Exhibit 10.24
================================================================================
Execution Copy
CREDIT AGREEMENT
among
COINMACH LAUNDRY CORPORATION,
COINMACH CORPORATION,
THE SUBSIDIARY GUARANTORS PARTY HERETO
and
THE LENDING INSTITUTIONS LISTED HEREIN
and
BANKERS TRUST COMPANY,
as ADMINISTRATIVE AGENT and COLLATERAL AGENT,
DEUTSCHE BANC ALEX. XXXXX INC.,
as LEAD ARRANGER and BOOK MANAGER,
X.X. XXXXXX SECURITIES INC. and FIRST UNION SECURITIES, INC.,
as SYNDICATION AGENTS,
and
CREDIT LYONNAIS NEW YORK BRANCH,
as DOCUMENTATION AGENT
----------------------------------
Dated as of January 25, 2002
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TABLE OF CONTENTS
Page
SECTION 1. Amount and Terms of Credit......................................1
1.01 The Commitments.................................................1
1.02 Additional Loan Commitments.....................................3
1.03 Minimum Amount of Each Borrowing................................4
1.04 Notice of Borrowing.............................................4
1.05 Disbursement of Funds...........................................5
1.06 Notes...........................................................6
1.07 Conversions; Continuations......................................7
1.08 Pro Rata Borrowings.............................................8
1.09 Interest........................................................8
1.10 Interest Periods................................................9
1.11 Increased Costs, Illegality, etc...............................10
1.12 Compensation...................................................12
1.13 Change of Lending Office.......................................12
1.14 Replacement of Banks...........................................12
SECTION 2. Letters of Credit..............................................13
2.01 Letters of Credit..............................................13
2.02 Letter of Credit Requests......................................14
2.03 Letter of Credit Participations................................14
2.04 Agreement to Repay Letter of Credit Payments...................16
2.05 Increased Costs................................................17
SECTION 3. Commitment Commission; Fees; Reductions of Commitment..........18
3.01 Fees...........................................................18
3.02 Voluntary Termination of Unutilized Commitments................19
3.03 Mandatory Reduction of Commitments.............................19
SECTION 4. Prepayments; Payments; Taxes...................................20
4.01 Voluntary Prepayments..........................................20
4.02 Mandatory Repayments and Commitment Reductions.................22
4.03 Method and Place of Payment....................................28
4.04 Net Payments...................................................28
SECTION 5. Conditions Precedent to Loans..................................31
5.01 Execution of Agreement; Notes..................................31
5.02 Payment of Fees................................................31
5.03 Opinions of Counsel............................................31
5.04 Corporate Documents; Proceedings; etc..........................31
5.05 Transactions, etc..............................................32
5.06 Solvency Certificate; Insurance................................32
5.07 Officer's Certificate..........................................32
5.08 Approvals......................................................32
5.09 Guarantees.....................................................33
(i)
TABLE OF CONTENTS
(continued)
Page
5.10 Security Agreement; Pledge Agreements; Collateral Assignment
of Leases; Collateral Assignment of Location Leases............33
5.11 Certain Collateral Deliveries..................................34
5.12 Adverse Change, etc............................................34
5.13 Litigation.....................................................35
5.14 Pro Forma Balance Sheet; Financial Statements; Projections.....35
5.15 Payoff and Release Letter......................................35
SECTION 6. Conditions Precedent to All Credit Events......................36
6.01 No Default; Representations and Warranties.....................36
6.02 Notice of Borrowing; Letter of Credit Request..................36
SECTION 7. Representations, Warranties and Agreements.....................36
7.01 Corporate Status...............................................37
7.02 Corporate Power and Authority..................................37
7.03 No Violation...................................................37
7.04 Governmental Approvals.........................................38
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc..................................38
7.06 Litigation.....................................................39
7.07 True and Complete Disclosure...................................39
7.08 Use of Proceeds; Margin Regulations............................39
7.09 Tax Returns and Payments.......................................40
7.10 Compliance with ERISA..........................................40
7.11 The Security Documents.........................................41
7.12 Representations and Warranties in Documents....................42
7.13 Properties.....................................................42
7.14 Capitalization.................................................42
7.15 Subsidiaries...................................................42
7.16 Compliance with Statutes, etc..................................42
7.17 Investment Company Act.........................................43
7.18 Public Utility Holding Company Act.............................43
7.19 Environmental Matters..........................................43
7.20 Labor Relations................................................44
7.21 Patents, Licenses, Franchises and Formulas.....................44
7.22 Indebtedness...................................................44
7.23 Transactions...................................................44
7.24 Representations, Warranties & Agreements of Holdings...........45
SECTION 8. Affirmative Covenants..........................................45
8.01 Information Covenants..........................................45
8.02 Books, Records and Inspections.................................49
8.03 Maintenance of Property; Insurance.............................49
8.04 Corporate Franchises...........................................50
(ii)
TABLE OF CONTENTS
(continued)
Page
8.05 Compliance with Statutes, etc.................................50
8.06 Compliance with Environmental Laws............................50
8.07 End of Fiscal Years; Fiscal Quarters..........................51
8.08 Performance of Obligations....................................51
8.09 Payment of Taxes..............................................51
8.10 Additional Security; Further Assurances.......................52
8.11 Post-Closing Collateral Matters...............................53
SECTION 9. Negative Covenants............................................53
9.01 Liens.........................................................53
9.02 Consolidation, Merger, Sale or Purchase of Assets, etc........56
9.03 Dividends, etc................................................60
9.04 Indebtedness..................................................61
9.05 Advances, Investments and Loans...............................63
9.06 Transactions with Affiliates..................................65
9.07 Capital Expenditures..........................................65
9.08 Leverage Ratio................................................66
9.09 Minimum Consolidated EBITDA...................................67
9.10 Consolidated Fixed Charge Coverage Ratio......................68
9.11 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation,
By-Laws and Certain Other Agreements; etc.....................68
9.12 Limitation on Certain Restrictions on Subsidiaries............69
9.13 Limitation on Issuance of Capital Stock.......................69
9.14 Business......................................................70
9.15 Limitation on the Creation of Subsidiaries....................70
9.16 Restriction on Tax Consolidation..............................70
SECTION 10. Events of Default.............................................70
10.01 Payments......................................................70
10.02 Representations, etc..........................................70
10.03 Covenants.....................................................70
10.04 Default Under Other Agreements................................71
10.05 Bankruptcy, etc...............................................71
10.06 ERISA.........................................................71
10.07 Security Documents............................................72
10.08 Guaranty......................................................72
10.09 Judgments.....................................................72
10.10 Change of Control.............................................72
SECTION 11. Definitions and Accounting Terms..............................73
11.01 Defined Terms.................................................73
SECTION 12. The Administrative Agent.....................................103
(iii)
TABLE OF CONTENTS
(continued)
Page
12.01 Appointment..................................................103
12.02 Nature of Duties.............................................103
12.03 Lack of Reliance on the Administrative Agent.................104
12.04 Certain Rights of the Administrative Agent...................104
12.05 Reliance.....................................................104
12.06 Indemnification..............................................105
12.07 The Administrative Agent in Its Individual Capacity..........105
12.08 Holders......................................................105
12.09 Resignation by the Administrative Agent......................105
SECTION 13. Miscellaneous................................................106
13.01 Payment of Expenses, etc.....................................106
13.02 Right of Set-off.............................................107
13.03 Notices......................................................107
13.04 Benefit of Agreement.........................................108
13.05 No Waiver; Remedies Cumulative...............................109
13.06 Payments Pro Rata............................................110
13.07 Calculations; Computations...................................110
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL.........................................111
13.09 Counterparts.................................................112
13.10 Effectiveness................................................112
13.11 Headings Descriptive.........................................112
13.12 Amendment or Waiver; etc.....................................112
13.13 Survival.....................................................113
13.14 Domicile of Loans............................................114
13.15 Register.....................................................114
13.16 Confidentiality..............................................114
SECTION 14. Guaranty.....................................................115
14.01 The Guaranty.................................................115
14.02 Obligations Unconditional....................................115
14.03 Reinstatement................................................117
14.04 Subrogation; Subordination...................................117
14.05 Remedies.....................................................118
14.06 Instrument for the Payment of Money..........................118
14.07 Continuing Guarantee.........................................118
14.08 General Limitation on Guarantee Obligations..................118
14.09 Special Provisions Regarding Pledges of Equity
Interests in, and Promissory Notes Owed by, Persons
Not Organized in the United States...........................118
(iv)
TABLE OF CONTENTS
(continued)
Page
ANNEX I Commitments
ANNEX II Bank Addresses
SCHEDULE 7.01 Corporate Status
SCHEDULE 7.13 Properties
SCHEDULE 7.15 Subsidiaries
SCHEDULE 7.22 Indebtedness
SCHEDULE 8.03 Insurance
SCHEDULE 8.11 Post-Closing Collateral Matters
SCHEDULE 9.01 Existing Liens
SCHEDULE 9.05 Investments
SCHEDULE 9.06 Transactions with Affiliates
EXHIBIT A Form of Notice of Borrowing
EXHIBIT B-1 Form of Tranche A Term Note
EXHIBIT B-2 Form of Tranche B Term Note
EXHIBIT B-3 Form of Revolving Note
EXHIBIT B-4 Form of Swingline Note
EXHIBIT C Form of Letter of Credit Request
EXHIBIT D Form of Opinion of Xxxxx Xxxxx & Xxxxx, Special Counsel to
Holdings, the Borrower and the Subsidiary Guarantors
EXHIBIT E Form of Intercompany Note
EXHIBIT F Form of Solvency Certificate
EXHIBIT G Form of Collateral Assignment of Leases
EXHIBIT H Form of Landlord Consent, Lien Waiver and Access Agreement
EXHIBIT I Form of Collateral Assignment of Location Leases
EXHIBIT J Form of Perfection Certificate
EXHIBIT K Form of Assignment and Assumption Agreement
EXHIBIT L Form of Security Agreement
EXHIBIT M Form of Spinoff Guarantor Note
EXHIBIT N Form of Credit Party Pledge Agreement
EXHIBIT O Form of Holdings Pledge Agreement
(v)
CREDIT AGREEMENT ("Agreement"), dated as of January 25, 2002 among
COINMACH LAUNDRY CORPORATION, a Delaware corporation ("Holdings"), COINMACH
CORPORATION, a Delaware corporation (the "Borrower"), the Subsidiary Guarantors
listed on the signature page hereto, the lending institutions from time to time
party hereto (each, a "Bank" and, collectively, the "Banks"), BANKERS TRUST
COMPANY, as Administrative Agent and Collateral Agent, DEUTSCHE BANC ALEX. XXXXX
INC., as Lead Arranger and Book Manager, X.X. XXXXXX SECURITIES INC. and FIRST
UNION SECURITIES, INC., as Syndication Agents, and CREDIT LYONNAIS NEW YORK
BRANCH, as Documentation Agent. Unless otherwise defined herein, all capitalized
terms used herein and defined in Section 11 are used herein as therein defined.
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions set forth herein,
the Banks are willing to make available to the Borrower the respective credit
facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
1.01 The Commitments. (a) Subject to and upon the terms and conditions
set forth herein, each Bank with a Tranche A Term Loan Commitment severally
agrees to make on the Effective Date a term loan (each such term loan, a
"Tranche A Term Loan" and, collectively, the "Tranche A Term Loans") to the
Borrower, which Tranche A Term Loans (i) shall be made and initially maintained
as a single Borrowing of Base Rate Loans (subject to the option to convert such
Tranche A Term Loans pursuant to Section 1.07); provided that, except as
otherwise specifically provided in Section 1.11(b), all Tranche A Term Loans
comprising the same Borrowing shall at all times be of the same Type, and (ii)
shall equal for each Bank, in initial aggregate principal amount, an amount
which equals the Tranche A Term Loan Commitment of such Bank on the Effective
Date (before giving effect to any reductions thereto on such date pursuant to
Section 3.03(a)). Once repaid, Tranche A Term Loans incurred hereunder may not
be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each
Bank with a Tranche B Term Loan Commitment severally agrees to make on the
Effective Date a term loan (each such term loan, a "Tranche B Term Loan" and,
collectively, the "Tranche B Term Loans") to the Borrower, which Tranche B Term
Loans (i) shall be made and initially maintained as a single Borrowing of Base
Rate Loans (subject to the option to convert such Tranche B Term Loans pursuant
to Section 1.07); provided that, except as otherwise specifically provided in
Section 1.11(b), all Tranche B Term Loans comprising the same Borrowing shall at
all times be of the same Type, and (ii) shall equal for each Bank, in initial
aggregate principal amount, an amount which equals the Tranche B Term Loan
Commitment of such Bank on the Effective Date (before giving effect to any
reductions thereto on such date pursuant to Section 3.03(b)). Once repaid,
Tranche B Term Loans incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth herein, each
Bank with a Revolving Loan Commitment ("Revolving Loan Banks") severally agrees,
at any time and from time to time on and after the Effective Date and prior to
the Revolving Loan Maturity Date, to make a revolving loan or revolving loans
(each, a "Revolving Loan" and, collectively, the "Revolving Loans") to the
Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be
Base Rate Loans or Eurodollar Loans; provided that except as otherwise
specifically provided in Section 1.11(b), all Revolving Loans comprising the
same Borrowing shall at all times be of the same Type, and provided further that
if made on the Effective Date or the three subsequent Business Days, as Base
Rate Loans (subject to the option to convert such Revolving Loans pursuant to
Section 1.07), (ii) may be repaid and reborrowed in accordance with the
provisions hereof, (iii) shall not exceed for any Bank at any time outstanding
that aggregate principal amount which, when added to the product of (y) such
Bank's Adjusted Percentage and (z) the aggregate amount of all Letter of Credit
Outstandings plus all Swingline Loans then outstanding (exclusive of Unpaid
Drawings and Swingline Loans which are repaid with the proceeds of, and
simultaneously with the incurrence of, the incurrence of Revolving Loans) at
such time, equals the Revolving Loan Commitment of such Bank at such time and
(iv) shall not exceed for all Banks at any time outstanding that aggregate
principal amount which, when added to the amount of all Swingline Loans then
outstanding and all Letter of Credit Outstandings (exclusive of Unpaid Drawings
which are repaid with the proceeds of, and simultaneously with the incurrence
of, the respective incurrence of Revolving Loans) at such time, the Total
Revolving Loan Commitment then in effect.
(d) Subject to and upon the terms and conditions set forth herein, BTCo
agrees to make at any time and from time to time on and after the Effective Date
and prior to the Swingline Expiry Date, a loan or loans to the Borrower (each, a
"Swingline Loan" and, collectively, the "Swingline Loans"), which Swingline
Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid
and reborrowed in accordance with the provisions hereof, (iii) shall not exceed
in aggregate principal amount at any time outstanding, when combined with the
aggregate principal amount of all Revolving Loans then outstanding and the
Letter of Credit Outstandings (exclusive of Unpaid Drawings relating to Letters
of Credit which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Swingline Loans or Revolving Loans)
at such time, an amount equal to the Total Revolving Loan Commitment then in
effect and (iv) shall not exceed in aggregate principal amount at any time
outstanding the Maximum Swingline Amount. BTCo shall not be obligated to make
any Swingline Loans at a time when a Bank Default exists unless BTCo has entered
into arrangements satisfactory to it and the Borrower to eliminate BTCo's risk
with respect to each Bank's (including any Defaulting Bank's) participation in
such Swingline Loans, including by cash collateralizing such Defaulting Bank's
or Banks' Percentage of the outstanding Swingline Loans. BTCo will not make a
Swingline Loan after it has received written notice from the Borrower or the
Required Banks stating that a Default or an Event of Default exists until such
time as BTCo shall have received a written notice of (i) rescission of such
notice from the party or parties originally delivering the same or (ii) a waiver
of such Default or Event of Default from the Required Banks.
(e) On any Business Day, BTCo may, in its sole discretion, give notice
to the Revolving Loan Banks and the Borrower that all outstanding Swingline
Loans shall be funded
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with a Borrowing of Revolving Loans (provided that each such notice shall be
deemed to have been automatically given upon the occurrence of a Default or an
Event of Default under Section 10.05 or upon the exercise of any of the remedies
provided in the last paragraph of Section 10), in which case a Borrowing of
Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made on the immediately succeeding Business Day by all
Revolving Loan Banks pro rata based on each Bank's Percentage, and the proceeds
thereof shall be applied directly to repay BTCo for such outstanding Swingline
Loans. Each Revolving Loan Bank hereby irrevocably agrees to make Base Rate
Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the
amount and in the manner specified in the preceding sentence and on the date
specified in writing by BTCo notwithstanding (i) that the amount of the
Mandatory Borrowing may not comply with the minimum amount of each Borrowing
pursuant to Section 1.03 otherwise required hereunder, (ii) whether any
conditions specified in Section 6 are then satisfied, (iii) whether a Default or
an Event of Default has occurred and is continuing, (iv) the date of such
Mandatory Borrowing and (v) any reduction in the Total Revolving Loan Commitment
after any such Swingline Loans were made. In the event that any Mandatory
Borrowing cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a proceeding
under the Bankruptcy Code in respect of the Borrower), each Revolving Loan Bank
(other than BTCo) hereby agrees that it shall forthwith purchase from BTCo
(without recourse or warranty) such assignment of the outstanding Swingline
Loans as shall be necessary to cause the Revolving Loan Banks to share in such
Swingline Loans ratably based upon their respective Percentages; provided that
all interest payable on the Swingline Loans shall be for the account of BTCo
until the date the respective assignment is purchased and, to the extent
attributable to the purchased assignment, shall be payable to the Bank
purchasing same from and after such date of purchase.
1.02 Additional Loan Commitments. (a) At any time on or after the
Effective Date, so long as no Default or Event of Default has occurred and is
continuing, the Borrower may, upon five (5) Business Days' prior written notice
to the Administrative Agent, request on one or more occasions that the Total
Revolving Loan Commitment be increased by, in each such case, not less than
$5,000,000 up to an aggregate amount of $25,000,000; provided that the Total
Revolving Loan Commitment, after giving effect to all such increases, shall not
exceed $100,000,000; and provided that none of the Revolving Loan Banks as of
the date of such request shall be under any obligation to increase its Revolving
Loan Commitment. Such notice shall specify (i) the amount by which the Total
Revolving Loan Commitment is requested to increase, (ii) the effective date of
such requested increase, which date shall not be less than five (5) Business
Days nor more than 60 days following the date of such written notice, (iii) the
name and contact information of the New Bank or New Banks (which may include one
or more existing Banks) the Borrower is requesting provide such increase to the
Total Revolving Loan Commitment, and (iv) contain a certification from an
Authorized Officer of the Borrower stating that the conditions precedent to all
Credit Events in Section 6.01 have been met as of the date of such notice.
(b) If the Borrower has requested that one or more financial
institutions that at such time are not Banks hereunder but that shall qualify as
Eligible Transferees (each a "New Bank") provide a requested increase in the
Total Revolving Loan Commitment, then such New Bank or New Banks shall be
permitted by the Administrative Agent to, and thereafter shall,
-3-
provide such Revolving Loan Commitment; provided that any increase in Total
Revolving Loan Commitment provided by a New Bank shall be in a minimum amount of
$5,000,000. Following satisfaction of the notice requirement in clause (a) above
and the conditions in clauses (b) and (c) of this Section, upon the effective
date set forth in such notice, each New Bank shall thereafter be a Revolving
Loan Bank party to this Agreement and shall be entitled to all rights, benefits
and privileges afforded a Revolving Loan Bank hereunder and subject to the
obligations of a Revolving Loan Bank hereunder to the extent of its Revolving
Loan Commitment. Annex I to this Agreement shall be deemed amended to reflect
the increase in the Total Revolving Loan Commitment caused by the inclusion of
the Revolving Loan Commitment of the New Bank or New Banks. Concurrently with
the effectiveness of such increase, (i) the New Bank or New Banks shall fund an
amount to the Administrative Agent such that, after giving effect thereto and to
all prior fundings by such New Bank hereunder (if any), its Percentage of the
aggregate principal amount of Revolving Loans then outstanding, together with
its pro rata share of outstanding Swingline Loans and Unpaid Drawings, if any
(exclusive of Unpaid Drawings and Swingline Loans that are repaid with the
proceeds of, and simultaneously with the incurrence of, Revolving Loans), shall
be outstanding and (ii) the Administrative Agent shall distribute to each
Revolving Loan Bank (excluding such New Bank or New Banks) its pro rata share of
such funding, in each case so that after giving effect thereto, each Revolving
Loan Bank's, including the New Bank's or New Banks', participation in the
Revolving Loans, Swingline Loans and Unpaid Drawings, if any, will be pro rata
based on its Percentage after giving effect to the adjustments in such
Percentages necessary to reflect such increase in the Total Revolving Loan
Commitment. Further, the Borrower shall pay to each Revolving Loan Bank all
amounts due under Section 1.12 as a result of adding any New Banks.
(c) Any increase in the Total Revolving Loan Commitment is subject to,
without limitation, the conditions precedent that the Borrower shall have
executed such Revolving Notes and the Borrower, the Banks and the New Banks, if
any, shall have executed and delivered such other documentation as shall be
reasonably required by the Administrative Agent to evidence such increase in the
Total Revolving Loan Commitment and the addition of such New Bank as a Bank
hereunder.
1.03 Minimum Amount of Each Borrowing. The aggregate principal amount
of each Borrowing of Tranche A Term Loans shall not be less than $2,500,000 and
each Borrowing of Tranche B Term Loans shall not be less than $1,000,000 and, in
each case, if greater, shall be, in each case, in an integral multiple of
$500,000. The aggregate principal amount of each Borrowing of any Tranche of
Revolving Loans shall not be less than $500,000 and, if greater, shall be in an
integral multiple of $100,000. More than one Borrowing may occur on the same
date, but at no time shall there be outstanding more than twelve Borrowings of
Eurodollar Loans. The principal amount of each Borrowing of Swingline Loans
shall not be less than $250,000 and, if greater, shall be in an integral
multiple of $50,000.
1.04 Notice of Borrowing. (a) Whenever the Borrower desires to make
a Borrowing hereunder (excluding Borrowings of Swingline Loans and Revolving
Loans made pursuant to a Mandatory Borrowing), it shall give the Administrative
Agent at its Notice Office at least one Business Day's prior written (or
telephonic promptly
-4-
confirmed in writing) notice of each Base Rate Loan and at least three Business
Days' prior written (or telephonic promptly confirmed in writing) notice of each
Eurodollar Loan to be made hereunder; provided that any such notice shall be
deemed to have been given on a certain day only if given before 12:00 Noon (New
York time) on such day (each such written notice or written confirmation of
telephonic notice a "Notice of Borrowing"). Except as otherwise expressly
provided in Section 1.11, whenever the Borrower desires to incur Swingline Loans
hereunder, it shall provide BTCo with a Notice of Borrowing not later than 12:00
Noon (New York time) on the day such Swingline Loan is to be made hereunder.
Each such notice shall be irrevocable and shall (x) specify in each case the
date of such Borrowing (which shall be a Business Day) and (y) be given by the
Borrower in the form of Exhibit A, appropriately completed to specify the
aggregate principal amount of Loans to be made pursuant to such Borrowing, the
date of such Borrowing (which shall be a Business Day), whether the Loans being
made pursuant to such Borrowing shall constitute Term Loans or Revolving Loans
and whether, subject to the other terms and provisions hereof, the Loans being
made pursuant to such Borrowing are to be initially maintained as Base Rate
Loans or Eurodollar Loans and, if Eurodollar Loans, the initial Interest Period
to be applicable thereto. The Administrative Agent shall promptly give each Bank
which is required to make Loans of the Tranche specified in the respective
Notice of Borrowing, notice of such proposed Borrowing, of such Bank's
proportionate share thereof and of the other matters required by the immediately
preceding sentence to be specified in the Notice of Borrowing.
(b) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice of any Borrowing of Loans, the
Administrative Agent may act without liability upon the basis of telephonic
notice of such Borrowing reasonably believed by the Administrative Agent in good
faith to be from an Authorized Officer of the Borrower prior to receipt of
written confirmation. The Administrative Agent's or BTCo's, as the case may be,
record of the terms of such telephonic notice of such Borrowing shall be
conclusive absent manifest error.
(c) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(e), with the Borrower hereby irrevocably agreeing, by its
incurrence of any Swingline Loan, to the making of Mandatory Borrowings as set
forth in such Section 1.01(e).
1.05 Disbursement of Funds. No later than 12:00 Noon (New York time)
on the date specified in each Notice of Borrowing, each Bank with a Commitment
of the respective Tranche will make available its pro rata portion of each such
Borrowing requested to be made on such date (or in the case of Swingline Loans,
BTCo shall make available the full amount thereof). All such amounts shall be
made available in Dollars and in immediately available funds at the Payment
Office of the Administrative Agent, and the Administrative Agent will make
available to the Borrower at the Payment Office the aggregate of the amounts so
made available by the Banks. Unless the Administrative Agent shall have been
notified by any Bank prior to the date of Borrowing that such Bank does not
intend to make available to the Administrative Agent such Bank's portion of any
Borrowing to be made on such date, the Administrative Agent may assume that such
Bank has made such amount available to the Administrative Agent on such date of
Borrowing and the Administrative Agent, in reliance upon such assumption, may
(in its sole discretion and without obligation to do so) make available to the
Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Bank, the Administrative
Agent shall be entitled
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to recover such corresponding amount on demand from such Bank. If such Bank does
not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent shall promptly notify the Borrower and
the Borrower shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to recover
on demand from such Bank or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to the Borrower until the
date such corresponding amount is recovered by the Administrative Agent, at a
rate per annum equal to (i) if recovered from such Bank, at the overnight
Federal Funds Rate and (ii) if recovered from the Borrower, the rate of interest
applicable to the respective Borrowing, as determined pursuant to Section 1.09.
Nothing in this Section 1.05 shall be deemed to relieve any Bank from its
obligation to make Loans hereunder or to prejudice any rights which the Borrower
may have against any Bank as a result of any failure by such Bank to make Loans
hereunder.
1.06 Notes. (a) Upon the written request of a Bank, the Borrower's
obligation to pay the principal of, and interest on, the Loans made by each Bank
shall be evidenced (i) if Tranche A Term Loans, by a promissory note duly
executed and delivered by the Borrower substantially in the form of Exhibit B-1
with blanks appropriately completed in conformity herewith (each, a "Tranche A
Term Note" and, collectively, the "Tranche A Term Notes"), (ii) if Tranche B
Term Loans, by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B-2 with blanks appropriately completed in
conformity herewith (each, a "Tranche B Term Note" and, collectively, the
"Tranche B Term Notes"), (iii) if Revolving Loans, by a promissory note duly
executed and delivered by the Borrower substantially in the form of Exhibit B-3
with blanks appropriately completed in conformity herewith (each, a "Revolving
Note" and, collectively, the "Revolving Notes") and (iv) if Swingline Loans, by
a promissory note duly executed and delivered by the Borrower substantially in
the form of Exhibit B-4 with blanks appropriately completed in conformity
herewith (the "Swingline Note").
(b) The Tranche A Term Note issued to each Bank shall (i) be executed
by the Borrower, (ii) be payable to the order of such Bank and be dated the
Effective Date, (iii) be in a stated principal amount equal to the Tranche A
Term Loan made by such Bank on the Effective Date and be payable in the
principal amount of Tranche A Term Loans evidenced thereby, (iv) mature on the
Tranche A Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.09 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayments as provided in Section 4.01 and mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this Agreement
and the other Credit Documents.
(c) The Tranche B Term Note issued to each Bank shall (i) be executed
by the Borrower, (ii) be payable to the order of such Bank and be dated the
Effective Date, (iii) be in a stated principal amount equal to the Tranche B
Term Loans made by such Bank on the Effective Date and be payable in the
principal amount of Tranche B Term Loans evidenced thereby, (iv) mature on the
Tranche B Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.09 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayments as provided in Section 4.01 and mandatory repayment as
provided in
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Section 4.02 and (vii) be entitled to the benefits of this Agreement and the
other Credit Documents.
(d) The Revolving Note issued to each Bank shall (i) be executed by the
Borrower, (ii) be payable to the order of such Bank and be dated the Effective
Date, (iii) be in a stated principal amount equal to the Revolving Loan
Commitment of such Bank on the Effective Date (or in the case of any New Bank,
the date such New Bank became a party to this Agreement pursuant to Section
1.02) and be payable in the principal amount of Revolving Loans evidenced
thereby, (iv) mature on the Revolving Loan Maturity Date, (v) bear interest as
provided in the appropriate clause of Section 1.09 in respect of the Base Rate
Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be
subject to voluntary prepayments as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02 and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.
(e) Each Bank will note on its internal records the amount of each Loan
made by it and each payment in respect thereof and will prior to any transfer of
any of its Notes endorse on the reverse side thereof the outstanding principal
amount of Loans evidenced thereby. Failure to make any such notation shall not
affect the Borrower's obligations in respect of such Loans.
(f) The Swingline Note issued to BTCo shall (i) be executed by the
Borrower, (ii) be payable to the order of BTCo and be dated the Effective Date,
(iii) be in a stated principal amount equal to the Maximum Swingline Amount and
be payable in the principal amount of the outstanding Swingline Loans evidenced
thereby, (iv) mature on the Swingline Expiry Date, (v) bear interest as provided
in Section 1.09 in respect of Base Rate Loans evidenced thereby, (vi) be subject
to voluntary prepayments as provided in Section 4.01 and mandatory repayments as
provided in Section 4.02, and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents.
1.07 Conversions; Continuations. The Borrower shall have the option
to convert, all or a portion equal to at least (x) in the case of a conversion
of Term Loans, $5,000,000 (and, if greater, in an integral multiple of $500,000)
and (y) in the case of a conversion of Revolving Loans, $1,000,000 (and, if
greater, in an integral multiple of $100,000), of the outstanding principal
amount of Loans made pursuant to one or more Borrowings (so long as of the same
Tranche) of one or more Types of Loans into a Borrowing (of the same Tranche) of
another Type of Loan; provided that (i) except as otherwise provided in Section
1.11(b), Eurodollar Loans may be converted into Base Rate Loans only on the last
day of an Interest Period applicable to the Loans being converted and no such
partial conversion of Eurodollar Loans shall reduce the outstanding principal
amount of such Eurodollar Loans made pursuant to a single Borrowing to less than
(x) in the case of Term Loans, $5,000,000 and (y) in the case of Revolving
Loans, $1,000,000, (ii) Base Rate Loans may only be converted into Eurodollar
Loans if no Default or Event of Default is in existence on the date of the
conversion, and (iii) no conversion pursuant to this Section 1.07 shall result
in a greater number of Eurodollar Borrowings than is permitted under Section
1.03. The Borrower shall also have the option at the end of any Interest Period
to continue all or a portion of any Eurodollar Loan for an additional Interest
Period. Each such conversion or continuation shall be effected by the Borrower
giving
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the Administrative Agent at its Notice Office prior to 12:00 Noon (New York
time) at least three Business Days' prior notice (each, a "Notice of
Conversion") specifying the Loans to be so converted or continued, the
Borrowing(s) pursuant to which such Loans were made and, if to be converted into
or continued as Eurodollar Loans, the Interest Period to be initially applicable
thereto. The Administrative Agent shall give each Bank prompt notice of any such
proposed conversion or continuation affecting any of its Loans; provided that
the failure of the Administrative Agent to give any such notice shall not affect
the rights or obligations of the Borrower hereunder.
1.08 Pro Rata Borrowings. All Borrowings of Tranche A Term Loans,
Tranche B Term Loans and Revolving Loans under this Agreement shall be incurred
from the Banks pro rata on the basis of their respective Tranche A Term Loan
Commitments, Tranche B Term Loan Commitments or Revolving Loan Commitments, as
the case may be. It is understood that no Bank shall be responsible for any
default by any other Bank of its obligation to make Loans hereunder and that
each Bank shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Bank to make its Loans
hereunder.
1.09 Interest. (a) The Borrower agrees to pay interest in respect of
the unpaid principal amount of each Base Rate Loan from the date the proceeds
thereof are made available to the Borrower until the earlier of (i) the maturity
(whether by acceleration or otherwise) of such Base Rate Loan and (ii) the
conversion of such Base Rate Loan to a Eurodollar Loan pursuant to Section 1.07,
at a rate per annum which shall be equal to the sum of the Applicable Base Rate
Margin plus the Base Rate in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan for each day of each Interest Period
applicable thereto, at a rate per annum equal to the sum of the Applicable
Eurodollar Margin plus the Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable hereunder
shall, in each case, bear interest until paid in full at a rate per annum equal
to the greater of (x) 2% per annum in excess of the rate otherwise applicable to
Base Rate Loans of the respective Tranche of Loans from time to time and (y) the
rate which is 2% in excess of the rate then borne by the respective Loans, in
each case with such interest to be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i) in
respect of each Base Rate Loan, quarterly in arrears on each Quarterly Payment
Date, (ii) in respect of each Eurodollar Loan, on the last day of each Interest
Period applicable thereto and, in the case of an Interest Period in excess of
three months, on each date occurring at three month intervals after the first
day of such Interest Period and (iii) in respect of each Loan, on any repayment
or prepayment (on the amount repaid or prepaid), upon conversion, at maturity
(whether by acceleration or otherwise) and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the Administrative Agent
shall determine the Eurodollar Rate for each Interest Period applicable to
Eurodollar Loans and shall
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promptly notify the Borrower and the applicable Banks thereof. Each such
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto.
(f) All computations of interest hereunder shall be made in accordance
with Section 13.07(b).
1.10 Interest Periods. At the time it gives any Notice of Borrowing
or Notice of Conversion in respect of the making of, or conversion into, any
Eurodollar Loan (in the case of the initial Interest Period applicable thereto)
or on the third Business Day prior to the expiration of an Interest Period
applicable to such Eurodollar Loan (in the case of any subsequent Interest
Period), the Borrower shall have the right to elect, by giving the
Administrative Agent notice thereof, the interest period (each, an "Interest
Period") applicable to such Eurodollar Loan, which Interest Period shall, at the
option of the Borrower, be a one, two, three or six-month period; provided that:
(i) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including
the date of any conversion thereto from a Loan of a different Type) and
each Interest Period occurring thereafter in respect of such Eurodollar
Loan shall commence on the day on which the next preceding Interest
Period applicable thereto expires;
(ii) if any Interest Period relating to a Eurodollar Loan
begins on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month;
(iii) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided, however, that if any Interest
Period for a Eurodollar Loan would otherwise expire on a day which is
not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
(iv) no Interest Period may be selected at any time when a
Default or Event of Default is then in existence;
(v) no Interest Period in respect of any Borrowing of any
Tranche of Loans shall be selected which extends beyond the respective
Maturity Date for such Tranche of Loans;
(vi) no Interest Period in respect of any Borrowing of Term
Loans shall be selected which extends beyond any date upon which a
mandatory repayment of such Term Loans will be required to be made
under Section 4.02(c) or (d), as the case may be, if the aggregate
principal amount of Term Loans which have Interest Periods which will
expire after such date will be in excess of the aggregate principal
amount of Term Loans then outstanding less the aggregate amount of such
required prepayment; and
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(vii) until the earlier to occur of (x) the 30th day following
the Effective Date or (y) the Syndication Date, no Interest Period
shall be greater than one month, with any subsequent Interest Periods
to begin on the last day of the prior one month Interest Period
theretofore in effect.
If upon the expiration of any Interest Period applicable to a Borrowing
of Eurodollar Loans, the Borrower has failed to elect, or is not permitted to
elect, a new Interest Period to be applicable to such Eurodollar Loans as
provided above, the Borrower shall be deemed to have elected to convert such
Eurodollar Loans into Base Rate Loans effective as of the expiration date of
such current Interest Period.
1.11 Increased Costs, Illegality, etc. (a) In the event that any Bank
shall have determined (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the
interbank Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in
the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs
or reductions in the amounts received or receivable hereunder with
respect to any Eurodollar Loan because of (x) any Change in Law since
the date of this Agreement, such as, for example, but not limited to:
(A) a change in Covered Taxes resulting from the payment to any Bank of
the principal of or interest such Eurodollar Loan or any other amounts
payable hereunder, but without duplication of any amounts payable in
respect of Taxes pursuant to Section 4.04(a), or (B) a change in
official reserve requirements, but, in all events, excluding reserves
required under Regulation D to the extent included in the computation
of the Eurodollar Rate and/or (y) other circumstances since the date of
this Agreement affecting such Bank or the interbank Eurodollar market
or the position of such Bank in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or governmental
rule, regulation or order, (y) impossible by compliance by any Bank in
good faith with any governmental request (whether or not having force
of law) or (z) impracticable as a result of a contingency occurring
after the date of this Agreement which materially and adversely affects
the interbank Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent, in the case
of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Banks). Thereafter (x) in the
case of clause (i) above, Eurodollar Loans shall no longer be available until
such time as the Administrative Agent notifies the Borrower and the Banks that
the circumstances giving
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rise to such notice by the Administrative Agent no longer exist, and any Notice
of Borrowing or Notice of Conversion given by the Borrower with respect to
Eurodollar Loans which have not yet been incurred (including by way of
conversion) shall at the option of the Borrower (i) be deemed rescinded by the
Borrower or (ii) be deemed to constitute a Notice of Borrowing or Notice of
Conversion to, as applicable, Base Rate Loans, (y) in the case of clause (ii)
above, the Borrower shall pay to such Bank, upon written demand therefor, such
additional amounts (in the form of an increased rate of, or a different method
of calculating, interest or otherwise as such Bank reasonably in its sole
discretion shall determine) as shall be required to compensate such Bank for
such increased costs or reductions in amounts received or receivable hereunder
(a written notice as to the additional amounts owed to such Bank, showing the
basis for the calculation thereof, submitted to the Borrower by such Bank in
good faith shall, absent manifest error, be final and conclusive and binding on
all the parties hereto) and (z) in the case of clause (iii) above, each
Eurodollar Loan of the affected Bank(s) shall be converted to a Base Rate Loan
either on the last day of the then current Interest Period or, if such Bank
shall determine that it may not lawfully maintain and fund such Eurodollar Loan
to such day, immediately. Each of the Administrative Agent and each Bank agrees
that if it gives notice to the Borrower of any of the events described in clause
(i) or (iii) above, it shall promptly notify the Borrower and, in the case of
any such Bank, the Administrative Agent, if such event ceases to exist. If any
such event described in clause (iii) above ceases to exist as to a Bank, the
obligations of such Bank to make Eurodollar Loans and to convert Base Rate Loans
into Eurodollar Loans on the terms and conditions contained herein shall be
reinstated.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.11(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.11(a)(iii) shall) either (x) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent telephonic notice (confirmed in
writing) on the same date that the Borrower was notified by the affected Bank
pursuant to Section 1.11(a)(ii) or (iii) or (y) if the affected Eurodollar Loan
is then outstanding, upon at least three Business Days' written notice to the
Administrative Agent, require the affected Bank to convert such Eurodollar Loan
into a Base Rate Loan; provided that, if more than one Bank is affected at any
time, then all affected Banks must be treated the same pursuant to this Section
1.11(b).
