EXHIBIT 10.3
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CREDIT AGREEMENT
among
NUCO2 INC.,
VARIOUS LENDERS
and
BNP PARIBAS,
as ADMINISTRATIVE AGENT
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Dated as of August 25, 2003
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BNP PARIBAS SECURITIES CORP.,
as LEAD ARRANGER,
THE ROYAL BANK OF SCOTLAND PLC,
as SYNDICATION AGENT,
and
XXXXXXX XXXXX CAPITAL, a division of
XXXXXXX XXXXX BUSINESS FINANCIAL SERVICES INC.,
as DOCUMENTATION AGENT
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CREDIT AGREEMENT, dated as of August 25, 2003, among NUCO2 INC., a
Florida corporation (the "Borrower"), the Lenders party hereto from time to
time, and BNP PARIBAS, as Administrative Agent (in such capacity, the
"Administrative Agent"). 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:
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WHEREAS, subject to and upon the terms and conditions set forth
herein, the Lenders are willing to make available to the Borrower the respective
credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
1.01 THE COMMITMENTS. (a) Subject to and upon the terms and
conditions set forth herein, each Lender with an A Term Loan Commitment
severally agrees to make a term loan or term loans (each, an "A Term Loan" and,
collectively, the "A Term Loans") to the Borrower, which A Term Loans (i) shall
be incurred pursuant to a single drawing on the Initial Borrowing Date, (ii)
shall be denominated in Dollars, (iii) except as hereinafter provided, shall, at
the option of the Borrower, be incurred and maintained as, and/or converted
into, Base Rate Loans or Eurodollar Loans, provided that (A) except as otherwise
specifically provided in Section 1.10(b), all A Term Loans comprising the same
Borrowing shall at all times be of the same Type, and (B) unless either the
Administrative Agent otherwise agrees in its sole discretion or has determined
that the Syndication Date has occurred (at which time this clause (B) shall no
longer be applicable), prior to the 90th day following the Initial Borrowing
Date, A Term Loans may only be incurred and maintained as, and/or converted
into, Eurodollar Loans so long as all such outstanding Eurodollar Loans,
together with all outstanding B Term Loans and Revolving Loans that are
maintained as Eurodollar Loans, are subject to an Interest Period of one month
which begins and ends on the same day, and (iv) shall be made by each such
Lender in that aggregate principal amount which does not exceed the A Term Loan
Commitment of such Lender on the Initial Borrowing Date (before giving effect to
the termination thereof pursuant to Section 3.03(b)). Once repaid, A Term Loans
incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein,
each Lender with a B Term Loan Commitment severally agrees to make a term loan
or term loans (each, a "B Term Loan" and, collectively, the "B TERM LOANS") to
the Borrower, which B Term Loans (i) shall be incurred pursuant to a single
drawing on the Initial Borrowing Date, (ii) shall be denominated in Dollars,
(iii) except as hereinafter provided, shall, at the option of the Borrower, be
incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar
Loans, provided that (A) except as otherwise specifically provided in Section
1.10(b), all B Term Loans comprising the same Borrowing shall at all times be of
the same Type, and (B) unless either the Administrative Agent otherwise agrees
in its sole discretion or has determined that the Syndication Date has occurred
(at which time this clause (B) shall no longer be applicable), prior to the 90th
day following the Initial Borrowing Date, B Term Loans may only be incurred and
maintained as, and/or converted into, Eurodollar Loans so long as all such
outstanding Eurodollar Loans, together with all outstanding A Term Loans and
Revolving Loans that are maintained as Eurodollar Loans, are subject to an
Interest Period of one month which begins and ends on the same day, and (iv)
shall be made by each such Lender in that aggregate principal amount which does
not exceed the B Term Loan Commitment of such Lender on the Initial Borrowing
Date (before giving effect to the termination thereof pursuant to Section
3.03(c)). Once repaid, B Term Loans incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth herein,
each Lender with a Revolving Loan Commitment severally agrees to make, at any
time and from time to time on or after the Initial Borrowing Date and prior to
the Revolving Loan Maturity Date, a revolving loan or revolving loans (each, a
"REVOLVING LOAN" and, collectively, the "Revolving Loans") to the Borrower,
which Revolving Loans (i) shall be denominated in Dollars, (ii) shall, at the
option of the Borrower, be incurred and maintained as, and/or converted into,
Base Rate Loans or Eurodollar Loans, PROVIDED that (A) except as otherwise
specifically provided in Section 1.10(b), all Revolving Loans comprising the
same Borrowing shall at all times be of the same Type, and (B) unless either the
Administrative Agent otherwise agrees in its sole discretion or has determined
that the Syndication Date has occurred (at which time this clause (B) shall no
longer be applicable), prior to the 90th day following the Initial Borrowing
Date, Revolving Loans may only be incurred and maintained as, and/or converted
into, Eurodollar Loans so long as all such outstanding Eurodollar Loans,
together with all outstanding Term Loans that are maintained as Eurodollar
Loans, are subject to an Interest Period of one month which begins and ends on
the same day, (iii) may be repaid and reborrowed in accordance with the
provisions hereof, and (iv) shall not exceed for any such Lender at any time
outstanding that aggregate principal amount which, when added to the product of
(x) such Lender's RL Percentage and (y) the sum of (I) the aggregate amount of
all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid
with the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) at such time and (II) the aggregate principal
amount of all Swingline Loans (exclusive of Swingline Loans which are repaid
with the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) then outstanding, equals the Revolving Loan
Commitment of such Lender at such time.
(d) Subject to and upon the terms and conditions set forth herein,
the Swingline Lender agrees to make, at any time and from time to time on or
after the Initial Borrowing Date and prior to the Swingline Expiry Date, a
revolving loan or revolving loans (each, a "Swingline Loan" and, collectively,
the "SWINGLINE LOANS") to the Borrower, which Swingline Loans (i) shall be
incurred and maintained as Base Rate Loans, (ii) shall be denominated in
Dollars, (iii) may be repaid and reborrowed in accordance with the provisions
hereof, (iv) 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 aggregate amount of all Letter of Credit
Outstandings at such time, an amount equal to the Total Revolving Loan
Commitment at such time, and (v) shall not exceed in aggregate principal amount
at any time outstanding the Maximum Swingline Amount. Notwithstanding anything
to the contrary contained in this Section 1.01(d), (i) the Swingline Lender
shall not be obligated to make any Swingline Loans at a time when a Lender
Default exists with respect to an RL Lender unless the Swingline Lender has
entered into arrangements satisfactory to it and the Borrower to eliminate the
Swingline Lender's risk with respect to the Defaulting Lender's or Defaulting
Lenders' participation in such Swingline Loans, including by cash
collateralizing such Defaulting Lender's or Defaulting Lenders' RL Percentage of
the outstanding Swingline Loans, and (ii) the Swingline Lender shall not make
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any Swingline Loan after it has received written notice from the Borrower, any
other Credit Party or the Required Lenders stating that a Default or an Event of
Default exists and is continuing until such time as the Swingline Lender shall
have received written notice (A) of rescission of all such notices from the
party or parties originally delivering such notice or notices or (B) of the
waiver of such Default or Event of Default by the Required Lenders.
(e) On any Business Day, the Swingline Lender may, in its sole
discretion, give notice to the RL Lenders that the Swingline Lender's
outstanding Swingline Loans shall be funded with one or more Borrowings of
Revolving Loans (PROVIDED that such notice shall be deemed to have been
automatically given upon the occurrence of a Default or an Event of Default
under Section 10.05 or upon the exercise of any of the remedies provided in the
last paragraph of Section 10), in which case one or more Borrowings of Revolving
Loans constituting Base Rate Loans (each such Borrowing, a "MANDATORY
BORROWING") shall be made on the immediately succeeding Business Day by all RL
Lenders pro rata based on each such RL Lender's RL Percentage (determined before
giving effect to any termination of the Revolving Loan Commitments pursuant to
the last paragraph of Section 10) and the proceeds thereof shall be applied
directly by the Swingline Lender to repay the Swingline Lender for such
outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make
Revolving Loans upon one Business Day's notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence
and on the date specified in writing by the Swingline Lender notwithstanding (i)
the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing
Amount otherwise required hereunder, (ii) whether any conditions specified in
Section 6 are then satisfied, (iii) whether a Default or an Event of Default
then exists, (iv) the date of such Mandatory Borrowing, and (v) the amount of
the Total Revolving Loan Commitment at such time. In the event that any
Mandatory Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code with respect to the Borrower), then each RL
Lender hereby agrees that it shall forthwith purchase (as of the date the
Mandatory Borrowing would otherwise have occurred, but adjusted for any payments
received from the Borrower on or after such date and prior to such purchase)
from the Swingline Lender such participations in the outstanding Swingline Loans
as shall be necessary to cause the RL Lenders to share in such Swingline Loans
ratably based upon their respective RL Percentages (determined before giving
effect to any termination of the Revolving Loan Commitments pursuant to the last
paragraph of Section 10), provided that (x) all interest payable on the
Swingline Loans shall be for the account of the Swingline Lender until the date
as of which the respective participation is required to be purchased and, to the
extent attributable to the purchased participation, shall be payable to the
participant from and after such date and (y) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing RL
Lender shall be required to pay the Swingline Lender interest on the principal
amount of participation purchased for each day from and including the day upon
which the Mandatory Borrowing would otherwise have occurred to but excluding the
date of payment for such participation, at the overnight Federal Funds Rate for
the first three days and at the interest rate otherwise applicable to Revolving
Loans maintained as Base Rate Loans hereunder for each day thereafter.
1.02 MINIMUM AMOUNT OF EACH BORROWING. The aggregate principal
amount of each Borrowing of Loans under a respective Tranche shall not be less
than the Minimum Borrowing Amount applicable to such Tranche. More than one
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Borrowing may occur on the same date, but at no time shall there be outstanding
more than ten Borrowings of Eurodollar Loans in the aggregate for all Tranches
of Loans.
1.03 NOTICE OF BORROWING. (a) Whenever the Borrower desires to incur
(x) Eurodollar Loans hereunder, it shall give the Administrative Agent at the
Notice Office at least three Business Days' prior notice of each Eurodollar Loan
to be incurred hereunder and (y) Base Rate Loans hereunder (excluding Swingline
Loans and Revolving Loans made pursuant to a Mandatory Borrowing), it shall give
the Administrative Agent at the Notice Office at least one Business Day's prior
notice of each Base Rate Loan to be incurred hereunder, provided that (in each
case) 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 notice (each,
a "Notice of Borrowing"), except as otherwise expressly provided in Section
1.10, shall be irrevocable and shall be in writing, or by telephone promptly
confirmed in writing, in the form of Exhibit A-1, appropriately completed to
specify: (i) the aggregate principal amount of the Loans to be incurred pursuant
to such Borrowing, (ii) the date of such Borrowing (which shall be a Business
Day), (iii) whether the Loans being incurred pursuant to such Borrowing shall
constitute A Term Loans, B Term Loans or Revolving Loans and (iv) whether the
Loans being incurred pursuant to such Borrowing are to be initially maintained
as Base Rate Loans or, to the extent permitted hereunder, Eurodollar Loans and,
if Eurodollar Loans, the initial Interest Period to be applicable thereto. The
Administrative Agent shall promptly give each Lender which is required to make
Loans of the Tranche specified in the respective Notice of Borrowing, notice of
such proposed Borrowing, of such Lender's proportionate share thereof and of the
other matters required by the immediately preceding sentence to be specified in
the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to incur Swingline Loans
hereunder, the Borrower shall give the Swingline Lender no later than 11:00 A.M.
(New York time) on the date that a Swingline Loan is to be incurred, written
notice or telephonic notice promptly confirmed in writing of each Swingline Loan
to be incurred hereunder. Each such notice shall be irrevocable and specify in
each case (A) the date of Borrowing (which shall be a Business Day), and (B) the
aggregate principal amount of the Swingline Loans to be incurred pursuant to
such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(e), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of the Mandatory Borrowings as set forth in
Section 1.01(e).
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice of any Borrowing or prepayment of
Loans, the Administrative Agent or the Swingline Lender, as the case may be, may
act without liability upon the basis of telephonic notice of such Borrowing or
prepayment, as the case may be, believed by the Administrative Agent or the
Swingline Lender, as the case may be, in good faith to be from the Chief
Executive Officer, the Chief Financial Officer or the General Counsel of the
Borrower, or from any other authorized officer of the Borrower designated in
writing by the Borrower to the Administrative Agent as being authorized to give
such notices, prior to receipt of written confirmation. In each such case, the
Borrower hereby waives the right to dispute the Administrative Agent's or
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Swingline Lender's record of the terms of such telephonic notice of such
Borrowing or prepayment of Loans, as the case may be, absent manifest error.
1.04 DISBURSEMENT OF FUNDS. No later than 1:00 P.M. (New York time)
on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, no later than 12:00 Noon. (New York time) on the date specified
pursuant to Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, no
later than 1:00 P.M. (New York time) on the date specified in Section 1.01(e)),
each Lender with a Commitment of the respective Tranche will make available its
pro rata portion (determined in accordance with Section 1.07) of each such
Borrowing requested to be made on such date (or in the case of Swingline Loans,
the Swingline Lender will make available the full amount thereof). All such
amounts will be made available in Dollars and in immediately available funds at
the Payment Office, and the Administrative Agent will, except in the case of
Revolving Loans made pursuant to a Mandatory Borrowing, make available to the
Borrower at the Payment Office the aggregate of the amounts so made available by
the Lenders. Unless the Administrative Agent shall have been notified by any
Lender prior to the date of Borrowing that such Lender does not intend to make
available to the Administrative Agent such Lender's portion of any Borrowing to
be made on such date, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on such date of Borrowing
and the Administrative Agent may (but shall not be obligated to), in reliance
upon such assumption, make available to the Borrower a corresponding amount. If
such corresponding amount is not in fact made available to the Administrative
Agent by such Lender, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify the Borrower and the
Borrower shall immediately pay such corresponding amount to the Administrative
Agent. The Administrative Agent also shall be entitled to recover on demand from
such Lender or the Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower until the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) if recovered from such Lender, the overnight Federal Funds
Rate for the first three days and at the interest rate otherwise applicable to
such Loans for each day thereafter and (ii) if recovered from the Borrower, the
rate of interest applicable to the respective Borrowing, as determined pursuant
to Section 1.08. Nothing in this Section 1.04 shall be deemed to relieve any
Lender from its obligation to make Loans hereunder or to prejudice any rights
which the Borrower may have against any Lender as a result of any failure by
such Lender to make Loans hereunder.
1.05 NOTES. (a) The Borrower's obligation to pay the principal of,
and interest on, the Loans made by each Lender shall be evidenced in the
Register maintained by the Administrative Agent pursuant to Section 13.15 and
shall, if requested by such Lender, also be evidenced (i) in the case of 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, an "A TERM NOTE" and, collectively, the "A TERM
NOTES"), (ii) in the case of 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 "B TERM NOTE"
and, collectively, the "B TERM NOTES"), (iii) in the case of Revolving Loans, by
a promissory note duly executed and delivered by the Borrower substantially in
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the form of Exhibit B-3, with blanks appropriately completed in conformity
herewith (each, a "REVOLVING NOTE" and, collectively, the "REVOLVING NOTES"),
and (iv) in the case of 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 A Term Note issued to each Lender that has an A Term Loan
Commitment or outstanding A Term Loans shall (i) be executed by the Borrower,
(ii) be payable to such Lender or its registered assigns and be dated the
Initial Borrowing Date (or, if issued after the Initial Borrowing Date, be dated
the date of issuance thereof), (iii) be in a stated principal amount equal to
the A Term Loans made by such Lender on the Initial Borrowing Date (or, if
issued after the Initial Borrowing Date, be in a stated principal amount equal
to the outstanding A Term Loans of such Lender at such time) and be payable in
the outstanding principal amount of A Term Loans evidenced thereby, (iv) mature
on the A Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 4.01, and mandatory repayment as
provided in Section 4.02, and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents.
(c) The B Term Note issued to each Lender that has a B Term Loan
Commitment or outstanding B Term Loans shall (i) be executed by the Borrower,
(ii) be payable to such Lender or its registered assigns and be dated the
Initial Borrowing Date (or, if issued after the Initial Borrowing Date, be dated
the date of issuance thereof), (iii) be in a stated principal amount equal to
the B Term Loans made by such Lender on the Initial Borrowing Date (or, if
issued after the Initial Borrowing Date, be in a stated principal amount equal
to the outstanding B Term Loans of such Lender at such time) and be payable in
the outstanding principal amount of B Term Loans evidenced thereby, (iv) mature
on the B Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 4.01, and mandatory repayment as
provided in Section 4.02, and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents.
(d) The Revolving Note issued to each Lender that has a Revolving
Loan Commitment or outstanding Revolving Loans shall (i) be executed by the
Borrower, (ii) be payable to such Lender or its registered assigns and be dated
the Initial Borrowing Date (or, if issued after the Initial Borrowing Date, be
dated the date of the issuance thereof), (iii) be in a stated principal amount
equal to the Revolving Loan Commitment of such Lender (or, if issued after the
termination thereof, be in a stated principal amount equal to the outstanding
Revolving Loans of such Lender at such time) and be payable in the outstanding
principal amount of the Revolving Loans evidenced thereby, (iv) mature on the
Revolving Loan Maturity Date, (v) bear interest as provided in the appropriate
clause of Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans,
as the case may be, evidenced thereby, (vi) be subject to voluntary prepayment
as provided in Section 4.01, and mandatory repayment as provided in Section
4.02, and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(e) The Swingline Note issued to the Swingline Lender shall (i) be
executed by the Borrower, (ii) be payable to the Swingline Lender or its
registered assigns and be dated the Initial Borrowing Date, (iii) be in a stated
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principal amount equal to the Maximum Swingline Amount and be payable in the
outstanding principal amount of the Swingline Loans evidenced thereby from time
to time, (iv) mature on the Swingline Expiry Date, (v) bear interest as provided
in the appropriate clause of Section 1.08 in respect of the Base Rate Loans
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01, and mandatory repayment as provided in Section 4.02, and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(f) Each Lender will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and prior to any transfer of
any of its Notes will endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in such notation shall not affect the Borrower's obligations in
respect of such Loans.
(g) Notwithstanding anything to the contrary contained above in this
Section 1.05 or elsewhere in this Agreement, Notes shall only be delivered to
Lenders which at any time specifically request the delivery of such Notes. No
failure of any Lender to request or obtain a Note evidencing its Loans to the
Borrower shall affect or in any manner impair the obligations of the Borrower to
pay the Loans (and all related Obligations) incurred by the Borrower which would
otherwise be evidenced thereby in accordance with the requirements of this
Agreement, and shall not in any way affect the security or guaranties therefor
provided pursuant to the various Credit Documents. Any Lender which does not
have a Note evidencing its outstanding Loans shall in no event be required to
make the notations otherwise described in preceding clause (f). At any time when
any Lender requests the delivery of a Note to evidence any of its Loans, the
Borrower shall promptly execute and deliver to the respective Lender the
requested Note in the appropriate amount or amounts to evidence such Loans.
1.06 CONVERSIONS. The Borrower shall have the option to convert, on
any Business Day, all or a portion equal to at least the Minimum Borrowing
Amount of the outstanding principal amount of Loans (other than Swingline Loans
which may not be converted pursuant to this Section 1.06) 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 1.10(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 the Minimum
Borrowing Amount applicable thereto, (ii) unless the Required Lenders otherwise
agree, 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, (iii) unless
the Administrative Agent otherwise agrees in its sole discretion or has
determined that the Syndication Date has occurred (at which time this clause
(iii) shall no longer be applicable), prior to the 90th day following the
Initial Borrowing Date, conversions of Base Rate Loans into Eurodollar Loans
shall be subject to the provisions of clause (B) of the proviso in each of
Sections 1.01(a)(iii), 1.01(b)(iii) and 1.01(c)(ii), and (iv) no conversion
pursuant to this Section 1.06 shall result in a greater number of Borrowings of
Eurodollar Loans than is permitted under Section 1.02. Each such conversion
shall be effected by the Borrower by giving the Administrative Agent at the
Notice Office prior to 12:00 Noon (New York time) at least three Business Days'
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prior notice (each, a "Notice of CONVERSION/CONTINUATION") in the form of
Exhibit A-2, appropriately completed to specify the Loans to be so converted,
the Borrowing or Borrowings pursuant to which such Loans were incurred and, if
to be converted into Eurodollar Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall give each Lender prompt
notice of any such proposed conversion affecting any of its Loans.
1.07 PRO RATA BORROWINGS. All Borrowings of Term Loans and Revolving
Loans under this Agreement shall be incurred from the Lenders pro rata on the
basis of their A Term Loan Commitments, B Term Loan Commitments or Revolving
Loan Commitments, as the case may be, provided that all Mandatory Borrowings
shall be incurred from the RL Lenders pro rata on the basis of their RL
Percentages. It is understood that no Lender shall be responsible for any
default by any other Lender of its obligation to make Loans hereunder and that
each Lender shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to make its Loans
hereunder.
1.08 INTEREST. (a) The Borrower agrees to pay interest in respect of
the unpaid principal amount of each Base Rate Loan from the date of Borrowing
thereof until the earlier of (i) the maturity thereof (whether by acceleration
or otherwise) and (ii) the conversion of such Base Rate Loan to a Eurodollar
Loan pursuant to Section 1.06 or 1.09, as applicable, at a rate per annum which
shall be equal to the sum of the Applicable Margin plus the Base Rate, each as
in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan from the date of Borrowing thereof
until the earlier of (i) the maturity thereof (whether by acceleration or
otherwise) and (ii) the conversion of such Eurodollar Loan to a Base Rate Loan
pursuant to Section 1.06, 1.09 or 1.10, as applicable, at a rate per annum which
shall, during each Interest Period applicable thereto, be equal to the sum of
the Applicable Margin as in effect from time to time during such Interest Period
plus the Eurodollar Rate for such Interest Period.
(c) Upon the occurrence and during the continuation of an Event of
Default, all principal and, to the extent permitted by law, overdue interest in
respect of each Loan shall, in each case, bear interest at a rate per annum
equal to the greater of (x) the rate which is 2% in excess of the rate then
borne by such Loans and (y) the rate which is 2% in excess of the rate otherwise
applicable to Base Rate Loans of the respective Tranche from time to time, and
all other overdue amounts payable hereunder and under any other Credit Document
shall bear interest at a rate per annum equal to the rate which is 2% in excess
of the rate applicable to Revolving Loans that are maintained at Base Rate Loans
from time to time. Interest that accrues under this Section 1.08(c) shall be
payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i)
in respect of each Base Rate Loan, (x) quarterly in arrears on each Quarterly
Payment Date, (y) on the date of any repayment or prepayment in full of all
outstanding Base Rate Loans of any Tranche, and (z) at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand, and (ii) in
respect of each Eurodollar Loan, (x) 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 (y) on the date of any repayment or prepayment (on the
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amount repaid or prepaid), at maturity (whether by acceleration or otherwise)
and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the Administrative Agent
shall determine the Eurodollar Rate for each Interest Period applicable to the
respective Eurodollar Loans and shall promptly notify the Borrower and the
Lenders thereof. Each such determination shall, absent manifest error, be final
and conclusive and binding on all parties hereto.
1.09 INTEREST PERIODS. At the time the Borrower gives any Notice of
Borrowing or Notice of Conversion/Continuation in respect of the making of, or
conversion into, any Eurodollar Loan (in the case of the initial Interest Period
applicable thereto) or prior to 12:00 Noon (New York time) 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 the interest period (each, an "Interest Period") applicable
to such Eurodollar Loan, which Interest Period shall, at the option of the
Borrower (but otherwise subject to the provisions of clause (B) of the proviso
in each of Sections 1.01(a)(iii), 1.01(b)(iii) and 1.01(c)(ii)), be a one, two,
three or six month period, provided that (in each case):
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including the
date of any conversion thereto from a Base Rate Loan) and each Interest
Period occurring thereafter in respect of such Eurodollar Loan shall
commence on the day on which the next preceding Interest Period applicable
thereto expires;
(iii) if any Interest Period for a Eurodollar Loan begins on a day
for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period, such Interest Period shall end on the
last Business Day of such calendar month;
(iv) if any Interest Period for a Eurodollar Loan 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;
(v) unless the Required Lenders otherwise agree, no Interest Period
may be selected at any time when a Default or an Event of Default is then
in existence;
(vi) no Interest Period in respect of any Borrowing of any Tranche
of Loans shall be selected which extends beyond the respective Maturity
Date for such Tranche of Loans; and
(vii) no Interest Period in respect of any Borrowing of A Term Loans
shall be selected which extends beyond any date upon which a mandatory
repayment of such A Term Loans will be required to be made under Section
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4.02(b) if the aggregate principal amount of such A Term Loans which have
Interest Periods which will expire after such date will be in excess of
the aggregate principal amount of such A Term Loans then outstanding less
the aggregate amount of such required repayment.
If by 12:00 Noon (New York time) on the third Business Day prior to the
expiration of any Interest Period applicable to a Borrowing of Eurodollar Loans,
the Borrower has failed to elect, or is not permitted to elect, a new Interest
Period to be applicable to such Eurodollar Loans as provided above, the Borrower
shall be deemed to have elected to convert such Eurodollar Loans into Base Rate
Loans effective as of the expiration date of such current Interest Period.
1.10 INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that any
Lender shall have determined (which determination shall, absent manifest error,
be final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the interbank
Eurodollar market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition
of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loan because of (x) any change since the Effective Date in
any applicable law or governmental rule, regulation, order, guideline or
request (whether or not having the force of law) or in the interpretation
or administration thereof and including the introduction of any new law or
governmental rule, regulation, order, guideline or request, such as, but
not limited to: (A) a change in the basis of taxation of payment to any
Lender of the principal of or interest on the Loans or the Notes or any
other amounts payable hereunder (except for changes in the rate of tax on,
or determined by reference to, the net income or net profits of such
Lender pursuant to the laws of the jurisdiction in which it is organized
or in which its principal office or applicable lending office is located
or any subdivision thereof or therein) 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 arising since the Effective Date
affecting such Lender, the interbank Eurodollar market or the position of
such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has been made (x) unlawful by any law or governmental rule,
regulation or order, (y) impossible by compliance by any Lender in good
faith with any governmental request (whether or not having force of law)
or (z) impracticable as a result of a contingency occurring after the
Effective Date which materially and adversely affects the interbank
Eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by telephone promptly
confirmed in writing) to the Borrower and, except in the case of clause (i)
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above, to the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each of the other Lenders).
Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer
be available until such time as the Administrative Agent notifies the Borrower
and the Lenders that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion/Continuation given by the Borrower with respect to Eurodollar Loans
which have not yet been incurred (including by way of conversion) shall be
deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the
Borrower agrees to pay to such Lender, upon such Lender's written request
therefor, such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as shall be required to compensate such Lender
for such increased costs or reductions in amounts received or receivable
hereunder (a written notice as to the additional amounts owed to such Lender,
showing in reasonable detail the basis for the calculation thereof, submitted to
the Borrower by such Lender shall, absent manifest error, be final and
conclusive and binding on all the parties hereto) and (z) in the case of clause
(iii) above, the Borrower shall take one of the actions specified in Section
1.10(b) as promptly as possible and, in any event, within the time period
required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii), the Borrower may, and in the
case of a Eurodollar Loan affected by the circumstances described in Section
1.10(a)(iii), the Borrower shall, either (x) if the affected Eurodollar Loan is
then being made initially or pursuant to a conversion, cancel such Borrowing by
giving the Administrative Agent telephonic notice (confirmed in writing) on the
same date that the Borrower was notified by the affected Lender or the
Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the
affected Eurodollar Loan is then outstanding, upon at least three Business Days'
written notice to the Administrative Agent, require the affected Lender to
convert such Eurodollar Loan into a Base Rate Loan, provided that, if more than
one Lender is affected at any time, then all affected Lenders must be treated
the same pursuant to this Section 1.10(b).
(c) If any Lender determines that after the Effective Date 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 the NAIC or 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 Lender or any corporation
controlling such Lender based on the existence of such Lender's Commitments
hereunder or its obligations hereunder, then the Borrower agrees to pay to such
Lender, upon its written demand therefor, such additional amounts as shall be
required to compensate such Lender or such other corporation for the increased
cost to such Lender or such other corporation or the reduction in the rate of
return to such Lender or such other corporation as a result of such increase of
capital. In determining such additional amounts, each Lender will act reasonably
and in good faith and will use averaging and attribution methods which are
reasonable, provided that such Lender's determination of compensation owing
under this Section 1.10(c) shall, absent manifest error, be final and conclusive
and binding on all the parties hereto. Each Lender, upon determining that any
additional amounts will be payable pursuant to this Section 1.10(c), will give
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prompt written notice thereof to the Borrower, which notice shall show in
reasonable detail the basis for calculation of such additional amounts.
1.11 COMPENSATION. The Borrower agrees to compensate each Lender,
upon its written request (which request shall set forth in reasonable detail the
basis for requesting such compensation), for all losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Lender to fund its Eurodollar Loans but excluding loss of
anticipated profits) which such Lender may sustain: (i) if for any reason (other
than a default by such Lender or the Administrative Agent) a Borrowing of, or
conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether
or not withdrawn by the Borrower or deemed withdrawn pursuant to Section
1.10(a)); (ii) if any prepayment or repayment (including any prepayment or
repayment made pursuant to Section 4.01, 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 Eurodollar Loans when required by the terms of this Agreement or any Note
held by such Lender or (y) any election made pursuant to Section 1.10(b).
1.12 CHANGE OF LENDING OFFICE. Each Lender agrees that on the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect to such
Lender, it will, if requested by the Borrower, use reasonable efforts (subject
to overall policy considerations of such Lender) to designate another lending
office for any Loans or Letters of Credit affected by such event, provided that
such designation is made on such terms that such Lender and its lending office
suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the operation of such
Section. Nothing in this Section 1.12 shall affect or postpone any of the
obligations of the Borrower or the right of any Lender provided in Sections
1.10, 2.06 and 4.04.
1.13 REPLACEMENT OF LENDERS. (x) If any Lender becomes a Defaulting
Lender, (y) upon the occurrence of an event giving rise to the operation of
Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.06 or Section 4.04 with
respect to any Lender which results in such Lender charging to the Borrower
increased costs in excess of those being generally charged by the other Lenders
or (z) in the case of a refusal by a Lender to consent to certain proposed
changes, waivers, discharges or terminations with respect to this Agreement
which have been approved by the Required Lenders as (and to the extent) provided
in Section 13.12(b), the Borrower shall have the right, if no Default or Event
of Default then exists (or, in the case of preceding clause (z), will exist
immediately after giving effect to such replacement), to replace such Lender
(the "REPLACED LENDER") with one or more other Eligible Transferees, none of
whom shall constitute a Defaulting Lender at the time of such replacement
(collectively, the "REPLACEMENT LENDER") and each of whom shall be required to
be reasonably acceptable to the Administrative Agent, provided that (i) at the
time of any replacement pursuant to this Section 1.13, the Replacement Lender
shall enter into one or more Assignment and Assumption Agreements pursuant to
Section 13.04(b) (and with all fees payable pursuant to said Section 13.04(b) to
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be paid by the Replacement Lender and/or the Replaced Lender (as may be agreed
to at such time by and among the Borrower, the Replacement Lender and the
Replaced Lender)) pursuant to which the Replacement Lender shall acquire all of
the Commitments and outstanding Loans of, and in each case participations in
Letters of Credit by, the Replaced Lender and, in connection therewith, shall
pay to (x) the Replaced Lender in respect thereof an amount equal to the sum of
(I) an amount equal to the principal of, and all accrued interest on, all
outstanding Loans of the Replaced Lender, (II) an amount equal to all Unpaid
Drawings that have been funded by (and not reimbursed to) such Replaced Lender,
together with all then unpaid interest with respect thereto at such time, and
(III) an amount equal to all accrued, but theretofore unpaid, Fees owing to the
Replaced Lender pursuant to Section 3.01, (y) each Issuing Lender an amount
equal to such Replaced Lender's RL Percentage of any Unpaid Drawing (which at
such time remains an Unpaid Drawing) to the extent such amount was not
theretofore funded by such Replaced Lender to such Issuing Lender and (z) the
Swingline Lender an amount equal to such Replaced Lender's RL Percentage of any
Mandatory Borrowing to the extent such amount was not theretofore funded by such
Replaced Lender to the Swingline Lender and (ii) all obligations of the Borrower
due and owing to the Replaced Lender at such time (other than those specifically
described in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid) shall be paid in full to such Replaced
Lender concurrently with such replacement. Upon the execution of the respective
Assignment and Assumption Agreement, the payment of amounts referred to in
clauses (i) and (ii) above and, if so requested by the Replacement Lender,
delivery to the Replacement Lender of the appropriate Note or Notes executed by
the Borrower, the Replacement Lender shall become a Lender hereunder and the
Replaced Lender shall cease to constitute a Lender hereunder, except with
respect to indemnification provisions under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 13.01), which shall
survive as to such Replaced Lender.
SECTION 2. LETTERS OF CREDIT.
2.01 LETTERS OF CREDIT. (a) Subject to and upon the terms and
conditions set forth herein, the Borrower may request that an Issuing Lender
issue, at any time and from time to time on and after the Initial Borrowing Date
and prior to the 60th day prior to the Revolving Loan Maturity Date, for the
account of the Borrower and for the benefit of (x) any holder (or any trustee,
agent or other similar representative for any such holders) of L/C Supportable
Obligations, an irrevocable standby letter of credit, in a form customarily used
by such Issuing Lender or in such other form as is reasonably acceptable to such
Issuing Lender, and (y) sellers of goods to the Borrower or any of its
Subsidiaries, an irrevocable trade letter of credit, in a form customarily used
by such Issuing Lender or in such other form as has been approved by such
Issuing Lender (each such letter of credit, a "LETTER OF CREDIT" and,
collectively, the "LETTERS OF CREDIT"). All Letters of Credit shall be
denominated in Dollars and shall be issued on a sight basis only.
(b) Subject to and upon the terms and conditions set forth herein,
each Issuing Lender agrees that it will, at any time and from time to time on
and after the Initial Borrowing Date and prior to the 60th day prior to the
Revolving Loan Maturity Date, following its receipt of the respective Letter of
Credit Request, issue for account of the Borrower, one or more Letters of Credit
as are permitted to remain outstanding hereunder without giving rise to a
Default or an Event of Default, provided that no Issuing Lender shall be under
any obligation to issue any Letter of Credit of the types described above if at
the time of such issuance:
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(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Issuing
Lender from issuing such Letter of Credit or any requirement of law
applicable to such Issuing Lender or any request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over such Issuing Lender shall prohibit, or request that such
Issuing Lender refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon such Issuing
Lender with respect to such Letter of Credit any restriction or reserve or
capital requirement (for which such Issuing Lender is not otherwise
compensated hereunder) not in effect with respect to such Issuing Lender
on the date hereof, or any unreimbursed loss, cost or expense which was
not applicable or in effect with respect to such Issuing Lender as of the
date hereof and which such Issuing Lender reasonably and in good xxxxx
xxxxx material to it; or
(ii) such Issuing Lender shall have received from the Borrower, any
other Credit Party or the Required Lenders prior to the issuance of such
Letter of Credit notice of the type described in the second sentence of
Section 2.03(b).
2.02 MAXIMUM LETTER OF CREDIT OUTSTANDINGS; FINAL MATURITIES.
Notwithstanding anything to the contrary contained in this Agreement, (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) $2,000,000 or (y) when added to the sum of (I)
the aggregate principal amount of all Revolving Loans then outstanding and (II)
the aggregate principal amount of all Swingline Loans then outstanding, an
amount equal to the Total Revolving Loan Commitment at such time, and (ii) each
Letter of Credit shall by its terms terminate (x) in the case of standby Letters
of Credit, on or before the earlier of (A) the date which occurs 12 months after
the date of the issuance thereof (although any such standby Letter of Credit
shall be extendible for successive periods of up to 12 months, but, in each
case, not beyond the tenth Business Day prior to the Revolving Loan Maturity
Date, on terms acceptable to the respective Issuing Lender) and (B) ten Business
Days prior to the Revolving Loan Maturity Date, and (y) in the case of trade
Letters of Credit, on or before the earlier of (A) the date which occurs 180
days after the date of issuance thereof and (B) 30 days prior to the Revolving
Loan Maturity Date.
2.03 LETTER OF CREDIT REQUESTS; MINIMUM STATED AMOUNT. (a) Whenever
the Borrower desires that a Letter of Credit be issued for its account, the
Borrower shall give the Administrative Agent and the respective Issuing Lender
at least five Business Days' (or such shorter period as is acceptable to such
Issuing Lender) written notice thereof (including by way of facsimile). Each
notice shall be in the form of Exhibit C, appropriately completed (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 to the Lenders that such Letter
of Credit may be issued in accordance with, and will not violate the
requirements of, Section 2.02. Unless the respective Issuing Lender has received
notice from the Borrower, any other Credit Party or the Required Lenders before
it issues a Letter of Credit that one or more of the conditions specified in
Section 5 or 6 are not then satisfied, or that the issuance of such Letter of
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Credit would violate Section 2.02, then such Issuing Lender shall, subject to
the terms and conditions of this Agreement, issue the requested Letter of Credit
for the account of the Borrower in accordance with such Issuing Lender's usual
and customary practices. Upon the issuance of or modification or amendment to
any standby Letter of Credit, each Issuing Lender shall promptly notify the
Borrower and the Administrative Agent, in writing of such issuance, modification
or amendment and such notice shall be accompanied by a copy of such Letter of
Credit or the respective modification or amendment thereto, as the case may be.
