thereto relative to all or any part of the Collateral without the signature of
such Pledgor where permitted by law, and agrees to do such further acts and
things and to execute and deliver to the Pledgee such additional conveyances,
assignments, agreements and instruments as the Pledgee may reasonably require or
deem necessary to carry into effect the purposes of this Agreement or to further
assure and confirm unto the Pledgee its rights, powers and remedies hereunder.
(b) Each Pledgor hereby appoints the Pledgee such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, from time to time after the occurrence
and during the continuance of an Event of Default, in the Pledgee's discretion
to take any action and to execute any instrument which the Pledgee may deem
necessary or advisable to carry out the provisions of this Agreement.
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13. THE PLEDGEE AS AGENT. The Pledgee will hold in accordance with
this Agreement all items of the Collateral at any time received under this
Agreement. It is expressly understood and agreed by each Secured Creditor that
by accepting the benefits of this Agreement each such Secured Creditor
acknowledges and agrees that the obligations of the Pledgee as holder of the
Collateral and interests therein and with respect to the disposition thereof,
and otherwise under this Agreement, are only those expressly set forth in this
Agreement. The Pledgee shall act hereunder on the terms and conditions set forth
herein and in Section 12 of the Credit Agreement.
14. TRANSFER BY THE PLEDGORS. No Pledgor will sell or otherwise
dispose of, grant any option with respect to, or mortgage, pledge or otherwise
encumber any of the Collateral or any interest therein (except as may be
permitted in accordance with the terms of the Credit Agreement).
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS. Each
Pledgor represents, warrants and covenants that (i) it is the legal, record and
beneficial owner of, and has good and marketable title to, all Pledged
Securities pledged by it hereunder, subject to no Lien (except the Lien created
by this Agreement and other Permitted Liens); (ii) it has full corporate power,
authority and legal right to pledge all the Pledged Securities pledged by it
pursuant to this Agreement; (iii) this Agreement has been duly authorized,
executed and delivered by such Pledgor and constitutes a legal, valid and
binding obligation of such Pledgor enforceable in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law); (iv) no
consent of any other party (including, without limitation, any stockholder or
creditor of such Pledgor or any of its Subsidiaries) and no consent, license,
permit, approval or authorization of, exemption by, notice or report to, or
registration, filing or declaration with (except as have been obtained or made),
any governmental authority is required to be obtained by such Pledgor in
connection with the execution, delivery or performance of this Agreement, the
validity or enforceability of this Agreement, the perfection or enforceability
of the Pledgee's security interest in the Collateral or except for compliance
with or as may be required by applicable securities laws, the exercise by the
Pledgee of any of its rights or remedies provided herein; (v) the execution,
delivery and performance of this Agreement by such Pledgor will not violate any
provision of any applicable law or regulation or of any order, judgment, writ,
award or decree of any court, arbitrator or governmental authority, domestic or
foreign, applicable to such Pledgor, or of the certificate of incorporation or
by-laws (or equivalent organizational documents) of such Pledgor or of any
securities issued by such Pledgor or any of its Subsidiaries, or of any
mortgage, indenture, lease, deed of trust, loan agreement, credit agreement or
other material agreement, contract, or instrument to which such Pledgor or any
of its Subsidiaries is a party or which purports to be binding upon such Pledgor
or any of its Subsidiaries or upon any of their respective assets and
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will not result in the creation or imposition of (or the obligation to create or
impose) any lien or encumbrance on any of the assets of such Pledgor or any of
its Subsidiaries except as contemplated by this Agreement; (vi) all the shares
of Stock have been duly and validly issued, are fully paid and non-assessable
and were not issued subject to any options to purchase, preemptive or similar
rights and, in the case of all such capital stock other than the Borrower
Preferred Stock, do not contain preemptive rights; (vii) each of the Pledged
Notes constitutes, or when executed by the obligor thereof will constitute, the
legal, valid and binding obligation of such obligor, enforceable in accordance
with its terms, except to the extent that the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law);
and (viii) the pledge, assignment and delivery to the Pledgee of the Securities
(other than uncertificated securities) pursuant to this Agreement creates a
valid and perfected first priority Lien in the Securities, and the proceeds
thereof, subject to no other Lien or to any agreement purporting to grant to any
third party a Lien on the property or assets of the Pledgor which would include
the Securities. Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Securities and the
proceeds thereof against the claims and demands of all persons whomsoever in
accordance with the Credit Documents; and such Pledgor covenants and agrees that
it will have like title to and right to pledge any other property at any time
hereafter pledged to the Pledgee as Collateral hereunder and will likewise
defend the right thereto and security interest therein of the Pledgee and the
Secured Creditors.
16. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of each
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (i) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from any Secured Debt Agreement or any other instrument or agreement referred to
therein, or any assignment or transfer of any thereof; (ii) any waiver, consent,
extension, indulgence or other action or inaction under or in respect of any
such agreement or instrument including, without limitation, this Agreement;
(iii) any furnishing of any additional security to the Pledgee or its assignee
or any acceptance thereof or any release of any security by the Pledgee or its
assignee; (iv) any limitation on any party's liability or obligations under any
such instrument or agreement or any invalidity or unenforceability, in whole or
in part, of any such instrument or agreement or any term thereof; or (v) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Pledgor or any Subsidiary
of any Pledgor, or any action taken with respect to this Agreement by any
trustee or receiver, or by any court, in any such proceeding, whether or not
such Pledgor shall have notice or knowledge of any of the foregoing.
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17. REGISTRATION, ETC. (a) If there shall have occurred and be
continuing an Event of Default then, and in every such case, upon receipt by any
Pledgor from the Pledgee of a written request or requests that such Pledgor
cause any registration, qualification or compliance under any Federal or state
securities law or laws to be effected with respect to all or any part of the
Pledged Stock, such Pledgor as soon as practicable and at its expense will cause
such registration to be effected (and be kept effective) and will cause such
qualification and compliance to be declared effected (and be kept effective) as
may be so requested and as would permit or facilitate the sale and distribution
of such Pledged Stock, including, without limitation, registration under the
Securities Act of 1933, as then in effect (or any similar statute then in
effect), appropriate qualifications under applicable blue sky or other state
securities laws and appropriate compliance with any other government
requirements, PROVIDED, that the Pledgee shall furnish to such Pledgor such
information regarding the Pledgee as such Pledgor may reasonably request in
writing and as shall be required in connection with any such registration,
qualification or compliance. Such Pledgor will cause the Pledgee to be kept
advised in writing as to the progress of each such registration, qualification
or compliance and as to the completion thereof, will furnish to the Pledgee such
number of prospectuses, offering circulars or other documents incident thereto
as the Pledgee from time to time may reasonably request, and will indemnify the
Pledgee, each other Secured Creditor and all others participating in the
distribution of such Pledged Stock against all claims, losses, damages and
liabilities caused by any untrue statement (or alleged untrue statement) of a
material fact contained therein (or in any related registration statement,
notification or the like) or by any omission (or alleged omission) to state
therein (or in any related registration statement, notification or the like) a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same may have been caused by an
untrue statement or omission based upon information furnished in writing (or
failed to be furnished) to such Pledgor by the Pledgee or such other Secured
Creditor expressly for use therein.
(b) If at any time when the Pledgee shall determine to
exercise its right to sell all or any part of the Pledged Securities pursuant to
Section 7 hereof, and such Pledged Securities or the part thereof to be sold
shall not, for any reason whatsoever, be effectively registered under the
Securities Act of 1933, as then in effect, the Pledgee may, in its sole and
absolute discretion, sell such Pledged Securities or part thereof by private
sale in such manner and under such circumstances as the Pledgee may deem
necessary or advisable in order that such sale may legally be effected without
such registration. Without limiting the generality of the foregoing, in any such
event the Pledgee, in its sole and absolute discretion (i) may proceed to make
such private sale notwithstanding that a registration statement for the purpose
of registering such Pledged Securities or part thereof shall have been filed
under such Securities Act, (ii) may approach and negotiate with a single
possible purchaser to effect such sale, and (iii) may restrict such sale to a
purchaser who will represent and agree that such purchaser is purchasing for its
own account, for investment, and not with a view to the distribution or sale of
such Pledged Securities or part thereof. In the event of any such sale, the
Pledgee shall incur no responsibility
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or liability for selling all or any part of the Pledged Securities at a price
which the Pledgee, in its sole and absolute discretion, in good xxxxx xxxxx
reasonable under the circumstances, notwithstanding the possibility that a
substantially higher price might be realized if the sale were deferred until
after registration as aforesaid.
18. TERMINATION; RELEASE. (a) After the Termination Date (as defined
below), this Agreement and the security interest created hereby shall terminate
(provided that all indemnities set forth herein including, without limitation,
in Section 11 hereof shall survive any such termination), and the Pledgee, at
the request and expense of any Pledgor, will execute and deliver to such Pledgor
a proper instrument or instruments acknowledging the satisfaction and
termination of this Agreement, and will duly assign, transfer and deliver to
such Pledgor (without recourse and without any representation or warranty) such
of the Collateral as has not theretofore been sold or otherwise applied or
released pursuant to this Agreement, together with any moneys at the time held
by the Pledgee or any of its sub-agents hereunder. As used in this Agreement,
"Termination Date" shall mean the date upon which the Total Commitment and all
Interest Rate Protection Agreements or Other Hedging Agreements have been
terminated, no Note under the Credit Agreement is outstanding (and all Loans
have been repaid in full), the Xxxx Loan has been repaid in full, all Letters of
Credit have been terminated and all Obligations then owing have been paid in
full.
(b) In the event that any part of the Collateral is sold or
otherwise disposed of (except to the Borrower or any of its Subsidiaries) in
connection with a sale permitted by Section 9.02 of the Credit Agreement or
otherwise released pursuant to the Credit Agreement or at the direction of the
Required Lenders (or all Lenders if required by Section 13.12 of the Credit
Agreement) and the proceeds of such sale or sales or from such release are
applied in accordance with the provisions of Section 4.02 of the Credit
Agreement, to the extent required to be so applied, the Pledgee, at the request
and expense of any Pledgor, will duly assign, transfer and deliver to such
Pledgor (without recourse and without any representation or warranty) such of
the Collateral (and releases therefor) as is then being (or has been) so sold or
released and has not theretofore been released pursuant to this Agreement.
(c) At any time that a Pledgor desires that the Pledgee assign,
transfer and deliver Collateral (and releases therefor) as provided in Section
18(a) or (b) hereof, it shall deliver to the Pledgee a certificate signed by an
executive officer of such Pledgor stating that the release of the respective
Collateral is permitted pursuant to such Section 18(a) or (b).
(d) The Pledgee shall have no liability whatsoever to any other
Secured Creditor as the result of any release of Collateral by it in accordance
with this Section 18.
19. NOTICES, ETC. All notices and communications hereunder shall be
sent or delivered by mail, telex, telecopy or overnight courier service and all
such notices and communications shall, when mailed, telexed, telecopied or sent
by overnight courier, be effective
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234
when deposited in the mails or delivered to the overnight courier, prepaid and
properly addressed for delivery on such or the next Business Day, or sent by
telex or telecopier, except that notices and communications to the Pledgee shall
not be effective until received by the Pledgee. All notices and other
communications shall be in writing and addressed as follows:
(a) if to any Pledgor, at the address set forth opposite its
signature below;
(b) if to the Pledgee, at:
Bankers Trust Company
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxx Xxxxx
(c) if to any Bank Creditor, either (x) to the Administrative Agent,
at the address of the Administrative Agent specified in the Credit
Agreement or (y) at such address as such Bank Creditor shall have
specified in the Credit Agreement;
(d) if to any Xxxx Creditor, (a) at such address as such Xxxx
Creditor shall have specified in writing to the Pledgors and the Pledgee,
and (b) in the case of Bankers Trust Company, at:
Bankers Trust Company
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
(e) if to any Other Creditor, at such address as such Other Creditor
shall have specified in writing to the Pledgors and the Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
20. WAIVER; AMENDMENT. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by each Pledgor directly affected thereby and the
Pledgee (with the written consent of either (x) the Required Lenders (or all of
the Lenders, to the extent required by Section 13.12 of the Credit Agreement) at
all times prior to the time on which all Credit Document Obligations have been
paid in full, (y) the holders at least a majority of the
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235
outstanding Xxxx Obligations at all time after the time on which all Credit
Document Obligations have been paid in full, or (z) the holders of at least a
majority of the outstanding Other Obligations at all times after the time on
which all Credit Document Obligations and Xxxx Obligations have been paid in
full); PROVIDED, that any change, waiver, modification or variance affecting the
rights and benefits of a single Class (as defined below) of Secured Creditors
(and not all Secured Creditors in a like or similar manner) shall also require
the written consent of the Requisite Creditors (as defined below) of such
affected Class. For the purpose of this Agreement, the term "Class" shall mean
each class of Secured Creditors, I.E., whether (i) the Bank Creditors as holders
of the Credit Document Obligations, (ii) Xxxx Creditors as holders of the Xxxx
Obligations, or (iii) the Other Creditors as the holders of the Other
Obligations. For the purpose of this Agreement, the term "Requisite Creditors"
of any Class shall mean each of (i) with respect to the Credit Document
Obligations, the Required Lenders (ii) with respect to Xxxx Obligations, the
holders of at least 51% of all Xxxx Obligation from time to time outstanding,
and (iii) with respect to the Other Obligations, the holders of 51% of all
obligations outstanding from time to time under the Interest Rate Protection
Agreements or Other Hedging Agreements.
21. MISCELLANEOUS. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of and be enforceable by each of the parties hereto and its successors
and assigns. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH
AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. The headings in this Agreement
are for purposes of reference only and shall not limit or define the meaning
hereof. This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which shall constitute one instrument. In
the event that any provision of this Agreement shall prove to be invalid or
unenforceable, such provision shall be deemed to be severable from the other
provisions of this Agreement which shall remain binding on all parties hereto.
22. RECOURSE. This Agreement is made with full recourse to the
Pledgors and pursuant to and upon all the representations, warranties, covenants
and agreements on the part of the Pledgors contained herein and in the other
Secured Debt Agreement and otherwise in writing in connection herewith or
therewith.
