EXHIBIT 10.1
$650,000,000
CREDIT AGREEMENT
Dated as of September 30, 1996
among
E&S HOLDINGS CORPORATION,
as the Borrower,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Swing Line Lender,
as Fronting Lender and
as Administrative Agent,
XXXXXXX XXXXX CAPITAL CORPORATION,
as Documentation Agent,
NATIONSBANK, N.A. (SOUTH),
as Syndication Agent,
and
THE FINANCIAL INSTITUTIONS PARTIES HERETO,
as Lenders.
Arranged By
BA SECURITIES, INC.
XXXXXXX XXXXX & CO.
NATIONSBANC CAPITAL MARKETS, INC.
TABLE OF CONTENTS
(continued)
SECTION PAGE
(c) The Tranche C Term Credit . . . . . . . . . . . . . . . . . 39
(d) The Tranche D Term Credit . . . . . . . . . . . . . . . . . 39
(e) The Revolving Credit. . . . . . . . . . . . . . . . . . . . 39
(f) The Swing Line Credit . . . . . . . . . . . . . . . . . . . 39
2.10. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
(a) Rate. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
(b) Payment Dates . . . . . . . . . . . . . . . . . . . . . . . 39
(c) Default Rate. . . . . . . . . . . . . . . . . . . . . . . . 40
(d) Maximum Rate. . . . . . . . . . . . . . . . . . . . . . . . 40
2.11. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
(a) Arrangement, Agency Fees; etc.. . . . . . . . . . . . . . . 40
(b) Commitment Fees . . . . . . . . . . . . . . . . . . . . . . 40
2.12. Computation of Fees and Interest . . . . . . . . . . . . . . . . 40
2.13. Payments by the Borrower . . . . . . . . . . . . . . . . . . . . 41
2.14. Payments by the Lenders to the Administrative Agent. . . . . . . 41
2.15. Sharing of Payments, etc.. . . . . . . . . . . . . . . . . . . . 42
ARTICLE III
LETTERS OF CREDIT AND ACCEPTANCES
3.1. Letter of Credit and Acceptance Subfacilities. . . . . . . . . . 42
3.2. Issuance, Amendment and Renewal of Letters of Credit . . . . . . 44
3.3. Creation of Acceptances. . . . . . . . . . . . . . . . . . . . . 46
3.4. Letter of Credit/Banker's Acceptance Participations, Drawings
and Reimbursements. . . . . . . . . . . . . . . . . . . . . 47
3.5. Repayment of Participations. . . . . . . . . . . . . . . . . . . 49
3.6. Role of the Fronting Lender. . . . . . . . . . . . . . . . . . . 49
3.7. Obligations Absolute . . . . . . . . . . . . . . . . . . . . . . 50
3.8. Letter of Credit and Acceptance Fees . . . . . . . . . . . . . . 51
3.9. The Borrower's Guaranty of Special Facility Obligations of its
Restricted Subsidiaries . . . . . . . . . . . . . . . . . . 52
3.10. No Waiver With Respect to Acceptances. . . . . . . . . . . . . . 53
3.11. Uniform Customs and Practice . . . . . . . . . . . . . . . . . . 53
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.2. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
4.3. Increased Costs and Reduction of Return. . . . . . . . . . . . . 56
4.4. Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . 57
TABLE OF CONTENTS
(continued)
SECTION PAGE
4.5. Inability to Determine Rates . . . . . . . . . . . . . . . . . . 58
4.6. Notice from Lenders. . . . . . . . . . . . . . . . . . . . . . . 58
4.7. Change of Lending Office . . . . . . . . . . . . . . . . . . . . 58
4.8. Notice of Certain Costs. . . . . . . . . . . . . . . . . . . . . 58
4.9. Replacement of Lenders . . . . . . . . . . . . . . . . . . . . . 58
4.10. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE V
CONDITIONS PRECEDENT
5.1. Conditions of Initial Credit Extensions. . . . . . . . . . . . . 59
(a) Credit Agreement. . . . . . . . . . . . . . . . . . . . . . 59
(b) Resolutions; Incumbency . . . . . . . . . . . . . . . . . . 60
(c) Organization Documents; Good Standing . . . . . . . . . . . 60
(d) Legal Opinions. . . . . . . . . . . . . . . . . . . . . . . 60
(e) Payment of Fees . . . . . . . . . . . . . . . . . . . . . . 60
(f) Guaranty. . . . . . . . . . . . . . . . . . . . . . . . . . 60
(g) Pledge Agreement. . . . . . . . . . . . . . . . . . . . . . 61
(h) Consummation of Recapitalization. . . . . . . . . . . . . . 61
(i) Solvency. . . . . . . . . . . . . . . . . . . . . . . . . . 61
(j) Other Indebtedness. . . . . . . . . . . . . . . . . . . . . 61
(k) Equity. . . . . . . . . . . . . . . . . . . . . . . . . . . 61
(l) Issuance of Preferred Stock . . . . . . . . . . . . . . . . 61
(m) Subordinated Debt . . . . . . . . . . . . . . . . . . . . . 61
(n) Availability of Revolving Commitments . . . . . . . . . . . 62
(o) Insurance Certificate . . . . . . . . . . . . . . . . . . . 62
(p) Approvals . . . . . . . . . . . . . . . . . . . . . . . . . 62
(q) Certificate . . . . . . . . . . . . . . . . . . . . . . . . 62
5.2. Conditions to All Credit Extensions. . . . . . . . . . . . . . . 63
(a) Notice of Credit Extension. . . . . . . . . . . . . . . . . 63
(b) Continuation of Representations and Warranties. . . . . . . 63
(c) No Existing Default . . . . . . . . . . . . . . . . . . . . 63
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Corporate Existence and Power. . . . . . . . . . . . . . . . . . 63
6.2. Corporation Authorization; No Contravention; Binding Effect. . . 64
6.3. Governmental Authorization . . . . . . . . . . . . . . . . . . . 64
6.4. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.5. ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . . . 65
TABLE OF CONTENTS
(continued)
SECTION PAGE
6.6. Regulatory Matters . . . . . . . . . . . . . . . . . . . . . . . 65
6.7. Title to Properties. . . . . . . . . . . . . . . . . . . . . . . 65
6.8. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.9. Financial Condition. . . . . . . . . . . . . . . . . . . . . . . 66
6.10. Trademarks, Copyrights, Patents and Licenses, etc. . . . . . . . 66
6.11. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . 66
6.12. Full Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . 66
6.13. Compliance with Environmental Laws . . . . . . . . . . . . . . . 67
ARTICLE VII
AFFIRMATIVE COVENANTS
7.1. Financial Statements . . . . . . . . . . . . . . . . . . . . . . 67
7.2. Certificates; Other Information. . . . . . . . . . . . . . . . . 68
7.3. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7.4. Preservation of Corporate Existence, etc.. . . . . . . . . . . . 69
7.5. Maintenance of Property. . . . . . . . . . . . . . . . . . . . . 69
7.6. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
7.7. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . 70
7.8. Compliance with Statues, etc.. . . . . . . . . . . . . . . . . . 70
7.9. Inspection of Property and Books and Records . . . . . . . . . . 70
7.10. Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . 70
7.11. Future Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . 70
7.12. Transactions with Affiliates . . . . . . . . . . . . . . . . . . 71
7.13. Change in Business . . . . . . . . . . . . . . . . . . . . . . . 71
7.14. End of the Fiscal Year . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE VIII
NEGATIVE COVENANTS
8.1. Limitation on Liens. . . . . . . . . . . . . . . . . . . . . . . 72
8.2. Consolidations and Mergers; Sales of Assets. . . . . . . . . . . 74
8.3. Loans, Acquisitions and Investments. . . . . . . . . . . . . . . 74
8.4. Limitation on Indebtedness . . . . . . . . . . . . . . . . . . . 76
8.5. Restricted Payments. . . . . . . . . . . . . . . . . . . . . . . 77
8.6. Financial Covenants. . . . . . . . . . . . . . . . . . . . . . . 79
8.7. Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . 81
8.8. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
ARTICLE IX
TABLE OF CONTENTS
(continued)
SECTION PAGE
EVENTS OF DEFAULT
9.1. Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 81
(a) Non-Payment . . . . . . . . . . . . . . . . . . . . . . . . 82
(b) Representation or Warranty. . . . . . . . . . . . . . . . . 82
(c) Specific Defaults . . . . . . . . . . . . . . . . . . . . . 82
(d) Other Defaults. . . . . . . . . . . . . . . . . . . . . . . 82
(e) Cross-Default . . . . . . . . . . . . . . . . . . . . . . . 82
(f) Insolvency; Voluntary Proceedings . . . . . . . . . . . . . 82
(g) Involuntary Proceedings . . . . . . . . . . . . . . . . . . 83
(h) ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
(i) Judgments . . . . . . . . . . . . . . . . . . . . . . . . . 83
(j) Change of Control . . . . . . . . . . . . . . . . . . . . . 83
(k) Collateral. . . . . . . . . . . . . . . . . . . . . . . . . 83
9.2. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
9.3. Rights Not Exclusive . . . . . . . . . . . . . . . . . . . . . . 84
ARTICLE X
THE AGENTS
10.1. Appointment and Authorization; "Administrative Agent". . . . . . 84
10.2. Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . 85
10.3. Limitation on Liability of Agents and Agent-Related Persons. . . 85
10.4. Reliance by Administrative Agent . . . . . . . . . . . . . . . . 85
10.5. Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . 86
10.6. Credit Decision. . . . . . . . . . . . . . . . . . . . . . . . . 86
10.7. Indemnification of Agents and Agent-Related Persons. . . . . . . 87
10.8. Agents in Individual Capacity. . . . . . . . . . . . . . . . . . 87
10.9. Successor Administrative Agent . . . . . . . . . . . . . . . . . 87
10.10. Withholding Tax. . . . . . . . . . . . . . . . . . . . . . . . . 88
10.11. Collateral Matters . . . . . . . . . . . . . . . . . . . . . . . 88
10.12. Copies, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 89
ARTICLE XI
MISCELLANEOUS
11.1. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . 89
11.2. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
11.3. No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . 91
11.4. Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . 91
11.5. Borrower Indemnification . . . . . . . . . . . . . . . . . . . . 92
TABLE OF CONTENTS
(continued)
SECTION PAGE
11.6. Marshalling; Payments Set Aside. . . . . . . . . . . . . . . . . 92
11.7. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . 93
11.8. Assignments, Participations, etc.. . . . . . . . . . . . . . . . 93
11.9. Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . 95
11.10. Set-off. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
11.11. Notification of Addresses, Lending Offices, etc. . . . . . . . . 96
11.12. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 96
11.13. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . 96
11.14. No Third Parties Benefited . . . . . . . . . . . . . . . . . . . 96
11.15. Governing Law and Jurisdiction . . . . . . . . . . . . . . . . . 96
11.16. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . 97
11.17. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . 97
1
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of September 30, 1996, among E&S HOLDINGS
CORPORATION, a Delaware corporation (the "Borrower"), the several financial
institutions from time to time party to this Agreement (collectively, the
"Lenders", and, individually, a "Lender") and BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as swing line lender, as fronting lender and as
administrative agent for the Lenders, together with XXXXXXX XXXXX CAPITAL
CORPORATION, as documentation agent for the Lenders, NATIONSBANK, N.A. (SOUTH),
as syndication agent for the Lenders, the several financial institutions
specifically identified as co-agents on the signature pages hereof (the
"Co-Agents") and the several financial institutions specifically identified as
lead managers on the signature pages hereof (the "Lead Managers").
W I T N E S S E T H:
WHEREAS, the Borrower and Strata Associates L.P., a newly formed
Delaware limited partnership ("Holdings") organized at the direction of KKR
(such capitalized term, and other capitalized terms used in these recitals, to
have the meanings set forth in Section 1.1) and Abarco, N.V., a Netherlands
Antilles corporation ("Abarco"), are parties to the Recapitalization and Stock
Purchase Agreement dated as of August 15, 1996 (the "Recapitalization and Stock
Purchase Agreement");
WHEREAS, in accordance with the terms of the Recapitalization and Stock
Purchase Agreement, the Borrower shall, among other things, (a) repay
Indebtedness of the Borrower and its Subsidiaries identified on Schedule 5.1(j)
(the "Refinancing") in an aggregate amount of approximately $367,000,000, (b)
redeem a portion of the shares of Common Stock, par value $0.01 per share, of
the Borrower (the "Common Stock") held by Abarco for consideration comprised of
certain notes receivable having an aggregate principal amount outstanding of
approximately $58,000,000, all the capital stock of E&S Realco, Inc., a Delaware
corporation, and cash of approximately $522,500,000 (the "Redemption") and (c)
cause the repurchase of all the shares of the common stock of Spalding & Evenflo
Companies, Inc., a Delaware corporation ("S&E"), by S&E not owned by the
Borrower for consideration of approximately $28,500,000 (the "Repurchase", and,
together with the Refinancing and the Redemption, the "Recapitalization");
WHEREAS, in order to (a) fund the Refinancing, (b) finance the
Repurchase, (c) provide a portion of the financing for the Redemption, (d) pay
costs and expenses related to the Recapitalization and the transactions
contemplated thereby and hereby and (e) provide financing for the working
capital and other general corporate purposes of the Borrower and its
2
Subsidiaries following the consummation of the Recapitalization, the Borrower
has requested that the Lenders make available to the Borrower:
(i) a Tranche A Term Commitment pursuant to which Tranche A
Term Loans in an aggregate principal amount of up to $175,000,000 may
be borrowed in a single borrowing to occur on the Closing Date;
(ii) a Tranche B Term Commitment pursuant to which Tranche B
Term Loans in an aggregate principal amount of up to $87,500,000 may be
borrowed in a single borrowing to occur on the Closing Date;
(iii) a Tranche C Term Commitment pursuant to which Tranche C
Term Loans in an aggregate principal amount of up to $87,500,000 may be
borrowed in a single borrowing to occur on the Closing Date;
(iv) a Tranche D Term Commitment pursuant to which Tranche D
Term Loans in an aggregate principal amount of up to $50,000,000 may be
borrowed in a single borrowing to occur on the Closing Date; and
(v) a Revolving Commitment pursuant to which (A) Revolving
Loans may be borrowed from time to time from and after the Closing Date
to the Revolving Commitment Termination Date and (B) as subfacilities
of the Revolving Commitment, (1) a Swing Line Facility and (2) a
Special Facility pursuant to which letters of credit may be issued
and/or banker's acceptances may be created from time to time from and
after the Closing Date to the Revolving Commitment Termination Date;
provided that in no event shall (x) the aggregate amount of all
Revolving Loans, Swing Line Loans and Special Facility Obligations
exceed $250,000,000 at any one time and (y) the aggregate amount of all
Revolving Loans, Swing Line Loans and Special Facility Obligations used
for the purposes described in clauses (b), (c) and (d) above exceed
$40,000,000;
WHEREAS, all Obligations hereunder and under the other Loan Documents
will be guaranteed by S&E and each of the other Domestic Subsidiaries that are
Material Subsidiaries; and
WHEREAS, all Obligations hereunder and under the other Loan Documents
will be secured by a pledge of all issued and outstanding capital stock of S&E
and each of the other direct Domestic Subsidiaries of the Borrower that are
Material Subsidiaries;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties hereto hereby agree as follows:
3
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. The following terms have the following
meanings:
"Abarco" has the meaning specified in the first recital to this
Agreement.
"Acceptance" means an acceptance created by the Fronting Lender under
the Special Facility Commitment in accordance with Article III, at the request
of, and for the account of, the Borrower or any of its Restricted Subsidiaries,
including all acceptances deemed to be created hereunder pursuant to Section
3.1(c).
"Acceptance Obligations" means the sum of (a) the aggregate face amount
of all unmatured Acceptances plus (b) the aggregate face amount of all
unreimbursed matured Acceptances, including all outstanding Special Facility
Borrowings in respect of matured Acceptances.
"Acceptance Reference Rate" means, relative to any term for any
Acceptance, the rate per annum equal to the rate agreed to from time to time
between the Borrower and the Fronting Lender.
"Account Party" means the Borrower or any of its Restricted
Subsidiaries for the account of which a Letter of Credit is Issued or an
Acceptance is created in accordance with Article III hereof.
"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, (c) a merger or
consolidation or any other combination with another Person (other than with a
Person that is a Restricted Subsidiary), provided that the Borrower or one of
its Restricted Subsidiaries is the surviving entity or (d) an Unrestricted
Subsidiary becoming a Restricted Subsidiary.
"Administrative Agent" means BofA in its capacity as administrative
agent for the Lenders hereunder and under the other Loan Documents, together
with any successor administrative agent appointed in accordance with Section
10.9.
4
"Administrative Agent's Payment Office" means the address for payments
set forth on Schedule 11.2 or such other address as the Administrative Agent may
from time to time specify in writing.
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by or is under common control
with, such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power (a) to vote 10%
or more of the securities having ordinary voting power for the election of
directors of such other Person or (b) to direct or cause the direction of the
management and policies of the other Person, whether through the ownership of
voting securities, membership interests, by contract or otherwise.
"Agent-Related Persons" means BofA and any successor administrative
agent appointed in accordance with Section 10.9, together with their respective
Affiliates (including, in the case of BofA, BA Securities, Inc., in its role as
a Co-Arranger of the Facilities), the Documentation Agent, together with its
Affiliates (including Xxxxxxx Xxxxx & Co., in its role as a Co-Arranger of the
Facilities), the Syndication Agent, together with its Affiliates (including
NationsBanc Capital Markets, Inc., in its role as a Co-Arranger of the
Facilities), and the officers, directors, employees and agents of each of the
foregoing Persons and Affiliates.
"Agents" means, collectively, the Administrative Agent, the
Documentation Agent and the Syndication Agent.
"Agreement" means this Credit Agreement.
"Applicable Margin" means, with respect to the Revolving Loans, the
Tranche A Term Loans or the Commitment Fee, as of any date, the rate per annum
determined pursuant to the following pricing grid (expressed in basis points),
subject to the provisions of this definition set forth below:
5
Pricing Grid
=============================================================================================================================
Ratio of Consolidated
Total Debt to
Consolidated EBITDA Eurodollar Rate Margin Base Rate Margin Commitment Fee
-----------------------------------------------------------------------------------------------------------------------------
X LESS THAN 5.5 225.0 125.0 42.5
-----------------------------------------------------------------------------------------------------------------------------
X LESS THAN= 5.5, but GREATER THAN 5.0 200.0 100.0 37.5
-----------------------------------------------------------------------------------------------------------------------------
X LESS THAN= 5.0, but GREATER THAN 4.5 162.5 62.5 37.5
-----------------------------------------------------------------------------------------------------------------------------
X LESS THAN= 4.5, but GREATER THAN 4.0 137.5 37.5 35.0
-----------------------------------------------------------------------------------------------------------------------------
X LESS THAN= 4.0, but GREATER THAN 3.5 112.5 12.5 30.0
-----------------------------------------------------------------------------------------------------------------------------
X LESS THAN= 3.5, but GREATER THAN 3.0 87.5 0.0 25.0
-----------------------------------------------------------------------------------------------------------------------------
X LESS THAN= 3.0 62.5 0.0 20.0
=============================================================================================================================
The Applicable Margin, at any time from and including the Closing Date
until the date which is six months after the Closing Date, for (a) the Tranche A
Term Loans and the Revolving Loans shall be 1.25% as to Base Rate Loans at such
time and 2.25% as to Eurodollar Loans at such time and (b) the Commitment Fee
shall be 0.50% at such time.
The Applicable Margin, at all times, for Tranche B Term Loans shall be
1.75% for Base Rate Loans and 2.75% for Eurodollar Loans.
The Applicable Margin, at all times, for Tranche C Term Loans shall be
2.25% for Base Rate Loans and 3.25% for Eurodollar Loans.
The Applicable Margin, at all times, for Tranche D Term Loans shall be
2.75% for Base Rate Loans and 3.75% for Eurodollar Loans.
The Applicable Margin, at any time from and after the date which is six
months after the Closing Date, for Tranche A Term Loans, Revolving Loans and the
Commitment Fee, shall be determined pursuant to the Pricing Grid above at such
time. At all times that the Applicable Margin is determined by reference to the
Pricing Grid, "X" refers to the ratio of Consolidated Total Debt to Consolidated
EBITDA, which ratio shall be determined based upon the Compliance Certificate
delivered pursuant to clause (b) of Section 7.2 and shall remain in effect until
such time as the next Compliance Certificate shall be delivered (and, at such
time, the Applicable Margin shall change based on such next Compliance
Certificate); provided, however, that, if (i) any such Compliance Certificate is
not delivered to the Administrative Agent on or prior to the date required
pursuant to clause (b) of Section 7.2 and (ii) such Compliance Certificate
indicates a ratio of Consolidated Total Debt to Consolidated EBITDA that would
result in an Applicable Margin which is greater than the Applicable Margin then
in effect, then (A) such greater Applicable Margin shall be deemed to be in
effect for all purposes of this Agreement from the date such Compliance
Certificate was required to be delivered to the Administrative Agent pursuant to
clause (b) of Section 7.2 and (B) in furtherance of the other
6
terms of this proviso, if the Borrower shall have made any payment in respect of
interest or fees during the period from the date such Compliance Certificate was
required to be delivered to the actual date of delivery of such Compliance
Certificate, then the Borrower shall pay in the form of a supplemental payment
of interest and/or fees, an amount which equals the difference between the
amount of interest and/or fees that would otherwise have been paid determined as
if such Compliance Certificate was delivered on the date such Compliance
Certificate was required to be delivered and the amount of such interest and/or
fees so paid, which supplemental payment of interest and/or fees shall be due
and payable on the actual date of delivery of such Compliance Certificate.
"Assignment and Acceptance" has the meaning specified in Section
11.8(a).
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C.ss.101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 0.50% per annum
above the latest Federal Funds Rate; and (b) the rate of interest in effect for
such day as publicly announced from time to time by BofA in San Francisco,
California, as its "reference rate." (The "reference rate" is a rate set by BofA
based upon various factors including BofA's costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above or below such announced rate.)
Any change in the reference rate announced by BofA shall take effect at the
opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan or Special Facility Borrowing that bears
interest based on the Base Rate.
"BofA" means Bank of America National Trust and Savings Association, a
national banking association.
"Borrower" has the meaning specified in the preamble.
"Borrowing" means a borrowing hereunder consisting of Loans of the same
Type made to the Borrower on the same day by the Lenders under Article II, and,
in the case of Eurodollar Rate Loans, having the same Interest Period.
"Borrowing Date" means any date on which a Borrowing occurs under
Section 2.3.
"Business Day" means (a) any day other than a Saturday, Sunday or other
day on which commercial lenders in New York City, Chicago, Illinois or San
Francisco, California are authorized or required by law to close and (b) if the
applicable Business Day relates to any Eurodollar Loan, a Business Day described
in the preceding clause (a) on which dealings are also carried on in the
applicable offshore dollar interbank market.
7
"Capital Adequacy Regulation" means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any Lender or of any corporation controlling a Lender.
"Capital Expenditures" means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including in
all events all amounts expended or capitalized under Capital Leases, but
excluding any amount representing capitalized interest) by the Borrower and its
Restricted Subsidiaries during such period that, in conformity with GAAP, are or
are required to be included as additions during such period to property, plant
or equipment reflected in the consolidated balance sheet of the Borrower and its
Restricted Subsidiaries, provided that the term "Capital Expenditures" shall not
include (a) expenditures made in connection with the replacement, substitution
or restoration of assets (i) to the extent financed from insurance proceeds paid
on account of the loss of or damage to the assets being replaced or restored or
(ii) with awards of compensation arising from the taking by eminent domain or
condemnation of the assets being replaced, (b) the purchase price of equipment
that is purchased simultaneously with the trade-in of existing equipment to the
extent that the gross amount of such purchase price is reduced by the credit
granted by the seller of such equipment for the equipment being traded in at
such time, (c) the purchase of plant, property or equipment made within one year
of the sale of any asset to the extent purchased with the proceeds of such sale
and (d) the portion of the purchase price in connection with any Acquisition
that would otherwise be included as additions to property, plant or equipment.
"Capital Lease", as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is, or is required to be, accounted for as a capital lease
on the balance sheet of that Person.
"capital stock" means, with respect to any Person, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock of, or ownership interests in, such Person, including if such
Person is a partnership, partnership interests (whether general or limited) and
any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of,
such partnership.
"Capitalized Lease Liabilities" means all obligations under Capital
Leases of the Borrower or any of its Restricted Subsidiaries, in each case taken
at the amount thereof accounted as a capital lease obligation in accordance with
GAAP.
"Cash Equivalents" means:
(a) securities issued or unconditionally guaranteed by the United
States government or any agency or instrumentality thereof, in each case having
maturities of not more than 24 months from the date of acquisition thereof;
8
(b) securities issued by any state of the United States of America or
any political subdivision of any such state or any public instrumentality
thereof or any political subdivision of any such state or any public
instrumentality thereof having maturities of not more than 24 months from the
date of acquisition thereof and, at the time of acquisition, having an
investment grade rating generally obtainable from either Rating Agency (or, if
at any time neither Rating Agency shall be rating such obligations, then from
another nationally recognized rating agency);
(c) commercial paper issued by any Lender or any holding company owning
any Lender;
(d) commercial paper maturing no more than 12 months after the date of
creation thereof and, at the time of acquisition, having a rating of at least
A-2 or P-2 from either Rating Agency (or, if at any time neither Rating Agency
shall be rating such obligations, then from another nationally recognized rating
agency);
(e) domestic and eurodollar certificates of deposit or banker's
acceptances maturing no more than two years after the date of acquisition
thereof issued by any Lender or any other banks having combined capital and
surplus of not less than $250,000,000 (or in the case of foreign banks, the
Dollar equivalent thereof);
(f) repurchase agreements with a term of not more than 30 days for
underlying securities of the type described in clauses (a), (b) and (e) above
entered into with any bank meeting the qualifications specified in clause (e)
above or securities dealers of recognized national standing;
(g) shares of investment companies that are registered under the
Investment Company Act of 1940 and invest solely in one or more of the types of
securities described in clauses (a) through (f) above; and
(h) short-term, liquid investments made by a Foreign Subsidiary in the
ordinary course of managing its cash consistent with past practice.
"CERCLA" has the meaning specified in the definition of "Environmental
Laws."
"Change of Control" means, and shall be deemed to have occurred if: (a)
at any time Continuing Directors shall not constitute a majority of the Board of
Directors of the Borrower; (b) KKR, its successors and its Affiliates and
management of the Borrower shall cease to own in the aggregate, directly or
indirectly, beneficially and of record, a majority of the outstanding Voting
Stock of the Borrower (other than as the result of (i) one or more public
offerings of common stock of the Borrower or (ii) a widely distributed private
placement of common stock of the Borrower that does not provide any special
director designation or special election rights or other special corporate
governance rights to the holders of such shares, in each case whether by the
Borrower or another Person); or (c) any Person or "group" (within the meaning of
Section 13(d) or 14(d) of the Exchange Act) shall at any time have acquired
direct or indirect beneficial ownership of a percentage of the outstanding
Voting Stock of the Borrower that exceeds in the aggregate the percentage of
such Voting Stock then
9
beneficially owned, directly or indirectly, by KKR, its successors and its
Affiliates and management of the Borrower.
"Closing Date" means the date on which Credit Extensions are first made
hereunder.
"Co-Agents" has the meaning specified in the preamble.
"Co-Arrangers" means, collectively, BA Securities, Inc., Xxxxxxx Xxxxx
& Co., and NationsBanc Capital Markets, Inc.
"Code" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"Commitment" means, (a) as to each Lender, the obligation of such
Lender to make Loans and, in the case of Revolving Lenders, participate in
Special Facility Obligations and make Special Facility Advances; (b) the
obligation of the Swing Line Lender to make Swing Line Loans; and (c) the
obligation of the Fronting Lender to issue Letters of Credit and create
Acceptances; collectively as to all Lenders, the Swing Line Lender and the
Fronting Lender, the "Commitments".
"Commitment Fee" means the fee set forth in Section 2.11(b).
"Common Stock" has the meaning specified in the second recital to this
Agreement.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit C or such other form as shall be approved by the Administrative Agent
and the Borrower.
"Computerized Request" has the meaning specified in Section 3.2(h).
"Confidential Information" has the meaning specified in Section 11.9.
"Confidential Memorandum" means the Confidential Information Memorandum
dated September, 1996, describing the E&S Holdings Corporation $650,000,000
senior secured credit facilities.
"Consolidated EBITDA" means, with respect to the Borrower for any
period, the sum for such period of (a) Consolidated Net Income plus (b) to the
extent deducted in arriving at such Consolidated Net Income, the sum, without
duplication, of (i) Consolidated Interest Expense and non-cash interest expense,
(ii) taxes computed on the basis of income, (iii) depreciation expense, (iv)
amortization expense, including amortization of deferred financing fees, (v) any
expenses or charges resulting from the Recapitalization or from any equity
offering or incurrence of Indebtedness, (vi) any expenses incurred prior to the
Recapitalization resulting from the Spalding and Evenflo Management Stock
Ownership Plan, (vii) any expenses paid by the Borrower or any of its Restricted
Subsidiaries to, or for the benefit of, Abarco and its Affiliates prior to the
Recapitalization, (viii) the amount of any restructuring charge or reserve, (ix)
non-cash charges and (x) non-recurring charges plus (c) amounts
10
designated as "Special Promotional Expenses" in such period minus (d) to the
extent included in such Consolidated Net Income, the sum, without duplication,
of (i) non-recurring gains and (ii) non-cash gains, in each case as determined
on a consolidated basis for the Borrower and its Restricted Subsidiaries in
accordance with GAAP, plus (e) to the extent not otherwise included in
Consolidated EBITDA, (i) with respect to any such period that includes the two
consecutive Fiscal Quarters ending on or about September 30, 1996, $2,300,000,
or (ii) with respect to any such period that includes the Fiscal Quarter ending
on or about September 30, 1996 (but not any prior Fiscal Quarter), $1,500,000
(it being acknowledged and understood that the amounts set forth in this clause
(e) represent the reasonably estimated contribution to Consolidated EBITDA of
the Etonic (and related) business lines).
"Consolidated Fixed Charges" means, with respect to the Borrower for
any period, the sum for such period of (a) Consolidated Interest Expense, (b)
dividends or other distributions made by the Borrower in cash and (c) scheduled
principal payments on the Facilities and on all other Consolidated Total Debt,
less prepayments thereof made prior to such period.
"Consolidated Interest Expense" means, with respect to the Borrower for
any period, cash interest expense (including that attributable to Capital Leases
in accordance with GAAP), net of cash interest income, of the Borrower and its
Restricted Subsidiaries on a consolidated basis with respect to all outstanding
Indebtedness of the Borrower and its Restricted Subsidiaries, including all
commissions, discounts and other fees and charges owed with respect to letters
of credit and banker's acceptance financing and net costs under Swap Contracts
(other than currency swap agreements, currency future or option contracts and
other similar agreements), but excluding, however, amortization of deferred
financing costs and any other amounts of non-cash interest, all as calculated on
a consolidated basis in accordance with GAAP; provided, however, that
Consolidated Interest Expense for the Test Periods ending on or about March 31,
1997 and June 30, 1997 shall be determined by (a) in the case of the Test Period
ending on or about March 31, 1997, multiplying Consolidated Interest Expense for
the period (x) commencing on the first day of the Fiscal Quarter ending on or
about December 31, 1996 and (y) ending on the last day of such Test Period, by 2
and (b) in the case of the Test Period ending on or about June 30, 1997,
multiplying Consolidated Interest Expense for the period (x) commencing on the
first day of the Fiscal Quarter ending on or about December 31, 1996 and (y)
ending on the last day of such Test Period, by 4/3.
"Consolidated Net Income" means, with respect to the Borrower for any
period, the aggregate of the Net Income of the Borrower and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; provided, however, that (i) any net after-tax extraordinary gains or
losses (less all fees and expenses relating thereto) shall be excluded, (ii) any
net after-tax gains or losses (less all fees and expenses relating thereto)
attributable to asset dispositions other than in the ordinary course of business
shall be excluded, (iii) the Net Income for such period of any Person that is
not a Subsidiary of the Borrower, or is an Unrestricted Subsidiary, or that is
accounted for by the equity method of accounting, shall be included only to the
extent of dividends or distributions or other payments paid in cash (or to the
extent converted into cash) to the Borrower or a wholly-owned Restricted
Subsidiary (except for directors' qualifying shares) in respect of such period,
(iv) the Net Income of any Person acquired in a pooling of interests transaction
shall be excluded for
11
any period prior to the date of such acquisition, (v) the Net Income for such
period of any Restricted Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of its Net Income is not at the date of determination permitted
without any prior governmental approval (which has not been obtained) or,
directly or indirectly, by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders, unless
such restriction with respect to the payment of dividends or in similar
distributions has been legally waived, and (vi) any net currency loss (gain)
shall be excluded.
"Consolidated Total Debt" means, with respect to the Borrower at any
time, the sum of all amounts comprising items (a), (c) (to the extent in respect
of drawn but unreimbursed letters of credit or matured but unreimbursed banker's
acceptances), and (d) of the definition of Indebtedness contained in this
Agreement for the Borrower and its Restricted Subsidiaries at such time,
determined on a consolidated basis in accordance with GAAP; provided, however,
that Consolidated Total Debt shall not include Indebtedness in respect of Swing
Line Loans (and Revolving Loans which replace such Swing Line Loans pursuant to
Section 2.5(a)(i)) the proceeds of which are used to satisfy reimbursement
obligations arising from drawings under documentary Letters of Credit for the
period from the date on which such Loan was made until the date the Acceptances
intended to refinance such financing are scheduled to be created (irrespective
of whether such Acceptances are in fact created).
