EXHIBIT 10.1
REDACTED
CONFIDENTIAL TREATMENT REQUESTED
THE ASTERISKED PORTION OF THIS DOCUMENT HAS BEEN OMITTED
AND IS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFORMED COPY
================================================================================
$210,000,000
CREDIT AGREEMENT
AMONG
XXXXXXX ENTERPRISES, INC.,
AS BORROWER
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
XXXXXX BROTHERS INC.,
AS SOLE LEAD ARRANGER
XXXXXX COMMERCIAL PAPER INC.,
AS ADMINISTRATIVE AGENT
BANK OF MONTREAL
AND
GENERAL ELECTRIC CAPITAL CORPORATION,
AS SYNDICATION AGENTS AND AS CO-ARRANGERS
AND
XXXXXXX XXXXX CAPITAL
AND
XXXXX FARGO FOOTHILL, INC.,
AS DOCUMENTATION AGENTS
DATED AS OF OCTOBER 22, 2003
================================================================================
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS........................................................................................... 1
1.1 Defined Terms....................................................................................... 1
1.2 Other Definitional Provisions....................................................................... 26
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS....................................................................... 27
2.1 Term Loan Commitments............................................................................... 27
2.2 Procedure for Term Loan Borrowing................................................................... 27
2.3 Repayment of Term Loans............................................................................. 27
2.4 Revolving Credit Commitments........................................................................ 28
2.5 Procedure for Revolving Credit Borrowing............................................................ 28
2.6 Repayment of Loans; Evidence of Debt................................................................ 29
2.7 Commitment Fees, etc................................................................................ 30
2.8 Termination or Reduction of Revolving Credit Commitments............................................ 30
2.9 Optional Prepayments................................................................................ 30
2.10 Mandatory Prepayments............................................................................... 30
2.11 Conversion and Continuation Options................................................................. 32
2.12 Minimum Amounts and Maximum Number of Eurodollar Tranches........................................... 32
2.13 Interest Rates and Payment Dates.................................................................... 32
2.14 Computation of Interest and Fees.................................................................... 33
2.15 Inability to Determine Interest Rate................................................................ 33
2.16 Pro Rata Treatment and Payments..................................................................... 34
2.17 Requirements of Law................................................................................. 36
2.18 Taxes............................................................................................... 37
2.19 Indemnity........................................................................................... 39
2.20 Illegality.......................................................................................... 39
2.21 Change of Lending Office............................................................................ 40
2.22 Optional Increase of Revolving Credit Facility...................................................... 40
SECTION 3. LETTERS OF CREDIT..................................................................................... 42
3.1 L/C Commitment...................................................................................... 42
3.2 Procedure for Issuance of Letter of Credit.......................................................... 43
3.3 Fees and Other Charges.............................................................................. 43
3.4 L/C Participations.................................................................................. 43
3.5 Reimbursement Obligation of the Borrower............................................................ 44
3.6 Obligations Absolute................................................................................ 45
3.7 Letter of Credit Payments........................................................................... 45
3.8 Applications........................................................................................ 45
SECTION 4. REPRESENTATIONS AND WARRANTIES........................................................................ 46
4.1 Financial Condition................................................................................. 46
4.2 No Change........................................................................................... 46
4.3 Corporate Existence; Compliance with Law............................................................ 46
4.4 Corporate Power; Authorization; Enforceable Obligations............................................. 47
4.5 No Legal Bar........................................................................................ 47
i
4.6 No Material Adverse Litigation...................................................................... 47
4.7 No Default.......................................................................................... 48
4.8 Ownership of Property; Liens........................................................................ 48
4.9 Intellectual Property............................................................................... 48
4.10 Taxes............................................................................................... 48
4.11 Federal Regulations................................................................................. 48
4.12 Labor Matters....................................................................................... 48
4.13 ERISA............................................................................................... 49
4.14 Investment Company Act; Other Regulations........................................................... 49
4.15 Subsidiaries........................................................................................ 49
4.16 Use of Proceeds..................................................................................... 49
4.17 Environmental Matters............................................................................... 49
4.18 Accuracy of Information, etc........................................................................ 51
4.19 Security Documents.................................................................................. 51
4.20 Solvency............................................................................................ 52
4.21 Senior Indebtedness................................................................................. 52
4.22 Regulation H........................................................................................ 52
4.23 Compliance With Health Care Laws.................................................................... 53
4.24 HIPAA Compliance.................................................................................... 53
4.25 Reimbursement From Third Party Payors............................................................... 54
4.26 Fraud and Abuse..................................................................................... 54
SECTION 5. CONDITIONS PRECEDENT.................................................................................. 54
5.1 Conditions to Initial Extension of Credit........................................................... 54
5.2 Conditions to Each Extension of Credit.............................................................. 58
SECTION 6. AFFIRMATIVE COVENANTS................................................................................. 59
6.1 Financial Statements................................................................................ 59
6.2 Certificates; Other Information..................................................................... 59
6.3 Payment of Obligations.............................................................................. 60
6.4 Conduct of Business and Maintenance of Existence, etc............................................... 61
6.5 Maintenance of Property; Insurance.................................................................. 61
6.6 Inspection of Property; Books and Records; Discussions.............................................. 61
6.7 Notices............................................................................................. 61
6.8 Environmental Laws.................................................................................. 62
6.9 Additional Collateral, etc.......................................................................... 63
6.10 Further Assurances.................................................................................. 65
6.11 Redemption of 2006 Senior Notes..................................................................... 65
SECTION 7. NEGATIVE COVENANTS.................................................................................... 65
7.1 Financial Condition Covenants....................................................................... 65
7.2 Limitation on Indebtedness.......................................................................... 66
7.3 Limitation on Liens................................................................................. 68
7.4 Limitation on Fundamental Changes................................................................... 70
7.5 Limitation on Disposition of Property............................................................... 70
7.6 Limitation on Restricted Payments................................................................... 72
7.7 Limitation on Capital Expenditures.................................................................. 73
7.8 Limitation on Investments........................................................................... 73
ii
7.9 Limitation on Optional Payments and Modifications of Debt Instruments, etc.......................... 75
7.10 Limitation on Transactions with Affiliates.......................................................... 75
7.11 Limitation on Sales and Leasebacks.................................................................. 75
7.12 Limitation on Changes in Fiscal Periods............................................................. 76
7.13 Limitation on Negative Pledge Clauses............................................................... 76
7.14 Limitation on Restrictions on Subsidiary Distributions.............................................. 76
7.15 Limitation on Lines of Business..................................................................... 76
7.16 Limitation on Amendments to Escrow Agreement........................................................ 76
7.17 Limitation on Hedge Agreements...................................................................... 76
SECTION 8. EVENTS OF DEFAULT..................................................................................... 76
SECTION 9. THE AGENTS............................................................................................ 80
9.1 Appointment......................................................................................... 80
9.2 Delegation of Duties................................................................................ 80
9.3 Exculpatory Provisions.............................................................................. 80
9.4 Reliance by Agents.................................................................................. 80
9.5 Notice of Default................................................................................... 81
9.6 Non-Reliance on Agents and Other Lenders............................................................ 81
9.7 Indemnification..................................................................................... 82
9.8 Agent in Its Individual Capacity.................................................................... 82
9.9 Successor Administrative Agent...................................................................... 82
9.10 Authorization to Release Liens and Guarantees....................................................... 83
9.11 The Arranger; Co-Arrangers; Syndication Agents; Documentation Agents................................ 83
SECTION 10. MISCELLANEOUS........................................................................................ 83
10.1 Amendments and Waivers.............................................................................. 83
10.2 Notices............................................................................................. 86
10.3 No Waiver; Cumulative Remedies...................................................................... 86
10.4 Survival of Representations and Warranties.......................................................... 87
10.5 Payment of Expenses................................................................................. 87
10.6 Successors and Assigns; Participations and Assignments.............................................. 88
10.7 Adjustments; Set-off................................................................................ 91
10.8 Counterparts........................................................................................ 92
10.9 Severability........................................................................................ 92
10.10 Integration......................................................................................... 93
10.11 GOVERNING LAW....................................................................................... 93
10.12 Submission To Jurisdiction; Waivers................................................................. 93
10.13 Acknowledgments..................................................................................... 93
10.14 Confidentiality..................................................................................... 94
10.15 Release of Collateral and Guarantee Obligations..................................................... 94
10.16 Priority of Mortgages............................................................................... 96
10.17 Delivery of Lender Addenda.......................................................................... 96
10.18 Senior Debt......................................................................................... 96
10.19 WAIVERS OF JURY TRIAL............................................................................... 96
iii
ANNEX:
A Pricing Grid
SCHEDULES:
1.1 Mortgaged Property
4.1 Completed Asset Dispositions
4.4 Consents, Authorizations, Filings and Notices
4.15 Subsidiaries
4.19(a) UCC Filing Jurisdictions
4.19(b) Mortgage Filing Jurisdictions
5.1(p) Local Counsel Jurisdictions
7.2(d) Existing Indebtedness
7.5(f) Phase I Assets
7.5(n) Non-Operating Asset Dispositions
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D-1 Form of First Lien Revolving Credit Loan Mortgage
D-2 Form of Second Lien Revolving Credit Loan Mortgage
D-3 Form of Term Loan Mortgage
E Form of Assignment and Acceptance
F-1 Form of Legal Opinion of Weil, Gotshal & Xxxxxx LLP
F-2 Form of Legal Opinion of Xxxx Xxxxx, Esq.
G-1 Form of Term Note
G-2 Form of Revolving Credit Note
H Form of Borrowing Notice
I Form of Exemption Certificate
J Form of Lender Addendum
CREDIT AGREEMENT, dated as of October 22, 2003, among XXXXXXX
ENTERPRISES, INC., a Delaware corporation (the "Borrower"), the several banks
and other financial institutions or entities from time to time parties to this
Agreement (the "Lenders"), XXXXXX BROTHERS INC., as advisor, sole lead arranger
and sole bookrunner (in such capacity, the "Arranger"), XXXXXX COMMERCIAL PAPER
INC., as administrative agent (in such capacity, the "Administrative Agent"),
BANK OF MONTREAL and GENERAL ELECTRIC CAPITAL CORPORATION, as syndication agents
(collectively, in such capacity, the "Syndication Agents") and as co-arrangers
(collectively, in such capacity, the "Co-Arrangers"), and XXXXXXX XXXXX CAPITAL
and XXXXX FARGO FOOTHILL, INC., as documentation agents (collectively, in such
capacity, the "Documentation Agents").
W I T N E S S E T H:
WHEREAS, the Borrower intends (a) to refinance and replace its existing
senior credit facility under which JPMorgan Chase Bank is administrative agent,
(b) to refinance the Borrower's 9% Senior Notes due 2006 and (c) to refinance
approximately $49,600,000 of other existing indebtedness (the refinancing
described in the foregoing clauses (a), (b) and (c), collectively, the
"Refinancing");
WHEREAS, to provide funding for the Refinancing and related fees and
expenses, and to provide financing for the working capital and general corporate
purposes of the Borrower and its subsidiaries after the Refinancing, the
Borrower (a) expects to issue and sell $115,000,000 aggregate principal amount
of its convertible subordinated notes due 2033 and (b) has requested that the
Lenders make available senior secured credit facilities in an aggregate amount
of up to $210,000,000; and
WHEREAS, the Lenders are willing to make such credit facilities
available upon and subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in
this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"Additional Letter of Credit Facility": a letter of credit facility in
the amount of up to $40,000,000, to be provided by Bank of Montreal (and/or its
affiliates), which facility may be secured by a security interest in
receivables, in an amount not greater than 150% of the aggregate face amount of
the Additional Letter of Credit Facility, of the same type as the receivables
that secure the Xxxxxxx Funding Facility on the Closing Date (it being
understood and agreed that the Xxxxxxx Funding Facility will become and be
incorporated into, and be replaced by, the Additional Letter of Credit Facility
when it becomes available).