Promptly after receipt of such notice the Administrative Agent shall notify the
Participants, in writing, of such issuance, modification or amendment. On the
first Business Day of each week, each Issuing Lender shall furnish the
Administrative Agent with a written (including via facsimile) report of the
daily aggregate outstandings of trade Letters of Credit issued by such Issuing
Lender for the immediately preceding week. Notwithstanding anything to the
contrary contained in this Agreement, in the event that a Lender Default exists
with respect to an RL Lender, no Issuing Lender shall be required to issue any
Letter of Credit unless such Issuing Lender has entered into arrangements
satisfactory to it and the Borrower to eliminate such Issuing Lender's risk with
respect to the participation in Letters of Credit by the Defaulting Lender or
Lenders, including by cash collateralizing such Defaulting Lender's or Lenders'
RL Percentage of the Letter of Credit Outstandings.
(c) The initial Stated Amount of each Letter of Credit shall not be
less than $250,000 or such lesser amount as is acceptable to the respective
Issuing Lender.
2.04 LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the
issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall
be deemed to have sold and transferred to each RL Lender, and each such RL
Lender (in its capacity under this Section 2.04, a "Participant") shall be
deemed irrevocably and unconditionally to have purchased and received from such
Issuing Lender, without recourse or warranty, an undivided interest and
participation, to the extent of such Participant's RL Percentage, in such Letter
of Credit, each drawing or payment 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 RL Percentages of the Lenders pursuant to Section 1.13 or 13.04(b), it is
hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid
Drawings relating thereto, there shall be an automatic adjustment to the
participations pursuant to this Section 2.04 to reflect the new RL Percentages
of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no
Issuing Lender shall have any obligation relative to the other Lenders other
than to confirm that any documents required to be delivered under such Letter of
Credit appear to have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by an Issuing Lender under or in connection with
any Letter of Credit issued by it shall not create for such Issuing Lender any
resulting liability to the Borrower, any other Credit Party, any Lender or any
other Person unless such action is taken or omitted to be taken with gross
negligence or willful misconduct on the part of such Issuing Lender (as
determined by a court of competent jurisdiction in a final and non-appealable
decision).
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(c) In the event that an Issuing Lender makes any payment under any
Letter of Credit issued by it and the Borrower shall not have reimbursed such
amount in full to such Issuing Lender pursuant to Section 2.05(a), such Issuing
Lender shall promptly notify the Administrative Agent, which shall promptly
notify each Participant of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Lender the amount of such Participant's RL
Percentage of such unreimbursed payment in Dollars and in same day funds. If the
Administrative Agent so notifies, prior to 12:00 Noon (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 the respective Issuing Lender
in Dollars such Participant's RL 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 RL Percentage of the amount of such payment available to
the respective Issuing Lender, such Participant agrees to pay to such Issuing
Lender, forthwith on demand such amount, together with interest thereon, for
each day from such date until the date such amount is paid to such Issuing
Lender at the overnight Federal Funds Rate for the first three days and at the
interest rate applicable to Revolving Loans that are maintained as Base Rate
Loans for each day thereafter. The failure of any Participant to make available
to an Issuing Lender its RL Percentage of any payment under any Letter of Credit
issued by such Issuing Lender shall not relieve any other Participant of its
obligation hereunder to make available to such Issuing Lender its RL Percentage
of any payment under any Letter of Credit on the date required, as specified
above, but no Participant shall be responsible for the failure of any other
Participant to make available to such Issuing Lender such other Participant's RL
Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement
obligation as to which it has received any payments from the Participants
pursuant to clause (c) above, such Issuing Lender shall pay to each such
Participant which has paid its RL Percentage thereof, in Dollars and in same day
funds, 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.
(e) Upon the request of any Participant, each Issuing Lender shall
furnish to such Participant copies of any standby Letter of Credit issued by it
and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each
Issuing Lender with respect to Letters of Credit shall be irrevocable and not
subject to any qualification or exception whatsoever (except in the case of an
Issuing Lender's gross negligence or willful misconduct (as determined by a
court of competent jurisdiction in a final and non-appealable decision)) and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right
which the Borrower or any of its Subsidiaries may have at any time against
a beneficiary named in a Letter of Credit, any transferee of any Letter of
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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 or any Subsidiary of the
Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The Borrower
agrees to reimburse each Issuing Lender, by making payment to the Administrative
Agent in immediately available funds at the Payment Office, for any payment or
disbursement made by such Issuing Lender under any Letter of Credit issued by it
(each such amount, so paid until reimbursed, an "Unpaid Drawing"), not later
than one Business Day following receipt by the Borrower of notice of such
payment or disbursement (provided that no such notice shall be required to be
given if a Default or an Event of Default under Section 10.05 shall have
occurred and be continuing, in which case the Unpaid Drawing shall be due and
payable immediately without presentment, demand, protest or notice of any kind
(all of which are hereby waived by the Borrower)), with interest on the amount
so paid or disbursed by such Issuing Lender, 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
Lender was reimbursed by the Borrower therefor at a rate per annum equal to the
Base Rate in effect from time to time plus the Applicable Margin as in effect
from time to time for Revolving Loans that are maintained as Base Rate 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 the receipt by the
Borrower of notice of such payment or disbursement or following the occurrence
of a Default or an Event of Default under Section 10.05, interest shall
thereafter accrue on the amounts so paid or disbursed by such Issuing Lender
(and until reimbursed by the Borrower) at a rate per annum equal to the Base
Rate in effect from time to time plus the Applicable Margin for Revolving Loans
that are maintained as Base Rate Loans as in effect from time to time plus 2%,
with such interest to be payable on demand. Each Issuing Lender shall give the
Borrower prompt written notice of each Drawing under any Letter of Credit issued
by it, 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 2.05 to
reimburse each Issuing Lender with respect to drafts, demands and other
presentations for payment under Letters of Credit issued by it (each a
"DRAWING") (including, in each case, interest thereon) shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrower or any Subsidiary of the
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Borrower may have or have had against any Lender (including in its capacity as
an Issuing Lender or as a Participant), including, without limitation, any
defense based upon the failure of any drawing under a Letter of Credit to
conform to the terms of the Letter of Credit or any nonapplication or
misapplication by the beneficiary of the proceeds of such Drawing; provided,
however, that the Borrower shall not be obligated to reimburse any Issuing
Lender for any wrongful payment made by such Issuing Lender under a Letter of
Credit issued by it as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of such Issuing Lender (as determined
by a court of competent jurisdiction in a final and non-appealable decision).
2.06 INCREASED COSTS. If at any time after the Effective Date, the
introduction of or any change in any applicable law, rule, regulation, order,
guideline or request or in the interpretation or administration thereof by the
NAIC or any governmental authority charged with the interpretation or
administration thereof, or compliance by any Issuing Lender or any Participant
with any request or directive by the NAIC or by any such governmental authority
(whether or not having the force of law), shall either (i) impose, modify or
make applicable any reserve, deposit, capital adequacy or similar requirement
against letters of credit issued by any Issuing Lender or participated in by any
Participant, or (ii) impose on any Issuing Lender or any Participant any other
conditions relating, directly or indirectly, to this Agreement or any Letter of
Credit; and the result of any of the foregoing is to increase the cost to any
Issuing Lender or any Participant of issuing, maintaining or participating in
any Letter of Credit, or reduce the amount of any sum received or receivable by
any Issuing Lender or any Participant hereunder or reduce the rate of return on
its capital with respect to Letters of Credit (except for changes in the rate of
tax on, or determined by reference to, the net income or profits of such Issuing
Lender or such Participant pursuant to the laws of the jurisdiction in which it
is organized or in which its principal office or applicable lending office is
located or any subdivision thereof or therein), then, upon the delivery of the
certificate referred to below to the Borrower by any Issuing Lender or any
Participant (a copy of which certificate shall be sent by such Issuing Lender or
such Participant to the Administrative Agent), the Borrower agrees to pay to
such Issuing Lender or such Participant such additional amount or amounts as
will compensate such Issuing Lender or such Participant for such increased cost
or reduction in the amount receivable or reduction on the rate of return on its
capital. Any Issuing Lender or any Participant, upon determining that any
additional amounts will be payable pursuant to this Section 2.06, will give
prompt written notice thereof to the Borrower, which notice shall include a
certificate submitted to the Borrower by such Issuing Lender or such Participant
(a copy of which certificate shall be sent by the Issuing Lender 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 Lender or such Participant. The certificate required to
be delivered pursuant to this Section 2.06 shall, absent manifest error, be
final and conclusive and binding on the Borrower.
SECTION 3. COMMITMENT COMMISSION; FEES; REDUCTIONS OF COMMITMENT.
3.01 FEES. (a) The Borrower agrees to pay to the Administrative
Agent for distribution to each Non-Defaulting RL Lender a commitment commission
(the "COMMITMENT COMMISSION") for the period from and including the Effective
Date to and including the Revolving Loan Maturity Date (or such earlier date on
which the Total Revolving Loan Commitment has been terminated) computed at a
rate per annum equal to 1/2 of 1% of the Unutilized Revolving Loan Commitment of
such Non-Defaulting RL Lender as in effect from time to time. Accrued Commitment
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Commission shall be due and payable quarterly in arrears on each Quarterly
Payment Date and on the date upon which the Total Revolving Loan Commitment is
terminated.
(b) The Borrower agrees to pay to the Administrative Agent for
distribution to each RL Lender (based on each such RL Lender's respective RL
Percentage) a fee in respect of each Letter of Credit (the "LETTER OF CREDIT
FEE") for the period from and including the date of issuance of such Letter of
Credit to and including the date of termination or expiration of such Letter of
Credit, computed at a rate per annum equal to the Applicable Margin as in effect
from time to time during such period with respect to Revolving Loans that are
maintained as Eurodollar Loans on the daily Stated Amount of each such Letter of
Credit. Accrued Letter of Credit Fees shall be due and payable quarterly in
arrears on each Quarterly Payment Date and on 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 each Issuing Lender, for its own
account, a facing fee in respect of each Letter of Credit issued by it (the
"FACING FEE") for the period from and including the date of issuance of such
Letter of Credit to and including the date of termination or expiration of such
Letter of Credit, computed at a rate per annum equal to 1/4 of 1% on the daily
Stated Amount of such Letter of Credit, provided that in any event the minimum
amount of Facing Fees payable in any twelve-month period for each Letter of
Credit shall be not less than $1,000; it being agreed that, on the day of
issuance of any Letter of Credit and on each anniversary thereof prior to the
termination or expiration of such Letter of Credit, if $1,000 will exceed the
amount of Facing Fees that will accrue with respect to such Letter of Credit for
the immediately succeeding twelve-month period, the full $1,000 shall be payable
on the date of issuance of such Letter of Credit and on each such anniversary
thereof. Except as otherwise provided in the proviso to the immediately
preceding sentence, accrued Facing 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.
(d) The Borrower agrees to pay to each Issuing Lender, for its own
account, upon each payment under, issuance of, or amendment to, any Letter of
Credit issued by it, such amount as shall at the time of such event be the
administrative charge and the reasonable expenses which such Issuing Lender is
generally imposing in connection with such occurrence with respect to letters of
credit.
(e) The Borrower agrees to pay to the Administrative Agent such fees
as may be agreed to in writing from time to time by the Borrower or any of its
Subsidiaries and the Administrative Agent.
3.02 VOLUNTARY TERMINATION OF UNUTILIZED REVOLVING LOAN COMMITMENTS.
(a) Upon at least one Business Day's prior written notice to the Administrative
Agent at the Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Lenders), the Borrower shall have the right, at any time
or from time to time, without premium or penalty to terminate the Total
Unutilized Revolving Loan Commitment in whole, or reduce it in part, pursuant to
this Section 3.02(a), in an integral multiple of $1,000,000 in the case of
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partial reductions to the Total Unutilized Revolving Loan Commitment, provided
that each such reduction shall apply proportionately to permanently reduce the
Revolving Loan Commitment of each RL Lender.
(b) In the event of a refusal by a Lender to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Lenders as (and to the
extent) provided in Section 13.12(b), the Borrower may, subject to its
compliance with the requirements of Section 13.12(b), upon five Business Days'
prior written notice to the Administrative Agent at the Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Lenders)
terminate all of the Commitments of such Lender, so long as all Loans, together
with accrued and unpaid interest, Fees and all other amounts, owing to such
Lender are repaid concurrently with the effectiveness of such termination
pursuant to Section 4.01(b) (at which time Schedule I shall be deemed modified
to reflect such changed amounts) and such Lender's RL Percentage of all
outstanding Letters of Credit is cash collateralized in a manner satisfactory to
the Administrative Agent and the respective Issuing Lenders, and at such time,
such Lender shall no longer constitute a "Lender" for purposes of this
Agreement, except with respect to indemnifications under this Agreement
(including, without limitation, Sections 1.10, 1.11, 2.06, 4.04, 12.06 and
13.01), which shall survive as to such repaid Lender.
3.03 MANDATORY REDUCTION OF COMMITMENTS. (a) The Total Commitment
(and the Commitment of each Lender) shall terminate in its entirety on September
30, 2003, unless the Initial Borrowing Date has occurred on or prior to such
date.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total A Term Loan Commitment (and the A Term
Loan Commitment of each Lender) shall terminate in its entirety on the Initial
Borrowing Date (after giving effect to the incurrence of A Term Loans on such
date).
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total B Term Loan Commitment (and the B Term
Loan Commitment of each Lender) shall terminate in its entirety on the Initial
Borrowing Date (after giving effect to the incurrence of B Term Loans on such
date).
(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment shall
terminate in its entirety upon the earlier of (i) the Revolving Loan Maturity
Date and (ii) unless the Required Lenders otherwise agree in writing, the date
on which a Change of Control occurs.
(e) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment shall be
reduced from time to time to the extent required by Section 4.02.
(f) Each reduction to, or termination of, the Total Revolving Loan
Commitment shall be applied to proportionately reduce or terminate, as the case
may be, the Revolving Loan Commitment of each Lender with a Revolving Loan
Commitment.
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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 the
Notice Office (x) at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay Base
Rate Loans (or same day notice in the case of a prepayment of Swingline Loans)
and (y) at least three Business Days' prior written notice (or telephonic notice
promptly confirmed in writing) of its intent to prepay Eurodollar Loans, which
notice (in each case) shall specify, subject to clause (v) of this Section
4.01(a), whether A Term Loans, B Term Loans, Revolving Loans or Swingline Loans
shall be prepaid, the amount of such prepayment and the Types of Loans to be
prepaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings pursuant to which such Eurodollar Loans were made, and which notice
the Administrative Agent shall, except in the case of a prepayment of Swingline
Loans, promptly transmit to each of the Lenders; (ii) (x) each partial
prepayment of Term Loans pursuant to this Section 4.01(a) shall be in an
aggregate principal amount of at least $1,000,000 (or such lesser amount as is
acceptable to the Administrative Agent), (y) each partial prepayment of
Revolving Loans pursuant to this Section 4.01(a) shall be in an aggregate
principal amount of at least $500,000 (or such lesser amount as is acceptable to
the Administrative Agent in any given case) and (z) each partial prepayment of
Swingline Loans pursuant to this Section 4.01(a) shall be in an aggregate
principal amount of at least $100,000 (or such lesser amount as is acceptable to
the Administrative Agent in any given case), provided that if any partial
prepayment of Eurodollar Loans made pursuant to any Borrowing shall reduce the
outstanding principal amount of Eurodollar Loans made pursuant to such Borrowing
to an amount less than the Minimum Borrowing Amount applicable thereto, then
such Borrowing may not be continued as a Borrowing of Eurodollar Loans (and same
shall automatically be converted into a Borrowing of Base Rate Loans) and any
election of an Interest Period with respect thereto given by the Borrower shall
have no force or effect; (iii) each prepayment pursuant to this Section 4.01(a)
in respect of any Loans made pursuant to a Borrowing shall be applied pro rata
among such Loans, provided that at the Borrower's election in connection with
any prepayment of Revolving Loans pursuant to this Section 4.01(a), such
prepayment shall not, so long as no Default or Event of Default then exists, be
applied to any Revolving Loan of a Defaulting Lender; (iv) each prepayment of
principal of A Term Loans shall be applied to reduce the then remaining
Scheduled A Repayments on a pro rata basis (based upon the then remaining
principal amounts of the Scheduled A Repayments after giving effect to all prior
reductions thereto); and (v) no voluntary prepayments of B Term Loans may be
made pursuant to this Section 4.01(a) until the date on which the Total
Commitment and all Letters of Credit have been terminated and all Loans (other
than the Tranche B Term Loans), Notes (other than the B Term Notes) and Unpaid
Drawings, together with all interest owing with respect thereto, have been
indefeasably paid in full in cash.
(b) In the event of a refusal by a Lender to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Lenders as (and to the
extent) provided in Section 13.12(b), the Borrower may, upon five Business Days'
prior written notice to the Administrative Agent at the Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Lenders)
repay all Loans, together with accrued and unpaid interest, Fees, and other
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amounts owing to such Lender in accordance with, and subject to the requirements
of, said Section 13.12(b) so long as (I) all Commitments of such Lender are
terminated concurrently with such repayment pursuant to Section 3.02(b) (at
which time Schedule I shall be deemed modified to reflect the changed
Commitments), (II) such Lender's RL Percentage of all outstanding Letters of
Credit is cash collateralized in a manner satisfactory to the Administrative
Agent and the respective Issuing Lenders and (III) the consents, if any,
required under Section 13.12(b) in connection with the repayment pursuant to
this clause (b) have been obtained. Each prepayment of any A Term Loans pursuant
to this Section 4.01(b) shall be applied to reduce the then remaining Scheduled
A Repayments of A Term Loans on a pro rata basis (based upon the then remaining
unpaid principal amounts of Scheduled A Repayments after giving effect to all
prior reductions thereto).
4.02 MANDATORY REPAYMENTS. (a) On any day on which the sum of (I)
the aggregate outstanding principal amount of all Revolving Loans (after giving
effect to all other repayments thereof on such date), (II) the aggregate
outstanding principal amount of all Swingline Loans (after giving effect to all
other repayments thereof on such date) and (III) the aggregate amount of all
Letter of Credit Outstandings, exceeds the Total Revolving Loan Commitment at
such time, the Borrower shall prepay on such day the principal of Swingline
Loans and, after all Swingline Loans have been repaid in full or if no Swingline
Loans are outstanding, Revolving Loans in an amount equal to such excess. If,
after giving effect to the prepayment of all outstanding Swingline Loans and
Revolving Loans, the aggregate amount of the Letter of Credit Outstandings
exceeds the Total Revolving Loan Commitment at such time, the Borrower shall pay
to the Administrative Agent at the Payment Office on such day an amount of cash
and/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
and/or Cash Equivalents to be held as security for all obligations of the
Borrower to the Issuing Lenders and the Lenders hereunder in a cash collateral
account to be established by the Administrative Agent.
(b) In addition to any other mandatory repayments pursuant to this
Section 4.02, on each date set forth below (each, a "Scheduled A Repayment
Date"), the Borrower shall be required to repay that principal amount of A Term
Loans, to the extent then outstanding, as is set forth opposite each such date
below (each such repayment, as the same may be reduced as provided in Section
4.01(a), 4.01(b) or 4.02(h), a "Scheduled A Repayment"):
Scheduled A Repayment Date Amount
-------------------------- ------
December 31, 2003 $ 750,000
March 31, 2004 $ 750,000
June 30, 2004 $ 750,000
September 30, 2004 $ 750,000
December 31, 2004 $1,450,000
March 31, 2005 $1,900,000
June 30, 2005 $1,900,000
September 30, 2005 $1,900,000
December 31, 2005 $2,200,000
March 31, 2006 $2,525,000
June 30, 2006 $2,625,000
September 30, 2006 $2,725,000
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Scheduled A Repayment Date Amount
-------------------------- ------
December 31, 2006 $2,825,000
March 31, 2007 $2,925,000
June 30, 2007 $3,025,000
Term A Loan Maturity Date $1,000,000
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Initial
Borrowing Date upon which the Borrower or any of its Subsidiaries receives any
cash proceeds from any capital contribution or any sale or issuance of its
equity (excluding (i) proceeds from equity issued in connection with the
exercise of employee or management stock options received during any fiscal year
of the Borrower, to the extent (and only to the extent) the Net Equity Proceeds
therefrom do not exceed $500,000 in the aggregate during such fiscal year and
(ii) any capital contribution made to any Subsidiary of the Borrower to the
extent made by the Borrower or another Subsidiary of the Borrower), an amount
equal to 100% of the Net Equity Proceeds of such capital contribution or sale or
issuance of equity shall be applied on such date as a mandatory repayment and/or
commitment reductions in accordance with the requirements of Sections 4.02(h)
and (i).
(d) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Initial
Borrowing Date upon which the Borrower or any of its Subsidiaries receives any
cash proceeds from any issuance or incurrence by the Borrower or any of its
Subsidiaries of Indebtedness (other than Indebtedness permitted to be incurred
pursuant to Section 9.04 as in effect on the Effective Date), an amount equal to
100% of the Net Debt Proceeds of the respective incurrence of Indebtedness shall
be applied on such date as a mandatory repayment and/or commitment reduction in
accordance with the requirements of Sections 4.02(h) and (i).
(e) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Initial
Borrowing Date upon which the Borrower or any of its Subsidiaries receives any
cash proceeds from any Asset Sale, an amount equal to 100% of the Net Sale
Proceeds therefrom shall be applied on such date as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Sections 4.02(h) and
(i); provided, however, that with respect to no more than (i) $250,000 in the
aggregate of cash proceeds from the sale of bulk CO2 tanks in any fiscal year of
the Borrower and (ii) $500,000 in the aggregate of cash proceeds from other
Asset Sales during the term of this Agreement, the Net Sale Proceeds therefrom
shall not be required to be so applied on such date so long as no Default or
Event of Default then exists.
(f) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each Excess Cash Flow Payment Date,
an amount equal to the Applicable Excess Cash Flow Percentage of the Excess Cash
Flow for the related Excess Cash Flow Payment Period shall be applied as a
mandatory repayment and/or commitment reduction in accordance with the
requirements of Sections 4.02(h) and (i).
(g) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within 10 days following each date on
or after the Initial Borrowing Date upon which the Borrower or any of its
Subsidiaries receives any cash proceeds from any Recovery Event (other than
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Recovery Events where the Net Insurance Proceeds therefrom do not exceed
$50,000), an amount equal to 100% of the Net Insurance Proceeds from such
Recovery Event shall be applied within such ten day period as a mandatory
repayment and/or commitment reduction in accordance with the requirements of
Sections 4.02(h) and (i); provided, however, that (x) so long as no Default or
Event of Default then exists and such Net Insurance Proceeds do not exceed
$500,000, such Net Insurance Proceeds shall not be required to be so applied
within such ten day period to the extent that the Borrower has delivered a
certificate to the Administrative Agent within such ten day period stating that
such Net Insurance Proceeds shall be used to replace or restore any properties
or assets in respect of which such Net Insurance Proceeds were paid within 90
days (or 180 days in the case of the replacement or restoration of Real
Property) following the date of the receipt of such Net Insurance Proceeds
(which certificate shall set forth the estimates of the Net Insurance Proceeds
to be so expended), and (y) so long as no Default or Event of Default then
exists and if (i) the amount of such Net Insurance Proceeds exceeds $500,000,
(ii) the amount of such Net Insurance Proceeds, together with other cash
available to the Borrower and permitted to be spent by it on Capital
Expenditures during the relevant period pursuant to Section 9.07, equals at
least 100% of the cost of replacement or restoration of the properties or assets
in respect of which such Net Insurance 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, (iii) 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(g) in the form described in clause (x)
above and also certifying the Borrower's determination as required by preceding
clause (ii) and certifying the sufficiency of business interruption insurance as
required by succeeding clause (iv), and (iv) the Borrower has delivered to the
Administrative Agent such evidence as the Administrative Agent may reasonably
request in form and substance reasonably satisfactory to the Administrative
Agent establishing that the Borrower has sufficient business interruption
insurance and that the Borrower will receive payments thereunder in such amounts
and at such times as are necessary to satisfy all obligations and expenses of
the Borrower (including, without limitation, all debt service requirements,
including pursuant to this Agreement and the Senior Subordinated Notes), without
any delay or extension thereof, for the period from the date of the respective
casualty, condemnation or other event giving rise to the Recovery Event and
continuing through the completion of the replacement or restoration of
respective properties or assets, then the entire amount of the Net Insurance
Proceeds of such Recovery Event and not just the portion in excess of $500,000
shall be deposited with the Administrative Agent pursuant to a cash collateral
arrangement reasonably satisfactory to the Administrative Agent whereby such Net
Insurance 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),
it being understood and agreed that at any time while an Event of Default has
occurred and is continuing, the Required Lenders 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 cash collateral account to the repayment of Obligations in
accordance with the requirements of the Security Agreement, and provided
further, that if all or any portion of such Net Insurance Proceeds not required
to be so applied pursuant to the preceding proviso (whether pursuant to clause
(x) or (y) thereof) are not so used within 90 days (or 180 days in the case of
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Real Property) after the date of the receipt of such Net Insurance Proceeds (or
such earlier date, if any, as the Borrower or the relevant Subsidiary determines
not to reinvest the Net Insurance Proceeds relating to such Recovery Event as
set forth above), such remaining portion shall be applied on the last day of
such period (or such earlier date, as the case may be) as provided above in this
Section 4.02(g) without regard to the preceding proviso.
(h) Each amount required to be applied pursuant to Sections 4.02(c),
(d), (e), (f) and (g) in accordance with this Section 4.02(h) shall be applied
(i) first, to repay the outstanding principal amount of A Term Loans, (ii)
second, to the extent in excess of the amounts required to be applied pursuant
to the preceding clause (i), to reduce the Total Revolving Loan Commitment in
the manner provided in Section 3.03(f) (it being understood and agreed that (x)
the amount of any reduction to the Total Revolving Loan Commitment as provided
in immediately preceding clause (ii) shall be deemed to be an application of
proceeds for purposes of this Section 4.02(h) even though cash is not actually
applied and (y) any cash received by the Borrower or any of its Subsidiaries
will be retained by such Person except to the extent that such cash is otherwise
required to be applied as provided in Section 4.02(a) as a result of any
reduction to the Total Revolving Loan Commitment or is otherwise required to be
applied to the repayment of B Term Loans as provided in clause (iii) below) and
(iii) third, to the extent in excess of the amounts required to be applied
pursuant to the preceding clauses (i) and (ii) (and only after the Total
Commitment and all Letters of Credit have been terminated and all Loans (other
than B Term Loans), Notes (other than B Term Notes) Unpaid Drawings and all
other Senior Loan Obligations have been indefeasably paid in full in cash), to
the B Term Loans then outstanding. All repayments of outstanding A Term Loans
pursuant to Sections 4.02(c), (d), (e), (f) or (g) shall be applied to reduce
the then remaining Scheduled A Repayments on a pro rata basis (based upon the
then remaining Scheduled A Repayments after giving effect to all prior
reductions thereto).
(i) With respect to each repayment of Loans required by this Section
4.02, the Borrower may (subject to the priority payment requirements of Section
4.02(h)) 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 such Eurodollar Loans
were 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 the
Minimum Borrowing Amount applicable thereto, such Borrowing shall be
automatically converted 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.
(j) In addition to any other mandatory repayments pursuant to this
Section 4.02, (i) all then outstanding Loans of any Tranche shall be repaid in
full on the respective Maturity Date for such Tranche of Loans and (ii) unless
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the Required Lenders otherwise agree in writing, all then outstanding Loans
shall be repaid in full on the date on which a Change of Control occurs.
4.03 METHOD AND PLACE OF PAYMENT. Except as otherwise specifically
provided herein, all payments under this Agreement and under any Note shall be
made to the Administrative Agent for the account of the Lender or Lenders
entitled thereto not later than 12:00 Noon (New York time) on the date when due
and shall be made in Dollars in immediately available funds at the Payment
Office. 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) All payments made by the Borrower hereunder
and under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but
excluding, except as provided in the second succeeding sentence, any tax imposed
on or measured by the net income or net profits of a Lender pursuant to the laws
of the jurisdiction in which it is organized or the jurisdiction in which the
principal office or applicable lending office of such Lender is located or any
subdivision thereof or therein) and all interest, penalties or similar
liabilities with respect to such non-excluded taxes, levies, imposts, duties,
fees, assessments or other charges (all such non-excluded taxes, levies,
imposts, duties, fees, assessments or other charges being referred to
collectively as "Taxes"). If any Taxes are so levied or imposed, the Borrower
agrees to pay the full amount of such Taxes, and such additional amounts as may
be necessary so that every payment of all amounts due under this Agreement or
under any Note, after withholding or deduction for or on account of any Taxes,
will not be less than the amount provided for herein or in such Note. If any
amounts are payable in respect of Taxes pursuant to the preceding sentence, the
Borrower agrees to reimburse each Lender, upon the written request of such
Lender, for taxes imposed on or measured by the net income or net profits of
such Lender pursuant to the laws of the jurisdiction in which such Lender is
organized or in which the principal office or applicable lending office of such
Lender is located or under the laws of any political subdivision or taxing
authority of any such jurisdiction in which such Lender is organized or in which
the principal office or applicable lending office of such Lender is located and
for any withholding of taxes as such Lender shall determine are payable by, or
withheld from, such Lender, in respect of such amounts so paid to or on behalf
of such Lender pursuant to the preceding sentence and in respect of any amounts
paid to or on behalf of such Lender pursuant to this sentence. The Borrower will
furnish to the Administrative Agent within 45 days after the date the payment of
any Taxes is due pursuant to applicable law certified copies of tax receipts
evidencing such payment by such Borrower. The Borrower agrees to indemnify and
hold harmless each Lender, and reimburse such Lender upon its written request,
for the amount of any Taxes so levied or imposed and paid by such Lender.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes
agrees to deliver to the Borrower and the Administrative Agent on or prior to
the Effective Date or, in the case of a Lender that is an assignee or transferee
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of an interest under this Agreement pursuant to Section 1.13 or 13.04(b) (unless
the respective Lender was already a Lender hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such
Lender, (i) two accurate and complete original signed copies of Internal Revenue
Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under
an income tax treaty) (or successor forms) certifying to such Lender's
entitlement as of such date to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement and
under any Note, or (ii) if the Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under
an income tax treaty) (or any successor forms) pursuant to clause (i) above, (x)
a certificate substantially in the form of Exhibit D (any such certificate, a
"Section 4.04(b)(ii) Certificate") and (y) two accurate and complete original
signed copies of Internal Revenue Service Form W-8BEN (with respect to the
portfolio interest exemption) (or successor form) certifying to such Lender's
entitlement as of such date to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this
Agreement and under any Note. In addition, each Lender agrees that from time to
time after the Effective Date, when a lapse in time or change in circumstances
renders the previous certification obsolete or inaccurate in any material
respect, such Lender will deliver to the Borrower and the Administrative Agent
two new accurate and complete original signed copies of Internal Revenue Service
Form W-8ECI, Form W-8BEN (with respect to the benefits of any income tax
treaty), or Form W-8BEN (with respect to the portfolio interest exemption) and a
Section 4.04(b)(ii) Certificate, as the case may be, and such other forms as may
be required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or such Lender shall
immediately notify the Borrower and the Administrative Agent of its inability to
deliver any such Form or Certificate, in which case such Lender shall not be
required to deliver any such Form or Certificate pursuant to this Section
4.04(b). Notwithstanding anything to the contrary contained in Section 4.04(a),
but subject to Section 13.04(b) and the immediately succeeding sentence, (x) the
Borrower shall be entitled, to the extent it is required to do so by law, to
deduct or withhold income or similar taxes imposed by the United States (or any
political subdivision or taxing authority thereof or therein) from interest,
Fees or other amounts payable hereunder for the account of any Lender which is
not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) for U.S. Federal income tax purposes to the extent that such Lender
has not provided to the Borrower U.S. Internal Revenue Service Forms that
establish a complete exemption from such deduction or withholding and (y) the
Borrower shall not be obligated pursuant to Section 4.04(a) to gross-up payments
to be made to a Lender in respect of income or similar taxes imposed by the
United States if (I) such Lender has not provided to the Borrower the Internal
Revenue Service Forms required to be provided to the Borrower pursuant to this
Section 4.04(b) or (II) in the case of a payment, other than interest, to a
Lender described in clause (ii) above, to the extent that such forms do not
establish a complete exemption from withholding of such taxes. Notwithstanding
anything to the contrary contained in the preceding sentence or elsewhere in
this Section 4.04 and except as set forth in Section 13.04(b), the Borrower
agrees to pay any additional amounts and to indemnify each Lender in the manner
set forth in Section 4.04(a) (without regard to the identity of the jurisdiction
requiring the deduction or withholding) in respect of any amounts deducted or
withheld by it as described in the immediately preceding sentence as a result of
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any changes that are effective after the Effective Date in any applicable law,
treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of such Taxes.
SECTION 5. CONDITIONS PRECEDENT TO CREDIT EVENTS ON THE INITIAL
BORROWING DATE. The obligation of each Lender to make Loans, and the obligation
of each Issuing Lender to issue Letters of Credit, on the Initial Borrowing
Date, is subject at the time of the making of such Loans or the issuance of such
Letters of Credit to the satisfaction of the following conditions:
5.01 EFFECTIVE DATE; NOTES. On or prior to the Initial Borrowing
Date, (i) the Effective Date shall have occurred and (ii) there shall have been
delivered to the Administrative Agent for the account of each of the Lenders
that has requested same the appropriate A Term Note, B Term Note and/or
Revolving Note executed by the Borrower and, if requested by the Swingline
Lender, the Swingline Note executed by the Borrower, in each case in the amount,
maturity and as otherwise provided herein.
5.02 OFFICER'S CERTIFICATE. On the Initial Borrowing Date, the
Administrative Agent shall have received a certificate, dated the Initial
Borrowing Date and signed on behalf of the Borrower by the Chairman of the
Board, the Chief Executive Officer, the President or any Vice President of the
Borrower, certifying on behalf of the Borrower that all of the conditions in
Sections 5.06, 5.07, 5.08, 5.09 and 6.01 have been satisfied on such date.
5.03 OPINIONS OF COUNSEL. On the Initial Borrowing Date, the
Administrative Agent shall have received (i) from Xxxxxx Xxxxxxxx Frome
Xxxxxxxxxx & Wolosky LLP, counsel to the Borrower, an opinion addressed to the
Administrative Agent and each of the Lenders and dated the Initial Borrowing
Date covering the matters set forth in Exhibit E and such other matters incident
to the transactions contemplated herein as the Administrative Agent may
reasonably request, (ii) from Gunster, Yoakley & Xxxxxxx, P.A., real estate
counsel to the Administrative Agent in the State of Florida, an opinion, in form
and substance reasonably satisfactory to the Administrative Agent, addressed to
the Administrative Agent, the Collateral Agent and each of the Lenders and dated
the Initial Borrowing Date covering such matters incident to the transactions
contemplated herein as the Administrative Agent may reasonably request and (iii)
reliance letters addressed to the Administrative Agent, the Collateral Agent and
the Lenders dated the Initial Borrowing Date with respect to all legal opinions
delivered by counsel to the Borrower in connection with the issuance of the
Senior Subordinated Notes, which reliance letters (and related legal opinions)
shall be in form and substance reasonably satisfactory to the Administrative
Agent.
5.04 CORPORATE DOCUMENTS; PROCEEDINGS; ETC. (a) On the Initial
Borrowing Date, the Administrative Agent shall have received a certificate from
the Borrower, dated the Initial Borrowing Date, signed by the Chairman of the
Board, the Chief Executive Officer, the President or any Vice President of the
Borrower, and attested to by the Secretary or any Assistant Secretary of the
Borrower, in the form of Exhibit F with appropriate insertions, together with
copies of the certificate or articles of incorporation and by-laws (or
equivalent organizational documents), as applicable, of the Borrower and the
resolutions of the Borrower referred to in such certificate, and each of the
foregoing shall be in form and substance reasonably acceptable to the
Administrative Agent.
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(b) On the Initial Borrowing Date, all corporate and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Documents shall be
reasonably satisfactory in form and substance to the Administrative Agent, and
the Administrative Agent shall have received all information and copies of all
documents and papers, including records of corporate proceedings, governmental
approvals, good standing certificates and bring-down telegrams or facsimiles, if
any, which the Administrative Agent reasonably may have requested in connection
therewith, such documents and papers where appropriate to be certified by proper
corporate, limited liability company or governmental authorities.