"Consolidated Working Capital" means, with respect to the Borrower, at
any date, the excess of (a) the sum of all amounts (other than cash and cash
equivalents) that would, in conformity with GAAP, be set forth opposite the
caption "total current assets" (or any like caption) on a consolidated balance
sheet of the Borrower and its Restricted Subsidiaries at such date over (b) the
sum of all amounts that would, in conformity with GAAP, be set forth opposite
the caption "total current liabilities" (or any like caption) on a consolidated
balance sheet of the borrower and its Restricted Subsidiaries on such date, but
excluding the current portion of any Funded Debt.
"Contingent Obligation" means, as to any Person, any direct or indirect
liability of that Person, whether or not contingent, with or without recourse,
guaranteeing or intended to guarantee any Indebtedness (the "primary
obligations") of another Person (the "primary obligor") in any manner, including
any obligation of that Person (a) to purchase, repurchase or otherwise acquire
such primary obligations or any security therefor, (b) to advance or provide
funds for the payment or discharge of any such primary obligation or to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet item, level of income or
financial condition of the primary obligor, (c) to purchase property, securities
or services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (d) otherwise to assure or hold harmless the holder of any such
primary obligation against loss in respect thereof. The amount of any Contingent
Obligation shall be deemed equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made (or,
if less, the maximum stated or determinable amount of such Contingent
Obligation) or, if not stated or if indeterminable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder), as determined by
12
such Person in good faith. Notwithstanding the foregoing, the term "Contingent
Obligation" shall not include (a) endorsements of instruments for deposit or
collection in the ordinary course of business, (b) guarantees made by a Person
of the obligations of a Restricted Subsidiary of such Person that do not
constitute Indebtedness of such Restricted Subsidiary and are incurred in the
ordinary course of business of such Restricted Subsidiary and (c) obligations
arising from agreements providing for indemnification or adjustment of purchase
price (or from guarantees supporting any obligations pursuant to any such
agreements) incurred in connection with the disposition of any business or
assets or Restricted Subsidiary.
"Continuing Director" means, at any date, an individual (a) who is a
member of the Board of Directors of the Borrower, as the case may be, on the
Closing Date, (b) who, as at such date, has been a member of such Board of
Directors for at least the 12 preceding months (or, for the period comprising
the first 12 months after the Closing Date, has been a member of such Board of
Directors at least since the Closing Date), or (c) who has been nominated to be
a member of such Board of Directors, directly or indirectly, by KKR or Persons
nominated by KKR or has been nominated to be a member of such Board of Directors
by a majority of the other Continuing Directors then in office.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
"Conversion/Continuation Date" means any date on which, under Section
2.4, the Borrower (a) converts Loans of one Type to another Type or (b)
continues as Loans of the same Type, but with a new Interest Period, Loans
having Interest Periods expiring on such date.
"Credit Extension" means and includes (a) the making (but not
conversion or continuation) of any Loan (other than Revolving Loans which
replace Swing Line Loans pursuant to Section 2.5(a)(i)) hereunder, (b) the
Issuance of any Letter of Credit hereunder and (c) the creation of any
Acceptance hereunder.
"Credit Extension Date" means any Borrowing Date, any date on which a
Letter of Credit is Issued under Section 3.2 or any date on which an Acceptance
is created under Section 3.3.
"Cumulative Borrower's Excess Cash Flow" means, at any time after
delivery to the Administrative Agent of the audited financial statements
referred to in clause (a) of Section 7.1 in respect of the 1997 Fiscal Year and
the Compliance Certificate relating thereto, the sum of, for each of the 1997
Fiscal Year and each Fiscal Year then elapsed (and in each case for which the
audited financial statements referred to in clause (a) of Section 7.1 and the
Compliance Certificate relating thereto have been delivered to the
Administrative Agent), 50% of Excess Cash Flow, if any, for each such Fiscal
Year.
13
"Cumulative Consolidated Net Income Available to Common Stockholders"
means, at any time, Consolidated Net Income less cash dividends paid with
respect to preferred stock (including the Preferred Stock) for the period (taken
as one accounting period) commencing on the Closing Date and ending on the last
day of the Fiscal Quarter then last ended for which financial statements and the
Compliance Certificate relating thereto have been delivered to the
Administrative Agent pursuant to Sections 7.1 and 7.2.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"Defaulting Lender" means any Lender with respect to which a Lender
Default is in effect.
"Disposition" means the sale, conveyance, issuance or other disposition
of any property, business or assets by the Borrower or any Restricted Subsidiary
(including receivables and capital stock of or owned by the Borrower or such
Restricted Subsidiary, and in all cases whether now owned or hereafter
acquired), other than (a) the issuance of capital stock of the Borrower, (b)
sales, conveyances or other dispositions in the ordinary course of business
(including sales, conveyances or other dispositions of inventory in the ordinary
course) and (c) sales of accounts receivable and capital stock owned by any
Domestic Subsidiary to S&E Finance, effected on not more than one occasion
during any Fiscal Year of the Borrower, and the consideration for which consists
solely of a promissory note of S&E Finance payable to such Domestic Subsidiary,
provided that (i) the transferor thereof shall repurchase all such accounts
receivable and capital stock from S&E Finance not later than five Business Days
following the date of the original transfer thereof, the consideration for which
shall consist solely of the creation of an intercompany liability on the books
of the repurchasing transferor that is promptly set off by S&E Finance against
its obligations under the promissory note issued by it to such repurchasing
transferor, (ii) no such transfer shall be effected if a Default or an Event of
Default shall have occurred and be continuing and (iii) no such transfer shall
be effected unless, giving effect to any liability or obligation incurred in
connection therewith, S&E Finance shall be solvent immediately before and after
giving effect to the acquisition of such accounts receivable and capital stock.
For purposes of the immediately preceding sentence, S&E Finance shall be solvent
if (A) each of the fair value and the present fair saleable value of S&E
Finance's assets is greater than its debts and other liabilities (including
contingent, unmatured and unliquidated debts and liabilities) and the amount
required to pay such debts and liabilities as such debts and liabilities become
absolute and mature, (B) S&E Finance is able and expects to be able to pay its
debts and other liabilities (including contingent, unmatured and unliquidated
debts and liabilities) as they mature and (C) S&E Finance has sufficient capital
to carry on its business as conducted and as proposed to be conducted.
"Documentation Agent" means Xxxxxxx Xxxxx Capital Corporation, in its
capacity as documentation agent for the Lenders hereunder and under the other
Loan Documents.
"Dollars", "dollars" and "$" each mean lawful money of the United
States.
"Domestic Subsidiary" means any Restricted Subsidiary that is not a
Foreign Subsidiary.
14
"Eligible Assignee" means and includes each Lender (and any Affiliate
thereof), any commercial bank, any financial institution, any fund that is
regularly engaged in making, purchasing or investing in loans or any Person that
would satisfy the requirements of an "accredited investor" (as defined in SEC
Regulation D, but excluding a natural person), in each case which is not a
direct competitor of the Borrower or engaged in the same or similar business as
the Borrower or any of its respective Restricted Subsidiaries and is not an
Affiliate of any such competitors of the Borrower or any of its respective
Restricted Subsidiaries.
"Environmental Laws" means any and all present and future laws,
statutes, ordinances, rules, regulations, requirements, restrictions, permits,
orders, and determinations of any governmental authority that have the force and
effect of law, pertaining to pollution (including hazardous, toxic or dangerous
substances), natural resources or the environment, whether federal, state, or
local, including environmental response laws such as the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, and as the same may be
further amended (hereinafter collectively called "CERCLA").
"ERISA" means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means any of the following if such event or occurrence
could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect: (a) the failure to make a required contribution to a
Pension Plan if such failure is sufficient to give rise to a Lien under Section
302(f) of ERISA; (b) a withdrawal by the Borrower or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which it was
a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations which is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any
ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer
Plan is in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a Plan amendment as a termination under Section 4041 or 4041A
of ERISA or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title IV of
ERISA other than PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.
"Etonic Credit Agreement" means the Credit Agreement, dated as of July
26, 1996, among EWW Corporation, the lenders party thereto and Citibank, N.A.,
as agent for such lenders.
"Eurodollar Loan" means a Loan that bears interest based on the
Eurodollar Rate.
15
"Eurodollar Rate" means, with respect to each day during each Interest
Period pertaining to an Eurodollar Loan, the rate of interest per annum
determined on the basis of the rate for deposits in Dollars for a period equal
to such Interest Period commencing on the first day of such Interest Period
appearing on Page 3750 of the Telerate screen as of 11:00 a.m., London time, two
Business Days prior to the beginning of such Interest Period. In the event that
such rate does not appear on Page 3750 of the Telerate Service (or otherwise on
such service), "Eurodollar Rate" for the purposes of this paragraph shall be
determined by reference to such other publicly available service for displaying
eurodollar rates as may be agreed upon by the Administrative Agent and the
Borrower or, in the absence of such agreement, "Eurodollar Rate" for the
purposes of this paragraph shall instead be the rate per annum equal to the
arithmetic average of the respective rates notified to the Administrative Agent
by each of the Reference Lenders as the rate at which such Reference Lender is
offered Dollar deposits at or about 11:00 a.m., London time, two Business Days
prior to the beginning of such Interest Period, in the interbank eurodollar
market where the eurodollar and foreign currency and exchange operations in
respect of its Eurodollar Loans are then being conducted for delivery.
"Event of Default" means any of the events or circumstances specified
in Section 9.1.
"EWW Lisco" means EWW Lisco, Inc., a Delaware corporation and
wholly-owned Restricted Subsidiary.
"Excess Cash Flow" means, for any Fiscal Year, an amount equal to the
excess of (a) the sum, without duplication, of (i) Consolidated Net Income for
such Fiscal Year, (ii) an amount equal to the amount of all non-cash charges to
the extent deducted in arriving at such Consolidated Net Income, (iii) the
aggregate amount of any currency gain with respect to the Borrower and its
Restricted Subsidiaries for such Fiscal Year (to the extent not prohibited from
being repatriated to the United States) and (iv) decreases in Consolidated
Working Capital for such Fiscal Year over (b) the sum, without duplication, of
(i) an amount equal to the amount of all non-cash credits included in arriving
at such Consolidated Net Income, (ii) the aggregate amount actually paid by the
Borrower and its Restricted Subsidiaries in cash during such Fiscal Year on
account of Capital Expenditures (excluding the principal amount of Indebtedness
incurred in connection with such Capital Expenditures, whether incurred in such
Fiscal Year or in a subsequent Fiscal Year), (iii) the aggregate amount of all
prepayments of Revolving Loans and Swing Line Loans made during such Fiscal Year
to the extent accompanying reductions of the Revolving Commitments, (iv) the
aggregate amount of all principal payments of Indebtedness of the Borrower or
its Restricted Subsidiaries (including any Term Loans and the principal
component of payments in respect of Capitalized Lease Obligations but excluding
Revolving Loans and Swing Line Loans and Term Loans prepaid pursuant to Section
2.8(b)) made during such Fiscal Year (other than in respect of any revolving
credit facility to the extent there is not an equivalent permanent reduction in
commitments thereunder), (v) increases in Consolidated Working Capital for such
Fiscal Year, (vi) an amount equal to the aggregate net non-cash gain on
Dispositions by the Borrower and its Restricted Subsidiaries during such Fiscal
Year (other than sales in the ordinary course of business) to the extent
included in arriving at such Consolidated Net Income, (vii) the amount of cash
payments by the Borrower and its Restricted Subsidiaries during such Fiscal Year
in respect of long-term liabilities of the Borrower and its Restricted
Subsidiaries other than
16
Indebtedness, (viii) the amount of Investments made during such Fiscal Year in
cash pursuant to clause (d), (h), (i) or (j) of Section 8.3 to the extent that
such Investments were financed with internally generated cash flow of the
Borrower and its Restricted Subsidiaries, (ix) the amount of dividends paid
during such Fiscal Year pursuant to clause (f) of Section 8.5, (x) the aggregate
amount of expenditures actually made by the Borrower and its Restricted
Subsidiaries in cash during such Fiscal Year (including expenditures for the
payment of financing fees) to the extent that such expenditures are not expensed
during such Fiscal Year, (xi) the aggregate amount of any currency loss with
respect to the Borrower and its Restricted Subsidiaries for such Fiscal Year and
(xii) the aggregate amount, if any, paid by the Borrower in cash during such
Fiscal Year in connection with the working capital adjustment set forth in
Section 4.04(b) of the Recapitalization and Stock Purchase Agreement as in
effect on the Closing Date; provided, however, that Excess Cash Flow for any
Fiscal Year shall not be deemed to be less than zero.
"Exchange Act" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
"Existing Credit Agreement" means the Credit Agreement dated as of
October 13, 1994, among S&E, the lenders party thereto and Citibank, N.A., as
administrative agent for such lenders.
"Facilities" means the credit facilities hereunder, i.e., the facility
to provide Revolving Loans, Acceptances and Letters of Credit, the facility to
provide Tranche A Term Loans, the facility to provide Tranche B Term Loans, the
facility to provide Tranche C Term Loans and the facility to provide Tranche D
Term Loans.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including any
such successor, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Administrative Agent of the rates for the
last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New
York City time) on that day by each of three leading brokers of Federal funds
transactions selected by the Administrative Agent.
"Fee Letter" has the meaning specified in Section 2.11(a).
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" has the meaning specified in Section 7.14.
"Fiscal Year End" has the meaning specified in Section 7.14.
"Foreign Subsidiary" means any Subsidiary of the Borrower (a) which is
organized under the laws of any jurisdiction outside of the United States of
America, (b) which conducts the major portion
17
of its business outside of the United States of America and (c) all or
substantially all of the property and assets of which are located outside of the
United States of America.
"FRB" means the Board of Governors of the Federal Reserve System, and
any Governmental Authority succeeding to any of its principal functions.
"Fronting Lender" means BofA in its capacity as the Fronting Lender
which shall Issue Letters of Credit and create Acceptances at the request of,
and for the account of, the Borrower and its Restricted Subsidiaries, together
with any replacement Fronting Lender appointed in accordance with Section
10.1(b) or Section 10.9.
"Funded Debt" means all Indebtedness for borrowed money of the Borrower
and its Restricted Subsidiaries that matures more than one year from the date of
its creation or matures within one year from such date and is renewable or
extendable, at the option of the Borrower or one of its Restricted Subsidiaries,
to a date more than one year from such date or arises under a revolving credit
or similar agreement that obligates the lender or lenders thereunder to extend
credit during a period of more than one year from such date, including all
amounts of Funded Debt required to be paid or prepaid within one year from the
date of its creation and, in the case of the Borrower, Indebtedness in respect
of the Loans.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time; it being understood and agreed
that determinations in accordance with GAAP for purposes of Article VIII,
including defined terms as used therein, are subject (to the extent provided
therein) to the immediately succeeding sentence. Except as otherwise
specifically provided herein, all computations determining compliance with
Article VIII, including definitions used therein, shall utilize accounting
principles and policies in effect at the time of the preparation of, and in
conformity with those used to prepare, the historical financial statements of
the Borrower described in Section 6.9. At any time the computations determining
compliance with Article VIII utilize accounting principles different from those
utilized in the financial statements furnished to the Lenders pursuant to
Section 7.1 such financial statements shall be accompanied by reconciliation
work-sheets.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
including any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranteed Obligations" has the meaning specified in clause (a) of
Section 3.9.
"Guarantors" means, collectively, at any time, the guarantors parties
at such time to the Guaranty.
18
"Guaranty" means the Guaranty to be duly executed and delivered by S&E,
each of the Trademark Holding Companies, S&E Finance and each other Material
Subsidiary set forth on Schedule A hereto pursuant to this Agreement,
substantially in the form of Exhibit E.
"Hazardous Materials" means any substance that is defined or listed as
a hazardous, toxic or dangerous substance under any present or future
Environmental Law or that is otherwise regulated or prohibited or subject to
investigation or remediation under any present or future Environmental Law
because of its hazardous, toxic, or dangerous properties, including (a) any
substance that is a "hazardous substance" under CERCLA and (b) petroleum wastes
or products.
"Holdings" has the meaning specified in the first recital to this
Agreement.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services that in
accordance with GAAP would be shown on the liability side of the balance sheet
of such Person; (c) obligations incurred in connection with banker's acceptances
and the face amount of all letters of credit issued for the account of such
Person and, without duplication, all drafts drawn thereunder; (d) all
Capitalized Lease Liabilities; (e) all Indebtedness referred to in clauses (a)
through (d) above secured by any Lien upon or in property owned by such Person,
even though such Person has not assumed or become liable for the payment of such
Indebtedness; (f) all monetary obligations of such Person under Swap Contracts;
and (g) without duplication, all Contingent Obligations of such Person; provided
that Indebtedness shall not include trade payables and accrued expenses, in each
case arising in the ordinary course of business.
"Indemnified Liabilities" has the meaning specified in Section 11.5(a).
"Indemnified Person" has the meaning specified in Section 11.5(a).
"Independent Auditor" has the meaning specified in clause (a) of
Section 7.1.
"Insolvency Proceeding" means, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, rehabilitation, dissolution, winding-up or relief of
debtors or (b) any general assignment for the benefit of creditors, composition,
marshalling of assets for creditors or other, similar arrangement in respect of
its creditors generally or any substantial portion of its creditors, undertaken
under U.S. Federal, state or foreign law, including the Bankruptcy Code.
"Interest Payment Date" means, as to any Eurodollar Loan, the last day
of each Interest Period applicable to such Loan and, as to any Base Rate Loan,
the last Business Day of each calendar quarter; provided, however, that if any
Interest Period exceeds three months, each date that falls at three-month
intervals after the beginning of such Interest Period until the end of such
Interest Period is also an Interest Payment Date.
19
"Interest Period" means, as to any Eurodollar Loan, the period
commencing on the Borrowing Date of such Loan or on the Conversion/Continuation
Date on which the Loan is converted into or continued as an Eurodollar Loan, and
ending on the date one, two, three or six months thereafter (or ending 9 or 12
months thereafter if available to all Lenders making such Loans as determined by
such Lenders in good faith based on prevailing market conditions) as selected by
the Borrower in its Notice of Borrowing or Notice of Conversion/Continuation;
provided that:
(i) the Borrower shall not be permitted to select Interest Periods to
be in effect at any one time which have expiration dates occurring on more than
20 different dates;
(ii) if any Interest Period would otherwise end on a day that is not a
Business Day, that Interest Period shall be extended to the following Business
Day unless the result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period shall end on
the preceding Business Day;
(iii) 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 end on the last
Business Day of the calendar month at the end of such Interest Period;
(iv) no Interest Period for any Term Loan shall extend beyond the
Tranche A Term Maturity Date, Tranche B Term Maturity Date, Tranche C Term
Maturity Date or Tranche D Term Maturity Date, as applicable, and no Interest
Period for any Revolving Loan shall extend beyond the Revolving Commitment
Termination Date; and
(v) no Interest Period applicable to a Term Loan or portion thereof
shall extend beyond any date upon which is due any scheduled principal payment
in respect of the Term Loans, unless the aggregate principal amount of Term
Loans represented by Base Rate Loans or by Eurodollar Loans having Interest
Periods that will expire on or before such date equals or exceeds the amount of
such principal payment.
"Investments" has the meaning specified in Section 8.3.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"Issue" means, with respect to any Letter of Credit, to issue or to
extend the expiry of, or to renew or increase the amount of, such Letter of
Credit; and the terms "Issued," "Issuing" and "Issuance" have corresponding
meanings.
"KKR" means Kohlberg Kravis Xxxxxxx & Co., L.P.
"L/C Obligations" means, at any time, the sum of (a) the aggregate
undrawn amount of all Letters of Credit then outstanding plus (b) the aggregate
amount of all unreimbursed drawings under
20
all Letters of Credit, including all outstanding Special Facility Borrowings in
respect of drawn Letters of Credit.
"Lead Managers" has the meaning specified in the preamble.
"Legal Requirements" means all applicable laws, rules, orders and
regulations made by any governmental body or regulatory authority having
jurisdiction over the Borrower or a Restricted Subsidiary.
"Lender" and "Lenders" have the meaning specified in the preamble,
including each financial institution identified on Schedule 2.1 and each
permitted successor or assign thereof. References to the "Lenders" shall include
BofA, including in its capacity as Swing Line Lender and Fronting Lender but not
in its capacity as Administrative Agent; for purposes of classification only, to
the extent that BofA may have any rights or obligations in addition to those of
the Lenders due to its status as Swing Line Lender, Fronting Lender or
Administrative Agent, its status as such will be specifically referenced.
"Lender Default" means (a) the refusal (which has not been retracted)
of a Lender to make available its portion of any Borrowing or to fund its
portion of any unreimbursed payment under Section 3.4 or (b) a Lender having
notified the Administrative Agent and/or the Borrower that it does not intend to
comply with its obligations under Section 2.1 or under Section 3.4, in the case
of either clause (a) or clause (b) above, as a result of the appointment of a
receiver or conservator with respect to such Lender at the direction or request
of any regulatory agency or authority.
"Lending Office" means, as to any Lender, the office or offices of such
Lender specified as its "Lending Office" or "Domestic Lending Office" or
"Offshore Lending Office," as the case may be, on Schedule 11.2, or such other
office or offices as such Lender may from time to time notify the Borrower and
the Administrative Agent.
"Letters of Credit" means any standby or documentary letter of credit
Issued by the Fronting Lender pursuant to Article III, at the request of, and
for the account of, an Account Party, including all letters of credit deemed to
be issued hereunder pursuant to Sections 3.1(c) and (d).
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, charge, lien (statutory or other), escrow or similar encumbrance
of any kind, or any other type of similar preferential arrangement (including
any agreement to give any of the foregoing, any conditional sale or other title
retention agreement or any lease in the nature thereof).
"Lisco" means Lisco, Inc., a Delaware corporation and wholly-owned
Restricted Subsidiary.
"Lisco Subsidiaries" means, collectively, Lisco Sports, Inc., Lisco
Feeding, Inc. and Lisco Furniture, Inc., each a Delaware corporation and
wholly-owned Restricted Subsidiary.
21
"Loan" means an extension of credit to or for the account of the
Borrower under Article II, and may be a Base Rate Loan or a Eurodollar Loan
(each, a "Type" of Loan).
"Loan Documents" means this Agreement, any Notes, the Guaranty, the
Pledge Agreement and the Fee Letter.
"Majority Lenders" means, at any time, Non-Defaulting Lenders having or
holding (a) at least 51% of the sum of (i) the aggregate principal amount of the
Term Loans (excluding Term Loans held by Defaulting Lenders) outstanding at such
time and (ii) the aggregate Revolving Commitments at such time (excluding
Revolving Commitments of Defaulting Lenders) or (b) if the Revolving Commitments
shall have been terminated or expire or for purposes of acceleration pursuant to
clause (b) of Section 9.2, at least 51% of the aggregate principal amount of the
Loans and Special Facility Obligations outstanding at such time (excluding Loans
and Special Facility Obligations held by Defaulting Lenders).
"Majority Tranche A Term and Revolving Lenders" means, at any time,
Non-Defaulting Lenders having or holding at least 51% of the sum of (a) the
aggregate principal amount of all Tranche A Term Loans (excluding Tranche A Term
Loans held by Defaulting Lenders) outstanding at such time and (b) the aggregate
Revolving Commitments at such time (excluding Revolving Commitments of
Defaulting Lenders) or, if the Revolving Commitments shall have been terminated
or expire, the aggregate principal amount of the Revolving Loans and Special
Facility Obligations (excluding Revolving Loans and Special Facility Obligations
held by Defaulting Lenders) outstanding at such time.
"Majority Tranche B, C and D Term Lenders" means, at any time,
Non-Defaulting Lenders holding at least 51% of the aggregate principal amount of
the Tranche B Term Loans, the Tranche C Term Loans and the Tranche D Term Loans
taken as a whole (excluding the Tranche B Term Loans, Tranche C Term Loans and
Tranche D Term Loans held by Defaulting Lenders) outstanding at such time.
"Material Adverse Change" means any change in the business, assets,
operations, properties or financial condition of the Borrower and its Restricted
Subsidiaries taken as a whole that would materially adversely affect the ability
of the Borrower and the other Obligors taken as a whole to perform their
obligations under this Agreement and the other Loan Documents taken as a whole.
"Material Adverse Effect" means a circumstance or condition affecting
the business, assets, operations, properties or financial condition of the
Borrower and its Restricted Subsidiaries taken as a whole that would materially
adversely affect (a) the ability of the Borrower and the other Obligors taken as
a whole to perform their obligations under this Agreement and the other Loan
Documents taken as a whole or (b) the rights and remedies of the Administrative
Agent and the Lenders under this Agreement and the other Loan Documents taken as
a whole.
"Material Subsidiary" means, at any time, S&E Finance and each
Restricted Subsidiary having at such time either (a) net sales (on a
consolidated basis, including each of its Subsidiaries that
22
constitute Restricted Subsidiaries, but excluding revenues received by any
Restricted Subsidiary from the Borrower or any other Restricted Subsidiary) for
the applicable Test Period in excess of 5% (or, in the case of Foreign
Subsidiaries for purposes of Section 7.11 only, 10%) of the net sales of the
Borrower and its Restricted Subsidiaries for such Test Period or (b) total
assets (on a consolidated basis, including each of its Subsidiaries that
constitute Restricted Subsidiaries), as of the last day of the preceding Fiscal
Quarter, constituting in excess of 5% (or, in the case of Foreign Subsidiaries
for purposes of Section 7.11 only, 10%) of the total assets of the Borrower and
its Restricted Subsidiaries as of such day, in each case, based upon the
Borrower's most recent annual or quarterly financial statements delivered to the
Administrative Agent under Section 7.1 in accordance with GAAP (it being
acknowledged and understood that, in the event the determination of whether a
Restricted Subsidiary is a Material Subsidiary is to be made on or about the
date such Restricted Subsidiary was created or acquired, such determination
shall be made on a pro forma basis as if such Restricted Subsidiary were a
Restricted Subsidiary at the commencement of such Test Period for the purposes
of clause (a) above and on the last day of such Fiscal Quarter for the purposes
of clause (b) above).
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan," within the meaning
of Section 4001(a)(3) of ERISA, with respect to which the Borrower or any ERISA
Affiliate may have any liability.
"NAIC" means the National Association of Insurance Commissioners or any
successor thereto with similar authority.
"Net Disposition Proceeds" means, as to any Disposition by a Person
(other than a Disposition permitted pursuant to clause (a), (b) or (c) of
Section 8.2), proceeds in cash as and when received by such Person, net of (a)
the costs and expenses relating to such Disposition, (b) the amount of all taxes
paid or reasonably estimated to be payable by such Person in connection
therewith, but Net Disposition Proceeds shall include the excess, if any, of the
estimated taxes payable in connection with such Disposition over the actual
amount of taxes paid, immediately after the payment of such taxes, (c) amounts
required to be applied to repay principal, interest and prepayment premiums and
penalties on Indebtedness secured by a Lien on the asset which is the subject of
such Disposition, and (d) the amount of any reasonable reserve established in
accordance with GAAP against any liabilities (other than any taxes deducted
pursuant to clause (b) above) associated with the assets sold or disposed of and
retained by the Borrower or any of its Restricted Subsidiaries (provided that
the amount of any subsequent reduction of such reserve (other than in connection
with a payment in respect of any such liability) shall be deemed to be Net
Disposition Proceeds realized on the date of such reduction).
"Net Income" means, with respect to any Person for any period, the net
income (loss) of such Person for such period, determined in accordance with GAAP
before any reduction in respect of preferred stock dividends.
23
"Net Issuance Proceeds" means, as to any issuance of indebtedness for
borrowed money or incurrence of Capitalized Lease Liabilities by any Person,
cash proceeds received by such Person in connection therewith, net of costs and
expenses paid or incurred in connection therewith.
"Non-Defaulting Lender" means and includes each Lender other than a
"Defaulting Lender".
"Non-U.S. Lender" has the meaning specified in Section 4.1(d).
"Non-U.S. Participant" means a Participant that is not incorporated or
organized in or under the laws of the United States of America or a state
thereof.
"Note" means a promissory note, if any, executed by the Borrower in
favor of a Lender pursuant to Section 2.2(b), in substantially the form of
Exhibit I, and also means all promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Notice of Borrowing" means a notice in substantially the form of
Exhibit A.
"Notice of Conversion/Continuation" means a notice in substantially the
form of Exhibit B.
"Notice of L/C Issuance/Amendment" means a notice in substantially the
form of Exhibit D.
"Obligations" means, at any time, all monetary obligations of any type
or description owing at such time by the Borrower and any other Obligor to any
Lender, including the Fronting Lender, the Administrative Agent or any
Indemnified Person under this Agreement, any Letter of Credit, any Acceptance,
any other Loan Document or any Swap Contract, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising.
"Obligor" means the Borrower, each Guarantor and each Account Party.
"Organization Documents" means, for any corporation, the certificate or
articles of incorporation, the bylaws, any certificate of determination or
instrument relating to the rights of preferred shareholders of such corporation.
"Originating Lender" has the meaning specified in clause (e) of Section
11.8.
"Other Taxes" means any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to, this
Agreement or any other Loan Document.
"Participant" has the meaning specified in clause (e) of Section 11.8.
24
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA (other than a Multiemployer Plan) with
respect to which the Borrower or any ERISA Affiliate may have any liability.
"Permitted Acquisition" has the meaning specified in clause (h) of
Section 8.3.
"Permitted Liens" has the meaning specified in Section 8.1.
"Person" means an individual, a partnership, a corporation, a limited
liability company, a business trust, a joint stock company, a trust, an
unincorporated association, a joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Borrower sponsors or maintains or to which the Borrower makes,
is making or is obligated to make contributions and includes any Pension Plan.
"Pledge Agreement" means the Pledge Agreement to be duly executed and
delivered by the Borrower, substantially in the form of Exhibit F.
"Preferred Stock" means (a) the 1,000,000 shares of the 12-1/2% Senior
Preferred Stock, par value $.01 per share, of the Borrower, having a liquidation
value of $100.00 per share, issued on the Closing Date, (b) 500,000 shares of
such 12-1/2% Senior Preferred Stock to be issued promptly following the
consummation of the Recapitalization and (c) shares of such 12-1/2% Senior
Preferred Stock issued as dividends to the holders of the shares described in
the preceding clauses (a) and (b). "Preferred Stock" shall include preferred
stock of the Borrower with substantially identical terms to such 12-1/2% Senior
Preferred Stock which are exchanged for such 12-1/2% Senior Preferred Stock
pursuant to an effective registration statement under the Securities Act of
1933.
"Pro Forma Basis" means, with respect to financial statements required
to be delivered pursuant to a provision hereof in connection with a proposed
Subject Transaction (or, for purposes of clause (c) of Section 8.6, Subject
Transactions that have been consummated), on a pro forma basis for the period
specified in such provision based on assumptions believed by the Borrower in
good faith to be reasonable for such period, after giving effect to such Subject
Transaction (and all other Subject Transactions made after the last day of such
period) as if such Subject Transaction (and all other such Subject
Transactions), together with all transactions related thereto (including
Indebtedness assumed or incurred or that would be assumed or incurred in
connection with such Subject Transactions), had been consummated on the first
day of such period.
"Pro Rata Share" means, as to any Lender at any time, its Revolving
Loan Percentage, Tranche A Term Percentage, Tranche B Term Percentage, Tranche C
Term Percentage or Tranche D Term
25
Percentage, as applicable, with the term Revolving Loan Percentage being
applicable to the facility to provide Revolving Loans and the Swing Line Loan
Facility and Special Facility thereunder.
"Rating Agency" means S&P or Moody's; collectively, the "Rating
Agencies".
"Recapitalization" has the meaning specified in the second recital to
this Agreement.
"Recapitalization and Stock Purchase Agreement" has the meaning
specified in the first recital to this Agreement.
"Redemption" has the meaning specified in the second recital to this
Agreement.
"Reference Lenders" means BofA and Nationsbank, N.A.
"Refinancing" has the meaning specified in the second recital to this
Agreement.
"Register" has the meaning specified in Section 11.8(c).
"Reimbursement Date" has the meaning specified in Section 3.4(b).
"Replaced Lender" has the meaning specified in Section 4.9.
"Replacement Lender" has the meaning specified in Section 4.9.
"Repurchase" has the meaning specified in the second recital to this
Agreement.
"Requirement of Law" means, as to any Person, any law, treaty, rule or
regulation or determination of an arbitrator or of a Governmental Authority, in
each case applicable to or binding upon the Person or any of its property or to
which the Person or any of its property is subject.
"Responsible Officer" means, with respect to any Person, its chief
executive officer, its president or any vice president, managing director,
treasurer, controller or other officer thereof having substantially the same
authority and responsibility; or, with respect to compliance with financial
covenants, the chief financial officer, the treasurer or the controller of the
Borrower, or any other officer having substantially the same authority and
responsibility.
"Restricted Subsidiary" means each Subsidiary of the Borrower which is
not an Unrestricted Subsidiary.
"Revolving Borrowing" means a Borrowing consisting of Revolving Loans
of the same Type made to the Borrower on the same day by the Lenders under
Section 2.1(e), and in the case of Eurodollar Loans, having the same Interest
Period.
