CREDIT AGREEMENT
dated as of April 1, 1999
among
EXPRESS SCRIPTS, INC.,
a Delaware corporation,
as Borrower,
THE LENDERS LISTED HEREIN,
as Lenders,
CREDIT SUISSE FIRST BOSTON,
as Lead Arranger, Administrative Agent and
Collateral Agent,
BANKERS TRUST COMPANY,
as Syndication Agent,
BT ALEX. XXXXX INCORPORATED,
as Co-Arranger,
THE FIRST NATIONAL BANK OF CHICAGO,
as Co-Documentation Agent,
and
MERCANTILE BANK, N.A.,
as Co-Documentation Agent
TABLE OF CONTENTS
Page
SECTION 1.
DEFINITIONS
1.1. Certain Defined Terms....................................................2
1.2. Accounting Terms; Utilization of GAAP for Purposes of
Calculations Under Agreement;
Fiscal Periods for Determining Compliance and Pricing...............30
1.3. Other Definitional Provisions and Rules of Construction.................30
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1. Commitments; Making of Loans; the Register; Notes.......................31
2.2. Interest on the Loans...................................................38
2.3. Fees....................................................................45
2.4. Repayments, Prepayments and Reductions in Revolving
Loan Commitments; General Provisions Regarding Payments.............46
2.5. Use of Proceeds.........................................................55
2.6. Special Provisions Governing Eurodollar Rate Loans......................56
2.7. Increased Costs; Taxes; Capital Adequacy................................59
2.8. Obligation of Lenders and Issuing Lenders to
Mitigate; Replacement...............................................63
SECTION 3.
LETTERS OF CREDIT
3.1. Issuance of Letters of Credit and Lenders' Purchase of
Participations Therein..............................................66
3.2. Letter of Credit Fees...................................................68
3.3. Drawings and Reimbursement of Amounts Paid Under Letters of Credit......69
3.4. Obligations Absolute....................................................72
3.5. Indemnification; Nature of Issuing Lenders' Duties......................73
3.6. Increased Costs and Taxes Relating to Letters of Credit.................74
SECTION 4.
CONDITIONS TO LOANS AND LETTERS OF CREDIT
4.1. Conditions to Term Loans and Initial Revolving Loans
and Swing Line Loans.............................................76
4.2. Conditions to All Loans.................................................80
4.3. Conditions to Letters of Credit.........................................81
SECTION 5.
COMPANY'S REPRESENTATIONS AND WARRANTIES
5.1. Organization, Powers, Qualification, Good Standing,
Business and Subsidiaries...........................................82
5.2. Authorization of Borrowing, Etc.........................................83
5.3. Financial Condition.....................................................84
5.4. No Material Adverse Change; No Restricted Junior Payments...............84
5.5. Title to Properties; Liens..............................................84
5.6. Litigation; Adverse Facts...............................................84
5.7. Payment of Taxes........................................................85
5.8. Performance of Agreements; Materially Adverse Agreements;
Material Contracts.............................................85
5.9. Governmental Regulation; Accreditation..................................86
5.10. Securities Activities...................................................86
5.11. Employee Benefit Plans..................................................86
5.12. Certain Fees............................................................87
5.13. Environmental Protection................................................87
5.14. Employee Matters........................................................87
5.15. Solvency................................................................87
5.16. Matters Relating to Collateral..........................................87
5.17. Disclosure..............................................................88
5.18. Accuracy of Representations and Warranties in the
Definitive Acquisition Documents....................................89
5.19. Year 2000 Compliance....................................................89
SECTION 6.
COMPANY'S AFFIRMATIVE COVENANTS
6.1. Financial Statements and Other Reports..................................90
6.2. Corporate Existence, Etc................................................95
6.3. Payment of Taxes and Claims; Tax Consolidation..........................95
6.4. Maintenance of Properties; Insurance....................................95
6.5. Inspection Rights; Lender Meeting.......................................96
6.6. Compliance With Laws, Etc...............................................96
6.7. Environmental Claims and Violations of Environmental Laws...............97
6.8. Execution of Subsidiary Guaranty and Collateral
Documents by Certain Subsidiaries and Future Subsidiaries...........97
6.9. Certain Matters Regarding Collateral....................................98
6.10. Year 2000 Compliance....................................................99
SECTION 7.
COMPANY'S NEGATIVE COVENANTS
7.1. Indebtedness...........................................................100
7.2. Liens and Related Matters..............................................102
7.3. Investments; Joint Ventures............................................103
7.4. Contingent Obligations.................................................104
7.5. Restricted Junior Payments.............................................105
7.6. Financial Covenants....................................................105
7.7. Restriction on Fundamental Changes; Asset Sales and Acquisitions.......107
7.8. Consolidated Capital Expenditures......................................108
7.9. Fiscal Year............................................................108
7.10. Sales and Lease-Backs..................................................109
7.11. Sale or Discount of Receivables........................................109
7.12. Transactions With Shareholders and Affiliates..........................109
7.13. Disposal of Subsidiary Stock...........................................109
7.14. Conduct of Business....................................................110
SECTION 8.
EVENTS OF DEFAULT
8.1. Failure to Make Payments When Due......................................110
8.2. Default in Other Agreements............................................110
8.3. Breach of Certain Covenants............................................111
8.4. Breach of Warranty.....................................................111
8.5. Other Defaults Under Loan Documents....................................111
8.6. Involuntary Bankruptcy; Appointment of Receiver, Etc...................111
8.7. Voluntary Bankruptcy; Appointment of Receiver, Etc.....................112
8.8. Judgments and Attachments..............................................112
8.9. Dissolution............................................................113
8.10. Employee Benefit Plans.................................................113
8.11. Change in Control......................................................113
8.12. Invalidity of Subsidiary Guaranty; Failure of Security;
Repudiation of Obligations.........................................113
8.13. Failure to Consummate the Acquisition..................................114
SECTION 9.
AGENTS
9.1. Appointment............................................................115
9.2. Powers and Duties; General Immunity....................................116
9.3. Representations and Warranties; No Responsibility for Appraisal
of Creditworthiness................................................118
9.4. Right to Indemnity.....................................................118
9.5. Successor Agent and Swing Line Lender..................................119
9.6. Collateral Documents and Guaranties....................................119
SECTION 10.
MISCELLANEOUS
10.1. Assignments and Participations in Loans and Letters of Credit..........120
10.2. Expenses...............................................................124
10.3. Indemnity..............................................................125
10.4. Set-Off................................................................126
10.5. Ratable Sharing........................................................127
10.6. Amendments and Waivers.................................................127
10.7. Independence of Covenants..............................................129
10.8. Notices................................................................130
10.9. Survival of Representations, Warranties and Agreements.................130
10.10.Failure or Indulgence Not Waiver; Remedies Cumulative..................130
10.11.Marshalling; Payments Set Aside........................................131
10.12.Severability...........................................................131
10.13.Obligations Several; Independent Nature of Lenders' Rights.............131
10.14.Headings...............................................................131
10.15.Applicable Law.........................................................132
10.16.Successors and Assigns.................................................132
10.17.CONSENT TO JURISDICTION AND SERVICE OF PROCESS.........................132
10.18.WAIVER OF JURY TRIAL...................................................133
10.19.Confidentiality........................................................134
10.20.Counterparts; Effectiveness............................................134
SIGNATURES S-1
Schedule 2.1 Term Loan and Revolving Commitments
Schedule 2.5 Scheduled Indebtedness
Schedule 4.1 Remaining Indebtedness
Schedule 5.1 Subsidiaries
Schedule 5.6 Litigation
Schedule 5.8 Material Contracts
Schedule 7.1 Indebtedness
Schedule 7.2 Liens
Schedule 7.3 Investments
Schedule 7.4 Contingent Obligations
Schedule 7.10 Sale and Lease-back Property
Exhibit I Form of Notice of Borrowing
Exhibit II Form of Notice of Continuation/Conversion
Exhibit III Form of Request to Issue Letter of Credit
Exhibit IV-A Form of Tranche A Term Note
Exhibit IV-B Form of Tranche B Term Note
Exhibit V Form of Revolving Note
Exhibit VI Form of Swing Line Note
Exhibit VII Form of Compliance Certificate
Exhibit VIII-A Form of Opinion of Xxxxxx Xxxxxxxx, Esq., General Counsel of
the Company
Exhibit VIII-B Form of Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, special
New York counsel for Loan Parties
Exhibit IX Form of Opinion of Xxxxxx Xxxxxx & Xxxxxxx, Counsel to
Administrative Agent
Exhibit X Form of Assignment Agreement
Exhibit XI Form of Certificate Re Non-Bank Status
Exhibit XII Form of Company Pledge Agreement
Exhibit XIII Form of Subsidiary Guaranty
Exhibit XIV Form of Subsidiary Pledge Agreement
Exhibit XV Form of Solvency Certificate
EXPRESS SCRIPTS, INC.
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of April 1, 1999 and entered into by and
among EXPRESS SCRIPTS, INC., a Delaware corporation ("Company"), THE FINANCIAL
INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (each individually referred to
herein as a "Lender" and collectively as "Lenders"), CREDIT SUISSE FIRST BOSTON,
a bank organized under the laws of Switzerland, acting through its New York
Branch ("CSFB"), as lead arranger (in such capacity, the "Lead Arranger"),
administrative agent (in such capacity, the "Administrative Agent") and
collateral agent (in such capacity, the "Collateral Agent"), BANKERS TRUST
COMPANY ("BTCo"), as syndication agent (in such capacity, the "Syndication
Agent"), THE FIRST NATIONAL BANK OF CHICAGO, as co-documentation agent, and
MERCANTILE BANK, N.A., as co-documentation agent (together with The First
National Bank of Chicago, the "Co-Documentation Agents").
R E C I T A L S
WHEREAS, Company intends to (i) acquire (the "Acquisition") all the issued
and outstanding shares of capital stock of Diversified Pharmaceutical Services,
Inc. ("DPS"), a subsidiary of SmithKline Xxxxxxx Corporation (the "Seller"),
pursuant to an acquisition agreement between Company and Seller (the "DPS
Acquisition Agreement") and (ii) refinance (the "Refinancing"), in connection
with the Acquisition, certain of Company's existing indebtedness;
WHEREAS, Company desires that Lenders extend credit in the form of (a)
Tranche A Term Loans on the Closing Date in an aggregate principal amount of
$285,000,000, (b) Tranche B Term Loans on the Closing Date in an aggregate
principal amount of $465,000,000 and (c) Revolving Loans at any time and from
time to time prior to the Revolving Credit Maturity Date in an aggregate
principal amount at any time outstanding not in excess of $300,000,000;
WHEREAS, the proceeds of the Term Loans and of Revolving Loans made on the
Closing Date, together with borrowings of $150 million under the Senior
Subordinated Credit Facility, are to be used (i) to finance the Acquisition,
(ii) to consummate the Refinancing, and (iii) to pay fees and expenses related
to the Acquisition and Refinancing;
WHEREAS, Company desires to secure all of the Obligations hereunder and
under the other Loan Documents by granting to the Agents, on behalf of Lenders,
a pledge of all of the capital stock of each of its domestic Subsidiaries,
excluding Practice Patterns Science, Inc., Great Plains Reinsurance Company,
ValueRx of Michigan, Inc. and other Subsidiaries consented to by the Requisite
Lenders from time to time (the "Exempt Subsidiaries"), and 65% of the stock of
its foreign Subsidiaries; and
WHEREAS, all of the domestic Subsidiaries of Company, excluding the Exempt
Subsidiaries, have agreed to guarantee the Obligations hereunder and under the
other Loan Documents and to secure their guaranties by granting to the Agents,
on behalf of Lenders, a pledge of all of the capital stock of each of their
domestic Subsidiaries, excluding the Exempt Subsidiaries, and 65% of the stock
of all foreign Subsidiaries.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Company, Lenders and Agents agree as
follows:
SECTION 1.
DEFINITIONS
1.1. Certain Defined Terms
The following terms used in this Agreement shall have the following
meanings:
"Acquisition" has the meaning assigned to that term in the recitals to this
Agreement.
"Adjusted Eurodollar Rate" means, with respect to any Eurodollar Rate Loans
for any Interest Period, an interest rate per annum equal to the product of (a)
the Eurodollar Rate in effect for such Interest Period and (b) Statutory
Reserves.
"Administrative Agent" has the meaning assigned to that term in the
preamble to this Agreement.
"Affected Lender" has the meaning assigned to that term in subsection 2.6C.
"Affiliate", as applied to any Person, means any other Person directly or
indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise.
"Agents" means, collectively, the Administrative Agent, the Syndication
Agent, the Collateral Agent, the Lead Arranger, the Co-Arranger and the
Co-Documentation Agents and also any successor Agents appointed pursuant to
subsection 9.5A.
"Agreement" means this Credit Agreement dated as of April 1, 1999, as it
may be amended, supplemented or otherwise modified from time to time.
"Alternate Base Rate" means, at any time, the higher of (i) the Prime Rate
or (ii) the rate which is 1/2 of 1% in excess of the Federal Funds Effective
Rate.
"Alternate Base Rate Loans" means Loans bearing interest at rates
determined by reference to the Alternate Base Rate as provided in subsection
2.2A.
"Approved Fund" means, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is managed
by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"Asset Sale" means the sale by Company or any of its Subsidiaries to any
Person other than Company or any of its Wholly Owned Subsidiaries of (i) any of
the stock of any of Company's Subsidiaries (other than Express Online, Inc. and,
until the Senior Subordinated Credit Facility is repaid in full, Practice
Patterns Science, Inc., for purposes of subsection 2.4B(iii)(b)), (ii)
substantially all of the assets of any division or line of business of Company
or any of its Subsidiaries, or (iii) any other assets (whether tangible or
intangible) of Company or any of its Subsidiaries (other than (a) inventory sold
in the ordinary course of business and (b) any such other assets to the extent
that the aggregate value of such assets sold in any single transaction or
related series of transactions is equal to $500,000 or less); provided, that,
with respect to any sale that would be otherwise deemed an Asset Sale pursuant
to the foregoing, if Company shall deliver an Officers' Certificate to
Administrative Agent at or prior to receipt of proceeds of such sale setting
forth Company's intent to use such proceeds to replace Plant Assets that are the
subject of such sale with other Plant Assets necessary or desirable for the
conduct of its business, or to exchange Plant Assets for other Plant Assets used
in the conduct of its business, within 180 days of such receipt and no Event of
Default or Potential Event of Default shall have occurred and shall be
continuing at such time, such sale shall not be deemed to constitute an Asset
Sale, except to the extent such Plant Assets or proceeds thereof are not so used
within such 180-day period, after which time such sale, to such extent, shall be
deemed an Asset Sale.
"Assignment Agreement" means an Assignment Agreement in substantially the
form of Exhibit X annexed hereto.
"Assignment of Rents and Leases" means the Assignment of Rents and Leases
in such form as is customary for transactions of this type and as may be
approved by the Agents.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"BTAB" means BT Alex. Xxxxx Incorporated, as Co-Arranger.
"BTCo" has the meaning assigned to that term in the preamble to this
Agreement.
"Business Day" means any day excluding Saturday, Sunday and any day which
is a legal holiday under the laws of the State of New York or the State of
Missouri or London, England, or is a day on which banking institutions located
in any such jurisdiction are authorized or required by law or other governmental
action to close.
"Capital Lease", as applied to any Person, means any lease of any property
(whether real, personal or mixed) by that Person as lessee that, in conformity
with GAAP, is accounted for as a capital lease on the balance sheet of that
Person.
"Cash" means money, currency or a credit balance in a demand, time,
savings, passbook or like account, other than an account evidenced by a
negotiable certificate of deposit.
"Cash Equivalents" means, as at any date of determination, (i) marketable
securities (a) issued or directly and unconditionally guaranteed as to interest
and principal by the United States or (b) issued by any agency of the United
States the obligations of which are backed by the full faith and credit of the
United States, in each case maturing within one year after such date; (ii)
marketable direct obligations issued by any state of the United States or any
political subdivision of any such state or any public instrumentality thereof,
in each case maturing within one year after such date and having, at the time of
the acquisition thereof, the highest rating obtainable from either S&P or
Xxxxx'x; (iii) commercial paper maturing no more than one year from the date of
creation thereof and having, at the time of the acquisition thereof, a rating of
at least A-1 from S&P or at least P-1 from Xxxxx'x; (iv) certificates of deposit
or bankers' acceptances maturing within one year after such date and issued or
accepted by any Lender or by any commercial bank organized under the laws of the
United States of America or any state thereof or the District of Columbia that
(a) is at least "adequately capitalized" (as defined in the regulations of its
primary Federal banking regulator) and (b) has Tier 1 capital (as defined in
such regulations) of not less than $100,000,000; and (v) shares of any money
market mutual fund that (a) has at least 95% of its assets invested continuously
in the types of investments referred to in clauses (i) and (ii) above, (b) has
net assets of not less than $500,000,000, and (c) has the highest rating
obtainable from either S&P or Xxxxx'x.
"Certificate Re Non-Bank Status" means a certificate substantially in the
form of Exhibit XI annexed hereto delivered by a Lender to Administrative Agent
pursuant to subsection 2.7B(iii).
"Class," when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Tranche
A Term Loans, Tranche B Term Loans or Swing Line Loans and, when used in
reference to any Commitment, refers to whether such Commitment is a Revolving
Commitment, Tranche A Commitment or Tranche B Commitment.
"Closing Date" means the date on which the initial Loans are made.
"Co-Documentation Agents" has the meaning assigned to that term in the
preamble to this Agreement.
"Collateral" means, collectively, all of the property (including capital
stock) on which Liens are required to be granted pursuant to, and in accordance
with, this Agreement and the applicable Collateral Documents as security for the
Obligations.
"Collateral Agent" shall have the meaning assigned to such term in the
preamble of this Agreement.
"Collateral Documents" means (i) the Company Pledge Agreement and the
Subsidiary Pledge Agreements, and (ii) in the event Company is required to grant
or cause to be granted First Priority Liens on the tangible and intangible
assets of Company or its Subsidiaries pursuant to the terms of subsection 6.9A,
for so long as Company is required to maintain such First Priority Liens
pursuant to subsection 6.9B, the Mortgages, the Assignments of Rents and Leases
and the Security Agreement, in each case together with all other instruments or
documents delivered by any Loan Party pursuant to this Agreement or any of the
other Loan Documents in order to grant to the Collateral Agent, on behalf of
Lenders, a Lien on property of that Loan Party as security for the Obligations.
"Commitments" means the commitments of Lenders to make Loans as set forth
in subsection 2.1A.
"Company" has the meaning assigned to that term in the preamble to this
Agreement.
"Company Pledge Agreement" means the Company Pledge Agreement executed and
delivered by Company and the Agents on the Closing Date, substantially in the
form of Exhibit XII annexed hereto, as such Company Pledge Agreement may
thereafter be amended, supplemented or otherwise modified from time to time.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit VII annexed hereto delivered to Agent and Lenders by Company pursuant to
subsection 6.1(iii).
"Consolidated Capital Expenditures" means, for any period, the aggregate of
all expenditures (whether paid in cash or other consideration or accrued as a
liability and including that portion of Capital Leases which is capitalized on
the consolidated balance sheet of Company and its Subsidiaries) by Company and
its Subsidiaries during that period that, in conformity with GAAP, are included
in "additions to property, plant or equipment" or comparable items reflected in
the consolidated statement of cash flows of Company and its Subsidiaries minus
(i) the aggregate of all trade-in allowances and proceeds received by Company
and its Subsidiaries during that period for the exchange of plant assets owned
by Company, as described in the definition of the term "Asset Sale", (ii) up to
$25,000,000 for the cost of integrating the computer systems of DPS and Company
to the extent capitalized before December 31, 2000 and (iii) up to $12,000,000
for the cost of construction and furnishing of Company's new office building in
St. Louis and the renovation and furnishing of Company's existing office
building through December 31, 2000.
"Consolidated EBITDA" means, for any period, the sum of the amounts for
such period of (i) Consolidated Net Income, (ii) Consolidated Interest Expense,
(iii) provisions for taxes based on income, (iv) total depreciation expense, (v)
total amortization expense, (vi) other non-cash items incurred in the ordinary
course of business reducing Consolidated Net Income not in excess of 10% of
Consolidated Net Worth and (vii) for any period that includes Fiscal Quarters
ending on or prior to March 31, 2000, retention bonuses in an aggregate amount
up to $10,000,000 to the extent actually paid or accrued in such period to key
employees of DPS less other non-cash items increasing Consolidated Net Income,
all of the foregoing as determined on a consolidated basis for Company and its
Subsidiaries in conformity with GAAP.
"Consolidated Fixed Charge Coverage Ratio" shall mean, for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) the sum, without
duplication, of (i) Consolidated Interest Expense for such period, (ii) the
aggregate amount of cash taxes paid by Company and its Subsidiaries during such
period, (iii) mandatory and scheduled principal payments during such period in
respect of any Indebtedness of Company and its Subsidiaries, (iv) cash dividends
on capital stock declared by Company or any of its Subsidiaries during such
period (excluding dividends payable to Company or any of its Wholly Owned
Subsidiaries), (v) the principal component of obligations with respect to
Capital Leases paid during such period and (vi) Consolidated Capital
Expenditures during such period (the items referred to in the foregoing clauses
(i) through (vi) being collectively called "Consolidated Fixed Charges").
"Consolidated Interest Expense" means, for any period, total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP and capitalized interest) of Company and its Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness of Company and
its Subsidiaries, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers acceptance financing
and net costs under Interest Rate Agreements, but excluding, however, any
amounts referred to in subsection 2.3 payable to Agent and Lenders on or before
the Closing Date and for purposes of determining compliance with the financial
covenants in subsections 7.6A, 7.6B and 7.6C, fees which will be payable with
respect to the Senior Subordinated Credit Facility, as amended through the date
hereof.
"Consolidated Leverage Ratio" means the ratio of (i) Consolidated Total
Debt as of the last day of any Fiscal Quarter to (ii) Consolidated EBITDA for
the four-Fiscal Quarter period ending as of such day, subject to subsection
1.2B.
"Consolidated Net Income" means, for any period, the net income (or loss)
of Company and its Subsidiaries on a consolidated basis for such period taken as
a single accounting period determined in conformity with GAAP; provided that
there shall be excluded (i) the income (or loss) of any Person (other than a
Subsidiary of Company) in which any other Person (other than Company or any of
its Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Company or any of its
Subsidiaries by such Person during such period, (ii) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of Company or is merged
into or consolidated with Company or any of its Subsidiaries or that Person's
assets are acquired by Company or any of its Subsidiaries, (iii) the income of
any Subsidiary of Company to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary and (iv) any after-tax gains or losses
attributable to Asset Sales or returned surplus assets of any Pension Plan.
"Consolidated Net Worth" means, as at any date of determination, the sum of
the capital stock and additional paid-in capital plus retained earnings (or
minus accumulated deficits) of Company and its Subsidiaries on a consolidated
basis determined in conformity with GAAP.
"Consolidated Total Debt" means, as at any date of determination, the
aggregate stated balance sheet amount of all Indebtedness of Company and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"Contingent Obligation", as applied to any Person, means any direct or
indirect liability, contingent or otherwise, of that Person (i) with respect to
any Indebtedness, lease, dividend or other obligation of another if the primary
purpose or intent thereof by the Person incurring the Contingent Obligation is
to provide assurance to the obligee of such obligation of another that such
obligation of another will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect thereof, (ii)
with respect to any letter of credit issued for the account of that Person or as
to which that Person is otherwise liable for reimbursement of drawings, or (iii)
under Hedge Agreements. Contingent Obligations shall include (a) the direct or
indirect guaranty, endorsement (otherwise than for collection or deposit in the
ordinary course of business), co-making, discounting with recourse or sale with
recourse by such Person of the obligation of another, (b) the obligation to make
take-or-pay or similar payments if required regardless of non-performance by any
other party or parties to an agreement, and (c) any liability of such Person for
the obligation of another through any agreement (contingent or otherwise) (X) to
purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise) or (Y) to maintain the solvency or any balance sheet item, level
of income or financial condition of another if, in the case of any agreement
described under subclauses (X) or (Y) of this sentence, the primary purpose or
intent thereof is as described in the preceding sentence. The amount of any
Contingent Obligation shall be equal to the amount of the obligation so
guaranteed or otherwise supported or, if less, the amount to which such
Contingent Obligation is specifically limited.
"Contractual Obligation", as applied to any Person, means any Security
issued by that Person or any material indenture, mortgage, deed of trust,
contract, undertaking, agreement or other instrument to which that Person is a
party or by which it or any of its properties is bound or to which it or any of
its properties is subject.
"CSFB" has the meaning assigned to such term in the preamble to this
Agreement.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement, futures contract, option contract, synthetic cap or other similar
agreement or arrangement to which Company or any of its Subsidiaries is a party.
"Definitive Acquisition Documents" has the meaning assigned to that term in
subsection 4.1M of this Agreement.
"Dollars" and the sign "$" mean the lawful money of the United States.
"DPS" has the meaning assigned to that term in the recitals to this
Agreement.
"Eligible Assignee" means (A) (i) a commercial bank organized under the
laws of the United States or any state thereof; (ii) a savings and loan
association or savings bank organized under the laws of the United States or any
state thereof; (iii) a commercial bank organized under the laws of any other
country or a political subdivision thereof; provided that (x) such bank is
acting through a branch or agency located in the United States or (y) such bank
is organized under the laws of a country that is a member of the Organization
for Economic Cooperation and Development or a political subdivision of such
country; and (iv) any other entity which is an "accredited investor" (as defined
in Regulation D under the Securities Act) which extends credit or buys loans as
one of its businesses including insurance companies, funds and lease financing
companies; and (B) any Lender and any Affiliate of any Lender or an SPV;
provided that no Affiliate of Company shall be an Eligible Assignee.
"Employee Benefit Plan" means any "employee benefit plan" as defined in
Section 3(3) of ERISA which is or was maintained or contributed to by Company,
any of its Subsidiaries or any of their respective ERISA Affiliates.
"Environmental Claim" means any investigation, notice, notice of violation,
claim, action, suit, proceeding, demand, abatement order or other order or
directive (conditional or otherwise), in each case in writing, by any
governmental authority or any other Person, arising (i) pursuant to or in
connection with any actual or alleged violation of any Environmental Law, (ii)
in connection with any Hazardous Materials, or (iii) in connection with any
actual or alleged damage, injury, threat or harm to health or safety, as
relating to the environment, natural resources or the environment.
"Environmental Laws" means any and all current or future statutes,
ordinances, orders, rules, regulations, judgments, Governmental Authorizations,
or any other binding requirements of governmental authorities relating to (i)
environmental matters, (ii) any activity, event or occurrence involving
Hazardous Materials, or (iii) occupational safety and health, industrial
hygiene, land use or, as relating to the environment, the protection of human,
plant or animal health or welfare, in any manner applicable to Company or any of
its Subsidiaries or any Facility, including the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. ss. 9601 et seq.), the
Hazardous Materials Transportation Act (49 U.S.C. ss. 1801 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.), the Federal
Water Pollution Control Act (33 U.S.C. ss. 1251 et seq.), the Clean Air Act (42
U.S.C. ss. 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. ss. 2601
et seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. ss.
136 et seq.), the Occupational Safety and Health Act (29 U.S.C. ss. 651 et
seq.), the Oil Pollution Act (33 U.S.C. ss. 2701 et seq.) and the Emergency
Planning and Community Right-to-Know Act (42 U.S.C. ss. 11001 et seq.), each as
amended or supplemented, any analogous present or future state or local statutes
or laws, and any regulations promulgated pursuant to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto.
"ERISA Affiliate" means, as applied to any Person, (i) any corporation
which is a member of a controlled group of corporations within the meaning of
section 414(b) of the Internal Revenue Code of which that Person is a member;
(ii) any trade or business (whether or not incorporated) which is a member of a
group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii)
any member of an affiliated service group within the meaning of Section 414(m)
or (o) of the Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described in clause (ii)
above is a member. Any former ERISA Affiliate of Company or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate of Company or
such Subsidiary within the meaning of this definition with respect to the period
such entity was an ERISA Affiliate of Company or such Subsidiary and with
respect to liabilities arising after such period for which Company or such
Subsidiary could be liable under the Internal Revenue Code or ERISA.
"ERISA Event" means (i) a "reportable event" within the meaning of Section
4043 of ERISA and the regulations issued thereunder with respect to any Pension
Plan (excluding those for which the provision for 30-day notice to the PBGC has
been waived by regulation); (ii) the failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code with respect to any Pension
Plan (whether or not waived in accordance with Section 412(d) of the Internal
Revenue Code) or the failure to make by its due date a required installment
under Section 412(m) of the Internal Revenue Code with respect to any Pension
Plan or the failure to make any required contribution to a Multiemployer Plan;
(iii) the provision by the administrator of any Pension Plan pursuant to Section
4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (iv) the withdrawal by
Company, any of its Subsidiaries or any of their respective ERISA Affiliates
from any Pension Plan with two or more contributing sponsors or the termination
of any such Pension Plan resulting in liability pursuant to Section 4063 or 4064
of ERISA; (v) the institution by the PBGC of proceedings to terminate any
Pension Plan, or the occurrence of any event or condition which would constitute
grounds under ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; (vi) the imposition of liability on Company, any
of its Subsidiaries or any of their respective ERISA Affiliates pursuant to
Section 4062(e) or 4069 of ERISA or by reason of the application of Section
4212(c) of ERISA; (vii) the withdrawal of Company, any of its Subsidiaries or
any of their respective ERISA Affiliates in a complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer
Plan that results in liability therefor, or the receipt by Company, any of its
Subsidiaries or any of their respective ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated
under Section 4041A or 4042 of ERISA; (viii) receipt from the Internal Revenue
Service of notice of the failure of any Pension Plan (or any other Employee
Benefit Plan intended to be qualified under Section 401(a) of the Internal
Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or
the failure of any trust forming part of any Pension Plan to qualify for
exemption from taxation under Section 501(a) of the Internal Revenue Code; or
(ix) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan,
provided that such imposition is not otherwise a "reportable event."
"Eurodollar Business Day" means any day (i) excluding Saturday, Sunday and
any day that is a legal holiday under the laws of the State of New York or is a
day on which banking institutions located in such State are authorized or
required by law, or other governmental action to close and (ii) on which
commercial banks are open for international business (including dealings in
Dollar deposits) in London.
"Eurodollar Rate" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate per annum determined by Administrative Agent at
approximately 11:00 a.m., London time, on the date which is two Business Days
prior to the beginning of such Interest Period by reference to the British
Bankers' Association Interest Settlement Rates for deposits in Dollars (as set
forth by any service selected by Administrative Agent which has been nominated
by the British Bankers' Association as an authorized information vendor for the
purpose of displaying rates) for a period equal to such Interest Period,
provided that, to the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, the "Eurodollar Rate" shall be
the interest rate per annum determined by Administrative Agent equal to the rate
per annum at which deposits in Dollars are offered for such Interest Period by
the Administrative Agent in the London interbank market in London, England at
approximately 11:00 a.m., London time, on the date which is two Business Days
prior to the beginning of such Interest Period. "Eurodollar Rate Loans" means
Loans bearing interest at rates determined by reference to the Adjusted
Eurodollar Rate as provided in subsection 2.2A.
"Eurodollar Rate Margin" has the meaning specified in subsection 2.2A.
"Event of Default" means each of the events set forth in Section 8.
"Excess Cash Flow" shall mean, for any Fiscal Year, the sum (without
duplication) of:
(a) Consolidated Net Income, adjusted to exclude any income, gains or
losses attributable to any Asset Sale the proceeds of which are required to be
applied to prepay Loans under subsection 2.4(B)(iii)(b); plus
(b) depreciation, amortization and other non-cash charges or losses
deducted in determining Consolidated Net Income for such period; minus
(c) payments during such period on account of charges added to Excess Cash
Flow for an earlier period pursuant to clause (b) above as "non-cash charges or
losses" in such earlier period; plus
(d) the sum of (i) the amount, if any, by which Net Working Capital
decreased during such period, plus (ii) the aggregate principal amount of
Indebtedness (other than obligations with respect to Capital Leases) incurred by
Company and its Subsidiaries during such period to finance Capital Expenditures;
minus
(e) the sum of (i) any non-cash gains included in determining such
Consolidated Net Income (or loss) for such period, plus (ii) the amount, if any,
by which Net Working Capital increased during such period; plus
(f) amounts received during such period on account of gains subtracted from
Excess Cash Flow for an earlier period pursuant to clause (e)(i) above as
"non-cash gains" in such earlier period; minus
(g) Consolidated Capital Expenditures for such period; minus
(h) the sum of (i) scheduled amortization payments made in respect of the
Term Loans during such period, (ii) scheduled amortization or similar payments
made during such period in respect of other Indebtedness of Company and its
Subsidiaries and (iii) mandatory prepayments made during such period in respect
of other Indebtedness of Company and its Subsidiaries; plus
(i) the net proceeds of Indebtedness incurred by Company and its
Subsidiaries during such period to the extent such proceeds were applied to make
payments or prepayments of Indebtedness referred to in clause (h) above.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor statute.
"Exempt Subsidiaries" has the meaning assigned to that term in the recitals
to this Agreement.
"Existing Credit Agreement" means that certain Credit Agreement dated as of
April 1, 1998 by and among Company, the lenders named therein and BTCo, as
administrative agent, as amended from time to time prior to the Closing Date.
"Facilities" means any and all real property (including all buildings,
fixtures or other improvements located thereon) now, hereafter or heretofore
owned, leased, operated or used by Company or any of its Subsidiaries or any of
their respective predecessors or Affiliates.
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by Agent from three Federal funds brokers of recognized
standing selected by Agent.
"Financial Plan" has the meaning assigned to that term in subsection
6.1(xii).
"First Priority" means, with respect to any Lien purported to be created in
any Collateral pursuant to any Collateral Document, that, other than Permitted
Encumbrances and Liens permitted pursuant to subsection 7.2, (i) such Lien has
priority over any other Lien on such Collateral or (ii) such Lien is the only
Lien to which such Collateral is subject.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Company and its Subsidiaries ending
on December 31 of each calendar year.
"Funding and Payment Office" means (i) the office of Administrative Agent
and Swing Line Lender located at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
or (ii) such other office of Administrative Agent and Swing Line Lender as may
from time to time hereafter be designated as such in a written notice delivered
by Agent and Swing Line Lender to Company and each Lender.
"Funding Date" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application thereof set
forth in subsection 1.2, generally accepted accounting principles set forth in
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, in each case as the same are applicable to the circumstances as of
the date of determination, provided that, if Company notifies Administrative
Agent that Company requests an amendment to any provision hereof to eliminate
the effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if Administrative
Agent requests an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in
GAAP or in the application thereof, then such provision shall be interpreted on
the basis of GAAP as in effect and applied immediately before such change shall
have become effective until the earliest of (i) the withdrawal of such notice,
(ii) the amendment of such provision in accordance herewith, or (iii) 180 days
after such notice has been given.
"Governmental Authorization" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any federal, state
or local governmental authority, agency or court.
"Granting Lender" has the meaning given such term in subsection 10.1E.
"Hazardous Materials" means (i) any chemical, material or substance at any
time defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous waste", "acutely
hazardous waste", "radioactive waste", "biohazardous waste", "pollutant", "toxic
pollutant", "contaminant", "restricted hazardous waste", "infectious waste",
"toxic substances", or any other term or expression intended to define, list or
classify substances by reason of properties harmful to health, safety or the
indoor or outdoor environment (including harmful properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive
toxicity, "TCLP toxicity" or "EP toxicity" or words of similar import under any
applicable Environmental Laws); (ii) any oil, petroleum, petroleum fraction or
petroleum derived substance; (iii) any drilling fluids, produced waters and
other wastes associated with the exploration, development or production of crude
oil, natural gas or geothermal resources; (iv) any flammable substances or
explosives; (v) any radioactive materials; (vi) any friable asbestos-containing
materials; (vii) urea formaldehyde foam insulation; (viii) electrical equipment
which contains any oil or dielectric fluid containing polychlorinated biphenyls;
(ix) pesticides; and (x) any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any governmental authority pursuant
to Environmental Laws.