23. ADDITIONAL PLEDGORS. Any Subsidiary of the Borrower established
or created after the date hereof and that is required to execute a counterpart
of this Agreement pursuant to the Credit Agreement shall automatically become a
Pledgor hereunder by executing a counterpart hereof and delivering the same to
the Pledgee.
***
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IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
Address: EYE CARE CENTERS OF
AMERICA, INC.,
00000 Xxxx Xxxxxx as a Pledgor
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
By: /s/ Xxxx Xxxxxxx
-------------------------
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000 Title: Treasurer
00000 Xxxx Xxxxxx XXX CARE HOLDINGS, INC.
Xxx Xxxxxxx, XX 00000 as a Pledgor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
00000 Xxxx Xxxxxx XXXXXXX XXXXXXXXXXX
Xxx Xxxxxxx, XX 00000 GROUP, INC., as a Pledgor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
00000 Xxxx Xxxxxx ECCA MANAGED VISION
Xxx Xxxxxxx, XX 00000 CARE, INC., as a Pledgor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
237
11103 West Avenue VISIONWORKS HOLDINGS, INC.,
Xxx Xxxxxxx, XX 00000 as a Pledgor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
00000 Xxxx Xxxxxx XXXXXXXXXXX, XXX.,
Xxx Xxxxxxx, XX 00000 as a Pledgor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
00000 Xxxx Xxxxxx VISIONWORKS PROPERTIES, INC.,
Xxx Xxxxxxx, XX 00000 as a Pledgor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
00000 Xxxx Xxxxxx XXXXXXXXX XXXXXX
Xxx Xxxxxxx, XX 00000 MANAGEMENT, INC.,
Attention: Xxxxxxx X. Xxxxxxx as a Pledgor
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
-------------------------
Title: Treasurer
238
00000 Xxxx Xxxxxx VISIONARY PROPERTIES, INC.,
Xxx Xxxxxxx, XX 00000 as a Pledgor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
00000 Xxxx Xxxxxx XXXXXXXXX XXX, XXX.,
Xxx Xxxxxxx, XX 00000 as a Pledgor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
0000 Xxxxxxx Xxxxxxxxxx Xxxxx THE XXXXX GROUP, INC.,
Xxxxxxxxxx, XX 00000 as a Pledgor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
0000 Xxxxxxx Xxxxxxxxxx Xxxxx HOUR EYES, INC.,
Xxxxxxxxxx, XX 00000 as a Pledgor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
239
5568 General Washington Drive SKYLAB OPTICAL, INC.,
Xxxxxxxxxx, XX 00000 as a Pledgor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
0000 Xxxxxxx Xxxxxxxxxx Xxxxx XXXXXXXXXXXX XXXXXX
Xxxxxxxxxx, XX 00000 SERVICES, INC.,
Attention: Xxxxxxx X. Xxxxxxx as a Pledgor
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
BANKERS TRUST COMPANY,
as Pledgee
By: /s/ Xxxxxxx XxXxxxxx
-------------------------
Title: Vice President
240
ANNEX A
to
PLEDGE
AGREEMENT
LIST OF STOCK
I. Eye Care Centers of America, Inc.
Percentage of
Outstanding
Name of Issuing Number of Shares of
Corporation Type Of Shares Shares Capital Stock
----------- -------------- ------ -------------
II. NAME OF PLEDGOR
Percentage of
Outstanding
Name of Issuing Number of Shares of
Corporation Type Of Shares Shares Capital Stock
----------- -------------- ------ -------------
241
ANNEX B
to
PLEDGE
AGREEMENT
LIST OF NOTES
I. EYE CARE CENTERS OF AMERICA, INC.
Principal Amount Maturity Date
Obligor (if any) (if any)
------- -------- --------
II. NAME OF PLEDGOR
Principal Amount Maturity Date
Obligor (if any) (if any)
------- -------- --------
242
[CONFORMED AS EXECUTED]
EXHIBIT J
================================================================================
SECURITY AGREEMENT
among
EYE CARE CENTERS OF AMERICA, INC.
CERTAIN SUBSIDIARIES OF
EYE CARE CENTERS OF AMERICA, INC.,
and
BANKERS TRUST COMPANY,
as Collateral Agent
243
================================================================================
Dated as of April 24, 1998
================================================================================
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244
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of April 24, 1998 among each of the
undersigned (each an "Assignor" and, together with any other entity that becomes
a party hereto pursuant to Section 10.13 hereof, the "Assignors") and Bankers
Trust Company, as Collateral Agent (the "Collateral Agent"), for the benefit of
the Secured Creditors (as defined below). Except as otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement (as defined
below) shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, Eye Care Centers of America, Inc. (the "Borrower"), various
lending institutions from time to time party thereto (the "Lenders"), Bankers
Trust Company, as Administrative Agent (together with any successor
administrative agent, the "Administrative Agent"), and Xxxxxxx Xxxxx Capital
Corporation, as Syndication Agent (the "Syndication Agent") have entered into a
Credit Agreement, dated as of April 23, 1998 (the "Credit Agreement"), providing
for the making of Loans and the issuance of, and participation in, Letters of
Credit, as contemplated therein and Bankers Trust Company, in its individual
capacity (together with its successors, assigns and participants, the "Xxxx
Creditors"), has made a loan in an aggregate principal amount of $1,000,000 to
Xx. Xxxxxx Xxxx (the "Xxxx Loan") pursuant to a Note, dated April 24, 1998 (the
"Xxxx Note") which Xxxx Loan and all obligations relating thereto have been
guaranteed by the Borrower pursuant to that certain Guaranty, dated as of April
24, 1998, executed by the Borrower (the "Xxxx Guaranty") (as used herein, the
terms "Credit Agreement", "Xxxx Note" and "Xxxx Guaranty" means the Credit
Agreement, Xxxx Note and Xxxx Guaranty, as the case may be, described above in
this paragraph as the same may be amended, modified, extended, renewed,
replaced, restated or supplemented from time to time, and including any
agreement extending the maturity of, or restructuring the Indebtedness under
such agreement or any successor agreement) (the Lenders, the Administrative
Agent, the Syndication Agent, the Documentation Agent and the Collateral Agent
are herein called the "Bank Creditors");
WHEREAS, the Borrower may at any time and from time to time enter
into one or more Interest Rate Protection Agreements or Other Hedging Agreements
with one or more Lenders or any affiliate thereof (each such Lender or
affiliate, even if the respective Lender subsequently ceases to be a Lender
under the Credit Agreement for any reason, together with such Lender's or
affiliate's successors and assigns, if any, collectively, the "Other Creditors,"
and together with the Bank Creditors and the Xxxx Creditors, the "Secured
Creditors");
WHEREAS, pursuant to the Subsidiaries Guaranty, each Subsidiary
Guarantor has jointly and severally guaranteed to the Secured Creditors the
payment when due of all Guaranteed Obligations as described therein;
245
WHEREAS, it is a condition precedent to the making of Loans and the
issuance of Letters of Credit under the Credit Agreement and to the making of
the Xxxx Loan that each Assignor shall have executed and delivered this
Agreement; and
WHEREAS, each Assignor will obtain benefits from the incurrence of
Loans and the issuance of Letters of Credit under the Credit Agreement, the
incurrence of the Xxxx Loan and the entering into of Interest Rate Protection
Agreements or Other Hedging Agreements and, accordingly, each Assignor desires
to execute this Agreement to satisfy the conditions described in the preceding
paragraph;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Assignor, the receipt and sufficiency of which are hereby
acknowledged, each Assignor hereby makes the following representations and
warranties to the Collateral Agent for the benefit of the Secured Creditors and
hereby covenants and agrees with the Collateral Agent for the benefit of the
Secured Creditors as follows:
ARTICLE I
SECURITY INTERESTS
1.1. GRANT OF SECURITY INTERESTS. (a) As security for the prompt and
complete payment and performance when due of all of its Obligations, each
Assignor does hereby assign and transfer unto the Collateral Agent, and does
hereby pledge and grant to the Collateral Agent for the benefit of the Secured
Creditors, a continuing security interest of first priority (subject only to
Permitted Liens (i) existing on the date hereof or (ii) otherwise having
priority under applicable law) in all of the right, title and interest of such
Assignor in, to and under all of the following, whether now existing or
hereafter from time to time acquired: (i) each and every Receivable, (ii) all
Contracts, together with all Contract Rights arising thereunder, (iii) all
Inventory, (iv) all Equipment, (v) all Marks, together with the registrations
and right to all renewals thereof, and the goodwill of the business of such
Assignor symbolized by the Marks, (vi) all Patents and Copyrights, and all
reissues, renewals or extensions thereof, (vii) all computer programs of such
Assignor and all intel lectual property rights therein and all other proprietary
information of such Assignor, including, but not limited to, trade secrets,
(viii) all other Goods, General Intangibles, Chattel Paper, Documents,
Instruments and other assets of such Assignor, (ix) the Cash Collateral Account
and all moneys, securities and Instruments deposited or required to be deposited
in such Cash Collateral Account and (x) all Proceeds and products of any and all
of the foregoing (all of the above, collectively, the "Collateral").
(b) The security interest of the Collateral Agent under this
Agreement extends to all Collateral of the kind which is the subject of this
Agreement which any Assignor may acquire at any time during the continuation of
this Agreement.
1.2. POWER OF ATTORNEY. Each Assignor hereby constitutes and
appoints the Collateral Agent its true and lawful attorney, irrevocably, with
full power after the occurrence of and during the continuance of an Event of
Default (in the name of such Assignor or otherwise) to act, require,
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246
demand, receive, compound and give acquittance for any and all moneys and claims
for moneys due or to become due to such Assignor under or arising out of the
Collateral, to endorse any checks or other instruments or orders in connection
therewith and to file any claims or take any action or institute any proceedings
which the Collateral Agent may deem to be necessary or advisable to protect the
interests of the Secured Creditors, which appointment as attorney is coupled
with an interest.
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which
representations, warranties and covenants shall survive execution and delivery
of this Agreement, as follows:
2.1. NECESSARY FILINGS. All filings, registrations and recordings in
any jurisdiction (other than filings or recordings in respect of vehicles for
which a filing under the UCC will fail to perfect a security interest) necessary
or appropriate to create, preserve and perfect the security interest granted by
such Assignor to the Collateral Agent hereby in respect of the Collateral have
been accomplished and the security interest granted to the Collateral Agent
pursuant to this Agreement in and to the Collateral creates a perfected security
interest therein prior to the rights of all other Persons therein (subject only
to Permitted Liens (i) existing on the date hereof or (ii) otherwise having
priority under applicable law) and is entitled to all the rights, priorities and
benefits afforded by the Uniform Commercial Code or other relevant law as
enacted in any relevant jurisdiction in the United States to perfected security
interests, in each case to the extent that the Collateral consists of the type
of property in which a security interest may be perfected by filing a financing
statement under the Uniform Commercial Code as enacted in any relevant
jurisdiction in the United States or in the United States Patent and Trademark
Office or the United States Copyright Office.
2.2. NO LIENS. Such Assignor is, and as to Collateral acquired by it
from time to time after the date hereof such Assignor will be, the owner of, or
has rights in, all Collateral free from any Lien, security interest, encumbrance
or other right, title or interest of any other Person (other than Permitted
Liens), and such Assignor shall defend the Collateral to the extent of its
rights therein against all claims and demands of all Persons at any time
claiming the same or any interest therein adverse to the Collateral Agent.
2.3. OTHER FINANCING STATEMENTS. As of the date hereof, there is no
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) covering or purporting to cover any interest of any
kind in the Collateral (other than in respect of Permitted Liens), and so long
as the Total Commitment has not been terminated or any Letter of Credit or Note
remains outstanding or any of the Obligations remain unpaid or any Interest Rate
Protection Agreement or Other Hedging Agreement remains in effect or any
Obligations are owed with respect thereto, such Assignor will not execute or
authorize to be filed in any public office any financing statement (or similar
statement or instrument of registration under the law of any jurisdiction) or
statements relating to the Collateral, except financing statements filed or to
be filed
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247
in respect of and covering the security interests granted hereby by such
Assignor or as permitted by the Credit Agreement.
2.4. CHIEF EXECUTIVE OFFICE; RECORDS. The chief executive office of
such Assignor is located, as of the date hereof, at the address or addresses
indicated on Annex A hereto for such Assignor. Such Assignor will not move its
chief executive office except to such new location as such Assignor may
establish in accordance with the last sentence of this Section 2.4. The
originals of all documents evidencing all Receivables and Contract Rights and
Trade Secret Rights of such Assignor and the only original books of account and
records of such Assignor relating thereto are, and will continue to be, kept at
such chief executive office, at one or more of the other record locations set
forth on Annex A hereto or at such new locations as such Assignor may establish
in accordance with the last sentence of this Section 2.4. All Receivables and
Contract Rights of such Assignor are, and will continue to be, maintained at,
and controlled and directed (including, without limitation, for general
accounting purposes) from, the office locations described above or such new
location established in accordance with the last sentence of this Section 2.4.
No Assignor shall establish new locations for such offices until (i) it shall
have given to the Collateral Agent not less than 30 days' prior written notice
of its intention to do so, clearly describing such new location and providing
such other information in connection therewith as the Collateral Agent may
reasonably request, (ii) with respect to such new location, it shall have taken
all action, reasonably satisfactory to the Collateral Agent, to maintain the
security interest of the Collateral Agent in the Collateral intended to be
granted hereby at all times fully perfected and in full force and effect and
(iii) the Collateral Agent shall have received evidence that all other actions
(including, without limitation, the payment of all filing fees and taxes, if
any, payable in connection with such filings) have been taken, in order to
perfect (and maintain the perfection and priority of) the security interest
granted hereby.
