Exhibit 10.1
CREDIT AND GUARANTY AGREEMENT
DATED AS OF SEPTEMBER 5, 2002
AMONG
XXXXX INC.,
CERTAIN SUBSIDIARIES OF XXXXX INC.,
AS GUARANTORS,
VARIOUS LENDERS,
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
AS SOLE LEAD ARRANGER, SOLE BOOK RUNNER, SYNDICATION AGENT,
COLLATERAL AGENT AND ADMINISTRATIVE AGENT
BEAR XXXXXXX CORPORATE LENDING INC.,
AS CO-DOCUMENTATION AGENT,
AND
CREDIT SUISSE FIRST BOSTON, CAYMAN ISLANDS BRANCH,
AS CO-DOCUMENTATION AGENT
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$100,000,000 SENIOR SECURED CREDIT FACILITIES
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND INTERPRETATION....................................................................... 2
1.1. DEFINITIONS..................................................................................... 2
1.2. ACCOUNTING TERMS................................................................................ 35
1.3. INTERPRETATION, ETC............................................................................. 36
SECTION 2. LOANS AND LETTERS OF CREDIT.......................................................................... 36
2.1. TERM LOANS...................................................................................... 36
2.2. REVOLVING LOANS................................................................................. 37
2.3. ISSUANCE OF LETTERS OF CREDIT AND PURCHASE OF PARTICIPATIONS THEREIN............................ 38
2.4. PRO RATA SHARES; AVAILABILITY OF FUNDS.......................................................... 42
2.5. USE OF PROCEEDS................................................................................. 43
2.6. EVIDENCE OF DEBT; REGISTER; LENDERS' BOOKS AND RECORDS; NOTES................................... 43
2.7. INTEREST ON LOANS............................................................................... 44
2.8. CONVERSION/CONTINUATION......................................................................... 46
2.9. DEFAULT INTEREST................................................................................ 46
2.10. FEES........................................................................................... 47
2.11. SCHEDULED INSTALLMENTS......................................................................... 48
2.12. VOLUNTARY PREPAYMENTS/COMMITMENT REDUCTIONS.................................................... 49
2.13. MANDATORY PREPAYMENTS.......................................................................... 50
2.14. APPLICATION OF PREPAYMENTS/REDUCTIONS.......................................................... 51
2.15. GENERAL PROVISIONS REGARDING PAYMENTS.......................................................... 52
2.16. [RESERVED.].................................................................................... 53
2.17. RATABLE SHARING................................................................................ 53
2.18. MAKING OR MAINTAINING EURODOLLAR RATE LOANS.................................................... 54
2.19. INCREASED COSTS; CAPITAL ADEQUACY.............................................................. 56
2.20. TAXES; WITHHOLDING, ETC........................................................................ 57
2.21. OBLIGATION TO MITIGATE......................................................................... 59
2.22. DEFAULTING LENDERS............................................................................. 60
2.23. REMOVAL OR REPLACEMENT OF A LENDER............................................................. 61
SECTION 3. CONDITIONS PRECEDENT AND SUBSEQUENT.................................................................. 62
3.1. CONDITIONS PRECEDENT TO CLOSING DATE............................................................ 62
3.2. CONDITIONS PRECEDENT TO EACH CREDIT EXTENSION................................................... 67
3.3. CONDITIONS SUBSEQUENT TO CLOSING DATE........................................................... 68
SECTION 4. REPRESENTATIONS AND WARRANTIES....................................................................... 69
4.1. ORGANIZATION; REQUISITE POWER AND AUTHORITY; QUALIFICATION...................................... 69
4.2. CAPITAL STOCK AND OWNERSHIP..................................................................... 69
4.3. DUE AUTHORIZATION............................................................................... 70
4.4. NO CONFLICT..................................................................................... 70
4.5. GOVERNMENTAL CONSENTS........................................................................... 70
4.6. BINDING OBLIGATION.............................................................................. 70
4.7. HISTORICAL FINANCIAL STATEMENTS................................................................. 71
4.8. PROJECTIONS..................................................................................... 71
4.9. NO MATERIAL ADVERSE EFFECT...................................................................... 71
4.10. NO RESTRICTED JUNIOR PAYMENTS.................................................................. 71
4.11. ADVERSE PROCEEDINGS, ETC....................................................................... 71
4.12. PAYMENT OF TAXES............................................................................... 72
4.13. PROPERTIES..................................................................................... 72
4.14. ENVIRONMENTAL MATTERS.......................................................................... 72
4.15. NO DEFAULTS.................................................................................... 73
4.16. MATERIAL CONTRACTS............................................................................. 73
4.17. GOVERNMENTAL REGULATION........................................................................ 73
4.18. MARGIN STOCK................................................................................... 73
4.19. EMPLOYEE MATTERS............................................................................... 73
4.20. EMPLOYEE BENEFIT PLANS......................................................................... 74
4.21. CERTAIN FEES................................................................................... 74
4.22. SOLVENCY....................................................................................... 75
4.23. RELATED AGREEMENTS............................................................................. 75
4.24. COMPLIANCE WITH STATUTES, ETC.................................................................. 75
4.25. DISCLOSURE..................................................................................... 75
4.26. [RESERVED.].................................................................................... 76
4.27. [RESERVED.].................................................................................... 76
4.28. INVENTORY...................................................................................... 76
4.29. EQUIPMENT...................................................................................... 76
4.30. LOCATION OF EQUIPMENT.......................................................................... 76
4.31. LOCATION OF CHIEF EXECUTIVE OFFICE; FEIN....................................................... 76
4.32. INTELLECTUAL PROPERTY.......................................................................... 76
4.33. LEASES......................................................................................... 77
4.34. DEPOSIT ACCOUNTS............................................................................... 77
4.35. INDEBTEDNESS................................................................................... 77
4.36. CUSTOMERS AND SUPPLIERS........................................................................ 77
SECTION 5. AFFIRMATIVE COVENANTS................................................................................ 77
5.1. FINANCIAL STATEMENTS AND OTHER REPORTS.......................................................... 78
5.2. EXISTENCE....................................................................................... 82
5.3. COLLATERAL REPORTING............................................................................ 82
5.4. PAYMENT OF TAXES AND CLAIMS..................................................................... 83
5.5. MAINTENANCE OF PROPERTIES....................................................................... 83
5.6. INSURANCE....................................................................................... 83
5.7. [RESERVED.]..................................................................................... 84
5.8. LEASES.......................................................................................... 84
5.9. INSPECTIONS..................................................................................... 84
5.10. LENDERS MEETINGS............................................................................... 84
5.11. COMPLIANCE WITH LAWS........................................................................... 85
5.12. ENVIRONMENTAL.................................................................................. 85
5.13. ADDITIONAL MATERIAL REAL ESTATE ASSETS......................................................... 86
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5.14. SUBSIDIARIES................................................................................... 86
5.15. INTEREST RATE PROTECTION....................................................................... 87
5.16. FURTHER ASSURANCES............................................................................. 87
5.17. MISCELLANEOUS BUSINESS COVENANTS............................................................... 88
5.18. POST-CLOSING OBLIGATIONS....................................................................... 88
SECTION 6. NEGATIVE COVENANTS................................................................................... 88
6.1. INDEBTEDNESS.................................................................................... 88
6.2. LIENS.......................................................................................... . 90
6.3. EQUITABLE LIEN.................................................................................. 92
6.4. NO FURTHER NEGATIVE PLEDGES..................................................................... 92
6.5. RESTRICTED JUNIOR PAYMENTS...................................................................... 92
6.6. RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS........................................................ 92
6.7. INVESTMENTS..................................................................................... 93
6.8. FINANCIAL COVENANTS............................................................................. 93
6.9. FUNDAMENTAL CHANGES; DISPOSITION OF ASSETS; ACQUISITIONS........................................ 96
6.10. DISPOSAL OF SUBSIDIARY INTERESTS............................................................... 97
6.11. SALES AND LEASE-BACKS.......................................................................... 97
6.12. TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.................................................. 97
6.13. CONDUCT OF BUSINESS............................................................................ 98
6.14. USE OF PROCEEDS................................................................................ 98
6.15. AMENDMENTS OR WAIVERS OF CERTAIN RELATED AGREEMENTS............................................ 98
6.16. AMENDMENTS OR WAIVERS WITH RESPECT TO SUBORDINATED INDEBTEDNESS................................ 98
6.17. FISCAL YEAR.................................................................................... 98
6.18. [RESERVED.].................................................................................... 98
6.19. CHANGE NAME.................................................................................... 98
6.20. [RESERVED.].................................................................................... 99
6.21. CASH; CONTROL AGREEMENTS....................................................................... 99
6.22. [RESERVED.].................................................................................... 99