5.05 EMPLOYEE BENEFIT PLANS; SHAREHOLDERS' AGREEMENTS; MANAGEMENT
AGREEMENTS; EMPLOYMENT AGREEMENTS; NON-COMPETE AGREEMENTS; COLLECTIVE BARGAINING
AGREEMENTS; TAX SHARING AGREEMENTS; EXISTING INDEBTEDNESS AGREEMENTS. On or
prior to the Initial Borrowing Date, there shall have been delivered to the
Administrative Agent true and correct copies of the following documents:
(i) all Plans (and for each Plan that is required to file an annual
report on Internal Revenue Service Form 5500-series, a copy of the most
recent such report (including, to the extent required, the related
financial and actuarial statements and opinions and other supporting
statements, certifications, schedules and information), and for each Plan
that is a "single-employer plan," as defined in Section 4001(a)(15) of
ERISA, the most recently prepared actuarial valuation therefor) and any
other "employee benefit plans," as defined in Section 3(3) of ERISA, and
any other material agreements, plans or arrangements, with or for the
benefit of current or former employees of the Borrower or any of its
Subsidiaries or ERISA Affiliates (provided that the foregoing shall apply
in the case of any multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, only to the extent that any document described herein is in the
possession of the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate, or reasonably available thereto from the sponsor or trustee of
any such Plan) (collectively, the "EMPLOYEE BENEFITS PLANS");
(ii) all agreements entered into by the Borrower or any of its
Subsidiaries governing the terms and relative rights of its equity
interests and any agreements entered into by its shareholders relating to
any such entity with respect to its equity interests (collectively, the
"SHAREHOLDERS' AGREEMENTS");
(iii) all material agreements with members of, or with respect to,
the management of the Borrower or any of its Subsidiaries (collectively,
the "MANAGEMENT AGREEMENTS");
(iv) all material employment agreements entered into by the Borrower
or any of its Subsidiaries (collectively, the "EMPLOYMENT AGREEMENTS");
(v) all non-compete agreements entered into by the Borrower or any
of its Subsidiaries which restrict the activities of the Borrower or any
of its Subsidiaries (collectively, the "NON-COMPETE AGREEMENTS");
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(vi) all collective bargaining agreements applying or relating to
any employee of the Borrower or any of any of its Subsidiaries
(collectively, the "COLLECTIVE BARGAINING AGREEMENTS");
(vii) all tax sharing, tax allocation and other similar agreements
entered into by the Borrower or any of its Subsidiaries (collectively, the
"TAX SHARING AGREEMENTS"); and
(viii) all agreements evidencing or relating to Indebtedness of the
Borrower or any of its Subsidiaries which is to remain outstanding after
giving effect to the Transaction (the "EXISTING INDEBTEDNESS AGREEMENTS");
all of which Employee Benefit Plans, Shareholders' Agreements, Management
Agreements, Employment Agreements, Non-Compete Agreements, Collective Bargaining
Agreements, Tax Sharing Agreements and Existing Indebtedness Agreements shall be
in form and substance reasonably satisfactory to the Administrative Agent and
shall be in full force and effect on the Initial Borrowing Date.
5.06 SENIOR SUBORDINATED NOTES. On or prior to the Initial Borrowing
Date, the Borrower shall have received gross cash proceeds in an aggregate
amount equal to $30.0 million from the issuance of the Senior Subordinated Notes
and shall have utilized the full amount of such cash proceeds to make payments
owing in connection with the Transaction prior to utilizing any proceeds of
Loans for such purpose. There shall have been delivered to the Administrative
Agent true and correct copies of all Senior Subordinated Note Documents, and all
of the terms and conditions of the Senior Subordinated Note Documents
(including, without limitation, covenants, defaults, remedies, and subordination
provisions) shall be in form and substance satisfactory to the Administrative
Agent. All conditions precedent to the consummation of the Transaction as set
forth in the Senior Subordinated Notes Documents shall have been satisfied, and
not waived unless consented to by the Administrative Agent and the Required
Lenders, to the reasonable satisfaction of the Administrative Agent and the
Required Lenders. The issuance of the Senior Subordinated Notes shall have been
consummated in accordance with the terms and conditions of the Senior
Subordinated Note Documents and all applicable law.
5.07 Refinancing. On or prior to the Initial Borrowing Date, the total
commitments pursuant to the Existing Credit Agreement and the Existing Senior
Subordinated Loan Agreement shall have been terminated, and all loans and notes
with respect thereto shall have been repaid in full (together with interest
thereon), all letters of credit issued thereunder shall have been terminated and
all other amounts owing pursuant to the Existing Credit Agreement and the
Existing Subordinated Loan Agreement shall have been repaid in full. The
creditors in respect of the Existing Credit Agreement shall have terminated and
released all security interests in and Liens on the assets (including
Intellectual Property) of the Borrower and its Subsidiaries created pursuant to
the security documentation relating to the Existing Credit Agreement, and such
creditors shall have returned all capital stock pledged under the Existing
Credit Agreement to the Borrower, and the Administrative Agent shall have
received evidence, in form and substance reasonably satisfactory to it, that the
matters set forth in this Section 5.07 have been satisfied as of the Initial
Borrowing Date.
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5.08 ADVERSE CHANGE, APPROVALS. (a) On or prior to the Initial
Borrowing Date, nothing shall have occurred (and neither the Administrative
Agent nor any Lender shall have become aware of any facts or conditions not
previously known) which the Administrative Agent or the Required Lenders shall
determine has had, or could reasonably be expected to have, (i) a Material
Adverse Effect or (ii) a material adverse effect on the Transaction.
(b) On or prior to the Initial Borrowing Date, all necessary
governmental (domestic and foreign) and third party approvals and/or consents in
connection with the Transaction, the other transactions contemplated hereby and
the granting of Liens under the Credit Documents shall have been obtained and
remain in effect, and all applicable waiting periods with respect thereto shall
have expired without any action being taken by any competent authority which
restrains, prevents or imposes materially adverse conditions upon the
consummation of the Transaction or the other transactions contemplated by the
Documents or otherwise referred to herein or therein. On the Initial Borrowing
Date, 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 Transaction or the other transactions contemplated by the Documents or
otherwise referred to herein or therein.
5.09 LITIGATION. On the Initial Borrowing Date, there shall be no
actions, suits or proceedings pending or threatened (i) with respect to the
Transaction, this Agreement or any other Document or (ii) which the
Administrative Agent or the Required Lenders shall determine has had, or could
reasonably be expected to have, a Material Adverse Effect.
5.10 PLEDGE AGREEMENT. On the Initial Borrowing Date, the Borrower
shall have duly authorized, executed and delivered the Pledge Agreement in the
form of Exhibit G (as amended, modified, restated and/or supplemented from time
to time, the "Pledge Agreement") and shall have delivered to the Collateral
Agent, as Pledgee thereunder, all of the Pledge Agreement Collateral, if any,
referred to therein and then owned by the Borrower, (x) endorsed in blank in the
case of promissory notes constituting Pledge Agreement Collateral and (y)
together with executed and undated endorsements for transfer in the case of
equity interests constituting certificated Pledge Agreement Collateral, along
with evidence that all other actions necessary or, in the reasonable opinion of
the Collateral Agent, desirable, to perfect the security interests purported to
be created by the Pledge Agreement have been taken and the Pledge Agreement
shall be in full force and effect.
5.11 SECURITY AGREEMENT. On the Initial Borrowing Date, the Borrower
shall have duly authorized, executed and delivered the Security Agreement in the
form of Exhibit H (as amended, modified, restated and/or supplemented from time
to time, the "Security Agreement") covering all of such Credit Party's present
and future Security Agreement Collateral, together with:
(i) proper financing statements (Form UCC-1 or the equivalent) fully
executed for filing under the UCC or other appropriate filing offices of
each jurisdiction as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable, to perfect the security interests purported
to be created by the Security Agreement;
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(ii) certified copies of requests for information or copies (Form
UCC-11), or equivalent reports as of a recent date, listing all effective
financing statements that name the Borrower or any of its Subsidiaries as
debtor and that are filed in the jurisdictions referred to in clause (i)
above and in such other jurisdictions in which Collateral is located on
the Initial Borrowing Date, together with copies of such other financing
statements that name the Borrower or any of its Subsidiaries as debtor
(none of which shall cover any of the Collateral except (x) to the extent
evidencing Permitted Liens or (y) those in respect of which the Collateral
Agent shall have received termination statements (Form UCC-3) or such
other termination statements as shall be required by local law fully
executed for filing);
(iii) evidence of the completion of all other recordings and filings
of, or with respect to, the Security Agreement as may be necessary or, in
the reasonable opinion of the Collateral Agent, desirable, to perfect the
security interests intended to be created by the Security Agreement; and
(iv) evidence that all other actions necessary or, in the reasonable
opinion of the Collateral Agent, desirable (including the receipt of the
respective control agreements referred to in the Security Agreement) to
perfect and protect the security interests purported to be created by the
Security Agreement have been taken,
and the Security Agreement shall be in full force and effect.
5.12 MORTGAGE; TITLE INSURANCE; SURVEY; LANDLORD WAIVERS; ETC.
Subject to Section 13.17, on the Initial Borrowing Date, the Collateral Agent
shall have received:
(i) fully executed counterparts of a Mortgage, in form and substance
reasonably satisfactory to the Administrative Agent, which Mortgage shall
cover the Real Property owned or leased by the Borrower and designated as
the "Mortgaged Property" on Schedule III, together with evidence that
counterparts of such Mortgage have been delivered to the title insurance
company insuring the Lien of such Mortgage for recording in all places to
the extent necessary or, in the reasonable opinion of the Collateral Agent
desirable, to effectively create a valid and enforceable first priority
mortgage lien, subject only to Permitted Encumbrances, on the Mortgaged
Property described therein in favor of the Collateral Agent (or such other
trustee as may be required or desired under local law) for the benefit of
the Secured Creditors;
(ii) such consents, approvals, amendments, supplements, estoppels,
tenant subordination agreements or other instruments as shall be
reasonably deemed necessary by the Administrative Agent in order for the
owner or holder of the fee interest constituting such Mortgaged Property
to grant the Lien contemplated by the Mortgage with respect to such
Mortgaged Property;
(iii) a Mortgage Policy relating to the Mortgage on the Mortgaged
Property referred to above issued by a title insurer reasonably
satisfactory to the Collateral Agent and in amounts satisfactory to the
Collateral Agent and assuring the Collateral Agent that the Mortgage on
such Mortgaged Property is a valid and enforceable first priority mortgage
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lien on such Mortgaged Property, free and clear of all defects and
encumbrances except Permitted Encumbrances, and such Mortgage Policy shall
otherwise be in form and substance reasonably satisfactory to the
Collateral Agent and shall include, as appropriate, an endorsement for
future advances under this Agreement and the Notes and for any other
matter that the Collateral Agent in its discretion may reasonably request,
shall not include a survey exception or an exception for mechanics' liens,
and shall provide for affirmative insurance and such reinsurance as the
Collateral Agent in its discretion may reasonably request;
(iv) such affidavits, certificates, information (including financial
data) and instruments of indemnification (including, without limitation, a
so-called "gap" indemnification) as shall be required to induce the title
company to issue the Mortgage Policies referred to in subsection (iii)
above;
(v) evidence reasonably acceptable to the Administrative Agent of
payment by the Borrower of all Mortgage Policy premiums in respect of such
Mortgage Property, search and examination charges, and related charges,
mortgage recording taxes, fees, charges, costs and expenses required for
the recording of such Mortgages and issuance of such Mortgage Policies;
(vi) a copy of the existing survey of the Mortgaged Property;
(vii) to the extent obtainable on or prior to the Initial Borrowing
Date, fully executed landlord waivers and/or bailee agreements in respect
of those Leaseholds of the Borrower designated as "Leaseholds Subject to
Landlord Waivers" on Schedule III, each of which landlord waivers and/or
bailee agreements shall be in form and substance reasonably satisfactory
to the Collateral Agent;
(viii) to the extent requested by the Agents, copies of all leases
in which the Borrower holds the lessor's interest or other agreements
relating to possessory interests, if any; provided that, to the extent any
of the foregoing affect such Mortgaged Property, such agreements shall be
subordinate to the Liens of the Mortgage to be recorded against such
Mortgaged Property, either expressly by its terms or pursuant to a
subordination, non-disturbance and attornment agreement (with any such
agreement being reasonably acceptable to the Administrative Agent); and
(ix) flood certificates covering such Mortgaged Property in form and
substance acceptable to the Administrative Agent, and certifying whether
or not each such Mortgaged Property is located in a flood hazard area, as
determined by reference to the applicable FEMA map.
5.13 FINANCIAL STATEMENTS; PRO FORMA BALANCE SHEET; PROJECTIONS. On
or prior to the Initial Borrowing Date, the Administrative Agent shall have
received true and correct copies of the historical financial statements, the pro
forma financial statements and the Projections referred to in Sections 7.05(a)
and (d), which historical financial statements, pro forma financial statements
and Projections shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Required Lenders.
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5.14 Solvency CERTIFICATE; INSURANCE CERTIFICATES, ETC. On the
Initial Borrowing Date, the Administrative Agent shall have received:
(i) a solvency certificate from the chief financial officer of the
Borrower in the form of Exhibit J hereto;
(ii) certificates of insurance complying with the requirements of
Section 8.03 for the business and properties of the Borrower and its
Subsidiaries, in form and substance reasonably satisfactory to the
Administrative Agent and naming the Collateral Agent as an additional
insured and/or as loss payee, and stating that such insurance shall not be
canceled without at least 30 days' prior written notice by the insurer to
the Collateral Agent; and
(iii) if requested by any Agent, environmental and hazardous
substance analyses with respect to the Real Property of the Borrower in
scope, form and substance reasonably acceptable to the Administrative
Agent and the Required Lenders, together with a satisfactory reliance
letter addressed to the Lenders.
5.15 FEES, ETC. On the Initial Borrowing Date, the Borrower shall
have paid to the Administrative Agent (and any other Agents), the Lead Arranger
and each Lender all costs, fees and expenses (including, without limitation,
legal fees and expenses) and other compensation contemplated hereby payable to
the Administrative Agent (and any other Agents), the Lead Arranger or such
Lender to the extent then due.
SECTION 6. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The obligation
of each Lender to make Loans (including Loans made on the Initial Borrowing
Date), and the obligation of each Issuing Lender to issue Letters of Credit
(including Letters of Credit issued on the Initial Borrowing Date), is subject,
at the time of each such Credit Event (except as hereinafter indicated), to the
satisfaction of the following conditions:
6.01 NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of each
such Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein and in the other Credit Documents 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 such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date).
6.02 NOTICE OF BORROWING; LETTER OF CREDIT REQUEST. (a) Prior to the
making of each Loan (other than a Swingline Loan or a Revolving Loan made
pursuant to a Mandatory Borrowing), the Administrative Agent shall have received
a Notice of Borrowing meeting the requirements of Section 1.03(a). Prior to the
making of each Swingline Loan, the Swingline Lender shall have received the
notice referred to in Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Issuing Lender shall have received a
Letter of Credit Request meeting the requirements of Section 2.03(a).
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The acceptance of the benefits of each Credit Event shall constitute
a representation and warranty by the Borrower to the Administrative Agent and
each of the Lenders that all the conditions specified in Section 5 (with respect
to Credit Events on the Initial Borrowing Date) and in this Section 6 (with
respect to Credit Events on or after the Initial Borrowing Date) and applicable
to such Credit Event are satisfied as of that time. All of the Notes,
certificates, legal opinions and other documents and papers referred to in
Section 5 and in this Section 6, unless otherwise specified, shall be delivered
to the Administrative Agent at the Notice Office for the account of each of the
Lenders and, except for the Notes, in sufficient counterparts or copies for each
of the Lenders and shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Required Lenders.
SECTION 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In order to
induce the Lenders 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, in each case after
giving effect to the Transaction, all of which shall survive the execution and
delivery of this Agreement and the Notes and the making of the Loans and the
issuance of the Letters of Credit, with the occurrence of each Credit Event on
or after the Initial Borrowing Date being deemed to constitute a representation
and warranty that the matters specified in this Section 7 are true and correct
in all material respects on and as of the Initial Borrowing Date and on the date
of each such other 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).
7.01 ORGANIZATIONAL STATUS. Each of the Borrower and each of its
Subsidiaries (i) is a duly organized and validly existing corporation,
partnership or limited liability company, as the case may be, in good standing
under the laws of the jurisdiction of its organization, (ii) has the corporate,
partnership or limited liability company power and authority, as the case may
be, to own its property and assets and to transact the business in which it is
engaged and presently proposes to engage and (iii) is duly qualified and is
authorized to do business and is in good standing in each jurisdiction where the
ownership, leasing or operation of its property or the conduct of its business
requires such qualifications except for failures to be so qualified which,
either individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
7.02 POWER AND AUTHORITY. Each Credit Party and each Subsidiary
thereof has the corporate, partnership or limited liability company power and
authority, as the case may be, to execute, deliver and perform the terms and
provisions of each of the Documents to which it is party and has taken all
necessary corporate, partnership or limited liability company action, as the
case may be, to authorize the execution, delivery and performance by it of each
of such Documents. Each Credit Party and each Subsidiary thereof has duly
executed and delivered each of the Documents to which it is party, and each of
such Documents constitutes its legal, valid and binding obligation enforceable
in accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in equity or
at law).
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7.03 NO VIOLATION. Neither the execution, delivery or performance by
any Credit Party or any Subsidiary thereof of the Documents to which it is a
party, nor compliance by it with the terms and provisions thereof, (i) will
contravene any provision of any law, statute, rule or regulation or any order,
writ, injunction or decree of any court or governmental instrumentality, (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 property or assets
of any Credit Party 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, in each case to which any
Credit Party or any of its Subsidiaries is a party or by which it or any its
property or assets is bound or to which it may be subject, or (iii) will violate
any provision of the certificate or articles of incorporation, certificate of
formation, limited liability company agreement or by-laws (or equivalent
organizational documents), as applicable, of any Credit Party or any of its
Subsidiaries.
7.04 APPROVALS. No order, consent, approval, license, authorization
or validation of, or filing, recording or registration with (except for (x)
those that have otherwise been obtained or made on or prior to the Initial
Borrowing Date and which remain in full force and effect on the Initial
Borrowing Date and (y) filings which are necessary to perfect the security
interests created under the Security Documents, which filings will be made
within five days following the Initial Borrowing Date), or exemption by, any
governmental or public body or authority, or any subdivision thereof, is
required to be obtained or made by, or on behalf of, any Credit Party to
authorize, or is required to be obtained or made by, or on behalf of, any Credit
Party in connection with, (i) the execution, delivery and performance of any
Document or (ii) the legality, validity, binding effect or enforceability of any
such Document.
7.05 FINANCIAL STATEMENTS; FINANCIAL CONDITION; UNDISCLOSED
LIABILITIES; PROJECTIONS. (a) (i) The consolidated balance sheets of the
Borrower for each of the fiscal years ended June 30, 2000, June 30, 2001, June
30, 2002 and June 30, 2003, respectively, and the related statements of income,
cash flows and retained earnings of the Borrower for each such fiscal year ended
on such dates, copies of which have been furnished to the Lenders prior to the
Initial Borrowing Date, present fairly in all material respects the consolidated
financial position of the Borrower at the dates of such balance sheets and the
consolidated results of the operations of the Borrower for the periods covered
thereby. All of the foregoing historical financial statements have been audited
by Xxxxxxxx, Xxxxx & Xxxxx LLP (or, in the case of the aforementioned financial
statements for the fiscal year ended June 30, 2003, have been audited as of the
Initial Borrowing Date and prepared in accordance with generally accepted
accounting principles consistently applied by the Borrower.
(ii) The pro forma consolidated balance sheet of the Borrower as of
the Initial Borrowing Date (after giving effect to the Transaction and the
financing therefor), a copy of which has been furnished to the Lenders prior to
the Initial Borrowing Date, presents fairly in all material respects the pro
forma consolidated financial position of the Borrower as of the Initial
Borrowing Date.
(b) On and as of the Initial Borrowing Date and after giving effect
to the Transaction and to all Indebtedness (including the Loans and the Senior
Subordinated Notes) being incurred or assumed and Liens created by the Credit
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Parties in connection therewith (i) the sum of the assets, at a fair valuation,
of the Borrower on a stand-alone basis and of the Borrower and its Subsidiaries
taken as a whole will exceed their respective debts, (ii) each of the Borrower
on a stand-alone basis and the Borrower and its Subsidiaries taken as a whole
have not incurred and do not intend to incur, and do not believe that they will
incur, debts beyond their respective ability to pay such debts as such debts
mature, and (iii) the Borrower on a stand-alone basis and the Borrower and its
Subsidiaries taken as a whole will have sufficient capital with which to conduct
their respective businesses. For purposes of this Section 7.05(b), "debt" means
any liability on a claim, and "claim" means (a) 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 (b) 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. The amount of contingent liabilities at any
time shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
(c) Except as fully disclosed in the financial statements delivered
pursuant to Section 7.05(a) and except for the Senior Subordinated Notes, there
were as of the Initial Borrowing Date no liabilities or obligations with respect
to the 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 the aggregate, could reasonably be expected to be material to
the Borrower or any of its Subsidiaries. As of the Initial Borrowing Date, the
Borrower knows of no basis for the assertion against it or any of its
Subsidiaries 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) or referred to in the immediately preceding sentence which, either
individually or in the aggregate, could reasonably be expected to be material to
the Borrower or any of its Subsidiaries.
(d) The Projections delivered to the Administrative Agent and the
Lenders prior to the Initial Borrowing Date have been prepared in good faith and
are based on reasonable assumptions, and there are no statements or conclusions
in 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 known to the Borrower regarding the matters
reported therein. On the Initial Borrowing Date, the Borrower believes that the
Projections are reasonable and attainable, it being recognized by the Lenders,
however, that projections as to future events are not to be viewed as facts and
that the actual results during the period or periods covered by the Projections
may differ from the projected results and such differences may be material.
(e) After giving effect to the Transaction (but for this purpose
assuming that the Transaction and the related financing had occurred prior to
June 30, 2002), since June 30, 2002, there has been no change in the condition
(financial or otherwise), business, operations, assets, liabilities or prospects
of the Borrower or any of its Subsidiaries that has had, or could reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect.
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(f) The Borrower has net operating losses in the amount of
$93,968,023 which may be applied to the fiscal years of the Borrower ending June
30, 2004 through June 30, 2022 and which will expire between the fiscal years of
the Borrower ending June 30, 2007 and June 30, 2022.
(g) The Borrower has filed in a timely manner all documents that the
Borrower was required to file with the SEC under Sections 13, 14(a) and 15(d) of
the Securities Exchange Act, since its initial public offering. As of their
respective filing dates, all documents filed by the Borrower with the SEC ("SEC
DOCUMENTS") complied in all material respects with the requirements of the
Securities Exchange Act or the Securities Act, as applicable. None of the SEC
Documents as of their respective dates contained any untrue statement of a
material fact or omitted to state material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances
under which they were made, not misleading. The financial statements of the
Borrower included in the SEC Documents comply as to form in all material
respects with applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto.
7.06 LITIGATION. There are no actions, suits or proceedings pending
or, to the knowledge of the Borrower, threatened (i) with respect to the
Transaction or any Document or (ii) that could reasonably be expected, either
individually or in the aggregate, to have a Material Adverse Effect.
7.07 TRUE AND COMPLETE DISCLOSURE. All factual information (taken as
a whole) furnished by or on behalf of the Borrower in writing to the
Administrative Agent or any Lender (including, without limitation, all
information contained in the Documents) for purposes of or in connection with
this Agreement, the other Credit Documents or any transaction contemplated
herein or therein is, and all other such factual information (taken as a whole)
hereafter furnished by or on behalf of the Borrower in writing to the
Administrative Agent or any Lender will be, true and accurate in all material
respects on the date as of which such information is dated or certified and not
incomplete by omitting to state any fact necessary to make such information
(taken as a whole) not misleading in any material respect at such time in light
of the circumstances under which such information was provided.
7.08 USE OF PROCEEDS; MARGIN REGULATIONS. (a) All proceeds of the
Term Loans will be used by the Borrower to finance, in part, the Refinancing and
to pay the fees and expenses relating to the Transaction.
(b) All proceeds of the Revolving Loans and the Swingline Loans will
be used for the working capital and general corporate purposes of the Borrower
and its Subsidiaries; provided that up to, but no more than, $3,000,000 of
proceeds of Revolving Loans and Swingline Loans in the aggregate may be used for
the purposes described in clause (a) of this Section 7.08.
(c) No part of any Credit Event (or the proceeds thereof) will be
used to purchase or carry any Margin Stock or to extend credit for the purpose
of purchasing or carrying any Margin Stock. Neither the making of any Loan nor
the use of the proceeds thereof nor the occurrence of any other Credit Event
will violate or be inconsistent with the provisions of Regulation T, U or X of
the Board of Governors of the Federal Reserve System.
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7.09 TAX RETURNS AND PAYMENTS. Each of the Borrower and each of its
Subsidiaries has timely filed or caused to be timely filed with the appropriate
taxing authority all federal and state income tax returns and all other material
tax returns, domestic and foreign (the "Returns") required to be filed by, or
with respect to the income, properties or operations of, the Borrower and/or any
of its Subsidiaries. The Returns accurately reflect in all material respects all
liability for taxes of the Borrower and its Subsidiaries for the periods covered
thereby. Each of the Borrower and each of its Subsidiaries has paid all taxes
and assessments payable by it which have become due, other than those that are
being contested in good faith and adequately disclosed and fully provided for as
a reserve on the financial statements of the Borrower and its Subsidiaries in
accordance with generally accepted accounting principles. 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 the Borrower or any of its Subsidiaries. As of the Initial Borrowing
Date, neither the Borrower nor any of its Subsidiaries has entered into an
agreement or waiver or been requested to enter into an agreement or waiver
extending any statute of limitations relating to the payment or collection of
taxes of the Borrower or any of its Subsidiaries, or is aware of any
circumstances that would cause the taxable years or other taxable periods of the
Borrower or any of its Subsidiaries not to be subject to the normally applicable
statute of limitations. Neither the Borrower nor any of its Subsidiaries has
incurred, nor will any of them incur, any material tax liability in connection
with the Transaction or any other transactions contemplated hereby (it being
understood that the representation contained in this sentence does not cover any
future tax liabilities of the Borrower or any of its Subsidiaries arising as a
result of the operation of their businesses in the ordinary course of business).
7.10 COMPLIANCE WITH ERISA. Schedule IV sets forth, as of the
Initial Borrowing Date, the name of each Plan. Each Plan (and each related
trust, insurance contract or fund) is in substantial compliance with its terms
and with all applicable laws, including, without limitation, ERISA and the Code;
each Plan (and each related trust, if any) which is intended to be qualified
under Section 401(a) of the Code has received a determination letter from the
Internal Revenue Service to the effect that it meets the requirements of
Sections 401(a) and 501(a) of the Code; neither the Borrower nor any of its
Subsidiaries or ERISA Affiliates has ever maintained or contributed to, or had
any obligation to maintain or contribute to (or borne any liability with respect
to) any "employee pension benefit plan," within the meaning of Section 3(2) of
ERISA, that is subject to Section 412 of the Code or Section 302 of ERISA or
Title IV of ERISA; neither the Borrower nor any of its Subsidiaries or ERISA
Affiliates has ever maintained or contributed to, or had any obligation to
maintain or contribute to (or borne any liability with respect to) any Foreign
Pension Plan; all contributions required to be made with respect to a Plan have
been timely made; neither the Borrower nor any Subsidiary of the Borrower nor
any ERISA Affiliate has incurred any material liability (including any indirect,
contingent or secondary liability) to or on account of a Plan pursuant to
Section 409, 502(i), 502(l), 515, 4204 or 4212 of ERISA or Section 4975 of the
Code or expects to incur any such liability under any of the foregoing sections
with respect to any Plan; no condition exists which presents a material risk to
the Borrower or any Subsidiary of the Borrower or any ERISA Affiliate of
incurring a liability to or on account of a Plan pursuant to the foregoing
provisions of ERISA and the Code; no action, suit, proceeding, hearing, audit or
investigation with respect to the administration, operation or the investment of
assets of any Plan (other than routine claims for benefits) is pending, expected
or threatened; each group health plan (as defined in Section 607(1) of ERISA or
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Section 4980B(g)(2) of the Code) which covers or has covered employees or former
employees of the Borrower, any Subsidiary of the Borrower, or any ERISA
Affiliate has at all times been operated in compliance with the provisions of
Part 6 of subtitle B of Title I of ERISA and Section 4980B of the Code; each
group health plan (as defined in 45 Code of Federal Regulations Section 160.103)
which covers or has covered employees or former employees of the Borrower, any
Subsidiary of the Borrower, or any ERISA Affiliate has at all times been
operated in compliance with the provisions of the Health Insurance Portability
and Accountability Act of 1996 and the regulations promulgated thereunder; no
lien imposed under the Code or ERISA on the assets of the Borrower or any
Subsidiary of the Borrower or any ERISA Affiliate exists or is likely to arise
on account of any Plan; and the Borrower and its Subsidiaries may cease
contributions to or terminate any employee benefit plan maintained by any of
them without incurring any material liability.
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 Credit Parties in the Security
Agreement Collateral described therein, and the Collateral Agent, for the
benefit of the Secured Creditors, has (or within 5 days following the Initial
Borrowing Date will have) a fully perfected security interest in all right,
title and interest in all of the Security Agreement Collateral described
therein, subject to no other Liens other than Permitted Liens. The recordation
of (x) the Grant of Security Interest in U.S. Patents, if applicable, and (y)
the Grant of Security Interest in U.S. Trademarks, if applicable, in the
respective form attached to the Security Agreement, in each case in the United
States Patent and Trademark Office, together with filings on Form UCC-1 made
pursuant to the Security Agreement, will create, as may be perfected by such
filings and recordation, a perfected security interest in the United States
trademarks and patents covered by the Security Agreement, and the recordation of
the Grant of Security Interest in U.S. Copyrights, if applicable, in the form
attached to the Security Agreement with the United States Copyright Office,
together with filings on Form UCC-1 made pursuant to the Security Agreement,
will create, as may be perfected by such filings and recordation, a perfected
security interest in the United States copyrights covered by the Security
Agreement.
(b) The security interests created under the Pledge Agreement in
favor of the Collateral Agent, as Pledgee, for the benefit of the Secured
Creditors, constitute perfected security interests in the Pledge Agreement
Collateral described in the Pledge Agreement, subject to no security interests
of any other Person. No filings or recordings are required in order to perfect
(or maintain the perfection or priority of) the security interests created in
the Pledge Agreement Collateral under the Pledge Agreement other than with
respect to that portion of the Pledge Agreement Collateral constituting a
"general intangible" under the UCC.
(c) Each Mortgage creates, as security for the obligations purported
to be secured thereby, a valid and enforceable perfected security interest in
and mortgage lien on the respective Mortgaged Property in favor of the
Collateral Agent (or such other trustee as may be required or desired under
local law) for the benefit of the Secured Creditors, superior and prior to the
rights of all third Persons (except that the security interest and mortgage lien
created on such Mortgaged Property may be subject to the Permitted Encumbrances
related thereto) and subject to no other Liens (other than Permitted Liens
related thereto).
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7.12 PROPERTIES. All Real Property owned or leased by the Borrower
or any of its Subsidiaries as of the Initial Borrowing Date, and the nature of
the interest therein, is correctly set forth in Schedule III. Each of the
Borrower and each of its Subsidiaries has good and indefeasible title to all
material properties owned by it, including all material property reflected in
the most recent historical balance sheets referred to in Section 7.05(a) (except
as sold or otherwise disposed of since the date of such balance sheet in the
ordinary course of business or as permitted by the terms of this Agreement),
free and clear of all Liens, other than Permitted Liens.
7.13 CAPITALIZATION. On the Initial Borrowing Date, the authorized
capital stock of the Borrower shall consist of (i) 30,000,000 shares of common
stock, $.001 par value per share, and (ii) the Existing Preferred Stock. All
outstanding shares of capital stock of the Borrower have been duly and validly
issued and are fully paid and non-assessable (other than any assessment on the
shareholders of the Borrower that may be imposed as a matter of law). The
Borrower does not have outstanding any capital stock or other securities
convertible into or exchangeable for its capital stock or any rights to
subscribe for or to purchase, or any options for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to, its capital stock, except
for (x) the Existing Preferred Stock and (y) options, warrants and rights to
purchase shares of the Borrower's common stock.
7.14 SUBSIDIARIES. The Borrower has no Subsidiaries other than
Subsidiaries created or acquired after the Initial Borrowing Date in accordance
with the terms of this Agreement.
7.15 COMPLIANCE WITH STATUTES, ETC. Each of the Borrower and each of
its Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property (including, without limitation, applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such noncompliances as could not, either individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
7.16 INVESTMENT COMPANY ACT. Neither the Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.17 PUBLIC UTILITY HOLDINGS COMPANY ACT. Neither the Borrower nor
any of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company" within the meaning of the Public Utility
Holdings Company Act of 1935, as amended.
7.18 ENVIRONMENTAL MATTERS. (a) Each of the Borrower and each of its
Subsidiaries is in compliance with all applicable Environmental Laws and the
requirements of any permits issued under such Environmental Laws. There are no
pending or, to the knowledge of the Borrower, threatened Environmental Claims
against the Borrower or any of its Subsidiaries or any Real Property owned,
leased or operated by the Borrower or any of its Subsidiaries (including any
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such claim arising out of the ownership, lease or operation by the Borrower or
any of its Subsidiaries of any Real Property formerly owned, leased or operated
by the Borrower or any of its Subsidiaries but no longer owned, leased or
operated by the Borrower or any of its Subsidiaries). There are no facts,
circumstances, conditions or occurrences with respect to the business or
operations of the Borrower or any of its Subsidiaries, or any Real Property
owned, leased or operated by the Borrower or any of its Subsidiaries (including
any Real Property formerly owned, leased or operated by the Borrower or any of
its Subsidiaries but no longer owned, leased or operated by the Borrower or any
of its Subsidiaries) or, to the knowledge of the Borrower, any property
adjoining or adjacent to any such Real Property that could be reasonably
expected (i) to form the basis of an Environmental Claim against the Borrower or
any of its Subsidiaries or any Real Property owned, leased or operated by the
Borrower or any of its Subsidiaries or (ii) to cause any Real Property owned,
leased or operated by the Borrower or any of its Subsidiaries to be subject to
any restrictions on the ownership, lease, occupancy or transferability of such
Real Property by the Borrower or any of its Subsidiaries under any applicable
Environmental Law.
(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, or Released on or from, any
Real Property owned, leased or operated by the Borrower or any of its
Subsidiaries or, to the knowledge of the Borrower, any property adjoining or
adjacent to any Real Property, where such generation, use, treatment, storage,
transportation or Release has (i) violated or could be reasonably expected to
violate any applicable Environmental Law, (ii) give rise to an Environmental
Claim or (iii) give rise to liability under any applicable Environmental Law.
(c) Notwithstanding anything to the contrary in this Section 7.18,
the representations and warranties made in this Section 7.18 shall be untrue
only if the effect of any or all conditions, violations, claims, restrictions,
failures and noncompliances of the types described above could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
7.19 LABOR RELATIONS. Neither the Borrower nor any of its
Subsidiaries is engaged in any unfair labor practice that could reasonably be
expected, either individually or in the aggregate, to have a Material Adverse
Effect. There is (i) no unfair labor practice complaint pending against the
Borrower or any of its Subsidiaries or, to the knowledge of the Borrower,
threatened against any of them, before the National Labor Relations Board, and
no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Borrower or any of its
Subsidiaries or, to the 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 knowledge of the Borrower,
threatened against the Borrower or any of its Subsidiaries, (iii) no union
representation question exists with respect to the employees of the Borrower or
any of its Subsidiaries and (iv) no collective bargaining agreement exists which
is binding on the Borrower or any of its Subsidiaries; except (with respect to
any matter specified in clause (i), (ii) (iii) or (iv) above, either
individually or in the aggregate) such as could not reasonably be expected to
have a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries
has any Equal Employment Opportunity Commission charges or other claim of
employment discrimination pending or, to the Borrower's knowledge, currently
threatened against them that would reasonably be expected to have a Material
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Adverse Effect; no wage and hour department investigation has been made of the
Borrower or any of its Subsidiaries that would reasonably be expected to have a
Material Adverse Effect; there are no occupational health and safety claims
against the Borrower or any of its Subsidiaries that would reasonably be
expected to have a Material Adverse Effect. Since the enactment of the Worker
Adjustment and Retraining Notification Act (the "WARN Act") neither the Borrower
nor any of its Subsidiaries effectuated (i) a "plant closing" (as defined in the
WARN Act) affecting any site of employment or one or more facilities or
operating units within any site of employment or facility of the Borrower or any
of its Subsidiaries; or (ii) a "mass layoff" (as defined in the WARN Act)
affecting any site of employment or facility of the Borrower or any of its
Subsidiaries; nor has the Borrower or any of its Subsidiaries been affected by
any transaction or engaged in layoffs or employment terminations sufficient in
number to trigger application of any similar state or local law. Neither the
Borrower nor any of its Subsidiaries has suffered an "employment loss" (as
defined in the WARN Act) since six (6) months prior to the date hereof; and the
Borrower and its Subsidiaries are in compliance in all material respects with
the terms and provisions of the Immigration Reform and Control Act of 1986, as
amended, and all related regulations promulgated thereunder.