2.5. LOCATION OF INVENTORY AND EQUIPMENT. All Inventory and
Equipment held on the date hereof by each Assignor is located at one of the
locations shown on Annex B hereto for such Assignor. Each Assignor agrees that
all Inventory and Equipment now held or subsequently acquired by it shall be
kept at (or shall be in transport to) any one of the locations shown on Annex B
hereto, or such new location as such Assignor may establish in accordance with
the last sentence of this Section 2.5. Any Assignor may establish a new location
for Inventory and Equipment if (i) it shall have given to the Collateral Agent
not less than 30 days' prior written notice of its intention so to do, clearly
describing such new location and providing such other information in connection
therewith as the Collateral Agent may request, (ii) with respect to such new
location, it shall have taken all action reasonably satisfactory to the
Collateral Agent to maintain the security interest of the Collateral Agent in
the Collateral intended to be granted hereby at all times fully perfected and in
full force and effect and (iii) the Collateral Agent shall have received
evidence that all other actions (including, without limitation, the payment of
all filing fees and taxes, if any, payable in connection with such filings) have
been taken, in order to perfect (and maintain the perfection and priority of)
the security interest granted hereby.
2.6. RECOURSE. This Agreement is made with full recourse to each
Assignor and pursuant to and upon all the warranties, representations, covenants
and agreements on the part of
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248
such Assignor contained herein, in the other Credit Documents, in the Interest
Rate Protection Agreements or Other Hedging Agreements and otherwise in writing
in connection herewith or therewith.
2.7. TRADE NAMES; CHANGE OF NAME. No Assignor has or operates in any
jurisdiction under, or in the preceding five years has had or has operated in
any jurisdiction under, any trade names, fictitious names or other names except
its legal name and such other trade or fictitious names as are listed on Annex C
hereto with respect to each jurisdiction in which such names were used for such
Assignor. No Assignor shall change its legal name or assume or operate in any
jurisdiction under any trade, fictitious or other name except those names listed
on Annex C hereto for such Assignor and new names established in accordance with
the last sentence of this Section 2.7. No Assignor shall assume or operate in
any jurisdiction under any new trade, fictitious or other name until (i) it
shall have given to the Collateral Agent not less than 30 days' prior written
notice of its intention so to do, clearly describing such new name and the
jurisdictions in which such new name shall be used and providing such other
information in connection therewith as the Collateral Agent may request, (ii)
with respect to such new name, it shall have taken all action to maintain the
security interest of the Collateral Agent in the Collateral intended to be
granted hereby at all times fully perfected and in full force and effect and
(iii) the Collateral Agent shall have received evidence that all other actions
(including, without limitation, the payment of all filing fees and taxes, if
any, payable in connection with such filings) have been taken, in order to
perfect (and maintain the perfection and priority of) the security interest
granted hereby.
ARTICLE III
SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS
3.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES. As of the time when
each of its Receivables arises, each Assignor shall be deemed to have
represented and warranted that each such Receivable, and all records, papers and
documents delivered to the Collateral Agent relating thereto (if any) are what
they purport to be, and that all papers and documents (if any) relating thereto
(i) will represent the genuine, legal, valid and binding obligation of the
account debtor evidencing indebtedness unpaid and owed by the respective account
debtor arising out of the performance of labor or services or the sale or lease
and delivery of the merchandise listed therein, or both, (ii) will be the only
original writings evidencing and embodying such obligation of the account debtor
named therein (other than copies created for general accounting purposes), (iii)
will evidence true and valid obligations, enforceable in accordance with their
respective terms, except to the extent that the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law) and
(iv) will be in compliance and will conform in all material respects with all
applicable federal, state and local laws and applicable laws of any relevant
foreign jurisdiction.
3.2. MAINTENANCE OF RECORDS. Each Assignor will keep and maintain at
its own cost and expense accurate and complete records of its Receivables and
Contracts, including, but not
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249
limited to, the originals of all documentation (including each Contract) with
respect thereto, records of all payments received, all credits granted thereon,
all merchandise returned and all other dealings therewith, and such Assignor
will make the same available to the Collateral Agent for inspection, on such
Assignor's premises and at such Assignor's own cost and expense, from time to
time as the Collateral Agent may reasonably request upon reasonable notice to
such Assignor. Upon the occurrence and during the continuance of an Event of
Default, at the request of the Collateral Agent, such Assignor shall, at its own
cost and expense, deliver all tangible evidence of its Receivables and Contract
Rights (including, without limitation, all documents evidencing the Receivables
and all Contracts) and such books and records to the Collateral Agent or to its
representatives (copies of which evidence and books and records may be retained
by such Assignor). Upon the occurrence and during the continuance of an Event of
Default, if the Collateral Agent so directs, such Assignor shall legend, in form
and manner satisfactory to the Collateral Agent, its Receivables and the
Contracts, as well as books, records and documents (if any) of such Assignor
evidencing or pertaining to such Receivables and Contracts with an appropriate
reference to the fact that such Receivables and Contracts have been assigned to
the Collateral Agent and that the Collateral Agent has a security interest
therein.
3.3. DIRECTION TO ACCOUNT DEBTORS; CONTRACTING PARTIES; ETC. Upon
the occurrence and during the continuance of an Event of Default, if the
Collateral Agent so directs any Assignor, such Assignor agrees (x) to cause all
payments on account of the Receivables and Contracts to be made directly to the
Cash Collateral Account, (y) that the Collateral Agent may, at its option,
directly notify the obligors with respect to any Receivables and/or under any
Contracts to make payments with respect thereto as provided in the preceding
clause (x) and (z) that the Collateral Agent may enforce collection of any such
Receivables and Contracts and may adjust, settle or compromise the amount of
payment thereof, in the same manner and to the same extent as such Assignor.
Without notice to or assent by any Assignor, the Collateral Agent may apply any
or all amounts then in, or thereafter deposited in, the Cash Collateral Account
in the manner provided in Section 7.4 of this Agreement. The costs and expenses
(including attorneys' fees) of collection, whether incurred by an Assignor or
the Collateral Agent, shall be borne by the relevant Assignor.
3.4. MODIFICATION OF TERMS; ETC. Except in the ordinary course of
business and except as may be permitted by and in accordance with the provisions
hereof and of the Credit Agreement, no Assignor shall rescind or cancel any
indebtedness evidenced by any Receivable or under any Contract, or modify any
term thereof or make any adjustment with respect thereto, or extend or renew the
same, or compromise or settle any dispute, claim, suit or legal proceeding
relating thereto, or sell any Receivable or Contract, or interest therein,
without the prior written consent of the Collateral Agent. Each Assignor will
duly fulfill all obligations on its part to be fulfilled under or in connection
with the Receivables and Contracts and will do nothing to impair the rights of
the Collateral Agent in the Receivables or Contracts.
3.5. COLLECTION. Each Assignor shall endeavor in accordance with
reasonable business practices to cause to be collected from the account debtor
named in each of its Receivables or obligor under any Contract, as and when due
(including, without limitation, amounts which are delinquent, such amounts to be
collected in accordance with generally accepted lawful collection
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procedures) any and all amounts owing under or on account of such Receivable or
Contract, and apply promptly upon receipt thereof all such amounts as are so
collected to the outstanding balance of such Receivable or under such Contract,
except that, prior to the occurrence of an Event of Default, any Assignor may
allow in the ordinary course of business as adjustments to amounts owing under
its Receivables and Contracts (i) an extension or renewal of the time or times
of payment, or settlement for less than the total unpaid balance, which such
Assignor finds appropriate in accordance with reasonable business judgment and
(ii) a refund or credit due as a result of returned or damaged merchandise or
improperly performed services or for other reasons which such Assignor finds
appropriate in accordance with reasonable business judgment. The reasonable
costs and expenses (including, without limitation, attorneys' fees) of
collection, whether incurred by an Assignor or the Collateral Agent, shall be
borne by the relevant Assignor.
3.6. INSTRUMENTS. If any Assignor owns or acquires any Instrument,
such Assignor will within ten Business Days notify the Collateral Agent thereof,
and upon request by the Collateral Agent will promptly deliver such Instrument
(other than checks payable to any Assignor and processed in the ordinary course
of business) to the Collateral Agent appropriately endorsed to the order of the
Collateral Agent as further security hereunder.
3.7. ASSIGNORS REMAIN LIABLE UNDER RECEIVABLES. Anything herein to
the contrary notwithstanding, the Assignors shall remain liable under each of
the Receivables to observe and perform all of the conditions and obligations to
be observed and performed by them thereunder, all in accordance with the terms
of any agreement giving rise to such Receivables. Neither the Collateral Agent
nor any other Secured Creditor shall have any obligation or liability under any
Receivable (or any agreement giving rise thereto) by reason of or arising out of
this Agreement or the receipt by the Collateral Agent or any other Secured
Creditor of any payment relating to such Receivable pursuant hereto, nor shall
the Collateral Agent or any other Secured Creditor be obligated in any manner to
perform any of the obligations of any Assignor under or pursuant to any
Receivable (or any agreement giving rise thereto), to make any payment, to make
any inquiry as to the nature or the sufficiency of any payment received by them
or as to the sufficiency of any performance by any party under any Receivable
(or any agreement giving rise thereto), to present or file any claim, to take
any action to enforce any performance or to collect the payment of any amounts
which may have been assigned to them or to which they may be entitled at any
time or times.
3.8. ASSIGNORS REMAIN LIABLE UNDER CONTRACTS. Anything herein to the
contrary notwithstanding, the Assignors shall remain liable under each of the
Contracts to observe and perform all of the conditions and obligations to be
observed and performed by them thereunder, all in accordance with and pursuant
to the terms and provisions of each Contract. Neither the Collateral Agent nor
any other Secured Creditor shall have any obligation or liability under any
Contract by reason of or arising out of this Agreement or the receipt by the
Collateral Agent or any other Secured Creditor of any payment relating to such
contract pursuant hereto, nor shall the Collateral Agent or any other Secured
Creditor be obligated in any manner to perform any of the obligations of any
Assignor under or pursuant to any Contract, to make any payment, to make any
inquiry as to the nature or the sufficiency of any performance by any party
under any Contract, to present or file any
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claim, to take any action to enforce any performance or to collect the payment
of any amounts which may have been assigned to them or to which they may be
entitled at any time or times.
3.9. FURTHER ACTIONS. Each Assignor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such further
steps relating to its Receivables, Contracts, Instruments and other property or
rights covered by the security interest hereby granted, as the Collateral Agent
may reasonably require.
ARTICLE IV
SPECIAL PROVISIONS CONCERNING TRADEMARKS
4.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES. Each Assignor
represents and warrants that it is the true and lawful owner of or otherwise has
the right to use the Marks listed in Annex D hereto for such Assignor and that
said listed Marks include all United States marks and applications for
registrations of United States marks in the United States Patent and Trademark
Office that such Assignor owns or uses in connection with its business as of the
date hereof and that said registrations are valid, subsisting and have not been
cancelled. Each Assignor represents and warrants that it owns, is licensed to
use or otherwise has the right to use all material Marks that it uses. Each
Assignor further warrants that it is aware of no third party claim that any
aspect of such Assignor's present or contemplated business operations infringes
or will infringe any trademark, service xxxx or trade name. Each Assignor
represents and warrants that it is the true and lawful owner of or otherwise has
the right to use all U.S. trademark registrations and applications listed in
Annex D hereto and that said registrations are valid, subsisting, have not been
cancelled and that such Assignor is not aware of (i) any third-party claim that
any of said registrations is invalid or unenforceable, (ii) any reason that any
of said registrations is invalid or unenforceable, or (iii) any reason that any
of said applications will not pass to registration. Each Assignor hereby grants
to the Collateral Agent an absolute power of attorney to sign, upon the
occurrence and during the con tinuance of an Event of Default, any document
which may be required by the United States Patent and Trademark Office in order
to effect an absolute assignment of all right, title and interest of such
Assignor in each Xxxx, and record the same.
4.2. LICENSES AND ASSIGNMENTS. Except as otherwise permitted by the
Credit Agreement each Assignor hereby agrees not to divest itself of any right
under any Xxxx absent prior written approval of the Collateral Agent.
4.3. INFRINGEMENTS. Each Assignor agrees, promptly upon learning
thereof, to notify the Collateral Agent in writing of the name and address of,
and to furnish such pertinent information that may be available with respect to,
any party who such Assignor believes is infringing or diluting or otherwise
violating in any material respect any of such Assignor's rights in and to any
Xxxx material to such Assignor's Business, or with respect to any party claiming
that such Assignor's use of any Xxxx material to such Assignor's Business
violates in any material respect any property right of that party. Each Assignor
further agrees, unless otherwise agreed by the Collateral Agent,
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diligently to prosecute any Person infringing any significant Xxxx owned by such
Assignor in accordance with reasonable business practices.
4.4. PRESERVATION OF MARKS. Except as otherwise permitted by the
Credit Agreement each Assignor agrees to use its significant Marks in interstate
commerce during the time in which this Agreement is in effect, sufficiently to
preserve such Marks as trademarks or service marks under the laws of the United
States.
4.5. MAINTENANCE OF REGISTRATION. Except as otherwise permitted by
the Credit Agreement each Assignor shall, at its own expense, diligently process
all documents in accordance with applicable law to maintain trademark
registrations, including but not limited to affidavits of use and applications
for renewals of registration in the United States Patent and Trademark Office
for all of its significant registered Marks, and shall pay all fees and
disbursements in connection therewith and shall not abandon any such filing of
affidavit of use or any such application of renewal prior to the exhaustion of
all administrative and judicial remedies without prior written consent of the
Collateral Agent.
4.6. FUTURE REGISTERED MARKS. If any Xxxx registration issues
hereafter to any Assignor as a result of any application now or hereafter
pending before the United States Patent and Trademark Office, within 30 days of
receipt of such certificate, such Assignor shall deliver to the Collateral Agent
a copy of such certificate, and an assignment for security in such Xxxx, to the
Collateral Agent and at the expense of such Assignor, confirming the assignment
for security in such Xxxx to the Collateral Agent hereunder, the form of such
security to be substantially the same as the form hereof or in such other form
as may be reasonably satisfactory to the Collateral Agent.