SECTION 7. GUARANTY............................................................................................. 99
7.1. GUARANTY OF THE OBLIGATIONS..................................................................... 99
7.2. CONTRIBUTION BY GUARANTORS...................................................................... 99
7.3. PAYMENT BY GUARANTORS........................................................................... 100
7.4. LIABILITY OF GUARANTORS ABSOLUTE................................................................ 100
7.5. WAIVERS BY GUARANTORS........................................................................... 103
7.6. GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC............................................ 103
7.7. SUBORDINATION OF OTHER OBLIGATIONS.............................................................. 104
7.8. CONTINUING GUARANTY............................................................................. 104
7.9. AUTHORITY OF GUARANTORS OR COMPANY.............................................................. 104
7.10. FINANCIAL CONDITION OF COMPANY................................................................. 105
7.11. BANKRUPTCY, ETC................................................................................ 105
7.12. DISCHARGE OF GUARANTY UPON SALE OF GUARANTOR................................................... 106
SECTION 8. EVENTS OF DEFAULT.................................................................................... 106
8.1. EVENTS OF DEFAULT............................................................................... 106
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SECTION 9. AGENTS............................................................................................... 109
9.1. APPOINTMENT OF AGENTS........................................................................... 109
9.2. POWERS AND DUTIES............................................................................... 109
9.3. GENERAL IMMUNITY................................................................................ 110
9.4. AGENTS ENTITLED TO ACT AS LENDER................................................................ 111
9.5. LENDERS' REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENT......................................... 111
9.6. RIGHT TO INDEMNITY.............................................................................. 111
9.7. SUCCESSOR ADMINISTRATIVE AGENT AND COLLATERAL AGENT............................................. 113
9.8. COLLATERAL DOCUMENTS AND GUARANTY............................................................... 114
SECTION 10. MISCELLANEOUS....................................................................................... 114
10.1. NOTICES........................................................................................ 114
10.2. EXPENSES....................................................................................... 115
10.3. INDEMNITY...................................................................................... 115
10.4. SET-OFF........................................................................................ 116
10.5. AMENDMENTS AND WAIVERS......................................................................... 117
10.6. SUCCESSORS AND ASSIGNS; PARTICIPATIONS......................................................... 119
10.7. INDEPENDENCE OF COVENANTS...................................................................... 122
10.8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS......................................... 122
10.9. NO WAIVER; REMEDIES CUMULATIVE................................................................. 122
10.10. MARSHALLING; PAYMENTS SET ASIDE............................................................... 123
10.11. SEVERABILITY.................................................................................. 123
10.12. OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.................................... 123
10.13. HEADINGS...................................................................................... 123
10.14. APPLICABLE LAW................................................................................ 123
10.15. CONSENT TO JURISDICTION....................................................................... 123
10.16. WAIVER OF JURY TRIAL.......................................................................... 124
10.17. CONFIDENTIALITY............................................................................... 125
10.18. USURY SAVINGS CLAUSE.......................................................................... 125
10.19. COUNTERPARTS.................................................................................. 126
10.20. EFFECTIVENESS................................................................................. 126
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APPENDICES: A-1 Term Loan Commitments
A-2 Revolving Commitments
B Notice Addresses
SCHEDULES: 1.1(a) Certain Adjustments to Consolidated Adjusted EBITDA,
Consolidated Fixed Charges and Consolidated Interest Expense
1.1(b) Immaterial Subsidiaries
3.3 Post-Closing Date Mortgaged Properties
4.1 Jurisdictions of Organization and Qualification
4.2 Capital Stock and Ownership
4.11 Adverse Proceedings
4.16 Material Contracts
4.30 Location of Equipment
4.31 Chief Executive Offices
4.34 Deposit Accounts
4.35 Indebtedness
5.18 Post-Closing Obligations
6.1 Certain Indebtedness
6.2 Certain Liens
6.7 Certain Investments
6.12 Certain Affiliate Transactions
EXHIBITS: A-1 Funding Notice
A-2 Conversion/Continuation Notice
A-3 Issuance Notice
B-1 Term Loan Note
B-2 Revolving Loan Note
C Compliance Certificate
D Opinions of Counsel
E Assignment Agreement
F Certificate re Non-Bank Status
G-1 Closing Date Certificate
G-2 Solvency Certificate
H Counterpart Agreement
I Pledge and Security Agreement
J Borrowing Base Certificate
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CREDIT AND GUARANTY AGREEMENT
This CREDIT AND GUARANTY AGREEMENT, dated as of September 5, 2002, is
entered into by and among KROLL INC., a Delaware corporation ("COMPANY"),
CERTAIN SUBSIDIARIES OF COMPANY, as Guarantors, the Lenders party hereto from
time to time, XXXXXXX SACHS CREDIT PARTNERS L.P. ("GSCP"), as Sole Lead
Arranger, Sole Book Runner and Syndication Agent (in such capacities,
"SYNDICATION AGENT"), as Administrative Agent (together with its permitted
successors in such capacity, "ADMINISTRATIVE AGENT"), and as Collateral Agent
(together with its permitted successor in such capacity, "COLLATERAL AGENT"),
BEAR XXXXXXX CORPORATE LENDING INC. ("BEAR XXXXXXX"), as Co-Documentation Agent,
and CREDIT SUISSE FIRST BOSTON, CAYMAN ISLANDS BRANCH ("CSFB"), as
Co-Documentation Agent (in such capacity, together with Bear Xxxxxxx, each a
"CO-DOCUMENTATION AGENT" and, collectively, the "CO-DOCUMENTATION AGENTS").
RECITALS:
WHEREAS, capitalized terms used in these recitals shall have the
respective meanings set forth for such terms in Section 1.1 hereof;
WHEREAS, Lenders have agreed to extend certain credit facilities to
Company, in an aggregate amount not to exceed $100,000,000, consisting of
$75,000,000 aggregate principal amount of Term Loans, the proceeds of which will
be used to finance a portion of the cash portion of the purchase price to be
paid in connection with the Acquisition, and up to $25,000,000 aggregate
principal amount of Revolving Commitments, the proceeds of which will be used to
finance the working capital needs and other general corporate purposes of
Company and its Domestic Subsidiaries;
WHEREAS, Company has agreed to secure all of its Obligations by
granting to Collateral Agent, for the benefit of Secured Parties, a First
Priority Lien on substantially all of its assets, including a pledge of all of
the Capital Stock of each of its Domestic Subsidiaries (other than Immaterial
Subsidiaries) and 65% of all of the Capital Stock of certain of its Foreign
Subsidiaries; and
WHEREAS, Guarantors have agreed to guarantee the Obligations of Company
hereunder and to secure their respective Obligations by granting to Collateral
Agent, for the benefit of Secured Parties, a First Priority Lien on
substantially all of their respective assets, including a pledge of all of the
Capital Stock of each of their respective Domestic Subsidiaries (other than
Immaterial Subsidiaries) and 65% of all of the Capital Stock of certain of their
respective Foreign Subsidiaries.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND INTERPRETATION
1.1. DEFINITIONS. The following terms used herein, including in the
preamble, recitals, exhibits and schedules hereto, shall have the following
meanings:
"ACCOUNT" means any right to payment for goods sold or services
rendered in the ordinary course of business, regardless of how such right is
evidenced and whether or not it has been earned by performance.
"ACCOUNT DEBTOR" means, with respect to any Account, the obligor with
respect to such Account.
"ACQUISITION" means the acquisition by Company of 100% of the
membership interests and/or assets of Target pursuant to the Purchase Agreement.
"ADJUSTED EURODOLLAR RATE" means, for any Interest Rate Determination
Date with respect to an Interest Period for a Eurodollar Rate Loan, the rate per
annum obtained by dividing (and rounding upward to the next whole multiple of
1/16 of 1%) (i) (a) the rate per annum (rounded to the nearest 1/100 of 1%)
equal to the rate determined by Administrative Agent to be the offered rate
which appears on the page of the Telerate Screen which displays an average
British Bankers Association Interest Settlement Rate (such page currently being
page number 3740 or 3750, as applicable) for deposits (for delivery on the first
day of such period) with a term equivalent to such period in Dollars, determined
as of approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (b) in the event the rate referenced in the preceding
clause (a) does not appear on such page or service or if such page or service
shall cease to be available, the rate per annum (rounded to the nearest 1/100 of
1%) equal to the rate determined by Administrative Agent to be the offered rate
on such other page or other service which displays an average British Bankers
Association Interest Settlement Rate for deposits (for delivery on the first day
of such period) with a term equivalent to such period in Dollars, determined as
of approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (c) in the event the rates referenced in the preceding
clauses (a) and (b) are not available, the rate per annum (rounded to the
nearest 1/100 of 1%) equal to the offered quotation rate to first class banks in
the London interbank market by CSFB for deposits (for delivery on the first day
of the relevant period) in Dollars of amounts in same day funds comparable to
the principal amount of the applicable Loan of Administrative Agent, in its
capacity as a Lender, for which the Adjusted Eurodollar Rate is then being
determined with maturities comparable to such period as of approximately 11:00
a.m. (London, England time) on such Interest Rate Determination Date, by (ii) an
amount equal to (a) one minus (b) the Applicable Reserve Requirement.
2
"ADMINISTRATIVE AGENT" as defined in the preamble hereto.
"ADVERSE PROCEEDING" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration (whether or not purportedly on behalf of Company or any of its
Subsidiaries) at law or in equity, or before or by any Governmental Authority,
domestic or foreign (including any Environmental Claims), whether pending or, to
the knowledge of Company or any of its Subsidiaries, threatened against or
directly affecting Company or any of its Subsidiaries or any property of Company
or any of its Subsidiaries.
"AFFECTED LENDER" as defined in Section 2.18(b).
"AFFECTED LOANS" as defined in Section 2.18(b).
"AFFILIATE" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 10% or more of the Securities having
ordinary voting power for the election of directors of such Person or (ii) to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting Securities or by contract or otherwise.
"AGENT" means each of Syndication Agent, Administrative Agent,
Collateral Agent and Co-Documentation Agents.
"AGGREGATE AMOUNTS DUE" as defined in Section 2.17.