7.20 INTELLECTUAL PROPERTY. (a) Each of the Borrower and each of its
Subsidiaries owns or has the right to use all the patents, trademarks, permits,
domain names, service marks, trade names, copyrights, licenses, franchises,
inventions, trade secrets, proprietary information and know-how of any type,
whether or not written (including, but not limited to, rights in computer
programs and databases) and formulas, or rights with respect to the foregoing
(collectively, "INTELLECTUAL PROPERTY"), and has obtained assignments of all
leases, licenses and other rights of whatever nature, 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, could reasonably be
expected, either individually or in the aggregate, to have a Material Adverse
Effect.
(b) The Borrower and its Subsidiaries have the right to practice
under and use all of its Intellectual Property.
(c) Neither the Borrower nor any of its Subsidiaries has knowledge
of any claim by any third party contesting the validity, enforceability, use or
ownership of the Intellectual Property, or of any existing state of facts that
would support a claim that use by the Borrower or any of its Subsidiaries of any
such Intellectual Property has infringed or otherwise violated any Intellectual
Property right of any other Person and, to the best knowledge of the Borrower
and its Subsidiaries, no such claim is threatened.
7.21 INDEBTEDNESS. Schedule V sets forth a true and complete list of
all Indebtedness (including Contingent Obligations) of the Borrower and its
Subsidiaries as of the Initial Borrowing Date (after giving effect to the
Refinancing, but excluding the Loans, the Letters of Credit and the Senior
Subordinated Notes, the "Existing Indebtedness") and which is to remain
outstanding after giving effect to the Transaction, in each case showing the
aggregate principal amount thereof and the name of the respective borrower and
any Credit Party or any of its Subsidiaries which directly or indirectly
guarantees such debt.
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7.22 INSURANCE. Schedule VI sets forth a true and complete listing
of all insurance maintained by the Borrower and its Subsidiaries as of the
Initial Borrowing Date, with the amounts insured (and any deductibles) set forth
therein.
7.23 REPRESENTATIONS AND WARRANTIES IN OTHER DOCUMENTS. All
representations and warranties set forth in the other Documents were true and
correct in all material respects at the time as of which such representations
and warranties were made (or deemed made) and shall be true and correct in all
material respects as of the Initial Borrowing Date as if such representations or
warranties were made on and as of such date (it being understood and agreed that
any such representation or warranty which by its terms is made as of a specified
date shall be true and correct in all material respects as of such specified
date).
7.24 SUBORDINATION. The subordination provisions contained in the
Senior Subordinated Note Documents are enforceable against the Borrower, each of
its Subsidiaries and the holders of the Senior Subordinated Notes and all
Obligations hereunder and under the other Credit Documents and all obligations
arising pursuant to the Interest Rate Protection Agreements are within the
definition of "Senior Debt" included in such subordination provisions.
SECTION 8. AFFIRMATIVE COVENANTS. The Borrower hereby covenants and
agrees that on and after the Effective Date and until the Total Commitment and
all Letters of Credit have terminated and the Loans, Notes and Unpaid Drawings
(in each case together with interest thereon), Fees and all other Obligations
(other than indemnities described in Section 13.13 which are not then due and
payable) incurred hereunder and thereunder, are paid in full:
8.01 INFORMATION COVENANTS. The Borrower will furnish to each
Lender:
(a) MONTHLY REPORTS. Within 30 days after the end of each fiscal
month (or, in the case of the last fiscal month of any fiscal quarter, within 45
days after the end of such fiscal month) of the Borrower (commencing with its
fiscal month ended on July 31, 2003), the consolidated and consolidating balance
sheet of the Borrower and its Subsidiaries as at the end of such fiscal month
and the related consolidated and consolidating statements of income and retained
earnings and statement of cash flows for such fiscal month and for the elapsed
portion of the fiscal year ended with the last day of such fiscal month, in each
case setting forth comparative figures for the corresponding fiscal month in the
prior fiscal year and comparable budgeted figures for such fiscal month as set
forth in the respective budget delivered pursuant to Section 8.01(e), all of
which shall fairly present in all material respects in accordance with generally
accepted accounting principles the financial condition of the Borrower and its
Subsidiaries as of the dates indicated and the results of their operations for
the periods indicated, subject to normal year-end audit adjustments and the
absence of footnotes.
(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, (i) the 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 income and retained
earnings and statement of cash flows for such quarterly accounting period and
for the elapsed portion of the fiscal year ended with the last day of such
quarterly accounting period, in each case setting forth comparative figures for
the corresponding quarterly accounting period in the prior fiscal year and
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comparable budgeted figures for such quarterly accounting period as set forth in
the respective budget delivered pursuant to Section 8.01(e), all of which shall
be certified by the chief financial officer of the Borrower that they fairly
present in all material respects in accordance with generally accepted
accounting principles the financial condition of the Borrower and its
Subsidiaries as of the dates indicated and the results of their operations for
the periods indicated, subject to normal year-end audit adjustments and the
absence of footnotes, and (ii) management's discussion and analysis of the
important operational and financial developments during such quarterly
accounting period.
(c) ANNUAL FINANCIAL STATEMENTS. Within 90 days after the close of
each fiscal year of the Borrower, (i) the consolidated and consolidating balance
sheet of the Borrower and its Subsidiaries as at the end of such fiscal year and
the related consolidated and consolidating statements of income and retained
earnings and statement of cash flows for such fiscal year setting forth
(commencing with the Borrower's fiscal year ending June 30, 2004) comparative
figures for the preceding fiscal year and certified (x) in the case of
consolidated financial statements, by Xxxxxxxx Xxxxx & Xxxxx LLP or other
independent certified public accountants of recognized national standing
reasonably acceptable to the Administrative Agent, together with an unqualified
opinion of such accounting firm which demonstrates that (I) 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 an Event
of Default relating to financial or accounting matters which has occurred and is
continuing or, if in the opinion of such accounting firm such a Default or an
Event of Default has occurred and is continuing, a statement as to the nature
thereof, and (II) such statements fairly present in all material respects in
accordance with generally accepted accounting principles the financial condition
of the Borrower and its Subsidiaries as of the date indicated and the results of
their operations and changes in their cash flows for the periods indicated and
(y) in the case of the consolidating financial statements, by the chief
financial officer or treasurer of the Borrower that they fairly present in all
material respects in accordance with generally accepted accounting principles
the financial condition of the respective Subsidiaries or group of Subsidiaries
covered thereby as of the dates indicated and the results of their operations
and changes in their cash flows for the periods indicated, and (ii) management's
discussion and analysis of the important operational and financial developments
during such fiscal year.
(d) MANAGEMENT LETTERS. Promptly after the Borrower's or any of its
Subsidiaries' receipt thereof, a copy of all significant reports submitted to
the Borrower or any of its Subsidiaries by independent public accountants in
connection with each annual, interim or special audit of the financial
statements of the Borrower made by such accountants, including any "management
letter" received from its certified public accountants and management's response
thereto.
(e) BUDGETS. No later than 45 days following the first day of each
fiscal year of the Borrower, a budget in form reasonably satisfactory to the
Administrative Agent (including budgeted statements of income, sources and uses
of cash and balance sheets for the Borrower and its Subsidiaries on a
consolidated basis) (i) for each of the twelve months of such fiscal year
prepared in detail and (ii) for the two immediately succeeding fiscal years
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prepared in summary form, in each case setting forth, with appropriate
discussion, the principal assumptions upon which such budget is based.
(f) OFFICER'S CERTIFICATES. At the time of the delivery of the
financial statements provided for in Sections 8.01(b) and (c), a compliance
certificate from the chief financial officer of the Borrower in the form of
Exhibit K certifying on behalf of the Borrower that, to such officer's knowledge
after due inquiry, no Default or Event of Default has occurred and is continuing
or, if any Default or Event of Default has occurred and is continuing,
specifying the nature and extent thereof, which certificate shall (i) set forth
in reasonable detail the calculations required to establish whether the Borrower
and its Subsidiaries were in compliance with the provisions of Sections 4.02(c),
4.02(e), 4.02(g), 9.01(x), 9.01(xii), 9.02(iii), 9.04(iii), 9.04(iv), 9.04(v),
9.05(ii) and 9.07 through 9.13 inclusive, at the end of such fiscal quarter or
year, as the case may be, (ii) set forth the Consolidated Total Leverage Ratio
as at the last day of the fiscal quarter or fiscal year, as the case may be, of
the Borrower to which such financial statements relate, together with the
calculations (in reasonable detail) required to establish such Consolidated
Total Leverage Ratio, (iii) if delivered with the financial statements required
by Section 8.01(c), set forth in reasonable detail the amount of (and the
calculations required to establish the amount of) Excess Cash Flow for the
respective Excess Cash Flow Payment Period, and (iv) certify that there have
been no changes to Annexes A through D, Annex F and Annexes H through K, in each
case of the Security Agreement and Annexes A through G of the Pledge Agreement,
in each case since the Initial Borrowing Date or, if later, since the date of
the most recent certificate delivered pursuant to this Section 8.01(f), or if
there have been any such changes, a list in reasonable detail of such changes
(but, in each case with respect to this clause (iv), only to the extent that
such changes are required to be reported to the Collateral Agent pursuant to the
terms of such Security Documents) and whether the Borrower and the other Credit
Parties have otherwise taken all actions required to be taken by them pursuant
to such Security Documents in connections with any such changes.
(g) NOTICE OF DEFAULT, LITIGATION AND MATERIAL ADVERSE EFFECT.
Promptly, and in any event within three Business Days after any officer of the
Borrower or any of its Subsidiaries obtains knowledge thereof, notice of (i) the
occurrence of any event which constitutes a Default or an Event of Default, (ii)
any litigation or governmental investigation or proceeding pending against the
Borrower or any of its Subsidiaries (x) which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect or (y)
with respect to any Document, or (iii) any other event, change or circumstance
that has had, or could reasonably be expected to have, a Material Adverse
Effect.
(h) OTHER REPORTS AND FILINGS. Promptly after the filing or delivery
thereof, copies of all financial information, proxy materials and reports, if
any, which the Borrower or any of its Subsidiaries shall publicly file with the
Securities and Exchange Commission or any successor thereto (the "SEC") or
deliver to holders (or any trustee, agent or other representative therefor) of
its material Indebtedness (including the Senior Subordinated Notes) pursuant to
the terms of the documentation governing such Indebtedness.
(i) ENVIRONMENTAL MATTERS. Promptly after any officer of the
Borrower or any of its Subsidiaries obtains knowledge thereof, notice of one or
more of the following environmental matters to the extent that such
environmental matters, either individually or when aggregated with all other
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such environmental matters, could reasonably be 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, leased or
operated by the Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real
Property owned, leased 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;
(iii) any condition or occurrence on any Real Property owned, leased
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, lease, 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, leased or operated by the Borrower or any of its Subsidiaries as
required by any Environmental Law or any governmental or other
administrative agency; provided that in any event the Borrower shall
deliver to each Lender all notices received by the Borrower or any of its
Subsidiaries from any government or governmental agency under, or pursuant
to, CERCLA which identify the Borrower or any of its Subsidiaries as
potentially responsible parties for remediation costs or which otherwise
notify the Borrower or any of its Subsidiaries of potential liability
under 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.
(j) NOTICES TO HOLDERS OF SENIOR SUBORDINATED NOTES.
Contemporaneously with the sending or filing thereof, the Borrower will provide
to the Administrative Agent for distribution to each of the Lenders, any notices
provided to, or received from, holders of Senior Subordinated Notes under the
Senior Subordinated Note Purchase Agreement.
(k) OTHER INFORMATION. From time to time, such other information or
documents (financial or otherwise) with respect to the Borrower or any of its
Subsidiaries as the Administrative Agent or any Lender (through the
Administrative Agent) may reasonably request.
8.02 BOOKS, RECORDS AND INSPECTIONS; ANNUAL MEETINGS. (a) The
Borrower will, and will cause each of its Subsidiaries to, keep proper books of
record and accounts in which full, true and correct entries in conformity with
generally accepted accounting principles and all requirements of law shall be
made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of its Subsidiaries to,
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permit officers and designated representatives of the Administrative Agent or
any Lender to visit and inspect, 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 upon reasonable prior notice and at such reasonable times and
intervals and to such reasonable extent as the Administrative Agent or any such
Lender may reasonably request.
(b) At a date to be mutually agreed upon between the Administrative
Agent and the Borrower occurring on or prior to the 120th day after the close of
each fiscal year of the Borrower, the Borrower will, at the request of the
Administrative Agent or the Required Lenders, hold a meeting with all of the
Lenders at which meeting will be reviewed the financial results of the Borrower
and its Subsidiaries for the previous fiscal year and the budgets presented for
the current fiscal year of the Borrower.
8.03 MAINTENANCE OF PROPERTY; INSURANCE. (a) The Borrower will, and
will cause each of its Subsidiaries to, (i) keep all property necessary to the
business of the Borrower and its Subsidiaries in good working order and
condition, ordinary wear and tear excepted, (ii) maintain with financially sound
and reputable insurance companies insurance on all such property and against all
such risks as is consistent and in accordance with industry practice for
companies similarly situated owning similar properties and engaged in similar
businesses as the Borrower and its Subsidiaries, and (iii) furnish to the
Administrative Agent, upon its request therefor, full information as to the
insurance carried. In addition to the requirements of the immediately preceding
sentence, the Borrower will at all times cause insurance of the types described
in Schedule VI to be maintained (with the same scope of coverage as that
described in Schedule VI) at levels which are consistent with their practices
immediately before the Initial Borrowing Date. Such insurance shall include
physical damage insurance on all real and personal property (whether now owned
or hereafter acquired) (including with respect to disaster recovery) on an all
risk basis. The provisions of this Section 8.03 shall be deemed supplemental to,
but not duplicative of, the provisions of any Security Documents that require
the maintenance of insurance. In addition to the foregoing, the Borrower
acknowledges and agrees that (x) the Administrative Agent has the right, on an
annual basis, to review the insurance then being maintained by the Borrower and
its Subsidiaries and to require the Borrower and its Subsidiaries to increase
their levels of coverage from that which then exists to the extent that the
Administrative Agent has a reasonable basis to require same and (y) it will,
within 30 days following such a request by the Administrative Agent, obtain such
increased insurance coverage.
(b) The Borrower will, and will cause each of its Subsidiaries to,
at all times keep its 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 and/or such
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 and/or additional insured), (ii) shall state
that such insurance policies shall not be canceled without at least 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 other Secured
Creditors, and (iv) shall be deposited with the Collateral Agent.
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(c) If the Borrower or any of its Subsidiaries shall fail to
maintain insurance in accordance with this Section 8.03, or if the Borrower or
any of its Subsidiaries shall fail to so endorse and deposit all policies or
certificates with respect thereto, the Administrative Agent shall have the right
(but shall be under no obligation) to procure such insurance and the Borrower
agrees to reimburse the Administrative Agent for all reasonable costs and
expenses of procuring such insurance.
8.04 EXISTENCE; 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, permits, copyrights, trademarks and patents (and other
Intellectual Property); provided, however, that nothing in this Section 8.04
shall prevent (i) sales of assets and other transactions by the Borrower or any
of its Subsidiaries in accordance with Section 9.02, (ii) the abandonment by the
Borrower or any of its Subsidiaries of any copyrights, trademarks or patents (or
other Intellectual Property) which the Borrower reasonably determines are no
longer material to the operations of the Borrower and its Subsidiaries taken as
a whole or (iii) the withdrawal by the Borrower or any of its Subsidiaries of
its qualification as a foreign corporation, partnership or limited liability
company, as the case may be, in any jurisdiction if such withdrawal could not,
either individually or in the aggregate, 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 (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such noncompliances as could not, either 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, with all
Environmental Laws and permits applicable to, or required by, the ownership,
lease or use of Real Property now or hereafter owned, leased or operated by the
Borrower or any of its Subsidiaries, except such noncompliances as could not,
either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, and will promptly pay or cause to be paid all costs and
expenses incurred in connection with such compliance, and will keep or cause to
be kept all such Real Property free and clear of any Liens imposed pursuant to
such Environmental Laws. Neither the Borrower nor any of its Subsidiaries will
generate, use, treat, store, Release or dispose of, or permit the generation,
use, treatment, storage, Release or disposal of Hazardous Materials on any Real
Property now or hereafter owned, leased or operated by the Borrower or any of
its Subsidiaries, or transport or permit the transportation of Hazardous
Materials to or from any such Real Property, except for Hazardous Materials
generated, used, treated, stored, Released or disposed of at any such Real
Properties in compliance in all material respects with all applicable
Environmental Laws and as required in connection with the normal operation, use
and maintenance of the business or operations of the Borrower or any of its
Subsidiaries.
(b) (i) After the receipt by the Administrative Agent or any Lender
of any notice of the type described in Section 8.01(i), (ii) at any time that
the Borrower or any of its Subsidiaries are not in compliance with Section
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8.06(a) or (iii) in the event that the Administrative Agent or the Lenders have
exercised any of the remedies pursuant to the last paragraph of Section 10, the
Borrower will (in each case) provide, at the sole expense of the Borrower and at
the request of the Administrative Agent, an environmental site assessment report
concerning any Real Property owned, leased or operated by the Borrower or any of
its Subsidiaries, prepared by an environmental consulting firm reasonably
approved by the Administrative Agent, indicating the presence or absence of
Hazardous Materials and the potential cost of any removal or remedial action in
connection with such Hazardous Materials on such Real Property. If the Borrower
fails to provide the same within 30 days after such request was made, the
Administrative Agent may order the same, the cost of which shall be borne by the
Borrower, and the Borrower shall grant and hereby grants to the Administrative
Agent and the Lenders and their respective agents access to such Real Property
and specifically grant the Administrative Agent and the Lenders an irrevocable
non-exclusive license, subject to the rights of tenants, to undertake such an
assessment at any reasonable time upon reasonable notice to the Borrower, all at
the sole expense of the Borrower.
8.07 ERISA. (a) As soon as possible and, in any event, within ten
(10) days after the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate knows or has reason to know of the occurrence of any of the following,
the Borrower will deliver to each of the Lenders a certificate of the chief
financial officer of the Borrower setting forth the full details as to such
occurrence and the action, if any, that the Borrower, such Subsidiary or such
ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given or filed by the Borrower, such Subsidiary, the
Plan administrator or such ERISA Affiliate to or with the PBGC or any other
governmental agency, or a Plan participant and any notices received by the
Borrower, such Subsidiary or such ERISA Affiliate from the PBGC or any other
government agency, or a Plan participant with respect thereto: that a Reportable
Event has occurred (except to the extent that the Borrower has previously
delivered to the Lenders a certificate and notices (if any) concerning such
event pursuant to the next clause hereof); that a contributing sponsor (as
defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA
is subject to the advance reporting requirement of PBGC Regulation Section
4043.61 (without regard to subparagraph (b)(1) thereof), and an event described
in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section
4043 is reasonably expected to occur with respect to such Plan within the
following 30 days; that an accumulated funding deficiency, within the meaning of
Section 412 of the Code or Section 302 of ERISA, has been incurred or an
application may be or has been made for a waiver or modification of the minimum
funding standard (including any required installment payments) or an extension
of any amortization period under Section 412 of the Code or Section 303 or 304
of ERISA with respect to a Plan; that any contribution required to be made with
respect to a Plan or Foreign Pension Plan has not been timely made; that a Plan
has been or may be terminated, reorganized, partitioned or declared insolvent
under Title IV of ERISA; that a Plan has an Unfunded Current Liability; that
proceedings may be or have been instituted to terminate or appoint a trustee to
administer a Plan which is subject to Title IV of ERISA; that a proceeding has
been instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan; that the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate will or may incur any liability (including any indirect,
contingent, or secondary liability) to or on account of the termination of or
withdrawal from a Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212
of ERISA or with respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980
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of the Code or Section 409, 502(i) or 502(l) of ERISA or with respect to a group
health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the
Code) under Section 4980B of the Code; or that the Borrower or any Subsidiary of
the Borrower may incur any material liability pursuant to any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to
retired employees or other former employees (other than as required by Section
601 of ERISA) or any Plan or any Foreign Pension Plan. The Borrower will deliver
to each of the Lenders copies of any records, documents or other information
that must be furnished to the PBGC with respect to any Plan pursuant to Section
4010 of ERISA. The Borrower will also deliver to such Lender a complete copy of
the annual report (on Internal Revenue Service Form 5500-series) of each Plan
(including, to the extent required, the related financial and actuarial
statements and opinions and other supporting statements, certifications,
schedules and information) required to be filed with the Internal Revenue
Service. In addition to any certificates or notices delivered to the Lenders
pursuant to the first sentence hereof, copies of annual reports and any records,
documents or other information required to be furnished to the PBGC or any other
governmental authority and any material notices received by the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate with respect to any Plan or
Foreign Pension Plan, shall be delivered to the Lenders no later than ten (10)
days after the date such annual report has been filed with the Internal Revenue
Service; such records, documents and/or information has been furnished to the
PBGC or any other governmental agency or such notice has been received by the
Borrower, the respective Subsidiary or the ERISA Affiliate, as applicable.
(b) If, at any time after the Initial Borrowing Date, the Borrower,
any Subsidiary of the Borrower or any ERISA Affiliate maintains, or contributes
to (or incurs an obligation to contribute to), a pension plan as defined in
Section 3(2) of ERISA which is not set forth in Schedule IV, as may be updated
from time to time, then the Borrower shall deliver to the Lenders an updated
Schedule IV as soon as possible and, in any event, within ten (10) days after
the Borrower, such Subsidiary or such ERISA Affiliate maintains, or contributes
to (or incurs an obligation to contribute to) such pension plan. Such updated
Schedule IV shall supersede and replace the existing Schedule IV.
(c) The Borrower will ensure, and cause each of its applicable
Subsidiaries to ensure, that all Foreign Pension Plans administered by it or
into which it makes payments obtains or retains (as applicable) registered
status under and as required by applicable law and is administered in a timely
manner in all respects in compliance with all applicable laws except where the
failure to do any of the foregoing could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
8.08 END OF FISCAL YEARS; FISCAL QUARTERS. The Borrower will cause
(i) each of its, and each of its Subsidiaries', fiscal years to end on June 30
of each year and (ii) each of its, and each of its Subsidiaries', fiscal
quarters to end on September 30, December 31, March 31 and June 30 of each year.
8.09 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, loan agreement or credit agreement
and each other agreement, contract or instrument by which it is bound, except
such non-performances as could not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
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8.10 PAYMENT OF TAXES. The Borrower will pay and discharge, and will
cause each of its Subsidiaries to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
upon any properties belonging to it, prior to the date on which penalties attach
thereto, and all lawful claims which, if unpaid, might become a Lien or charge
upon any properties of the Borrower or any of its Subsidiaries not otherwise
permitted under Section 9.01(i); provided that neither the Borrower nor any of
its Subsidiaries shall be required to pay any such tax, assessment, charge, levy
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
generally accepted accounting principles.
8.11 USE OF PROCEEDS. The Borrower will use the proceeds of the
Loans only as provided in Section 7.08.
8.12 ADDITIONAL SECURITY; FURTHER ASSURANCES; ETC. (a) The Borrower
will, and will cause each of the other Credit Parties that are Subsidiaries of
the Borrower to, grant to the Collateral Agent for the benefit of the Secured
Creditors security interests and Mortgages in such assets and properties of the
Borrower and such other Credit Parties that are Subsidiaries of the Borrower as
are not covered by the original Security Documents and as may be reasonably
requested from time to time by the Administrative Agent or the Required Lenders
(collectively, the "ADDITIONAL SECURITY DOCUMENTS"). All such security interests
and Mortgages shall be granted pursuant to documentation reasonably satisfactory
in form and substance to the Administrative Agent and shall constitute valid and
enforceable perfected security interests and Mortgages superior to and prior to
the rights of all third Persons and subject to no other Liens except for
Permitted Liens. The Additional Security Documents or instruments related
thereto shall have been duly recorded or filed in such manner and in such places
as are required by law to establish, perfect, preserve and protect the Liens in
favor of the Collateral Agent required to be granted pursuant to the Additional
Security Documents and all taxes, fees and other charges payable in connection
therewith shall have been paid in full.
(b) The Borrower will, and will cause each of the other Credit
Parties that are Subsidiaries of the Borrower 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,
landlord waivers, bailee agreements, control agreements and other assurances or
instruments and take such further steps relating to the Collateral covered by
any of the Security Documents as the Collateral Agent may reasonably require.
Furthermore, the Borrower will, and will cause the other Credit Parties that are
Subsidiaries of the Borrower to, deliver to the Collateral Agent such opinions
of counsel, title insurance and other related documents as may be reasonably
requested by the Administrative Agent to assure itself that this Section 8.12
has been complied with.
(c) If the Administrative Agent or any Lender reasonably determine
that they are required by law or regulation to have appraisals prepared in
respect of any Real Property of the Borrower and its Subsidiaries constituting
Collateral, the Borrower will, at its own expense, provide to the Administrative
Agent appraisals which satisfy the applicable requirements of the Real Estate
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Appraisal Reform Amendments of the Financial Institution Reform, Recovery and
Enforcement Act of 1989, as amended, and which shall otherwise be in form and
substance reasonably satisfactory to the Administrative Agent.
(d) The Borrower agrees that each action required by clauses (a)
through (c) of this Section 8.12 shall be completed as soon as possible, but in
no event later than 60 days after such action is requested to be taken by the
Administrative Agent, the Required Lender or a given Lender, as the case may be;
provided that, in no event will the Borrower or any of its Subsidiaries be
required to take any action, other than using its best efforts, to obtain
consents from third parties with respect to its compliance with this Section
8.12.
8.13 OWNERSHIP OF SUBSIDIARIES; ETC. The Borrower will, and will
cause each of its Subsidiaries to, own 100% of the capital stock and other
equity interests of each of their Subsidiaries (other than directors' qualifying
shares to the extent required by applicable law).
8.14 INTEREST RATE PROTECTION. No later than 90 days following the
Initial Borrowing Date, the Borrower will enter into (and thereafter maintain)
Interest Rate Protection Agreements mutually agreeable to the Borrower and the
Administrative Agent, with a term of at least three years, establishing a fixed
or maximum interest rate acceptable to the Administrative Agent for an aggregate
notional amount equal to at least 50% of the aggregate principal amount of the
Term Loans outstanding at the time the Borrower enters into the respective
Interest Rate Protection Agreement.
8.15 MONTHLY REPORTING REQUIREMENT. Within thirty (30) Business Days
after the end of each month, the Borrower will deliver to the Administrative
Agent for distribution to the Lenders a monthly report, in the same form and
content as had been delivered under the Existing Credit Agreement, demonstrating
performance levels for such month and the trailing twelve-month period ended
with such month, including, but not limited to, balance sheet, income statement,
cash flow statement, actual-to-budget variance and analysis, customer activities
(activation and attrition rates), customer action/ticket analysis, and cost
savings achievement schedule (with respect to such cost savings achievement
schedule only, through December 31, 2003); provided that if at any time the
officer's certificate then last delivered (or required to be delivered) by the
Borrower pursuant to Section 8.01(f) demonstrates compliance with a Consolidated
Total Leverage Ratio of less than 2.00:1.00 as at the last day of the fiscal
quarter or fiscal year, as the case may be, for which such certificate is
provided, the Borrower shall not be required to comply at such time with the
requirements of this Section 8.15.
8.16 PERMITTED ACQUISITIONS. (a) Subject to the provisions of this
Section 8.16 and the requirements contained in the definition of Permitted
Acquisition, the Borrower and each Wholly-Owned Domestic Subsidiary of the
Borrower which is a Subsidiary Guarantor may from time to time after September
30, 2003 effect Permitted Acquisitions, so long as (in each case except to the
extent the Required Lenders otherwise specifically agree in writing in the case
of a specific Permitted Acquisition): (i) no Default or Event of Default shall
have occurred and be continuing at the time of the consummation of the proposed
Permitted Acquisition or immediately after giving effect thereto; (ii) the
Borrower shall have given to the Administrative Agent and the Lenders at least
10 Business Days' prior written notice of any Permitted Acquisition (or such
shorter period of time as may be reasonably acceptable to the Administrative
Agent), which notice shall describe in reasonable detail the principal terms and
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conditions of such Permitted Acquisition; (iii) calculations are made by the
Borrower with respect to the financial covenants contained in Sections 9.08
through 9.12, inclusive, and 9.13 (if applicable) for the respective Calculation
Period on a Pro Forma Basis as if the respective Permitted Acquisition (as well
as all other Permitted Acquisitions theretofore consummated after the first day
of such Calculation Period) had occurred on the first day of such Calculation
Period, and such calculations shall show that such financial covenants would
have been complied with if the Permitted Acquisition had occurred on the first
day of such Calculation Period; (iv) based on good faith projections prepared by
the Borrower for the period from the date of the consummation of the respective
Permitted Acquisition to the date which is one year thereafter, the level of
financial performance measured by the financial covenants set forth in Sections
9.08 through 9.12, inclusive, and 9.13 (if applicable) shall be better than or
equal to such level as would be required to provide that no Default or Event of
Default would exist under the financial covenants contained in such Sections
9.08 through 9.12, inclusive, and 9.13 (if applicable) as compliance with such
financial covenants would be required through the date which is one year from
the date of the consummation of the respective Permitted Acquisition; (v) all
representations and warranties contained herein and in the other Credit
Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and as of
the date of such Permitted Acquisition (both before and after giving effect
thereto), unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date; (vi) the aggregate consideration (including,
without limitation, (I) the aggregate principal amount of any Indebtedness
assumed, refinanced, incurred or issued in connection therewith and (II) the
aggregate amount paid and reasonably expected to be paid (based on good faith
projections prepared by the Borrower) pursuant to any non-compete, consulting or
purchase price adjustments) payable for the proposed Permitted Acquisition, when
added to the aggregate consideration paid or payable for all other Permitted
Acquisitions theretofore consummated during such fiscal year, does not exceed
the Permitted Acquisition Basket Amount for such fiscal year; (vii) the
aggregate amount of deferred compensation or other deferred purchase price
(including any earn-outs) paid in any fiscal year of the Borrower in respect of
all Permitted Acquisitions (whether or not such Permitted Acquisitions were
consummated during such fiscal year) shall not exceed $1,000,000 (it being
understood and agreed, however, that any such deferred compensation or other
deferred purchase price (including any earn-outs) shall be structured as a
multiple of the excess of the cash flow of the Acquired Entity or Business that
is the subject of the respective Permitted Acquisition for the most recently
ended 12-month period above the cash flow for such Acquired Entity or Business
for such 12-month period selected to determine the purchase price for such
Permitted Acquisition); and (viii) the Borrower shall have delivered to the
Administrative Agent and each Lender a certificate executed by its chief
financial officer, certifying to the best of such officer's knowledge,
compliance with the requirements of preceding clauses (i) through (vii),
inclusive, and containing the calculations (in reasonable detail) required by
preceding clauses (iii), (iv), (vi) and (vii).
(b) At the time of each Permitted Acquisition involving the creation
or acquisition of a Subsidiary, or the acquisition of capital stock or other
equity interest of any Person, the capital stock or other equity interests
thereof created or acquired in connection with such Permitted Acquisition shall
be pledged for the benefit of the Secured Creditors pursuant to (and to the
extent required by) the Pledge Agreement.
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(c) The Borrower will cause each Subsidiary which is formed to
effect, or is acquired pursuant to, a Permitted Acquisition to comply with, and
to execute and deliver all of the documentation as and to the extent required
by, Sections 8.12 and 9.18, to the reasonable satisfaction of the Administrative
Agent. (d) The consummation of each Permitted Acquisition shall be deemed to be
a representation and warranty by the Borrower that the certifications pursuant
to this Section 8.16 are true and correct and that all conditions thereto have
been satisfied and that same is permitted in accordance with the terms of this
Agreement, which representation and warranty shall be deemed to be a
representation and warranty for all purposes hereunder, including, without
limitation, Sections 7 and 10.
8.17 SENIOR SUBORDINATED NOTES. The Borrower shall pay interest
owing on any outstanding Senior Subordinated Notes through the issuance of
additional Senior Subordinated Notes (and/or the capitalization of accrued
interest on theretofore outstanding Senior Subordinated Notes as principal),
rather than in cash, to the maximum extent permitted by the Senior Subordinated
Note Documents.
SECTION 9. NEGATIVE COVENANTS. The Borrower hereby covenants and
agrees that on and after the Effective Date and until the Total Commitment and
all Letters of Credit have terminated and the Loans, Notes and Unpaid Drawings
(in each case, together with interest thereon), Fees and all other Obligations
(other than any indemnities described in Section 13.13 which are not then due
and payable) incurred hereunder and thereunder, 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
(including sales of accounts receivable with recourse to the Borrower or any of
its Subsidiaries), or assign any right to receive income or permit the filing of
any financing statement under the UCC or any other similar notice of Lien under
any similar recording or notice statute; provided that the provisions of this
Section 9.01 shall not prevent the creation, incurrence, assumption or existence
of the following (Liens described below are herein referred to as "Permitted
Liens"):
(i) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due or Liens for taxes, assessments or governmental charges
or levies being contested in good faith and by appropriate proceedings for
which adequate reserves have been established in accordance with generally
accepted accounting principles;
(ii) Liens in respect of property or assets of the Borrower or any
of its Subsidiaries imposed by law, which were incurred in the ordinary
course of business and do not secure Indebtedness for borrowed money, such
as carriers', warehousemen's, materialmen's and mechanics' liens and other
similar Liens arising in the ordinary course of business, and (x) which do
not in the aggregate materially detract from the value of the 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
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proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property or assets subject to any such Lien;
(iii) Liens in existence on the Initial Borrowing Date which are
listed, and the property subject thereto described, in Schedule VII, but
only to the respective date, if any, set forth in such Schedule VII for
the removal, replacement and termination of any such Liens, plus renewals,
replacements and extensions of such Liens to the extent set forth on such
Schedule VII, 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, replacement or
extension and (y) any such renewal, replacement or extension does not
encumber any additional assets or properties of the Borrower or any of its
Subsidiaries;
(iv) Liens created pursuant to the Security Documents;
(v) licenses, sublicenses, leases or subleases granted to other
Persons not materially interfering with the conduct of the business of the
Borrower or any of its Subsidiaries;
(vi) Liens upon assets of the Borrower or any of its Subsidiaries
subject to Capitalized Lease Obligations to the extent such Capitalized
Lease Obligations are permitted by Section 9.04(iii), provided that (x)
such Liens only serve to secure the payment of Indebtedness arising under
such Capitalized Lease Obligation and (y) the Lien encumbering the asset
giving rise to the Capitalized Lease Obligation does not encumber any
other asset of the Borrower or any Subsidiary of the Borrower;
(vii) Liens placed upon equipment or machinery acquired after the
Initial Borrowing Date and used in the ordinary course of business of the
Borrower or any of its Subsidiaries and placed at the time of the
acquisition thereof by the Borrower or such Subsidiary or within 90 days
thereafter to secure Indebtedness incurred to pay all or a portion of the
purchase price thereof or to secure Indebtedness incurred solely for the
purpose of financing the acquisition of any such equipment or machinery or
extensions, renewals or replacements of any of the foregoing for the same
or a lesser amount, provided that (x) the Indebtedness secured by such
Liens is permitted by Section 9.04(iii) and (y) in all events, the Lien
encumbering the equipment or machinery so acquired does not encumber any
other asset of the Borrower or such Subsidiary;
(viii) easements, rights-of-way, restrictions, encroachments and
other similar charges or encumbrances, and minor title deficiencies, in
each case not securing Indebtedness and not materially interfering with
the conduct of the business of the Borrower or any of its Subsidiaries;
(ix) Liens arising from precautionary UCC financing statement
filings regarding operating leases entered into in the ordinary course of
business;
(x) Liens arising out of the existence of judgments or awards in
respect of which the Borrower or any of its Subsidiaries shall in good
faith be prosecuting an appeal or proceedings for review and in respect of
which there shall have been secured a subsisting stay of execution pending
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such appeal or proceedings, provided that the aggregate amount of all cash
(including the stated amount of all letters of credit) and the fair market
value of all other property subject to such Liens does not exceed $250,000
at any time outstanding;
(xi) statutory and common law landlords' liens under leases to which
the Borrower or any of its Subsidiaries is a party;
(xii) Liens (other than Liens imposed under ERISA) incurred in the
ordinary course of business in connection with workers compensation
claims, unemployment insurance and social security benefits and Liens
securing the performance of bids, tenders, leases and contracts in the
ordinary course of business, statutory obligations, surety bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business and consistent with past practice (exclusive
of obligations in respect of the payment for borrowed money), provided
that the aggregate amount of all cash and the fair market value of all
other property subject to all Liens permitted by this clause (xii) shall
not at any time exceed $250,000;
(xiii) Permitted Encumbrances; and
(xiv) 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 (x) any Indebtedness that is secured by such
Liens is permitted to exist under Section 9.04(vi), and (y) 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.
In connection with the granting of Liens of the type described in clauses (vi),
(vii) and (xiv) of this Section 9.01 by the Borrower of any of its Subsidiaries,
the Administrative Agent and the Collateral Agent shall be authorized to take
any actions deemed appropriate by it in connection therewith (including, without
limitation, by executing appropriate lien releases or lien subordination
agreements in favor of the holder or holders of such Liens, in either case
solely with respect to the item or items of equipment or other assets subject to
such Liens).