4.7. REMEDIES. If an Event of Default shall occur and be continuing,
the Collateral Agent may, by written notice to the relevant Assignor, take any
or all of the following actions: (i) declare the entire right, title and
interest of such Assignor in and to each of the Marks and the goodwill of the
business associated therewith, together with all trademark rights and rights of
protection to the same, vested in the Collateral Agent for the benefit of the
Secured Creditors, in which event such rights, title and interest shall
immediately vest, in the Collateral Agent for the benefit of the Secured
Creditors, and the Collateral Agent shall be entitled to exercise the power of
attorney referred to in Section 4.1 hereof to execute, cause to be acknowledged
and notarized and record said absolute assignment with the applicable agency;
(ii) take and use or sell the Marks and the goodwill of such Assignor's business
symbolized by the Marks and the right to carry on the business and use the
assets of such Assignor in connection with which the Marks have been used; (iii)
in connection with the exercise of any of the other remedies provided for in
this Agreement or any other Security Document, direct such Assignor to refrain,
in which event such Assignor shall refrain, from using the Marks in any manner
whatsoever, directly or indirectly, and, if requested by the Collateral Agent,
change such Assignor's corporate name to eliminate therefrom any use of any
Xxxx; and (iv) direct such Assignor to execute such other and further documents
that the Collateral Agent may reasonably request to further confirm the
foregoing and to transfer ownership of the Marks and registrations and any
pending trademark application in the United States Patent and Trademark Office
to the Collateral Agent.
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ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS
5.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES. Each Assignor
represents and warrants that it is the true and lawful owner or licensee of all
rights in (i) all United States trade secrets and proprietary information
necessary to operate the business of such Assignor (the "Trade Secret Rights"),
(ii) the Patents listed in Annex E hereto for such Assignor and that said
Patents include all United States patents and applications for United States
patents that such Assignor owns as of the date hereof and (iii) the Copyrights
listed in Annex F hereto for such Assignor and that said Copyrights constitute
all the United States copyrights registered with the United States Copyright
Office and applications to United States copyrights that such Assignor now owns.
Each Assignor further warrants that it has no knowledge of any third party claim
that any aspect of such Assignor's present or contemplated business operations
infringes or will infringe any patent or any copyright or such Assignor has
misappropriated any trade secret or proprietary information. Each Assignor
hereby grants to the Collateral Agent an absolute power of attorney to sign,
upon the occurrence and during the continuance of any Event of Default, any
document which may be required by the United States Patent and Trademark Office
or United States Copyright Office, as the case may be, in order to effect an
absolute assignment of all right, title and interest in each Patent and
Copyright, and to record the same.
5.2. LICENSES AND ASSIGNMENTS. Except as otherwise permitted by the
Credit Agreement each Assignor hereby agrees not to divest itself of any right
under any Patent or Copyright absent prior written approval of the Collateral
Agent.
5.3. INFRINGEMENTS. Each Assignor agrees, promptly upon learning
thereof, to furnish the Collateral Agent in writing with all pertinent
information available to such Assignor with respect to any infringement,
contributing infringement or active inducement to infringe in any significant
Patent or Copyright or to any claim that the practice of any significant Patent
or the use of any significant Copyright violates any property right of a third
party, or with respect to any misappropriation of any significant Trade Secret
Right or any claim that practice of any significant Trade Secret Right violates
any property right of a third party. Each Assignor further agrees, absent
direction of the Collateral Agent to the contrary, diligently to prosecute
except as otherwise permitted by the Credit Agreement, any Person infringing any
significant Patent or Copyright or any Person misappropriating any significant
Trade Secret Right to the extent that such Assignor reasonably believes that
such infringement is material to its business.
5.4. MAINTENANCE OF PATENTS OR COPYRIGHTS. Except as otherwise
permitted by the Credit Agreement, at its own expense, each Assignor shall make
timely payment of all post-issuance fees required to maintain in force rights
under each significant Patent or Copyright, absent prior written consent of the
Collateral Agent.
5.5. PROSECUTION OF PATENT OR COPYRIGHT APPLICATION. Except as
otherwise permitted by the Credit Agreement, at its own expense, each Assignor
shall diligently prosecute all
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applications for (i) significant Patents listed in Annex E hereto and (ii)
significant Copyrights listed in Annex F hereto, in each case for such Assignor.
5.6. OTHER PATENTS OR COPYRIGHTS. Within 30 days of the acquisition
or issuance of a Patent or Copyright or of filing of an application for a Patent
or Copyright, the relevant Assignor shall deliver to the Collateral Agent a copy
of said certificate or registration of, or application for, said Patent or
Copyright, as the case may be, with an assignment for security as to such Patent
or Copyright, as the case may be, to the Collateral Agent and at the expense of
such Assignor, confirming the assignment for security, the form of such
assignment for security to be substantially the same as the form attached
hereto.
5.7. REMEDIES. If an Event of Default shall occur and be continuing,
the Collateral Agent may by written notice to the relevant Assignor, take any or
all of the following actions: (i) declare the entire right, title, and interest
of such Assignor in each of the Patents and Copyrights vested in the Collateral
Agent for the benefit of the Secured Creditors, in which event such right,
title, and interest shall immediately vest in the Collateral Agent for the
benefit of the Secured Creditors, in which case the Collateral Agent shall be
entitled to exercise the power of attorney referred to in Section 5.1 hereof to
execute, cause to be acknowledged and notarized and to record said absolute
assignment with the applicable agency; (ii) in connection with the exercise of
any of the other remedies provided for in this Agreement or any other Security
Document, take and practice or sell the Patents and Copyrights; (iii) in
connection with the exercise of any of the other remedies provided for in this
Agreement or any other Security Document, direct such Assignor to refrain, in
which event such Assignor shall refrain, from practicing the Patents and
Copyrights directly or indirectly; and (iv) direct such Assignor to execute such
other and further documents as the Collateral Agent may request further to
confirm the foregoing and to transfer ownership of the Patents and Copyrights to
the Collateral Agent for the benefit of the Secured Creditors.
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL
6.1. PROTECTION OF COLLATERAL AGENT'S SECURITY. Each Assignor will
do nothing to impair the rights of the Collateral Agent in the Collateral. Each
Assignor will at all times keep its Inventory and Equipment insured in favor of
the Collateral Agent, at such Assignor's own expense to the extent and in the
manner provided in the Credit Agreement; all policies or certificates with
respect to such insurance (and any other insurance maintained by such Assignor)
(i) shall be endorsed to the Collateral Agent's satisfaction for the benefit of
the Collateral Agent (including, without limitation, by naming the Collateral
Agent as additional insured or loss payee), (ii) shall state that such insurance
policies shall not be cancelled or revised without at least 30 days' prior
written notice thereof by the insurer to the Collateral Agent and (iii) shall
provide that the respective insurers irrevocably waive any and all rights of
subrogation with respect to the Collateral Agent and the Secured Creditors. The
Collateral Agent shall, at the time such proceeds of such insurance are
distributed to the Secured Creditors, apply such proceeds in accordance with
Section 7.4 hereof (it being understood that the receipt and distribution of
such proceeds shall be subject to the provisions of Section 4.02 of the Credit
Agreement). Each Assignor assumes all liability and responsibility in
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connection with the Collateral acquired by it and the liability of such Assignor
to pay the Obligations shall in no way be affected or diminished by reason of
the fact that such Collateral may be lost, destroyed, stolen, damaged or for any
reason whatsoever unavailable to such Assignor.
6.2. WAREHOUSE RECEIPTS NON-NEGOTIABLE. Each Assignor agrees that if
any warehouse receipt or receipt in the nature of a warehouse receipt is issued
with respect to any of its Inventory, such Assignor shall request that such
warehouse receipt or receipt in the nature thereof shall not be "negotiable" (as
such term is used in Section 7-104 of the Uniform Commercial Code as in effect
in any relevant jurisdiction or under other relevant law).
6.3. FURTHER ACTIONS. Each Assignor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such lists, descriptions and designations of its Collateral,
warehouse receipts, receipts in the nature of warehouse receipts, bills of
lading, documents of title, vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, reports and other assurances or instruments and take
such further steps relating to the Collateral and other property or rights
covered by the security interest hereby granted, which the Collateral Agent
reasonably deems appropriate or advisable to perfect, preserve or protect its
security interest in the Collateral.
6.4. FINANCING STATEMENTS. Each Assignor agrees to execute and
deliver to the Collateral Agent such financing statements, in form reasonably
acceptable to the Collateral Agent, as the Collateral Agent may from time to
time request or as are necessary or desirable in the opinion of the Collateral
Agent to establish and maintain a valid, enforceable and first priority
perfected security interest, subject only to Permitted Liens (i) existing on the
date hereof or (ii) otherwise having priority under applicable law, in the
Collateral as provided herein and in the other rights and security contemplated
hereby all in accordance with the Uniform Commercial Code as enacted in any and
all relevant jurisdictions or any other relevant law. Each Assignor will pay any
applicable filing fees, recordation taxes and related expenses relating to its
Collateral. Each Assignor hereby authorizes the Collateral Agent to file any
such financing statements without the signature of such Assignor where permitted
by law.
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
7.1. REMEDIES; OBTAINING THE COLLATERAL UPON DEFAULT. Each Assignor
agrees that, if any Event of Default shall have occurred and be continuing, then
and in every such case, the Collateral Agent, in addition to any rights now or
hereafter existing under applicable law, shall have all rights as a secured
creditor under the Uniform Commercial Code in all relevant jurisdictions and
may:
(i) personally, or by agents or attorneys, immediately take
possession of the Collateral or any part thereof, from such Assignor or any
other Person who then has possession of any part thereof with or without notice
or process of law, and for that purpose may enter upon such
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Assignor's premises where any of the Collateral is located and remove the same
and use in connection with such removal any and all services, supplies, aids and
other facilities of such Assignor;
(ii) instruct the obligor or obligors on any agreement, instrument
or other obligation (including, without limitation, the Receivables and the
Contracts) constituting the Collateral to make any payment required by the terms
of such agreement, instrument or other obligation directly to the Collateral
Agent and may exercise any and all remedies of such Assignor in respect of such
Collateral;
(iii) withdraw all moneys, securities and instruments in the Cash
Collateral Account for application to the Obligations in accordance with Section
7.4 hereof;
(iv) sell, assign or otherwise liquidate any or all of the
Collateral or any part thereof in accordance with Section 7.2 hereof, or direct
the relevant Assignor to sell, assign or otherwise liquidate any or all of the
Collateral or any part thereof, and, in each case, take possession of the
proceeds of any such sale or liquidation;
(v) take possession of the Collateral or any part thereof, by
directing the relevant Assignor in writing to deliver the same to the Collateral
Agent at any place or places designated by the Collateral Agent in which event
such Assignor shall at its own expense:
(x) forthwith cause the same to be moved to the place or
places so designated by the Collateral Agent and there delivered to the
Collateral Agent;
(y) store and keep any Collateral so delivered to the
Collateral Agent at such place or places pending further action by the
Collateral Agent as provided in Section 7.2 hereof;
(z) while the Collateral shall be so stored and kept, provide
such guards and maintenance services as shall be necessary to protect the same
and to preserve and maintain them in good condition; and
(vi) license or sublicense, whether on an exclusive or nonexclusive
basis, any Marks, Patents and Copyrights included in the Collateral for such
term and on such conditions and in such manner as the Collateral Agent shall in
its sole judgment determine;
it being understood that each Assignor's obligation so to deliver the Collateral
is of the essence of this Agreement and that, accordingly, upon application to a
court of equity having jurisdiction, the Collateral Agent shall be entitled to a
decree requiring specific performance by such Assignor of said obligation. The
Secured Creditors agree that this Agreement may be enforced only by the action
of the Administrative Agent or the Collateral Agent, in each case acting upon
the instructions of the Required Lenders (or, after the date on which all Credit
Document Obligations have been paid in full, the holders of at least a majority
of the outstanding Xxxx Obligations or, after the date on which all Credit
Document Obligations and Xxxx Obligations have been paid in full, the holders of
at least the majority of the outstanding Other Obligations) and that no other
Secured Creditor shall have any
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right individually to seek to enforce or to enforce this Agreement or to realize
upon the security to be granted hereby, it being understood and agreed that such
rights and remedies may be exercised by the Administrative Agent or the
Collateral Agent or the holders of at least a majority of the outstanding Other
Obligations, as the case may be, for the benefit of the Secured Creditors upon
the terms of this Agreement.
7.2. REMEDIES; DISPOSITION OF THE COLLATERAL. Any Collateral
repossessed by the Collateral Agent under or pursuant to Section 7.1 hereof and
any other Collateral whether or not so repossessed by the Collateral Agent, may
be sold, assigned, leased or otherwise disposed of under one or more contracts
or as an entirety, and without the necessity of gathering at the place of sale
the property to be sold, and in general in such manner, at such time or times,
at such place or places and on such terms as the Collateral Agent may, in
compliance with any mandatory requirements of applicable law, determine to be
commercially reasonable. Any of the Collateral may be sold, leased or otherwise
disposed of, in the condition in which the same existed when taken by the
Collateral Agent or after any overhaul or repair at the expense of the relevant
Assignor which the Collateral Agent shall determine to be commercially
reasonable. Any such disposition which shall be a private sale or other private
proceedings permitted by such requirements shall be made upon not less than 10
days' written notice to the relevant Assignor specifying the time at which such
disposition is to be made and the intended sale price or other consideration
therefor, and shall be subject, for the 10 days after the giving of such notice,
to the right of the relevant Assignor or any nominee of such Assignor to acquire
the Collateral involved at a price or for such other consideration at least
equal to the intended sale price or other consideration so specified. Any such
disposition which shall be a public sale permitted by such requirements shall be
made upon not less than 10 days' written notice to the relevant Assignor
specifying the time and place of such sale and, in the absence of applicable
requirements of law, shall be by public auction (which may, at the Collateral
Agent's option, be subject to reserve), after publication of notice of such
auction not less than 10 days prior thereto in two newspapers in general
circulation in the City of New York. To the extent permitted by any such
requirement of law, the Collateral Agent and the other Secured Creditors may bid
for and become the purchaser of the Collateral or any item thereof, offered for
sale in accordance with this Section without accountability to the relevant
Assignor. If, under mandatory requirements of applicable law, the Collateral
Agent shall be required to make disposition of the Collateral within a period of
time which does not permit the giving of notice to the relevant Assignor as
hereinabove specified, the Collateral Agent need give such Assignor only such
notice of disposition as shall be reasonably prac ticable in view of such
mandatory requirements of applicable law. Each Assignor agrees to do or cause to
be done all such other acts and things as may be reasonably necessary to make
such sale or sales of all or any portion of the Collateral valid and binding and
in compliance with any and all applicable laws, regulations, orders, writs,
injunctions, decrees or awards of any and all courts, arbitrators or
governmental instrumentalities, domestic or foreign, having jurisdiction over
any such sale or sales, all at such Assignor's expense.