"Hedge Agreement" means an Interest Rate Agreement or a Currency Agreement
designed to hedge against fluctuations in interest rates or currency values,
respectively.
"Indebtedness", as applied to any Person, means (i) all indebtedness for
borrowed money, (ii) that portion of obligations with respect to Capital Leases
that is properly classified as a liability on a balance sheet in conformity with
GAAP, (iii) notes payable and drafts accepted representing extensions of credit
whether or not representing obligations for borrowed money, (iv) any obligation
owed for all or any part of the deferred purchase price of property or services
(excluding any such obligations incurred under ERISA), which purchase price is
(a) due more than six months from the date of incurrence of the obligation in
respect thereof or (b) evidenced by a note or similar written instrument, and
(v) all indebtedness secured by any Lien on any property or asset owned or held
by that Person regardless of whether the indebtedness secured thereby shall have
been assumed by that Person or is nonrecourse to the credit of that Person.
Obligations under Interest Rate Agreements and Currency Agreements constitute
(X) in the case of Hedge Agreements, Contingent Obligations, and (Y) in all
other cases, Investments, and in neither case constitute Indebtedness.
"Indemnity" has the meaning assigned to that term in subsection 10.3.
"Initial Period" means the period commencing on and including the Closing
Date and ending on the earlier of (i) the date on which the Lead Arranger
notifies Company that the Agents have concluded their primary syndication of the
Loans and the Commitments, and (ii) ninety (90) days after the Closing Date.
"Insurance or Condemnation Event" means the receipt by Company or any of
its Subsidiaries of (i) any Cash payments under any insurance policy as a result
of any damage to or loss of all or any portion of its tangible assets, (ii) any
Cash payments as a result of any warranty claims or (iii) any Cash proceeds
resulting from the taking of assets by the power of eminent domain, condemnation
or otherwise; provided, that with respect to any such event that would be
otherwise deemed an Insurance or Condemnation Event pursuant to the foregoing,
and if cash proceeds are less than $10,000,000, if Company shall deliver an
Officers' Certificate to Administrative Agent at or prior to receipt of the Cash
payment or proceeds of such event setting forth Company's intent to use such
Cash payment or proceeds to replace assets that would be included in Plant
Assets that are the subject of such event with other Plant Assets necessary or
desirable for the conduct of its business within 360 days of such receipt and no
Event of Default or Potential Event of Default shall have occurred and shall be
continuing at such time, such receipt shall not be deemed to constitute an
Insurance or Condemnation Event, except to the extent such Cash payment or
proceeds are not so used within such 360-day period, after which time such
event, to such extent, shall be deemed an Insurance or Condemnation Event.
"Interest Payment Date" means (i) with respect to any Alternate Base Rate
Loan, each January 15, April 15, July 15 and October 15 of each year, commencing
on July 15, 1999, and (ii) with respect to any Eurodollar Rate Loan, the last
day of each Interest Period applicable to such Loan; provided that in the case
of each Interest Period of longer than three months "Interest Payment Date"
shall also include each date that is three months, or an integral multiple
thereof, after the commencement of such Interest Period.
"Interest Period" has the meaning assigned to that term in subsection 2.2B.
"Interest Rate Agreement" means any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement or other similar agreement or
arrangement to which Company or any of its Subsidiaries is a party.
"Interest Rate Determination Date" means, with respect to any Interest
Period, the second Eurodollar Business Day prior to the first day of such
Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
to the date hereof and from time to time hereafter, and any successor statute.
"Investment" means (i) any direct or indirect purchase or other acquisition
by Company or any of its Subsidiaries of, or of a beneficial interest in, any
Securities of any other Person (other than a Person that immediately prior to
such purchase or acquisition was a Subsidiary of Company and so long as such
Person remains a Subsidiary of Company), (ii) any direct or indirect loan,
advance (other than advances to employees for moving, entertainment and travel
expenses, drawing accounts and similar expenditures in the ordinary course of
business) or capital contribution by Company or any of its Subsidiaries to any
other Person (other than a Subsidiary of Company), including all indebtedness
and accounts receivable from that other Person that are not current assets or
did not arise from sales to that other Person in the ordinary course of
business, or (iii) Interest Rate Agreements or Currency Agreements not
constituting Hedge Agreements. The amount of any Investment shall be the
original cost of such Investment plus the cost of all additions thereto, without
any adjustments for increases or decreases in value, or write-ups, write-downs
or write-offs with respect to such Investment.
"Investment Grade" means (i) with respect to S&P, any of the rating
categories from and including AAA to and including BBB- and (ii) with respect to
Moody's, any of the rating categories from and including Aaa to and including
Baa3.
"Issuing Lender" means, with respect to any Letter of Credit, the Lender
which agrees or is otherwise obligated to issue such Letter of Credit,
determined as provided in subsection 3.1B(ii).
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; provided
that in no event shall any corporate Subsidiary of any Person be considered to
be a Joint Venture to which such Person is a party.
"Leasehold Property" means any leasehold interest of any Loan Party as
lessee under any lease of real property.
"Lender" and "Lenders" means the persons identified as "Lenders" and listed
on the signature pages of this Agreement, together with their successors and
permitted assigns pursuant to subsection 10.1, and the term "Lenders" shall
include Swing Line Lender unless the context otherwise requires; provided that
the term "Lenders", when used in the context of a particular Commitment, shall
mean Lenders having that Commitment.
"Letter of Credit" or "Letters of Credit" means Standby Letters of Credit
issued or to be issued by Issuing Lenders for the account of Company pursuant to
subsection 3.1.
"Letter of Credit Usage" means, as at any date of determination, the sum of
(i) the maximum aggregate amount which is or at any time thereafter may become
available for drawing under all Letters of Credit then outstanding plus (ii) the
aggregate amount of all drawings under Letters of Credit honored by Issuing
Lenders and not theretofore reimbursed by Company (including, without
duplication, any such reimbursement out of the proceeds of Revolving Loans
pursuant to subsection 3.3B).
"Lien" means any lien, mortgage, pledge, assignment, security interest,
charge or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to give
any security interest) and any option, trust or other preferential arrangement
having the practical effect of any of the foregoing.
"Loan" or "Loans" means one or more of the Term Loans, Revolving Loans or
Swing Line Loans or any combination thereof.
"Loan Documents" means this Agreement, the Notes, the Letters of Credit
(and any applications for, or reimbursement agreements or other documents or
certificates executed by Company in favor of an Issuing Lender relating to, the
Letters of Credit), the Subsidiary Guaranty, any Hedge Agreement to which a
Lender is a counterparty and the Collateral Documents.
"Loan Party" means each of Company and any of Company's Subsidiaries from
time to time executing a Loan Document, and "Loan Parties" means all such
Persons, collectively.
"Margin Stock" has the meaning assigned to that term in Regulation U of the
Board of Governors of the Federal Reserve System as in effect from time to time.
"Material Adverse Effect" means (i) a material adverse effect upon the
business, assets, financial position, operations, or results of operations of
Company and its Subsidiaries taken as a whole or (ii) the material impairment of
the ability of any Loan Party to perform, or of Administrative Agent or Lenders
to enforce, the Obligations.
"Material Contract" means any contract or other arrangement to which
Company or any of its Subsidiaries is a party (other than the Loan Documents)
which is (i) listed on Schedule 5.8 as of the date hereof or (ii) is filed by
Company or any of its Subsidiaries with the Securities and Exchange Commission.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means a security instrument (whether designated as a deed of
trust or a mortgage or by any similar title) executed and delivered by any Loan
Party, in such form as is customary for transactions of this type and as may be
approved by the Agents.
"Multiemployer Plan" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"Net Asset Sale Proceeds" means, with respect to any Asset Sale, Cash
payments (including any Cash received by way of deferred payment pursuant to, or
by monetization of, a note receivable or otherwise, but only as and when so
received) received from such Asset Sale, net of any bona fide direct costs
incurred in connection with such Asset Sale, including (i) income taxes
reasonably estimated to be actually payable within two years of the date of such
Asset Sale as a result of any gain recognized in connection with such Asset
Sale, (ii) payment of the outstanding principal amount of, premium or penalty,
if any, and interest on any Indebtedness (other than the Loans) that is secured
by a Lien on the assets in question and that is required to be repaid under the
terms thereof as a result of such Asset Sale and (iii) payment of fees and
reasonable out-of-pocket expenses in connection with such sale.
"Net Insurance Proceeds" means, with respect to any Insurance or
Condemnation Event, Cash received (including any Cash received by way of
deferred payment, but only as and when so received) by Company or any of its
Subsidiaries as a result of such Insurance or Condemnation Event, net of any
bona fide direct costs incurred in connection with such Insurance or
Condemnation Event, including payment of fees and reasonable out-of-pocket
expenses in connection with adjustment and settlement thereof.
"Net Working Capital" shall mean, at any date, (a) the consolidated current
assets of Company and its Subsidiaries as of such date (excluding Cash and Cash
Equivalents) minus (b) the consolidated current liabilities of Company and its
Subsidiaries as of such date (excluding current liabilities in respect of
Indebtedness). Net Working Capital at any date may be a positive number or
negative number. Net Working Capital increases when it becomes more positive or
less negative and decreases when it becomes less positive or more negative.
"New York Life" means NYLIFE HealthCare Management, Inc., an indirect
subsidiary of New York Life Insurance Co., a mutual life insurance company
organized and existing under the laws of the State of New York.
"Non-US Lender" has the meaning assigned to that term in subsection
2.7B(iii)(a).
"Notes" means one or more of the Term Notes, Revolving Notes or Swing Line
Note or any combination thereof.
"Notice of Borrowing" means a notice substantially in the form of Exhibit I
annexed hereto delivered by Company to Administrative Agent pursuant to
subsection 2.1B with respect to a proposed borrowing.
"Notice of Conversion/Continuation" means a notice substantially in the
form of Exhibit II annexed hereto delivered by Company to Administrative Agent
pursuant to subsection 2.2D with respect to a proposed conversion or
continuation of the applicable basis for determining the interest rate with
respect to the Loans specified therein.
"Notice of Request to Issue Letter of Credit" means a notice substantially
in the form of Exhibit III annexed hereto delivered by Company to Administrative
Agent pursuant to subsection 3.1B(i) with respect to the proposed issuance of a
Letter of Credit.
"Obligations" means all obligations, including obligations under Hedge
Agreements, of every nature of each Loan Party from time to time owed to the
Agents, Lenders or any of them under the Loan Documents, whether for principal,
interest, reimbursement of amounts drawn under Letters of Credit, fees,
expenses, indemnification or otherwise.
"Officers' Certificate" means, as applied to any corporation, a certificate
executed on behalf of such corporation by its chairman of the board (if an
officer) or its president or one of its vice presidents and by its chief
financial officer or its treasurer.
"Operating Lease" means, as applied to any Person, any lease (including
leases that may be terminated by the lessee at any time) of any property
(whether real, personal or mixed) that is not a Capital Lease other than any
such lease under which that Person is the lessor.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Pension Plan" means any Employee Benefit Plan, other than a Multiemployer
Plan, which is subject to Section 412 of the Internal Revenue Code or Section
302 of ERISA.
"Permitted Acquisitions" means the acquisition of stock or other assets for
consideration (with non-cash consideration being valued at fair market value)
that results in acquired assets being owned by Company or a Wholly Owned
Subsidiary and, if such assets are equity interests in a Person, such Person
being a Wholly Owned Subsidiary, provided, however, that, on a pro forma basis,
after giving effect to any such acquisition or acquisitions for aggregate
consideration exceeding $5,000,000 in any Fiscal Year, the Consolidated Leverage
Ratio is less than 3.0 to 1.0.
"Permitted Encumbrances" means the following types of Liens (excluding any
such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or by ERISA):
(i) Liens for taxes, assessments or governmental charges or claims the
payment of which is not, at the time, required by subsection 6.3;
(ii) statutory Liens of landlords, statutory Liens of banks and rights of
set-off, statutory Liens of carriers, warehousemen, mechanics, repairmen,
workmen and materialmen, and other Liens imposed by law, in each case incurred
in the ordinary course of business (a) for amounts not yet overdue or (b) for
amounts that are overdue and that (in the case of any such amounts overdue for a
period in excess of 30 days) are being contested in good faith by appropriate
proceedings, so long as (1) such reserves or other appropriate provisions, if
any, as shall be required by GAAP shall have been made for any such contested
amounts, and (2) in the case of a Lien with respect to any portion of the
Collateral, such contest proceedings conclusively operate to stay the sale of
any material portion of the Collateral on account of such Lien;
(iii) Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, trade contracts,
performance and return-of-money bonds and other similar obligations (exclusive
of obligations for the payment of borrowed money), so long as no foreclosure,
sale or similar proceedings have been commenced with respect to any material
portion of the Collateral on account thereof;
(iv) any attachment or judgment Lien not constituting an Event of Default
under subsection 8.8;
(v) leases or subleases granted to third parties in accordance with any
applicable terms of the Collateral Documents and not interfering in any material
respect with the ordinary conduct of the business of Company or any of its
Subsidiaries or resulting in a material diminution in the value of any
Collateral as security for the Obligations;
(vi) easements, rights-of-way, restrictions, encroachments, and other minor
defects or irregularities in title, in each case which do not and will not
interfere in any material respect with the ordinary conduct of the business of
Company or any of its Subsidiaries or result in a material diminution in the
value of any Collateral as security for the Obligations;
(vii) any (a) interest or title of a lessor or sublessor under any lease
permitted by this Agreement, (b) restriction or encumbrance that the interest or
title of such lessor or sublessor may be subject to, or (c) subordination of the
interest of the lessee or sublessee under such lease to any restriction or
encumbrance referred to in the preceding clause (b), so long as the holder of
such restriction or encumbrance agrees to recognize the rights of such lessee or
sublessee under such lease;
(viii) Liens arising from filing UCC financing statements relating solely
to leases permitted by this Agreement;
(ix) Liens in favor of customs and revenue authorities arising as a matter
of law to secure payment of customs duties in connection with the importation of
goods;
(x) any zoning or similar law or right reserved to or vested in any
governmental office or agency to control or regulate the use of any real
property;
(xi) Liens securing obligations (other than obligations representing
Indebtedness for borrowed money) under operating, reciprocal easement or similar
agreements entered into in the ordinary course of business of Company and its
Subsidiaries;
(xii) licenses of patents, trademarks and other intellectual property
rights granted by Company or any of its Subsidiaries in the ordinary course of
business and not interfering in any material respect with the ordinary conduct
of the business of Company or such Subsidiary;
(xiii) Liens securing Hedge Agreements to the extent such Liens are limited
to the property that is the subject of the Hedge Agreements: and
(xiv) Liens imposed by Environmental Laws to the extent not in violation of
any of the representations, warranties or covenants in respect of Environmental
Laws made by Company in this Agreement.
"Person" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"Plant Assets" means assets that would be included in "property, plant and
equipment" reflected in the consolidated balance sheet of Company and its
Subsidiaries.
"Pledged Collateral" means, collectively, the "Pledged Collateral" as
defined in the Company Pledge Agreement and the Subsidiary Pledge Agreements.
"Potential Event of Default" means a condition or event that, after notice
or lapse of time or both, would constitute an Event of Default.
"Prime Rate" means the rate that CSFB announces from time to time as its
prime lending rate, as in effect from time to time. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. CSFB or any other Lender may make commercial
loans or other loans at rates of interest at, above or below the Prime Rate.
"Pro Rata Share" means (i) with respect to all payments, computations and
other matters relating to any Term Loan Commitment or any Term Loan of any
Lender, the percentage obtained by dividing (x) the Term Loan Exposure of that
Lender by (y) the aggregate Term Loan Exposure of all Lenders, in each case,
with respect to the applicable Tranche, (ii) with respect to all payments,
computations and other matters relating to the Revolving Loan Commitment or the
Revolving Loans of any Lender or any Letters of Credit issued or participations
therein purchased by any Lender or any participations in any Swing Line Loans
purchased by any Lender, the percentage obtained by dividing (x) the Revolving
Loan Exposure of that Lender by (y) the aggregate Revolving Loan Exposure of all
Lenders, and (iii) for all other purposes with respect to each Lender, the
percentage obtained by dividing (x) the sum of the Term Loan Exposure of that
Lender plus the Revolving Loan Exposure of that Lender by (y) the sum of the
aggregate Term Loan Exposure of all Lenders plus the aggregate Revolving Loan
Exposure of all Lenders, in any such case as the applicable percentage may be
adjusted by assignments permitted pursuant to subsection 10.1. The initial Pro
Rata Share of each Lender for purposes of each of clauses (i), (ii) and (iii) of
the preceding sentence is set forth opposite the name of that Lender in Schedule
2.1 annexed hereto.
"Recovery Event" has the meaning assigned to that term in subsection
2.4(iii)(d).
"Refunded Swing Line Loans" has the meaning assigned to that term in
subsection 2.1A(iii).
"Register" has the meaning assigned to that term in subsection 2.1D.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Reimbursement Date" has the meaning assigned to that term in subsection
3.3B.
"Replaced Lender" and "Replacement Lender" have the meanings assigned to
those terms in subsection 2.8.
"Requisite Lenders" means Lenders having or holding more than 50% of the
sum of (i) the aggregate Term Loan Exposure of all Lenders plus (ii) the
aggregate Revolving Loan Exposure of all Lenders.
"Restricted Junior Payment" means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock of Company
now or hereafter outstanding, except a dividend payable solely in shares of that
class of stock to the holders of that class, (ii) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of stock of Company now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of stock of Company now or hereafter outstanding, and (iv) any payment or
prepayment of principal of, premium, if any, or interest on, or redemption,
purchase, retirement, defeasance (including in-substance or legal defeasance),
sinking fund or similar payment with respect to, any Subordinated Indebtedness.
"Revolving Lender" means a Lender having a Revolving Loan Commitment.
"Revolving Loan Commitment" means the commitment of a Lender to make
Revolving Loans to Company pursuant to subsection 2.1A(ii), and "Revolving Loan
Commitments" means such commitments of all Lenders in the aggregate.
"Revolving Loan Commitment Termination Date" means March 31, 2005.
"Revolving Loan Exposure" means, with respect to any Lender as of any date
of determination (i) prior to the termination of the Revolving Loan Commitments,
that Lender's Revolving Loan Commitment and (ii) after the termination of the
Revolving Loan Commitments, the sum of (a) the aggregate outstanding principal
amount of the Revolving Loans of that Lender plus (b) in the event that Lender
is an Issuing Lender and without duplication from amounts counted under (a)
above, the aggregate Letter of Credit Usage in respect of all Letters of Credit
issued by that Lender (in each case net of any participations purchased by other
Lenders in such Letters of Credit or any unreimbursed drawings thereunder) plus
(c) the aggregate amount of all participations purchased by that Lender in any
outstanding Letters of Credit or any unreimbursed drawings under any Letters of
Credit plus (d) in the case of Swing Line Lender, the aggregate outstanding
principal amount of all Swing Line Loans (net of any participations therein
purchased by other Lenders) plus (e) the aggregate amount of all participations
purchased by that Lender in any outstanding Swing Line Loans.
"Revolving Loans" means the Loans made by Lenders to Company pursuant to
subsection 2.1A(ii).
"Revolving Notes" means (i) the promissory notes of Company issued pursuant
to subsection 2.1E(ii) on the Closing Date and (ii) any promissory notes issued
by Company pursuant to the last sentence of subsection 10.1B(i) in connection
with assignments of the Revolving Loan Commitments and Revolving Loans of any
Lenders, in each case substantially in the form of Exhibit V annexed hereto, as
they may be amended, supplemented or otherwise modified from time to time.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"Secured Obligations" shall have the meaning given such term in subsection
2.4D(i).
"Securities" means any stock, shares, partnership interests, voting trust
certificates, certificates of interest or participation in any profit-sharing
agreement or arrangement, options, warrants, bonds, debentures, notes, or other
evidences of indebtedness, secured or unsecured, convertible, subordinated or
otherwise, or in general any instruments commonly known as "securities" or any
certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, and any successor statute.
"Security Agreement" means the Security Agreement in such form as is
customary for transactions of this type and as may be approved by the Agents in
their sole discretion.
"Seller" has the meaning assigned to that term in the recitals to the
Agreement.
"Senior Subordinated Credit Facility" means that certain senior
subordinated credit agreement dated as of April 1, 1999 by and among Company,
the lenders named therein and CSFB, as lead arranger and administrative agent,
consisting of up to $150 million in loan commitments (including the conversions
or exchanges thereof pursuant to the provisions of such senior subordinated
credit agreement).
"Solvent" means, with respect to any Person, that as of the date of
determination (i) the then fair saleable value of the property of such Person,
including without limitation any rights of subrogation and contribution, is (y)
greater than the total amount of liabilities (including contingent liabilities)
of such Person and (z) not less than the amount that will be required to pay the
probable liabilities on such Person's then existing debts as they become
absolute and matured considering all financing alternatives and potential asset
sales reasonably available to such Person; (ii) such Person's capital is not
unreasonably small in relation to its business or any contemplated or undertaken
transaction; and (iii) such Person does not intend to incur, or believe (nor
should it reasonably believe) that it will incur, debts beyond its ability to
pay such debts as they become due. For purposes of this definition, the amount
of any contingent liability at any time shall be computed as the amount that, in
light of all of the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
"SPV" has the meaning given such term in subsection 10.1E.
"Standby Letter of Credit" means any standby letter of credit or similar
instrument issued for the purpose of supporting (i) Indebtedness of Company or
any of its Subsidiaries in respect of industrial revenue or development bonds or
financings, (ii) workers, compensation liabilities of Company or any of its
Subsidiaries, (iii) the obligations of third party insurers of Company or any of
its Subsidiaries arising by virtue of the laws of any jurisdiction requiring
third party insurers, (iv) obligations with respect to Capital Leases or
Operating Leases of Company or any of its Subsidiaries, and (v) performance,
payment, deposit or surety obligations of Company or any of its Subsidiaries, in
any case if required by law or governmental rule or regulation or in accordance
with custom and practice in the industry; provided that Standby Letters of
Credit may not be issued for the purpose of supporting (a) trade payables or (b)
any Indebtedness constituting "antecedent debt" (as that term is used in Section
547 of the Bankruptcy Code).
"Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board for Eurocurrency Liabilities (as defined in Regulation
D of the Board). Such reserve percentages shall include those imposed pursuant
to such Regulation D. Eurodollar Rate Loans shall be deemed to constitute
Eurocurrency Liabilities and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D. Statutory Reserves
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Subordinated Indebtedness" means Indebtedness of Company subordinated in
right of payment to the Obligations pursuant to documentation containing
maturities, amortization schedules, covenants, defaults, remedies, subordination
provisions and other material terms in form and substance satisfactory to
Administrative Agent and Requisite Lenders.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof; provided, that Diversified NY IPA, Inc. and Diversified Pharmaceutical
Services (Puerto Rico) Inc. shall not be deemed Subsidiaries of Company for all
purposes of this Agreement but shall be deemed Affiliates of Company.
"Subsidiary Guarantor" means any Subsidiary of Company that executes and
delivers a counterpart of the Subsidiary Guaranty on the Closing Date or from
time to time thereafter pursuant to subsection 6.8, but in any event excluding
the Exempt Subsidiaries.
"Subsidiary Guaranty" means the Subsidiary Guaranty executed and delivered
by existing Subsidiaries of Company on the Closing Date and to be executed and
delivered by additional Subsidiaries of Company from time to time thereafter in
accordance with subsection 6.8, substantially in the form of Exhibit XIII
annexed hereto, as such Subsidiary Guaranty may hereafter be amended,
supplemented or otherwise modified from time to time.
"Subsidiary Pledge Agreement" means each Subsidiary Pledge Agreement
executed and delivered by an existing Subsidiary Guarantor on the Closing Date
or executed and delivered by any additional Subsidiary Guarantor from time to
time thereafter in accordance with subsection 6.8, in each case substantially in
the form of Exhibit XIV annexed hereto, as such Subsidiary Pledge Agreement may
be amended, supplemented or otherwise modified from time to time, and
"Subsidiary Pledge Agreements" means all such Subsidiary Pledge Agreements,
collectively.
"Supplemental Collateral Agent" has the meaning assigned to that term in
subsection 9.1B.
"Swing Line Lender" means CSFB or any Person serving as a successor Agent
hereunder, in its capacity as Swing Line Lender hereunder.
"Swing Line Loan Commitment" means the commitment of Swing Line Lender to
make Swing Line Loans to Company pursuant to subsection 2.1A(iii).
"Swing Line Loans" means the Loans made by Swing Line Lender to Company
pursuant to subsection 2.1A(iii).
"Swing Line Note" means (i) the promissory note of Company issued pursuant
to subsection 2.1E(iii) on the Closing Date and (ii) any promissory note issued
by Company to any successor Administrative Agent and Swing Line Lender pursuant
to the last sentence of subsection 9.5B, in each case substantially in the form
of Exhibit VI annexed hereto, as it may be amended, supplemented or otherwise
modified from time to time.
"Syndication Agent" has the meaning assigned to that term in the preamble
to this Agreement.
"Tax" or "Taxes" means any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or
assessed; provided that "Tax on the Overall Net Income" of a Person shall be
construed as a reference to a tax imposed by one of: the jurisdiction in which
that Person is organized or in which that Person's principal office (and/or, in
the case of a Lender, its lending office) is located or in which that Person
(and/or, in the case of a Lender, its lending office) is deemed to be doing
business on all or part of the net income, profits or gains (whether worldwide,
or only insofar as such income, profits or gains are considered to arise in or
to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in
the case of a Lender, its lending office). "Term Lender" means a Lender having a
Term Loan Commitment, or who has made a Term Loan, and any assignee of such
Lender pursuant to subsection 10.1.
"Term Loan Commitments" shall mean the Tranche A Commitments and the
Tranche B Commitments.
"Term Loan Exposure" means, with respect to any Lender as of any date of
determination (i) prior to the funding of the Term Loans, that Lender's Term
Loan Commitment and (ii) after the funding of the Term Loans, the outstanding
principal amount of the Term Loan of that Lender.
"Term Loans" shall mean the Tranche A Term Loans and the Tranche B Term
Loans.
"Term Notes" shall mean the Tranche A Term Notes and the Tranche B Term
Notes.
"Tranche A Commitment" means the commitment of a Lender to make a Tranche A
Term Loan as set forth on Schedule 2.1, as the same may be (a) reduced from time
to time pursuant to subsection 2.4 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to subsection 10.1.
"Tranche A Lender" shall mean a Lender with a Tranche A Commitment or with
outstanding Tranche A Term Loans.
"Tranche A Maturity Date" shall mean March 31, 2005.
"Tranche A Term Borrowing" shall mean a Borrowing comprised of Tranche A
Term Loans.
"Tranche A Term Loans" shall mean the term loans made by Lenders to Company
pursuant to subsection 2.1(A)(i)(a).
"Tranche A Term Notes" means (i) the promissory notes of Company issued
pursuant to subsection 2.1E(i) on the Closing Date with respect to the Tranche A
Term Loans and (ii) any promissory notes issued by Company pursuant to the last
sentence of subsection 10.1B(i) in connection with assignments of the Tranche A
Commitments or Tranche A Term Loans of any Lenders, in each case substantially
in the form of Exhibit IV-A annexed hereto, as they may be amended, supplemented
or otherwise modified from time to time.
"Tranche B Commitment" means the commitment of a Lender to make a Tranche B
Term Loan as set forth on Schedule 2.1, as the same may be (a) reduced from time
to time pursuant to subsection 2.4 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to subsection 10.1.
"Tranche B Lender" shall mean a Lender with a Tranche B Commitment or with
outstanding Tranche B Term Loans.
"Tranche B Maturity Date" shall mean March 31, 2007.
"Tranche B Term Borrowing" shall mean a Borrowing comprised of Tranche B
Term Loans.
"Tranche B Term Loans" shall mean the term loans made by the Lenders to
Company pursuant to subsection 2.1(A)(i)(b).
"Tranche B Term Notes" means (i) the promissory notes of Company issued
pursuant to subsection 2.1E(i) on the Closing Date with respect to the Tranche B
Term Loans and (ii) any promissory notes issued by Company pursuant to the last
sentence of subsection 10.1B(i) in connection with assignments of the Tranche B
Commitments or Tranche B Term Loans of any Lenders, in each case substantially
in the form of Exhibit IV-B annexed hereto, as they may be amended, supplemented
or otherwise modified from time to time.
"Total Utilization of Revolving Loan Commitments" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
Revolving Loans plus (ii) the aggregate principal amount of all outstanding
Swing Line Loans plus (iii) the Letter of Credit Usage.
"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction.
"ValueRx" means ValueRx Pharmacy Program, Inc., a Michigan corporation.
"Wholly Owned Subsidiary" shall mean a Subsidiary of which securities
(except for directors' qualifying shares) or other ownership interests
representing 100% of the equity or 100% of the ordinary voting power or 100% of
the general partnership interests are, at the time any determination is being
made, owned, controlled or held, directly or indirectly, by Company or one or
more Wholly Owned Subsidiaries.
1.2. Accounting Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement; Fiscal Periods for Determining Compliance and Pricing
A. Except as otherwise expressly provided in this Agreement, all accounting
terms not otherwise defined herein shall have the meanings assigned to them in
conformity with GAAP. Financial statements and other information required to be
delivered by Company to Lenders pursuant to clauses (i), (ii) and (xii) of
subsection 6.1 shall be prepared in accordance with GAAP as in effect at the
time of such preparation (and delivered together with the reconciliation
statements provided for in subsection 6.1(iv)).
B. For purposes of determining Consolidated EBITDA, Consolidated Interest
Expense, and the Consolidated Leverage Ratio for purposes of subsections 2.2A
and 2.3A and determining compliance with the financial covenants in subsections
7.6A, 7.6B and 7.6C for any period including Fiscal Quarters ending on or prior
to March 31, 2000, if such calculation requires using the four prior Fiscal
Quarters, such calculation shall be annualized based upon the Fiscal Quarters
ending after the Closing Date.
1.3. Other Definitional Provisions and Rules of Construction
A. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference.
B. References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided.
C. The use in any of the Loan Documents of the word "include" or
"including", when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1. Commitments; Making of Loans; the Register; Notes
A. Commitments. Subject to the terms and conditions of this Agreement and
in reliance upon the representations and warranties of Company herein set forth,
each Term Lender hereby severally agrees to make the Term Loans described in
subsection 2.1A(i), each Revolving Lender hereby severally agrees to make the
Revolving Loans described in subsection 2.1A(ii), and Swing Line Lender hereby
agrees to make the Loans described in subsection 2.1A(iii).
(i) Term Loans. (a) Each Tranche A Lender severally agrees to lend to
Company on the Closing Date an amount not exceeding its Pro Rata Share of the
aggregate amount of the Tranche A Commitments, to be used for the purposes
identified in subsection 2.5A. (b) Each Tranche B Lender severally agrees to
lend to Company on the Closing Date an amount not exceeding its Pro Rata Share
of the Tranche B Commitments, to be used for the purposes identified in
subsection 2.5A. The amount of each Term Lender's Tranche A Commitment and
Tranche B Commitment, respectively, is set forth opposite its name on Schedule
2.1 annexed hereto and the aggregate amount of the Term Loan Commitments is
$750,000,000; provided that the Term Loan Commitments of Term Lenders shall be
adjusted to give effect to any assignments of the Term Loan Commitments pursuant
to subsection 10.1B. Each Term Lender's Term Loan Commitment shall expire
immediately and without further action on June 30, 1999 if the Term Loans are
not made on or before that date. Company may make only one borrowing under the
Term Loan Commitments. Amounts borrowed under this subsection 2.1A(i) and
subsequently repaid or prepaid may not be reborrowed.
(ii) Revolving Loans. Each Revolving Lender severally agrees, subject to
the limitations set forth below with respect to the maximum amount of Revolving
Loans permitted to be outstanding from time to time, to lend to Company from
time to time during the period from the Closing Date to but excluding the
Revolving Loan Commitment Termination Date an aggregate amount not exceeding its
Pro Rata Share of the aggregate amount of the Revolving Loan Commitments to be
used for the purposes identified in subsection 2.5B. The original amount of each
Revolving Lender's Revolving Loan Commitment is set forth opposite its name on
Schedule 2.1 annexed hereto and the aggregate original amount of the Revolving
Loan Commitments is $300,000,000; provided that the Revolving Loan Commitments
of Revolving Lenders shall be adjusted to give effect to any assignments of the
Revolving Loan Commitments pursuant to subsection 10.1B; and provided, further
that the amount of the Revolving Loan Commitments shall be reduced from time to
time by the amount of any reductions thereto made pursuant to subsections
2.4B(ii). Each Revolving Lender's Revolving Loan Commitment shall expire on the
Revolving Loan Commitment Termination Date and all Revolving Loans and all other
amounts owed hereunder with respect to the Revolving Loans and the Revolving
Loan Commitments shall be paid in full no later than that date; provided that
each Revolving Lender's Revolving Loan Commitment shall expire immediately and
without further action on June 30, 1999 if the Term Loans are not made on or
before that date. Amounts borrowed under this subsection 2.1A(ii) may be repaid
and reborrowed to but excluding the Revolving Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary notwithstanding, the
Revolving Loans and the Revolving Loan Commitments shall be subject to the
limitation that in no event shall the Total Utilization of Revolving Loan
Commitments at any time exceed the Revolving Loan Commitments then in effect.
(iii) Swing Line Loans. Swing Line Lender hereby agrees, subject to the
limitations set forth below with respect to the maximum amount of Swing Line
Loans permitted to be outstanding from time to time, to make a portion of the
Revolving Loan Commitments available to Company from time to time during the
period from the Closing Date to but excluding the Revolving Loan Commitment
Termination Date by making Swing Line Loans to Company in an aggregate amount
not exceeding the amount of the Swing Line Loan Commitment to be used for the
purposes identified in subsection 2.5B, notwithstanding the fact that such Swing
Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans
and Swing Line Lender's Pro Rata Share of the Letter of Credit Usage then in
effect, may exceed Swing Line Lender's Revolving Loan Commitment. The original
amount of the Swing Line Loan Commitment is $15,000,000; provided that any
reduction of the Revolving Loan Commitments made pursuant to subsection 2.4B(ii)
which reduces the aggregate Revolving Loan Commitments to an amount less than
the then current amount of the Swing Line Loan Commitment shall result in an
automatic corresponding reduction of the Swing Line Loan Commitment to the
amount of the Revolving Loan Commitments, as so reduced, without any further
action on the part of Company, Administrative Agent or Swing Line Lender. The
Swing Line Loan Commitment shall expire on the Revolving Loan Commitment
Termination Date and all Swing Line Loans and all other amounts owed hereunder
with respect to the Swing Line Loans shall be paid in full no later than that
date; provided that the Swing Line Loan Commitment shall expire immediately and
without further action on June 30, 1999 if the Term Loans are not made on or
before that date. Amounts borrowed under this subsection 2.1A(iii) may be repaid
and reborrowed to but excluding the Revolving Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary notwithstanding, the
Swing Line Loans and the Swing Line Loan Commitment shall be subject to the
limitation that in no event shall the Total Utilization of Revolving Loan
Commitments at any time exceed the Revolving Loan Commitments then in effect.