9.02 CONSOLIDATION, MERGER, PURCHASE OR SALE OF ASSETS, ETC. The
Borrower will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any partnership, joint venture,
or transaction of merger or consolidation, or convey, sell, lease or otherwise
dispose of all or any part of its property or assets, or enter into any
sale-leaseback transactions, or purchase or otherwise acquire (in one or a
series of related transactions) any part of the property or assets (other than
purchases or other acquisitions of inventory, materials and equipment in the
ordinary course of business) of any Person (or agree to do any of the foregoing
at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall
be permitted to the extent not in violation of Section 9.07;
(ii) Investments may be made to the extent permitted by Section
9.05;
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(iii) the Borrower and its Subsidiaries may sell assets (other than
the capital stock or other equity interests of any Subsidiary), so long as
(v) no Default or Event of Default then exists or would result therefrom,
(w) each such sale is in an arm's-length transaction and the Borrower or
the respective Subsidiary receives at least fair market value (as
determined in good faith by the Borrower or such Subsidiary, as the case
may be), (x) the consideration received by the Borrower or such Subsidiary
consists solely of cash and is paid at the time of the closing of such
sale, (y) the Net Sale Proceeds therefrom are applied as (and to the
extent) required by Section 4.02(e) and (z) the aggregate amount of the
proceeds received from all assets sold pursuant to this clause (iii) shall
not exceed $500,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may lease (as lessee)
or license (as licensee) real or personal property (so long as any such
lease or license does not create a Capitalized Lease Obligation except to
the extent permitted by Section 9.04(iii));
(v) each of the Borrower and its Subsidiaries may sell or discount,
in each case without recourse and in the ordinary course of business,
accounts receivable arising in the ordinary course of business, but only
in connection with the compromise or collection thereof and not as part of
any financing transaction;
(vi) each of the Borrower and its Subsidiaries may grant licenses,
sublicenses, leases or subleases to other Persons not materially
interfering with the conduct of the business of the Borrower or any of its
Subsidiaries, in each case so long as no such grant otherwise affects the
Collateral Agent's security interest in the asset or property subject
thereto;
(vii) any Subsidiary of the Borrower may merge with and into, or be
dissolved or liquidated into, the Borrower or any Wholly-Owned Domestic
Subsidiary of the Borrower which is a Subsidiary Guarantor, so long as (i)
in the case of any such merger, dissolution or liquidation involving the
Borrower, the Borrower is the surviving corporation of any such merger,
dissolution or liquidation, (ii) in all other cases, the Wholly-Owned
Domestic Subsidiary which is a Subsidiary Guarantor is the surviving
corporation of any such merger, dissolution or liquidation, (iii) in all
cases, 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) and (iv) in all cases, the then
continuing or surviving corporation shall have assumed all of the
obligations of such Subsidiary;
(viii) Permitted Acquisitions may be made to the extent permitted by
Section 8.16; and
(ix) each of the Borrower and its Subsidiaries may make sales of
inventory in the ordinary course of business.
To the extent the Required Lenders waive the provisions of this Section 9.02
with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 9.02 (other than to the Borrower or a Subsidiary
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thereof), such Collateral shall be sold free and clear of the Liens created by
the Security Documents, and the Administrative Agent and the Collateral Agent
shall be authorized to take any actions deemed appropriate in order to effect
the foregoing.
9.03 DIVIDENDS. The Borrower will not, and will not permit any of
its Subsidiaries to, authorize, declare or pay any Dividends with respect to the
Borrower or any of its Subsidiaries, except that:
(i) any Subsidiary of the Borrower may pay cash Dividends to the
Borrower or to any Wholly-Owned Subsidiary of the Borrower; and
(ii) the Borrower may pay regularly scheduled Dividends on its
Existing Preferred Stock pursuant to the terms thereof solely or through
an increase in the aggregate liquidation preference thereof, rather than
in cash.
9.04 INDEBTEDNESS. The Borrower will not, and will not permit any of
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(ii) Indebtedness of the Borrower under Interest Rate Protection
Agreements entered into with respect to other Indebtedness permitted under
this Section 9.04 so long as the entering into of such Interest Rate
Protection Agreements are bona fide hedging activities and are not for
speculative purposes;
(iii) Indebtedness of the Borrower and its Subsidiaries evidenced by
Capitalized Lease Obligations (to the extent permitted pursuant to Section
9.07) and purchase money Indebtedness described in Section 9.01(vii),
provided that in no event shall the sum of the aggregate principal amount
of all Capitalized Lease Obligations and purchase money Indebtedness
permitted by this clause (iii) exceed $2,500,000 at any time outstanding.
(iv) subordinated Indebtedness of the Credit Parties under the
Senior Subordinated Notes and the other Senior Subordinated Note Documents
in an aggregate principal amount not to exceed $30,000,000 (as (x)
increased as a result of the issuance of any additional Senior
Subordinated Notes to pay-in-kind any regularly accruing interest on then
outstanding Senior Subordinated Notes in accordance with the terms of the
Senior Subordinated Note Documents (and/or the capitalization of regularly
accruing interest on then outstanding Senior Subordinated Notes as
principal in accordance with the terms of the Senior Subordinated Note
Documents) and (y) reduced by the amount of any repayments of principal
thereof made after the Initial Borrowing Date);
(v) Indebtedness of a Subsidiary of the Borrower acquired pursuant
to a Permitted Acquisition (or Indebtedness assumed at the time of a
Permitted Acquisition of an asset securing such Indebtedness), provided
that (x) such Indebtedness was not incurred in connection with, or in
anticipation or contemplation of, such Permitted Acquisition, (y) such
Indebtedness does not constitute debt for borrowed money, it being
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understood and agreed that Capitalized Lease Obligations and purchase
money Indebtedness shall not constitute debt for borrowed money for
purposes of this clause (y) and (z) the aggregate principal amount of all
Indebtedness permitted by this clause (vi) shall not exceed $500,000 at
any one time outstanding;
(vi) intercompany Indebtedness among the Borrower and the Subsidiary
Guarantors to the extent permitted by Section 9.05(vi); and
(vii) Existing Indebtedness outstanding on the Initial Borrowing
Date and listed on Schedule V without giving effect to any subsequent
extension, renewal or refinancing thereof except to the extent set forth
on Schedule V, provided that the aggregate principal amount of the
Indebtedness to be extended, renewed or refinanced does not increase from
that amount outstanding at the time of any such extension, renewal or
refinancing.
9.05 ADVANCES, INVESTMENTS AND LOANS. The Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly, lend money
or credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any other Person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any
cash or Cash Equivalents (each of the foregoing, an "Investment" and,
collectively, "Investments"), except that the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold accounts
receivables owing to any of them, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with
customary trade terms of the Borrower or such Subsidiary;
(ii) the Borrower and its Subsidiaries may acquire and hold cash and
Cash Equivalents, provided that (x) the aggregate amount of cash and Cash
Equivalents permitted to be held by the Borrower at any time shall not
exceed $2,000,000 (together with any investment income earned thereon) and
(y) during any time that Revolving Loans or Swingline Loans are
outstanding, the aggregate amount of cash and Cash Equivalents permitted
to be held by the Borrower and its Subsidiaries shall not exceed
$1,500,000 for any period of five consecutive Business Days;
(iii) the Borrower and its Subsidiaries may hold the Investments
held by them on the Initial Borrowing Date and described on Schedule VIII,
provided that any additional Investments made with respect thereto shall
be permitted only if permitted under the other provisions of this Section
9.05;
(iv) 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 good faith
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
(v) the Borrower may enter into Interest Rate Protection Agreements
to the extent permitted by Section 9.04(ii);
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(vi) the Borrower and the Subsidiary Guarantors may make
intercompany loans and advances between and among one another
(collectively, "Intercompany Loans"), provided that each such Intercompany
Loan shall be evidenced by an Intercompany Note which shall be pledged to
the Collateral Agent pursuant to, and to the extent required by, the
Pledge Agreement; and (vi) Permitted Acquisitions shall be permitted in
accordance with Section 8.16.
9.06 TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into any transaction or series of
related transactions with any Affiliate of the Borrower or any of its
Subsidiaries, other than in the ordinary course of business and on terms and
conditions substantially as favorable to the Borrower or such Subsidiary as
would reasonably be obtained by the Borrower or such Subsidiary at that time in
a comparable arm's-length transaction with a Person other than an Affiliate,
except that customary fees may be paid to non-officer directors of the Borrower
and its Subsidiaries.
9.07 CAPITAL EXPENDITURES. (a) The Borrower will not, and will not
permit any of its Subsidiaries to, make any Capital Expenditures, except that
(i) during the period from the Initial Borrowing Date through and including
September 30, 2003, the Borrower and its Subsidiaries may make Capital
Expenditures, so long as (x) the aggregate amount of all such Capital
Expenditures does not exceed $3,000,000 during such period and (y) the aggregate
amount of all Capital Expenditures made during the fiscal quarter of the
Borrower ended September 30, 2003 does not exceed $4,400,000, and (ii) during
any fiscal quarter of the Borrower set forth below (taken as one accounting
period), the Borrower and its Subsidiaries may make Capital Expenditures, so
long as the aggregate amount of all such Capital Expenditures does not exceed in
any fiscal quarter of the Borrower set forth below the lesser of (i) the
Consolidated EBITDA of the Borrower for the then previous fiscal quarter
multiplied by the applicable percentage for the applicable fiscal quarter set
forth in Schedule IX hereto or (ii) the amount set forth opposite such fiscal
quarter below:
Fiscal Quarter Ending Amount
--------------------- ------
December 31, 2003 $4,675,000
March 31, 2004 $4,950,000
June 30, 2004 $5,150,000
September 30, 2004 $4,875,000
December 31, 2004 $4,875,000
March 31, 2005 $4,875,000
June 30, 2005 $4,875,000
September 30, 2005 $5,000,000
December 31, 2005 $5,000,000
March 31, 2006 $5,000,000
June 30, 2006 $5,000,000
September 30, 2006 $5,100,000
December 31, 2006 $5,100,000
March 31, 2007 $5,100,000
June 30, 2007 $5,100,000
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Fiscal Quarter Ending Amount
--------------------- ------
September 30, 2007 and thereafter $5,375,000
(b) In addition to the foregoing, in the event that the amount of
Capital Expenditures permitted to be made by the Borrower and its Subsidiaries
pursuant to clause (a)(ii) above in any fiscal quarter of the Borrower (before
giving effect to any increase in such permitted Capital Expenditure amount
pursuant to this clause (b)) is greater than the amount of Capital Expenditures
actually made by the Borrower and its Subsidiaries during such fiscal quarter,
50% of such excess may be carried forward and utilized to make Capital
Expenditures in the immediately succeeding fiscal quarter, provided that no
amounts once carried forward pursuant to this Section 9.07(b) may be carried
forward to any subsequent fiscal quarter of the Borrower thereafter and such
amounts may only be utilized after the Borrower and its Subsidiaries have
utilized in full the permitted Capital Expenditure amount for such fiscal
quarter as provided in clause (a) above (without giving effect to any increase
in such amount pursuant to this clause (b)).
(c) In addition to the foregoing, the Borrower or any of its
Subsidiaries may make Capital Expenditures with the amount of Net Insurance
Proceeds received by the Borrower or any of its Subsidiaries from any Recovery
Event so long as such Net Insurance Proceeds are used to replace or restore any
properties or assets in respect of which such Net Insurance Proceeds were paid
within 90 days (or 180 days in the case of the restoration or replacement of
Real Property) following the date of receipt of such Net Insurance Proceeds from
such Recovery Event, but only to the extent that such Net Insurance Proceeds are
not otherwise required to be applied to repay Term Loans or reduce the Total
Revolving Loan Commitment pursuant to Section 4.02(g).
(d) In addition to the foregoing, the Borrower and its Wholly-Owned
Domestic Subsidiaries that are Subsidiary Guarantors may make additional Capital
Expenditures (which Capital Expenditures will not be included in any
determination under Section 9.07(a)) constituting Permitted Acquisitions
effected in accordance with the requirements of Section 8.16.
9.08 CONSOLIDATED INTEREST COVERAGE RATIO. The Borrower will not
permit the Consolidated Interest Coverage Ratio for any Test Period ending on
the last day of a fiscal quarter of the Borrower set forth below to be less than
the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ending Ratio
--------------------- -----
September 30, 2003 3.00:1.00
December 31, 2003 3.30:1.00
March 31, 2004 3.45:1.00
June 30, 2004 3.50:1.00
September 30, 2004 3.60:1.00
December 31, 2004 3.75:1.00
March 31, 2005 3.85:1.00
June 30, 2005 4.00:1.00
September 30, 2005 4.15:1.00
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Fiscal Quarter Ending Ratio
--------------------- -----
December 31, 2005 4.30:1.00
March 31, 2006 4.45:1.00
June 30, 2006 4.50:1.00
September 30, 2006 4.75:1.00
December 31, 2006 and thereafter 5.00:1.00
9.09 MINIMUM CONSOLIDATED EBITDA. The Borrower will not permit
Consolidated EBITDA for any Test Period ending on the last day of a fiscal
quarter of the Borrower set forth below to be less than the amount set forth
opposite such fiscal quarter below:
Fiscal Quarter Ending Amount
--------------------- ------
September 30, 2003 $5,150,000
December 31, 2003 $5,650,000
March 31, 2004 $5,850,000
June 30, 2004 $6,150,000
September 30, 2004 $6,150,000
December 31, 2004 $6,650,000
March 31, 2005 $6,950,000
June 30, 2005 $7,200,000
September 30, 2005 $7,150,000
December 31, 2005 $7,650,000
March 31, 2006 $7,900,000
June 30, 2006 $8,100,000
September 30, 2006 $8,350,000
December 31, 2006 $8,560,000
March 31, 2007 $8,800,000
June 30, 2007 and thereafter $9,000,000
9.10 MAXIMUM CONSOLIDATED SENIOR LEVERAGE RATIO. The Borrower will
not permit the Consolidated Senior Leverage Ratio at any time during a period
set forth below to be greater than the ratio set forth opposite such period
below:
Period Ratio
------ -----
From the Initial Borrowing Date
through and including
December 30, 2003 2.10:1.00
December 31, 2003
through and including
March 30, 2004 2.00:1.00
March 31, 2004
through and including
June 29, 2004 1.90:1.00
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Period Ratio
------ -----
June 30, 2004
through and including
September 29, 2004 1.90:1.00
September 30, 2004
through and including
December 30, 2004 1.80:1.00
December 31, 2004
through and including
March 30, 2005 1.70:1.00
March 31, 2005
through and including
June 29, 2005 1.50:1.00
June 30, 2005
through and including
September 29, 2005 1.40:1.00
September 30, 2005
through and including
December 30, 2005 1.30:1.00
December 31, 2005
through and including
March 30, 2006 1.20:1.00
March 31, 2006
through and including
June 29, 2006 1.10:1.00
June 30, 2006
through and including
September 29, 2006 1.00:1.00
September 30, 2006
through and including
December 30, 2006 0.90:1.00
December 31, 2006
through and including
March 30, 2007 0.80:1.00
March 31, 2007
through and including
June 29, 2007 0.75:1.00
June 30, 2007
through and including
September 29, 2007 0.70:1.00
September 30, 2007
through and including
December 30, 2007 0.65:1.00
December 31, 2007
through and including
March 30, 2008 0.60:1.00
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Period Ratio
------ -----
March 31, 2008
through and including
June 29, 2008 0.55:1.00
Thereafter 0.50:1:00
9.11 MAXIMUM CONSOLIDATED TOTAL LEVERAGE RATIO. The Borrower will
not permit the Consolidated Total Leverage Ratio at any time during a period set
forth below to be greater than the ratio set forth opposite such period below:
Period Ratio
------ -----
From the Initial Borrowing Date
through and including
December 30, 2003 3.50:1.00
December 31, 2003
through and including
March 30, 2004 3.30:1.00
March 31, 2004
through and including
June 29, 2004 3.25:1.00
June 30, 2004
through and including
September 29, 2004 3.25:1.00
September 30, 2004
through and including
December 30, 2004 3.10:1.00
December 31, 2004
through and including
March 30, 2005 2.95:1.00
March 31, 2005
through and including
June 29, 2005 2.80:1.00
June 30, 2005
through and including
September 29, 2005 2.60:1.00
September 30, 2005
through and including
December 30, 2005 2.50:1.00
December 31, 2005
through and including
March 30, 2006 2.35:1.00
March 31, 2006
through and including
June 29, 2006 2.20:1.00
June 30, 2006
through and including
September 29, 2006 2.10:1.00
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Period Ratio
------ -----
September 30, 2006
through and including
December 30, 2006 2.00:1.00
December 31, 2006
through and including
March 30, 2007 1.90:1.00
March 31, 2007
through and including
June 29, 2007 1.80:1.00
June 30, 2007
through and including
September 29, 2007 1.70:1.00
September 30, 2007
through and including
December 30, 2007 1.65:1.00
December 31, 2007
through and including
March 30, 2008 1.60:1.00
March 31, 2008
through and including
June 29, 2008 1.55:1.00
Thereafter 1.50:1:00
9.12 MINIMUM CONSOLIDATED FIXED CHARGE COVERAGE RATIO. The Borrower
will not permit the Consolidated Fixed Charge Coverage Ratio for any Test Period
ending on the last day of a fiscal quarter of the Borrower set forth below to be
less than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ending Ratio
--------------------- -----
September 30, 2003 1.00:1.00
through and including
March 31, 2007
June 30, 2007 1.05:1.00
September 30, 2007 1.10:1.00
December 31, 2007 1.20:1.00
March 31, 2008 1.30:1.00
June 30, 2008 1.40:1.00
9.13 MINIMUM QUARTERLY FREE CASH FLOW. The Borrower will not permit
the Free Cash Flow for any Test Period ending on the last day of any fiscal
quarter of the Borrower set forth below to be less than the amount set forth
opposite such fiscal quarter below; provided that commencing after the delivery
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of the financial statements of the Borrower pursuant to Section 8.01(b) for the
fiscal quarter of the Borrower ended September 30, 2004 pursuant to Section
8.01(b), if at any time the officer's certificate delivered by the Borrower
pursuant to Section 8.01(f) for the fiscal quarter or fiscal year, as the case
may be, ending on the last day of the respective Test Period then last ended
demonstrates compliance with a Consolidated Total Leverage Ratio of less than
2.0:1.0 as at the last day of such Test Period or fiscal year, as the case may
be, for which such certificate is provided, the Borrower shall not be required
to comply at such time with the requirements of this Section 9.13.
Fiscal Quarter Ending Amount
--------------------- ------
September 30, 2003 $1,800,000
December 31, 2003 $2,100,000
March 31, 2004 $2,100,000
June 30, 2004 $2,300,000
September 30, 2004 $2,390,000
December 31, 2004 $2,900,000
March 31, 2005 $3,190,000
June 30, 2005 $3,400,000
September 30, 2005 $3,200,000
December 31, 2005 $3,700,000
March 31, 2006 $3,900,000
June 30, 2006 $4,200,000
September 30, 2006 $4,360,000
December 31, 2006 $4,580,000
March 31, 2007 $4,810,000
June 30, 2007 and thereafter $5,000,000
9.14 LIMITATIONS ON PAYMENTS OF SENIOR SUBORDINATED NOTES;
MODIFICATIONS OF SENIOR SUBORDINATED NOTE DOCUMENTS, CERTIFICATE OF
INCORPORATION, BY-LAWS AND CERTAIN OTHER AGREEMENTS, ETC. The Borrower will not,
and will not permit any of its Subsidiaries to:
(i) make (or give any notice in respect of) any voluntary or
optional payment or prepayment on or redemption or acquisition for value
of, or any prepayment or redemption as a result of any asset sale, change
of control or similar event of (including, in each case without
limitation, by way of depositing with the trustee with respect thereto
money or securities before due for the purpose of paying when due), any
Senior Subordinated Notes or Existing Indebtedness of the type described
in item 1 set forth on Schedule V hereto;
(ii) amend or modify, or permit the amendment or modification of any
provision of, any Senior Subordinated Note Document;
(iii) amend, modify or change its certificate or articles of
incorporation (including, without limitation, by the filing or
modification of any certificate or articles of designation), certificate
of formation, limited liability company agreement or by-laws (or the
equivalent organizational documents), as applicable, or any agreement
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entered into by it with respect to its capital stock or other equity
interests (including any Shareholders' Agreement), or enter into any new
agreement with respect to its capital stock or other equity interests,
unless such amendment, modification, change or other action contemplated
by this clause (iii) could not reasonably be expected to be adverse to the
interests of the Lenders;
(iv) amend, modify or change any provision of (x) any Management
Agreement unless such amendment, modification or change could not
reasonably be expected to be adverse to the interests of the Lenders
(although no amendment, modification or change may be made to any monetary
term thereof) or (y) any Tax Sharing Agreement or enter into any new tax
sharing agreement, tax allocation agreement or similar agreement without
the prior written consent of the Administrative Agent;
(v) amend, modify or change the terms of the Preferred Stock or any
agreement in connection therewith;
(vi) directly or indirectly make (or give any notice in respect of)
any voluntary or optional payment or prepayment on or redemption or
acquisition for value of, or in respect of, any B Term Loans; or
(vii) make any payment on account on the purchase, redemption,
conversion, exchange, retirement, acquisition, defeasance or sinking fund
payment with respect to any Indebtedness that is junior or subordinate to
any Indebtedness under the Credit Documents (other than (x) payments of
interest on the Senior Subordinated Notes in accordance with the terms of
the Senior Subordinated Note Documents and (y) payments with respect to B
Term Loan Obligations permitted pursuant to Section 14).
9.15 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 of its
Subsidiaries, or pay any Indebtedness owed to the Borrower or any of its
Subsidiaries, (b) make loans or advances to the Borrower or any of its
Subsidiaries or (c) transfer any of its properties or assets to the Borrower or
any of its Subsidiaries, except for such encumbrances or restrictions existing
under or by reason of (i) applicable law, (ii) this Agreement and the other
Credit Documents, (iii) the Senior Subordinated Note Documents, (iv) customary
provisions restricting subletting or assignment of any lease governing any
leasehold interest of the Borrower or any of its Subsidiaries, (v) customary
provisions restricting assignment of any licensing agreement (in which the
Borrower or any of its Subsidiaries is the licensee) or other contract entered
into by the Borrower or any of its Subsidiaries in the ordinary course of
business, (vi) restrictions on the transfer of any asset pending the close of
the sale of such asset, and (vii) restrictions on the transfer of any asset
subject to a Lien permitted by Section 9.01(iii), (vi), (vii) or (xiv).
9.16 LIMITATION ON ISSUANCE OF CAPITAL STOCK. (a) The Borrower will
not, and will not permit any of its Subsidiaries to, issue (i) any preferred
stock or other preferred equity interests or (ii) any redeemable common stock or
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other redeemable common equity interests other than common stock or other
redeemable common equity interests that is redeemable at the sole option of the
Borrower or such Subsidiary, as the case may be.
(b) The Borrower will not permit any of its Subsidiaries to issue
any capital stock or other equity interests (including by way of sales of
treasury stock) or any options or warrants to purchase, or securities
convertible into, capital stock or other equity interests, except (i) for
transfers and replacements of then outstanding shares of capital stock or other
equity interests, (ii) for stock splits, stock dividends and issuances which do
not decrease the percentage ownership of the Borrower or any of its Subsidiaries
in any class of the capital stock or other equity interests of such Subsidiary,
(iii) to qualify directors to the extent required by applicable law or (iv) for
issuances by Subsidiaries of the Borrower which are newly created or acquired in
accordance with the terms of this Agreement.
9.17 BUSINESS. The Borrower will not, and will not permit any of its
Subsidiaries to, engage in any business other than the businesses engaged in by
the Borrower and its Subsidiaries as of the Initial Borrowing Date and
reasonable extensions thereof.
9.18 LIMITATION ON CREATION OF SUBSIDIARIES. The Borrower will not,
and will not permit any of its Subsidiaries to, establish, create or acquire
after the Initial Borrowing Date any Subsidiary, provided that the Borrower and
its Wholly Owned Domestic Subsidiaries that are, or are to become, Subsidiary
Guarantors may create and/or acquire Wholly-Owned Domestic Subsidiaries pursuant
to, and/or to effect, a Permitted Acquisition, so long as (i) all of the capital
stock and other equity interests of such new Subsidiary are pledged to the
Collateral Agent pursuant to the terms and conditions of the Pledge Agreement,
(ii) such new Subsidiary enters into the Subsidiaries Guaranty and executes and
delivers to the Collateral Agent counterparts of the Security Agreement and the
Pledge Agreement, (iii) such new Subsidiary enters into such Additional Security
Documents as the Administrative Agent or the Required Lenders may require
pursuant to Section 8.12 and (iv) such new Subsidiary executes and delivers all
other relevant documentation (including opinions of counsel) of the type
described in Section 5 as such new Subsidiary would have had to deliver if it
were a Credit Party on the Initial Borrowing Date.
9.19 NEGATIVE PLEDGES. The Borrower shall not, and shall not permit
any of its Subsidiaries to, agree or covenant with any Person to restrict in any
way its ability to grant any Lien on its assets in favor of the Lenders or xxxxx
x Xxxx on its assets (whether now owned or hereafter acquired) to any Person
other than the Lenders, except that this Section 9.19 shall not apply to (i) any
covenants contained in this Agreement or the Security Documents, (ii) the
covenants contained in Section 8.01 of the Senior Subordinated Note Purchase
Agreement, and (iii) covenants and agreements made in connection with Liens
described in Section 9.01(vii) but only if such covenant or agreement applies
solely to the specific machinery, equipment or real estate to which such Lien
relates.
9.20 RESTRICTIONS ON ADDITIONAL SUBORDINATED INDEBTEDNESS. The
Borrower will not, nor will it permit any of its Subsidiaries to, create or
suffer to exist any Indebtedness for borrowed money which (i) provides that it
is subordinate in right of payment to the Loans (other than the B Term Loans)
and (ii) is senior in right of payment to or pari passu with the B Term Loans or
other B Term Loan Obligations.
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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 interest on any Loan or Note, any Unpaid Drawing or any Fees or any
other amounts owing hereunder or under any other Credit Document; or
10.02 REPRESENTATIONS, ETC. Any representation, warranty or
statement made or deemed made by any Credit Party herein or in any other Credit
Document or in any certificate delivered to the Administrative Agent or any
Lender 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. The Borrower or any of its Subsidiaries shall (i)
default in the due performance or observance by it of any term, covenant or
agreement contained in Section 8.01(g), 8.08, 8.11, 8.16 or 8.17 or Section 9 or
(ii) default in the due performance or observance by it of any other term,
covenant or agreement contained in this Agreement or in any other Credit
Document (other than those set forth in Sections 10.01 and 10.02) and such
default shall continue unremedied for a period of 30 days after written notice
thereof to the defaulting party by the Administrative Agent or the Required
Lenders; or
10.04 DEFAULT UNDER OTHER AGREEMENTS. (i) The Borrower or any of its
Subsidiaries shall (x) default in any payment of any Indebtedness (other than
the Obligations) beyond the period of grace, if any, provided in an instrument
or agreement under which such Indebtedness was created or (y) 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 (ii) any Indebtedness (other than
the Obligations) of the Borrower or any of its Subsidiaries shall be declared to
be (or shall become) due and payable, or required to be prepaid other than by a
regularly scheduled required prepayment, prior to the stated maturity thereof,
provided that it shall not be a Default or an Event of Default under this
Section 10.04 unless the aggregate principal amount of all Indebtedness as
described in preceding clauses (i) and (ii) is at least $250,000; or
10.05 BANKRUPTCY, ETC. The Borrower or any of its Subsidiaries shall
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against the
Borrower or any of its Subsidiaries, and the petition is not controverted within
10 days, or is not dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of the Borrower or any of
its Subsidiaries, or the Borrower or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
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debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the Borrower or any
of its Subsidiaries, or there is commenced against the Borrower or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days, or the Borrower or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or the Borrower or any of its 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 the
Borrower or any of its Subsidiaries makes a general assignment for the benefit
of creditors; or any corporate, limited liability company or similar action is
taken by the Borrower or any of its Subsidiaries for the purpose of effecting
any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof under Section 412 of the
Code or Section 302 of ERISA or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
..67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days, any Plan which is
subject to Title IV of ERISA shall have had or is likely to have a trustee
appointed to administer such Plan, any Plan which is subject to Title IV of
ERISA is, shall have been or is likely to be terminated or to be the subject of
termination proceedings under ERISA, any Plan shall have an Unfunded Current
Liability, a contribution required to be made with respect to a Plan or a
Foreign Pension Plan has not been timely made, the Borrower or any Subsidiary of
the Borrower or any ERISA Affiliate has incurred or is likely to incur any
liability to or on account of a Plan under Section 409, 502(i), 502(l), 515,
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971
or 4975 of the Code or on account of a group health plan (as defined in Section
607(1) of ERISA, Section 4980B(g)(2) of the Code or 45 Code of Federal
Regulations Section 160.103) under Section 4980B of the Code and/or the Health
Insurance Portability and Accountability Acts of 1996, or the Borrower or any
Subsidiary of the Borrower has incurred or is likely to incur liabilities
pursuant to one or more employee welfare benefit plans (as defined in Section
3(1) of ERISA) that provide benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or Plans or Foreign
Pension Plans, a "default" within the meaning of Section 4219(c)(5) of ERISA
shall occur with respect to any Plan, any applicable law, rule or regulation is
adopted, changed or interpreted, or the interpretation or administration thereof
is changed, in each case after the date hereof, by any governmental authority or
agency or by any court (a "Change of Law"), or, as a result of a Change in Law,
an event occurs following a Change in Law, with respect to or otherwise
affecting any Plan; (b) there shall result from any such event or events the
imposition of a lien, the granting of a security interest, or a liability or a
material risk of incurring a liability; and (c) such lien, security interest or
liability, either individually and/or in the aggregate, has had, or could
reasonably be expected to have, in the opinion of the Required Lenders, a
Material Adverse Effect; or
10.07 SECURITY DOCUMENTS. Any of the Security Documents shall cease
to be in full force and effect, or shall cease 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, a perfected
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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
(except as permitted by Section 9.01), and subject to no other Liens (except as
permitted by Section 9.01), 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 such Security Document and such default
shall continue beyond the period of grace, if any, specifically applicable
thereto pursuant to the terms of such Security Document; or
10.08 SUBSIDIARIES GUARANTY. The Subsidiaries Guaranty or any
provision thereof shall cease to be in full force or effect as to any Subsidiary
Guarantor, or any Subsidiary Guarantor or any Person acting for or on behalf of
such Subsidiary Guarantor shall deny or disaffirm such Subsidiary Guarantor's
obligations under the Subsidiaries Guaranty to which it is a party or any
Subsidiary Guarantor shall default in the due performance or observance of any
term, covenant or agreement on its part to be performed or observed pursuant to
the Subsidiaries Guaranty to which it is a party; or
10.09 JUDGMENTS. One or more judgments or decrees shall be entered
against the Borrower or any Subsidiary of the Borrower involving in the
aggregate for the Borrower and its 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 30 consecutive
days, and the aggregate amount of all such judgments equals or exceeds $250,000;
or
10.10 CHANGE OF CONTROL. A Change of Control shall occur; or
10.11 MATERIAL CONTRACT. The Borrower or any of its Subsidiaries
defaults in the observance or performance of any Material Contract; or
10.12 OFFICERS. Two of (i) Xxxxxxx XxXxxxxxxx, the President and
Chief Executive Officer of the Borrower, (ii) Xxxxxxx Xxxxx Xxxx, the Chief
Operating Officer of the Borrower, or (iii) Xxxxxx X. Xxxxxx, the Chief
Financial Officer of the Borrower shall, cease to function in such capacities
and shall not be replaced with persons of substantially equal qualifications,
ability and experience within 120 days of such individuals ceasing to serve in
such capacities; or
10.13 MATERIAL ADVERSE EFFECT. There shall have occurred a change in
the business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or any of its Subsidiaries since June
30, 2002 that has had, or could reasonably be expected to have, a material
adverse effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, upon the written request of
the Required Lenders, shall by written notice to the Borrower, take any or all
of the following actions, without prejudice to the rights of the Administrative
Agent, any Lender 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
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shall occur with respect to the Borrower, the result which would occur upon the
giving of written notice by the Administrative Agent as specified in clauses (i)
and (ii) below shall occur automatically without the giving of any such notice):
(i) declare the Total Commitment terminated, whereupon all Commitments of each
Lender shall forthwith terminate immediately and any Commitment Commission shall
forthwith become due and payable without any other notice of any kind; (ii)
declare the principal of and any accrued interest in respect of all Loans and
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 occurrence of an Event of
Default specified in Section 10.05 with respect to the Borrower, it will pay) to
the Collateral Agent at the Payment Office such additional amount of cash or
Cash Equivalents, 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, all of the
Liens and security interests created pursuant to the Security Documents (subject
to the provisions of Section 14); and (vi) apply any cash collateral held by the
Administrative Agent pursuant to Section 4.02 to the repayment of the
Obligations.
SECTION 11. DEFINITIONS AND ACCOUNTING TERMS.
11.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"A TERM LOAN" shall have the meaning provided in Section 1.01(a).
"A TERM LOAN COMMITMENT" shall mean, for each Lender, the amount set
forth opposite such Lender's name in Schedule I directly below the column
entitled "A Term Loan Commitment," as the same may be terminated pursuant to
Sections 3.03 and/or 10.
"A TERM LOAN LENDER" shall mean each Lender with an A Term Loan
Commitment or with an outstanding A Term Loan.
"A TERM LOAN MATURITY DATE" shall mean August 25, 2007.
"A TERM NOTE" shall have the meaning provided in Section 1.05(a).
"ACQUIRED ENTITY OR BUSINESS" shall mean either (x) the assets
constituting a business, division or product line of any Person not already a
Subsidiary of the Borrower or (y) 100% of the capital stock of any such Person,
which Person shall, as a result of such stock acquisition, become a Wholly-Owned
Domestic Subsidiary of the Borrower (or shall be merged with and into the
Borrower or a Subsidiary Guarantor, with the Borrower or such Subsidiary
Guarantor being the surviving Person).
"ADDITIONAL SECURITY DOCUMENTS" shall have the meaning provided in
Section 8.12.
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"ADJUSTED CONSOLIDATED NET INCOME" shall mean, for any period,
Consolidated Net Income for such period plus the sum of the amount of all net
non-cash charges (including, without limitation, depreciation, amortization,
deferred tax expense and non-cash interest expense) and net non-cash losses
which were included in arriving at Consolidated Net Income for such period, less
the amount of all net non-cash gains and non-cash credits which were included in
arriving at Consolidated Net Income for such period.
"ADJUSTED CONSOLIDATED WORKING CAPITAL" shall mean, at any time,
Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities at such time.
"ADMINISTRATIVE AGENT" shall mean BNP Paribas, in its capacity as
Administrative Agent for the Lenders hereunder, and shall include any successor
to the Administrative Agent appointed pursuant to Section 12.09.
"AFFILIATE" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including, but not limited to, all directors
and officers of such Person), controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to control another Person if
such Person possesses, directly or indirectly, the power (i) to vote 5% or more
of the securities having ordinary voting power for the election of directors (or
equivalent governing body) of such Person or (ii) 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; provided, however,
that neither the Administrative Agent nor any Lender (nor any Affiliate thereof)
shall be considered an Affiliate of the Borrower or any Subsidiary thereof.
"AGENTS" shall mean the Administrative Agent and any other agent
with respect to the Credit Documents, including, without limitation, any
syndication agent or documentation agent.
"AGREEMENT" shall mean this Credit Agreement, as modified,
supplemented, amended, restated (including any amendment and restatement
hereof), extended or renewed from time to time.
"APPLICABLE EXCESS CASH FLOW PERCENTAGE" shall mean, with respect to
any Excess Cash Flow Payment Date, 75%; provided that so long as no Default or
Event of Default is then in existence, if on the last day of the relevant Excess
Cash Flow Payment Period, the Consolidated Total Leverage Ratio for the Test
Period then most recently ended is less than 2.50:1.00 (as established pursuant
to the officer's certificate delivered (or required to be delivered) pursuant to
Section 8.01(f)), then the Applicable Excess Cash Flow Percentage shall instead
be 50%.
"APPLICABLE MARGIN" in respect of (a) A Term Loans, Revolving Loans
and Swingline Loans for any Margin Reduction Period shall mean, from and after
any Start Date to and including the corresponding End Date, the respective
percentage per annum set forth below under the respective Type and Tranche of
Loans and opposite the respective Level (i.e., Xxxxx 0, Xxxxx 0 or Xxxxx 0, as
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the case may be) indicated to have been achieved on the applicable Test Date for
such Start Date (as shown in the respective officer's certificate delivered
pursuant to Section 8.01(f) or the first proviso below):
A Term Loans Swingline Loans A Term Loans
maintained as and Revolving maintained as Revolving Loans
Consolidated Total Base Rate Loans maintained Eurodollar maintained as
Level Leverage Ratio Loans as Base Rate Loans Loans Eurodollar Loans
----- -------------- ----- ------------------ ----- ----------------
1 Less than 2.50:1.00 2.50% 2.50% 3.50% 3.50%
Greater than or
equal to 2.50:1.00
but less than
2 3.00:1.00 2.75% 2.75% 3.75% 3.75%
Greater than or
3 equal to 3.00:1.00 3.00% 3.00% 4.00% 4.00%
; provided, however, that if the Borrower fails to deliver the financial
statements required to be delivered pursuant to Section 8.01(b) or (c)
(accompanied by the officer's certificate required to be delivered pursuant to
Section 8.01(f) showing the applicable Consolidated Total Leverage Ratio on the
relevant Test Date) on or prior to the respective date required by such
Sections, then Level 3 pricing shall apply until such time, if any, as the
financial statements required as set forth above and the accompanying officer's
certificate have been delivered showing the pricing for the respective Margin
Reduction Period is at a Level below Level 3 (it being understood that, in the
case of any late delivery of the financial statements and officer's certificate
as so required, any reduction in the Applicable Margin shall apply only from and
after the date of the delivery of the complying financial statements and
officer's certificate); provided further, (i) that Level 3 pricing shall apply
at all times when any Default or Event of Default is in existence and (ii) that
for the period from the Initial Borrowing Date to the date of the delivery of
the Borrower's financial statements (and related officer's certificate) in
respect of its fiscal quarter ending closest to June 30, 2004, Level 3 pricing
shall apply; and (b) B Term Loans maintained as (i) Base Rate Loans shall be
6.50% and (ii) Eurodollar Loans shall be 7.50%.