(c) If at any time after the Effective Date, any Bank determines that
the introduction of or any change in any applicable law or governmental rule,
regulation, order, guideline, directive or request (whether or not having the
force of law) concerning capital adequacy, or any change in interpretation or
administration thereof by any governmental authority, central bank or comparable
agency, will have the effect of increasing the amount of capital required or
expected to be maintained by such Bank or any corporation controlling such Bank
based on the existence of such Bank's Commitments hereunder or its obligations
hereunder, then the Borrower shall pay to such Bank, upon its written demand
therefor, such additional amounts as shall be required to compensate such Bank
or such other corporation for the increased cost to such Bank or such other
corporation or the reduction in the rate of return to such Bank or such other
corporation as a result of such increase of capital. Such Bank's reasonable good
faith determination of compensation owing under this Section 1.11(c) shall,
absent manifest error, be final and conclusive and binding on all the parties
hereto. Each Bank,
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upon determining that any additional amounts will be payable pursuant to this
Section 1.11(c), will give prompt written notice thereof to the Borrower, which
notice shall set forth the basis of the calculation of such additional amounts,
although the failure to give any such notice shall not release or diminish the
Borrower's obligations to pay additional amounts pursuant to this Section
1.11(c) upon the subsequent receipt of such notice.
1.12 Compensation. The Borrower shall compensate each Bank, upon its
written request (which request shall set forth the reason for requesting such
compensation), for all reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Bank to
fund its Eurodollar Loans but excluding any loss of anticipated margin or
profit) which such Bank may sustain: (i) if for any reason (other than a default
by such Bank) a Borrowing of, or conversion from or into, Eurodollar Loans does
not occur on a date specified therefor in a Notice of Borrowing or Notice of
Conversion (whether or not withdrawn by the Borrower or deemed withdrawn
pursuant to Section 1.11(a)); (ii) if any repayment (including any repayment
made pursuant to Section 4.02 or as a result of an acceleration of the Loans
pursuant to Section 10) or conversion of any of its Eurodollar Loans occurs on a
date which is not the last day of an Interest Period with respect thereto; (iii)
if any prepayment of any of its Eurodollar Loans is not made on any date
specified in a notice of prepayment given by the Borrower; or (iv) as a
consequence of (x) any other default by the Borrower to repay its Loans when
required by the terms of this Agreement or any Note held by such Bank or (y) any
election made pursuant to Section 1.11(b) or Section 1.14. Calculation of all
amounts payable to a Bank under this Section 1.12 shall be made as though that
Bank had actually funded its relevant Eurodollar Loan through the purchase of a
Eurodollar deposit bearing interest at the Eurodollar Rate in an amount equal to
the amount of that Loan, having maturity comparable to the relevant Interest
Period and through the transfer of such Eurodollar deposit from an offshore
office of that Bank to a domestic office of that Bank in the United States of
America; provided, however, that each Bank may fund each of its Eurodollar Loans
in any manner it sees fit and the foregoing assumption shall be utilized only
for the calculation of amounts payable under this Section 1.12.
1.13 Change of Lending Office. Each Bank agrees that on the occurrence
of any event giving rise to the operation of Section 1.11(a)(ii) or (iii),
Section 1.11(c), Section 2.05 or Section 4.04 with respect to such Bank, it
will, if requested by the Borrower, use reasonable good faith efforts (subject
to overall policy considerations of such Bank) to designate another lending
office for any Loans or Letters of Credit affected by such event; provided that
such designation is made on such terms that such Bank and its lending office
suffer no significant economic, legal or regulatory disadvantage, with the
object of avoiding the consequence of the event giving rise to the operation of
such Section. Nothing in this Section 1.13 shall affect or postpone any of the
obligations of the Borrower or the right of any Bank provided in Sections 1.11,
2.05 and 4.04.
1.14 Replacement of Banks. (x) If any Bank becomes a Defaulting Bank,
(y) upon the occurrence of any event giving rise to the operation of Section
1.11(a)(ii) or (iii), Section 1.11(c), Section 2.05 or Section 4.04 with respect
to any Bank which results in such Bank charging to the Borrower increased costs
in excess of those being generally charged by the other Banks or becoming
incapable of making Eurodollar Loans, or (z) as provided in Section
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13.12(b) in the case of certain refusals by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks, the Borrower shall
have the right, if no Default or Event of Default will exist immediately after
giving effect to the respective replacement, to replace such Bank (the "Replaced
Bank") with one or more other Eligible Transferee or Eligible Transferees, none
of whom shall constitute a Defaulting Bank at the time of such replacement,
reasonably acceptable to the Administrative Agent (collectively, the
"Replacement Bank"); provided that (i) at the time of any replacement pursuant
to this Section 1.14, the Replacement Bank shall enter into one or more
Assignment and Assumption Agreements pursuant to Section 13.04(b) (and with all
fees payable pursuant to said Section 13.04(b) to be paid by the Replacement
Bank) pursuant to which the Replacement Bank shall acquire all of the
Commitments and outstanding Loans of, and in each case participations in Letters
of Credit and Swingline Loans by, the Replaced Bank and, in connection
therewith, shall pay to (x) the Replaced Bank 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 Bank, (B) an amount equal to all
Unpaid Drawings and Swingline Loans that have been funded by (and not reimbursed
to) such Replaced Bank, 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 Bank pursuant to Section 3.01 and (y) BTCo an
amount equal to such Replaced Bank's Adjusted Percentage (for this purpose,
determined as if the adjustment described in clause (y) of the immediately
succeeding sentence had been made with respect to such Replaced Bank) of any
Unpaid Drawing (which at such time remains an Unpaid Drawing) or Swingline Loans
to the extent such amount was not theretofore funded by such Replaced Bank, and
(ii) all obligations of the Borrower owing to the Replaced Bank (other than
those specifically described in clause (i) above in respect of which the
assignment purchase price has been, or is concurrently being, paid, but
including all amounts, if any, owing under Section 1.12) shall be paid in full
to such Replaced Bank concurrently with such replacement. Upon the execution of
the respective Assignment and Assumption Agreements, the payment of amounts
referred to in clauses (i) and (ii) above and, if so requested by the
Replacement Bank, delivery to the Replacement Bank of the appropriate Note or
Notes executed by the Borrower, (x) the Replacement Bank shall become a Bank
hereunder and, unless the respective Replaced Bank continues to have outstanding
Term Loans hereunder, the Replaced Bank shall cease to constitute a Bank
hereunder, except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 1.11, 1.12, 2.05, 4.04, 13.01
and 13.06) and the other Credit Documents, which shall survive as to such
Replaced Bank and (y) the Adjusted Percentages of the Banks shall be
automatically adjusted at such time to give effect to such replacement (and to
give effect to the replacement of a Defaulting Bank with one or more
Non-Defaulting Banks).
SECTION 2. LETTERS OF CREDIT.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request that any Issuing Bank
issue, at any time and from time to time on and after the Effective Date and
prior to the Revolving Loan Maturity Date, for the account of the Borrower and
for the benefit of any holder (or any trustee, agent or other similar
representative for any such holders) of L/C Supportable Indebtedness of the
Borrower or any Subsidiary Guarantor (other than the Spinoff Guarantor), an
irrevocable standby letter of credit,
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in a form customarily used by such Issuing Bank or in such other form as has
been approved by such Issuing Bank (each such standby letter of credit, a
"Letter of Credit") in support of such L/C Supportable Indebtedness.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of the respective Letter of Credit) at such time, would
exceed either (x) $10,000,000 or (y) when added to the aggregate principal
amount of all Revolving Loans and Swingline Loans made by Non-Defaulting Banks
and then outstanding, an amount equal to the Adjusted Total Revolving Loan
Commitment at such time, (ii) each Letter of Credit shall by its terms terminate
on or before the date which occurs 12 months after the date of the issuance
thereof but not beyond the 10th Business Day prior to the Revolving Loan
Maturity Date (although any such Letter of Credit may be extendible for
successive periods of up to 12 months, but not beyond the 10th Business Day
prior to the Revolving Loan Maturity Date), on terms acceptable to the Issuing
Bank thereof) and (iii) each Letter of Credit shall be denominated in Dollars
and shall be issued on a sight basis.
(c) The letters of credit issued under the Existing Credit Agreement
that are outstanding on the Effective Date shall be deemed to be Letters of
Credit issued on the Effective Date.
2.02 Letter of Credit Requests. (a) Whenever the Borrower desires that
a Letter of Credit be issued for its account, the Borrower shall give the
Administrative Agent and the respective Issuing Bank at least two Business Days'
(or such shorter period as is acceptable to the respective Issuing Bank) written
notice thereof. Each notice shall be in the form of Exhibit C (each, a "Letter
of Credit Request").
(b) The making of each Letter of Credit Request shall be deemed to be
a representation and warranty by the Borrower that such Letter of Credit may be
issued in accordance with, and will not violate the requirements of, Section
2.01(b). Unless the respective Issuing Bank has received notice from any Bank
before it issues a Letter of Credit that one or more of the conditions specified
in Sections 5 or 6 are not then satisfied, or that the issuance of such Letter
of Credit would violate Section 2.01(b), then such Issuing Bank shall issue the
requested Letter of Credit for the account of the Borrower in accordance with
such Issuing Bank's usual and customary practices. Upon the issuance of any
Letter of Credit or any amendment thereto, the Issuing Bank shall promptly
notify the Borrower and Administrative Agent, in writing, of such issuance or
amendment, and such notice shall be accompanied by a copy of such issuance or
amendment. Upon receipt of such notice, the Administrative Agent shall notify
each Bank of such issuance or amendment.
2.03 Letter of Credit Participations. (a) Immediately upon the issuance
by any Issuing Bank of any Letter of Credit, such Issuing Bank shall be deemed
to have sold and transferred to each Bank with a Revolving Loan Commitment,
other than a Defaulting Bank or such Issuing Bank (each such Bank, in its
capacity under this Section 2.03, a "Participant"), and each such Participant
shall be deemed irrevocably and unconditionally to have purchased and received
from such Issuing Bank, without recourse or warranty, an undivided interest and
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participation, to the extent of such Participant's Adjusted Percentage, in such
Letter of Credit, each drawing made thereunder and the obligations of the
Borrower under this Agreement with respect thereto, and any security therefor or
guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments
or Adjusted Percentages of the Banks pursuant to Section 1.14 or 13.04 or as a
result of a Bank Default, it is hereby agreed that, with respect to all
outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic
adjustment to the participations pursuant to this Section 2.03 to reflect the
new Adjusted Percentages of the assignor and assignee Bank or of all Banks with
Revolving Loan Commitments (other than Defaulting Banks), as the case may be.
(b) In determining whether to pay under any Letter of Credit, such
Issuing Bank shall have no obligation relative to the other Banks other than to
confirm that any documents required to be delivered under such Letter of Credit
appear to have been delivered and that they appear to comply on their face with
the requirements of such Letter of Credit. Any action taken or omitted to be
taken by any Issuing Bank under or in connection with any Letter of Credit if
taken or omitted in the absence of gross negligence or willful misconduct, shall
not create for such Issuing Bank any resulting liability to the Borrower or any
Bank.
(c) In the event that any Issuing Bank makes any payment under any
Letter of Credit and the Borrower shall not have reimbursed such amount in full
to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall
promptly notify the Administrative Agent, which shall promptly notify each
Participant, of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Bank the amount of such Participant's
Adjusted Percentage of such unreimbursed payment in Dollars and in same day
funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York
time) on any Business Day, any Participant required to fund a payment under a
Letter of Credit, such Participant shall make available to such Issuing Bank in
Dollars such Participant's Adjusted Percentage of the amount of such payment on
such Business Day in same day funds. If and to the extent such Participant shall
not have so made its Adjusted Percentage of the amount of such payment available
to such Issuing Bank, such Participant agrees to pay to such Issuing Bank
forthwith on demand such amount, together with interest thereon, for each day
from such date until the date such amount is paid to such Issuing Bank at the
overnight Federal Funds Rate. The failure of any Participant to make available
to such Issuing Bank its Adjusted Percentage of any payment under any Letter of
Credit shall not relieve any other Participant of its obligation hereunder to
make available to such Issuing Bank its Adjusted Percentage of any Letter of
Credit on the date required, as specified above, but no Participant shall be
responsible for the failure of any other Participant to make available to such
Issuing Bank such other Participant's Adjusted Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement
obligation as to which it has received any payments from the Participants
pursuant to clause (c) above, such Issuing Bank shall pay to each Participant
which has paid its Adjusted Percentage thereof, an amount equal to such
Participant's share (based upon the proportionate aggregate amount originally
funded by such Participant to the aggregate amount funded by all Participants)
of the principal amount of such reimbursement obligation and interest thereon
accruing after the purchase of the respective participations.
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(e) Upon the request of any Participant, the Administrative Agent shall
furnish to such Participant copies of any Letter of Credit or amendment.
(f) The obligations of the Participants to make payments to each
Issuing Bank with respect to Letters of Credit issued by it shall be irrevocable
and not subject to any qualification or exception whatsoever and shall be made
in accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other
right which the Borrower or any of its Subsidiaries may have at any
time against a beneficiary named in a Letter of Credit, any transferee
of any Letter of Credit (or any Person for whom any such transferee may
be acting), the Administrative Agent, any Participant, or any other
Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Borrower
and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default unless
the Issuing Bank has received written notice from the Borrower or the
Required Banks stating that a Default or an Event of Default exists
prior to the issuance of a Letter of Credit.
2.04 Agreement to Repay Letter of Credit Payments. (a) The Borrower
hereby agrees to reimburse the respective Issuing Bank, by making payment to the
Administrative Agent in immediately available funds at the Payment Office, for
any payment or disbursement made by it under any Letter of Credit (each such
amount, so paid until reimbursed, an "Unpaid Drawing"), no later than one
Business Day after the date of such payment or disbursement, with interest on
the amount so paid or disbursed by such Issuing Bank, to the extent not
reimbursed prior to 12:00 Noon (New York time) on the date of such payment or
disbursement, from and including the date paid or disbursed to but excluding the
date such Issuing Bank was reimbursed by the Borrower therefor at a rate per
annum which shall be the Base Rate in effect from time to time plus the
Applicable Base Rate Margin for Revolving Loans; provided, however, to the
extent such amounts are not reimbursed prior to 12:00 Noon (New York time) on
the third Business Day following such payment or disbursement, interest shall
thereafter accrue on the amounts so paid or disbursed by such Issuing Bank (and
until reimbursed by the Borrower) at a rate per annum which shall be the Base
Rate in effect from time to time plus the Applicable Base Rate Margin plus 2%,
in each such case, with interest to be payable on demand. The respective
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Issuing Bank shall give the Borrower prompt notice of each Drawing under any
Letter of Credit; provided that the failure to give any such notice shall in no
way affect, impair or diminish the Borrower's obligations hereunder.
(b) The obligations of the Borrower under this Section 2.04 to
reimburse the respective Issuing Bank with respect to drawings on Letters of
Credit (each, a "Drawing") (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of
any set-off, counterclaim or defense to payment which the Borrower may have or
have had against any Bank (including in its capacity as issuer of the Letter of
Credit or as Participant), or any nonapplication or misapplication by the
beneficiary of the proceeds of such Drawing, the respective Issuing Bank's only
obligation to the Borrower being to confirm that any documents required to be
delivered under such Letter of Credit appear to have been delivered and that
they appear to comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by any Issuing Bank under or in
connection with any Letter of Credit if taken or omitted in the absence of gross
negligence or willful misconduct, as determined by a court of competent
jurisdiction, shall not create for such Issuing Bank any resulting liability to
the Borrower.
2.05 Increased Costs. If at any time after the Effective Date, any
Change in Law by any Governmental Authority charged with the interpretation or
administration thereof, or compliance by any Issuing Bank or any Participant
with any request or directive by any such authority (whether or not having the
force of law), or any change in GAAP, shall either (i) impose, modify or make
applicable any reserve, deposit, capital adequacy or similar requirement against
letters of credit issued by any Issuing Bank or participated in by any
Participant, or (ii) impose on any Issuing Bank or any Participant any other
conditions relating, directly or indirectly, to this Agreement or any Letter of
Credit; and the result of any of the foregoing is to increase the cost to any
Issuing Bank or any Participant of issuing, maintaining or participating in any
Letter of Credit, or reduce the amount of any sum received or receivable by any
Issuing Bank or any Participant hereunder or reduce the rate of return on its
capital with respect to Letters of Credit, but without duplication of any
amounts payable in respect of taxes pursuant to Section 4.04(a), then, upon
demand to the Borrower by such Issuing Bank or any Participant (a copy of which
demand shall be sent by such Issuing Bank or such Participant to the
Administrative Agent), the Borrower shall pay to such Issuing Bank or such
Participant such additional amount or amounts as will compensate such Bank for
such increased cost or reduction in the amount receivable or reduction on the
rate of return on its capital. Any Issuing Bank or any Participant, upon
determining that any additional amounts will be payable pursuant to this Section
2.05, will give prompt written notice thereof to the Borrower, which notice
shall include a certificate submitted to the Borrower by such Issuing Bank or
such Participant (a copy of which certificate shall be sent by such Issuing Bank
or such Participant to the Administrative Agent), setting forth in reasonable
detail the basis for the calculation of such additional amount or amounts
necessary to compensate such Issuing Bank or such Participant. The certificate
required to be delivered pursuant to this Section 2.05 shall, if delivered in
good faith and absent manifest error, be final and conclusive and binding on the
Borrower.
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SECTION 3. COMMITMENT COMMISSION; FEES; REDUCTIONS OF COMMITMENT.
3.01 Fees. (a) The Borrower agrees to pay the Administrative Agent
for distribution to each Non-Defaulting Bank with a Revolving Loan Commitment a
commitment commission (the "Commitment Commission") for the period from the
Effective Date (or in the case of a New Bank, the date as of which such New Bank
incurs a Revolving Loan Commitment) to and including the Revolving Loan Maturity
Date (or such earlier date as the Total Revolving Loan Commitment shall have
been terminated), computed at a rate equal to the Applicable Percentage on the
daily Unutilized Revolving Loan Commitment of such Non-Defaulting Bank. Accrued
Commitment Commission shall be due and payable quarterly in arrears on each
Quarterly Payment Date and on the Revolving Loan Maturity Date or such earlier
date upon which the Total Revolving Loan Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent for
distribution to each Non-Defaulting Bank with a Revolving Loan Commitment (based
on their respective Adjusted Percentages) a fee in respect of each Letter of
Credit issued hereunder (the "Letter of Credit Fee"), for the period from and
including the date of issuance of such Letter of Credit to and including the
termination of such Letter of Credit, computed at a rate per annum equal to the
Applicable Eurodollar Margin for Revolving Loans as in effect from time to time
on the daily Stated Amount of such Letters of Credit. Accrued Letter of Credit
Fees shall be due and payable quarterly in arrears on each Quarterly Payment
Date and upon the first day on or after the termination of the Total Revolving
Loan Commitment upon which no Letters of Credit remain outstanding.
(c) The Borrower agrees to pay to the respective Issuing Bank, for its
own account, a facing fee in respect of each Letter of Credit issued for its
account hereunder (the "Facing Fee") for the period from and including the date
of issuance of such Letter of Credit to and including the termination of such
Letter of Credit, computed at a rate equal to 1/4 of 1% per annum of the daily
Stated Amount of such Letter of Credit; provided that in no event shall the
annual Facing Fee with respect to each Letter of Credit be less than $500.
Accrued Facing Fees shall be due and payable quarterly in arrears on each
Quarterly Payment Date and on the date upon which the Total Revolving Loan
Commitment has been terminated and such Letter of Credit has been terminated in
accordance with its terms.
(d) The Borrower shall pay, upon each drawing under, issuance of, or
amendment to, any Letter of Credit, such amounts as shall at the time of such
event be the administrative charge and the reasonable expenses which the
respective Issuing Bank is generally imposing in connection with such occurrence
with respect to letters of credit.
(e) The Borrower shall pay to each of the Agents, for their own
respective accounts, such other fees as have been agreed to in writing by the
Borrower and such Agent, in each case, when and as due.
(f) All computations of fees hereunder shall be made in accordance with
Section 13.07(b).
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3.02 Voluntary Termination of Unutilized Commitments. (a) Upon at
least three Business Days' prior notice to the Administrative Agent at its
Notice Office (which notice the Administrative Agent shall promptly transmit to
each of the Banks), the Borrower shall have the right, at any time or from time
to time, without premium or penalty, to terminate the Total Unutilized Revolving
Loan Commitment, in whole or in part, in integral multiples of $1,000,000 in the
case of partial reductions to the Total Unutilized Revolving Loan Commitments;
provided that (i) each such reduction shall apply proportionately to permanently
reduce pro rata the Revolving Loan Commitment of each Bank with such a
Commitment and (ii) the reduction to the Total Unutilized Revolving Loan
Commitments shall in no case be in an amount which would cause the applicable
Revolving Loan Commitment of any Bank to be reduced (as required by preceding
clause (i)) by an amount which exceeds the applicable Total Unutilized Revolving
Loan Commitments of such Bank as in effect immediately before giving effect to
such reduction.
(b) In the event of certain refusals by a Bank as provided in Section
13.12(b) to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Banks, and subject to obtaining the consents required by Section
13.12(b), the Borrower may, upon five Business Days' written notice to the
Administrative Agent at its Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the Banks) terminate all of the Revolving
Loan Commitments of such Bank so long as all Loans, together with accrued and
unpaid interest, Fees and all other amounts, owing to such Bank (other than
amounts owing in respect of the Term Loans maintained by such Bank, if such
Loans are not being repaid pursuant to Section 13.12(b)) are repaid concurrently
with the effectiveness of such termination (at which time Annex I shall be
deemed modified to reflect such changed amounts), and at such time, unless the
respective Bank continues to have outstanding Loans and/or commitments
hereunder, such Bank shall no longer constitute a "Bank" for purposes of this
Agreement, except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 1.11, 1.12, 2.05, 4.04, 13.01
and 13.06) and the other Credit Documents, which shall survive as to such repaid
Bank.
3.03 Mandatory Reduction of Commitments. (a) In addition to any other
mandatory commitment reductions pursuant to this Section 3.03, the Total Tranche
A Term Loan Commitment (and the Tranche A Term Loan Commitment of each Bank)
shall terminate in its entirety on the Effective Date (after giving effect to
the making of the Tranche A Term Loans on such date).
(b) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Tranche B Term Loan Commitment (and the Tranche
B Term Loan Commitment of each Bank) shall terminate in its entirety on the
Effective Date (after giving effect to the making of the Tranche B Term Loans on
such date).
(c) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment (and the applicable
Revolving Loan Commitment of each Bank) shall terminate in its entirety on the
Revolving Loan Maturity Date.
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(d) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Swingline Commitment shall terminate in its entirety
on the Swingline Expiry Date.
SECTION 4. PREPAYMENTS; PAYMENTS; TAXES.
4.01 Voluntary Prepayments. (a) The Borrower shall have the right to
prepay the Loans, without premium or penalty, in whole or in part at any time
and from time to time on the following terms and conditions: (i) the Borrower
shall give the Administrative Agent prior to 12:00 Noon (New York time) at its
Notice Office (x) at least one Business Day prior to the date that a prepayment
of Base Rate Loans is to be made prior written notice (or telephonic notice
promptly confirmed in writing) of its intent to prepay Base Rate Loans, (y) at
least three Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) of its intent to prepay Eurodollar Loans, whether Term
Loans, Revolving Loans or Swingline Loans shall be prepaid, and (z) on the same
day that a prepayment of Swingline Loans is to be made prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay
Swingline Loans, the amount of such prepayment and the Types of Loans to be
prepaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings pursuant to which made, which notice, except in the case of Swingline
Loans, the Administrative Agent shall promptly transmit to each of the Banks;
(ii) each prepayment shall be in an aggregate principal amount of at least (x)
$1,000,000 (or, if less, the full amount of such outstanding Loans) in the case
of Term Loans, (y) $250,000 (or, if less, the full amount of such outstanding
Loans) in the case of Revolving Loans or (z) $100,000 (or, if less, the full
amount of Swingline Loans then outstanding) in the case of Swingline Loans;
provided that if any partial prepayment of Eurodollar Loans made pursuant to any
Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to such
Borrowing to an amount less than (1) in the case of Term Loans, $5,000,000 and
(2) in the case of Revolving Loans, $1,000,000, then such Borrowing may not be
continued as a Borrowing of Eurodollar Loans and any election of an Interest
Period with respect thereto given by the Borrower shall have no force or effect;
(iii) prepayments of Eurodollar Loans made pursuant to this Section 4.01 on any
day other than the last day of an Interest Period applicable thereto shall be
accompanied by the amounts required under Section 1.12; (iv) each prepayment in
respect of any Term Loans made pursuant to a Borrowing shall, except as set
forth below, be applied pro rata among such Term Loans; and (v) in the event of
certain refusals by a Bank as provided in Section 13.12(b) to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks, the Borrower may, upon
five (5) Business Days' written notice to the Administrative Agent at its Notice
Office (which notice, except in the case of Swingline Loans, the Administrative
Agent shall promptly transmit to each of the Banks) repay all Loans, together
with accrued and unpaid interest, Fees, and other amounts owing to such Bank (or
owing to such Bank with respect to each Tranche which gave rise to the need to
obtain such Bank's individual consent) in accordance with said Section 13.12(b)
so long as (A) in the case of the repayment of Revolving Loans for any Bank
pursuant to this clause (v) the Revolving Loan Commitment of such Bank is
terminated concurrently with such repayment, and (B) the consents required by
Section 13.12(b) in connection with the repayment pursuant to this clause (v)
have been obtained; provided that at the Borrower's election (and with the
consent of the Administrative Agent, unless the Administrative Agent is the
Defaulting Bank) in connection with any
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prepayment of Revolving Loans pursuant to this Section 4.01, such prepayment
shall not be applied to any Revolving Loan of a Defaulting Bank. Each prepayment
of principal of Term Loans pursuant to this Section 4.01 shall be applied to
reduce, in order of maturity for Scheduled Repayments, the Scheduled Repayments
remaining for the next succeeding 12 months (as of the date of such prepayment)
of such Term Loans and thereafter, to the then remaining Scheduled Repayments of
such Term Loans pro rata based upon the then remaining principal amount of each
Scheduled Repayment.
(b) Notwithstanding anything to the contrary contained above in this
Section 4.01, with respect to any voluntary prepayments of Loans if, on or prior
to the date the Administrative Agent receives notice from the Borrower that the
respective voluntary prepayment is made pursuant to this Section 4.01, there is
an outstanding principal amount of Tranche A Term Loans and the Borrower has
elected, in its sole discretion, to provide the Banks with a Tranche B Term Loan
with the option to waive such Bank's right to receive any such voluntary
prepayment in whole or in part, then the Administrative Agent shall notify the
Banks of such notice and the amount of the prepayment to be applied to each such
Banks' Tranche B Term Loan. In the event any such Bank with a Tranche B Term
Loan has been provided by the Borrower with the option to waive and such Bank
desires to waive its right to receive any such voluntary prepayment in whole or
in part, such Bank shall so advise the Administrative Agent no later than 5:00
P.M. (New York time) three Business Days after the date such notice of
prepayment is delivered by the Borrower to the Administrative Agent, which
notice shall also include the amount the Bank desires to receive. If the Bank
does not reply to the Administrative Agent within such three Business Day
period, it will be deemed acceptance of the total payment. If the Bank does not
specify an amount it wishes to receive, it will be deemed acceptance of 100% of
the total payment. In the event that any such Bank waives such Bank's right to
any such voluntary prepayment, the Administrative Agent shall apply 100% of the
amount so waived by such Bank to prepay the Tranche A Term Loans in accordance
with Section 4.01(a). The amount of the respective voluntary prepayment shall be
forwarded to the Administrative Agent on the date the voluntary prepayment would
otherwise be made pursuant to the relevant provisions of this Section 4.01 (and
the Administrative Agent shall make any necessary adjustments and distribute
such funds on a pro rata basis to the Banks with Tranche A Term Loans at minimum
cost to the Borrower, to be applied to the Obligations, but only to the extent
Banks with Tranche B Term Loans waive their right to receive their share of the
voluntary prepayment) and the respective voluntary prepayment shall not be made
until the third Business Day occurring after the date of the notice of
prepayment by the Borrower referred to above. Notwithstanding anything to the
contrary contained above, if one or more Banks waive their right to receive all
or any part of any voluntary prepayment, but less than all the Banks holding
Tranche B Term Loans waive in full their right to receive 100% of the total
payment otherwise required with respect to the Tranche B Term Loans, then of the
amount actually applied to the prepayment of Tranche B Term Loans of Banks which
have waived in part, but not in full, their right to receive 100% of such
repayment, such amount shall be applied to each then outstanding Borrowing of
Tranche B Term Loans on a pro rata basis (so that each Bank holding Tranche B
Term Loans shall, after giving effect to the application of the respective
prepayment, maintain the same percentage (as determined for such Bank, but not
necessarily the same percentage as the other Banks hold and not the same
percentage held by such Bank prior to repayment) of each
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Borrowing of Tranche B Term Loans which remains outstanding after giving effect
to such application).
4.02 Mandatory Repayments and Commitment Reductions. (a) On any day
on which the sum of (i) the aggregate outstanding principal amount of Revolving
Loans and Swingline Loans (after giving effect to all other repayments thereof
on such date) made by Non-Defaulting Banks plus (ii) the Letter of Credit
Outstanding as then in effect exceeds the Adjusted Total Revolving Loan
Commitment as then in effect, the Borrower shall prepay on such date the
principal of Swingline Loans and, if no Swingline Loans are or remain
outstanding, Revolving Loans of Non-Defaulting Banks in an amount equal to such
excess. If, after giving effect to the prepayment of all outstanding Swingline
Loans and Revolving Loans of Non-Defaulting Banks, the aggregate amount of the
Letter of Credit Outstandings exceeds the Adjusted Total Revolving Loan
Commitment as then in effect, the Borrower shall pay to the Administrative Agent
at the Payment Office on such date an amount of cash or Cash Equivalents equal
to the amount of such excess (up to a maximum amount equal to the Letter of
Credit Outstandings at such time), such cash or Cash Equivalents to be held as
security for all obligations of the Borrower to Non-Defaulting Banks hereunder
in a cash collateral account to be established by the Administrative Agent.
(b) On any day on which the aggregate outstanding principal amount of
the Revolving Loans made by any Defaulting Bank exceeds the Revolving Loan
Commitment of such Defaulting Bank, the Borrower shall upon prior written notice
from such Defaulting Bank prepay principal of Revolving Loans of such Defaulting
Bank in an amount equal to such excess.
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Borrower shall be required to repay that principal amount of Tranche A Term
Loans, to the extent then outstanding, as is set forth opposite such date (each
such repayment, as the same may be reduced as provided in Sections 4.01 and
4.02, a "Tranche A Term Loan Scheduled Repayment," and each such date, a
"Tranche A Term Loan Scheduled Repayment Date"):
Tranche A Term Loan Scheduled Repayment Date Amount
-------------------------------------------- ------
Quarterly Payment Date in March 2003 1,250,000.00
Quarterly Payment Date in June 2003 1,250,000.00
Quarterly Payment Date in September 2003 1,250,000.00
Quarterly Payment Date in December 2003 1,250,000.00
Quarterly Payment Date in March 2004 1,250,000.00
Quarterly Payment Date in June 2004 1,250,000.00
Quarterly Payment Date in September 2004 1,250,000.00
Quarterly Payment Date in December 2004 1,250,000.00
Quarterly Payment Date in March 2005 1,250,000.00
Quarterly Payment Date in June 2005 1,250,000.00
Quarterly Payment Date in September 2005 1,250,000.00
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Tranche A Term Loan Scheduled Repayment Date Amount
-------------------------------------------- ------
Quarterly Payment Date in December 2005 1,250,000.00
Quarterly Payment Date in March 2006 1,875,000.00
Quarterly Payment Date in June 2006 1,875,000.00
Quarterly Payment Date in September 2006 1,875,000.00
Quarterly Payment Date in December 2006 1,875,000.00
Quarterly Payment Date in March 2007 1,875,000.00
Quarterly Payment Date in June 2007 1,875,000.00
Quarterly Payment Date in September 2007 1,875,000.00
Quarterly Payment Date in December 2007 0.00
Tranche A Term Loan Maturity Date 1,875,000.00
(d) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Borrower shall be required to repay that principal amount of Tranche B Term
Loans, to the extent then outstanding, as is set forth opposite such date (each
such repayment, as the same may be reduced as provided in Sections 4.01 and
4.02, a "Tranche B Term Loan Scheduled Repayment," and each such date, a
"Tranche B Term Loan Scheduled Repayment Date"):
Tranche B Term Loan Scheduled Repayment Date Amount
-------------------------------------------- ------
Quarterly Payment Date in June 2002 1,250,000.00
Quarterly Payment Date in December 2002 1,250,000.00
Quarterly Payment Date in June 2003 1,250,000.00
Quarterly Payment Date in December 2003 1,250,000.00
Quarterly Payment Date in June 2004 1,250,000.00
Quarterly Payment Date in December 2004 1,250,000.00
Quarterly Payment Date in June 2005 1,250,000.00
Quarterly Payment Date in December 2005 1,250,000.00
Quarterly Payment Date in June 2006 1,250,000.00
Quarterly Payment Date in December 2006 1,250,000.00
Quarterly Payment Date in June 2007 6,250,000.00
Quarterly Payment Date in December 2007 6,250,000.00
Quarterly Payment Date in June 2008 6,250,000.00
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Quarterly Payment Date in December 2008 6,250,000.00
Tranche B Term Loan Maturity Date 212,500,000.00
(e) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the Effective Date
upon which the Spinoff Guarantor, the Borrower or any of its Subsidiaries
receives any proceeds from any incurrence by the Spinoff Guarantor, the Borrower
or any of its Subsidiaries of Indebtedness (other than Indebtedness permitted to
be incurred in accordance with clauses (a) through (g) and (i) through (m) of
Section 9.04), an amount equal to 100% of the cash proceeds (net of underwriting
discounts and commissions and other costs associated therewith including,
without limitation, legal and other professional fees and expenses) of the
respective incurrence of Indebtedness shall be applied as a mandatory repayment
of principal of outstanding Term Loans in accordance with the requirements of
Sections 4.02(k), (l) and (m); provided that, in addition to the exceptions set
forth above, so long as no Default or Event of Default then exists, the proceeds
of any Indebtedness incurred in accordance with Section 9.04(h) shall not be
required to be so applied on such date to the extent that such proceeds are used
to (x) consummate a Permitted Acquisition within 90 days after the receipt of
such proceeds, (y) refinance Indebtedness previously incurred in accordance with
Section 9.04(h) or (z) repay outstanding Revolving Loans in an amount equal to
the lesser of (I) the amount of cash consideration paid or payable in respect of
all Permitted Acquisitions consummated since the Effective Date minus the amount
of Indebtedness incurred in accordance with Section 9.04(h) to effect such
Permitted Acquisitions and (II) the aggregate amount of Revolving Loans
outstanding on the date of the incurrence of such Indebtedness.
(f) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the Effective Date
upon which the Borrower or any of its Subsidiaries receives proceeds (including
all Release Payments) from any sale of assets (including capital stock and
securities held thereby and the capital stock and/or assets of the Spinoff
Guarantor prior to the Spinoff Guarantor Release Event, but excluding (i) sales
or transfers of inventory or equipment in the ordinary course of business
(including, without limitation, sales or transfers of inventory or equipment to
Subsidiaries), (ii) the sale or other disposition of obsolete equipment or
inventory, (iii) the sale of overdue receivables or liquidation or sale of Cash
Equivalents in the ordinary course of business, (iv) sales of assets between the
Borrower and Subsidiary Guarantors and/or sales of assets between Subsidiary
Guarantors and (v) sales or transfers of assets up to an aggregate amount of
$1,000,000 in any fiscal year, in each case to the extent permitted by Section
9.02) an amount equal to 100% of the Net Sale Proceeds therefrom shall be
applied as a mandatory repayment of principal of outstanding Term Loans in
accordance with the requirements of Sections 4.02(k), (l) and (m); provided
that, in addition to the exceptions set forth above, so long as no Default or
Event of Default then exists, (x) up to an aggregate of $15,000,000 of Net Sale
Proceeds (other than in respect of any Release Payments) in any fiscal year
shall not be required to be so applied on the date of receipt thereof to the
extent that the Borrower has delivered a certificate to the Administrative Agent
within 15 days following such date stating that such Net Sale Proceeds shall be
reinvested or shall be committed to be reinvested in the Business within 180
days following such date (and to the extent the asset sold constituted
Collateral, the assets in which such Net Sales Proceeds are reinvested shall be
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pledged as Collateral pursuant to the appropriate Security Documents); and
provided, further, that if all or any portion of such Net Sale Proceeds not
required to be applied to the repayment of Term Loans pursuant to the preceding
proviso are either (a) not so used or committed to be so used within 180 days
after the date of receipt of such Net Sale Proceeds or (b) if committed to be so
used within 180 days after the date of receipt of such Net Sale Proceeds and not
so used within 270 days after the date of receipt of such Net Sale Proceeds,
then, in either such case, such remaining portion not used or committed to be
used in the case of the preceding clause (a) and not used in the case of the
preceding clause (b) shall be applied on the date which is 180 days after the
date of receipt of such Net Sale Proceeds in the case of clause (a) above or the
date occurring 270 days after the date of receipt of such Net Sale Proceeds in
the case of clause (b) above as a mandatory repayment of principal of
outstanding Term Loans in accordance with the requirements of Sections 4.02(k),
(l) and (m); and (y) any amount of Net Cash Proceeds in excess of any Release
Payments received in connection with the Spinoff Guarantor Release Event shall
not be required to be so applied.
(g) In addition to any other mandatory repayments pursuant to this
Section 4.02, on the date on which the Spinoff Guarantor, the Borrower or any of
the Borrower's Subsidiaries receives any cash payments (net of any reasonable
costs associated therewith, including income, excise and other taxes payable
thereon) from any return of surplus assets from any Pension Plan in an amount
equal to 100% of such net amount shall be applied as a mandatory repayment of
principal of outstanding Term Loans in accordance with the requirements of
Sections 4.02(k), (l) and (m).
(h) In addition to any other mandatory repayments pursuant to this
Section 4.02, on each Excess Cash Payment Date, an amount, if positive, equal to
50% of Excess Cash Flow for the relevant Excess Cash Payment Period shall be
applied as a mandatory repayment of principal of outstanding Term Loans in
accordance with the requirements of Sections 4.02(k), (l) and (m).