With respect to any Swing Line Loans which have not been voluntarily
prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any
time in its sole and absolute discretion, deliver to Administrative Agent (with
a copy to Company), no later than 10:00 A.M. (New York City time) at least one
Business Day prior to the proposed Funding Date, a notice (which shall be deemed
to be a Notice of Borrowing given by Company) requesting Revolving Lenders to
make Revolving Loans that are Alternate Base Rate Loans on such Funding Date in
an amount equal to the amount of such Swing Line Loans (the "Refunded Swing Line
Loans") outstanding on the date such notice is given which Swing Line Lender
requests Revolving Lenders to prepay. Anything contained in this Agreement to
the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by
Revolving Lenders other than Swing Line Lender shall be immediately delivered by
Administrative Agent to Swing Line Lender (and not to Company) and applied to
repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the
day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the
Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a
Revolving Loan made by Swing Line Lender, and such portion of the Swing Line
Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans
and shall no longer be due under the Swing Line Note of Swing Line Lender but
shall instead constitute part of Swing Line Lender's outstanding Revolving Loans
and shall be due under the Revolving Note of Swing Line Lender. Company hereby
authorizes Administrative Agent and Swing Line Lender to charge Company's
accounts with Administrative Agent and Swing Line Lender (up to the amount
available in each such account) in order to immediately pay Swing Line Lender
the amount of the Refunded Swing Line Loans to the extent the proceeds of such
Revolving Loans made by Revolving Lenders, including the Revolving Loan deemed
to be made by Swing Line Lender, are not sufficient to repay in full the
Refunded Swing Line Loans. If any portion of any such amount paid (or deemed to
be paid) to Swing Line Lender should be recovered by or on behalf of Company
from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors
or otherwise, the loss of the amount so recovered shall be ratably shared among
all Revolving Lenders in the manner contemplated by subsection 10.5.
If for any reason (a) Revolving Loans are not made upon the request of
Swing Line Lender as provided in the immediately preceding paragraph in an
amount sufficient to repay any amounts owed to Swing Line Lender in respect of
any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are
terminated at a time when any Swing Line Loans are outstanding, each Revolving
Lender shall be deemed to, and hereby agrees to, have purchased a participation
in such outstanding Swing Line Loans in an amount equal to its Pro Rata Share
(calculated, in the case of the foregoing clause (b), immediately prior to such
termination of the Revolving Loan Commitments) of the unpaid amount of such
Swing Line Loans together with accrued interest thereon. Upon one Business Day's
notice from Swing Line Lender, each Revolving Lender shall deliver to Swing Line
Lender an amount equal to its respective participation in same day funds at the
Funding and Payment Office. In order to further evidence such participation (and
without prejudice to the effectiveness of the participation provisions set forth
above), each Revolving Lender agrees to enter into a separate participation
agreement at the request of Swing Line Lender in form and substance reasonably
satisfactory to Swing Line Lender. In the event any Revolving Lender fails to
make available to Swing Line Lender the amount of such Revolving Lender's
participation as provided in this paragraph, Swing Line Lender shall be entitled
to recover such amount on demand from such Revolving Lender together with
interest thereon at the rate customarily used by Swing Line Lender for the
correction of errors among banks for three Business Days and thereafter at the
Alternate Base Rate. In the event Swing Line Lender receives a payment of any
amount in which other Revolving Lenders have purchased participations as
provided in this paragraph, Swing Line Lender shall promptly distribute to each
such other Revolving Lender its Pro Rata Share of such payment.
Anything contained herein to the contrary notwithstanding, each Revolving
Lender's obligation to make Revolving Loans for the purpose of repaying any
Refunded Swing Line Loans pursuant to the second preceding paragraph and each
Revolving Lender's obligation to purchase a participation in any unpaid Swing
Line Loans pursuant to the immediately preceding paragraph shall be absolute and
unconditional and shall not be affected by any circumstance, including (a) any
set-off, counterclaim, recoupment, defense or other right which such Revolving
Lender may have against Swing Line Lender, Company or any other Person for any
reason whatsoever; (b) the occurrence or continuation of an Event of Default or
a Potential Event of Default; (c) any adverse change in the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of Company or any of its Subsidiaries; (d) any breach of this Agreement or any
other Loan Document by any party thereto; or (e) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing;
provided that such obligations of each Revolving Lender are subject to the
condition that (X) Swing Line Lender believed in good faith that all conditions
under Section 4 to the making of the applicable Refunded Swing Line Loans or
other unpaid Swing Line Loans, as the case may be, were satisfied at the time
such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (Y) the
satisfaction of any such condition not satisfied had been waived in accordance
with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or
other unpaid Swing Line Loans were made.
B. Borrowing Mechanics. Term Loans or Revolving Loans made on any Funding
Date (other than Revolving Loans made pursuant to a request by Swing Line Lender
pursuant to subsection 2.1A(iii) for the purpose of repaying any Refunded Swing
Line Loans or Revolving Loans made pursuant to subsection 3.3B for the purpose
of reimbursing any Issuing Lender for the amount of a drawing under a Letter of
Credit issued by it) shall be in an aggregate minimum amount of $5,000,000 and
integral multiples of $1,000,000 in excess of that amount. Swing Line Loans made
on any Funding Date shall be in an aggregate minimum amount of $500,000 and
integral multiples of $100,000 in excess of that amount. Whenever Company
desires that Lenders make Term Loans or Revolving Loans it shall deliver to
Administrative Agent a Notice of Borrowing no later than 10:00 A.M. (New York
City time) at least three Eurodollar Business Days in advance of the proposed
Funding Date (in the case of a Eurodollar Rate Loan) or at least one Business
Day in advance of the proposed Funding Date (in the case of an Alternate Base
Rate Loan). Whenever Company desires that Swing Line Lender make a Swing Line
Loan, it shall deliver to Administrative Agent a Notice of Borrowing no later
than 12:00 Noon (New York City time) on the proposed Funding Date. The Notice of
Borrowing shall specify (i) the proposed Funding Date (which shall be a Business
Day), (ii) the amount and type of Loans requested, (iii) in the case of Swing
Line Loans, that such Loans shall be an Alternate Base Rate Loans, (iv) in the
case of Term Loans and Revolving Loans, whether such Loans shall be Alternate
Base Rate Loans or Eurodollar Rate Loans; provided, that Loans made on the
Closing Date shall be Alternate Base Rate Loans, provided, however, on the
Closing Date Company may request such Loans be converted to Eurodollar Rate
Loans with a two week Interest Period in the manner provided in subsection 2.2D;
provided, further, that Loans made subsequent to the Closing Date and prior to
the last day of the first two week Interest Period shall be Alternate Base Rate
Loans, and (v) in the case of any Loans requested to be made as Eurodollar Rate
Loans, the initial Interest Period requested therefor. Term Loans and Revolving
Loans may be continued as or converted into Alternate Base Rate Loans and
Eurodollar Rate Loans in the manner provided in subsection 2.2D. In lieu of
delivering the above-described Notice of Borrowing, Company may give
Administrative Agent telephonic notice by the required time of any proposed
borrowing under this subsection 2.1B; provided that such notice shall be
promptly confirmed in writing by delivery of a Notice of Borrowing to
Administrative Agent on or before the applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur any liability to
Company in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on behalf of Company or
for otherwise acting in good faith under this subsection 2.1B, and upon funding
of Loans by Lenders in accordance with this Agreement pursuant to any such
telephonic notice Company shall have effected Loans hereunder.
Company shall notify Administrative Agent prior to the funding of any Loans
in the event that any of the matters to which Company is required to certify in
the applicable Notice of Borrowing is no longer true and correct as of the
applicable Funding Date, and the acceptance by Company of the proceeds of any
Loans shall constitute a re-certification by Company, as of the applicable
Funding Date, as to the matters to which Company is required to certify in the
applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice
of Borrowing for a Eurodollar Rate Loan (or telephonic notice in lieu thereof)
shall be irrevocable on and after the related Interest Rate Determination Date,
and Company shall be bound to make a borrowing in accordance therewith.
C. Disbursement of Funds. All Term Loans and Revolving Loans under this
Agreement shall be made by Lenders simultaneously and proportionately to their
respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any default by any other Lender in that other Lender's
obligation to make a Loan requested hereunder nor shall the Commitment of any
Lender to make the particular type of Loan requested be increased or decreased
as a result of a default by any other Lender in that other Lender's obligation
to make a Loan requested hereunder. Promptly after receipt by Administrative
Agent of a Notice of Borrowing pursuant to subsection 2.1B (or telephonic notice
in lieu thereof), Administrative Agent shall notify each Lender or Swing Line
Lender, as the case may be, of the proposed borrowing. Each Lender shall make
the amount of its Loan available to Administrative Agent not later than 12:00
Noon (New York City time) on the applicable Funding Date, and Swing Line Lender
shall make the amount of its Swing Line Loan available to Administrative Agent
not later than 2:00 P.M.(New York City time) on the applicable Funding Date, in
each case in same day funds in Dollars, at the Funding and Payment Office.
Except as provided in subsection 2.1A(iii) or subsection 3.3B with respect to
Revolving Loans used to repay Refunded Swing Line Loans or to reimburse any
Issuing Lender for the amount of a drawing under a Letter of Credit issued by
it, upon satisfaction or waiver of the conditions precedent specified in
subsections 4.1 (in the case of Loans made on the Closing Date) and 4.2 (in the
case of all Loans), Administrative Agent shall make the proceeds of such Loans
available to Company on the applicable Funding Date by causing an amount of same
day funds in Dollars equal to the proceeds of all such Loans received by
Administrative Agent from Lenders or Swing Line Lender, as the case may be, to
be credited to the account of Company at the Funding and Payment Office.
Unless Administrative Agent shall have been notified by any Lender prior to
the Funding Date for any Loans that such Lender does not intend to make
available to Administrative Agent the amount of such Lender's Loan requested on
such Funding Date, Administrative Agent may assume that such Lender has made
such amount available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to Company a corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest thereon,
for each day from such Funding Date until the date such amount is paid to
Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three Business Days and thereafter at the
Alternate Base Rate. If such Lender does not pay such corresponding amount
within three Business Days after such amount should have been made available,
Administrative Agent shall promptly notify Company and Company shall immediately
pay such corresponding amount to Administrative Agent together with interest
thereon, for each day from such Funding Date until the date such amount is paid
to Administrative Agent, at the rate payable under this Agreement for Alternate
Base Rate Loans. Nothing in this subsection 2.1C shall be deemed to relieve any
Lender from its obligation to fulfill its Commitments hereunder or to prejudice
any rights that Company may have against any Lender as a result of any default
by such Lender hereunder.
D. The Register.
(i) Administrative Agent shall maintain, at its address referred to in
subsection 10.8, a register for the recordation of the names and addresses of
Lenders and the Commitments and Loans of each Lender from time to time (the
"Register"). The Register shall be available for inspection by Company or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(ii) Administrative Agent shall record in the Register the Tranche A
Commitment and Tranche B Commitment, respectively, and the Tranche A Term Loan
and the Tranche B Term Loan, respectively, of each Term Lender, the Revolving
Loan Commitment and the Revolving Loans from time to time of each Revolving
Lender, the Swing Line Loan Commitment and the Swing Line Loans from time to
time of Swing Line Lender, and each repayment or prepayment in respect of the
principal amount of the Tranche A Term Loan and the Tranche B Term Loan,
respectively, of each Term Lender, the Revolving Loans of each Revolving Lender
or the Swing Line Loans of Swing Line Lender. Any such recordation shall be
conclusive and binding on Company and each Lender, absent manifest error;
provided that failure to make any such recordation, or any error in such
recordation, shall not affect any Lender's Commitments or Company's Obligations
in respect of any applicable Loans.
(iii) Each Lender shall record on its internal records (including any Notes
held by such Lender) the amount of the Tranche A Term Loan and the Tranche B
Term Loan, respectively, and each Revolving Loan made by it and each payment in
respect thereof. Any such recordation shall be conclusive and binding on
Company, absent manifest error; provided that failure to make any such
recordation, or any error in such recordation, shall not affect any Lender's
Commitments or Company's Obligations in respect of any applicable Loans; and
provided, further, that in the event of any inconsistency between the Register
and any Lender's records, the recordations in the Register shall govern.
(iv) Company, Administrative Agent and Lenders shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of the
corresponding Commitments and Loans listed therein for all purposes hereof, and
no assignment or transfer of any such Commitment or Loan shall be effective, in
each case unless and until an Assignment Agreement effecting the assignment or
transfer thereof shall have been accepted by Administrative Agent and recorded
in the Register as provided in subsection 10.1B(ii). Prior to such recordation,
all amounts owed with respect to the applicable Commitment or Loan shall be owed
to the Lender listed in the Register as the owner thereof, and any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is listed in the Register as a Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans.
(v) Company hereby designates CSFB to serve as Company's agent solely for
purposes of maintaining the Register as provided in this subsection 2.1D, and
Company hereby agrees that, to the extent CSFB serves in such capacity, CSFB and
its officers, directors, employees, agents and affiliates shall constitute
Indemnitees for all purposes under subsection 10.3.
E. Notes. At the request of any Lender, Company shall execute and deliver
to that Lender (or to Administrative Agent for that Lender) each of the
following, as appropriate: (i) a Tranche A Term Note substantially in the form
of Exhibit IV-A annexed hereto to evidence that Lender's Tranche A Term Loan, in
the principal amount of that Lender's Tranche A Term Loan and with other
appropriate insertions, and a Tranche B Term Note substantially in the form of
Exhibit IV-B annexed hereto to evidence that Lender's Tranche B Term Loan, in
the principal amount of that Lender's Tranche B Term Loan and with other
appropriate insertions, (ii) a Revolving Note substantially in the form of
Exhibit V annexed hereto to evidence that Lender's Revolving Loans, in the
principal amount of that Lender's Revolving Loan Commitment and with other
appropriate insertions, and (iii) a Swing Line Note substantially in the form of
Exhibit VI annexed hereto to evidence that Lender's Swing Line Loans, in the
principal amount of the Swing Line Loan Commitment and with other appropriate
insertions. In the event a Lender requests such Notes prior to the Closing Date,
Company shall execute and deliver the Notes on the Closing Date.
2.2. Interest on the Loans
A. Rate of Interest. Subject to the provisions of subsections 2.6 and 2.7,
each Term Loan and each Revolving Loan shall bear interest on the unpaid
principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Alternate
Base Rate or the Adjusted Eurodollar Rate. Subject to the provisions of
subsection 2.7, each Swing Line Loan shall bear interest on the unpaid principal
amount thereof from the date made through maturity (whether by acceleration or
otherwise) at a rate determined by reference to the Alternate Base Rate. The
applicable basis for determining the rate of interest with respect to any Term
Loans or any Revolving Loan shall be selected by Company initially at the time a
Notice of Borrowing is given with respect to such Loans pursuant to subsection
2.1B, and the basis for determining the interest rate with respect to any Term
Loans or any Revolving Loan may be changed from time to time pursuant to
subsection 2.2D. If on any day a Tranche A Term Loan, Tranche B Term Loan or
Revolving Loan is outstanding with respect to which notice has not been
delivered to Administrative Agent in accordance with the terms of this Agreement
specifying the applicable basis for determining the rate of interest, then for
that day that Loan shall bear interest determined by reference to the Alternate
Base Rate. Subject to the provisions of subsections 2.2E and 2.7, the Term Loans
and the Revolving Loans shall bear interest through maturity as follows:
(i) if an Alternate Base Rate Loan, then at the sum of the Alternate Base
Rate and the applicable Base Rate Margin set forth in the table below opposite
the Consolidated Leverage Ratio for the four-Fiscal Quarter period ending on the
date for which the applicable Compliance Certificate has been delivered pursuant
to subsection 6.1(iii):
APPLICABLE ALTERNATE
BASE RATE
MARGIN (PER ANNUM)
==============================================
Revolving Loans and Tranche B
CONSOLIDATED LEVERAGE RATIO Tranche A Term Loans Term Loans
===================================================== ====================== ======================
Greater than 3.25x 1.250% 2.000%
----------------------------------------------------- ----------------------- ----------------------
Greater than 2.75x but equal to or less than 3.25x 0.750% 1.750%
----------------------------------------------------- ----------------------- ----------------------
Greater than 2.00x but equal to or less than 2.75x 0.500% 1.750%
----------------------------------------------------- ----------------------- ----------------------
Greater than 1.50x but equal to or less than 2.00x 0.250% 1.750%
----------------------------------------------------- ----------------------- ----------------------
Equal to or less than 1.50x 0.250% 1.750%
----------------------------------------------------- ----------------------- ----------------------
provided, that until the earlier of August 15, 1999 or the date on which the
first Compliance Certificate is delivered pursuant to subsection 6.1(iii) for
the Fiscal Quarter ended June 30, 1999, the Base Rate Margin shall be 1.25% for
Revolving Loans and Tranche A Term Loans and 2.00% for Tranche B Term Loans.
(ii) if a Eurodollar Rate Loan, then at the sum of the Adjusted Eurodollar
Rate and the applicable Eurodollar Rate Margin set forth in the table below,
opposite the Consolidated Leverage Ratio for the four-Fiscal Quarter period
ending on the date for which the applicable Compliance Certificate has been
delivered pursuant to subsection 6.1(iii):
APPLICABLE EURODOLLAR RATE
MARGIN (PER ANNUM)
===============================================
Revolving Loans and Tranche B
CONSOLIDATED LEVERAGE RATIO Tranche A Term Loans Term Loans
====================================================== ======================== ======================
Greater than 3.25x 2.750% 3.500%
------------------------------------------------------- ------------------------ ----------------------
Greater than 2.75x but equal to or less than 3.25x 2.250% 3.250%
------------------------------------------------------- ------------------------ ----------------------
Greater than 2.00x but equal to or less than 2.75x 2.000% 3.250%
------------------------------------------------------- ------------------------ ----------------------
Greater than 1.50x but equal to or less than 2.00x 1.500% 3.250%
------------------------------------------------------- ------------------------ ----------------------
Equal to or less than 1.50x 1.000% 3.250%
======================================================= ======================== ======================
provided, that until the earlier of August 15, 1999 or the date on which the
first Compliance Certificate is delivered pursuant to subsection 6.1(iii) for
the Fiscal Quarter ended June 30, 1999, the Eurodollar Rate Margin shall be
2.75% per annum for Revolving Loans and Tranche A Term Loans and 3.50% for
Tranche B Term Loans.
Upon delivery of the Compliance Certificate by Company to Administrative
Agent pursuant to subsection 6.1(iii), the applicable Base Rate Margin and
Eurodollar Rate Margin shall automatically be adjusted in accordance with such
Compliance Certificate, such adjustment to become effective on the next
succeeding Business Day following receipt by Administrative Agent of such
Compliance Certificate; provided, that if at any time a Compliance Certificate
is not delivered at the time required pursuant to subsection 6.1(iii), from the
time such Compliance Certificate was required to be delivered until delivery of
such Compliance Certificate, such applicable Base Rate Margin and Eurodollar
Rate Margin shall be the maximum percentage amount until such Compliance
Certificate is delivered.
Subject to the provisions of subsections 2.2E and 2.7, any Swing Line Loans
provided to Company shall bear interest through maturity at the rate then
applicable to Revolving Loans pursuant to subsection 2.2A(i).
B. Interest Periods. In connection with each Eurodollar Rate Loan, Company
may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"Interest Period") to be applicable to such Loan, which Interest Period shall
be, at Company's option, either a one, two, three or six month period or, if
deposits in the interbank Eurodollar market are available to all Lenders for
such period (as determined by each Lender), a nine or twelve month period;
provided that:
(i) the initial Interest Period for any Eurodollar Rate Loan shall commence
on the Funding Date in respect of such Loan, in the case of a Loan initially
made as a Eurodollar Rate Loan, or on the date specified in the applicable
Notice of Conversion/Continuation, in the case of a Loan converted to a
Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods applicable to a
Eurodollar Rate Loan continued as such pursuant to a Notice of
Conversion/Continuation, each successive Interest Period shall commence on the
day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that is not a
Business Day, such Interest Period shall expire on the next succeeding Business
Day; provided that, if any Interest Period would otherwise expire on a day that
is not a Business Day but is a day of the month after which no further Business
Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(iv) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall, subject to clause (v)
of this subsection 2.2B, end on the last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the Tranche A Term
Loans shall extend beyond the Tranche A Maturity Date, no Interest Period with
respect to any portion of the Tranche B Term Loans shall extend beyond the
Tranche B Maturity Date and no Interest Period with respect to any portion of
the Revolving Loans shall extend beyond the Revolving Loan Commitment
Termination Date;
(vi) no Interest Period with respect to any portion of the Term Loans shall
extend beyond a date on which Company is required to make a scheduled payment of
principal of such Term Loans unless the sum of (a) the aggregate principal
amount of Term Loans of the type to be repaid that are Alternate Base Rate Loans
plus (b) the aggregate principal amount of Term Loans of the type to be repaid
that are Eurodollar Rate Loans with Interest Periods expiring on or before such
date equals or exceeds the principal amount required to be paid on the Term
Loans of such type on such date;
(vii) there shall be no more than 12 Interest Periods outstanding at any
time; and
(viii) in the event Company fails to specify an Interest Period for any
Eurodollar Rate Loan in the applicable Notice of Borrowing or Notice of
Conversion/Continuation, Company shall be deemed to have selected an Interest
Period of one month.
Notwithstanding the foregoing, the Interest Period for any Eurodollar Rate
Loan made pursuant to a Notice of Conversion/Continuation delivered on the
Closing Date shall be a two week period.
C. Interest Payments. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity); provided that in the event any Swing Line Loans or any Revolving
Loans that are Alternate Base Rate Loans are prepaid pursuant to subsection
2.4B(i), interest accrued on such Swing Line Loans or Revolving Loans through
the date of such prepayment shall be payable on the next succeeding Interest
Payment Date applicable to Alternate Base Rate Loans (or, if earlier, at final
maturity). Notwithstanding the foregoing, the Company may not convert (other
than on the Closing Date) Alternate Base Rate Loans to Eurodollar Rate Loans
prior to the last day of the first two week Interest Period.
D. Conversion or Continuation. Subject to the provisions of subsection 2.6,
Company shall have the option (i) to convert at any time all or any part of its
outstanding Tranche A Term Loans, Tranche B Term Loans or Revolving Loans equal
to $5,000,000 and integral multiples of $1,000,000 in excess of that amount from
Loans bearing interest at a rate determined by reference to one basis to Loans
bearing interest at a rate determined by reference to an alternative basis or
(ii) upon the expiration of any Interest Period applicable to a Eurodollar Rate
Loan, to continue all or any portion of such Loan equal to $5,000,000 and
integral multiples of $1,000,000 in excess of that amount as a Eurodollar Rate
Loan; provided, however, that a Eurodollar Rate Loan may only be converted into
a Alternate Base Rate Loan on the expiration date of an Interest Period
applicable thereto.
Company shall deliver a Notice of Conversion/Continuation to Administrative
Agent no later than 10:00 A.M. (New York City time) at least one Business Day in
advance of the proposed conversion date (in the case of a conversion to an
Alternate Base Rate Loan) and at least three Eurodollar Business Days in advance
of the proposed conversion/continuation date (in the case of a conversion to, or
a continuation of, a Eurodollar Rate Loan). A Notice of Conversion/Continuation
shall specify (i) the proposed conversion/continuation date (which shall be a
Business Day), (ii) the amount and type of the Loan to be converted/continued,
(iii) the nature of the proposed conversion/continuation, (iv) in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan, the requested
Interest Period, and (v) in the case of a conversion to, or a continuation of, a
Eurodollar Rate Loan, that no Potential Event of Default or Event of Default has
occurred and is continuing. In lieu of delivering the above-described Notice of
Conversion/Continuation, Company may give Agent telephonic notice by the
required time of any proposed conversion/continuation under this subsection
2.2D; provided that such notice shall be promptly confirmed in writing by
delivery of a Notice of Conversion/Continuation to Administrative Agent on or
before the proposed conversion/continuation date. Upon receipt of written or
telephonic notice of any proposed conversion/continuation under this subsection
2.2D, Administrative Agent shall promptly transmit such notice by telefacsimile
or telephone to each Lender.
Neither Administrative Agent nor any Lender shall incur any liability to
Company in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to act on behalf of Company or for
otherwise acting in good faith under this subsection 2.2D, and upon conversion
or continuation of the applicable basis for determining the interest rate with
respect to any Loans in accordance with this Agreement pursuant to any such
telephonic notice Company shall have effected a conversion or continuation, as
the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice
of Conversion/Continuation for conversion to, or continuation of, a Eurodollar
Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable on and
after the related Interest Rate Determination Date, and Company shall be bound
to effect a conversion or continuation in accordance therewith.
E. Default Rate. Upon the occurrence and during the continuation of any
Event of Default, the outstanding principal amount of all Loans and, to the
extent permitted by applicable law, any interest payments thereon not paid when
due and any fees and other amounts then due and payable hereunder, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable upon
demand at a rate that is 2% per annum in excess of the interest rate otherwise
payable under this Agreement with respect to the applicable Loans (or, in the
case of any such fees and other amounts, at a rate which is 2% per annum, in
excess of the interest rate otherwise payable under this Agreement for Alternate
Base Rate Loans); provided that, in the case of Eurodollar Rate Loans, upon the
expiration of the Interest Period in effect at the time any such increase in
interest rate is effective such Eurodollar Rate Loans shall thereupon become
Alternate Base Rate Loans and shall thereafter bear interest payable upon demand
at a rate which is 2% per annum in excess of the interest rate otherwise payable
under this Agreement for Alternate Base Rate Loans. Payment or acceptance of the
increased rates of interest provided for in this subsection 2.2E is not a
permitted alternative to timely payment and shall not constitute a waiver of any
Event of Default or otherwise prejudice or limit any rights or remedies of
Administrative Agent or any Lender.
F. Computation of Interest. Interest on the Loans shall be computed on the
basis of a 360-day year or, in the case of Alternate Base Rate Loans, a 365 or
366 day year, in each case for the actual number of days elapsed in the period
during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period applicable to such
Loan or, with respect to an Alternate Base Rate Loan being converted from a
Eurodollar Rate Loan the date of conversion of such Eurodollar Rate Loan to such
Alternate Base Rate Loan, as the case may be, shall be included, and the date of
payment of such Loan or the expiration date of an Interest Period applicable to
such Loan or, with respect to an Alternate Base Rate Loan being converted to a
Eurodollar Rate Loan, the date of conversion of such Base Rate Loan to such
Eurodollar Rate Loan, as the case may be, shall be excluded; provided that if a
Loan is repaid on the same day on which it is made, one day's interest shall be
paid on that Loan.
2.3. Fees
A. Commitment Fees. Company agrees to pay to Agent, for distribution to
each Revolving Lender in proportion to that Revolving Lender's Pro Rata Share,
commitment fees for the period from and including the Closing Date to and
excluding the Revolving Loan Commitment Termination Date equal to the average of
the daily excess of the Revolving Loan Commitments over the sum of the aggregate
principal amount of outstanding Revolving Loans (but not any outstanding Swing
Line Loans) and the Letter of Credit Usage multiplied by the percentage per
annum determined by reference to the applicable percentage set forth in the
table below opposite the Consolidated Leverage Ratio for the four-Fiscal Quarter
period ending on the date for which the applicable Compliance Certificate has
been delivered pursuant to subsection 6.1(iii), such commitment fees to be
calculated on the basis of a 365 or 366 day year and the actual number of days
elapsed and to be payable quarterly in arrears on January 15, April 15, July 15
and October 15 of each year, commencing on July 15, 1999, and on the Revolving
Loan Commitment Termination Date:
Commitment Fee
Applicable
Percentage
Consolidated Leverage Ratio (Per Annum)
==============================================================================
Greater than 3.25x 0.500%
------------------------------------------------------------------------------
Greater than 2.75x but equal to or less than 3.25x 0.500
------------------------------------------------------------------------------
Greater than 2.00x but equal to or less than 2.75x 0.500%
------------------------------------------------------------------------------
Greater than 1.50x but equal to or less than 2.00x 0.375%
------------------------------------------------------------------------------
Equal to or less than 1.50x 0.250%
==============================================================================
provided, that until the earlier of November 15, 1999 or the date on which the
first Compliance Certificate is delivered pursuant to subsection 6.1(iii) for
the Fiscal Quarter ended September 30, 1999, the commitment fee percentage shall
equal 0.50% per annum. Upon delivery of the Compliance Certificate by Company to
Administrative Agent pursuant to subsection 6.1(iii), the applicable commitment
fee percentage shall automatically be adjusted in accordance with such
Compliance Certificate, such adjustment to become effective on the next
succeeding Business Day following receipt by Administrative Agent of such
Compliance Certificate; provided, that if at any time a Compliance Certificate
is not delivered at the time required pursuant to subsection 6.1(iii), from the
time such Compliance Certificate was required to be delivered until delivery of
such Compliance Certificate, such applicable commitment fee percentage shall be
the maximum percentage amount until such Compliance Certificate is delivered.
B. Other Fees. Company agrees to pay to Administrative Agent such other
fees in the amounts and at the times separately agreed upon between Company and
Administrative Agent.
2.4. Repayments, Prepayments and Reductions in Revolving Loan Commitments;
General Provisions Regarding Payments
A. Scheduled Payments of Term Loans.
(i) Company shall make principal payments on the Tranche A Term Loans in
installments on the dates and in the amounts set forth below:
Scheduled Repayment
of Tranche A Term Loans
==========================================================================
Date Amount Repaid
March 31, 2001 $42,750,000
March 31, 2002 $57,000,000
March 31, 2003 $57,000,000
March 31, 2004 $62,700,000
March 31, 2005 $65,550,000
; provided that the scheduled installments of principal of the Tranche A Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Term Loans in accordance with subsection 2.4B(iv);
and provided, further, that the Tranche A Term Loans and all other amounts owed
hereunder with respect to the Tranche A Term Loans shall be paid in full no
later than the Tranche A Maturity Date, and the final installment payable by
Company in respect of the Tranche A Term Loans on such date shall be in an
amount, if such amount is different from that specified above, sufficient to
repay all amounts owing by Company under this Agreement with respect to the
Tranche A Term Loans.
(ii) Company shall make principal payments on the Tranche B Term Loans in
installments on the dates and in the amounts set forth below:
Scheduled Repayment
of Tranche B Term Loans
==========================================================================
Date Amount Repaid
March 31, 2000 $4,650,000
March 31, 2001 $4,650,000
March 31, 2002 $4,650,000
March 31, 2003 $4,650,000
March 31, 2004 $4,650,000
March 31, 2005 $4,650,000
March 31, 2006 $111,600,000
March 31, 2007 $325,500,000
; provided that the scheduled installments of principal of the Tranche B Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Term Loans in accordance with subsection 2.4B(iv);
and provided, further, that the Tranche B Term Loans and all other amounts owed
hereunder with respect to the Tranche B Term Loans shall be paid in full no
later than the Tranche B Maturity Date, and the final installment payable by
Company in respect of the Tranche B Term Loans on such date shall be in an
amount, if such amount is different from that specified above, sufficient to
repay all amounts owing by Company under this Agreement with respect to the
Tranche B Term Loans.
B. Prepayments and Unscheduled Reductions in Revolving Loan Commitments.
(i) Voluntary Prepayments. Company may, upon written or telephonic notice
to Administrative Agent on or prior to 12:00 Noon (New York City time) on the
date of prepayment, which notice, if telephonic, shall be promptly confirmed in
writing, at any time and from time to time prepay any Swing Line Loan on any
Business Day in whole or in part in an aggregate minimum amount of $500,000 and
integral multiples of $100,000 in excess of that amount. Company may, upon not
less than one Business Day's prior written or telephonic notice, in the case of
Alternate Base Rate Loans, and three Business Days' prior written or telephonic
notice, in the case of Eurodollar Rate Loans, in each case given to
Administrative Agent by 12:00 Noon (New York City time) on the date required
and, if given by telephone, promptly confirmed in writing to Administrative
Agent (which original written or telephonic notice Administrative Agent will
promptly transmit by telefacsimile or telephone to each Lender), at any time and
from time to time prepay any Tranche A Term Loans, Tranche B Term Loans or
Revolving Loans on any Business Day in whole or in part in an aggregate minimum
amount of $1,000,000 and integral multiples of $500,000 in excess of that
amount; provided, however, that a Eurodollar Rate Loan may only be prepaid on
the expiration of the Interest Period applicable thereto. Notice of prepayment
having been given as aforesaid, the principal amount of the Loans specified in
such notice shall become due and payable on the prepayment date specified
therein. Any such voluntary prepayment shall be applied as specified in
subsection 2.4B(iv).
(ii) Voluntary Reductions of Revolving Loan Commitments. Company may, upon
not less than one Business Day's prior written or telephonic notice confirmed in
writing to Administrative Agent (which original written or telephonic notice
Administrative Agent will promptly transmit by telefacsimile or telephone to
each Lender), at any time and from time to time terminate in whole or
permanently reduce in part, without premium or penalty, the Revolving Loan
Commitments in an amount up to the amount by which the Revolving Loan
Commitments exceed the Total Utilization of Revolving Loan Commitments at the
time of such proposed termination or reduction; provided that any such partial
reduction of the Revolving Loan Commitments shall be in an aggregate minimum
amount of $1,000,000 and integral multiples of $500,000 in excess of that
amount. Company's notice to Administrative Agent shall designate the date (which
shall be a Business Day) of such termination or reduction and the amount of any
partial reduction, and such termination or reduction of the Revolving Loan
Commitments shall be effective on the date specified in Company's notice and
shall reduce the Revolving Loan Commitment of each Revolving Lender
proportionately to its Pro Rata Share.
(iii) Mandatory Prepayments. The Loans shall be prepaid in the amounts and
under the circumstances set forth below, all such prepayments and/or reductions
to be applied as set forth below or as more specifically provided in subsection
2.4B(iv):
(a) Prepayments from Excess Cash Flow. No later than the earlier of (i) 90
days after the end of each Fiscal Year of Company, commencing with the Fiscal
Year ending December 31, 1999, and (ii) the date on which the financial
statements with respect to such Fiscal Year are delivered pursuant to subsection
6.1(ii), Company shall prepay outstanding Term Loans and, if the Term Loans
shall have been paid in full, Revolving Loans, in an aggregate principal amount
equal to 50% of Excess Cash Flow for such Fiscal Year; provided, however, that,
to avoid imposition of any costs pursuant to subsection 2.6D, in lieu of
prepaying the Loans on any such date, Company may elect not to prepay the Loans
by (i) so notifying Administrative Agent in writing of such election and (ii)
paying such amount of Excess Cash Flow to Administrative Agent to be held as
Cash collateral for the Obligations and applied in accordance with subsection
2.4B(iv) to such prepayment at the end of the Interest Period or Interest
Periods with the shortest remaining duration for Eurodollar Rate Loans of the
type to be prepaid that exceed in aggregate amount such amount of Excess Cash
Flow; provided further, that no prepayments from Excess Cash Flow shall be
required under this subsection 2.4B(iii)(a) for any Fiscal Year in which Company
has delivered to Administrative Agent a Compliance Certificate pursuant to
subsection 6.1(iii) which reflects a Consolidated Leverage Ratio of less than
3.5 to 1.0.
(b) Prepayments and Reductions From Net Asset Sale Proceeds. No later than
the first Business Day following the date of receipt by Company or any of its
Subsidiaries of any Net Asset Sale Proceeds in respect of any Asset Sale,
Company shall prepay the Loans in an aggregate amount equal to such Net Asset
Sale Proceeds; provided, however, that, to avoid imposition of any costs
pursuant to subsection 2.6D, in lieu of prepaying the Loans on such first
Business Day after receipt, Company may elect not to prepay the Loans by (i) so
notifying Administrative Agent in writing of such election and (ii) paying such
Net Asset Sale Proceeds to Administrative Agent to be held as Cash collateral
for the Obligations and applied in accordance with subsection 2.4B(iv) to such
prepayment at the end of the Interest Period or Interest Periods with the
shortest remaining duration for Eurodollar Rate Loans of the type to be prepaid
that exceed in aggregate amount such Net Asset Sale Proceeds.