7.3. WAIVER OF CLAIMS. Except as otherwise provided in this
Agreement, EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT'S
TAKING POSSESSION OR THE COLLATERAL AGENT'S DISPOSITION OF
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ANY OF THE COLLATERAL, and each Assignor hereby further waives, to the extent
permitted by law:
(i) all damages occasioned by the Collateral Agent's taking of
possession of any of the Collateral except any damages which are the direct
result of the Collateral Agent's gross negligence or willful misconduct;
(ii) all other requirements as to the time, place and terms of sale
or other requirements with respect to the enforcement of the Collateral Agent's
rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable law in
order to prevent or delay the enforcement of this Agreement or the absolute sale
of the Collateral or any portion thereof, and each Assignor, for itself and all
who may claim under it, insofar as it or they now or hereafter lawfully may,
hereby waives the benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other
realization upon, any Collateral shall operate to divest all right, title,
interest, claim and demand, either at law or in equity, of the relevant Assignor
therein and thereto, and shall be a perpetual bar both at law and in equity
against such Assignor and against any and all Persons claiming or attempting to
claim the Collateral so sold, optioned or realized upon, or any part thereof,
from, through and under such Assignor.
7.4. APPLICATION OF PROCEEDS. (a) All moneys collected by the
Collateral Agent (or, to the extent the Pledge Agreement, the Mortgages or
Additional Security Documents require proceeds of collateral under such Security
Documents to be applied in accordance with the provisions of this Agreement, the
Pledgee or Mortgagee under such other Security Document) upon any sale or other
disposition of the Collateral, together with all other moneys received by the
Collateral Agent hereunder, shall be applied as follows:
(i) first, to the payment of all Obligations owing the Collateral
Agent of the type provided in clauses (iv) and (v) of the definition of
Obligations;
(ii) second, to the extent proceeds remain after the application
pursuant to the preceding clause (i), an amount equal to the outstanding Primary
Obligations (as defined below) shall be paid to the Secured Creditors as
provided in Section 7.4(e) hereof, with each Secured Creditor receiving an
amount equal to its outstanding Primary Obligations or, if the proceeds are
insufficient to pay in full all such Primary Obligations, its Pro Rata Share (as
defined below) of the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) and (ii), an amount equal to the
outstanding Secondary Obligations (as defined below) shall be paid to the
Secured Creditors as provided in Section 7.4(e) hereof, with each Secured
Creditor receiving an amount equal to its outstanding Secondary Obligations or,
if the proceeds are insufficient to pay in full all such Secondary Obligations,
its Pro Rata Share of the amount remaining to be distributed; and
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(iv) fourth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i), (ii) and (iii) and following the
termination of this Agreement pursuant to Section 10.8 hereof, to the relevant
Assignor or, to the extent directed by such Assignor or a court of competent
jurisdiction, to whomever may be lawfully entitled to receive such surplus.
(b) For purposes of this Agreement, (x) "Pro Rata Share" shall mean,
when calculating a Secured Creditor's portion of any distribution or amount,
that amount (expressed as a percentage) equal to a fraction the numerator of
which is the then unpaid amount of such Secured Creditor's Primary Obligations
or Secondary Obligations, as the case may be, and the denominator of which is
the then outstanding amount of all Primary Obligations or Secondary Obligations,
as the case may be, (y) "Primary Obligations" shall mean (i) in the case of the
Credit Document Obligations, all principal of, and interest on, all Loans, all
Unpaid Drawings theretofore made (together with all interest accrued thereon),
and the aggregate Stated Amounts of all Letters of Credit issued under the
Credit Agreement, and all Fees, (ii) in the case of Xxxx Obligations, all
principal of and interest on the Xxxx Loan and all fees payable in respect
thereof and (iii) in the case of the Other Obligations, all amounts due under
the Interest Rate Protection Agreements or Other Hedging Agreements (other than
indemnities, fees (including, without limitation, attorneys' fees) and similar
obligations and liabilities) and (z) "Secondary Obligations" shall mean all
Obligations other than Primary Obligations.
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 7.4 only) (i) first, to their Primary Obligations (with the amount to be
applied by any Secured Creditor to its Primary Obligations to be applied (x)
first, to interest and (y) second, to any other Primary Obligations) and (ii)
second, to their Secondary Obligations. If any payment to any Secured Creditor
of its Pro Rata Share of any distribution would result in overpayment to such
Secured Creditor, such excess amount shall instead be distributed in respect of
the unpaid Primary Obligations or Secondary Obligations, as the case may be, of
the other Secured Creditors, with each Secured Creditor whose Primary
Obligations or Secondary Obligations, as the case may be, have not been paid in
full to receive an amount equal to such excess amount multiplied by a fraction
the numerator of which is the unpaid Primary Obligations or Secondary
Obligations, as the case may be, of such Secured Creditor and the denominator of
which is the unpaid Primary Obligations or Secondary Obligations, as the case
may be, of all Secured Creditors entitled to such distribution.
(d) Each of the Secured Creditors agrees and acknowledges that if
the Bank Creditors are to receive a distribution on account of undrawn amounts
with respect to Letters of Credit issued under the Credit Agreement (which shall
only occur after all outstanding Loans and Unpaid Drawings with respect to such
Letters of Credit have been paid in full), such amounts shall be paid to the
Administrative Agent under the Credit Agreement and held by it, for the equal
and ratable benefit of the Bank Creditors, as cash security for the repayment of
Obligations owing to the Bank Creditors as such. If any amounts are held as cash
security pursuant to the immediately preceding sentence, then upon the
termination of all outstanding Letters of Credit, and after the application of
all such cash security to the repayment of all Obligations owing to the Bank
Creditors
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after giving effect to the termination of all such Letters of Credit, if there
remains any excess cash, such excess cash shall be returned by the
Administrative Agent to the Collateral Agent for distribution in accordance with
Section 7.4(a) hereof.
(e) Except as set forth in Section 7.4(c) hereof, all payments
required to be made to the Bank Creditors hereunder shall be made to the
Administrative Agent under the Credit Agreement for the account of the Bank
Creditors and all payments required to be made to the Other Creditors hereunder
shall be made directly to the respective Other Creditor.
(f) For purposes of applying payments received in accordance with
this Section 7.4, the Collateral Agent shall be entitled to rely upon (i) the
Administrative Agent under the Credit Agreement and (ii) the Other Creditors for
a determination (which the Administrative Agent, each Other Creditor and the
Secured Creditors agree (or shall agree) to provide upon request of the
Collateral Agent) of the outstanding Obligations owed to the Bank Creditors or
the Other Creditors, as the case may be. Unless it has actual knowledge
(including by way of written notice from a Bank Creditor or an Other Creditor)
to the contrary, the Administrative Agent under the Credit Agreement, in
furnishing information pursuant to the preceding sentence, and the Collateral
Agent, in acting hereunder, shall be entitled to assume that (x) no Secondary
Obligations are owing to any Bank Creditor or Other Creditor and (y) no Interest
Rate Protection Agreement or Other Hedging Agreement, or Other Obligations in
respect thereof, are in existence.
(g) It is understood that the Assignors shall remain jointly and
severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral and the aggregate amount of the sums referred to in
clause (a) of this Section 7.4 with respect to the relevant Assignor.
7.5. REMEDIES CUMULATIVE. Each and every right, power and remedy
hereby specifically given to the Collateral Agent shall be in addition to every
other right, power and remedy specifically given under this Agreement, the
Interest Rate Protection Agreements or Other Hedging Agreements, the other
Credit Documents or now or hereafter existing at law, in equity or by statute
and each and every right, power and remedy whether specifically herein given or
otherwise existing may be exercised from time to time or simultaneously and as
often and in such order as may be deemed expedient by the Collateral Agent. All
such rights, powers and remedies shall be cumulative and the exercise or the
beginning of the exercise of one shall not be deemed a waiver of the right to
exercise any other or others. No delay or omission of the Collateral Agent in
the exercise of any such right, power or remedy and no renewal or extension of
any of the Obligations shall impair any such right, power or remedy or shall be
construed to be a waiver of any Default or Event of Default or an acquiescence
therein. No notice to or demand on any Assignor in any case shall entitle it to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of any of the rights of the Collateral Agent to any other or
further action in any circumstances without notice or demand. In the event that
the Collateral Agent shall bring any suit to enforce any of its rights hereunder
and shall be entitled to judgment, then in such suit the Collateral Agent may
recover expenses, including attorneys' fees, and the amounts thereof shall be
included in such judgment.
7.6. DISCONTINUANCE OF PROCEEDINGS. In case the Collateral Agent
shall have instituted any proceeding to enforce any right, power or remedy under
this Agreement by
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foreclosure, sale, entry or otherwise, and such proceeding shall have been
discontinued or abandoned for any reason or shall have been determined adversely
to the Collateral Agent, then and in every such case the relevant Assignor, the
Collateral Agent and each holder of any of the Obligations shall be restored to
their former positions and rights hereunder with respect to the Collateral
subject to the security interest created under this Agreement, and all rights,
remedies and powers of the Collateral Agent shall continue as if no such
proceeding had been instituted.
ARTICLE VIII
INDEMNITY
8.1. INDEMNITY. (a) Each Assignor jointly and severally agrees to
indemnify, reimburse and hold the Collateral Agent, each other Secured Creditor
and their respective successors, permitted assigns, employees, agents and
servants (hereinafter in this Section 8.1 referred to individually as
"Indemnitee," and collectively as "Indemnitees") harmless from any and all
liabilities, obligations, damages, injuries, penalties, claims, demands,
actions, suits, judgments and any and all costs, expenses or disbursements
(including attorneys' fees and expenses) (for the purposes of this Section 8.1
the foregoing are collectively called "expenses") of whatsoever kind and nature
imposed on, asserted against or incurred by any of the Indemnitees in any way
relating to or arising out of this Agreement, any Interest Rate Protection
Agreement or Other Hedging Agreement, any other Credit Document or any other
document executed in connection herewith or therewith or in any other way
connected with the administration of the transactions contemplated hereby or
thereby or the enforcement of any of the terms of, or the preservation of any
rights under any thereof, or in any way relating to or arising out of the
manufacture, ownership, ordering, purchase, delivery, control, acceptance,
lease, financing, possession, operation, condition, sale, return or other
disposition, or use of the Collateral (including, without limitation, latent or
other defects, whether or not discoverable), the violation of the laws of any
country, state or other governmental body or unit, any tort (including, without
limitation, claims arising or imposed under the doctrine of strict liability, or
for or on account of injury to or the death of any Person (including any
Indemnitee), or property damage), or contract claim; provided that no Indemnitee
shall be indemnified pursuant to this Section 8.1(a) for losses, damages or
liabilities to the extent caused by the gross negligence or willful misconduct
of such Indemnitee. Each Assignor agrees that upon written notice by any
Indemnitee of the assertion of such a liability, obligation, damage, injury,
penalty, claim, demand, action, suit or judgment, the relevant Assignor shall
assume full responsibility for the defense thereof. Each Indemnitee agrees to
use its best efforts to promptly notify the relevant Assignor of any such
assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of Section 8.1(a) hereof, each
Assignor agrees, jointly and severally, to pay, or reimburse the Collateral
Agent for any and all fees, costs and expenses of whatever kind or nature
incurred in connection with the creation, preservation or protection of the
Collateral Agent's Liens on, and security interest in, the Collateral,
including, without limitation, all fees and taxes in connection with the
recording or filing of instruments and documents in public offices, payment or
discharge of any taxes or Liens upon or in respect of the Collateral, premiums
for insurance with respect to the Collateral and all other fees, costs and
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expenses in connection with protecting, maintaining or preserving the Collateral
and the Collateral Agent's interest therein, whether through judicial
proceedings or otherwise, or in defending or prosecuting any actions, suits or
proceedings arising out of or relating to the Collateral.
(c) Without limiting the application of Section 8.1(a) or (b)
hereof, each Assignor agrees, jointly and severally, to pay, indemnify and hold
each Indemnitee harmless from and against any loss, costs, damages and expenses
which such Indemnitee may suffer, expend or incur in consequence of or growing
out of any misrepresentation by any Assignor in this Agreement, any Interest
Rate Protection Agreement or Other Hedging Agreement, any other Credit Document
or in any writing contemplated by or made or delivered pursuant to or in
connection with this Agreement, any Interest Rate Protection Agreement or Other
Hedging Agreement, or any other Credit Document.
(d) If and to the extent that the obligations of any Assignor under
this Section 8.1 are unenforceable for any reason, such Assignor hereby agrees
to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
8.2. INDEMNITY OBLIGATIONS SECURED BY COLLATERAL; SURVIVAL. Any
amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Obligations secured by the Collateral. The
indemnity obligations of each Assignor contained in this Article VIII shall
continue in full force and effect notwithstanding the full payment of all the
Loans under, and any Notes issued under, the Credit Agreement, the termination
of all Interest Rate Protection Agreements or Other Hedging Agreements and the
payment of all other Obligations and notwithstanding the discharge thereof.
ARTICLE IX
DEFINITIONS
The following terms shall have the meanings herein specified. Such
definitions shall be equally applicable to the singular and plural forms of the
terms defined.
"Administrative Agent" shall have the meaning provided in the
recitals to this Agreement.
"Agreement" shall mean this Security Agreement, as the same may be
modified, supplemented or amended from time to time in accordance with its
terms.
"Assignor" shall have the meaning provided in the first paragraph of
this Agreement.
"Bank Creditors" shall have the meaning provided in the recitals to
this Agreement.
"Borrower" shall have the meaning provided in the recitals to this
Agreement.
"Cash Collateral Account" shall mean a non-interest bearing cash
collateral account maintained with, and in the sole dominion and control of, the
Collateral Agent for the benefit of the Secured Creditors.