(i) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within 10 days following each date
after the Effective Date on which Holdings or any of its Subsidiaries receives
any proceeds from any Recovery Event, an amount equal to 100% of the net
proceeds of such Recovery Event (net of reasonable costs and taxes incurred in
connection with such Recovery Event including any amounts paid by the Borrower
in connection with self-insurance payments or obligations but excluding proceeds
of business interruption insurance) shall be applied as a mandatory repayment of
principal of outstanding Term Loans in accordance with the requirements of
Sections 4.02(k) and (l); provided that (x) so long as no Default or Event of
Default then exists and such proceeds do not exceed $5,000,000, such proceeds
shall not be required to be so applied on such date to the extent that the
Borrower has delivered a certificate to the Administrative Agent on or prior to
such date stating that such proceeds shall be used to replace or restore any
properties or assets in respect of which such proceeds were paid within 180 days
following the date of such Recovery Event (which certificate shall set forth the
estimates of the proceeds to be so expended) and (y) so long as no Default or
Event of Default then exists and to the extent that (a) the amount of such
proceeds exceeds $5,000,000, (b) the amount of such proceeds is at least equal
to 90% of the cost of replacement or restoration of the properties or assets in
respect of which such
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proceeds were paid as determined by the Borrower and as supported by such
estimates or bids from contractors or subcontractors or such other supporting
information as the Administrative Agent may reasonably request, and (c) the
Borrower has delivered to the Administrative Agent a certificate on or prior to
the date the application would otherwise be required pursuant to this Section
4.02(i) in the form described in clause (x) above and also certifying its
determination as required by preceding clause (b), then the entire amount and
not just the portion in excess of $5,000,000 shall be deposited with the
Administrative Agent pursuant to a cash collateral arrangement satisfactory to
the Administrative Agent whereby such proceeds shall be disbursed to the
Borrower from time to time as needed to pay actual costs incurred by it in
connection with the replacement or restoration of the respective properties or
assets (pursuant to such certification requirements as may be established by the
Administrative Agent); provided, further, that at any time while an Event of
Default has occurred and is continuing (other than an Event of Default existing
solely as a result of the violation of any or all of Sections 9.08, 9.09 and
9.10, but in each case only if, and to the extent, that the violation of said
covenant has occurred as a result of the underlying event giving rise to the
Recovery Event), the Required Banks may direct the Administrative Agent (in
which case the Administrative Agent shall, and is hereby authorized by the
Borrower to, follow said directions) to apply any or all proceeds then on
deposit in such collateral account to the repayment of Obligations hereunder in
the same manner as proceeds would be applied pursuant to Section 7.4 of the
Security Agreement; and provided, further, that if all or any portion of such
proceeds not required to be applied to the repayment of Term Loans pursuant to
the second preceding proviso (whether pursuant to clause (x) or (y) thereof) are
either (A) not so used or committed to be so used within 180 days after the date
of the respective Recovery Event or (B) if committed to be used within 180 days
after the date of receipt of such proceeds and not so used within 270 days after
the date of the respective Recovery Event, then, in either such case, such
remaining portion not used or committed to be used in the case of preceding
clause (A) and not used in the case of preceding clause (B) shall be applied on
the date which is 270 days after the date of the receipt of proceeds from the
respective Recovery Event in the case of clause (A) above or the date occurring
270 days after the date of the receipt of proceeds from the respective Recovery
Event in the case of clause (B) above as a mandatory repayment of principal of
outstanding Term Loans in accordance with the requirements of Sections 4.02(k),
(l) and (m).
(j) In addition to any other mandatory repayments pursuant to this
Section 4.02, on each date after the Effective Date upon which any of the
Borrower or any of its Subsidiaries receives any proceeds in cash or Cash
Equivalents (other than any Release Payments) from any capital contribution or
sale or issuance of its equity from any Person (other than (x) Holdings to the
extent such proceeds are from a capital contribution from or sale or issuance of
Holdings equity to GTCR or (y) Borrower or its Subsidiaries), an amount equal to
50% of the net proceeds (net of underwriting discounts and commissions and other
costs associated therewith including, without limitation, legal and other
professional fees and expenses) of such capital contribution or sale or issuance
of its equity shall be applied as a mandatory repayment of principal of
outstanding Term Loans in accordance with the requirements of Section 4.02(k),
(l) and (m); provided that, in addition to the exceptions set forth above, so
long as no Default or Event of Default then exists, the proceeds from any
capital contribution or sale or issuance of such equity shall not be required to
be so applied on such date to the extent that such proceeds are used to
consummate a Permitted Acquisition.
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(k) Each amount required to be applied to Term Loans (or to the Total
Term Loan Commitment) pursuant to Sections 4.02(e), (f), (g), (h), (i) and (j)
shall be applied pro rata to each Tranche of Term Loans (with each Tranche of
Term Loans to be allocated that percentage of the amount to be applied as is
equal to a fraction (expressed as a percentage) the numerator of which is the
then outstanding principal amount of such Tranche of Term Loans and the
denominator of which is equal to the then outstanding principal amount of all
Term Loans). Any amount required to be applied to either Tranche of Term Loans
pursuant to Sections 4.02(e), (f), (g), (h), (i) and (j) shall be applied to
repay the outstanding principal amount of Term Loans of the respective Tranche
then outstanding and, if no Term Loans remain outstanding, all such amounts
shall be applied to repay outstanding borrowings under the Revolving Loans. The
amount of each principal repayment of Term Loans (and the amount of each
reduction to the Term Loan Commitments) made as required by Section 4.02(e),
(f), (g), (h), (i) and (j) shall be applied to reduce the then remaining
Scheduled Repayments of the respective Tranche pro rata based upon the then
remaining principal amount of each Scheduled Repayment.
(l) With respect to each repayment of Loans required by this Section
4.02, the Borrower may designate the Types of Loans of the respective Tranche
which are to be repaid and, in the case of Eurodollar Loans, the specific
Borrowing or Borrowings of the respective Tranche pursuant to which made;
provided that (i) repayments of Eurodollar Loans pursuant to this Section 4.02
may only be made on the last day of an Interest Period applicable thereto unless
all Eurodollar Loans of the respective Tranche with Interest Periods ending on
such date of required repayment and all Base Rate Loans of the respective
Tranche have been paid in full; (ii) if any repayment of Eurodollar Loans made
pursuant to a single Borrowing shall reduce the outstanding Eurodollar Loans
made pursuant to such Borrowing to an amount less than (x) in the case of Term
Loans, $5,000,000 and (y) in the case of Revolving Loans, $1,000,000, such
Borrowing shall be converted at the end of the then current Interest Period into
a Borrowing of Base Rate Loans; and (iii) each repayment of any Loans made
pursuant to a Borrowing shall be applied pro rata among such Loans. In the
absence of a designation by the Borrower as described in the preceding sentence,
the Administrative Agent shall, subject to the above, make such designation in
its sole discretion.
(m) Notwithstanding anything to the contrary contained above in this
Section 4.02, with respect to any mandatory repayments of Tranche B Term Loans
(excluding Tranche B Term Loan Scheduled Repayments) otherwise required above
pursuant to this Section 4.02, if on or prior to the date the Administrative
Agent receives notice from the Borrower that the respective mandatory repayment
is otherwise required to be made pursuant to this Section 4.02, there is an
outstanding principal amount of Tranche A Term Loans, then the Administrative
Agent shall notify such Banks of such notice and the amount of the repayment to
be applied to each such Bank's Tranche B Term Loan. In the event any such Bank
with a Tranche B Term Loan has been provided by the Borrower with the option to
waive and such Bank desires to waive its right to receive any such mandatory
repayment in whole or in part, such Bank shall so advise the Administrative
Agent no later than 5:00 P.M. (New York time) three Business Days after the date
such notice of prepayment is delivered by the Borrower to the Administrative
Agent, which notice shall also include the amount the Bank desires to receive.
If the Bank does not reply to the Administrative Agent within such three
Business Day period, it will be deemed acceptance of the total payment. If the
Bank does not specify an amount it wishes to receive, it
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will be deemed acceptance of 100% of the total payment. In the event that any
such Bank waives such Bank's right to any such mandatory repayment, the
Administrative Agent shall apply 100% of the amount so waived by such Bank to
prepay the Tranche A Term Loans in accordance with Sections 4.02(k) and (l). The
amount of the respective mandatory repayment shall be forwarded to the
Administrative Agent on the date the mandatory repayment would otherwise be
required pursuant to the relevant provisions of this Section 4.02 (and the
Administrative Agent shall make any necessary adjustments and distribute such
funds on a pro rata basis to the Banks with Tranche A Term Loans, at minimum
cost to the Borrower, to be applied to the Obligations, but only to the extent
Banks with Tranche B Term Loans waive their right to receive their share of the
mandatory repayment) and the respective mandatory repayment shall not be
required to be made until the third Business Day occurring after the date of the
notice of prepayment by the Borrower referred to above. Notwithstanding anything
to the contrary contained above, if one or more Banks waive their right to
receive all or any part of any mandatory repayment, but less than all the Banks
holding Tranche B Term Loans waive in full their right to receive 100% of the
total payment otherwise required with respect to the Tranche B Term Loans, then
of the amount actually applied to the repayment of Tranche B Term Loans of Banks
which have waived in part, but not in full, their right to receive 100% of such
repayment, such amount shall be applied to each then outstanding Borrowing of
Tranche B Term Loans on a pro rata basis (so that each Bank holding Tranche B
Term Loans shall, after giving effect to the application of the respective
repayment, maintain the same percentage (as determined for such Bank, but not
the same percentage as the other Banks hold and not the same percentage held by
such Bank prior to repayment) of each Borrowing of Tranche B Term Loans which
remains outstanding after giving effect to such application).
(n) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, all other then outstanding Loans shall be repaid in full on the
respective Maturity Date for such Loans.
4.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or any Note shall be made to
the Administrative Agent for the account of the Bank or Banks entitled thereto
not later than 1:00 P.M. (New York time) on the date when due and shall be made
in Dollars in immediately available funds at the Payment Office of the
Administrative Agent. Whenever any payment to be made hereunder or under any
Note shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest shall be payable at the applicable
rate during such extension.
4.04 Net Payments. (a) Except as provided in this Section 4.04, all
payments made by the Borrower to each Bank or any Agent under this Agreement or
under any Note shall be made without setoff, counterclaim or other defense and,
free and clear of, and without deduction or withholding for, any Covered Taxes
levied or imposed by any Governmental Authority with respect to such payments.
In addition, the Borrower agrees to pay any current or future stamp, intangible
or documentary taxes or any other excise or property taxes, charges or similar
levies (including mortgage recording taxes and similar fees but not including
any Excluded Taxes) that arise from the execution, delivery or registration of
or otherwise with respect to (other than as to any payments, Taxes on which
shall be governed by the preceding
-28-
sentence) this Agreement, or any other document in connection with this
Agreement or any Note (all such taxes, charges and levies are hereinafter
referred to as, collectively, "Other Taxes").
(b) If the Borrower shall be required by law to deduct or withhold any
Covered Taxes from or in respect of any sum payable hereunder to any Bank or any
Agent, then except as provided in this Section 4.04, (i) the sum payable shall
be increased as necessary so that after making all such required deductions and
withholdings (including deductions and withholdings applicable to additional
sums payable under this Section 4.04) such Bank or such Agent, as the case may
be, receives an amount equal to the sum it would have received had no such
deductions or withholdings been made; (ii) the Borrower shall make such
deductions and withholdings; and (iii) the Borrower shall pay the full amount
deducted or withheld to the relevant taxing authority or other authority in
accordance with applicable law. Within 30 days after the date of any payment by
the Borrower of Covered Taxes or Other Taxes, the Borrower shall furnish to the
Administrative Agent the original or a certified copy of a receipt evidencing
payment thereof, or other evidence of payment reasonably satisfactory to the
Administrative Agent.
(c) The Borrower agrees to indemnify and hold harmless each Bank and
each Agent for (i) the full amount of Covered Taxes (including any Covered Taxes
imposed on amounts payable under this Section 4.04) which arise from any payment
made under this Agreement or any Note and are paid by such Bank or such Agent
and any liability (including penalties, interest, additions to tax and expenses)
arising therefrom or with respect thereto, whether or not such Covered Taxes
were correctly or legally asserted, and (ii) any Taxes paid or payable by such
Bank or such Agent (the amount of which will be determined by such Bank or such
Agent in its sole discretion, and will be binding on all parties to this
Agreement unless manifestly unreasonable) which were levied or imposed by any
Governmental Authority on any additional amounts paid by the Borrower under this
Section 4.04. A certificate as to the amount of any such required
indemnification payment prepared with a reasonable basis by the Bank or such
Agent shall be final, conclusive and binding for all purposes. Payment under
this indemnification shall be made within 30 days after the date such Bank or
such Agent makes written demand therefor by the delivery of such certificate.
(d) If a Bank or Agent receives a refund or credit of Taxes paid by the
Borrower pursuant to paragraph (b) or (c) of this Section 4.04, then such Bank
or such Agent shall promptly repay the Borrower such amount as the Bank or
Administrative Agent determines will leave it, after such payment, in no better
or worse financial position than if the Taxes giving rise to such refund or
credit had never been imposed in the instance; provided, however, that if, due
to any adjustment of such Taxes, such Bank or such Agent loses the benefit of
all or any portion of such refund or credit, the Borrower will indemnify and
hold harmless such Bank or such Agent in accordance with this subsection;
provided further, however, that such Bank will determine the amount of any such
refund or credit, and the amount of any lost benefit in respect thereof, in its
sole discretion, and such determinations will be binding on all parties to this
Agreement unless manifestly unreasonable. Nothing in this Section 4.04(d) shall
require any Bank to disclose its tax returns to any of Holdings, the Borrower,
any of their respective Subsidiaries or GTCR.
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(e) If the Borrower is required to pay additional amounts to any Bank
or any Agent on behalf of any Bank pursuant to this Section 4.04, then such Bank
shall use reasonable efforts (consistent with legal and regulatory restrictions)
to change the jurisdiction of its Lending Office or take other appropriate
action so as to eliminate any such additional payment by the Borrower which may
thereafter accrue, if such change or other action in the reasonable judgment of
such Bank is not otherwise disadvantageous to such Bank.
(f) (i) Each Bank which is a U.S. Person (as defined in Section
7701(a)(30) of the Code) agrees that it shall, no later than the Effective Date
(or, in the case of a Bank which becomes a party hereto after the Effective
Date, the date upon which such Bank becomes a party hereto), deliver to the
Administrative Agent and to the Borrower through the Administrative Agent two
accurate and complete signed originals of Internal Revenue Service Form W-9 or
any successor thereto, as appropriate.
(ii) Each Bank which is not a U.S. Person (as defined in Section
7701(a)(30) of the Code) agrees that it shall, no later than the Effective Date
(or, in the case of a Bank which becomes a party hereto after the Effective
Date, the date upon which such Bank becomes a party hereto), deliver to the
Administrative Agent and to the Borrower through the Administrative Agent (x)
two accurate and complete signed originals of Internal Revenue Service Form
W-8ECI (certifying the Bank's status as beneficial owner and entitlement to
exemption from withholding on the income as effectively connected with the
conduct of a U.S. trade or business) or W-8BEN (certifying the Bank's status as
beneficial owner and entitlement to the benefits, if any, of an income tax
treaty) or any successor thereto, as appropriate, or (y) if such Bank is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver
either Internal Revenue Service Form W-8ECI or Form W-8BEN pursuant to clause
(x) above, a certificate (any such certificate, a "Section 4.04(f) Certificate")
and, in the case of either clause (x) or (y), two accurate and complete original
signed copies of Internal Revenue Service Form W-8BEN (certifying the Bank's
status as beneficial owner).
(iii) Each Bank shall, before or promptly after the occurrence of any
event (including the passing of time) requiring a change in or renewal of the
most recent Form W-9, Form W-8ECI, Form W-8BEN or Section 4.04(f) Certificate
previously delivered by such Bank, deliver to the Administrative Agent and to
the Borrower through the Administrative Agent two accurate and complete original
signed copies of Form W-9, Form W-8ECI, Form W-8BEN or a Section 4.04(f)
Certificate, as the case may be, in replacement of the forms previously
delivered by such Bank.
(iv) Each Bank shall, unless unable to do so by virtue of a Change in
Law occurring after the date such Bank becomes a party hereto, certify (to the
extent it has not already done so in clause (i) or clause (ii)) (x) either (1)
that it is entitled to receive payments under this Agreement without deduction
or withholding of any United States federal income taxes, or (2) in the case of
an assignee Bank that becomes a party hereto after the Effective Date, that it
is subject to deduction or withholding of United States federal income taxes at
a rate no greater than the rate applicable to the assignor Bank, and (y) that it
is entitled to an exemption from United States backup withholding tax.
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(v) Notwithstanding the foregoing provisions of this subsection (f) or
any other provision of this Section 4.04 following the date it becomes a party
hereto, no Bank shall be required to deliver any form pursuant to this Section
4.04 if such Bank is not then legally able to do so as result of a Change in Law
that occurs following the date it becomes a party hereto.
(g) The Borrower will not be required to pay any additional amount in
respect of Taxes pursuant to this Section 4.04 to any Bank or to the
Administrative Agent with respect to any Bank if (i) the obligation to pay such
additional amount would not have arisen but for a failure by such Bank to comply
with its obligations under subsection 4.04(f) or (ii) in the case of an assignee
Bank, to the extent Borrower would not have been obligated to pay such
additional amount to the assignor Bank, except to the extent the obligation to
pay an excess additional amount to the assignee Bank resulted from a Change in
Law occurring after the date the assignee Bank became a party hereto.
SECTION 5. CONDITIONS PRECEDENT TO LOANS. The occurrence of the Effective
Date pursuant to Section 13.10 is subject to the satisfaction of the following
conditions:
5.01 Execution of Agreement; Notes. On or prior to the Effective Date
(i) this Agreement shall have been executed and delivered as provided in Section
13.10 and (ii) if requested by any Bank in writing, there shall have been
delivered to the Administrative Agent for the account of each of such Bank the
appropriate Note executed by the Borrower, in each case in the amount, maturity
and as otherwise provided herein.
5.02 Payment of Fees. On or before the Effective Date and thereafter
at the time of each Credit Event and after giving effect thereto, all costs,
fees and expenses, and all other compensation contemplated by this Agreement or
any other agreement with any of the Agents due to any of the Agents, or the
Banks (including, without limitation, legal fees and expenses) shall have been
paid to the extent then due.
5.03 Opinions of Counsel. On the Effective Date, the Agents shall have
received, with sufficient copies for each Bank, from Xxxxx Xxxxx & Xxxxx,
special counsel to Holdings, the Borrower and the Subsidiary Guarantors, an
opinion addressed to the Agents, the Collateral Agent and each of the Banks and
dated as of the Effective Date covering the matters set forth in Exhibit D and
such opinions of local counsel to Holdings, the Borrower and the Subsidiary
Guarantors as the Agents may reasonably request, addressed to the Agents, the
Collateral Agent and each of the Banks dated as of the Effective Date.
5.04 Corporate Documents; Proceedings; etc. (a) On the Effective Date,
the Agents shall have received a certificate, with sufficient copies for each
Bank, dated as of the Effective Date, signed by an Authorized Officer and
attested to by the Secretary or any Assistant Secretary of each Credit Party,
together with copies of the Certificate of Incorporation and By-Laws of such
Credit Party and the resolutions of such Credit Party referred to in such
certificate, and the foregoing shall be reasonably acceptable to the Agents.
(b) All corporate and legal proceedings and all material instruments
and agreements in connection with the transactions contemplated by the Credit
Documents shall be
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reasonably satisfactory in form and substance to the Agents and the Required
Banks, and the Agents shall have received all information and copies of all
documents and papers, including records of corporate proceedings, governmental
approvals, good standing certificates and bring-down telegrams or facsimiles, if
any, which the Agents reasonably may have requested in connection therewith,
such documents and papers where appropriate to be certified by proper corporate
or Governmental Authorities.
(c) The Administrative Agent shall have received from Holdings and each
Credit Party an incumbency certificate, dated as of the Effective Date and
signed by the Authorized Officers, giving the name and bearing a specimen
signature of each individual who shall sign, in the name and on behalf of each
of Holdings, the Borrower and its Subsidiaries, each of the Credit Documents and
related agreements.
5.05 Transactions, etc. The following transactions shall have been
consummated, in each case on terms and conditions reasonably satisfactory to the
Administrative Agent:
(a) The Borrower shall have received at least $450,000,000 in
gross cash proceeds from the issuance of Senior Notes; and
(b) The Administrative Agent shall have received satisfactory
evidence that, after giving effect to the Credit Documents, the
issuance of the Senior Notes, the refinancing of the Existing Credit
Agreement and the discharge of the indenture relating to the 11 3/4%
Notes and respective related agreements (together the "Transactions"),
(i) the total Indebtedness of the Borrower and its Subsidiaries shall
not exceed $755,000,000 and (ii) the Borrower and its Subsidiaries
shall have no outstanding Indebtedness or preferred stock other than
(1) the Loans made or Letters of Credit issued on the Effective Date,
(2) the Senior Notes and (3) the Existing Indebtedness.
5.06 Solvency Certificate; Insurance. On or before the Effective Date,
the Borrower shall cause to be delivered to the Agents (i) a solvency
certificate from the chief financial officer of the Borrower in the form of
Exhibit F hereto and (ii) certificates of insurance naming the Collateral Agent
as an additional insured and/or loss payee and otherwise complying with the
requirements of Section 8.03 for the business and properties of the Borrower and
its Subsidiaries, in scope and form reasonably satisfactory to the Agents.
5.07 Officer's Certificate. On the Effective Date, the Agents shall
have received certificates, with sufficient copies for each Bank, dated such
date signed by an appropriate officer of the Borrower, stating that all of the
applicable conditions set forth in Sections 5.02, 5.05, 5.08, 5.12 and 5.13
exist as of such date and confirming compliance with the conditions precedent
set forth in Section 6.01.
5.08 Approvals. On or prior to the Effective Date, all necessary and
material governmental (domestic and foreign) and third party approvals in
connection with the transactions contemplated by the Credit Documents and
otherwise referred to herein or therein shall have been obtained and remain in
effect and all applicable waiting periods shall have
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expired without any action being taken by any competent authority which
materially restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated by the Credit Documents and otherwise referred to
herein or therein. Additionally, there shall not exist any judgment, order,
injunction or other restraint issued or filed or a hearing seeking injunctive
relief or other restraint pending or notified prohibiting or imposing materially
adverse conditions upon the making of Loans.
5.09 Guarantees. Each Subsidiary Guarantor existing on the Effective
Date shall have guaranteed the Obligations and duly authorized, executed and
delivered a counterpart of this Agreement.
5.10 Security Agreement; Pledge Agreements; Collateral Assignment of
Leases; Collateral Assignment of Location Leases. (a) On the Effective Date, the
Security Agreement and the Credit Party Pledge Agreement shall have been duly
authorized and executed by the Credit Parties party thereto and shall have been
delivered to the Collateral Agent for the benefit of the Secured Creditors and
shall be in full force and effect on such date, and all certificates, agreements
or instruments representing or evidencing the Instruments, Chattel Paper and
certificated Investment Property (each as defined in the Security Agreement) and
the Pledged Securities (as defined in the Credit Party Pledge Agreement)
accompanied by instruments of transfer and/or undated stock powers and note
powers endorsed in blank shall have been delivered to the Collateral Agent to
the extent delivery thereof is required under the terms of the Security
Agreement and/or the Credit Party Pledge Agreement.
(b) On the Effective Date, Holdings shall have duly authorized,
executed and delivered the Holdings Pledge Agreement to the Collateral Agent for
the benefit of the Secured Creditors and such Holdings Pledge Agreement shall be
in full force and effect on such date, and all certificates, agreements or
instruments representing or evidencing the Pledged Securities (as defined in the
Holdings Pledge Agreement) accompanied by instruments of transfer and/or undated
stock powers and note powers endorsed in blank shall have been delivered to the
Collateral Agent.
(c) On the Effective Date, the Borrower and each Subsidiary Guarantor
shall have duly authorized, executed and delivered to the Collateral Agent for
the benefit of the Secured Creditors a Collateral Assignment of Leases,
substantially in the form of Exhibit G, with respect to each Principal Lease
listed on Schedule 7.13, such Collateral Assignment of Leases shall be
substantially in full force and effect to secure the payment and performance of
the Loans hereunder and the other Obligations.
(d) On the Effective Date, the Borrower and the Subsidiary Guarantors
shall have duly authorized, executed and delivered to the Collateral Agent for
the benefit of the Secured Creditors a Collateral Assignment of Location Leases,
to secure the payment and performance of the Loans hereunder and the other
Obligations, with respect to each Location Lease and such Collateral Assignment
of Location Leases shall be substantially in full force and effect, to secure
the payment and performance of the Loans hereunder and the other Obligations.
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5.11 Certain Collateral Deliveries. On the Effective Date, the Credit
Parties shall have authorized, executed and/or delivered or caused to be
delivered each of the following to the Collateral Agent:
(i) UCC Financing Statements (Form UCC-1 or UCC-2, as
appropriate) in appropriate form for filing under the UCC and any other
applicable law, rule or regulation of any applicable Governmental
Authority in each jurisdiction as may be necessary or appropriate to
perfect the Liens created, or purported to be created, by the Security
Documents;
(ii) certified copies of Requests for Information (Form
UCC-11), tax lien and judgment lien searches or equivalent reports or
lien search reports, each of a recent date listing all effective
financing statements, lien notices or comparable documents that name
Holdings, the Borrower or any Subsidiary Guarantor as debtor and that
are filed in those state and county jurisdictions in which any of the
property of Holdings, the Borrower or any Subsidiary Guarantor is
located, the state and county jurisdictions in which Holdings, the
Borrower or any Subsidiary Guarantor's principal place of business is
located and in which Holdings, the Borrower or any Subsidiary Guarantor
is organized and such other searches requested by the Collateral Agent,
none of which shall disclose Liens that encumber the Collateral covered
or intended to be covered by the Security Documents, other than those
encumbrances which constitute Permitted Filings;
(iii) with respect to each Real Property to the extent
requested by the Collateral Agent, copies of leases in which a Credit
Party holds any interest;
(iv) a completed certificate dated the Effective Date and
signed by the chief financial officer of the Borrower, together with
all attachments contemplated thereby, substantially in the form of
Exhibit J (the "Perfection Certificate"); and
(v) a Control Agreement (as defined in the Security
Agreement), duly authorized, executed and delivered by the parties
thereto, with respect to the Deposit Account maintained by the Borrower
with First Union National Bank and each Securities Account and
Commodities Account (each as defined in the Security Agreement)
maintained by any Credit Party.
5.12 Adverse Change, etc. (a) At the time of the initial Credit Event
and after giving effect thereto, nothing shall have occurred since March 31,
2001 (and the Banks shall have become aware of no facts, conditions or other
information not previously available to them) which any of the Agents reasonably
believe could have a material adverse effect on: (i) the rights or remedies of
any of the Agents or the Banks, (ii) the ability of the Borrower to perform its
obligations to the Agents and the Banks or (iii) the business operations,
assets, liabilities or condition (financial or otherwise) of the Borrower and
its Subsidiaries taken as a whole (the circumstances described in clauses (i),
(ii) and (iii) as they apply to the Borrower and their its Subsidiaries being
collectively referred to as a "Material Adverse Effect").
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(b) As of the Effective Date, there shall not have occurred since
January 7, 2002 and be continuing a material adverse change in the syndication
market for credit facilities similar in nature to those provided for in this
Agreement or a disruption of, or an adverse change in, financial, banking or
capital markets that would have a material adverse effect on the primary
syndication of the credit facilities provided for in this Agreement, as
determined in the sole reasonable discretion of the Lead Arranger. In addition,
Holdings and the Borrower shall have fully co-operated in the Lead Arranger's
syndication efforts for the credit facilities provided for in this Agreement,
including, without limitation, by promptly providing the Lead Arranger with all
information reasonably deemed necessary by it to successfully complete the
syndication.
(c) Since January 7, 2002 to and including the Effective Date, each of
Holdings and its Subsidiaries shall have been operated in the ordinary course of
business and there have not been sold any material assets of Holdings or any of
its Subsidiaries other than in the ordinary course of business and consistent
with past practice.
5.13 Litigation. On the Effective Date, no litigation by any entity
(private or governmental) shall be pending or threatened with respect to this
Agreement or any documentation executed in connection therewith, or which any of
the Agents shall reasonably believe could have a Material Adverse Effect.
5.14 Pro Forma Balance Sheet; Financial Statements; Projections. On or
prior to the Effective Date, the Agents shall have received:
(i) the financial statements and Projections referred to in
Section 7.05;
(ii) unaudited interim consolidated balance sheets and
statements of income for the Borrower and its Consolidated Subsidiaries
for each monthly period ended after the date of the last set of
financial statements delivered pursuant to clause (i) above and more
than 20 days prior to the Effective Date;
(iii) a pro forma balance sheet of the Borrower and its
Consolidated Subsidiaries dated the day prior to the Effective Date and
prepared to give effect to the Transactions and pro forma income
statements for the nine-months ended December 31, 2001 of the Borrower
and its Consolidated Subsidiaries, which in each case, shall not be
materially inconsistent with the forecasts previously provided to the
Banks, except for changes occurring in the ordinary course of business
of Holdings and its Subsidiaries; and
(iv) projected annual operating results of the Borrower and
its Consolidated Subsidiaries through March 2007 that shall reflect the
forecasted consolidated financial condition of the Borrower and its
Consolidated Subsidiaries after giving effect to the Transactions.
5.15 Payoff and Release Letter. The Administrative Agent shall have
received a payoff and release letter (and related UCC-3 financing statements or
other discharges) with respect to the Existing Credit Agreement and all
documents executed in connection therewith in
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form and substance satisfactory to the Administrative Agent, the Required Banks
and counsel to the Administration Agent.
SECTION 6. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The obligation of
each Bank to make Loans (including Loans made on the Effective Date), and the
obligation of an Issuing Bank to issue any Letter of Credit, is subject, at the
time of each such Credit Event (except as hereinafter indicated), to the
satisfaction of the following conditions:
6.01 No Default; Representations and Warranties. At the time of each
such Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default, (ii) there shall not exist or become known any
facts, conditions, or circumstances which could reasonably be expected to have a
Material Adverse Effect, (iii) all representations and warranties contained
herein or in any other Credit Document shall be true and correct in all material
respects with the same effect as though such representations and warranties had
been made on the date of the making of such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date) and (iv) in the case of a Revolving
Loan, if the proceeds of such Loan are to be used to fund a Permitted
Acquisition, the Borrower shall have complied with all of the requirements
described in the definition of "Permitted Acquisition."
6.02 Notice of Borrowing; Letter of Credit Request. (a) Prior to the
making of each Loan, the Administrative Agent shall have received the notice
required by Section 1.03(a).
(b) Prior to the issuance of each Letter of Credit, the Administrative
Agent and the respective Issuing Bank shall have received a Letter of Credit
Request meeting the requirements of Section 2.02(a).
The occurrence of the Effective Date and each Credit Event and the
acceptance of the proceeds of each Credit Event shall constitute a
representation and warranty by the Borrower to the Agents and each of the Banks
that all the conditions specified in Section 5 (solely on the Effective Date)
and in this Section 6 and applicable to the occurrence of the Effective Date
and/or such Credit Event exist as of that time (except to the extent that any of
the conditions specified in Section 5 are required to be satisfactory to or
determined by any Bank, the Required Banks and/or the Agents). All of the Notes,
certificates, legal opinions and other documents and papers referred to in
Section 5 (solely on the Effective Date) and in this Section 6, unless otherwise
specified, shall be delivered to the Administrative Agent at the Notice Office
for the account of each of the Banks and, except for the Notes, in sufficient
counterparts for each of the Banks.
SECTION 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In order to
induce the Banks to enter into this Agreement and to make the Loans, and issue
(or participate in) the Letters of Credit as provided herein, the Borrower makes
the following representations, warranties and agreements, all of which shall
survive the execution and delivery of this Agreement and the Notes and the
making of the Loans and issuance of the Letters of Credit, with the occurrence
of each Credit Event on or after the Effective Date being deemed to constitute a
representation and
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warranty that the matters specified in this Section 7 are true and correct in
all material respects on and as of the Effective Date and on the date of each
such Credit Event (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be required to
be true and correct only as of such specified date).
7.01 Corporate Status. Except as set forth on Schedule 7.01, the
Borrower and each of its Subsidiaries (i) is a duly organized and validly
existing corporation in good standing under the laws of the jurisdiction of its
incorporation, (ii) has the corporate power and authority to own its property
and assets and to transact the business in which it is engaged and (iii) is duly
qualified and is authorized to do business and is in good standing in each
jurisdiction where the conduct of its business requires such qualifications
except for failures to be so qualified which, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
7.02 Corporate Power and Authority. Each Credit Party has the corporate
or other organizational power and authority to execute, deliver and perform the
terms and provisions of each of the Credit Documents to which it is party and
has taken all necessary corporate or other organizational action to authorize
the execution, delivery and performance by it of each of such Credit Documents.
Each Credit Party has duly executed and delivered each of the Credit Documents
to which it is party, and, assuming due execution and delivery of each other
party thereto, each of such Credit Documents constitutes its legal, valid and
binding obligation of such Credit Party enforceable against such Credit Party in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by (a) bankruptcy, insolvency, fraudulent conveyance,
preferential transfer, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting creditors' rights and remedies
generally, (b) general principles of equity (whether such enforceability is
considered in a proceeding in equity or at law), and by the discretion of the
court before which any proceeding therefor may be brought, or (c) public policy
considerations or court administrative, regulatory or other governmental
decisions that may limit rights to indemnification or contribution or limit or
affect any covenants or agreements relating to competition or future employment.
7.03 No Violation. Neither the execution, delivery or performance by
any Credit Party of the Credit Documents to which it is a party, nor compliance
by it with the terms and provisions thereof, (i) will contravene any provision
of any applicable law, statute, rule or regulation or any applicable order,
writ, injunction or decree of any court or governmental instrumentality, in each
case, to the extent such contravention could reasonably be expected to result in
a Material Adverse Effect, (ii) will conflict with or result in any breach of
any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to
create or impose) any Lien (except pursuant to the Security Documents) upon any
of the material properties or assets of the Borrower or any of its Subsidiaries
pursuant to the terms of any indenture, mortgage, deed of trust, credit
agreement or loan agreement, or any other material agreement, contract or
instrument, to which the Borrower or any of its Subsidiaries is a party or by
which it or any of its property or assets is bound or to which it may be
subject, which conflict, breach or default would not reasonably be expected to
have a Material Adverse Effect or (iii) will violate any provision of the
Certificate of Incorporation or By-Laws of the Borrower or any of its
Subsidiaries.
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7.04 Governmental Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or if failed to obtain would not reasonably be
expected to have a Material Adverse Effect or (in the case of filings,
recordings or registrations) made prior to the Effective Date), or exemption by,
any governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with, (i) the execution,
delivery and performance of any Credit Document or (ii) the legality, validity,
binding effect or enforceability of any such Credit Document.
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. (a) The audited annual and unaudited interim
financial statements (as to the Borrower and as to its Subsidiaries on a
combined basis) delivered to the Banks pursuant to Section 5.14(i) or Sections
8.01(b) and (c), as applicable, present fairly in all material respects the
financial condition of the relevant Persons at the dates of said statements and
the results for the periods covered thereby. All such financial statements have
been prepared in accordance with GAAP consistently applied and the financial
statements as of and for the fiscal years have been audited by and accompanied
by the opinion of Ernst & Young LLP, independent public accountants, or such
other independent certified public accountants of recognized national standing
reasonably acceptable to the Agents.
(b) Since September 30, 2001, after giving effect to the Transactions,
nothing has occurred that has had or could reasonably be expected to have a
Material Adverse Effect.
(c) On and as of the Effective Date, after giving effect to the
Indebtedness (including the Loans) being incurred and Liens created by the
Borrower in connection therewith (assuming the full utilization of all
Commitments on the Effective Date), (a) the sum of the assets, at a going
business value (i.e., the amount that may be realized within a reasonable time,
considered to be six months to one year, either through collection or sale at
the regular market value, conceiving the latter as the amount that would be
obtained for such assets within such period by a capable and diligent
businessman from an interested buyer who is willing to purchase under ordinary
selling conditions), of the Borrower will exceed its debts; (b) the Borrower has
not incurred and does not intend to incur, and does not believe that it will
incur, debts beyond its ability to pay such debts as such debts mature; and (c)
the Borrower will have sufficient capital with which to conduct its business.
For purposes of this Section 7.05(c), "debt" means any liability on a claim, and
"claim" means (i) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured; provided that to the extent any such "claim" is not fixed,
liquidated and contingent, the amount thereof shall equal the Borrower's good
faith estimate of the maximum amount thereof.
(d) Except as fully disclosed in the financial statements delivered
pursuant to Section 7.05(a), and except for the Indebtedness incurred under this
Agreement and the Transaction, there were as of the Effective Date no
liabilities or obligations with respect to the
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Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute,
accrued, contingent or otherwise and whether or not due) which, either
individually or in aggregate, would be material to the Borrower and its
Subsidiaries taken as a whole. As of the Effective Date, the Borrower knows of
no basis for the assertion against it of any liability or obligation of any
nature whatsoever that is not fully disclosed in the financial statements
delivered pursuant to Section 7.05(a) which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
(e) On and as of the Effective Date, the financial projections (the
"Projections") previously delivered to the Administrative Agent and the Banks
have been prepared in good faith based on assumptions believed by the Borrower
to be reasonable at the time of preparation thereof and there are no statements
or conclusions in any of the Projections which are based upon or include
information known to the Borrower to be misleading in any material respect or
which fail to take into account material information regarding the matters
reported therein. On the Effective Date, the Borrower believed that the
Projections were reasonable and attainable; it being recognized by the Banks,
however, that projections as to future events are not viewed as facts and that
the actual results during the period or periods covered by the Projections are
likely to differ from the projected results and the differences could be
material.
7.06 Litigation. There are no actions, suits or proceedings pending
or, to the best knowledge of the Borrower, threatened that could reasonably be
expected to, singly or in the aggregate, have a Material Adverse Effect.
7.07 True and Complete Disclosure. To the best of the Borrower's
knowledge, no factual information (taken as a whole) furnished by or on behalf
of the Borrower in writing to any of the Agents or any Bank for purposes of or
in connection with this Agreement, the other Credit Documents or any transaction
contemplated herein or therein contained, and no other such factual information
(taken as a whole) hereafter furnished by or on behalf of the Borrower in
writing to any of the Agents or any Bank will contain any untrue statement of a
material fact or omitted or will omit any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
7.08 Use of Proceeds; Margin Regulations. (a) All proceeds of the
Tranche A Term Loans and the Tranche B Term Loans shall be used by the Borrower
solely to refinance the Existing Credit Agreement.
(b) All proceeds of Revolving Loans shall be used (subject to the terms
and conditions contained herein) for the general corporate purposes of the
Borrower and its Subsidiaries; provided, however, that not more than $15,000,000
of Revolving Loans may be borrowed in connection with the Transactions on the
Effective Date.
(c) No part of the proceeds of any Loan will be used to purchase or
carry any Margin Stock or to extend credit for the purpose of purchasing or
carrying any Margin Stock in violation of Regulation U of the Board of Governors
of the Federal Reserve System. Neither the making of any Loan nor the use of the
proceeds thereof nor the occurrence of any other Credit Event
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will violate or be inconsistent with the provisions of Regulation T, U or X of
the Board of Governors of the Federal Reserve System.