"ASSET SALE" shall mean any sale, transfer or other disposition by
the Borrower or any of its Subsidiaries to any Person (including by way of
redemption by such Person) other than to the Borrower or a Wholly-Owned
Subsidiary of the Borrower of any asset (including, without limitation, any
capital stock or other securities of, or equity interests in, another Person)
other than sales of assets pursuant to Sections 9.02 (v), (vi) and (vii).
"ASSIGNMENT AND ASSUMPTION AGREEMENT" shall mean an Assignment and
Assumption Agreement substantially in the form of Exhibit L (appropriately
completed).
"B TERM LOAN" shall have the meaning provided in Section 1.01(b).
"B TERM LOAN COMMITMENT" shall mean, for each Lender, the amount set
forth opposite such Lender's name in Schedule I directly below the column
entitled "B Term Loan Commitment," as the same may be terminated pursuant to
Sections 3.03 and/or 10.
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"X XXXX XXXX XXXXXXX" at any time shall mean any Lender which has a
B Term Loan Commitment or any outstanding B Term Loans.
"B TERM LOAN MATURITY DATE" shall mean August 25, 2008.
"B TERM LOAN OBLIGATIONS" shall mean all Obligations constituting
the principal of, or interest (including, without limitation, any interest
accruing subsequent to the filing of a petition of bankruptcy at the rate
provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law) on, B Term Loans or under the
B Term Notes, and any other amounts owing pursuant to the terms of this
Agreement or any other Credit Document with respect to the B Term Loans
(including, without limitation, all guaranty obligations of B Term Loans and
interest thereon pursuant to the Subsidiaries Guaranty).
"B TERM NOTE" shall have the meaning provided in Section 1.05(a).
"BANKRUPTCY CODE" shall have the meaning provided in Section 10.05.
"BASE RATE" shall mean, at any time, the higher of (i) the Prime
Lending Rate at such time and (ii) 1/2 of 1% in excess of the overnight Federal
Funds Rate at such time.
"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.
"BENEFITTED LENDER" shall have the meaning provided in Section
13.06(b).
"BNP PARIBAS" shall mean BNP Paribas, in its individual capacity,
and any successor corporation thereto by merger, consolidation or otherwise.
"BORROWER" shall have the meaning set forth in the first paragraph
of this Agreement.
"BORROWING" shall mean the borrowing of one Type of Loan of a single
Tranche from all the Lenders having Commitments of the respective Tranche (or
from the Swingline Lender in the case of Swingline Loans) on a given date (or
resulting from a conversion or conversions on such date) having in the case of
Eurodollar Loans the same Interest Period, provided that Base Rate Loans
incurred pursuant to Section 1.10(b) shall be considered part of the related
Borrowing of Eurodollar Loans.
"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, New York, a legal holiday or a day on which 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 U.S. dollar deposits in the interbank Eurodollar market.
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"CALCULATION PERIOD" shall mean, in the case of any Permitted
Acquisition, the Test Period most recently ended prior to the date of any such
Permitted Acquisition for which financial statements are available.
"CAPITAL EXPENDITURES" shall mean, with respect to any Person, all
expenditures by such Person which should be capitalized in accordance with
generally accepted accounting principles and, without duplication, the amount of
Capitalized Lease Obligations incurred by such Person.
"CAPITALIZED LEASE OBLIGATIONS" shall mean, with respect to any
Person, all rental obligations of such Person which, under generally accepted
accounting principles, are or will be required to be capitalized on the books of
such Person, in each case taken at the amount thereof accounted for as
indebtedness in accordance with such principles.
"CASH EQUIVALENTS" shall mean, as to any Person, (i) securities
issued or directly and fully guaranteed or insured by the United States or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States is pledged in support thereof) having maturities of not more
than six months from the date of acquisition, (ii) marketable direct obligations
issued by any state of the United States or any political subdivision of any
such state or any public instrumentality thereof maturing within six 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 Xxxxx'x, (iii) Dollar
denominated time deposits, certificates of deposit and bankers acceptances of
any Lender or any commercial bank having, or which is the principal banking
subsidiary of a bank holding company having, a long-term unsecured debt rating
of at least "A" or the equivalent thereof from S&P or "A2" or the equivalent
thereof from Xxxxx'x with maturities of not more than six months from the date
of acquisition by such Person, (iv) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in clause
(i) above entered into with any bank meeting the qualifications specified in
clause (iii) above, (v) commercial paper issued by any Person incorporated in
the United States rated at least A-1 or the equivalent thereof by S&P or at
least P-1 or the equivalent thereof by Xxxxx'x and in each case maturing not
more than six months after the date of acquisition by such Person, and (vi)
investments in money market funds substantially all of whose assets are
comprised of securities of the types described in clauses (i) through (v) above.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same has been amended and may
hereafter be amended from time to time, 42 X.X.X.xx. 9601 et seq.
"CHANGE OF CONTROL" shall mean (a) any "person" or "group" (within
the meaning of Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934,
as in effect on the Effective Date) shall (A) have acquired, directly or
indirectly, beneficial ownership of 30% or more on a fully diluted basis of the
voting and/or economic interest in the Borrower's capital stock, (B) have
acquired, directly or indirectly, by purchase, sale, lease, exchange or other
transfer (in a single transaction or series of related transactions) all or
substantially all of the assets of the Borrower or (C) obtained the power
(whether or not exercised) to elect a majority of the Borrower's directors or
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(b) the Board of Directors of the Borrower shall cease to consist of a majority
of Continuing Directors or (c) a "change of control" shall occur as provided in
the Senior Subordinated Note Documents.
"CHANGE OF LAW" shall have the meaning provided in Section 10.06.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code as in effect at the date of this
Agreement and any subsequent provisions of the Code amendatory thereof,
supplemental thereto or substituted therefor.
"COLLATERAL" shall mean all property (whether real, personal or
otherwise) with respect to which any security interests have been granted (or
purported to be granted) pursuant to any Security Document, including, without
limitation, all Pledge Agreement Collateral, all Security Agreement Collateral,
all Mortgaged Properties 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.
"COLLECTIVE BARGAINING AGREEMENTS" shall have the meaning provided
in Section 5.05.
"COMMITMENT" shall mean any of the commitments of any Lender, i.e.,
whether the A Term Loan Commitment, the B Term Loan Commitment or a Revolving
Loan Commitment.
"COMMITMENT COMMISSION" shall have the meaning provided in Section
3.01(a).
"CONSOLIDATED CURRENT ASSETS" shall mean, at any time, the
consolidated current assets of the Borrower and its Subsidiaries at such time.
"CONSOLIDATED CURRENT LIABILITIES" shall mean, at any time, the
consolidated current liabilities of the Borrower and its Subsidiaries at such
time, but excluding the current portion of any Indebtedness under this Agreement
and the current portion of any other long-term Indebtedness which would
otherwise be included therein.
"CONSOLIDATED EBIT" shall mean, for any period, Consolidated Net
Income for such period before deducting therefrom consolidated interest expense
of the Borrower and its Subsidiaries for such period (to the extent that such
consolidated interest expense was deducted in arriving at Consolidated Net
Income for such period) and provision for taxes based on income that were
included in arriving at Consolidated Net Income for such period and without
giving effect to any gains or losses from sales of assets other than from sales
of inventory in the ordinary course of business.
"CONSOLIDATED EBITDA" shall mean, for any period, Consolidated EBIT
for such period, adjusted by (x) adding thereto (i) the amount of all
amortization of intangibles and depreciation that were deducted in arriving at
Consolidated Net Income for such period, (ii) the amount of all expenses
incurred in connection with the Transaction for such period to the extent that
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same were deducted in arriving at Consolidated Net Income for such period, and
(iii) the amount of all non-cash deferred compensation expense for such period
to the extent that same was deducted in arriving at the Consolidated Net Income
for such period and (y) deducting therefrom (i) the amount of all cash payments
during such period that are associated with any non-cash deferred compensation
expense that was added back to Consolidated Net Income in a previous period and
(ii) the amount of all consolidated interest income of the Borrower and its
Subsidiaries for such period; it being understood that in determining the
Consolidated Total Leverage Ratio and the Consolidated Senior Leverage Ratio
only, Consolidated EBITDA for any period shall be calculated on a Pro Forma
Basis to give effect to any Acquired Entity or Business acquired during such
period pursuant to a Permitted Acquisition and not subsequently sold or
otherwise disposed of by the Borrower or any of its Subsidiaries during such
period. Notwithstanding the foregoing, determinations of Consolidated EBITDA for
purposes of Section 9.10 and 9.11 and the definition of "Applicable Margin" at
any time prior to the first anniversary of the Initial Borrowing Date shall be
made in accordance with the requirements of the definition of "Test Period"
contained herein.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" shall mean, for any
period, the ratio of Free Cash Flow for such period to Consolidated Fixed
Charges for such period.
"CONSOLIDATED FIXED CHARGES" shall mean, for any period, the sum,
without duplication, of (i) Consolidated Interest Expense for such period, (ii)
the scheduled principal amount of all amortization payments on all Indebtedness
(including, without limitation, the Term Loans and the principal component of
all Capitalized Lease Obligations but excluding the repayment of Indebtedness
pursuant to the Refinancing) of the Borrower and its Subsidiaries for such
period (as determined on the first day of such period), and (iii) 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.
"CONSOLIDATED INDEBTEDNESS" shall mean, at any time, the sum of
(without duplication) (i) all indebtedness (including principal, interest, fees
and charges) of the Borrower and its Subsidiaries for borrowed money (including
obligations evidenced by bonds, notes or similar instruments) and for the
deferred purchase price of property or services (excluding trade payables and
accrued expenses incurred in the ordinary course of business), (ii) the
aggregate amount of all Capitalized Lease Obligations of the Borrower and its
Subsidiaries, (iii) all Indebtedness of the types described in clause (i), (ii),
(iv), or (v) of this definition secured by any Lien on any property owned by the
Borrower or any of its Subsidiaries, whether or not such Indebtedness has been
assumed by such Person (provided that, if the Person has not assumed or
otherwise become liable in respect of such Indebtedness, such Indebtedness shall
be deemed to be in an amount equal to the fair market value of the property to
which such Lien relates as determined in good faith by such Person), (iv) all
Contingent Obligations of the Borrower and any of its Subsidiaries (regardless
of any contrary treatment under GAAP), and (v) all Indebtedness of the Borrower
and its Subsidiaries of the type described in clauses (ii) and (vii) of the
definition of Indebtedness contained herein; provided that for purposes of this
definition, the amount of Indebtedness in respect of the Interest Rate
Protection Agreements and Other Hedging Agreements shall be at any time the
unrealized net loss position, if any, of the Borrower and/or its Subsidiaries
thereunder on a marked-to-marked basis determined no more than one month prior
to such time.
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"CONSOLIDATED INTEREST COVERAGE RATIO" shall mean, for any period,
the ratio of Consolidated EBITDA for such period to Consolidated Interest
Expense for such period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period, the sum
of the total consolidated interest expense of the Borrower and its Subsidiaries
for such period (calculated without regard to any limitations on the payment
thereof) plus, without duplication, that portion of Capitalized Lease
Obligations of the Borrower and its Subsidiaries representing the interest
factor for such period; provided that the amortization of deferred financing,
legal and accounting costs with respect to this Agreement and the non-cash
interest expense on the Senior Subordinated Notes, in each case shall be
excluded from Consolidated Interest Expense to the extent same would otherwise
have been included therein. Notwithstanding the foregoing, determinations of
Consolidated Interest Expense for purposes of Section 9.08 at any time prior to
the first anniversary of the Initial Borrowing Date, shall be made in accordance
with the requirements of the definition of "Test Period" contained herein.
"CONSOLIDATED NET INCOME" shall mean, for any period, the net income
(or loss) of the Borrower and its Subsidiaries for such period, determined on a
consolidated basis (after any deduction for minority interests), provided that
(i) in determining Consolidated Net Income, the net income of any other Person
which is not a Subsidiary of the Borrower or is accounted for by the Borrower by
the equity method of accounting shall be included only to the extent of the
payment of cash dividends or cash distributions by such other Person to the
Borrower or a Subsidiary thereof during such period, (ii) the net income of any
Subsidiary of the Borrower shall be excluded to the extent that the declaration
or payment of cash dividends or similar cash distributions by that Subsidiary of
that net income is not at the date of determination permitted by operation of
its charter or any agreement, instrument or law applicable to such Subsidiary
and (iii) except for determinations expressly required to be made on a Pro Forma
Basis, the net income (or loss) of any other Person acquired by the Borrower or
a Subsidiary of the Borrower in a pooling of interests transaction for any
period prior to the date of such acquisition shall be excluded.
"CONSOLIDATED SENIOR INDEBTEDNESS" shall mean, at any time, the
amount of all Consolidated Indebtedness at such time, less the aggregate
principal amount of the Senior Subordinated Notes outstanding at such time.
"CONSOLIDATED SENIOR LEVERAGE RATIO" shall mean, at any time, the
ratio of (x) Consolidated Senior Indebtedness at such time to (y) Consolidated
EBITDA for the Test Period then most recently ended.
"CONSOLIDATED TOTAL LEVERAGE RATIO" shall mean, at any time, the
ratio of (x) Consolidated Indebtedness at such time to (y) Consolidated EBITDA
for the Test Period then most recently ended.
"CONTINGENT OBLIGATION" shall mean, as to any Person, any obligation
of such Person as a result of such Person being a general partner of any other
Person, unless the underlying obligation is expressly made non-recourse as to
such general partner, and any obligation of such Person guaranteeing or intended
to guarantee any Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any manner, whether
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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 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 the Borrower on
the Initial Borrowing Date and each other director if such director's election
to, or nomination for the election to, the Board of Directors of the Borrower is
recommended or approved by a majority of then continuing Directors.
"CREDIT DOCUMENTS" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note, the Subsidiaries Guaranty and each Security Document.
"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.
"DEBT SUBORDINATION" shall have the meaning provided in Section
14.01(e).
"DEFAULT" shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"DEFAULTING LENDER" shall mean any Lender with respect to which a
Lender Default is in effect.
"DIVIDEND" shall mean, with respect to any Person, that such Person
has declared or paid a dividend, distribution or returned any equity capital to
its stockholders, partners or members or authorized or made any other
distribution, payment or delivery of property (other than common equity of such
Person) or cash to its stockholders, partners or members as such, or redeemed,
retired, purchased or otherwise acquired, directly or indirectly, for a
consideration any shares of any class of its capital stock or any partnership or
membership interests outstanding on or after the Effective Date (or any options
or warrants issued by such Person with respect to its capital stock or other
equity interests), or set aside any funds for any of the foregoing purposes, or
shall have permitted any of its Subsidiaries to purchase or otherwise acquire
for a consideration any shares of any class of the capital stock or any
partnership or membership interests of such Person outstanding on or after the
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Effective Date (or any options or warrants issued by such Person with respect to
its capital stock or other equity interests). Without limiting the foregoing,
"Dividends" with respect to any Person shall also include all payments made or
required to be made by such Person with respect to any stock appreciation
rights, plans, equity incentive or achievement plans or any similar plans or
setting aside of any funds for the foregoing purposes.
"DOCUMENTS" shall mean the Credit Documents and the Senior
Subordinated Note Documents.
"DOLLARS" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"DRAWING" shall have the meaning provided in Section 2.05(b).
"EFFECTIVE DATE" shall have the meaning provided in Section 13.10.
"ELIGIBLE TRANSFEREE" shall mean and include a commercial bank, an
insurance company, a finance company, a financial institution, any fund that
invests in loans or any other "accredited investor" (as defined in Regulation D
of the Securities Act) but in any event excluding the Borrower and its
Subsidiaries.
"EMPLOYEE BENEFIT PLANS" shall have the meaning provided in Section
5.05.
"EMPLOYMENT AGREEMENTS" shall have the meaning provided in Section
5.05.
"END DATE" shall mean, for any Margin Reduction Period, the last day
of such Margin Reduction Period.
"ENTITLED LENDER" shall have the meaning provided in Section
13.06(b).
"ENTITLED PROPERTY" shall have the meaning provided in Section
13.06(b).
"ENVIRONMENTAL CLAIMS" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations and/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, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment due
to the presence of Hazardous Materials.
"ENVIRONMENTAL LAW" shall mean any Federal, state, foreign or local
statute, law, rule, regulation, ordinance, code, guideline, policy and 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, relating to the environment,
employee health and safety or Hazardous Materials, including, without
limitation, CERCLA; the Resource Conservation and Recovery Act, 42 U.S.Css. 6901
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et seq.; 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.; the
Occupational Safety and Health Act, 29 X.X.X.xx. 651 et seq.; the Clean Water
Act, 33 X.X.X.xx. 1251 et seq.; 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 from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at the
date of this Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA AFFILIATE" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the Borrower or a Subsidiary of the Borrower would
be deemed to be a "single employer" (i) within the meaning of Section 414(b),
(c), (m) or (o) of the Code or (ii) as a result of the Borrower or a Subsidiary
of the Borrower being or having been a general partner of such person.
"EURODOLLAR LOAN" shall mean each Loan (other than a Swingline Loan)
designated as such by the Borrower at the time of the incurrence thereof or
conversion thereto.
"EURODOLLAR RATE" shall mean (a) the offered quotation to
first-class banks in the New York interbank Eurodollar market by the
Administrative Agent for Dollar deposits of amounts in immediately available
funds comparable to the outstanding principal amount of the Eurodollar Loan of
the Administrative Agent (in its capacity as a Lender) 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 applicable
Interest Determination Date, divided (and rounded upward 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 period, the remainder of (a)
the sum of, without duplication, (i) Adjusted Consolidated Net Income for such
period and (ii) the decrease, if any, in Adjusted Consolidated Working Capital
from the first day to the last day of such period, minus (b) the sum of, without
duplication, (i) the aggregate amount of all Capital Expenditures made by the
Borrower and its Subsidiaries during such period (other than Capital
Expenditures to the extent financed with equity proceeds, Asset Sale proceeds,
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insurance proceeds or Indebtedness), (ii) the aggregate amount of all cash
payments made in respect of all Permitted Acquisitions consummated by the
Borrower and its Subsidiaries during such period (other than any such payments
to the extent financed with equity proceeds, Asset Sale proceeds, insurance
proceeds or Indebtedness), (iii) the aggregate amount of permanent principal
payments of Indebtedness for borrowed money of the Borrower and its Subsidiaries
during such period (other than (A) repayments of the Existing Credit Agreement
and Existing Senior Subordinated Loan Agreement pursuant to the Refinancing, (B)
repayments to the extent made with Asset Sale proceeds, equity proceeds,
insurance proceeds or Indebtedness and (C) repayments of Loans, provided that
repayments of Loans shall be deducted in determining Excess Cash Flow to the
extent such repayments were (x) required as a result of a Scheduled A Repayment
under Section 4.02(b) or (y) made as a voluntary prepayment with internally
generated funds (but in the case of a voluntary prepayment of Revolving Loans or
Swingline Loans, only to the extent accompanied by a voluntary reduction to the
Total Revolving Loan Commitment in an amount equal to such prepayment)), and
(iv) the increase, if any, in Adjusted Consolidated Working Capital from the
first day to the last day of such period.
"EXCESS CASH FLOW PAYMENT DATE" shall mean the date occurring 90
days after the last day of each fiscal year of the Borrower (commencing with the
fiscal year of the Borrower ended June 30, 2004).
"EXCESS CASH FLOW PAYMENT PERIOD" shall mean, with respect to any
Excess Cash Flow Payment Date, (i) in the case of the first Excess Cash Flow
Payment Date occurring after the Initial Borrowing Date, the period from and
including August 25, 2003 to and including June 30, 2004 and (ii) in the case of
each subsequent Excess Cash Payment Flow Date, the immediately preceding fiscal
year of the Borrower.
"EXISTING CREDIT AGREEMENT" shall mean the Second Amended and
Restated Revolving Credit Agreement, dated as of September 24, 2001, among the
Borrower, the lenders party thereto, SunTrust Bank, as administrative agent,
issuing bank and swingline lender, Xxxxxx Financial, Inc., as syndication agent,
and BNP Paribas, as documentation agent, as amended, modified or supplemented
through the Initial Borrowing Date.
"EXISTING INDEBTEDNESS" shall have the meaning provided in Section
7.21.
"EXISTING INDEBTEDNESS AGREEMENTS" shall have the meaning provided
in Section 5.05(viii).
"EXISTING PREFERRED STOCK" shall mean 5,000,000 shares of preferred
stock, no par value, of the Borrower, of which are outstanding (i) 5,000 shares
of Series A 8% cumulative convertible preferred stock, no par value, issued to
X.X. Xxxxxx Partners (BHCA), L.P., and (ii) 2,500 shares of Series B 8%
cumulative convertible preferred stock, no par value, issued to Paribas North
America, Inc.
"EXISTING SENIOR SUBORDINATED LOAN AGREEMENT" shall mean the Senior
Subordinated Note Purchase Agreement, dated as of October 31, 1997, among the
Borrower, the subsidiary guarantors party thereto and the investors party
thereto, as amended, modified or supplemented through the Initial Borrowing
Date.
"FACING FEE" shall have the meaning provided in Section 3.01(c).
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"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.
"FEES" shall mean all amounts payable pursuant to or referred to in
Section 3.01.
"FOREIGN PENSION PLAN" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States by the Borrower or any one or more of its
Subsidiaries primarily for the benefit of employees of the Borrower or such
Subsidiaries residing outside the United States, which plan, fund or other
similar program provides, or results in, retirement income, a deferral of income
in contemplation of retirement or payments to be made upon termination of
employment, and which plan is not subject to ERISA or the Code.
"FREE CASH FLOW" shall mean, for any period, Consolidated EBITDA for
such period minus Capital Expenditures incurred by the Borrower and its
Subsidiaries during such period (other than Capital Expenditures made pursuant
to Section 9.07(c)).
"HAZARDOUS MATERIALS" shall mean (a) any petroleum or petroleum
products, explosive or radioactive materials, asbestos in any form that is or
could become friable, urea formaldehyde foam insulation, dielectric fluid
containing levels of polychlorinated biphenyls, 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, the exposure to, or Release of which is prohibited, limited or
regulated by any governmental authority.
"INDEBTEDNESS" shall mean, as to any Person, without duplication,
(i) all indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money or for the deferred purchase price of property or
services, (ii) the maximum amount available to be drawn under all letters of
credit, bankers' acceptances and similar obligations issued for the account of
such Person and all unpaid drawings in respect of such letters of credit,
bankers' acceptances and similar obligations, (iii) all Indebtedness of the
types described in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition
secured by any Lien on any property owned by such Person, whether or not such
Indebtedness has been assumed by such Person (provided that, if the Person has
not assumed or otherwise become liable in respect of such Indebtedness, such
Indebtedness shall be deemed to be in an amount equal to the fair market value
of the property to which such Lien relates as determined in good faith by such
Person), (iv) the aggregate amount of all Capitalized Lease Obligations of such
Person, (v) all obligations of such Person to pay a specified purchase price for
goods or services, whether or not delivered or accepted, i.e., take-or-pay and
similar obligations, (vi) all Contingent Obligations of such Person, and (vii)
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all obligations under any Interest Rate Protection Agreement, any Other Hedging
Agreement or under any similar type of agreement. Notwithstanding the foregoing,
Indebtedness shall not include trade payables and accrued expenses incurred by
any Person in accordance with customary practices and in the ordinary course of
business of such Person.
"INITIAL BORROWING DATE" shall mean the date occurring on or after
the Effective Date on which the initial Borrowing of Loans occurs.
"INSOLVENCY PROCEEDINGS" shall have the meaning provided in Section
14.01(c).
"INTELLECTUAL PROPERTY" shall have the meaning provided in Section
7.20.
"INTERCOMPANY LOAN" shall have the meaning provided in Section
9.05(vi).
"INTERCOMPANY NOTE" shall mean a promissory note, in the form of
Exhibit I, evidencing Intercompany Loans.
"INTEREST DETERMINATION DATE" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"INTEREST PERIOD" shall have the meaning provided in Section 1.09.
"INTEREST RATE PROTECTION AGREEMENT" shall mean any interest rate
swap agreement, interest rate cap agreement, interest collar agreement, interest
rate hedging agreement or other similar agreement or arrangement.
"INVESTMENTS" shall have the meaning provided in Section 9.05.
"ISSUING LENDER" shall mean each of BNP Paribas (except as otherwise
provided in Section 12.09) and any other Lender reasonably acceptable to the
Administrative Agent which agrees to issue Letters of Credit hereunder. Any
Issuing Lender may, in its discretion, arrange for one or more Letters of Credit
to be issued by one or more Affiliates of such issuing Lender.
"L/C SUPPORTABLE OBLIGATIONS" shall mean (i) obligations of the
Borrower or any of its Subsidiaries with respect to workers compensation, surety
bonds and other similar statutory obligations and (ii) such other obligations of
the Borrower or any of its Subsidiaries as are reasonably acceptable to the
respective Issuing Lender and otherwise permitted to exist pursuant to the terms
of this Agreement (other than obligations in respect of the Senior Subordinated
Notes).
"LEAD ARRANGER" shall mean BNP Paribas, in its capacity as Lead
Arranger and Book Manager and any successor thereto.
"LEASEHOLDS" of any Person shall mean 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.
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"LENDER" shall mean each financial institution listed on Schedule I,
as well as any Person that becomes a "Lender" hereunder pursuant to Section 1.13
or 13.04(b).
"LENDER DEFAULT" shall mean (i) the refusal (which has not been
retracted) or the failure of a Lender to make available its portion of any
Borrowing (including any Mandatory Borrowing) or to fund its portion of any
unreimbursed payment under Section 2.04(c) or (ii) a Lender having notified in
writing the Borrower and/or the Administrative Agent that such Lender does not
intend to comply with its obligations under Section 1.01(a), 1.01(b), 1.01(c),
1.01(e) or 2.
"LETTER OF CREDIT" shall have the meaning provided in Section
2.01(a).
"LETTER OF CREDIT FEE" shall have the meaning provided in Section
3.01(b).
"LETTER OF CREDIT OUTSTANDINGS" shall mean, at any time, the sum of
(i) the Stated Amount of all outstanding Letters of Credit and (ii) the
aggregate amount of all Unpaid Drawings in respect of all Letters of Credit.
"LETTER OF CREDIT REQUEST" shall have the meaning provided in
Section 2.03(a).
"LIEN" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"LIEN ENFORCEMENT ACTION" means (i) any action by the Administrative
Agent or the Collateral Agent to foreclose on the Liens on the Collateral
granted to secure the Obligations, (ii) any action by the Administrative Agent
or the Collateral Agent to take possession of (other than for purposes of
perfection of security interests or to take exclusive control of deposit
accounts), sell or otherwise realize (judicially or non-judicially) upon any of
the Collateral granted to secure the Obligations (including, without limitation,
by setoff or notification of account debtors), and/or (iii) the commencement by
the Administrative Agent or the Collateral Agent of any legal proceedings
against or with respect to the Collateral to facilitate the actions described in
(i) and (ii) above.
"LIEN SUBORDINATION" shall have the meaning provided in Section
14.01(e).
"LOAN" shall mean each Term Loan, each Revolving Loan and each
Swingline Loan.
"LOAN OBLIGATIONS" shall mean all Loans, reimbursement obligations
and all other amounts owing to the Administrative Agent, the Collateral Agent,
any Issuing Lender, the Swingline Lender or any Lender pursuant to the terms of
this Agreement.
"MANAGEMENT AGREEMENTS" shall have the meaning provided in Section
5.05.
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"MANDATORY BORROWING" shall have the meaning provided in Section
1.01(e).
"MARGIN REDUCTION PERIOD" shall mean each period which shall
commence on the date upon which the respective officer's certificate is
delivered pursuant to Section 8.01(f) (together with the related financial
statements pursuant to Section 8.01(b) or (c), as the case may be) and which
shall end on the date of actual delivery of the next officer's certificate
pursuant to Section 8.01(f) (and related financial statements) or the latest
date on which such next officer's certificate (and related financial statements)
is required to be so delivered; it being understood that the first Margin
Reduction Period shall commence with the delivery of the Borrowers' financial
statements (and related officer's certificate) in respect of its fiscal quarter
of the Borrower ended June 30, 2004.
"MARGIN STOCK" shall have the meaning provided in Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean (i) a material adverse effect
on the business, operations, property, projections, assets, liabilities (whether
contractual, environmental or otherwise), condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole or (ii) a
material adverse effect (x) on the rights or remedies of the Lenders or the
Administrative Agent hereunder or under any other Credit Document or (y) on the
ability of any Credit Party to perform its obligations to the Lenders or the
Administrative Agent hereunder or under any other Credit Document.
"MATERIAL CONTRACT" shall mean any contract or other agreement,
written or oral, of the Borrower or its Subsidiaries the failure to comply with
which could reasonably be expected to have a Material Adverse Effect.
"MATURITY DATE" shall mean, with respect to the relevant Tranche of
Loans, the A Term Loan Maturity Date, the B Term Loan Maturity Date, the
Revolving Loan Maturity Date or the Swingline Expiry Date, as the case may be.
"MAXIMUM SWINGLINE AMOUNT" shall mean $1,000,000.
"MINIMUM BORROWING AMOUNT" shall mean (i) for Term Loans,
$10,000,000, (ii) for Revolving Loans, $500,000, and (iii) for Swingline Loans,
$100,000.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc.
"MORTGAGE" shall mean a mortgage, leasehold mortgage, deed of trust,
leasehold deed of trust, deed to secure debt, leasehold deed to secure debt or
similar security instrument.
"MORTGAGE POLICY" shall mean a mortgage title insurance policy or a
binding commitment with respect thereto.
"MORTGAGED PROPERTY" shall mean any Real Property owned or leased by
the Borrower or any of its Subsidiaries which is encumbered (or required to be
encumbered) by a Mortgage.
"NAIC" shall mean the National Association of Insurance
Commissioners.
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"NET DEBT PROCEEDS" shall mean, with respect to any incurrence of
Indebtedness for borrowed money, the cash proceeds (net of underwriting
discounts and commissions and other reasonable costs associated therewith)
received by the respective Person from the respective incurrence of such
Indebtedness for borrowed money.
"NET EQUITY PROCEEDS" shall mean, with respect to each issuance or
sale of any equity by any Person or any capital contribution to such Person, the
cash proceeds (net of underwriting discounts and commissions and other
reasonable costs associated therewith) received by such Person from the
respective sale or issuance of its equity or from the respective capital
contribution.
"NET INSURANCE PROCEEDS" shall mean, with respect to any Recovery
Event, the cash proceeds (net of reasonable costs and taxes incurred in
connection with such Recovery Event) received by the respective Person in
connection with such Recovery Event.
"NET SALE PROCEEDS" shall mean, for any Asset Sale, 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 such sale of assets, net of the reasonable costs of such sale
(including fees and commissions, payments of unassumed liabilities relating to
the assets sold and required payments of any Indebtedness (other than
Indebtedness secured pursuant to the Security Documents) which is secured by the
respective assets which were sold), and the incremental taxes paid or payable as
a result of such Asset Sale.
"NON-COMPETE AGREEMENTS" shall have the meaning provided in Section
5.05.
"NON-DEFAULTING LENDER" and "Non-Defaulting RL Lender" shall mean
and include each Lender or RL Lender, as the case may be, other than a
Defaulting Lender.
"NOTE" shall mean each A Term Note, each B Term Note, each Revolving
Note and the Swingline Note.
"NOTICE OF BORROWING" shall have the meaning provided in Section
1.03(a).
"NOTICE OF CONVERSION/CONTINUATION" shall have the meaning provided
in Section 1.06.
"NOTICE OFFICE" shall mean (i) for credit notices, the office of the
Administrative Agent located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx Xxxxx, Telephone No.: (000) 000-0000, and Telecopier No.: (212)
841-2861, and (ii) for operational notices, the office of the Administrative
Agent located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Sophia
Crown, Telephone No.: (000) 000-0000, and Telecopier No.: (000) 000-0000, or
such other office or person as the Administrative Agent may hereafter designate
in writing as such to the other parties hereto.
"OBLIGATIONS" shall mean all Obligations (as defined in the Security
Agreement) owing by any Credit Party to any Secured Creditor and shall include,
without limitation, all now existing or hereafter arising debts, obligations,
covenants, and duties of payment or performance of every kind, matured or
unmatured, direct or contingent, owing, arising, due, or payable to any Secured
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Creditor by any Credit Party arising out of this Agreement or any other Credit
Document, including, without limitation, all obligations to repay principal or
interest on the Loans and all obligations related to Letters of Credit, and to
pay interest, fees, costs, charges, expenses, professional fees, and all sums
chargeable to the Borrower or for which the Borrower is liable as indemnitor
under the Credit Documents, whether or not evidenced by any note or other
instrument.
"OTHER HEDGING AGREEMENTS" shall mean any foreign exchange
contracts, currency swap agreements, commodity agreements or other similar
arrangements, or arrangements designed to protect against fluctuations in
currency values or commodity prices.
"PARTICIPANT" shall have the meaning provided in Section 2.04(a).
"PAYMENT OFFICE" shall mean the office of the Administrative Agent
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Sophia Crown
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.
"PERMITTED ACQUISITION" shall mean the acquisition by the Borrower
or a Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary
Guarantor of an Acquired Entity or Business (including by way of merger of such
Acquired Entity or Business with and into the Borrower (so long as the Borrower
is the surviving corporation) or a Wholly-Owned Domestic Subsidiary of the
Borrower which is a Subsidiary Guarantor (so long as the Subsidiary Guarantor is
the surviving corporation)), provided that (in each case) (A) the consideration
paid or to be paid by the Borrower or such Wholly-Owned Domestic Subsidiary
consists solely of cash (including proceeds of Revolving Loans or Swingline
Loans), the issuance or incurrence of Indebtedness otherwise permitted by
Section 9.04 and the assumption/acquisition of any Indebtedness (calculated at
face value) which is permitted to remain outstanding in accordance with the
requirements of Section 9.04, (B) in the case of the acquisition of 100% of the
capital stock or other equity interests of any Person (including by way of
merger), such Person shall own no capital stock or other equity interests of any
other Person (excluding de minimis amounts) unless such Person owns 100% of the
capital stock or other equity interests of such other Person, (C) all of the
business, division or product line acquired pursuant to the respective Permitted
Acquisition, or the business of the Person acquired pursuant to the respective
Permitted Acquisition and its Subsidiaries taken as a whole, is in the United
States, (D) the Acquired Entity or Business acquired pursuant to the respective
Permitted Acquisition is in a business permitted by Section 9.17 and (E) all
applicable requirements of Sections 8.16, 9.02 and 9.18 applicable to Permitted
Acquisitions are satisfied. Notwithstanding anything to the contrary contained
in the immediately preceding sentence, an acquisition which does not otherwise
meet the requirements set forth above in the definition of "Permitted
Acquisition" shall constitute a Permitted Acquisition if, and to the extent, the
Required Lenders agree in writing, prior to the consummation thereof, that such
acquisition shall constitute a Permitted Acquisition for purposes of this
Agreement.
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"PERMITTED ACQUISITION BASKET AMOUNT" shall mean, for each fiscal
year of the Borrower, $2,000,000 (or, in the case of the fiscal year of the
Borrower ending June 30, 2004, $3,000,000, but only to the extent such
incremental $1.0 million over the annual basket provided above is used to
acquire the assets of Coca-Cola Enterprises pursuant to a Permitted
Acquisition).
"PERMITTED ENCUMBRANCE" shall mean, with respect to any Mortgaged
Property, such exceptions to title as are set forth in the Mortgage Policy
delivered with respect thereto, all of which exceptions must be acceptable to
the Administrative Agent in its reasonable discretion.
"PERMITTED LIENS" shall have the meaning provided in Section 9.01.
"PERSON" shall mean any individual, partnership, joint venture,
firm, corporation, association, limited liability company, trust or other
enterprise or any government or political subdivision or any agency, department
or instrumentality thereof.
"PLAN" shall mean any pension plan as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Borrower or a Subsidiary of the Borrower or an
ERISA Affiliate and each such plan for the five year period immediately
following the latest date on which the Borrower, a Subsidiary of the Borrower or
an ERISA Affiliate maintained, contributed to or had an obligation to contribute
to such plan.