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": as defined in the preamble hereto.
2
"Affiliate": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agents": the collective reference to the Documentation Agents,
Syndication Agents and the Administrative Agent.
"Aggregate Exposure": with respect to any Lender at any time, an amount
equal to (a) until the Closing Date, the aggregate amount of such Lender's
Commitments at such time and (b) thereafter, the sum of (i) the aggregate then
unpaid principal amount of such Lender's Term Loans and (ii) the amount of such
Lender's Revolving Credit Commitment then in effect or, if the Revolving Credit
Commitments have been terminated, the amount of such Lender's Revolving
Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender's Aggregate Exposure
at such time to the sum of the Aggregate Exposures of all Lenders at such time.
"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Applicable Margin": for each Type of Loan under each Facility, the
rate per annum set forth opposite such Facility under the relevant column
heading below:
Base Rate Eurodollar
Loans Loans
--------- ----------
Revolving Credit Facility 2.25% 3.25%
Term Loan Facility 2.25% 3.25%
provided that on and after the first Adjustment Date occurring after the
completion of the fiscal quarter of the Borrower ending March 31, 2004, the
Applicable Margins will be determined pursuant to the Pricing Grid.
"Application": an application, in such form as the relevant Issuing
Lender may specify from time to time, requesting such Issuing Lender to issue a
Letter of Credit.
"Arranger": as defined in the preamble hereto.
"Asset Sale": any Disposition of Property or series of related
Dispositions of Property (excluding any such Disposition permitted by clause
(a), (b), (c), (d), (e), (f), (g) or (n) of Section 7.5) which yields gross
proceeds to the Borrower or any of its Subsidiaries (valued at the initial
principal amount thereof in the case of non-cash proceeds consisting of notes or
other debt securities and valued at fair market value in the case of other
non-cash proceeds) in excess of $3,000,000.
3
"Assignee": as defined in Section 10.6(c).
"Assignment and Acceptance": as defined in Section 10.6(c).
"Assignor": as defined in Section 10.6(c).
"Available Revolving Credit Commitment": with respect to any Revolving
Credit Lender at any time, an amount equal to the excess, if any, of (a) such
Lender's Revolving Credit Commitment then in effect over (b) such Lender's
Revolving Extensions of Credit then outstanding; collectively, as to all the
Lenders, the "Available Revolving Credit Commitments".
"Base Rate": for any day, a rate of interest per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate" shall mean
the prime lending rate as set forth on the British Banking Association Telerate
Page 5 (or such other comparable page as may, in the opinion of the
Administrative Agent, replace such page for the purpose of displaying such
rate), as in effect from time to time. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective
as of the opening of business on the effective day of such change in the Prime
Rate or the Federal Funds Effective Rate, respectively. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually available.
"Base Rate Loans": Loans for which the applicable rate of interest is
based upon the Base Rate.
"Benefitted Lender": as defined in Section 10.7(a).
"Xxxxxxx Funding": Xxxxxxx Funding Corporation, a Wholly Owned
Subsidiary of the Borrower, the sole purpose of which is to issue debt
securities and/or preferred stock, to obtain standby letters of credit, and to
purchase Medicaid, Veteran's Administration or other governmental accounts
receivable of the Borrower and its Subsidiaries and/or Permitted Receivables
Financing Securities and make advances to, and obtain standby letters of credit
for the benefit of, the Borrower and its Subsidiaries secured by security
interests in such Medicaid, Veteran's Administration or other governmental
accounts receivable and/or Permitted Receivables Financing Securities, which
accounts receivable, Permitted Receivables Financing Securities and/or security
interests therein may be pledged to secure such debt securities and/or preferred
stock and/or borrowings by such Wholly Owned Subsidiary under the Xxxxxxx
Funding Facility.
"Xxxxxxx Funding Facility": the credit facility entered into by Xxxxxxx
Funding for the purposes of providing liquidity with respect to securities
issued by it and of financing transactions of the type intended to be financed
with the proceeds of such securities, as the same may be amended, supplemented,
replaced or refinanced from time to time.
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrower": as defined in the preamble hereto.
4
"Borrowing Date": any Business Day specified by the Borrower as a date
on which the Borrower requests the relevant Lenders to make Loans hereunder.
"Borrowing Notice": with respect to any request for borrowing of Loans
hereunder, a notice from the Borrower, substantially in the form of, and
containing the information prescribed by, Exhibit H, delivered to the
Administrative Agent.
"Business Day": (a) for all purposes other than as covered by clause
(b) below, a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close and (b) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (a) and which is also a day for trading by and between banks
in Dollar deposits in the interbank eurodollar market.
"CapEx Carryforward Amount": as defined in Section 7.7.
"Capital Expenditures": for any period, with respect to any Person, the
total amount of additions to property and equipment (excluding software
development costs) of such Person during such period of the types classified as
"capital expenditures" on the consolidated statement of cash flows of such
Person.
"Capital Lease Obligations": with respect to any Person, the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP;
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States of America or any state thereof having combined
capital and surplus of not less than $500,000,000; (c) commercial paper of an
issuer rated at least A-2 by Standard & Poor's Ratings Services ("S&P") or P-2
by Xxxxx'x Investors Service, Inc. ("Moody's"), or carrying an equivalent rating
by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally, and
maturing within six months from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank satisfying the requirements
of clause (b) of this definition, having a term of not more than 180 days with
respect to securities issued or fully guaranteed or insured by the United
5
States government; (e) securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States, by any political subdivision or taxing authority
of any such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's; (f) securities with maturities of six months or less
from the date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of this
definition; (g) shares of any money market mutual or similar fund which invests
at least 95% of its assets exclusively in assets satisfying the requirements of
clauses (a) through (f) of this definition; and (h) deposit accounts and
certificates of deposit in United States branches of banks insured by the
Federal Deposit Insurance Corporation which do not aggregate more than $100,000
in any one bank.
"Change of Control": the occurrence of any of the following events: (a)
any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) shall
become, or obtain rights (whether by means or warrants, options or otherwise) to
become, the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under
the Exchange Act), directly or indirectly, of more than 35% of the outstanding
common stock of the Borrower; (b) the board of directors of the Borrower shall
cease to consist of a majority of Continuing Directors; or (c) a Specified
Change of Control.
"Closing Date": the date on which the conditions precedent set forth in
Section 5.1 shall have been satisfied, which date is October 22, 2003.
"Co-Arrangers": as defined in the preamble hereto.
"Code": the United States Internal Revenue Code of 1986, as amended
from time to time.
"Collateral": all Property of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security Document.
"Commitment": with respect to any Lender, each of the Term Loan
Commitment and the Revolving Credit Commitment of such Lender.
"Commitment Fee Rate": 1/2 of 1% per annum; provided that following the
date on which letters of credit first become available to the Borrower pursuant
to the Additional Letter of Credit Facility or the Receivables Financing
Program, the Commitment Fee Rate shall be 0.625% per annum at any time when the
Available Revolving Credit Commitments are greater than 67%.
"Commonly Controlled Entity": an entity, whether or not incorporated,
that is under common control with the Borrower within the meaning of Section
4001 of ERISA or is part of a group that includes the Borrower and that is
treated as a single employer under Section 414 of the Code.
6
"Compliance Certificate": a certificate duly executed by a Responsible
Officer, substantially in the form of Exhibit B.
"Confidential Information Memorandum": the Confidential Information
Memorandum dated September 2003 and furnished to the initial Lenders in
connection with the syndication of the Facilities.
"Consolidated Current Assets": of any Person at any date, 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 such Person and its Subsidiaries at such date.
"Consolidated Current Liabilities": of any Person at any date, 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 such Person and its Subsidiaries at such date, but excluding, with
respect to the Borrower, (a) the current portion of any Funded Debt of the
Borrower and its Subsidiaries and (b), without duplication, all Indebtedness
consisting of Revolving Credit Loans, to the extent otherwise included therein.
"Consolidated EBITDA": of any Person for any period, Consolidated Net
Income of such Person and its Subsidiaries for such period plus, without
duplication and to the extent reflected as a charge in the statement of such
Consolidated Net Income for such period, the sum of (a) income tax expense, (b)
Consolidated Interest Expense of such Person and its Subsidiaries, amortization
or writeoff of debt discount and debt issuance costs and commissions, discounts
and other fees and charges associated with Indebtedness, including all fees,
taxes and other expenses incurred in connection with this Agreement, the
Refinancing and the Subordinated Notes, (c) depreciation and amortization
expense, (d) amortization of intangibles (including, but not limited to,
goodwill) and organization costs, (e) any extraordinary, unusual or
non-recurring expenses or losses (including, whether or not otherwise includable
as a separate item in the statement of such Consolidated Net Income for such
period, losses on sales of assets outside of the ordinary course of business)
and (f) any other non-cash charges, and minus, to the extent included in the
statement of such Consolidated Net Income for such period, the sum of (a)
interest income (except to the extent deducted in determining Consolidated
Interest Expense), (b) any extraordinary, unusual or non-recurring income or
gains (including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, gains on the sales of
assets outside of the ordinary course of business) and (c) any other non-cash
income or gains, all as determined on a consolidated basis.
"Consolidated EBITDAM": for any period, the sum of (a) Consolidated
EBITDA for such period and (b) corporate and regional overhead and related
administrative expenses of the Borrower and its Subsidiaries for such period.
"Consolidated EBITDAR": for any period, the sum of Consolidated EBITDA
and Consolidated Rental Expense for such period.
7
"Consolidated Interest Coverage Ratio": for any period, the ratio of
(a) Consolidated EBITDA of the Borrower and its Subsidiaries for such period to
(b) Consolidated Interest Expense of the Borrower and its Subsidiaries for such
period.
"Consolidated Interest Expense": of any Person for any period, total
cash interest expense (including that attributable to Capital Lease Obligations)
of such Person and its Subsidiaries for such period with respect to all
outstanding Indebtedness of such Person and its Subsidiaries (including, without
limitation, all commissions, discounts and other fees and charges owed by such
Person with respect to letters of credit and bankers' acceptance financing and
net costs of such Person under Hedge Agreements in respect of interest rates to
the extent such net costs are allocable to such period in accordance with GAAP,
but excluding up-front fees and expenses and any amounts for amortization of
costs relative to financings, including, with respect to the Borrower, breakage
costs associated with the repayment of loans under the Existing Credit
Agreement).
"Consolidated Leverage Ratio": as at the last day of any period of four
consecutive fiscal quarters of the Borrower, the ratio of (a) the sum of (i)
Consolidated Total Debt on such day and (ii) an amount equal to the product of
eight multiplied by the Consolidated Rental Expense for the four fiscal quarters
of the Borrower most recently completed on or prior to such date to (b)
Consolidated EBITDAR of the Borrower and its Subsidiaries for such period.
"Consolidated Liquidity": at any date, the sum of (a) the amount that
would, in conformity with GAAP, be set forth opposite the caption "cash and cash
equivalents" on a consolidated balance sheet of the Borrower and its
Subsidiaries at such date plus (b) the Available Revolving Credit Commitments on
such date.
"Consolidated Net Income": of any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP; provided
that, in calculating Consolidated Net Income of the Borrower and its
consolidated Subsidiaries for any period, there shall be excluded (a) the income
(or deficit) of any Person accrued prior to the date it becomes a Subsidiary of
the Borrower or is merged into or consolidated with the Borrower or any of its
Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary
of the Borrower) in which the Borrower or any of its Subsidiaries has an
ownership interest, except to the extent that any such income is actually
received by the Borrower or such Subsidiary in the form of dividends or similar
distributions and (c) the undistributed earnings of any Subsidiary of the
Borrower to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary is not at the time permitted by the terms of
any Contractual Obligation (other than under any Loan Document) or Requirement
of Law applicable to such Subsidiary.