7.09 Tax Returns and Payments. Holdings, the Borrower and each of
their respective Subsidiaries are members of an affiliated group of corporations
filing consolidated returns for federal income tax purposes, of which Holdings
is the "common parent" (within the meaning of Section 1504 of the Code) of such
group (the "Holdings Group"). Each of Holdings, the Borrower and each of their
respective Subsidiaries have timely filed or caused to be timely filed, on the
due dates thereof or within applicable grace periods, with the appropriate
taxing authority, all federal Tax Returns and all material state or other Tax
Returns required to be filed by Holdings, the Borrower and/or any of their
respective Subsidiaries and each such Tax Return is complete and correct in all
material respects. Each of Holdings, the Borrower and each of their respective
Subsidiaries have paid all material Taxes due and payable by them other than
those which are not delinquent or which are contested in good faith and for
which adequate reserves have been established in accordance with GAAP. Except as
disclosed in the financial statements referred to in Section 7.05(a), there is
no material action, suit, proceeding, investigation, audit, or claim now pending
or, to the best knowledge of the Borrower, threatened by any authority regarding
any Taxes relating to Holdings, the Borrower or any of their respective
Subsidiaries. The charges, accruals and reserves on the books of Holdings and
its Subsidiaries in respect of Taxes and other governmental charges are, in the
opinion of the Borrower, in material conformity with GAAP. As of the Effective
Date, none of Holdings, the Borrower or any of their respective Subsidiaries has
entered into an agreement or waiver or been requested to enter into an agreement
or waiver extending any statute of limitations relating to the payment or
collection of Taxes of Holdings, the Borrower or any of their respective
Subsidiaries, and the Borrower is not aware of any circumstances that would
cause the taxable years or other taxable periods of Holdings, the Borrower or
any of their respective Subsidiaries not to be subject to the normally
applicable statute of limitations.
7.10 Compliance with ERISA. No ERISA Event has occurred or is
reasonably expected to occur. The present value of all accumulated benefit
obligations of all underfunded Pension Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the date of the most recent financial statements reflecting such amounts, exceed
by more than $5,000,000 the fair market value of the assets of all such
underfunded Pension Plans. Each ERISA Entity is in compliance in all material
respects with the presently applicable provisions of ERISA and the Code with
respect to each Employee Benefit Plan. Using actuarial assumptions and
computation methods consistent with subpart 1 of subtitle E of Title IV of
ERISA, the aggregate liabilities of each ERISA Entity to all Multiemployer Plans
in the event of a complete withdrawal therefrom, as of the close of the most
recent fiscal year of each such Multiemployer Plan, would not reasonably be
expected to result in a Material Adverse Effect.
Each Foreign Plan has been maintained in substantial compliance with
its terms and with the requirements of any and all applicable laws, statutes,
rules, regulations and orders and has been maintained, where required, in good
standing with applicable regulatory authorities. Neither the Borrower nor any
Subsidiary have incurred any material obligation in connection with the
termination of or withdrawal from any Foreign Plan. The present value of
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the accrued benefit liabilities (whether or not vested) under each Foreign Plan
which is funded, determined as of the end of the most recently ended fiscal year
of the Borrower or Subsidiary on the basis of actuarial assumptions, each of
which is reasonable, did not exceed the current value of the assets of such
Foreign Plan, and for each Foreign Plan which is not funded, the obligations of
such Foreign Plan are properly accrued.
7.11 The Security Documents. (a) The provisions of the Security
Agreement are effective to create in favor of the Collateral Agent for the
benefit of the Secured Creditors a legal, valid and enforceable security
interest in all right, title and interest of the Borrower and the Subsidiary
Guarantors in the Security Agreement Collateral described therein, as collateral
security for the payment and performance of the Loans and the other Obligations,
and the Security Agreement, upon the filing of Form UCC-1 financing statements
or the appropriate equivalent (which filings have been made) or other methods of
perfection (which have been completed to the extent required by the Security
Agreement), creates, a fully (and to the extent required by the Security
Agreement) perfected first lien on, and security interest in, all right, title
and interest in all of the Security Agreement Collateral described therein,
which security interest shall be subject to no other Liens other than Permitted
Liens. The recordation of the Security Agreement in U.S. Patents and Trademarks
in the United States Patent and Trademark Office together with filings on Form
UCC-1 made pursuant to the Security Agreement are effective, under applicable
law, to perfect the security interest, as collateral security for the payment
and performance of the Loans and the other Obligations, granted to the
Collateral Agent for the benefit of the Secured Creditors in the trademarks and
patents covered by such Security Agreement in U.S. Patents and Trademarks and
the recordation of the Security Agreement in U.S. Copyrights with the United
States Copyright Office together with filings on Form UCC-1 made pursuant to the
Security Agreement are effective under federal law to perfect the security
interest, as collateral security for the payment and performance of the Loans
and the other Obligations, granted to the Collateral Agent for the benefit of
the Secured Creditors in the copyrights covered by such Security Agreement in
U.S. Copyrights. Each of the Borrower and each Subsidiary Guarantor has good and
marketable title to all Security Agreement Collateral pledged by it under the
Security Agreement, free and clear of all Liens except those described above in
this clause (a) and except for Permitted Liens.
(b) The security interests created in favor of the Collateral Agent,
as pledgee, for the benefit of the Secured Creditors under each Pledge
Agreement, upon the delivery of the Pledged Securities to the Collateral Agent,
constitute first priority perfected security interests in the Pledged Securities
described in each Pledge Agreement, as collateral security for the payment and
performance of the Loans and the other Obligations, subject to no security
interests of any other Person. No filings or recordings are required in order to
perfect the security interests created in the Pledged Securities and the
proceeds thereof under the Pledge Agreement other than filings on Form UCC-1
(which filings have been made).
(c) Upon execution and delivery thereof by the relevant Credit Party,
each Mortgage will be effective to create in favor of the Collateral Agent, for
the benefit of the Secured Creditors, a legal, valid and enforceable security
interest in and Lien on the collateral described therein, and upon recording the
Mortgages in the jurisdictions in which the property covered by such Mortgage is
located, such security interests and Lien will, subject to the
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existence of Permitted Encumbrances, constitute first priority liens on, and
perfected security interests in, all rights, title and interest of the Creditor
party thereto in the collateral described therein.
7.12 Representations and Warranties in Documents. All representations
and warranties set forth in the other Credit Documents are true and correct in
all material respects at the time as of which such representations and
warranties were made (or deemed made) and will be true and correct in all
material respects on the Effective Date.
7.13 Properties. Except as set forth on Schedule 7.13, the Borrower
and each of its Subsidiaries have good and valid title to all material
properties owned in fee and all material properties leased by them, including
all property reflected in the balance sheet referred to in Section 7.05(a) and
in the pro forma balance sheet referred to in Section 5.14 (except as sold or
otherwise disposed of since the date of such balance sheet in the ordinary
course of business or in accordance with the terms of this Agreement), free and
clear of all Liens, other than Liens which are (x) in the case of property other
than Real Property, Permitted Liens, (y) in the case of Mortgaged Property,
Permitted Encumbrances and Liens permitted by the applicable Mortgage and (z) in
the case of Leased Properties, Liens permitted by the Collateral Assignment of
Leases or Collateral Assignment of Location Leases, as the case may be. On and
as of the Effective Date, all of the Real Properties of each of the Borrower and
its Subsidiaries (i) owned in fee are listed on Schedule 7.13 under the heading
"Fee Real Properties" (such Fee Real Properties, together with all Real
Properties hereafter acquired in fee by the Borrower and/or any of its
Subsidiaries, the "Fee Properties"; each, a "Fee Property") and (ii) leased by
it are (A) in the case of the Principal Leases, listed on Schedule 7.13 under
the heading "Leased Real Properties" and subject to the provisions of the
Collateral Assignment of Leases and (B) in the case of the Location Leases
described in and subject to the provisions of the Collateral Assignment of
Location Leases (such leased Real Properties, together with all Real Properties
hereafter leased by the Borrower and/or any of its Subsidiaries, the "Leased
Properties"; each, a "Leased Property").
7.14 Capitalization. The authorized capital stock of the Borrower
consists of 1,000 shares of common stock, $.01 par value per share, 100 of which
are issued and outstanding. All such outstanding shares of common stock have
been duly and validly issued, are fully paid and nonassessable and are free of
preemptive rights. As of the Effective Date, the Borrower does not have
outstanding any securities convertible into or exchangeable for its capital
stock or outstanding any rights to subscribe for or to purchase, or any options
for the purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to,
its capital stock.
7.15 Subsidiaries. On and as of the Effective Date, (i) Holdings owns
100% of the capital stock of Borrower and has no direct or indirect subsidiaries
other than Borrower and its Subsidiaries and (ii) the Borrower has no
Subsidiaries other than those Subsidiaries listed on Schedule 7.15, all of which
are wholly owned.
7.16 Compliance with Statutes, etc. The Borrower and its Subsidiaries
are in compliance with all applicable statutes, regulations and orders of, and
all applicable restrictions
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imposed by, all governmental bodies, domestic or foreign, in respect of the
conduct of its business and the ownership of its property, except such
noncompliances as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
7.17 Investment Company Act. None of Holdings, the Borrower or any
of their respective Subsidiaries is an "investment company" or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
7.18 Public Utility Holding Company Act. None of Holdings, the
Borrower or any of their respective Subsidiaries is a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
7.19 Environmental Matters. The Borrower and each of its Subsidiaries
have complied in all material respects with, and on the date of each Credit
Event will be in compliance in all material respects with, all Environmental
Laws and the requirements of any permits, licenses or other authorizations
issued under such Environmental Laws. There are no pending or, to the best
knowledge of the Borrower, past or threatened Environmental Claims against the
Borrower or any of its Subsidiaries or any Real Property now or formerly owned
or operated by the Borrower or any of its Subsidiaries. There are no facts,
circumstances, conditions or occurrences on any Real Property now or formerly
owned or operated by the Borrower or any of its Subsidiaries or, to the best
knowledge of the Borrower, on any property adjoining or in the vicinity of any
such Real Property that, to the best knowledge of the Borrower, could reasonably
be expected (i) to form the basis of an Environmental Claim against the Borrower
or any of its Subsidiaries or any such Real Property, which Environmental Claim
could reasonably be expected to result in a Material Adverse Effect,
individually or in the aggregate with all other Environmental Claims, or (ii) to
cause any such Real Property to be subject to any restrictions on the ownership,
occupancy, use or transferability of such Real Property by the Borrower or any
of its Subsidiaries under any Environmental Law.
(a) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, any Real Property owned or
operated by the Borrower or any of its Subsidiaries where such generation, use,
treatment or storage has violated or resulted in liability under, or could
reasonably be expected to violate or to result in liability under, any
Environmental Law, which violation or liability could reasonably be expected to
result in a Material Adverse Effect, individually or in the aggregate with all
other violations of or liability under any Environmental Law. Hazardous
Materials have not at any time been Released on or from any Real Property owned
or operated by the Borrower or any of its Subsidiaries where such Release has
violated or resulted in material liability under, or could reasonably be
expected to violate or to result in material liability under, any Environmental
Law. There are not now nor have there been any underground storage tanks or
related piping located on any Real Property owned or operated by the Borrower or
any of its Subsidiaries.
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(b) Notwithstanding anything to the contrary in this Section 7.19, the
representations made in this Section 7.19 shall only be untrue if the aggregate
effect of all failures, noncompliances and liabilities of the types described
above could reasonably be expected to result in a Material Adverse Effect.
7.20 Labor Relations. Neither the Borrower nor any of its Subsidiaries
is engaged in any unfair labor practice that could reasonably be expected to
have a Material Adverse Effect on the Borrower or its Subsidiaries taken as a
whole. On the Effective Date, there is (i) no unfair labor practice complaint
pending against the Borrower or any of its Subsidiaries or, to the best
knowledge of the Borrower, threatened against any of them, before the National
Labor Relations Board, and no material grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against the Borrower or any of its Subsidiaries or, to the best knowledge of the
Borrower, threatened against any of them, (ii) no strike, labor dispute,
slowdown or stoppage pending against the Borrower or any of its Subsidiaries or,
to the best knowledge of the Borrower, threatened against the Borrower or any of
its Subsidiaries and (iii) to the best knowledge of the Borrower, no union
representation proceeding is pending with respect to the employees of the
Borrower or any of its Subsidiaries, except (with respect to any matter
specified in clause (i), (ii) or (iii) above, either individually or in the
aggregate) such as could not reasonably be expected to result in a Material
Adverse Effect.
7.21 Patents, Licenses, Franchises and Formulas. Each of the Borrower
and its Subsidiaries owns all material patents, trademarks, permits, service
marks, trade names, copyrights, licenses, franchises and formulas, or rights
with respect to the foregoing, and has obtained assignments of all leases and
other rights of whatever nature, reasonably necessary for the present conduct of
its business, without any known conflict with the rights of others which, or the
failure to obtain which, as the case may be, would reasonably be expected to
result in a Material Adverse Effect.
7.22 Indebtedness. Schedule 7.22 sets forth a true and complete list
of all Indebtedness of the Borrower and their respective Subsidiaries as of the
Effective Date and which is to remain outstanding after giving effect to the
incurrence of Loans on such date (excluding the Loans and the Letters of Credit,
the "Existing Indebtedness"), in each case showing the aggregate principal
amount thereof and the name of the respective borrower and any other entity
which directly or indirectly guaranteed such debt.
7.23 Transactions. On the Effective Date, (i) each of the Transactions
shall have been consummated in all material respects in accordance with the
terms of the respective Documents and all applicable laws, (ii) the Existing
Credit Agreement will have been repaid and discharged in full and the
obligations under the 11 3/4% Notes will have been discharged in full by deposit
of such amounts as are required under the indenture in respect of the 11 3/4%
Notes with the trustee thereunder, (iii) all necessary material consents and
approvals of, and filings and registrations with, and all other actions in
respect of, all governmental agencies, authorities or instrumentalities required
in order to make or consummate the Transaction will have been obtained, given,
filed or taken and are or will be in full force and effect (or effective
judicial relief with respect thereto has been obtained), (iv) there shall not
exist any judgment, order or injunction prohibiting or imposing material adverse
conditions upon the Transactions, or the
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occurrence of any Credit Event or the performance by any Credit Party of its
obligations under the respective Credit Documents and (v) all actions taken by
any Credit Party pursuant to or in furtherance of the Transactions will have
been taken in all material respects in compliance with the respective Credit
Documents and all applicable laws.
7.24 Representations, Warranties & Agreements of Holdings. Holdings
hereby represents, warrants and agrees that each of the representations,
warranties and agreements made by the Borrower in Sections 7.01, 7.02, 7.03,
7.04, 7.06, 7.09, 7.10, 7.11 and 7.12 are also true and correct as to Holdings
as though references to the Borrower therein are references to Holdings.
SECTION 8. AFFIRMATIVE COVENANTS. The Borrower hereby covenants and
agrees that as of the Effective Date and thereafter for so long as this
Agreement is in effect and until (i) the Total Commitments have terminated, (ii)
no Letters of Credit (other than Letters of Credit, together with all Fees that
have accrued and will accrue thereon through the stated termination date of such
Letters of Credit, which have been cash collateralized in a cash collateral
account satisfactory to the Letter of Credit Issuer in its sole and absolute
discretion) or Notes are outstanding and (iii) the Loans, together with
interest, Fees and all other obligations (other than indemnities described in
Section 13.13 which are not then due and payable) incurred hereunder are paid in
full:
8.01 Information Covenants. The Borrower will furnish the following
to each Bank:
(a) Monthly Reports. Within 30 days after the end of each
fiscal month of the Borrower, (x) (i) the consolidated balance sheets
of the Borrower and its Consolidated Subsidiaries as of the end of such
month and the related consolidated statements of operations and
retained earnings/stockholders deficiency and statement of cash flows
for such month and for the elapsed portion of the fiscal year ended
with the last day of such month, in each case setting forth comparative
figures for the corresponding month in the prior fiscal year and the
budgeted figures for such month as set forth in the respective budget
delivered pursuant to Section 8.01(e) and (ii) management's discussion
and analysis of the important operational and financial developments
during the month and year-to-date periods, all of which shall be
certified by the chief financial officer or other Authorized Officer of
the Borrower, subject to certain recurring quarter-end adjustments and
normal year-end audit adjustments and the absence of footnotes or (y)
such other statements or reports in form as may be acceptable to the
Administrative Agent.
(b) Quarterly Financial Statements. Within 45 days after the
close of each of the first three quarterly accounting periods in each
fiscal year of the Borrower, consolidated and consolidating balance
sheet of the Borrower and its Subsidiaries as at the end of such
quarterly accounting period and the related consolidated and
consolidating statements of operations, statements of changes in
stockholders equity and statements of cash flows for such quarterly
accounting period and for the elapsed portion of the fiscal year ended
with the last day of such quarterly accounting period; all of which
shall be in reasonable detail and certified by the chief financial
officer or other Authorized Officer
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of the Borrower that they fairly present in all material respects the
financial condition of the Borrower and its Consolidated Subsidiaries
taken as a whole as of the dates indicated and the results of their
operations and changes in their cash flows for the periods indicated,
subject to normal year-end audit adjustments and the absence of
footnotes.
(c) Annual Financial Statements. Within 95 days after the
close of each fiscal year of the Borrower, (i) the consolidated and
consolidating balance sheets of the Borrower and its Consolidated
Subsidiaries as at the end of such fiscal year and the related
consolidated and consolidating statements of operation and retained
earnings/stockholder deficiency and of cash flows for such fiscal year
setting forth comparative figures for the preceding fiscal year and
certified (except for the consolidating balance sheets and statements
of operations) by Ernst & Young LLP or such other independent certified
public accountants of recognized national standing reasonably
acceptable to the Agents, together with a report of such accounting
firm stating that in the course of its regular audit of the financial
statements of the Borrower and its Subsidiaries, which audit was
conducted in accordance with generally accepted auditing standards,
such accounting firm obtained no knowledge of any Default or Event of
Default which has occurred and is continuing under Sections 9.04, 9.05
or 9.07 through 9.10 inclusive insofar as they relate to accounting
matters or, if in the opinion of such accounting firm such a Default or
Event of Default has occurred and is continuing, a statement as to the
nature thereof and (ii) management's discussions and analysis of the
important operational and financial developments during such fiscal
year.
(d) Management Letters. Promptly after the receipt thereof by
the Borrower or any of its Subsidiaries, a copy of any final
"management letter" received by any of them from its certified public
accountants and the management's responses thereto.
(e) Budgets. No later than 45 days following the commencement
of the first day of each fiscal year of the Borrower, a budget in form
consistent with past practices and in the form delivered to the Agents
on or prior to the Effective Date (including budgeted statements of
operation and sources and uses of cash and balance sheets) prepared by
the Borrower for (x) each of the twelve months of such fiscal year
prepared in detail and (y) each of the five years immediately following
such fiscal year prepared in summary form, in each case, of the
Borrower and its Subsidiaries, accompanied by the statement of an
Authorized Officer of the Borrower to the effect that, to the best of
his knowledge, the budget is a reasonable estimate for the period
covered thereby, the principal assumptions upon which such budgets are
based. Together with each delivery of financial statements pursuant to
Sections 7.01(b) and (c), a comparison of the current year to date
financial results (other than in respect of the balance sheets included
therein) against the budgets required to be submitted pursuant to this
clause (e) shall be presented.
(f) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 8.01(a), (b) and (c),
certificates of an Authorized Officer of the Borrower to the effect
that, to the best of such officer's knowledge, no Default or Event of
Default has occurred and is continuing or, if any Default or Event of
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Default has occurred and is continuing, specifying the nature and
extent thereof and what action the Borrower proposes to take with
respect thereto, which certificate shall, in the case of any such
financial statements delivered in respect of a period ending on the
last day of the respective fiscal quarter or year, set forth the
calculations required to establish whether there was compliance with
the provisions of Sections 4.02(e) through (j) (but with respect to
Section 4.02(h) only to the extent delivered with the financial
statements required by Section 8.01(c)), 9.03, 9.04, 9.05 and 9.07
through 9.10, inclusive, at the end of such fiscal quarter or year, as
the case may be.
(g) Notice of Default or Litigation. Promptly, and in any
event within three Business Days after an officer of the Borrower
obtains knowledge thereof, notice of (i) the occurrence of any event
which constitutes a Default or Event of Default specifying the nature
and extent thereof and what action the Borrower proposes to take with
respect thereto and (ii) any litigation or governmental investigation
or proceeding (including, without limitation, ERISA matters) pending
against the Borrower or any of its Subsidiaries which, singly or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect with respect to any material Indebtedness of the Borrower and
its Subsidiaries taken as a whole.
(h) Other Reports and Filings. Promptly, copies of all
financial information, proxy materials and other information and
reports, if any, which Holdings, the Borrower or any of their
respective Subsidiaries shall file with the Securities and Exchange
Commission or any successor thereto or sent generally to analysts or
holders of capital stock or other securities of Holdings, the Borrower
or any of their respective Subsidiaries (in their capacities as such)
including holders of its Indebtedness pursuant to the terms of the
documentation governing such Indebtedness (or any trustee, agent or
other representative therefor).
(i) Environmental Matters. Promptly upon, and in any event
within ten Business Days after, an officer, the Borrower or any of its
Subsidiaries obtains knowledge thereof, notice of one or more of the
following environmental matters, unless such environmental matters
could not, individually or when aggregated with all other such
environmental matters, be reasonably expected to have a Material
Adverse Effect:
(i) any pending or threatened Environmental Claim
against the Borrower or any of its Subsidiaries or any Real
Property owned or operated by the Borrower or any of its
Subsidiaries;
(ii) any condition or occurrence on or arising from
any Real Property owned or operated by the Borrower or any of
its Subsidiaries that (a) results in noncompliance by the
Borrower or any of its Subsidiaries with any applicable
Environmental Law or (b) could reasonably be expected to form
the basis of an Environmental Claim against the Borrower or
any of its Subsidiaries or any such Real Property;
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(iii) any condition or occurrence on any Real
Property owned or operated by the Borrower or any of its
Subsidiaries that could reasonably be expected to cause such
Real Property to be subject to any restrictions on the
ownership, occupancy, use or transferability by the Borrower
or any of its Subsidiaries of such Real Property under any
Environmental Law; and
(iv) the taking of any removal or remedial action in
response to the actual or alleged presence of any Hazardous
Material on any Real Property owned or operated by the
Borrower or any of its Subsidiaries as required by any
Environmental Law or any governmental or other administrative
agency; provided that in any event the Borrower shall deliver
to each Bank all notices received by it or any of its
Subsidiaries from any government or governmental agency under,
or pursuant to, CERCLA.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial
action and the Borrower's or such Subsidiary's response thereto. In
addition, the Borrower will provide the Banks with copies of all
material communications with any government or governmental agency
relating to Environmental Laws, all material communications with any
Person (other than its attorneys) relating to Environmental Claims, and
such detailed reports of any Environmental Claim as may reasonably be
requested by the Banks.
(j) Annual Meetings with Banks. At the request of the
Administrative Agent, the Borrower shall within 120 days after the
close of each fiscal year of the Borrower hold a meeting at a time and
place selected by the Borrower and acceptable to the Agents with all of
the Banks at which meeting shall be reviewed the financial results of
the previous fiscal year and the financial condition of the Borrower
and the budgets presented for the current fiscal year of the Borrower
and its Subsidiaries.
(k) ERISA Information. Promptly, upon the occurrence of any
ERISA Event that, alone or together with any other ERISA Events that
have occurred, could reasonably be expected to result in liability of
Borrower and its Subsidiaries in an aggregate amount exceeding
$1,000,000, a written notice specifying the nature thereof, what action
the Borrower, its Subsidiaries or other ERISA Entity have taken, are
taking or propose to take with respect thereto, and, when known, any
action taken or threatened by the Internal Revenue Service, Department
of Labor, PBGC or Multiemployer Plan sponsor with respect thereto;
(l) ERISA Filings, etc. Upon request by the Administrative
Agent, copies of: (i) each Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) filed by any ERISA Entity with the
Internal Revenue Service with respect to each Pension Plan; (ii) the
most recent actuarial valuation report for each Pension Plan; (iii) all
notices received by any ERISA Entity from a Multiemployer Plan sponsor
or any governmental agency concerning an ERISA Event; and (iv) such
other documents or governmental reports or filings relating to any
Employee Benefit Plan as the Administrative Agent shall reasonably
request;
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(m) Other Information. From time to time, such other
information or documents (financial or otherwise) with respect to the
Borrower or its Subsidiaries as any Bank may reasonably request in
writing; and
(n) Permitted Acquisition Compliance Certificate. The Borrower
will deliver to the Administrative Agent a Permitted Acquisitions
Compliance Certificate in accordance with the requirements described in
the definition of "Permitted Acquisition."
8.02 Books, Records and Inspections. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries in conformity with GAAP and all
requirements of law shall be made of all dealings and transactions in relation
to its business and activities. The Borrower will, and will cause each of its
Subsidiaries to, permit officers and designated representatives of the Agents or
any Bank to visit and inspect, during regular business hours and under guidance
of officers of the Borrower or such Subsidiary, any of the properties of the
Borrower or such Subsidiary, and to examine the books of account of the Borrower
or such Subsidiary and discuss the affairs, finances and accounts of the
Borrower or such Subsidiary with, and be advised as to the same by, its and
their officers and independent accountants, all at such reasonable times and
intervals and to such reasonable extent as the Agents or such Bank may request.
8.03 Maintenance of Property; Insurance. (a) Schedule 8.03 sets forth
a true and complete listing of all insurance maintained by the Borrower and its
Subsidiaries as of the Effective Date. The Borrower will, and will cause each of
its Subsidiaries to, (i) keep all property necessary in its business in good
working order and condition (ordinary wear and tear excepted), (ii) maintain
insurance on all its property in at least such amounts and against at least such
risks as is consistent and in accordance with industry practice and (iii)
furnish to each Bank, upon written request, full information as to the insurance
carried.
(b) The Borrower will, and will cause its Subsidiaries to, at all times
keep their respective property insured in favor of the Collateral Agent, and all
policies or certificates (or certified copies thereof) with respect to such
insurance (and any other insurance maintained by the Borrower or any of its
Subsidiaries) (i) shall be endorsed to the Collateral Agent's satisfaction for
the benefit of the Collateral Agent (including, without limitation, by naming
the Collateral Agent as loss payee or as an additional insured), (ii) shall
state that such insurance policies shall not be canceled without 30 days' prior
written notice thereof by the respective insurer to the Collateral Agent, (iii)
shall provide that the respective insurers irrevocably waive any and all rights
of subrogation with respect to the Collateral Agent and the Secured Creditors,
(iv) shall contain the standard non-contributory mortgagee clause endorsement in
favor of the Collateral Agent with respect to hazard insurance coverage, (v)
shall, except in the case of public liability insurance and workers'
compensation insurance, provide that any losses shall be payable notwithstanding
(A) any act or neglect of the Borrower or any of its Subsidiaries, (B) the
occupation or use of the properties for purposes more hazardous than those
permitted by the terms of the respective policy if such coverage is obtainable
at commercially reasonable rates and is of the kind from time to time
customarily insured against by Persons owning or using similar property and in
such amounts as are customary, (C) any foreclosure or other proceeding relating
to the insured properties if such coverage is available at commercially
reasonable rates
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or (D) any change in the title to or ownership or possession of the insured
properties and (vi) shall be deposited with the Collateral Agent if such
coverage is available at commercially reasonable rates.
(c) If the Borrower or any of its Subsidiaries shall fail to maintain
all insurance in accordance with this Section 8.03, or if the Borrower or any of
its Subsidiaries shall fail to so endorse and deposit all policies or
certificates with respect thereto, the Agents and/or the Collateral Agent shall
have the right (but shall be under no obligation) to procure such insurance and
the Borrower agrees to reimburse the Agents or the Collateral Agent, as the case
may be, for all costs and expenses of procuring such insurance.
8.04 Corporate Franchises. The Borrower will, and will cause each of
its Subsidiaries to, do or cause to be done, all things necessary to preserve
and keep in full force and effect its existence and its material rights,
franchises, licenses and patents; provided, however, that nothing in this
Section 8.04 shall prevent (i) sales or other dispositions of assets by the
Borrower or any of its Subsidiaries in accordance with Section 9.02 or (ii) the
withdrawal by the Borrower or any of its Subsidiaries of their qualification as
a foreign corporation in any jurisdiction where such withdrawal could not
reasonably be expected to have a Material Adverse Effect.
8.05 Compliance with Statutes, etc. The Borrower will, and will cause
each of its Subsidiaries to, comply with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property, except such noncompliances as could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
8.06 Compliance with Environmental Laws. (a) The Borrower will comply,
and will cause each of its Subsidiaries to comply, in all material respects
with, and not incur material liability under, all Environmental Laws applicable
to the business or operations of the Borrower or any of its Subsidiaries or to
the ownership or use of the Real Property now or hereafter owned or operated by
the Borrower or any of its Subsidiaries, will promptly pay or cause to be paid
all reasonable costs and expenses incurred in connection with such compliance
and liability, and will keep or cause to be kept all such Real Property free and
clear of any material Liens imposed pursuant to such Environmental Laws. None of
the Borrower nor any of its Subsidiaries will generate, use, treat, store,
release or dispose of, or permit the generation, use, treatment, storage,
release or disposal of Hazardous Materials on any Real Property now or hereafter
owned or operated by the Borrower or any of its Subsidiaries, or transport or
knowingly permit the transportation of Hazardous Materials to or from any such
Real Property except for Hazardous Materials used or stored at any such Real
Properties in compliance in all material respects with all Environmental Laws
and reasonably required in connection with the operation, use and maintenance of
any such Real Property.
(b) In the event of any circumstances requiring notice to the Agents
and the Banks under Section 8.01(i), the Borrower will and will cause each of
its Subsidiaries to, take appropriate steps to initiate and expeditiously
complete any and all investigative, compliance,
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responsive, corrective and other action required under any Environmental Law to
mitigate and eliminate any violation or liability giving rise to such notice
requirement and shall keep the Administrative Agent apprised of such action.
(c) At the written request of the Administrative Agent or the Required
Banks, which request shall specify in reasonable detail the basis therefor, at
any time and from time to time, the Borrower will provide, at the Borrower's
sole cost and expense, an environmental site assessment report concerning any
Real Property now or hereafter owned or operated by the Borrower or any of its
Subsidiaries, prepared by an environmental consulting firm approved by the
Administrative Agent which approval shall not be unreasonably withheld or
delayed, indicating status of compliance with Environmental Laws and the
presence or absence of Hazardous Materials and the estimated cost of any
compliance, investigation, removal or remedial action in connection with any
Hazardous Materials on, at, under or emanating from such Real Property; provided
that such request may be made only if (i) there has occurred and is continuing
an Event of Default, (ii) the Administrative Agent reasonably believes that the
Borrower or any such Real Property is not in material compliance with any
material Environmental Law, or (iii) circumstances exist that reasonably could
be expected to form the basis of a material Environmental Claim against the
Borrower or any of its Subsidiaries or any such Real Property. If the Borrower
fails to provide the same within 30 days after such request was made (or within
such longer period as the Administrative Agent may approve in writing, such
approval not to be unreasonably withheld), the Administrative Agent may order
the same, and the Borrower shall grant and hereby grants to the Administrative
Agent and the Banks and their agents access to such Real Property and
specifically grants the Administrative Agent and the Banks an irrevocable
non-exclusive license, subject to the rights of tenants, to undertake such an
assessment, all at the Borrower's expense.
8.07 End of Fiscal Years; Fiscal Quarters. The Borrower shall cause
(i) each of its, and each of its Subsidiaries', fiscal years to end on March 31
and (ii) each of its, and each of its Subsidiaries', fiscal quarters to end on a
date consistent with the date of its fiscal year end; provided that the Borrower
may change such fiscal year to any other fiscal year period of twelve
consecutive months with the consent of the Agents, which consent shall not be
unreasonably withheld.
8.08 Performance of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, perform all of its obligations under the terms of
each mortgage, indenture, security agreement and other debt instrument by which
it is bound, except such non-performances as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
8.09 Payment of Taxes. Each of Holdings and the Borrower will timely
pay and discharge or cause to be paid and discharged and will cause each of
their respective Subsidiaries to timely pay and discharge all material Taxes
imposed upon it or upon its income or profits, or upon any material properties
belonging to it, and all lawful claims which, if unpaid, might become a lien or
charge upon any properties of the Borrower or any of its Subsidiaries; provided
that none the Borrower or any of its Subsidiaries shall be required to pay any
such Tax
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or claim which is being contested in good faith and by proper proceedings if it
has maintained adequate reserves with respect thereto in accordance with GAAP.
8.10 Additional Security; Further Assurances. (a) Promptly, and in
any event within 90 days after the acquisition of assets of the type that would
have constituted Collateral (if the person acquiring such assets had executed an
appropriate Security Document on the Effective Date) at the Effective Date (the
"Additional Collateral"), the Borrower will, and will cause each of the
Subsidiary Guarantors to, at the request of the Collateral Agent following
consultation with the Borrower as to the value of any such Additional
Collateral, take all necessary action, including entering into the appropriate
security documents and filing the appropriate financing statements under the
provisions of the UCC or applicable foreign, domestic or local laws, rules or
regulations in each of the offices where such filing is necessary or appropriate
to grant the Collateral Agent a perfected Lien in such Collateral (or comparable
interest under foreign law in the case of foreign Collateral) pursuant to and to
the full extent required by the Security Documents and this Agreement, subject
to (i) in the case of such Collateral constituting Fee Property, Permitted
Encumbrances and Liens permitted by the applicable Mortgage, (ii) in the case of
such Collateral constituting Leased Property, Liens permitted by the Collateral
Assignment of Leases or Collateral Assignment of Location Leases, as the case
may be, and (iii) in the case of such Collateral not constituting Real Property,
Permitted Liens; provided that no such action will be required by the Borrower
or any of the Subsidiary Guarantors to the extent that any such Additional
Collateral is subject to a preexisting agreement which prohibits the granting of
any additional liens; provided further that such preexisting agreement was not
entered into in connection with, or in anticipation of or contemplation of, the
acquisition of such assets by the Borrower or any of its Subsidiaries. In the
event that the Borrower or any of the Subsidiary Guarantors acquires an interest
in (x) additional Fee Property that the Administrative Agent reasonably deems
material to the Business, the Borrower and such Subsidiary Guarantors, as the
case may be, will take such actions and execute such documents as the
Administrative Agent shall require, to confirm the Lien of a Mortgage, if
applicable, or to create a new Mortgage (including, without limitation,
satisfaction of the conditions set forth in Section 5.03 and the Additional
Mortgage Conditions) (an "Additional Mortgage") or (y) additional Leased
Property, the Borrower and such Subsidiary Guarantors, as the case may be, will
take such actions and execute such documents as the Administrative Agent shall
require to subject such Leased Property to the Lien on the Collateral Assignment
of Leases or Collateral Assignment of Location Leases, as the case may be, and
in the case of any Principal Leased Property shall endeavor in a reasonable
manner to obtain and deliver to the Collateral Agent a Landlord Consent, Lien
Waiver and Access Agreement from the lessor of such additional Leased Property.
All actions taken by the parties in connection with the pledge of Additional
Collateral, including, without limitation, reasonable costs of counsel for the
Collateral Agent, shall be for the account of the Borrower, which shall pay all
reasonable sums due on demand.
(b) The Borrower will, and will cause each of the Subsidiary Guarantors
to, at the expense of the Borrower, make, execute, endorse, acknowledge, file
and/or deliver to the Collateral Agent from time to time such vouchers,
invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports and other assurances or instruments and take such
further steps relating to the Collateral covered by any of the Security
Documents as the
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Collateral Agent may reasonably require upon reasonable notice. Furthermore, the
Borrower shall cause to be delivered to the Collateral Agent such opinions of
counsel, title insurance, surveys and other related documents as may be
reasonably requested by the Collateral Agent to assure themselves that this
Section 8.10 has been complied with.
(c) If the Administrative Agent or the Required Banks reasonably
determine (and so advise the Borrower) that they are required by law or
regulation to have appraisals prepared in respect of the Real Property of the
Borrower and its Subsidiaries constituting Collateral, the Borrower shall
provide to the Collateral Agent appraisals which satisfy the applicable
requirements of the Real Estate Appraisal Reform Amendments of the Financial
Institution Reform, Recovery and Enforcement Act of 1989 and which shall be in
form and substance reasonably satisfactory to the Collateral Agent; provided,
however, that no Subsidiary Guarantor or the Borrower collectively, shall be
required to obtain any such appraisal for any such location more frequently than
once in any 36 consecutive month period.
(d) The Borrower agrees that each action required above by this Section
8.10 shall be completed within 90 days after such action is either requested to
be taken by the Administrative Agent or the Required Banks or required to be
taken by any Subsidiary Guarantor pursuant to the terms of this Section 8.10 or,
if such action is not capable of completion within such 90 day period, the
Borrower or any Subsidiary Guarantor, as the case may be, shall use their
reasonable efforts to complete such action within the reasonable period in which
it can be expected to be completed; provided that in no event shall the Borrower
or any of their Subsidiaries be required to take any action, other than using
its reasonable efforts, to obtain consents from third parties with respect to
its compliance with this Section 8.10.
8.11 Post-Closing Collateral Matters. The Borrower will use
commercially reasonable efforts to execute and deliver or cause to be executed
and delivered the documents and complete the tasks set forth on Schedule 8.11,
in each case within the time limits specified on such schedule.