26
"Revolving Commitment" has the meaning specified in Section 2.1(e);
collectively, for all Revolving Lenders, the "Revolving Commitments".
"Revolving Commitment Termination Date" means the earlier to occur of:
(a) the Business Day immediately preceding September 30, 2003; and
(b) the date on which the Revolving Commitments terminate in accordance
with the provisions of this Agreement.
"Revolving Lender" means any financial institution specified as such in
Part E of Schedule 2.1, and each permitted successor or assign thereof.
"Revolving Loan" and "Revolving Loans" have the respective meanings
specified in Section 2.1(e).
"Revolving Loan Percentage" means, as to any Revolving Lender, the
percentage which (a) the amount of such Revolving Lender's Revolving Commitment
(or, after termination of the Revolving Commitments, the outstanding principal
amount of such Revolving Lender's Revolving Loans) is of (b) the aggregate
amount of all Revolving Commitments (or, after termination of the Revolving
Commitments, the outstanding principal amount of all Revolving Loans).
"S&E" has the meaning specified in the second recital to this
Agreement.
"S&E Finance" means S&E Finance Co., Inc., a Delaware corporation and
wholly-owned Restricted Subsidiary.
"S&P" means Standard & Poor's Ratings Group.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Senior Subordinated Indenture" means the Indenture, dated September
30, 1996, between the Borrower and Marine Midland Bank, as trustee.
"Senior Subordinated Notes" means, collectively, the 10-3/8% Senior
Subordinated Notes due 2006 of the Borrower issued pursuant to the Senior
Subordinated Indenture, including senior subordinated notes of the Borrower with
substantially identical terms to such 10-3/8% Senior Subordinated Notes which
are exchanged for such 10-3/8% Senior Subordinated Notes pursuant to an
effective registration statement under the Securities Act of 1933.
"Special Facility" means the facility hereunder to Issue Letters of
Credit and create Acceptances.
27
"Special Facility Advance" means each Revolving Lender's participation
in any Special Facility Borrowing in accordance with its Pro Rata Share.
"Special Facility Borrowing" means an extension of credit resulting
from a drawing under any Letter of Credit or the maturity of an Acceptance, as
the case may be, which shall not have been reimbursed with the proceeds of a
Borrowing of Swing Line Loans.
"Special Facility Commitment" means the maximum aggregate principal
amount of Special Facility Obligations that may be created by the Fronting
Lender in accordance with Section 3.1 hereof and outstanding at any time and
from time to time, which aggregate outstanding principal amount shall not exceed
$180,000,000 at any one time.
"Special Facility Obligation" means the sum of (a) L/C Obligations and
(b) Acceptance Obligations; less the aggregate amount on deposit with the
Administrative Agent as cash collateral for the Borrower's obligations under
Article III in respect of the Obligations described in clauses (a) and (b)
above.
"Special Promotional Expenses" means certain promotional, advertising,
endorsement or related expenses designated by the Borrower as Special
Promotional Expenses in an aggregate amount not to exceed (a) $10,000,000 in any
Fiscal Quarter during the period from the Closing Date to September 30, 1999 and
(b) $25,000,000 in the aggregate during such period.
"Subject Transaction" means each of the following: (a) an Investment
that would constitute an Acquisition or that would result in the creation or
capitalization of a new Restricted Subsidiary (including the designation of any
Unrestricted Subsidiary as a Restricted Subsidiary) and (b) a dividend made in
cash or on any capital stock of the Borrower pursuant to clause (f) of Section
8.5.
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which more than 50% of the voting stock, membership interests or other equity
interests (in the case of Persons other than corporations), is owned or
controlled directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a "Subsidiary" refer to a
Subsidiary of the Borrower.
"Supermajority Tranche A Term and Revolving Lenders" means, at any
time, Non-Defaulting Lenders having or holding at least 66 2/3% of the sum of
(a) the aggregate principal amount of all Tranche A Term Loans (excluding
Tranche A Term Loans held by Defaulting Lenders) outstanding at such time and
(b) the aggregate Revolving Commitments at such time (excluding Revolving
Commitments of Defaulting Lenders) or, if the Revolving Commitments shall have
been terminated or expire, the aggregate principal amount of the Revolving Loans
and Special Facility Obligations (excluding Revolving Loans and Special Facility
Obligations held by Defaulting Lenders) outstanding at such time.
28
"Supermajority Tranche B, C and D Term Lenders" means, at any time,
Non-Defaulting Lenders holding at least 66 2/3% of the aggregate principal
amount of the Tranche B Term Loans, the Tranche C Term Loans and the Tranche D
Term Loans taken as a whole (excluding the Tranche B Term Loans, Tranche C Term
Loans and Tranche D Term Loans held by Defaulting Lenders) outstanding at such
time.
"Swap Contract" means any agreement relating to any transaction that is
a rate swap, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap or option, bond, note or xxxx option,
interest rate option, forward foreign exchange transaction, cap, collar or floor
transaction, currency swap, cross-currency rate swap, swap option, currency
option or any other, similar transaction (including any option to enter into any
of the foregoing) or any combination of the foregoing, and, unless the context
otherwise clearly requires, any master agreement relating to or governing any or
all of the foregoing.
"Swing Line Commitment" means the commitment of the Swing Line Lender
to make Loans from time to time pursuant to Section 2.1(f) in an aggregate
amount not to exceed on any date the amount of $30,000,000, as the same shall be
reduced as a result of a reduction in the Swing Line Commitment pursuant to
Section 2.6; provided that the Swing Line Commitment is a part of the combined
Revolving Commitments, rather than a separate, independent commitment.
"Swing Line Facility" means the facility hereunder to provide Swing
Line Loans.
"Swing Line Lender" means BofA, its successors and assigns.
"Swing Line Loan" has the meaning specified in Section 2.1(f).
"Swing Line Loan Participation Certificate" means a participation
certificate substantially in the form of Exhibit K.
"Syndication Agent" means NationsBank, N.A. (South), in its capacity as
syndication agent for the Lenders hereunder and under the other Loan Documents.
"Taxes" means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Administrative Agent, respectively, taxes imposed on any Lender or the
Administrative Agent as a result of a present or former connection between such
Lender or the Administrative Agent and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from such
Lender or the Administrative Agent having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement).
29
"Term Commitments" means, collectively, (a) the Tranche A Term
Commitment, (b) the Tranche B Term Commitment, (c) the Tranche C Term Commitment
and (d) the Tranche D Term Commitment.
"Term Loan" means a Tranche A Term Loan, a Tranche B Term Loan, a
Tranche C Term Loan or a Tranche D Term Loan; collectively, the "Term Loans".
"Test Period" means, for any determination under this Agreement at any
time, the four consecutive Fiscal Quarters of the Borrower then last ended.
"Total Percentage" means, as to any Lender, the percentage which (a)
the sum of (i) the aggregate principal amount of all Term Loans held by such
Lender and (ii) the amount of such Lender's Revolving Commitment (or, after
termination or expiration of the Revolving Commitments, the outstanding
principal amount of such Lender's Revolving Loans and Special Facility
Obligations) is of (b) the sum of (i) the aggregate principal amount of all Term
Loans and (ii) the aggregate amount of all Revolving Commitments (or, after
termination or expiration of the Revolving Commitments, the outstanding
principal amount of all Revolving Loans and Special Facility Obligations).
"Trademark Holding Subsidiaries" means, collectively, Lisco, the Lisco
Subsidiaries and EWW Lisco.
"Trademarks" means, collectively, trademarks, service marks, trade
names, logos, trade dress and trademark and service xxxx applications,
registrations and recordings, including all rights relating thereto arising
under common law.
"Tranche A Term Commitment" means the obligation of the Tranche A Term
Lenders to make Tranche A Term Loans in an aggregate principal amount equal to
$175,000,000, and the "Tranche A Term Commitment" of any Tranche A Lender means
such Lender's Commitment set forth opposite its name in Part A of Schedule 2.1.
"Tranche A Term Lender" means a financial institution identified as
such in Part A of Schedule 2.1, and each permitted successor or assign thereof.
"Tranche A Term Loan" has the meaning specified in Section 2.1(a).
"Tranche A Term Maturity Date" means September 30, 2003.
"Tranche A Term Percentage" means, as to any Tranche A Term Lender, (a)
until the funding of the Tranche A Term Loans, the percentage which (i) such
Lender's Tranche A Term Commitment is of (ii) all Tranche A Term Commitments,
and thereafter (b) the percentage which (i) the principal amount of such
Lender's Tranche A Term Loan is of (ii) the aggregate principal amount of all
Tranche A Term Loans.
30
"Tranche B Term Commitment" means the obligation of the Tranche B Term
Lenders to make Tranche B Term Loans in an aggregate principal amount equal to
$87,500,000, and the "Tranche B Term Commitment" of any Tranche B Lender means
such Lender's Commitment set forth opposite its name in Part B of Schedule 2.1.
"Tranche B Term Lender" means a financial institution identified as
such in Part B of Schedule 2.1, and each permitted successor or assign thereof.
"Tranche B Term Loan" has the meaning specified in Section 2.1(b).
"Tranche B Term Maturity Date" means September 30, 2004.
"Tranche B Term Percentage" means, as to any Tranche B Term Lender, (a)
until the funding of the Tranche B Term Loans, the percentage which (i) such
Lender's Tranche B Term Commitment is of (ii) all Tranche B Term Commitments,
and thereafter (b) the percentage which (i) the principal amount of such
Lender's Tranche B Term Loan is of (ii) the aggregate principal amount of all
Tranche B Term Loans.
"Tranche C Term Commitment" means the obligation of the Tranche C Term
Lenders to make Tranche C Term Loans in an aggregate principal amount equal to
$87,500,000, and the "Tranche C Term Commitment" of any Tranche C Lender means
such Lender's Commitment set forth opposite its name in Part C of Schedule 2.1.
"Tranche C Term Lender" means a financial institution identified as
such in Part C of Schedule 2.1, and each permitted successor or assign thereof.
"Tranche C Term Loan" has the meaning specified in Section 2.1(c).
"Tranche C Term Maturity Date" means September 30, 2005.
"Tranche C Term Percentage" means, as to any Tranche C Term Lender, (a)
until the funding of the Tranche C Term Loans, the percentage which (i) such
Lender's Tranche C Term Commitment is of (ii) all Tranche C Term Commitments,
and thereafter (b) the percentage which (i) the principal amount of such
Lender's Tranche C Term Loan is of (ii) the aggregate principal amount of the
Tranche C Term Loans.
"Tranche D Term Commitment" means the obligation of the Tranche D Term
Lenders to make Tranche D Term Loans in an aggregate principal amount equal to
$50,000,000, and the "Tranche D Term Commitment" of any Tranche D Lender means
such Lender's Commitment set forth opposite its name in Part D of Schedule 2.1.
"Tranche D Term Lender" means a financial institution identified as
such in Part D of Schedule 2.1, and each permitted successor or assign thereof.
31
"Tranche D Term Loan" has the meaning specified in Section 2.1(d).
"Tranche D Term Maturity Date" means March 30, 2006.
"Tranche D Term Percentage" means, as to any Tranche D Term Lender, (a)
until the funding of the Tranche D Term Loans, the percentage which (i) such
Lender's Tranche D Term Commitment is of (ii) all Tranche D Term Commitments,
and thereafter (b) the percentage which (i) the principal amount of such
Lender's Tranche D Term Loan is of (ii) the aggregate principal amount of all
Tranche D Term Loans.
"Transferee" has the meaning specified in Section 11.8(f).
"Type" has the meaning specified in the definition of "Loan".
"UCP" has the meaning specified in Section 3.11.
"Unfunded Pension Liability" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA over the current value of that
Plan's assets, determined in accordance with the assumptions used for funding
the Plan pursuant to Section 412 of the Code for the applicable plan year.
"United States" and "U.S." each means the United States of America.
"Unrestricted Subsidiary" means each Subsidiary (a) first created or
acquired by the Borrower or a Restricted Subsidiary after the Closing Date to
the extent the acquisition price therefor (by capital contribution, purchase
price, etc.) is funded by the Borrower in accordance with clause (i) of Section
8.3 and such Subsidiary is designated by the Borrower as an Unrestricted
Subsidiary in a written notice delivered to the Administrative Agent prior to or
reasonably promptly after such creation or acquisition or (b) first created or
acquired after the Closing Date by another Unrestricted Subsidiary created or
acquired in accordance with the provisions of this definition, provided that the
provisions of clause (i) of Section 8.3 are not breached in connection with such
creation or acquisition and that such Subsidiary and the Borrower enter into a
tax sharing agreement in form and substance reasonably satisfactory to the
Administrative Agent, it being understood and agreed that (i) a Restricted
Subsidiary cannot be owned in whole or in part by an Unrestricted Subsidiary,
(ii) an Unrestricted Subsidiary cannot be designated as a Restricted Subsidiary
except with prior written notice to the Administrative Agent and as otherwise
provided in clause (h) of Section 8.3 and (iii) in order to be permitted to be
created or acquired or to continue to exist, no recourse whatsoever may be had
to the Borrower or any of its Restricted Subsidiaries or any of their respective
properties in respect of any obligations or liabilities (contingent or
otherwise) of such Unrestricted Subsidiary except to the extent the aggregate
maximum amount of such recourse constitutes an Investment made and permitted
pursuant to clause (i) of Section 8.3.
32
"Voting Stock" means, with respect to any Person, shares of such
Person's capital stock having the right to vote for the election of directors of
such Person under ordinary circumstances.
1.2. Other Interpretive Provisions. (a) The meanings of defined terms
are equally applicable to the singular and plural forms of the defined terms.
(b) The words "hereof," "herein," "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means "including without
limitation."
(iii) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and including"; the
words "to" and "until" each mean "to but excluding", and the word "through"
means "to and including."
(iv) The term "property" includes any kind of property or
asset, real, personal or mixed, tangible or intangible.
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments, supplements and other modifications
thereto, but only to the extent such amendments and other modifications are not
prohibited by the terms of any Loan Document and (ii) references to any statute
or regulation are to be construed as including all statutory and regulatory
provisions consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.
(e) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
(f) (i) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agents, the Borrower
and the other parties, and are the products of all parties.
(ii) No Agent and no Lender has any fiduciary relationship
with or duty to the Borrower or any of its Subsidiaries arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Agents and Lenders, on one hand, and the Borrower, on
the other hand, in connection herewith or therewith is solely that of debtor and
creditor.
33
(iii) No joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
1.3. Accounting Principles. Unless the context otherwise clearly
requires, all accounting terms not expressly defined herein shall be construed,
and all financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied.
ARTICLE II
THE CREDITS
2.1. Amounts and Terms of Commitments. (a) The Tranche A Term Credit.
Each Tranche A Term Lender severally agrees, on the terms and conditions set
forth herein, to make a single loan to the Borrower (each such loan, a "Tranche
A Term Loan") on the Closing Date in a principal amount not to exceed such
Tranche A Term Lender's Tranche A Term Percentage of the Tranche A Term
Commitment. Amounts borrowed as Tranche A Term Loans which are repaid or prepaid
by the Borrower may not be reborrowed.
(b) The Tranche B Term Credit. Each Tranche B Term Lender severally
agrees, on the terms and conditions set forth herein, to make a single loan to
the Borrower (each such loan, a "Tranche B Term Loan") on the Closing Date in a
principal amount not to exceed such Tranche B Term Lender's Tranche B Term
Percentage of the Tranche B Term Commitment. Amounts borrowed as Tranche B Term
Loans which are repaid or prepaid by the Borrower may not be reborrowed.
(c) The Tranche C Term Credit. Each Tranche C Term Lender severally
agrees, on the terms and conditions set forth herein, to make a single loan to
the Borrower (each such loan, a "Tranche C Term Loan") on the Closing Date in a
principal amount not to exceed such Tranche C Term Lender's Tranche C Term
Percentage of the Tranche C Term Commitment. Amounts borrowed as Tranche C Term
Loans which are repaid or prepaid by the Borrower may not be reborrowed.
(d) The Tranche D Term Credit. Each Tranche D Term Lender severally
agrees, on the terms and conditions set forth herein, to make a single loan to
the Borrower (each such loan, a "Tranche D Term Loan") on the Closing Date in a
principal amount not to exceed such Tranche D Term Lender's Tranche D Term
Percentage of the Tranche D Term Commitment. Amounts borrowed as Tranche D Term
Loans which are repaid or prepaid by the Borrower may not be reborrowed.
(e) The Revolving Credit. Each Revolving Lender severally agrees, on
the terms and conditions set forth herein, to make loans to the Borrower (each
such loan, a "Revolving Loan"; collectively, the "Revolving Loans") from time to
time on any Business Day during the period from the Closing Date to the
Revolving Commitment Termination Date in an aggregate amount not to exceed at
any time outstanding the amount specified for such Revolving Lender on Schedule
2.1 (such
34
amount, as the same may be reduced under Section 2.6, or as a result of one or
more assignments under Section 11.8, such Revolving Lender's "Revolving
Commitment"); provided, however, that, after giving effect to any Borrowing of
Revolving Loans, the aggregate principal amount of all outstanding Revolving
Loans plus all outstanding Swing Line Loans plus all outstanding Special
Facility Obligations shall not at any time exceed the combined Revolving
Commitments. Within the limits of each Lender's Revolving Commitment, and
subject to the other terms and conditions hereof, the Borrower may borrow under
this Section 2.1(e), prepay under Section 2.7 and reborrow from time to time
under this Section 2.1(e).
(f) Swing Line Commitment. The Swing Line Lender agrees, on the terms
and conditions set forth herein, to make one or more loans to the Borrower (each
such loan, a "Swing Line Loan") from time to time on any Business Day during the
period from the Closing Date to the Revolving Commitment Termination Date, in an
aggregate amount not to exceed the Swing Line Commitment; provided, however,
that, after giving effect to any Borrowing of Swing Line Loans, the aggregate
principal amount of all outstanding Revolving Loans and Swing Line Loans plus
all outstanding Special Facility Obligations shall not at any time exceed the
combined Revolving Commitments. Within the limits of the Swing Line Lender's
Swing Line Commitment, and subject to the other terms and conditions hereof, the
Borrower may borrow Swing Line Loans under this Section 2.1(f), prepay Swing
Line Loans under Section 2.6 and reborrow Swing Line Loans under this Section
2.1(f).
2.2. Loan Accounts. (a) The Loans and Special Facility Advances made by
each Lender and the Letters of Credit Issued and the Acceptances created by the
Fronting Lender shall be evidenced by one or more loan accounts or records
maintained by such Lender or Fronting Lender, as the case may be, in the
ordinary course of business. The loan accounts or records maintained by the
Administrative Agent, the Fronting Lender and each Lender shall be conclusive
absent clearly demonstrable error of the amount of the Loans made and Special
Facility Obligations extended by the Lenders to or for the account of the
Borrower and the interest and payments thereon. Any failure so to record or any
error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrower hereunder to pay any amount owing with respect to the Loans and
Special Facility Obligations.
(b) Upon the request of any Lender made through the Administrative
Agent, solely to facilitate the pledge or assignment of its Loans to any Federal
Reserve Bank pursuant to Section 11.8(g), the Loans made by such Lender may be
evidenced by one or more Notes, instead of or in addition to loan accounts. Each
such Lender is irrevocably authorized by the Borrower to endorse on the
schedules annexed to its Note(s) the date, amount and maturity of each Loan
made, continued or converted by it and the amount of each payment of principal
made by the Borrower with respect thereto. Each such Lender's record shall be
conclusive absent clearly demonstrable error; provided, however, that the
failure of a Lender to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the obligations of the
Borrower hereunder or under any such Note to such Lender.
2.3. Procedure for Borrowing. (a) Each Borrowing shall be made upon the
Borrower's irrevocable written or telephonic notice delivered to the
Administrative Agent (and to the Swing Line
35
Lender if a Swing Line Loan is requested) (if in writing) in the form of a
Notice of Borrowing (any such notice to be received by the Administrative Agent
(and by the Swing Line Lender if a Swing Line Loan is requested) not later than
(i) 11:00 a.m. (New York City time) three Business Days prior to the requested
Borrowing Date (if telephonic, promptly confirmed thereafter in writing in the
form of a Notice of Borrowing), in the case of Eurodollar Loans and (ii) 11:00
a.m. (New York City time) (or 1:00 p.m. (New York City time) in the case of
Swing Line Loans) on the requested Borrowing Date (if telephonic, confirmed
thereafter in writing in the form of a Notice of Borrowing), in the case of Base
Rate Loans, specifying:
(A) the amount of the Borrowing, which shall (1) in the case
of Term Loans, be in an aggregate minimum amount of $10,000,000 for Eurodollar
Loans and $5,000,000 for Base Rate Loans or, in each case, any multiple of
$500,000 in excess thereof, (2) in the case of Revolving Loans, be in an
aggregate minimum amount of $500,000 for both Eurodollar Loans and Base Rate
Loans or any multiple of $100,000 in excess thereof and (3) in the case of Swing
Line Loans (except for Swing Line Loans made in accordance with Section 3.4), be
in an aggregate minimum amount of $500,000 of Base Rate Loans or any multiple of
$100,000 in excess thereof;
(B) the requested Borrowing Date, which shall be a Business
Day;
(C) the Type of Loans comprising the Borrowing (provided, that
all Swing Line Loans shall be Base Rate Loans); and
(D) the duration of the Interest Period applicable to
Eurodollar Loans included in such notice. If the Notice of Borrowing fails to
specify the duration of the Interest Period for any Borrowing comprised of
Eurodollar Loans, such Interest Period shall be one month.
(b) If Loans other than Swing Line Loans are requested, the
Administrative Agent will promptly notify each Lender of its receipt of any
Notice of Borrowing and of the amount of such Lender's Pro Rata Share of that
Borrowing.
(c) (i) In the case of Term Loans or Revolving Loans, each Lender will
make the amount of its Pro Rata Share of each Borrowing available to the
Administrative Agent for the account of the Borrower at the Administrative
Agent's Payment Office by 1:00 p.m. (New York City time) on the Borrowing Date
requested by the Borrower in funds immediately available to the Administrative
Agent. The proceeds of all such Loans will then be made available to the
Borrower by the Administrative Agent at such office by crediting the account of
the Borrower on the books of BofA (or any successor to BofA as Administrative
Agent) with the aggregate of the amounts made available to the Administrative
Agent by the Lenders or by wire transfer in accordance with written instructions
provided to the Administrative Agent by the Borrower, in each case in like funds
as received by the Administrative Agent.
(ii) In the case of Swing Line Loans, the Swing Line Lender
will make available to the Borrower at its account at the Swing Line Lender, not
later than 2:00 p.m. (New York City time)
36
on the requested Borrowing Date, in immediately available funds, the proceeds of
the Swing Line Loan being made on such date.
(d) Without in any way limiting the obligation of the Borrower to
confirm in writing any notice it may give hereunder by telephone, the
Administrative Agent (and the Swing Line Lender) may act prior to receipt of
written confirmation without liability upon the basis of such telephonic notice
believed by the Administrative Agent (and the Swing Line Lender) in good faith
to be from a Responsible Officer of the Borrower (or a designee of such
Responsible Officer). In each such case the Borrower hereby waives the right to
dispute the Administrative Agent's (and the Swing Line Lender's) record of the
terms of any such telephonic notice.
2.4. Conversion and Continuation Elections. (a) The Borrower may, upon
irrevocable telephonic notice to the Administrative Agent (promptly confirmed
thereafter in writing) in accordance with Section 2.4(b):
(i) elect, as of any Business Day, in the case of Base Rate
Loans, or as of the last day of the applicable Interest Period, in the case of
Eurodollar Loans, to convert any such Loans (or any part thereof in an amount
not less than $10,000,000 in the case of conversions relating to Term Loans to
Eurodollar Loans or $5,000,000 in the case of conversions of Term Loans to Base
Rate Loans and $500,000 in the case of conversions of Revolving Loans to
Eurodollar Loans or Base Rate Loans, or in each case that is in an integral
multiple of $100,000 in excess thereof) into Loans of any other Type; or
(ii) elect, as of the last day of the applicable Interest
Period, to continue any Loans having Interest Periods expiring on such day (or
any part thereof in an amount not less than (x) in the case of continuations of
Term Loans, $10,000,000 for Eurodollar Loans and $5,000,000 for Base Rate Loans
or, in each case, any multiple of $500,000 in excess thereof or (y) in the case
of continuations of Revolving Loans, $500,000 for both Eurodollar Loans and Base
Rate Loans or, in each case, any multiple of $100,000 in excess thereof).
(b) The Borrower shall deliver a Notice of Conversion/Continuation to
be received by the Administrative Agent not later than 11:00 a.m. (New York City
time) (i) at least three Business Days in advance of the Conversion/Continuation
Date, if the Loans are to be converted into or continued as Eurodollar Loans and
(ii) on the Conversion/Continuation Date, if the Loans are to be converted into
Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or
continued;
(C) the Type of Loans resulting from the proposed conversion
or continuation; and
37
(D) other than in the case of conversions into Base Rate
Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Eurodollar Loans, the Borrower has failed to select timely a new Interest Period
to be applicable to such Eurodollar Loans, the Borrower shall be deemed to have
elected to convert such Eurodollar Loans into Eurodollar Loans having an
Interest Period of one month effective as of the expiration date of such
Interest Period.
(d) The Administrative Agent will promptly notify each Lender of its
receipt of a Notice of Conversion/Continuation, or, if no timely notice is
provided by the Borrower, the Administrative Agent will promptly notify each
Lender of the details of any automatic conversion. All conversions and
continuations shall be made ratably according to the respective outstanding
principal amounts of the Loans with respect to which the notice was given held
by each Lender.
(e) If any Event of Default or payment Default is in existence at the
time of any proposed continuation of, or conversion into, any Eurodollar Loans
and the Administrative Agent has, or the Majority Lenders have, determined in
its or their sole discretion not to permit such continuation or conversion and
have notified the Borrower telephonically or in writing thereof, the Borrower
may not elect to have a Loan converted into or continued as an Eurodollar Loan
and any outstanding Eurodollar Loans shall be automatically converted on the
last day of the current Interest Period applicable thereto into Base Rate Loans.
(f) Without in any way limiting the obligation of the Borrower to
confirm in writing any notice it may give hereunder by telephone, the
Administrative Agent may act prior to receipt of written confirmation without
liability upon the basis of such telephonic notice believed by the
Administrative Agent in good faith to be from a Responsible Officer of the
Borrower (or a designee of such Responsible Officer). In each such case the
Borrower hereby waives the right to dispute the Administrative Agent's record of
the terms of any such telephonic notice.
(g) No Swing Line Loans may be converted to Eurodollar Loans.
2.5. Special Provisions for Swing Line Loans.
(a) Lenders to Make Revolving Loans.
(i) The Swing Line Lender, at any time in its
discretion, upon written request to the Lenders through the Administrative Agent
(with a copy to the Borrower), may require each Lender (including the Swing Line
Lender) to make a Revolving Loan, subject to the provisions of Section 2.1(e),
in an amount equal to such Lender's Pro Rata Share of the outstanding Swing Line
Loans. The Swing Line Lender shall deliver such request to the Administrative
Agent prior to 12:00 noon (New York City time) on the Business Day immediately
preceding the date (which shall be a Business Day) on which such Revolving Loans
are to be made. Promptly upon receipt of any such request, the Administrative
Agent shall give notice thereof to the Lenders. Each Lender shall make
38
available its Pro Rata Share of such Revolving Loans to the Administrative Agent
by 12:00 noon (New York City time) on the requested date for such Revolving
Loans. The Administrative Agent shall apply the proceeds of such Revolving Loans
to prepay the Swing Line Loans of the Swing Line Lender; provided, however, that
the Administrative Agent shall be obligated to make the proceeds of such
Revolving Loans available only to the extent received by it from the Lenders.
All Revolving Loans made pursuant to this Section 2.5(a) shall be Base Rate
Loans.
(ii) In the event the Administrative Agent advances
proceeds of any Revolving Loan to the Swing Line Lender and one or more of the
Lenders (other than the Swing Line Lender) fail to fund all or any portion of
such Revolving Loan immediately upon receipt of notice from the Administrative
Agent, then (A) such Lender shall pay directly to the Administrative Agent the
amount thereof by no later than 1:00 p.m. (New York City time) on such date and
interest shall accrue on such Revolving Lender's obligation to make such
payment, from such date until three days thereafter, at a rate per annum equal
to the Federal Funds Rate in effect from time to time during such period, and
after the expiration of such three day period, at the Base Rate, and (B) if not
paid by such Lender, the Swing Line Lender will repay directly to the
Administrative Agent such amount as will equal the amount such other Lender(s)
failed to fund, together with interest at a rate per annum equal to the Federal
Funds Rate in effect from time to time during the period in which such Lender
failed to make such payments, whereupon the Swing Line Loans will be reinstated
pro rata.
(b) Participations in Swing Line Loans.
(i) If, at any time prior to the making of Revolving
Loans pursuant to Section 2.5 hereof, any Event of Default described in clause
(f) or (g) of Section 9.1 shall have occurred, each Lender, on the date such
Revolving Loan was to have been made or, if no request for Revolving Loans had
been made pursuant to Section 2.5(a)(i), promptly upon request by the Swing Line
Lender delivered to the Administrative Agent, shall purchase an undivided
participation interest in all outstanding Swing Line Loans in an amount equal to
its Pro Rata Share times the outstanding amount of such Swing Line Loans. Each
Lender (other than the Swing Line Lender) will transfer immediately to the
Administrative Agent for credit to the Swing Line Lender, in immediately
available funds, the amount of its participation. The Swing Line Lender will
deliver to such other Lender, promptly following receipt of such funds, a Swing
Line Loan Participation Certificate, dated the date of receipt of such funds and
in the amount of such Lender's participation if requested to do so by such other
Lender.
(ii) Upon (and only upon) receipt by the Administrative
Agent for the account of the Swing Line Lender of immediately available funds
from the Borrower (i) as payment for a Swing Line Loan with respect to which any
Revolving Lender has paid the Administrative Agent for the account of the Swing
Line Lender for such Revolving Lender's participation in such Swing Line Loan
pursuant to Section 2.5(b)(i) or (ii) in payment of interest thereon, the
Administrative Agent will pay to each Revolving Lender which is not a Defaulting
Lender, in the same funds as those received by the Administrative Agent for the
account of the Swing Line Lender, the amount of such Revolving Lender's
Revolving Loan Percentage of such funds, and the Swing Line Lender shall receive
the
39
amount of the Revolving Loan Percentage of such funds of any Revolving Lender
that did not so pay the Administrative Agent for the account of the Swing Line
Lender.
(c) Acknowledged Privity. The Borrower expressly agrees that,
in respect of each Lender's funded participation interest in any Swing Line
Loan, such Lender shall be deemed to be in privity of contract with the Borrower
and have the same rights and remedies against the Borrower under the Loan
Documents as if such funded participation interest in such Swing Line Loan were
a Revolving Loan.
(d) Obligation to Participate in Swing Line Loans Absolute.
Each Revolving Lender's obligation in accordance with this Agreement to make
Revolving Loans or purchase participation interests in Swing Line Loans, as
contemplated by Section 2.5(b)(i), as a result of the making of a Swing Line
Loan, shall be absolute and unconditional and without recourse to the Swing Line
Lender and shall not be affected by any circumstance, including (i) any set-off,
counterclaim, recoupment, defense or other right which such Revolving Lender may
have against the Swing Line Lender, the Borrower or any other Person for any
reason whatsoever; (ii) the occurrence or continuance of a Default, an Event of
Default or a Material Adverse Effect; or (iii) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing.
2.6. Voluntary Termination or Reduction of Revolving Swing Line and/or
Special Facility Commitments. The Borrower may, upon not less than three
Business Days' prior written notice to the Administrative Agent, terminate the
Revolving Commitments and/or the Swing Line Commitment and/or the Special
Facility Commitment, or permanently reduce the Revolving Commitments and/or the
Swing Line Commitment and/or the Special Facility Commitment by an aggregate
minimum amount of $1,000,000 or any multiple of $100,000 in excess thereof;
unless, after giving effect thereto and to any prepayments of Loans made on the
effective date thereof, the then-outstanding principal amount of the Revolving
Loans, Swing Line Loans and Special Facility Obligations would exceed,
respectively, the amount of the Revolving Commitments, the Swing Line Commitment
and the Special Facility Commitment then in effect. Once reduced in accordance
with this Section, the Revolving Commitments and/or the Swing Line Commitment
and/or the Special Facility Commitment may not be increased. Any reduction of
the Revolving Commitments and/or the Fronting Lender's Special Facility
Commitment shall be applied to each Lender according to its Revolving Loan
Percentage. All accrued commitment fees to but not including the effective date
of any termination in full of all Revolving Commitments and/or the Swing Line
Commitment and/or the Special Facility Commitment shall be paid on the effective
date of such termination.