"Consolidated Rental Expense": for any period, the rental expense (net
of sublease income) of the Borrower and its Subsidiaries for such period,
provided, that payments in respect of Capital Lease Obligations shall not
constitute Consolidated Rental Expense.
"Consolidated Senior Secured Debt": all Consolidated Total Debt, other
than (a) Subordinated Debt and (b) unsecured Indebtedness.
8
"Consolidated Senior Secured Leverage Ratio": as at the last day of any
period of four consecutive fiscal quarters of the Borrower, the ratio of (a)
Consolidated Senior Secured Debt on such day to (b) Consolidated EBITDA of the
Borrower and its Subsidiaries for such period.
"Consolidated Total Debt": at any date, the aggregate principal amount
of all Indebtedness of the Borrower and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP, other than (a)
Indebtedness of Xxxxxxx Funding in respect of any then outstanding Permitted
Receivables Financing Securities permitted hereunder and (b) Guarantee
Obligations in respect of Indebtedness existing on the Closing Date in amounts
not in excess of approximately $31,700,000 in the aggregate and reported in the
Borrower's financial statements for the fiscal year ended December 31, 2002.
"Consolidated Working Capital": at any date, the difference of (a)
Consolidated Current Assets of the Borrower on such date less (b) Consolidated
Current Liabilities of the Borrower on such date.
"Continuing Directors": the directors of the Borrower on the Closing
Date and each other director of the Borrower, if, in each case, such other
director's nomination for election to the board of directors of the Borrower is
recommended by more than 50% of the then Continuing Directors.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Control Investment Affiliate": as to any Person, any other Person that
(a) directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person and (b) is organized by such Person primarily
for the purpose of making equity or debt investments in one or more companies.
For purposes of this definition, "control" of a Person means the power, directly
or indirectly, to direct or cause the direction of the management and policies
of such Person, whether by contract or otherwise.
"CTB Subsidiary": each Subsidiary of the Borrower that is incorporated
or organized outside the United States or any State or territory thereof but
which is, or has elected to be, treated as a branch or partnership for United
States income tax purposes; provided, however, that the term CTB Subsidiary
shall not include any Subsidiary that is directly or indirectly owned by any
Foreign Subsidiary of the Borrower.
"Default": any of the events specified in Section 8, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Derivatives Counterparty": as defined in Section 7.6.
"Disposition": with respect to any Property, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof; and
the terms "Dispose" and "Disposed of" shall have correlative meanings.
9
"Documentation Agents": as defined in the preamble hereto.
"Dollars" and "$": lawful currency of the United States of America.
"Domestic Subsidiary": any Subsidiary of the Borrower organized under
the laws of any jurisdiction within the United States of America.
"ECF Percentage": with respect to any fiscal year of the Borrower, 75%;
provided that the ECF Percentage shall be 50% if the Consolidated Senior Secured
Leverage Ratio as of the last day of such fiscal year is not greater than 2.0 to
1.0.
"Environmental Laws": any and all laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, or other legally enforceable requirements
(including, without limitation, common law) of any international authority,
foreign government, the United States, or any state, local, municipal or other
governmental authority, regulating, relating to or imposing liability or
standards of conduct concerning protection of the environment or of human health
as it relates to environmental protection, or employee health and safety, as it
relates to occupational exposure to harmful substances, as has been, is now, or
may at any time hereafter be, in effect.
"Environmental Permits": any and all permits, licenses, approvals,
registrations, notifications, exemptions and other authorizations required under
any applicable Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Escrow Account": an escrow account held, pursuant to the terms of the
Escrow Agreement, by the trustee for the 2006 Senior Notes, or such other
fiduciary as is satisfactory to the Administrative Agent, and into which the
Administrative Agent will deposit the proceeds of the Term Loans made on the
Closing Date.
"Escrow Agreement": an escrow agreement, in form and substance
satisfactory to the Administrative Agent, among the trustee for the 2006 Senior
Notes, or such other fiduciary as is satisfactory to the Administrative Agent,
as escrow agent, and the Borrower.
"Eurocurrency Reserve Requirements": for any day, the aggregate
(without duplication) of the maximum rates (expressed as a decimal fraction) of
reserve requirements in effect on such day (including, without limitation,
basic, supplemental, marginal and emergency reserves) under any regulations of
the Board or other Governmental Authority having jurisdiction with respect
thereto dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board) maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each Interest
Period, the rate 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
10
screen (or otherwise on such screen), the "Eurodollar Base Rate" for purposes of
this definition shall be determined by reference to such other comparable
publicly available service for displaying eurodollar rates as may be selected by
the Administrative Agent.
"Eurodollar Loans": Loans for which the applicable rate of interest is
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period, a rate per annum determined for such day in accordance with the
following formula (rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans the
then current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall originally
have been made on the same day).
"Event of Default": any of the events specified in Section 8, provided
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the
difference, if positive, of (a) the sum, without duplication, of (i)
Consolidated Net Income for such fiscal year, (ii) the amount of all non-cash
charges (including depreciation and amortization) deducted in arriving at such
Consolidated Net Income, (iii) the amount of the decrease, if any, in
Consolidated Working Capital for such fiscal year, (iv) the aggregate net amount
of non-cash loss on the Disposition of Property by the Borrower and its
Subsidiaries during such fiscal year (other than sales of inventory in the
ordinary course of business), to the extent deducted in arriving at such
Consolidated Net Income, (v) the net increase during such fiscal year (if any)
in deferred tax accounts of the Borrower, (vi) any unused CapEx Carryforward
Amount from the prior fiscal year and (vii) any amount in respect of a Permitted
Acquisition referred to in clause (b)(iv) below that is not so paid in such next
fiscal year minus (b) the sum, without duplication, of (i) 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 Subsidiaries in cash
during such fiscal year on account of Capital Expenditures and Permitted
Acquisitions (minus the principal amount of Indebtedness incurred in connection
with such expenditures and minus the amount of any such expenditures financed
with the proceeds of any Reinvestment Deferred Amount and minus any such
expenditures made with any amount referred to in clause (iii) or (iv) below),
(iii) the CapEx Carryforward Amount for such fiscal year, (iv) the amount
scheduled to be paid by the Borrower and its Subsidiaries for Permitted
Acquisitions in the next fiscal year and for which the Borrower has provided to
the Administrative Agent satisfactory evidence of such scheduled payment, (v)
the aggregate amount of all prepayments of Revolving Credit Loans during such
fiscal year to the extent accompanying permanent optional reductions of the
Revolving Credit Commitments and all optional prepayments of the Term Loans
during such fiscal year, (vi) the aggregate amount of all regularly scheduled
principal payments of Funded Debt (including, without limitation, the Term
Loans) of the Borrower and its Subsidiaries made during such fiscal year (other
than in respect of any revolving credit facility to the extent there is not an
equivalent
11
permanent reduction in commitments thereunder), (vii) the amount of the
increase, if any, in Consolidated Working Capital for such fiscal year, (viii)
the aggregate net amount of non-cash gain on the Disposition of Property by the
Borrower and its Subsidiaries during such fiscal year (other than sales of
inventory in the ordinary course of business), to the extent included in
arriving at such Consolidated Net Income, (ix) the net decrease during such
fiscal year (if any) in deferred tax accounts of the Borrower, and (x) payments
for settlements or other obligations made during such fiscal year to the extent
included in the Borrower's cash flow from operations.
"Excess Cash Flow Application Date": as defined in Section 2.10(c).
"Excluded Foreign Subsidiaries": any Foreign Subsidiary in respect of
which either (a) the pledge of more than 65% of the Capital Stock of such
Subsidiary as Collateral or (b) the guaranteeing by such Subsidiary of the
Obligations, would, in the good faith judgment of the Borrower, result in
adverse tax consequences to the Borrower.
"Excluded Subsidiaries": on any date (a) Xxxxxxx Funding, (b) Xxxxxxx
Indemnity, Ltd., (c) any Subsidiary of the Borrower the sole asset of which is a
Phase I Asset and (d) any other Subsidiary of the Borrower that (i) calculated
on a consolidated basis for each such Subsidiary, had assets, as of the last day
of the fiscal year most recently ended prior to such date, of less than
$3,500,000 and revenues, for such fiscal year, of less than $5,000,000 and (ii)
taken together with all other Subsidiaries included in this clause (d) and
calculated on a consolidated basis, had aggregate assets, as of the last day of
the fiscal year most recently ended prior to such date, of less than $40,500,000
and aggregate revenues, for such fiscal year, of less than $50,000,000.
"Existing Credit Agreement": the Amended and Restated Credit Agreement,
dated as of April 25, 2001, as amended, among the Borrower, the Banks party
thereto and JPMorgan Chase Bank (as successor by merger to Xxxxxx Guaranty Trust
Company of New York), as issuing bank and as administrative agent.
"Facility": each of (a) the Term Loan Commitments and the Term Loans
made thereunder (the "Term Loan Facility") and (b) the Revolving Credit
Commitments and the extensions of credit made thereunder (the "Revolving Credit
Facility").
"Federal Funds Effective Rate": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.
"Foreign Subsidiary": any Subsidiary of the Borrower that is not a
Domestic Subsidiary or a CTB Subsidiary.
"FQ1", "FQ2 ", "FQ3", and "FQ4": when used with a numerical year
designation, means the first, second, third or fourth fiscal quarters,
respectively, of such fiscal year of the Borrower. (e.g., FQ4 2003 means the
fourth fiscal quarter of the Borrower's 2003 fiscal year, which ends December
31, 2003).
12
"Funded Debt": with respect to any Person, all Indebtedness of such
Person of the types described in clauses (a) through (e) of the definition of
"Indebtedness" in this Section.
"Funding Office": the office specified from time to time by the
Administrative Agent as its funding office by notice to the Borrower and the
Lenders.
"GAAP": generally accepted accounting principles in the United States
of America as in effect from time to time.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Group 1 Mortgaged Properties": the real properties indicated as "Group
1 Mortgaged Properties" in Schedule 1.1.
"Group 2 Mortgaged Properties": the real properties indicated as "Group
2 Mortgaged Properties" in Schedule 1.1.
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement to be executed and delivered by the Borrower and each Subsidiary
Guarantor, substantially in the form of Exhibit A, as the same may be amended,
supplemented or otherwise modified from time to time, it being understood that
any Excluded Subsidiary that is a party to the Guarantee and Collateral
Agreement shall be a Guarantor but not a Grantor thereunder (as each such term
is defined in the Guarantee and Collateral Agreement).
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit), if to induce the
creation of such obligation of such other Person the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or
other obligations (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any Property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (1) for the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to purchase
Property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary
13
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
"Health Care Facilities": as defined in Section 4.23.
"Health Care Laws": the collective reference to any and all federal,
state or local laws, rules, regulations and administrative manuals, orders,
guidelines and requirements issued under or in connection with Medicare,
Medicaid or any government payment program or any law governing the licensure of
or regulating health care providers, suppliers, professionals, facilities or
payors or otherwise governing or regulating the provision of, or payment for,
health care services.
"Hedge Agreements": all interest rate or currency swaps, caps or collar
agreements, foreign exchange agreements, commodity contracts or similar
arrangements entered into by the Borrower or its Subsidiaries providing for
protection against fluctuations in interest rates, currency exchange rates,
commodity prices or the exchange of nominal interest obligations, either
generally or under specific contingencies.
"HIPAA": the Health Insurance Portability and Accountability Act of
1996, as the same may be amended, modified or supplemented from time to time,
and any successor statute thereto, and any and all rules or regulations
promulgated from time to time thereunder.