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"Chattel Paper" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Class" shall have the meaning provided in Section 10.2 of this
Agreement.
"Collateral" shall have the meaning provided in Section 1.1(a) of
this Agreement.
"Collateral Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Contract Rights" shall mean all rights of any Assignor (including,
without limitation, all rights to payment) under each Contract.
"Contracts" shall mean all contracts between any Assignor and one or
more additional parties (including, without limitation, any Interest Rate
Protection Agreement or Other Hedging Agreement), but excluding any contract to
the extent that the terms thereof prohibit (after giving effect to any approvals
or waivers) the assignment of, or granting a security interest in, such contract
(it being understood and agreed, however, that notwithstanding the foregoing,
all rights to payment for money due or to become due pursuant to any such
excluded contract shall be subject to the security interests created by this
Agreement).
"Copyrights" shall mean any United States or foreign copyright owned
by any Assignor, including any registrations of any Copyrights, in the United
States Copyright Office or the equivalent thereof in any foreign country, as
well as any application for a United States copyright registration now or
hereafter made with the United States Copyright Office by any Assignor.
"Credit Agreement" shall have the meaning provided in the recitals
to this Agreement.
"Credit Document Obligations" shall have the meaning provided in the
definition of "Obligations" in this Article IX.
"Default" shall mean any event which, with notice or lapse of time,
or both, would constitute an Event of Default.
"Documents" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Equipment" shall mean any "equipment," as such term is defined in
the Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by any Assignor and, in any event, shall include,
but shall not be limited to, all machinery, equipment, furnishings, movable
trade fixtures and vehicles now or hereafter owned by any Assignor and any and
all additions, substitutions and replacements of any of the foregoing, wherever
located, together with all attachments, components, parts, equipment and
accessories installed thereon or affixed thereto; PROVIDED that the Equipment
shall not include any Equipment, that as of the date
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hereof, serves as security for any Existing Indebtedness permitted by the Credit
Agreement to remain outstanding as of the date hereof, but only to the extent
that (and so long as) the terms of such Existing Indebtedness specifically
prohibit the granting of a prior, PARI PASSU and junior Lien and security
interest in such Equipment, and then only so long as any such Existing
Indebtedness remains outstanding and shall be permitted to remain outstanding
pursuant to the terms of the Credit Agreement after which time such Equipment
shall be subject to the security interest and Liens created by this Agreement.
"Event of Default" shall mean any Event of Default under, and as
defined in, the Credit Agreement and shall in any event, without limitation,
include any payment default on any of the Obligations after the expiration of
any applicable grace period.
"General Intangibles" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Goods" shall have the meaning provided in the Uniform Commercial
Code as in effect on the date hereof in the State of New York.
"Indemnitee" shall have the meaning provided in Section 8.1 of this
Agreement.
"Instrument" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Inventory" shall mean merchandise, inventory and goods, and all
additions, substitutions and replacements thereof, wherever located, together
with all goods, supplies, incidentals, packaging materials, labels, materials
and any other items used or usable in manufacturing, processing, packaging or
shipping same; in all stages of production -- from raw materials through
work-in-process to finished goods -- and all products and proceeds of whatever
sort and wherever located and any portion thereof which may be returned,
rejected, reclaimed or repossessed by the Collateral Agent from any Assignor's
customers, and shall specifically include all "inventory" as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in the
State of New York, now or hereafter owned by any Assignor.
"Lenders" shall have the meaning provided in the recitals to this
Agreement.
"Liens" shall mean any security interest, mortgage, pledge, lien,
claim, charge, encumbrance, title retention agreement, lessor's interest in a
financing lease or analogous instrument, in, of, or on any Assignor's property.
"Marks" shall mean all right, title and interest in and to any
United States or foreign trademarks, service marks and trade names now held or
hereafter acquired by any Assignor, including any registration of any trademarks
and service marks, or the equivalent thereof in any foreign country, in the
United States Patent and Trademark Office and any trade dress including logos
and/or designs used by any Assignor in the United States or any foreign country.
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"Obligations" shall mean (i) the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of all
obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due) and liabilities of each
Assignor, now existing or hereafter incurred under, arising out of or in
connection with any Credit Document to which it is a party and the due
performance and compliance by each Assignor with the terms of each such Credit
Document (all such obligations and liabilities under this clause (i), except to
the extent consisting of obligations or indebtedness with respect to Interest
Rate Protection Agreements or Other Hedging Agreements, being herein
collectively called the "Credit Document Obligations"); (ii) the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of all obligations (including obligations which, but for the automatic stay
under Section 362(a) of the Bankruptcy Code, would become due) and liabilities
of each Assignor now existing or hereafter incurred under, arising out of or in
connection with, the Xxxx Loan, including, all obligations of such Assignor
under the Guaranty to which such Assignor is a party in respect of the Xxxx Loan
(all such obligations and liabilities under this clause (ii) being herein
collectively called the "Xxxx Obligations"); (iii) the full and prompt payment
when due (whether at the stated maturity, by acceleration or otherwise) of all
obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due) and liabilities of each
Assignor now existing or hereafter incurred under, arising out of or in con
nection with any Interest Rate Protection Agreement or Other Hedging Agreement
with the Secured Creditors including, in the case of Assignors other than the
Borrower, all obligations of such Assignor under the Guaranty to which such
Assignor is a party in respect of Interest Rate Protection Agreements or Other
Hedging Agreements (all such obligations and liabilities under this clause (iii)
being herein collectively called the "Other Obligations"); (iv) any and all sums
advanced by the Collateral Agent in order to preserve the Collateral or preserve
its security interest in the Collateral; (v) in the event of any proceeding for
the collection or enforcement of any indebtedness, obligations, or liabilities
of any Assignor referred to in clauses (i), (ii) and (iii) above, after an Event
of Default shall have occurred and be continuing, the reasonable expenses of
re-taking, holding, preparing for sale or lease, selling or otherwise disposing
of or realizing on the Collateral, or of any exercise by the Collateral Agent of
its rights hereunder, together with reasonable attorneys' fees and court costs;
and (vi) all amounts paid by any Indemnitee as to which such Indemnitee has the
right to reimbursement under Section 8.1 of this Agreement.
"Other Creditors" shall have the meaning provided in the recitals to
this Agreement.
"Other Obligations" shall have the meaning provided in the
definition of "Obligations" in this Article IX.
"Patents" shall mean any United States or foreign patent to which
any Assignor now or hereafter has title and any divisions or continuations
thereof, as well as any application for a United States or foreign patent now or
hereafter made by any Assignor.
"Xxxx Creditors" shall have the meaning provided in the recitals to
this Agreement.
"Xxxx Guaranty" shall have the meaning provided in the recitals to
this Agreement.
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"Xxxx Obligations" shall have the meaning provided in the definition
of "Obligations" in this Article IX..
"Xxxx Loan" shall have the meaning provided in the recitals to this
Agreement.
"Primary Obligations" shall have the meaning provided in Section
7.4(b) of this Agreement.
"Proceeds" shall have the meaning provided in the Uniform Commercial
Code as in effect in the State of New York on the date hereof or under other
relevant law and, in any event, shall include, but not be limited to, (i) any
and all proceeds of any insurance, indemnity, warranty or guaranty payable to
the Collateral Agent or any Assignor from time to time with respect to any of
the Collateral, (ii) any and all payments (in any form whatsoever) made or due
and payable to any Assignor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental authority (or any person acting under
color of governmental authority) and (iii) any and all other amounts from time
to time paid or payable under or in connection with any of the Collateral.
"Pro Rata Share" shall have the meaning provided in Section 7.4(b)
of this Agreement.
"Receivables" shall mean any "account" as such term is defined in
the Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by any Assignor and, in any event, shall include,
but shall not be limited to, all of such Assignor's rights to payment for goods
sold or leased or services performed by such Assignor, whether now in existence
or arising from time to time hereafter, including, without limitation, rights
evidenced by an account, note, contract, security agreement, chattel paper, or
other evidence of indebtedness or security, together with (a) all security
pledged, assigned, hypothecated or granted to or held by such Assignor to secure
the foregoing, (b) all of any Assignor's right, title and interest in and to any
goods, the sale of which gave rise thereto, (c) all guarantees, endorsements and
indemnifications on, or of, any of the foregoing, (d) all powers of attorney for
the execution of any evidence of indebtedness or security or other writing in
connection therewith, (e) all books, records, ledger cards, and invoices
relating thereto, (f) all evidences of the filing of financing statements and
other statements and the registration of other instruments in connection
therewith and amendments thereto, notices to other creditors or secured parties,
and certificates from filing or other registration officers, (g) all credit
information, reports and memoranda relating thereto and (h) all other writings
related in any way to the foregoing.
"Requisite Creditors" shall have the meaning provided in Section
10.2 of this Agreement.
"Secondary Obligations" shall have the meaning provided in Section
7.4(b) of this Agreement.
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"Secured Creditors" shall have the meaning provided in the recitals
to this Agreement.
"Termination Date" shall have the meaning provided in Section 10.8
of this Agreement.
"Trade Secret Rights" shall have the meaning provided in Section 5.1
of this Agreement.
ARTICLE X
MISCELLANEOUS
10.1. NOTICES. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be deemed to have been duly given or made when delivered to the
party to which such notice, request, demand or other communication is required
or permitted to be given or made under this Agreement, addressed:
(a) if to any Assignor, at its address set forth opposite its
signature below;
(b) if to the Collateral Agent:
Bankers Trust Company
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxx Xxxxx
(c) if to any Bank Creditor (other than the Collateral Agent), at
such address as such Bank Creditor shall have specified in the Credit Agreement;
(d) if to any Xxxx Creditor, (a) at such address as such Xxxx
Creditor shall have specified in writing to each Assignor and the Collateral
Agent, and (b) in the case of Bankers Trust Company, at:
Bankers Trust Company
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
(e) if to any Other Creditor, at such address as such Other Creditor
shall have specified in writing to each Assignor and the Collateral Agent;
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or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
10.2. WAIVER; AMENDMENT. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by each Assignor directly affected thereby and the
Collateral Agent (with the consent of either (x) the Required Lenders or, to the
extent required by Section 13.12 of the Credit Agreement, all of the Lenders, at
all times prior to the time on which all Credit Document Obligations have been
paid in full, (y) the holders of at least a majority of the Xxxx Obligations at
all times after the time on which all Credit Document Obligations have been paid
in full or (z) the holders of at least a majority of the outstanding Other
Obligations at all times after the time on which all Credit Document Obligations
and all Xxxx Obligations have been paid in full); PROVIDED, that any change,
waiver, modification or variance affecting the rights and benefits of a single
Class of Secured Creditors (and not all Secured Creditors in a like or similar
manner) shall also require the written consent of the Requisite Creditors of
such Class of Secured Creditors. For the purpose of this Agreement, the term
"Class" shall mean each class of Secured Creditors, I.E., whether (x) the Bank
Creditors as holders of the Credit Document Obligations, (y) the Xxxx Creditors
as holders of the Xxxx Obligations, or (z) the Other Creditors as the holders of
the Other Obligations. For the purpose of this Agreement, the term "Requisite
Creditors" of any Class shall mean each of (x) with respect to the Credit
Document Obligations, the Required Lenders, (y) with respect to the Xxxx
Obligations, the holders of at least a majority of all Xxxx Obligations from
time to time outstanding, and (y) with respect to the Other Obligations, the
holders of at least a majority of all obligations outstanding from time to time
under the Interest Rate Protection Agreements or Other Hedging Agreements.
10.3. OBLIGATIONS ABSOLUTE. The obligations of each Assignor
hereunder shall remain in full force and effect without regard to, and shall not
be impaired by, (a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of such Assignor; (b) any
exercise or non-exercise, or any waiver of, any right, remedy, power or
privilege under or in respect of this Agreement, any other Credit Document or
any Interest Rate Protection Agreement or Other Hedging Agreement; (c) any
renewal, extension, amendment or modification of or addition or supplement to or
deletion from any Credit Document or any Interest Rate Protection Agreement or
Other Hedging Agreement or any security for any of the Obligations; (d) any
waiver, consent, extension, indulgence or other action or inaction under or in
respect of any such agreement or instrument including, without limitation, this
Agreement; (e) any furnishing of any additional security to the Collateral Agent
or its assignee or any acceptance thereof or any release of any security by the
Collateral Agent or its assignee; or (f) any limitation on any party's liability
or obligations under any such instrument or agreement or any invalidity or
unenforceability, in whole or in part, of any such instrument or agreement or
any term thereof; whether or not any Assignor shall have notice or knowledge of
any of the foregoing.
10.4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
each Assignor and its successors and assigns and shall inure to the benefit of
the Collateral Agent and each other Secured Creditor and their respective
successors and assigns; PROVIDED, that no Assignor may transfer or assign any or
all of its rights or obligations hereunder without the prior written consent
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of the Collateral Agent. All agreements, statements, representations and
warranties made by each Assignor herein or in any certificate or other
instrument delivered by such Assignor or on its behalf under this Agreement
shall be considered to have been relied upon by the Secured Creditors and shall
survive the execution and delivery of this Agreement, the other Credit Documents
and the Interest Rate Protection Agreements or Other Hedging Agreements
regardless of any investigation made by the Secured Creditors or on their
behalf.
10.5. HEADINGS DESCRIPTIVE. The headings of the several sections of
this Agreement are inserted for convenience only and shall not in any way affect
the meaning or construction of any provision of this Agreement.
10.6. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED
BY THE LAW OF THE STATE OF NEW YORK.
10.7. ASSIGNOR'S DUTIES. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that each Assignor shall remain
liable to perform all of the obligations, if any, assumed by it with respect to
the Collateral and the Collateral Agent shall not have any obligations or
liabilities with respect to any Collateral by reason of or arising out of this
Agreement, nor shall the Collateral Agent be required or obligated in any manner
to perform or fulfill any of the obligations of any Assignor under or with
respect to any Collateral.