2.7. Optional Prepayments. Subject to Section 4.4, the Borrower may, at
any time or from time to time, upon prior irrevocable written notice to the
Administrative Agent by 11:00 a.m. (New York City time) one Business Day in
advance (or, in the case of Swing Line Loans, the same Business Day), prepay
Revolving Loans, Term Loans, Swing Line Loans or Special Facility Obligations,
in whole or in part, in minimum amounts of $500,000 or any multiple of $100,000
in excess thereof. Such notice of prepayment shall specify the date and amount
of such prepayment, the Type(s) of Loans or types of Special Facility
Obligations to be prepaid and whether the Loans are
40
Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans, Tranche D Term
Loans or Revolving Loans; provided that, at the Borrower's option, exercised in
a writing to the Administrative Agent at least one Business Day before any such
prepayment is to be distributed, such prepayment shall not be applied to any
Loan of a Defaulting Lender, but shall be re-allocated ratably to the Loans of
the Non-Defaulting Lenders. The Administrative Agent will promptly notify each
Lender of its receipt of any such notice, and of such Lender's Pro Rata Share of
such prepayment. If such notice is given by the Borrower, the Borrower shall
make such prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein, together with accrued interest to
each such date on the amount prepaid and any amounts required pursuant to
Section 4.4. Optional prepayments of Term Loans shall be applied to the
installments of the Term Loans in the amount and in the order the Borrower shall
direct.
2.8. Mandatory Prepayments of Loans. (a) Asset Dispositions. If
theiBorrower or any Restricted Subsidiary shall at any time make a Disposition
(other than a Disposition permitted pursuant to clause (a), (b) or (c) of
Section 8.2), then (i) the Borrower or such Restricted Subsidiary may, within
360 days after the receipt by the Borrower or such Restricted Subsidiary of the
Net Disposition Proceeds of such Disposition, (A) reinvest up to 100% of such
Net Disposition Proceeds in the businesses described in Section 7.13 (including,
subject to the provisions of clause (h) of Section 8.3, making Acquisitions in
such businesses), unless at the time of such reinvestment an Event of Default or
payment Default has occurred and is then continuing (except in the case where
the Borrower or such Restricted Subsidiary is subject to a definitive agreement
that has been duly and fully executed at a time when no Event of Default or
payment Default existed and pursuant to which it is obligated to use such Net
Disposition Proceeds for a purpose permitted by this Section 2.8(a)), (B) prepay
the Term Loans within such 360-day period in an amount equal to such Net
Disposition Proceeds (or a portion thereof) or (C) retain the amount of such Net
Disposition Proceeds not so applied pending such application and (ii) to the
extent such Net Disposition Proceeds are not so applied during such 360-day
period, the Borrower shall prepay the Term Loans on the Business Day immediately
succeeding the last day of such 360-day period in an aggregate amount equal to
the portion of such Net Disposition Proceeds not so applied.
(b) Excess Cash Flow. For each Fiscal Year on the last day of which the
ratio of Consolidated Total Debt as at such date to Consolidated EBITDA for such
Fiscal Year is more than 4.0 to 1.0, the Borrower shall, not later than the day
on which financial statements for such Fiscal Year are required to be delivered
pursuant to clause (a) of Section 7.1, prepay Term Loans in an amount equal to
fifty percent (50%) of Excess Cash Flow, if any, for such Fiscal Year; provided
that the first Fiscal Year in respect of which such amount shall be required to
be so applied shall be the Fiscal Year ending September 30, 1997.
(c) Indebtedness Issuance. If the Borrower shall issue Indebtedness
under clause (h) of Section 8.4 or, subject to the written consent of the
Majority Lenders, issue indebtedness for borrowed money or incur Capitalized
Lease Liabilities not otherwise permitted to be issued or incurred pursuant to
Section 8.4, the Borrower shall promptly upon, and in no event later than five
Business Days after,
41
receipt by the Borrower of Net Issuance Proceeds of such issuance or incurrence,
prepay the Term Loans in an aggregate amount equal to the amount of such Net
Issuance Proceeds.
(d) Application of Proceeds. Any prepayment made pursuant to clauses
(a)(ii), (c) and, subject to the proviso to this sentence, (b) shall be
allocated among the Term Loans as follows: (i) first, to the next two scheduled
and unpaid principal installments of the Tranche A Term Loans (and any Tranche B
Term Loan, Tranche C Term Loan and Tranche D Term Loan installments payable on
or before such installment payment dates) in direct order of maturities, and
(ii) second, to the remaining installments of the Term Loans pro rata, except
that, so long as any Tranche A Term Loans are outstanding, (A) with respect to
the amount of any such prepayment that is allocated to the then outstanding
Tranche B Term Loans, Tranche C Term Loans or Tranche D Term Loans, the Borrower
will, prior to prepaying any such Loans, give the Administrative Agent
telephonic notice (promptly confirmed in writing) requesting that the
Administrative Agent provide notice of such prepayment to each Tranche B Lender,
Tranche C Lender and Tranche D Lender, (B) each Tranche B Term Lender, Tranche C
Term Lender and Tranche D Term Lender will have the right to refuse any such
prepayment by giving written notice of such refusal to the Borrower within seven
Business Days after such Lender's receipt of notice from the Administrative
Agent of such prepayment (and the Borrower shall not prepay any such Tranche B
Term Loans, Tranche C Term Loans or Tranche D Term Loans until such seventh
Business Day or such time as the Borrower receives written notice from such
Lender that it consents to such prepayment, whichever is earlier), (C) 50% of
any prepayment so refused shall be applied to prepay the Tranche A Term Loans in
the manner described in clause (i) above and (D) the remainder of any prepayment
so refused may be retained by the Borrower; provided, however, that any
prepayment made pursuant to clause (b) may be applied, at the Borrower's
election, to scheduled and unpaid principal installments of the Term Loans pro
rata in direct order of maturities, subject to the exception (and clauses (A)
through (E) thereof) set forth above in this Section 2.8(d).
(e) General. Any prepayments pursuant to this Section 2.8 shall be
applied to Types of Loans as the Borrower shall direct (and in the absence of
any such direction, shall be applied first to any Base Rate Loans then
outstanding and then to Eurodollar Loans with the shortest Interest Periods
remaining). The Borrower shall pay, together with each prepayment under this
Section 2.8, accrued interest on the amount of Eurodollar Loans prepaid and any
amounts required pursuant to Section 4.4. At the Borrower's option, exercised in
a writing to the Administrative Agent at least one Business Day before any such
prepayment is to be distributed, prepayments pursuant to this Section 2.8 shall
not be applied to any Loan of a Defaulting Lender, but shall be reallocated
ratably to the Loans of the Non- Defaulting Lenders.
(f) Interest Periods. In lieu of making any payment pursuant to this
Section 2.8 in respect of any Eurodollar Loan other than on the last day of the
Interest Period therefor, so long as no Default or Event of Default shall have
occurred and be continuing, the Borrower at its option may deposit with the
Administrative Agent an amount equal to the amount of the Eurodollar Loan to be
prepaid and such Eurodollar Loan shall be repaid on the last day of the Interest
Period therefor in the required amount (it being understood and agreed that such
deposit need not be made with respect to Eurodollar
42
Loans having Interest Periods that end within three months of the date of such
prepayment). Such deposit shall be held by the Administrative Agent in a
corporate time deposit account established on terms reasonably satisfactory to
the Administrative Agent, earning interest at the then-customary rate for
accounts of such type. Such deposit shall cash collateralize the Obligations,
provided that the Borrower may at any time direct that such deposit be applied
to make the applicable payment required pursuant to this Section 2.8, subject to
the provisions of Section 4.4.
(g) Telephonic Notice. Without in any way limiting the obligation of
the Borrower to confirm in writing any notice it may give hereunder by
telephone, the Administrative Agent may act prior to receipt of written
confirmation without liability upon the basis of such telephonic notice believed
by the Administrative Agent in good faith to be from a Responsible Officer of
the Borrower (or a designee of such Responsible Officer). In each such case the
Borrower hereby waives the right to dispute the Administrative Agent's record of
the terms of any such telephonic notice.
2.9. Repayment. (a) The Tranche A Term Credit. The Borrower shall repay the
Tranche A Term Loans on the dates and in the amounts set forth below:
Number of Months
From Closing Date Amount
----------------- ------
24 $ 15,000,000
36 $ 25,000,000
48 $ 25,000,000
60 $ 30,000,000
72 $ 30,000,000
84 (7 years)(Tranche A Term Maturity Date) $ 50,000,000
------------
Total: $175,000,000
(b) The Tranche B Term Credit. The Borrower shall repay the Tranche B Term
Loans on the dates and in the amounts set forth below:
Number of Months
From Closing Date Amount
----------------- ------
24 $1,000,000
36 $1,000,000
48 $1,000,000
60 $1,000,000
72 $1,000,000
84 $1,000,000
96 (8 years)(Tranche B Term Maturity Date) $81,500,000
-----------
Total: $87,500,000
43
(c) The Tranche C Term Credit. The Borrower shall repay the Tranche C Term
Loans on the dates and in the amounts set forth below:
Number of Months
From Closing Date Amount
----------------- ------
24 $1,000,000
36 $1,000,000
48 $1,000,000
60 $1,000,000
72 $1,000,000
84 $1,000,000
96 $1,000,000
108 (9 years)(Tranche C Term Maturity Date) $80,500,000
-----------
Total: $87,500,000
(d) The Tranche D Term Credit. The Borrower shall repay the Tranche D Term
Loans on the dates and in the amounts set forth below:
Number of Months
From Closing Date Amount
----------------- ------
24 $500,000
36 $500,000
48 $500,000
60 $500,000
72 $500,000
84 $500,000
96 $500,000
108 $500,000
114 (9-1/2 years)(Tranche D Term Maturity) $46,000,000
-----------
Total: $50,000,000
(e) The Revolving Credit. The Borrower shall repay to the Revolving Lenders
on the Revolving Commitment Termination Date the aggregate principal amount of
Revolving Loans outstanding on such date.
(f) The Swing Line Credit. The Borrower shall repay to the Swing Line
Lender on the Revolving Commitment Termination Date the aggregate principal
amount of Swing Line Loans outstanding on such date.
2.10. Interest. (a) Rate. Each Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to the Eurodollar Rate or the Base Rate, as the case may be
(and subject to the Borrower's right to convert to other Types of Loans under
Section 2.4), plus the Applicable Margin.
44
(b) Payment Dates. Interest on each Loan (except for Swing Line Loans
made as a result of a drawing under a documentary Letter of Credit and in
contemplation of refinancing such Swing Line Loans with the proceeds of
Acceptances) shall be paid in arrears on each Interest Payment Date. Interest
shall also be paid on the date of any prepayment of Eurodollar Loans under
Section 2.7 or 2.8 for the portion of the Loans so prepaid and upon payment
(including prepayment) in full thereof and, at and after maturity (whether by
acceleration or otherwise) of a Loan, interest shall be paid on demand of the
Administrative Agent at the request or with the consent of the Majority Lenders.
(c) Default Rate. Notwithstanding clause (a) of this Section, if any
amount of principal of or interest on any Loan is not paid in full when due
(whether at stated maturity, by acceleration, demand or otherwise), the Borrower
agrees to pay interest on such unpaid principal or interest, from the date such
amount becomes due until the date such amount is paid in full, and after as well
as before any entry of judgment thereon to the extent permitted by law, payable
on demand, at a fluctuating rate per annum equal to the Base Rate plus the
Applicable Margin plus 2%.
(d) Maximum Rate. Anything herein to the contrary notwithstanding, the
obligations of the Borrower to any Lender hereunder shall be subject to the
limitation that payments of interest shall not be required for any period for
which interest is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by such Lender would be contrary
to the provisions of any law applicable to such Lender limiting the highest rate
of interest that may be lawfully contracted for, charged or received by such
Lender, and in such event the Borrower shall pay such Lender interest at the
highest rate permitted by applicable law.
2.11. Fees. (a) Arrangement, Agency Fees; etc. The Borrower shall pay
an arrangement fee to each Co-Arranger for such Co-Arranger's account, a
commitment fee to each Agent for such Agent's account and from time to time an
administrative agency fee to the Administrative Agent for the Administrative
Agent's account, in each case, as required by the letter agreement (the "Fee
Letter") among the Borrower, the Co-Arrangers and the Agents dated August 6,
1996, as amended as of September 3, 1996.
(b) Commitment Fees. The Borrower shall pay to the Administrative Agent
for the account of each Revolving Lender a commitment fee on the average daily
unused portion of such Lender's Revolving Commitment, computed and payable on a
quarterly basis in arrears on the last Business Day of each calendar quarter
based upon the daily utilization for that quarter, at a rate per annum equal to
the Applicable Margin for commitment fees. Such commitment fee shall accrue from
the Closing Date to the Revolving Commitment Termination Date, with the final
payment to be made in any event on the Revolving Commitment Termination Date.
The commitment fees provided in this clause shall accrue at all times after the
above-mentioned commencement date, including at any time during which one or
more conditions in Article V are not met.
2.12. Computation of Fees and Interest. (a) All computations of
interest for Eurodollar Loans and Base Rate Loans (calculated at the Federal
Funds Rate) shall be made on the basis of a 360-day year and actual days
elapsed. All other computations (including for interest on Base Rate
45
Loans (calculated at other than the Federal Funds Rate), commitment fees and the
fees set forth in Section 3.8)) shall be made on the basis of a year of 365 or
366 days, as the case may be, and actual days elapsed. Interest and fees shall
accrue during each period during which interest or such fees are computed from
(and including) the first day thereof to (but excluding) the last day thereof.
(b) Each determination of an interest rate by the Administrative Agent
shall be conclusive and binding on the Borrower and the Lenders in the absence
of clearly demonstrable error. The Administrative Agent will, at the request of
the Borrower or any Lender, deliver to the Borrower or such Lender, as the case
may be, a statement showing the quotations used by the Administrative Agent in
determining any interest rate and the resulting interest rate.
2.13. Payments by the Borrower. (a) All payments to be made by the
Borrower shall be made without set-off, recoupment or counterclaim. Except as
otherwise expressly provided herein, all payments by the Borrower shall be made
to the Administrative Agent for the account of the Lenders at the Administrative
Agent's Payment Office, and shall be made in dollars and in immediately
available funds, no later than 12:00 noon (New York City time) on the date
specified herein. The Administrative Agent will promptly distribute to each
Lender its Pro Rata Share (or other applicable share as expressly provided
herein) of such payment in like funds as received. Any payment received by the
Administrative Agent later than 3:00 p.m. (New York City time) shall be deemed
to have been received on the following Business Day and any applicable interest
or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of "Interest
Period" herein, whenever any payment is due on a day other than a Business Day,
such payment shall be made on the following Business Day, and such extension of
time shall in such case be included in the computation of interest or fees, as
the case may be.
(c) Unless the Administrative Agent receives written notice from the
Borrower prior to the date on which any payment is due to the Lenders that the
Borrower will not make such payment in full as and when required, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date in immediately available funds and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Borrower has not made such
payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent on demand such amount distributed to such Lender, together
with interest thereon at the Federal Funds Rate for each day from the date such
amount is distributed to such Lender until the date repaid.
2.14. Payments by the Lenders to the Administrative Agent. (a) Unless
the Administrative Agent receives written notice from a Lender prior to the
Closing Date or, with respect to any Borrowing after the Closing Date, at least
one Business Day prior to the date of such Borrowing, that such Lender will not
make available as and when required hereunder to the Administrative Agent for
the account of the Borrower the amount of that Lender's Pro Rata Share of the
Borrowing, the Administrative Agent may assume that each Lender has made such
amount available to the
46
Administrative Agent in immediately available funds on the Borrowing Date and
the Administrative Agent may (but shall not be so required), in reliance upon
such assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent any Lender shall not have made its full amount
available to the Administrative Agent in immediately available funds and the
Administrative Agent in such circumstances has made available to the Borrower
such amount, that Lender shall on the Business Day following such Borrowing Date
make such amount available to the Administrative Agent, together with interest
at the Federal Funds Rate for each day during such period. A notice of the
Administrative Agent submitted to any Lender with respect to amounts owing under
this clause (a) shall be conclusive, absent clearly demonstrable error. If such
amount is so made available, such payment to the Administrative Agent shall
constitute such Lender's Loan on the date of Borrowing for all purposes of this
Agreement. If such amount is not made available to the Administrative Agent on
the Business Day following the Borrowing Date, the Administrative Agent will
notify the Borrower of such failure to fund and, upon demand by the
Administrative Agent, the Borrower shall immediately pay such amount to the
Administrative Agent for the Administrative Agent's account, together with
interest thereon for each day elapsed since the date of such Borrowing, at a
rate per annum equal to the interest rate applicable at the time to the Loans
comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any Borrowing Date
shall not relieve any other Lender of any obligation hereunder to make a Loan on
such Borrowing Date, but no Lender shall be responsible for the failure of any
other Lender to make the Loan to be made by such other Lender on any Borrowing
Date.
2.15. Sharing of Payments, etc. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off or otherwise) in excess of its ratable share (or other share
contemplated hereunder) of such Loans, such Lender shall immediately (a) notify
the Administrative Agent of such fact and (b) purchase from the other Lenders
such participations in the Loans made by them as shall be necessary to cause
such purchasing Lender to share the excess payment pro rata with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender, such purchase shall to that
extent be rescinded and each other Lender shall repay to the purchasing Lender
the purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 11.10) with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. The Administrative Agent will keep
records (which shall be conclusive and binding in the absence of clearly
demonstrable error) of participations purchased under this Section and will in
each case notify the Lenders following any such purchases or repayments.
47
ARTICLE III
LETTERS OF CREDIT AND ACCEPTANCES
3.1. Letter of Credit and Acceptance Subfacilities. (a) On the terms
and conditions set forth herein (i) the Fronting Lender agrees (A) from time to
time on any Business Day during the period from the Closing Date to the
Revolving Commitment Termination Date to issue Letters of Credit, or create
Acceptances, or both, at the request of and for the account of the Borrower and
its Restricted Subsidiaries, as Account Parties, and to amend or renew Letters
of Credit previously issued by it, in accordance with Sections 3.2(c) and
3.2(d), and (B) to honor drafts duly drawn under the Letters of Credit and (ii)
the Revolving Lenders severally agree irrevocably to participate in Letters of
Credit Issued and Acceptances created for the account of Account Parties;
provided that the Fronting Lender shall not be obligated to Issue or create, and
no Revolving Lender shall be obligated to participate in, any Letter of Credit
or Acceptance, as the case may be, if as of the date of Issuance of such Letter
of Credit (an "Issuance Date") or the creation of such Acceptance (a "Creation
Date"), and after giving effect to such Issuance or creation, (1) the aggregate
amount of all Special Facility Obligations plus the aggregate outstanding
principal amount of all Revolving Loans plus the aggregate outstanding principal
amount of all outstanding Swing Line Loans exceeds the combined Revolving
Commitments, (2) the participation of any Revolving Lender in the aggregate
amount of all Special Facility Obligations plus the aggregate outstanding
principal amount of such Revolving Lender's Revolving Loans plus the aggregate
principal amount of such Revolving Lender's participations in all outstanding
Swing Line Loans exceeds such Revolving Lender's Revolving Commitment or (3) the
aggregate amount of all Special Facility Obligations exceeds the Special
Facility Commitment. Within the foregoing limits, and subject to the other terms
and conditions hereof, the Borrower's ability to obtain Letters of Credit or
Acceptances shall be fully revolving, and, accordingly, the Borrower may, during
the foregoing period, obtain Letters of Credit to replace Letters of Credit
which have expired or which have been drawn upon and reimbursed or Acceptances
which have matured and have been reimbursed.
(b) The Fronting Lender is under no obligation to Issue any Letter of
Credit or create any Acceptance if:
(i) the Fronting Lender has received written notice from the
Administrative Agent or the Borrower, on or prior to the Business Day prior to
the requested date of Issuance of such Letter of Credit or the creation of such
Letter of Acceptance, stating that a Default or Event of Default has occurred
and is continuing, unless and until such time as the Fronting Lender shall have
received a written notice of (x) rescission of such notice from the party or
parties originally delivering such notice or (y) the waiver of such Default or
Event of Default in accordance with the provisions of Section 11.1;
(ii) the expiry date of any requested Letter of Credit is (A)
more than one year after the date of Issuance or (B) after the Revolving
Commitment Termination Date;
48
(iii) the maturity date of any requested Acceptance is (A)
less than 30 days or more than 180 days after the date of creation or (B) after
the Revolving Commitment Termination Date;
(iv) any requested Letter of Credit does not provide for
drafts, or is not otherwise in form and substance reasonably acceptable to the
Fronting Lender;
(v) any requested Acceptance is not in form and substance
reasonably acceptable to the Fronting Lender;
(vi) a Lender Default known to the Fronting Lender exists,
unless the Fronting Lender has entered into arrangements reasonably satisfactory
to it and the Borrower to eliminate the Fronting Lender's risk with respect to
the participation in Letters of Credit or Acceptances by Defaulting Lenders,
including cash collateralizing such Defaulting Lender's Pro Rata Share of
Special Facility Obligations; or
(vii) the Fronting Lender reasonably determines that for any
reason adequate and reasonable means do not exist for determining the Acceptance
Reference Rate.
(c) Each Letter of Credit and Acceptance (as each such term is defined
in the Existing Credit Agreement) outstanding or unmatured, as the case may be,
under the Existing Credit Agreement on the Closing Date that was issued by BofA
in its capacity as a Fronting Bank (as defined in the Existing Credit Agreement)
thereunder shall be deemed to have been issued or created, as the case may be,
by the Fronting Lender hereunder on the Closing Date (each such Letter of Credit
and Acceptance is set forth on Schedule B hereto).
(d) Each Letter of Credit (as such term is defined in each of the
Existing Credit Agreement and the Etonic Credit Agreement) outstanding under the
Existing Credit Agreement or the Etonic Credit Agreement on the Closing Date
that was issued by Citibank, N.A. as a Fronting Bank (as defined in the Existing
Credit Agreement) or as the Issuing Bank (as defined in the Etonic Credit
Agreement) under either such credit agreement shall be deemed to have been
issued hereunder on the Closing Date and Citibank, N.A. shall be deemed to be a
Fronting Lender hereunder solely with respect to such Letters of Credit (each
such Letter of Credit is set forth on Schedule C hereto); provided, however,
that (i) no such Letter of Credit may be amended to extend the expiry date
thereof or increase the amount available to be drawn thereunder or renewed by
Citibank, N.A. and (ii) Citibank, N.A. shall exercise its right not to renew
each Letter of Credit containing a provision for such Letter of Credit to
automatically renew on an evergreen basis (and Citibank, N.A. shall provide the
notice(s) relating thereto that are required under such Letter of Credit).
3.2. Issuance, Amendment and Renewal of Letters of Credit. (a) Each
Letter of Credit shall be issued upon the irrevocable submission by the Borrower
of a Notice of L/C Issuance/Amendment to the Fronting Lender (with a copy sent
by the Borrower to the Administrative Agent) at least three Business Days (or
such shorter time as the Fronting Lender may agree in a particular instance in
its sole discretion) prior to the proposed date of Issuance. Each such Notice of
L/C Issuance/Amendment
49
shall be by facsimile, confirmed immediately in an original writing, and shall
specify in form and detail reasonably satisfactory to the Fronting Lender: (i)
the proposed date of issuance of the Letter of Credit (which shall be a Business
Day); (ii) the face amount of the Letter of Credit; (iii) the expiry date of the
Letter of Credit; (iv) the name and address of the beneficiary thereof; (v) the
documents to be presented by the beneficiary of the Letter of Credit in case of
any drawing thereunder; (vi) the full text of any certificate to be presented by
the beneficiary in case of any drawing thereunder; and (vii) such other matters
as the Fronting Lender may reasonably require.
(b) At least one Business Day prior to the Issuance of any Letter of
Credit, the Fronting Lender will confirm with the Administrative Agent (by
telephone or in writing) the availability of the Revolving Commitments with
respect to such Issuance. Unless the Fronting Lender has received notice from
the Administrative Agent on or before the Business Day immediately preceding the
date the Fronting Lender is to issue a requested Letter of Credit (A) directing
the Fronting Lender not to issue such Letter of Credit because such issuance is
not then permitted under Section 3.1(a) as a result of the limitations set forth
in clauses (1) and (2) thereof or clause (i) of Section 3.1(b) or (B) that one
or more conditions specified in Article V are not then satisfied, then, subject
to the terms and conditions hereof, the Fronting Lender shall, on the requested
date, issue a Letter of Credit for the account of the Borrower in accordance
with the Fronting Lender's usual and customary business practices.
(c) From time to time while a Letter of Credit is outstanding and prior
to the Revolving Commitment Termination Date, the Fronting Lender will, upon the
written request of the Borrower received by the Fronting Lender (with a copy
sent by the Borrower to the Administrative Agent) at least three Business Days
(or such shorter time as the Fronting Lender may agree in a particular instance
in its sole discretion) prior to the proposed date of amendment, amend any
Letter of Credit issued by it. Each such request for amendment of a Letter of
Credit shall be made by facsimile, confirmed immediately in an original writing,
made in the form of a Notice of L/C Issuance/Amendment and shall specify in form
and detail reasonably satisfactory to the Fronting Lender: (i) the Letter of
Credit to be amended; (ii) the proposed date of amendment of the Letter of
Credit (which shall be a Business Day); (iii) the nature of the proposed
amendment; and (iv) such other matters as the Fronting Lender may reasonably
require. The Fronting Lender shall be under no obligation to amend any Letter of
Credit if (A) the Fronting Lender would have no obligation at such time to issue
such Letter of Credit in its amended form under the terms of this Agreement or
(B) the beneficiary of any such Letter of Credit does not accept the proposed
amendment to the Letter of Credit. The Administrative Agent will promptly notify
the Revolving Lenders of the receipt by it of any Notice of L/C
Issuance/Amendment.
(d) The Fronting Lender and the Revolving Lenders agree that, while a
standby Letter of Credit is outstanding and prior to the Revolving Commitment
Termination Date, at the option of the Borrower and upon the written request of
the Borrower received by the Fronting Lender (with a copy sent by the Borrower
to the Administrative Agent) at least three Business Days (or such shorter time
as the Fronting Lender may agree in a particular instance in its sole
discretion) prior to the proposed date of notification of renewal, the Fronting
Lender shall be entitled to authorize the automatic renewal
50
of any standby Letter of Credit issued by it to the Borrower. Each such request
for renewal of a standby Letter of Credit shall be made by facsimile, confirmed
immediately in an original writing, in the form of a Notice of L/C
Issuance/Amendment, and shall specify in form and detail reasonably satisfactory
to the Fronting Lender: (i) the standby Letter of Credit to be renewed; (ii) the
proposed date of notification of renewal of the standby Letter of Credit (which
shall be a Business Day); (iii) the revised expiry date of the standby Letter of
Credit; and (iv) such other matters as the Fronting Lender may reasonably
require. The Fronting Lender shall be under no obligation so to renew, and shall
not so renew any standby Letter of Credit if (A) the Fronting Lender would have
no obligation at such time to issue or amend such standby Letter of Credit in
its renewed form under the terms of this Agreement or (B) the beneficiary of any
such standby Letter of Credit does not accept the proposed renewal of the
standby Letter of Credit. If any outstanding standby Letter of Credit shall
provide that it shall be automatically renewed unless the beneficiary thereof
receives notice from the Fronting Lender that such standby Letter of Credit
shall not be renewed, and if at the time of renewal the Fronting Lender would be
entitled to authorize the automatic renewal of such standby Letter of Credit in
accordance with this Section 3.2(d) upon the request of the Borrower but the
Fronting Lender shall not have received any Notice of L/C Issuance/Amendment
from the Borrower with respect to such renewal or other written direction by the
Borrower with respect thereto, the Fronting Lender shall nonetheless be
permitted to allow such standby Letter of Credit to renew, and the Borrower and
the Revolving Lenders hereby authorize such renewal, and, accordingly, the
Fronting Lender shall be deemed to have received a Notice of L/C
Issuance/Amendment from the Borrower requesting such renewal.
(e) The Fronting Lender shall deliver any notices of termination or
other communications to any Letter of Credit beneficiary or transferee, and take
any other action as necessary or appropriate, at any time and from time to time,
in order to cause the expiry date of such Letter of Credit to be a date not
later than the Revolving Commitment Termination Date.
(f) This Agreement shall control in the event of any conflict with any
Letter of Credit related document (other than any Letter of Credit).
(g) The Fronting Lender will also deliver to the Administrative Agent,
concurrently or promptly following its delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to an advising lender or a
beneficiary, a true and complete copy of each such Letter of Credit or amendment
to or renewal of a Letter of Credit.
(h) Notwithstanding anything to the contrary in this Article III, the
Borrower and each other Account Party may make a request by using software
provided to them by the Fronting Lender when requesting that the Fronting Lender
Issue a Letter of Credit (a "Computerized Request") in lieu of making such
request in the form of a Notice of L/C Issuance/Amendment.
(i) Without in any way limiting the obligation of the Borrower to
confirm in writing any notice it may give hereunder by telephone, the
Administrative Agent (and the Fronting Lender) may act prior to receipt of
written confirmation without liability upon the basis of such telephonic notice
51
believed by the Administrative Agent (and the Fronting Lender) in good faith to
be from a Responsible Officer of the Borrower (or a designee of such Responsible
Officer). In each such case the Borrower hereby waives the right to dispute the
Administrative Agent's (and the Fronting Lender's) record of the terms of any
such telephonic notice.
3.3. Creation of Acceptances. (a) All drafts presented by the Borrower
to the Fronting Lender for acceptance by the Fronting Lender as Acceptances
pursuant to this Agreement shall be properly executed and drawn by the Borrower.
To facilitate the acceptance of Acceptances hereunder, the Borrower shall from
time to time as required by the Fronting Lender provide to the Fronting Lender
an appropriate number of executed drafts drawn in blank by the Borrower in the
form prescribed by the Fronting Lender. The Borrower may, at its option, execute
any draft so presented by the facsimile signature or signatures of any one or
more designated signing officers of the Borrower, and the Fronting Lender is
hereby authorized to accept or pay, as the case may be, any draft of the
Borrower which purports to bear such facsimile signature or signatures
notwithstanding that any such individual has ceased to be a designated signing
officer of the Borrower and any such draft or Acceptance shall be as valid as if
such individual were a designated signing officer of the Borrower at the date of
issue of such Acceptance. Any such draft or Acceptance may be dealt with by the
Fronting Lender for all intents and purposes and shall bind the Borrower as if
duly signed in the signing officer's own handwriting and issued by the Borrower.
Without limiting the effect of the indemnity provided under Section 11.5 but in
addition to such provision, the Borrower will and hereby does undertake to hold
the Fronting Lender harmless against, and to indemnify, and the Borrower hereby
does agree to indemnify, the Fronting Lender from, all losses, costs, damages
and expenses arising out of the payment or negotiation of any such draft or
Acceptance on which a facsimile signature has been wrongly affixed, except to
the extent caused by the gross negligence or willful misconduct of the Fronting
Lender. The Fronting Lender shall not be liable for its failure to accept an
Acceptance as required hereunder if the cause of such failure is, in whole or in
part, due to the failure of the Borrower to provide executed drafts to the
Fronting Lender on a timely basis. Without creating any obligation to effect
such a purchase, Acceptances may be purchased by the Fronting Lender and may be
held by it for its own account until maturity or sold by it at any time prior
thereto in any relevant market therefor in the United States or elsewhere, in
the Fronting Lender's sole discretion.
(b) On the terms and conditions set forth herein (including Section
5.2), Acceptances shall be created by the Fronting Lender on a pre-arranged
monthly date mutually agreed upon by the Borrower, the Fronting Lender and the
Administrative Agent if a Swing Line Loan was made as a result of a drawing
under a documentary Letter of Credit and in contemplation of refinancing such
Swing Line Loan with the proceeds of such Acceptances. The aggregate face amount
of such Acceptances shall be an amount that when discounted at the then
prevailing Acceptance Reference Rate to a present value will exactly repay the
principal amount of such Swing Line Loan and all accrued but unpaid interest
thereon.
(c) This Agreement shall control in the event of any conflict with any
Acceptance related document (other than any Acceptance).
52
(d) The Fronting Lender will also deliver to the Administrative Agent,
concurrently or promptly following its creation of an Acceptance, a true and
complete copy of each such Acceptance.
(e) Any executed drafts to be used as Acceptances which are delivered
by the Borrower to the Fronting Lender shall be held in safekeeping with the
same degree of care as if they were the negotiable instruments of the Fronting
Lender.
3.4. Letter of Credit/Banker's Acceptance Participations, Drawings and
Reimbursements. (a) Immediately upon (i) the Issuance of any Letter of Credit by
the Fronting Lender for an Account Party in accordance with Sections 3.1 and 3.2
or (ii) the creation of any Acceptance by the Fronting Lender for an Account
Party in accordance with Sections 3.1 and 3.3, each Revolving Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
the Fronting Lender a participation in the Special Facility Obligations in
respect of such Letter of Credit or Acceptance, including all interest and other
Obligations of the Account Party with respect thereto (other than fronting fees
and charges payable to the Fronting Lender in its capacity as such with respect
to Letters of Credit and Acceptances) and any security therefor and guaranty
pertaining thereto in an amount equal to the product of (x) the Revolving Loan
Percentage of such Revolving Lender times (y) the maximum amount of the Special
Facility Obligations in respect thereof. For purposes of Sections 2.1(e) and
3.1, each Issuance of a Letter of Credit and each creation of an Acceptance
shall be deemed to utilize the Revolving Commitment of each Revolving Lender by
an amount equal to the amount of such participation.
(b) In the event of any request for a drawing under a Letter of Credit
by the beneficiary or transferee thereof, the Fronting Lender will promptly
notify the Borrower. The Borrower agrees to reimburse the Fronting Lender, prior
to 1:00 p.m. (New York City time), on each date that any amount is paid by the
Fronting Lender under any Letter of Credit or Acceptance (each such date, an
"Reimbursement Date"), in an amount equal to the amount so paid by the Fronting
Lender. In the event the Borrower fails to reimburse the Fronting Lender by 1:00
p.m. (New York City time) on a Reimbursement Date for
(i) the full amount of any drawing under any Letter of Credit
(together with the fee, costs and charges described in Section 3.8(c) relating
thereto), the Fronting Lender will promptly notify the Administrative Agent and
the Administrative Agent will promptly notify the Swing Line Lender thereof, and
the Borrower shall be deemed to have requested that a Swing Line Loan be made by
the Swing Line Lender on such Reimbursement Date in the amount of such drawing
(and such fees, costs and charges) subject to the amount of the unutilized
portion of the Swing Line Commitment and the conditions set forth in Section
5.2; or
(ii) the face amount of any matured Acceptance, the Fronting
Lender will promptly notify the Administrative Agent and the Administrative
Agent will promptly notify the Swing Line Lender thereof, and the Borrower shall
be deemed to have requested that a Swing Line Loan in the face amount of the
matured Acceptances be made by the Swing Line Lender on such Reimbursement
53
Date under such matured Acceptances subject to the amount of the unutilized
portion of the Swing Line Commitment and the conditions set forth in Section
5.2.
Any notice given by the Fronting Lender or the Administrative Agent pursuant to
this Section 3.4(b) may be oral if immediately confirmed in writing (including
by facsimile); provided that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.
(c) The Swing Line Lender shall upon any notice pursuant to clause (i)
or (ii) of Section 3.4(b) make available to the Administrative Agent for the
account of the Fronting Lender an amount in immediately available funds equal to
the amount of the Swing Line Loan requested.
(d) With respect to any unreimbursed drawing under a Letter of Credit
or matured Acceptance because of the Borrower's failure to satisfy the
conditions set forth in Section 5.2 or because the Swing Line Commitment does
not have sufficient availability, the Borrower shall be deemed to have incurred
from the Fronting Lender a Special Facility Borrowing in the amount of such
drawing or matured Acceptance, which Special Facility Borrowing shall be due and
payable on demand (together with interest) and shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin plus 2% per annum, and
each Revolving Lender shall make available to the Administrative Agent for the
account of the Fronting Lender an amount in immediately available funds equal to
its Revolving Loan Percentage of the amount of such drawing or the face amount
of such matured Acceptance, in the case of each Revolving Lender, whereupon the
participating Revolving Lenders shall each be deemed to have made payment in
respect of its participation in such Special Facility Borrowing and such payment
shall constitute a Special Facility Advance from such Lender in satisfaction of
its participation obligation under this Section 3.4. If any Revolving Lender so
notified fails to make available to the Administrative Agent for the account of
the Fronting Lender the amount of such Lender's Pro Rata Share of the amount of
such drawing or the face amount of such Acceptance, as the case may be, by no
later than 1:00 p.m. (New York City time) on the applicable Reimbursement Date,
then interest shall accrue on such Revolving Lender's obligation to make such
payment, from such Reimbursement Date until three days after such date, at a
rate per annum equal to the Federal Funds Rate in effect from time to time
during such period, and after the expiration of such three day period, at the
Base Rate.
(e) The Swing Line Lender's obligation in accordance with this
Agreement to make Swing Line Loans, as contemplated by this Section 3.4, as a
result of a drawing under a Letter of Credit, and each Revolving Lender's
obligation in accordance with this Agreement to make Special Facility Advances,
as contemplated by this Section 3.4, as a result of a drawing under a Letter of
Credit or the maturity of an Acceptance, shall in each case be absolute and
unconditional and without recourse to the Fronting Lender and shall not be
affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Revolving Lender or the Swing Line
Lender may have against the Fronting Lender, the Borrower or any other Person
for any reason whatsoever; (ii) the occurrence or continuance of a Default, an
Event of Default or a Material Adverse Effect; or (iii) any other circumstance,
happening or event whatsoever, whether or not similar to any of
54
the foregoing; provided, however, that the Swing Line Lender's obligation to
make Swing Line Loans under this Section 3.4 is subject to the conditions set
forth in Section 5.2.
3.5. Repayment of Participations. (a) Upon (and only upon) receipt by
the Administrative Agent for the account of the Fronting Lender of immediately
available funds from the Borrower (i) in reimbursement of any payment made by
the Fronting Lender under a Letter of Credit with respect to which any Revolving
Lender has paid the Administrative Agent for the account of the Fronting Lender
for such Revolving Lender's participation in a drawing of a Letter of Credit as
a result of the making of a Special Facility Advance or the maturity of an
Acceptance pursuant to Section 3.4 or (ii) in payment of interest thereon, the
Administrative Agent will pay to each Revolving Lender which is not a Defaulting
Lender, in the same funds as those received by the Administrative Agent for the
account of the Fronting Lender, the amount of such Revolving Lender's Revolving
Loan Percentage of such funds, and the Fronting Lender shall receive the amount
of the Revolving Loan Percentage of such funds of any Revolving Lender that did
not so pay the Administrative Agent for the account of the Fronting Lender.
(b) If the Administrative Agent or the Fronting Lender is required at
any time to return to the Borrower or to a trustee, receiver, liquidator,
custodian or any official in any Insolvency Proceeding, any portion of the
payments made by the Borrower to the Administrative Agent for the account of the
Fronting Lender pursuant to Section 3.5(a) in reimbursement of a payment made
under a drawing of a Letter of Credit or the maturity of an Acceptance, as the
case may be, or interest or fee thereon, each Revolving Lender shall, on demand
of the Administrative Agent, forthwith forward to the Administrative Agent or
the Fronting Lender the amount of its Revolving Loan Percentage of any amounts
so returned by the Administrative Agent or the Fronting Lender plus interest
thereon from the date such demand is made to the date such amounts are returned
by such Revolving Lender to the Administrative Agent or the Fronting Lender, at
a rate per annum equal to the Federal Funds Rate in effect from time to time for
the first three days, and at the Base Rate thereafter.
3.6. Role of the Fronting Lender. (a) The Swing Line Lender, each
Revolving Lender and the Borrower agree that, in paying any drawing under a
Letter of Credit, the Fronting Lender shall not have any responsibility to
obtain any document (other than any sight draft and certificates expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or
delivering any such document.
(b) No Agent-Related Person nor any of the respective correspondents,
participants or assignees of the Fronting Lender shall be liable to any
Revolving Lender for: (i) any action taken or omitted in connection herewith at
the request or with the approval of the Revolving Lenders or the Majority
Tranche A Term and Revolving Lenders; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any Letter of Credit or document
relating to any Letter of Credit.
(c) The Borrower hereby assumes all risks of the acts or omissions of
any beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not
55
intended to, and shall not, preclude the Borrower's pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under
any other agreement. No Agent-Related Person, nor any of the respective
correspondents, participants or assignees of the Fronting Lender, shall be
liable or responsible for any of the matters described in clauses (a) through
(g) of Section 3.7; provided, however, anything in such clauses to the contrary
notwithstanding, that the Borrower may have a claim against the Fronting Lender,
and the Fronting Lender may be liable to the Borrower, to the extent, but only
to the extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the Fronting
Lender's willful misconduct or gross negligence or the Fronting Lender's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, (i) the Fronting Lender may accept documents that appear on
their face to be in order, without responsibility for further investigation, and
(ii) the Fronting Lender shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.
3.7. Obligations Absolute. The obligations of the Borrower under this
Agreement to reimburse (or if the Borrower is not the Account Party with respect
thereto, either to reimburse or to cause such Account Party to reimburse) the
Fronting Lender for a drawing under a Letter of Credit or the maturity of an
Acceptance, and to repay (or if the Borrower is not the Account Party with
respect thereto, either to pay or to cause such Account Party to pay) any
Special Facility Borrowing and any Swing Line Loan or Revolving Loan made in
connection with a drawing under a Letter of Credit or the maturity of an
Acceptance, and the obligation of the Swing Line Lender or each Revolving
Lender, as the case may be, to reimburse the Fronting Lender for any drawing on
a Letter of Credit or maturity of an Acceptance, shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:
(a) any lack of validity or enforceability of this Agreement, any Loan
Document, any Letter of Credit, any Acceptance or of any reimbursement agreement
or other agreement between the Fronting Lender and an Account Party;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of the Borrower in respect of any
Letter of Credit, any Acceptance or any other amendment or waiver of or any
consent to departure from the provisions of this Agreement or any other Loan
Document;
(c) the existence of any claim, set-off, defense or other right that
the Borrower may have at any time against any beneficiary or any transferee of
any Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the Administrative Agent, the Fronting Lender, the
Swing Line Lender, any Lender or any other Person, whether in connection with
this Agreement, any Letter of Credit, any Acceptance, the transactions
contemplated hereby or by the other
56
Loan Documents or any unrelated transaction (including an underlying transaction
between the Borrower and the beneficiary named in any such Letter of Credit);
(d) any draft, demand, certificate or other document presented under or
in connection with any Letter of Credit or Acceptance, as the case may be,
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under any Letter of Credit;
(e) any payment by the Fronting Lender acting in good faith under any
Letter of Credit against presentation of a draft or certificate that does not
strictly comply with the terms of any Letter of Credit; or any payment made by
the Fronting Lender under any Letter of Credit or Acceptance to any Person
reasonably believed by it to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of any
Letter of Credit or Acceptance, as the case may be, including any arising in
connection with any Insolvency Proceeding;
(f) any exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from any guarantee or
other obligation, for all or any of the obligations of the Borrower in respect
of any Letter of Credit or Acceptance; or
(g) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Borrower or
a guarantor;
provided that, and notwithstanding any provision of this Section 3.7 to the
contrary, neither the Borrower, the Swing Line Lender nor any Revolving Lender
shall be obligated to reimburse the Fronting Lender for any wrongful payment
made by the Fronting Lender under any Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of the
Fronting Lender.
3.8. Letter of Credit and Acceptance Fees. (a) The Borrower shall pay
to the Administrative Agent for the account of each of the Revolving Lenders a
letter of credit and banker's acceptance fee with respect to the Letters of
Credit and Acceptances at a rate per annum equal to the Applicable Margin for
Revolving Loans comprised of Eurodollar Loans minus 0.125%, calculated on the
average daily sum of (i) the maximum amount available to be drawn under
outstanding Letters of Credit and (ii) the aggregate face amount of outstanding
unmatured Acceptances, payable on a quarterly basis in arrears on each Interest
Payment Date for Base Rate Loans based upon Letters of Credit and Acceptances
outstanding for that quarter as calculated by the Administrative Agent. Such
letter of credit and banker's acceptance fees shall be due and payable quarterly
in arrears on each Interest Payment Date for Base Rate Loans during which
Letters of Credit and/or Acceptances are outstanding, commencing on the first
such quarterly date to occur after the Closing Date, through the Revolving
Commitment Termination Date (or such later date upon which the outstanding
Letters of Credit shall expire and/or Acceptances mature), with the final
payment to be made on the Revolving Commitment Termination Date (or such later
expiration or maturity date).
57
(b) The Borrower shall pay to the Fronting Lender a fronting fee for
each Letter of Credit Issued by the Fronting Lender equal to 0.125% of the face
amount of such Letter of Credit. Such fronting fee shall be due and payable on
each date of Issuance of a Letter of Credit.
(c) The Borrower shall pay to the Fronting Lender from time to time
promptly after demand the normal issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the Fronting Lender
relating to Letters of Credit and Acceptances as from time to time in effect.
3.9. The Borrower's Guaranty of Special Facility Obligations of its
Restricted Subsidiaries. The Borrower agrees as follows in respect of Special
Facility Obligations:
(a) The Borrower hereby unconditionally and irrevocably guarantees to
the Revolving Lenders, the Fronting Lender and their respective successors,
endorsees, transferees and assigns, the prompt payment and complete performance
when due (whether at the stated maturity, by acceleration or otherwise) of all
indebtedness, obligations and liabilities of its Restricted Subsidiaries to the
Revolving Lenders or the Fronting Lender, whether direct or indirect, absolute
or contingent, due or to become due, now existing or hereafter incurred under,
or arising out of, or in connection with, the Special Facility Obligations,
whether such indebtedness, obligations and liabilities constitute principal,
interest, fees or expenses, or reimbursement obligations with respect to any of
the foregoing, and the Borrower further agrees to pay any and all expenses which
may be paid or incurred by the Administrative Agent or any Revolving Lender or
the Fronting Lender in collecting any or all of such Special Facility
Obligations or enforcing any rights under this Agreement or any documents or
agreements executed in connection with or relating to such Special Facility
Obligations (collectively, the "Guaranteed Obligations").
(b) The guaranty contained in this Section 3.9 shall be construed as a
continuing, absolute and unconditional guaranty of payment without regard to (i)
the validity, regularity or enforceability of this Agreement, any other Loan
Document, any of the Guaranteed Obligations, or any other collateral security
therefor or guaranty thereof or right of offset with respect thereto at any time
or from time to time held by the Administrative Agent or any Revolving Lender or
the Fronting Lender, (ii) any defense, setoff or counterclaim (other than a
defense of payment or performance) which may at any time be available to or be
asserted by the Borrower or any of its Restricted Subsidiaries against any
Revolving Lender or the Fronting Lender, or (iii) any other circumstance
whatsoever (with or without notice to or knowledge of the Borrower or such
Restricted Subsidiary) which constitutes, or might be construed to constitute,
an equitable or legal discharge of the Borrower or such Restricted Subsidiary
for the Guaranteed Obligations or in any other instance, and the obligations and
liabilities of the Borrower under this Section 3.9, in an Insolvency Proceeding,
shall not be conditioned or contingent upon the pursuit by the Administrative
Agent, any Revolving Lender, the Fronting Lender or any other Person at any time
of any right or remedy against any of the Restricted Subsidiaries or against any
other Person which may be or become liable in respect of all or any part of such
obligations or against any collateral security or guaranty therefor or right of
offset with respect thereto.
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(c) The guaranty contained in this Section 3.9 shall continue to be
effective, or be reinstated, as the case may be, if, at any time, any payment,
or any part thereof, of any of the Guaranteed Obligations is rescinded or must
otherwise be restored or returned by any Revolving Lender or the Fronting Lender
in an Insolvency Proceeding of any of the Restricted Subsidiaries, or upon or as
a result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, such Restricted Subsidiary or any substantial
part of its property, or otherwise, all as though such payments had not been
made.
(d) The Borrower hereby expressly waives, until payment in full in cash
of all Guaranteed Obligations and termination of the Special Facility
Commitment, any rights which it may now have or hereafter acquire against any of
its Restricted Subsidiaries by way of subrogation, reimbursement, contribution
or setoff by virtue of any payment made pursuant to this Section 3.9 or
otherwise, and any claim, right or remedy which the Borrower may now have or
hereafter acquire against any of its Restricted Subsidiaries that arises from
the performance by the Borrower of its obligations under this Section 3.9,
including, without limitation, any claim, right or remedy of the Administrative
Agent, the Fronting Lender or the Revolving Lenders against any Account Party or
any security which the Administrative Agent, the Fronting Lender or the
Revolving Lenders now have or hereafter acquire, whether or not such claim,
right or remedy arises in equity, under contract, by statute, under color of law
or otherwise. If any amount shall be paid to the Borrower on account of such
subrogation, reimbursement, contribution or setoff rights, such amount shall be
held in trust for the benefit of the Administrative Agent, the Fronting Lender
and the Revolving Lenders and shall forthwith be paid to the Administrative
Agent to be credited and applied upon the obligations, whether matured or
unmatured, in accordance with the terms of this Agreement or any of the other
Loan Documents or to be held by the Administrative Agent as collateral security
for any Guaranteed Obligations.
(e) The Borrower shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the Borrower and without notice to or
further assent by the Borrower, any demand for payment of any of the Guaranteed
Obligations made by any Revolving Lender or any such Fronting Lender may be
rescinded by such Person and any of the Guaranteed Obligations or the liability
of any other Person upon or for any part thereof, or any collateral security or
guaranty therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent, any
Revolving Lender or the Fronting Lender, and this Agreement and the other Loan
Documents and any other documents executed and delivered in connection herewith
relating to or evidencing any Guaranteed Obligation, may be amended, modified,
supplemented or terminated, in whole or in part, in accordance with the terms
thereof, as the Administrative Agent and the Revolving Lenders may deem
advisable from time to time, and any collateral security, guaranty or right of
offset at any time held by the Administrative Agent, any Revolving Lender or the
Fronting Lender for the payment of the Guaranteed Obligations may be sold,
exchanged, waived, surrendered or released. The Borrower waives any and all
notice of the creation, renewal, extension or accrual of any of the Guaranteed
Obligations and notice of or proof of reliance by the Administrative Agent, any
Revolving Lender or the Fronting Lender upon the guaranty in this Section 3.9,
the Guaranteed Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred in reliance
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upon this Section 3.9, and all dealings between such Restricted Subsidiary, the
Borrower, the Administrative Agent and the Revolving Lenders or the Fronting
Lender shall likewise be conclusively presumed to have been had or consummated
in reliance upon this Section 3.9. The Borrower waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon such
Restricted Subsidiary or the Borrower with respect to the Guaranteed
Obligations.
3.10. No Waiver With Respect to Acceptances. The Borrower and each of
its Restricted Subsidiaries waives any defense to payment which might otherwise
exist if for any reason an Acceptance shall be held by any Lender in its own
right at the maturity thereof.
3.11. Uniform Customs and Practice. The Uniform Customs and Practice
for Documentary Credits as published by the International Chamber of Commerce
("UCP") most recently at the time of issuance of any Letter of Credit shall
(unless otherwise expressly provided in the Letters of Credit) apply to the
Letters of Credit.
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ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1. Taxes. (a) Any and all payments by the Borrower to each Lender or
the Administrative Agent under this Agreement and any other Loan Document shall
be made free and clear of, and without deduction or withholding for, any Taxes.
In addition, the Borrower shall pay all Other Taxes to the relevant taxing
authority or other authority in accordance with applicable law.
(b) If the Borrower shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Lender or the Administrative Agent, then:
(i) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section), such
Lender or the Administrative Agent, as the case may be, receives an amount equal
to the sum it would have received had no such deductions or withholdings been
made;
(ii) the Borrower shall make such deductions and withholdings;
and
(iii) the Borrower shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in accordance with
applicable law.
(c) The Borrower agrees to indemnify and hold harmless each Lender and
the Administrative Agent for the full amount of (i) Taxes and (ii) Other Taxes
that are payable by such Lender or the Administrative Agent and any penalties,
interest, additions to tax, expenses or other similar liabilities arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. Payment under this indemnification shall be made
within 45 days after the date the Lender or the Administrative Agent makes
written demand therefor.
(d) Each Lender that is not incorporated or organized in or under the
laws of the United States of America or a state thereof (a "Non-U.S. Lender")
shall:
(i) deliver to the Borrower and the Administrative Agent,
prior to the first day on which the Borrower is required to make any payments
hereunder to such Lender, two copies of either United States Internal Revenue
Service Form 1001 or Form 4224 or, in the case of a Non-U.S. Lender claiming
exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest", a Form W-8, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S. Lender
delivers a Form W-8, a certificate representing that such Non-U.S. Lender is not
a bank for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Borrower and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code)), properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from, or a
reduced rate of, U.S. Federal withholding tax on payments by the Borrower under
this Agreement;
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(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form of certification on or before the date that any
such form or certification expires or becomes obsolete and after the occurrence
of any event requiring a change in the most recent form previously delivered by
it to the Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the Borrower or
the Administrative Agent;
unless in any such case any change in treaty, law or regulation has occurred
prior to the date on which any such delivery would otherwise be required that
renders any such form inapplicable or would prevent such Lender from duly
completing and delivering any such form with respect to it and such Lender so
advises the Borrower and the Administrative Agent. Each Non-U.S. Lender that
shall become a Participant pursuant to Section 11.8 or a Lender pursuant to
Section 11.8 shall, upon the effectiveness of the related transfer, be required
to provide all the forms and statements required pursuant to this Section
4.1(d), provided that in the case of a Participant such Participant shall
furnish all such required forms and statements to the Lender from which the
related participation shall have been purchased.
(e) The Borrower shall not be required to indemnify any Non-U.S. Lender
or the Administrative Agent, or to pay any additional amounts to any Non-U.S.
Lender or the Administrative Agent, in respect of U.S. Federal withholding tax
pursuant to paragraph (a) above to the extent that (i) the obligation to
withhold amounts with respect to U.S. Federal withholding tax existed on the
date such Non-U.S. Lender became a party to this Agreement (or, in the case of a
Non-U.S. Participant, on the date such Participant became a Participant
hereunder) or as of the date such Non-U.S. Lender changes its applicable Lending
Office; provided, however, that this clause (i) shall not apply to the extent
that (x) the indemnity payments or additional amounts any Lender (or
Participant) would be entitled to receive (without regard to this clause (i)) do
not exceed the indemnity payment or additional amounts that the Person making
the assignment, participation, transfer or change in Lending Office would have
been entitled to receive in the absence of such assignment, participation,
transfer or change in Lending Office, or (y) such assignment, participation,
transfer or change in Lending Office had been requested by the Borrower, (ii)
the obligation to pay such additional amounts would not have arisen but for a
failure by such Non-U.S. Lender or Non-U.S. Participant to comply with the
provisions of paragraph (d) above or (iii) any of the representations or
certifications made by a Non- U.S. Lender or Non-U.S. Participant pursuant to
paragraph (d) above are incorrect at the time a payment hereunder is made, other
than by reason of any change in treaty, law or regulation having effect after
the date such representations or certifications were made.
(f) If the Borrower determines in good faith that a reasonable basis
exists for contesting any Taxes for which indemnification has been demanded
hereunder, the relevant Lender or the Administrative Agent, as applicable, shall
cooperate with the Borrower in challenging such Taxes at the Borrower's expense
if so requested by the Borrower in writing. If any Lender or the Administrative
Agent, as applicable, receives a refund of a Tax for which a payment has been
made by the Borrower pursuant to this Agreement, which refund in the good faith
judgment of such Lender or Administrative Agent, as the case may be, is
attributable to such payment made by the Borrower,
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then the Lender or the Administrative Agent, as the case may be, shall reimburse
the Borrower for such amount as the Lender or Administrative Agent, as the case
may be, determines to be the proportion of the refund as will leave it, after
such reimbursement, in no better or worse position than it would have been in if
the payment had not been required. Neither the Lenders nor the Administrative
Agent shall be obliged to disclose information regarding its tax affairs or
computations to the Borrower in connection with this paragraph (f) or any other
provision of this Section 4.1.
(g) Promptly after the date of any payment by the Borrower of Taxes or
Other Taxes, the Borrower shall furnish to each Lender or the Administrative
Agent the original or a certified copy of a receipt evidencing payment thereof,
or other evidence of payment satisfactory to such Lender or the Administrative
Agent.
4.2. Illegality. (a) If any Lender, including the Fronting Lender,
determines that the introduction after the Closing Date of any Requirement of
Law, or any change in any Requirement of Law after the Closing Date, or in the
interpretation or administration after the Closing Date of any Requirement of
Law, has made it unlawful, or that any central bank or other Governmental
Authority has asserted that it is unlawful, for any Lender, including the
Fronting Lender, or its applicable Lending Office to make Eurodollar Loans or
create Acceptances, as the case may be, then, on written notice thereof by such
Lender to the Borrower through the Administrative Agent, any obligation of such
Lender to make Eurodollar Loans or create Acceptances, as the case may be, shall
be suspended until such Lender, including the Fronting Lender, notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist, which notice each Lender, including the Fronting
Lender, agrees to give promptly upon such circumstances ceasing to exist.
(b) If a Lender, including the Fronting Lender, determines that it is
unlawful to maintain any Eurodollar Loan or Acceptance, as the case may be, the
Borrower shall, upon its receipt of written notice of such fact and demand from
such Lender (with a copy to the Administrative Agent), prepay in full such
Eurodollar Loans or Acceptances, as the case may be, of such Lender then
outstanding, together with interest accrued thereon and amounts required under
Section 4.4, either on the last day of the Interest Period thereof, if such
Lender may lawfully continue to maintain such Eurodollar Loans or Acceptances,
as the case may be, to such day, or immediately, if such Lender may not lawfully
continue to maintain such Eurodollar Loan or Acceptance, as the case may be. If
the Borrower is required to so prepay any Eurodollar Loan or Acceptance, as the
case may be, then concurrently with such prepayment, the Borrower shall borrow
from the affected Lender, in the amount of such repayment, a Base Rate Loan.
(c) Each Lender, including the Fronting Lender, hereby agrees that if
such Lender's obligation to make Eurodollar Loans or Acceptances, as the case
may be, is suspended pursuant to clause (a) or if the Borrower is required to
prepay such Lender's Eurodollar Loans or Acceptances, as the case may be,
pursuant to clause (b) then, in each case, upon the written request of the
Borrower, all Loans or Acceptances, as the case may be, of such Lender that
would, in the absence of clause (a), be made as Eurodollar Loans or created as
Acceptances, as the case may be, shall instead be made as or created as, and any
Eurodollar Loans or Acceptances, as the case may be, of such Lender that shall
have been converted into Base Rate Loans pursuant to clause (b) shall be
converted into, Loans accruing interest
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at a rate per annum equal to the Federal Funds Rate most recently determined by
the Administrative Agent plus 0.125% plus the Applicable Margin then in effect
for Eurodollar Loans of Tranche A Term Loans, Tranche B Term Loans, Tranche C
Term Loans, Tranche D Term Loans or Revolving Loans, as applicable.
4.3. Increased Costs and Reduction of Return. (a) If, due to either (i)
the introduction of or any change in or in the interpretation of any law or
regulation (including FRB Regulation D) after the Closing Date (other than
changes with respect to Taxes) or (ii) the compliance by any Lender with any
guideline or order from any central bank or other Governmental Authority after
the Closing Date (whether or not having the force of law), there shall be any
increase in the cost to such Lender of agreeing to make or making, funding or
maintaining any Eurodollar Loans or participating in Swing Line Loans or Special
Facility Obligations, or, in the case of the Fronting Lender, any increase in
the cost to the Fronting Lender of Issuing or agreeing to Issue any Letter of
Credit or creating or agreeing to create any Acceptance, or agreeing to make or
making, funding or maintaining any unpaid drawing under any Letter of Credit or
any unpaid maturing of any Acceptance, then the Borrower shall be liable for,
and shall from time to time, promptly after receipt of written demand therefor
(with a copy of such demand to be sent to the Administrative Agent), accompanied
by a written notice showing in reasonable detail the basis for the calculation
of any such increased costs (which notice shall, absent clearly demonstrable
error, be final and conclusive and binding upon all parties hereto), pay to the
Administrative Agent for the account of such Lender, additional amounts as are
sufficient to compensate such Lender for such increased costs.
(b) If, after the Closing Date, (i) the introduction of any Capital
Adequacy Regulation, (ii) any change in any Capital Adequacy Regulation, (iii)
any change in the interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority, or by NAIC or
any other comparable agency charged with the interpretation or administration
thereof or (iv) compliance by any Lender (or its Lending Office) or any
corporation controlling any Lender with any Capital Adequacy Regulation, affects
or would affect the amount of capital required to be maintained by such Lender
or any corporation controlling such Lender and (taking into consideration such
Lender's or such corporation's policies with respect to capital adequacy and
such Lender's desired return on capital) the amount of such capital is increased
as a consequence of its Commitment, loans, credits, participation interests or
obligations under this Agreement, then, upon demand of such Lender to the
Borrower through the Administrative Agent, accompanied by a written notice
showing in reasonable detail the basis for calculation of any such amounts, the
Borrower shall pay to such Lender, from time to time promptly after receipt of
such demand and notice as specified by such Lender, additional amounts
sufficient to compensate such Lender for such increase.
4.4. Funding Losses. If (a) any payment of principal of any Eurodollar
Loan is made by the Borrower to or for the account of a Lender or is otherwise
received by a Lender pursuant to Section 4.9 other than on the last day of the
Interest Period for such Eurodollar Loan, as a result of a payment or conversion
pursuant to Section 2.4, 2.6, 2.7, 2.8, 2.9, 4.2 or 4.3, as a result of
acceleration of the maturity of the Loans pursuant to Article IX or for any
other reason, or if any prepayment of Eurodollar
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Loans is not made on any date specified in a notice of prepayment given by the
Borrower or if any payment of Eurodollar Loans is not made when due, (b) if any
Borrowing of Eurodollar Loans is not made as a result of a withdrawn Notice of
Borrowing or for any other reason (other than a default by any Lender or the
Administrative Agent), (c) if any Eurodollar Loan or Base Rate Loan is not
converted as a result of a withdrawn Notice of Conversion/Continuation or for
any other reason (other than a default by any Lender or the Administrative
Agent), or (d) if any Eurodollar Loan is not continued as a result of a
withdrawn Notice of Conversion/Continuation or for any other reason (other than
a default by any Lender or the Administrative Agent), the Borrower shall, after
receipt of a written request by such Lender (which request shall set forth in
reasonable detail the basis for requesting such amount), pay to the
Administrative Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses that such
Lender may reasonably incur as a result of such payment, failure to convert or
failure to continue, including any loss, cost or expense (excluding loss of
anticipated profits) actually incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Eurodollar Loan.
4.5. Inability to Determine Rates. If the Majority Lenders reasonably
determine that for any reason adequate and reasonable means do not exist for
determining the Eurodollar Rate for any requested Interest Period with respect
to a proposed Eurodollar Loan, or that the Eurodollar Rate applicable pursuant
to Section 2.10(a) for any requested Interest Period with respect to a proposed
Eurodollar Loan does not adequately and fairly reflect the cost to the Lenders
of funding such Loan, the Administrative Agent will promptly so notify the
Borrower and each Lender. Thereafter, the obligation of the Lenders to make or
maintain Eurodollar Loans hereunder shall be suspended until the Administrative
Agent upon the instruction of the Majority Lenders revokes such notice in
writing, which Lenders constituting the Majority Lenders shall do promptly upon
such circumstances ceasing to exist. Upon receipt of such notice, the Borrower
may revoke any Notice of Borrowing or Notice of Conversion/Continuation then
submitted by it. If the Borrower does not revoke such Notice, the Lenders shall
make, convert or continue the Loans, as proposed by the Borrower, in the amount
specified in the applicable notice submitted by the Borrower, but such Loans
shall be made, converted or continued as Base Rate Loans instead of Eurodollar
Loans.
4.6. Notice from Lenders. Any Lender claiming reimbursement or
compensation under this Article IV shall deliver to the Borrower (with a copy to
the Administrative Agent) a notice setting forth in reasonable detail the amount
payable to the Lender hereunder and the basis therefor and such notice shall be
conclusive and binding on the Borrower in the absence of clearly demonstrable
error.
4.7. Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 4.1(b), 4.1(c),
4.2 or 4.3 with respect to such Lender, it will, if requested by the Borrower,
use reasonable efforts (subject to overall policy considerations of such Lender)
to designate another Lending Office for any Loans affected by such event or take
other action, provided that such Lender and its Lending Office suffer no
economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of any such Section.
Nothing in this Section 4.7 shall affect or postpone any of the Obligations of
the Borrower or the right of any Lender provided in Section 4.1(b), 4.1(c), 4.2
or 4.3.
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4.8. Notice of Certain Costs. Notwithstanding anything in this
Agreement to the contrary, to the extent any notice or demand required by
Section 4.1, 4.2, 4.3 or 4.4 is given by any Lender more than 180 days after
such Lender has knowledge of the occurrence of the event giving rise to the
additional cost, reduction in amounts, loss, tax or other additional amounts
described in such Section, such Lender shall not be entitled to compensation
under such Section 4.1, 4.2, 4.3 or 4.4, as the case may be, for any such amount
incurred or accruing prior to the giving of such notice or demand to the
Borrower.
4.9. Replacement of Lenders. If (a) the Borrower receives notice from
any Lender requesting increased costs or additional amounts under Section 4.1 or
4.3, (b) any Lender is affected in the manner described in Section 4.2 or (c) a
Lender becomes a Defaulting Lender, then, in each case, the Borrower shall have
the right, so long as no Event of Default shall have occurred and be continuing
and unless, in the case of clause (a), such Lender has removed or cured the
conditions which resulted in the obligation to pay such increased costs or
additional amounts or agreed to waive and otherwise forego any right it may have
to any payments provided for under Sections 4.1 or 4.3 in respect of such
conditions, to replace in its entirety such Lender (the "Replaced Lender"), upon
prior written notice to the Administrative Agent and such Replaced Lender, with
one or more other Eligible Assignee(s) (collectively, the "Replacement Lender")
acceptable to the Administrative Agent and, in the event the Replaced Lender is
a Revolving Lender, the Fronting Lender (which acceptance, in each case, shall
not be unreasonably withheld); provided, however, that, at the time of any
replacement pursuant to this Section 4.9, the Replaced Lender and the
Replacement Lender shall enter into (each Replaced Lender hereby unconditionally
agreeing to enter into) one or more Assignment and Acceptance agreements
(appropriately completed), pursuant to which (i) the Replacement Lender shall
acquire all of the Commitments and outstanding Revolving Loans and Term Loans
of, and participations in Swing Line Loans and Special Facility Obligations of,
the Replaced Lender and, in connection therewith, shall pay (x) to the Replaced
Lender in respect thereof an amount equal to the sum of (A) an amount equal to
the principal of, and all accrued but unpaid interest on, all outstanding Loans
of the Replaced Lender and (B) an amount equal to all accrued but theretofore
unpaid fees owing to the Replaced Lender pursuant to Section 2.11 and (y) to the
Fronting Lender, an amount equal to any portion of the Replaced Lender's funding
of an unpaid drawing under a Letter of Credit or an unpaid maturing of an
Acceptance as to which the Replaced Lender is then in default; and (ii) the
Borrower shall pay to the Replaced Lender any other amounts payable to the
Replaced Lender under this Agreement (including amounts payable under Sections
3.8, 4.1, 4.2, 4.3 and 4.4 which have accrued to the date of such replacement).
Upon the execution of the Assignment and Acceptance agreement(s), the payment of
the amounts referred to in the preceding sentence and, if so requested by the
Replacement Lender, delivery to the Replacement Lender of the applicable Notes
executed by the Borrower, the Replacement Lender shall automatically become a
Lender hereunder and the Replaced Lender shall cease to constitute a Lender
hereunder, except with respect to indemnification provisions under this
Agreement, which shall survive as to such Replaced Lender. It is understood and
agreed that if any Replaced Lender shall fail to enter into an Assignment and
Acceptance Agreement in accordance with the foregoing, it shall be deemed to
have entered into such an Assignment and Acceptance Agreement.
4.10. Survival. The agreements and obligations of the Borrower in this
Article IV shall survive the payment of all other Obligations.
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ARTICLE V
CONDITIONS PRECEDENT
5.1. Conditions of Initial Credit Extensions. The obligation of each
Lender to make its initial Loan and the obligation of the Fronting Lender to
Issue the initial Letter of Credit or create the initial Acceptance hereunder is
subject to the fulfillment of the following conditions precedent to the
satisfaction of the Administrative Agent (all documents to be provided in
sufficient quantity so that each Lender may receive a copy):
(a) Credit Agreement. The Administrative Agent shall have received full
counterparts of this Agreement, duly executed by each party hereto.
(b) Resolutions; Incumbency. The Administrative Agent shall have
received (i) copies of the resolutions of the board of directors of the Borrower
authorizing the execution, delivery and performance of this Agreement, each
other Loan Document to be delivered by the Borrower and the transactions
contemplated hereby and thereby, certified as of the Closing Date by the
Secretary or an Assistant Secretary of the Borrower, together with a certificate
of the Secretary or Assistant Secretary of the Borrower dated the Closing Date,
certifying the names and true signatures of the officers of the Borrower
authorized to execute, deliver and perform, as applicable, this Agreement, and
all other Loan Documents to be delivered by it hereunder; and (ii) copies of the
resolutions of the board of directors of each of the Guarantors authorizing the
delivery, execution and performance by such Guarantor of the Guaranty, certified
as of the Closing Date by the Secretary or an Assistant Secretary of such
Guarantor, together with a certificate of the Secretary or Assistant Secretary
of such Guarantor dated the Closing Date, certifying the names and true
signatures of the officers of such Guarantor authorized to execute, deliver and
perform the Guaranty.
(c) Organization Documents; Good Standing. The Administrative Agent
shall have received each of the following documents:
(i) the articles or certificate of incorporation and the
bylaws of each of the Borrower, each direct Domestic Subsidiary and each
Guarantor, in each case, as in effect on the Closing Date, certified by the
Secretary or Assistant Secretary of such Person as of the Closing Date; and
(ii) good standing certificates for each of the Borrower and
each Guarantor from the Secretary of State (or similar, applicable Governmental
Authority) of its state of incorporation and each state where the Borrower or
such Guarantor, as the case may be, is qualified to do business as a foreign
corporation as of a recent date, together with a bring-down certificate by
facsimile, dated the Closing Date.
(d) Legal Opinions. The Administrative Agent shall have received (i)
(A) a favorable legal opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to
the Obligors, addressed to the Administrative Agent and the Lenders and dated
the Closing Date, substantially in the form of Exhibit
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G-1, and (B) a favorable legal opinion of Milbank, Tweed, Xxxxxx & XxXxxx,
special counsel to the Obligors, addressed to the Administrative Agent and the
Lenders and dated the Closing Date, substantially in the form of Exhibit G-2 and
(ii) to the extent available, a reliance letter from Milbank, Tweed, Xxxxxx &
XxXxxx dated the Closing Date, permitting the Administrative Agent and the
Lenders to rely upon its opinions contained in its opinion letter delivered in
connection with the Recapitalization and Stock Purchase Agreement.
(e) Payment of Fees. The Administrative Agent shall have received
evidence of payment by the Borrower of all accrued and unpaid fees, costs and
expenses to the extent then due and payable under this Agreement or the Fee
Letter on the Closing Date, together with all reasonable and documented legal
costs and expenses of the Agents to the extent invoiced prior to or on the
Closing Date, including any such costs, fees and expenses arising under or
referenced in Sections 2.11 and 11.4.
(f) Guaranty. The Administrative Agent shall have received the
Guaranty, duly executed by each Guarantor.
(g) Pledge Agreement. The Administrative Agent shall have received the
Pledge Agreement substantially in the form of Exhibit F, duly executed by the
Borrower, together with all certificates and instruments representing the
collateral pledged thereunder, together with undated stock transfer powers
executed in blank with respect thereto.
(h) Consummation of Recapitalization. The Borrower shall have
consummated (or contemporaneously therewith will consummate) the
Recapitalization and the other transactions contemplated by the Recapitalization
and Stock Purchase Agreement in accordance with applicable law and pursuant to
the Recapitalization and Stock Purchase Agreement, which Recapitalization and
Stock Purchase Agreement shall not have been amended nor shall any provision
thereof have been waived by any party thereto, in each case unless such
amendment or waiver is not adverse in any material respect to the interests of
the Lenders, and the Recapitalization and Stock Purchase Agreement shall have
been approved by the Board of Directors of the Borrower (which approval shall
not have been rescinded or withdrawn).
(i) Solvency. The Administrative Agent shall have received (a) a
written opinion of Valuation Research Corporation, addressed to the
Administrative Agent and the Lenders and dated the Closing Date, as to the
solvency of the Borrower and its Subsidiaries taken as a whole, after giving
effect to the incurrence of the Indebtedness contemplated by this Agreement and
the effecting of the Recapitalization and the other transactions contemplated by
the Recapitalization and Stock Purchase Agreement and (b) a solvency
certificate, executed and delivered by the chief financial officer of the
Borrower and dated the Closing Date, substantially in the form of Exhibit H.
(j) Other Indebtedness. All Indebtedness identified in Schedule 5.1(j)
(including under the Existing Credit Agreement and the Etonic Credit Agreement),
together with all interest, all prepayment premiums and all other amounts due
and payable with respect thereto, shall have been paid in full, all letters of
credit constituting such Indebtedness shall have been (or contemporaneously
therewith shall
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be) terminated, replaced or backstopped and all commitments in respect of such
Indebtedness shall have been terminated. All Liens securing payment of any such
Indebtedness shall have been (or contemporaneously therewith shall be) released
and the Administrative Agent shall have received all Uniform Commercial Code
Form UCC-3 termination statements and other instruments as may be suitable or
appropriate in connection therewith. After giving effect to the Recapitalization
and the other transactions contemplated hereby to occur on or prior to the
Closing Date, the Borrower and its Subsidiaries shall have outstanding no
Indebtedness other than (a) Indebtedness under this Agreement, (b) the Senior
Subordinated Notes and (c) other Indebtedness existing on the Closing Date and
permitted to be outstanding under Section 8.4 (other than clauses (h), (i), (j)
and (l) thereof).
(k) Equity. The Borrower shall have received at least $220,000,000 in
cash proceeds from the issuance of Common Stock.
(l) Issuance of Preferred Stock. The Borrower shall have issued
1,000,000 shares of the Preferred Stock and shall have received at least
$100,000,000 in gross cash proceeds therefrom.
(m) Subordinated Debt. The Borrower shall have issued at least
$200,000,000 of the Senior Subordinated Notes pursuant to the Senior
Subordinated Indenture and shall have received at least $200,000,000 in gross
cash proceeds therefrom.
(n) Availability of Revolving Commitments. After giving effect to the
Recapitalization and the other transactions contemplated hereby to occur on or
prior to the Closing Date, no less than $100,000,000 of the combined Revolving
Commitments shall be available to the Borrower for Revolving Loans.
(o) Insurance Certificate. The Administrative Agent shall have received
a certificate of the Borrower setting forth all of the Borrower's and its
Restricted Subsidiaries' material insurance policies, which policies shall be
certified to satisfy the requirements of Section 7.6.
(p) Approvals. All necessary material governmental, shareholders' and
third-party approvals in connection with the Recapitalization and the other
transactions contemplated by the Recapitalization and Stock Purchase Agreement,
the execution, delivery and performance of this Agreement and the other Loan
Documents, the execution, delivery and performance of the Senior Subordinated
Indenture and the Senior Subordinated Notes and the execution, delivery and
performance of all equity financing documents relating to the Recapitalization
and the other transactions contemplated by the Recapitalization and Stock
Purchase Agreement shall have been duly obtained and all applicable waiting
periods shall have expired without, in all such cases, any action being taken by
any competent authority that restrains, prevents or imposes materially adverse
conditions or material increased costs upon the consummation of the
Recapitalization and the other transactions contemplated by the Recapitalization
and Stock Purchase Agreement.
(q) Certificate. Each of the following statements shall be true and
correct on and as of the Closing Date (and the Administrative Agent shall have
received a certificate signed by a Responsible Officer, dated as of the Closing
Date, to such effect):
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(i) after giving effect to the Recapitalization, the
representations and warranties contained in Article VI and in each of the other
Loan Documents are true and correct in all material respects on and as of such
date, as though made on and as of such date (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they shall be true and correct in all material respects as of such earlier
date);
(ii) no Default or Event of Default exists or would result
from the initial Credit Extension, the consummation of the Recapitalization and
the other transactions contemplated by the Recapitalization and Stock Purchase
Agreement or from the grant or perfection of the Lien of the Administrative
Agent and the Lenders on the collateral security provided under the Loan
Documents;
(iii) no Material Adverse Change has occurred since September
30, 1995 and no material adverse change has occurred since September 30, 1995
with respect to the business, assets, operations, results of operations,
condition (financial or otherwise) or prospects of the Borrower or the Borrower
and its Subsidiaries, taken as a whole;
(iv) neither the Borrower nor any of its Subsidiaries is
subject to any material litigation or governmental proceeding with respect to
the Recapitalization and other transactions contemplated by the Recapitalization
and Stock Purchase Agreement and no injunction or restraining order exists with
respect to the Recapitalization and such transactions; and
(v) the conditions set forth in clauses (h), (j), (k), (l) and
(m) have been satisfied.
Attached to such certificate shall be true and complete (as certified in such
certificate) copies of the Recapitalization and Stock Purchase Agreement, the
Senior Subordinated Indenture and the certificate of designation for the
Preferred Stock, which certificate shall specify that none of the foregoing
documents have been amended or otherwise modified except as set forth in such
certificate.
5.2. Conditions to All Credit Extensions. The obligation of each Lender
to make any Loan to be made by it (including its initial Loan), including the
obligation of the Swing Line Lender to make any Swing Line Loan, and the
obligation of the Fronting Lender to Issue any Letter of Credit (including the
initial Letter of Credit) or create any Acceptance (including the initial
Acceptance), is subject to the satisfaction of the following conditions
precedent on the relevant Credit Extension Date:
(a) Notice of Credit Extension. The Administrative Agent shall have
received (with, in the case of the initial Loan only, a copy for each Lender) a
Notice of Borrowing or, in the case of any Issuance of any Letter of Credit, the
Fronting Lender and the Administrative Agent shall have received a Notice of L/C
Issuance/Amendment, as required under Section 3.2;
(b) Continuation of Representations and Warranties. The representations
and warranties in Article VI hereof and in the Loan Documents shall be true and
correct in all material respects on and as of such Credit Extension Date with
the same effect as if made on and as of such Credit Extension Date (except to
the extent such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct in all material respects as
of such earlier date); and
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(c) No Existing Default. No Default or Event of Default shall exist or
shall result from such Credit Extension.
Each Notice of Borrowing and Notice of L/C Issuance/Amendment (or
Computerized Request) submitted by the Borrower hereunder shall constitute a
representation and warranty by the Borrower hereunder, as of the date of each
such notice and as of each Credit Extension Date, that the conditions in this
Section 5.2 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
each Lender that:
6.1. Corporate Existence and Power. The Borrower and each of its
Material Subsidiaries:
(a) is a corporation or other business entity duly organized or formed,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or formation;
(b) has the power and authority to own its assets, carry on its
business and to execute, deliver and perform its obligations under this
Agreement and the other Loan Documents to which it is a party; and
(c) is duly qualified as a foreign corporation or other business entity
and is licensed and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification or license,
except, in the case of clauses (a) and (b) above, with respect to Material
Subsidiaries, and, in the case of clause (c) above, with respect to the Borrower
and its Material Subsidiaries, to the extent that the failure of which could not
reasonably be expected to have a Material Adverse Effect.
6.2. Corporate Authorization; No Contravention; Binding Effect. The
execution, delivery and performance by the Borrower of this Agreement and each
other Loan Document to which the Borrower is a party, the execution, delivery
and performance by each other Obligor of each Loan Document to which it is a
party, the granting of the Liens contemplated by the Pledge Agreement and as of
the Closing Date the consummation of the Recapitalization, have in each case
been duly authorized by all necessary corporate or other action, and do not and
will not:
(a) contravene the terms of any of the Borrower's or such other
Obligor's Organization Documents;
(b) conflict with or result in any default, breach or contravention of,
or the creation of any Lien under, any document evidencing any material
Contractual Obligation to which the Borrower, any
69
of its Material Subsidiaries or any Obligor is a party or any material order,
injunction, writ or decree of any Governmental Authority to which the Borrower,
any of its Material Subsidiaries, any Obligor or any of their respective
material properties is subject; or
(c) violate any material Requirement of Law applicable to the Borrower,
any of its Material Subsidiaries or any Obligor or any of their respective
material properties.
This Agreement has been duly executed and delivered by the Borrower and this
Agreement and each other Loan Document to which the Borrower or any other
Obligor is a party constitutes the legal, valid and binding obligations of the
Borrower or such Obligor, as the case may be, enforceable against the Borrower
or such Obligor, as the case may be, in accordance with their respective terms,
except as enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally or by
general equitable principles relating to enforceability.
6.3. Governmental Authorization. No approval, consent, exemption,
authorization or other action by, or notice to, or filing with, any Governmental
Authority is necessary or required in connection with the execution, delivery or
performance by, or enforcement against, the Borrower or any other Obligor of
this Agreement, any other Loan Document to which the Borrower or any such
Obligor is a party, the granting of the Liens contemplated by the Pledge
Agreement or as of the Closing Date, the consummation of the Recapitalization,
except (a) for any thereof which have been obtained and are in full force and
effect, (b) as such performance or enforcement may be subject to the exceptions
set forth in Schedule 6.3 and (c) as of the Closing Date with respect to the
consummation of the Recapitalization, any of the foregoing the failure to obtain
or make could not reasonably be expected to have a Material Adverse Effect.
6.4. Litigation. Except as set forth on Schedule 6.4, there are no
actions, suits or proceedings pending or, to the knowledge of the Borrower,
threatened, with respect to the Borrower or any of its Restricted Subsidiaries
(i) that have, or could reasonably be expected to have, a Material Adverse
Effect or (ii) that have, or could reasonably be expected to have, a material
adverse effect on the rights and remedies of the Lenders taken as a whole or on
the ability of the Borrower and the other Obligors to perform their material
obligations under the Loan Documents taken as a whole.
6.5. ERISA Compliance. Except as specifically disclosed in Schedule
6.5:
(a) Each Plan is in compliance in all material respects with the terms
thereof and the applicable provisions of ERISA, the Code and other federal or
state law except to the extent that failure to comply would not result,
individually or in the aggregate, in an amount of liability that could
reasonably be expected to have a Material Adverse Effect. The Borrower and each
ERISA Affiliate has made all required contributions to any Plan subject to
Section 412 of the Code, except to the extent that a failure to do so could not
reasonably be expected to have a Material Adverse Effect, and no application for
a funding waiver or an extension of any amortization period pursuant to Section
412 of the Code has been made with respect to any Plan.
70
(b) There are no pending or, to the best knowledge of Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Pension Plan which has resulted or could reasonably be
expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability in an amount which could
reasonably be expected to have a Material Adverse Effect if such Pension Plan
were then terminated; and (iii) neither the Borrower nor any ERISA Affiliate has
engaged in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA that could reasonably be expected to have a Material Adverse Effect.
6.6. Regulatory Matters. Neither the making of any Credit Extension
hereunder, nor the use of any proceeds thereof, will violate the provisions of
Regulation G, T, U or X of the FRB. The Borrower is not an "Investment Company"
within the meaning of the Investment Company Act of 1940.
6.7. Title to Properties. The Borrower and each of its Restricted
Subsidiaries has good title to, or leasehold interests in, all property
necessary for the conduct of their respective businesses free and clear of all
Liens (other than any Liens permitted by this Agreement), except where the
failure to have such good title or leasehold interests could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.8. Taxes. The Borrower, its Restricted Subsidiaries and all other
corporations with whom the Borrower or any Restricted Subsidiary join in the
filing of a consolidated return have filed all Federal income tax returns and
other material tax returns and reports, domestic and foreign, required to be
filed, and have paid all material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those not yet delinquent or which are
being contested in good faith. The Borrower, each of its Restricted Subsidiaries
and each such other corporation with whom the Borrower or any Restricted
Subsidiary joins in the filing of a consolidated return have paid, or have
provided adequate reserves (in the good faith judgment of the management of the
Borrower) in accordance with GAAP for the payment of all such material taxes,
assessments, fees and charges relating to all prior taxable years and the
current taxable year of the Borrower, each of its Restricted Subsidiaries and
each such other corporation with whom the Borrower or any Restricted Subsidiary
joins in the filing of a consolidated return. To the best knowledge of the
Borrower, there is no proposed tax assessment against the Borrower, any
Restricted Subsidiary or any such other corporation with whom the Borrower or
any Restricted Subsidiary joins in the filing of a consolidated return that
could reasonably be expected to have a Material Adverse Effect.
6.9. Financial Condition. (a) The audited consolidated balance sheet of
S&E and its Subsidiaries as of September 30, 1995, and the related consolidated
statements of earnings and cash flows for the Fiscal Year ended on such date:
(i) were prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein; and (ii)
fairly present in all material respects the financial condition of S&E and its
Subsidiaries as of the date thereof and results of operations for the period
covered thereby.
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(b) The audited consolidated balance sheet of the Borrower and its
Subsidiaries as of September 30, 1995, and the related consolidated statements
of earnings and cash flows for the Fiscal Year ended on such date: (i) were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein; and (ii) fairly
present in all material respects the financial condition of the Borrower and its
Subsidiaries as of the date thereof and results of operations for the period
covered thereby.
(c) Since September 30, 1995, except as may have been disclosed in
writing to the Lenders prior to the Closing Date, there has been no Material
Adverse Change.
6.10. Trademarks, Copyrights, Patents and Licenses, etc. Each of the
Borrower and its Restricted Subsidiaries owns or are licensed or otherwise have
the right to use all of the Trademarks, copyrights, patents, licenses and other
rights that are reasonably necessary for the operation of each of their
respective businesses, without conflict with the rights of any other Person and
free of burdensome restrictions, except where the failure to have any such
rights could not reasonably be expected to have a Material Adverse Effect.
6.11. Subsidiaries. As of the Closing Date, the Borrower has no
Subsidiaries other than those specifically disclosed in Schedule 6.11 hereto.
6.12. Full Disclosure. (a) All factual information (taken as a whole)
heretofore or contemporaneously furnished by or on behalf of the Borrower or any
of its Subsidiaries in writing to any Agent and/or any Lender on or before the
Closing Date (including (i) the Confidential Information Memorandum and (ii) all
information contained in the Loan Documents) for purposes of or in connection
with this Agreement or any transactions contemplated herein is true and complete
in all material respects on the date as of which such information is dated or
certified and not incomplete by omitting to state any material fact necessary to
make such information (taken as a whole) not misleading at such time in light of
the circumstances under which such information was provided, it being understood
and agreed that for purposes of this Section 6.12(a), such factual information
shall not include projections and pro forma financial information.
(b) The projections and pro forma financial information contained in
the factual information referred to in clause (a) above (including the pro forma
consolidated balance sheet of the Borrower as at June 30, 1996, and the pro
forma consolidated statements of earnings for the year ending September 30, 1995
and the nine-month period ending June 30, 1996) were or are based on good faith
estimates and assumptions believed to be reasonable at the time made, it being
recognized by the Lenders that such projections as to future events are not to
be viewed as facts and that actual results during the period or periods covered
by any such projections may differ significantly from the projected results.
6.13. Compliance with Environmental Laws. The Borrower and each of its
Restricted Subsidiaries is in compliance with all applicable Environmental Laws
in respect of the conduct of its business and the ownership of its property,
except such noncompliance as could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect. Without limiting the effect of the preceding
sentence:
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(a) neither the Borrower nor any of its Subsidiaries has received a
complaint, order, citation, notice or other written communication with respect
to the existence or alleged existence of a violation of, or liability arising
under, any Environmental Law, the outcome of which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect; and
(b) to the best of the Borrower's knowledge, after due inquiry, there
are no environmental, health or safety conditions existing or reasonably
expected to exist at any real property owned, operated, leased or used by the
Borrower or any of its existing or former Subsidiaries or any of their
respective predecessors, including off-site treatment or disposal facilities
used by the Borrower or its existing or former Subsidiaries for wastes treatment
or disposal, which could reasonably be expected to require any construction or
other capital costs or clean-up obligations to be incurred prior to the Tranche
D Term Maturity Date in order to assure compliance with any Environmental Law,
including provisions regarding clean-up, to the extent that any of such
conditions, construction or other capital costs or clean-up obligations,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, unless the Majority
Lenders waive compliance in writing:
7.1. Financial Statements. The Borrower shall deliver to the
Administrative Agent, with sufficient copies for each Lender:
(a) promptly after available, but not later than 120 days after the end
of each Fiscal Year, a copy of the audited consolidated balance sheet of the
Borrower and its Restricted Subsidiaries as at the end of such year and the
related consolidated statements of earnings, cash flows and, to the extent
prepared, shareholders' equity for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, and accompanied by
the opinion of a nationally recognized independent public accounting firm
("Independent Auditor") which report shall state that such consolidated
financial statements present fairly in all material respects the financial
position of the Borrower and its Restricted Subsidiaries for the periods
indicated in conformity with GAAP applied on a basis consistent with prior years
(except as noted therein) (such opinion shall not be qualified or limited
because of a restricted or limited examination by the Independent Auditor of any
material portion of the Borrower's or any Restricted Subsidiary's records); and
(b) promptly after available, but not later than 60 days after the end
of each of the first three Fiscal Quarters of each Fiscal Year, a copy of the
unaudited consolidated balance sheet of the Borrower and its Restricted
Subsidiaries as of the end of such quarter and the related consolidated
statements of earnings, cash flows and, to the extent prepared, shareholders'
equity for the period commencing on the first day and ending on the last day of
such quarter, and certified by a Responsible
73
Officer as fairly presenting in all material respects, in accordance with GAAP
(subject to year-end audit adjustments), the financial position and the results
of operations of the Borrower and its Restricted Subsidiaries as of the date
thereof.
7.2. Certificates; Other Information. The Borrower shall furnish to the
Administrative Agent, with sufficient copies for each Lender:
(a) promptly when available but not later than 120 days after the end
of each Fiscal Year, a certificate of the Independent Auditor, in conformity
with professional auditing standards applicable to such matters, stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default under Section 8.6, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements referred
to in clauses (a) and (b) of Section 7.1, financial statements prepared on a Pro
Forma Basis for each Acquisition consummated during the Test Period relating to
such financial statements referred to in clauses (a) and (b) of Section 7.1,
together with a Compliance Certificate executed by a Responsible Officer;
(c) within 60 days after the commencement of each Fiscal Year of the
Borrower, operating and related budgets of the Borrower and its Restricted
Subsidiaries in reasonable detail for such Fiscal Year by Fiscal Quarter as
customarily prepared by management of the Borrower for its internal use, setting
forth the principal assumptions upon which such budgets are based;
(d) promptly after transmission thereof, copies of any reports filed on
Forms 10-K, 10-Q, and 8-K, effective registration statements filed on Forms X-0,
X-0, X-0 and S-4, and any proxy statements, as well as any substitute or similar
documents to substantially the same effect as the foregoing, including, to the
extent requested by the Administrative Agent, the schedules and exhibits
thereto, in each case as transmitted to the SEC by the Borrower or any of its
Restricted Subsidiaries (other than immaterial amendments to any such
registration statement); and
(e) promptly, such additional information regarding the business or
financial condition of the Borrower or any Restricted Subsidiary as the
Administrative Agent, on its own behalf or on behalf of the Majority Lenders,
may from time to time reasonably request in writing.
7.3. Notices. The Borrower shall notify the Administrative Agent and
each Lender of:
(a) promptly after a Responsible Officer of the Borrower or any of its
Restricted Subsidiaries obtains actual knowledge thereof, (i) the occurrence of
any event that constitutes a Default or Event of Default (including any Event of
Default, as defined in the Senior Subordinated Indenture), (ii) any litigation
or governmental proceeding pending against the Borrower or any of its Restricted
Subsidiaries that could reasonably be expected to have a Material Adverse Effect
and (iii) any acceleration, redemption or purchase demands or notices provided
by the trustee for the Senior Subordinated Notes; and
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(b) promptly after a Responsible Officer of the Borrower or any of its
Restricted Subsidiaries obtains actual knowledge thereof, the occurrence of any
ERISA Event (but in no event more than 10 days after a Responsible Officer of
the Borrower obtains knowledge of such ERISA Event), and deliver to the
Administrative Agent and each Lender a copy of any notice with respect to such
event that is filed with a Governmental Authority and any notice delivered by a
Governmental Authority to the Borrower or any ERISA Affiliate with respect to
such event.
Each notice from the Borrower under this Section shall specify the
nature of the occurrence referred to therein, the period of existence thereof
and what action the Borrower proposes to take with respect thereto.
7.4. Preservation of Corporate Existence, etc. The Borrower shall, and
shall cause each Restricted Subsidiary to:
(a) preserve and maintain in full force and effect its corporate
existence under the laws of its state or jurisdiction of incorporation (provided
that the Borrower and its Restricted Subsidiaries may consummate any transaction
permitted under Section 8.2), except, in the case of any such Restricted
Subsidiary, to the extent that the failure to do so could not reasonably be
expected to have a Material Adverse Effect; and
(b) preserve and maintain in full force and effect its good standing
under the laws of its state or jurisdiction of incorporation and all material
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary in the normal conduct of its business except in each case
to the extent that the failure to do so could not reasonably be expected to have
a Material Adverse Effect.
7.5. Maintenance of Property. The Borrower will, and will cause each of
its Restricted Subsidiaries to, ensure that its properties and equipment used or
useful in its business, in whomsoever's possession they may be to the extent
that it is within the Borrower's or such Restricted Subsidiary's control to
cause same, are kept in good repair, working order and condition, normal wear
and tear excepted, and that from time to time there are made in such properties
and equipment all needful and proper repairs, renewals, replacements,
extensions, additions, betterments and improvements thereto, to the extent and
in the manner customary for companies in similar businesses and consistent with
third-party leases, except in each case to the extent the failure to do so could
not reasonably be expected to have a Material Adverse Effect.
7.6. Insurance. The Borrower shall maintain, and shall cause each of
its Material Subsidiaries to maintain, insurance in full force and effect, in
such amounts and against such risks and in such amounts, and with such
deductibles, retentions, self-insured amounts and co-insurance provisions, as
are customarily maintained in accordance with normal industry practices.
7.7. Payment of Taxes. The Borrower shall, and shall cause each
Subsidiary to, pay and discharge all material taxes, assessments and
governmental charges or levies upon it or upon its income or profits, or upon
any properties belonging to it, prior to the date on which material penalties
attach thereto, and all lawful material claims that, if unpaid, could reasonably
be expected to become a
75
material Lien upon any properties of the Borrower or any of its Material
Subsidiaries; provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required hereunder to pay any such tax, assessment,
charge, levy or claim that is being contested in good faith if it has maintained
adequate reserves (in the good faith judgment of the management of the Borrower
or such Subsidiary) with respect thereto in accordance with GAAP.
7.8. Compliance with Statutes, etc. The Borrower shall comply, and
shall cause each Subsidiary to comply, in all material respects, with all
applicable statutes, regulations and other Requirements of Law (including
Environmental Laws) having jurisdiction over it or its business, except such as
may be contested in good faith or as to which a bona fide dispute may exist or
except to the extent that the failure to so comply could not reasonably be
expected to have a Material Adverse Effect.
7.9. Inspection of Property and Books and Records. The Borrower shall
permit, and shall cause each Material Subsidiary to permit, officers and
designated representatives of the Administrative Agent or the Majority Lenders
to visit and inspect any of their respective properties, to examine their
respective corporate, financial and operating records, and make copies thereof
or abstracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective directors, officers, and independent public
accountants, all at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to the
Borrower.
7.10. Use of Proceeds. The Borrower shall use the proceeds of the Loans
for the purposes described in the third recital to this Agreement.
7.11. Future Subsidiaries. Without limiting the effect of any provision
contained herein (including Section 8.3), upon any Person becoming, after the
date hereof, a Subsidiary of the Borrower (other than any Unrestricted
Subsidiary or a Restricted Subsidiary that is not a Material Subsidiary),
including any Person that was a Restricted Subsidiary, but not a Material
Subsidiary, but which becomes a Material Subsidiary through internal growth or
otherwise, or upon the Borrower acquiring additional capital stock of any
existing Subsidiary the capital stock of which is then pledged under the Pledge
Agreement:
(a) in the event such Person is a Domestic Subsidiary, the Borrower
shall cause such Person, if not theretofore a party to the Guaranty, to execute
a supplement to the Guaranty for the purpose of becoming a guarantor thereunder;
and
(b) in the event such Person is a direct Subsidiary of the Borrower,
the Borrower shall, pursuant to the Pledge Agreement, pledge to the
Administrative Agent for the benefit of the Lenders (free and clear of any other
pledges relating to such Person or any of its Subsidiaries) all of the
outstanding shares of such capital stock of such Subsidiary owned directly by it
(provided, that, in the event such Subsidiary is a Foreign Subsidiary, the
Borrower shall not be required to pledge more than 65% of the outstanding shares
of the capital stock of such Subsidiary), along with undated stock
powers for such certificates, executed in blank (or, if any such shares of
capital stock are uncertificated, confirmation and evidence satisfactory to the
Administrative Agent that the security
76
interest in such uncertificated securities has been perfected by the
Administrative Agent in accordance with Section 8-313 and Section 8-321 of the
Uniform Commercial Code as in effect in the State of New York or any similar law
which may be applicable).
7.12. Transactions with Affiliates. The Borrower shall, and shall cause
each of its Restricted Subsidiaries to, conduct all transactions with any of its
Affiliates (other than the Borrower and its Restricted Subsidiaries) upon terms
that are substantially as favorable to the Borrower or such Restricted
Subsidiary as it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate of the Borrower or such Restricted Subsidiary; provided
that the foregoing restrictions shall not apply to (a) the payment of customary
annual fees to KKR and its Affiliates for management, consulting and financial
services rendered to the Borrower and its Restricted Subsidiaries, and customary
investment banking fees paid to KKR and its Affiliates for services rendered to
the Borrower or its Restricted Subsidiaries in connection with divestitures,
acquisitions, financings and other transactions, (b) customary fees paid to
members of the Board of Directors of the Borrower and its Restricted
Subsidiaries, (c) transactions expressly permitted with an Affiliate hereunder
and sales and other dispositions of assets in the ordinary course of business
and (d) the performance of any of the agreements listed on Schedule 7.12.
7.13. Change in Business. The Borrower shall, and shall cause its
Material Subsidiaries to, taken as a whole, engage primarily in (a) the lines of
business carried on by the Borrower and its Restricted Subsidiaries on the
Closing Date and any other business the majority of whose revenues are derived
from sales of consumer products and/or (b) businesses or activities reasonably
similar thereto or a reasonable extension, development or expansion thereof or
ancillary thereto.
7.14. End of the Fiscal Year. The Borrower will, for financial
reporting purposes, cause each of its, and each of its Domestic Subsidiaries',
fiscal years to end on September 30 of each year (the "Fiscal Year End") (each
such period a "Fiscal Year" and references to a Fiscal Year with a number
corresponding to any calendar year (e.g., the "1997 Fiscal Year") shall
hereinafter refer to the Fiscal Year ending in the Fiscal Year End occurring
during such calendar year); provided, however, that the Borrower may, upon prior
written notice to the Administrative Agent, change the definition of Fiscal Year
End set forth above to any other date reasonably acceptable to the
Administrative Agent, in which case the Borrower and the Administrative Agent
will, and are hereby authorized by the Lenders to, make any adjustments to this
Agreement that are necessary in order to reflect such change in financial
reporting.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, unless the Majority
Lenders waive compliance in writing:
77
8.1. Limitation on Liens. The Borrower shall not, and shall not suffer
or permit any of its Restricted Subsidiaries to, directly or indirectly, make,
create, incur, assume or suffer to exist any Lien upon or with respect to any
part of its property, whether now owned or hereafter acquired, other than the
following ("Permitted Liens"):
(a) any Lien created under any Loan Document;
(b) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable without penalty, or to the extent
that non-payment thereof is permitted by Section 7.7;
(c) Liens in respect of property or assets imposed by law, such as
carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's or
other similar Liens arising in the ordinary course of business, in each case so
long as such Liens do not individually or in the aggregate have a Material
Adverse Effect;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and return-of-money bonds
and other similar obligations incurred in the ordinary course of business
(exclusive of obligations in respect of the payment for borrowed money);
(e) Liens incurred in the ordinary course of business by a Restricted
Subsidiary on securities to secure repurchase and reverse repurchase obligations
in respect of such securities;
(f) Liens consisting of judgment or judicial attachment liens in
circumstances not constituting an Event of Default under clause (i) of Section
9.1;
(g) easements, rights-of-way, restrictions, minor defects or
irregularities of title and other similar encumbrances not interfering in any
material respect with the business of the Borrower and its Restricted
Subsidiaries taken as a whole;
(h) Liens securing obligations in respect of Capital Leases on assets
subject to such leases, provided that such Capital Leases are otherwise
permitted hereunder;
(i) Liens arising solely by virtue of any statutory or common law
provision relating to banks' liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution, provided that such deposit account is not a cash
collateral account;
(j) Liens existing on the date hereof securing obligations not in
excess of $4,200,000 in the aggregate;
78
(k) any interest or title of a lessor or secured by a lessor's interest
under any lease permitted by this Agreement, or any leases or subleases granted
to others not interfering in any material respect with the business of the
Borrower or its Restricted Subsidiary to which the property subject to such
lease or sublease relates;
(l) Liens (i) placed upon property, plant or equipment used in the
ordinary course of business of the Borrower or any of its Restricted
Subsidiaries in connection with the acquisition thereof by the Borrower or any
such Restricted Subsidiary to secure Indebtedness incurred to pay all or a
portion of the purchase price thereof (provided that (A) the Lien encumbering
the property, plant or equipment so acquired does not encumber any other asset
of the Borrower or any such Restricted Subsidiary and (B) the Indebtedness
secured thereby is permitted by clause (f) of Section 8.4 and such acquisition
was otherwise permitted by this Agreement), and (ii) existing on specific assets
at the time acquired by the Borrower or any Restricted Subsidiary (provided that
(A) any such Liens were not created at the time of or in contemplation of the
acquisition of such assets by the Borrower or such Restricted Subsidiary, (B)
such Lien does not encumber any other asset of the Borrower or any Restricted
Subsidiary and (C) the Indebtedness secured thereby is permitted by clause (i)
of Section 8.4 and such acquisition was otherwise permitted by this Agreement);
(m) any Lien placed upon the capital stock or other equity interests of
a Restricted Subsidiary acquired pursuant to a Permitted Acquisition under
clause (h) of Section 8.3 to secure Indebtedness incurred pursuant to clause (j)
of Section 8.4 to finance the acquisition of such Restricted Subsidiary by the
Borrower or any of its other Restricted Subsidiaries, provided such Restricted
Subsidiary has executed a supplement to the Guaranty in accordance with the
provisions of clause (h) of Section 8.3;
(n) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(o) Liens on goods the purchase price of which is financed by a
documentary letter of credit issued for the account of the Borrower or any of
its Restricted Subsidiaries, provided that such Lien secures only the
obligations of the Borrower or such Restricted Subsidiaries in respect of such
letter of credit to the extent permitted under Section 8.4;
(p) leases or subleases granted to others not interfering in any
material respect with the business of the Borrower and its Restricted
Subsidiaries taken as a whole;
(q) additional Liens (other than Liens on any collateral securing the
Obligations) securing obligations of the Borrower and its Restricted
Subsidiaries so long as the aggregate amount of the obligations so secured does
not exceed $25,000,000 at any time outstanding;
(r) any Lien arising pursuant to Section 107(1) of CERCLA, 42 U.S.C.
ss. 9607(1), or other Environmental Law, unless such Lien (i) by action of the
lienholder, or by operation of law, takes priority over any subsequent Lien on
the property upon which it is a Lien and (ii) relates to a liability of the
Borrower and the Restricted Subsidiaries that is reasonably likely to exceed,
individually or in the aggregate, $20,000,000; and
79
(s) the replacement, extension or renewal of any Lien permitted by
clauses (a) through (m) above upon or in the same assets theretofore subject to
such Lien or the replacement, extension or renewal (without increase in the
amount or change in any direct or contingent obligor except to the extent
otherwise permitted under this Agreement) of the Indebtedness secured thereby.
8.2. Consolidations and Mergers; Sales of Assets. The Borrower shall
not, and shall not suffer or permit any of its Restricted Subsidiaries to,
merge, consolidate or otherwise combine or liquidate with or into, or enter into
or consummate any Disposition (other than any Disposition resulting from a
casualty or condemnation), whether in one transaction or in a series of
transactions to or in favor of, any Person, except:
(a) (i) any Restricted Subsidiary may merge or otherwise consolidate
with the Borrower (provided that the Borrower shall be the continuing or
surviving corporation) and (ii) any Restricted Subsidiary may merge or otherwise
consolidate with any other Restricted Subsidiary;
(b) any Restricted Subsidiary may sell or otherwise transfer its assets
(upon voluntary liquidation or otherwise) to the Borrower and the Borrower or
any Restricted Subsidiary may sell or otherwise transfer its assets (upon
voluntary liquidation or otherwise) to any other Restricted Subsidiary;
(c) any Foreign Subsidiary may sell its accounts receivable for cash
pursuant to discounting arrangements entered into in the ordinary course of its
business, provided that (i) such sale is without recourse to the Borrower and
its other Restricted Subsidiaries and (ii) the aggregate amount of all such
financings outstanding at any one time, when added to the aggregate amount of
Indebtedness outstanding at such time under clause (g) of Section 8.4, does not
exceed $75,000,000; and
(d) the Borrower or any Restricted Subsidiary may consummate one or
more Dispositions (in addition to any thereof described in any other provision
of this Section 8.2), provided that (i) the Borrower complies with the
requirements of Section 2.8(a), (ii) such Disposition is made for fair value (as
determined in good faith by the Borrower) and (iii) the aggregate consideration
received for all assets disposed of in Dispositions from and after the Closing
Date pursuant to this clause (d) shall not exceed $250,000,000.
8.3. Loans, Acquisitions and Investments. The Borrower shall not make,
purchase, repurchase, redeem or acquire, or suffer or permit any Restricted
Subsidiary to make, purchase, repurchase, redeem or acquire, any capital stock,
equity interest or any obligations or other securities of, or any interest in,
any Person, or make any acquisitions of any assets (including Acquisitions), or
make any advance, loan, extension of credit or capital contribution to or any
other investment in any Person, including any Affiliate of the Borrower
(collectively, "Investments"), except for:
(a) Investments in the form of Cash Equivalents;
(b) Investments in the Borrower or in any of its Restricted
Subsidiaries;
80
(c) Investments incurred in order to consummate the Recapitalization in
accordance with the terms of the Recapitalization and Stock Purchase Agreement
and the contribution of Etonic Worldwide Corporation to S&E by the Borrower;
(d) loans and advances to officers, directors and employees of the
Borrower or any of the Restricted Subsidiaries (i) to finance the purchase of
capital stock of the Borrower and (ii) for additional purposes not contemplated
by clause (i) above, in an aggregate principal amount at any time outstanding
with respect to this clause (ii) not exceeding $5,000,000;
(e) Investments existing on the date hereof and listed on Schedule 8.3
and any extensions, renewals or reinvestments thereof, so long as the aggregate
amount of all Investments pursuant to this clause (e) is not increased at any
time above the amount of such Investments existing on the date hereof;
(f) Investments constituting non-cash proceeds of the sale or other
disposition of assets, so long as such Investments arise from Dispositions
permitted under Section 8.2(d);
(g) Investments in Swap Contracts;
(h) Investments by the Borrower or any Restricted Subsidiary (other
than any Investment in an Unrestricted Subsidiary) constituting an Acquisition
(any such Acquisition permitted pursuant to this clause (h), a "Permitted
Acquisition"), so long as (i) such Acquisition and all transactions related
thereto are consummated in accordance with applicable law, (ii) in the case of
an Acquisition of capital stock or other equity interest by the Borrower or a
Restricted Subsidiary, such Acquisition results in the issuer of such capital
stock or other equity interest becoming a Restricted Subsidiary and such
Restricted Subsidiary (other than a Foreign Subsidiary) executes an appropriate
supplement to the Guaranty for the purposes of becoming a Guarantor thereunder,
(iii) no capital stock or other equity interest or assets acquired in connection
with such Acquisition shall be subject to any Lien (other than Liens permitted
by Section 8.1), (iv) neither the Borrower nor any other Restricted Subsidiary
shall assume or incur, directly or indirectly, any Indebtedness in connection
with such Acquisition (other than Indebtedness otherwise permitted by Section
8.4), provided that if any of such Indebtedness shall be secured, the guaranty
referred to in subclause (ii) of clause (h) of this Section 8.3 shall be equally
and ratably secured, (v) after giving effect to such Acquisition, no Event of
Default or payment Default shall have occurred and be continuing and (vi) the
Borrower shall have delivered to the Administrative Agent prior to the
consummation of such Acquisition (A) financial statements prepared on a Pro
Forma Basis for the period of four consecutive Fiscal Quarters ending with the
Fiscal Quarter then last ended for which financial statements and the Compliance
Certificate relating thereto have been delivered to the Administrative Agent
pursuant to Sections 7.1 and 7.2 and (B) a certificate of the Borrower executed
by its chief financial officer demonstrating that the financial results
reflected in such financial statements would comply with the requirements of
Section 8.6 for the Fiscal Quarter in which such Investment is to be made (or,
for Investments made in Fiscal Quarters ended prior to September 30, 1997, the
requirements of Section 8.6 as if such Investment were made during the Fiscal
Quarter ended September 30, 1997);
81
(i) so long as no Event of Default or payment Default exists and is
continuing at the time of the making of such Investment (or would occur
immediately after giving effect thereto), additional Investments by the Borrower
or its Restricted Subsidiaries (including in Unrestricted Subsidiaries) in an
aggregate amount not to exceed at any time the sum of (i) $50,000,000 plus (ii)
the aggregate amount of net cash proceeds in respect of equity contributions
made to the Borrower after the Closing Date and prior to such time or issuances
of equity of the Borrower after the Closing Date and prior to such time (other
than, in any event, any proceeds of the Preferred Stock and equity contributions
made in accordance with clause (d)(i) of this Section 8.3 or used in accordance
with clause (b) or (c) of Section 8.5), plus (iii) the sum of (A) an amount
equal to Cumulative Borrower's Excess Cash Flow, if any (to the extent not used
in accordance with clause (c) of Section 8.5), plus (B) the aggregate amount of
prepayments refused by Tranche B Term Lenders, Tranche C Term Lenders or Tranche
D Term Lenders and retained by the Borrower in accordance with clause (ii)(D) of
Section 2.8(d) prior to such time and not used in accordance with clause (c) of
Section 8.5 (it being agreed that each Investment made pursuant to this clause
(i) shall not be outstanding to the extent of any return or prepayment of such
Investment);
(j) Investments permitted by Section 8.5;
(k) Investments in or constituting Capital Expenditures permitted by
Section 8.7; and
(l) Investments acquired by the Borrower or any of its Restricted
Subsidiaries in the ordinary course of business in connection with the
collection or settlement of accounts receivable.
8.4. Limitation on Indebtedness. The Borrower shall not, and shall not
suffer or permit any of its Restricted Subsidiaries to, create, incur, assume,
suffer to exist, or otherwise become or remain directly or indirectly liable
with respect to, any Indebtedness, except (subject in any event to the
provisions of Section 8.6):
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness evidenced by the Senior Subordinated Notes in an
aggregate principal amount not to exceed $200,000,000;
(c) Indebtedness between the Borrower and its Restricted Subsidiaries
and Indebtedness between Restricted Subsidiaries;
(d) Contingent Obligations in respect of obligations that are permitted
to be incurred under this Agreement (other than obligations that are permitted
to be incurred under clause (c) of Section 8.2); provided, however, that (i) in
the event any primary obligation to which any such Contingent Obligation relates
is subordinated to Indebtedness under a Loan Document, such Contingent
Obligation is subordinated to the same extent and (ii) Contingent Obligations
(without duplication) of the Borrower and its Domestic Subsidiaries in respect
of obligations incurred by Foreign Subsidiaries shall not exceed $75,000,000 at
any one time outstanding;
82
(e) Indebtedness outstanding on the date hereof of the Borrower and its
Domestic Subsidiaries and listed on Schedule 8.4 and any refinancing, refunding,
renewal or extension thereof; provided that (i) the principal amount thereof is
not increased above the principal amount thereof outstanding immediately prior
to such refinancing, refunding, renewal or extension (except to the extent
otherwise permitted under this Section 8.4) and (ii) the direct and contingent
obligors with respect to such Indebtedness are not changed (except to the extent
otherwise permitted under this Section 8.4);
(f) Indebtedness of Domestic Subsidiaries described in clause (l)(i) of
Section 8.1 or constituting Capitalized Lease Liabilities; provided that the
aggregate amount of such Indebtedness (including the aggregate amount of
Capitalized Lease Liabilities under all Capitalized Leases) shall not exceed
$20,000,000 at any one time outstanding;
(g) Indebtedness of Foreign Subsidiaries in an aggregate amount at any
one time outstanding, which, when added to the aggregate amount of financings
outstanding at such time under clause (c) of Section 8.2, does not exceed
$75,000,000;
(h) unsecured Indebtedness of the Borrower (i) which does not have any
scheduled principal payment (including any sinking fund requirement) prior to
the Tranche D Term Maturity Date, (ii) which has pricing terms, covenants,
representations and defaults, which, taken as a whole, are not more burdensome
or restrictive on the Borrower than the pricing terms, covenants,
representations and defaults provided in this Agreement and (iii) all the net
proceeds of which are immediately applied to the prepayment of Term Loans
pursuant to Section 2.8(c);
(i) (i) Indebtedness of a Person that becomes a Restricted Subsidiary
after the Closing Date as the result of an Investment permitted under clause (h)
of Section 8.3, provided that (A) such Indebtedness existed at the time such
Person became a Restricted Subsidiary and was not created in anticipation
thereof, (B) such Indebtedness is not guaranteed in any respect by the Borrower
or any other Restricted Subsidiary and (C) the aggregate amount of such
Indebtedness and all Indebtedness outstanding under clause (j) immediately below
shall not exceed $225,000,000 in the aggregate at any one time outstanding, and
(ii) any refinancing, refunding, renewal or extension of any Indebtedness
specified in the immediately preceding clause (i), provided that (1) the
principal amount of any such Indebtedness is not increased above the principal
amount thereof outstanding immediately prior to such refinancing, refunding,
renewal or extension (except to the extent otherwise permitted by this Section
8.4) and (2) the direct and contingent obligors with respect to such
Indebtedness are not changed (except to the extent otherwise permitted by this
Section 8.4);
(j) (i) Indebtedness of the Borrower incurred to finance a Permitted
Acquisition under clause (h) of Section 8.3, provided that the aggregate
principal amount of Indebtedness incurred pursuant to this clause (j) and
pursuant to clause (i) of Section 8.4 immediately above shall not exceed
$225,000,000 in the aggregate at any one time outstanding and (ii) to the extent
such Permitted Acquisition results in a Person becoming a Restricted Subsidiary
and such Restricted Subsidiary executes a supplement to the Guaranty in
accordance with the provisions of clause (h) of Section 8.3, Contingent
Obligations of Guarantors in respect of guarantees of the Indebtedness described
in the immediately preceding subclause (i);
83
(k) Contingent Obligations incurred in the ordinary course of business
in respect of obligations of customers, suppliers, franchisees and licensees;
and
(l) additional Indebtedness in an aggregate principal amount not to
exceed $50,000,000 at any time outstanding.
8.5. Restricted Payments. The Borrower shall not declare or make any
dividend payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any shares of any class of its capital
stock, purchase, redeem or otherwise acquire for value any shares of its capital
stock or any warrants, rights or options to acquire such shares, now or
hereafter outstanding, or pay, prepay, purchase, redeem or defease principal of
the Senior Subordinated Notes, and the Borrower shall not permit any Restricted
Subsidiary to purchase, redeem or otherwise acquire for value any shares of any
class of capital stock of the Borrower, any other Restricted Subsidiary (except
shares thereof owned by the Borrower or any Restricted Subsidiary) or such
Restricted Subsidiary (other than (i) of its shares held by the Borrower or any
other Restricted Subsidiary and (ii) in pro rata redemption or repurchases of
its common stock), as the case may be, now or hereafter outstanding (or any
warrants, rights or options to acquire such shares), and the Borrower shall not
permit any of its Restricted Subsidiaries to pay, prepay, purchase, redeem or
defease principal of the Senior Subordinated Notes, except that, so long as
before and after giving effect to any such payment no Event of Default or
payment Default shall have occurred, the Borrower may:
(a) declare and make dividends or other distributions payable solely in
shares of its capital stock;
(b) purchase, redeem or otherwise acquire (i) shares of Common Stock or
warrants or options to acquire any such shares with the proceeds received from
the substantially concurrent issuance of new shares of Common Stock and (ii)
shares of Preferred Stock with a portion of the proceeds received from the
substantially concurrent issuance of new shares of Common Stock in an aggregate
amount not to exceed 50% of the proceeds received by the Borrower from such
issuance;
(c) redeem, defease or otherwise prepay or retire the Senior
Subordinated Notes in an aggregate amount not to exceed at any time the sum of
(i) the aggregate amount of net cash proceeds in respect of equity contributions
made to the Borrower after the Closing Date and prior to such time or issuances
of equity of the Borrower after the Closing Date and prior to such time (other
than, in any event, any proceeds of the Preferred Stock and equity contributions
made in accordance with clause (d)(i) of Section 8.3 or used in accordance with
clause (b) of this Section 8.5 or clause (i) of Section 8.3) plus (ii) the sum
of (A) an amount equal to Cumulative Borrower's Excess Cash Flow, if any (to the
extent not used in accordance with clause (i) of Section 8.3), plus (B) the
aggregate amount of prepayments refused by Tranche B Term Lenders, Tranche C
Term Lenders or Tranche D Term Lenders and retained by the Borrower in
accordance with clause (ii)(D) of Section 2.8(d) prior to such time and not used
in accordance with clause (i) of Section 8.3;
(d) redeem or exchange in whole or in part any capital stock of the
Borrower for another class of capital stock or rights to acquire such other
class of capital stock of the Borrower, provided
84
that such other class of capital stock contains terms and provisions (taken as a
whole) at least as advantageous to the Lenders as those contained in the capital
stock redeemed or exchanged thereby;
(e) repurchase shares of its capital stock (together with options or
warrants in respect of any thereof) held by the officers, directors and
employees of the Borrower (other than any Affiliate of Abarco and its successors
and assigns), so long as such repurchase is pursuant to, and in accordance with
the terms of, management and/or employee stock plans, stock subscription
agreements or shareholder agreements;
(f) pay cash dividends not otherwise permitted hereunder, to the extent
that (i) the Borrower shall have delivered to the Administrative Agent (A)
financial statements prepared on a Pro Forma Basis for the period of four
consecutive Fiscal Quarters ending with the Fiscal Quarter then last ended for
which financial statements and the Compliance Certificate relating thereto have
been delivered to the Administrative Agent pursuant to Sections 7.1 and 7.2 and
(B) a certificate of the Borrower executed by its chief financial officer
demonstrating that the financial results reflected in such financial statements
would (1) comply with the requirements of clauses (a) and (b) of Section 8.6 for
the Fiscal Quarter in which such dividend is to be made and (2) satisfy a
requirement that the ratio of Consolidated Total Debt as at the end of such
period to Consolidated EBITDA for such period be less than 4.0 to 1.0 and (ii)
the aggregate amount expended by the Borrower pursuant to this clause (f) shall
not at any time exceed in the aggregate 50% of Cumulative Consolidated Net
Income Available to Common Stockholders at such time.
8.6. Financial Covenants. The Borrower shall not permit:
(a) the ratio of Consolidated EBITDA for any Test Period ending on or
about any date set forth below to Consolidated Interest Expense for such Test
Period to be less than the ratio set forth opposite such date:
Date Ratio
---- -----
March 31, 1997 1.10 : 1.00
June 30, 1997 1.10 : 1.00
September 30, 1997 1.40 : 1.00
December 31, 1997 1.40 : 1.00
March 31, 1998 1.40 : 1.00
June 30, 1998 1.40 : 1.00
September 30, 1998 1.70 : 1.00
December 31, 1998 1.70 : 1.00
March 31, 1999 1.70 : 1.00
June 30, 1999 1.70 : 1.00
85
September 30, 1999 2.00 : 1.00
December 31, 1999 2.00 : 1.00
March 31, 2000 2.00 : 1.00
June 30, 2000 2.00 : 1.00
September 30, 2000 2.25 : 1.00
and the last day of each
December, March, June and
September thereafter
(b) the ratio of Consolidated EBITDA for any Test Period ending on or
about any date set forth below to Consolidated Fixed Charges for such Test
Period to be less than the ratio set forth opposite such date:
Date Ratio
---- -----
September 30, 1997 1.25 : 1.00
and the last day of each
December, March, June and
September thereafter through
June 30, 2000
September 30, 2000 1.35 : 1.00
and the last day of each
December, March, June and
September thereafter
(c) the ratio of Consolidated Total Debt as at the last day of any Test
Period ending on or about any date set forth below to Consolidated EBITDA for
such Test Period, determined on a Pro Forma Basis for each Acquisition
consummated during such Test Period, to be greater than or equal to the ratio
set forth opposite such date:
Date Ratio
---- -----
September 30, 1997 6.50 : 1.00
December 31, 1997 6.50 : 1.00
March 31, 1998 6.50 : 1.00
June 30, 1998 6.50 : 1.00
September 30, 1998 5.50 : 1.00
December 31, 1998 5.50 : 1.00
March 31, 1999 5.50 : 1.00
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June 30, 1999 5.50 : 1.00
September 30, 1999 5.00 : 1.00
December 31, 1999 5.00 : 1.00
March 31, 2000 5.00 : 1.00
June 30, 2000 5.00 : 1.00
September 30, 2000 4.50 : 1.00
December 31, 2000 4.50 : 1.00
March 31, 2001 4.50 : 1.00
June 30, 2001 4.50 : 1.00
September 30, 2001 4.00 : 1.00
and the last day of each
December, March, June and
September thereafter
8.7. Capital Expenditures. (a) The Borrower shall not, and shall not
permit any of its Restricted Subsidiaries to, make any Capital Expenditures that
would cause the aggregate amount of all Capital Expenditures made by the
Borrower and its Restricted Subsidiaries in (i) the 1997 Fiscal Year of the
Borrower to exceed $35,000,000 and (ii) the 1998 Fiscal Year of the Borrower and
each Fiscal Year thereafter to exceed an amount equal to 5% of the consolidated
net sales of the Borrower and its Restricted Subsidiaries for the immediately
preceding Fiscal Year, provided that, in determining such consolidated net
sales, (A) the net sales of any business or Person acquired by the Borrower or
any Restricted Subsidiary during such immediately preceding Fiscal Year pursuant
to a Permitted Acquisition shall be determined as if such business or Person had
been so acquired on the first day of such immediately preceding Fiscal Year and
(B) the net sales of any business or Person sold or otherwise disposed of by the
Borrower and its Restricted Subsidiaries during such immediately preceding
Fiscal Year shall be eliminated from such consolidated net sales, in each case
based on assumptions believed by the Borrower in good faith to be reasonable.
(b) Notwithstanding anything to the contrary contained in clause (a)
above, the Borrower and its Restricted Subsidiaries may in any Fiscal Year make
Capital Expenditures (in addition to the Capital Expenditures permitted to be
made pursuant to clause (a) above) equal to an aggregate amount equal to 5% of
the excess, if any, of (i) the increase (if any) in consolidated net sales of
the Borrower and its Restricted Subsidiaries for such Fiscal Year attributable
to businesses and Persons acquired during such Fiscal Year pursuant to Permitted
Acquisitions over (ii) the decrease (if any) in such consolidated net sales
attributable to businesses and Persons sold or otherwise disposed of by the
Borrower and its Restricted Subsidiaries during such Fiscal Year.
(c) Notwithstanding anything to the contrary contained in clauses (a)
and (b) above, to the extent that Capital Expenditures made by the Borrower and
its Restricted Subsidiaries during any Fiscal Year are less than the maximum
amount permitted to be made for such Fiscal Year pursuant to
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clauses (a) and (b) above, 100% of such unused amount (each such amount, a
"carry-forward amount") may be carried forward to the immediately succeeding
Fiscal Year and utilized to make Capital Expenditures in such succeeding Fiscal
Year in the event the amount permitted pursuant to clauses (a) and (b) in such
succeeding Fiscal Year have been used (it being understood and agreed that no
carry- forward amount may be carried forward beyond the Fiscal Year immediately
succeeding the Fiscal Year in which it arose and that no portion of the
carry-forward amount available for any Fiscal Year may be used until the entire
amount of Capital Expenditures permitted to be made in such Fiscal Year (without
giving effect to such carry-forward amount) shall be made).
8.8. Amendments. The Borrower shall not amend or modify, and shall not
permit or suffer to exist the amendment or other modification of, the Senior
Subordinated Notes, the Senior Subordinated Indenture or the certificate of
designation for the Preferred Stock in a manner materially adverse to the
Lenders.
ARTICLE IX
EVENTS OF DEFAULT
9.1. Event of Default. Any of the following shall constitute an "Event
of Default":
(a) Non-Payment. The Borrower fails to make (i) when and as required to
be made herein, payments of any amount of principal of any Loan or Acceptance or
(ii) within five days after the same becomes due, payment of any interest, fee
or any other amount payable hereunder or under any other Loan Document; or
(b) Representation or Warranty. Any representation or warranty by the
Borrower or any Restricted Subsidiary made or deemed made herein or in any other
Loan Document or which is contained in any certificate, document or financial or
other statement by the Borrower, any Restricted Subsidiary or any Responsible
Officer, furnished at any time under this Agreement or in or under any other
Loan Document, is incorrect in any material respect on or as of the date made or
deemed made; or
(c) Specific Defaults. The Borrower fails to perform or observe any
term, covenant or agreement contained in any of clause (a)(i) of Section 7.3 or
Sections 8.2 through 8.8 or Section 8 of the Pledge Agreement; or
(d) Other Defaults. The Borrower fails to perform or observe any term,
covenant or agreement contained in Section 8.1 and such default shall continue
unremedied for 10 days after the date upon which a Responsible Officer of the
Borrower has actual knowledge or receives written notice thereof; or the
Borrower or any other Obligor fails to perform or observe any other term or
covenant contained in this Agreement or any other Loan Document to which it is a
party, and such default shall continue unremedied for a period of 30 days after
the date upon which written notice
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thereof is received by the Borrower or such Obligor, as applicable, from the
Administrative Agent or the Majority Lenders; or
(e) Cross-Default. The Borrower or any of its Restricted Subsidiaries
(i) (A) fails to make any payment in respect of any Indebtedness (other than the
Obligations or Indebtedness described in clause (c) of Section 8.4) when due
(whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) and such failure continues after the applicable grace or notice
period, if any, specified in the relevant document on the date of such failure
or (B) fails to perform or observe any other condition or covenant, or (except
in the case of Indebtedness consisting of any Swap Contract) any other event
shall occur or condition exist, under any agreement or instrument relating to
any such Indebtedness, and such failure continues after the applicable grace or
notice period, if any, specified in the relevant document on the date of such
failure if the effect of such failure, event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, such Indebtedness
to be declared to be due and payable prior to its stated maturity, or, in the
case of Indebtedness consisting of Contingent Obligations, to become due and
payable and (ii) the aggregate amount of such Indebtedness, together with the
aggregate amount of all other Indebtedness in default for failure to make
payment or the maturity of which has been declared, or could be so declared, to
be so due and payable, equals or exceeds $20,000,000; or
(f) Insolvency; Voluntary Proceedings. The Borrower or any Material
Subsidiary (i) makes a general assignment for the benefit of creditors or
generally fails to pay, or admits in writing its inability to pay, its debts as
they become due, subject to applicable grace periods, if any, whether at stated
maturity or otherwise; (ii) is adjudicated insolvent or bankrupt, or any order
of relief or other order approving any such case or proceeding is entered; (iii)
commences any Insolvency Proceeding with respect to itself; or (iv) takes any
action to effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding
is commenced or filed against the Borrower or any Material Subsidiary, or any
writ, judgment, warrant of attachment, execution or similar process is issued or
levied against a substantial part of the Borrower's or any Material Subsidiary's
properties, and any such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process shall not be
released, vacated or fully bonded within 60 days after commencement, filing or
levy; (ii) the Borrower or any Material Subsidiary admits the material
allegations of a petition against it in any Insolvency Proceeding, or an order
for relief (or similar order under non-U.S. law) is ordered in any Insolvency
Proceeding; or (iii) the Borrower or any Material Subsidiary acquiesces in the
appointment of a receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar Person for itself or a substantial portion of its
property or business; or
(h) ERISA. An ERISA Event shall occur with respect to a Pension Plan or
Multiemployer Plan; or
(i) Judgments. One or more judgments, orders, decrees or arbitration
awards is entered against the Borrower or any of its Restricted Subsidiaries
involving in the aggregate a liability (to the
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extent not paid or covered by insurance provided by a carrier that has not
disputed coverage in writing) of $20,000,000 or more, and the same shall remain
unsatisfied, unvacated and unstayed pending appeal for a period of 60 days after
the entry thereof; or
(j) Change of Control. There occurs any Change of Control; or
(k) Collateral. Any material provision of the Pledge Agreement shall
for any reason (other than as a result of acts or omissions of the
Administrative Agent or any Lender) cease to create a valid security interest in
the collateral purported to be covered thereby or any material provision of the
Pledge Agreement or the Guaranty shall cease to be valid and binding on or
enforceable against the Borrower or any other Obligor party thereto, or the
Borrower or any other Obligor shall deny or disaffirm in writing its obligations
under the Pledge Agreement or the Guaranty.
9.2. Remedies. If any Event of Default occurs, the Administrative Agent
shall, at the request of, or may, with the consent of, the Majority Lenders:
(a) declare the commitment of each Lender to make Loans, any obligation
of the Swing Line Lender to make Swing Line Loans and any obligation of the
Fronting Lender to Issue Letters of Credit or create Acceptances to be
terminated, whereupon such commitments shall be terminated;
(b) (i) declare an amount equal to the sum of (x) the aggregate face
amount of all unmatured Acceptances and (y) the maximum aggregate amount that is
or at any time thereafter may become available for drawing under any outstanding
Letters of Credit (whether or not any beneficiary shall have presented, or shall
be entitled at such time to present, the drafts or other documents required to
draw under such Letters of Credit) to be immediately due and payable, the
Borrower being obligated to cash collateralize all such obligations immediately,
and/or (ii) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
all without presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by the Borrower; and/or
(c) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law; provided, however, that upon the occurrence of any event specified in
clause (f) or (g) of Section 9.1 with respect to the Borrower (in the case of
clause (g)(i), upon the expiration of the 60-day period mentioned therein), the
obligation of each Lender to make Loans and any obligation of the Fronting
Lender to Issue Letters of Credit or create Acceptances shall automatically
terminate and the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid and an amount equal to the sum of (x)
the aggregate face amount of all unmatured Acceptances and (y) the maximum
aggregate amount that is or at any time thereafter may become available for
drawing under any outstanding Letters of Credit (whether or not any beneficiary
shall have presented, or shall be entitled to present, the drafts or other
documents required to draw under such Letter of Credit) shall automatically
become immediately due and payable (the Borrower being automatically immediately
obligated to cash collateralize all such Obligations) without further act of the
Administrative Agent, the Fronting Lender or any Lender.
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9.3. Rights Not Exclusive. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
ARTICLE X
THE AGENTS
10.1. Appointment and Authorization; "Administrative Agent". (a) Each
Lender hereby irrevocably (subject to Section 10.9) appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Administrative Agent or any other
Agent have or be deemed to have any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent or any other Agent. Without
limiting the generality of the foregoing sentence, the use of the term "agent"
in this Agreement with reference to the Administrative Agent or any other Agent
is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law. Instead, such
term is used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting
parties.
(b) Each Revolving Lender hereby irrevocably (subject to Section 10.9)
appoints the Fronting Lender to act on behalf of the Revolving Lenders with
respect to any Letters of Credit Issued by it, any Acceptances created by it and
the documents associated therewith until such time and except for so long as the
Administrative Agent may agree at the request of the Majority Lenders to act for
such Fronting Lender with respect thereto; provided, however, that the Fronting
Lender shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Article X with respect to any acts taken or
omissions suffered by the Fronting Lender in connection with Letters of Credit
Issued by it or proposed to be Issued by it, Acceptances created by it or
proposed to be created by it and the application and agreements for letters of
credit pertaining to the Letters of Credit as fully as if the term
"Administrative Agent," as used in this Article X, included the Fronting Lender
with respect to such acts or omissions and (ii) as additionally provided in this
Agreement with respect to the Fronting Lender.
10.2. Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The
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Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects with reasonable care.