"PLEDGE AGREEMENT" shall have the meaning provided in Section 5.10.
"PLEDGE AGREEMENT COLLATERAL" shall mean all "Collateral" as defined
in the Pledge Agreement.
"PLEDGEE" shall have the meaning provided in the Pledge Agreement.
"PRIME LENDING RATE" shall mean the rate which the Administrative
Agent 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 by the Administrative Agent, which may
make commercial loans or other loans at rates of interest at, above or below the
Prime Lending Rate.
"PRO FORMA BASIS" shall mean, in connection with any calculation of
compliance with any financial covenant or financial term, the calculation
thereof after giving effect on a pro forma basis to (x) the incurrence of any
Indebtedness (other than revolving Indebtedness, except to the extent same is
incurred to refinance other outstanding Indebtedness or to finance a Permitted
Acquisition) after the first day of the relevant Calculation Period as if such
Indebtedness had been incurred (and the proceeds thereof applied) on the first
day of the relevant Calculation Period, (y) the permanent repayment of any
Indebtedness (other than revolving Indebtedness except to the extent accompanied
by a corresponding permanent commitment reduction) after the first day of the
relevant Calculation Period as if such Indebtedness had been retired or redeemed
on the first day of the relevant Calculation Period and/or (z) the Permitted
Acquisition, if any, then being consummated as well as any other Permitted
Acquisition consummated after the first day of the relevant Calculation Period
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and on or prior to the date of the respective Permitted Acquisition then being
effected, as the case may be, with the following rules to apply in connection
therewith:
(i) all Indebtedness (x) (other than revolving Indebtedness, except
to the extent same is incurred to refinance other outstanding Indebtedness
or to finance a Permitted Acquisition) incurred or issued after the first
day of the relevant Calculation Period (whether incurred to finance a
Permitted Acquisition, to refinance Indebtedness or otherwise) shall be
deemed to have been incurred or issued (and the proceeds thereof applied)
on the first day of the respective Calculation Period and remain
outstanding through the date of determination and (y) (other than
revolving Indebtedness except to the extent accompanied by a corresponding
permanent commitment reduction) permanently retired or redeemed after the
first day of the relevant Calculation Period shall be deemed to have been
retired or redeemed on the first day of the respective Calculation Period
and remain retired through the date of determination;
(ii) all Indebtedness assumed to be outstanding pursuant to
preceding clause (i) shall be deemed to have borne interest at (x) the
rate applicable thereto, in the case of fixed rate indebtedness, or (y) at
the rate which would have been applicable thereto on the last day of the
respective Calculation Period, in the case of floating rate Indebtedness
(although interest expense with respect to any Indebtedness for periods
while same was actually outstanding during the respective period shall be
calculated using the actual rates applicable thereto while same was
actually outstanding); and
(iii) in making any determination of Consolidated EBITDA, pro forma
effect shall be given to any Permitted Acquisition consummated during the
periods described above, with such Consolidated EBITDA to be determined as
if such Permitted Acquisition was consummated on the first day of the
relevant Calculation Period, but without taking into account any pro forma
cost savings and expenses.
"PROJECTIONS" shall mean the projections, dated June 2, 2003, that
were provided at the annual bank meeting and were prepared by or on behalf of
the Borrower in connection with the Transaction and delivered to the
Administrative Agent and the Lenders prior to the Initial Borrowing Date.
"PURCHASE DATE" shall have the meaning provided in Section 14.01(h).
"PURCHASE NOTICE" shall have the meaning provided in Section
14.01(h).
"PURCHASING LENDER" shall have the meaning provided in Section
14.01(h).
"QUARTERLY PAYMENT DATE" shall mean the last Business Day of each
September, December, March and June occurring after the Initial Borrowing Date,
commencing on September 30, 2003.
"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.
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"RECOVERY EVENT" shall mean the receipt by the Borrower or any of
its Subsidiaries of any cash insurance proceeds or condemnation awards payable
(i) by reason of theft, loss, physical destruction, damage, taking or any other
similar event with respect to any property or assets of the Borrower or any of
its Subsidiaries and (ii) under any policy of insurance required to be
maintained under Section 8.03.
"REFINANCING" shall mean the repayment of all outstanding loans and
all other obligations (and the termination of all commitments) under the
Existing Credit Agreement and Existing Senior Subordinated Loan Agreement, as
described in Section 5.07.
"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 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" shall mean actively or passively disposing, discharging,
injecting, spilling, pumping, leaking, leaching, dumping, emitting, escaping,
emptying, pouring, seeping, migrating or the like, into or upon any land or
water or air, or otherwise entering into the indoor or outdoor environment.
"REPLACED LENDER" shall have the meaning provided in Section 1.13.
"REPLACEMENT LENDER" shall have the meaning provided in Section
1.13.
"REPORTABLE EVENT" shall mean an event described in Section 4043(c)
of ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
..22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
"REQUIRED B TERM LOAN LENDERS" shall mean Non-Defaulting Lenders,
the sum of whose outstanding B Term Loans (or, if prior to the termination of
the Total B Term Loan Commitment, B Term Loan Commitments) represent an amount
greater than 50% of the sum of all outstanding B Term Loans (or, if prior to the
termination of the Total B Term Loan Commitment, the B Term Loan Commitments) of
all Non-Defaulting Lenders.
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"REQUIRED LENDERS" shall mean Non-Defaulting Lenders the sum of
whose outstanding Term Loans and Revolving Loan Commitments (or after the
termination thereof, outstanding Revolving Loans and RL Percentages of (x)
outstanding Swingline Loans and (y) Letter of Credit Outstandings) represent an
amount greater than 55% of the sum of (i) all outstanding Term Loans of
Non-Defaulting Lenders and (ii) the Total Revolving Loan Commitment less the
Revolving Loan Commitments of all Defaulting Lenders (or after the termination
thereof, the sum of then total outstanding Revolving Loans of Non-Defaulting
Lenders and the aggregate RL Percentages of all Non-Defaulting Lenders of the
total outstanding Swingline Loans and Letter of Credit Outstandings at such
time).
"REQUIRED SENIOR LENDERS" shall mean Non-Defaulting Lenders the sum
of whose outstanding A Term Loans and Revolving Loan Commitments (or after the
termination thereof , outstanding Revolving Loans and RL Percentages of (x)
outstanding Swingline Loans and (y) Letter of Credit Oustandings) represent an
amount greater than 662/3% of the sum of (i) all outstanding A Term Loans of
Non-Defaulting Lenders and (ii) the Total Revolving Loan Commitment less the
Revolving Loan Commitment of all Defaulting Lenders and the aggregate RL
Percentages of all Non-Defaulting Lenders of the total outstanding Swingline
Loans and Letter of Credit Outstandings at such time). If an action specified
herein requires the approval of the Required Senior Lenders at a time when the
Senior Loans have been repaid in full and all Commitments regarding the Senior
Loans have terminated, then the action shall be deemed to require, instead, the
approval of the Required Lenders.
"RETURNS" shall have the meaning provided in Section 7.09.
"REVOLVING LOAN" shall have the meaning provided in Section 1.01(c).
"REVOLVING LOAN COMMITMENT" shall mean, for each Lender, the amount
set forth opposite such Lender's name in Schedule I directly below the column
entitled "Revolving Loan Commitment," as same may be (x) reduced from time to
time or terminated pursuant to Sections 3.02, 3.03 and/or 10, as applicable, or
(y) adjusted from time to time as a result of assignments to or from such Lender
pursuant to Section 1.13 or 13.04(b).
"REVOLVING LOAN MATURITY DATE" shall mean August 25, 2007.
"REVOLVING NOTE" shall have the meaning provided in Section 1.05(a).
"RL LENDER" shall mean each Lender with a Revolving Loan Commitment
or with outstanding Revolving Loans.
"RL PERCENTAGE" of any RL Lender at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such RL Lender at such time and the denominator of which is the
Total Revolving Loan Commitment at such time, provided that if the RL Percentage
of any RL Lender is to be determined after the Total Revolving Loan Commitment
has been terminated, then the RL Percentages of such RL Lender shall be
determined immediately prior (and without giving effect) to such termination.
"S&P" shall mean Standard & Poor's Ratings Services, a
division of the McGraw Hill Company, Inc., and any successor owner of such
division.
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"SCHEDULED A REPAYMENT" shall have the meaning provided in Section
4.02(b).
"SCHEDULED A REPAYMENT DATE" shall have the meaning provided in
Section 4.02(b).
"SEC" shall have the meaning provided in Section 8.01(h).
"SEC DOCUMENTS" shall have the meaning provided in Section 7.05(g).
"SECTION 4.04(b)(ii) CERTIFICATE" shall have the meaning provided in
Section 4.04(b)(ii).
"secured creditors" shall have the meaning assigned that term in the
respective Security Documents.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"SECURITIES EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"SECURITY AGREEMENT" shall have the meaning provided in Section
5.11.
"SECURITY AGREEMENT COLLATERAL" shall mean all "Collateral" as
defined in the Security Agreement.
"SECURITY DOCUMENT" shall mean and include each of the Security
Agreement, the Pledge Agreement, each Mortgage and, after the execution and
delivery thereof, each Additional Security Document.
"SENIOR CREDITORS" shall mean and include each Secured Creditor
other than a B Term Loan Lender.
"SENIOR LENDERS" shall mean, collectively, the RL Lenders, the
Swingline Lender and the A Term Loan Lenders.
"SENIOR LOAN MATURITY DATE" shall mean August 25, 2007.
"SENIOR LOAN OBLIGATIONS" shall mean all Loan Obligations
constituting Senior Obligations.
"SENIOR LOANS" shall mean, together, the Revolving Loans, the
Swingline Loans and the A Term Loans.
"SENIOR OBLIGATIONS" shall mean all Obligations that are not B Term
Loan Obligations.
"SENIOR SUBORDINATED NOTE DOCUMENTS" shall mean the Senior
Subordinated Note Purchase Agreement, the Senior Subordinated Notes and each
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other document or agreement (including, without limitation any and all
guaranties and warrant agreements) relating to the issuance of the Senior
Subordinated Notes.
"SENIOR SUBORDINATED NOTE PURCHASE AGREEMENT" shall mean the Senior
Subordinated Note Purchase Agreement, dated as of August 25, 2003, among the
Borrower and the investors named therein, as in effect on the Initial Borrowing
Date and as the same may be amended, modified or supplemented from time to time
in accordance with the terms hereof and thereof.
"SENIOR SUBORDINATED NOTES" shall mean the Borrower's 16.3% Senior
Subordinated Notes due February 27, 2009 issued pursuant to the Senior
Subordinated Note Purchase Agreement, bearing interest at a rate of 16.3% per
annum (12% of which shall be payable in cash and 4.3% of which shall be payable
in kind), as the same may be modified, amended or supplemented from time to time
in accordance with the terms hereof and thereof.
"SHAREHOLDERS' AGREEMENTS" shall have the meaning provided in
Section 5.05.
"START DATE" shall mean, with respect to any Margin Reduction
Period, the first day of such Margin Reduction Period.
"STATED AMOUNT" of each Letter of Credit shall mean, at any time,
the maximum amount available to be drawn thereunder (in each case determined
without regard to whether any conditions to drawing could then be met).
"SUBSIDIARIES GUARANTY" shall mean the Subsidiaries Guaranty in the
form of Exhibit M, as amended, modified, restated and/or supplemented from time
to time in accordance with the terms hereof and thereof.
"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, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time.
"SUBSIDIARY GUARANTOR" shall mean each Subsidiary of the Borrower
established, created or acquired after the Initial Borrowing Date.
"SWINGLINE EXPIRY DATE" shall mean that date which is five Business
Days prior to the Revolving Loan Maturity Date.
"SWINGLINE LENDER" shall mean BNP Paribas for so long as BNP Paribas
is the Administrative Agent hereunder and thereafter shall mean the successor
Administrative Agent in its individual capacity.
"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 1.05(a).
"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 Persons as
Lenders pursuant to Section 13.04(b)) has been completed.
"TAX SHARING AGREEMENTS" shall have the meaning provided in Section
5.05.
"TAXES" shall have the meaning provided in Section 4.04(a).
"TERM LOAN" shall mean the A Term Loans and B Term Loans.
"TEST DATE" shall mean, with respect to any Start Date, the last day
of the most recent fiscal quarter of the Borrower ended immediately prior to
such Start Date.
"TEST PERIOD" shall mean each period of four consecutive fiscal
quarters of the Borrower then last ended (in each case taken as one accounting
period); provided however that (i) for purposes of any determination of
compliance with Section 9.09 or 9.13, the term "Test Period" shall mean the
fiscal quarter of the Borrower then last ended (taken as one accounting period)
and (ii) for purposes of any determination of compliance with Section 9.12 at
any time on or prior to June 30, 2004, the period commencing on July 1, 2003 and
ending on the last day of the fiscal quarter of the Borrower then last ended
(taken as one accounting period). Notwithstanding anything to the contrary
contained above or in Section 13.07 or otherwise required by United States
generally accepted accounting principles, for purposes of any calculation of
Consolidated Interest Expense pursuant to Section 9.08 and Consolidated EBITDA
required in determining the Consolidated Total Leverage Ratio or the
Consolidated Senior Leverage Ratio at any time on or prior to September 30,
2004, the term "Test Period" shall mean a one-year period ending on the last day
of the fiscal quarter then last ended, with any calculations of (x) Consolidated
Interest Expense required in determining compliance with Section 9.08 to be made
on a pro forma basis in accordance with, and to the extent provided in, the
immediately succeeding sentence and (y) Consolidated EBITDA required in
determining the Consolidated Total Leverage Ratio and the Consolidated Senior
Leverage Ratio (including for purposes of the Applicable Margin) to be made on a
pro forma basis in accordance with, and to the extent provided in, the second
succeeding sentence. To the extent the respective Test Period (i) includes the
fiscal quarter of the Borrower ended December 31, 2002, Consolidated Interest
Expense for such fiscal quarter shall be deemed to be $1,873,000, (ii) includes
the fiscal quarter of the Borrower ended March 31, 2003, Consolidated Interest
Expense for such fiscal quarter shall be deemed to be $1,766,000, (iii) includes
the fiscal quarter of the Borrower ended June 30, 2003, Consolidated Interest
Expense for such fiscal quarter shall be deemed to be $1,738,000 and (iv)
includes the fiscal quarter of the Borrower ended September 30, 2003,
Consolidated Interest Expense shall be determined using actual Consolidated
Interest Expense for such period determined in accordance with the definition
thereof. To the extent the respective Test Period (i) includes the fiscal
quarter of the Borrower ended December 31, 2002, Consolidated EBITDA for such
fiscal quarter shall be deemed to be $4,421,000, (ii) includes the fiscal
quarter of the Borrower ended March 31, 2003, Consolidated EBITDA for such
fiscal quarter shall be deemed to be $5,436,000, (iii) includes the fiscal
quarter of the Borrower ended June 30, 2003, Consolidated EBITDA for such fiscal
quarter shall be deemed to be $6,285,000 and (iv) includes the fiscal quarter of
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the Borrower ended September 30, 2003, Consolidated EBITDA shall be determined
using actual Consolidated EBITDA for such period determined in accordance with
the definition thereof; provided that any additional adjustments required by the
definition of Pro Forma Basis for occurrences after the Initial Borrowing Date
shall also be made. "Total A Term Loan Commitment" shall mean, at any time, the
sum of the A Term Loan Commitments of each of the Lenders at such time.
"TOTAL B TERM LOAN COMMITMENT" shall mean, at any time, the sum of
the B Term Loan Commitments of each of the Lenders at such time.
"TOTAL COMMITMENT" shall mean, at any time, the sum of the
Commitments of each of the Lenders at such time.
"TOTAL REVOLVING LOAN COMMITMENT" shall mean, at any time, the sum
of the Revolving Loan Commitments of each of the Lenders at such time.
"TOTAL UNUTILIZED REVOLVING LOAN COMMITMENT" shall mean, at any
time, an amount equal to the remainder of (x) the Total Revolving Loan
Commitment then in effect less (y) the sum of the aggregate principal amount of
all Revolving Loans and Swingline Loans then outstanding plus the aggregate
amount of all Letter of Credit Outstandings.
"TRANCHE" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being four separate Tranches,
i.e., A Term Loans, B Term Loans, Revolving Loans and Swingline Loans. ----
"TRANSACTION" shall mean, collectively, (i) the issuance of the
Senior Subordinated Notes, (ii) the consummation of the Refinancing, (iii) the
entering into of the Credit Documents and the incurrence of Loans on the Initial
Borrowing Date and (iv) the payment of all fees and expenses in connection with
the foregoing.
"TRIGGERING EVENT" shall mean any of the following: (i) the
acceleration of the Loan Obligations, (ii) any failure of the Borrower to repay
the Senior Loan Obligations on the Senior Loan Maturity Date, or (iii) the
taking by the Administrative Agent or Collateral Agent of any Lien Enforcement
Action.
"TRIGGERING EVENT NOTICE" shall mean any notice given by the
Administrative Agent or the Collateral Agent to the Lenders regarding the
occurrence of a Triggering Event.
"TYPE" shall mean the type of Loan determined with regard to the
interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"UNFUNDED CURRENT LIABILITY" of any Plan shall mean the amount, if
any, by which the value of the accumulated plan benefits under the Plan
determined on a plan termination basis in accordance with actuarial assumptions
at such time consistent with those prescribed by the PBGC for purposes of
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Section 4044 of ERISA, exceeds the fair market value of all plan assets
allocable to such liabilities under Title IV of ERISA (excluding any accrued but
unpaid contribution).
"UNITED STATES" AND "U.S." shall each mean the United States of
America.
"UNPAID DRAWING" shall have the meaning provided in Section 2.05(a).
"UNUTILIZED REVOLVING LOAN COMMITMENT" shall mean, with respect to
any Lender at any time, such Lender's Revolving Loan Commitment at such time
less the sum of (i) the aggregate outstanding principal amount of all Revolving
Loans made by such Lender at such time and (ii) such Lender's RL Percentage of
the Letter of Credit Outstandings at such time.
"WARN ACT" shall have the meaning provided in Section 7.19.
"WHOLLY-OWNED DOMESTIC SUBSIDIARY" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is incorporated or organized in the
United States or any State thereof.
"WHOLLY-OWNED SUBSIDIARY" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock 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.
SECTION 12. THE ADMINISTRATIVE AGENT.
12.01 APPOINTMENT. The Lenders hereby irrevocably designate and
appoint BNP Paribas as Administrative Agent (for purposes of this Section 12 and
Section 13.01, the term "Administrative Agent" also shall include BNP Paribas in
its capacity as Collateral Agent pursuant to the Security Documents) to act as
specified herein and in the other Credit Documents. Each Lender hereby
irrevocably authorizes, and each holder of any Note by the acceptance of such
Note shall be deemed irrevocably to authorize, the 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 respective
duties hereunder by or through its 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 in the other Credit Documents. Neither the Administrative Agent nor any of
its officers, directors, agents, employees or affiliates shall be liable for any
action taken or omitted by it or them hereunder or under any other Credit
Document or in connection herewith or therewith, unless caused by its or their
gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision). The duties of the
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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 Lender or the holder
of any Note; and nothing in this Agreement or in 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 Lender and the holder
of each Note, to the extent it deems appropriate, has made and shall continue to
make (i) its own independent investigation of the financial condition and
affairs of the Borrower and its Subsidiaries in connection with the making and
the continuance of the Loans 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 Lender or the holder
of any Note with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter. The Administrative Agent shall not be responsible to any
Lender or the holder of any Note for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority or
sufficiency of this Agreement or any other Credit Document or the financial
condition of the Borrower or any of 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 or any of 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
Administrative Agent requests instructions from the Required Lenders with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, 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 Lenders;
and the Administrative Agent shall not incur liability to any Lender by reason
of so refraining. Without limiting the foregoing, neither any Lender nor 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 Lenders.
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 Credit Document and its duties hereunder and thereunder, upon advice
of counsel selected by the Administrative Agent.
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12.06 INDEMNIFICATION. To the extent the Administrative Agent (or
any affiliate thereof) is not reimbursed and indemnified by the Borrower, the
Lenders will reimburse and indemnify the Administrative Agent (and any affiliate
thereof) in proportion to their respective "percentage" as used in determining
the Required Lenders (determined as if there were no Defaulting Lenders) for and
against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, costs, expenses or disbursements of whatsoever kind
or nature which may be imposed on, asserted against or incurred by the
Administrative Agent (or any affiliate thereof) in performing its duties
hereunder or under any other Credit Document or in any way relating to or
arising out of this Agreement or any other Credit Document; provided that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, claims, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's (or such affiliate's)
gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).
12.07 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. With
respect to its obligation to make Loans, or issue or participate in Letters of
Credit, under this Agreement, the Administrative Agent shall have the rights and
powers specified herein for a "Lender" and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
term "Lender," "Required Lenders," "Required Senior Lenders," "Required B Term
Loan Lenders," "holders of Notes" or any similar terms shall, unless the context
clearly indicates otherwise, include the Administrative Agent in its respective
individual capacities. The Administrative Agent and its affiliates may accept
deposits from, lend money to, and generally engage in any kind of banking,
investment banking, trust or other business with, or provide debt financing,
equity capital or other services (including financial advisory services) to any
Credit Party or any Affiliate of any Credit Party (or any Person engaged in a
similar business with any Credit Party or any Affiliate thereof) as if they were
not performing the duties specified herein, and may accept fees and other
consideration from any Credit Party or any Affiliate of any Credit Party for
services in connection with this Agreement and otherwise without having to
account for the same to the Lenders.
12.08 HOLDERS. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or endorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
12.09 RESIGNATION BY THE ADMINISTRATIVE AGENT. (a) The
Administrative Agent may resign from the performance of all its respective
functions and duties hereunder and/or under the other Credit Documents at any
time by giving 15 Business Days' prior written notice to the Lenders and, unless
a Default or an Event of Default under Section 10.05 then exists, the Borrower.
Any such resignation by an Administrative Agent hereunder shall also constitute
its resignation as an Issuing Lender and the Swingline Lender, in which case the
resigning Administrative Agent (x) shall not be required to issue any further
Letters of Credit or make any additional Swingline Loans hereunder and (y) shall
maintain all of its rights as Issuing Lender or Swingline Lender, as the case
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may be, with respect to any Letters of Credit issued by it, or Swingline Loans
made by it, prior to the date of such resignation. 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 by the Administrative Agent,
the Required Lenders shall appoint a successor Administrative Agent hereunder or
thereunder who shall be a commercial bank or trust company reasonably acceptable
to the Borrower, which acceptance shall not be unreasonably withheld or delayed
(provided that the Borrower's approval shall not be required if an Event of
Default then exists).
(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 (which consent shall not be unreasonably withheld or
delayed, provided that the Borrower's consent shall not be required if an Event
of Default then exists), shall then appoint a successor Administrative Agent who
shall serve as Administrative Agent hereunder or thereunder until such time, if
any, as the Required Lenders appoint a successor Administrative Agent as
provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 20th 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 Required Lenders 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 Required Lenders appoint a
successor Administrative Agent as provided above.
(e) Upon a resignation of the Administrative Agent pursuant to this
Section 12.09, the Administrative Agent shall remain indemnified to the extent
provided in this Agreement and the other Credit Documents and the provisions of
this Section 12 shall continue in effect for the benefit of the Administrative
Agent for all of its actions and inactions while serving as the Administrative
Agent.
12.10 SYNDICATION AGENT AND DOCUMENTATION AGENT. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement or in any other
Credit Document, neither The Royal Bank of Scotland plc solely in its capacity
as Syndication Agent hereunder nor Xxxxxxx Xxxxx Capital, a division of Xxxxxxx
Xxxxx Business Financial Services Inc., solely in its capacity as Documentation
Agent hereunder, shall have any duties or responsibilities under the Credit
Documents, nor shall any such Person have or be deemed to have any fiduciary
relationship with any Lender in respect of the Credit Documents, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Credit Document or otherwise exist
against any such Person in respect of such capacities.
SECTION 13. MISCELLANEOUS.
13.01 PAYMENT OF EXPENSES, ETC. The Borrower hereby agrees to: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and disbursements of White &
Case LLP and the Administrative Agent's other counsel and consultants) in
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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, of
the Administrative Agent in connection with its syndication efforts with respect
to this Agreement and of the Administrative Agent and, after the occurrence of
an Event of Default, each of the Issuing Lenders and the Lenders in connection
with the enforcement of this Agreement and the other Credit Documents and the
documents and instruments referred to herein and therein or in connection with
any refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a "work-out" or pursuant to any insolvency or
bankruptcy proceedings (including, in each case without limitation, the
reasonable fees and disbursements of counsel and consultants for the
Administrative Agent and, after the occurrence of an Event of Default, counsel
for each of the Issuing Lenders and the Lenders); (ii) pay and hold each of the
Agents, each of the Issuing Lenders, each of the Lenders and the Lead Arranger
harmless from and against any and all present and future stamp, excise and other
similar documentary taxes with respect to the foregoing matters and save each of
the Agents, each of the Issuing Lenders, each of the Lenders and the Lead
Arranger harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable to
such Agent, such Issuing Lender, such Lender or the Lead Arranger) to pay such
taxes; and (iii) indemnify each of the Agents, each Issuing Lender, each Lender
and the Lead Arranger, and each of their respective officers, directors,
employees, representatives, agents, affiliates, trustees and investment advisors
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, any Issuing Lender, any Lender or
the Lead Arranger is a party thereto and whether or not such investigation,
litigation or other proceeding is brought by or on behalf of any Credit Party)
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 the Transaction or any other 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 at any
time owned, leased or operated by the Borrower or any of its Subsidiaries, the
generation, storage, transportation, handling or disposal of Hazardous Materials
by the Borrower or any of its Subsidiaries at any location, whether or not
owned, leased or operated by the Borrower or any of its Subsidiaries, the
non-compliance by the Borrower or any of its Subsidiaries with any Environmental
Law (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 at any time owned, leased or 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 incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified (as determined by a court of
competent jurisdiction in a final and non-appealable decision)). To the extent
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that the undertaking to indemnify, pay or hold harmless any Agent, any Issuing
Lender, any Lender or the Lead Arranger set forth in the preceding sentence may
be unenforceable because it is violative of any law or public policy, the
Borrower shall make the maximum contribution to the payment and satisfaction of
each of the indemnified liabilities which is permissible under applicable law.
13.02 RIGHT OF SETOFF. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, the Administrative Agent, each Issuing Lender and each Lender is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to any Credit Party 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 the Administrative Agent, such Issuing Lender or such
Lender (including, without limitation, by branches and agencies of the
Administrative Agent, such Issuing Lender or such Lender wherever located) to or
for the credit or the account of the Borrower or any of its Subsidiaries against
and on account of the Obligations and liabilities of the Credit Parties to the
Administrative Agent, such Issuing Lender or such Lender under this Agreement or
under any of the other Credit Documents, including, without limitation, all
interests in Obligations purchased by such Lender pursuant to Section 13.06(b),
and all other claims of any nature or description arising out of or connected
with this Agreement or any other Credit Document, irrespective of whether or not
the Administrative Agent, such Issuing Lender or such Lender shall have made any
demand hereunder and although said Obligations, liabilities or claims, or any of
them, shall be contingent or unmatured.
13.03 NOTICES. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to any Credit Party,
at the address specified opposite its signature below or in the other relevant
Credit Documents; if to any Lender, at its address specified on Schedule II; and
if to the Administrative Agent, at the 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
Lender, at such other address as shall be designated by such Lender 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.
13.04 BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS. (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, the Borrower may not assign or transfer any of its rights, obligations
or interest hereunder without the prior written consent of the Lenders and,
provided further, that, although any Lender may transfer, assign or grant
participations in its rights hereunder, such Lender shall remain a "LENDER" for
all purposes hereunder (and may not transfer or assign all or any portion of its
Commitments hereunder except as provided in Sections 1.13 and 13.04(b)) and the
transferee, assignee or participant, as the case may be, shall not constitute a
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"Lender" hereunder and, provided further, that no Lender shall transfer or grant
any participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the Revolving Loan Maturity Date) in which such participant
is participating, or reduce the rate or extend the time of payment of interest
or Fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof
(it being understood that any amendment or modification to the financial
definitions in this Agreement or to Section 13.07(a) shall not constitute a
reduction in the rate of interest or Fees payable hereunder), 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 the
available portion thereof) 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 (iii) except during the
continuance of an Event of Default (at which time the Collateral release
provisions shall instead be governed by the provisions of Section 14.02(a)
hereof) or as otherwise expressly provided in the Security Documents, release
all or substantially all of the Collateral under all the Security Documents
supporting the Loans or Letters of Credit hereunder in which such participant is
participating, (iv) amend, modify or waive any provision of Section 4.02(h),
Section 13.06(d), Section 13.12 or Section 14 (except for technical amendments
with respect to additional extensions of credit pursuant to this Agreement which
afford the protections to such additional extensions of credit of the type
provided to the A Term Loans, B Term Loans and/or the Revolving Loan Commitments
on the Effective Date), (v) except during the continuance of an Event of Default
(at which time the Subsidiaries Guaranty release provisions shall instead be
governed by the provisions of Section 14.02(b)), release all or substantially
all of the Subsidiary Guarantors from the Subsidiaries Guaranty, or (vi)
contractually subordinate the right of payment of any Lender to any principal,
interest (other than the difference between the standard rate of interest and
the default rate of interest) or fees payable by the Borrower for the account of
such Lender to any other Indebtedness of the Borrower, supporting the Loans or
Letters of Credit hereunder in which such participant is participating. In the
case of any such participation, the participant shall not have any rights under
this Agreement or any of the other Credit Documents (the participant's rights
against such Lender in respect of such participation to be those set forth in
the agreement executed by such Lender in favor of the participant relating
thereto) and all amounts payable by the Borrower hereunder shall be determined
as if such Lender had not sold such participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender
together with one or more other Lenders) may (x) assign all or a portion of its
Commitments and related outstanding Obligations (or, if the Commitments with
respect to the relevant Tranche have terminated, outstanding Obligations)
hereunder to (i)(A) its parent company and/or any affiliate of such Lender which
is at least 50% owned by such Lender or its parent company or (B) to one or more
other Lenders or any affiliate of any such other Lender which is at least 50%
owned by such other Lender or its parent company (provided that any fund that
invests in loans and is managed or advised by the same investment advisor of
another fund which is a Lender (or by an Affiliate of such investment advisor)
shall be treated as an affiliate of such other Lender for the purposes of this
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sub-clause (x)(i)(B)), or (ii) in the case of any Lender that is a fund that
invests in loans, any other fund that invests in loans and is managed or advised
by the same investment advisor of any Lender or by an Affiliate of such
investment advisor or (y) assign all, or if less than all, a portion equal to at
least $1,000,000 in the aggregate for the assigning Lender or assigning Lenders,
of such Commitments and related outstanding Obligations (or, if the Commitments
with respect to the relevant Tranche have terminated, outstanding Obligations)
hereunder to one or more Eligible Transferees (treating any fund that invests in
loans and any other fund that invests in loans and is managed or advised by the
same investment advisor of such fund or by an Affiliate of such investment
advisor as a single Eligible Transferee), each of which assignees shall become a
party to this Agreement as a Lender by execution of an Assignment and Assumption
Agreement, provided that (i) at such time, Schedule I shall be deemed modified
to reflect the Commitments and/or outstanding Loans, as the case may be, of such
new Lender and of the existing Lenders, (ii) upon the surrender of the relevant
Notes by the assigning Lender (or, upon such assigning Lender's indemnifying the
Borrower for any lost Note pursuant to a customary indemnification agreement)
new Notes will be issued, at the Borrower's expense, to such new Lender and to
the assigning Lender upon the request of such new Lender or assigning Lender,
such new Notes to be in conformity with the requirements of Section 1.05 (with
appropriate modifications) to the extent needed to reflect the revised
Commitments and/or outstanding Loans, as the case may be, (iii) subject to
Section 14.01(b), the consent of the Administrative Agent and, so long as no
Default or Event of Default then exists, the consent of the Borrower shall (in
either case) be required in connection with any such assignment pursuant to
clause (y) above (other than any such assignment by the Administrative Agent or
any of its Affiliates prior to the Syndication Date) (which consents, in any
such case, shall not be unreasonably withheld or delayed), (iv) the
Administrative Agent shall receive at the time of each such assignment, from the
assigning or assignee Lender, the payment of a non-refundable assignment fee of
$3,500 and (v) no such transfer or assignment will be effective until recorded
by the Administrative Agent on the Register pursuant to Section 13.15. To the
extent of any assignment pursuant to this Section 13.04(b), the assigning Lender
shall be relieved of its obligations hereunder with respect to its assigned
Commitments and outstanding Loans. At the time of each assignment pursuant to
this Section 13.04(b) to a Person which is not already a Lender hereunder and
which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for Federal income tax purposes, the respective
assignee Lender shall, to the extent legally entitled to do so, provide to the
Borrower the appropriate Internal Revenue Service Forms (and, if applicable, a
Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent
that an assignment of all or any portion of a Lender's Commitments and related
outstanding Obligations pursuant to Section 1.13 or this Section 13.04(b) would,
at the time of such assignment, result in increased costs under Section 1.10,
2.06 or 4.04 from those being charged by the respective assigning Lender prior
to such assignment, then the Borrower shall not be obligated to pay such
increased costs (although the Borrower, in accordance with and pursuant to the
other provisions of this Agreement, shall be obligated to pay any other
increased costs of the type described above resulting from changes after the
date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Lender
from pledging its Loans and Notes hereunder to a Federal Reserve Bank in support
of borrowings made by such Lender from such Federal Reserve Bank and, with prior
notification to the Administrative Agent (but without the consent of the
Administrative Agent or the Borrower), any Lender which is a fund may pledge all
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or any portion of its Loans and Notes to its trustee or to a collateral agent
providing credit or credit support to such Lender in support of its obligations
to such trustee, such collateral agent or a holder of such obligations, as the
case may be. No pledge pursuant to this clause (c) shall release the transferor
Lender from any of its obligations hereunder.
13.05 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of the Administrative Agent, the Collateral Agent, any Issuing Lender or
any Lender 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, the Collateral Agent, any Issuing
Lender or any Lender 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, the Collateral Agent, any Issuing Lender or any Lender
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 constitute a waiver of the rights of the
Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender 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, the Administrative Agent shall distribute such payment to the Lenders
entitled thereto (other than any Lender that has consented in writing to waive
its pro rata share of any such payment) pro rata based upon their respective
shares, if any, of the Obligations with respect to which such payment was
received.
(b) If any Lender (herein the "BENEFITED LENDER"), by exercising any
right of set-off, counterclaim or foreclosure, receives payment (whether in the
form of cash or other property) of principal or interest or other amount due on
any Obligation (other than payments distributed to such Benefited Lender by the
Administrative Agent in accordance with the provisions of Section 13.06(d)) (the
"ENTRUSTED PROPERTY"), such Benefited Lender shall promptly deliver the
Entrusted Property to the Administrative Agent for application to the
Obligations in accordance with the provisions of Section 13.06(d); provided,
that, until such Entrusted Property is so delivered to the Administrative Agent,
it shall be deemed to be held in trust by such Benefited Lender for the benefit
of the Administrative Agent and the Entitled Lenders (defined hereafter). If any
Benefited Lender fails to promptly turn over Entrusted Property to the
Administrative Agent, such Benefited Lender shall be deemed to have purchased
(from all Lenders who would be entitled to a distribution of such Entrusted
Property from the Administrative Agent pursuant to Section 13.06(d); herein the
"Entitled Lenders") participations in the applicable Loans held by such Entitled
Lenders (and such other adjustments shall be made as may be required) so that
all such Entrusted Property shall be effectively attributed to the Entitled
Lenders in accordance with the provisions of Section 13.06(d); provided, that,
if all or any portion of such Entrusted Property is thereafter recovered from,
or must otherwise be restored by, the Benefited Lender, or is repaid by the
Benefited Lender in good faith settlement of a pending or threatened avoidance
claim, the purchase of such participation shall be rescinded and the purchase
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price restored to the extent of such recovery, but without interest being paid
by such Benefited Lender. If under any applicable bankruptcy, insolvency or
other similar law, any Benefited Lender receives a secured claim in lieu of a
set-off to which this Section would apply, such Benefited Lender shall, to the
extent practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights provided herein of the Entitled Lenders, as
directed by the Administrative Agent. Each Credit Party agrees that any Lender
purchasing a participation from any other Lender pursuant to this Section
13.06(b) may, to the fullest extent permitted by law, and notwithstanding the
provisions of Section 13.04, exercise all of its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
purchasing Lender were the direct creditor of such Credit Party in the amount of
such participation.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 13.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
(d) So long as the Senior Loan Maturity Date has not occurred, the
Obligations have not been accelerated and no Default or Event of Default has
occurred under Section 10.05, the Credit Parties, the Administrative Agent, the
Collateral Agent and each other Secured Creditor agree that all payments on
account of the Obligations (including all collections on any Collateral) shall
be applied to the payment of the then due and payable amount of the Senior
Obligations and of the then due and payable amount of the B Term Loan
Obligations, pro rata in accordance with their respective amounts then due and
payable. Upon the occurrence of the Senior Loan Maturity Date, the acceleration
of the Obligations or the occurrence of a Default or an Event of Default under
Section 10.05, the Credit Parties, the Administrative Agent, the Collateral
Agent and each other Secured Creditor agree that all payments on account of the
Obligations (including all collections on any Collateral) shall be applied
pursuant to Section 7.4 of the Security Agreement.