10.8. TERMINATION; RELEASE. (a) After the Termination Date, this
Agreement shall terminate (provided that all indemnities set forth herein
including, without limitation, in Section 8.1 hereof shall survive such
termination) and the Collateral Agent, at the request and expense of the
respective Assignor, will promptly execute and deliver to such Assignor a proper
instrument or instruments (including Uniform Commercial Code termination
statements on form UCC-3) acknowledging the satisfaction and termination of this
Agreement, and will duly assign, transfer and deliver to such Assignor (without
recourse and without any representation or warranty) such of the Collateral as
may be in the possession of the Collateral Agent and as has not theretofore been
sold or otherwise applied or released pursuant to this Agreement. As used in
this Agreement, "Termination Date" shall mean the date upon which the Total
Commitment and all Interest Rate Protection Agreements or Other Hedging
Agreements have been terminated, no Note under the Credit Agreement is
outstanding (and all Loans have been repaid in full), all Letters of Credit have
been terminated, the Xxxx Loan has been paid in full and all Obligations then
owing have been paid in full.
(b) In the event that any part of the Collateral is sold (except to
the Borrower or any of its Subsidiaries) in connection with a sale permitted by
Section 9.02 of the Credit Agreement or otherwise released at the direction of
the Required Lenders (or all Lenders if required by Section 13.12 of the Credit
Agreement) and the proceeds of such sale or sales or from such release are
applied in accordance with the provisions of Section 4.02 of the Credit
Agreement, to the extent required to be so applied, such Collateral will be sold
free and clear of the Liens created by this Agreement and the Collateral Agent,
at the request and expense of the relevant Assignor, will duly
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270
assign, transfer and deliver to such Assignor (without recourse and without any
representation or warranty) such of the Collateral as is then being (or has
been) so sold or released and has not theretofore been released pursuant to this
Agreement and will promptly execute and deliver to such Assignor a proper
instrument or instruments (including UCC termination statements on form UCC- 3)
acknowledging the release of such Collateral pursuant to this Agreement.
(c) At any time that an Assignor desires that the Collateral Agent
take any action to acknowledge or give effect to any release of Collateral
pursuant to the foregoing Section 10.8(a) or (b), as the case may be, it shall
deliver to the Collateral Agent a certificate signed by an Authorized Officer of
such Assignor stating that the release of the respective Collateral is permitted
pursuant to such Section 10.8(a) or (b), as the case may be.
(d) The Collateral Agent shall have no liability whatsoever to any
other Secured Creditor as a result of any release of Collateral by it in
accordance with this Section 10.8.
10.9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
10.10. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.11. THE COLLATERAL AGENT. The Collateral Agent will hold in
accordance with this Agreement all items of the Collateral at any time received
under this Agreement. It is expressly understood and agreed that the obligations
of the Collateral Agent as holder of the Collateral and interests therein and
with respect to the disposition thereof, and otherwise under this Agreement, are
only those expressly set forth in this Agreement and Section 12 of the Credit
Agreement. The Collateral Agent shall act hereunder and thereunder on the terms
and conditions set forth herein and in Section 12 of the Credit Agreement.
10.12. BENEFIT OF AGREEMENT. This Agreement shall be binding upon
the parties hereto and their respective successors and assigns and shall inure
to the benefit of and be enforceable by each of the parties hereto and its
successors and assigns.
10.13. ADDITIONAL ASSIGNORS. Any such Subsidiary established or
created after the date hereof and that is required to execute a counterpart of
this Agreement pursuant to the Credit Agreement shall automatically become an
Assignor hereunder by executing a counterpart hereof and delivering the same to
the Collateral Agent.
* * *
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271
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date first
above written.
Address:
00000 Xxxx Xxxxxx XXX CARE CENTERS OF
San Antonio, TX 78213 AMERICA, INC.
Attention: Xxxxxxx X. Xxxxxxx as Assignor
Telephone No.: (000) 000-0000
By: /s/ Xxxx Xxxxxxx
-------------------------
Facsimile No.: (000) 000-0000
Title: Treasurer
00000 Xxxx Xxxxxx XXX CARE HOLDINGS, INC.
Xxx Xxxxxxx, XX 00000 as Assignor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
-------------------------
Facsimile No.: (000) 000-0000 Title: Treasurer
00000 Xxxx Xxxxxx XXXXXXX XXXXXXXXXXX
Xxx Xxxxxxx, XX 00000 GROUP, INC., as Assignor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
-------------------------
Title: Treasurer
Facsimile No.: (210) 340-0123
00000 Xxxx Xxxxxx ECCA MANAGED VISION
Xxx Xxxxxxx, XX 00000 CARE, INC., as Assignor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
-------------------------
Title: Treasurer
Facsimile No.: (000) 000-0000
-28-
272
00000 Xxxx Xxxxxx VISIONWORKS HOLDINGS, INC.,
Xxx Xxxxxxx, XX 00000 as Assignor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
-------------------------
Facsimile No.: (000) 000-0000 Title: Treasurer
00000 Xxxx Xxxxxx XXXXXXXXXXX, XXX.,
Xxx Xxxxxxx, XX 00000 as Assignor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
-------------------------
Facsimile No.: (000) 000-0000 Title: Treasurer
00000 Xxxx Xxxxxx XXXXXXXXXXX XXXXXXXXXX,
Xxx Xxxxxxx, XX 00000 INC., as Assignor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
-------------------------
Facsimile No.: (000) 000-0000 Title: Treasurer
00000 Xxxx Xxxxxx XXXXXXXXX XXXXXX
Xxx Xxxxxxx, XX 00000 MANAGEMENT, INC.,
Attention: Xxxxxxx X. Xxxxxxx as Assignor
Telephone No.: (000) 000-0000
By: /s/ Xxxx Xxxxxxx
-------------------------
Facsimile No.: (000) 000-0000
Title: Treasurer
00000 Xxxx Xxxxxx VISIONARY PROPERTIES, INC.,
Xxx Xxxxxxx, XX 00000 as Assignor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
-------------------------
Facsimile No.: (000) 000-0000 Title: Treasurer
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273
11103 West Avenue VISIONARY MSO, INC.,
Xxx Xxxxxxx, XX 00000 as Assignor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
-------------------------
Facsimile No.: (000) 000-0000 Title: Treasurer
0000 Xxxxxxx Xxxxxxxxxx Xxxxx THE XXXXX GROUP, INC.,
Xxxxxxxxxx, XX 00000 as Assignor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
0000 Xxxxxxx Xxxxxxxxxx Xxxxx HOUR EYES, INC.,
Xxxxxxxxxx, XX 00000 as Assignor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
5568 General Washington Drive SKYLAB OPTICAL, INC.,
Xxxxxxxxxx, XX 00000 as Assignor
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
0000 Xxxxxxx Xxxxxxxxxx Xxxxx XXXXXXXXXXXX XXXXXX
Xxxxxxxxxx, XX 00000 SERVICES, INC.,
Attention: Xxxxxxx X. Xxxxxxx as Assignor
Telephone No.: (000) 000-0000 By: /s/ Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000 -------------------------
Title: Treasurer
-30-
274
BANKERS TRUST COMPANY,
as Collateral Agent
By: /s/ Xxxxxxx XxXxxxxx
-------------------------
Title: Vice President
-31-
275
ANNEX A to
SECURITY AGREEMENT
SCHEDULE OF CHIEF EXECUTIVE OFFICES
AND OTHER RECORD LOCATIONS
276
ANNEX B to
SECURITY AGREEMENT
SCHEDULE OF INVENTORY AND EQUIPMENT LOCATIONS
277
ANNEX C to
SECURITY AGREEMENT
SCHEDULE OF TRADE AND FICTITIOUS NAMES
278
ANNEX D to
SECURITY AGREEMENT
SCHEDULE OF MARKS
279
ANNEX E to
SECURITY AGREEMENT
SCHEDULE OF PATENTS AND APPLICATIONS
280
ANNEX F to
SECURITY AGREEMENT
SCHEDULE OF COPYRIGHTS AND APPLICATIONS
281
ANNEX G to
SECURITY AGREEMENT
ASSIGNMENT OF SECURITY INTEREST
IN UNITED STATES TRADEMARKS AND PATENTS
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of
which are hereby acknowledged, [Name of Assignor], a __________ corporation (the
"Assignor") with principal offices at ____________________________, hereby
assigns and grants to Bankers Trust Company, as Collateral Agent, with principal
offices at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Assignee"), a
security interest in (i) all of the Assignor's right, title and interest in and
to the United States trademarks, trademark registrations and trademark
applications (the "Marks") set forth on Schedule A attached hereto, (ii) all of
the Assignor's right, title and interest in and to the United States patents and
pending patent applications (the "Patents") set forth on Schedule B attached
hereto, in each case together with (iii) all Proceeds (as such term is defined
in the Security Agreement referred to below) and products of the Marks and
Patents, (iv) the goodwill of the businesses with which the Marks are associated
and (v) all causes of action arising prior to or after the date hereof for
infringement of any of the Marks and Patents or unfair competition regarding the
same.
THIS ASSIGNMENT OF SECURITY INTEREST is made to secure the
satisfactory performance and payment of all the Obligations of the Assignor, as
such term is defined in the Security Agreement among the Assignor, the other
assignors from time to time party thereto and the Assignee, dated as of April
__, 1998 (as amended from time to time, the "Security Agreement").
282
ANNEX G
Page 2
Upon the occurrence of the Termination Date (as defined in the Security
Agreement), the Assignee shall, upon such satisfaction, execute, acknowledge,
and deliver to the Assignor an instrument in writing releasing the security
interest in the Marks and Patents acquired under this Assignment of Security
Interest.
This Assignment of Security Interest has been granted in conjunction
with the security interest granted to the Assignee under the Security Agreement.
The rights and remedies of the Assignee with respect to the security interest
granted herein are without prejudice to, and are in addition to those set forth
in the Security Agreement, all terms and provisions of which are incorporated
herein by reference. In the event that any provisions of this Assignment of
Security Interest are deemed to conflict with the Security Agreement, the
provisions of the Security Agreement shall govern.
IN WITNESS WHEREOF, the undersigned have executed this Assignment of
Security Interest as of the ____ day of _________, 199__.
[NAME OF ASSIGNOR], Assignor
BY:
--------------------------
NAME:
TITLE:
-2-
283
ANNEX G
Page 2
BANKERS TRUST COMPANY,
as Collateral Agent, Assignee
BY:
--------------------------
NAME:
TITLE:
-3-
000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of _________, 199_, before me personally came
_________________________ who, being by me duly sworn, did state as follows:
that [s]he is _______________ of [Name of Assignor], that [s]he is authorized to
execute the foregoing Assignment of Security Interest on behalf of said
corporation and that [s]he did so by authority of the Board of Directors of said
corporation.
-------------------------
Notary Public
000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of _________, 199_, before me personally came
_____________________________ who, being by me duly sworn, did state as follows:
that [s]he is __________________ of Bankers Trust Company, that [s]he is
authorized to execute the foregoing Assignment of Security Interest on behalf of
said corporation and that [s]he did so by authority of the Board of Directors of
said corporation.
-------------------------
Notary Public
286
SCHEDULE A
XXXX REG. NO. REG. DATE
---- -------- ---------
287
SCHEDULE B
PATENT PATENT NO. ISSUE DATE
------ ---------- ----------
000
XXXXX X
XXXXXXXXXX XX XXXXXXXX XXXXXXXX
XX XXXXXX XXXXXX COPYRIGHTS
WHEREAS, [Name of Assignor], a _______________ corporation (the
"Assignor"), having its chief executive office at ________________________,
_________________, is the owner of all right, title and interest in and to the
United States copyrights and associated United States copyright registrations
and applications for registration set forth in Schedule A attached hereto;
WHEREAS, BANKERS TRUST COMPANY, as Collateral Agent, having its
principal offices at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Assignee"), desires to acquire a security interest in, and lien upon, all of
Assignor's right, title and interest in and to Assignor's copyrights and
copyright registrations and applications therefor; and
WHEREAS, the Assignor is willing to assign and grant to the Assignee
a security interest in, and lien upon, the copyrights and copyright
registrations and applications therefor described above.
NOW, THEREFORE, for good and valuable consideration, the sufficiency
and receipt of which is hereby acknowledged, and subject to the terms and
conditions of the Security Agreement, dated as of April __, 1998, made by the
Assignor, the other assignors from time to time party thereto and the Assignee
(as amended from time to time, the "Security Agreement"), the Assignor hereby
assigns and grants to the Assignee a security interest in, and lien upon, all of
Assignor's right, title and interest in and to Assignor's copyrights and
copyright registrations and
289
ANNEX H
applications therefor set forth in Schedule A attached hereto (the
"Copyrights"), together with (i) all Proceeds (as such term is defined in the
Security Agreement referred to below) of the Copyrights, and (ii) all causes of
action arising prior to or after the date hereof for infringement of any
Copyright.
This Assignment of Security Interest is made to secure the
satisfactory performance and payment of all Obligations (as such term is defined
in the Security Agreement) of the Assignor and shall be effective as of the date
of the Security Agreement. Upon the occurrence of the Termination Date (as such
term is defined in the Security Agreement), the Assignee shall, upon such
satisfaction, execute, acknowledge, and deliver to Assignor an instrument in
writing releasing the security interest in the Copyrights acquired under this
Assignment of Security Interest.
This Assignment of Security Interest has been granted in conjunction
with the security interest granted to the Assignee under the Security Agreement.
The rights and remedies of the Assignee with respect to the security interest
granted herein are without prejudice to, and are in addition to those set forth
in the Security Agreement, all terms and provisions of which are incorporated
herein by reference. In the event that any provisions of this Assignment are
deemed to conflict with the Security Agreement, the provisions of the Security
Agreement shall govern.
-5-
290
IN WITNESS WHEREOF, the undersigned have executed this Assignment of
Security Interest at New York, New York as of the __ day of ____________, 199_.
000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this __ day of ________, 199_ before me personally came
_______________, who being duly sworn, did depose and say that [s]he is
___________________ of [Name of Assignor], that [s]he is authorized to execute
the foregoing Assignment of Security Interest on behalf of said corporation and
that [s]he did so by authority of the Board of Directors of said corporation.