(c) Prepayments and Reductions Due to Issuance of Securities. On the first
Business Day following receipt by Company or a Subsidiary of the Cash proceeds
(any such proceeds, net of underwriting discounts and commissions and other
reasonable costs and expenses associated therewith, including reasonable legal
fees and expenses, being "Net Securities Proceeds") from the issuance of debt or
equity Securities of Company or such Subsidiary after the Closing Date other
than (i) Indebtedness permitted under subsection 7.1 (except Indebtedness
incurred pursuant to subsection 7.1(viii) (to the extent not applied to a
Permitted Acquisition up to $100 million)) and (ii) proceeds received from the
issuance of equity Securities of Express Online, Inc. to the public or
management, Company shall prepay the Loans in an aggregate amount equal to such
Net Securities Proceeds; provided, however, that, to avoid imposition of any
costs pursuant to subsection 2.6D, in lieu of prepaying the Loans on such first
Business Day after receipt, Company may elect not to prepay the Loans by (i) so
notifying Administrative Agent in writing of such election and (ii) paying such
Net Securities Proceeds to Administrative Agent to be held as Cash collateral
for the Obligations and applied in accordance with subsection 2.4B(iv) to such
prepayment at the end of the Interest Period or Interest Periods with the
shortest remaining duration for Eurodollar Rate Loans of the type to be prepaid
that exceed in aggregate amount such Net Securities Proceeds; provided further,
that, notwithstanding the provisions of this subsection 2.4B(iii)(c), so long as
no Event of Default has occurred and is continuing, the first $150 million of
such Net Securities Proceeds shall be applied to the repayment of the Senior
Subordinated Credit Facility; provided, further, that no mandatory prepayments
shall be required from, and Net Securities Proceeds shall not include proceeds
from, the issuance of equity Securities after the issuance of $350 million in
equity Securities under this subsection 2.4B(iii)(c) for any period thereafter
in which Company has delivered to Administrative Agent a Compliance Certificate
pursuant to subsection 6.1(iii) which reflects a Consolidated Leverage Ratio of
less than 3.5 to 1.0.
(d) Prepayments and Reductions from Net Insurance Proceeds. No later than
the first Business Day following the date of receipt by Company or any of its
Subsidiaries of any Net Insurance Proceeds in respect of any Insurance or
Condemnation Event, Company shall prepay the Loans in an aggregate amount equal
to such Net Insurance Proceeds; provided, however, that, to avoid imposition of
any costs pursuant to subsection 2.6D, in lieu of prepaying the Loans on such
first Business Day after receipt, Company may elect not to prepay the Loans by
(i) so notifying Administrative Agent in writing of such election and (ii)
paying such Net Insurance Proceeds to Administrative Agent to be held as Cash
collateral for the Obligations and applied in accordance with subsection
2.4B(iv) to such prepayment at the end of the Interest Period or Interest
Periods with the shortest remaining duration for Eurodollar Rate Loans of the
type to be prepaid that exceed in aggregate amount such Net Insurance Proceeds.
(e) Calculations of Net Proceeds Amounts; Additional Prepayments and
Reductions Based on Subsequent Calculations. Concurrently with any prepayment of
the Loans and/or reduction of the Revolving Loan Commitments pursuant to
subsections 2.4B(iii)(a)-(d), Company shall deliver to Administrative Agent an
Officers' Certificate demonstrating the calculation of the amount (the "Net
Proceeds Amount") of the applicable Net Asset Sale Proceeds, Net Insurance
Proceeds or Net Securities Proceeds (as such term is defined in subsection
2.4B(iii)(c)) that gave rise to such prepayment and/or reduction. In the event
that Company shall subsequently determine that the actual Net Proceeds Amount
was greater than the amount set forth in such Officers' Certificate, Company
shall promptly make an additional prepayment of the Loans (and/or, if
applicable, the Revolving Loan Commitments shall be permanently reduced) in an
amount equal to the amount of such excess, and Company shall concurrently
therewith deliver to Administrative Agent an Officers' Certificate demonstrating
the derivation of the additional Net Proceeds Amount resulting in such excess.
(f) Prepayments Due to Reductions or Restrictions of Revolving Loan
Commitments. Company shall from time to time prepay first the Swing Line Loans
and second the Revolving Loans to the extent necessary so that the Total
Utilization of Revolving Loan Commitments shall not at any time exceed the
Revolving Loan Commitments then in effect.
(g) Election to Prepay Prior to End of the Interest Period. Notwithstanding
the provisos of subsections 2.4B(iii)(a)-(d) above, Company may also elect, by
notifying Administrative Agent in writing, to cause the Loans to be prepaid
prior to the end of the Interest Period or Interest Periods referred to therein,
(subject to subsection 2.6D). Any amounts held by Administrative Agent pursuant
to the election referred to in such subsections 2.4(B)(iii)(a)-(d) shall be
invested in investments agreed upon by Administrative Agent and Company for the
account of Company, which investments shall mature no later than the end of the
appropriate Interest Period.
(iv) Application of Prepayments and Unscheduled Reductions of Revolving
Loan Commitments.
(a) Application of Voluntary Prepayments by Type of Loans and Maturity. Any
voluntary prepayments pursuant to subsection 2.4B(i) shall be applied as
specified by Company in the applicable notice of prepayment. In the event
Company fails to specify the Loans to which prepayment shall be applied, such
prepayment shall be applied first, to outstanding Swing Line Loans to the full
extent thereof, second to outstanding Revolving Loans to the full extent
thereof, and third to outstanding Term Loans pro rata between Tranche A Term
Loans and Tranche B Term Loans based upon the aggregate amounts then outstanding
to the full extent thereof. Any voluntary prepayments of the Term Loans pursuant
to subsection 2.4B(i) shall be applied to reduce the scheduled installments of
principal of the Tranche A Term Loans and the Tranche B Term Loans set forth in
subsections 2.4A(i) and (ii), respectively, as specified by Company.
(b) Application of Mandatory Prepayments by Type of Loans. Any amount
required to be applied as a mandatory prepayment of the Loans pursuant to
subsections 2.4B(iii)(a),(b) and (d) (the "Applied Amount") shall be applied,
first, to the Tranche A Term Loans and the Tranche B Term Loans pro rata between
Tranche A Term Loans and Tranche B Term Loans based upon the aggregate amounts
then outstanding to the full extent thereof, second, to the extent of any
remaining portion of the Applied Amount, to prepay the Swing Line Loans to the
full extent thereof and, third, to the extent of any remaining portion of the
Applied Amount, to prepay the Revolving Loans to the full extent thereof. Any
Net Securities Proceeds shall be applied, net of amounts applied to prepay the
Senior Subordinated Credit Facility (the "Adjusted Net Securities Proceeds"),
first, to the Tranche A Term Loans and the Tranche B Term Loans pro rata between
Tranche A Term Loans and Tranche B Term Loans based upon aggregate amounts then
outstanding to the full extent thereof, provided, until the six month
anniversary of the Closing Date, the Adjusted Net Securities Proceeds may be
applied at Company's option first to prepay Tranche B Term Loans, second, to the
extent of any remaining portion of the Adjusted Net Securities Proceeds, to
prepay Swing Line Loans to the full extent thereof and, third, to the extent of
any remaining portion of the Adjusted Net Securities Proceeds, to prepay the
Revolving Loans to the full extent thereof.
(c) Application of Mandatory Prepayments of Term Loans by Order of
Maturity. Any mandatory prepayments of the Tranche A Term Loans and the Tranche
B Term Loans pursuant to subsection 2.4B(iii) in accordance with subsections
2.4B(iv)(a) and (b) shall be applied to reduce the scheduled installments of
principal of such Tranche A Term Loans and Tranche B Term Loans set forth in
subsection 2.4A (i) and (ii), respectively, on a pro rata basis (in accordance
with the respective outstanding principal amounts thereof) to each such
scheduled installment that is unpaid at the time of such prepayment.
(d) Application of Prepayments to Alternate Base Rate Loans and Eurodollar
Rate Loans. Considering Tranche A Term Loans, Tranche B Term Loans and Revolving
Loans being prepaid separately, any prepayment thereof shall be applied first to
Alternate Base Rate Loans to the full extent thereof before application to
Eurodollar Rate Loans, in each case in a manner which minimizes the amount of
any payments required to be made by Company pursuant to subsection 2.6D.
C. General Provisions Regarding Payments.
(i) Manner and Time of Payment. All payments by Company of principal,
interest, fees and other Obligations hereunder and under the Notes shall be made
in Dollars in same day funds, without defense, setoff or counterclaim, free of
any restriction or condition, and delivered to Administrative Agent not later
than 12:00 Noon (New York City time) on the date due at the Funding and Payment
Office for the account of Lenders; funds received by Administrative Agent after
that time on such due date shall be deemed to have been paid by Company on the
next succeeding Business Day. Company hereby authorizes Administrative Agent to
charge its accounts with Agent in order to cause timely payment to be made to
Administrative Agent of all principal, interest, fees and expenses due hereunder
(subject to sufficient funds being available in its accounts for that purpose).
(ii) Application of Payments to Principal and Interest. Except as provided
in subsection 2.2C, all payments in respect of the principal amount of any Loan
shall include payment of accrued interest on the principal amount being repaid
or prepaid, and all such payments (and, in any event, any payments in respect of
any Loan on a date when interest is due and payable with respect to such Loan)
shall be applied to the payment of interest before application to principal.
(iii) Apportionment of Payments. Aggregate principal and interest payments
in respect of Tranche A Term Loans, Tranche B Term Loans and Revolving Loans
shall be apportioned among all outstanding Loans to which such payments relate,
in each case proportionately to Lenders' respective Pro Rata Shares. Agent shall
promptly distribute to each Lender, at its primary address set forth below its
name on the appropriate signature page hereof or at such other address as such
Lender may request, its Pro Rata Share of all such payments received by Agent
and the commitment fees of such Lender when received by Agent pursuant to
subsection 2.3. Notwithstanding the foregoing provisions of this subsection
2.4C(iii), if, pursuant to the provisions of subsection 2.6C, any Notice of
Conversion/Continuation is withdrawn as to any Affected Lender or if any
Affected Lender makes Alternate Base Rate Loans in lieu of its Pro Rata Share of
any Eurodollar Rate Loans, Agent shall give effect thereto in apportioning
payments received thereafter.
(iv) Payments on Business Days. Whenever any payment to be made hereunder
shall be stated to be due on a day that is not a Business Day, such payment
shall be made on the next succeeding Business Day and such extension of time
shall be included in the computation of the payment of interest hereunder or of
the commitment fees hereunder, as the case may be.
(v) Notation of Payment. Each Lender agrees that before disposing of any
Note held by it, or any part thereof (other than by granting participations
therein), that Lender will make a notation thereon of all Loans evidenced by
that Note and all principal payments previously made thereon and of the date to
which interest thereon has been paid; provided that the failure to make (or any
error in the making of) a notation of any Loan made under such Note shall not
limit or otherwise affect the obligations of Company hereunder or under such
Note with respect to any Loan or any payments of principal or interest on such
Note.
D. Application of Proceeds of Collateral and Payments Under Subsidiary
Guaranty.
(i) Application of Proceeds of Collateral. Except as provided in subsection
2.4B(iii)(b) with respect to prepayments from Net Asset Sale Proceeds, all
proceeds received by the Collateral Agent in respect of any sale of, collection
from, or other realization upon all or any part of the Collateral under any
Collateral Document may, in the discretion of the Collateral Agent, be held by
Collateral Agent as Collateral for, and/or (then or at any time thereafter)
applied in full or in part by the Collateral Agent against, the applicable
secured obligations (as defined in such Collateral Document, the "Secured
Obligations" ) in the following order of priority:
(a) To the payment of all costs and expenses of such sale, collection or
other realization, including reasonable compensation to Collateral Agent and its
agents and counsel, and all other expenses, liabilities and advances made or
incurred by Collateral Agent in connection therewith, and all amounts for which
Collateral Agent is entitled to indemnification under such Collateral Document
and all advances made by Collateral Agent thereunder for the account of the
applicable Loan Party, and to the payment of all costs and expenses paid or
incurred by Collateral Agent in connection with the exercise of any right or
remedy under such Collateral Document, all in accordance with the terms of this
Agreement and such Collateral Document;
(b) thereafter, to the extent of any excess such proceeds, to the payment
of all other such Secured Obligations for the ratable benefit of the holders
thereof;
(c) thereafter, to the extent of any excess such proceeds, to the payment
of Cash collateral for Letters of Credit for the ratable benefit of the Issuing
Lenders thereof and holders of participations therein; and
(d) thereafter, to the extent of any excess such proceeds, to the payment
to or upon the order of such Loan Party or to whosoever may be lawfully entitled
to receive the same or as a court of competent jurisdiction may direct.
(ii) Application of Payments Under Subsidiary Guaranty. All payments
received by Administrative Agent under the Subsidiary Guaranty shall be applied
promptly from time to time by Agent in the following order of priority:
(a) to the payment of the costs and expenses of any collection or other
realization under the Subsidiary Guaranty, including reasonable compensation to
Administrative Agent and its agents and counsel, and all expenses, liabilities
and advances made or incurred by Administrative Agent in connection therewith,
all in accordance with the terms of this Agreement and the Subsidiary Guaranty;
(b) thereafter, to the extent of any excess such payments, to the payment
of all other Guarantied Obligations (as defined in the Subsidiary Guaranty) for
the ratable benefit of the holders thereof;
(c) thereafter, to the extent of any excess such payments, to the payment
of Cash collateral for Letters of Credit for the ratable benefit of the Issuing
Lenders thereof and holders of participations therein; and
(d) thereafter, to the extent of any excess such payments, to the payment
to the applicable Subsidiary Guarantor or to whosoever may be lawfully entitled
to receive the same or as a court of competent jurisdiction may direct.
2.5. Use of Proceeds
A. Term Loans. The proceeds of the Term Loans shall be applied by Company:
(i) to refinance the Indebtedness set forth on Schedule 2.5 hereof (the
"Scheduled Indebtedness") in an amount of approximately $360 million;
(ii) to pay a portion of the consideration for the Acquisition in an
aggregate maximum amount of $410 million (subject to adjustment); and
(iii) to pay fees and expenses in connection with the Acquisition and
Refinancing in an aggregate amount of approximately $30 million.
The additional amounts necessary to consummate the Acquisition and to pay
related fees and expenses shall be provided from $150 million in proceeds from
borrowing under the Senior Subordinated Credit Facility.
B. Revolving Loans; Swing Line Loans. Revolving Loans in the amount of $140
million made at the Closing Date shall be applied by Company to pay a portion of
the consideration for the Acquisition. Thereafter, Revolving Loans and any Swing
Line Loans shall be applied by Company for working capital requirements and
general corporate purposes, which may include the making of intercompany loans
to any of Company's Wholly Owned Subsidiaries, in accordance with subsection
7.1(iv), for their own general corporate purposes and subject to a sublimit of
$20,000,000 to issue Standby Letters of Credit.
C. Margin Regulations. No portion of the proceeds of any borrowing under
this Agreement shall be used by Company or any of its Subsidiaries in any manner
that might cause the borrowing or the application of such proceeds to violate
Regulation U, Regulation T or Regulation X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board or to violate the
Exchange Act, in each case as in effect on the date or dates of such borrowing
and such use of proceeds.
2.6. Special Provisions Governing Eurodollar Rate Loans
Notwithstanding any other provision of this Agreement to the contrary, the
following provisions shall govern with respect to Eurodollar Rate Loans as to
the matters covered:
A. Determination of Applicable Interest Rate. As soon as practicable after
10:00 A.M. (New York City time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties) the interest rate that
shall apply to the Eurodollar Rate Loans for which an interest rate is then
being determined for the applicable Interest Period and shall promptly give
notice thereof (in writing or by telephone confirmed in writing) to Company and
each Lender.
B. Inability to Determine Applicable Interest Rate. In the event that
Administrative Agent shall have determined (which determination shall be final
and conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date with respect to any Eurodollar Rate Loans, that by reason of
circumstances affecting the interbank Eurodollar market adequate and fair means
do not exist for ascertaining the interest rate applicable to such Loans on the
basis provided for in the definition of Adjusted Eurodollar Rate, Administrative
Agent shall on such date give notice (by telefacsimile or by telephone confirmed
in writing) to Company and each Lender of such determination, whereupon (i) no
Loans may be made as, or converted to, Eurodollar Rate Loans until such time as
Administrative Agent notifies Company and Lenders that the circumstances giving
rise to such notice no longer exist and (ii) any Notice of Borrowing or Notice
of Conversion/Continuation given by Company with respect to the Loans in respect
of which such determination was made shall be deemed to be rescinded by Company.
C. Illegality or Impracticability of Eurodollar Rate Loans. In the event
that on any date any Lender shall have determined (which determination shall be
final and conclusive and binding upon all parties hereto but shall be made only
after consultation with Administrative Agent) that the making, maintaining or
continuation of its Eurodollar Rate Loans (i) has become unlawful as a result of
compliance by such Lender in good faith with any law, treaty, governmental rule,
regulation, guideline or order (or would conflict with any such treaty,
governmental rule, regulation, guideline or order not having the force of law
even though the failure to comply therewith would not be unlawful) or (ii) has
become impracticable, or would cause such Lender material hardship, as a result
of contingencies occurring after the date of this Agreement which materially and
adversely affect the interbank Eurodollar market or the position of such Lender
in that market, then, and in any such event, such Lender shall be an "Affected
Lender" and it shall on that day give notice (by telefacsimile or by telephone
confirmed in writing) to Company and Administrative Agent of such determination
(which notice Administrative Agent shall promptly transmit to each other
Lender). Thereafter (a) the obligation of the Affected Lender to make Loans as,
or to convert Loans to, Eurodollar Rate Loans shall be suspended until such
notice shall be withdrawn by the Affected Lender, (b) to the extent such
determination by the Affected Lender relates to a Eurodollar Rate Loan then
being requested by Company pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, the Affected Lender shall make such Loan as (or convert
such Loan to, as the case may be) an Alternate Base Rate Loan, (c) the Affected
Lender's obligation to maintain its outstanding Eurodollar Rate Loans (the
"Affected Loans") shall be terminated at the earlier to occur of the expiration
of the Interest Period then in effect with respect to the Affected Loans or when
required by law, and (d) the Affected Loans shall automatically convert into
Alternate Base Rate Loans on the date of such termination. Notwithstanding the
foregoing, to the extent a determination by an Affected Lender as described
above relates to a Eurodollar Rate Loan then being requested by Company pursuant
to a Notice of Borrowing or a Notice of Conversion/Continuation, Company shall
have the option, subject to the provisions of subsection 2.6D, to rescind such
Notice of Borrowing or Notice of Conversion/Continuation as to all Lenders by
giving notice (by telefacsimile or by telephone confirmed in writing) to
Administrative Agent of such rescission on the date on which the Affected Lender
gives notice of its determination as described above (which notice of rescission
Administrative Agent shall promptly transmit to each other Lender). Except as
provided in the immediately preceding sentence, nothing in this subsection 2.6C
shall affect the obligation of any Lender other than an Affected Lender to make
or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in
accordance with the terms of this Agreement.
D. Compensation for Breakage or Non-Commencement of Interest Periods.
Company shall compensate each Lender, upon written request by that Lender (which
request shall set forth in reasonable detail the basis for requesting such
amounts), for all reasonable losses, expenses and liabilities (including any
interest paid by that Lender to lenders of funds borrowed by it to make or carry
its Eurodollar Rate Loans and any loss, expense or liability sustained by that
Lender in connection with the liquidation or re-employment of such funds) which
that Lender may sustain: (i) if for any reason (other than a default by that
Lender) a borrowing of any Eurodollar Rate Loan does not occur on a date
specified therefor in a Notice of Borrowing or a telephonic request for
borrowing, or a conversion to or continuation of any Eurodollar Rate Loan does
not occur on a date specified therefor in a Notice of Conversion/Continuation or
a telephonic request for conversion or continuation, (ii) if any prepayment
(including any prepayment pursuant to subsection 2.4B(i)) or other principal
payment or any conversion of any of its Eurodollar Rate Loans occurs on a date
prior to the last day of an Interest Period applicable to that Loan, (iii) if
any prepayment of any of its Eurodollar Rate Loans is not made on any date
specified in a notice of prepayment given by Company, or (iv) as a consequence
of any other default by Company in the repayment of its Eurodollar Rate Loans
when required by the terms of this Agreement.
E. Booking of Eurodollar Rate Loans. Any Lender may make, carry or transfer
Eurodollar Rate Loans at, to, or for the account of any of its branch offices or
the office of an Affiliate of that Lender; provided, that such making, carrying
or transferring Eurodollar Rate Loans does not result in any costs or taxes to
Company pursuant to subsection 2.7.
F. Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of
all amounts payable to a Lender under this subsection 2.6 and under subsection
2.7A shall be made as though that Lender had actually funded each of its
relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to the definition of Eurodollar
Rate in an amount equal to the amount of such Eurodollar Rate Loan and having a
maturity comparable to the relevant Interest Period 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 Rate Loans in any manner it sees fit
and the foregoing assumptions shall be utilized only for the purposes of
calculating amounts payable under this subsection 2.6 and under subsection 2.7A.
G. Eurodollar Rate Loans After Default. After the occurrence of and during
the continuation of a Potential Event of Default or an Event of Default, (i)
Company may not elect to have a Loan be made or maintained as, or converted to,
a Eurodollar Rate Loan after the expiration of any Interest Period then in
effect for that Loan and (ii) subject to the provisions of subsection 2.6D, any
Notice of Borrowing or Notice of Conversion/Continuation given by Company with
respect to a requested borrowing or conversion/continuation that has not yet
occurred shall be deemed to be rescinded by Company.
2.7. Increased Costs; Taxes; Capital Adequacy
A. Compensation for Increased Costs and Taxes. Subject to the provisions of
subsection 2.7B (which shall be controlling with respect to the matters covered
thereby), in the event that any Lender shall determine (which determination
shall, absent manifest error, be final and conclusive and binding upon all
parties hereto) that any law, treaty or governmental rule, regulation or order,
or any change therein or in the interpretation, administration or application
thereof (including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or governmental authority,
in each case that becomes effective after the date hereof, or compliance by such
Lender with any guideline, request or directive issued or made after the date
hereof by any central bank or other governmental or quasi-governmental authority
(whether or not having the force of law):
(i) subjects such Lender (or its applicable lending office) to any
additional Tax (other than any Tax on the Overall Net Income of such Lender)
with respect to this Agreement or any of its obligations hereunder or any
payments to such Lender (or its applicable lending office) of principal,
interest, fees or any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve (including any
marginal, emergency, supplemental, special or other reserve), special deposit,
compulsory loan, FDIC insurance or similar requirement against assets held by,
or deposits or other liabilities in or for the account of, or advances or loans
by, or other credit extended by, or any other acquisition of funds by, any
office of such Lender (other than any such reserve or other requirements with
respect to Eurodollar Rate Loans that are reflected in the definition of
Adjusted Eurodollar Rate); or
(iii) imposes any other condition (other than with respect to a Tax matter)
on or affecting such Lender (or its applicable lending office) or its
obligations hereunder or the interbank Eurodollar market; and the result of any
of the foregoing is to increase the cost to such Lender of agreeing to make,
making or maintaining Loans hereunder or to reduce any amount received or
receivable by such Lender (or its applicable lending office) with respect
thereto; then, in any such case, Company shall promptly pay to such Lender, upon
receipt of the statement referred to in the next sentence, such additional
amount or amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its sole discretion shall
determine) as may be necessary to compensate such Lender for any such increased
cost or reduction in amounts received or receivable hereunder; provided that
Company shall not be required to compensate a Lender pursuant to this subsection
for any increased cost or reduction incurred more than one year prior to the
date that such Lender notifies Company of such change giving rise to such
increased cost or reduction and of such Lender's intention to claim compensation
therefor; provided further that, if such change giving rise to such increased
cost or reduction is retroactive, then the one year period referred to above
shall be extended to include the period of retroactive effect thereof. Such
Lender shall deliver to Company (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis for calculating the
additional amounts owed to such Lender under this subsection 2.7A, which
statement shall be conclusive and binding upon all parties hereto absent
manifest error.
B. Withholding of Taxes.
(i) Payments to Be Free and Clear. All sums payable by Company under this
Agreement and the other Loan Documents shall (except to the extent required by
law) be paid free and clear of, and without any deduction or withholding on
account of, any Tax (other than a Tax on the Overall Net Income of any Lender)
imposed, levied, collected, withheld or assessed by or within the United States
of America or any political subdivision in or of the United States of America or
any other jurisdiction from or to which a payment is made by or on behalf of
Company or by any federation or organization of which the United States of
America or any such jurisdiction is a member at the time of payment.
(ii) Grossing-Up of Payments. If Company or any other Person is required by
law to make any deduction or withholding on account of any such Tax from any sum
paid or payable by Company to Administrative Agent or any Lender under any of
the Loan Documents:
(a) Company shall notify Administrative Agent of any such requirement or
any change in any such requirement as soon as Company becomes aware of it;
(b) Company shall pay any such Tax before the date on which penalties
attach thereto, such payment to be made (if the liability to pay is imposed on
Company) for its own account or (if that liability is imposed on Administrative
Agent or such Lender, as the case may be) on behalf of and in the name of
Administrative Agent or such Lender;
(c) the sum payable by Company in respect of which the relevant deduction,
withholding or payment is required shall be increased to the extent necessary to
ensure that, after the making of that deduction, withholding or payment,
Administrative Agent or such Lender, as the case may be, receives on the due
date a net sum equal to what it would have received had no such deduction,
withholding or payment been required or made; and
(d) within 30 days after paying any sum from which it is required by law to
make any deduction or withholding, and within 30 days after the due date of
payment of any Tax which it is required by clause (b) above to pay, Company
shall deliver to Administrative Agent evidence satisfactory to the other
affected parties of such deduction, withholding or payment and of the remittance
thereof to the relevant taxing or other authority;
provided that no such additional amount shall be required to be paid to any
Lender under clause (c) above except to the extent that any change in any law,
treaty or governmental rule, regulation or order, or any change therein or in
the interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority, in each case that
becomes effective after the date hereof (in the case of each Lender listed on
the signature pages hereof) or after the date of the Assignment Agreement
pursuant to which such Lender became a Lender (in the case of each other Lender)
affecting any such requirement for a deduction, withholding or payment as is
mentioned therein shall result in an increase in the rate of such deduction,
withholding or payment from that in effect at the date of this Agreement or at
the date of such Assignment Agreement, as the case may be, in respect of
payments to such Lender.
(iii) Evidence of Exemption from U.S. Withholding Tax.
(a) Each Lender that is not a United States person as defined in Section
7701(a)(30) of the Internal Revenue Code (for purposes of this subsection
2.7B(iii), a "Non-US Lender") shall deliver to Administrative Agent for
transmission to Company, on or prior to the Closing Date (in the case of each
Lender listed on the signature pages hereof) or on or prior to the date of the
Assignment Agreement pursuant to which it becomes a Lender (in the case of each
other Lender), and at such other times as may be necessary in the determination
of Company or Administrative Agent (each in the reasonable exercise of its
discretion), (1) two original copies of Internal Revenue Service Form 1001 or
4224 (or any successor forms), properly completed and duly executed by such
Lender, together with any other certificate or statement of exemption required
under the Internal Revenue Code or the regulations issued thereunder to
establish that such Lender is not subject to deduction or withholding of United
States federal income tax with respect to any payments to such Lender of
principal, interest, fees or other amounts payable under any of the Loan
Documents or (2) if such Lender is not a "bank" or other Person described in
Section 881(c)(3) of the Internal Revenue Code and cannot deliver either
Internal Revenue Service Form 1001 or 4224 pursuant to clause (1) above, a
Certificate re Non-Bank Status together with two original copies of Internal
Revenue Service Form W-8 (or any successor form), properly completed and duly
executed by such Lender, together with any other certificate or statement of
exemption requested by Company required under the Internal Revenue Code or the
regulations issued thereunder to establish that such Lender is not subject to
deduction or withholding of United States federal income tax with respect to any
payments to such Lender of interest payable under any of the Loan Documents.
(b) Each Lender required to deliver any forms, certificates or other
evidence with respect to United States federal income tax withholding matters
pursuant to subsection 2.7B(iii)(a) hereby agrees, from time to time after the
initial delivery by such Lender of such forms, certificates or other evidence,
whenever a lapse in time or change in circumstances renders such forms,
certificates or other evidence obsolete or inaccurate in any material respect,
that such Lender shall promptly (1) deliver to Administrative Agent for
transmission to Company two new original copies of Internal Revenue Service Form
1001 or 4224, or a Certificate re Non-Bank Status and two original copies of
Internal Revenue Service Form W-8, as the case may be, properly completed and
duly executed by such Lender, together with any other certificate or statement
of exemption requested by Company required in order to confirm or establish that
such Lender is not subject to deduction or withholding of United States federal
income tax with respect to payments to such Lender under the Loan Documents or
(2) notify Administrative Agent and Company of its inability to deliver any such
forms, certificates or other evidence.
(c) Company shall not be required to pay any additional amount to any
Non-US Lender under clause (c) of subsection 2.7B(ii) if such Lender shall have
failed to satisfy the requirements of clause (a) or (b)(1) of this subsection
2.7B(iii); provided that if such Lender shall have satisfied the requirements of
subsection 2.7B(iii)(a) on the Closing Date (in the case of each Lender listed
on the signature pages hereof) or on the date of the Assignment Agreement
pursuant to which it became a Lender (in the case of each other Lender), nothing
in this subsection 2.7B(iii)(c) shall relieve Company of its obligation to pay
any additional amounts pursuant to clause (c) of subsection 2.7B(ii) in the
event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender is not subject to withholding as
described in subsection 2.7B(iii)(a).
C. Capital Adequacy Adjustment. If any Lender shall have determined that
the adoption, effectiveness, phase-in or applicability after the date hereof of
any law, rule or regulation (or any provision thereof) regarding capital
adequacy, or any change therein or in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
(or its applicable lending office) with any guideline, request or directive
regarding capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to,
such Lender's Loans or Commitments or Letters of Credit or participations
therein or other obligations hereunder with respect to the Loans or the Letters
of Credit to a level below that which such Lender or such controlling
corporation could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy),
then from time to time, within five Business Days after receipt by Company from
such Lender of the statement referred to in the next sentence, Company shall pay
to such Lender such additional amount or amounts as will compensate such Lender
or such controlling corporation on an after-tax basis for such reduction;
provided that Company shall not be required to compensate a Lender pursuant to
this subsection for any reduction incurred more than one year prior to the date
that such Lender notifies Company of such change giving rise to such reduction
and of such Lender's intention to claim compensation therefor; provided further
that, if such change giving rise to such reduction is retroactive, then the one
year period referred to above shall be extended to include the period of
retroactive effect thereof. Such Lender shall deliver to Company (with a copy to
Administrative Agent) a written statement, setting forth in reasonable detail
the basis of the calculation of such additional amounts, which statement shall
be conclusive and binding upon all parties hereto absent manifest error.
D. Refund and Contest. If Administrative Agent or any Lender receives a
refund with respect to Tax deducted, withheld or paid by Company and with
respect to which Company has been required to and has paid an additional amount
under this subsection 2.7, which in the good faith judgment of such Lender is
allocable to such deduction, withholding or payment, it shall promptly pay such
refund, together with any other amount paid by Company in connection with such
refunded Tax, to Company, net of all out-of-pocket expenses of such Lender
incurred in obtaining such refund, provided, however, that Company agrees to
promptly return such refund to Administrative Agent or the applicable Lender, as
the case may be, if it receives notice from Administrative Agent or applicable
Lender that such Administrative Agent or Lender is required to repay such
refund. Each of Administrative Agent and such Lender agrees that it will contest
such Tax or liabilities paid by Company if Agent or such Lender determines, in
good faith and in its sole discretion, that it would not be materially
disadvantaged or prejudiced as a result of such contest.
2.8. Obligation of Lenders and Issuing Lenders to Mitigate; Replacement
A. Mitigation. Each Lender and Issuing Lender agrees that, as promptly as
practicable after the officer of such Lender or Issuing Lender responsible for
administering the Loans or Letters of Credit of such Lender or Issuing Lender,
as the case may be, becomes aware of the occurrence of an event or the existence
of a condition that would cause such Lender to become an Affected Lender or that
would entitle such Lender or Issuing Lender to receive payments under subsection
2.7 or subsection 3.6, it will, to the extent not inconsistent with the internal
policies of such Lender or Issuing Lender and any applicable legal or regulatory
restrictions, use reasonable efforts (i) to make, issue, fund or maintain the
Commitments of such Lender or the affected Loans or Letters of Credit of such
Lender or Issuing Lender through another lending or letter of credit office of
such Lender or Issuing Lender, or (ii) take such other measures as such Lender
or Issuing Lender may deem reasonable, if as a result thereof the circumstances
which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such
Lender or Issuing Lender pursuant to subsection 2.7 or subsection 3.6 would be
materially reduced and if, as determined by such Lender or Issuing Lender in its
sole discretion, the making, issuing, funding or maintaining of such Commitments
or Loans or Letters of Credit through such other lending or letter of credit
office or in accordance with such other measures, as the case may be, would not
otherwise materially adversely affect such Commitments or Loans or Letters of
Credit or the interests of such Lender or Issuing Lender; provided that such
Lender or Issuing Lender will not be obligated to utilize such other lending or
letter of credit office pursuant to this subsection 2.8 unless Company agrees to
pay all reasonable incremental expenses incurred by such Lender or Issuing
Lender as a result of utilizing such other lending or letter of credit office as
described in clause (i) above. A certificate as to the amount of any such
expenses payable by Company pursuant to this subsection 2.8 (setting forth in
reasonable detail the basis for requesting such amount) submitted by such Lender
or Issuing Lender to Company (with a copy to Administrative Agent) shall be
conclusive absent manifest error.
B. Replacement. In the event of (a) a refusal by a Lender to consent to a
proposed change, waiver, discharge or termination with respect to this Agreement
which has been approved by Requisite Lenders (but requires consent of all
Lenders) as provided in subsection 10.6, (b) any Lender becomes an Affected
Lender or requests compensation under subsection 2.7A, 2.7C or 3.6, (c) Company
is required to pay any additional amount to any Lender or any governmental
authority for the account of any Lender pursuant to subsection 2.7B, or (d) any
Lender defaults in its obligation to fund Loans hereunder, then Company may, at
its sole expense and effort, if no Potential Event of Default or Event of
Default then exists, replace such Lender (a "Replaced Lender") with one or more
Eligible Assignees (collectively, the "Replacement Lender") acceptable to
Administrative Agent, provided that (i) at the time of any replacement pursuant
to this subsection 2.8 the Replacement Lender shall enter into one or more
Assignment Agreements pursuant to subsection 10.1B (and with all fees payable
pursuant to such subsection 10.1B to be paid by the Replacement Lender) pursuant
to which the Replacement Lender shall acquire all of the outstanding Loans and
Commitments of, and in each case participations in Letters of Credit and Swing
Line Loans by, the Replaced Lender and, in connection therewith, shall pay to
(x) the Replaced Lender in respect thereof an amount equal to the sum of (A) an
amount equal to the principal of, and all accrued interest on, all outstanding
Loans of the Replaced Lender, (B) an amount equal to all unpaid drawings with
respect to Letters of Credit 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 with respect thereto, (y) the
appropriate Issuing Lender an amount equal to such Replaced Lender's Pro Rata
Share of any unpaid drawings with respect to Letters of Credit (which at such
time remains an unpaid drawing) issued by it to the extent such amount was not
theretofore funded by such Replaced Lender, and (z) Swing Line Lender an amount
equal to such Replaced Lender's Pro Rata Share of any Refunded Swing Line Loans
to the extent such amount was not theretofore funded by such Replaced Lender,
and (ii) all obligations (including without limitation all such amounts, if any,
owing under subsection 2.6D) of Company owing to the Replaced Lender (other than
those specifically described in clause (i) above in respect of which the
assignment purchase price has been, or is concurrently being, paid), shall be
paid in full to such Replaced Lender concurrently with such replacement. Upon
the execution of the respective Assignment Agreements and the acceptance thereof
by Administrative Agent pursuant to subsection 10.1B, 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 Company, the Replacement Lender shall become a Lender
hereunder and the Replaced Lender shall cease to constitute a Lender hereunder
except with respect to indemnification provisions under this Agreement which by
the terms of this Agreement survive the termination of this Agreement, which
indemnification provisions shall survive as to such Replaced Lender.
Notwithstanding anything to the contrary contained above, no Issuing Lender may
be replaced hereunder at any time while it has Letters of Credit outstanding
hereunder unless arrangements satisfactory to such Issuing Lender (including the
furnishing of a Standby Letter of Credit in form and substance, and issued by an
issuer satisfactory to such Issuing Lender or the furnishing of cash collateral
in amounts and pursuant to arrangements satisfactory to such Issuing Lender)
have been made with respect to such outstanding Letters of Credit. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling Company to require such assignment and delegation cease to apply.