"AGGREGATE PAYMENTS" means, with respect to a Contributing Guarantor as
of any date of determination, an amount equal to (1) the aggregate amount of all
payments and distributions made on or before such date by such Contributing
Guarantor in respect of the Guaranty (including, without limitation,
contributions under Section 7.2) minus (2) the aggregate amount of all payments
received on or before such date by such Contributing Guarantor from the other
Contributing Guarantors as contributions under Section 7.2.
"AGREEMENT" means this Credit and Guaranty Agreement, dated as of
September 5, 2002 as it may be amended, supplemented or otherwise modified from
time to time.
"APPLICABLE MARGIN" means, (i) with respect to any Term Loan, the rate
per annum set forth on the table below under the caption for such Loan's Class
and Type and opposite Leverage Ratio Level 2 of the Rating Tier in effect as of
the Closing Date and (ii) with respect to any Revolving Loan, (a) prior to the
First Day, the rate per annum set forth on the table below under the caption for
such Loan's Class and Type and opposite Leverage Ratio Xxxxx 0 of the Rating
3
Tier in effect as of the Closing Date and (b) beginning on the First Day and
thereafter, the rate per annum set forth on the table below under the caption
for such Loan's Class and Type and opposite the Leverage Ratio Level in effect
from time to time of the Rating Tier in effect as of the Closing Date:
RATING TIER LEVERAGE RATIO TERM LOANS REVOLVING LOANS
LEVEL (IN BPS) (IN BPS)
----- -------- --------
Eurodollar Rate Base Rate Eurodollar Rate Base Rate
--------------- --------- --------------- ---------
I 1 300 200 275 175
2 275 175 250 150
3 250 150 225 125
4 225 125 200 100
II 1 325 225 300 200
2 300 200 275 175
3 275 175 250 150
4 250 150 225 125
III 1 350 250 325 225
2 325 225 300 200
3 300 200 275 175
4 275 175 250 150
IV 1 375 275 350 250
2 350 250 325 225
3 325 225 300 200
4 300 200 275 175
V 1 400 300 375 275
2 375 275 350 250
3 350 250 325 225
4 325 225 300 200
Notwithstanding any of the foregoing, upon the repayment of the Term Loans in
full, each of the rates set forth on the table above shall (x) in the case of
the Eurodollar Rate, decrease by 75 basis points and (y) in the case of the Base
Rate, decrease by 37.5 basis points.
No change in the Leverage Ratio Level shall be effective until three (3)
Business Days after the date on which Administrative Agent shall have received
the applicable financial statements and a Compliance Certificate pursuant to
Section 5.1(d) calculating the Leverage Ratio. At any time Company has not
submitted to Administrative Agent the applicable information as and when
required under Section 5.1(d), the Leverage Ratio Level shall be Leverage Ratio
Level 1. Within one (1) Business Day of receipt of the applicable information
under Section 5.1(d),
4
Administrative Agent shall give each Lender telefacsimile or telephonic notice
(confirmed in writing) of the Applicable Margin in effect from such date.
"APPLICABLE RESERVE REQUIREMENT" means, at any time, for any Eurodollar
Rate Loan, the maximum rate, expressed as a decimal, at which reserves
(including, without limitation, any basic marginal, special, supplemental,
emergency or other reserves) are required to be maintained with respect thereto
against "Eurocurrency liabilities" (as such term is defined in Regulation D)
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System or other applicable banking regulator. Without limiting
the effect of the foregoing, the Applicable Reserve Requirement shall reflect
any other reserves required to be maintained by such member banks with respect
to (i) any category of liabilities which includes deposits by reference to which
the applicable Adjusted Eurodollar Rate or any other interest rate of a Loan is
to be determined or (ii) any category of extensions of credit or other assets
which include Eurodollar Rate Loans. A Eurodollar Rate Loan shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed subject to
reserve requirements without benefits of credit for proration, exceptions or
offsets that may be available from time to time to the applicable Lender. The
rate of interest on Eurodollar Rate Loans shall be adjusted automatically on and
as of the effective date of any change in the Applicable Reserve Requirement.
"ASSET SALE" means a sale, lease or sub-lease (as lessor or sublessor),
sale and leaseback, assignment, conveyance, transfer or other disposition to, or
any exchange of property with, any Person (other than any Credit Party), in one
transaction or a series of transactions, of all or any part of Company's or any
of its Subsidiaries' businesses, assets or properties of any kind, whether real,
personal, or mixed and whether tangible or intangible, whether now owned or
hereafter acquired, including, without limitation, the Capital Stock of any of
Company's Subsidiaries, other than inventory (or other assets) sold or leased in
the ordinary course of business (excluding any such sales by operations or
divisions discontinued or to be discontinued).
"ASSIGNMENT AGREEMENT" means an Assignment Agreement substantially in
the form of Exhibit E, with such amendments or modifications as may be approved
by Administrative Agent.
"AUTHORIZED OFFICER" means, as applied to any Person, any individual
holding the position of chairman of the board (if an officer), chief executive
officer, president or one of its vice presidents (or the equivalent thereof),
and such Person's chief financial officer or treasurer.
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy," as now and hereafter in effect, or any successor statute.
"BASE RATE" means, for any day, a rate per annum equal to the greater
of (i) the Prime Rate in effect on such day and (ii) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds
5
Effective Rate shall be effective on the effective day of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"BASE RATE LOAN" means a Loan bearing interest at a rate determined by
reference to the Base Rate.
"BEAR XXXXXXX" as defined in the preamble hereto.
"BENEFICIARY" means each Agent, Issuing Bank, Lender and Lender
Counterparty.
"BORROWING BASE" means, as at any date of determination, an amount
equal to 85% of the amount of Eligible Accounts, determined by reference to the
most recent Borrowing Base Certificate provided to Administrative Agent pursuant
to Section 5.3. Administrative Agent, in its reasonable discretion (after
reasonable consultation with Company), may adjust and revise from time to time
the standards of eligibility for Eligible Accounts, with any changes in such
standards to be effective three (3) Business Days after delivery of notice
thereof to Company.
"BORROWING BASE CERTIFICATE" means a certificate substantially in the
form of Exhibit J.
"BUSINESS DAY" means (i) any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of New York or is a day on
which banking institutions located in such state are authorized or required by
law or other governmental action to close and (ii) with respect to all notices,
determinations, fundings and payments in connection with the Adjusted Eurodollar
Rate or any Eurodollar Rate Loans, any day which is a Business Day described in
clause (i) and which is also a day for trading by and between banks in Dollar
deposits in the London interbank market.
"CAPITAL LEASE" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is or should be accounted for as a capital lease on the
balance sheet of that Person.
"CAPITAL STOCK" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation),
including, without limitation, partnership interests and membership interests,
and any and all warrants, rights or options to purchase or other arrangements or
rights to acquire any of the foregoing.
"CASH" means money, currency or a credit balance in any demand or
Deposit Account.
"CASH EQUIVALENTS" means, as at any date of determination, (i)
marketable Securities (a) issued or directly and unconditionally guaranteed as
to interest and principal by the United States Government or (b) issued by any
agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within one year
after such
6
date; (ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after such date
and having, at the time of the acquisition thereof, a rating of at least A-1
from S&P or at least P-1 from Xxxxx'x; (iii) commercial paper maturing no more
than one year from the date of creation thereof and having, at the time of the
acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
Xxxxx'x; (iv) certificates of deposit or bankers' acceptances maturing within
one year after such date and issued or accepted by any Lender or by any
commercial bank organized under the laws of the United States of America or any
state thereof or the District of Columbia that (a) is at least "adequately
capitalized" (as defined in the regulations of its primary Federal banking
regulator) and (b) has Tier 1 capital (as defined in such regulations) of not
less than $100,000,000; and (v) shares of any money market mutual fund that (a)
has substantially all of its assets invested continuously in the types of
investments referred to in clauses (i) and (ii) above, (b) has net assets of not
less than $500,000,000 and (c) has the highest rating obtainable from either S&P
or Xxxxx'x.
"CERTIFICATE RE NON-BANK STATUS" means a certificate substantially in
the form of Exhibit F.
"CHANGE OF CONTROL" means, at any time, (i) any Person or "group"
(within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) (a) shall
have acquired beneficial ownership of (x) until such time as the Term Loans
shall have been repaid in full, 20% or more and (y) thereafter, 30% or more, in
each case on a fully diluted basis, of the voting and/or economic interest in
the Capital Stock of Company or (b) shall have obtained the power (whether or
not exercised) to elect a majority of the members of the board of directors (or
similar governing body) of Company or (ii) the majority of the seats (other than
vacant seats) on the board of directors (or similar governing body) of Company
cease to be occupied by Persons who either (a) were members of the board of
directors of Company on the Closing Date or (b) were nominated for election by
the board of directors of Company, a majority of whom were directors on the
Closing Date or whose election or nomination for election was previously
approved by a majority of such directors or by a majority of directors who were
nominated by such directors.
"CLASS" means (i) with respect to Lenders, each of the following
classes of Lenders: (a) Lenders having Term Loan Exposure and (b) Lenders having
Revolving Exposure and (ii) with respect to Loans, each of the following classes
of Loans: (a) Term Loans and (b) Revolving Loans.
"CLOSING DATE" means the date on which the Term Loans are made.
"CLOSING DATE CERTIFICATE" means a Closing Date Certificate
substantially in the form of Exhibit G-1.