13.07 CALCULATIONS; COMPUTATIONS. (a) The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved (except as set forth in the
notes thereto); provided that, (i) except as otherwise specifically provided
herein, all computations of Excess Cash Flow and the Applicable Margin, and all
computations and all definitions (including accounting terms) used in
determining compliance with Sections 8.18 and 9.07 through 9.13, inclusive,
shall utilize generally accepted accounting principles and policies in
conformity with those used to prepare the audited financial statements of the
Borrower referred to in Section 7.05(a) for the fiscal year of the Borrower
ended June 30, 2002 and (ii) to the extent expressly provided herein, certain
calculations shall be made on a Pro Forma Basis .
(b) All computations of interest, Commitment Commission and other
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; except that
in the case of Letter of Credit Fees and Facing Fees, the last day shall be
included) occurring in the period for which such interest, Commitment Commission
or Fees are payable.
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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 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,
IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, THE BORROWER HEREBY
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE BORROWER HEREBY
FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL
JURISDICTION OVER THE BORROWER, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL
ACTION PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENTS
BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL
JURISDICTION OVER THE BORROWER. 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 THE BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE
BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. THE BORROWER
HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING
COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE OF PROCESS
WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE ADMINISTRATIVE AGENT, ANY LENDER 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 THE BORROWER IN ANY OTHER JURISDICTION.
(b) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS
OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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13.09 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
13.10 EFFECTIVENESS. This Agreement shall become effective on the
date (the "Effective Date") on which the Borrower, the Administrative Agent and
each of the Lenders shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered the same to the Administrative
Agent at the Notice Office or, in the case of the Lenders, shall have given to
the Administrative Agent telephonic (confirmed in writing), written or telex
notice (actually received) at such office that the same has been signed and
mailed to it. The Administrative Agent will give the Borrower and each Lender
prompt written notice of the occurrence of the Effective Date.
13.11 HEADINGS DESCRIPTIVE. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 AMENDMENT OR WAIVER; ETC. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party hereto or thereto and
the Required Lenders (although additional parties may be added to (and annexes
may be modified to reflect such additions) the Subsidiaries Guaranty and the
Security Documents in accordance with the provisions hereof and thereof without
the consent of the other Credit Parties party thereto or the Required Lenders),
provided that no such change, waiver, discharge or termination shall, without
the consent of each Lender (other than a Defaulting Lender) (with Obligations
being directly affected in the case of following clause (i) or (vii)), (i)
extend the final scheduled maturity of any Loan or Note or extend the stated
expiration date 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
(except in connection with the waiver of applicability of any post-default
increase in interest rates), or reduce the principal amount thereof (it being
understood that any amendment or modification to the financial definitions in
this Agreement or to Section 13.07(a) shall not constitute a reduction in the
rate of interest or Fees for the purposes of this clause (i)), (ii) except
during the continuance of an Event of Default (at which time the Collateral
release provisions shall instead be governed by the provisions of Section
14.02(a) hereof) or as otherwise expressly provided in the Security Documents,
release all or substantially all of the Collateral under all the Security
Documents, (iii) amend, modify or waive any provision of Section 4.02(h),
Section 13.06(d), this Section 13.12 or Section 14 (except for technical
amendments with respect to additional extensions of credit pursuant to this
Agreement which afford the protections to such additional extensions of credit
of the type provided to the A Term Loans, B Term Loans and/or the Revolving Loan
Commitments on the Effective Date), (iv) modify the percentage specified in the
definition of Required Lenders (it being understood that, with the consent of
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the Required Lenders, additional extensions of credit pursuant to this Agreement
may be included in the determination of the Required Lenders on substantially
the same basis as the extensions of Term Loans and Revolving Loan Commitments
are included on the Effective Date), (v) consent to the assignment or transfer
by the Borrower of any of its rights and obligations under this Agreement, (vi)
except during the continuance of an Event of Default (at which time the
Subsidiaries Guaranty release provisions shall instead be governed by the
provisions of Section 14.02(b)), release all or substantially all of the
Subsidiary Guarantors from the Subsidiaries Guaranty, or (vii) contractually
subordinate the right of payment of any Lender to any principal, interest (other
than the difference between the standard rate of interest and the default rate
of interest) or fees payable by the Borrower for the account of such Lender to
any other Indebtedness of the Borrower, provided further, that no such change,
waiver, discharge or termination shall (1) increase the Commitments of any
Lender over the amount thereof then in effect without the consent of such Lender
(it being understood that waivers or modifications of conditions precedent,
covenants, Defaults or Events of Default or of a mandatory reduction in the
Total Commitment shall not constitute an increase of the Commitment of any
Lender, and that an increase in the available portion of any Commitment of any
Lender shall not constitute an increase of the Commitment of such Lender), (2)
without the consent of each Issuing Lender, amend, modify or waive any provision
of Section 2 or alter its rights or obligations with respect to Letters of
Credit, (3) without the consent of the Swingline Lender, alter the Swingline
Lender's rights or obligations with respect to Swingline Loans, (4) without the
consent of the Administrative Agent, amend, modify or waive any provision of
Section 12 or any other provision as same relates to the rights or obligations
of the Administrative Agent, (5) without the consent of Collateral Agent, amend,
modify or waive any provision relating to the rights or obligations of the
Collateral Agent, (6) without the consent of the Required B Term Loan Lenders,
increase the principal amount of the Senior Loans above $48,000,000 (as such
amount is reduced on a dollar-for-dollar basis by any principal payments made on
the A Term Loans and by any permanent reduction or termination of the Revolving
Loan Commitments made pursuant to Section 3.02, 3.03, 4.01 or 4.02, as
applicable), or amend or waive the provisions of Section 9.20, or extend the
final stated maturity of any Loan (other than the B Term Loans) or reduce the
percentage specified in the definition of Required B Term Loan Lenders (it being
understood that, with the consent of the Required Lenders, additional extensions
of credit pursuant to this Agreement may be included in the determination of the
Required Senior Lenders on substantially the same basis as the extensions of
Term Loans and Revolving Loan Commitments are included on the Effective Date),
(7) without the consent of each Senior Lender, reduce the percentage specified
in the definition of Required Senior Lenders, (8) without the written consent of
each B Term Loan Lender, reduce the percentage specified in the definition of
Required B Term Loan Lenders or (9) without the written consent of each Senior
Lender, amend, modify or waive the provisions of Section 4.01(v), unless all
Senior Loan Obligations have been indefeasibly paid in full in cash.
(b) If, in connection with any proposed change, waiver, discharge or
termination of any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Lenders is obtained but the consent of one or more
of such other Lenders whose consent is required is not obtained, then the
Borrower shall have the right, so long as all non-consenting Lenders whose
individual consent is required are treated as described in either clauses (A) or
(B) below, to either (A) replace each such non-consenting Lender or Lenders with
one or more Replacement Lenders pursuant to Section 1.13 so long as at the time
of such replacement, each such Replacement Lender consents to the proposed
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change, waiver, discharge or termination or (B) terminate such non-consenting
Lender's Commitments and/or repay each Tranche of outstanding Loans of such
Lender in accordance with Sections 3.02(b) and/or 4.01(b), provided that, unless
the Commitments that are terminated, and Loans repaid, pursuant to preceding
clause (B) are immediately replaced in full at such time through the addition of
new Lenders or the increase of the Commitments and/or outstanding Loans of
existing Lenders (who in each case must specifically consent thereto), then in
the case of any action pursuant to preceding clause (B) the Required Lenders
(determined after giving effect to the proposed action) shall specifically
consent thereto, provided further, that in any event the Borrower shall not have
the right to replace a Lender, terminate its Commitments or repay its Loans
solely as a result of the exercise of such Lender's rights (and the withholding
of any required consent by such Lender) pursuant to the second proviso to
Section 13.12(a).
13.13 SURVIVAL. All indemnities set forth herein including, without
limitation, in Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 13.01 shall survive
the execution, delivery and termination of this Agreement and the Notes and the
making and repayment of the Obligations.
13.14 DOMICILE OF LOANS. Each Lender may transfer and carry its
Loans at, to or for the account of any office, Subsidiary or Affiliate of such
Lender. Notwithstanding anything to the contrary contained herein, to the extent
that a transfer of Loans pursuant to this Section 13.14 would, at the time of
such transfer, result in increased costs under Section 1.10, 1.11, 2.06 or 4.04
from those being charged by the respective Lender prior to such transfer, then
the Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer).
13.15 REGISTER. The Borrower hereby designates the Administrative
Agent to serve as its 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 Lenders, the Loans made by each of the Lenders
and each repayment in respect of the principal amount of the Loans of each
Lender. Failure to make any such recordation, or any error in such recordation,
shall not affect the Borrower's obligations in respect of such Loans. With
respect to any Lender, the transfer of the Commitments of such Lender and the
rights to the principal of, and interest on, any Loan made pursuant to such
Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership of
such Commitments and Loans and prior to such recordation all amounts owing to
the transferor with respect to such Commitments and Loans shall remain owing to
the transferor. The registration of assignment or transfer of all or part of any
Commitments and Loans shall be recorded by the Administrative Agent on the
Register only upon the acceptance by the Administrative Agent of a properly
executed and delivered Assignment and Assumption Agreement pursuant to Section
13.04(b). Coincident with the delivery of such an Assignment and Assumption
Agreement to the Administrative Agent for acceptance and registration of
assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Lender shall surrender the Note (if
any) evidencing such Loan, and thereupon one or more new Notes in the same
aggregate principal amount shall be issued to the assigning or transferor Lender
and/or the new Lender at the request of any such Lender. The Borrower agrees to
indemnify the Administrative Agent from and against any and all losses, claims,
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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 Lender agrees that it will use its reasonable
efforts not to disclose without the prior consent of the Borrower (other than to
its employees, auditors, advisors or counsel or to another Lender if such Lender
or such Lender's holding or parent company in its sole discretion determines
that any such party should have access to such information, provided such
Persons shall be subject to the provisions of this Section 13.16 to the same
extent as such Lender) any information with respect to the Borrower or any of
its Subsidiaries which is now or in the future furnished pursuant to this
Agreement or any other Credit Document, provided that any Lender may disclose
any such information (i) as has become generally available to the public other
than by virtue of a breach of this Section 13.16(a) by the respective Lender,
(ii) as may be required or appropriate in any report, statement or testimony
submitted to any municipal, state or Federal regulatory body having or claiming
to have jurisdiction over such Lender or to the Federal Reserve Board or the
Federal Deposit Insurance Corporation or similar organizations (whether in the
United States or elsewhere) or their successors, (iii) as may be required or
appropriate in respect to any summons or subpoena or in connection with any
litigation, (iv) in order to comply with any law, order, regulation or ruling
applicable to such Lender, (v) to the Administrative Agent or the Collateral
Agent, (vi) to any direct or indirect contractual counterparty in any swap,
hedge or similar agreement (or to any such contractual counterparty's
professional advisor), so long as such contractual counterparty (or such
professional advisor) agrees to be bound by the provisions of this Section
13.16, and (vii) 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 Lender, provided that such
prospective transferee agrees to be bound by the confidentiality provisions
contained in this Section 13.16.
(b) The Borrower hereby acknowledges and agrees that each Lender may
share with any of its affiliates, and such affiliates may share with such
Lender, any information related to the Borrower or any of its Subsidiaries
(including, without limitation, any non-public customer information regarding
the creditworthiness of the Borrower and its Subsidiaries), provided such
Persons shall be subject to the provisions of this Section 13.16 to the same
extent as such Lender.
(c) The Borrower hereby represents and acknowledges that, to the
best of its knowledge, neither any Agent nor any Lender, nor any employees or
agents of, or other persons affiliated with, any Agent or any Lender, have
directly or indirectly made or provided any statement (oral or written) to the
Borrower or to any of its employees or agents, or other persons affiliated with
or related to the Borrower (or, so far as the Borrower is aware, to any other
person), as to the potential tax consequences of the Transaction.
(d) Neither the Agents nor the Lenders provide accounting, tax or
legal advice. Notwithstanding any express or implied claims of exclusivity or
proprietary rights, the Borrower, each Agent and each Lender hereby agree and
acknowledge that the Borrower, each Agent and each Lender (and each of their
employees, representatives or other agents) are authorized to disclose to any
and all persons, beginning immediately upon commencement of their discussions
and without limitation of any kind, the tax treatment and tax structure of the
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Transaction, and all materials of any kind (including opinions or other tax
analyses) that are provided to the Borrower, any Agent or any Lender relating to
such tax treatment and tax structure. In this regard, the Borrower, each Agent
and each Lender acknowledge and agree that the disclosure of the tax treatment
and tax structure of the Transaction is not limited in any way by an express or
implied understanding or agreement, oral or written (whether or not such
understanding or agreement is legally binding). For purposes of this
authorization, "tax" means United States Federal income tax, "tax treatment"
means the purported or claimed Federal income tax treatment of the transaction,
and "tax structure" means any fact that may be relevant to understanding the
purported or claimed Federal income tax treatment of the transaction. This
paragraph is intended to reflect the understanding of the Borrower, each Agent
and each Lender that the Transaction is not a "confidential transaction" as that
phrase is used in Treasury Regulation ss. 1.6011-4(b)(3)(i), and shall be
interpreted in a manner consistent therewith. Nothing herein is intended to
imply that any of the Borrower, each Agent and each Lender made or provided a
statement, oral or written, to, or for the benefit of, any of each other as to
any potential tax consequences that are related to, or may result from, the
Transaction.
13.17 POST CLOSING ACTIONS. Notwithstanding anything to the contrary
contained in this Agreement or the other Credit Documents, the parties hereto
acknowledge and agree that:
1. REAL PROPERTY. To the extent not completed on or prior to the
Initial Borrowing Date, the actions relating to the Mortgages and Real Property
of the Borrower and its Subsidiaries pursuant to Section 5.12 (and the related
opinion pursuant to Section 5.03) shall be completed no later than 45 days after
the Initial Borrowing Date.
2. UCC FILINGS; FILINGS WITH RESPECT TO INTELLECTUAL PROPERTY; ETC.
(i) The Borrower and its Subsidiaries were not required to have filed (or cause
to have filed) on or prior to the Initial Borrowing Date Financing Statements
(Form UCC-1) or any filings with the United States Patent and Trademark Office
or the United States Copyright Office necessary to perfect the security interest
purported to be created by the Security Agreement. Not later than the 5th day
after the Initial Borrowing Date, the Borrower and its Subsidiaries shall have
filed (or cause to have filed) all of such Financing Statements (Form UCC-1) and
any filings with the United States Patent and Trademark Office or the United
States Copyright Office necessary to perfect the security interest purported to
be created by the Security Agreement.
All provisions of this Credit Agreement and the other Credit Documents
(including, without limitation, all conditions precedent, representations,
warranties, covenants, events of default and other agreements herein and
therein) shall be deemed modified to the extent necessary to effect the
foregoing (and to permit the taking of the actions described above within the
time periods required above, rather than as otherwise provided in the Credit
Documents); provided that (x) to the extent any representation and warranty
would not be true because the foregoing actions were not taken on the Initial
Borrowing Date the respective representation and warranty shall be required to
be true and correct in all material respects at the time the respective action
is taken (or was required to be taken) in accordance with the foregoing
provisions of this Section 13.16 and (y) all representations and warranties
relating to the Security Documents shall be required to be true immediately
after the actions required to be taken by this Section 13.16 have been taken (or
were required to be taken). The acceptance of the benefits of each Credit Event
shall constitute a covenant and agreement by the Borrower to each of the Lenders
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that the actions required pursuant to this Section 13.17 will be, or have been,
taken within the relevant time periods referred to in this Section 13.17 and
that, at such time, all representations and warranties contained in this Credit
Agreement and the other Credit Documents shall then be true and correct without
any modification pursuant to this Section 13.17. The parties hereto acknowledge
and agree that the failure to take any of the actions required above, within the
relevant time periods required above, shall give rise to an immediate Event of
Default pursuant to this Agreement.
SECTION 14. SPECIAL PROVISIONS WITH RESPECT TO B TERM LOAN
OBLIGATIONS.
14.01 Subordination of B Term Loan Obligations; Bankruptcy
Provisions. Notwithstanding anything to the contrary in this Agreement or any
other Credit Document, the Credit Parties, the Lenders, the Collateral Agent,
the Administrative Agent and the other Senior Creditors hereby agree and
acknowledge as follows:
(a) The claims of the B Term Loan Lenders with respect to the B Term
Loan Obligations shall be junior and subordinate in right of payment to
the claims of the Senior Creditors with respect to the Senior Obligations
to the extent, and in the manner, provided in this Section 14. Until the
Senior Obligations have been indefeasibly paid in full in cash, the B Term
Loan Obligations shall not be paid, and no payment or prepayment on
account thereof shall be made or given by any Credit Party or received,
accepted or retained by the B Term Loan Lenders; provided, however,
-------- ------- that so long as the Senior Loan Maturity Date has not
occurred, the Obligations have not been accelerated, and no Default or
Event of Default under Section 10.05 exists, (i) regularly scheduled
payments of interest may be made with respect to the B Term Loans, (ii) B
Term Loan Obligations may be paid in connection with the repayment of the
Obligations of a non-consenting Lender pursuant to, and in accordance with
the requirements of, Sections 3.02(b) and 4.01(b) and (iii) amendment and
consent fees may be paid to B Term Loan Lenders in connection with the
requirements of Section 13.12(a). Should any payment be received by any B
Term Loan Lender as prohibited herein, such B Term Loan Lender shall
forthwith deliver the same to the Administrative Agent in precisely the
form received (but with the endorsement (although without recourse,
representation or warranty) of such B Term Loan Lender where necessary for
the collection thereof by the Administrative Agent) for application to the
Senior Obligations in accordance with the provisions of Section 13.06(d)
of this Agreement, and such B Term Loan Lender each agree that, until so
delivered, the same shall be deemed received by the B Term Loan Lenders
for the benefit of the Senior Creditors and such payment shall be held in
trust by such B Term Loan Lender for such purpose.
(b) The Liens on any of the Collateral securing the Obligations that
are granted to the Collateral Agent or any other Secured Creditor pursuant
to any Credit Document or under applicable law shall (subject only to
Permitted Liens) be (i) first priority Liens for the purpose of securing
the Senior Obligations and (ii) prior to the indefeasible payment in full
in cash of the Senior Obligations, second priority Liens for the purpose
of securing the B Term Loan Obligations (and, after the indefeasible
payment in full in cash of the Senior Obligations, first priority Liens
for the purpose of securing the B Term Loan Obligations). In perfecting
such Liens, the Collateral Agent may file financing statements (or make
other filings or take other action) noting its capacity as "collateral
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agent" without making reference to the differing interests of the various
Secured Creditors and without regard to the relative priorities of the
Liens securing the Senior Obligations and those securing the B Term Loan
Obligations; provided, however, that the Collateral Agent is also
authorized, if it so elects, to indicate at any time such differing
interests and relative priorities in connection with the perfection of
such Liens.
(c) In any receivership, insolvency or bankruptcy proceeding,
assignment for the benefit of creditors or any other proceeding by or
against any Credit Party for any relief under any bankruptcy or insolvency
law or laws relating to the relief of debtors, readjustment of
indebtedness, reorganizations, compositions or extensions (collectively
"INSOLVENCY PROCEEDINGS") which may be brought by or against any Credit
Party, the Administrative Agent, acting at the direction of the Required
Senior Lenders (and without the consent of, and despite any disapproval
of, any other Lender or any other category of Lenders), shall have the
sole power and authority (with respect to all of the Obligations) to: (i)
request relief from the automatic stay to pursue remedies against the
Collateral; (ii) consent or object to any use of cash collateral; (iii)
consent or object to any request for approval of post-petition financing
and the imposition of Liens with respect to such post-petition financing
(including Liens which may be given priority over those securing the
Obligations); (iv) consent or object to the sale of any of the Collateral,
including, without limitation, to sales free and clear of the Liens
securing the Obligations (so long as such sale is approved, and determined
to be reasonable, by a court of competent jurisdiction, and any proceeds
from such sale that are approved by the court for payment of any
Obligations are applied to repay the Obligations in the order specified in
Section 13.06(d)); (v) request adequate protection of the Secured
Creditors' respective interests in the Obligations; (vi) request, support
or oppose the appointment of a trustee; and (vii) request, support or
oppose the conversion of a bankruptcy case from one chapter of the federal
Bankruptcy Code to another. With respect to clauses (ii) and (iii) of the
preceding sentence, each of the holders of the B Term Loan Obligations
agrees that (i) notice received two Business Days' prior to the entry of
an order approving such usage of cash collateral and five Business Days'
prior to the entry of an order approving such financing shall be adequate
notice; and (ii) provided it receives a Lien in any property arising or
acquired after the commencement of such proceeding which may be
substituted for the Collateral subject to such usage under Section 363 or
which secures such financing under Section 364 (which Lien shall be
subordinated to any Lien in such property held by the Administrative
Agent, the Collateral Agent, or the Lenders, as the case may be, on terms
substantially the same as the terms set forth in this Section 14), it will
raise no objection to such usage or financing on the grounds that its
junior Lien position with respect to any Collateral is not adequately
protected. Without the prior written consent of the Required Lenders, none
of the Secured Creditors shall file or join in (with respect to all of the
Obligations) any involuntary petition in any Insolvency Proceedings
against any Credit Party. In the event that any Secured Creditor shall
fail to file a proof of claim with respect to the portion of the
Obligations owed to such Secured Creditor prior to the date that is thirty
(30) days before the deadline for filing proofs of claim in such
Insolvency Proceedings, the Secured Creditors hereby irrevocably
authorize, empower and appoint the Administrative Agent as their agent and
attorney-in-fact to execute, verify, deliver and file such proofs of claim
(but the Administrative Agent shall have no obligation to file such proofs
of claim and may elect to do so, or to refrain from doing so, in its sole
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discretion). Notwithstanding the foregoing, each of the Secured Creditors
shall retain the right to independently vote its respective interests in
the Obligations in any approval or rejection of any plan of reorganization
in any Insolvency Proceedings of any Credit Party. The Administrative
Agent may file a copy of this Agreement with any court, tribunal or other
decision-making body to evidence the authority of the Administrative Agent
to act on behalf of the Secured Creditors as specified in this Agreement.
(d) In the event of any distribution, division or application,
partial or complete, voluntary or involuntary, by operation of law or
otherwise, of all or any part of the assets of any Credit Party or the
proceeds thereof, in whatever form, to creditors of any Credit Party, or
upon any indebtedness of any Credit Party, by reason of the liquidation,
dissolution or other winding up of any Credit Party or its business, or by
reason of any sale or Insolvency Proceeding, then and in any such event,
any payment or distribution of any kind or character, either in cash,
securities or other property, which shall be payable or deliverable upon
or with respect to any or all of the Obligations (including without
limitation any such payment or distribution which may be payable or
deliverable by virtue of the provisions of any securities which are
subordinate and junior in right of payment of any of the Obligations)
shall be paid or delivered directly to the Administrative Agent for
application to the payment of the Obligations in the order specified in
Section 13.06(d). All of the Obligations shall be entitled to accrue, and
the Secured Creditors shall be entitled to recover, post-petition interest
in any Insolvency Proceedings regarding any Credit Party; provided,
however, that insofar as the relative rights of the Senior Creditors and
the B Term Loan Lenders inter se are concerned, the Senior Creditors shall
be entitled to receive post-petition interest accrued on all Senior
Obligations prior to the receipt by the B Term Loan Lenders of any payment
or property with respect to the B Term Loan Obligations.
(e) The provisions of this Agreement regarding the relative
priorities of the claims of, and Liens securing, the Obligations
constitute a continuing agreement, and this Agreement and the
subordination of the B Term Loan Obligations (the "DEBT SUBORDINATION")
and the Liens with respect thereto (the "LIEN SUBORDINATION") provided for
herein shall remain in full force and effect regardless of whether the
Senior Obligations are from time to time reduced and thereafter increased
or entirely extinguished and thereafter reincurred or incurred anew. This
Agreement, the Debt Subordination and the Lien Subordination shall remain
in full force and effect and shall be irrevocable until the indefeasible
payment in full in cash of all Senior Obligations. To the extent that the
Administrative Agent or any other Senior Creditor receives any payment on
account of any of the Senior Obligations, and any such payment or any part
thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside, subordinated or required to be repaid to a
trustee, receiver or any other person or entity (except as a result of the
Administrative Agent's or a Senior Lender's gross negligence or willful
misconduct) (whether in connection with any Insolvency Proceeding or
otherwise) then, to the extent of such payment received, the Senior
Obligations or part thereof intended to be satisfied and any and all
subordination obligations and agreements of the B Term Loan Lenders
hereunder with respect to the B Term Loan Obligations created or existing
in favor of the Administrative Agent or the other Senior Creditors shall
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be revived and continue in full force and effect, as if such payment had
not been received by the Administrative Agent or the Senior Creditors and
applied on account of the Senior Obligations. No notice purporting to
terminate this Agreement, the Debt Subordination or the Lien Subordination
which is received by the Administrative Agent or the other Senior
Creditors at any time when this Agreement is still in effect shall be
effective, in any manner or at any time whatsoever, to terminate this
Agreement, the Debt Subordination or the Lien Subordination. The relative
priorities of the Liens securing the Senior Obligations and the B Term
Loan Obligations shall not be altered or otherwise affected by any
amendment, modification, supplement, extension, renewal or restatement of
the Senior Obligations or the B Term Loan Obligations, nor by any action
which the Administrative Agent or any of the Secured Creditors may take or
fail to take in respect of the Collateral. Each Secured Creditor agrees
that it will not contest (or support any other Person in contesting) the
validity, perfection, priority (as established by Section 14.01) or
enforceability of any Lien created by the Credit Documents (or under
applicable law) securing any of the Obligations or the priority, validity
or enforceability of the Obligations (it being understood, however, that
the Secured Creditors shall be entitled to assert the relative priorities
as between the Senior Obligations and the B Term Loan Obligations, created
pursuant to this Section 14 and the relevant provisions of the Security
Documents.
(f) This Agreement, the Debt Subordination and the Lien
Subordination shall continue to be effective regardless of the solvency or
insolvency of any Credit Party or any B Term Loan Lender; the liquidation
or dissolution of any Credit Party or any B Term Loan Lender; the
institution by or against any Credit Party or any B Term Loan Lender of
any Insolvency Proceeding, or any change in the ownership, composition or
nature of any Credit Party or any B Term Loan Lender.
(g) Nothing in this Section 14.01 shall impair the rights granted to
the Required Senior Lenders under Section 14.02 to deal with the
Collateral, which rights the parties hereby agree shall continue in full
force and effect (i) notwithstanding any insolvency of any Credit Party
and (ii) during and after any Insolvency Proceedings regarding any Credit
Party.
(h) Should any Triggering Event occur, the Administrative Agent will
endeavor to promptly give each Lender a Triggering Event Notice, but the
failure to timely give any Triggering Event Notice shall not affect the
validity of any Triggering Event (including, without limitation, rendering
any Lien Enforcement Action invalid) or result in any liability of the
Administrative Agent to the Lenders, the Credit Parties or any other
Person. At any time within fifteen (15) Business Days after a B Term Loan
Lender shall be deemed to have received any Triggering Event Notice
(pursuant to the notice provisions of Section 13.03), such B Term Loan
Lender shall have the option to give written notice (a "PURCHASE NOTICE")
to the Administrative Agent (which notice the Administrative Agent shall
forward to the Senior Lenders) that such B Term Loan Lender (either
individually, or with other B Term Loan Lenders) will purchase all (but
not less than all) of the Senior Loan Obligations from the Senior
Creditors (each B Term Loan Lender delivering a Purchase Notice is a
"PURCHASING LENDER"). Any Purchase Notice, once given, shall be
irrevocable. If there is more than one Purchasing Lender, then (unless all
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such Purchasing Lenders agree to the contrary in a joint written direction
delivered to the Administrative Agent) such Purchasing Lenders shall
purchase the Senior Loan Obligations pro rata based on their relative
holdings of the outstanding principal of the B Term Loans determined as of
the date that the first Purchase Notice was received by the Administrative
Agent. The date (the "Purchase Date") on which the Purchasing Lenders
shall purchase the Senior Loan Obligations shall be twenty (20) Business
Days after the date the Administrative Agent receives the first of any
such Purchase Notices (and the Administrative Agent shall confirm the
Purchase Date by written notice to the Purchasing Lenders and all Senior
Lenders). On the Purchase Date, the Purchasing Lenders shall remit by wire
transfer immediately available funds to the Administrative Agent at the
Payment Office in an amount equal to the sum of (i) the full amount of all
outstanding principal, accrued but unpaid interest and accrued by unpaid
fees on the Senior Loans; (ii) all expenses (including attorneys' fees)
incurred by the Senior Lenders that have not been reimbursed by the Credit
Parties; and (iii) cash collateral in the amount of 102% of the face
amount of any issued and outstanding Letters of Credit (including any
Letters of Credit provided by third parties in accordance with the
provisions of the Credit Documents). The portion of the funds delivered to
the Administrative Agent pursuant to clauses (i) and (ii) of the
immediately preceding sentence shall be promptly delivered to the Senior
Lenders. The portion of the funds delivered to the Administrative Agent
pursuant to clause (iii) of the immediately preceding sentence shall be
held by the Administrative Agent until such time as either (a) any drawing
is made under the Letter of Credit to which such funds relate, in which
case such funds shall be promptly thereafter delivered to the respective
Issuing Lender or (b) the Letter of Credit to which such funds relate
expires by its terms or is surrendered without drawing to the respective
Issuing Lender, in which case such funds shall be promptly thereafter
returned to the Purchasing Lenders according to their respective interests
in the purchased Senior Loans). In addition, the Purchasing Lenders shall
(severally in proportion to their respective shares of the Senior Loan
Obligations purchased by them on the Purchase Date), upon demand by the
Administrative Agent at the request of any Senior Lender, reimburse each
Senior Lender for: (i) any loss, cost, damage or expense (including
reasonable attorneys' fees and legal expenses) it may have incurred
(whether before or after the Purchase Date) by any Senior Lender in
connection with the sale of the Senior Loan Obligations to the Purchasing
Lenders (including without limitation, any claims made by third parties
against any Senior Lender); (ii) any costs or expenses related to any
issued and outstanding Letters of Credit; and (iii) any checks or other
payments provisionally recited against the Senior Loan Obligations or as
to which the Senior Lenders have not yet received final payment. In
connection with such purchase of the Senior Loans, each Senior Lender and
the Purchasing Lenders shall execute and deliver to the Administrative
Agent such Assignment and Assumption Agreements as may be required by the
Administrative Agent (and, notwithstanding anything to the contrary herein
or in any other Credit Document, no consent of any Credit Party shall be
required in connection therewith). Notwithstanding the sale of the Senior
Loans as contemplated by this Section 14.01(h), all indemnities under any
Credit Documents that, pursuant to the terms thereof, are to survive any
termination of this Agreement shall continue to apply after the Purchase
Date to the Senior Lenders whose loans have been sold pursuant to the
provisions hereof.
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14.02 Senior Lenders to Control Collateral Matters.(a)
Notwithstanding anything to the contrary in any Credit Document, until the
Senior Loans have been indefeasibly repaid in full in cash, the Senior Lenders
shall have the exclusive right to administer, perform and enforce (or elect not
to enforce) the terms of the Credit Documents with respect to all Collateral
(other than with respect to any release of Collateral, which instead is governed
by the provisions of the immediately succeeding sentence and Sections 14.01(c)
and 13.12) and to exercise and enforce (or not enforce) all privileges and
rights thereunder with respect to the Collateral, at their sole discretion (by
directing the Collateral Agent to take or refrain from taking such actions by a
vote of the Required Senior Lenders); provided, that, absent direction from the
Required Senior Lenders, the Collateral Agent shall be entitled to take or
refrain from taking action as the Collateral Agent may determine is appropriate.
In addition, but not in limitation of the foregoing provisions of this Section
14.02, notwithstanding anything to the contrary in any Credit Document, during
the continuance of any Event of Default, the Required Senior Lenders shall have
the exclusive authority to authorize the release of the Liens granted pursuant
to the Credit Documents on any or all of the Collateral in connection with the
sale or other disposition thereof (provided that the proceeds of the sale of
such Collateral shall nevertheless be required to be distributed to the Secured
Creditors in accordance with Section 13.06(d), and no such release of Liens with
respect to the Collateral shall extend to or otherwise affect any rights of any
Secured Creditor to receive the proceeds from any sale or other disposition of
the Collateral except to the extent such proceeds are applied to repayment of
the Obligations as provided in Section 13.06(d)) in connection with: (i) any
judicial or non-judicial foreclosure or similar actions or proceedings regarding
any of the Collateral; (ii) any transfer of any of the Collateral to the
Collateral Agent in lieu of foreclosure; and (iii) any sale of any of the
Collateral including, without limitation, any sale by (a) any of the Credit
Parties (whether outside of bankruptcy or as debtor-in-possession), (b) a
receiver for any of the Credit Parties, (c) a trustee for any of the Credit
Parties or (d) the Administrative Agent or the Collateral Agent pursuant to the
terms of the Credit Documents or applicable law, provided, however, that (x) in
connection with any sale of the Collateral made during the pendency of any
Insolvency Proceedings, such sale must be approved and determined to be
reasonable by a court of competent jurisdiction and (y) in connection with any
sale of the Collateral made during a time when Insolvency Proceedings are not
pending, such sale must be conducted in a commercially reasonable manner.
Nothing in any Credit Document shall be construed to prohibit any Secured
Creditor from bidding at any private or judicial sale of any Collateral.
(b) Notwithstanding anything to the contrary in any Credit Document,
during the continuance of any Event of Default, the Required Senior Lenders
shall have the exclusive authority to authorize the release of any Subsidiary
Guarantor from the Subsidiaries Guaranty in connection with the sale or other
disposition of the equity interests of such Subsidiary Guarantor, so long as
such sale or other disposition is made (and the proceeds of such sale or
disposition are applied) in accordance with the requirements of the second
sentence of Section 14.02(a).
14.03 WAIVER OF LIABILITY FOR ACTIONS TAKEN WITH RESPECT TO B TERM
LOAN OBLIGATIONS AND COLLATERAL. Subject to clause (y) of the proviso appearing
in the penultimate sentence of Section 14.02(a), neither the Administrative
Agent, the Collateral Agent nor any Secured Creditor shall have any liability to
the holder of any B Term Loan Obligations (in its capacity as such), and each B
Term Loan Lender (in its capacity as such), on behalf of itself and its
successors and assigns, hereby waives to the extent permitted by applicable law
any claim, right, action or cause of action which it may now or hereafter have
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against the Administrative Agent, the Collateral Agent or any other Secured
Creditor (including, without limitation, any and all claims, rights, actions or
causes of action that any B Term Loan Lender may otherwise have against the
Administrative Agent, the Collateral Agent or any other Secured Creditor under
Sections 9-207, 9-609, 9-610, 9-611, 9-615, 9-617 and 9-625 to 9-628, inclusive,
of the UCC) arising out of, any and all actions which the Administrative Agent,
the Collateral Agent or any other Secured Creditor, in good faith, takes or
omits to take with respect to the Obligations, any obligor with respect to the
Senior Obligations or any Collateral, including, without limitation, actions
with respect to: the creation, perfection or continuation of Liens with respect
to any Collateral; any Lien Enforcement Action or disposition of any Collateral;
the release of any Collateral; the custody, valuation, protection, preservation,
use or depreciation of any Collateral; the realizing upon or failure to realize
upon any Collateral; or the collection of the Obligations. To the extent that
any of the foregoing waivers is not permitted by applicable law, it is agreed
that the applicable standard by which any non-waivable rights, duties or claims
are to be measured shall be that none of the Administrative Agent, the
Collateral Agent or any other Secured Creditor shall have any liability or
responsibility to any holder of any B Term Loan Obligations, for any actions or
omissions by the Administrative Agent, the Collateral Agent or such Secured
Creditor other than actions or omissions constituting gross negligence or wilful
misconduct of the respective such Person as determined by a court of competent
jurisdiction in a final and non-appealable decision.
14.04 FURTHER ASSURANCES. Each of the holders of the B Term Loan
Obligations agrees to take such further action and shall execute and deliver to
the Administrative Agent, the Collateral Agent and the Senior Creditors such
additional documents and instruments (in recordable form, if requested) as the
Administrative Agent, the Collateral Agent or the Senior Creditors may
reasonably request to effectuate the terms of, and the priorities established
by, this Section 14. Each Secured Creditor (by its acceptance of the benefits of
the Credit Documents of which it is a beneficiary) acknowledges, agrees and
accepts the provisions of this Section 14.
* * *
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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:
0000 XX Xxxxxx Xxxxx XXXX0 INC.
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Tel. No.: (000) 000-0000 By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Fax No.: (000) 000-0000 Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
BNP PARIBAS,
Individually and as Administrative Agent
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
By: /s/ X. Xxxxxxxxx
--------------------------------
Name: X. Xxxxxxxxx
Title: Managing Director
BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
XXXXXXX XXXXX CAPITAL,
a division of XXXXXXX XXXXX BUSINESS
FINANCIAL SERVICES, INC.
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Director