SECTION 3.
LETTERS OF CREDIT
3.1. Issuance of Letters of Credit and Lenders' Purchase of Participations
Therein
A. Letters of Credit. In addition to Company requesting that Revolving
Lenders make Revolving Loans pursuant to subsection 2.1A(ii) and that Swing Line
Lender make Swing Line Loans pursuant to subsection 2.1A(iii), Company may
request, in accordance with the provisions of this subsection 3.1, from time to
time during the period from the Closing Date to but excluding the date that is
30 days prior to the Revolving Loan Commitment Termination Date, that one or
more Revolving Lenders issue Letters of Credit for the account of Company for
the purposes specified in the definition of Standby Letters of Credit. Subject
to the terms and conditions of this Agreement and in reliance upon the
representations and warranties of Company herein set forth, any one or more
Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not
be obligated to, issue such Letters of Credit in accordance with the provisions
of this subsection 3.1; provided that such Letters of Credit shall be issued on
a sight basis only and Company shall not request that any Revolving Lender issue
(and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the
Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan
Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the
Letter of Credit Usage would exceed $20,000,000;
(iii) any Letter of Credit denominated in a currency other than Dollars; or
(iv) any Letter of Credit having an expiration date later than the earlier
of (a) the date that is ten Business Days prior to the Revolving Loan Commitment
Termination Date and (b) the date which is one year from the date of issuance of
such Letter of Credit; provided that the immediately preceding clause (b) shall
not prevent any Issuing Lender from agreeing that a Letter of Credit will
automatically be extended for one or more successive periods not to exceed one
year each unless such Issuing Lender elects not to extend for any such
additional period; and provided, further, that such Issuing Lender shall elect
not to extend such Letter of Credit if it has knowledge that an Event of Default
or Potential Event of Default has occurred and is continuing (and has not been
waived in accordance with subsection 10.6) at the time such Issuing Lender must
elect whether or not to allow such extension.
B. Mechanics of Issuance.
(i) Notice of Issuance. Whenever Company desires the issuance of a Letter
of Credit, it shall deliver to Administrative Agent a Notice of Request to Issue
Letter of Credit in the form of Exhibit III annexed hereto no later than 12:00
Noon (New York City time) at least three Business Days or in each case such
shorter period as may be agreed to by the Issuing Lender in any particular
instance, in advance of the proposed date of issuance. The Notice of Request to
Issue Letter of Credit shall specify (a) the proposed date of issuance (which
shall be a Business Day), (b) the face amount of the Letter of Credit, (c) the
expiration date of the Letter of Credit, (d) the name and address of the
beneficiary, and (e) either the verbatim text of the proposed Letter of Credit
or the proposed terms and conditions thereof, including a precise description of
any documents to be presented by the beneficiary which, if presented by the
beneficiary prior to the expiration date of the Letter of Credit, would require
the Issuing Lender to make payment under the Letter of Credit; provided that the
Issuing Lender, in its reasonable discretion, may require changes in the text of
the proposed Letter of Credit or any such documents.
Company shall notify the applicable Issuing Lender (and Administrative
Agent, if Administrative Agent is not such Issuing Lender) prior to the issuance
of any Letter of Credit in the event that any of the matters to which Company is
required to certify in the applicable Notice of Request to Issue Letter of
Credit is no longer true and correct as of the proposed date of issuance of such
Letter of Credit, and upon the issuance of any Letter of Credit Company shall be
deemed to have re-certified, as of the date of such issuance, as to the matters
to which Company is required to certify in the applicable Notice of Request to
Issue Letter of Credit.
(ii) Determination of Issuing Lender. Upon receipt by Administrative Agent
of a Notice of Request to Issue Letter of Credit pursuant to subsection 3.1B(i)
requesting the issuance of a Letter of Credit, in the event Administrative Agent
elects to issue such Letter of Credit, Administrative Agent shall promptly so
notify Company, and Administrative Agent shall be the Issuing Lender with
respect thereto. In the event that Administrative Agent, in its sole discretion,
elects not to issue such Letter of Credit, Administrative Agent shall promptly
so notify Company, whereupon Company may request any other Revolving Lender to
issue such Letter of Credit by delivering to such Revolving Lender a copy of the
applicable Notice of Request to Issue Letter of Credit. Any Revolving Lender so
requested to issue such Letter of Credit shall promptly notify Company and
Administrative Agent whether or not, in its sole discretion, it has elected to
issue such Letter of Credit, and any such Revolving Lender which so elects to
issue such Letter of Credit shall be the Issuing Lender with respect thereto. In
the event that all other Revolving Lenders shall have declined to issue such
Letter of Credit, notwithstanding the prior election of Administrative Agent not
to issue such Letter of Credit, Administrative Agent shall be obligated to issue
such Letter of Credit and shall be the Issuing Lender with respect thereto,
notwithstanding the fact that the Letter of Credit Usage with respect to such
Letter of Credit and with respect to all other Letters of Credit issued by
Administrative Agent, when aggregated with Administrative Agent's outstanding
Revolving Loans and Swing Line Loans, may exceed Administrative Agent's
Revolving Loan Commitment then in effect.
(iii) Issuance of Letter of Credit. Upon satisfaction or waiver (in
accordance with subsection 10.6) of the conditions set forth in subsection 4.3,
the Issuing Lender shall issue the requested Letter of Credit in accordance with
the Issuing Lender's standard operating procedures.
(iv) Notification to Revolving Lenders. Upon the issuance of any Letter of
Credit the applicable Issuing Lender shall promptly notify Administrative Agent
and each other Revolving Lender of such issuance, which notice shall be
accompanied by a copy of such Letter of Credit. Promptly after receipt of such
notice (or, if Administrative Agent is the Issuing Lender, together with such
notice), Administrative Agent shall notify each Revolving Lender of the amount
of such Revolving Lender's respective participation in such Letter of Credit,
determined in accordance with subsection 3.1C.
(v) Reports to Revolving Lenders. Within 5 days after the end of each
calendar quarter ending after the Closing Date, so long as any Letter of Credit
shall have been outstanding during such calendar quarter, each Issuing Lender
shall deliver to Administrative Agent a report setting forth for such calendar
quarter the daily aggregate amount available to be drawn under the Letters of
Credit issued by such Issuing Lender that were outstanding during such calendar
quarter.
C. Revolving Lenders' Purchase of Participations in Letters of Credit.
Immediately upon the issuance of each Letter of Credit, each Revolving Lender
shall be deemed to, and hereby agrees to, have irrevocably purchased from the
Issuing Lender a participation in such Letter of Credit and any drawings honored
thereunder in an amount equal to such Revolving Lender's Pro Rata Share of the
maximum amount which is or at any time may become available to be drawn
thereunder.
3.2. Letter of Credit Fees
Company agrees to pay the following amounts with respect to Letters of
Credit issued hereunder:
(i) with respect to each Letter of Credit, (a) a fronting fee, payable
directly to the applicable Issuing Lender for its own account, equal to the
greater of $500 or 0.1875% per annum of the daily amount available to be drawn
under such Letter of Credit and (b) a letter of credit fee, payable to
Administrative Agent for the account of Revolving Lenders, equal to the
applicable Eurodollar Rate Margin plus 0.1875% per annum of the daily amount
available to be drawn under such Letter of Credit, each such fronting fee or
letter of credit fee to be payable in arrears on and to (but excluding) each
January 15, April 15, July 15 and October 15 of each year and computed on the
basis of a 360 day year for the actual number of days elapsed;
(ii) with respect to the issuance, amendment or transfer of each Letter of
Credit and each payment of a drawing made thereunder (without duplication of the
fees payable under clauses (a) and (b) above), documentary and processing
charges payable directly to the applicable Issuing Lender for its own account in
accordance with such Issuing Lender's standard schedule for such charges in
effect at the time of such issuance, amendment, transfer or payment, as the case
may be.
For purposes of calculating any fees payable under clause (i) of this
subsection 3.2, the daily amount available to be drawn under any Letter of
Credit shall be determined as of the close of business on any date of
determination. Promptly upon receipt by Administrative Agent of any amount
described in clause (i)(b) of this subsection 3.2, Administrative Agent shall
distribute to each Revolving Lender its Pro Rata Share of such amount.
3.3. Drawings and Reimbursement of Amounts Paid Under Letters of Credit
A. Responsibility of Issuing Lender With Respect to Drawings. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care so as to
ascertain whether they appear on their face to be in accordance with the terms
and conditions of such Letter of Credit.
B. Reimbursement by Company of Amounts Paid Under Letters of Credit. In the
event an Issuing Lender has determined to honor a drawing under a Letter of
Credit issued by it, such Issuing Lender shall immediately notify Company and
Agent, and Company shall reimburse such Issuing Lender on or before the Business
Day immediately following the date on which such drawing is honored (the
"Reimbursement Date") in an amount in Dollars and in same day funds equal to the
amount of such honored drawing; provided that, anything contained in this
Agreement to the contrary notwithstanding, (i) unless Company shall have
notified Administrative Agent and such Issuing Lender prior to 10:00 A.M. (New
York City time) on the date such drawing is honored that Company intends to
reimburse such Issuing Lender for the amount of such honored drawing with funds
other than the proceeds of Revolving Loans, Company shall be deemed to have
given a timely Notice of Borrowing to Administrative Agent requesting Revolving
Lenders to make Revolving Loans that are Alternate Base Rate Loans on the
Reimbursement Date in an amount in Dollars equal to the amount of such honored
drawing and (ii) subject to satisfaction or waiver of the conditions specified
in subsection 4.2B, Revolving Lenders shall, on the Reimbursement Date, make
Revolving Loans that are Base Rate Loans in the amount of such honored drawing,
the proceeds of which shall be applied directly by Administrative Agent to
reimburse such Issuing Lender for the amount of such honored drawing; and
provided, further that if for any reason proceeds of Revolving Loans are not
received by such Issuing Lender on the Reimbursement Date in an amount equal to
the amount of such honored drawing, Company shall reimburse such Issuing Lender,
on demand, in an amount in same day funds equal to the excess of the amount of
such honored drawing over the aggregate amount of such Revolving Loans, if any,
which are so received. Nothing in this subsection 3.3B shall be deemed to
relieve any Revolving Lender from its obligation to make Revolving Loans on the
terms and conditions set forth in this Agreement, and Company shall retain any
and all rights it may have against any Revolving Lender resulting from the
failure of such Revolving Lender to make such Revolving Loans under this
subsection 3.3B.
C. Payment by Revolving Lenders of Unreimbursed Amounts Paid Under Letters
of Credit.
(i) Payment by Revolving Lenders. In the event that Company shall fail for
any reason to reimburse any Issuing Lender as provided in subsection 3.3B in an
amount equal to the amount of any drawing honored by such Issuing Lender under a
Letter of Credit issued by it, such Issuing Lender shall promptly notify each
other Revolving Lender of the unreimbursed amount of such honored drawing and of
such other Revolving Lender's respective participation therein based on such
Revolving Lender's Pro Rata Share. Each Revolving Lender shall make available to
such Issuing Lender an amount equal to its respective participation, in Dollars
and in same day funds, at the office of such Issuing Lender specified in such
notice, not later than 12:00 Noon (New York City time) on the first business day
(under the laws of the jurisdiction in which such office of such Issuing Lender
is located) after the date notified by such Issuing Lender. In the event that
any Revolving Lender fails to make available to such Issuing Lender on such
business day the amount of such Revolving Lender's participation in such Letter
of Credit as provided in this subsection 3.3C, such Issuing Lender shall be
entitled to recover such amount on demand from such Revolving Lender together
with interest thereon at the rate customarily used by such Issuing Lender for
the correction of errors among banks for three Business Days and thereafter at
the Alternate Base Rate. Nothing in this subsection 3.3C shall be deemed to
prejudice the right of any Revolving Lender to recover from any Issuing Lender
any amounts made available by such Revolving Lender to such Issuing Lender
pursuant to this subsection 3.3C in the event that it is determined by the final
judgment of a court of competent jurisdiction that the payment with respect to a
Letter of Credit by such Issuing Lender in respect of which payment was made by
such Revolving Lender constituted gross negligence or willful misconduct on the
part of such Issuing Lender.
(ii) Distribution to Revolving Lenders of Reimbursements Received From
Company. In the event any Issuing Lender shall have been reimbursed by other
Revolving Lenders pursuant to subsection 3.3C(i) for all or any portion of any
drawing honored by such Issuing Lender under a Letter of Credit issued by it,
such Issuing Lender shall distribute to each other Revolving Lender which has
paid all amounts payable by it under subsection 3.3C(i) with respect to such
honored drawing such other Revolving Lender's Pro Rata Share of all payments
subsequently received by such Issuing Lender from Company in reimbursement of
such honored drawing when such payments are received. Any such distribution
shall be made to a Revolving Lender at its primary address set forth below its
name on the appropriate signature page hereof or at such other address as such
Revolving Lender may request.
D. Interest on Amounts Paid Under Letters of Credit.
(i) Payment of Interest by Company. Company agrees to pay to each Issuing
Lender, with respect to drawings honored under any Letters of Credit issued by
it, interest on the amount paid by such Issuing Lender in respect of each such
honored drawing from the date such drawing is honored to but excluding the date
such amount is reimbursed by Company (including any such reimbursement out of
the proceeds of Revolving Loans pursuant to subsection 3.3B) at a rate equal to
(a) for the period from the date such drawing is honored to but excluding the
Reimbursement Date, the rate then in effect under this Agreement with respect to
Revolving Loans that are Alternate Base Rate Loans and (b) thereafter, a rate
which is 2% per annum in excess of the rate of interest otherwise payable under
this Agreement with respect to Revolving Loans that are Alternate Base Rate
Loans. Interest payable pursuant to this subsection 3.3D(i) shall be computed on
the basis of a 365 or 366 day year for the actual number of days elapsed in the
period during which it accrues and shall be payable on demand or, if no demand
is made, on the date on which the related drawing under a Letter of Credit is
reimbursed in full.
(ii) Distribution of Interest Payments by Issuing Lender. Promptly upon
receipt by any Issuing Lender of any payment of interest pursuant to subsection
3.3D(i) with respect to a drawing honored under a Letter of Credit issued by it,
(a) such Issuing Lender shall distribute to each other Revolving Lender, out of
the interest received by such Issuing Lender in respect of the period from the
date such drawing is honored to but excluding the date on which such Issuing
Lender is reimbursed for the amount of such drawing (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to subsection
3.3B), the amount that such other Revolving Lender would have been entitled to
receive in respect of the letter of credit fee that would have been payable in
respect of such Letter of Credit for such period pursuant to subsection 3.2 if
no drawing had been honored under such Letter of Credit, and (b) in the event
such Issuing Lender shall have been reimbursed by other Revolving Lenders
pursuant to subsection 3.3C(i) for all or any portion of such honored drawing,
such Issuing Lender shall distribute to each other Revolving Lender which has
paid all amounts payable by it under subsection 3.3C(i) with respect to such
honored drawing such other Revolving Lender's Pro Rata Share of any interest
received by such Issuing Lender in respect of that portion of such honored
drawing so reimbursed by other Revolving Lenders for the period from the date on
which such Issuing Lender was so reimbursed by other Revolving Lenders to but
excluding the date on which such portion of such honored drawing is reimbursed
by Company. Any such distribution shall be made to a Revolving Lender at its
primary address set forth below its name on the appropriate signature page
hereof or at such other address as such Revolving Lender may request.
3.4. Obligations Absolute
The obligation of Company to reimburse each Issuing Lender for drawings
honored under the Letters of Credit issued by it and to repay any Revolving
Loans made by Revolving Lenders pursuant to subsection 3.3B and the obligations
of Revolving Lenders under subsection 3.3C(i) shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances including any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right which
Company or any Revolving Lender may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), any Issuing Lender or other Revolving Lender or any
other Person or, in the case of a Revolving Lender, against Company, whether in
connection with this Agreement, the transactions contemplated herein or any
unrelated transaction (including any underlying transaction between Company or
one of its Subsidiaries and the beneficiary for which any Letter of Credit was
procured);
(iii) any draft or other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv) payment by the applicable Issuing Lender under any Letter of Credit
against presentation of a draft or other document which does not substantially
comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties, assets,
condition (financial or otherwise) or prospects of Company or any of its
Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by any party
thereto;
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of Default
shall have occurred and be continuing;
provided, in each case, that payment by the applicable Issuing Lender under
the applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question
(as determined by a final judgment of a court of competent jurisdiction).
3.5. Indemnification; Nature of Issuing Lenders' Duties
A. Indemnification. In addition to amounts payable as provided in
subsection 3.6, Company hereby agrees to protect, indemnify, pay and save
harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which such Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit by such Issuing
Lender, other than as a result of (a) the gross negligence or willful misconduct
of such Issuing Lender as determined by a final judgment of a court of competent
jurisdiction or (b) subject to the following clause (ii), the wrongful dishonor
by such Issuing Lender of a proper demand for payment made under any Letter of
Credit issued by it or (ii) the failure of such Issuing Lender to honor a
drawing under any such Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or omissions herein called
"Governmental Acts").
B. Nature of Issuing Lenders' Duties. As between Company and any Issuing
Lender, Company assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by such Issuing Lender by, the respective beneficiaries
of such Letters of Credit. In furtherance and not in limitation of the
foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond the
control of such Issuing Lender, including any Governmental Acts, and none of the
above shall affect or impair, or prevent the vesting of, any of such Issuing
Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to Company.
Notwithstanding anything to the contrary contained in this subsection 3.5,
Company shall retain any and all rights it may have against any Issuing Lender
for any liability arising solely out of the gross negligence or willful
misconduct of such Issuing Lender, as determined by a final judgment of a court
of competent jurisdiction.
3.6. Increased Costs and Taxes Relating to Letters of Credit
Subject to the provisions of subsection 2.7B (which shall be controlling
with respect to the matters covered thereby), in the event that any Issuing
Lender or Revolving Lender shall determine (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto)
that any law, treaty or governmental rule, regulation or order, or any change
therein or in the interpretation, administration or application thereof
(including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or governmental authority,
in each case that becomes effective after the date hereof, or compliance by any
Issuing Lender or Revolving Lender with any guideline, request or directive
issued or made after the date hereof by any central bank or other governmental
or quasi-governmental authority (whether or not having the force of law):
(i) subjects such Issuing Lender or Revolving Lender (or its applicable
lending or letter of credit office) to any additional Tax (other than any Tax on
the overall net income of such Issuing Lender or Revolving Lender) with respect
to the issuing or maintaining of any Letters of Credit or the purchasing or
maintaining of any participations therein or any other obligations under this
Section 3, whether directly or by such being imposed on or suffered by any
particular Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve (including any
marginal, emergency, supplemental, special or other reserve), special deposit,
compulsory loan, FDIC insurance or similar requirement in respect of any Letters
of Credit issued by any Issuing Lender or participations therein purchased by
any Revolving Lender; or
(iii) imposes any other condition (other than with respect to a Tax matter)
on or affecting such Issuing Lender or Revolving Lender (or its applicable
lending or letter of credit office) regarding this Section 3 or any Letter of
Credit or any participation therein; and the result of any of the foregoing is
to increase the cost to such Issuing Lender or Revolving Lender of agreeing to
issue, issuing or maintaining any Letter of Credit or agreeing to purchase,
purchasing or maintaining any participation therein or to reduce any amount
received or receivable by such Issuing Lender or Revolving Lender (or its
applicable lending or letter of credit office) with respect thereto; then, in
any case, Company shall promptly pay to such Issuing Lender or Revolving Lender,
upon receipt of the statement referred to in the next sentence, such additional
amount or amounts as may be necessary to compensate such Issuing Lender or
Revolving Lender for any such increased cost or reduction in amounts received or
receivable hereunder; provided that Company shall not be required to compensate
a Lender pursuant to this subsection for any increased cost or reduction
incurred more than one year prior to the date that such Lender notifies Company
of such change giving rise to such increased cost or reduction and of such
Lender's intention to claim compensation therefor; provided further that, if
such change giving rise to such increased cost or reduction is retroactive, then
the one year period referred to above shall be extended to include the period of
retroactive effect thereof. Such Issuing Lender or Revolving Lender shall
deliver to Company (with a copy to Administrative Agent) a written statement,
setting forth in reasonable detail the basis for calculating the additional
amounts owed to such Issuing Lender or Revolving Lender under this subsection
3.6, which statement shall be conclusive and binding upon all parties hereto
absent manifest error.
SECTION 4.
CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of Letters of
Credit hereunder are subject to the satisfaction of the following conditions.
4.1. Conditions to Term Loans and Initial Revolving Loans and Swing Line
Loans
The obligations of Lenders to make the Term Loans and any Revolving Loans
and Swing Line Loans to be made on the Closing Date are, in addition to the
conditions precedent specified in subsection 4.2, subject to prior or concurrent
satisfaction of the following conditions:
A. Loan Documents. On or before the Closing Date, Company shall, and shall
cause each other Loan Party to, deliver to Lenders (or to Administrative Agent
for Lenders with sufficient originally executed copies, where appropriate, for
each Lender and its counsel) the following with respect to Company or such Loan
Party, as the case may be, each, unless otherwise noted, dated the Closing Date:
(i) Certified copies of the Certificate or Articles of Incorporation of
such Person, together with a good standing certificate from the Secretary of
State of its jurisdiction of incorporation and, to the extent generally
available, a certificate or other evidence of good standing as to payment of any
applicable franchise or similar taxes from the appropriate taxing authority of
such jurisdiction, each dated a recent date prior to the Closing Date;
(ii) Copies of the Bylaws of such Person, certified as of the Closing Date
by such Person's corporate secretary or an assistant secretary;
(iii) Resolutions of the Board of Directors of such Person approving and
authorizing the execution, delivery and performance of the Loan Documents to
which it is a party, certified as of the Closing Date by the corporate secretary
or an assistant secretary of such Person as being in full force and effect
without modification or amendment;
(iv) Signature and incumbency certificates of the officers of such Person
executing the Loan Documents to which it is a party;
(v) Executed originals of the Loan Documents to which such Person is a
party; and
(vi) Such other documents as Administrative Agent may reasonably request.
B. No Material Adverse Effect. Since December 31, 1998, no event or events,
adverse condition or change in or affecting Company or DPS that, individually or
in the aggregate, could reasonably be expected to have a Material Adverse Effect
shall have occurred.
C. Termination of Existing Credit Agreement and Related Liens; Existing
Letters of Credit; Scheduled Indebtedness. On the Closing Date, Company and its
Subsidiaries shall have (or shall direct that the proceeds of the Loans made on
the Closing Date be applied to) (i) repaid in full all Indebtedness outstanding
under the Existing Credit Agreement; (ii) terminated any commitments to lend or
make other extensions of credit thereunder; (iii) delivered to Administrative
Agent all documents or instruments necessary to release all Liens securing
Indebtedness or other obligations of Company and its Subsidiaries thereunder;
(iv) made arrangements satisfactory to Administrative Agent with respect to the
cancellation of any letters of credit outstanding thereunder or the issuance of
Letters of Credit to support the obligations of Company and its Subsidiaries
with respect thereto; (v) repaid in full all Scheduled Indebtedness listed on
Schedule 2.5 hereto; and (vi) delivered to Administrative Agent all documents
and instruments necessary to evidence such repayment.
D. Other Indebtedness. On the Closing Date, other than Indebtedness
outstanding under the Senior Subordinated Credit Facility, if any, and this
Agreement, Company and its Subsidiaries shall have outstanding no Indebtedness,
Contingent Obligations or preferred stock other than (i) the Indebtedness or
guarantees of Indebtedness aggregating not more than $1 million set forth on
Schedule 4.1 and (ii) the Contingent Obligations listed on Schedule 7.4.
E. Security Interests in Investment Securities. Agents shall have received
evidence satisfactory to them that Company and Subsidiary Guarantors shall have
taken or caused to be taken all such actions, executed and delivered or caused
to be executed and delivered all such agreements, documents and instruments, and
made or caused to be made all such filings, if any, that may be necessary or, in
the reasonable opinion of Agents, desirable in order to create in favor of
Agents, for the benefit of Lenders, a valid and perfected First Priority Lien in
the entire Pledged Collateral. Such actions shall include the following:
(i) Schedules to Collateral Documents. Delivery to Agents of accurate and
complete schedules to the Company Pledge Agreement and the Subsidiary Pledge
Agreement.
(ii) Stock Certificates. Delivery to Collateral Agent of certificates
(which certificates shall be accompanied by irrevocable undated stock powers,
duly endorsed in blank and otherwise satisfactory in form and substance to
Collateral Agent) representing all capital stock pledged pursuant to the Company
Pledge Agreement and the Subsidiary Pledge Agreements.
F. Solvency Certificate. Agents shall have received a certificate of the
chief financial officer of Company, in his capacity as such, substantially in
the form of Exhibit XV and in form and substance satisfactory to Agents,
supporting the conclusions that, after giving effect to the Acquisition, the
Refinancing, this Agreement and the loans to be made under the Senior
Subordinated Credit Facility and related transactions, Company will be Solvent
and not be rendered insolvent by the indebtedness incurred in connection
therewith.
G. Evidence of Insurance. Agents shall have received a certificate from
Company's insurance broker or other evidence satisfactory to them that all
insurance required to be maintained pursuant to subsection 6.4 is in full force
and effect.
H. Opinions of Counsel to Loan Parties. Lenders and their respective
counsel shall have received (i) originally executed copies of one or more
favorable written opinions of (A) Xxxxxx X. Xxxxxxxx, general counsel of Company
and (B) Xxxxxxx Xxxxxxx & Xxxxxxxx, special New York counsel for Loan Parties,
each in form and substance reasonably satisfactory to Agents and their counsel,
dated as of the Closing Date and setting forth substantially the matters in the
opinions designated in Exhibits VIII-A and VIII-B annexed hereto and as to such
other matters as Agents acting on behalf of Lenders may reasonably request and
(ii) evidence satisfactory to Agents that Company has requested such counsel to
deliver such opinions to Lenders.
I. Opinions of Agents' Counsel. Lenders shall have received originally
executed copies of one or more favorable written opinions of Xxxxxx Xxxxxx &
Xxxxxxx, counsel to Agents, dated as of the Closing Date, substantially in the
form of Exhibit IX annexed hereto and as to such other matters as Agents acting
on behalf of Lenders may reasonably request.
J. Fees. Company shall have paid to Administrative Agent, for distribution
(as appropriate) to Agents and Lenders, the fees payable on the Closing Date
referred to in subsection 2.3.
K. Representations and Warranties; Performance of Agreements. Company shall
have delivered to Agents an Officers' Certificate, in form and substance
satisfactory to Agents, to the effect that the representations and warranties in
Section 5 hereof are true, correct and complete in all material respects on and
as of the Closing Date to the same extent as though made on and as of that date
(or, to the extent such representations and warranties specifically relate to an
earlier date, that such representations and warranties were true, correct and
complete in all material respects on and as of such earlier date) and that
Company shall have performed in all material respects all agreements and
satisfied all conditions which this Agreement provides shall be performed or
satisfied by it on or before the Closing Date except as otherwise disclosed to
and agreed to in writing by Agents.
L. Completion of Proceedings. All corporate and other proceedings taken or
to be taken in connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by Agents, acting
on behalf of Lenders, and their counsel shall be satisfactory in form and
substance to Agents and such counsel, and Agents and such counsel shall have
received all such counterpart originals or certified copies of such documents as
Agents may reasonably request.
M. Approval of Acquisition Structure and Documentation. The structure
utilized to consummate the Acquisition and the Stock Purchase Agreement among
SmithKline Xxxxxxx Corporation, SmithKline Xxxxxxx Intercredit BV and Express
Scripts, Inc. dated as of February 9, 1999 (the "Definitive Acquisition
Documents") shall be in full force and effect, no provision of which shall have
been amended, supplemented, waived or otherwise modified in any material respect
without the prior written consent of Agents and the Acquisition shall occur
simultaneously with the making of the initial Loans under this Agreement.
N. Senior Subordinated Credit Facility. The Senior Subordinated Credit
Facility shall be in form and substance satisfactory to Agents, and the Senior
Subordinated Credit Facility shall be in full force and effect, no provision of
which shall have been amended, supplemented, waived or otherwise modified in any
material respect without the prior written consent of Agents and Company shall
have borrowed gross proceeds of $150 million thereunder.
O. Certain Approvals and Agreements Relating to the Acquisition. All
governmental and third party approvals necessary or advisable in connection with
the Acquisition, the Refinancing, the financings contemplated thereby and the
continuing operations of the business of Company and its subsidiaries shall have
been obtained and be in full force and effect, and all applicable waiting
periods shall have expired without any action being taken or threatened by any
competent authority which would restrain, prevent or otherwise impose material
adverse conditions on the Acquisition or the financing thereof.
P. Financial Information. Company shall have delivered to Agents and the
Lenders: financial statements of each of Company and DPS (including notes
thereto), consisting of (a) consolidated audited balance sheets as of the end of
each period in the three fiscal year period ended December 31, 1998, and a pro
forma balance sheet as of such date, (b) consolidated audited statements of
operations and cash flows for each period in the three fiscal-year period ended
December 31, 1998 and a pro forma statement of operations for the most recent
fiscal year, and (c) such other financial statements as may be reasonably
requested by Agents, and any supporting documents as shall be reasonably
satisfactory to Agents, and all such financial statements, historical or pro
forma, delivered pursuant to this paragraph (P) shall be in compliance with the
requirements of Regulation S-X for a public offering registered under the
Securities Act of 1933 and shall not be materially inconsistent with financial
statements previously provided to Agents and Lenders. Agents shall have received
originally executed copies of a comfort letter of PricewaterhouseCoopers LLP,
independent public accountants to Company, covering such matters as Agents
acting on behalf of Lenders may reasonably request.
4.2. Conditions to All Loans
The obligations of Lenders to make Loans on each Funding Date are subject
to the following further conditions precedent:
A. Administrative Agent shall have received before that Funding Date, in
accordance with the provisions of subsection 2.1B, an originally executed Notice
of Borrowing, in each case signed by the chief executive officer, the chief
financial officer or the treasurer of Company or by any executive officer of
Company designated by any of the above-described officers on behalf of Company
in a writing delivered to Administrative Agent.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in the other
Loan Documents shall be true, correct and complete in all material respects on
and as of that Funding Date to the same extent as though made on and as of that
date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case such representations and warranties
shall have been true, correct and complete in all material respects on and as of
such earlier date;
(ii) No event shall have occurred and be continuing or would result from
the consummation of the borrowing contemplated by such Notice of Borrowing that
would constitute an Event of Default or a Potential Event of Default;
(iii) Each Loan Party shall have performed in all material respects all
agreements and satisfied all conditions which this Agreement provides shall be
performed or satisfied by it on or before that Funding Date; and
(iv) No order, judgment or decree of any court, arbitrator or governmental
authority shall purport to enjoin or restrain any Lender from making the Loans
to be made by it on that Funding Date.
4.3. Conditions to Letters of Credit
The issuance of any Letter of Credit hereunder (whether or not the
applicable Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
A. On or before the date of issuance of the initial Letter of Credit
pursuant to this Agreement, the initial Loans shall have been made.
B. On or before the date of issuance of such Letter of Credit, Agent shall
have received, in accordance with the provisions of subsection 3.1B(i), an
originally executed Notice of Request to Issue Letter of Credit, in each case
signed by the chief executive officer, the chief financial officer or the
treasurer of Company or by any executive officer of Company designated by any of
the above-described officers on behalf of Company in a writing delivered to
Agent, together with all other information specified in subsection 3.1B(i) and
such other documents or information as the applicable Issuing Lender may
reasonably require in connection with the issuance of such Letter of Credit.
C. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.2B shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Loan and the date
of issuance of such Letter of Credit were a Funding Date.
SECTION 5.
COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make the
Loans, to induce Issuing Lenders to issue Letters of Credit and to induce other
Lenders to purchase participations therein, Company represents and warrants to
each Lender (both before and after giving effect to the Acquisition and the
transactions in connection therewith), on the date of this Agreement, on each
Funding Date and on the date of issuance of each Letter of Credit, that the
following statements are true, correct and complete:
5.1. Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries
A. Organization and Powers. Each Loan Party is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation as specified in Schedule 5.1 annexed hereto. Each
Loan Party has all requisite corporate power and authority to own and operate
its properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into the Loan Documents to which it is a party and to carry
out the transactions contemplated thereby.
B. Qualification and Good Standing. Each Loan Party is qualified to do
business and in good standing in every jurisdiction where its assets are located
and wherever necessary to carry out its business and operations, except in
jurisdictions where the failure to be so qualified or in good standing has not
had and could not reasonably be expected to have a Material Adverse Effect.
C. Conduct of Business. Company and its Subsidiaries are engaged only in
the businesses permitted to be engaged in pursuant to subsection 7.14.
D. Subsidiaries. All of the Subsidiaries of Company are identified in
Schedule 5.1 annexed hereto, as said Schedule 5.1 may be supplemented from time
to time pursuant to the provisions of subsection 6.1(xv). The capital stock of
each of the Subsidiaries of Company identified in Schedule 5.1 annexed hereto
(as so supplemented) is duly authorized, validly issued, fully paid and
nonassessable and free and clear of all liens except liens created by the Loan
Documents and liens permitted thereunder and none of such capital stock
constitutes Margin Stock. Each of the Subsidiaries of Company identified in
Schedule 5.1 annexed hereto (as so supplemented) is a corporation duly
organized, validly existing and in good standing under the laws of its
respective jurisdiction of incorporation set forth therein has all requisite
corporate power and authority to own and operate its properties and to carry on
its business as now conducted and as proposed to be conducted, and is qualified
to do business and in good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its business and operations, in each
case except where failure to be so qualified or in good standing or a lack of
such corporate power and authority has not had and is not reasonably expected to
have a Material Adverse Effect. Schedule 5.1 annexed hereto (as so supplemented)
correctly sets forth the ownership interest of Company and each of its
Subsidiaries in each of the Subsidiaries of Company identified therein.
5.2. Authorization of Borrowing, Etc.
A. Authorization of Borrowing. The execution, delivery and performance of
the Loan Documents have been duly authorized by all necessary corporate action
on the part of each Loan Party that is a party thereto.
B. No Conflict. The execution, delivery and performance by Loan Parties of
the Loan Documents and the consummation of the transactions contemplated by the
Loan Documents do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to Company or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws of Company
or any of its Subsidiaries or any order, judgment or decree of any court or
other agency of government binding on Company or any of its Subsidiaries, (ii)
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any Contractual Obligation of Company or any of
its Subsidiaries, (iii) result in or require the creation or imposition of any
Lien upon any of the properties or assets of Company or any of its Subsidiaries
(other than any Liens created under any of the Loan Documents in favor of the
Collateral Agent on behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any Contractual
Obligation of Company or any of its Subsidiaries, except for such approvals or
consents which will be obtained on or before the Closing Date and disclosed in
writing to Lenders.
C. Governmental Consents. The execution, delivery and performance by Loan
Parties of the Loan Documents and the consummation of the transactions
contemplated by the Loan Documents do not and will not require any registration
with, consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body.
D. Binding Obligation. Each of the Loan Documents has been duly executed
and delivered by each Loan Party that is a party thereto and is the legally
valid and binding obligation of such Loan Party, enforceable against such Loan
Party in accordance with its respective terms, subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and (ii)
general equitable principles (whether considered in a proceeding in equity or at
law) and (iii) an implied covenant of good faith and fair dealing.
E. Senior Subordinated Credit Facility. The Obligations constitute Senior
Debt (as defined in the Senior Subordinated Credit Facility).