"CO-DOCUMENTATION AGENTS" as defined in the preamble hereto.
7
"COLLATERAL" means, collectively, all of the real, mixed and personal
property (including Capital Stock, Deposit Accounts, and Securities Accounts) in
which Liens are purported to be granted pursuant to the Collateral Documents as
security for the Obligations.
"COLLATERAL AGENT" as defined in the preamble hereto.
"COLLATERAL DOCUMENTS" means the Pledge and Security Agreement, the
Mortgages, if any, and all other instruments, documents and agreements delivered
by any Credit Party pursuant to this Agreement or any of the other Credit
Documents in order to grant to Collateral Agent, for the benefit of Lenders, a
Lien on any real, mixed or personal property of that Credit Party as security
for the Obligations.
"COLLATERAL QUESTIONNAIRE" means a certificate in form reasonably
satisfactory to Collateral Agent that provides information with respect to the
personal or mixed property of each Credit Party.
"COMPANY" as defined in the preamble hereto.
"COMMITMENT" means any Revolving Commitment or Term Loan Commitment.
"COMPLIANCE CERTIFICATE" means a Compliance Certificate substantially
in the form of Exhibit C.
"CONSOLIDATED ADJUSTED EBITDA" means, for any period, an amount
determined for Company and its Subsidiaries on a consolidated basis equal to (i)
the sum, without duplication, of the amounts for such period of (a) Consolidated
Net Income, (b) Consolidated Interest Expense, (c) provisions for taxes based on
income, (d) total depreciation expense, (e) total amortization expense, and (f)
other non-Cash items reducing Consolidated Net Income (excluding any such
non-Cash item to the extent that it represents an accrual or reserve for
potential Cash items in any future period or amortization of a prepaid Cash item
that was paid in a prior period) minus (ii) other non-Cash items increasing
Consolidated Net Income for such period (excluding any such non-Cash item to the
extent it represents the reversal of an accrual or reserve for potential Cash
item in any prior period); provided that, with respect to any period or portion
thereof occurring prior to the Closing Date, Consolidated Adjusted EBITDA shall
be adjusted in accordance with Schedule 1.1(a).
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
aggregate of all expenditures (including, without limitation, database
capitalization) of Company and its Subsidiaries during such period determined on
a consolidated basis that, in accordance with GAAP, are or should be included in
"purchase of property and equipment" or similar items reflected in the
consolidated statement of cash flows of Company and its Subsidiaries.
8
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period,
Consolidated Interest Expense for such period, excluding any amount not payable
in Cash.
"CONSOLIDATED CURRENT ASSETS" means, as at any date of determination,
the total assets of Company and its Subsidiaries on a consolidated basis that
may properly be classified as current assets in conformity with GAAP, excluding
Cash and Cash Equivalents.
"CONSOLIDATED CURRENT LIABILITIES" means, as at any date of
determination, the total liabilities of Company and its Subsidiaries on a
consolidated basis that may properly be classified as current liabilities in
conformity with GAAP, excluding the current portion of long term debt.
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an amount (if
positive) equal to: (i) the sum, without duplication, of the amounts for such
period of (a) Consolidated Adjusted EBITDA plus (b) the Consolidated Working
Capital Adjustment, minus (ii) the sum, without duplication, of the amounts for
such period of (a) voluntary and scheduled repayments of Consolidated Total Debt
(excluding repayments of Revolving Loans except to the extent the Revolving
Commitments are permanently reduced in connection with such repayments), (b)
Consolidated Capital Expenditures (net of any proceeds of (y) any related
financings with respect to such expenditures and (z) any sales of assets used to
finance such expenditures), (c) Consolidated Cash Interest Expense, (d)
provisions for current taxes based on income of Company and its Subsidiaries and
payable in Cash with respect to such period and (e) Cash payments made in
connection with Permitted Acquisitions in accordance with Section 6.9(e).
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum, without
duplication, of the amounts determined for Company and its Subsidiaries on a
consolidated basis equal to (i) Consolidated Interest Expense, (ii) scheduled
payments of principal on Consolidated Total Debt, (iii) Consolidated Capital
Expenditures and (iv) the portion of taxes based on income actually paid in cash
and provisions for cash income taxes; provided that, with respect to any period
or portion thereof occurring prior to the Closing Date, Consolidated Fixed
Charges shall be adjusted in accordance with Schedule 1.1(a).
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP and capitalized interest) of Company and its Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness of Company and
its Subsidiaries, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and net costs under Interest Rate
Agreements, but excluding, however, (i) any amounts referred to in Section
2.10(d) payable on or before the Closing Date and (ii) the amount of any
original issue discount otherwise included in Consolidated Interest Expense to
the extent derived from the Senior Subordinated Notes; provided that, with
respect to any period or portion thereof occurring prior to the Closing Date,
Consolidated Interest Expense shall be adjusted in accordance with Schedule
1.1(a).
9
"CONSOLIDATED NET INCOME" means, for any period, (i) the net income (or
loss) of Company and its Subsidiaries on a consolidated basis for such period
taken as a single accounting period determined in conformity with GAAP minus
(ii) (a) the income (or loss) of any Person (other than a Subsidiary of Company)
in which any other Person (other than Company or any of its Subsidiaries) has a
joint interest, except to the extent of the amount of dividends or other
distributions actually paid to Company or any of its Subsidiaries by such Person
during such period, (b) the income (or loss) of any Person accrued prior to the
date it becomes a Subsidiary of Company or is merged into or consolidated with
Company or any of its Subsidiaries or that Person's assets are acquired by
Company or any of its Subsidiaries, (c) the income of any Subsidiary of Company
to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary, (d) any after-tax gains or losses attributable to Asset Sales or
returned surplus assets of any Pension Plan, and (e) (to the extent not included
in clauses (a) through (d) above) any net extraordinary gains or net
extraordinary losses.
"CONSOLIDATED TOTAL DEBT" means, as at any date of determination, the
aggregate stated balance sheet amount of all Indebtedness of Company and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED WORKING CAPITAL" means, as at any date of determination,
the excess of Consolidated Current Assets over Consolidated Current Liabilities.
"CONSOLIDATED WORKING CAPITAL ADJUSTMENT" means, for any period on a
consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or is
less than) Consolidated Working Capital as of the end of such period.
"CONTRACTUAL OBLIGATION" means, as applied to any Person, any provision
of any Security issued by that Person or of any indenture, mortgage, deed of
trust, contract, undertaking, agreement or other instrument to which that Person
is a party or by which it or any of its properties is bound or to which it or
any of its properties is subject.
"CONTRIBUTING GUARANTORS" as defined in Section 7.2.
"CONTROL AGREEMENT" means a control agreement, in form and substance
reasonably satisfactory to Administrative Agent and Company, executed and
delivered by the applicable Credit Party, Collateral Agent and securities
intermediary with respect to a Securities Account or bank with respect to a
Deposit Account.
"CONVERSION/CONTINUATION DATE" means the effective date of a
continuation or conversion, as the case may be, as set forth in the applicable
Conversion/Continuation Notice.
10
"CONVERSION/CONTINUATION NOTICE" means a Conversion/Continuation Notice
substantially in the form of Exhibit A-2.
"COPYRIGHT SECURITY AGREEMENT" means a copyright security agreement
executed and delivered by each Credit Party and Collateral Agent, the form and
substance of which is reasonably satisfactory to Collateral Agent and Company.
"COUNTERPART AGREEMENT" means a Counterpart Agreement substantially in
the form of Exhibit H delivered by a Credit Party pursuant to Section 5.14.
"CREDIT DATE" means the date of a Credit Extension.
"CREDIT DOCUMENT" means any of this Agreement, the Notes, if any, the
Collateral Documents, any documents or certificates executed by Company in favor
of Issuing Bank relating to Letters of Credit, and all other documents,
instruments or agreements executed and delivered by a Credit Party for the
benefit of any Agent, Issuing Bank or any Lender in connection herewith.
"CREDIT EXTENSION" means the making of a Loan or the issuing of a
Letter of Credit.
"CREDIT PARTY" means Company and each Person that is from time to time
a Guarantor and/or a Grantor.
"CSFB" as defined in the preamble hereto.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency swap
agreement, futures contract, option contract, synthetic cap or other similar
agreement or arrangement, each of which is for the purpose of hedging the
foreign currency risk associated with Company's and its Subsidiaries' operations
and not for speculative purposes.
"DEFAULT" means a condition or event that, after notice or lapse of
time or both, would constitute an Event of Default.
"DEFAULT EXCESS" means, with respect to any Defaulting Lender, the
excess, if any, of such Defaulting Lender's Pro Rata Share of the aggregate
outstanding principal amount of Loans of all Lenders (calculated as if all
Defaulting Lenders (other than such Defaulting Lender) had funded all of their
respective Defaulted Loans) over the aggregate outstanding principal amount of
all Loans of such Defaulting Lender.
"DEFAULT PERIOD" means, with respect to any Defaulting Lender, the
period commencing on the date of the applicable Funding Default and ending on
the earliest of the following dates: (i) the date on which all Commitments are
cancelled or terminated and/or the Obligations are declared or become
immediately due and payable, (ii) the date on which (a) the Default Excess
11
with respect to such Defaulting Lender shall have been reduced to zero (whether
by the funding by such Defaulting Lender of any Defaulted Loans of such
Defaulting Lender or by the non-pro rata application of any voluntary or
mandatory prepayments of the Loans in accordance with the terms of Sections 2.12
or 2.13 or by a combination thereof) and (b) such Defaulting Lender shall have
delivered to Company and Administrative Agent a written reaffirmation of its
intention to honor its obligations hereunder with respect to its Commitments and
(iii) the date on which Company, Administrative Agent and Requisite Lenders
waive all Funding Defaults of such Defaulting Lender in writing.
"DEFAULTING LENDER" as defined in Section 2.22.
"DEFAULTED LOAN" as defined in Section 2.22.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"DOLLARS" and the sign "$" mean the lawful money of the United States
of America.
"DOMESTIC SUBSIDIARY" means any Subsidiary organized under the laws of
the United States of America, any State thereof or the District of Columbia.
"ELIGIBLE ACCOUNTS" means Credit Parties' Accounts, net of any customer
deposits, unapplied cash remitted to Credit Parties and retainages; provided,
however, that Eligible Accounts excludes the following:
(i) Accounts that the Account Debtor has failed to pay within
one hundred twenty (120) days of original invoice date or Accounts with
selling terms of more than thirty (30) days;
(ii) Accounts owed by an Account Debtor (or its Affiliates)
where 50% or more of all Accounts owed by that Account Debtor (or its
Affiliates) are deemed ineligible under clause (i) above;
(iii) Accounts with respect to which the Account Debtor is an
employee, Affiliate or agent of any Credit Party;
(iv) Accounts arising in a transaction wherein services are
sold on any terms by reason of which the payment by the Account Debtor
may be conditional;
(v) Accounts that are not payable in Dollars;
12
(vi) Accounts with respect to which the Account Debtor either
(a) does not maintain its chief executive office in the United States,
(b) is not organized under the laws of the United States or any state
thereof or (c) is the government of any foreign country or sovereign
state, or of any state, province, municipality or other political
subdivision thereof, or of any department, agency, public corporation
or other instrumentality thereof, unless (i) the Account is supported
by an irrevocable letter of credit reasonably satisfactory to
Administrative Agent (as to form, substance and issuer or domestic
confirming bank) that has been delivered to Administrative Agent and is
directly drawable by Administrative Agent, or (ii) the Account is
covered by credit insurance in form, substance and amount, and by an
insurer, reasonably satisfactory to Administrative Agent;
(vii) Accounts with respect to which the Account Debtor is
either (i) the United States or any department, agency or
instrumentality of the United States (exclusive, however, of Accounts
with respect to which the applicable Credit Party has complied, to the
reasonable satisfaction of Collateral Agent, with the Assignment of
Claims Act, 31 U.S.C. Section 3727) or (ii) any state of the United
States (exclusive, however, of (a) Accounts owed by any state that does
not have a statutory counterpart to the Assignment of Claims Act and
(b) Accounts owed by any state that does have a statutory counterpart
to the Assignment of Claims Act as to which the applicable Credit Party
has complied to Collateral Agent's reasonable satisfaction);
(viii) Accounts with respect to which the Account Debtor is a
creditor of any Credit Party, has or has asserted, in writing, a right
of return, a right of cancellation, a right of setoff or a
counterclaim, has disputed, in writing, its liability, has asserted a
defense to its liability, or has made any claim, in writing, with
respect to its obligation to pay the Account, to the extent of such
claim, defense, counterclaim, right of return, right of cancellation,
right of setoff or dispute;
(ix) Accounts with respect to an Account Debtor whose total
obligations owing to Credit Parties exceed 10% of all Eligible
Accounts, to the extent of the obligations owing by such Account Debtor
in excess of such percentage;
(x) Accounts, other than Target Accounts, with respect to
which the Account Debtor is subject to a bankruptcy, reorganization or
insolvency case or proceeding, is not Solvent, has gone out of business
or as to which a Credit Party has received notice of an imminent
bankruptcy, reorganization or insolvency case or proceeding or a
material impairment of the financial condition of such Account Debtor;
(xi) Accounts with respect to which the Account Debtor is
located in the states of New Jersey, Minnesota or West Virginia (or any
other state that requires a creditor to file a business activity report
or similar document in order to bring suit or otherwise
13
enforce its remedies against such Account Debtor in the courts or
through any judicial process of such state), unless the applicable
Credit Party has qualified to do business in New Jersey, Minnesota,
West Virginia or such other states, or has filed a business activities
report with the applicable division of taxation, the department of
revenue or with such other state offices, as appropriate, for the
then-current year or is exempt from such filing requirement;
(xii) Accounts, other than Target Accounts, the collection of
which Collateral Agent, in its reasonable discretion, believes to be
doubtful by reason of the Account Debtor's financial condition;
(xiii) Accounts that are not subject to a First Priority Lien
in favor of Secured Parties;
(xiv) Accounts with respect to which the services giving rise
to such Account have not been performed and billed to the Account
Debtor;
(xv) Accounts, other than Target Accounts, that represent the
right to receive progress payments or other advance xxxxxxxx that are
due prior to the completion of performance by Company or the applicable
Credit Party of the subject contract for goods or services; or
(xvi) Accounts created by a Credit Party whose Tangible Net
Worth is not in excess of $0.
"ELIGIBLE ASSIGNEE" means (i) any Lender, any Affiliate of any Lender
and any Related Fund (any two or more Related Funds being treated as a single
Eligible Assignee for all purposes hereof), and (ii) any commercial bank,
insurance company, investment or mutual fund or other entity that is an
"accredited investor" (as defined in Regulation D under the Securities Act) and
which extends credit or buys loans as one of its businesses; provided, no
Affiliate of Company shall be an Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as defined in
Section 3(3) of ERISA which is or was sponsored, maintained or contributed to
by, or required to be contributed by, Company, any of its Subsidiaries or any of
their respective ERISA Affiliates.
"ENVIRONMENTAL CLAIM" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise) by any Governmental Authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law; (ii) in connection with any
Hazardous Material or any actual or alleged Hazardous Materials Activity; or
(iii) in connection with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.
14
"ENVIRONMENTAL LAWS" means any and all current or future foreign or
domestic, federal or state (or any subdivision of either of them), statutes,
ordinances, orders, rules, regulations, judgments, Governmental Authorizations
or any other requirements of Governmental Authorities relating to (i)
environmental matters, including those relating to any Hazardous Materials
Activity; (ii) the generation, use, storage, transportation or disposal of
Hazardous Materials; or (iii) occupational safety and health, industrial
hygiene, land use or the protection of human, plant or animal health or welfare,
in any manner applicable to Company or any of its Subsidiaries or any Facility.
"EQUIPMENT" means all of Company's and its Subsidiaries' now owned or
hereafter acquired right, title and interest with respect to equipment,
machinery, machine tools, motors, furniture, furnishings, fixtures, vehicles
(including motor vehicles), tools and parts, wherever located, including all
attachments, accessories, accessions, replacements, substitutions, additions and
improvements to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto.
"ERISA AFFILIATE" means, as applied to any Person, (i) any corporation
which is a member of a controlled group of corporations within the meaning of
Section 414(b) of the Internal Revenue Code of which that Person is a member;
(ii) any trade or business (whether or not incorporated) which is a member of a
group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii)
any member of an affiliated service group within the meaning of Section 414(m)
or (o) of the Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described in clause (ii)
above is a member. Any former ERISA Affiliate of Company or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate of Company or
any such Subsidiary within the meaning of this definition with respect to the
period such entity was an ERISA Affiliate of Company or such Subsidiary and with
respect to liabilities arising after such period for which Company or such
Subsidiary could be liable under the Internal Revenue Code or ERISA.
"ERISA EVENT" means (i) a "reportable event" within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with respect to any
Pension Plan (excluding those for which the provision for 30-day notice to the
PBGC has been waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure to make by its due date a required
installment under Section 412(m) of the Internal Revenue Code with respect to
any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan
pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such
plan in a distress termination described in Section 4041(c) of ERISA; (iv) the
withdrawal
15
by Company, any of its Subsidiaries or any of their respective ERISA Affiliates
from any Pension Plan with two or more contributing sponsors or the termination
of any such Pension Plan resulting in liability to Company, any of its
Subsidiaries or any of their respective Affiliates pursuant to Section 4063 or
4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any
Pension Plan, or the occurrence of any event or condition which might constitute
grounds under ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; (vi) the imposition of liability on Company, any
of its Subsidiaries or any of their respective ERISA Affiliates pursuant to
Section 4062(e) or 4069 of ERISA or by reason of the application of Section
4212(c) of ERISA; (vii) the withdrawal of Company, any of its Subsidiaries or
any of their respective ERISA Affiliates in a complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer
Plan if there is any potential liability therefore, or the receipt by Company,
any of its Subsidiaries or any of their respective ERISA Affiliates of notice
from any Multiemployer Plan that it is in reorganization or insolvency pursuant
to Section 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act
or omission which could give rise to the imposition on Company, any of its
Subsidiaries or any of their respective ERISA Affiliates of material fines,
penalties, taxes or related charges under Chapter 43 of the Internal Revenue
Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA
in respect of any Employee Benefit Plan; (ix) the assertion of a material claim
(other than routine claims for benefits) against any Employee Benefit Plan other
than a Multiemployer Plan or the assets thereof, or against Company, any of its
Subsidiaries or any of their respective ERISA Affiliates in connection with any
Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice
of the failure of any Pension Plan (or any other Employee Benefit Plan intended
to be qualified under Section 401(a) of the Internal Revenue Code) to qualify
under Section 401(a) of the Internal Revenue Code, or of the failure of any
trust forming part of any Pension Plan to qualify for exemption from taxation
under Section 501(a) of the Internal Revenue Code, which failure cannot be
corrected without a material expenditure by Company or its Subsidiaries or the
imposition of a material fine or penalty; or (xi) the imposition of a Lien
pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan.
"EURODOLLAR RATE LOAN" means a Loan bearing interest at a rate
determined by reference to the Adjusted Eurodollar Rate.
"EVENT OF DEFAULT" means each of the conditions or events set forth in
Section 8.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"EXISTING INDEBTEDNESS" means Indebtedness and other obligations
outstanding under that certain Loan and Security Agreement dated as of February
15, 2002 between Company,
16
certain of Company's Subsidiaries and Foothill Capital Corporation, as amended
prior to the Closing Date.
"FACILITY" means any real property (including all buildings, fixtures
or other improvements located thereon) now, hereafter or heretofore owned,
leased, operated or used by Company or any of its Subsidiaries or any of their
respective predecessors or Affiliates.
"FAIR SHARE" means, with respect to a Contributing Guarantor as of any
date of determination, an amount equal to (a) the ratio of (i) the Fair Share
Contribution Amount with respect to such Contributing Guarantor to (ii) the
aggregate of the Fair Share Contribution Amounts with respect to all
Contributing Guarantors multiplied by (b) the aggregate amount paid or
distributed on or before such date by all Funding Guarantors under the Guaranty
in respect of the Guaranteed Obligations.
"FAIR SHARE CONTRIBUTION AMOUNT" means, with respect to a Contributing
Guarantor as of any date of determination, the maximum aggregate amount of the
Obligations of such Contributing Guarantor under the Guaranty that would not
render its Obligations hereunder or thereunder subject to avoidance as a
fraudulent transfer or conveyance under Section 548 of the Bankruptcy or any
comparable applicable provisions of state law; provided, solely for purposes of
calculating the Fair Share Contribution Amount with respect to any Contributing
Guarantor for purposes of Section 7.2, any assets or liabilities of such
Contributing Guarantor arising by virtue of any rights to subrogation,
reimbursement or indemnification or any rights to or Obligations of contribution
hereunder shall not be considered as assets or liabilities of such Contributing
Guarantor.
"FAIR SHARE SHORTFALL" means, with respect to a Contributing Guarantor
as of any date of determination, the excess, if any, of the Fair Share of such
Contributing Guarantor over the Aggregate Payments of such Contributing
Guarantor.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the rate per annum
(expressed as a decimal, rounded upwards, if necessary, to the next higher 1/100
of 1%) equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day; provided, (i) if such day is not a
Business Day, the Federal Funds Effective Rate for such day shall be such rate
on such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (ii) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Effective Rate for such day
shall be the average rate charged to Administrative Agent, in its capacity as a
Lender, on such day on such transactions as determined by Administrative Agent.
"FINANCIAL OFFICER CERTIFICATION" means, with respect to the financial
statements for which such certification is required, the certification of the
chief financial officer of Company
17
that such financial statements fairly present, in all material respects, the
financial condition of Company and its Subsidiaries as at the dates indicated
and the results of their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and normal year-end
adjustments.
"FINANCIAL PLAN" as defined in Section 5.1(i).
"FIRST DAY" means the first day of the first Interest Period occurring
after the date of delivery of the Compliance Certificate and the financial
statements for the first Fiscal Quarter ending in 2003.
"FIRST PRIORITY" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that such Lien is
duly perfected and valid and is the only Lien to which such Collateral is
subject, other than any Permitted Lien.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Company and its Subsidiaries
ending on December 31 of each calendar year.
"FIXED CHARGE COVERAGE RATIO" means the ratio as of the last day of any
Fiscal Quarter of (i) Consolidated Adjusted EBITDA for the four-Fiscal Quarter
period then ending to (ii) Consolidated Fixed Charges for such four-Fiscal
Quarter period.
"FOREIGN SUBSIDIARY" means any Subsidiary that is not a Domestic
Subsidiary.
"FUNDING DEFAULT" as defined in Section 2.22.
"FUNDING GUARANTOR" as defined in Section 7.2.
"FUNDING NOTICE" means a notice substantially in the form of Exhibit
A-1.
"GAAP" means, subject to the limitations on the application thereof set
forth in Xxxxxxx 0.0, Xxxxxx Xxxxxx generally accepted accounting principles in
effect as of the date of determination thereof.
"GOVERNMENTAL ACTS" means any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
Governmental Authority.
"GOVERNMENTAL AUTHORITY" means any federal, state, municipal, national
or other government, governmental department, commission, board, bureau, court,
agency or instrumentality or political subdivision thereof or any entity or
officer exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to any government
18
or any court, in each case whether associated with a state of the United States,
the United States, or a foreign entity or government.
"GOVERNMENTAL AUTHORIZATION" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any Governmental
Authority.
"GRANTOR" as defined in the Pledge and Security Agreement.
"GSCP" as defined in the preamble hereto.
"GUARANTEED OBLIGATIONS" as defined in Section 7.1.
"GUARANTOR" means each Domestic Subsidiary of Company other than
Immaterial Subsidiaries.
"GUARANTY" means the guaranty of each Guarantor set forth in Section 7.
"HAZARDOUS MATERIALS" means any chemical, material or substance,
exposure to which is prohibited, limited or regulated by any Governmental
Authority or which may or could pose a hazard to the health and safety of the
owners, occupants or any Persons in the vicinity of any Facility or to the
indoor or outdoor environment.
"HAZARDOUS MATERIALS ACTIVITY" means any past, current, proposed or
threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"HEDGE AGREEMENT" means an Interest Rate Agreement or a Currency
Agreement entered into with a Lender Counterparty in order to satisfy the
requirements of this Agreement or otherwise in the ordinary course of Company's
or any of its Subsidiaries' businesses.
"HIGHEST LAWFUL RATE" means the maximum lawful interest rate, if any,
that at any time or from time to time may be contracted for, charged, or
received under the laws applicable to any Lender which are presently in effect
or, to the extent allowed by law, under such applicable laws which may hereafter
be in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.
"HISTORICAL FINANCIAL STATEMENTS" means, as of the Closing Date, (i)
the audited financial statements of Company and its Subsidiaries, for the period
ended December 31, 2001, consisting of balance sheets and the related
consolidated statements of income, stockholders' equity and cash flows for such
period, and (ii) the unaudited financial statements of Company
19
and its Subsidiaries as of the most recently ended Fiscal Quarter, consisting of
a balance sheet and the related consolidated statements of income and cash
flows, and, in the case of clauses (i) and (ii), certified by a Financial
Officer Certification.
"IMMATERIAL SUBSIDIARY" means (i) each Subsidiary of Company identified
on Schedule 1.1(b) and (ii) any Subsidiary of a Credit Party organized and/or
acquired after the Closing Date, provided that (x) such Subsidiary shall have
been identified in writing to Administrative Agent as an Immaterial Subsidiary,
(y) (A) the annual revenues of any Immaterial Subsidiary individually under both
clause (i) above and this clause (ii) shall not exceed $1,000,000 and (B) the
aggregate annual revenues of such Immaterial Subsidiaries under both clause (i)
above and this clause (ii) shall not exceed $10,000,000, in each case during any
Fiscal Year and (z) (A) the book value of the assets of any Immaterial
Subsidiary individually under both clause (i) above and this clause (ii) shall
not exceed $1,000,000 and (B) the aggregate book value of the assets of all such
Immaterial Subsidiaries under both clause (i) above and this clause (ii) shall
not exceed $10,000,000, in each case at any time.
"INCREASED-COST LENDER" as defined in Section 2.23.
"INDEBTEDNESS", as applied to any Person, means, without duplication,
(i) all indebtedness for borrowed money; (ii) that portion of obligations with
respect to Capital Leases that is properly classified as a liability on a
balance sheet in conformity with GAAP; (iii) notes payable and drafts accepted
representing extensions of credit whether or not representing obligations for
borrowed money; (iv) any obligation owed for all or any part of the deferred
purchase price of property or services (excluding any such obligations incurred
under ERISA), which purchase price is (a) due more than six months from the date
of incurrence of the obligation in respect thereof or (b) evidenced by a note or
similar written instrument; (v) all indebtedness secured by any Lien on any
property or asset owned or held by that Person regardless of whether the
indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person; (vi) the face amount of any letter of
credit issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings; (vii) the direct or indirect
guaranty, endorsement (otherwise than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with recourse
by such Person of the obligation of another; (viii) any obligation of such
Person the primary purpose or intent of which is to provide assurance to an
obligee that the obligation of the obligor thereof will be paid or discharged,
or any agreement relating thereto will be complied with, or the holders thereof
will be protected (in whole or in part) against loss in respect thereof; and
(ix) any liability of such Person for the obligation of another through any
agreement (contingent or otherwise) (a) to purchase, repurchase or otherwise
acquire such obligation or any security therefor, or to provide funds for the
payment or discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise) or (b) to maintain the
solvency or any balance sheet item, level of income or financial condition of
another if, in the case of any agreement described under subclauses (a) or (b)
of this clause (ix),
20
the primary purpose or intent thereof is as described in clause (viii) above;
and (x) obligations of such Person in respect of any exchange traded or over the
counter derivative transaction, including, without limitation, any Interest Rate
Agreement and Currency Agreement, whether entered into for hedging or
speculative purposes; provided, in no event shall obligations under any Interest
Rate Agreement and any Currency Agreement be deemed "Indebtedness" for any
purpose under Section 6.8.
"INDEMNIFIED LIABILITIES" means, collectively, any and all liabilities,
obligations, losses, damages (including natural resource damages), penalties,
claims (including Environmental Claims), reasonable costs (including the costs
of any investigation, study, sampling, testing, abatement, cleanup, removal,
remediation or other response action necessary to remove, remediate, clean up or
xxxxx any Hazardous Materials Activity), reasonable expenses and disbursements
of any kind or nature whatsoever (including the reasonable fees and
disbursements of counsel for Indemnitees in connection with any investigative,
administrative or judicial proceeding commenced or threatened by any Person,
whether or not any such Indemnitee shall be designated as a party or a potential
party thereto, and any reasonable fees or expenses incurred by Indemnitees in
enforcing the indemnity in Section 10.3), whether direct, indirect or
consequential and whether based on any federal, state or foreign laws, statutes,
rules or regulations (including securities and commercial laws, statutes, rules
or regulations and Environmental Laws), on common law or equitable cause or on
contract or otherwise, that may be imposed on, incurred by or asserted against
any such Indemnitee, in any manner relating to or arising out of (i) this
Agreement or the other Credit Documents or the transactions contemplated hereby
or thereby (including Lenders' agreement to make Credit Extensions or the use or
intended use of the proceeds thereof, or any enforcement of any of the Credit
Documents (including any sale of, collection from or other realization upon any
of the Collateral or the enforcement of the Guaranty)); (ii) the statements
contained in the commitment letter delivered by any Lender to Company with
respect to the transactions contemplated by this Agreement; or (iii) any
Environmental Claim or any Hazardous Materials Activity relating to or arising
from, directly or indirectly, any past or present activity, operation, land
ownership or practice of Company or any of its Subsidiaries.
"INDEMNITEE" as defined in Section 10.3.
"INSTALLMENT" as defined in Section 2.11(a).
"INSTALLMENT DATE" as defined in Section 2.11(a).
"INTANGIBLE ASSETS" means, with respect to any Person, that portion of
the book value of all of such Person's assets that would be treated as
intangibles under GAAP.
"INTELLECTUAL PROPERTY" shall have the meaning assigned to such term in
the Pledge and Security Agreement.
21
"INTEREST PAYMENT DATE" means with respect to (i) any Base Rate Loan,
each March 31, June 30, September 30 and December 31 of each year, commencing on
December 31, 2002, and the final maturity date of such Loan; and (ii) any
Eurodollar Rate Loan, the last day of each Interest Period applicable to such
Loan; provided, in the case of each Interest Period of longer than three months
"Interest Payment Date" shall also include each date that is three months, or an
integral multiple thereof, after the commencement of such Interest Period.
"INTEREST PERIOD" means, in connection with a Eurodollar Rate Loan, an
interest period of one, two, three, six or nine-months, as selected by Company
in the applicable Funding Notice or Conversion/Continuation Notice, (i)
initially commencing on the Credit Date or Conversion/Continuation Date thereof,
as the case may be; and (ii) thereafter commencing on the day on which the
immediately preceding Interest Period expires; provided, (a) if an Interest
Period would otherwise expire on a day that is not a Business Day, such Interest
Period shall expire on the next succeeding Business Day unless no further
Business Day occurs in such month, in which case such Interest Period shall
expire on the immediately preceding Business Day; (b) any Interest Period that
begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clauses (c) and (d) of this definition, end
on the last Business Day of a calendar month; (c) no Interest Period with
respect to any portion of the Term Loans shall extend beyond the Term Loan
Maturity Date; and (d) no Interest Period with respect to any portion of the
Revolving Loans shall extend beyond the Revolving Commitment Termination Date.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, interest rate
hedging agreement or other similar agreement or arrangement, each of which is
for the purpose of hedging the interest rate exposure associated with Company's
and its Subsidiaries' operations and not for speculative purposes.
"INTEREST RATE DETERMINATION DATE" means, with respect to any Interest
Period, the date that is two Business Days prior to the first day of such
Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, and any successor
statute.
"INVENTORY" means all of Company's and its Subsidiaries' now owned or
hereafter acquired right, title and interest with respect to inventory,
including goods held for sale or lease or to be furnished under a contract of
service, goods that are leased by Company or any of its Subsidiaries as lessor,
goods that are furnished by Company or any of its Subsidiaries under a contract
of service and raw materials, work in process or materials used or consumed in
Company's or any of its Subsidiaries' business.
"INVESTMENT" means (i) any direct or indirect purchase or other
acquisition of, or of a beneficial interest in, any of the Securities of any
other Person (other than any Credit Party); (ii) any direct or indirect
redemption, retirement, purchase or other acquisition for value from
22
any Person (other than any Credit Party) of any Capital Stock of such Person;
and (iii) any direct or indirect loan, advance (other than advances to employees
for moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contribution to any
other Person (other than any Credit Party), including all indebtedness and
accounts receivable from that other Person that are not current assets or did
not arise from sales to that other Person in the ordinary course of business.
The amount of any Investment shall be the original cost of such Investment plus
the cost of all additions thereto, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to such
Investment.
"ISSUANCE NOTICE" means an Issuance Notice substantially in the form of
Exhibit A-3.
"ISSUING BANK" means GSCP as Issuing Bank hereunder, together with its
permitted successors and assigns in such capacity, or such other Lender from
time to time designated by Company and GSCP, which has agreed in writing to act
as Issuing Bank hereunder.
"JOINT VENTURE" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; provided, in
no event shall any corporate Subsidiary of any Person be considered to be a
Joint Venture to which such Person is a party.
"LAB SPECIALISTS NOTE" means the $40,000,000 7% Senior Unsecured Note
dated February 1, 2002 issued by Kroll Laboratory Specialists Inc. to KCMS,
Inc., as assignee of Kroll Laboratory Specialists of America, Inc.
"LANDLORD CONSENT AND ESTOPPEL" means, with respect to any Leasehold
Property, a letter, certificate or other instrument in writing from the lessor
under the related lease, pursuant to which, among other things, the landlord
consents to the granting of a Mortgage on such Leasehold Property by the Credit
Party tenant, such Landlord Consent and Estoppel to be in form and substance
acceptable to Collateral Agent in its reasonable discretion.
"LEASEHOLD PROPERTY" means any leasehold interest of any Credit Party
as lessee under any lease of real property, other than any such leasehold
interest designated from time to time by Collateral Agent in its reasonable
judgment as not being required to be included in the Collateral.
"LENDER" means each financial institution listed on the signature pages
hereto as a Lender, and any other Person that becomes a party hereto pursuant to
an Assignment Agreement.
"LENDER COUNTERPARTY" means each Lender or any Affiliate of a Lender
counterparty to a Hedge Agreement.
"LETTER OF CREDIT" means a commercial or standby letter of credit
issued or to be issued by Issuing Bank pursuant to this Agreement.
23
"LETTER OF CREDIT SUBLIMIT" means the lesser of (i) $5,000,000 and (ii)
the aggregate unused amount of the Revolving Commitments then in effect.
"LETTER OF CREDIT USAGE" means, as at any date of determination, the
sum of (i) the maximum aggregate amount which is, or at any time thereafter may
become, available for drawing under all Letters of Credit then outstanding and
(ii) the aggregate amount of all drawings under Letters of Credit honored by
Issuing Bank and not theretofore reimbursed by or on behalf of Company.
"LEVERAGE RATIO" means the ratio as of the last day of any Fiscal
Quarter of (i) Consolidated Total Debt as of such day to (ii) Consolidated
Adjusted EBITDA for the four-Fiscal Quarter period ending on such date.
"LEVERAGE RATIO LEVEL" means the level set forth on the table below
corresponding to the Leverage Ratio as of the last day of the most
recently-ended Fiscal Quarter:
LEVEL LEVERAGE RATIO
----- --------------
1 >2.0:1.0
2 <2.0:1.0
-
>1.5:1.0
-
3 <1.5:1.0
>1.0:1.0
-
4 <1.0:1.0
"LIEN" means (i) any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any agreement to give any
of the foregoing, any conditional sale or other title retention agreement, and
any lease in the nature thereof) and any option, trust or other preferential
arrangement having the practical effect of any of the foregoing and (ii) in the
case of Securities, any purchase option, call or similar right of a third party
with respect to such Securities.
"LOAN" means a Term Loan or a Revolving Loan.
"MARGIN STOCK" as defined in Regulation U of the Board of Governors of
the Federal Reserve System as in effect from time to time.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
business operations, properties, assets, condition (financial or otherwise) or
prospects of Company and its Subsidiaries taken as a whole; (ii) a significant
portion of the industry or business segment in which Company or its Subsidiaries
operate or rely upon if such effect or development is reasonably likely to have
a material adverse effect on Company and its Subsidiaries taken as a whole;
(iii) the ability of any Credit Party to fully and timely perform its
Obligations; (iv) the legality, validity, binding effect or enforceability
against a Credit Party of a Credit Document to
24
which it is a party; or (v) the rights, remedies and benefits available to, or
conferred upon, any Agent and any Lender or any Secured Party under any Credit
Document.
"MATERIAL CONTRACT" means any contract or other arrangement to which
Company or any of its Subsidiaries is a party (other than the Credit Documents)
for which breach, nonperformance, cancellation or failure to renew would
reasonably be expected to have a Material Adverse Effect.
"MATERIAL REAL ESTATE ASSET" means (i) (a) any fee-owned Real Estate
Asset having a fair market value in excess of $1,000,000 as of the date of the
acquisition thereof and (b) all Leasehold Properties other than those with
respect to which the aggregate payments under the term of the lease are less
than $1,000,000 per annum or (ii) any Real Estate Asset that the Requisite
Lenders have reasonably determined is material to the business, operations,
properties, assets, condition (financial or otherwise) or prospects of Company
and its Subsidiaries taken as a whole.
"MOODY'S" means Xxxxx'x Investor Services, Inc.
"MORTGAGE" means a Mortgage in form and substance acceptable to the
Administrative Agent in its reasonable discretion, as it may be amended,
supplemented or otherwise modified from time to time.
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NAIC" means The National Association of Insurance Commissioners and
any successor thereto.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset Sale, an
amount equal to: (i) Cash payments (including any Cash received by way of
deferred payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) received by Company or any of its
Subsidiaries from such Asset Sale minus (ii) any bona fide direct costs incurred
in connection with such Asset Sale, including (a) income or gains taxes payable
by the seller as a result of any gain recognized in connection with such Asset
Sale, (b) payment of the outstanding principal amount of, premium or penalty, if
any, and interest on any Indebtedness (other than the Loans) that is secured by
a Lien on the stock or assets in question and that is required to be repaid
under the terms thereof as a result of such Asset Sale, (c) a reasonable reserve
for any indemnification payments (fixed or contingent) attributable to seller's
indemnities and representations and warranties to purchaser in respect of such
Asset Sale undertaken by Company or any of its Subsidiaries in connection with
such Asset Sale and (d) the fees, commissions and other transaction costs
incurred in connection with such Asset Sale.
25
"NET INSURANCE/CONDEMNATION PROCEEDS" means an amount equal to: (i) any
Cash payments or proceeds received by Company or any of its Subsidiaries (a)
under any casualty insurance policy in respect of a covered loss thereunder or
(b) as a result of the taking of any assets of Company or any of its
Subsidiaries by any Person pursuant to the power of eminent domain, condemnation
or otherwise, or pursuant to a sale of any such assets to a purchaser with such
power under threat of such a taking, minus (ii) (a) any actual and reasonable
costs incurred by Company or any of its Subsidiaries in connection with the
adjustment or settlement of any claims of Company or such Subsidiary in respect
thereof and (b) any bona fide direct costs incurred in connection with any sale
of such assets as referred to in clause (i)(b) of this definition, including
income taxes payable as a result of any gain recognized in connection therewith.
"NON-CONSENTING LENDER" as defined in Section 2.23.
"NON-US LENDER" as defined in Section 2.20(c).
"NOTE" means a Term Loan Note or a Revolving Loan Note.
"NOTICE" means a Funding Notice, an Issuance Notice, or a Conversion/
Continuation Notice.
"OBLIGATIONS" means all obligations of every nature of each Credit
Party from time to time owed to the Agents (including former Agents), the
Lenders or any of them and Lender Counterparties under any Credit Document or
Hedge Agreement (including, without limitation, with respect to a Hedge
Agreement, obligations owed thereunder to any Person who was a Lender or an
Affiliate of a Lender at the time such Hedge Agreement was entered into),
whether for principal, interest (including interest which, but for the filing of
a petition in bankruptcy with respect to such Credit Party, would have accrued
on any Obligation, whether or not a claim is allowed against such Credit Party
for such interest in the related bankruptcy proceeding), reimbursement of
amounts drawn under Letters of Credit, payments for early termination of Hedge
Agreements, fees, expenses, indemnification or otherwise.
"OBLIGEE GUARANTOR" as defined in Section 7.7.
"ORGANIZATIONAL DOCUMENTS" means (i) with respect to any corporation,
its certificate or articles of incorporation or organization, as amended, and
its by-laws, as amended, (ii) with respect to any limited partnership, its
certificate of limited partnership, as amended, and its partnership agreement,
as amended, (iii) with respect to any general partnership, its partnership
agreement, as amended, and (iv) with respect to any limited liability company,
its certificate of formation, as amended, and its operating agreement, as
amended. In the event any term or condition of this Agreement or any other
Credit Document requires any Organizational Document to be certified by a
secretary of state or similar governmental official, the reference to
26
any such "Organizational Document" shall only be to a document of a type
customarily certified by such governmental official.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"PERMITTED ACQUISITION" means any acquisition by Company or any of its
wholly-owned Subsidiaries, whether by purchase, merger or otherwise, of all or
substantially all of the assets of, all of the Capital Stock of, or a business
line or unit or a division of, any Person; provided,
(i) immediately prior to, and after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing or
would result therefrom;
(ii) all transactions in connection therewith shall be
consummated, in all material respects, in accordance with all
applicable laws and in conformity with all applicable Governmental
Authorizations;
(iii) in the case of the acquisition of Capital Stock, all of
the Capital Stock (except for any such Securities in the nature of
directors' qualifying shares required pursuant to applicable law)
acquired or otherwise issued by such Person or any newly formed
Subsidiary of Company in connection with such acquisition shall be
owned 100% by a Credit Party and Company shall have taken, or caused to
be taken, as of the date such Person becomes a Subsidiary of Company,
each of the actions set forth in Sections 5.13 and/or 5.14, as
applicable;
(iv) Credit Parties shall be in compliance with the financial
covenants set forth in Section 6.8 on a pro forma basis after giving
effect to such acquisition as of the last day of the Fiscal Quarter
most recently ended (as determined in accordance with Section 6.8(f));
(v) Company shall have delivered to Administrative Agent (A)
at least ten (10) Business Days prior to such proposed acquisition, a
Compliance Certificate evidencing compliance with Section 6.8 as
required under clause (iv) above, together with all relevant financial
information with respect to such acquired assets, including, without
limitation, the aggregate consideration for such acquisition and any
other information required to demonstrate compliance with Section 6.8;
(vi) any Person or assets or division as acquired in
accordance herewith (y) shall be in the same or reasonably related
business or lines of business in which Company and/or its Subsidiaries
are engaged as of the Closing Date and (z) shall have
27
generated positive cash flow for the four quarter period most recently
ended prior to the date of such acquisition; and
(vii) any Accounts of such Person shall not be included in the
Borrowing Base unless and until Company so requests and Administrative
Agent shall have conducted an audit of the Accounts of such Person and
has, in its sole discretion, elected to include such Accounts in the
Borrowing Base.
"PERMITTED LIENS" means each of the Liens permitted pursuant to Section
6.2.
"PERMITTED PROTEST" means the right of the applicable Credit Party to
protest any rental payment, provided that: (a) a reserve with respect to such
obligation is established on the books in such amount as is required under GAAP,
(b) any such protest is instituted promptly and prosecuted diligently by the
applicable Credit Party in good faith and (c) Administrative Agent is satisfied
that, while any such protest is pending, it is not likely that there will be any
impairment of the enforceability, validity or priority of any of Lenders' Liens.
"PERSON" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and Governmental Authorities.
"PLEDGE AND SECURITY AGREEMENT" means the Pledge and Security Agreement
to be executed by Company and each Guarantor substantially in the form of
Exhibit I, as it may be amended, supplemented or otherwise modified from time to
time.
"POST-CLOSING DATE MORTGAGED PROPERTY" as defined in Section 3.3(a).
"PRIME RATE" means the rate of interest per annum that CSFB announces
from time to time as its prime lending rate, as in effect from time to time. The
Prime Rate is a reference rate and does not necessarily represent the lowest or
best rate actually charged to any customer. GSCP or any other Lender may make
commercial loans or other loans at rates of interest at, above or below the
Prime Rate.
"PRINCIPAL OFFICE" means, for each of Administrative Agent and Issuing
Bank, such Person's "Principal Office" as set forth on Appendix B, or such other
office as such Person may from time to time designate in writing to Company,
Administrative Agent and each Lender.
"PROJECTIONS" as defined in Section 4.8.
"PRO RATA SHARE" means (i) with respect to all payments, computations
and other matters relating to the Term Loan of any Lender, the percentage
obtained by dividing (a) the Term Loan Exposure of that Lender by (b) the
aggregate Term Loan Exposure of all Lenders;
28
and (ii) with respect to all payments, computations and other matters relating
to the Revolving Commitment or Revolving Loans of any Lender or any Letters of
Credit issued or participations purchased therein by any Lender, the percentage
obtained by dividing (a) the Revolving Exposure of that Lender by (b) the
aggregate Revolving Exposure of all Lenders. For all other purposes with respect
to each Lender, "Pro Rata Share" means the percentage obtained by dividing (A)
an amount equal to the sum of the Term Loan Exposure and the Revolving Exposure
of that Lender by (B) an amount equal to the sum of the aggregate Term Loan
Exposure and the aggregate Revolving Exposure of all Lenders.
"PURCHASE AGREEMENT" means the Purchase Agreement, dated September 5,
2002, among Company and Sellers.
"RATING TIER" means the tier set forth below corresponding to Company's
rating for senior secured debt as determined by S&P and Moody's; provided that,
if there is a split between the ratings, then the Rating Tier shall be the tier
set forth below corresponding to the lower of the two ratings:
TIER RATING
---- ------
I >BB+/Ba2
-
II BB/Ba2
III BB-/Ba3
IV BB-/B1 or B+/Ba3
V