-------------------------
Notary Public
000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this __ day of ________, 199_ before me personally came
_______________, who being duly sworn, did depose and say that [s]he is
_______________ of Bankers Trust Company, that [s]he is authorized to execute
the foregoing Assignment of Security Interest on behalf of said corporation and
that [s]he did so by authority of the Board of Directors of said corporation.
-------------------------
Notary Public
293
SCHEDULE A
COPYRIGHTS
REGISTRATION PUBLICATION
NUMBERS DATE COPYRIGHT TITLE
------- ---- ---------------
294
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE I
SECURITY INTERESTS...........................................................2
1.1. Grant of Security Interests......................................2
1.2. Power of Attorney................................................2
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS............................3
2.1. Necessary Filings................................................3
2.2. No Liens.........................................................3
2.3. Other Financing Statements.......................................3
2.4. Chief Executive Office; Records..................................3
2.5. Location of Inventory and Equipment..............................4
2.6. Recourse.........................................................4
2.7. Trade Names; Change of Name......................................4
ARTICLE III
SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS....................................5
3.1. Additional Representations and Warranties........................5
3.2. Maintenance of Records...........................................5
3.3. Direction to Account Debtors; Contracting Parties; etc...........6
3.4. Modification of Terms; etc.......................................6
3.5. Collection.......................................................6
3.6. Instruments......................................................7
3.7. Assignors Remain Liable Under Receivables........................7
3.8. Assignors Remain Liable Under Contracts..........................7
3.9. Further Actions..................................................7
ARTICLE IV
(1)
295
Page
----
SPECIAL PROVISIONS CONCERNING TRADEMARKS.....................................8
4.1. Additional Representations and Warranties........................8
4.2. Licenses and Assignments.........................................8
4.3. Infringements....................................................8
4.4. Preservation of Marks............................................8
4.5. Maintenance of Registration......................................9
4.6. Future Registered Marks..........................................9
4.7. Remedies.........................................................9
ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS........................................9
5.1. Additional Representations and Warranties........................9
5.2. Licenses and Assignments........................................10
5.3. Infringements...................................................10
5.4. Maintenance of Patents or Copyrights............................10
5.5. Prosecution of Patent or Copyright Application..................10
5.6. Other Patents or Copyrights.....................................10
5.7. Remedies........................................................11
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL........................................11
6.1. Protection of Collateral Agent's Security.......................11
6.2. Warehouse Receipts Non-negotiable...............................11
6.3. Further Actions.................................................12
6.4. Financing Statements............................................12
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT................................12
7.1. Remedies; Obtaining the Collateral Upon Default.................12
7.2. Remedies; Disposition of the Collateral.........................13
7.3. Waiver of Claims................................................14
7.4. Application of Proceeds.........................................15
7.5. Remedies Cumulative.............................................17
7.6. Discontinuance of Proceedings...................................17
(2)
296
Page
----
ARTICLE VIII
INDEMNITY...................................................................18
8.1. Indemnity.......................................................18
8.2. Indemnity Obligations Secured by Collateral; Survival...........19
ARTICLE IX
DEFINITIONS.................................................................19
ARTICLE X
MISCELLANEOUS...............................................................24
10.1. Notices........................................................24
10.2. Waiver; Amendment..............................................24
10.3. Obligations Absolute...........................................25
10.4. Successors and Assigns.........................................25
10.5. Headings Descriptive...........................................26
10.6. Governing Law..................................................26
10.7. Assignor's Duties..............................................26
10.8. Termination; Release...........................................26
10.9. Counterparts...................................................27
10.10. Severability..................................................27
10.11. The Collateral Agent..........................................27
10.12. Benefit of Agreement..........................................27
10.13. Additional Assignors..........................................27
ANNEX A Schedule of Chief Executive Offices and Other Record Locations
ANNEX B Schedule of Inventory and Equipment Locations
ANNEX C Schedule of Trade and Fictitious Names
ANNEX D Schedule of Marks
ANNEX E Schedule of Patents and Applications
ANNEX F Schedule of Copyrights and Applications
ANNEX G Assignment of Security Interest in United States Trademarks and Patents
ANNEX H Assignment of Security Interest in United States Copyrights
(3)
297
EXHIBIT K
ASSIGNMENT AND ASSUMPTION AGREEMENT
Date: _______ __, 19__
Reference is made to the Credit Agreement described in Item 2 of
Annex I hereto (as such Credit Agreement may hereafter be amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"). Unless defined
in Annex I hereto, terms defined in the Credit Agreement are used herein as
therein defined. _____________________ (the "Assignor") and _________________
(the "Assignee") hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee without
recourse and without representation or warranty (other than as expressly
provided herein), and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to all of the Assignor's rights and obligations
under the Credit Agreement as of the date hereof which represents the percentage
interest specified in Item 4 of Annex I hereto (the "Assigned Share") of all of
the outstanding rights and obligations under the Credit Agreement relating to
the facilities listed in Item 4 of Annex I hereto, including, without
limitation, [(x) in the case of any assignment of all or any portion of the
Total Term Loan Commitment, all rights and obligations with respect to the
Assigned Share of such Total Term Loan Commitment,](1) [(y) in the case of any
assignment of all or any portion of the Total Acquisition Loan Commitment, all
rights and obligations with respect to the Assigned Share of such Total
Acquisition Loan Commitment,](2) and (z) in the case of any assignment of all or
any portion of the Total Revolving Loan Commitment, all rights and obligations
with respect to the Assigned Share of such Total Revolving Loan Commitment and
of any outstanding Revolving Loans, Swingline Loans and Letters of Credit. After
giving effect to such sale and assignment, the Assignee's Revolving Loan
Commitment[, Term Loan Commitment],(3) [Acquisition Loan Commitment](4) and the
amount of the outstanding Term Loans, Acquisition Loans and Revolving Loans
owing to the Assignee will be as set forth in Item 4 of Annex I hereto.
--------
(1) Delete bracketed language in Assignment and Assumption Agreements executed
after the termination of the Term Loan Commitment.
(2) Delete bracketed language in Assignment and Assumption Agreements executed
after the termination of the Total Acquisition Loan Commitment.
(3) Delete bracketed language in Assignment and Assumption Agreements executed
after the termination of the Term Loan Commitment.
(4) Delete bracketed language in Assignment and Assumption Agreements executed
after the termination of the Acquisition Loan Commitment.
298
EXHIBIT K
Page 2
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the other Credit Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or the
other Credit Documents or any other instrument or document furnished pursuant
thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any of
its Subsidiaries or the performance or observance by the Borrower or any of its
Subsidiaries of any of their obligations under the Credit Agreement or the other
Credit Documents to which they are a party or any other instrument or document
furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement and the other Credit Documents, together with copies of the
financial statements referred to therein 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 Assumption Agreement; (ii) agrees
that it will, independently and without reliance upon the Administrative Agent,
the Assignor or any other Lender or Agent 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 Agreement;
(iii) confirms that it is an Eligible Transferee under Section 13.04(b) of the
Credit Agreement; (iv) appoints and authorizes the Administrative Agent and the
Collateral Agent to take such action as agent on its behalf and to exercise such
powers under the Credit Agreement and the other Credit Documents as are
delegated to the Administrative Agent and the Collateral Agent, as the case may
be, by the terms thereof, together with such powers as are reasonably incidental
thereto; [and] (v) agrees that it will perform in accordance with their terms
all of the obligations which by the terms of the Credit Agreement are required
to be performed by it as a Lender[; and (vii) to the extent legally entitled to
do so, attaches the forms described in Section 13.04(b) of the Credit
Agreement](5).
4. Following the execution of this Assignment and Assumption
Agreement by the Assignor and the Assignee, an executed original hereof
(together with all attachments) will be delivered to the Administrative Agent.
This Assignment and Assumption Agreement shall be effective, unless otherwise
specified in Item 5 of Annex I hereto (the "Settlement Date"), upon the receipt
of the consent of the Administrative Agent and the Borrower to the extent
required by Section 13.04(b) of the Credit Agreement, receipt by the
Administrative Agent of the administrative
--------
(5) Include if the Assignee is organized under the laws of a jurisdiction
outside of the United States.
299
EXHIBIT K
Page 3
fee referred to in such Section 13.04(b), and the registration of the transfer
as provided by Section 13.17 of the Credit Agreement.
5. Upon the Settlement Date of this Assignment and Assumption
Agreement, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Assumption Agreement, have the rights and
obligations of a Lender thereunder and under the other Credit Documents and (ii)
the Assignor shall, to the extent provided in this Assignment and Assumption
Agreement, relinquish its rights and be released from its obligations under the
Credit Agreement and the other Credit Documents except with respect to
indemnification provisions under the Credit Agreement (including without
limitation, Sections 1.10, 1.11, 2.05, 4.04, 13.01 and 13.06).
6. It is agreed that the Assignee shall be entitled to (x) all
interest on the Assigned Share of the Loans at the rates specified in Item 6 of
Annex I; (y) all Commitment Commission (if applicable) on the Assigned Share of
the Total Revolving Loan Commitment and/or Total Term Loan Commitment (if not
theretofore terminated) at the rate specified in Item 7 of Annex I hereto; and
(z) all Letter of Credit Fees (if applicable) on the Assignee's participation in
all Letters of Credit at the rate specified in Item 8 of Annex I hereto, which,
in each case, accrue on and after the Settlement Date, such interest and, if
applicable, Commitment Commission and Letter of Credit Fees, to be paid by the
Administrative Agent directly to the Assignee. It is further agreed that all
payments of principal made on the Assigned Share of the Loans which occur on and
after the Settlement Date will be paid directly by the Administrative Agent to
the Assignee. Upon the Settlement Date, the Assignee shall pay to the Assignor
an amount specified by the Assignor in writing which represents the Assigned
Share of the principal amount of the respective Loans made by the Assignor
pursuant to the Credit Agreement which are outstanding on the Settlement Date,
and which are being assigned hereunder. The Assignor and the Assignee shall make
all appropriate adjustments in payments under the Credit Agreement for periods
prior to the Settlement Date directly between themselves.
7. THIS ASSIGNMENT AND ASSUMPTION AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
300
EXHIBIT K
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Assignment and Assumption
Agreement, as of the date first above written, such execution also being made on
Annex I hereto.
Accepted this ____ day [NAME OF ASSIGNOR]
of _______, 19__ as Assignor
By _______________________
Title:
[NAME OF ASSIGNEE]
as Assignee
Acknowledged: By _______________________
Title:
BANKERS TRUST COMPANY
as Administrative Agent
By: ___________________________
Title:
[EYE CARE CENTERS OF AMERICA,
INC,
By: ___________________________
Title:](6)
--------
(6) Consent of the Borrower required in certain circumstances.
301
ANNEX FOR ASSIGNMENT AND ASSUMPTION AGREEMENT
ANNEX I
Borrower: Eye Care Centers of America, Inc.
Name and Date of Credit Agreement:
Credit Agreement, dated as of April 23, 1998 among Eye Care Centers of
America, Inc., various lending institutions from time to time party thereto,
Bankers Trust Company, as Administrative Agent for such Lender, and Xxxxxxx
Xxxxx Capital Corporation, as Syndication Agent.
Date of Assignment Agreement:
Amounts (as of date of item #3 above):
[Total Term [Total Outstanding Outstanding Revolving
Loan Acquisition Principal of Principal of Loan
Commitment Loan Term Loans Acquisition Commitment
---------- Commitment ---- ----- Loans ----------
---------- -----
a. Aggregate Amount for all $__________ $__________ $__________ $__________ $_________
Lenders
b. Assigned Share __________% __________% __________% __________% _________%
c. Amount of Assigned Share $________](7) $________](8) $__________ $_________ $_________
Settlement Date:
--------
(7) This column should be deleted in the case of Assignment and Assumption
Agreements executed after the termination of the Total Term Loan Commitment.
(8) This column should be deleted in the case of Assignment and Assumption
Agreements executed after the termination of the Total Acquisition Loan
Commitment.
302
Annex I
Page 2
1. Rate of Interest As set forth in Section 1.08 of the
to the Assignee: Credit Agreement (unless otherwise agreed
to by the Assignor and the Assignee)(9)
2. Commitment As set forth in Section 3.01(a) of
Commission to the the Credit Agreement (unless otherwise agreed
Assignee: to by the Assignor and the Assignee)(10)
3. Letter of Credit As set forth in Section 3.01(b) of
Fees to the the Credit Agreement (unless otherwise agreed
Assignee: to by the Assignor and the Assignee)(11)
4. Notice:
--------
(9) The Borrower and the Administrative Agent shall direct the entire amount of
the interest to the Assignee at the rate set forth in Section 1.08 of the Credit
Agreement, with the Assignor and Assignee effecting the agreed upon sharing of
the interest through payments by the Assignee to the Assignor.
(10) Insert "Not Applicable" in lieu of text if no portion of the Total
Revolving Loan Commitment is being assigned. The Borrower and the Administrative
Agent shall direct the entire amount of the Commitment Commission to the
Assignee at the rate set forth in Section 3.01(a) of the Credit Agreement, with
the Assignor and the Assignee effecting the agreed upon sharing of Commitment
Commission through payment by the Assignee to the Assignor.
(11) Insert "Not Applicable" in lieu of text if no portion of the Total
Revolving Loan Commitment is being assigned. Otherwise, the Borrower and the
Administrative Agent shall direct the entire amount of the Letter of Credit Fees
to the Assignee at the rate set forth in Section 3.10(b) of the Credit
Agreement, with the Assignor and the Assignee effecting the agreed upon sharing
of Letter of Credit Fees through payment by the Assignee to the Assignor.
303
Annex I
Page 3
ASSIGNOR:
---------------------
---------------------
---------------------
Attention:
Telephone:
Telecopier:
Reference:
ASSIGNEE:
---------------------
---------------------
---------------------
Attention:
Telephone:
Telecopier:
Reference:
Payment Instructions:
ASSIGNOR:
---------------------
---------------------
---------------------
Attention:
Reference:
ASSIGNEE:
---------------------
---------------------
---------------------
Attention:
304
Annex I
Page 4
Reference:
305
Annex I
Page 5
Accepted and Agreed:
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By By
----------------------- ----------------------
----------------------- ----------------------
(Print Name and Title) (Print Name and Title)