5.3. Financial Condition
Company has heretofore delivered to Lenders, at Lenders' request, the
audited financial statements (including balance sheets and statements of
operations, stockholders' equity and cash flows) of Company and its Subsidiaries
for the fiscal year ended December 31, 1998. All such statements were prepared
in conformity with GAAP and fairly present, in all material respects, the
financial position (on a consolidated basis) of the entities described in such
financial statements as at the date thereof and the results of operations and
cash flows (on a consolidated basis) of the entities described therein for the
period then ended. Company does not (and will not immediately following the
funding of the initial Loans) have any Contingent Obligation, contingent
liability or liability for taxes, long-term lease or unusual forward or
long-term commitment that is not reflected in the foregoing financial statements
or the notes thereto and which in any such case is material in relation to the
business, operations, properties, assets or financial condition of Company and
its Subsidiaries taken as a whole.
5.4. No Material Adverse Change; No Restricted Junior Payments
Since December 31, 1998, no event or change has occurred that has caused or
evidences, either in any case or in the aggregate, a Material Adverse Effect.
Neither Company nor any of its Subsidiaries has directly or indirectly declared,
ordered, paid or made, or set apart any sum or property for, any Restricted
Junior Payment or agreed to do so except as permitted by subsection 7.5.
5.5. Title to Properties; Liens
Company and its Subsidiaries have (i) good title to (in the case of fee
interests in real property), (ii) valid leasehold interests in (in the case of
leasehold interests in real or personal property), or (iii) good title to (in
the case of all other personal property), all of their respective properties and
assets necessary or useful for the conduct of their business, in each case
except for assets disposed of since the date of the most recent financial
statements received by Administrative Agent in the ordinary course of business
or as otherwise permitted under subsection 7.7 and except where failure to have
such title would not, individually or in the aggregate, have a Material Adverse
Effect. Except as permitted by this Agreement, all such properties and assets
are free and clear of Liens.
5.6. Litigation; Adverse Facts
Except as set forth on Schedule 5.6, there are no actions, suits,
proceedings, arbitrations or governmental investigations (whether or not
purportedly on behalf of Company or any of its Subsidiaries) at law or in
equity, or before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign (including any Environmental Claims) that are pending or, to the
knowledge of Company, threatened against or affecting Company or any of its
Subsidiaries or any property, license or registration of Company or any of its
Subsidiaries and that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither Company nor any of its
Subsidiaries (i) is in violation of any applicable laws (including those
involving the licensing or registration relating to the pharmaceutical and
healthcare services provided by Company and its Subsidiaries and Environmental
Laws) that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect, or (ii) is subject to or in default with
respect to any final judgments, writs, injunctions, decrees, rules or
regulations of any court or any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
5.7. Payment of Taxes
Except to the extent permitted by subsection 6.3, all tax returns and
reports of Company and its Subsidiaries required to be filed by any of them have
been timely filed, and all taxes shown on such tax returns to be due and payable
and all assessments, fees and other governmental charges upon Company and its
Subsidiaries and upon their respective properties, assets, income, businesses
and franchises which are due and payable have been paid when due and payable,
except (a) for taxes that are being contested in good faith by appropriate
proceedings for which Company or relevant Subsidiary, as applicable, has set
aside on its books adequate reserves in accordance with GAAP or (b) to the
extent that the failure to do so would not reasonably be expected to result in a
Material Adverse Effect. Company knows of no proposed tax assessment against
Company or any of its Subsidiaries which is not being actively contested by
Company or such Subsidiary in good faith and by appropriate proceedings;
provided that such reserves or other appropriate provisions, if any, as shall be
required in conformity with GAAP shall have been made or provided therefor.
5.8. Performance of Agreements; Materially Adverse Agreements; Material
Contracts
A. Neither Company nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any of its Contractual Obligations, and no condition
exists that, with the giving of notice or the lapse of time or both, would
constitute such a default, except where the consequences, direct or indirect, of
such default or defaults, if any, could not reasonably be expected to have a
Material Adverse Effect.
B. Neither Company nor any of its Subsidiaries is a party to or is
otherwise subject to any agreements or instruments or any charter or other
internal restrictions which, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect.
C. Schedule 5.8 contains a true, correct and complete list of all the
Material Contracts in effect on the Closing Date. Except as described on
Schedule 5.8, all such Material Contracts are in full force and effect and no
material defaults currently exist thereunder.
5.9. Governmental Regulation; Accreditation
A. Neither Company nor any of its Subsidiaries is subject to regulation as
a "holding company" under the Public Utility Holding Company Act of 1935 or as
an "investment company" under the Investment Company Act of 1940.
B. Company's facilities that provide infusion therapy services are
accredited by the Joint Commission on Accreditation of Healthcare Organizations.
5.10. Securities Activities
Neither Company nor any of its Subsidiaries is engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock.
5.11. Employee Benefit Plans
A. Except as would not reasonably be expected to result in a Material
Adverse Effect: (i) Company, each of its Subsidiaries and each of their
respective ERISA Affiliates are in compliance with all applicable provisions and
requirements of ERISA and the regulations and published interpretations
thereunder with respect to each Employee Benefit Plan and have performed all
their obligations under each Employee Benefit Plan and (ii) each Pension Plan
which is intended to qualify under Section 401(a) of the Internal Revenue Code
is so qualified.
B. No ERISA Event that would reasonably be expected to result in a Material
Adverse Effect has occurred or is reasonably expected to occur.
C. As of the most recent valuation date for any Pension Plan, the amount of
unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA),
individually or in the aggregate for all Pension Plans (excluding for purposes
of such computation any Pension Plans with respect to which assets exceed
benefit liabilities), which if amortized over ten years, would not reasonably be
expected, after considering the financial condition of all of the more closely
related ERISA Affiliates, to result in a Material Adverse Effect.
D. For each Multiemployer Plan as of the most recent valuation date for
which an actuarial report has been received, the potential liability of Company,
its Subsidiaries and their respective ERISA Affiliates for a complete withdrawal
from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when
aggregated with such potential liability for a complete withdrawal from all
Multiemployer Plans, based on information available pursuant to Section 4221(e)
of ERISA, would not reasonably be expected, after considering the financial
condition of all of the more closely related ERISA Affiliates, to result in a
Material Adverse Effect.
5.12. Certain Fees
Other than certain fees payable to CSFB, BTCo or their respective
affiliates, no broker's or finder's fee or commission will be payable with
respect to this Agreement or any of the transactions contemplated hereby, and
Company hereby indemnifies Lenders against, and agrees that it will hold Lenders
harmless from, any claim, demand or liability for any such broker's or finder's
fees alleged to have been incurred in connection herewith or therewith and any
expenses (including reasonable fees, expenses and disbursements of counsel)
arising in connection with any such claim, demand or liability.
5.13. Environmental Protection
No event or condition has occurred or is occurring with respect to Company
or any of its Subsidiaries relating to any Environmental Law, that individually
or in the aggregate has had or could reasonably be expected to have a Material
Adverse Effect.
5.14. Employee Matters
There is no strike or work stoppage in existence or threatened involving
Company or any of its Subsidiaries that could reasonably be expected to have a
Material Adverse Effect.
5.15. Solvency
Each Loan Party is and, upon the incurrence of any Obligations by such Loan
Party on any date on which this representation is made, will be, Solvent.
5.16. Matters Relating to Collateral
A. Creation, Perfection and Priority of Liens. The execution and delivery
of the Collateral Documents by Loan Parties, together with (i) the actions taken
on or prior to the date hereof pursuant to subsections 4.1E and 6.8, (ii) if
applicable, the actions to be taken pursuant to subsection 6.9A and (iii) the
delivery to the Collateral Agent of any Pledged Collateral not delivered to
Collateral Agent at the time of execution and delivery of the applicable
Collateral Document (all of which Pledged Collateral has been so delivered) are
effective to create in favor of the Collateral Agent for the benefit of Lenders,
as security for the respective Secured Obligations (as defined in the applicable
Collateral Document in respect of any Collateral), a valid and perfected First
Priority Lien on all of the Collateral, and other actions necessary or desirable
to perfect and maintain the perfection and First Priority status of such Liens
have been duly made or taken and remain in full force and effect.
B. Governmental Authorizations. No authorization, approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body is required for either (i) the pledge or grant by any Loan Party of the
Liens with respect to the Pledged Collateral purported to be created in favor of
the Collateral Agent pursuant to any of the Collateral Documents or (ii) the
exercise by the Collateral Agent of any rights or remedies in respect of any
Collateral (whether specifically granted or created pursuant to any of the
Collateral Documents or created or provided for by applicable law), except for
filings or recordings contemplated by subsections 5.16A and, if applicable, 6.9A
and except as may be required, in connection with the disposition of any
Collateral, by laws generally affecting the offering, sale or disposition of
property of the same type as the Collateral.
C. Absence of Third-Party Filings. Except such as may have been filed in
favor of the Collateral Agent, Company has not filed any UCC financing statement
or other instrument similar in effect covering all or any part of the Collateral
in any filing or recording office.
D. Margin Regulations. The pledge of the Pledged Collateral pursuant to the
Collateral Documents does not violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
E. Information Regarding Collateral. All information supplied to the
Collateral Agent by or on behalf of any Loan Party with respect to any of the
Collateral (in each case taken as a whole with respect to any particular
Collateral) is accurate and complete in all material respects.
5.17. Disclosure
A. No representation or warranty of Company or any of its Subsidiaries
contained in any Loan Document or in any other document, certificate or written
statement furnished to Lenders by or on behalf of Company or any of its
Subsidiaries for use in connection with the transactions contemplated by this
Agreement contains any untrue statement of a material fact or omits to state a
material fact (known to Company, in the case of any document not furnished by
it) necessary in order to make the statements contained herein or therein, taken
as a whole, not misleading in light of the circumstances in which the same were
made; provided, that no representation is made as to projections or pro forma
financial information except as set forth in the next sentence. Any projections
and pro forma financial information contained in such materials are based upon
good faith estimates and assumptions believed by Company to be reasonable at the
time made, it being recognized by Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ from the projected
results. There are no facts known to Company (other than matters of a general
economic nature) that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect and that have not been disclosed
herein or in such other documents, certificates and statements furnished to
Lenders for use in connection with the transactions contemplated hereby.
B. No information submitted to Agents in their due diligence investigation
is known to Company to contain any untrue statements of material fact, or omit
material facts, which untrue statements or material omissions could reasonably
be determined, when taken as a whole, to be material and adverse to the
business, assets, financial position, operations or results of operations of DPS
and its Subsidiaries, taken as a whole.
5.18. Accuracy of Representations and Warranties in the Definitive
Acquisition Documents
Subject to the qualifications set forth therein, each of the
representations and warranties given by Company to Seller in the Definitive
Acquisition Documents is true and correct in all material respects as of the
date hereof and as of the Closing Date.
5.19. Year 2000 Compliance
Company has (i) initiated a review and assessment of its and its
Subsidiaries' business and operations (including those affected by suppliers and
vendors) that Company believes could be adversely affected by the "Year 2000
Problem" (that is, the risk that computer applications used by Company or
Subsidiaries (or suppliers and vendors) may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any date
after December 31, 1999), (ii) developed a plan and timeline for addressing the
Year 2000 Problem on or before October 31, 1999, and (iii) to date, implemented
that plan substantially in accordance with that timetable. Company believes that
its own computer applications that are material to its or its Subsidiaries'
business and operations will on a timely basis be able to perform properly
date-sensitive functions for all dates before and after January 1, 2000 (that
is, be "Year 2000 compliant") except to the extent that a failure to do so could
not reasonably be expected to have Material Adverse Effect.
SECTION 6.
COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 6.
6.1. Financial Statements and Other Reports
Company will maintain, and cause each of its Subsidiaries to maintain, a
system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in conformity
with GAAP. Company will deliver to Administrative Agent and Lenders:
(i) Quarterly Financial: as soon as available and in any event within 45
days after the end of each Fiscal Quarter, (a) the consolidated balance sheets
of Company and its Subsidiaries as at the end of such Fiscal Quarter and the
related consolidated statements of operations, changes in stockholders' equity
and cash flows of Company and its Subsidiaries for such Fiscal Quarter and for
the period from the beginning of the then current Fiscal Year to the end of such
Fiscal Quarter, setting forth in each case in comparative form the corresponding
figures for the corresponding periods of the previous Fiscal Year and the
corresponding figures from the Financial Plan for the current Fiscal Year, all
in reasonable detail and certified by the chief financial officer of Company
that they fairly present, in all material respects, the financial condition of
Company and its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, subject to changes
resulting from audit and normal year-end adjustments, and (b) beginning with the
Fiscal Quarter ending September 30, 1999, a statement of operations and any
narrative report for Company and its Subsidiaries as provided to the Board of
Directors of Company and the corresponding figures from the Financial Plan for
the current Fiscal Year, setting forth in comparative form the corresponding
figures for the corresponding periods of the previous Fiscal Year, certified by
the chief financial officer of Company as aforesaid;
(ii) Year-End Financial: as soon as available and in any event within 90
days after the end of each Fiscal Year, (a) the consolidated balance sheets of
Company and its Subsidiaries as at the end of such Fiscal Year and the related
consolidated statements of operations, changes in stockholders' equity and cash
flows of Company and its Subsidiaries for such Fiscal Year, setting forth in
each case in comparative form the corresponding figures for the previous Fiscal
Year and the corresponding figures from the Financial Plan for the Fiscal Year
covered by such financial statements, all in reasonable detail and certified by
the chief financial officer of Company that they fairly present, in all material
respects, the financial condition of Company and its Subsidiaries as at the
dates indicated and the results of their operations and their cash flows for the
periods indicated, (b) a statement of operations and any narrative report for
Company and its Subsidiaries as provided to the Board of Directors of Company,
setting forth in comparative form the corresponding figures for the previous
Fiscal Year and the corresponding figures from the Financial Plan for the Fiscal
Year, certified by the chief financial officer of Company as aforesaid, and (c)
in the case of such consolidated financial statements, a report thereon of
PricewaterhouseCoopers LLP or other independent certified public accountants of
recognized national standing selected by Company and satisfactory to
Administrative Agent, which report shall be unqualified, shall express no doubts
about the ability of Company and its Subsidiaries to continue as a going
concern, and shall state that such consolidated financial statements fairly
present, in all material respects, the consolidated financial position of
Company and its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated in conformity with
GAAP applied on a basis consistent with prior years (except as otherwise
disclosed in such financial statements) and that the examination by such
accountants in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards;
(iii) Officers' and Compliance Certificates: together with each delivery of
the consolidated financial statements of Company and its Subsidiaries pursuant
to subdivisions (i) and (ii) above, (a) an Officers' Certificate of Company
stating that the signers have reviewed the terms of this Agreement and have
made, or caused to be made under their supervision, a review in reasonable
detail of the transactions and condition of Company and its Subsidiaries during
the accounting period covered by such financial statements and that such review
has not disclosed the existence during or at the end of such accounting period,
and that the signers do not have knowledge of the existence as at the date of
such Officers' Certificate, of any condition or event that constitutes an Event
of Default or Potential Event of Default, or, if any such condition or event
existed or exists, specifying the nature and period of existence thereof and
what action Company has taken, is taking and proposes to take with respect
thereto; and (b) a Compliance Certificate demonstrating in reasonable detail
compliance during and at the end of the applicable accounting periods with the
restrictions contained in Section 7;
(iv) Reconciliation Statements: if, as a result of any change in accounting
principles and policies from those used in the preparation of the audited
financial statements most recently delivered pursuant to subsection 5.3 or this
subsection 6.1, the consolidated financial statements of Company and its
Subsidiaries delivered pursuant to subdivisions (i), (ii) or (xii) of this
subsection 6.1 will differ in any material respect from the consolidated
financial statements that would have been delivered pursuant to such
subdivisions had no such change in accounting principles and policies been made,
then together with the first delivery of financial statements pursuant to
subdivision (i), (ii) or (xii) of this subsection 6.1 following such change, a
written statement of the chief accounting officer or chief financial officer of
Company setting forth the differences (including any differences that would
affect any calculations relating to the financial covenants set forth in
subsection 7.6) which would have resulted if such financial statements had been
prepared without giving effect to such change;
(v) Accountants' Certification: together with each delivery of consolidated
financial statements of Company and its Subsidiaries pursuant to subdivision
(ii) above, a written statement by the independent certified public accountants
giving the report thereon (a) stating that their audit examination has included
a review of the terms of this Agreement and the other Loan Documents as they
relate to accounting matters, (b) stating whether, in connection with their
audit examination, any condition or event that constitutes an Event of Default
or Potential Event of Default has come to their attention and, if such a
condition or event has come to their attention, specifying the nature and period
of existence thereof; provided that such accountants shall not be liable by
reason of any failure to obtain knowledge of any such Event of Default or
Potential Event of Default that would not be disclosed in the course of their
audit examination, and (c) stating that based on their audit examination nothing
has come to their attention that causes them to believe either or both that the
information contained in the certificates delivered therewith pursuant to
subdivision (iii) above is not correct or that the matters set forth in the
Compliance Certificates delivered therewith pursuant to clause (b) of
subdivision (iii) above for the applicable Fiscal Year are not stated in
accordance with the terms of this Agreement;
(vi) Accountants' Reports: promptly upon receipt thereof (unless restricted
by applicable professional standards), copies of the annual letter to management
prepared by Company's independent certified public accountants;
(vii) SEC Filings and Press Releases: promptly upon their becoming
available, copies of (a) all financial statements, reports, notices and proxy
statements sent or made available generally by Company to its security holders
or by any Subsidiary of Company to its security holders other than Company or
another Subsidiary of Company, (b) all regular and periodic reports and all
registration statements (other than on Form S-8 or a similar form) and
prospectuses, if any, filed by Company or any of its Subsidiaries with any
securities exchange or with the Securities and Exchange Commission ("SEC") or
any governmental or private regulatory authority (other than filings in the
ordinary course of business to maintain Company's licenses and permits), and (c)
all press releases and other statements made available generally by Company or
any of its Subsidiaries to the public concerning material developments in the
business of Company or any of its Subsidiaries;
(viii) Events of Default, Etc.: promptly upon any officer of Company
obtaining knowledge (a) of any condition or event that constitutes an Event of
Default or Potential Event of Default, or becoming aware that any Lender has
given any notice (other than to Administrative Agent) or taken any other action
with respect to a claimed Event of Default or Potential Event of Default, (b)
that any Person has given any notice to Company or any of its Subsidiaries or
taken any other action with respect to a claimed default or event or condition
of the type referred to in subsection 8.2, (c) of any condition or event that
would be required to be disclosed in a current report filed by Company with the
SEC on Form 8-K (Items 1, 2, 3, 4 and 6 of such Form as in effect on the date
hereof) if Company were required to file such reports under the Exchange Act, or
(d) of the occurrence of any event or change that has caused or evidences,
either in any case or in the aggregate, a Material Adverse Effect (including,
without limitation, termination or modification of customer contracts), an
officers' Certificate specifying the nature and period of existence of such
condition, event or change, or specifying the notice given or action taken by
any such Person and the nature of such claimed Event of Default, Potential Event
of Default, default, event or condition, and what action Company has taken, is
taking and proposes to take with respect thereto;
(ix) Litigation or Other Proceedings: promptly upon any officer of Company
obtaining knowledge of (a) the institution of any action, suit, proceeding
(whether administrative, judicial or otherwise), governmental investigation or
arbitration against or affecting Company or any of its Subsidiaries or any
property, license or registration of Company or any of its Subsidiaries
(collectively, "Proceedings") not previously disclosed in writing by Company to
Lenders or (b) any material development in any Proceeding that, in any case:
(1) if adversely determined, has a reasonable possibility of giving rise to
a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the consummation of, or to recover
any damages or obtain relief as a result of, the transactions contemplated
hereby; written notice thereof together with such other information as may be
reasonably available to Company to enable Lenders and their counsel to evaluate
such matters;
(x) ERISA Events: promptly upon becoming aware of the occurrence of or
forthcoming occurrence of any ERISA Event that would reasonably be expected to
result in a Material Adverse Effect, a written notice specifying the nature
thereof, what action Company, any of its Subsidiaries or any of their respective
ERISA Affiliates has taken, is taking or proposes to take with respect thereto
and, when known, any action taken or threatened by the Internal Revenue Service,
the Department of Labor or the PBGC with respect thereto;
(xi) ERISA Notices: with reasonable promptness, copies of (a) all notices
received by Company, any of its Subsidiaries or any of their respective ERISA
Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event that
would reasonably be expected to result in a Material Adverse Effect; and (b)
copies of such other documents or governmental reports or filings relating to
any Pension Plan as Administrative Agent shall reasonably request;
(xii) Financial Plans: as soon as practicable and in any event no later
than 60 days after the beginning of each Fiscal Year, a consolidated plan and
financial forecast for such Fiscal Year (the "Financial Plan"), including (a)
forecasted consolidated balance sheet and forecasted consolidated statement of
operations and a forecasted consolidated statement of cash flows of Company and
its Subsidiaries for such Fiscal Year, together with an explanation of the
assumptions on which such forecasts are based, (b) forecasted consolidated
statements of operations and cash flows of Company and its Subsidiaries for each
quarter of such Fiscal Year, together with an explanation of the assumptions on
which such forecasts are based, and (c) such other information and projections
as any Lender may reasonably request;
(xiii) Insurance: as soon as practicable and in any event by the last day
of each Fiscal Year, a report in form and substance satisfactory to
Administrative Agent outlining all material insurance coverage maintained as of
the date of such report by Company and its Subsidiaries and all material
insurance coverage planned to be maintained by Company and its Subsidiaries in
the immediately succeeding Fiscal Year;
(xiv) Board of Directors: with reasonable promptness, written notice of any
change in the Board of Directors of Company;
(xv) New Subsidiaries: promptly upon any Person becoming a Subsidiary of
Company, a written notice setting forth with respect to such Person (a) the date
on which such Person became a Subsidiary of Company and (b) all of the data
required to be set forth in Schedule 5.1 annexed hereto with respect to all
Subsidiaries of Company (it being understood that such written notice shall be
deemed to supplement Schedule 5.1 annexed hereto for all purposes of this
Agreement);
(xvi) Licensing, Registration and Accreditation: with reasonable
promptness, information regarding proceedings regarding any licensing,
registration or accreditation of Company or a Subsidiary by or with any
governmental body or the Joint Commission Accreditation of Healthcare
Organizations, if failure to obtain or maintain such license, registration or
accreditation has a reasonable possibility of giving rise to a Material Adverse
Effect; and
(xvii) Other Information: with reasonable promptness, such other
information and data with respect to Company or any of its Subsidiaries as from
time to time may be reasonably requested by any Lender.
6.2. Corporate Existence, Etc.
Except as permitted under subsection 7.7, Company will, and will cause each
of its Subsidiaries to, at all times preserve and keep in full force and effect
its corporate existence and all rights and franchises material to its business;
provided, however, that neither Company nor any of its Subsidiaries shall be
required to preserve any such right or franchise if the Board of Directors of
Company or such Subsidiary shall determine that the preservation thereof is no
longer desirable in the conduct of the business of Company or such Subsidiary,
as the case may be, and that the loss thereof would not have a Material Adverse
Effect.
6.3. Payment of Taxes and Claims; Tax Consolidation
A. Company will, and will cause each of its Subsidiaries to, pay all taxes,
assessments and other governmental charges imposed upon it or any of its
properties or assets or in respect of any of its income, businesses or
franchises before any penalty accrues thereon, and all claims (including claims
for labor, services, materials and supplies) for sums that have become due and
payable and that by law have or may become a Lien upon any of its properties or
assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; provided that no such charge or claim need be paid if it is
being contested in good faith by appropriate proceedings promptly instituted and
diligently conducted, so long as (1) such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made therefor and (2) in the case of a charge or claim which has or may become a
Lien against any of the Collateral, such contest proceedings conclusively
operate to stay the sale of any portion of the Collateral to satisfy such charge
or claim.
B. Company will not, nor will it permit any of its Subsidiaries to, file or
consent to the filing of any consolidated income tax return with any Person
(other than Company or any of its Subsidiaries).
6.4. Maintenance of Properties; Insurance
A. Maintenance of Properties. Company will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good repair, working
order and condition, ordinary wear and tear excepted, all material properties
used or useful in the business of Company and its Subsidiaries and from time to
time will make or cause to be made all appropriate repairs, renewals and
replacements thereof.
B. Insurance. Company will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third
party property damage insurance, business interruption insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by corporations
of established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for
corporations similarly situated in the industry.
6.5. Inspection Rights; Lender Meeting
A. Inspection Rights. Company shall, and shall cause each of its
Subsidiaries to, permit any authorized representatives designated by
Administrative Agent (on its behalf or on behalf of any Lender), or if an Event
of Default has occurred and is continuing, the Lenders, to visit and inspect any
of the properties of Company or of any of its Subsidiaries, to inspect, copy and
take extracts from its and their financial and accounting records, and to
discuss its and their affairs, finances and accounts with its and their officers
and independent public accountants (provided that Company may, if it so chooses,
be present at or participate in any such discussion), all upon reasonable notice
and at such reasonable times during normal business hours and as often as may
reasonably be requested.
B. Lender Meeting. Company will, upon the request of Administrative Agent
or Requisite Lenders, participate in a meeting of Agents and Lenders once during
each Fiscal Year to be held at Company's corporate offices (or at such other
location as may be agreed to by Company and Administrative Agent) at such time
as may be agreed to by Company and Administrative Agent to discuss topics
including, but not limited to, the current Fiscal Year's Financial Plan and the
outlook and projections for Company for the next two Fiscal Years.
6.6. Compliance With Laws, Etc.
A. Compliance. Company shall comply and operate in compliance, and shall
cause each of its Subsidiaries to comply and to operate in compliance, with the
requirements of all applicable laws, rules, regulations and orders of any
governmental authority (including those involving licensing or registration
relating to the pharmaceutical and healthcare services provided by Company and
its Subsidiaries and Environmental Laws) at all times, noncompliance with which
could reasonably be expected to cause, individually or in the aggregate, a
Material Adverse Effect.
B. Licenses. To the extent not obtained prior to the Closing Date, Company
will obtain all licenses required to conduct the businesses conducted by DPS and
its Subsidiaries at the times required by applicable law, except those that the
failure to obtain which, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.
6.7. Environmental Claims and Violations of Environmental Laws
Except as could not reasonably be expected to cause, individually or in the
aggregate, a Material Adverse Effect, Company shall promptly take, and shall use
best efforts to cause each of its Subsidiaries promptly to take, any and all
actions necessary to (i) cure any violation of applicable Environmental Laws by
Company or its Subsidiaries and (ii) make an appropriate response to any
Environmental Claim against Company or any of its Subsidiaries and discharge any
obligations it may have to any Person thereunder.
6.8. Execution of Subsidiary Guaranty and Collateral Documents by Certain
Subsidiaries and Future Subsidiaries
A. Execution of Subsidiary Guaranty and Collateral Documents. In the event
that any Person becomes a Subsidiary of Company after the date hereof, Company
will promptly notify Agents of that fact and cause such Subsidiary to execute
and deliver to Collateral Agent a counterpart of the Subsidiary Guaranty, a
Subsidiary Pledge Agreement and any other Collateral Documents then required to
be executed and delivered pursuant to the terms of subsection 6.9A hereof, and
to take all such further actions and execute all such further documents and
instruments (including actions, documents and instruments comparable to those
described in subsections 4.1E and, if applicable, 6.9A) as may be necessary or,
in the opinion of Collateral Agent, desirable to create in favor of Collateral
Agent, for the benefit of Lenders, a valid and perfected First Priority Lien on
all of the property of such Subsidiary described in the applicable forms of
Collateral Documents.
B. Subsidiary Charter Documents, Legal Opinions, Etc. Substantially
concurrent with the execution and delivery by a Subsidiary of the Loan Documents
described under subsection 6.8A, Company shall deliver to Administrative Agent,
together with such Loan Documents, (i) certified copies of such Subsidiary's
Certificate or Articles of Incorporation, together with a good standing
certificate from the Secretary of State of the jurisdiction of its incorporation
and, to the extent generally available, a certificate or other evidence of good
standing as to payment of any applicable franchise or similar taxes from the
appropriate taxing authority of such jurisdiction, each to be dated a recent
date prior to their delivery to Administrative Agent, (ii) a copy of such
Subsidiary's Bylaws, certified by its corporate secretary or an assistant
secretary as of a recent date prior to their delivery to Administrative Agent,
(iii) a certificate executed by the secretary or an assistant secretary of such
Subsidiary as to (a) the fact that the attached resolutions of the Board of
Directors of such Subsidiary approving and authorizing the execution, delivery
and performance of such Loan Documents are in full force and effect and have not
been modified or amended and (b) the incumbency and signatures of the officers
of such Subsidiary executing such Loan Documents, and (iv) a favorable opinion
of counsel to such Subsidiary, in form and substance satisfactory to
Administrative Agent and its counsel, as to (a) the due organization and good
standing of such Subsidiary, (b) the due authorization, execution and delivery
by such Subsidiary of such Loan Documents, (c) the enforceability of such Loan
Documents against such Subsidiary, (d) such other matters (including matters
relating to the creation and perfection of Liens in any Collateral pursuant to
such Loan Documents) as Administrative Agent may reasonably request, all of the
foregoing to be reasonably satisfactory in form and substance to Administrative
Agent and its counsel.
6.9. Certain Matters Regarding Collateral
A. Additional Collateral. In the event that within six months after the
Closing Date either (i) Company has not attained a Consolidated Leverage Ratio
of less than 3.5 to 1.0 or (ii) the Indebtedness outstanding under this
Agreement has not been rated Investment Grade by both S&P and Xxxxx'x, then
Company shall grant or cause to be granted to the Collateral Agent on behalf of
Lenders a valid and perfected First Priority Lien on, and mortgages on,
substantially all tangible and intangible assets of Company and its Subsidiaries
pursuant to the applicable Collateral Documents.
At such time, Company and its Subsidiaries (other than the Exempt
Subsidiaries) shall execute and deliver to Agents (a) one or more supplements to
the Company Pledge Agreement and Subsidiary Pledge Agreements, as the case may
be, granting First Priority Liens in all intercompany Indebtedness then
outstanding which supplements shall be in full force and effect, and all such
intercompany Indebtedness shall be duly and validly pledged thereunder (or to
the extent not evidenced by any instrument, under the Security Agreement) to
Agents for the ratable benefit of Lenders and certificates or other instruments
representing such Indebtedness (to the extent such Indebtedness is evidenced by
instruments), accompanied by instruments of transfer endorsed in blank, shall be
provided to Agents; (b) the Security Agreement granting First Priority Liens in
all Collateral purported to be covered thereby which Security Agreement shall be
in full force and effect (and all consents of third parties required for the
effectiveness or enforceability of the Liens created by the Security Agreement,
including the assignment of contract rights, shall be obtained), and each
document (including each UCC financing statements and each filing with respect
to intellectual property owned by Company and such Subsidiaries party to the
Security Agreement) required by law or reasonably requested by Collateral Agent
to be filed, registered or recorded in order to create in favor of Collateral
Agent for the benefit of Lenders a valid, legal and perfected First Priority
Lien on the Collateral subject to the Security Agreement (subject to any Lien
expressly permitted thereby) shall be so filed, registered or recorded and
evidence thereof delivered to Agents; (c) Mortgages in favor of Collateral Agent
in real property owned by Company and such Subsidiaries (the "Mortgaged
Properties") which Mortgages shall be in full force and effect, and (i) each of
such Mortgaged Properties shall not be subject to any Lien other than those
expressly permitted under the applicable Mortgage, (ii) each such Mortgage shall
be filed and recorded in the recording office as specified by Agents, and, in
connection therewith, Agents shall receive evidence satisfactory to them of each
such filing and recordation and (iii) Agents shall have received such other
documents, including a policy or policies of title insurance issued by a
nationally recognized title insurance company, together with such endorsements,
coinsurance and reinsurance as may be requested by Agents, insuring the
Mortgages as valid first Liens on such Mortgaged Properties, free of Liens other
than those expressly permitted under such Mortgage, together with such surveys,
abstracts, appraisals, environmental reports and legal opinions required to be
furnished pursuant to the terms of the Mortgage or as reasonably requested by
Agents and (d) Assignments of Rent and Leases granting First Priority Liens in
all Collateral purported to be covered thereby which Assignment of Rents and
Leases shall be in full force and effect (and all consents of third parties
required for the effectiveness or enforceability of the Liens created hereunder
shall be obtained). Agents shall receive consents from each person required
under the terms of any agreement to which Company and its Subsidiaries shall be
party to consent to the assignment pursuant to the Security Agreement of the
rights of Company and such Subsidiaries under such agreement in order for such
assignment to be effective which consents shall be executed and delivered in
form and substance satisfactory to Agents. Agents may request such other
certificates, instruments and opinions as Agents may reasonably believe
necessary to confirm the Liens required to be granted under this subsection
6.9A. Administrative Agent shall also have received a copy of, or a certificate
as to coverage under, the insurance policies required by applicable provisions
of the Security Documents, each of which shall be endorsed or otherwise amended
to include a "standard" or "New York" lender's loss payable endorsement and to
name Collateral Agent as additional insured, in form and substance satisfactory
to Agents.
B. Release of Collateral. Any Collateral with respect to which a Lien shall
have been granted pursuant to subsection 6.9A shall be released by Collateral
Agent upon the first to occur of Company's delivery to Administrative Agent of
either (x) a Compliance Certificate pursuant to subsection 6.1(iii) which
reflects a Consolidated Leverage Ratio of less than 3.5 to 1.0 or (y) an
Officers' Certificate evidencing notification to Company that the Indebtedness
outstanding under this Agreement has been rated Investment Grade by both S&P and
Xxxxx'x.
6.10. Year 2000 Compliance
Company will promptly but in no event later than October 31, 1999 notify
Administrative Agent in the event Company discovers or determines that any
computer application (including those of its suppliers and vendors) that is
material to its or its Subsidiaries' business and operations will not be Year
2000 compliant as of January 1, 2000, except to the extent that such failure
could not reasonably be expected to have a Material Adverse Effect.
SECTION 7.
COMPANY'S NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 7.
7.1. Indebtedness
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become
or remain directly or indirectly liable with respect to, any Indebtedness,
except:
(i) Company may become and remain liable with respect to the Obligations
and obligations under the Senior Subordinated Credit Facility;
(ii) Company and its Subsidiaries may become and remain liable with respect
to Contingent Obligations permitted by subsection 7.4 and, upon any matured
obligations actually arising pursuant thereto, the Indebtedness corresponding to
the Contingent Obligations so extinguished;
(iii) Company and its Subsidiaries may become and remain liable with
respect to Indebtedness in respect of Capital Leases; provided that such Capital
Leases are permitted if the aggregate amount of such Capital Leases that
constitutes Indebtedness does not exceed $25,000,000 at any time outstanding;
(iv) Company may become and remain liable with respect to Indebtedness to
any of its Subsidiaries, and any Subsidiary of Company may become and remain
liable with respect to Indebtedness to Company or any other Subsidiary of
Company; provided that (a) all such intercompany Indebtedness owed by Company to
any of its Subsidiaries shall be subordinated in right of payment to the payment
in full of the Obligations pursuant to the terms of the applicable promissory
notes or an intercompany subordination agreement, and (b) any payment by any
Subsidiary of Company under any guaranty of the Obligations shall result in a
pro tanto reduction of the amount of any intercompany Indebtedness owed by such
Subsidiary to Company or to any of its Subsidiaries for whose benefit such
payment is made;
(v) Company and its Subsidiaries, as applicable, may remain liable with
respect to Indebtedness described in Schedule 7.1 annexed hereto and extensions,
renewals, and replacement of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity date or
decreased weighted average life thereof;
(vi) Indebtedness of Company or any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets, other
than Capital Leases and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets prior to
the acquisition thereof, provided that such Indebtedness is incurred prior to or
within 90 days after such acquisition or the completion of such construction or
improvement, and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal thereof or result in an earlier
maturity date or decreased weighted average life thereof, and provided, further,
that the aggregate principal amount of Indebtedness permitted by this clause
(vi) that is incurred following the Closing Date shall not exceed $15,000,000 at
any time outstanding;
(vii) Indebtedness of any Person that becomes a Subsidiary after the date
hereof, provided that (A) such Indebtedness exists at the time such Person
becomes a Subsidiary and is not created in contemplation of or in connection
with such Person becoming a Subsidiary and (B) the acquisition in which such
Person becomes a subsidiary is a Permitted Acquisition;
(viii) Company may become and remain liable with respect to other unsecured
Indebtedness in the form of debt securities in an aggregate principal amount not
to exceed $350,000,000 at any time outstanding, provided, however, that (a)
$100,000,000 in proceeds of such Indebtedness may be applied to consummate a
Permitted Acquisition substantially contemporaneous with the incurrence of such
Indebtedness and (b) the proceeds of such Indebtedness to the extent not applied
pursuant to the immediately preceding clause (a) shall be applied in the manner
set forth in subsection 2.4B (iii), provided, further, (i) such Indebtedness
does not mature or have mandatory prepayments prior to March 31, 2009, and does
not have covenants requiring the maintenance of specified financial ratios and
otherwise has covenants no more restrictive those set forth in this Agreement
(other than a provision requiring redemption of such Indebtedness in the event
of a change of control of Company substantially the same as contemplated by
subsection 8.11 hereof) and (ii) after giving pro forma effect to such
Indebtedness, the Consolidated Leverage Ratio of Company is less than 3.5 to
1.0; and
(ix) Company and its Subsidiaries may become and remain liable with respect
to other Indebtedness in an aggregate principal amount not to exceed $15,000,000
at any time outstanding.