"Indebtedness": of any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of Property or services (other than trade
payables incurred in the ordinary course of such Person's business), (c) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to Property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such Property), (e) all Capital Lease Obligations of such Person, (f)
all obligations of such Person, contingent or otherwise, as an account party or
applicant under acceptance, letter of credit or similar facilities, (g) all
obligations of such Person, contingent or otherwise, to purchase, redeem, retire
or otherwise acquire for value any Capital Stock of such Person, (h) all
Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (g) above, (i) all obligations of the kind
referred to in clauses (a) through (h) above secured by (or for which the holder
of such obligation has an existing right, contingent or otherwise, to be secured
by) any Lien on Property (including, without limitation, accounts and contract
rights) owned by such Person, whether or not such Person has assumed or become
liable for the payment of such obligation and (j) for the purposes of Section
8(e) only, all obligations of such Person in respect of Hedge Agreements.
"Indemnified Liabilities": as defined in Section 10.5.
"Indemnitee": as defined in Section 10.5.
14
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including,
without limitation, copyrights, copyright licenses, patents, patent licenses,
trademarks, trademark licenses, technology, know-how and processes, and all
rights to xxx at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any Base Rate Loan, the last day of
each March, June, September and December to occur while such Loan is outstanding
and the final maturity date of such Loan, (b) as to any Eurodollar Loan having
an Interest Period of three months or shorter, the last day of such Interest
Period, (c) as to any Eurodollar Loan having an Interest Period longer than
three months, each day that is three months, or a whole multiple thereof, after
the first day of such Interest Period and the last day of such Interest Period
and (d) as to any Loan (other than any Revolving Credit Loan that is a Base Rate
Loan), the date of any repayment or prepayment made in respect thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially, the period
commencing on the borrowing or conversion date, as the case may be, with respect
to such Eurodollar Loan and ending one, two, three or six months thereafter, as
selected by the Borrower in its notice of borrowing or notice of conversion, as
the case may be, given with respect thereto; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Eurodollar Loan and ending one, two, three or six months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative Agent not
less than three Business Days prior to the last day of the then current Interest
Period with respect thereto; provided that, all of the foregoing provisions
relating to Interest Periods are subject to the following:
(1) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding 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 immediately preceding Business
Day;
(2) any Interest Period that would otherwise extend beyond the
Revolving Credit Termination Date or the Term Loan Maturity Date, as
the case may be, shall end on the Revolving Credit Termination Date or
the Term Loan Maturity Date, as applicable; and
(3) 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.
15
"Investments": as defined in Section 7.8.
"Issuing Lender": Xxxxx Fargo Foothill, Inc. (or any of its Affiliates)
or any other Revolving Credit Lender from time to time designated by the
Borrower as an Issuing Lender with the consent of such Revolving Credit Lender
and the Administrative Agent.
"L/C Commitment": $55,000,000, provided that, from and after the date
on which letters of credit first become available to the Borrower pursuant to
the Additional Letter of Credit Facility or the Receivables Financing Program,
the L/C Commitment shall be reduced to $25,000,000; provided, further, that if
thereafter the Additional Letter of Credit Facility or the ability to obtain
letters of credit under the Receivables Financing Program, as applicable, is
permanently terminated for any reason and no Default or Event of Default has
occurred and is continuing (or would result after giving effect to such
termination), the L/C Commitment shall be increased to $55,000,000.
"L/C Fee Payment Date": the last day of each March, June, September and
December and the last day of the Revolving Credit Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit that
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": with respect to any Letter of Credit, the
collective reference to all the Revolving Credit Lenders other than the Issuing
Lender that issued such Letter of Credit.
"Lender Addendum": with respect to any initial Lender, a Lender
Addendum, substantially in the form of Exhibit J, to be executed and delivered
by such Lender on the Closing Date as provided in Section 10.17.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 3.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Security Documents, the
Applications, the Escrow Agreement and the Notes.
"Loan Parties": the Borrower and each Subsidiary of the Borrower that
is a party to a Loan Document.
16
"Majority Facility Lenders": with respect to any Facility, the holders
of more than 50% of the aggregate unpaid principal amount of the Term Loans or
the Total Revolving Extensions of Credit, as the case may be, outstanding under
such Facility (or, in the case of the Revolving Credit Facility, prior to any
termination of the Revolving Credit Commitments, the holders of more than 50% of
the Total Revolving Credit Commitments).
"Material Adverse Effect": a material adverse effect on (a) the
business, assets, property or condition (financial or otherwise) of the Borrower
and its Subsidiaries taken as a whole or (b) the validity or enforceability of
this Agreement or any of the other Loan Documents or the rights or remedies,
taken as a whole, of the Agents or the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants,
contaminants, radioactivity, molds, radon and any other substances defined as
hazardous or toxic under any Environmental Law or that could reasonably expect
to give rise to liability under any Environmental Law.
"Mortgaged Properties": the real properties listed on Schedule 1.1, as
to which the Administrative Agent for the benefit of the applicable Secured
Parties shall be granted a Lien pursuant to one or more Mortgages.
"Mortgages": the collective reference to the Term Loan Mortgages and
the Revolving Credit Loan Mortgages.
"Multiemployer Plan": a Plan that is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received) of such Asset Sale or
Recovery Event, net of attorneys' fees, accountants' fees, investment banking
fees, amounts required to be applied to the repayment of Indebtedness secured by
a Lien expressly permitted hereunder on any asset which is the subject of such
Asset Sale or Recovery Event (other than any Lien pursuant to a Security
Document), settlement, severance and other employee termination costs and other
customary fees and expenses actually incurred in connection therewith and net of
all taxes paid or reasonably estimated to be payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements) and (b) in connection with any issuance or sale of equity
securities or debt securities or instruments or the incurrence of loans, the
cash proceeds received from such issuance or incurrence, net of attorneys' fees,
investment banking fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith.
"New Lender": as defined in Section 2.22(e).
"Non-Excluded Taxes": as defined in Section 2.18(a).
17
"Non-U.S. Lender": each Agent or Lender (or Transferee) that is not a
United States person as defined in section 7701(a)(30) of the Code.
"Note": any promissory note evidencing any Loan.
"Obligations": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans, the
Reimbursement Obligations and all other obligations and liabilities of the
Borrower to the Administrative Agent or to any Lender or any Qualified
Counterparty, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, any other Loan Document, the Letters
of Credit, any Specified Hedge Agreement or any other document made, delivered
or given in connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees, charges and disbursements of counsel
to the Administrative Agent or to any Lender that are required to be paid by the
Borrower pursuant hereto) or otherwise; provided that (a) obligations of the
Borrower under any Specified Hedge Agreement shall be secured and guaranteed
pursuant to the Security Documents only to the extent that, and for so long as,
the other Obligations are so secured and guaranteed and (b) any release of
Collateral or Subsidiary Guarantors effected in the manner permitted by this
Agreement shall not require the consent of holders of obligations under
Specified Hedge Agreements.
"Obligor": with respect to any Receivable, the party obligated to make
payments with respect to such Receivable, including any guarantor thereof.
"Optional Increase Amendment": an amendment to this Agreement, in form
and substance acceptable to the Borrower, the Administrative Agent and each
Lender providing additional Revolving Credit Commitments after the Closing Date,
executed and delivered pursuant to Section 2.22 to establish an increase in the
Revolving Credit Commitments.
"Optional Increase Request": as defined in Section 2.22(a).
"Other Taxes": any and all present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies arising from
any payment made hereunder or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan Document.
"Participant": as defined in Section 10.6(b).
"Payment Office": the office specified from time to time by the
Administrative Agent as its payment office by notice to the Borrower and the
Lenders.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor).
18
"Permitted Acquisition": any acquisition, consisting of a single
transaction or a series of related transactions, by the Borrower or any one or
more of the Wholly Owned Subsidiary Guarantors of all of the Capital Stock of,
or all or a substantial part of the assets of, or of a business unit or division
of, any Person organized under the laws of the United States or any state
thereof, provided that:
(a) no Default or Event of Default has occurred and is continuing,
or would occur after giving effect to such acquisition,
(b) the Borrower is in compliance, on a pro forma basis after
giving effect to the incurrence of any Indebtedness in connection with such
acquisition, with the covenants contained in Section 7.1, in each case
recomputed as at the last day of the most recently ended fiscal quarter of
the Borrower as if such acquisition had occurred on the first day of each
relevant period for testing such compliance,
(c) after giving effect to such acquisition, any acquired or newly
formed Subsidiary is not liable for any Indebtedness (except for
Indebtedness permitted by Section 7.2),
(d) the revenues attributable to the Property so acquired, for the
period of four consecutive fiscal quarters most recently ended prior to the
date of such acquisition, have been derived from those businesses in which
the Borrower and its Subsidiaries are engaged on the date of this Agreement
or that are reasonably related thereto,
(e) the Properties so acquired become, to the extent required by
Section 6.9, subject to the Liens of the Security Documents in favor of the
Administrative Agent, for the benefit of the applicable Secured Parties,
(f) immediately after giving effect to such acquisition,
Consolidated Liquidity is at least $30,000,000,
(g) if such acquisition is of all the Capital Stock of, or all or
a substantial part of the assets of, any Person, such acquisition shall
have been approved by the Board of Directors or comparable governing body
of such Person, and
(h) (i) the aggregate consideration paid (including, without
limitation, cash, Capital Stock, assumed Indebtedness, seller notes,
non-compete or deferred compensation, and earn-outs or similar
arrangements) by the Borrower and its Subsidiaries in respect of all such
acquisitions does not exceed $100,000,000 during the term of this Agreement
and (ii) the aggregate amount of such consideration paid in any fiscal year
of the Borrower does not exceed $40,000,000.
"Permitted Encumbrances": the Liens permitted pursuant to Section 7.3.
"Permitted Receivables Financing Securities": debt securities, standby
letter of credit obligations or preferred stock issued by Xxxxxxx Funding
pursuant to the Receivables Financing Program and borrowings by Xxxxxxx Funding
under the related Xxxxxxx Funding
19
Facility, provided that such debt securities or preferred stock are not
included, in accordance with GAAP, as liabilities on the consolidated balance
sheet of the Borrower and its Subsidiaries.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Phase I Assets": the Properties described on Schedule 7.5(f), as such
schedule may be modified from time to time to reflect substitution of Properties
of comparable value, provided that:
(a) no Property added to Schedule 7.5(f) is subject to any Liens
created by the Security Documents,
(b) the amount of Consolidated EBITDAM attributable to the
Property added to Schedule 7.5(f), for the period of four consecutive
fiscal quarters most recently ended prior to the date of such substitution,
is not more than 110% of the Consolidated EBITDAM for such period of the
Property removed from Schedule 7.5(f),
(c) no Property removed from Schedule 7.5(f) is subject to
aggregate general and professional patient care liabilities (contingent or
otherwise) in excess of the aggregate of such liabilities to which the
Property added to Schedule 7.5(f) is subject,
(d) not more than 15% of the total number of Properties listed on
Schedule 7.5(f) on the Closing Date may be removed from such Schedule, and
(e) at least ten Business Days prior to any such substitution of
Properties, the Borrower delivers to the Administrative Agent a
certificate, in form and substance satisfactory to the Administrative Agent
and signed by a Responsible Officer of the Borrower, as to the compliance
of such substitution with the requirements of the foregoing clauses (a)
through (d) and setting forth calculations satisfactory to the
Administrative Agent demonstrating such compliance.
"Plan": at a particular time, any employee benefit plan that is covered
by ERISA and in respect of which the Borrower or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Post-Closing Mortgaged Properties": the real properties indicated as
"Post-Closing Mortgaged Properties" on Schedule 1.1.
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Pro Forma Balance Sheet": as defined in Section 4.1(a).
"Projections": as defined in Section 6.2(c).
20
"Property": any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible,
including, without limitation, Capital Stock.