10.3. Limitation on Liability of Agents and Agent-Related Persons. None
of the Agents or Agent-Related Persons shall (a) be liable for any action taken
or omitted to be taken by any of them under or in connection with this Agreement
or any other Loan Document or the transactions contemplated hereby (except for
its own gross negligence or willful misconduct) or (b) be responsible in any
manner to any of the Lenders for any recital, statement, representation or
warranty made by the Borrower or any Subsidiary or Affiliate of the Borrower, or
any officer thereof, contained in this Agreement or in any other Loan Document,
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent or any other Agent
under or in connection with, this Agreement or any other Loan Document, or for
the value of or title to any collateral security, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of the Borrower or any other party
to any Loan Document to perform its obligations hereunder or thereunder. No
Agent or Agent-Related Person shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower or any
of the Borrower's Subsidiaries or Affiliates.
10.4. Reliance by Administrative Agent. (a) The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to the Borrower), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Majority Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Majority Lenders and such request and any action taken or failure
to act pursuant thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 5.1, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Administrative Agent to such Lender
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender.
10.5. Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account
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of the Lenders, unless the Administrative Agent shall have received written
notice from a Lender or the Borrower referring to this Agreement, describing
such Default or Event of Default and stating that such notice is a "notice of
default." The Administrative Agent will notify the Lenders of its receipt of any
such notice. The Administrative Agent shall, subject to the provisions of this
Article X, take such action with respect to such Default or Event of Default as
may be requested by the Majority Lenders in accordance with Article IX (other
than any such action which may conflict with applicable law); provided, however,
that unless and until the Administrative Agent has received any such request,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the Lenders
(except to the extent that this Agreement expressly requires that such action be
taken, or not be taken, only with the consent or upon the authorization of
Majority Lenders).
10.6. Credit Decision. Each Lender acknowledges that none of the Agents
or Agent-Related Persons has made any representation or warranty to it, and that
no act by the Agents hereinafter taken, including any review of the affairs of
the Borrower and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent or Agent-Related Person to any Lender.
Each Lender represents to each Agent that it has, independently and without
reliance upon any Agent or Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Borrower and its Subsidiaries, the
value of and title to any collateral security, and all applicable Lender
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Borrower
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent or Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower.
Except for notices, reports and other documents expressly herein required to be
furnished to the Lenders by the Agents, the Agents shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Borrower which may come into the possession
of any of the Agents or Agent-Related Persons.
10.7. Indemnification of Agents and Agent-Related Persons. Whether or
not the transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand the Agents and Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Borrower and without limiting the obligation
of the Borrower to do so), in accordance with its Total Percentage or, if
indemnification is sought after Commitments are terminated or expire, the Total
Percentages in effect immediately prior to such termination or expiration, or,
if indemnification or reimbursement is sought after Loans are paid in full, the
Total Percentages in effect immediately prior thereto from and against any and
all Indemnified Liabilities; provided, however, that no Lender shall be liable
for the payment to the Agents or Agent-Related Persons of any portion of such
Indemnified Liabilities resulting solely from such Person's gross negligence or
willful misconduct. Without limitation of the foregoing, each
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Lender shall reimburse the Agents upon demand for its ratable share, in
accordance with its Total Percentage or, if reimbursement is sought after the
commitments have terminated or expired, the Total Percentages in effect
immediately prior to such termination or expiration or, if indemnification or
reimbursement is sought after Loans are paid in full, the Total Percentages in
effect immediately prior thereto of any costs or out-of-pocket expenses
(including legal costs and expenses) incurred by the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive the payment of all Obligations
hereunder and the resignation or replacement of the Administrative Agent.
10.8. Agents in Individual Capacity. Each Agent-Related Person may make
loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Borrower and its
Subsidiaries and Affiliates as though the applicable Agent-Related Person were
not the Administrative Agent, Documentation Agent, Syndication Agent or Fronting
Lender hereunder or in connection herewith and without notice to or consent of
the Lenders. The Lenders acknowledge that, pursuant to such activities,
Agent-Related Persons may receive information regarding the Borrower or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of the Borrower or such Subsidiary) and acknowledge that
each such Agent-Related Person shall be under no obligation to provide such
information to them. With respect to its Loans, the applicable Agent-Related
Person shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not the Administrative Agent,
Documentation Agent, Syndication Agent or Fronting Lender, as the case may be,
and the terms "Lender" and "Lenders" include the applicable Agent-Related Person
in its individual capacity.
10.9. Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent resigns under this Agreement, the Majority Lenders shall
appoint from among the Lenders a successor agent for the Lenders which successor
agent shall be approved by the Borrower, which approval shall not be
unreasonably withheld. If no successor agent is appointed prior to the effective
date of the resignation of the Administrative Agent, the Administrative Agent
may appoint, after consulting with the Agents, the Lenders and the Borrower, a
successor agent from among the Lenders. Upon the acceptance of its appointment
as successor agent hereunder, such successor agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent and the term
"Administrative Agent" shall mean such successor agent and the retiring
Administrative Agent's appointment, powers and duties as Administrative Agent
shall be terminated. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article X and Sections
11.4 and 11.5 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement. If no
successor agent has accepted appointment as Administrative Agent by the date
which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the
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Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Majority Lenders appoint a successor agent as
provided for above.
10.10. Withholding Tax. (a) If any Lender claims exemption from, or
reduction of, withholding tax under a United States tax treaty by providing IRS
Form 1001 pursuant to clause (i) of Section 4.1(d) and such Lender sells,
assigns, grants a participation in or otherwise transfers all or part of the
Obligations of the Borrower to such Lender, such Lender agrees to notify the
Administrative Agent of the percentage amount in which it is no longer the
beneficial owner of Obligations of the Borrower to such Lender. To the extent of
such percentage amount, the Administrative Agent will treat such Lender's IRS
Form 1001 as no longer valid.
(b) If any Lender claiming exemption from United States withholding tax
by providing IRS Form 4224 to the Administrative Agent sells, assigns, grants a
participation in or otherwise transfers all or part of the Obligations of the
Borrower to such Lender, such Lender agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
(c) If any Lender is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest payment
to such Lender an amount equivalent to the applicable withholding tax after
taking into account such reduction. However, if the forms or other documentation
required by clause (i) of Section 4.1(d) are not delivered to the Administrative
Agent, then the Administrative Agent may withhold from any interest payment to
such Lender not providing such forms or other documentation an amount equivalent
to the applicable withholding tax imposed by Sections 1441 and 1442 of the Code,
without reduction.
(d) If the IRS or any other Governmental Authority of the United States
or other jurisdiction asserts a claim that the Administrative Agent did not
properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or was not properly executed, or
because such Lender failed to notify the Administrative Agent of a change in
circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason) such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or indirectly, by the
Administrative Agent as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, together with all costs and expenses
(including legal costs and expenses). The obligation of the Lenders under this
clause shall survive the payment of all Obligations and the resignation or
replacement of the Administrative Agent.
10.11. Collateral Matters. (a) The Administrative Agent is authorized
on behalf of all the Lenders, without the necessity of any notice to or further
consent from the Lenders, from time to time to take any action with respect to
any collateral security or the Pledge Agreements which may be necessary to
perfect and maintain perfected the security interest in and Liens upon the
collateral security granted pursuant to the Loan Documents.
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(b) The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion, to release (i) any security interest or Lien
granted to or held by the Administrative Agent upon any collateral security (A)
upon termination of the Commitments and Letters of Credit, the maturity of the
Acceptances and payment in full in cash of all principal of and interest on the
Loans, all fees payable pursuant to Sections 2.11 and 11.4, all Special Facility
Obligations (including interest thereon) and all other fees, costs and expenses
that are payable under this Agreement or under any other Loan Document and have
been invoiced (in which case the Lenders hereby authorize the Administrative
Agent to execute, and the Administrative Agent agrees to execute, reasonable
releases in connection with this Agreement (other than, in any event, as to
items stated to survive the termination of this Agreement)); (B) constituting
property sold or to be sold or disposed of as part of or in connection with any
disposition permitted hereunder; (C) constituting property in which the Borrower
or any Subsidiary of the Borrower owned no interest at the time the security
interest and/or Lien was granted or at any time thereafter; (D) consisting of an
instrument evidencing Indebtedness or other debt instrument, if the Indebtedness
evidenced thereby has been paid in full; or (E) if approved, authorized or
ratified in writing by the Majority Lenders or, if required by Section 11.1, the
Supermajority Lenders or each Lender, as applicable, and (ii) any Guarantor from
its obligations under the Guaranty in the event such Guarantor is not required
to be a Guarantor pursuant to the terms of this Agreement. Upon request by the
Administrative Agent at any time, the Lenders will confirm in writing the
Administrative Agent's authority to release particular types or items of
collateral security pursuant to this Section.
10.12. Copies, etc. The Administrative Agent shall give prompt notice
to each Lender of each notice of request required to be given to the
Administrative Agent by the Borrower pursuant to the terms of this Agreement
(unless concurrently delivered to the Lenders by the Borrower). The
Administrative Agent will distribute to each Lenders each document or instrument
received and copies of all other communications received by the Administrative
Agent in each case from the Borrower for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement.
ARTICLE XI
MISCELLANEOUS
11.1. Amendments and Waivers. No amendment or waiver of any provision
of this Agreement or any other Loan Document, and no consent with respect to any
departure by the Borrower therefrom, shall be effective unless the same shall be
in writing and signed by the Borrower and Majority Lenders and notified to the
Administrative Agent (or signed by the Borrower and the Administrative Agent at
the written request of Majority Lenders) and then any such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that, in addition:
(a) no such waiver, amendment or consent shall (i) forgive any
principal of any Loan or extend the final scheduled maturity date of any Loan
(it being understood that any waiver or
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amendment of any installment or prepayment or the method of application of any
prepayment to the amortization of the Obligations shall not constitute such an
extension), or forgive any interest or reduce the stated rate or extend the
scheduled time of payment of any interest or fee payable hereunder (other than
as a result of waiving the applicability of any post-default increase in
interest rates) or extend the final expiration date of any Lender's Commitments
or increase the aggregate amount of the Commitments of any Lender, in each case
without the consent of the Lender holding such Loan, to whom such interest or
fee is payable or having such Commitments, or (ii) amend, modify or waive any
provision of this Section 11.1 or reduce the percentages specified in the
definitions of the terms "Majority Lenders", "Majority Tranche A Term and
Revolving Lenders", "Majority Tranche B, C and D Term Lenders", "Supermajority
Tranche A Term and Revolving Lenders" or "Supermajority Tranche B, C and D Term
Lenders", or consent to the assignment or transfer by the Borrower of its rights
and obligations under any Loan Document to which it is a party, in each case
without the consent of each Lender directly and adversely affected thereby, or
(iii) change any Revolving Commitment to any other Commitment (other than a
Tranche A Term Commitment), change any Tranche A Term Commitment to any other
Commitment (other than a Revolving Commitment) or change any Tranche B Term
Commitment, Tranche C Term Commitment or Tranche D Term Commitment to any other
Commitment, in each case without the consent of each Lender directly and
adversely affected thereby, or (iv) decrease the relative proportion of any
mandatory prepayment to be received by the Lenders holding Tranche A Term Loans,
or extend any scheduled maturity date of any installment (other than the final
installment, as to which clause (a)(i) above is also applicable) of any Tranche
A Term Loans, without the consent of the Majority Tranche A Term and Revolving
Lenders, or (v) decrease the relative proportion of any mandatory prepayment to
be received by the Lenders holding Tranche B Term Loans, Tranche C Term Loans or
Tranche D Term Loans, or extend any scheduled maturity date of any installment
(other than the final installment, as to which clause (a)(i) above is also
applicable) of any Tranche B Term Loans, Tranche C Term Loans or Tranche D Term
Loans, in each case without the consent of the Majority Tranche B, C and D Term
Lenders, or (vi) release all or substantially all the collateral security
provided under the Loan Documents without the consent of (A) the Supermajority
Tranche A Term and Revolving Lenders and (B) the Supermajority Tranche B, C and
D Term Lenders;
(b) no amendment, waiver or consent shall, unless in writing and signed
by the Fronting Lender (in addition to the Lenders required under this Section
to sign such amendment, waiver or consent), adversely affect the rights or
duties of the Fronting Lender under this Agreement, any Letter of Credit, any
Acceptance or any other document relating to any Letter of Credit Issued or to
be Issued by it or any Acceptance created or to be created by it;
(c) no amendment, waiver or consent shall, unless in writing and signed
by the Administrative Agent (in addition to the Lenders required under this
Section to sign such amendment, waiver or consent), adversely affect the rights
or duties of the Administrative Agent under this Agreement or any other Loan
Document; and
(d) the Fee Letter may not be amended, nor may the rights or privileges
thereunder be waived, except in a writing executed by the parties thereto.
97
11.2. Notices. (a) Except to the extent otherwise expressly provided
herein, all notices, requests, consents, approvals, waivers and other
communications shall be in writing (including, unless the context expressly
otherwise provides, by facsimile transmission, provided that any matter
transmitted to or by the Borrower by facsimile (i) shall be immediately
confirmed by a telephone call to the recipient at the number specified on
Schedule 11.2 and (ii) shall be followed promptly by delivery of a hard copy
original thereof) and mailed, faxed or delivered to the address or facsimile
number specified for notices on Schedule 11.2; or, as directed to the Borrower
or the Administrative Agent, to such other address as shall be designated by
such party in a written notice to the other parties, and as directed to any
other party, at such other address as shall be designated by such party in a
written notice to the Borrower and the Administrative Agent.
(b) All such notices, requests and communications shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, except that notices pursuant to Articles II, III or Article X to the
Administrative Agent shall not be effective until actually received by the
Administrative Agent, and notices pursuant to Article III to the Fronting Lender
shall not be effective until actually received by the Fronting Lender at the
address specified for the "Fronting Lender" on Schedule 11.2.
(c) Any agreement of the Administrative Agent and the Lenders herein to
receive certain notices by telephone or facsimile is solely for the convenience
and at the request of the Borrower. The Administrative Agent and the Lenders
shall be entitled to rely on the authority of any Person purporting to be a
Person authorized by the Borrower to give such notice and the Administrative
Agent and the Lenders shall not have any liability to the Borrower or any other
Person on account of any action taken or not taken by the Administrative Agent
or the Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Borrower to repay the Loans and Special Facility Obligations
shall not be affected in any way or to any extent by any failure by the
Administrative Agent and the Lenders to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Administrative Agent and
the Lenders of a confirmation which is at variance with the terms understood by
the Administrative Agent and the Lenders to be contained in the telephonic or
facsimile notice.
11.3. No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. All remedies provided
in this Agreement are cumulative, and not exclusive of other remedies, at law or
otherwise.
11.4. Costs and Expenses. The Borrower shall:
(a) pay or reimburse each Agent, the Swing Line Lender and the Fronting
Lender, as the case may be (subject to clause (e) of Section 5.1) promptly for
all reasonable and documented costs and expenses incurred by such Person in
connection with the development, preparation, delivery, execution and closing
of, and all reasonable and documented costs and expenses incurred by such Person
in
98
connection with the administration and any amendment, supplement, waiver or
smodification to (in each case, whether or not consummated), this Agreement, any
Loan Document and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby and
thereby, including the reasonable and documented fees, costs and expenses of
outside counsel incurred by such Person with respect thereto; and
(b) pay or reimburse each Agent and each Lender promptly for all
reasonable and documented costs and expenses, including reasonable and
documented legal fees, costs and expenses, incurred by them in connection with
the enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or any other Loan Document during the existence of
an Event of Default or after acceleration of the Loans (including in connection
with any "workout" or restructuring regarding the Loans, and including in any
Insolvency Proceeding or appellate proceeding).
11.5. Borrower Indemnification. (a) Whether or not the transactions
contemplated hereby are consummated, the Borrower shall indemnify, defend and
hold each Agent, each Agent-Related Person, each Lender and each of their
respective officers, directors, trustees, employees and agents (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including reasonable and documented legal
fees, costs and expenses) of any kind or nature whatsoever which may at any time
(including at any time following repayment of the Loans, the termination of the
Letters of Credit, the maturity of the Acceptances and the termination,
resignation or replacement of the Administrative Agent or replacement of any
Lender) be imposed on, incurred by or asserted against any such Person in any
way relating to or arising out of this Agreement or any document contemplated by
or referred to herein, or the transactions contemplated hereby, or any action
taken or omitted by any such Person under or in connection with any of the
foregoing, including with respect to any investigation, litigation or proceeding
(including any Insolvency Proceeding or appellate proceeding) related to or
arising out of this Agreement or the Loans, Letters of Credit, the Acceptances
or the use of the proceeds thereof, whether or not the Borrower or any Affiliate
of the Borrower or any Indemnified Person is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided that the Borrower shall
have no obligation hereunder to any Indemnified Person with respect to
Indemnified Liabilities resulting from the gross negligence or willful
misconduct of such Indemnified Person or disputes among the Administrative
Agent, the Lenders and/or their transferees. The agreements in this Section
shall survive payment of all other Obligations.
(b) Survival. The obligations in this Section shall survive payment of
all other Obligations.
11.6. Marshalling; Payments Set Aside. Neither the Administrative Agent
nor the Lenders shall be under any obligation to xxxxxxxx any assets in favor of
the Borrower or any other Person or against or in payment of any or all of the
Obligations. To the extent that the Borrower makes a payment to the
Administrative Agent or the Lenders, or the Administrative Agent or the Lenders
exercise their right of set-off, and such payment or the proceeds of such
set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Administrative Agent or such
Lender in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any Insolvency Proceeding or
99
otherwise, then (a) to the extent of such recovery the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such set-off had
not occurred and (b) each Lender severally agrees to pay to the Administrative
Agent upon demand its Pro Rata Share of any amount so recovered from or repaid
by the Administrative Agent.
11.7. Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
permitted successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
11.8. Assignments, Participations, etc. (a) Any Lender may, with the
prior written consent of the Borrower and the Administrative Agent and, in the
case of Revolving Commitments and Special Facility Obligations, the Fronting
Lender, which consents shall not be unreasonably withheld, at any time assign
and delegate to one or more Eligible Assignees (provided that no consent of the
Borrower shall be required in connection with any assignment and delegation by a
Lender to an Eligible Assignee that is an Affiliate of such Lender) all or any
part of the Revolving Loans, the Tranche A Term Loans, the Tranche B Term Loans,
the Tranche C Term Loans, the Tranche D Term Loans, the Revolving Commitments
and the Special Facility Obligations and the other rights and obligations of
such Lender hereunder, in a minimum amount of the lesser of $5,000,000 (or such
lesser amount as may be agreed to by the Borrower and the Administrative Agent
in their sole and absolute discretion) and the full remaining amount of such
Lender's Revolving Loans, Tranche A Term Loans, Trance B Term Loans, Tranche C
Term Loans, Tranche D Term Loans, Revolving Commitments or Special Facility
Obligations (except that no such minimum shall be applicable on an assignment to
a Lender or an Affiliate of a Lender); provided, however, that the Borrower and
the Administrative Agent may continue to deal solely and directly with such
Lender in connection with the interest so assigned to an Eligible Assignee until
(i) written notice of such assignment, together with payment instructions,
addresses and related information with respect to the Eligible Assignee, shall
have been given to the Borrower and the Administrative Agent by such Lender and
the Eligible Assignee; (ii) such Lender and its Eligible Assignee shall have
delivered to the Borrower and the Administrative Agent an Assignment and
Acceptance substantially in the form of Exhibit J ("Assignment and Acceptance")
together with any Note or Notes subject to such assignment and (iii) the
assignor Lender or Eligible Assignee has paid to the Administrative Agent a
registration and processing fee in the amount of $3,000.
(b) Upon the request of the Eligible Assignee, solely to facilitate the
pledge or assignment of its Loans to any Federal Reserve Bank, the Borrower
shall issue Notes to the Eligible Assignee. Upon the request of the assignor
Lender, if applicable, solely to facilitate the pledge or assignment of its
Loans to any Federal Reserve Bank, the Borrower shall issue a reduced Note to
such assignor in exchange and replacement for its then existing Note.
(c) The Administrative Agent, on behalf of the Borrower, shall maintain
at the address of the Administrative Agent specified on Schedule 11.2 (or at
such other address as may be designated by the Administrative Agent from time to
time in accordance with Section 11.2) a copy of each
100
Assignment and Acceptance delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Lenders and the Commitment of
and principal amount of the Loans owing to each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Administrative Agent and the Lenders shall treat each
Person whose name is recorded in the Register as the owner of a Loan or other
obligation hereunder as the owner thereof for all purposes of this Agreement and
the other Loan Documents, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation hereunder shall be effective only
upon appropriate entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Eligible Assignee (and consented to by the
Administrative Agent and, in the case of Revolving Commitments and Special
Facility Obligations, by the Fronting Lender and, in the case of an Eligible
Assignee that is not an Affiliate of the assigning Lender, by the Borrower (in
each case such consent not to be unreasonably withheld)) together with payment
to the Administrative Agent of the registration and processing fee described in
clause (a)(iii), the Administrative Agent shall record the information contained
therein in the Register and give notice of such acceptance and recordation to
the Lenders and the Borrower. Immediately upon the recordation of such
information in the Register, this Agreement shall be deemed to be amended to the
extent, but only to the extent, necessary to reflect the addition of the
Assignee and the resulting adjustment of the Commitments arising therefrom, and
(i) the Eligible Assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a Lender
under the Loan Documents and (ii) the assignor Lender shall, to the extent that
rights and obligations hereunder and under the other Loan Documents have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Loan Documents. The Commitment
allocated to each Assignee shall reduce such Commitments of the assigning Lender
pro tanto.
(e) Any Lender may at any time sell to one or more commercial Lenders
or other Persons not Affiliates of the Borrower (a "Participant") participating
interests in any Loans, the Commitment of that Lender and the other interests of
that Lender (the "Originating Lender") hereunder and under the other Loan
Documents; provided, however, that (i) the Originating Lender's obligations
under this Agreement shall remain unchanged, (ii) the Originating Lender shall
remain solely responsible for the performance of such obligations, (iii) the
Borrower, the Fronting Lender and the Administrative Agent shall continue to
deal solely and directly with the Originating Lender in connection with the
Originating Lender's rights and obligations under this Agreement and the other
Loan Documents and (iv) no Lender shall transfer or grant any participating
interest under which the Participant has rights to approve any amendment to, or
any consent or waiver with respect to, this Agreement or any other Loan
Document, except to the extent such amendment, consent or waiver would require
the consent of the Originating Lender as an affected Lender as described in
clause (a)(i) of Section 11.1. In the case of any such participation, the
Participant shall be entitled to the benefit of Sections 4.1, 4.3 and 11.5 as
though it were also a Lender hereunder, but shall not be entitled to any greater
amount than would be payable to the original Lender if no participation had been
made and if amounts outstanding under
101
this Agreement are due and unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement.
(f) Subject to Section 11.9, the Borrower authorizes each Lender to
disclose to any Eligible Assignee or Participant (each, a "Transferee") and any
prospective Transferee any and all financial information in such Lender's
possession concerning the Borrower and its Affiliates that has been delivered to
such Lender by or on behalf of the Borrower in connection with such Lender's
credit evaluation of the Borrower and its Affiliates prior to such Transferee or
prospective Transferee becoming a party to this Agreement; provided, however,
that neither the Administrative Agent nor any Lender shall provide to any
Transferee or prospective Transferee any of the Confidential Information unless
such person shall have previously executed a confidentiality agreement
containing substantially similar terms to the terms specified in Section 11.9.
(g) Notwithstanding any other provision in this Agreement, any Lender
may at any time create a security interest in, or pledge, all or any portion of
its rights under and interest in this Agreement and the Note held by it in favor
of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S.
Treasury Regulation 31 CFR ss.203.14, or any successor thereto, and such Federal
Reserve Bank may enforce such pledge or security interest in any manner
permitted under applicable law.
11.9. Confidentiality. Each Lender agrees to maintain, in accordance
with its customary procedures for handling confidential information, the
confidentiality of all information provided to it by or on behalf of the
Borrower or any Subsidiary, or by the Administrative Agent on the Borrower's or
such Subsidiary's behalf, under this Agreement or any other Loan Document
("Confidential Information"), and neither it nor any of its Affiliates shall use
any such information other than in connection with or in enforcement of this
Agreement and the other Loan Documents or in connection with other business now
or hereafter existing or contemplated with the Borrower or any Subsidiary,
except to the extent such information (i) was or becomes generally available to
the public other than as a result of disclosure by the Lender or (ii) was or
becomes available on a non-confidential basis from a source other than the
Borrower, provided that such source is not bound by a confidentiality agreement
with the Borrower known to the Lender; provided, however, that any Lender may
disclose such information (A) at the request or pursuant to any requirement of
any Governmental Authority to which the Lender is subject or in connection with
an examination of such Lender by any such Authority; (B) pursuant to subpoena or
other court process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which the
Administrative Agent, any Lender or their respective Affiliates may be party;
(E) to the extent reasonably required in connection with the exercise of any
remedy hereunder or under any other Loan Document; (F) to such Lender's
independent auditors and other professional advisors who have been advised that
such information is confidential pursuant to this Section 11.9; (G) to any
Participant or Assignee, actual or potential, provided that such Person shall
have agreed in writing to keep such information confidential to the
102
same extent required of the Lenders hereunder; and (H) to its Affiliates who
have been advised that such information is confidential pursuant to this Section
11.9. Unless prohibited by applicable law or court order, each Lender and the
Administrative Agent shall notify the Borrower of any request by any
Governmental Authority (other than any request in connection with an examination
of the financial condition of such Lender) for disclosure of Confidential
Information prior to such disclosure; provided that in no event shall the
Administrative Agent or any Lender be obligated to return any materials
furnished by the Borrower or any of its Subsidiaries. This Section shall
supersede any confidentiality letter or agreement with respect to the Borrower
or the Facilities entered into prior to the date hereof.
11.10. Set-off. In addition to any rights and remedies of the Lenders
provided by law, if an Event of Default exists or the Loans have been
accelerated, each Lender is authorized at any time and from time to time,
without prior notice to the Borrower, any such notice being waived by the
Borrower to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held by, and other indebtedness, credits or claims (in each case, in any
currency and whether direct or indirect, absolute or contingent, matured or
unmatured) at any time owing by such Lender (or any branch or agency thereof) to
or for the credit or the account of the Borrower against any and all Obligations
then due and payable by the Borrower hereunder (whether at the stated maturity,
by acceleration or otherwise). Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and application
made by such Lender; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application.
11.11. Notification of Addresses, Lending Offices, etc. Each Lender
shall notify the Administrative Agent in writing of any changes in the address
to which notices to the Lender should be directed, of addresses of any Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
11.12. Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
11.13. Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
11.14. No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Borrower, the Lenders,
each Agent and the Agent-Related Persons, and their permitted successors and
assigns, and no other Person shall be a direct or indirect legal beneficiary of,
or have any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents.
103
11.15. Governing Law and Jurisdiction. (a) THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
LOCATED IN THE COUNTY OF NEW YORK OF THE XXXXX XX XXX XXXX XX XX XXX XXXXXX
XXXXXX FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF THE BORROWER, THE AGENTS AND THE LENDERS CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH OF THE BORROWER, THE AGENTS AND THE LENDERS IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE BORROWER, THE AGENTS AND THE
LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
11.16. Waiver of Jury Trial. THE BORROWER, THE LENDERS AND THE AGENTS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL
BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN. THE BORROWER ACKNOWLEDGES
AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION (AND EACH OTHER PROVISION OF THIS AGREEMENT AND EACH OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENTS AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH
SUCH OTHER LOAN DOCUMENT.
11.17. Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Borrower,
the Lenders and the Agents, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
104
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
E&S HOLDINGS CORPORATION, as the
Borrower
By /s/ W. Xxxxxxx Xxxxxxx
-----------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Treasurer and Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXXX XXXXX CAPITAL
CORPORATION, as Documentation Agent
By /s/ E. T. Xxxxx
-----------------------------------
Name: E. T. Xxxxx
Title: Vice President
NATIONSBANK, N.A. (SOUTH), as
Syndication Agent
By /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
105
Co-Agents:
THE BANK OF NOVA SCOTIA
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Relationship Manager
BANKERS TRUST COMPANY
By /s/ Xxxxxx X. Teleseca
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
CITIBANK, N.A.
By /s/ Xxxxxx X. Xx
-----------------------------------
Name: Xxxxxx X. Xx
Title: Attorney-in-Fact
FLEET NATIONAL BANK
By /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
SOCIETE GENERALE
By /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: First Vice President
106
XXXXX FARGO BANK, N.A.
By /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
Lead Managers:
--------------
CIBC, INC.
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Signatory
ROYAL BANK OF CANADA
By /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Manager
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By /s/ X. X. Xxxxxxx
-----------------------------------
Name: X. X. Xxxxxxx
Title: Vice President
107
THE FUJI BANK, LIMITED
NEW YORK BRANCH
By /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President & Manager
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By /s/ Xxxxx Xxx
-----------------------------------
Name: Xx. Xxxxx Xxx
Title: Senior Vice President &
Senior Manager
LTCB TRUST COMPANY
By /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
Lenders:
--------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXXX XXXXX CAPITAL
CORPORATION
108
By /s/ E. T. Xxxxx
-----------------------------------
Name: E. T. Xxxxx
Title: Vice President
NATIONSBANK, N.A. (SOUTH)
By /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Relationship Manager
BANKERS TRUST COMPANY
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
CITIBANK, N.A.
By /s/ Xxxxxx X. Xx
-----------------------------------
Name: Xxxxxx X. Xx
Title: Attorney-in-Fact
FLEET NATIONAL BANK
109
By /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
SOCIETE GENERALE
By /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: First Vice President
XXXXX FARGO BANK, N.A.
By /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
CIBC, INC.
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Signatory
ROYAL BANK OF CANADA
By /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Manager
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
110
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Director
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By /s/ X. X. Xxxxxxx
-----------------------------------
Name: X. X. Xxxxxxx
Title: Vice President
THE FUJI BANK, LIMITED
NEW YORK BRANCH
By /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President & Manager
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By /s/ Xxxxx Xxx
-----------------------------------
Name: Xx. Xxxxx Xxx
Title: Senior Vice President &
Senior Manager
LTCB TRUST COMPANY
By /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
111
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
OAK HILL SECURITIES FUND, L.P.
By Oak Hill Securities GenPar, L.P.,
its General Partner
By Oak Hill Securities MGP, Inc.,
its General Partner
By /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Vice President
PRIME INCOME TRUST
By /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: V.P. Portfolio Manager
PROTECTIVE LIFE INSURANCE
COMPANY
By /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: President Protective
Asset Management, L.L.C.
112
ABN AMRO BANK N.V.
By /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
By /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
BANK OF TOKYO -- MITSUBISHI TRUST
COMPANY
By /s/ X. X. XxXxxxxxxx
-----------------------------------
Name: X. X. XxXxxxxxxx
Title: Assistant Vice President
BANQUE PARIBAS
By /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Vice President
By /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
Title: Vice President
BAYBANK, N.A.
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
113
BHF-BANK AKTIENGESELLSCHAFT
By /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
By /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
CAISSE NATIONALE DE CREDIT
AGRICOLE
By /s/ Xxxxx Xxxxx, F.V.P.
-----------------------------------
Name: Xxxxx Xxxxx, F.V.P.
Title: Head of Corporate Banking
Chicago
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By /s/ Xxxxx X'Xxxxx
-----------------------------------
Name: Xxxxx X'Xxxxx
Title: Vice President
By /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: First Vice President
CREDIT LYONNAIS ATLANTA AGENCY
By /s/ Xxxxx X. Xxxxxx
-----------------------------------
114
Name: Xxxxx X. Xxxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Xxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Senior Vice President
THE DAI-ICHI KANGYO BANK, LTD.
By /s/ Xxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
DLJ CAPITAL FUNDING, INC.
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
XXXXXXX XXXXX CREDIT PARTNERS
L.P.
By /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
XXXXXX COMMERCIAL PAPER INC.
By /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
115
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
NATIONAL CITY BANK
By /s/ Xxxxxxx X. Lathe
-----------------------------------
Name: Xxxxxxx X. Lathe
Title: Senior Vice President
THE NIPPON CREDIT BANK, LTD.
By /s/ Xxxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Senior Manager
THE SAKURA BANK, LIMITED
ATLANTA AGENCY
By /s/ Xxxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: V.P. & Senior Manager
STATE STREET BANK AND TRUST
COMPANY
By /s/ Xxxx X. Xxxx
-----------------------------------
116
Name: Xxxx X. Xxxx
Title: Vice President
ALLSTATE LIFE INSURANCE COMPANY
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Signatory
By /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Authorized Signatory
INDOSUEZ CAPITAL ASSET ADVISORS,
INC.
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
By /s/ Xxxx X. Xxxx
-----------------------------------
Name: Xxxx X. Xxxx
Title: President
ING CAPITAL ADVISORS, INC., as Agent
for Bank Syndication Account
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President & Portfolio
Manager
PILGRIM AMERICA PRIME RATE TRUST
By /s/ Xxxxxx Tiffen
-----------------------------------
Name: Xxxxxx Tiffen
117
Title: Senior Vice President
PPM AMERICA, INC., as attorney in fact,
on behalf of Xxxxxxx National Life
Insurance Company
By /s/ Xxxxxxx DiRe
-----------------------------------
Name: Xxxxxxx DiRe
Title: Vice President/Head
High Yield Bank Loans
CHL HIGH YIELD LOAN PORTFOLIO (a
unit of Chase Manhattan Bank)
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