7.2. Liens and Related Matters
A. Prohibition on Liens. Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file, or permit to
remain in effect, any financing statement or other similar notice of any Lien
with respect to any such property, asset, income or profits under the UCC of any
State or under any similar recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents;
(iii) Liens described in Schedule 7.2 annexed hereto; provided, that such
Liens shall secure only those obligations it secures on the date hereof and
extensions, renewals, and replacement thereof that do not increase the
outstanding principal amount thereof;
(iv) Any Lien existing on any property or asset prior to the acquisition
thereof by Company or any Subsidiary or existing on any property or asset of any
Person that becomes a Subsidiary after the date hereof prior to the time such
Person becomes a Subsidiary, provided that (A) such Lien is not created in
contemplation of or in connection with such acquisition or such Person becoming
a Subsidiary, (B) such Lien shall not apply to any other property or assets of
Company or any Subsidiary and (C) such Lien shall secure only those obligations
that it secures on the date of such acquisition or the date such Person becomes
a Subsidiary, as the case may be, and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;
(v) Liens on fixed or capital assets acquired, constructed or improved by
Company or any Subsidiary, provided that (A) such security interests secure
Indebtedness permitted by clauses (iii) and (vi) of Section 7.1, (B) such
security interests and the Indebtedness secured thereby are incurred prior to or
within 90 days after such acquisition or the completion of such construction or
improvement, (C) the Indebtedness secured thereby does not exceed 75% (100% of
the Indebtedness if in the form of a Capital Lease) of the cost of acquiring,
constructing or improving such fixed or capital assets and (D) such security
interests shall not apply to any other property or assets of Company or any
Subsidiary; and
(vi) Other Liens securing Indebtedness in an aggregate amount not to exceed
$15,000,000 at any time outstanding.
B. No Further Negative Pledges. Except with respect to specific property
encumbered to secure payment of particular Indebtedness, to be sold pursuant to
an executed agreement with respect to an Asset Sale or subject to a lease that
contains customary provisions restricting assignment, neither Company nor any of
its Subsidiaries shall enter into any agreement (other than the Senior
Subordinated Credit Facility and any agreement prohibiting only the creation of
Liens securing Subordinated Indebtedness) prohibiting the creation or assumption
of any Lien upon any of its properties or assets, whether now owned or hereafter
acquired.
C. No Restrictions on Subsidiary Distributions to Company or Other
Subsidiaries. Except as provided herein and except with respect to specific
property encumbered to secure payment of particular Indebtedness, to be sold
pursuant to an executed agreement with respect to an Asset Sale or subject to a
lease that contains customary provisions restricting assignment, Company will
not, and will not permit any of its Subsidiaries to, create or otherwise cause
or suffer to exist or become effective any consensual encumbrance or restriction
of any kind on the ability of any such Subsidiary to (i) pay dividends or make
any other distributions on any of such Subsidiary's capital stock owned by
Company or any other Subsidiary of Company, (ii) repay or prepay any
Indebtedness owed by such Subsidiary to Company or any other Subsidiary of
Company, (iii) make loans or advances to Company or any other Subsidiary of
Company, or (iv) transfer any of its property or assets to Company or any other
Subsidiary of Company.
7.3. Investments; Joint Ventures
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, make or own any Investment in any Person, including any
Joint Venture, except:
(i) Company and its Subsidiaries may make and own Investments in Cash
Equivalents;
(ii) Company and its Subsidiaries may make Consolidated Capital
Expenditures permitted by subsection 7.8;
(iii) Company and its Subsidiaries may continue to own the Investments
owned by them and described in Schedule 7.3 annexed hereto and extensions,
renewals and replacements of any such Investments that do not increase the
amount thereof;
(iv) Company and its Subsidiaries may own promissory notes given in payment
of the purchase price of assets purchased from Company and its Subsidiaries as
permitted by subsection 7.7;
(v) Company and its Subsidiaries may make Permitted Acquisitions; and
(vi) Company and its Subsidiaries may make and own other Investments in an
aggregate amount not to exceed at any time $40,000,000.
7.4. Contingent Obligations
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create or become or remain liable with respect to any
Contingent Obligation, except:
(i) Subsidiaries of Company may become and remain liable with respect to
Contingent Obligations in respect of the Subsidiary Guaranty and guarantees of
the Senior Subordinated Credit Facility;
(ii) Company may become and remain liable with respect to Contingent
Obligations in respect of Letters of Credit and Company and its Subsidiaries may
become and remain liable with respect to Contingent Obligations in respect of
other letters of credit in an aggregate amount not to exceed at any time
$20,000,000;
(iii) Company may become and remain liable with respect to Contingent
Obligations under Hedge Agreements;
(iv) Company and its Subsidiaries may become and remain liable with respect
to Contingent Obligations in respect of customary indemnification and purchase
price adjustment obligations incurred in connection with Asset Sales or other
sales of assets permitted by subsection 7.7;
(v) Company and its Subsidiaries may become and remain liable with respect
to Contingent Obligations under guarantees in the ordinary course of business of
the obligations of suppliers, customers, franchisees and licensees of Company
and its Subsidiaries;
(vi) Company and its Subsidiaries may become and remain liable with respect
to Contingent Obligations in respect of any Indebtedness of Company or any of
its Subsidiaries permitted by subsection 7.1;
(vii) Company and its Subsidiaries, as applicable, may remain liable with
respect to Contingent Obligations described in Schedule 7.4 annexed hereto and
extension, renewals and replacements of any such Contingent Obligations that do
not increase the amount thereof; and
(viii) Company and its Subsidiaries may become and remain liable with
respect to other Contingent Obligations; provided that the maximum aggregate
liability, contingent or otherwise, of Company and its Subsidiaries in respect
of all such Contingent Obligations shall at no time exceed $15,000,000.
7.5. Restricted Junior Payments
Except for payments pursuant to the Senior Subordinated Credit Facility,
Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, declare, order, pay, make or set apart any sum for any Restricted
Junior Payment; provided that, so long as no Event of Default or Potential Event
of Default has occurred and is continuing or would result from making such
Restricted Junior Payment, Company may cumulatively make Restricted Junior
Payments in an aggregate amount of $35,000,000 plus 25% of Consolidated Net
Income for the period commencing on the Closing Date and ending with the Fiscal
Quarter most recently ended prior to the date of payment.
7.6. Financial Covenants
A. Minimum Interest Coverage Ratio. Company shall not permit the ratio of
(i) Consolidated EBITDA to (ii) Consolidated Interest Expense at the end of the
four Fiscal Quarter period ending on the date set forth below, subject to
subsection 1.2B, to be less than the correlative ratio indicated:
Minimum
Period Interest Coverage Ratio
================================================== =============================
September 30, 1999 2.50x
-------------------------------------------------- -----------------------------
December 31, 1999 2.50x
-------------------------------------------------- -----------------------------
March 31, 2000 2.75x
-------------------------------------------------- -----------------------------
June 30, 2000 3.00x
-------------------------------------------------- -----------------------------
September 30, 2000 3.25x
-------------------------------------------------- -----------------------------
December 31, 2000 and thereafter 3.50x
-------------------------------------------------- -----------------------------
B. Maximum Leverage Ratio. Company shall not permit the Consolidated
Leverage Ratio as of the last day of any Fiscal Quarter ending during any of the
periods set forth below to exceed the correlative ratio indicated:
Maximum
Period Consolidated Leverage Ratio
================================================== =============================
September 30, 1999 4.50x
-------------------------------------------------- -----------------------------
December 31, 1999 4.50x
-------------------------------------------------- -----------------------------
March 31, 2000 4.00x
-------------------------------------------------- -----------------------------
June 30, 2000 3.75x
-------------------------------------------------- -----------------------------
September 30, 2000 3.50x
-------------------------------------------------- -----------------------------
December 31, 2000 3.25x
-------------------------------------------------- -----------------------------
June 30, 2001 3.00x
-------------------------------------------------- -----------------------------
December 31, 2001 2.75x
-------------------------------------------------- -----------------------------
December 31, 2002 and thereafter 2.50x
-------------------------------------------------- -----------------------------
C. Minimum Fixed Charge Coverage Ratio. Company shall not permit the
Consolidated Fixed Charge Ratio for any four-Fiscal Quarter period ending on any
date set forth below to be less than the correlative ratio indicated:
Minimum Fixed
Period Charge Coverage Ratio
================================================== =============================
September 30, 1999 1.20x
-------------------------------------------------- -----------------------------
December 31, 1999 1.20x
-------------------------------------------------- -----------------------------
March 31, 2000 1.20x
-------------------------------------------------- -----------------------------
June 30, 2000 1.20x
-------------------------------------------------- -----------------------------
September 30, 2000 1.20x
-------------------------------------------------- -----------------------------
December 31, 2000 1.20x
-------------------------------------------------- -----------------------------
June 30, 2001 and thereafter 1.25x
-------------------------------------------------- -----------------------------
7.7. Restriction on Fundamental Changes; Asset Sales and Acquisitions
Company shall not, and shall not permit any of its Subsidiaries to enter
into any transaction of merger or consolidation, or liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease or sublease (as lessor or sublessor), transfer or otherwise dispose of, in
one transaction or a series of transactions, all or any part of its business,
property or assets, whether now owned or hereafter acquired, or acquire by
purchase or otherwise all or substantially all the business, property or fixed
assets of, or stock or other evidence of beneficial ownership of, any Person or
any division or line of business of any Person, except:
(i) any Subsidiary of Company may be merged with or into Company or any
Wholly Owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or
all or any part of its business, property or assets may be conveyed, sold,
leased, transferred or otherwise disposed of, in one transaction or a series of
transactions, to Company or any Wholly Owned Subsidiary Guarantor; provided
that, in the case of such a merger, Company or such Wholly Owned Subsidiary
Guarantor shall be the continuing or surviving corporation;
(ii) Company and its Subsidiaries may make Consolidated Capital
Expenditures permitted under subsection 7.8;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out or
surplus property in the ordinary course of business;
(iv) Company and its Subsidiaries may sell or otherwise dispose of assets
in transactions that do not constitute Asset Sales; provided that the
consideration received for such assets shall be in an amount at least equal to
the fair market value thereof;
(v) Company and its Subsidiaries may make Permitted Acquisitions; and
(vi) subject to subsection 7.13, Company and its Subsidiaries may make
Asset Sales, the aggregate value of all such sales having a book value not
exceeding 15% of the consolidated total assets of the Company on the date of
such sale, provided that (x) the consideration received for such assets in each
such Asset Sale shall (i) be in an amount at least equal to the fair market
value thereof and (ii) consists of not less than 75% in Cash or Cash
Equivalents; (y) no more than $40,000,000 of the consideration received in the
aggregate for all such sales shall be non-cash; and (z) the Net Asset Sale
Proceeds of such Asset Sales shall be applied as required by subsection
2.4B(iii)(b).
7.8. Consolidated Capital Expenditures
Company shall not, and shall not permit its Subsidiaries to, make or incur
Consolidated Capital Expenditures, in any Fiscal Year indicated below, in an
aggregate amount in excess of the corresponding amount (the "Maximum
Consolidated Capital Expenditures Amount") set forth below opposite such Fiscal
Year; provided that the Maximum Consolidated Capital Expenditures Amount for any
Fiscal Year shall be increased by an amount equal to the excess, if any, of the
Maximum Consolidated Capital Expenditures Amount for the previous Fiscal Year
(as adjusted in accordance with this proviso) over the actual amount of
Consolidated Capital Expenditures for such previous Fiscal Year; provided,
further, that in no event shall the amount of such increase exceed 25% of the
Maximum Consolidated Capital Expenditures Amount for such previous Fiscal Year
(prior to any adjustment in accordance with this proviso):
Maximum Consolidated
Fiscal Year Capital Expenditures
================================================== =============================
1999 (from Closing Date to end of
Fiscal Year) $50,000,000
-------------------------------------------------- -----------------------------
2000 $50,000,000
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2001 $50,000,000
-------------------------------------------------- -----------------------------
2002 $45,000,000
-------------------------------------------------- -----------------------------
2003 through 2007 $40,000,000
-------------------------------------------------- -----------------------------
7.9. Fiscal Year
Company shall not change its Fiscal Year-end from December 31.
7.10. Sales and Lease-Backs
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, become or remain liable as lessee or as a guarantor or
other surety with respect to any lease, whether an Operating Lease or a Capital
Lease, of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, (i) which Company or any of its Subsidiaries has sold or
transferred or is to sell or transfer to any other Person (other than Company or
any of its Subsidiaries) or (ii) which Company or any of its Subsidiaries
intends to use for substantially the same purpose as any other property which
has been or is to be sold or transferred by Company or any of its Subsidiaries
to any Person (other than Company or any of its Subsidiaries) in connection with
such lease except that Company and its Subsidiaries may enter into sale and
lease-back transactions with respect to the properties listed on Schedule 7.10
annexed hereto.
7.11. Sale or Discount of Receivables
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, sell with recourse, or discount or otherwise sell for
less than the face value thereof, any of its notes or accounts receivable,
except in connection with the sale of all or substantially all of any line of
business of Company or its Subsidiaries.
7.12. Transactions With Shareholders and Affiliates
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, enter into or permit to exist any transaction (including
the purchase, sale, lease or exchange of any property or the rendering of any
service) with any holder of 5% or more of any class of equity Securities of
Company or with any Affiliate of Company or of any such holder, on terms that
are less favorable to Company or that Subsidiary, as the case may be, than those
that might be obtained at the time from Persons who are not such a holder or
Affiliate; provided that the foregoing restriction shall not apply to (i) any
transaction between Company and any of its Wholly Owned Subsidiaries or between
any of its Wholly Owned Subsidiaries or (ii) reasonable and customary fees paid
to members of the Boards of Directors of Company and its Subsidiaries.
7.13. Disposal of Subsidiary Stock
Except for any sale in compliance with the provisions of subsection 7.7(vi)
of (i) 100% of the capital stock or other equity Securities of any of its
Subsidiaries, (ii) the disposition of up to 50% of Company's interest in
Practice Patterns Science, Inc. or (iii) the disposition of some or all of
Company's interest in Express Online Inc., provided that Company shall always
retain the right to regain in the future a majority interest in the combined
voting power of all securities of Express Online Inc., Company shall not:
(i) directly or indirectly sell, assign, pledge or otherwise encumber or
dispose of any shares of capital stock or other equity Securities of any of its
Subsidiaries, except to qualify directors if required by applicable law; or
(ii) permit any of its Subsidiaries directly or indirectly to sell, assign,
pledge or otherwise encumber or dispose of any shares of capital stock or other
equity Securities of any of its Subsidiaries (including such Subsidiary), except
to Company, another Subsidiary of Company, or to qualify directors if required
by applicable law.
7.14. Conduct of Business
From and after the Closing Date, Company shall not, and shall not permit
any of its Subsidiaries to, engage in any business other than (i) the businesses
engaged in by Company and its Subsidiaries on the Closing Date and similar or
related businesses and (ii) such other lines of business as may be consented to
by Requisite Lenders.
SECTION 8.
EVENTS OF DEFAULT
If any of the following conditions or events ("Events of Default") shall
occur:
8.1. Failure to Make Payments When Due
Failure by Company to pay any installment of principal of any Loan when
due, whether at stated maturity, by acceleration, by notice of voluntary
prepayment, by mandatory prepayment or otherwise; failure by Company to pay when
due any amount payable to an Issuing Lender in reimbursement of any drawing
under a Letter of Credit; or failure by Company to pay any interest on any Loan
or any fee or any other amount due under this Agreement within five days after
the date due; or
8.2. Default in Other Agreements
(i) Failure of Company or any of its Subsidiaries to pay when due any
principal of or interest on or any other amount payable in respect of one or
more items of Indebtedness (other than Indebtedness referred to in subsection
8.1) or Contingent Obligations in an individual principal amount of $10,000,000
or more or with an aggregate principal amount of $10,000,000 or more, in each
case beyond the end of any grace period provided therefor; or (ii) breach or
default by Company or any of its Subsidiaries with respect to any other term of
(a) one or more items of Indebtedness or Contingent Obligations in the
individual or aggregate principal amounts referred to in clause (i) above or (b)
any loan agreement, mortgage, indenture or other agreement relating to such
item(s) of Indebtedness or Contingent Obligation(s), if the effect of such
breach or default is to cause, or to permit the holder or holders of that
Indebtedness or Contingent Obligation(s) (or a trustee on behalf of such holder
or holders) to cause, that Indebtedness or Contingent Obligation(s) to become or
be declared due and payable prior to its stated maturity or the stated maturity
of any underlying obligation, as the case may be (upon the giving or receiving
of notice, lapse of time, both, or otherwise); or
8.3. Breach of Certain Covenants
Failure of Company to perform or comply with any term or condition
contained in subsections 2.5, 6.1 (viii) or 6.2 (with respect to corporate
existence) or Section 7 of this Agreement; or
8.4. Breach of Warranty
Any representation, warranty, certification or other statement made by
Company or any of its Subsidiaries in any Loan Document or in any statement or
certificate at any time given by Company or any of its Subsidiaries in writing
pursuant hereto or thereto or in connection herewith or therewith shall be false
in any material respect on the date as of which made; or
8.5. Other Defaults Under Loan Documents
Any Loan Party shall default in the performance of or compliance with any
term contained in this Agreement or any of the other Loan Documents, other than
any such term referred to in any other subsection of this Section 8, and such
default shall not have been remedied or waived within 30 days after the earlier
of (i) an officer of Company or such Loan Party becoming aware of such default
or (ii) receipt by Company and such Loan Party of notice from Administrative
Agent or any Lender of such default; or
8.6. Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) A court having jurisdiction in the premises shall enter a decree or
order for relief in respect of Company or any of its Subsidiaries in an
involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed within 60 days of the entry thereof; or any other similar
relief shall be granted under any applicable federal or state law; or (ii) an
involuntary case shall be commenced against Company or any of its Subsidiaries
under the Bankruptcy Code or under any other applicable bankruptcy, insolvency
or similar law now or hereafter in effect; or a decree or order of a court
having jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer having similar
powers over Company or any of its Subsidiaries, or over all or a substantial
part of its property, shall have been entered; or there shall have occurred the
involuntary appointment of an interim receiver, trustee or other custodian of
Company or any of its Subsidiaries for all or a substantial part of its
property; or a warrant of attachment, execution or similar process shall have
been issued against any substantial part of the property of Company or any of
its Subsidiaries, and any such event described in this clause (ii) shall
continue for 60 days unless dismissed, bonded or discharged; or
8.7. Voluntary Bankruptcy; Appointment of Receiver, Etc.
(i) Company or any of its Subsidiaries shall have an order for relief
entered with respect to it or commence a voluntary case under the Bankruptcy
Code or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; or Company or any of its Subsidiaries shall make any
assignment for the benefit of creditors; or (ii) Company or any of its
Subsidiaries shall be unable, or shall fail generally, or shall admit in writing
its inability, to pay its debts as such debts become due; or the Board of
Directors of Company or any of its Subsidiaries (or any committee thereof) shall
adopt any resolution or otherwise authorize any action to approve any of the
actions referred to in clause (i) above or this clause (ii); or
8.8. Judgments and Attachments
Any money judgment, writ or warrant of attachment or similar process
involving (i) in any individual case an amount in excess of $10,000,000 or (ii)
in the aggregate at any time an amount in excess of $10,000,000 (in either case
not adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) shall be entered or filed against
Company or any of its Subsidiaries or any of their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for a period of 60 days (or
in any event later than five days prior to the date of any proposed sale
thereunder); or
8.9. Dissolution
Any order, judgment or decree shall be entered against Company or any of
its Subsidiaries decreeing the dissolution or split up of Company or that
Subsidiary and such order shall remain undischarged or unstayed for a period in
excess of 60 days; or
8.10. Employee Benefit Plans
There shall occur one or more ERISA Events which individually or in the
aggregate results in or might reasonably be expected to result in liability of
Company, any of its Subsidiaries or any of their respective ERISA Affiliates; or
there shall exist an amount of unfunded benefit liabilities (as defined in
Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension
Plans (excluding for purposes of such computation any Pension Plans with respect
to which assets exceed benefit liabilities), which if amortized over ten years
that would reasonably be expected, after considering the financial condition of
all of the more closely related ERISA Affiliates, to result in a Material
Adverse Effect.
8.11. Change in Control
Any Person or any two or more Persons acting in concert (other than New
York Life and its Affiliates) shall have acquired beneficial ownership (within
the meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Exchange Act), directly or indirectly, of Securities of Company (or other
Securities convertible into such Securities) representing 20% or more of the
combined voting power of all Securities of Company entitled to vote in the
election of directors, other than Securities having such power only by reason of
the happening of a contingency; provided that the acquisition of shares of
Common Stock of Company owned by New York Life and its Affiliates by one or more
Persons from time to time shall not be an Event of Default pursuant to this
subsection 8.11.
8.12. Invalidity of Subsidiary Guaranty; Failure of Security; Repudiation
of Obligations
At any time after the execution and delivery thereof, (i) the Subsidiary
Guaranty for any reason, other than the satisfaction in full of all Obligations,
shall cease to be in full force and effect (other than in accordance with its
terms) or shall be declared to be null and void, (ii) any Collateral Document
shall cease to be in full force and effect (other than by reason of a release of
Collateral thereunder in accordance with the terms hereof or thereof, the
satisfaction in full of the Obligations or any other termination of such
Collateral Document in accordance with the terms hereof or thereof) or shall be
declared null and void, or the Collateral Agent shall not have or shall cease to
have a valid and perfected First Priority Lien in any Collateral purported to be
covered thereby, in each case for any reason other than as contemplated by
subsection 6.9B or the failure of any Agent or any Lender to take any action
within its control, or (iii) any Loan Party shall contest the validity or
enforceability of any Loan Document in writing or deny in writing that it has
any further liability, including with respect to future advances by Lenders,
under any Loan Document to which it is a party.
8.13. Failure to Consummate the Acquisition
If Company fails to consummate the Acquisition by the close of business on
the Closing Date, regardless of fault on the part of Company pursuant to the
Definitive Acquisition Documents.
Then (i) upon the occurrence of any Event of Default described in
subsection 8.6 or 8.7, each of (a) the unpaid principal amount of and accrued
interest on the Loans, (b) an amount equal to the maximum amount that may at any
time be drawn under all Letters of Credit then outstanding (whether or not any
beneficiary under any such Letter of Credit shall have presented, or shall be
entitled at such time to present, the drafts or other documents or certificates
required to draw under such Letter of Credit), and (c) all other Obligations
shall automatically become immediately due and payable, without presentment,
demand, protest or other requirements of any kind, all of which are hereby
expressly waived by Company, and the obligation of each Lender to make any Loan,
the obligation of Administrative Agent to issue any Letter of Credit and the
right of any Lender to issue any Letter of Credit hereunder shall thereupon
terminate, and (ii) upon the occurrence and during the continuation of any other
Event of Default, Administrative Agent shall, upon the written request or with
the written consent of Requisite Lenders, by written notice to Company, declare
all or any portion of the amounts described in clauses (a) through (c) above to
be, and the same shall forthwith become, immediately due and payable, and the
obligation of each Lender to make any Loan, the obligation of Administrative
Agent to issue any Letter of Credit and the right of any Lender to issue any
Letter of Credit hereunder shall thereupon terminate; provided that the
foregoing shall not affect in any way the obligations of Lenders under
subsection 3.3C(i) or the obligations of Lenders to purchase participations in
any unpaid Swing Line Loans as provided in subsection 2.1A(iii).
Notwithstanding anything contained in the preceding paragraph, if at any
time within 60 days after an acceleration of the Loans pursuant to clause (ii)
of such paragraph Company shall pay all arrears of interest and all payments on
account of principal which shall have become due otherwise than as a result of
such acceleration (with interest on principal and, to the extent permitted by
law, on overdue interest, at the rates specified in this Agreement) and all
Events of Default and Potential Events of Default (other than non-payment of the
principal of and accrued interest on the Loans, in each case which is due and
payable solely by virtue of acceleration) shall be remedied or waived pursuant
to subsection 10.6, then Requisite Lenders, by written notice to Company, may at
their option rescind and annul such acceleration and its consequences; but such
action shall not affect any subsequent Event of Default or Potential Event of
Default or impair any right consequent thereon. The provisions of this paragraph
are intended merely to bind Lenders to a decision which may be made at the
election of Requisite Lenders and are not intended, directly or indirectly, to
benefit Company, and such provisions shall not at any time be construed so as to
grant Company the right to require Lenders to rescind or annul any acceleration
hereunder or to preclude Agents or Lenders from exercising any of the rights or
remedies available to them under any of the Loan Documents, even if the
conditions set forth in this paragraph are met.
SECTION 9.
AGENTS
9.1. Appointment
A. Appointment of Agent. CSFB is hereby appointed as Lead Arranger,
Administrative Agent and Collateral Agent, BTCo is appointed as Syndication
Agent, and BTAB is appointed as Co-Arranger hereunder and under the other Loan
Documents, and each Lender hereby authorizes each Agent to act as its agent in
accordance with the terms of this Agreement and the other Loan Documents. Each
Agent agrees to act upon the express conditions contained in this Agreement and
the other Loan Documents, as applicable. The provisions of this Section 9 are
solely for the benefit of Agents and Lenders and Company shall have no rights as
a third party beneficiary of any of the provisions thereof. In performing its
functions and duties under this Agreement, each Agent shall act solely as an
agent of Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for Company or any
of its Subsidiaries. Upon the conclusion of the Initial Period, all obligations
of the Lead Arranger and Co-Arranger hereunder shall terminate and thereafter
the Lead Arranger and Co-Arranger (in such capacities) shall have no obligations
or liabilities under any of the Loan Documents.
B. Appointment of Supplemental Collateral Agents. It is the intent of this
Agreement and the other Loan Documents that there shall be no violation of any
law of any jurisdiction denying or restricting the right of banking corporations
or associations to transact business as agent or trustee in such jurisdiction.
It is recognized that in case of litigation under this Agreement or any of the
other Loan Documents, and in particular in case of the enforcement of any of the
Loan Documents, or in case Collateral Agent deems that by reason of any present
or future law of any jurisdiction it may not exercise any of the rights, powers
or remedies granted herein or in any of the other Loan Documents or take any
other action which may be desirable or necessary in connection therewith, it may
be necessary that the Collateral Agent appoint an additional individual or
institution as a separate trustee, co-trustee, collateral agent or collateral
co-agent (any such additional individual or institution being referred to herein
individually as a "Supplemental Collateral Agent" and collectively as
"Supplemental Collateral Agents").
In the event that the Collateral Agent appoints a Supplemental Collateral
Agent with respect to any Collateral, (i) each and every right, power, privilege
or duty expressed or intended by this Agreement or any of the other Loan
Documents to be exercised by or vested in or conveyed to the Collateral Agent
with respect to such Collateral shall be exercisable by and vest in such
Supplemental Collateral Agent to the extent, and only to the extent, necessary
to enable such Supplemental Collateral Agent to exercise such rights, powers and
privileges with respect to such Collateral and to perform such duties with
respect to such Collateral, and every covenant and obligation contained in the
Loan Documents and necessary to the exercise or performance thereof by such
Supplemental Collateral Agent shall run to and be enforceable by either the
Collateral Agent or such Supplemental Collateral Agent, and (ii) the provisions
of this Section 9 and of subsections 10.2 and 10.3 that refer to the Collateral
Agent shall inure to the benefit of such Supplemental Collateral Agent and all
references therein to the Collateral Agent shall be deemed to be references to
Agent and/or such Supplemental Collateral Agent, as the context may require.
Should any instrument in writing from Company or any other Loan Party be
required by any Supplemental Collateral Agent so appointed by the Collateral
Agent for more fully and certainly vesting in and confirming to him or it such
rights, powers, privileges and duties, Company shall, or shall cause such Loan
Party to, execute, acknowledge and deliver any and all such instruments promptly
upon request by the Collateral Agent. In case any Supplemental Collateral Agent,
or a successor thereto, shall die, become incapable of acting, resign or be
removed, all the rights, powers, privileges and duties of such Supplemental
Collateral Agent, to the extent permitted by law, shall vest in and be exercised
by the Collateral Agent until the appointment of a new Supplemental Collateral
Agent.
9.2. Powers and Duties; General Immunity
X. Xxxxxx; Duties Specified. Each Lender irrevocably authorizes each Agent
to take such action on such Lender's behalf and to exercise such powers, rights
and remedies hereunder and under the other Loan Documents as are specifically
delegated or granted to such Agent by the terms hereof and thereof, together
with such powers, rights and remedies as are reasonably incidental thereto. An
Agent shall have only those duties and responsibilities that are expressly
specified in this Agreement with respect to such Agent and the other Loan
Documents. An Agent may exercise such powers, rights and remedies and perform
such duties by or through its agents or employees. An Agent shall not have, by
reason of this Agreement or any of the other Loan Documents, a fiduciary
relationship in respect of any Lender; and nothing in this Agreement or any of
the other Loan Documents, expressed or implied, is intended to or shall be so
construed as to impose upon any Agent any obligations in respect of this
Agreement or any of the other Loan Documents except as expressly set forth
herein or therein.
B. No Responsibility for Certain Matters. An Agent shall not be responsible
to any Lender for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement or any other
Loan Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statements or in any
financial or other statements, instruments, reports or certificates or any other
documents furnished or made by such Agent to Lenders or by or on behalf of
Company to such Agent or any Lender in connection with the Loan Documents and
the transactions contemplated thereby or for the financial condition or business
affairs of Company or any other Person liable for the payment of any
Obligations, nor shall such Agent be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained in any of the Loan Documents or as to the use of the
proceeds of the Loans or the use of the Letters of Credit or as to the existence
or possible existence of any Event of Default or Potential Event of Default.
Anything contained in this Agreement to the contrary notwithstanding, an Agent
shall not have any liability arising from confirmations of the amount of
outstanding Loans or the Letter of Credit Usage or the component amounts
thereof.
C. Exculpatory Provisions. None of Agents or any of their respective
officers, directors, employees or agents shall be liable to Lenders for any
action taken or omitted by such Agent under or in connection with any of the
Loan Documents except to the extent caused by such Agent's gross negligence or
willful misconduct. An Agent shall be entitled to refrain from any act or the
taking of any action (including the failure to take an action) in connection
with this Agreement or any of the other Loan Documents or from the exercise of
any power, discretion or authority vested in it hereunder or thereunder unless
and until such Agent shall have received instructions in respect thereof from
Requisite Lenders (or such other Lenders as may be required to give such
instructions under subsection 10.6) and, upon receipt of such instructions from
Requisite Lenders (or such other Lenders, as the case may be), such Agent shall
be entitled to act or (where so instructed) refrain from acting, or to exercise
such power, discretion or authority, in accordance with such instructions.
Without prejudice to the generality of the foregoing, (i) an Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of
attorneys (who may be attorneys for Company and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender shall
have any right of action whatsoever against an Agent as a result of such Agent
acting or (where so instructed) refraining from acting under this Agreement or
any of the other Loan Documents in accordance with the instructions of Requisite
Lenders (or such other Lenders as may be required to give such instructions
under subsection 10.6).
D. Agents Entitled to Act as Lenders. The agency hereby created shall in no
way impair or affect any of the rights and powers of, or impose any duties or
obligations upon, an Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Loans and the Letters of Credit, each
Agent shall have the same rights and powers hereunder as any other Lender and
may exercise the same as though it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" or "Lenders" or any similar
term shall, unless the context clearly otherwise indicates, include such Agent
in its individual capacity. Each Agent and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of banking, trust,
financial advisory or other business with Company or any of its Affiliates as if
it were not performing the duties specified herein, and may accept fees and
other consideration from Company for services in connection with this Agreement
and otherwise without having to account for the same to Lenders.
9.3. Representations and Warranties; No Responsibility for Appraisal of
Creditworthiness
Each Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of Company and its
Subsidiaries in connection with the making of the Loans and the issuance of
Letters of Credit hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Company and its Subsidiaries. Agents
shall not have any duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of Lenders
or to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter, and Agents shall not have any responsibility with
respect to the accuracy of or the completeness of any information provided to
Lenders.
9.4. Right to Indemnity
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify each Agent, to the extent that such Agent shall not have been
reimbursed by Company, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including counsel fees and disbursements) or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against such
Agent in exercising its powers, rights and remedies or performing its duties
hereunder or under the other Loan Documents or otherwise in its capacity as
Agent, in any way relating to or arising out of this Agreement or the other Loan
Documents; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct. If any indemnity furnished to an Agent for any purpose
shall, in the opinion of such Agent, be insufficient or become impaired, such
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished.
9.5. Successor Agent and Swing Line Lender
A. Successor Agent. Any Agent may resign at any time by giving 30 days'
prior written notice thereof to Lenders and Company. Upon any such notice of
resignation, Requisite Lenders shall have the right, upon five Business Days'
notice to Company, to appoint a successor to such Agent. Upon the acceptance of
any appointment as an Agent hereunder by a successor Agent, that successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, as the case may be, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation hereunder as an Agent, the
provisions of this Section 9 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was an Agent under this Agreement.
B. Successor Swing Line Lender. Any resignation of Administrative Agent
pursuant to subsection 9.5A shall also constitute the resignation of CSFB or its
successor as Swing Line Lender, and any successor Administrative Agent appointed
pursuant to subsection 9.5A shall, upon its acceptance of such appointment,
become the successor Swing Line Lender for all purposes hereunder. In such event
(i) Company shall prepay any outstanding Swing Line Loans made by the retiring
Administrative Agent in its capacity as Swing Line Lender, (ii) upon such
prepayment, the retiring Administrative Agent and Swing Line Lender shall
surrender the Swing Line Note held by it to Company for cancellation, and (iii)
Company shall issue a new Swing Line Note to the successor Administrative Agent
and Swing Line Lender substantially in the form of Exhibit VI annexed hereto, in
the principal amount of the Swing Line Loan Commitment then in effect and with
other appropriate insertions.