"Qualified Counterparty": with respect to any Specified Hedge
Agreement, any counterparty thereto that, at the time such Specified Hedge
Agreement was entered into, was a Lender or an affiliate of a Lender.
"Receivable": with respect to the Loan Parties, the accounts thereof
existing or hereafter created, any and all rights to receive payments due on
such accounts from any Obligor or other third-party payor under or in respect of
such account (including, without limitation, all insurance companies, Blue
Cross/Blue Shield, Medicare, Medicaid and health maintenance organizations), to
the extent not evidenced by an instrument or chattel paper, and all proceeds of,
or in any way derived, whether directly or indirectly, from any of the foregoing
(including, without limitation, all interest, finance charges and other amounts
payable by an Obligor in respect thereof).
"Receivables Financing Program": the program pursuant to which Xxxxxxx
Funding issues debt securities or preferred stock, or obtains standby letters of
credit for the benefit of the Borrower and its Subsidiaries, secured by (a)
Medicaid, Veteran's Administration or other governmental accounts receivable or
Permitted Receivables Financing Securities purchased from the Borrower and its
Subsidiaries or (b) security interests in Medicaid, Veteran's Administration or
other governmental accounts receivable or Permitted Receivables Financing
Securities granted by the Borrower and its Subsidiaries.
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding relating to
any asset of the Borrower or any of its Subsidiaries.
"Refinancing": as defined in the recitals hereto.
"Register": as defined in Section 10.6(d).
"Regulation H": Regulation H of the Board as in effect from time to
time.
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reimbursement Obligation": the obligation of the Borrower to reimburse
each Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of
Credit issued by such Issuing Lender.
"Reinvestment Deferred Amount": with respect to any Reinvestment Event,
the aggregate Net Cash Proceeds received by the Borrower or any of its
Subsidiaries in connection therewith that are not applied to prepay the Term
Loans or reduce the Revolving Credit Commitments pursuant to Section 2.10(b) as
a result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in respect of
which the Borrower has delivered a Reinvestment Notice.
21
"Reinvestment Notice": a written notice executed by a Responsible
Officer stating that no Default or Event of Default has occurred and is
continuing and that the Borrower (directly or indirectly through a Subsidiary)
intends and expects to use all or a specified portion of the Net Cash Proceeds
of an Asset Sale or Recovery Event to acquire assets useful in its business.
"Reinvestment Prepayment Amount": with respect to any Reinvestment
Event, an amount equal to the Reinvestment Deferred Amount relating thereto less
any amount expended prior to the relevant Reinvestment Prepayment Date to
acquire assets useful in the Borrower's business.
"Reinvestment Prepayment Date": with respect to any Reinvestment Event,
the earlier of (a) the date occurring 270 days after such Reinvestment Event and
(b) the date on which the Borrower shall have determined not to, or shall have
otherwise ceased to, acquire assets useful in the Borrower's business with all
or any portion of the relevant Reinvestment Deferred Amount.
"Related Fund": with respect to any Lender, any fund that (a) invests
in commercial loans and (b) is managed or advised by the same investment advisor
as such Lender or an Affiliate of such investment advisor, by such Lender or an
Affiliate of such Lender.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC
Reg. Section 4043.
"Required Lenders": at any time, the holders of more than 50% of (a)
until the Closing Date, the Commitments and (b) thereafter, the sum of (i) the
aggregate unpaid principal amount of the Term Loans then outstanding and (ii)
the Total Revolving Credit Commitments then in effect or, if the Revolving
Credit Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding.
"Required Prepayment Lenders": the Majority Facility Lenders in respect
of each Facility.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its Property or to which such Person or
any of its Property is subject.
"Responsible Officer": the chief executive officer, president, chief
financial officer, chief accounting officer or treasurer of the Borrower, but in
any event, with respect to financial matters, the chief financial officer, chief
accounting officer or treasurer of the Borrower.
22
"Restricted Payments": as defined in Section 7.6.
"Revolving Credit Commitment": as to any Lender, the obligation of such
Lender, if any, to make Revolving Credit Loans and participate in Letters of
Credit, in an aggregate principal and/or face amount not to exceed the amount
set forth under the heading "Revolving Credit Commitment" opposite such Lender's
name on Schedule 1 to the Lender Addendum delivered by such Lender, or, as the
case may be, in the Assignment and Acceptance pursuant to which such Lender
became a party hereto, as the same may be changed from time to time pursuant to
the terms hereof. The original aggregate amount of the Total Revolving Credit
Commitments is $75,000,000.
"Revolving Credit Commitment Period": the period from and including the
Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Facility": as defined in the definition of "Facility"
in this Section 1.1.
"Revolving Credit Lender": each Lender that has a Revolving Credit
Commitment or that is the holder of Revolving Extensions of Credit.
"Revolving Credit Loan Mortgages": each of the mortgages and deeds of
trust made by any Loan Party in favor of, or for the benefit of, the
Administrative Agent for the benefit of the applicable Secured Parties,
substantially in the form of Exhibit D-1 (in the case of any first lien
mortgage) or D-2 (in case of any second lien mortgage), in each case with such
changes thereto as shall be advisable under the law of the jurisdiction in which
such mortgage or deed of trust is to be recorded, as the same may be amended,
supplemented or otherwise modified from time to time.
"Revolving Credit Loans": as defined in Section 2.4.
"Revolving Credit Note": as defined in Section 2.6(e).
"Revolving Credit Percentage": as to any Revolving Credit Lender at any
time, the percentage which such Lender's Revolving Credit Commitment then
constitutes of the Total Revolving Credit Commitments (or, at any time after the
Revolving Credit Commitments shall have expired or terminated, the percentage
which the aggregate amount of such Lender's Revolving Extensions of Credit then
outstanding constitutes of the amount of the Total Revolving Extensions of
Credit then outstanding).
"Revolving Credit Termination Date": October 22, 2007.
"Revolving Extensions of Credit": as to any Revolving Credit Lender at
any time, an amount equal to the sum of (a) the aggregate principal amount of
all Revolving Credit Loans made by such Lender then outstanding and (b) such
Lender's Revolving Credit Percentage of the L/C Obligations then outstanding.
"Sale and Leaseback Transaction": as defined in Section 7.11.
23
"SEC": the Securities and Exchange Commission (or successors thereto or
an analogous Governmental Authority).
"Secured Parties": (a) for purposes of the Guarantee and Collateral
Agreement, the collective reference to the Agents, the Revolving Credit Lenders
(including any Issuing Lender in its capacity as Issuing Lender) and any
Qualified Counterparties, (b) for purposes of any Term Loan Mortgage, the
collective reference to the Agents and the Term Loan Lenders and (c) for
purposes of any Revolving Credit Loan Mortgage, the collective reference to the
Agents, the Revolving Credit Lenders (including any Issuing Lender in its
capacity as Issuing Lender) and any Qualified Counterparties.
"Security Documents": the collective reference to the Guarantee and
Collateral Agreement, the Mortgages and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any Property of any
Person to secure the obligations and liabilities of any Loan Party under any
Loan Document.
"Senior Note Indenture": the Indenture, dated as of April 25, 2001,
among the Borrower, certain Subsidiaries of the Borrower and The Bank of New
York, as trustee, entered into in connection with the issuance of the Senior
Notes, together with all instruments and other agreements entered into by the
Borrower or such Subsidiaries in connection therewith, as the same may be
amended, supplemented or otherwise modified from time to time.
"Senior Notes": the 9-5/8% Senior Notes due 2009 of the Borrower issued
pursuant to the Senior Note Indenture.
"Single Employer Plan": any Plan that is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.
"Solvent": with respect to any Person, as of any date of determination,
(a) the amount of the "present fair saleable value" of the assets of such Person
will, as of such date, exceed the amount of all "liabilities of such Person,
contingent or otherwise", as of such date, as such quoted terms are determined
in accordance with applicable federal and state laws governing determinations of
the insolvency of debtors, (b) the present fair saleable value of the assets of
such Person will, as of such date, be greater than the amount that will be
required to pay the liability of such Person on its debts as such debts become
absolute and matured, (c) such Person will not have, as of such date, an
unreasonably small amount of capital with which to conduct its business, and (d)
such Person will be able to pay its debts as they mature. For purposes of this
definition, (i) "debt" means liability on a "claim", and (ii) "claim" means any
(x) right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured or (y) right to an equitable
remedy for breach of performance if such breach gives rise to a right to
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
or unsecured.
"Specified Change of Control": a "Change of Control", or like event, as
defined in the Senior Note Indenture or the Subordinated Note Indenture.
24
"Specified Hedge Agreement": any Hedge Agreement entered into by the
Borrower and any Qualified Counterparty.
"Subordinated Debt": any unsecured Indebtedness of the Borrower or any
of its Subsidiaries (a) having no scheduled principal payments (whether by way
of mandatory sinking fund, mandatory redemption, mandatory prepayment or
otherwise) prior to the date that is six months after the Term Loan Maturity
Date and (b) the payment of the principal of and interest on which and other
obligations of the Borrower and its Subsidiaries in respect thereof are
subordinated, on terms and conditions reasonably satisfactory to the
Administrative Agent in light of the terms and conditions customarily contained
in indentures for publicly issued high yield subordinated debt securities, to
the prior payment in full of the principal of and interest (including
post-petition interest) on the Loans and all other payment obligations of the
Loan Parties to the Administrative Agent, the other Agents and the Lenders
hereunder and under the other Loan Documents.
"Subordinated Note Indenture": the First Supplemental Indenture entered
into by the Borrower in connection with the issuance of the Subordinated Notes,
together with all instruments and other agreements entered into by the Borrower
in connection therewith, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with Section 7.9.
"Subordinated Notes": the 2.75% Convertible Subordinated Notes due 2033
of the Borrower issued on the Closing Date pursuant to the Subordinated Note
Indenture.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person; provided that, with respect to
the Borrower, Subsidiary shall not (except for financial reporting purposes,
determination of compliance with financial covenants and the proviso to the
definition of "Subsidiary Guarantor") include any corporation, partnership,
limited liability company or other entity that (a) is inactive, (b) has neither
assets nor liabilities, calculated on a consolidated basis for each such
corporation, partnership, limited liability company or other entity, of
$1,600,000 or more and (c) taken together with all other corporations,
partnerships, limited liability companies and other entities so excluded from
this definition of "Subsidiary", have neither aggregate assets nor aggregate
liabilities, calculated on a consolidated basis, of $3,000,000 or more. Unless
otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries" in
this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Subsidiary Guarantor": each Subsidiary of the Borrower other than (a)
any Excluded Subsidiary and (b) any Excluded Foreign Subsidiary, provided,
however, that notwithstanding the foregoing, each Subsidiary (other than Xxxxxxx
Indemnity, Ltd.) that has any Guarantee Obligations in respect of the Senior
Notes (or any refinancing, refunding, renewal or extension thereof) shall be a
"Subsidiary Guarantor".
25
"Supermajority Lenders": at any time, the holders of more than 85% of
(a) until the Closing Date, the Commitments and (b) thereafter, the sum of (i)
the aggregate unpaid principal amount of the Term Loans then outstanding and
(ii) the Total Revolving Credit Commitments then in effect or, if the Revolving
Credit Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding.
"Syndication Agents": as defined in the preamble hereto.
"Term Loan": as defined in Section 2.1.
"Term Loan Commitment": as to any Lender, the obligation of such
Lender, if any, to make a Term Loan to the Borrower hereunder in a principal
amount not to exceed the amount set forth under the heading "Term Loan
Commitment" opposite such Lender's name on Schedule 1 to the Lender Addendum
delivered by such Lender, or, as the case may be, in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same may
be changed from time to time pursuant to the terms hereof. The original
aggregate amount of the Term Loan Commitments is $135,000,000.
"Term Loan Facility": as defined in the definition of "Facility" in
this Section 1.1.
"Term Loan Lender": each Lender that has a Term Loan Commitment or is
the holder of a Term Loan.
"Term Loan Maturity Date: October 22, 2008.
"Term Loan Mortgages": each of the mortgages and deeds of trust made by
any Loan Party in favor of, or for the benefit of, the Administrative Agent for
the benefit of the applicable Secured Parties, substantially in the form of
Exhibit D-3 (with such changes thereto as shall be advisable under the law of
the jurisdiction in which such mortgage or deed of trust is to be recorded), as
the same may be amended, supplemented or otherwise modified from time to time.
"Term Loan Percentage": as to any Term Loan Lender at any time, the
percentage which such Lender's Term Loan Commitment then constitutes of the
aggregate Term Loan Commitments (or, at any time after the Closing Date, the
percentage which the aggregate principal amount of such Lender's Term Loan then
outstanding constitutes of the aggregate principal amount of the Term Loans then
outstanding).
"Term Note": as defined in Section 2.6(e).
"Total Revolving Credit Commitments": at any time, the aggregate amount
of the Revolving Credit Commitments then in effect.
"Total Revolving Extensions of Credit": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Credit Lenders
outstanding at such time.
"Transferee": as defined in Section 10.14.
26
"2006 Senior Notes": the 9% Senior Notes due 2006 of the Borrower
issued pursuant to the Indenture, dated as of February 1, 1996, among the
Borrower, certain Subsidiaries of the Borrower and HSBC, as successor to
JPMorgan Chase Bank (formerly known as Chemical Bank), as trustee.
"Type": as to any Loan, its nature as a Base Rate Loan or a Eurodollar
Loan.
"U.S. Lender": each Agent or Lender (or Transferee) that is a United
States person as defined in Section 7701(a)(30) of the Code.
"Wholly Owned Subsidiary": as to any Person, any other Person all of
the Capital Stock of which (other than directors' qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor that is a
Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP;
provided that if at any time after June 30, 2003 there shall occur any change in
respect of GAAP from that used in the preparation of audited financial
statements referred to in Section 6.1 in a manner that would have a material
effect on any matter under Section 7, the Borrower and the Administrative Agent
will, within 15 Business Days of notice from the Administrative Agent or the
Borrower, as the case may be, to that effect, commence, and continue in good
faith, negotiations with a view towards making appropriate amendments to the
provisions hereof acceptable to the Borrower and the Required Lenders, to
reflect as nearly as possible the effect of Section 7 as in effect on the date
hereof; provided, further, that, until such notice shall have been withdrawn or
the relevant provisions amended in accordance herewith, Section 7 shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) All calculations of financial ratios set forth in Section 7.1
and the calculation of the Consolidated Senior Secured Leverage Ratio for
purposes of determining the Applicable Margin and the ECF Percentage shall be
calculated to the same number of decimal
27
places as the relevant ratios are expressed in and shall be rounded upward if
the number in the decimal place immediately following the last calculated
decimal place is five or greater. For example, if the relevant ratio is to be
calculated to the hundredth decimal place and the calculation of the ratio is
5.126, the ratio will be rounded up to 5.13.
(f) Notwithstanding anything to the contrary contained in this
Agreement, for purposes of calculating Consolidated EBITDA for any period, any
Disposition of Phase I Assets or any acquisition permitted under this Agreement
shall not result in any restatement or adjustment of Consolidated EBITDA.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Loan Commitments. Subject to the terms and conditions
hereof, (a) the Term Loan Lenders severally agree to make term loans (each, a
"Term Loan") to the Borrower on the Closing Date in an amount for each Term Loan
Lender not to exceed the amount of the Term Loan Commitment of such Lender. The
Term Loans may from time to time be Eurodollar Loans or Base Rate Loans, as
determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.2 and 2.11.
2.2 Procedure for Term Loan Borrowing. The Borrower shall deliver
to the Administrative Agent a Borrowing Notice (which Borrowing Notice must be
received by the Administrative Agent prior to 12:00 Noon, New York City time,
one Business Day prior to the anticipated Closing Date) requesting that the Term
Loan Lenders make the Term Loans on the Closing Date. The Term Loans made on the
Closing Date shall initially be Base Rate Loans. Upon receipt of such Borrowing
Notice the Administrative Agent shall promptly notify each Term Loan Lender
thereof. Not later than 12:00 Noon, New York City time, on the Closing Date each
Term Loan Lender shall make available to the Administrative Agent at the Funding
Office an amount in immediately available funds equal to the Term Loan or Term
Loans to be made by such Lender. The Administrative Agent shall make available
to the Borrower the aggregate of the amounts made available to the
Administrative Agent by the Term Loan Lenders, in like funds as received by the
Administrative Agent. Notwithstanding the foregoing, the proceeds of the Loans
(together with a portion of the proceeds of the Subordinated Notes) will be
deposited in the Escrow Account on the Closing Date and, at the request of the
Borrower, on the date on which payment is required to be made in respect of the
Borrower's redemption of the 2006 Senior Notes, such amount will be released
from the Escrow Account to fund such redemption and pay related fees and
expenses, including the applicable call premium.
2.3 Repayment of Term Loans. The Term Loan of each Term Loan
Lender shall mature in 20 consecutive installments, commencing on December 31,
2003, each of which shall be in an amount equal to such Lender's Term Loan
Percentage multiplied by the amount set forth below opposite such installment:
Installment Principal Amount
----------- ----------------
December 31, 2003 $ 337,500
March 31, 2004 $ 337,500
June 30, 2004 $ 337,500
September 30, 2004 $ 337,500
28
Installment Principal Amount
----------- ----------------
December 31, 2004 $ 337,500
March 31, 2005 $ 337,500
June 30, 2005 $ 337,500
September 30, 2005 $ 337,500
December 31, 2005 $ 337,500
March 31, 2006 $ 337,500
June 30, 2006 $ 337,500
September 30, 2006 $ 337,500
December 31, 2006 $ 337,500
March 31, 2007 $ 337,500
June 30, 2007 $ 337,500
September 30, 2007 $ 337,500
December 31, 2007 $ 32,400,000
March 31, 2008 $ 32,400,000
June 30, 2008 $ 32,400,000
Term Loan Maturity Date $ 32,400,000
2.4 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, the Revolving Credit Lenders severally agree to make
revolving credit loans ("Revolving Credit Loans") to the Borrower from time to
time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding for each Revolving Credit Lender which, when
added to such Lender's Revolving Credit Percentage of the L/C Obligations then
outstanding, does not exceed the amount of such Lender's Revolving Credit
Commitment, provided that no Revolving Credit Loans may be made on the Closing
Date. During the Revolving Credit Commitment Period the Borrower may use the
Revolving Credit Commitments by borrowing, prepaying the Revolving Credit Loans
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Revolving Credit Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified
to the Administrative Agent in accordance with Sections 2.5 and 2.11, provided
that no Revolving Credit Loan shall be made as a Eurodollar Loan after the day
that is one month prior to the Revolving Credit Termination Date.
(b) The Borrower shall repay all outstanding Revolving Credit
Loans on the Revolving Credit Termination Date.
2.5 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments on any Business Day during the
Revolving Credit Commitment Period, provided that the Borrower shall deliver to
the Administrative Agent a Borrowing Notice (which Borrowing Notice must be
received by the Administrative Agent prior to 12:00 Noon, New York City time,
(a) three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, or (b) on the requested Borrowing Date, in the case of Base
Rate Loans). Each borrowing of Revolving Credit Loans under the Revolving Credit
Commitments shall be in an amount equal to (x) in the case of Base Rate Loans,
$1,000,000 or a whole multiple thereof (or, if the then aggregate Available
Revolving Credit Commitments are less than $1,000,000, such lesser amount) and
(y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Upon receipt of any such Borrowing Notice
29
from the Borrower, the Administrative Agent shall promptly notify each Revolving
Credit Lender thereof. Each Revolving Credit Lender will make its Revolving
Credit Percentage of the amount of each borrowing of Revolving Credit Loans
available to the Administrative Agent for the account of the Borrower at the
Funding Office prior to 3:00 p.m., New York City time, on the Borrowing Date
requested by the Borrower in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent in like funds as received by the Administrative Agent.
2.6 Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
the appropriate Revolving Credit Lender or Term Loan Lender, as the case may be,
(i) the then unpaid principal amount of each Revolving Credit Loan of such
Revolving Credit Lender on the Revolving Credit Termination Date (or on such
earlier date on which the Loans become due and payable pursuant to Section 8)
and (ii) the principal amount of each Term Loan of such Term Loan Lender in
installments according to the amortization schedule set forth in Section 2.3 (or
on such earlier date on which the Loans become due and payable pursuant to
Section 8), provided that to the extent not otherwise paid in full, all
principal outstanding in respect of the Term Loans shall be paid on the Term
Loan Maturity Date. The Borrower hereby further agrees to pay interest on the
unpaid principal amount of the Loans from time to time outstanding from the date
hereof until payment in full thereof at the rates per annum, and on the dates,
set forth in Section 2.13.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent, on behalf of the Borrower, shall
maintain the Register pursuant to Section 10.6(d), and a subaccount therein for
each Lender, in which shall be recorded (i) the amount of each Loan made
hereunder and any Note evidencing such Loan, the Type of such Loan and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to Section 2.6(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
the Borrower by such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will promptly execute and
deliver to such Lender a promissory note of the Borrower evidencing any Term
Loans or Revolving Credit Loans, as the case may be, of such Lender,
substantially in the forms of Exhibit G-1 or G-2, respectively (a "Term Note" or
"Revolving Credit Note", respectively), with appropriate insertions as to date
and principal
30
amount; provided that delivery of Notes shall not be a condition precedent to
the occurrence of the Closing Date or the making of the Loans on the Closing
Date.
2.7 Commitment Fees, etc. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment of
such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and on the
Revolving Credit Termination Date, commencing on the first of such dates to
occur after the date hereof.
(b) The Borrower agrees to pay to the Agents the fees in the
amounts and on the dates from time to time agreed to in writing by the Borrower
and the Agents.
2.8 Termination or Reduction of Revolving Credit Commitments. The
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent, to terminate the Revolving Credit Commitments or, from
time to time, to reduce the aggregate amount of the Revolving Credit
Commitments; provided that no such termination or reduction of Revolving Credit
Commitments shall be permitted if, after giving effect thereto and to any
prepayments of the Revolving Credit Loans made on the effective date thereof,
the Total Revolving Extensions of Credit would exceed the Total Revolving Credit
Commitments. Any such reduction shall be in an amount equal to $1,000,000, or a
whole multiple thereof, and shall reduce permanently the Revolving Credit
Commitments then in effect.
2.9 Optional Prepayments. The Borrower may at any time and from
time to time prepay the Loans, in whole or in part, without premium or penalty
(except as otherwise provided herein), upon irrevocable notice delivered to the
Administrative Agent at least three Business Days prior thereto in the case of
Eurodollar Loans and not later than 11:00 a.m., New York City time, on the date
of such prepayment in the case of Base Rate Loans, which notice shall specify
the date and amount of such prepayment, whether such prepayment is of Term Loans
or Revolving Credit Loans, and whether such prepayment is of Eurodollar Loans or
Base Rate Loans; provided that, if a Eurodollar Loan is prepaid on any day other
than the last day of the Interest Period applicable thereto, the Borrower shall
also pay any amounts owing pursuant to Section 2.19. Upon receipt of any such
notice the Administrative Agent shall promptly notify each relevant Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with (except in the
case of Revolving Credit Loans that are Base Rate Loans) accrued interest to
such date on the amount prepaid. Partial prepayments of Term Loans and Revolving
Credit Loans shall be in an aggregate principal amount of $1,000,000 or a whole
multiple thereof.
2.10 Mandatory Prepayments. (a) Unless the Required Prepayment
Lenders shall otherwise agree, if any Capital Stock shall be issued (other than
Capital Stock purchased by officers, directors and employees of the Borrower or
any of its Subsidiaries pursuant to the exercise by such Persons of stock
options), or Indebtedness incurred, by the Borrower or any of its Subsidiaries
(excluding any Indebtedness incurred in accordance with Section 7.2), then on
the date of such issuance or incurrence, the Loans shall be prepaid by an amount
equal to 50% of
31
the Net Cash Proceeds of such Capital Stock issuance and 100% of the Net Cash
Proceeds of such incurrence of Indebtedness, in each case as set forth in
Section 2.10(e). The provisions of this Section do not constitute a consent to
the issuance of any equity securities by any entity whose equity securities are
pledged pursuant to the Guarantee and Collateral Agreement, or a consent to the
incurrence of any Indebtedness by the Borrower or any of its Subsidiaries.
(b) Unless the Required Prepayment Lenders shall otherwise agree,
if on any date the Borrower or any of its Subsidiaries shall receive Net Cash
Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment
Notice shall be delivered in respect thereof, on the date of receipt by the
Borrower of such Net Cash Proceeds, the Loans shall be prepaid by an amount
equal to the amount of such Net Cash Proceeds, as set forth in Section 2.10(e);
provided that, notwithstanding the foregoing, (i) the aggregate Net Cash
Proceeds of Asset Sales and Recovery Events that may be excluded from the
foregoing requirement pursuant to a Reinvestment Notice shall not exceed
$20,000,000 in any fiscal year of the Borrower (and, in the case of the fiscal
year of the Borrower in which it Disposes of its corporate headquarters pursuant
to a Sale and Leaseback Transaction permitted by Section 7.11, an additional
amount equal to the lesser of (A) the Net Cash Proceeds of such Sale and
Leaseback Transaction and (B) $30,000,000) and (ii) on each Reinvestment
Prepayment Date the Loans shall be prepaid by an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event,
as set forth in Section 2.10(e). The provisions of this Section do not
constitute a consent to the consummation of any Disposition not permitted by
Section 7.5.
(c) Unless the Required Prepayment Lenders shall otherwise agree,
if, for any fiscal year of the Borrower commencing with the fiscal year ending
December 31, 2004, there shall be Excess Cash Flow, then, on the relevant Excess
Cash Flow Application Date, the Loans shall be prepaid by an amount equal to the
ECF Percentage of such Excess Cash Flow, as set forth in Section 2.10(e). Each
such prepayment shall be made on a date (an "Excess Cash Flow Application Date")
no later than five days after the earlier of (i) the date on which the financial
statements of the Borrower referred to in Section 6.1(a), for the fiscal year
with respect to which such prepayment is made, are required to be delivered to
the Lenders and (ii) the date such financial statements are actually delivered.
(d) Unless all of the Lenders shall otherwise agree, the Term
Loans shall be prepaid by any amount (up to an amount equal to the aggregate
outstanding principal amount of the Term Loans plus accrued and unpaid interest
thereon) remaining in the Escrow Account on the date which is 75 days after the
Closing Date if the redemption of the 2006 Senior Notes has not been consummated
by such date.
(e) Amounts to be applied in connection with prepayments made
pursuant to paragraphs (a), (b) and (c) of this Section shall be applied, first,
to the prepayment of the Term Loans and, second, to the prepayment of Revolving
Credit Loans, provided that if the aggregate principal amount of Revolving
Credit Loans then outstanding is less than the amount to be applied to prepay
Revolving Credit Loans (because L/C Obligations constitute a portion thereof),
the Borrower shall, to the extent of the balance of such excess, replace
outstanding Letters of Credit and/or deposit an amount in cash in a cash
collateral account established with the Administrative Agent for the benefit of
the Revolving Credit Lenders on terms and conditions
32
satisfactory to the Administrative Agent. No such prepayment of Revolving Credit
Loans shall be required to be accompanied by a permanent reduction of the
Revolving Credit Commitments.
2.11 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to Base Rate Loans by giving
the Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may be made
only on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert Base Rate Loans to Eurodollar Loans by
giving the Administrative Agent at least three Business Days' prior irrevocable
notice of such election (which notice shall specify the length of the initial
Interest Period therefor), provided that no Base Rate Loan under a particular
Facility may be converted into a Eurodollar Loan (i) when any Event of Default
has occurred and is continuing and the Administrative Agent has, or the Majority
Facility Lenders in respect of such Facility have, determined in its or their
sole discretion not to permit such conversions or (ii) after the date that is
one month prior to the final scheduled termination or maturity date of such
Facility. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
(b) Subject to Section 2.15, the Borrower may elect to continue
any Eurodollar Loan as such upon the expiration of the then current Interest
Period with respect thereto by giving irrevocable notice to the Administrative
Agent, in accordance with the applicable provisions of the term "Interest
Period" set forth in Section 1.1, of the length of the next Interest Period to
be applicable to such Loans, provided that no Eurodollar Loan under a particular
Facility may be continued as such (i) when any Event of Default has occurred and
is continuing and the Administrative Agent has, or the Majority Facility Lenders
in respect of such Facility have, determined in its or their sole discretion not
to permit such continuations or (ii) after the date that is one month prior to
the final scheduled termination or maturity date of such Facility, and provided,
further, that if the Borrower shall fail to give any required notice as
described above in this paragraph or if such continuation is not permitted
pursuant to the preceding proviso, such Loans shall be converted automatically
to Base Rate Loans on the last day of such then expiring Interest Period. Upon
receipt of any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof.
2.12 Minimum Amounts and Maximum Number of Eurodollar Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurodollar Loans and all
selections of Interest Periods shall be in such amounts and be made pursuant to
such elections so that, (a) after giving effect thereto, the aggregate principal
amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal
to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no
more than ten Eurodollar Tranches shall be outstanding at any one time.
2.13 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin in effect for such day.
33
(b) Each Base Rate Loan shall bear interest for each day on which
it is outstanding at a rate per annum equal to the Base Rate in effect for such
day plus the Applicable Margin in effect for such day.
(c) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all outstanding Loans and Reimbursement
Obligations (whether or not overdue) (to the extent legally permitted) shall
bear interest at a rate per annum that is equal to (x) in the case of the Loans,
the rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this Section plus 2% or (y) in the case of Reimbursement
Obligations, the rate applicable to Base Rate Loans under the Revolving Credit
Facility plus 2%, and (ii) if all or a portion of any interest payable on any
Loan or Reimbursement Obligation or any commitment fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum equal to the rate then applicable to Base Rate Loans under the
relevant Facility plus 2% (or, in the case of any such other amounts that do not
relate to a particular Facility, the rate then applicable to Base Rate Loans
under the Revolving Credit Facility plus 2%), in each case, with respect to
clauses (i) and (ii) above, from the date of such non-payment until such amount
is paid in full (after as well as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this Section
shall be payable from time to time on demand.
2.14 Computation of Interest and Fees. (a) Interest, fees and
commissions payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to Base Rate
Loans on which interest is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the relevant Lenders of
each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of the effective date
and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.13(a).
2.15 Inability to Determine Interest Rate. If prior to the first
day of any Interest Period:
(a) the Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting
34
the relevant market, adequate and reasonable means do not exist for ascertaining
the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Majority Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected Loans during
such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as Base Rate
Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as Base Rate Loans and (z) any outstanding Eurodollar Loans under the
relevant Facility shall be converted, on the last day of the then current
Interest Period with respect thereto, to Base Rate Loans. Until such notice has
been withdrawn by the Administrative Agent, no further Eurodollar Loans under
the relevant Facility shall be made or continued as such, nor shall the Borrower
have the right to convert Loans under the relevant Facility to Eurodollar Loans.
2.16 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee or Letter of Credit fee, and any reduction of the Commitments
of the Lenders, shall be made pro rata according to the respective Term Loan
Percentages or Revolving Credit Percentages, as the case may be, of the relevant
Lenders. Each payment in respect of principal or interest in respect of the Term
Loans and each payment in respect of fees payable hereunder shall be applied to
the amounts of such obligations owing to the Lenders pro rata according to the
respective amounts then due and owing to the Lenders.
(b) Each payment (including each prepayment) of the Term Loans
shall be allocated among the Term Loan Lenders holding such Term Loans pro rata
based on the principal amount of such Term Loans held by such Term Loan Lenders,
and shall be applied to the installments of such Term Loans pro rata based on
the remaining outstanding principal amount of such installments. Amounts repaid
or prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Credit Loans shall be made
pro rata according to the respective outstanding principal amounts of the
Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment
in respect of Reimbursement Obligations in respect of any Letter of Credit shall
be made to the Issuing Lender that issued such Letters of Credit.
(d) The application of any payment of Loans under any Facility
(including optional and mandatory prepayments) shall be made, first, to Base
Rate Loans under such Facility and, second, to Eurodollar Loans under such
Facility. Each payment of the Loans (except in the case of Revolving Credit
Loans that are Base Rate Loans) shall be accompanied by accrued interest to the
date of such payment on the amount paid.
35
(e) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the relevant Lenders, at the Payment Office, in
Dollars and in immediately available funds. Any payment made by the Borrower
after 12:00 Noon, New York City time, on any Business Day shall be deemed to
have been made on the next following Business Day. The Administrative Agent
shall distribute such payments to the Lenders promptly upon receipt in like
funds as received. If any payment hereunder (other than payments on the
Eurodollar Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day. If any
payment on a Eurodollar Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such payment
into another calendar month, in which event such payment shall be made on the
immediately preceding Business Day. In the case of any extension of any payment
of principal pursuant to the preceding two sentences, interest thereon shall be
payable at the then applicable rate during such extension.
(f) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
after such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(g) Unless the Administrative Agent shall have been notified in
writing by the Borrower prior to the date of any payment due to be made by the
Borrower hereunder that the Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that the Borrower is
making such payment, and the Administrative Agent may, but shall not be required
to, in reliance upon such assumption, make available to the Lenders their
respective pro rata shares of a corresponding amount. If such payment is not
made to the Administrative Agent by the Borrower within three Business Days
after such due date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant
to the preceding sentence, such amount with interest thereon at the rate per
annum equal to the daily average Federal Funds Effective Rate. Nothing herein
shall be deemed to limit the rights of the Administrative Agent or any Lender
against the Borrower.
36
2.17 Requirements of Law. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Letter
of Credit, any Application or any Eurodollar Loan
made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except
for Non-Excluded Taxes covered by Section 2.18 and
changes in the rate of tax on the overall net income
of such Lender (including any changes in the rate of
any franchise taxes imposed in lieu of net income
taxes));
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar
requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender
that is not otherwise included in the determination
of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender
(other than taxes), by an amount which such Lender deems to be material, of
making, converting into, continuing or maintaining Eurodollar Loans or issuing
or participating in Letters of Credit, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable. If
any Lender becomes entitled to claim any additional amounts pursuant to this
Section, it shall promptly notify the Borrower (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the Administrative
Agent) of a written request therefor, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such corporation
for such reduction.
37
(c) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
obligations of the Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.18 Taxes. (a) Except as provided below, all payments made by the
Borrower under this Agreement shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding (i) net income taxes and (ii) franchise
taxes (imposed in lieu of net income taxes) imposed on any Agent or any Lender
as a result of a present or former connection between such Agent or such Lender
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 Agent's or such Lender's having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document). If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") or any Other Taxes are required to be withheld from any
amounts payable to any Agent or any Lender hereunder, the amounts so payable to
such Agent or such Lender shall be increased to the extent necessary to yield to
such Agent or such Lender (after payment of all Non-Excluded Taxes and Other
Taxes) interest or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement; provided, however, that the Borrower
shall not be required to increase any such amounts payable to any Agent or
Lender with respect to any Non-Excluded Taxes (i) that are attributable to such
Agent's or Lender's failure to comply with the requirements of paragraph (d) or
(e) of this Section or (ii) that are United States withholding taxes imposed on
amounts payable to such Agent or such Lender, as the case may be, at the time
such Agent or such Lender becomes a party to this Agreement, except to the
extent that such Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to such
Non-Excluded Taxes pursuant to this paragraph (a).