SECTION 9. NEGATIVE COVENANTS. The Borrower, and where expressly stated,
Holdings, hereby covenants and agrees that as of the Effective Date and
thereafter for so long as this Agreement is in effect and until (i) the Total
Commitments have terminated, (ii) no Letters of Credit (other than Letters of
Credit, together with all Fees that have accrued and will accrue thereon through
the stated termination date of such Letters of Credit, which have been cash
collateralized in a cash collateral account in a manner satisfactory to the
Letter of Credit Issuer in its sole and absolute discretion) or Notes are
outstanding and (iii) the Loans, together with interest, Fees and all other
Obligations (other than any indemnities described in Section 13.13 which are not
then due and payable) incurred hereunder, are paid in full:
9.01 Liens. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
the Borrower or any of its Subsidiaries, whether now owned or hereafter
acquired, or sell any such property or assets subject to an understanding or
agreement, contingent or otherwise, to repurchase such property or assets, or
assign any right to receive income or permit the filing of any financing
statement under the UCC or any other
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similar notice of Lien under any similar recording or notice statute; provided
that the provisions of this Section 9.01 shall not prevent the creation,
incurrence, assumption or existence of the following (Liens described below are
herein referred to as "Permitted Liens"):
(a) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due and payable or Liens for taxes,
assessments or governmental charges or levies being contested in good
faith and by appropriate proceedings for which adequate reserves have
been established in accordance with GAAP, which proceedings have the
effect of preventing the forfeiture or sale of the property or assets
subject to any such Lien;
(b) Liens in respect of property or assets of the Borroweror
any of its Subsidiaries imposed by law, which were incurred in the
ordinary course of business and do not secure Indebtedness for borrowed
money, such as carriers', warehousemen's, materialmen's, vendor's and
mechanics' liens and other similar Liens arising in the ordinary course
of business, and (x) which do not in the aggregate materially detract
from the value of the Borrower's or such Subsidiary's property or
assets or materially impair the use thereof in the operation of the
business of the Borrower or such Subsidiary or (y) which are being
contested in good faith by appropriate proceedings, which proceedings
have the effect of preventing the forfeiture or sale of the property or
assets subject to any such Lien;
(c) Liens in existence on the Effective Date which are listed,
and the property subject thereto described, in Schedule 9.01, plus
renewals, replacements and extensions of such Liens; provided that (x)
the aggregate principal amount of the Indebtedness, if any, secured by
such Liens does not increase from that amount outstanding at the time
of any such renewal or extension and (y) any such renewal or extension
does not encumber any additional assets or properties of the Borrower
or any of its Subsidiaries;
(d) Permitted Encumbrances;
(e) Liens created pursuant to the Security Documents or in
favor of the Collateral Agent for the benefit of the Secured Creditors;
(f) Liens arising pursuant to licenses, leases or subleases
granted to other Persons in the ordinary course of business not
materially interfering with the conduct of the business of the Borrower
and its Subsidiaries taken as a whole or any interest or title of a
lessor or sublessor under any lease permitted by Section 9.04(d) so
long as such leases or subleases of Real Property constituting
Collateral are subordinate in all respects to the Liens granted and
evidenced by the Security Documents on such Collateral and, in the case
of any lease or sublease affecting any Mortgaged Property, such lease
or sublease shall also be entered into in compliance with the
provisions of the applicable Mortgage;
(g) easements, rights-of-way, restrictions (including zoning
restrictions), encroachments, protrusions and other similar charges or
encumbrances, and minor title deficiencies, in each case whether now or
hereafter in existence, not securing
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Indebtedness and not materially interfering with the conduct of the
business of the Borrower or any of its Subsidiaries on the Real
Property subject thereto;
(h) Liens arising from precautionary UCC financing statement
filings regarding operating leases entered into by the Borrower or any
of its Subsidiaries in the ordinary course of business;
(i) Liens arising out of the existence of judgments or awards
not constituting an Event of Default under Section 10.09; provided that
no cash or property is deposited or delivered to secure the respective
judgment or award (or any appeal bond in respect thereof, except as
permitted by clause (k) below);
(j) statutory and common law landlords' liens under leases to
which the Borrower or any of its Subsidiaries is a party;
(k) Liens (other than any Lien imposed by ERISA) (x) incurred
or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, or (y) to secure the performance of tenders, statutory,
regulatory, contractual or warranty requirements or obligations,
surety, stay, customs and appeal bonds, statutory bonds, bids, leases,
government contracts, trade contracts, performance and return of money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money) incurred in the ordinary course of business
for amounts not yet delinquent or, to the extent such amounts are so
delinquent, such amounts are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted if
(i) adequate reserves with respect thereto are maintained on the books
of the Borrower or the relevant Subsidiary, as the case may be, in
accordance with GAAP and (ii) the contest thereof shall have the effect
of preventing the forfeiture or sale of the property or assets subject
to any such Lien and to the extent such liens are not imposed by law,
such Lien shall in no event encumber any Collateral other than cash or
Cash Equivalents;
(l) Liens (which may be pari passu with Liens securing
Obligations) granted in favor of a Bank to secure Obligations of the
Borrower and its Subsidiaries in respect of Interest Rate Protection
Agreements and Other Hedging Agreements permitted under this Agreement;
(m) Liens in favor of a banking institution arising as a
matter of law encumbering deposits (including the right of set-off)
held by such banking institutions incurred in the ordinary course of
business and which are within the general parameters customary in the
banking industry;
(n) Liens in favor of customs and revenue authorities arising
as a matter of law to secure the payment of customs duties in
connection with the importation of goods;
(o) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into
by the Borrower or any of its Subsidiaries
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in the ordinary course of business in accordance with the past
practices of the Borrower and its Subsidiaries prior to the Effective
Date;
(p) Liens arising pursuant to Capitalized Lease Obligations
and purchase money obligations or security interests securing
Indebtedness representing the purchase price (or financing of the
purchase price within 180 days after the respective purchase) of assets
acquired after the Effective Date; provided that (i) any such Liens
attach only to the assets so purchased and does not encumber any other
asset of the Borrower or any of its Subsidiaries, (ii) the Indebtedness
secured by any such Lien (including refinancings thereof) does not
exceed 100% of the lesser of the fair market value or the purchase
price of the property being purchased at the time of the incurrence of
such Indebtedness, (iii) any such Lien shall be created within 180 days
of such acquisition or construction or, in the ease of a refinancing of
any purchase money obligation, within 180 days of such refinancing, and
(iv) the Indebtedness secured thereby is permitted to be incurred
pursuant to Section 9.04(d);
(q) Liens on property or assets acquired pursuant to a
Permitted Acquisition, or on property or assets of a Subsidiary of the
Borrower in existence at the time such Subsidiary is acquired pursuant
to a Permitted Acquisition; provided that (i) any Indebtedness that is
secured by such Liens is permitted to exist under Section 9.04(g), and
(ii) such Liens are not incurred in connection with, or in
contemplation or anticipation of, such Permitted Acquisition and do not
attach to any other asset of the Borrower or any of its Subsidiaries;
(r) Deposits made in the ordinary course of business to secure
liability to insurance carriers in an amount not to exceed $1,000,000
in the aggregate at any time outstanding;
(s) Liens arising out of or created by motor vehicle leases in
an amount not to exceed $12,500,000 in the aggregate at any time
outstanding;
(t) Liens securing reimbursement obligations with respect to
commercial letters of credit not issued under this Agreement; and
(u) Liens not otherwise permitted by the foregoing clauses
(a) through (t) to the extent attaching to properties and assets with
an aggregate fair value not in excess of and securing liabilities not
in excess of $500,000 in the aggregate at any time outstanding;
provided that no consensual Liens created pursuant to the foregoing clauses (a)
through (u) of this Section 9.01 (other than the Liens described in clauses (e)
and (l) of this Section 9.01) shall extend to or cover any Pledge Agreement
Collateral.
9.02 Consolidation, Merger, Sale or Purchase of Assets, etc. The
Borrower will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of (or agree to do
any of the foregoing at any future time) all or any part of its property or
assets
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(other than inventory in the ordinary course of business, including sales of
inventory and other assets on consignment in the ordinary course of business and
including sales of laundromats and related equipment and other assets pursuant
to franchise arrangements or otherwise in the ordinary course of business), or
enter into any partnerships, joint ventures, or purchase or otherwise acquire
(in one or a series of related transactions) any part of the property or assets
(other than purchases or other acquisitions of inventory, materials and
equipment in the ordinary course of business) of any Person, except that the
following shall be permitted:
(a) The Borrower and its Subsidiaries may, as lessee or
lessor, enter into operating leases in the ordinary course of business
with respect to real or personal property so long as any such leases or
subleases of Real Property constituting Collateral pursuant to which
the Borrower and/or its Subsidiaries hold the landlord's or
sublandlord's interest are subordinate in all respects to the Liens
granted and evidenced by the Security Documents and, in the case of any
lease or sublease affecting any Mortgaged Property, such lease or
sublease shall also be entered into in compliance with the provisions
of the applicable Mortgage;
(b) Capital Expenditures by the Borrower and its Subsidiaries
to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to
Section 9.05;
(d) the Borrower and its Subsidiaries may sell or discount,
in each case without recourse, accounts receivable arising in the
ordinary course of business, but only in connection with the compromise
or collection thereof;
(e) the Borrower and its Subsidiaries may, in the ordinary
course of business, sell or exchange specific items of machinery or
equipment, so long as the proceeds of each such sale or exchange are
used to acquire (and result within 180 days of such sale or exchange in
the acquisition of) replacement items of machinery or equipment which
are the functional equivalent of the item of equipment so sold or
exchanged or which are otherwise useful in the Business and made
subject to the Lien of the Security Agreement to the extent required by
the terms thereof;
(f) the Borrower and its Subsidiaries may, in the ordinary
course of business, including pursuant to one or more franchise
arrangements, license, as licensor or licensee, patents, trademarks,
copyrights and know-how to third Persons and to one another, so long as
any such license by the Borrower or its Subsidiaries in its capacity as
licensor is permitted to be assigned pursuant to the Security Agreement
(to the extent that a security interest in such patents, trademarks,
copyrights and know-how is granted thereunder) and does not otherwise
prohibit the granting of a Lien by the Borrower or any of its
Subsidiaries pursuant to the Security Agreement in the intellectual
property covered by such license;
(g) the Borrower or any Wholly Owned Subsidiary of the
Borrower or the Spinoff Guarantor may transfer assets to (i) the
Borrower or any other Wholly Owned
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Subsidiary of the Borrower (other than the Spinoff Guarantor) so long
as (x) the transferee is a Credit Party and (y) the security interests
granted to the Collateral Agent for the benefit of the Secured
Creditors pursuant to the Security Documents in the assets so
transferred shall remain in full force and effect and perfected (to at
least the same extent as in effect immediately prior to such transfer),
(ii) the Foreign Subsidiaries in an amount, together with the amount
permitted in accordance with Section 9.05(g)(iii), not to exceed
$2,500,000 in the aggregate and (iii) prior to the Spinoff Guarantor
Release Event, the Spinoff Guarantor; provided that any such asset
transfer to the Spinoff Guarantor shall be deemed an Intercompany Loan
and shall be evidenced by an Intercompany Note and otherwise meet the
conditions set forth in Section 9.05(g)(iv);
(h) the Permitted Distribution shall be permitted and any
Wholly Owned Subsidiary of the Borrower or the Borrower may form a
Domestic Subsidiary that is a corporation or limited liability company
(the "Spinoff Guarantor") and contribute all of the Appliance Warehouse
Assets into the Spinoff Guarantor (the "Initial Appliance Warehouse
Investment") in exchange for 100% of the equity interest in the Spinoff
Guarantor and a note substantially in the form of Exhibit M attached
hereto in a principal amount of not less than $15,000,000 (the "Spinoff
Guarantor Note"); provided, the Borrower and the Spinoff Guarantor
shall on the date of such contribution comply with the provisions of
Section 8.10 (without giving effect to any grace periods provided for
therein) and shall otherwise cause the Spinoff Guarantor to become
party to the Credit Documents as a Subsidiary Guarantor; provided,
further, that until the occurrence of the Permitted Distribution,
Borrower shall own 100% of the capital stock of the Spinoff Guarantor
and subsequent to the Permitted Distribution but prior to the Spinoff
Guarantor Release Event, Holdings or an Affiliate of Holdings shall own
100% of the Spinoff Guarantor;
(i) any Person may merge with and into, or be dissolved or
liquidated into, the Borrower so long as (i) the Borrower is the
surviving corporation of any such merger, dissolution or liquidation
and (ii) the security interests, if any, granted to the Collateral
Agent for the benefit of the Secured Creditors pursuant to the Security
Documents in the assets of the Borrower and/or such other Person shall
remain in full force and effect and perfected (to at least the same
extent as in effect immediately prior to such merger, dissolution or
liquidation);
(j) any Subsidiary of the Borrower may merge with and into,
or be dissolved or liquidated into, any other Subsidiary of the
Borrower so long as (i) in the case of any such transaction involving a
Subsidiary Guarantor the surviving corporation of any such merger,
dissolution or liquidation is a Wholly Owned Subsidiary of the
Borrower, is a Domestic Subsidiary and is a Subsidiary Guarantor and
(ii) the security interests granted to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Security Documents in
the assets of such Subsidiary shall remain in full force and effect and
perfected (to at least the same extent as in effect immediately prior
to such merger, dissolution or liquidation);
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(k) the Borrower or any of its Wholly Owned Subsidiaries may
consummate a Permitted Acquisition; provided that the Spinoff Guarantor
may consummate Permitted Acquisitions so long as (i) the consideration
for all such Permitted Acquisitions shall not exceed the sum of the
amount of Investments in the Spinoff Guarantor pursuant to Section
9.05(g)(iv) and the amount of internally generated funds and (ii) the
consideration for all such Permitted Acquisitions shall not include
funds constituting the proceeds of any Loan or the proceeds from the
incurrence of any Indebtedness incurred pursuant to 9.04(h);
(l) "inactive" or "shell" Subsidiaries may be dissolved or
otherwise liquidated;
(m) other sales or dispositions of assets in the ordinary
course of business (other than assets disposed of in connection with a
Recovery Event); provided that (x) the aggregate Net Sale Proceeds
received from all such sales and dispositions shall not exceed
$5,000,000 in any fiscal year of the Borrower, (y) each such sale shall
be in an amount at least equal to the fair market value thereof (as
determined in good faith by the Borrower) and for proceeds consisting
solely of not less than (A) 85% cash and (B) seller indebtedness
evidenced by promissory notes, which promissory notes shall be pledged
and delivered to the Collateral Agent pursuant to the Security
Agreement, and (z) the Net Cash Proceeds of any such sale are applied
to repay the Loans to the extent required by Section 4.02(f); and
provided further, that the sale or disposition of the capital stock of
(i) any Subsidiary Guarantor (other than the Spinoff Guarantor) shall
be prohibited and (ii) any other Subsidiary of the Borrower shall be
prohibited unless (in the case of this clause (ii)) it is for all of
the outstanding capital stock of such Subsidiary owned by the Borrower
and its Subsidiaries;
(n) the Borrower and its Subsidiaries may (i) purchase or
sell inventory, equipment and/or other assets in the ordinary course of
business in connection with transactions contemplated by Section
9.05(b) and (ii) dispose of obsolete inventory or equipment not used or
useful in the business the Borrower or such Subsidiaries;
(o) in connection with any Permitted Acquisition, a Person
may merge or consolidate with and into the Borrower or any Wholly Owned
Subsidiary of the Borrower; so long as (i) in the case of any such
transaction involving the Borrower, the surviving corporation of any
such merger or consolidation is the Borrower, (ii) in the case of any
such transaction involving a Subsidiary Guarantor the surviving entity
of any such merger or consolidation is a Wholly Owned Subsidiary of the
Borrower, is a Domestic Subsidiary and is a Subsidiary Guarantor and
(iii) the security interests granted to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Security Documents in
the assets of the Borrower and/or such Subsidiary shall remain in full
force and effect and perfected (to at least the same extent as in
effect immediately prior to such merger, dissolution or liquidation);
and
(p) the Borrower or any of its Subsidiaries may sell or
otherwise dispose of all or any of the Appliance Warehouse Assets
and/or their capital stock or other equity
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interests in the Spinoff Guarantor, in each case in connection with a
Spinoff Guarantor Release Event.
To the extent the Required Banks waive the provisions of this Section 9.02 with
respect to the sale or other disposition of any Collateral or the release of any
Subsidiary Guarantor or its Guaranteed Obligations, or any Collateral or
Subsidiary Guarantor is sold or otherwise disposed of as permitted by this
Section 9.02, such Collateral or Subsidiary Guarantor in each case shall be sold
or otherwise disposed of free and clear of the Liens created by this Agreement
and the Security Documents and the Administrative Agent shall take such actions
(including, without limitation, directing the Collateral Agent to take such
actions) as are appropriate in connection therewith.
9.03 Dividends, etc. The Borrower will not, and will not permit any
of its Subsidiaries to, declare or pay any dividends (other than dividends
payable solely in such entity's common stock or preferred stock (provided such
preferred stock meets the requirements of Section 9.13(c)(ii), (iii), (iv) and
(v)) or return any capital to, its stockholders or authorize or make any other
distribution, payment or delivery of property or cash to its stockholders as
such, or redeem, retire, purchase or otherwise acquire, directly or indirectly,
for any consideration, any shares of any class of its capital stock, now or
hereafter outstanding (or any warrants for or options or stock appreciation
rights in respect of any of such shares), or set aside any funds for any of the
foregoing purposes, and the Borrower will not permit any of its Subsidiaries to
purchase or otherwise acquire for consideration any shares of any class of the
capital stock of the Borrower or any Subsidiary of the Borrower now or hereafter
outstanding (or any options or warrants or such stock appreciation rights issued
by such Person with respect to its capital stock) (all of the foregoing
"Dividends," it being understood that the payments made in accordance with the
clauses contained in the proviso of Section 9.06 shall not be deemed to be
Dividends), except that:
(a) any Subsidiary of the Borrower may pay Dividends to the
Borrower or any Wholly-Owned Subsidiary of the Borrower;
(b) as long as no Default or Event of Default shall then exist
or result therefrom the Borrower may declare and pay a cash Dividend on
the Borrower's Common Stock in fiscal year ending March 31, 2003 in an
amount equal to $5,000,000 plus that portion of the Retained Amount in
such fiscal year not otherwise invested in Senior Notes pursuant to
Section 9.05(n), and thereafter to the extent of the Retained Amount in
such fiscal year and not otherwise invested in Senior Notes pursuant to
Section 9.05(n); provided that any amounts not used in any fiscal year
can be carried forward and used in succeeding fiscal years of the
Borrower;
(c) the Borrower, any Subsidiary of the Borrower or the
Spinoff Guarantor may make payments to Holdings in an amount not in
excess of the federal and state (in such states that permit
consolidated or combined tax returns) income tax liability that the
Borrower, the Borrower's Subsidiaries or the Spinoff Guarantor would
have been liable for if Holdings, the Borrower and its Subsidiaries had
filed their taxes on a stand-alone basis; provided that such payments
shall be made by Holdings no earlier than five
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days prior to the date on which Holdings is required to make its
payments to the Internal Revenue Service or the applicable taxing
authority, as applicable;
(d) if no Default or Event of Default shall have occurred and
be continuing, the Borrower may declare and pay Dividends to Holdings
so that Holdings may repurchase Holdings Common Stock (or rights to
acquire Holdings Common Stock) from members of Holdings' or the
Borrower's management in connection with certain executive employment
agreements in an aggregate amount not to exceed $1,000,000 in any
fiscal year; provided that any amounts not used in any fiscal year can
be carried forward and used in the immediately succeeding fiscal year;
(e) if no Default or Event of Default shall have occurred and
be continuing, the Borrower may declare and pay Dividends to Holdings
to pay reasonable accounting fees and other support services provided
to or for the benefit of the Borrower and/or any of its Subsidiaries
and to pay Holdings' operating expenses, in an aggregate amount not to
exceed $1,000,000 in any fiscal year;
(f) Borrower may declare and pay Dividends to Holdings (i) in
connection with any payment obligations (including administration costs
and expenses) under Holdings' stock or other equity participation
purchase program or similar equity based benefits plans offered to
employees of Holdings and/or Subsidiaries of Holdings, including,
without limitation, any employee stock option plan or options to
purchase Holdings Common Stock, in an aggregate amount not to exceed
$1,000,000 in any fiscal year or (ii) so that Holdings may make loans
and advances to employees of the Borrower and its Subsidiaries in the
ordinary course of business and consistent with past practice, in an
aggregate principal amount which, when taken together with the
aggregate principal amount of loans and advances (exclusive of loans
and advances for moving and travel expenses or relocation expenses
incurred in connection with a permitted acquisition) made by the
Borrower and its Subsidiaries after the Effective Date in accordance
with Section 9.05(e) do not exceed $1,500,000 at any one time
outstanding;
(g) if no Default or Event of Default shall have occurred and
be continuing, the Permitted Distribution and Dividends to Holdings in
respect of Section 9.06(g) shall be permitted; and
(h) the Permitted Tax Distribution shall be permitted.
9.04 Indebtedness. The Borrower will not, and will not permit any of
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement, the
other Credit Documents and the Senior Notes;
(b) Existing Indebtedness outstanding on the Effective Date
and listed on Schedule 7.22, including any extensions, refinancings,
replacements or restructurings thereof; provided that the then
outstanding principal amount thereof is not increased;
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(c) Indebtedness under Interest Rate Protection Agreements and
Other Hedging Agreements relating to Indebtedness under this Agreement
and the Senior Notes;
(d) Capitalized Lease Obligations and Indebtedness of the
Borrower and its Subsidiaries incurred pursuant to purchase money Liens
permitted under Section 9.01(p); provided that all such Capitalized
Lease Obligations are permitted under Section 9.02, and (ii) the sum of
(x) the aggregate Capitalized Lease Obligations outstanding at any time
plus (y) the aggregate principal amount of such purchase money
Indebtedness outstanding at such time shall not exceed $20,000,000
(including Capital Lease Obligations referred to on Schedule 7.22);
(e) Indebtedness constituting Intercompany Loans to the extent
permitted by Section 9.05(g);
(f) Indebtedness consisting of guaranties by the Borrower or
its Subsidiaries of Indebtedness, leases and other contractual
obligations (x) permitted to be incurred by the Borrower or
Subsidiaries of the Borrower that are Subsidiary Guarantors and (y)
franchisees of the Borrower and its Subsidiaries incurred in connection
with a franchise arrangement established in the ordinary course of the
Borrower's or such Subsidiaries' business in an amount not to exceed
$2,500,000 at any time outstanding;
(g) Indebtedness acquired as a result of a Permitted
Acquisition (or Indebtedness assumed at the time of a Permitted
Acquisition of an asset securing such Indebtedness); provided that (i)
such Indebtedness was not incurred in connection with, or in
anticipation or contemplation of, such Permitted Acquisition, (ii) at
the time of such Permitted Acquisition such Indebtedness does not
exceed $15,000,000 in the aggregate, and (iii) so long as, before and
after giving effect to such Permitted Acquisition, no Default or Event
of Default shall have occurred or would result therefrom;
(h) Indebtedness incurred and outstanding in connection with
Permitted Acquisitions; provided that (i) the -------- aggregate amount
of such Indebtedness and Revolving Loans (other than any refinancings
thereof) that may be incurred in any fiscal year in respect of
Permitted Acquisitions consummated during such fiscal year shall not
exceed $100,000,000; (ii) the aggregate amount of all Indebtedness and
Revolving Loans (including any refinancings thereof) outstanding in
respect of all Permitted Acquisitions consummated since the Effective
Date shall not exceed the aggregate of the amount of the cash
consideration paid or payable in respect of Permitted Acquisitions
consummated in each fiscal year from and after the Effective Date; and
(iii) so long as, before and after giving effect to such Permitted
Acquisition, no Default or Event of Default shall have occurred or
would result therefrom;
(i) additional Indebtedness of the Borrower and its
Subsidiaries not otherwise permitted hereunder not exceeding
$20,000,000 in aggregate principal amount at any time outstanding;
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(j) Indebtedness of the Borrower and its Subsidiaries
represented by letters of credit not issued under this Agreement for
the account of the Borrower or of such Subsidiaries, as the case may
be, in an aggregate amount not to exceed $5,000,000;
(k) Indebtedness resulting from endorsement of negotiable
instruments for collection in the ordinary course of business;
(l) Indebtedness arising with respect to customary
indemnification and purchase price adjustment obligations incurred in
connection with any sale of assets of the Borrower or any of its
Subsidiaries permitted under Section 9.02; and
(m) Indebtedness incurred in the ordinary course of business
with respect to surety and appeal bonds, performance and
return-of-money bonds and other similar obligations.
9.05 Advances, Investments and Loans. The Borrower will not, and will
not permit any of its Subsidiaries to, lend money or credit or make advances to
any Person, or purchase or acquire any stock, obligations or securities of, or
any other interest in, or make any capital contribution to, any Person, or
purchase or own a futures contract or otherwise become liable for the purchase
or sale of currency or other commodities at a future date in the nature of a
futures contract, or hold any cash, Cash Equivalents (collectively,
"Investments"), except:
(a) the Borrower and its Subsidiaries may invest in cash and
Cash Equivalents;
(b) the Borrower and its Subsidiaries may acquire and hold
receivables owing to it (and, in the case of Super Laundry, notes
receivable created in the ordinary course of business consistent with
past practice and/or in connection with franchise arrangements), if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms (including the
dating of receivables) of the Borrower or such Subsidiary (or in the
case of Super Laundry, having payment and other terms consistent with
past practice);
(c) the Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with
the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
(d) Interest Rate Protection Agreements and Other Hedging
Agreements entered into to protect Borrower against fluctuations in
interest rates in respect of the Obligations;
(e) advances, loans and investments in existence on the
Effective Date and listed on Schedule 9.05 shall be permitted, without
giving effect to any additions thereto or replacements thereof (except
those additions or replacements which are existing obligations as of
the Effective Date but only to the extent such further obligations are
described on such Schedule 9.05) and, in addition, loans and advances
by the Borrower
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and its Subsidiaries to employees of the Borrower and its Subsidiaries
in the ordinary course of business and consistent with past practices
shall be permitted in an aggregate principal amount which, when taken
together with the aggregate principal amount of outstanding loans and
advances made by Holdings with the proceeds of Dividends paid pursuant
to Section 9.03(f)(ii), do not exceed $1,500,000 at any one time
outstanding; provided, however, that the foregoing limitation shall not
apply to loans and advances for moving and travel expenses or
relocation expenses incurred in connection with a Permitted
Acquisition, which loans, advances and expenses shall be permitted;
(f) deposits made in the ordinary course of business
consistent with past practices to secure the performance of leases or
other contractual arrangements shall be permitted;
(g) the Borrower may make intercompany loans and advances to
any of its Subsidiaries and any Subsidiary of the Borrower may make
intercompany loans and advances to the Borrower or any other of its
Subsidiaries (collectively, "Intercompany Loans"); provided that (i)
each Intercompany Loan shall be evidenced by an Intercompany Note, (ii)
each such Intercompany Note shall be pledged to the Collateral Agent
pursuant to the Credit Party Pledge Agreement, (iii) neither the
Borrower nor any Domestic Subsidiaries of the Borrower may make loans,
advances or equity contributions to any Foreign Subsidiaries of the
Borrower pursuant to this clause (other than loans, advances and cash
contributions in an amount, together with the amount in Section
9.02(g)(ii), not to exceed $2,500,000 in the aggregate), (iv)
Intercompany Loans (each such Intercompany Note evidencing such
Intercompany Loan, an "Additional Spinoff Guarantor Note") made to the
Spinoff Guarantor shall not exceed, when combined with any asset
transfer pursuant to Section 9.02(g)(iii), in the aggregate, $5,000,000
plus an amount equal to the payments received by the Borrower or its
Subsidiaries (other than the Spinoff Guarantor of dividends or
distributions in connection with such loans, advances or cash
contributions or any other amounts received in respect of such loans,
advances or cash contributions (in each case to the extent such
payments or other amounts are not included in Consolidated Net Income)
in each fiscal year of the Borrower and (v) the Spinoff Guarantor Note
shall be permitted;
(h) Permitted Acquisitions shall be permitted;
(i) the Borrower and its Subsidiaries may acquire and hold
promissory notes and/or equity securities issued by the purchaser or
purchasers in connection with the sale of assets to the extent
permitted under Section 9.02;
(j) the Borrower may make capital contributions to any of its
respective Subsidiary Guarantors (other than the Spinoff Guarantor);
(k) the Permitted Tax Distribution shall be permitted;
(l) the Permitted Distribution and the Initial Appliance
Warehouse Investment shall be permitted;
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(m) the Borrower and its Subsidiaries (other than the Spinoff
Guarantor) may make cash Investments not otherwise permitted by clauses
(a) through (l) above, in an amount not to exceed $20,000,000
outstanding at any one time; provided that before and after giving
effect to each such Investment, no Default or Event of Default shall
have occurred or result therefrom; and
(n) Borrower may invest up to $30,000,000 plus that portion of
the Retained Amount not paid as a Dividend pursuant to Section 9.03(b)
in the Senior Notes pursuant to Section 9.11.
9.06 Transactions with Affiliates. Except as set forth on Schedule
9.06, the Borrower will not, and will not permit any of its Subsidiaries to,
enter into any transaction or series of related transactions, whether or not in
the ordinary course of business, with any Affiliate, other than in the ordinary
course of business and on terms and conditions substantially as favorable to the
Borrower or such Subsidiary as would reasonably be obtained by the Borrower or
such Subsidiary at that time in a comparable arm's-length transaction with a
Person other than an Affiliate, except that:
(a) Dividends may be paid to the extent provided in Section
9.03;
(b) loans may be made and other transactions may be entered
into by the Borrower and its Subsidiaries to the extent permitted by
Sections 9.02, 9.04 and 9.05;
(c) customary fees may be paid to non-officer directors of
Holdings;
(d) Holdings and its Subsidiaries may enter into employment
arrangements with their respective officers and employees in the
ordinary course of business;
(e) payments under Tax Sharing Agreements may be paid to the
extent permitted by Section 9.03(c);
(f) reasonable fees and compensation may be paid to and
indemnity provided on behalf of officers, directors, employees or
consultants of Holdings or any of its Subsidiaries; and
(g) payments from Borrower or any or its Subsidiaries may be
made to Holdings or its Affiliates for management services in an
aggregate amount of up to $1,000,000 in any fiscal year.
Except as specifically provided above, no management or similar fees
shall be paid or payable by Holdings or any of its Subsidiaries to any Person
other than the Borrower.
9.07 Capital Expenditures. (a) The Borrower will not, and will not
permit any of its Subsidiaries to, make any Capital Expenditures, except that
during any period set forth below (taken as one accounting period) the Borrower
and its Subsidiaries may make Capital Expenditures so long as the aggregate
amount of such Capital Expenditures made under this
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Section 9.07(a) does not exceed in any period set forth below the amount set
forth opposite such period below:
Amount
Period (in millions)
------ -------------
Effective date through last day of the Fiscal year
ending March 31,2002 $ 20.0
Fiscal year ending March 31, 2003 95.0
Fiscal year ending March 31, 2004 100.0
Fiscal year ending March 31, 2005 and each fiscal
year ending thereafter 105.0
(b) Notwithstanding anything to the contrary contained in clause (a)
above, to the extent that the Capital Expenditures made by the Borrower and its
Subsidiaries in any period set forth in clause (a) above are less than the
amount permitted to be made in such period (without giving effect to any
additional amount available as a result of this clause (b) or clause (e) below),
the amount of such difference (the "Rollover Amount") may be carried forward and
used to make Capital Expenditures in succeeding fiscal years of the Borrower;
provided that in no event shall the Rollover Amount available for any fiscal
year be greater than $10,000,000 in the aggregate.
(c) Notwithstanding anything to the contrary contained in clauses (a)
or (b) above, Borrower will not, and will not permit the Spinoff Guarantor to,
make any Capital Expenditures for the benefit of the Spinoff Guarantor, except
that (i) prior to the Permitted Distribution, during any period set forth in
clause (a) above (taken as one accounting period) the Borrower and the Spinoff
Guarantor may make Capital Expenditures for the benefit of the Spinoff Guarantor
so long as the aggregate amount of such Capital Expenditures made under this
Section 9.07(c) does not exceed in any period set forth in clause (a) above,
$15,000,000, which amount shall not be in addition to the amounts permitted to
be expended in clauses (a) and (b) above and (ii) subsequent to the Permitted
Distribution, the Spinoff Guarantor may make Capital Expenditures for its own
benefit.
(d) In addition to the Capital Expenditures permitted pursuant to
preceding clauses (a) through (c), Borrower and its Subsidiaries may make
additional Capital Expenditures as follows: (i) Capital Expenditures consisting
of the reinvestment of Net Sale Proceeds of asset sales not required to be
applied to prepay the Loans pursuant to Section 4.02(f) as a result of clause
(iv) of the parenthetical phrase contained therein or the proviso thereto, (ii)
the reinvestment of proceeds of Recovery Events not required to be applied to
prepay the Loans pursuant to Section 4.02(j), (iii) Permitted Acquisitions made
in accordance with Section 9.02(a), (k) or (l) and (iv) Permitted Acquisition
Capital Expenditures.
9.08 Leverage Ratio. The Borrower and its Subsidiaries will not permit
the Pro Forma Leverage Ratio for any Test Period (taken as one accounting
period) ending on the last day of any fiscal quarter described below to be
greater than the ratio set forth opposite such fiscal quarter below:
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Fiscal Quarter Ended Ratio
-------------------- -----
March 31, 2002 5.00 to 1.00
June 30, 2002 5.00 to 1.00
September 30, 2002 5.00 to 1.00
December 31, 2002 4.90 to 1.00
March 31, 2003 4.80 to 1.00
June 30, 2003 4.80 to 1.00
September 30, 2003 4.80 to 1.00
December 31, 2003 4.80 to 1.00
March 31, 2004 4.60 to 1.00
June 30, 2004 4.60 to 1.00
September 30, 2004 4.60 to 1.00
December 31, 2004 4.60 to 1.00
March 31, 2005 4.20 to 1.00
June 30, 2005 4.20 to 1.00
September 30, 2005 4.20 to 1.00
December 31, 2005 4.20 to 1.00
March 31, 2006 4.00 to 1.00
June 30, 2006 4.00 to 1.00
September 30, 2006 4.00 to 1.00
December 31, 2006 4.00 to 1.00
March 31, 2007 4.00 to 1.00
June 30, 2007 4.00 to 1.00
September 30, 2007 4.00 to 1.00
December 31, 2007 4.00 to 1.00
March 31, 2008 4.00 to 1.00
June 30, 2008 and each fiscal quarter
thereafter 4.00 to 1.00
9.09 Minimum Consolidated EBITDA. The Borrower and its Subsidiaries
will not permit Consolidated EBITDA for any Test Period, in each case taken as
one accounting period, ended on the last day of a fiscal quarter of the Borrower
described below to be less than the amount set forth opposite such fiscal
quarter below; provided, however, that for purposes of this Section 9.09,
Consolidated EBITDA for any Test Period may give pro forma effect to a Permitted
Acquisition (or other acquisition or transaction with respect to which the
requisite consents of the Banks have been obtained) as if such Permitted
Acquisition (or acquisition or other transaction) had occurred on the first day
of such Test Period; provided, further, that subsequent to the Spinoff Guarantor
Release Event, the amount listed below for each Test Period shall be reduced by
an amount equal to the Spinoff Guarantor's EBITDA for the Test Period
immediately preceding the Spinoff Guarantor Release Event and subtracting from
the Borrower and its Subsidiaries' Consolidated EBITDA for such Test Period the
amount attributable to the Spinoff Guarantor's EBITDA for such Test Period:
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Amount
Fiscal Quarter Ended (in millions)
-------------------- -------------
March 31, 2002 $ 145.0
June 30, 2002 145.0
September 30, 2002 145.0
December 31, 2002 145.0
March 31, 2003 150.0
June 30, 2003 150.0
September 30, 2003 150.0
December 31, 2003 150.0
March 31, 2004 150.0
June 30, 2004 155.0
September 30, 2004 155.0
December 31, 2004 155.0
March 31, 2005 155.0
June 30, 2005 160.0
September 30, 2005 160.0
December 31, 2005 160.0
March 31, 2006 160.0
June 30, 2006 160.0
September 30, 2006 160.0
December 31, 2006 160.0
March 31, 2007 160.0
June 30, 2007 and each fiscal quarter
thereafter 165.0
9.10 Consolidated Fixed Charge Coverage Ratio. The Borrower will not
permit the Consolidated Fixed Charge Coverage Ratio for any Test Period ended on
the last day of a fiscal quarter to be less than 1.00 to 1.00.
9.11 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain
Other Agreements; etc. The Borrower will not, and will not permit any of its
Subsidiaries to:
(a) make (or give any notice in respect of) any voluntary or
optional payment or prepayment on or redemption or acquisition for
value of (including, without limitation, by way of depositing with the
trustee with respect thereto or any other Person money or securities
before due for the purpose of paying when due) Senior Notes other than,
as long as no Default or Event of Default exists, an amount up to
$30,000,000 plus that portion of the Retained Amount not paid as a
Dividend pursuant to Section 9.03(b) to prepay a portion of the Senior
Notes;
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(b) amend or modify in any material respect or in any manner
adverse to the Borrower or the Banks, or permit such an amendment or
modification of, any provision of the Senior Notes; and
(c) amend, modify or change in any way adverse in any material
respects to the interests of the Banks, any Tax Sharing Agreement, its
Certificate of Incorporation (including, without limitation, by the
filing or modification of any certificate of designation) or By-Laws.
9.12 Limitation on Certain Restrictions on Subsidiaries. The Borrower
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Subsidiary to (a) pay
Dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any Subsidiary
of the Borrower, or pay any Indebtedness owed to the Borrower or a Subsidiary of
the Borrower, (b) make loans or advances to the Borrower or any of the
Borrower's Subsidiaries or (c) transfer any of its properties or assets to the
Borrower, except for such encumbrances or restrictions existing under or by
reason of (i) applicable law, (ii) this Agreement and the other Credit
Documents, (iii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest of the Borrower or a Subsidiary of the
Borrower, (iv) customary provisions restricting assignment of any licensing
agreement entered into by the Borrower or a Subsidiary of the Borrower in the
ordinary course of business, (v) any instrument governing any Indebtedness
permitted under Section 9.04(g), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person or the properties or assets of the Person so acquired, (vi)
agreements existing on the Effective Date to the extent and in the manner such
agreements are in effect on the Effective Date and (vii) an agreement governing
Indebtedness incurred to refinance the Indebtedness issued, assumed or incurred
pursuant to an agreement referred to in clauses (ii), (v) or (vi).
9.13 Limitation on Issuance of Capital Stock. (a) Except as provided
otherwise herein, the Borrower and its Subsidiaries shall not issue (i) any
preferred stock or (ii) any redeemable common stock.
(b) The Borrower shall not issue, or permit any of its Subsidiaries to
issue, any capital stock (including by way of sales of treasury stock) or any
options or warrants to purchase, or securities convertible into, capital stock,
except (i) for transfers and replacements of then outstanding shares of capital
stock, (ii) for stock splits, stock dividends and similar issuances which do not
decrease the percentage ownership of Holdings or any of its Subsidiaries in any
class of the capital stock of the Borrower or such Subsidiary, (iii) to qualify
directors to the extent required by applicable law, (iv) Subsidiaries formed
after the Effective Date pursuant to Section 9.15 may issue capital stock to
Holdings, the Borrower or their respective Wholly-Owned Subsidiaries, in
accordance with the other requirements of this Agreement, (v) under or in
connection with any employee stock option plan and (vi) the Borrower may issue
equity securities to Holdings so long as such equity securities are pledged to
the Collateral Agent and the Banks as security for the Borrower's obligations
under this Agreement on substantially the same terms and conditions as the
pledge by Holdings of the capital stock of the Borrower on the
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Effective Date and the cash proceeds of such equities will be applied in
accordance with Section 4.02(e).
(c) Notwithstanding the above, the Borrower may issue preferred stock
to Holdings so long as (i) no dividends are payable in cash; (ii) it is not
redeemable at the option of the Holdings in whole or in part; (iii) it is not
convertible into Indebtedness of the Borrower; and (iv) it matures after August
1, 2009 and provides for no mandatory prepayment or mandatory offers to purchase
prior to such date.
9.14 Business. The Borrower will not, and will not permit any of its
Subsidiaries to, engage (directly or indirectly) in any business other than the
business in which the Borrower and its Subsidiaries are engaged on the Effective
Date and reasonable extensions thereof or businesses complementary to their
respective businesses, including, without limitation, route businesses (the
"Business").
9.15 Limitation on the Creation of Subsidiaries. The Borrower shall not
establish, create or acquire any additional Subsidiaries without the prior
written consent of the Required Banks; provided that the Borrower may establish
or create one or more Wholly-Owned Subsidiaries (and non-Wholly Owned
Subsidiaries acquired in connection with a Permitted Acquisition or pursuant to
Investments pursuant to Section 9.05(h), (i) or (m)) of the Borrower without
such consent so long as the Borrower and its Subsidiaries comply with Section
8.10.
9.16 Restriction on Tax Consolidation. The Borrower will not, and will
not permit any of its Subsidiaries to, file or consent to the filing of any
consolidated income tax return with any Person other than Holdings, the Borrower
and their respective Subsidiaries except, in the case of any Subsidiary, for tax
periods beginning prior to such Subsidiary's having become a Subsidiary of the
Borrower; provided, however, that if the Borrower disposes of more than 50% of
the outstanding stock of any Subsidiary (by both voting power and value), this
Section 9.16 will not apply with respect to such Subsidiary.
SECTION 10. EVENTS OF DEFAULT. Upon the occurrence of any of the
following specified events (each, an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment when due
of any principal of any Loan or any Note or (ii) default, and such default shall
continue unremedied for three or more Business Days, in the payment when due of
any Unpaid Drawings or interest on any Loan or Note, or any Fees or any other
amounts owing hereunder or thereunder; or
10.02 Representations, etc. Any representation, warranty or statement
made by any Credit Party herein or in any other Credit Document or in any
certificate delivered pursuant hereto or thereto shall prove to be untrue in any
material respect on the date as of which made or deemed made; or
10.03 Covenants. Holdings or the Borrower shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(g) or (i) or Section 9 or (ii) default in the due performance or
observance by it of any other term,
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covenant or agreement contained in this Agreement and such default shall
continue unremedied for a period of 30 days after written notice to the Borrower
by the Agents or any Bank; or
10.04 Default Under Other Agreements. The Borrower or any of its
Subsidiaries shall (i) default in any payment of any Indebtedness (other than
the Obligations) beyond the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness was created or (ii) default in the
observance or performance of any agreement or condition relating to any
Indebtedness (other than the Obligations) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause (determined
without regard to whether any notice is required), any such Indebtedness to
become due prior to its stated maturity, or (iii) any Indebtedness (other than
the Obligations) of the Borrower or its Subsidiaries shall be declared to be due
and payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof, provided that (x) it
shall not be a Default or Event of Default under this Section 10.04 unless the
aggregate principal amount of all Indebtedness as described in preceding clauses
(i) through (iii), inclusive, is at least $2,500,000; or
10.05 Bankruptcy, etc. Holdings, the Borrower or any of their
respective Subsidiaries shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled "Bankruptcy," as now or hereafter in
effect, or any successor thereto (the "Bankruptcy Code"); or an involuntary case
is commenced against Holdings, the Borrower or any of their respective
Subsidiaries and the petition is not controverted within 10 days, or is not
dismissed within 60 days, after commencement of the case; or a custodian (as
defined in the Bankruptcy Code) is appointed for, or takes charge of, all or
substantially all of the property of Holdings, the Borrower or any of their
respective Subsidiaries, or Holdings, the Borrower or any of their respective
Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to Holdings, the Borrower or any of their respective
Subsidiaries, or there is commenced against Holdings, the Borrower or any of
their respective Subsidiaries any such proceeding which remains undismissed for
a period of 60 days, or Holdings, the Borrower or any of their respective
Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or Holdings, the
Borrower or any of their respective Subsidiaries suffers any appointment of any
custodian or the like for it or any substantial part of its property to continue
undischarged or unstayed for a period of 60 days; or Holdings, the Borrower or
any of their respective Subsidiaries makes a general assignment for the benefit
of creditors; or any corporate action is taken by Holdings, the Borrower or any
of their respective Subsidiaries for the purpose of effecting any of the
foregoing; or
10.06 ERISA. An ERISA Event or noncompliance with respect to Foreign
Plans shall have occurred that, in the opinion of the Required Banks, when taken
together with all other ERISA Events and noncompliance with respect to Foreign
Plans that have occurred, could reasonably be expected to result in a Material
Adverse Effect; or
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10.07 Security Documents. At any time after the execution and delivery
thereof, any of the Security Documents shall cease to be in full force and
effect, or shall cease in any material respect to give the Collateral Agent for
the benefit of the Secured Creditors the Liens, rights, powers and privileges
purported to be created thereby (including, without limitation, except with
respect to the Collateral Assignments of Leases and the Collateral Assignment of
Location Leases, a perfected security interest in, and Lien on, all of the
Collateral), in favor of the Collateral Agent, superior to and prior to the
rights of all third Persons, and subject to no other Liens except as permitted
pursuant to this Agreement or the Security Documents, or any Credit Party shall
default in the due performance or observance of any term, covenant or agreement
on its part to be performed or observed pursuant to any of the Security
Documents and such default shall continue beyond any grace period specifically
applicable thereto pursuant to the terms of such Security Document; or
10.08 Guaranty. Any Guaranty or any material provision thereof shall
cease to be in full force or effect as to any Subsidiary Guarantor or Person
acting by or on behalf of such Subsidiary Guarantor shall deny or disaffirm any
Subsidiary Guarantor's obligations under the relevant Guaranty, or Subsidiary
Guarantor shall default in the due performance or observance of any material
term, covenant or agreement on its part to be performed or observed pursuant to
the Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be entered
against Holdings, the Borrower or any of their respective Subsidiaries involving
in the aggregate for Holdings, the Borrower and their respective Subsidiaries a
liability (not paid or fully covered by a reputable and solvent insurance
company) and such judgments and decrees either shall be final and non-appealable
or shall not be vacated, discharged or stayed or bonded pending appeal for any
period of 60 consecutive days, and the aggregate amount of all such judgments
exceeds $2,500,000; or
10.10 Change of Control. A Change of Control shall occur; then, and in
any such event, and at any time thereafter, if any Event of Default shall then
be continuing, the Administrative Agent may, and upon the written request of the
Required Banks, shall, by written notice to the Borrower, take any or all of the
following actions, without prejudice to the rights of any Agents, any Bank or
the holder of any Note to enforce its claims against any Credit Party (provided
that, if an Event of Default specified in Section 10.05 shall occur with respect
to the Borrower or Holdings, the result which would occur upon the giving of
written notice by the Administrative Agent to the Borrower as specified in
clauses (i) and (ii) below shall occur automatically without the giving of any
such notice and the Administrative Agent may exercise the rights specified in
clause (v) below without the giving of any such notice): (i) declare the Total
Commitments terminated, whereupon all Commitments of each Bank shall forthwith
terminate immediately and any Commitment Commission shall forthwith become due
and payable without any other notice of any kind; (ii) declare the principal of
and any accrued interest in respect of all Loans and the Notes and all
Obligations owing hereunder and thereunder to be, whereupon the same shall
become, forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by each Credit Party; (iii)
terminate any Letter of Credit, which may be terminated, in accordance with its
terms; (iv) direct the Borrower to pay (and the Borrower agrees that upon
receipt of such notice, or upon the
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occurrence of an Event of Default specified in Section 10.05 with respect to the
Borrower or Holdings, it will pay) to the Collateral Agent at the Payment Office
such additional amount of cash, to be held as security by the Collateral Agent,
as is equal to the aggregate Stated Amount of all Letters of Credit issued for
the account of the Borrower and then outstanding; (v) enforce, as Collateral
Agent, any or all of the Liens, security interests and rights created pursuant
to the Security Documents; and (vi) apply any cash collateral as provided in
Section 4.02.
SECTION 11. DEFINITIONS AND ACCOUNTING TERMS.
11.01 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Additional Collateral" shall have the meaning provided in
Section 8.10(a).
"Additional Mortgage" shall have the meaning provided in
Section 8.10(a).
"Additional Mortgage Conditions" shall mean:
(A) the Collateral Agent shall have received a Mortgage with
respect to such Fee Property, and such Mortgage shall be in full force
and effect, together with each document required by law or reasonably
requested by the Collateral Agent to be filed, registered or recorded
or delivered to the Collateral Agent in order to create in favor of the
Collateral Agent for the benefit of the Secured Creditors a valid,
legal and perfected first priority security interest in and Lien on
such Fee Property;
(B) with respect to each such Fee Property, the appropriate
Credit Party shall have made all notifications, registrations and
filings, to the extent required by, and in accordance with, all
Governmental Real Property Disclosure Requirements as applicable to
such Fee Property, including the use of forms provided by state, local
or foreign agencies, where such forms exist;
(C) with respect to each such Fee Property, a policy (or
commitment to issue a policy) of title insurance insuring (or
committing to insure) the Lien of such Mortgage as a valid first
mortgage Lien on such Fee Property and fixtures described therein in an
amount not less than 100% of the fair market value thereof as agreed
between each Credit Party and the Collateral Agent, which policy (or
commitment) shall (w) be issued by a title insurance company retained
by the Borrower and reasonably acceptable to the Collateral Agent, (x)
include such reinsurance arrangements (with provisions for direct
access) as shall be acceptable to the Collateral Agent, (y) contain a
"tie-in" or "cluster" endorsement (if available under applicable law)
(i.e., policies which insure against losses regardless of location or
allocated value of the insured property up to a stated maximum coverage
amount) and have been supplemented by such endorsements as shall be
reasonably requested by the Collateral Agent (including, without
limitation, endorsements on matters relating to usury, first loss, last
dollar, zoning, contiguity, revolving credit, doing business,
non-imputation, public road access, survey, variable rate and so-called
comprehensive coverage over covenants and restrictions) and (z) contain
no
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exceptions to title other than exceptions for the Liens permitted by
the applicable Mortgage or that are satisfactory to the Collateral
Agent;
(D) with respect to each such Fee Property, a Survey;
(E) with respect to each such Fee Property, (i) such
affidavits, certificates, information (including financial data) and
instruments of indemnification (including a so-called "gap"
indemnification) as shall be required to induce the title insurance
company to issue the policy or policies (or commitment or commitments)
and endorsements contemplated in subparagraph (C) above and (ii) such
consents, approvals, estoppels, tenant subordination agreements or
other instruments as shall be necessary or appropriate in the
reasonable judgment of the Collateral Agent in order for the owner of
such Fee Property to grant the Lien contemplated by the Mortgage with
respect to such Fee Property; and
(F) evidence acceptable to the Collateral Agent of payment by
the Credit Parties of all applicable title insurance premiums, search
and examination charges, survey costs and related charges, mortgage
recording taxes, fees, charges, costs and expenses required for the
recording of the Mortgages and issuance of the title insurance policies
referred to in clause (C) above.
"Additional Spinoff Guarantor Note" shall have the meaning provided in
Section 9.05(g).
"Adjusted Percentage" shall mean (x) at a time when no Bank Default
exists, for each Revolving Loan Bank, such Bank's Percentage and (y) at a time
when a Bank Default exists (i) for each Bank that is a Defaulting Bank, zero and
(ii) for each Bank that is a Non-Defaulting Bank, the percentage determined by
dividing such Bank's Revolving Loan Commitment at such time by the Adjusted
Total Revolving Loan Commitment at such time, it being understood that all
references herein to Revolving Loan Commitments and the Adjusted Total Revolving
Loan Commitment at a time when the Total Revolving Loan Commitment or Adjusted
Total Revolving Loan Commitment, as the case may be, has been terminated shall
be references to the Revolving Loan Commitments or Adjusted Total Revolving Loan
Commitment, as the case may be, in effect immediately prior to such termination;
provided that (A) no Bank's Adjusted Percentage shall change upon the occurrence
of a Bank Default from that in effect immediately prior to such Bank Default if
after giving effect to such Bank Default, and any repayment of Revolving Loans
at such time pursuant to Section 4.02(a) or otherwise, the sum of (i) the
aggregate outstanding principal amount of Revolving Loans of all Non-Defaulting
Banks plus (ii) the Letter of Credit Outstandings exceed the Adjusted Total
Revolving Loan Commitment
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plus (iii) the outstanding principal amount of Swingline Loans in excess of the
Adjusted Total Revolving Loan Commitment; (B) the changes to the Adjusted
Percentage that would have become effective upon the occurrence of a Bank
Default but that did not become effective as a result of the preceding clause
(A) shall become effective on the first date after the occurrence of the
relevant Bank Default on which the sum of (i) the aggregate outstanding
principal amount of the Revolving Loans of all Non-Defaulting Banks plus (ii)
the Letter of Credit Outstandings is equal to or less than the Adjusted Total
Revolving Loan Commitment plus (iii) the outstanding principal amount of
Swingline Loans equal to or less than the Adjusted Total Revolving Loan
Commitment; and (C) if (i) a Non-Defaulting Bank's Adjusted Percentage is
changed pursuant to the preceding clause (B) and (ii) any repayment of such
Bank's Revolving Loans, or of Unpaid Drawings with respect to Letters of Credit,
that were made during the period commencing after the date of the relevant Bank
Default and ending on the date of such change to its Adjusted Percentage must be
returned to the Borrower as a preferential or similar payment in any bankruptcy
or similar proceeding of the Borrower, then the change to such Non-Defaulting
Bank's Adjusted Percentage effected pursuant to said clause (B) shall be reduced
to that positive change, if any, as would have been made to its Adjusted
Percentage if (x) such repayments had not been made and (y) the maximum change
to its Adjusted Percentage would have resulted in the sum of the outstanding
principal of Revolving Loans made by such Bank plus such Bank's new Adjusted
Percentage of the outstanding principal amount of Letter of Credit Outstandings
equaling such Bank's Revolving Loan Commitment at such time.
"Adjusted Total Revolving Loan Commitment" shall mean at any time the
Total Revolving Loan Commitments less the aggregate Revolving Loan Commitments
of all Defaulting Banks.
"Administrative Agent" shall mean Bankers Trust Company, in its
capacity as Agent for the Banks hereunder, and shall include any successor to
the Agent appointed pursuant to Section 12.09.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person (excluding in the case of the Borrower, the
Subsidiary Guarantors); provided, however, that for purposes of Section 9.06, an
Affiliate of the Borrower shall include any Person that directly or indirectly
owns more than 5% of any class of the capital stock of the Borrower and any
officer or director of the Borrower or any such Person. A Person shall be deemed
to control another Person if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of such
other Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agents" shall mean, collectively, the Administrative Agent, the
Syndication Agents, the Documentation Agent and Deutsche Banc Alex. Xxxxx, in
its capacity as Lead Arranger and Book Manager.
"Agreement" shall mean this Credit Agreement, as modified, supplemented
or amended from time to time.
"Appliance Warehouse Assets" shall mean the assets used in connection
with the business of leasing laundry equipment and other household appliances to
property owners, managers of multi-family housing properties, individuals and
corporate relocation entities through the Appliance Warehouse division of the
Borrower.
"Appliance Warehouse Notes" shall mean each of the (i) Spinoff
Guarantor Note and (ii) the Additional Spinoff Guarantor Note.
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"Applicable Base Rate Margin" shall mean (i) in the case of Tranche A
Term Loans and Revolving Loans, a percentage per annum equal to 1.75% and (ii)
in the case of Tranche B Term Loans, a percentage per annum equal to 1.75%;
provided that the percentages set forth in clauses (i) and (ii) above shall be
adjusted by the applicable Leverage Pricing Adjustment, if any.
"Applicable Eurodollar Margin" shall mean (i) in the case of Tranche A
Term Loans and Revolving Loans, a percentage per annum equal to 2.75% and (ii)
in the case of Tranche B Term Loans, a percentage per annum equal to 2.75%;
provided that the percentages set forth in clauses (i) and (ii) above shall be
adjusted by the applicable Leverage Pricing Adjustment, if any.
"Applicable Percentage" shall mean 0.50% per annum; provided that from
and after the Start Date to and including the last day of such Margin Adjustment
Period, the Applicable Percentage shall be 0.375% per annum to the extent that
the Borrower shall have achieved a Pro Forma Leverage Ratio of less than 3.0:1.0
as of the last day of the most recent fiscal quarter or year ended immediately
prior to such Start Date, as the case may be. Notwithstanding the foregoing, (a)
from the Effective Date to the date of delivery to the Administrative Agent of
the financial statements and certificates required by Section 8.01(b) or (c) and
Section 8.01(f) for the fiscal period ended at least six months after the
Effective Date, the Applicable Percentage shall be 0.50% and (b)(i) at any time
during which the Borrower has failed to deliver the financial statements and
certificates required by Section 8.01(b) or (c) and Section 8.01(f),
respectively, or (ii) at any time after the occurrence and during the
continuance of a Default or Event of Default, the Applicable Percentage shall be
0.50%.
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit K hereto
(appropriately completed).
"Authorized Officer" of any Credit Party shall mean any of the Chairman
of the Board, the President, the Chief Financial Officer, any Vice President,
the Treasurer, the Secretary, any Assistant Secretary, any Assistant Treasurer
or the Controller of such Credit Party or any other officer of such Credit Party
which is designated in writing to the Administrative Agent by any of the
foregoing officers of such Credit Party as being authorized to give such notices
under this Agreement.
"Bank" shall mean each financial institution listed on Annex I, as well
as any Person which becomes a "Bank" hereunder pursuant to 13.04(b).
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing or to fund
its portion of any unreimbursed payment under Section 2.03(c) or (ii) a Bank
having notified in writing the Borrower and/or the Administrative Agent that it
does not intend to comply with its obligations under Section 1.01 or Section 2,
in the case of either clause (i) or (ii) as a result of any takeover of such
Bank by any regulatory authority or agency.
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
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"Base Rate" at any time shall mean the higher of (y) the Prime Lending
Rate and (z) the rate which is 1/2 of 1% in excess of the Federal Funds Rate.
"Base Rate Loan" shall mean each Loan designated or deemed designated
as such by the Borrower at the time of the incurrence thereof or conversion
thereto.
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrower's Common Stock" shall mean the common stock of Coinmach
Corporation.
"Borrowing" shall mean the borrowing of one Type of Loan of a single
Tranche from all the Banks having Commitments of the respective Tranche on a
given date (or resulting from a conversion or conversions on such date) having
in the case of Eurodollar Loans the same Interest Period; provided that Base
Rate Loans incurred pursuant to Section 1.11(b) shall be considered part of the
related Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company in its individual capacity.
"Business" shall have the meaning provided in Section 9.14.
"Business Day" shall mean (i) for all purposes other than as covered by
clause (ii) below, any day except Saturday, Sunday and any day which shall be in
New York City a legal holiday or a day on which commercial banking institutions
are authorized or required by law or other government action to close and (ii)
with respect to all notices and determinations in connection with, and payments
of principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and between
banks in the New York interbank Eurodollar market.
"Capital Expenditures" shall mean, with respect to any Person, all
expenditures by such Person which should be added to the fixed assets account on
the consolidated balance sheet of such Person in accordance with GAAP (which
shall not include (i) interest capitalized during construction but only to the
extent included in Consolidated Net Cash Interest Expense and (ii) increases to
property and equipment that are reflected (or under the accounting policies and
presentation of the Borrower as in effect on the Effective Date, would have been
reflected) in "Additions to net assets from acquired businesses" on the
Borrower's Condensed Consolidated Statements of Cash Flows), including all such
expenditures with respect to plant, property or equipment (including, without
limitation, expenditures for maintenance and repairs which should be capitalized
in accordance with GAAP and the amount reflected (or under the accounting
policies and presentation of the Borrower as in effect on the Effective Date,
would have been reflected) in "Advance rental payments to location owners" on
the Borrower's Condensed Consolidated Statements of Cash Flows) and the amount
of all Capitalized Lease Obligations incurred by such Person.
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"Capital Lease" as applied to any Person shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, should be accounted for as a capital lease on the balance
sheet of that Person.
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of the Borrower or any of its Subsidiaries in each case taken at
the amount thereof that should be accounted for as liabilities in accordance
with GAAP.
"Cash Equivalents" shall mean (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (ii) U.S. dollar denominated
time deposits, certificates of deposit and banker acceptances of (x) any Bank or
(y) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from Xxxxx'x is at least P-1 or the equivalent
thereof (any such bank or Bank, an "Approved Bank"), in each case with
maturities of not more than twelve months from the date of acquisition, (iii)
commercial paper issued by any Approved Bank or by the parent company of any
Approved Bank and commercial paper issued by, or guaranteed by, any industrial
or financial company with a short-term commercial paper rating of at least A-1
or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by
Moody's, as the case may be, and in each case maturing within twelve months
after the date of acquisition, (iv) marketable direct obligations issued by any
state of the United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within twelve months from
the date of acquisition thereof and, at the time of acquisition having one of
the two highest ratings obtainable from either S&P or Moody's, (v) any
repurchase agreement entered into with any Approved Bank which is secured by any
obligation of the type described in any of clauses (i) through (iii) and (vi)
investments in money market funds substantially all the assets of which are
comprised of securities of the types described in clauses (i) through (iv)
above.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 X.X.X.xx. 9601 et seq., as the same
may be amended from time to time. -- --- "Change in Law" shall mean the
introduction of any law or governmental rule, regulation, order, guideline or
request (whether or not having the force of law), or any change in law or
governmental rule, regulation, order, guideline or request (whether or not
having the force of law), or the interpretation or administration thereof.
"Change of Control" shall mean (i) Holdings shall at any time cease to
own directly 100% of the capital stock of the Borrower; (ii) any "Person" or
"group" (as such terms are used in Section 13(d) and 14(d) of the Exchange Act)
is or shall become the "beneficial owner" (as defined in Rules 13(d)-3 and
13(d)-5 under the Exchange Act), directly or indirectly, of more than GTCR or
more than 35% of Holdings Common Stock or (iii) the Board of Directors of
Holdings shall cease to consist of a majority of Continuing Directors.
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"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of this
Agreement, and to any subsequent provision of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real, personal or mixed),
now owned or hereafter acquired with respect to which any security interests or
Liens have been granted (or purported to be granted) pursuant to any Security
Document, including, without limitation, all Pledge Agreement Collateral, all
Security Agreement Collateral, all Mortgaged Properties and all cash and Cash
Equivalents delivered as collateral pursuant to Section 4.02 or 10.
"Collateral Agent" shall mean the Administrative Agent acting as
collateral agent for the Secured Creditors pursuant to the Security Documents.
"Collateral Assignment of Leases" shall mean the Collateral Assignment
of Leases executed in connection with the Credit Agreement, substantially in the
form of Exhibit G hereto, made by the Borrower and the Subsidiary Guarantors in
favor of the Collateral Agent relating to the Principal Leases, as such
agreement may be amended, modified or supplemented from time to time.
"Collateral Assignment of Location Leases" shall mean the Collateral
Assignment of Location Leases executed in connection with the Credit Agreement,
substantially in the form of Exhibit I hereto, made by the Borrower and the
Subsidiary Guarantors in favor of the Collateral Agent relating to the Location
Leases, as such agreement may be amended, modified or supplemented from time to
time.
"Commitment" shall mean any of the commitments of any Bank; i.e.,
whether the Tranche A Term Loan Commitment or Tranche B Term Loan Commitment or
Revolving Loan Commitment or the commitment of BTCo to make Swingline Loans.
"Commitment Commission" shall have the meaning provided in Section
3.01(a).
"Consolidated Adjusted Senior Leverage Ratio" shall mean the ratio of
(x) Borrower's Consolidated Senior Indebtedness (other than Indebtedness in
respect of the Senior Notes) minus the amount, as of the last day of the Test
Period then last ended, of cash and Cash Equivalents held by the Borrower and
its Consolidated Subsidiaries in excess of $25,000,000 to (y) Borrower's
Consolidated EBITDA for the Test Period then last ended, with such Consolidated
Adjusted Senior Leverage Ratio to be determined on a pro forma basis as if any
Permitted Acquisition that occurred during or subsequent to such Test Period
(and the incurrence, assumption and/or repayment of any Indebtedness in
connection with any such Permitted Acquisition), as the case may be, had
occurred on the first day of such Test Period (and such Indebtedness, if any,
had remained outstanding (or had not been outstanding, as the case may be)
throughout such Test Period), it being understood that in calculating the
Consolidated Adjusted Senior Leverage Ratio in connection with each and every
Permitted Acquisition, Consolidated EBITDA shall include the results of
operations of the Person or assets
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acquired pursuant to each such Permitted Acquisition on a pro forma basis as if
such acquisition had occurred on the first day of the respective Test Period and
shall include any conforming accounting adjustments made in connection
therewith, including any Permitted Acquisition Cost-Savings.
"Consolidated Current Assets" shall mean, at any time, the consolidated
current assets of the Borrower and its Consolidated Subsidiaries excluding cash
and Cash Equivalents.
"Consolidated Current Liabilities" shall mean, at any time, the
consolidated current liabilities of the Borrower and its Consolidated
Subsidiaries at such time, but excluding (i) the current portion of any
Indebtedness under this Agreement and any other long-term Indebtedness which
would otherwise be included therein and (ii) the current portion of
Indebtedness.
"Consolidated EBIT" shall mean, for any period, (A) the sum of the
amounts for such period of (i) Consolidated Net Income, (ii) provisions for cash
taxes based on income, (iii) Consolidated Net Cash Interest Expense, (iv) the
amount of amortization or write-off of deferred financing costs, termination
costs and debt issuance costs during such period and any premium or penalty paid
in connection with redeeming or retiring indebtedness prior to the stated
maturity thereof pursuant to the agreements governing such Indebtedness to the
extent deducted in determining Consolidated Net Income, (v) other non-recurring
transaction costs and expenses, including but not limited to interest expenses
and swap termination costs and expenses incurred during such period in
connection with the Transactions to the extent deducted in determining
Consolidated Net Income, and (vi) losses on sales of assets (excluding sales in
the ordinary course of business) and other extraordinary or nonrecurring losses
less (B) the amount for such period of gains on sales of assets (excluding sales
in the ordinary course of business) and other extraordinary or nonrecurring
gains, all as determined on a consolidated basis in accordance with GAAP.
"Consolidated EBITDA" shall mean, for any period, the sum of the
amounts for such period of (i) Consolidated EBIT, (ii) depreciation expense,
(iii) amortization expense and (iv) without duplication, all other non-cash
charges (including non-cash compensation expenses relating to employee stock
options and management loan forgiveness) included in determining Consolidated
Net Income during such period, all as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" shall mean, for any period,
the ratio of (i) Consolidated EBITDA, minus the amount of all Capital
Expenditures made by the Borrower and its Subsidiaries for such period, to (ii)
Consolidated Fixed Charges for such period; provided that in the event that the
period for which the Consolidated Fixed Charge Coverage Ratio is being
determined includes any period prior to the Effective Date, the Consolidated
Fixed Charge Coverage Ratio shall be determined on a pro forma basis to give
effect to any Indebtedness incurred on or after the Effective Date (including,
without limitation, the Loans and the Senior Notes) as if such Indebtedness had
been incurred at the beginning of such period and had remained outstanding
throughout such period.
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"Consolidated Fixed Charges" shall mean, for any period, the sum,
without duplication, of (i) Consolidated Net Cash Interest Expense for such
period, (ii) the amount of all cash payments made by the Borrower and its
Subsidiaries in respect of income taxes or income tax liabilities for such
period net of any cash income tax refunds actually received by the Borrower and
its Subsidiaries during such period, (iii) scheduled mandatory repayments of
principal of outstanding Indebtedness to the extent actually paid and (iv)
additions (reductions) to Consolidated Working Capital for such period.
"Consolidated Indebtedness" shall mean an amount equal to the
outstanding principal amount of all Indebtedness of the Borrower and its
Subsidiaries, determined in accordance with GAAP.
"Consolidated Net Cash Interest Expense" shall mean, for any period,
without duplication, the total consolidated cash interest expense of the
Borrower and its Consolidated Subsidiaries on a consolidated basis for such
period plus, without duplication, that portion of Capitalized Lease Obligations
of the Borrower and its Consolidated Subsidiaries representing the interest
factor for such period, in each case net of the total consolidated cash interest
income of Borrower and its Consolidated Subsidiaries for such period, but
excluding the amount of amortization or write-off of deferred financing costs,
termination costs and debt issuance costs during such period, other
non-recurring transaction costs and expenses, including but not limited to
interest expenses and swap termination costs and expenses incurred during such
period in connection with the Transactions to the extent included in such
consolidated cash interest expense for such period, and any premium or penalty
paid in connection with redeeming or retiring indebtedness prior to the stated
maturity thereof pursuant to the agreements governing such Indebtedness to the
extent deducted in determining Consolidated Net Income.
"Consolidated Net Income" shall mean, for any period, the consolidated
net after tax income of the Borrower and its Consolidated Subsidiaries
determined in accordance with GAAP.
"Consolidated Senior Indebtedness" shall mean, at any date, an amount
equal to the aggregate principal amount of all funded Indebtedness (including,
without limitation, all Capital Leases) of the Borrower and its Consolidated
Subsidiaries that would be required to be reflected on Borrower's consolidated
balance sheet at such date determined in accordance with GAAP, exclusive of
Subordinated Indebtedness and unsecured Indebtedness permitted pursuant to
Section 9.04.
"Consolidated Subsidiaries" shall mean, as to any Person, all
Subsidiaries of such Person which are consolidated with such Person for
financial reporting purposes in accordance with GAAP.
"Consolidated Working Capital" shall mean Consolidated Current Assets
minus Consolidated Current Liabilities.
"Contingent Obligation" shall mean, as to any Person, any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other
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obligations ("primary obligations") of any other Person (the "primary obligor")
in any manner, whether directly or indirectly, including, without limitation,
any obligation of such Person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (x) for the purchase or payment of any
such primary obligation or (y) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the holder of such primary obligation
against loss in respect thereof; provided, however, that the term Contingent
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made (or, if less, the maximum amount of such primary obligation for which
such Person may be liable pursuant to the terms of the instrument evidencing
such Contingent Obligation) or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Continuing Directors" shall mean the directors of Holdings on the
Effective Date and each other director, if such Director's nomination for
election to the Board of Directors of Holdings is recommended by a majority of
the then Continuing Directors.
"Covered Taxes" shall mean any and all Taxes, other than Excluded
Taxes.
"Credit Documents" shall mean (i) this Agreement, (ii) each Note, (iii)
each Security Document and (iv) each other document or certificate delivered to
any Agent, the Collateral Agent and/or any Bank in connection herewith or
therewith evidencing or governing the Obligations or delivered in connection
herewith or therewith.
"Credit Event" shall mean the making of any Loan or the issuance of any
Letter of Credit.
"Credit Party" shall mean the Borrower and each Subsidiary Guarantor.
"Credit Party Pledge Agreement" shall mean the Credit Party Pledge
Agreement executed in connection with the Credit Agreement, substantially in the
form of Exhibit N hereto, made by the Borrower and the Subsidiary Guarantors in
favor of the Collateral Agent, as such agreement may be amended, modified or
supplemented from time to time.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Dividend" shall have the meaning provided in Section 9.03
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"Documentation Agent" shall mean Credit Lyonnais New York Branch in its
capacity as Documentation Agent for the Banks hereunder, and shall include any
successors to the Documentation Agent.
"Documents" shall mean the Credit Documents and the Senior Notes
Indenture.
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
"Domestic Subsidiary" shall mean those Subsidiaries of Borrower that
are organized under the laws of the United States, one of the states of the
United States of America or the District of Columbia.
"Drawing" shall have the meaning provided in Section 2.04(b).
"Effective Date" shall mean the date on which this Agreement becomes
effective in accordance with Section 13.10.
"11 3/4% Notes" shall mean the 11 3/4% Senior Notes due 2005 issued
pursuant to an indenture dated as of October 8, 1997 between the Borrower and
State Street Bank and Trust Company, as Trustee, as in effect on the Effective
Date.
"Eligible Transferee" shall mean and include a commercial bank,
financial institution or other institutional "accredited investor" (as defined
in Regulation D of the Securities Act); provided that none of the Borrower or
any of its Subsidiaries shall be an Eligible Transferee.
"Employee Benefit Plan" shall mean an employee benefit plan (as defined
in Section 3(3) of ERISA) that is maintained or contributed to by any ERISA
Entity or with respect to which Borrower or a Subsidiary could incur liability.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, directives, claims, liens,
notices of noncompliance or violation, investigations or proceedings relating in
any way to any Environmental Law or any permit issued, or any approval given,
under any such Environmental Law (hereafter, "Claims"), including, without
limitation, (a) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, investigation, removal, response, remedial or other
actions or damages pursuant to any Environmental Law, and (b) any and all Claims
by any third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief in connection with alleged injury or
threat of injury to health, safety or the environment due to the presence of
Hazardous Materials.
"Environmental Law" means any applicable federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, legally binding guideline
or written policy and any rule of common law now or hereafter in effect and in
each case as amended, and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent decree or judgment, to
the extent binding on the Borrower or any of its Subsidiaries, relating to
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the environment, employee health and safety or Hazardous Materials, including,
without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33
X.X.X.xx. 1251 et seq.; the Toxic Substances Control Act, 15 X.X.X.xx. 2601 et
seq.; the Clean Air Act, 42 X.X.X.xx. 7401 et seq.; the Safe Drinking Water Act,
42 X.X.X.xx. 3803 et seq.; the Oil Pollution Act of 1990, 33 X.X.X.xx. 2701 et
seq.; the Emergency Planning and the Community Right-to-Know Act of 1986, 42
X.X.X.xx. 11001 et seq.; the Hazardous Material Transportation Act, 49
U.S.C.ss.1801 et seq.; and the Occupational Safety and Health Act, 29
U.S.C.ss.651 et seq. (to the extent it regulates occupational exposure to
Hazardous Materials); and any state and local or foreign counterparts or
equivalents, in each case as amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"ERISA Entity" shall mean any member of an ERISA Group.
"ERISA Event" shall mean (a) any "reportable event," as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Pension Plan (other than an event for which the 30-day notice period is waived);
(b) the existence with respect to any Pension Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived, the failure to make by its due date a required
installment under Section 412(m) of the Code with respect to any Pension Plan or
the failure to make any required contribution to a Multiemployer Plan; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Pension Plan; (d) the incurrence by any ERISA Entity of any liability under
Title IV of ERISA with respect to the termination of any Pension Plan; (e) the
receipt by any ERISA Entity from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Pension Plan or to appoint a trustee
to administer any Pension Plan, or the occurrence of any event or condition
which could reasonably be expected to constitute grounds under ERISA for the
termination of or the appointment of a trustee to administer, any Pension Plan;
(f) the incurrence by any ERISA Entity of any liability with respect to the
withdrawal or partial withdrawal from any Pension Plan or Multiemployer Plan;
(g) the receipt by an ERISA Entity of any notice, or the receipt by any
Multiemployer Plan from any ERISA Entity of any notice, concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; (h) the making of any amendment to any Pension Plan which
could result in the imposition of a lien or the posting of a bond or other
security; or (i) the occurrence of a nonexempt prohibited transaction (within
the meaning of Section 4975 of the Code or Section 406 of ERISA) which could
result in liability to the Borrower or any of its Subsidiaries.
"ERISA Group" shall mean the Borrower, any Subsidiary and all members
of a controlled group of corporations and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Code.
"Eurodollar Borrowing" shall mean each Borrowing of Eurodollar Loans.
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"Eurodollar Loan" shall mean each Loan designated as such by the
Borrower at the time of the incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean with respect a Eurodollar Loan (a) the
offered quotation to first-class banks in the New York interbank Eurodollar
market by BTCo for Dollar deposits of amounts in immediately available funds
comparable to the outstanding principal amount of the Eurodollar Loan for which
an interest rate is then being determined with maturities (comparable to the
Interest Period applicable to such Eurodollar Loan commencing two Business Days
thereafter as of 10:00 A.M. (New York time) on the date which is two Business
Days prior to the commencement of such Interest Period, divided (and rounded off
to the nearest 1/16 of 1%) by (b) a percentage equal to 100% minus the then
stated maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves required by
applicable law) applicable to any member bank of the Federal Reserve System in
respect of Eurocurrency funding or liabilities as defined in Regulation D (or
any successor category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section 10.
"Excess Cash Flow" shall mean, for any fiscal year of the Borrower,
Consolidated EBITDA for such period, minus Consolidated Net Cash Interest
Expense for such period, minus the provision for income taxes for such period
(to the extent paid in cash), minus the amount of Capital Expenditures made by
the Borrower and its Subsidiaries during such period pursuant to and in
accordance with Section 9.07 (except to the extent financed with the proceeds of
Indebtedness or pursuant to Capital Lease Obligations or to the extent
constituting a reinvestment of the Net Sale Proceeds (other than the gains, if
any, related thereto) from the sale of any assets under Section 4.02(f)), minus
(plus) additions (reductions) to Consolidated Working Capital for such period,
minus scheduled repayments of principal of outstanding Indebtedness to the
extent actually paid (including any voluntary payments of principal of
Indebtedness, but excluding voluntary payments of Revolving Loans and further
excluding voluntary payments made with proceeds of other Indebtedness or
equity), minus the aggregate cash consideration utilized to effect all Permitted
Acquisitions during such fiscal year (except to the extent such Permitted
Acquisitions were financed with the proceeds of Indebtedness (other than the
incurrence of Revolving Loans)).
"Excess Cash Payment Date" shall mean the date occurring 95 days after
the last day of each fiscal year of the Borrower (beginning with its fiscal year
ended closest to March 31, 2002).
"Excess Cash Payment Period" shall mean with respect to the repayment
required on each Excess Cash Payment Date, the immediately preceding fiscal year
of the Borrower.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Excluded Taxes" shall mean Taxes (including income or franchise Taxes)
imposed upon or determined by reference to any Bank's net income or net profits
but only to the extent such Taxes are imposed:
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(i) by the United States of America (or any State or local
jurisdiction or any agency thereof) including, without limitation,
branch profits Taxes;
(ii) by any jurisdiction in which an applicable Bank is
organized or has its principal office or applicable lending office; or
(iii) by any other jurisdiction as a result of a connection
between an applicable Bank (or such lending office or branch thereof),
other than a connection arising solely from the Administrative Agent or
Bank (or lending office or branch thereof) having executed, delivered
or performed its obligations under, or received a payment under or
enforced this Agreement.
"Existing Credit Agreement" shall mean the Second Amended and Restated
Credit Agreement dated as of March 2, 1998, as amended, among Holdings, the
Borrower, the lending institutions from time to time party thereto, BTCo and
First Union National Bank, as Syndication Agent.
"Existing Indebtedness" shall have the meaning provided in Section
7.22.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Rate" shall mean 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 the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fee Property" shall have the meaning provided in Section 7.13.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 3.01.
"Final Scheduled Maturity Dates" shall mean, collectively, the
Revolving Loan Maturity Date and the Tranche A Term Loan Maturity Date and the
Tranche B Term Loan Maturity Date.
"Foreign Plan" shall mean any employee benefit plan, program, policy,
arrangement or agreement maintained or contributed to by, or entered into with,
Borrower or any Subsidiary with respect to employees employed outside the United
States.
"Foreign Subsidiaries" shall mean those Subsidiaries of the Borrower
that are not Domestic Subsidiaries.
"GAAP" shall have the meaning provided in Section 13.07(a).
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"Government Real Property Disclosure Requirements" shall mean any law,
rule or regulation of any Governmental Authority requiring notification of the
buyer, mortgagee or assignee of Real Property, or notification, registration, or
filing to or with any Governmental Authority, prior to the sale, mortgage or
assignment of any Real Property or transfer of control of an establishment, of
the actual or threatened presence or release into the environment, or the use,
storage, treatment, disposal, or handling of Hazardous Material on, at, under or
near the Real Property to be sold or the establishment for which control is to
be transferred.
"Governmental Authority" shall mean any government or political
subdivision or any agency, authority, board, bureau, central bank, commission,
department or instrumentality of either, or any court, tribunal, grand jury or
arbitrator, in each case whether foreign or domestic, or any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GTCR" shall mean, collectively, Golder, Thoma, Xxxxxxx, Xxxxxx Inc.
and GTCR Xxxxxx Xxxxxx LLC or any entity controlled by either of them.
"Guaranteed Obligations" shall have the meaning provided in Section
14.01.
"Guaranty" shall mean the guaranty issued pursuant to Section 14.
"Hazardous Materials" means (a) any petroleum or petroleum products or
constituents thereof, radioactive materials, asbestos that is friable, urea
formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls in excess of 50
ppm, and radon gas; (b) any chemicals, materials or substances defined as or
included in the definition of "hazardous substances," "hazardous waste,"
"hazardous materials," "extremely hazardous substances," "restricted hazardous
waste," "toxic substances," "toxic pollutants," "contaminants," or "pollutants,"
or words of similar import, under any applicable Environmental Law; and (c) any
other chemical, material or substance, exposure to which is prohibited, limited
or regulated by any governmental authority under Environmental Laws.
"Holdings" shall have the meaning provided in the first paragraph of
this Agreement.
"Holdings Common Stock" shall mean the common stock of Holdings.
"Holdings Pledge Agreement" shall mean the Holdings Pledge Agreement
executed in connection with the Credit Agreement, substantially in the form of
Exhibit O hereto, made by Holdings in favor of the Collateral Agent, as such
agreement may be amended, modified or supplemented from time to time.
"Indebtedness" shall mean, as to any Person, without duplication, (i)
all indebtedness of such Person for borrowed money, (ii) the deferred purchase
price of assets or services payable to the sellers thereof or any of such
seller's assignees which in accordance with GAAP would be shown on the liability
side of the balance sheet of such Person but excluding deferred rent as
determined in accordance with GAAP, or for the deferred purchase price of
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property or services, (iii) the maximum amount available to be drawn under all
letters of credit issued for the account of such Person and all unpaid drawings
in respect of such letters of credit, (iv) all Indebtedness of the types
described in clause (i), (ii), (iii), (iv), (v), (vi), (vii) or (viii) of this
definition secured by any Lien on any property owned by such Person, whether or
not such Indebtedness has been assumed by such Person (to the extent of the
value of the respective property), (v) the aggregate amount required to be
capitalized under leases under which such Person is the lessee, (vi) all
obligations of such person to pay a specified purchase price for goods or
services, whether or not delivered or accepted; i.e., take-or-pay and similar
obligations, (vii) all Contingent Obligations of such Person and (viii) all
payment obligations under any Interest Rate Protection Agreement or Other
Hedging Agreements or under any similar type of agreement.
"Initial Appliance Warehouse Investment" shall have the meaning
provided in Section 9.02(h).
"Intercompany Loans" shall have the meaning provided in Section
9.05(g).
"Intercompany Notes" shall mean promissory notes, in the form of
Exhibit E, evidencing an Intercompany Loan.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section 1.10.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest collar agreement, interest rate
hedging agreement or other similar agreement or arrangement.
"Issuing Bank" shall mean BTCo and any Bank which at the request of the
Borrower and with the consent of the Administrative Agent agrees, in such Bank's
sole discretion, to become an Issuing Bank for the purpose of issuing Letters of
Credit pursuant to Section 2. The sole Issuing Bank on the Effective Date is
BTCo.
"Landlord Consent, Lien Waiver and Access Agreement" shall mean a
Landlord Consent, Lien Waiver and Access Agreement substantially in the form of
Exhibit H hereto.
"L/C Supportable Indebtedness" shall mean (i) obligations of the
Borrower or the Borrower's Domestic Subsidiaries (subsequent to the Permitted
Distribution, other than the Spinoff Guarantor) incurred in the ordinary course
of business with respect to insurance obligations and workers' compensation,
surety bonds and other similar statutory obligations and (ii) such other
obligations of the Borrower or any of the Borrower's Domestic Subsidiaries
(subsequent to the Permitted Distribution, other than the Spinoff Guarantor) as
are reasonably acceptable to the respective Issuing Bank and otherwise permitted
to exist pursuant to the terms of this Agreement.
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"Lead Arranger" shall mean Deutsche Banc Alex. Xxxxx in its capacity as
Lead Arranger for the Banks hereunder.
"Leased Properties" shall have the meaning provided in Section 7.13.
"Leaseholds" of any Person means all the right, title and interest of
such Person as lessee or licensee in, to and under leases or licenses of land,
improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the sum of (i)
the aggregate Stated Amount of all outstanding Letters of Credit and (ii) the
amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in Section
2.02(a).
"Leverage Pricing Adjustment" shall mean zero; provided that from and
after the first day of any Margin Adjustment Period (the "Start Date") to and
including the last day of such Margin Adjustment Period, the Leverage Pricing
Adjustment shall be the respective percentage per annum set forth below opposite
the respective Level indicated to have been achieved as of the last day of the
most recent fiscal quarter or year, as the case may be, ended immediately prior
to such Start Date:
Pro Forma Leverage Tranche A Term Loans
Ratio and Revolving Loans Tranche B Term Loans
----- ------------------- --------------------
Eurodollar Base Rate Eurodollar Base Rate
Loans Loans Loans Loans
----- ----- ----- -----
Level I 2.75 1.75 2.75 1.75
> 4.0:1.0
_
Level II 2.50 1.50 2.75 1.75
< 4.0:1.0 and
> 3.5:1.0
_
Level III 2.25 1.25 2.75 1.75
< 3.5:1.0 and
> 3.0:1.0
_
Level IV 2.00 1.00 2.50 1.50
< 3.0:1.0
Notwithstanding the foregoing, (a) from the Effective Date to the date of
delivery to the Administrative Agent of the financial statements and
certificates required by Section 8.01(b) or (c) and Section 8.01(f) for the
fiscal period ended at least six months after the Effective Date, the Leverage
Pricing Adjustment shall be deemed to be in Level I and (b)(i) at any time
during
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which the Borrower has failed to deliver the financial statements and
certificates required by Section 8.01(b) or (c) and Section 8.01(f),
respectively, or (ii) at any time after the occurrence and during the
continuance of a Default or Event of Default, the Leverage Pricing Adjustment
shall be deemed to be in Level I.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
attachments, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing) including any agreement
to give any of the foregoing.
"Loan" shall mean each Tranche A Term Loan, each Tranche B Term Loan,
each Revolving Loan and each Swingline Loan.
"Location Leases" shall mean leases, licenses or other agreements
pursuant to which the Borrower and/or any Subsidiary Guarantor leases, licenses
or otherwise obtains the right to use any Real Property at which Collateral
constituting personal property is located.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(e).
"Margin Adjustment Period" shall mean each period which shall commence
on a date on which the financial statements (or certificate in the case of
Section 8.01(n)) are delivered pursuant to Section 8.01(b), (c) or (m), as the
case may be, and which shall end on the earlier of (i) the date of actual
delivery of the next financial statements (or certificate in the case of Section
8.01(n)) pursuant to Section 8.01(b), (c) or (m), as the case may be, and (ii)
the latest date on which the next financial statements (or certificate in the
case of Section 8.01(n)) are required to be delivered pursuant to Section
8.01(b), (c) or (m), as the case may be; provided that the first Margin
Adjustment Period shall commence on the date that the financial statements are
delivered for the Borrower's first fiscal quarter ending at least six months
after the Effective Date (other than in the case of a consummation of a
Permitted Acquisition, in which case the Margin Adjustment Period shall commence
on the consummation of such Permitted Acquisition).
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall have the meaning provided in Section
5.12.
"Maturity Date" shall mean, with respect to any Tranche of Loans, the
Tranche A Term Loan Maturity Date, the Tranche B Term Loan Maturity Date, the
Revolving Loan Maturity Date or the Swingline Maturity Date, as the case may be.
"Maximum Swingline Amount" shall mean $7,500,000.
"Mortgage" shall mean fully executed counterparts of mortgages,
leasehold mortgages, deeds of trust and leasehold deeds of trust to secure debt
executed and delivered to the Collateral Agent on the Effective Date or in
accordance with the provisions of Section 8.10
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with respect to a Mortgaged Property, in each case in form and substance
reasonably satisfactory to the Collateral Agent.
"Mortgaged Property" shall mean each Fee Property listed on Schedule
7.13 hereto and each other Fee Property subject to a Mortgage delivered pursuant
to the provisions of Section 8.10.
"Multiemployer Plan" shall mean a multiemployer plan within the meaning
of Section 4001(a)(3) of ERISA (i) to which any ERISA Entity is then making or
accruing an obligation to make contributions, (ii) to which any ERISA Entity has
within the preceding five plan years made contributions, including any Person
which ceased to be an ERISA Entity during such five year period, or (iii) with
respect to which Borrower or a Subsidiary could incur liability.
"Net Sale Proceeds" shall mean for any sale of assets, the gross cash
proceeds (including any cash received by way of deferred payment pursuant to a
promissory note, receivable or otherwise, but only as and when received)
received from any sale of assets, net of reasonable transaction costs
(including, without limitation, any underwriting, brokerage or other customary
selling commissions and reasonable legal, advisory and other fees and expenses,
including title and recording expenses, associated therewith) and payments of
unassumed liabilities relating to the assets sold at the time of, or within 30
days after, the date of such sale, the amount of such gross cash proceeds
required to be used to repay any Indebtedness (other than Indebtedness of the
Banks pursuant to this Agreement) which is secured by the respective assets
which were sold, and the estimated marginal increase in income taxes which will
be payable by Holdings' consolidated group with respect to the fiscal year in
which the sale occurs as a result of such sale; but excluding any portion of any
such gross cash proceeds which the Borrower determines in good faith should be
reserved for post-closing adjustments (to the extent the Borrower delivers to
the Banks a certificate signed by its chief financial officer, controller or
chief accounting officer as to such determination), it being understood and
agreed that on the day that all such post-closing adjustments have been
determined, (which shall not be later than six months following the date of the
respective asset sale), the amount (if any) by which the reserved amount in
respect of such sale or disposition exceeds the actual post-closing adjustments
payable by the Borrower or any of its Subsidiaries shall constitute Net Sale
Proceeds on such date) received by the Borrower and/or any of its Subsidiaries
from such sale, lease, transfer or other disposition.
"New Bank" shall have the meaning provided in Section 1.02(b).
"Non-Defaulting Bank" shall mean and include each Bank other than a
Defaulting Bank.
"Note" shall mean each Tranche A Term Note, each Tranche B Term Note,
each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section 1.04.
"Notice of Conversion" shall have the meaning provided in Section 1.07.
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"Notice Office" shall mean the office of the Administrative Agent
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Deal
Administration, or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.
"Obligations" shall mean (a) obligations of the Borrower and any and
all of the other Credit Parties from time to time arising under or in respect of
the due and punctual payment of (i) the principal of and premium, if any, and
interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on each Note issued by the Borrower,
and Loans made, under this Agreement, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, (ii) each
payment required to be made by the Borrower and any and all of the other Credit
Parties under this Agreement in respect of any Letter of Credit, when and as
due, including payments in respect of reimbursement of disbursements, interest
thereon and obligations to provide cash collateral and (iii) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Borrower and any and all of the other
Credit Parties under this Agreement and the other Credit Documents, (b) the due
and punctual payment of all obligations of Borrower and any and all of the other
Credit Parties under each Interest Rate Protection Agreement or Other Hedging
Agreement entered into with any counterparty that was a Bank or Affiliate of a
Bank at the time such Interest Rate Protection Agreement or Other Hedging
Agreement was entered into and (c) the due and punctual payment of all
obligations in respect of overdrafts and related liabilities owed to any Bank,
any Affiliate of a Bank, the Administrative Agent or the Collateral Agent
arising from treasury, depositary and cash management services or in connection
with any automated clearinghouse transfer of funds.
"Other Hedging Agreement" shall mean any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency or
commodity values.
"Other Taxes" shall have the meaning set forth in Section 4.04(a).
"Participant" shall have the meaning provided in Section 2.03(a).
"Payment Office" shall mean the office of the Administrative Agent
located at 00 Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxx Xxxx, XX 00000, or such other
office as the Administrative Agent may hereafter designate in writing as such to
the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Pension Plan" shall mean an employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding
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standards under Section 412 of the Code or Section 302 of ERISA and is
maintained or contributed to by any ERISA Entity or with respect to which
Borrower or a Subsidiary could incur liability.
"Percentage" of any Bank at any time shall mean a fraction (expressed
as a percentage) the numerator of which is the Revolving Loan Commitment of such
Bank at such time and the denominator of which is the Total Revolving Loan
Commitment at such time; provided that if the Percentage of any Bank is to be
determined after the applicable Total Revolving Loan Commitment has been
terminated, then the Percentages of the Banks shall be determined immediately
prior (and without giving effect) to such termination.
"Permitted Acquisition" shall mean (a) the merger or consolidation of
any Person into the Borrower or any Wholly Owned Subsidiary of the Borrower or
(b) the acquisition by the Borrower or any Wholly Owned Subsidiary of the
Borrower of all or substantially all of the assets of any Person (or all or
substantially all of the assets of a product line or division of any Person) not
already a Subsidiary of the Borrower or 100% of the capital stock of any such
Person; provided that any such merger, consolidation or acquisition shall only
be a Permitted Acquisition so long as:
(A) no Default or Event of Default then exists or would result
therefrom (including giving pro forma effect to such acquisition and
any additional Indebtedness resulting therefrom or incurred or assumed
in connection therewith as if such acquisition had occurred and such
Indebtedness had been incurred as of the first day of the most recently
completed Test Period (including any other Permitted Acquisition that
occurred, and related Indebtedness which was incurred, during or
subsequent to such Test Period); provided that for purposes of
calculating the Pro Forma Leverage Ratio, the applicable ratio for such
Test Period shall be deemed to be .25 to 1.00 less than the ratio set
forth opposite the applicable fiscal quarter listed in Section 9.08);
(B) pro forma for such acquisitions and the financings
incurred and conforming accounting adjustments made in connection
therewith, (x) the Borrower's Consolidated Adjusted Senior Leverage
Ratio shall be less than 2.50:1.00, (y) Total Unutilized Revolving Loan
Commitment shall be least $25,000,000 and (z) the total aggregate
consideration for all Permitted Acquisitions in any twelve month period
shall not be greater than the sum of $100,000,000 plus the amount of
such consideration paid in the form of, with the proceeds from the sale
of, or by exchange of, equity interests of Holdings and its
Subsidiaries;
(C) such Permitted Acquisition shall be engaged in the
Business;
(D) subject to the provisos in clause (E) below, the Borrower
shall have given the Administrative Agent and the Banks at least 10
days prior notice of any Permitted Acquisition (each such notice a
"Permitted Acquisition Notice") which notice shall contain (i) the date
such Permitted Acquisition is scheduled to be consummated, (ii) the
estimated purchase price of such Permitted Acquisition, (iii) a
description of the business and the stock and/or assets to be acquired
in connection with such Permitted Acquisition,
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(iv) the sources of cash to be paid in respect of such Permitted
Acquisition and (v) in the case of Holdings Common Stock issued as
consideration to the seller in connection with a Permitted Acquisition,
a description of the Holdings Common Stock to be issued in connection
with the consummation of such Permitted Acquisition and the estimated
fair market value (as determined in good faith by the Board of
Directors of Holdings) thereof;
(E) the Borrower shall have delivered to the Administrative
Agent, at the time of delivery of the Permitted Acquisition Notice, a
certificate of an Authorized Officer of the Borrower (a "Permitted
Acquisition Compliance Certificate") to the effect all of the
requirements of this definition of "Permitted Acquisition" have been
met and which certificate shall set forth in reasonable detail the pro
forma calculation of the Consolidated Adjusted Senior Leverage Ratio as
of the date of the Permitted Acquisition, giving effect thereto, and
show compliance (in reasonable detail as to pro forma calculations);
provided, however, that with respect to Permitted Acquisitions in
respect of which the total consideration payable is less than
$20,000,000, such Permitted Acquisition Notice and Permitted
Acquisition Compliance Certificate of Borrower may be delivered to the
Administrative Agent promptly upon, and in any event within 10 Business
Days after, the closing of such Permitted Acquisition; and provided,
further, that with respect to Permitted Acquisitions in respect of
which the total consideration is less than $10,000,000, such Permitted
Acquisition Notice and the Permitted Acquisition Compliance
Certificate's requisite information may be incorporated into the
officer's certificate and financial statements provided for in Sections
8.01(b) and (c) and furnished to each Bank at the time of delivery of
the financial statements provided for in Sections 8.01(b) and (c); and
(F) subsequent to affecting the Permitted Distribution of any
Spinoff Guarantor and prior to the Spinoff Guarantor Release Event for
such Spinoff Guarantor, neither Borrower nor any of its Subsidiaries
shall be permitted to affect a merger or consolidation with such
Spinoff Guarantor or repurchase the Spinoff Guarantor or any material
portion of its assets from Holdings or any of its Affiliates, in each
case if the consideration for such transaction, if any, is other than
the stock of the Borrower.
"Permitted Acquisition Capital Expenditures" shall be an amount equal
to 115% of the Capital Expenditures made by the Person (or in the case of an
asset acquisition, the Capital Expenditures relating to the assets) being
acquired as a part of a Permitted Acquisition prior to the time of such
Permitted Acquisition measured by the amount reported in the quarterly
financials for the four immediately preceding fiscal quarters. Such full 115%
amount shall be available for Capital Expenditures in each succeeding fiscal
year, beginning the next full fiscal year after the date of such Permitted
Acquisition, and a pro rata amount for the year in which such Permitted
Acquisition is consummated shall be available.
"Permitted Acquisition Compliance Certificate" shall have the meaning
provided in the definition of "Permitted Acquisition."
"Permitted Acquisition Cost-Savings" shall mean certain cost-savings
adjustments reasonably anticipated by the Borrower to be achieved in connection
with Permitted
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Acquisitions and upon the Agents' request shall be (i) made in
accordance with Regulation S-X; (ii) verified by Ernst & Young L.L.P., or
another nationally recognized accounting firm or as otherwise agreed to by the
Administrative Agent; and (iii) not in excess of 10% of pro forma actual
Consolidated EBITDA without regard to such cost-savings; provided, however, that
all such Permitted Acquisition Cost-Savings shall be estimated on a good-faith
basis by the Borrower and shall be reduced by (x) one half, six months following
each such Permitted Acquisition, (y) an additional one quarter, nine months
following each such Permitted Acquisition and (z) an additional one quarter,
twelve months following each such Permitted Acquisition.
"Permitted Acquisition Notice" shall have the meaning provided in the
definition of "Permitted Acquisition."
"Permitted Distribution" means (i) if the Initial Appliance Warehouse
Investment has occurred, the sale, issuance, conveyance, transfer, contribution
or other disposition of the Spinoff Guarantor in any transaction in which the
Spinoff Guarantor is no longer a Subsidiary of the Borrower or (ii) if the
Initial Appliance Warehouse Investment has not occurred, the dividend or other
disposition of Appliance Warehouse Assets to Holdings or its Affiliates and the
contribution or other disposition of such assets into a Person that shall become
a Subsidiary Guarantor hereunder; provided that at the time of such dividend or
other disposition such assets shall not have a book value greater than $45.0
million, of which the amount of cash and Cash Equivalents shall not exceed $2.0
million; provided, further, that the Spinoff Guarantor shall remain a Guarantor
until the occurrence of the Spinoff Guarantor Release Event.
"Permitted Encumbrance" shall mean, with respect to any Mortgaged
Property, such exceptions to title as are set forth in the title insurance
policy or title commitment delivered with respect thereto, all of which
exceptions must be acceptable to the Administrative Agent in its reasonable
discretion.
"Permitted Filings" shall have the meaning provided in the Security
Agreement.
"Permitted Liens" shall have the meaning provided in Section 9.01.
"Permitted Tax Distribution" shall mean the payment of any dividends or
distributions on the equity interest of the Spinoff Guarantor to the extent
necessary to permit direct or indirect owners of such equity interest to receive
tax distributions in an aggregate amount with respect to each taxable year of
the Spinoff Guarantor (whether or not such dividends or distributions are made
during such taxable year) equal to the taxable income of a Spinoff Guarantor
allocated to a partner or member, as the case may be, multiplied by the highest
combined federal, state and local income tax rate (including, to the extent
applicable, alternative minimum tax) solely as a result of a Spinoff Guarantor
(and any intermediate entity through which such holder owns such equity
interests) being a partnership, limited liability company, S corporation, trust
or similar pass-through entity for federal income tax purposes.
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"Person" shall mean any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
"Pledge Agreements" shall mean the Holdings Pledge Agreement and the
Credit Party Pledge Agreement.
"Pledge Agreement Collateral" shall mean all "Collateral" as defined in
each of the Pledge Agreements.
"Pledged Securities" shall mean "Pledged Securities" as defined in each
of the Credit Party Pledge Agreement and Holdings Pledge Agreement.
"Prime Lending Rate" shall mean the rate which BTCo announces from time
to time as its prime lending rate, the Prime Lending Rate to change when and as
such prime lending rate changes. The Prime Lending Rate is a reference rate and
does not necessarily represent the lowest or best rate actually charged to any
customer. BTCo may make commercial loans or other loans at rates of interest at,
above or below the Prime Lending Rate.
"Principal Leases" shall mean leases, licenses or other agreements
pursuant to which the Borrower and/or any Subsidiary Guarantor leases or
otherwise obtains the right to use any Real Property utilized for warehouse
distribution and/or office purposes.
"Pro Forma Leverage Ratio" shall mean, at any time for the
determination thereof, the ratio of (x) Consolidated Indebtedness at such time
minus the amount, as of the last day of the Test Period then last ended, of cash
and Cash Equivalents held by the Borrower and its Consolidated Subsidiaries in
excess of $25,000,000 to (y) Consolidated EBITDA for the Test Period then last
ended, with such Pro Forma Leverage Ratio to be determined on a pro forma basis
as if any Permitted Acquisition that occurred during or subsequent to such Test
Period (and the incurrence, assumption and/or repayment of any Indebtedness in
connection with any such Permitted Acquisition), as the case may be, had
occurred on the first day of such Test Period (and such Indebtedness, if any,
had remained outstanding (or had not been outstanding, as the case may be)
throughout such Test Period) it being understood that in calculating the Pro
Forma Leverage Ratio in connection with each and every Permitted Acquisition,
Consolidated EBITDA shall include the results of operations of the Person or
assets acquired pursuant to each such Permitted Acquisition on a pro forma basis
as if such acquisition had occurred on the first day of the respective Test
Period and shall include any conforming accounting adjustments made in
connection therewith, including any Permitted Acquisition Cost-Savings. On the
date of any Permitted Acquisition pursuant to which the Pro Forma Leverage Ratio
is to be calculated and on each date of calculation of Pro Forma Leverage Ratio,
the Borrower shall deliver to the Administrative Agent a certificate of an
Authorized Officer of the Borrower setting forth in reasonable detail the pro
forma calculations required to establish the Pro Forma Leverage Ratio (with such
pro forma calculations to be made on a basis reasonably satisfactory to the
Administrative Agent and to assume that the interest expense attributable to any
Indebtedness (whether existing or being incurred) bearing a floating interest
rate shall be computed as if the rate in effect on the date of such Permitted
Acquisition (taking into account any Interest Rate
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Protection Agreement applicable to such Indebtedness if such Interest Rate
Protection Agreement has a remaining term in excess of 12 months) had been the
applicable rate for the entire period).
"Projections" shall have the meaning provided in Section 7.05(e).
"Quarterly Payment Date" shall mean the last Business Day of each
March, June, September and December, occurring after the Effective Date;
provided that the first Quarterly Payment Date shall be March 31, 2002.
"RCRA" shall mean the Resource Conservation and Recovery Act, as the
same may be amended from time to time, 42 U.S.C. ss. 6901 et seq.
"Real Property" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by the Borrower or any
Subsidiary Guarantor of any cash insurance proceeds or condemnation award
payable (i) by reason of theft, loss, physical destruction or damage or any
other similar event with respect to any property or assets of the Borrower or
any Subsidiary Guarantor and (ii) under any policy of insurance required to be
maintained under Section 8.03.
"Register" shall have the meaning provided in Section 13.15.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"Regulation S-X" shall mean Regulation S-X, Title 17, Code of Federal
Regulations as from time to time in effect and any successor to all or a portion
thereof.
"Regulation T" shall mean Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing or
migration into the environment.
"Release Payment" shall have the meaning provided in the definition of
"Spinoff Guarantor Release Event."
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"Replaced Bank" shall have the meaning provided in Section 1.14.
"Replacement Bank" shall have the meaning provided in Section 1.14.
"Required Banks" means Non-Defaulting Banks holding at least a majority
of the aggregate outstanding Loans (after giving effect to each Non-Defaulting
Revolving Loan Bank's Percentage of Swingline Loans), Letter of Credit
Outstandings (after giving effect to each Participant's Adjusted Percentage) and
Total Unutilized Revolving Loan Commitments held by Non-Defaulting Banks.
"Retained Amount" shall mean that portion of Excess Cash Flow that may
be retained by the Borrower in accordance with Section 4.02(h).
"Revolving Loan" shall have the meaning provided in Section 1.01(c).
"Revolving Loan Banks" shall have the meaning provided in Section
1.01(c).
"Revolving Loan Commitment" shall mean, for each Bank, the amount set
forth opposite such Bank's name in Annex I hereto directly below the column
entitled "Revolving Loan Commitment," as the same may be (x) reduced from time
to time pursuant to Sections 3.02, 3.03, 4.02 and/or 10 or (y) adjusted from
time to time as a result of assignments to or from such Bank pursuant to Section
1.14 or 13.04(b).
"Revolving Loan Maturity Date" shall mean January 25, 2008.
"Revolving Note" shall have the meaning provided in Section 1.06(a).
"Rollover Amount" shall have the meaning provided in Section 9.07(b).
"Scheduled Repayments" shall mean the Tranche A Term Loan Scheduled
Repayments and the Tranche B Term Loan Scheduled Repayments.
"Secured Creditors" shall have the meaning assigned that term in the
Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Security Agreement" shall mean the Security Agreement, substantially
in the form of Exhibit L, among the Borrower and the Subsidiary Guarantors and
the Collateral Agent for the benefit of the Secured Creditors, as the same may
be amended, modified or supplemented from time to time or such other agreements
acceptable to the Collateral Agent as shall be necessary to comply with any and
all laws, ordinances, rules, regulations or similar statutes or case law,
including, without limitation, of any applicable Governmental Authority and
effective to grant to the Collateral Agent a perfected first priority Lien on
and security interest in the Collateral.
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"Security Agreement Collateral" shall mean all "Collateral" as defined
in the Security Agreement.
"Security Documents" shall mean, collectively, each Pledge Agreement,
each Mortgage, the Security Agreement, the Collateral Assignment of Leases and
the Collateral Assignment of Location Leases and each other security document or
pledge agreement required by any applicable Governmental Authority (including,
without limitation, any and all laws, ordinances, rules, regulations or similar
statutes or case law) to grant a valid, perfected first priority Lien on and
security interest in any property required to be made subject to the Lien of the
Security Documents pursuant to the provisions thereof or pursuant to Section
8.10 and all UCC or other financing statements or instruments of perfection
required by this Agreement, the Security Agreement, any Mortgage or any Pledge
Agreement to be filed with respect to the security interests in the property
created pursuant to any Security Agreement, any Mortgage or any Pledge Agreement
and any other document or instrument utilized to pledge or grant a security
interest in any property of whatever kind or nature as Collateral for the
Obligations, including, without limitation, any and all documents or instruments
delivered pursuant to Section 8.10.
"Senior Notes" shall mean $450,000,000 in aggregate principal amount of
the Borrower's 9% senior unsecured notes due 2010 issued pursuant to the Senior
Notes Indenture.
"Senior Notes Indenture" shall mean that certain indenture dated as of
January 25, 2002 between the Borrower and U.S. Bank, N.A., as trustee. "Spinoff
Guarantor" shall have the meaning provided in Section 9.02(h).
"Spinoff Guarantor Note" shall have the meaning provided in Section
9.02(h).
"Spinoff Guarantor Release Event" means, with respect to a Spinoff
Guarantor, receipt by the Borrower of an amount in cash or Cash Equivalents
equal to not less than 3.0 times the Consolidated EBITDA of the Spinoff
Guarantor during the four quarter period ending on or prior to the date of
receipt by the Borrower of such funds representing (i) an equity contribution in
Borrower, (ii) repayment of all or a portion of the aggregate outstanding
principal amount of the Appliance Warehouse Notes or (iii) a combination of
amounts permitted by clauses (i) and (ii) above (such amounts, the "Release
Payments"), and the concurrent release of the Spinoff Guarantor's Guaranty of
the Senior Notes; provided that the Spinoff Guarantor's Guaranty shall not be
released unless and until the Borrower and its Subsidiaries shall have been
released from any guarantees of Indebtedness of the Spinoff Guarantor; provided,
further, that to the extent the Borrower receives any such cash or Cash
Equivalents as described above, the Borrower shall apply such cash or Cash
Equivalents in accordance with Section 4.02(f); provided, further, that upon the
fulfillment of all of the requirements of this definition of Spinoff Guarantor
Release Event, the Spinoff Guarantor shall be automatically released from the
Guaranteed Obligation hereunder and its obligation under the Security Documents.
"Start Date" shall have the meaning provided in the definition of
Leverage Pricing Adjustment.
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"Stated Amount" of each Letter of Credit shall, at any time, mean the
maximum amount available to be drawn thereunder (in each case determined without
regard to whether any conditions to drawing could then be met).
"Subordinated Indebtedness" shall mean Indebtedness of the Borrower or
any of its Subsidiaries that is contractually subordinated to any Indebtedness
of the Borrower or any of its Subsidiaries, as applicable.
"Subsidiary" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Subsidiaries of
such Person has more than a 50% equity interest at the time; provided that for
purposes of this definition the Spinoff Guarantor shall be deemed a Subsidiary
of the Borrower at all times until the occurrence of the Spinoff Guarantor
Release Event.
"Subsidiary Guarantor" shall mean each Domestic Subsidiary of the
Borrower.
"Super Laundry" shall mean Super Laundry Equipment Corp., a New York
corporation and a Wholly-Owned Subsidiary of the Borrower.
"Supermajority Banks" means (x) in the case of the Tranche A Term
Loans, Non-Defaulting Banks holding at least 66 2/3% of the outstanding Tranche
A Term Loans, (y) in the case of the Tranche B Term Loans, Non-Defaulting Banks
holding at least 66 2/3% of the outstanding Tranche B Term Loans and (z) in the
case of Revolving Loans, Non-Defaulting Banks holding at least 66 2/3% of the
outstanding Revolving Loans (after giving effect to each Non-Defaulting Bank's
Percentage of Swingline Loans), Letter of Credit Outstandings (after giving
effect to each Participant's Adjusted Percentage) and Total Unutilized Revolving
Loan Commitments held by the Non-Defaulting Banks.
"Survey" shall mean a survey of any Real Property (and all improvements
thereon): (i) prepared by a surveyor or engineer licensed to perform surveys in
the state, province or country where such Real Property is located; (ii)
certified by the surveyor (in a manner reasonably acceptable to the Collateral
Agent) to the Collateral Agent; and (iii) sufficiently detailed for a title
company to delete the survey exceptions and issue a comprehensive endorsement in
any applicable title insurance policy, and if necessary to do so, complying in
all respects with the minimum detail requirements of the American Land Title
Association as such requirements are in effect on the date of preparation of
such Survey.
"Swingline Expiry Date" shall mean the date which is five Business Days
prior to the Revolving Loan Maturing Date.
"Swingline Loan" shall have the meaning provided in Section 1.01(d).
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"Swingline Note" shall have the meaning provided in Section 1.06(a).
"Syndication Agents" shall mean X.X. Xxxxxx Securities Inc., and First
Union Securities, Inc. in their capacity as Syndication Agents for the Banks
hereunder, and shall include any successors to the Syndication Agents.
"Syndication Date" shall mean that date upon which the Administrative
Agent determines in its sole discretion (and notifies the Borrower) that the
primary syndication (and resultant addition of institutions as Banks pursuant to
Section 13.04) has been completed.
"Tax Returns" shall mean all returns, declarations, reports, estimates,
information returns, refund claims, statements and forms or other documents
(including any related or supporting information) required to be filed in
respect of any Taxes.
"Tax Sharing Agreements" shall mean all tax sharing, tax allocation and
other similar agreements entered into by Holdings or any Subsidiary of Holdings.
"Taxes" shall mean any present or future tax, levy, stamp, impost,
duty, deduction, assessment or other charge or withholding (including any
intangible, documentary or excise tax), and all liabilities with respect thereto
(including penalties, interest and expenses) imposed, levied, collected,
withheld or assessed by or on behalf of any Governmental Authority.
"Term Loan" shall mean the Tranche A Term Loan or the Tranche B Term
Loan.
"Term Loan Commitment" shall mean each Tranche A Term Loan Commitment
and each Tranche B Term Loan Commitment, with the Term Loan Commitment of any
Bank at any time to equal the sum of its Tranche A Term Loan Commitment and
Tranche B Term Loan Commitment as then in effect.
"Test Period" shall mean for any date of determination the period of
four most recently ended consecutive fiscal quarters of the Borrower, in each
case taken as one accounting period.
"Total Commitments" shall mean, at any time, the sum of the Commitments
of each of the Banks.
"Total Revolving Loan Commitment" shall mean, at any time, the sum of
the Revolving Loan Commitments of each of the Banks.
"Total Term Loan Commitment" shall mean, at any time, the sum of the
Total Tranche A Term Loan Commitment and Total Tranche B Term Loan Commitment.
"Total Tranche A Term Loan Commitment" shall mean, at any time, the sum
of the Tranche A Term Loan Commitments of each of the Banks.
"Total Tranche B Term Loan Commitment" shall mean, at any time, the sum
of the Tranche B Term Loan Commitments of each of the Banks.
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"Total Unutilized Revolving Loan Commitment" shall mean, at any time,
an amount equal to the remainder of (x) the then Total Revolving Loan
Commitment, less (y) the sum of (i) the aggregate principal amount of Revolving
Loans and Swingline Loans then outstanding and (ii) the then aggregate amount of
Letter of Credit Outstandings.
"Tranche" shall mean the respective facility and commitments utilized
in making Loans hereunder, with there being three separate Tranches; i.e.,
Tranche A Term Loans, Tranche B Term Loans and Revolving Loans.
"Tranche A Term Loan" shall have the meaning provided in Section
1.01(a).
"Tranche A Term Loan Commitment" shall mean, for each Bank, the amount
set forth opposite such Bank's name in Annex I hereto directly below the column
entitled "Tranche A Term Loan Commitment," as same may be (x) reduced from time
to time pursuant to Sections 3.03, 4.02 and/or 10 or (y) adjusted from time to
time as a result of assignments to or from such Bank pursuant to Section 1.14 or
13.04.
"Tranche A Term Loan Maturity Date" shall mean January 25, 2008.
"Tranche A Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(c).
"Tranche A Term Loan Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(c).
"Tranche A Term Note" shall have the meaning provided in Section
1.06(a).
"Tranche B Term Loan" shall have the meaning provided in Section
1.01(b).
"Tranche B Term Loan Commitment" shall mean, for each Bank, the amount
set forth opposite such Bank's name in Annex I directly below the column
entitled "Tranche B Term Loan Commitment," as same may be (x) reduced from time
to time pursuant to Sections 3.03, 4.02 and/or 10 or (y) adjusted from time to
time as a result of assignments to or from such Bank pursuant to Section 1.14 or
13.04.
"Tranche B Term Loan Maturity Date" shall mean July 25, 2009.
"Tranche B Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(d).
"Tranche B Term Loan Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(d).
"Tranche B Term Note" shall have the meaning provided in Section
1.06(a).
"Transactions" shall have the meaning provided in Section 5.05(b).
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"Type" shall mean the type of Loan determined with regard to the
interest option applicable thereto; i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"United States" and "U.S." shall each mean the United States of
America.
"Unpaid Drawing" shall have the meaning provided for in Section
2.04(a).
"Unutilized Revolving Loan Commitment" with respect to any Bank, at any
time, shall mean such Bank's Revolving Loan Commitment at such time less the sum
of (i) the aggregate outstanding principal amount of Revolving Loans made by
such Bank (plus, in the case of BTCo, the aggregate outstanding principal amount
of Swingline Loans made by BTCo) and (ii) such Bank's Adjusted Percentage of the
Letter of Credit Outstandings in respect of Letters of Credit issued under this
Agreement.
"Wholly Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying shares
or, with respect to any Foreign Subsidiary, an immaterial amount of shares
required to be owned by other Persons pursuant to applicable law) is at the time
owned by such Person and/or one or more Wholly Owned Subsidiaries of such Person
and (ii) any partnership, association, joint venture or other entity in which
such Person and/or one or more Wholly Owned Subsidiaries of such Person has a
100% equity interest at such time.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part 1 of Subtitle E of Title IV of ERISA.
SECTION 12. THE ADMINISTRATIVE AGENT.
12.01 Appointment. The Banks hereby designate Bankers Trust Company as
Administrative Agent (for purposes of this Section 12, the term "Administrative
Agent" shall include BTCo in its capacity as Collateral Agent pursuant to the
Security Documents) to act as specified herein and in the other Credit
Documents. Each Bank hereby irrevocably authorizes, and each holder of any Note
by the acceptance of such Note shall be deemed irrevocably to authorize, the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Administrative Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Administrative Agent may
perform any of its duties hereunder by or through its respective officers,
directors, agents, employees or affiliates.
12.02 Nature of Duties. The Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement
and the Security Documents. Neither the Administrative Agent nor any of its
respective officers, directors, agents, employees
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or affiliates shall be liable for any action taken or omitted by it or them
hereunder or under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful misconduct.
The duties of the Administrative Agent shall be mechanical and administrative in
nature; the Administrative Agent shall not have by reason of this Agreement or
any other Credit Document a fiduciary relationship in respect of any Bank or the
holder of any Note; and nothing in this Agreement or any other Credit Document,
expressed or implied, is intended to or shall be so construed as to impose upon
the Administrative Agent any obligations in respect of this Agreement or any
other Credit Document except as expressly set forth herein or therein. 12.03
Lack of Reliance on the Administrative Agent. Independently and without reliance
upon the Administrative Agent, each Bank and the holder of each Note, to the
extent it deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of the Borrower
and its Subsidiaries in connection with the making and the continuance of the
Loans and the taking or not taking of any action in connection herewith and (ii)
its own appraisal of the creditworthiness of the Borrower and its Subsidiaries
and, except as expressly provided in this Agreement, the Administrative Agent
shall not have any duty or responsibility, either initially or on a continuing
basis, to provide any Bank or the holder of any Note with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter. The Administrative Agent
shall not be responsible to any Bank or the holder of any Note for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of the Borrower and its Subsidiaries or be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement or any other Credit
Document, or the financial condition of the Borrower and its Subsidiaries or the
existence or possible existence of any Default or Event of Default.
12.04 Certain Rights of the Administrative Agent. If the Agent shall
request instructions from the Required Banks with respect to any act or action
(including failure to act) in connection with this Agreement or any other Credit
Document, the Administrative Agent shall be entitled to refrain from such act or
taking such action unless and until the Administrative Agent shall have received
instructions from the Required Banks; and the Administrative Agent shall not
incur liability to any Person by reason of so refraining. Without limiting the
foregoing, no Bank or the holder of any Note shall have any right of action
whatsoever against the Administrative Agent as a result of the Administrative
Agent acting or refraining from acting hereunder or under any other Credit
Document in accordance with the instructions of the Required Banks.
12.05 Reliance. The Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
any Person that the Administrative Agent believed to be the proper Person, and,
with respect to all legal matters pertaining to this Agreement and any other
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Credit Document and its duties hereunder and thereunder, upon advice of counsel
selected by the Administrative Agent.
12.06 Indemnification. To the extent the Administrative Agent is not
reimbursed and indemnified by the Borrower, the Banks will reimburse and
indemnify the Administrative Agent, in proportion to their respective
"percentages" as used in determining the Required Banks (with such "percentages"
to be determined as if there are no Defaulting Banks), for and against any and
all liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by the Administrative Agent in
performing its respective duties hereunder or under any other Credit Document,
in any way relating to or arising out of this Agreement or any other Credit
Document, except to the extent such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements are
finally judicially determined to have resulted from the Administrative Agent's
gross negligence or willful misconduct.
12.07 The Administrative Agent in Its Individual Capacity. With respect
to its obligation to make Loans under this Agreement, the Administrative Agent
shall have the rights and powers specified herein for a "Bank" and may exercise
the same rights and powers as though it were not performing the duties specified
herein; and the term "Banks," "Required Banks," "holders of Notes" or any
similar terms shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent may
accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with any Credit Party or any Affiliate of any
Credit Party as if they were not performing the duties specified herein, and may
accept fees and other consideration from the Borrower or any other Credit Party
for services in connection with this Agreement and otherwise without having to
account for the same to the Banks.
12.08 Holders. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with the Administrative Agent. Any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee, assignee or indorsee, as the case may be,
of such Note or of any Note or Notes issued in exchange therefor.
12.09 Resignation by the Administrative Agent. (a) The Administrative
Agent may resign from the performance of all its functions and duties hereunder
and/or under the other Credit Documents at any time by giving 30 Business Days'
prior written notice to the Borrower and the Banks. Such resignation shall take
effect upon the appointment of a successor Administrative Agent pursuant to
clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Banks shall appoint a
successor Administrative Agent hereunder or thereunder who shall be a commercial
bank or trust company reasonably acceptable to the Borrower, except after an
Event of Default.
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(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent, with the
consent of the Borrower, except after an Event of Default, shall then appoint a
successor Administrative Agent who shall serve as Administrative Agent hereunder
or thereunder until such time, if any, as the Banks appoint a successor
Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant to
clause (b) or (c) above by the 30th Business Day after the date such notice of
resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Banks shall thereafter perform all
the duties of the Administrative Agent hereunder and/or under any other Credit
Document until such time, if any, as the Banks appoint a successor
Administrative Agent as provided above.
SECTION 13. MISCELLANEOUS.
13.01 Payment of Expenses, etc. The Borrower shall: (i) whether or not
the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Agents (for the purposes of this Section
13.01, the term Agent shall include the Collateral Agent) (including, without
limitation, the reasonable fees and disbursements of Xxxxxx Xxxxxx & Xxxxxxx and
local counsel) in connection with the preparation, execution and delivery of
this Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein and any amendment, waiver or consent relating
hereto or thereto, and in connection with the initial syndication efforts with
respect to this Agreement and of the Agents and, following an Event of Default,
each of the Banks in connection with the enforcement of this Agreement and the
other Credit Documents and the documents and instruments referred to herein and
therein (including, without limitation, the reasonable fees and disbursements of
counsel for the Agents and, following an Event of Default, for each of the
Banks); (ii) pay and hold each of the Banks harmless from and against any and
all present and future stamp, excise and other similar taxes with respect to the
foregoing matters and save each of the Banks harmless from and against any and
all liabilities with respect to or resulting from any delay or omission to pay
such taxes; and (iii) indemnify each of the Agents and each Bank, and each of
their Affiliates and each of them and their respective officers, directors,
trustees, employees, representatives and agents from and hold each of them
harmless against any and all liabilities, obligations (including removal or
remedial actions), losses, damages, penalties, claims, actions, judgments,
suits, costs, expenses and disbursements (including reasonable attorneys' and
consultants' fees and disbursements) incurred by, imposed on or assessed against
any of them as a result of, or arising out of, or in any way related to, or by
reason of, (a) any investigation, litigation or other proceeding (whether or not
any Agent or any Bank is a party thereto) related to the entering into and/or
performance of this Agreement or any other Credit Document or the use of any
Letter of Credit or the proceeds of any Loans hereunder or the consummation of
any transactions contemplated herein or in any other Credit Document or the
exercise of any of their rights or remedies provided herein or in the other
Credit Documents, or (b) the actual or alleged presence of Hazardous Materials
in the air, surface water or groundwater or on the surface or subsurface of any
Real Property owned or at any time operated by the Borrower or any of its
Subsidiaries, the generation, storage, transportation, handling or disposal of
Hazardous Materials at any location, whether or not owned or operated by the
Borrower or any of its Subsidiaries, the non-
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compliance of any Real Property with foreign, federal, state and local laws,
regulations, and ordinances (including applicable permits thereunder) applicable
to any Real Property, or any Environmental Claim asserted against the Borrower,
any of its Subsidiaries or any Real Property owned or at any time operated by
the Borrower or any of its Subsidiaries, including, in each case, without
limitation, the reasonable fees and disbursements of counsel and other
consultants incurred in connection with any such investigation, litigation or
other proceeding (but excluding any losses, liabilities, claims, damages or
expenses to the extent finally judicially determined to have been incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified). To the extent that the undertaking to indemnify, pay or hold
harmless any Agent or any Bank set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Borrower
shall make the maximum contribution to the payment and satisfaction of each of
the indemnified liabilities which is permissible under applicable law.
13.02 Right of Set-off. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, each Agent, each Letter
of Credit Issuer and each Bank is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrower or to any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and apply any and all deposits (general or
special) and any other Indebtedness at any time held or owing by such Agent,
such Issuing Bank and such Bank (including, without limitation, by branches and
agencies of such Agent, such Issuing Bank and such Bank wherever located) to or
for the credit or the account of the Borrower or any other Subsidiary Guarantor
against and on account of the Obligations and liabilities of the Borrower or any
other Subsidiary Guarantor to such Agent, such Issuing Bank and such Bank under
this Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations purchased by such Bank pursuant to
Section 13.06(b), and all other claims of any nature or description arising out
of or connected with this Agreement or any other Credit Document, irrespective
of whether or not such Agent, such Issuing Bank and such Bank shall have made
any demand hereunder and although said Obligations, liabilities or claims, or
any of them, shall be contingent or unmatured.
13.03 Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to the Borrower, at
the Borrower's address specified opposite its signature below; if to any Bank
and any Agent (other than the Administrative Agent), at its address specified
opposite its name on Annex II below; and if to the Administrative Agent, at its
Notice Office; or, as to any Credit Party or the Administrative Agent, at such
other address as shall be designated by such party in a written notice to the
other parties hereto and, as to each Bank or any other Agent, at such other
address as shall be designated by such Bank in a written notice to the Borrower
and the Administrative Agent. All such notices and communications shall, when
mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight
courier, be effective when deposited in the mails, delivered to the telegraph
company, cable company or overnight courier, as the case may be, or sent by
telex or telecopier, except that notices and communications to the
Administrative Agent and the Borrower shall not be effective until received by
the Administrative Agent or the Borrower, as the case may be.
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13.04 Benefit of Agreement. (a) This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, no Credit Party may assign or
transfer any of its rights, obligations or interest hereunder or under any other
Credit Document without the prior written consent of the Banks; and provided
further, that, although any Bank may transfer, assign or grant participations in
its rights hereunder, such Bank shall remain a "Bank" for all purposes hereunder
(and may not transfer or assign all or any portion of its Commitments hereunder
except as provided in Section 13.04(b)) and the transferee, assignee or
participant, as the case may be, shall not constitute a "Bank" hereunder; and
provided, further, that no Bank shall transfer or grant any participation under
which the participant shall have rights to approve any amendment to or waiver of
this Agreement or any other Credit Document except to the extent such amendment
or waiver would (i) extend the applicable Final Scheduled Maturity Date of the
Tranche in which such participant is participating, or reduce the rate or extend
the time of payment of interest or Fees thereon (except in connection with a
waiver of applicability of any post-default increase in interest rates) or
reduce the principal amount thereof, or increase the amount of the participant's
participation over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of a mandatory reduction in the
Total Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan shall be permitted
without the consent of any participant if the participant's participation is not
increased as a result thereof), (ii) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement or (iii)
release (x) the Guaranty of any Subsidiary Guarantor (except as otherwise
provided in Section 9.02) or (y) all or substantially all of the Collateral
under all of the Security Documents (except as expressly provided in the
Security Documents) or in connection with a sale otherwise permitted hereby),
supporting the Loans hereunder in which such participant is participating. In
the case of any such participation, the participant shall not have any rights
under this Agreement or any of the other Credit Documents (the participant's
rights against such Bank in respect of such participation to be those set forth
in the agreement executed by such Bank in favor of the participant relating
thereto) and all amounts payable by the Borrower hereunder shall be determined
as if such Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank together with
one or more other Banks) may (x) assign all or a portion of its Commitments (and
related outstanding Obligations hereunder) and/or its outstanding Term Loans to
(i) its parent company and/or any affiliate of such Bank which is at least 50%
owned by such Bank or its parent company or to one or more Banks or (ii) in the
case of any Bank 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 a Bank or
by an affiliate of such investment advisor or (y) assign all, or if less than
all, a portion equal to at least $2,500,000 in the aggregate for the assigning
Bank or assigning Banks Revolving Credit Commitments, outstanding principal
amount of Tranche A Term Loans hereunder or $1,000,000 for Tranche B Term Loans
to one or more Eligible Transferees (treating any fund that invests in bank
loans and any other fund that invests in bank loans and is managed by the same
investment advisor of such fund or by an affiliate of such investment advisor as
a single Eligible Transferee), each of which assignees shall become a party to
this Agreement as a Bank by execution of the applicable Assignment and
Assumption Agreement; provided that, (i) at such time Annex I shall be deemed
modified to reflect the Commitments (and/or outstanding Term
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Loans, as the case may be) of such new Bank and of the existing Banks, (ii) new
Notes will be issued, at the Borrower's expense, to such new Bank and to the
assigning Bank upon the request of such new Bank or assigning Bank, such new
Notes to be in conformity with the requirements of Section 1.05 (with
appropriate modifications) to the extent needed to reflect the revised
Commitments (and/or outstanding Term Loans, as the case may be), (iii) the
consent of BTCo shall be required in connection with any such assignment
pursuant to clause (y) above and any assignment of the Revolving Credit
Commitment (which consent shall not be unreasonably withheld), (iv) except
during the existence of an Event of Default, the consent of the Borrower shall
be required in connection with any such assignment pursuant to clause (y) above
(which consent shall not be unreasonably withheld or delayed) and (v) the
Administrative Agent shall receive at the time of each such assignment, from the
assigning or assignee Bank, the payment of a non-refundable assignment fee of
$3,500. To the extent of any assignment pursuant to this Section 13.04(b), the
assigning Bank shall be relieved of its obligations hereunder with respect to
its assigned Commitments. At the time of each assignment pursuant to this
Section 13.04(b) to a Person which is not already a Bank hereunder, the
respective assignee Bank shall, to the extent legally entitled to do so, comply
with the documentation requirements of Section 4.04(f). To the extent that an
assignment of all or any portion of a Bank's Commitments and related outstanding
Obligations pursuant to Section 1.14 or this Section 13.04(b) would, at the time
of such assignment, result in increased costs under Section 1.11, 1.12 or 4.04
from those being charged by the respective assigning Bank prior to such
assignment, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower shall be obligated to pay any such increased costs
resulting from changes, including, without limitation, Changes in Law, after the
date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Bank from
pledging its Loans and Notes hereunder to a Federal Reserve Bank in support of
borrowings made by such Bank from such Federal Reserve Bank and, with prior
notification to the Administrative Agent (but without the consent of the
Administrative Agent and the Borrower), any Bank which is a fund may pledge all
or any portion of its Loans and Notes to its trustee or to a collateral agent
providing credit or credit support to such Bank in support of its obligations to
its trustee or such collateral agent, as the case may be. No pledge pursuant to
this clause (c) shall release the transferor Bank from any of its obligations
hereunder.
13.05 No Waiver; Remedies Cumulative. No failure or delay on the part
of the Administrative Agent or any Bank or any holder of any Note in exercising
any right, power or privilege hereunder or under any other Credit Document and
no course of dealing between the Borrower or any other Credit Party and the
Administrative Agent or the Syndication Agents or the Documentation Agent or any
Bank or the holder of any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under
any other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights, powers and remedies herein or in any other Credit Document expressly
provided are cumulative and not exclusive of any rights, powers or remedies
which the Administrative Agent or any Bank or the holder of any Note would
otherwise have. No notice to or demand on any Credit Party in any case shall
entitle any Credit Party to any other or further notice or demand in similar or
other circumstances or
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constitute a waiver of the rights of the Administrative Agent or any Bank or the
holder of any Note to any other or further action in any circumstances without
notice or demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided in this
Agreement, the Administrative Agent agrees that promptly after its receipt of
each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Banks (other than any Bank
that has consented in writing to waive its pro rata share of any such payment)
pro rata based upon their respective shares, if any, of the Obligations with
respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Commitment Commission or Letter of Credit Fees,
of a sum which with respect to the related sum or sums received by other Banks
is in a greater proportion than the total of such Obligation then owed and due
to such Bank bears to the total of such Obligation then owed and due to all of
the Banks immediately prior to such receipt, then such Bank receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Banks an interest in the Obligations of the respective Party to such Banks
in such amount as shall result in a proportional participation by all the Banks
in such amount; provided that if all or any portion of such excess amount is
thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 13.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
13.07 Calculations; Computations. (a) The financial statements to be
furnished to the Banks pursuant hereto shall be made and prepared in accordance
with generally accepted accounting principles in the United States consistently
applied throughout the periods involved (except as set forth in the notes
thereto or as otherwise disclosed in writing by the Borrower to the Banks);
provided that Statements of Financial Accounting Standards Nos. 141 and 142
shall be deemed to be in effect as of the Effective Date; provided further that,
except as otherwise specifically provided herein, all computations of Excess
Cash Flow and all computations determining compliance with Sections 9.08 through
9.10, inclusive, shall utilize accounting principles and policies in conformity
with those used to prepare the financial statements of the Borrower for the
fiscal year ended March 31, 2001 delivered to the Banks pursuant to Section
7.05(a) (with the foregoing generally accepted accounting principles, subject to
the preceding proviso, herein called "GAAP"); provided further that until the
Spinoff Guarantor Release Event all computations of Excess Cash Flow and all
computations determining compliance with Sections 9.08 through 9.10 inclusive
shall be calculated as if the Spinoff Guarantor is a Consolidated Subsidiary.
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(b) All computations of interest, Commitment Commission and Fees
hereunder shall be made on the basis of a year of 360 days for the actual number
of days (including the first day but excluding the last day (determined in
accordance with the terms hereof) occurring in the period for which such
interest, Commitment Commission or Fees are payable (except for interest payable
in respect of Base Rate Loans based on the Prime Lending Rate, which shall be
computed on the basis of a 365/66 day year).
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE
PROVIDED IN CERTAIN OF THE MORTGAGES, BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF
HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. EACH OF HOLDINGS AND THE BORROWER FURTHER IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO ANY CREDIT PARTY AT ITS ADDRESS SET FORTH OPPOSITE ITS
SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT UNDER THIS AGREEMENT, ANY
BANK OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY CREDIT
PARTY IN ANY OTHER JURISDICTION.
(b) EACH OF HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF
THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS
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AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
13.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and each of
the Agents.
13.10 Effectiveness. This Agreement shall become effective on the date
(the "Effective Date") on which each Credit Party and each of the Banks who are
initially parties hereto shall have signed a counterpart hereof (whether the
same or different counterparts) and shall have delivered the same to the
Administrative Agent or, in the case of the Banks, shall have given to the
Administrative Agent telephonic (confirmed in writing), written or telex notice
(actually received) at such office that the same has been signed and mailed to
it. The Administrative Agent will give the Borrower and each Bank prompt written
notice of the occurrence of the Effective Date.
13.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Banks, provided that no such change, waiver, discharge or termination
shall, without the consent of each Bank (other than a Defaulting Bank) (with
Obligations being directly affected in the case of following clause (i)), (i)
extend the Final Scheduled Maturity Dates of or extend the stated maturity of
any Letter of Credit beyond the Revolving Loan Maturity Date, or reduce the rate
or extend the time of payment of interest or Fees thereon, or reduce the
principal amount thereof (except to the extent repaid in cash), (ii) release (x)
the Guaranty or a Subsidiary Guarantor or (y) all or substantially all of the
Collateral (except as expressly provided in the Security Documents in connection
with a sale otherwise permitted hereby), (iii) amend, modify or waive any
provision of this Section 13.12, (iv) reduce the percentage specified in the
definition of Required Banks (it being understood that, with the consent of the
Required Banks, additional extensions of credit pursuant to this Agreement may
be included in the determination of the Required Banks on substantially the same
basis as the extensions of Term Loans and Revolving Loan Commitments are
included on the Effective Date) or (v) consent to the assignment or transfer by
the Borrower or Holdings of any of its rights and obligations under this
Agreement; provided further, that no such change, waiver, discharge or
termination shall (u) increase the Commitments of any Bank over the amount
thereof then in effect without the consent of such Bank (it being understood
that waivers or modifications of conditions precedent, covenants, Defaults or
Events of Default or of a mandatory reduction in the Total Commitment shall not
constitute an increase of the Commitment of any Bank, and that an increase in
the available portion of any Commitment of any Bank shall not constitute an
increase in the Commitment of such Bank), (v) without the
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consent of BTCo, amend, modify or waive any provision of Section 2 or alter its
rights or obligations with respect to Letters of Credit, (w) without the consent
of the Administrative Agent, amend, modify or waive any provision of Section 12
as same applies to such Administrative Agent or any other provision as same
relates to the rights or obligations of such Administrative Agent, (x) without
the consent of the Collateral Agent, amend, modify or waive any provision
relating to the rights or obligations of the Collateral Agent, (y) without the
consent of the Supermajority Banks of each Tranche which is being allocated a
lesser prepayment, repayment or commitment reduction as a result of the actions
described below (or without the consent of the Supermajority Banks of each
Tranche in the case of an amendment to the definition of Supermajority Banks),
amend the definition of Supermajority Banks or alter the required application of
any prepayments or repayments (or commitment reductions), as between the various
Tranches, pursuant to Section 4.01 or 4.02 (although the Required Banks may
waive, in whole or in part, any such prepayment, repayment or commitment
reduction, so long as the application, as amongst the various Tranches, of any
such prepayment, repayment or commitment reduction which is still required to be
made is not altered) or (z) without the consent of the Supermajority Banks of
the respective Tranche, amend, modify or waive any Tranche A Term Loan Scheduled
Repayment or Tranche B Term Loan Scheduled Repayment.
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Banks is obtained but the consent of one or more of
such other Banks whose consent is required is not obtained, then the Borrower
shall have the right, so long as all non-consenting Banks whose individual
consent is required are treated as described in either clauses (A) or (B) below,
to either (A) replace each such non-consenting Bank or Banks (or, at the option
of the Borrower if the respective Bank's consent is required with respect to
less than all Tranches of Loans (or related Commitments), to replace only the
respective Tranche or Tranches of Commitments and/or Loans of the respective
non-consenting Bank which gave rise to the need to obtain such Bank's individual
consent) with one or more Replacement Banks pursuant to Section 1.13 so long as
at the time of such replacement, each such Replacement Bank consents to the
proposed change, waiver, discharge or termination or (B) terminate such
non-consenting Bank's Revolving Loan Commitment (if such Bank's consent is
required as a result of its Revolving Loan Commitment) and/or repay outstanding
Term Loans of such Bank which gave rise to the need to obtain such Bank's
consent, in accordance with Sections 3.02(b) and/or 4.01(v); provided that,
unless the Commitments are terminated, and Loans repaid, pursuant to preceding
clause (B) are immediately replaced in full at such time through the addition of
new Banks or the increase of the Commitments and/or outstanding Loans of
existing Banks (who in each case must specifically consent thereto), then in the
case of any action pursuant to preceding clause (B) the Required Banks
(determined before giving effect to the proposed action) shall specifically
consent thereto; provided, further, that in any event the Borrower shall not
have the right to replace a Bank, terminate its Revolving Loan Commitment or
repay its Loans solely as a result of the exercise of such Bank's rights (and
the withholding of any required consent by such Bank) pursuant to the second
proviso to Section 13.12(a).
13.13 Survival. All indemnities set forth herein including, without
limitation, in Sections 1.11, 1.12, 2.05, 4.04, 13.01 and 13.06 shall, subject
to Section 13.15 (to the extent
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applicable), survive the execution, delivery and termination of this Agreement
and the Notes and the making and repayment of the Loans (it being understood and
agreed that all such indemnities shall also survive as to any Bank that has
assigned all of its obligations hereunder pursuant to Section 13.04(b) with
respect to the period of time in which such Bank was a "Bank" hereunder).
13.14 Domicile of Loans. Each Bank may transfer and carry its Loans at,
to or for the account of any office, Subsidiary or Affiliate of such Bank.
Notwithstanding anything to the contrary contained herein, to the extent that a
transfer of Loans pursuant to this Section 13.14 would, at the time of such
transfer, result in increased costs under Section 1.11, 1.12, 2.05 or 4.04 from
those being charged by the respective Bank prior to such transfer, then the
Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer).
13.15 Register. The Borrower hereby designates the Administrative Agent
to serve as the Borrower's agent, solely for purposes of this Section 13.15, to
maintain a register (the "Register") on which it will record the Commitments
from time to time of each of the Banks, the Loans made by each of the Banks and
each repayment in respect of the principal amount of the Loans of each Bank.
Failure to make any such recordation, or any error in such recordation shall not
affect the Borrower's obligations in respect of such Loans. With respect to any
Bank, the transfer of the Commitments of such Bank and the rights to the
principal of, and interest on, any Loan made pursuant to such Commitments shall
not be effective unless and until such transfer is recorded on the Register
maintained by the Administrative Agent with respect to ownership of such
Commitments and Loans and prior to such recordation all amounts owing to the
transferor with respect to such Commitments and Loans shall remain owing to the
transferor. The registration of assignment or transfer of all or part of any
Commitments and Loans shall be recorded by the Administrative Agent on the
Register only upon the acceptance by the Administrative Agent of a properly
executed and delivered Assignment and Assumption Agreement pursuant to Section
13.04(b). Coincident with the delivery of such an Assignment and Assumption
Agreement to the Administrative Agent for acceptance and registration of
assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Bank shall surrender the Note
evidencing such Loan, and thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the assigning or transferor Bank and/or the
new Bank. The Borrower agrees to indemnify the Administrative Agent from and
against any and all losses, claims, damages and liabilities of whatsoever nature
which may be imposed on, asserted against or incurred by the Administrative
Agent in performing its duties under this Section 13.15.
13.16 Confidentiality. (a) Subject to the provisions of clause (b) of
this Section 13.16, each Bank agrees that it will use its best efforts not to
disclose without the prior consent of Holdings or the Borrower (other than to
its employees, auditors, advisors or counsel or to another Bank if the Bank or
such Bank's holding or parent company in its sole discretion determines that any
such party should have access to such information; provided such Persons shall
be subject to the provisions of this Section 13.16 to the same extent as such
Bank) any information with respect to Holdings or any of its Subsidiaries which
is now or in the future furnished pursuant to this Agreement or any other Credit
Document and which is designated by Holdings to the Banks
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in writing as confidential; provided that any Bank may disclose any such
information (a) as has become generally available to the public, (b) as may be
required or appropriate in any report, statement or testimony submitted to any
municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Bank or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or similar organizations (whether in the United
States or elsewhere) or their successors, (c) as may be required or appropriate
in respect to any summons or subpoena or in connection with any litigation, (d)
in order to comply with any law, order, regulation or ruling applicable to such
Bank, (e) to the Administrative Agent or the Collateral Agent, (f) to any
prospective or actual transferee or participant in connection with any
contemplated transfer or participation of any of the Notes or Commitments or any
interest therein by such Bank, and (g) or to any direct or indirect contractual
counerparty in swap agreements or such contractual counterparty's professional
advisor (so long as such contractual counterparty or professional advisor to
such contractual counterparty agrees to be bound by the provisions of this
Section 13.16); provided that such prospective transferee or participant agrees
to be bound by the provisions of this Section.
(b) Each of Holdings and the Borrower hereby acknowledge and agrees
that each Bank may share with any of its affiliates any information related to
Holdings or any of its Subsidiaries (including, without limitation, any
nonpublic customer information regarding the creditworthiness of Holdings and
its Subsidiaries, provided such Persons shall be subject to the provisions of
this Section 13.16 to the same extent as such Bank.
SECTION 14. GUARANTY.
14.01 The Guaranty. The Subsidiary Guarantors hereby jointly and
severally guarantee as a primary obligor and not as a surety to each Secured
Creditor and the Administrative Agent and its successors and assigns the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest (including any interest, fees, costs
or charges that would accrue but for the provisions of the Bankruptcy Code after
any bankruptcy or insolvency petition under the Bankruptcy Code) on the
Borrowings made by each Bank to, and the Notes held by each Bank of, the
Borrower, and all other Obligations from time to time owing to the Banks or the
Administrative Agent by the Borrower, under this Agreement and under the Notes
and by any Credit Party under any of the other Credit Documents, and all
Obligations of the Credit Parties to any Secured Creditors, in each case
strictly in accordance with the terms thereof (such obligations being herein
collectively called the "Guaranteed Obligations"). The Subsidiary Guarantors
hereby jointly and severally agree that if the Borrower shall fail to pay in
full when due (whether at stated maturity, by acceleration or otherwise) or
otherwise perform any of the Guaranteed Obligations, the Subsidiary Guarantors
will promptly pay the same, without any demand or notice whatsoever, and that in
the case of any extension of time of payment or renewal of any of the Guaranteed
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, by acceleration or otherwise) in accordance with the terms of
such extension or renewal.
14.02 Obligations Unconditional. The obligations of the Subsidiary
Guarantors under Section 14.01 are absolute, irrevocable and unconditional,
joint and several, irrespective of the value, genuineness, validity, regularity
or enforceability of the obligations of the Borrower
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under this Agreement, the Notes or any other agreement or instrument referred to
herein or therein, or any substitution, release or exchange of any other
guarantee of or security for any of the Guaranteed Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor (except for payment in full).
Without limiting the generality of the foregoing, it is agreed that the
occurrence of any one or more of the following shall not alter or impair the
liability of the Subsidiary Guarantors hereunder which shall remain absolute,
irrevocable and unconditional under any and all circumstances as described
above:
(i) at any time or from time to time, without notice to the
Subsidiary Guarantors, the time for any performance of or compliance
with any of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
this Agreement or the Notes or any other agreement or instrument
referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be amended
in any respect, or any right under this Agreement, the Notes or any
other Credit Document or any other agreement or instrument referred to
herein or therein shall be amended or waived in any respect or any
other guarantee of any of the Guaranteed Obligations or any security
therefor shall be released or exchanged in whole or in part or
otherwise dealt with;
(iv) any Lien or security interest granted to, or in favor of,
any Secured Creditor or the Collateral Agent as security for any of the
Guaranteed Obligations shall fail to be perfected or shall fail to have
the priority contemplated by the Security Documents; or
(v) the release of any other Subsidiary Guarantor.
The Subsidiary Guarantors hereby expressly waive diligence,
presentment, demand of payment, protest and all notices whatsoever, and any
requirement that the Administrative Agent or any Bank or Affiliate thereof
exhaust any right, power or remedy or proceed against the Borrower under this
Agreement or the Notes or any other agreement or instrument referred to herein
or therein, or against any other Person under any other guarantee of, or
security for, any of the Guaranteed Obligations. The Subsidiary Guarantors waive
any and all notice of the creation, renewal, extension, waiver, termination or
accrual of any of the Guaranteed Obligations and notice of or proof of reliance
by any Secured Creditor or Affiliate thereof or the Administrative Agent upon
this guarantee or acceptance of this guarantee, and the Guaranteed Obligations,
and any of them, shall conclusively be deemed to have been created, contracted
or incurred in reliance upon this guarantee, and all dealings between the
Borrower and the Bank or Affiliate thereof and the Administrative Agent shall
likewise be conclusively presumed to have been had or consummated in reliance
upon this guarantee. This guarantee shall be construed as a continuing,
absolute, irrevocable and unconditional guarantee of payment without regard to
any right of offset with respect to the Guaranteed Obligations at any time or
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from time to time held by the Bank or Affiliate thereof and the Administrative
Agent, and the obligations and liabilities of the Subsidiary Guarantors
hereunder shall not be conditioned or contingent upon the pursuit by the Bank or
Affiliate thereof or the Administrative Agent or any other Person at any time of
any right or remedy against the Borrower or against any other Person which may
be or become liable in respect of all or any part of the Guaranteed Obligations
or against any collateral security or guarantee therefor or right of offset with
respect thereto. This guarantee shall remain in full force and effect and be
binding in accordance with and to the extent of its terms upon the Subsidiary
Guarantors and the successors and assigns thereof, and shall inure to the
benefit of the Secured Creditors, and its successors and assigns,
notwithstanding that from time to time during the term of this Agreement there
may be no Guaranteed Obligations outstanding.
14.03 Reinstatement. The obligations of the Subsidiary Guarantors under
this Section 14 shall be automatically reinstated if and to the extent that for
any reason any payment by or on behalf of the Borrower in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise. The Subsidiary Guarantors jointly and
severally agree that they will indemnify the Administrative Agent and each Bank
or Affiliate thereof on demand for all reasonable costs and expenses (including
reasonable fees of counsel) incurred by the Administrative Agent or such Bank or
Affiliate thereof in connection with such rescission or restoration, including
any such costs and expenses incurred in defending against any claim alleging
that such payment constituted a preference, fraudulent transfer or similar
payment under any bankruptcy, insolvency or similar law, other than any costs or
expenses resulting from the gross negligence or bad faith of such Person.
14.04 Subrogation; Subordination. Each Subsidiary Guarantor hereby
agrees that until the indefeasible payment and satisfaction in full in cash of
all Guaranteed Obligations and the expiration and termination of the Commitments
of the Banks under this Agreement it shall not exercise any right or remedy
arising by reason of any performance by it of its guarantee in Section 14.01,
whether by subrogation or otherwise, against the Borrower or any other
Subsidiary Guarantor of any of the Guaranteed Obligations or any security for
any of the Guaranteed Obligations. The payment of any amounts due with respect
to any Indebtedness of the Borrower or any other Subsidiary Guarantor now or
hereafter owing to any Subsidiary Guarantor by reason of any payment by such
Subsidiary Guarantor under the Guarantee in this Section 14 is hereby
subordinated to the prior indefeasible payment in full in cash of the Guaranteed
Obligations. Each Subsidiary Guarantor agrees that it will not demand, xxx for
or otherwise attempt to collect any such indebtedness of the Borrower to such
Subsidiary Guarantor until the Obligations shall have been indefeasibly paid in
full in cash. If, notwithstanding the foregoing sentence, any Subsidiary
Guarantor shall prior to the indefeasible payment in full in cash of the
Guaranteed Obligations collect, enforce or receive any amounts in respect of
such indebtedness, such amounts shall be collected, enforced and received by
such Subsidiary Guarantor as trustee for the Administrative Agent, and the Banks
and Affiliates thereof and be paid over to the Administrative Agent on account
of the Guaranteed Obligations without affecting in any manner the liability of
such Subsidiary Guarantor under the other provisions of the guarantee contained
herein.
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14.05 Remedies. The Subsidiary Guarantors jointly and severally agree
that, as between the Subsidiary Guarantors and the Banks, the obligations of the
Borrower under this Agreement and the Notes may be declared to be forthwith due
and payable as provided in Section 10 (and shall be deemed to have become
automatically due and payable in the circumstances provided in Section 10.05)
for purposes of Section 14.01, notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Borrower and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable by the
Borrower) shall forthwith become due and payable by the Subsidiary Guarantors
for purposes of Section 14.01.
14.06 Instrument for the Payment of Money. Each Subsidiary Guarantor
hereby acknowledges that the guarantee in this Section 14 constitutes an
instrument for the payment of money, and consents and agrees that any Bank or
the Administrative Agent, at its sole option, in the event of a dispute by such
Subsidiary Guarantor in the payment of any moneys due hereunder, shall have the
right to bring a motion-action under New York CPLR Section 3213.
14.07 Continuing Guarantee. The guarantee in this Section 14 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
14.08 General Limitation on Guarantee Obligations. In any action or
proceeding involving any state corporate law, or any state, Federal or foreign
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 14.01 would otherwise be held or determined to be void, voidable,
invalid or unenforceable, or subordinated to the claims of any other creditors,
on account of the amount of its liability under Section 14.01, then,
notwithstanding any other provision to the contrary, the amount of such
liability shall, without any further action by such Subsidiary Guarantor, any
Bank, the Administrative Agent or any other Person, be automatically limited and
reduced to the highest amount that is valid and enforceable and not subordinated
to the claims of other creditors as determined in such action or proceeding.
14.09 Special Provisions Regarding Pledges of Equity Interests in, and
Promissory Notes Owed by, Persons Not Organized in the United States. The
parties hereto acknowledge and agree that the provisions of the Credit Party
Pledge Agreement executed and delivered by the Credit Parties require that,
among other things, all promissory notes executed by, and all (or 65%, as the
case may be) of the capital stock and other equity interests in, various Persons
owned by the respective Credit Party be pledged, and delivered for pledge,
pursuant to the Credit Party Pledge Agreement. To the extent the Credit Party
Pledge Agreement requires or provides for the pledge of promissory notes issued
by, or capital stock or other equity interests in, any Person organized under
the laws of a jurisdiction other than the United States, it is acknowledged
that, as of the Initial Borrower Date, no actions have been required to be taken
to perfect under any local law of the jurisdiction of the Person who issued the
respective promissory notes or whose capital stock or other equity interests are
pledged, under the Security Documents. The Credit Parties hereby agree that,
following any request by the Administrative Agent or Required Banks to do so in
respect to any such asset that is material, each Credit Party shall, and shall
cause its Subsidiaries to, take such actions under U.S. law or the local law of
any
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jurisdiction with respect to which such actions have not already been taken as
are reasonably determined by the Administrative Agent or the Required Banks to
be necessary or desirable in order to fully perfect, preserve or protect the
security interests in such assets granted pursuant to the Credit Party Pledge
Agreement under the laws of such jurisdictions. If requested to do so pursuant
to this Section 14.09, all such actions shall be taken in accordance with the
provisions of this Section 14.09 as promptly as practicable. All conditions and
representations contained in this Agreement and the other Credit Documents shall
be deemed modified to the extent necessary to effect the foregoing and so that
same are not violated by reason of the failure to take actions under U.S.
Federal or local law (but only with respect to capital stock of, other equity
interests in, and promissory notes issued by, Persons organized under laws of
jurisdictions other than the United States) not required to be taken in
accordance with the provisions of this Section 14.09; provided that, to the
extent any representation or warranty would not be true because the foregoing
actions were not taken, the respective representation or warranty shall be
required to be true and correct in all material respects at such time as the
respective action is required to be taken in accordance with the foregoing
provisions of this Section 14.09.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address: COINMACH LAUNDRY CORPORATION
-------
000 Xxxxxxxxx Xxxx. Xxx. 00
Xxxxxxxxx, XX 00000 Attention:
by: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
Address: COINMACH CORPORATION
-------
000 Xxxxxxxxx Xxxx. Xxx. 00
Xxxxxxxxx, XX 00000 Attention:
by: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
Address: SUPER LAUNDRY EQUIPMENT CORP.
------- as Subsidiary Guarantor
000 Xxxxxxxxx Xxxx. Xxx. 00
Xxxxxxxxx, XX 00000
Attention:
by: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
Address: GRAND WASH & DRY LAUNDERETTE, INC.,
------- as Subsidiary Guarantor
000 Xxxxxxxxx Xxxx. Xxx. 00
Xxxxxxxxx, XX 00000
Attention:
by: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
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BANKERS TRUST COMPANY
Individually and as Administrative
Agent and Collateral Agent
By: /s/ Xxxx Xxx Xxxxx
----------------------------------
Name: Xxxx Xxx Xxxxx
Title: Managing Director
DEUTSCHE BANC XXXX XXXXX,
as Lead Arranger and Collateral
Agent
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
X.X. XXXXXX SECURITIES INC.,
as Syndication Agent
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
JPMORGAN CHASE BANK
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
KZH CNC LLC
By: /s/ Xxxxx Xxx
--------------------------------
Name: Xxxxx Xxx
Title:
JUPITER FUNDING TRUST
By: /s/ Xxx X. Xxxxxx
--------------------------------
Name: Xxx X. Xxxxxx
Title:
WINGED FOOT FUNDING TRUST
By: /s/ Xxx X. Xxxxxx
--------------------------------
Name: Xxx X. Xxxxxx
Title:
FIRST UNION SECURITIES, INC.,
By: /s/ L. Xxxxxxx XxXxxxxx
--------------------------------
Name: L. Xxxxxxx XxXxxxxx
Title: Director
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH
as Documentation Agent
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title:
ANNEX I
COMMITMENTS
Revolving Tranche A Tranche B
Loan Term Loan Term Loan
Bank Commitments Commitments Commitments
---- ----------- ----------- -----------
BANKERS TRUST COMPANY 17,857,143.00 7,142,857.00 250,000,000.00
JPMORGAN CHASE BANK 16,071,429.00 6,428,571.00
WACHOVIA BANK NA 16,071,429.00 6,428,571.00
CREDIT LYONNAIS NEW YORK BRANCH 10,714,286.00 4,285,714.00
GENERAL ELECTRIC CAPITAL CORPORATION 10,714,286.00 4,285,714.00
CONSECO 2,142,840.00 857,077.00
KZH CNC LLC 1,428,560.00 571,440.00
TOTAL $ 75,000,000 $ 30,000,000 $250,000,000
ANNEX II
BANK ADDRESSES
Bankers Trust Company
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
XX Xxxxxx Xxxxx Bank
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Wachovia Bank NA
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Credit Lyonnais New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
General Electric Capital Corporation
00 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
KZH CNC LLC
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Jupiter Funding Trust
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Winged Foot Funding Trust
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