9.6. Collateral Documents and Guaranties
Each Lender hereby further authorizes Collateral Agent, on behalf of and
for the benefit of Lenders, to enter into each Collateral Document as secured
party and to be the agent for and representative of Lenders under the Subsidiary
Guaranty, and each Lender agrees to be bound by the terms of each Collateral
Document and the Subsidiary Guaranty; provided that Collateral Agent shall not
(i) enter into or consent to any amendment, modification, termination or waiver
of any provision contained in any Collateral Document or the Subsidiary Guaranty
or (ii) release any Collateral (except as otherwise expressly permitted or
required pursuant to the terms of this Agreement or the applicable Collateral
Document), in each case without the prior consent of Requisite Lenders (or, if
required pursuant to subsection 10.6, all Lenders); provided further, however,
that, without further written consent or authorization from Lenders, Collateral
Agent may execute any documents or instruments necessary to (a) release any Lien
encumbering any item of Collateral that is the subject of a sale or other
disposition of assets permitted by this Agreement or to which Requisite Lenders
have otherwise consented or (b) release any Subsidiary Guarantor from the
Subsidiary Guaranty if all of the capital stock of such Subsidiary Guarantor is
sold to any Person (other than an Affiliate of Company) pursuant to a sale or
other disposition permitted hereunder or to which Requisite Lenders have
otherwise consented. Anything contained in any of the Loan Documents to the
contrary notwithstanding, Company, Collateral Agent and each Lender hereby agree
that (X) no Lender shall have any right individually to realize upon any of the
Collateral under any Collateral Document or to enforce the Subsidiary Guaranty,
it being understood and agreed that all rights and remedies under the Collateral
Documents and the Subsidiary Guaranty may be exercised solely by Collateral
Agent for the benefit of Lenders in accordance with the terms thereof, and (Y)
in the event of a foreclosure by Collateral Agent on any of the Collateral
pursuant to a public or private sale, Collateral Agent or any Lender may be the
purchaser of any or all of such Collateral at any such sale and Collateral
Agent, as agent for and representative of Lenders (but not any Lender or Lenders
in its or their respective individual capacities unless Requisite Lenders shall
otherwise agree in writing) shall be entitled, for the purpose of bidding and
making settlement or payment of the purchase price for all or any portion of the
Collateral sold at any such public sale, to use and apply any of the Obligations
as a credit on account of the purchase price for any collateral payable by
Collateral Agent at such sale.
SECTION 10.
MISCELLANEOUS
10.1. Assignments and Participations in Loans and Letters of Credit
A. General. Subject to subsection 10.1B, each Lender shall have the right
at any time to (i) sell, assign or transfer to any Eligible Assignee, or (ii)
sell participations to any Person in, all or any part of its Commitments or any
Loan or Loans made by it or its Letters of Credit or in any case its rights or
obligations with respect thereto or participations therein or any other interest
herein or in any other obligations owed to it; provided that no such sale,
assignment, transfer or participation shall, without the consent of Company,
require Company to file a registration statement with the Securities and
Exchange Commission or apply to qualify such sale, assignment, transfer or
participation under the securities laws of any state; provided, further, that no
such sale, assignment or transfer described in clause (i) above shall be
effective unless and until an Assignment Agreement effecting such sale,
assignment or transfer shall have been accepted by Administrative Agent and
recorded in the Register as provided in subsection 10.1B(ii); provided, further
that no such sale, assignment, transfer or participation of any Letter of Credit
or any participation therein may be made separately from a sale, assignment,
transfer or participation of a corresponding interest in the Revolving Loan
Commitment and the Revolving Loans of the Lender effecting such sale,
assignment, transfer or participation; and provided, further that, anything
contained herein to the contrary notwithstanding, the Swing Line Loan Commitment
and the Swing Line Loans of Swing Line Lender may not be sold, assigned or
transferred as described in clause (i) above to any Person other than a
successor Administrative Agent and Swing Line Lender to the extent contemplated
by subsection 9.5. Except as otherwise provided in this subsection 10.1, no
Lender shall, as between Company and such Lender, be relieved of any of its
obligations hereunder as a result of any sale, assignment or transfer of, or any
granting of participations in, all or any part of its Commitments or the Loans,
the Letters of Credit or participations therein, or the other Obligations owed
to such Lender.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Commitment, Loan, Letter of
Credit or participation therein, or other Obligation may (a) be assigned in any
amount to another Lender, or to an Affiliate of the assigning Lender or another
Lender or to an Approved Fund, with the giving of notice to Company and
Administrative Agent or (b) be assigned in an aggregate amount of not less than
$5,000,000 (or such lesser amount as shall constitute the aggregate amount of
the Commitments, Loans, Letters of Credit and participations therein, and other
Obligations of the assigning Lender) to any other Eligible Assignee with the
consent of Company and Administrative Agent (which consent of Company and
Administrative Agent shall not be unreasonably withheld or delayed); provided
that assignment to an Affiliate of the assigning Lender (or an Approved Fund)
that would result in increased costs to Company shall also require the prior
written consent of Company and such prior written consent of Company would not
be unreasonably withheld and which may be conditioned on the Eligible Assignee
agreeing not to require reimbursement from Company of such increased costs;
provided, further, that after an Event of Default occurs and is continuing, the
consent of Company shall not be required for assignment to an Eligible Assignee.
To the extent of any such assignment in accordance with either clause (a) or (b)
above, the assigning Lender shall be relieved of its obligations with respect to
its Commitments, Loans, Letters of Credit or participations therein, or other
obligations or the portion thereof so assigned. The parties to each such
assignment shall execute and deliver to Administrative Agent, for its acceptance
and recording in the Register, an Assignment Agreement, together with a
processing and recordation fee of $3,500 (except in the event of an assignment
to a Lender, an Affiliate of a Lender or an Approved Fund) and such forms,
certificates or other evidence, if any, with respect to United States federal
income tax withholding matters as the assignee under such Assignment Agreement
may be required to deliver to Administrative Agent pursuant to subsection
2.7B(iii)(a). Upon such execution, delivery, acceptance and recordation, from
and after the effective date specified in such Assignment Agreement, (y) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment
Agreement, shall have the rights and obligations of a Lender hereunder and (z)
the assigning Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment Agreement,
relinquish its rights (other than any rights which survive the termination of
this Agreement under subsection 10.9B) and be released from its obligations
under this Agreement (and, in the case of an Assignment Agreement covering all
or the remaining portion of an assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto; provided that,
anything contained in any of the Loan Documents to the contrary notwithstanding,
if such Lender is the Issuing Lender with respect to any outstanding Letters of
Credit such Lender shall continue to have all rights and obligations of an
Issuing Lender with respect to such Letters of Credit until the cancellation or
expiration of such Letters of Credit and the reimbursement of any amounts drawn
thereunder). The Commitments hereunder shall be modified to reflect the
Commitment of such assignee and any remaining Commitment of such assigning
Lender and, if any such assignment occurs after the issuance of the Notes
hereunder, the assigning Lender shall, upon the effectiveness of such assignment
or as promptly thereafter as practicable, surrender its applicable Notes to
Administrative Agent for cancellation, and thereupon new Notes shall be issued
to the assignee and/or to the assigning Lender, substantially in the form of
Exhibit IV-A, Exhibit IV-B or Exhibit V annexed hereto, as the case may be, with
appropriate insertions, to reflect the new Commitments and/or outstanding Loans,
as the case may be, of the assignee and/or the assigning Lender.
(ii) Acceptance by Administrative Agent; Recordation in Register. Upon its
receipt of an Assignment Agreement executed by an assigning Lender and an
assignee representing that it is an Eligible Assignee, together with the
processing and recordation fee referred to in subsection 10.1B(i) and any forms,
certificates or other evidence with respect to United States federal income tax
withholding matters that such assignee may be required to deliver to
Administrative Agent pursuant to subsection 2.7B(iii)(a), Administrative Agent
shall, if Administrative Agent and Company have consented to the assignment
evidenced thereby (in each case to the extent such consent is required pursuant
to subsection 10.1B(i)), (a) accept such Assignment Agreement by executing a
counterpart thereof as provided therein (which acceptance shall evidence any
required consent of Administrative Agent to such assignment), (b) record the
information contained therein in the Register, and (c) give prompt notice
thereof to Company. Administrative Agent shall maintain a copy of each
Assignment Agreement delivered to and accepted by it as provided in this
subsection 10.1B(ii).
C. Participations. The holder of any participation, other than an Affiliate
of the Lender granting such participation, shall not be entitled to require such
Lender to take or omit to take any action hereunder except action directly
affecting (i) the extension of the scheduled final maturity date of any Loan
allocated to such participation or (ii) a reduction of the principal amount of
or the rate of interest payable on any Loan allocated to such participation, and
all amounts payable by Company hereunder (including amounts payable to such
Lender pursuant to subsections 2.6D, 2.7 and 3.6) shall be determined as if such
Lender had not sold such participation. Company and each Lender hereby
acknowledge and agree that, solely for purposes of subsections 10.4 and 10.5,
(a) any participation will give rise to a direct obligation of Company to the
participant and (b) the participant shall be considered to be a "Lender".
D. Assignments to Federal Reserve Banks. In addition to the assignments and
participations permitted under the foregoing provisions of this subsection 10.1,
any Lender may assign and pledge all or any portion of its Loans, the other
Obligations owed to such Lender, and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any operating circular issued by such Federal Reserve
Bank; provided that (i) no Lender shall, as between Company and such Lender, be
relieved of any of its obligations hereunder as a result of any such assignment
and pledge and (ii) in no event shall such Federal Reserve Bank be considered to
be a "Lender" or be entitled to require the assigning Lender to take or omit to
take any action hereunder.
E. Assignments to Special Purpose Funding Vehicles. In addition to the
assignments and participations permitted under the foregoing provisions of this
subsection 10.1, any Lender (a "Granting Lender") may grant to special purpose
funding vehicle (an "SPV"), identified as such in writing from time to time by
the Granting Lender to Administrative Agent and Company, the option to provide
to Company all or any part of any Loan that such Granting Lender would otherwise
be obligated to make Company pursuant to this Agreement; provided, (i) nothing
herein shall constitute a commitment by any SPV to make any Loan and (ii) if an
SPV elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPV hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPV shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPV, it will not institute
against, or join any other person in instituting against, such SPV, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this subsection 10.1E(i),
any SPV may (i) with notice to, but without the prior written consent of,
Company and the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loan to the Granting
Lender or to any financial institutions (consented to by Company and
Administrative Agent) providing liquidity and/or credit support to or for the
account of such SPV to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit liquidity enhancement to such SPV. After the date of a grant
to any SPV, this section may not be amended without the written consent of such
SPV.
F. Information. Each Lender may furnish any information concerning Company
and its Subsidiaries in the possession of that Lender from time to time to
assignees and participants (including prospective assignee and participants),
subject to subsection 10.19.
G. Representations of Lenders. Each Lender listed on the signature pages
hereof hereby represents and warrants (i) that it is an Eligible Assignee
described in clause (A) of the definition thereof; (ii) that it has experience
and expertise in the making of or investing in loans such as the Loans; and
(iii) that it will make or invest in its Loans for its own account in the
ordinary course of its business and without a view to distribution of such Loans
within the meaning of the Securities Act or the Exchange Act or other federal
securities laws (it being understood that, subject to the provisions of this
subsection 10.1, the disposition of such Loans or any interests therein shall at
all times remain within its exclusive control). Each Lender that becomes a party
hereto pursuant to an Assignment Agreement shall be deemed to agree that the
representations and warranties of such Lender contained in Section 2(c) of such
Assignment Agreement are incorporated herein by this reference.
10.2. Expenses
Whether or not the transactions contemplated hereby shall be consummated,
Company agrees to pay promptly (i) all the actual and reasonable costs and
expenses of Agents in connection with the preparation of the Loan Documents and
any consents, amendments, waivers or other modifications thereto; (ii) all
reasonable costs of furnishing all opinions by counsel for Company (including
any opinions requested by Lenders as to any legal matters arising hereunder) and
of Company's performance of and compliance with all agreements and conditions on
its part to be performed or complied with under this Agreement and the other
Loan Documents including with respect to confirming compliance with
environmental, insurance and solvency requirements; (iii) the reasonable fees,
expenses and disbursements of counsel to Agents (including allocated costs of
internal counsel) in connection with the negotiation, preparation, execution and
administration of the Loan Documents and any consents, amendments, waivers or
other modifications thereto and any other documents or matters requested by
Company; (iv) all the actual costs and reasonable expenses of creating and
perfecting Liens in favor of Collateral Agent on behalf of Lenders pursuant to
any Collateral Document, including filing and recording fees, expenses and
taxes, stamp or documentary taxes, search fees, title insurance premiums, and
reasonable fees, expenses and disbursements of counsel to Collateral Agent and
of counsel providing any opinions that Collateral Agent or Requisite Lenders may
request in respect of the Collateral Documents or the Liens created pursuant
thereto; (v) the custody or preservation of any of the Collateral; (vi) all
other actual and reasonable costs and expenses incurred by Agents in connection
with the syndication of the Commitments and the negotiation, preparation and
execution of the Loan Documents and any consents, amendments, waivers or other
modifications thereto and the transactions contemplated thereby; and (vii) after
the occurrence of an Event of Default, all costs and expenses, including
reasonable attorneys' fees (including allocated costs of internal counsel) and
costs of settlement, incurred by Agents and Lenders in enforcing any Obligations
of or in collecting any payments due from any Loan Party hereunder or under the
other Loan Documents by reason of such Event of Default (including in connection
with the sale of, collection from, or other realization upon any of the
Collateral or the enforcement of the Subsidiary Guaranty) or in connection with
any refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a "work-out" or pursuant to any insolvency or
bankruptcy proceedings.
10.3. Indemnity
In addition to the payment of expenses pursuant to subsection 10.2, whether
or not the transactions contemplated hereby shall be consummated, Company agrees
to defend (subject to Indemnitees' selection of counsel), indemnify, pay and
hold harmless Agents and Lenders, and the officers, directors, employees,
trustee, agents and affiliates of Agents and Lenders (collectively called the
"Indemnitees"), from and against any and all Indemnified Liabilities (as
hereinafter defined); provided that Company shall not have any obligation to any
Indemnitee hereunder with respect to any Indemnified Liabilities to the extent
such Indemnified Liabilities arise solely from the gross negligence or willful
misconduct of that Indemnitee as determined by a final judgment of a court of
competent jurisdiction.
As used herein, "Indemnified Liabilities" means, collectively, any and all
liabilities, obligations, losses, damages (including natural resource damages),
penalties, actions, judgments, suits, claims (including Environmental Claims),
costs, expenses and disbursements of any kind or nature whatsoever (including
the reasonable fees and disbursements of counsel for Indemnitees in connection
with any investigative, administrative or judicial proceeding commenced or
threatened by any Person, whether or not any such Indemnitee shall be designated
as a party or a potential party thereto, and any fees or expenses incurred by
Indemnitees in enforcing this indemnity), whether direct, indirect or
consequential and whether based on any federal, state or foreign laws, statutes,
rules or regulations (including securities and commercial laws, statutes, rules
or regulations and Environmental Laws), on common law or equitable cause or on
contract or otherwise, that may be imposed on, incurred by, or asserted against
any such Indemnitee, in any manner relating to or arising out of (i) this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby (including Lenders' agreement to make the Loans hereunder or the use or
intended use of the proceeds thereof or the issuance of Letters of Credit
hereunder or the use or intended use of any thereof, or any enforcement of any
of the Loan Documents (including any sale of, collection from, or other
realization upon any of the Collateral or the enforcement of the Subsidiary
Guaranty) or (ii) the statements contained in the commitment letter delivered by
any Lender to Company with respect thereto.
To the extent that the undertakings to defend, indemnify, pay and hold
harmless set forth in this subsection 10.3 may be unenforceable in whole or in
part because they are violative of any law or public policy, Company shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.
10.4. Set-Off
In addition to any rights now or hereafter granted under applicable law and
not by way of limitation of any such rights, upon the occurrence of any Event of
Default each Lender is hereby authorized by Company at any time or from time to
time, without notice to Company or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, including Indebtedness evidenced by certificates
of deposit, whether matured or unmatured, but not including trust accounts) and
any other Indebtedness at any time held or owing by that Lender to or for the
credit or the account of Company against and on account of the obligations and
liabilities of Company to that Lender under this Agreement, the Letters of
Credit and participations therein and the other Loan Documents, including all
claims of any nature or description arising out of or connected with this
Agreement, the Letters of Credit and participations therein or any other Loan
Document, irrespective of whether or not (i) that Lender shall have made any
demand hereunder or (ii) the principal of or the interest on the Loans or any
amounts in respect of the Letters of Credit or any other amounts due hereunder
shall have become due and payable pursuant to Section 8 and although said
obligations and liabilities, or any of them, may be contingent or unmatured.
10.5. Ratable Sharing
Lenders hereby agree among themselves that if any of them shall, whether by
voluntary payment (other than a voluntary prepayment of Loans made and applied
in accordance with the terms of this Agreement), by realization upon security,
through the exercise of any right of set-off or banker's lien, by counterclaim
or cross action or by the enforcement of any right under the Loan Documents or
otherwise, or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, amounts payable in respect of Letters
of Credit, fees and other amounts then due and owing to that Lender hereunder or
under the other Loan Documents (collectively, the "Aggregate Amounts Due" to
such Lender) which is greater than the proportion received by any other Lender
in respect of the Aggregate Amounts Due to such other Lender, then the Lender
receiving such proportionately greater payment shall (i) notify Administrative
Agent and each other Lender of the receipt of such payment and (ii) apply a
portion of such payment to purchase participations (which it shall be deemed to
have purchased from each seller of a participation simultaneously upon the
receipt by such seller of its portion of such payment) in the Aggregate Amounts
Due to the other Lenders so that all such recoveries of Aggregate Amounts Due
shall be shared by all Lenders in proportion to the Aggregate Amounts Due to
them; provided that if all or part of such proportionately greater payment
received by such purchasing Lender is thereafter recovered from such Lender upon
the bankruptcy or reorganization of Company or otherwise, those purchases shall
be rescinded and the purchase prices paid for such participations shall be
returned to such purchasing Lender ratably to the extent of such recovery, but
without interest. Company expressly consents to the foregoing arrangement and
agrees that any holder of a participation so purchased may exercise any and all
rights of banker's lien, set-off or counterclaim with respect to any and all
monies owing by Company to that holder with respect thereto as fully as if that
holder were owed the amount of the participation held by that holder.
10.6. Amendments and Waivers
A. No amendment, modification, termination or waiver of any provision of
this Agreement or of the Notes, and no consent to any departure by Company
therefrom, shall in any event be effective without the written concurrence of
Requisite Lenders; provided that any such amendment, modification, termination,
waiver or consent which: reduces the principal amount of any of the Loans;
changes in any manner the definition of "Pro Rata Share" or the definition of
"Requisite Lenders"; changes in any manner any provision of this Agreement
which, by its terms, expressly requires the approval or concurrence of all
Lenders; postpones the scheduled final maturity date of any of the Loans (but
not the date of any scheduled installment of principal); postpones the date on
which any interest or any fees are payable; decreases the interest rate borne by
any of the Loans (other than any waiver of any increase in the interest rate
applicable to any of the Loans pursuant to subsection 2.2E) or the amount of any
fees payable hereunder; increases the maximum duration of Interest Periods
permitted hereunder; reduces the amount or postpones the due date of any amount
payable in respect of any Letter of Credit; extends the required expiration date
of any Letter of Credit beyond the Revolving Commitment Termination Date;
changes in any manner the obligations of Lenders relating to the purchase of
participations in Letters of Credit; releases any Lien granted in favor of
Administrative Agent with respect to all or substantially all of the Collateral;
releases any Subsidiary Guarantor from its obligations under the Subsidiary
Guaranty, in each case other than in accordance with the terms of the Loan
Documents; or changes in any manner the provisions contained in subsection 8.1
or this subsection 10.6 shall be effective only if evidenced by a writing signed
by or on behalf of all Lenders; provided, further, that no such amendment,
modification, termination, waiver or consent shall increase the Commitments of a
Lender over the amount hereof then in effect without the consent of such Lender;
provided, further, that if any matter described in the first proviso of this
subsection 10.6A relates only to (a) all Term Loans, the approval of all Term
Lenders shall be sufficient, (b) Tranche A Term Loans or Tranche B Term Loans,
as the case may be, the approval of all of the Lenders of the affected Term Loan
shall be sufficient; and (c) a Revolving Loan or Revolving Loan Commitment, the
approval of all Revolving Lenders shall be sufficient. In addition, (i) any
amendment, modification, termination or waiver of any of the provisions
contained in Section 4 shall be effective only if evidenced by a writing signed
by or on behalf of Administrative Agent and Requisite Lenders, (ii) no
amendment, modification, termination or waiver of any provision of any Note
shall be effective without the written concurrence of the Lender which is the
holder of that Note, (iii) no amendment, modification, termination or waiver of
any provision of subsection 2.1A(iii) or of any other provision of this
Agreement relating to the Swing Line Loan Commitment or the Swing Line Loans
shall be effective without the written concurrence of Swing Line Lender, (iv) no
amendment, modification, termination or waiver of any Letter of Credit and no
amendment, modification, termination or waiver of Section 3 that changes in any
manner the rights and obligations of an Issuing Lender with respect to an
outstanding Letter of Credit shall be effective without the written concurrence
of the Issuing Lender of such Letter of Credit, (v) no amendment, modification,
termination or waiver of any provision of Section 9 or of any other provision of
this Agreement which, by its terms, expressly requires the approval or
concurrence of any Agent shall be effective without the written concurrence of
such Agent, (vi) any amendment, modification, termination or waiver of any
provision of this Agreement that adversely affects the rights of Lenders holding
Loans of any Class differently than those holding Loans of any other Class shall
not be effective without the written consent of Lenders holding a majority in
interest of the outstanding Loans and unused Commitments of each affected Class
and (vii) any amendment which (a) adds a new tranche of term loans to this
Agreement, (b) changes the Base Rate Margin or the Eurodollar Rate Margin
applicable to any Class or (c) amends the interim amortization of any Class,
shall not be effective without the written consent of Lenders holding a majority
in interest of the outstanding Loans and unused Commitments of each Class. Each
such amendment, modification, waiver or consent shall indicate with respect to
each Lender party thereto whether such Lender is executing in the capacity of a
Requisite Lender and/or as a member of a Class, with separate signatures with
respect to each such capacity. Administrative Agent may, but shall have no
obligation to, with the concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of that Lender. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand on Company in any case
shall entitle Company to any other or further notice or demand in similar or
other circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this subsection 10.6 shall be binding upon each
Lender at the time outstanding, each future Lender and, if signed by Company, on
Company.
B. Replacement of Lender. If, in connection with any proposed change,
waiver, discharge or termination to any of the provisions of this Agreement as
contemplated by the first proviso contained in the first sentence of subsection
10.6A, the consent of the Requisite Lenders is obtained but the consent of one
or more of such other Lenders whose consent is required is not obtained, then
Administrative Agent 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 with one or more Replacement Lenders pursuant to subsection 2.9 so long
as at the time of such replacement each outstanding Loan of each such Lender
being replaced is repaid in full and so long as each such Replacement Lender
consents to the proposed change, waiver, discharge or termination or (B)
terminate such non-consenting Lender's Commitments and/or repay in full each
outstanding Loan of such Lender, provided that, unless the Commitments that 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 Requisite Lenders (determined after giving
effect to the proposed action) shall specifically consent thereto; provided,
further, that Company shall not have the right to terminate such non-consenting
Lender's Commitments and repay in full its outstanding Loans pursuant to clause
(B) if, immediately after the termination of such Lender's Revolving Loan
Commitment, the Revolving Loan Exposure of all Lenders would exceed the
Revolving Loan Commitments of all Lenders; and provided, further, that in any
event Administrative Agent shall not have the right to replace a Lender,
terminate its Commitments 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 contained in the first sentence of
subsection 10.6A.
10.7. Independence of Covenants
All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or would otherwise be within
the limitations of, another covenant shall not avoid the occurrence of an Event
of Default or Potential Event of Default if such action is taken or condition
exists.
10.8. Notices
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telefacsimile or telex, or three
Business Days after depositing it in the United States mail with postage prepaid
and properly addressed; provided that notices to Agents shall not be effective
until received. For the purposes hereof, the address of each party hereto shall
be as set forth under such party's name on the signature pages hereof or (i) as
to Company and any Agent, such other address as shall be designated by such
Person in a written notice delivered to the other parties hereto and (ii) as to
each other party, such other address as shall be designated by such party in a
written notice delivered to Administrative Agent.
10.9. Survival of Representations, Warranties and Agreements
A. All representations, warranties and agreements made herein shall survive
the execution and delivery of this Agreement and the making of the Loans and the
issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Company set forth in subsections 2.6D, 2.7, 3.5A,
3.6, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in subsections
9.2C, 9.4 and 10.5 shall to the extent set forth therein survive the payment of
the Loans, the cancellation or expiration of the Letters of Credit and the
reimbursement of any amounts drawn thereunder, and the termination of this
Agreement.
10.10. Failure or Indulgence Not Waiver; Remedies Cumulative
No failure or delay on the part of any Agent or any Lender in the exercise
of any power, right or privilege hereunder or under any other Loan Document
shall impair such power, right or privilege or be construed to be a waiver of
any default or acquiescence therein, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof or
of any other power, right or privilege. All rights and remedies existing under
this Agreement and the other Loan Documents are cumulative to, and not exclusive
of, any rights or remedies otherwise available.
10.11. Marshalling; Payments Set Aside
Neither Administrative Agent nor any Lender shall be under any obligation
to marshal any assets in favor of Company or any other party or against or in
payment of any or all of the Obligations. To the extent that Company makes a
payment or payments to Administrative Agent or Lenders (or to Administrative
Agent for the benefit of Lenders), or Administrative Agent or Lenders enforce
any security interests or exercise their rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies therefor
or related thereto, shall be revived and continued in full force and effect as
if such payment or payments had not been made or such enforcement or setoff had
not occurred.
10.12. Severability
In case any provision in or obligation under this Agreement or the Notes
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
10.13. Obligations Several; Independent Nature of Lenders' Rights
The obligations of Lenders hereunder are several and no Lender shall be
responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and it shall not be necessary for any other
Lender to be joined as an additional party in any proceeding for such purpose.
10.14. Headings
Section and subsection headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
10.15. Applicable Law
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES.
10.16. Successors and Assigns
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 10.1). Neither Company's
rights or obligations hereunder nor any interest therein may be assigned or
delegated by Company without the prior written consent of all Lenders.
10.17. CONSENT TO JURISDICTION AND SERVICE OF PROCESS
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS THEREUNDER, MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN XXX XXXXX,
XXXXXX XXX XXXX XX XXX XXXX. BY EXECUTING AND DELIVERING THIS AGREEMENT,
COMPANY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(i) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS;
(ii) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS WITH RESPECT TO ANY STATE
OR FEDERAL COURT OF COMPETENT JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX
XXXX;
(iii) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO
COMPANY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION 10.8;
(iv) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (iii) ABOVE IS SUFFICIENT TO
CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY SUCH PROCEEDING IN ANY SUCH
COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(v) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN THE COURTS OF
ANY OTHER JURISDICTION; AND
(vi) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.17 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT
PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
10.18. WAIVER OF JURY TRIAL
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN
THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this transaction, including
contract claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a material
inducement to enter into a business relationship, that each has already relied
on this waiver in entering into this Agreement, and that each will continue to
rely on this waiver in their related future dealings. Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 10.18 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
10.19. Confidentiality
Each Lender shall hold all non-public information obtained pursuant to the
requirements of this Agreement which has been identified as confidential by
Company in accordance with such Lender's customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices, if applicable, it being understood and agreed by Company that
in any event a Lender may make disclosures to the accountants, auditors,
attorneys, and Affiliates of such Lender or disclosures reasonably required by
any bona fide assignee, transferee or participant in connection with the
contemplated assignment or transfer by such Lender of any Loans or any
participations therein or disclosures required or requested by any governmental
agency or representative thereof or pursuant to legal process; provided that,
unless specifically prohibited by applicable law or court order, each Lender
shall notify Company of any request by any governmental agency or representative
thereof (other than any such request in connection with any routine compliance
examination or examination of the financial condition of such Lender by such
governmental agency) for disclosure of any such non-public information prior to
disclosure of such information; and provided, further, that in no event shall
any Lender be obligated or required to return any materials furnished by Company
or any of its Subsidiaries.
10.20. Counterparts; Effectiveness
This Agreement and any amendments, waivers, consents or supplements hereto
or in connection herewith may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Company and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY:
EXPRESS SCRIPTS, INC.
By: /s/ Xxxxxx Xxx
Name: Xxxxxx Xxx
Title:Senior Vice President and Chief
Financial Officer
Notice Address:
00000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention:
GUARANTORS:
Diversified POharmaceutical Services, Inc.
ESI Online, Inc.
ESI/VRX Sales Development Co.
Express Scripts Vision Corp.
Healthcare Services, Inc.
IVTx, Inc.
Manged Prescription Network, Inc.
MHI, Inc.
Value Health, Inc.
ValueRx, Inc.
ValueRx Pharmacy Program, Inc.
By: /s/ Xxxxxx Xxx
Name: Xxxxxx Xxx
Title:Senior Vice President and
Chief Financial Officer
Notice Address:
00000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention:
CREDIT SUISSE FIRST BOSTON
as Lead Arranger, Administrative and
Collateral Agent
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title:Vice President
By: /s/ Xxxxxxx Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxxx Xxxxxx
Title:Assistant Vice President
Notice Address:
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
BANKERS TRUST COMPANY
as Syndication Agent
By: /s/ Xxxx Xx Xxxxx
Name: Xxxx Xx Xxxxx
Title:Assistant Vice President
Notice Address:
00xx Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention:
THE FIRST NATIONAL BANK OF CHICAGO
as Co-Documentation Agent
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title:
Notice Address:
0 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention:
MERCANTILE BANK, N.A.
as Co-Documentation Agent
By: /s/ Xxxx Xxx Xxxxxxx
Name: Xxxx Xxx Xxxxxxx
Title:Vice President
Notice Address:
0 Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention:
LENDERS:
CREDIT SUISSE FIRST BOSTON
as a Lender
By: /s/ Xxxxxxx X. Xxxxx
Name:Xxxxxxx X. Xxxxx
Title:Vice President
By: /s/ Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Xxxxxxx
Title:Vice President
Notice Address:
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
BANKERS TRUST COMPANY
as a Lender
By: /s/ Xxxx Xx Xxxxx
Name:Xxxx Xx Xxxxx
Title:Assistant Vice President
Notice Address:
00xx Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention:
ABN AMRO BANK N.A.
as a Lender
By: /s/ Xxxxxxx X. XxXxxxxx
Name:Xxxxxxx X. XxXxxxxx
Title:Group Vice President and Director
By: /s/ Xxxx X. Honda
Name:Xxxx X. Honda
Title:Vice President
Notice Address:
000 X. XxXxxxx Xxxxxx
Xxx. 000
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxx
Bank of Montreal, as a Lender
By: /s/ X.X. XxXxxxxx
Name: X.X. XxXxxxxx
Title: Director
The Bank of New York, as a Lender
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
Notice Address:
The Bank of New York
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Bankboston, N.A., as a Lender
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Notice Address:
000 Xxxxxxx Xxxxxx
Xxx. 00-00-00
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Banque National De Paris, as a Lender
By: /s/ Xxxxxx Xxxxxx du Xxxxxx
Name: Xxxxxx Xxxxxx du Bocage
Title: Executive Vice President and
General Manager
Notice Address:
000 Xxxxx XxXxxxx Xxxxxx
Xxx. 000
Xxxxxxx, XX 00000
Attn: Jo Xxxxx Xxxxxx
Xx. V.P. and Manager
Osprey Investments Portfolio
By: Citibank, N.A., as Manager
as a Lender
By: /s/ Xxxx X. Xxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
Notice Address:
000 Xxxxxxxxx Xxxxxx, 00/00
Xxx Xxxx, XX 00000
Attn: Xxx Xxx
City National Bank, as a Lender
By: /s/ Xxxxxx Xxxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
Notice Address:
000 X. Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxx
KZH CNC LLC
as a Lender
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
Notice Address:
For Business and/or Credit Matters
Xxxxxxxx Xxxxxx
KZH CNC LLC
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Credit Agricole Indosuez, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President, Manager
By: /s/ Xxxx Xxxx Xxxxx
Name: Xxxx Xxxx Xxxxx
Title: Executive Vice President
Notice Address:
00 X. Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Vice President
KZH Cypress Tree-1 LLC, as a Lender
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
Notice Address:
For Business and/or Credit Matters
Xxxxxxxx Xxxxxx
KZH Cypress Tree-1 LLC
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
The First National Bank of Chicago, as a Lender
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title:
Fleet National Bank, as a Lender
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Senior Vice President
Notice Addresss:
Fleet Bank
Xxx Xxxxxxx Xxxxxx
XXXXX000
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Xxxxxxxx Floating Rate Trust, as a Lender
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Vice President
Notice Address:
000 Xxxxxxxx Xxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxxxxx Ip
Xxxxxx Financial, Inc., as a Lender
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Senior Vice President
Notice Address:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxx
Bayerische Hypo - und Vereinsbank AG
New York Branch, as a Lender
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: Director
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Associate Director
Notice Address:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxx
KZH ING-2 LLC, as a Lender
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
Notice Address:
For Business and/or Credit Matters
Xxxxxxxx Xxxxxx
KZH ING-2 LLC
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Bank Boston, N.A., as Trust Administrator
for Longlane Master Trust IV, as a Lender
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Managing Director Credit Derivatives
Mellon Bank, N.A., as a Lender
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
Notice Address:
` Mellon Bank, N.A.
Room 151-4525
Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
MERCANTILE BANK, N.A., as a Lender
By: /s/ Xxxx Xxx Xxxxxxx
Name: Xxxx Xxx Xxxxxxx
Title: Vice President
Notice Address:
Xxx Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attn: Corporate Banking, Service
Industries Group
Xxxxxxx Xxxxx Senior Floating Rate Fund, Inc.
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
Notice Address:
Xxxxxxx Xxxxx Senior Floating Rate Fund
c/o Merrill Xxxxx Asset Management
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
MICHIGAN NATIONAL BANK, as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Relationship Manager
Notice Address:
0000 Xxxxxxx Xxxx 00-00
Xxxxxxxxxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Xxxxxx Xxxxxxx Xxxx Xxxxxx Prime Income Trust,
as a Lender
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Vice President
MONY Life Insurance Company, as a Lender
By: /s/ Xxxxx X. Xxxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxxx
Title: Assistant Vice President
Notice Address:
MONY Life Insurance Company
Capital Management Unit
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxxxx
National City Bank, as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Notice Address:
National City Bank
0000 X. Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Nationsbank, N.A., as a Lender
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
Notice Address:
000 Xxxxxxxxx, 0xx xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Pinehurst Trading, Inc., as a Lender
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
Notice Address:
NationsBank,N.A.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, X.X. 00000
Attn: Xx. Xxxxx X. Xxxxxx
Xxxxxxx National Life Insurance Company
By: PPM America, Inc., as attorney in fact,
on behalf of Xxxxxxx Natinal Life
Insurance Company, as a Lender
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Vice President
Notice Address:
Xxxxx Xxxxxxx, PPM America, Inc.
000 X. Xxxxxx Xxxxx, Xxx. 0000
Xxxxxxx, XX 00000
Xxxxx Xxxxx, Northern Trust
000 X. Xxxxx, Xxxxx XXX
Xxxxxxx, XX 00000
Xxxx Xxxxx, Jackson National Life
000 X. Xxxxxx Xxxxx, Xxx. 0000
Xxxxxxx, XX 00000
The Prudential Insurance Company of America, as a
Lender
By: /s/ B. Xxxx Xxxxx
Name: B. Xxxx Xxxxx
Title: Vice President
Notice Addresss:
000 Xxxxxxxx Xxxxxx
Xxxxxxx Center Four, 7th floor
Xxxxxx, XX 00000
Attn: B. Xxxx Xxxxx
SRF Trading, Inc., as a Lender
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
Notice Address:
Xxxxx Xxx & Farnham Incorporated
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Good
Xxxxx Xxx & Xxxxxxx Incorporated, as Agent
for Keyport Life Insurance Company, as a Lender
By: /s/ Xxxxx X. Good
Name Xxxxx X. Good
Title: Vice President and Portfolio Manager
Xxxxx Xxx & Farnham Incorporated
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Good
KZH Sterling LLC
as a Lender
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
Notice Address:
For Business and/or Credit Matters
Xxxxxxxx Xxxxxx
KZH Sterling LLC
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Transamerica Life Insurance and Annuity Company
as a Lender
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Investment Officer
Union Bank of California, N.A.
as a Lender
By: /s/ Xxxxxxxx Xxxx
Name: Xxxxxxxx Xxxx
Title: Vice President
Notice Address:
000 X. Xxxxxxxx Xxxxxx, 00xx Xxx.
X00-000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxx