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by
the Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for the account of the relevant Agent or Lender, as the
case may be, a certified copy of an original official receipt received by the
Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded
Taxes or Other Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Agents and the Lenders
for any incremental taxes, interest or penalties that may become payable by any
Agent or any Lender as a result of any such failure. The agreements in this
Section shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
(d) (i) Each Non-U.S. Lender shall deliver to the Borrower and the
Administrative Agent (or, in the case of a Participant, to the Lender from which
the related
38
participation shall have been purchased) two copies of either U.S. Internal
Revenue Service Form W-8BEN or Form W-8ECI, 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 statement
substantially in the form of Exhibit I and a Form W-8BEN, or any subsequent
versions thereof or successors thereto, 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 all payments by the Borrower under this
Agreement and the other Loan Documents. Such forms shall be delivered by each
Non-U.S. Lender on or before the date it becomes a party to this Agreement (or,
in the case of any Participant, on or before the date such Participant purchases
the related participation). In addition, each Non-U.S. Lender shall deliver such
forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify
the Borrower and the Administrative Agent at any time it determines that it is
no longer in a position to provide any previously delivered certificate to the
Borrower or the Administrative Agent (or any other form, statement or form of
certification adopted by the U.S. taxing authorities for such purpose) (or, in
the case of any Participant, such Participant shall promptly notify the Lender
from which the related participation shall have been purchased). Notwithstanding
any other provision of this paragraph, a Non-U.S. Lender shall not be required
to deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver.
(ii) Each U.S. Lender shall deliver to the Borrower and the
Administrative Agent (or, in the case of such a Participant, to the Lender from
which the related participation shall have been purchased) two copies of U.S.
Internal Revenue Service Form W-9, or any subsequent versions thereof or
successors thereto, properly completed and duly executed by such U.S. Lender
certifying that such U.S. Lender is entitled to an exemption from United States
backup withholding tax on all payments by the Borrower under this Agreement and
the other Loan Documents. Such forms shall be delivered by each U.S. Lender on
or before the date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the related
participation). In addition, each U.S. Lender shall deliver such forms promptly
upon the obsolescence or invalidity of any form previously delivered by such
U.S. Lender. Each Lender shall promptly notify the Borrower and the
Administrative Agent at any time it determines that it is no longer in a
position to provide any previously delivered form, statement, or certificate to
the Borrower or the Administrative Agent (or any other form, statement, or form
of certification adopted by the U.S. taxing authorities for such purpose) (or,
in the case of any such Participant, such Participant shall promptly notify the
Lender from which the related participation shall have been purchased).
Notwithstanding any other provision of this paragraph, a U.S. Lender shall not
be required to deliver any form pursuant to this paragraph that such U.S. Lender
is not legally able to deliver.
(e) A Lender or an Agent that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the jurisdiction in which
the Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided that,
such Lender is legally entitled to complete, execute and deliver such
documentation and in such Lender's reasonable judgment
39
such completion, execution or submission would not materially prejudice the
legal position of such Lender.
(f) If any Agent or any Lender determines, in its sole good-faith
discretion, that it has received a refund of any Non-Excluded Taxes or Other
Taxes as to which it has been indemnified by the Borrower or with respect to
which the Borrower has paid additional amounts pursuant to this Section 2.18, it
shall pay over such refund to the Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower under this Section
2.18 with respect to the Non-Excluded Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of such Agent or such Lender and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that such Borrower, upon the
request of such Agent or such Lender, agrees to promptly repay the amount paid
over to such Borrower to such Agent or such Lender in the event such Agent or
such Lender is required to repay such refund to such Governmental Authority.
This paragraph shall not be construed to require any Agent or any Lender to make
available its tax returns (or any other information relating to its taxes which
it deems confidential) to the Borrower or any other Person.
(g) For the avoidance of doubt, each reference in this Section
2.18 to the Lenders (or any of them) shall be deemed to include the Issuing
Lender.
2.19 Indemnity. The Borrower agrees to indemnify each Lender for,
and to hold each Lender harmless from, any loss or expense that such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment or conversion of
Eurodollar Loans on a day that is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount equal to the excess,
if any, of (i) the amount of interest that would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to the
last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included therein,
if any) over (ii) the amount of interest (as reasonably determined by such
Lender) that would have accrued to such Lender on such amount by placing such
amount on deposit for a comparable period with leading banks in the interbank
Eurodollar market. A certificate as to any amounts payable pursuant to this
Section submitted to the Borrower by any Lender shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
2.20 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue
40
Eurodollar Loans as such and convert Base Rate Loans to Eurodollar Loans shall
forthwith be canceled and (b) such Lender's Loans then outstanding as Eurodollar
Loans, if any, shall be converted automatically to Base Rate Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion
of a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to Section 2.19.
2.21 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.17, 2.18(a) or
2.20 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 with the
object of avoiding the consequences of such event; provided that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of any Borrower or the rights of any Lender
pursuant to Section 2.17, 2.18(a) or 2.20.
2.22 Optional Increase of Revolving Credit Facility. (a) In
accordance with the provisions of this Section 2.22, in the event that the
Additional Letter of Credit Facility is not effective by March 31, 2004, the
Borrower may, at its option, at any five times after such date during the term
of this Agreement, request in writing (each, an "Optional Increase Request")
that the Revolving Credit Facility be increased by up to $25,000,000 in the
aggregate for all Optional Increase Requests, provided that (i) no Default or
Event of Default shall exist at the time of or after giving effect to such
increase and the use of proceeds thereof, (ii) the Loan Parties shall be in pro
forma compliance with the financial covenants contained in Section 7.1 after
giving effect to such increase (as if such increase had become effective on the
first day of the applicable period of four consecutive fiscal quarters) and the
use of proceeds thereof, (iii) the Administrative Agent shall have received
evidence satisfactory to it that the incurrence of such additional Indebtedness
will not violate the terms of either the Senior Note Indenture or the
Subordinated Note Indenture and (iv) each such Optional Increase Request shall
be for Revolving Credit Commitments in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000.
(b) Any Optional Increase Request shall be submitted by the
Borrower to the Lenders through the Administrative Agent not less than 30 days
prior to the proposed increase, specify the proposed effective date and amount
of such increase and be accompanied by (i) a certificate of a Responsible
Officer of the Borrower stating that no Default or Event of Default exists as of
the date of the request or will result from the requested increase, (ii) a
written consent to the increase in the amount of the Revolving Credit
Commitments executed by the Subsidiary Guarantors and (iii) such information as
the Administrative Agent may reasonably request for use in syndication of the
increase in the Revolving Credit Commitments. The Borrower may also specify any
fees offered to those Lenders which agree to increase their Revolving Credit
Commitment (which fees may be variable based upon the amount which any such
Lender is willing to provide of such increase in Revolving Credit Commitments).
The consent of the Lenders parties hereto at the time of such increase shall not
be required for an increase in the amount of any Revolving Credit Commitment
pursuant to this Section.
41
(c) Each Lender may approve or reject an Optional Increase Request
in its sole and absolute discretion and, absent an affirmative written response
within 15 days after receipt of such request, shall be deemed to have rejected
the request. The rejection of such a request by any number of Lenders shall not
affect the Borrower's right to increase the Revolving Credit Commitments
pursuant to this Section as a result of, and with respect to, those Lenders that
approve such increase and such additional Lenders that join this Agreement in
accordance with paragraph (f) of this Section. Notwithstanding any other
provision hereof, no Lender which rejects an Optional Increase Request shall be
(i) subject to removal as a Lender as a result of such rejection, (ii) obligated
to lend any amount in respect of such increase in Revolving Credit Commitments
or (iii) as a result of such rejection, deemed to be in default in any respect
hereunder.
(d) In responding to any Optional Increase Request under this
Section, each Lender that is willing to increase its Revolving Credit Commitment
shall specify the amount of the proposed increase which it is willing to assume
(which shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 or such lesser amount as is agreed to by
the Borrower and the Administrative Agent (it being understood that such amount
shall be subject to allocation in the event of over-subscription, with such
allocation among such Lenders (other than any New Lenders) to be made in
accordance with their respective Revolving Credit Percentages in effect
immediately prior to such increase in the Revolving Credit Commitments)). The
effectiveness of any increase in the Revolving Credit Commitments shall be
contingent upon (i) execution and delivery by the Administrative Agent and the
Borrower of an Optional Increase Amendment relating to such increase in
Revolving Credit Commitments, (ii) execution and delivery by each Lender
providing any additional Revolving Credit Commitments of a Lender Addendum, with
such changes thereto as are necessary to reflect that such Lender Addendum
relates to the Optional Increase Amendment rather than this Agreement, pursuant
to which each such Lender becomes a party to the Optional Increase Amendment
relating to such increase in Revolving Credit Commitments, (iii) execution and
delivery by the Borrower and its Subsidiaries of such amendments to the Security
Documents (including amendments to the Revolving Credit Loan Mortgages) or such
other documents as the Administrative Agent reasonably deems necessary or
desirable to reflect the terms of the Optional Increase Amendment, (iv) receipt
by the Administrative Agent of endorsements to each mortgagee's title insurance
policy or binding marked up title commitments satisfying the requirements of
Section 5.1(s), (v) execution and delivery by the Borrower and the other Loan
Parties of Security Documents, in form and substance acceptable to the
Administrative Agent, pursuant to which such Loan Parties grant to the
Administrative Agent, for the benefit of the Secured Parties under the Guarantee
and Collateral Agreement, a security interest in all Receivables of the type
previously pledged to secure the Xxxxxxx Funding Facility, (vi) receipt by the
Administrative Agent of evidence satisfactory to it that the Receivables
Financing Program and the related Xxxxxxx Funding Facility have been terminated,
all amounts thereunder have been paid in full and all Liens and security
interests granted in connection therewith have been terminated and (vii) receipt
by the Administrative Agent of such corporate resolutions and officer's
certificates of the Loan Parties and legal opinions of counsel to the Loan
Parties as the Administrative Agent shall reasonably request with respect
thereto, in each case, in form and substance satisfactory to the Administrative
Agent. In the case of any Lender Addendum with respect to an Optional Increase
Amendment executed by any Person that was not theretofore a
42
Lender, upon the effectiveness of such Optional Increase Amendment such Person
shall be a party hereto and a Lender hereunder.
(e) If the aggregate principal amount committed to by the
consenting Lender is less than the amount requested, the Borrower may (i) reject
the proposed optional increase in Revolving Credit Commitments in its entirety,
(ii) accept the offered amounts, (iii) designate one or more additional banks,
financial institutions or other entities which are reasonably acceptable to
Administrative Agent as additional Lenders hereunder in accordance with clause
(f) of this Section (each, a "New Lender"), which New Lenders may commit to the
amount of the increase in the Revolving Credit Commitment that has not been
committed to by the consenting Lenders, or (iv) request the consenting Lenders
to commit to the amount of such request not previously committed to by the
consenting Lenders.
(f) Each New Lender designated by the Borrower and reasonably
acceptable to the Administrative Agent shall become an additional party hereto
as a Lender concurrently with the effectiveness of an Optional Increase
Amendment executed by such Lender and which, in any event, contains the
representations, warranties, indemnities and other protections afforded to the
Administrative Agent and the other Lenders which would be granted or made by an
Assignee under Section 10.6 by means of the execution of an Assignment and
Acceptance.
(g) Subject to the foregoing, any Optional Increase Amendment
requested under this Section shall be effective as of the date proposed by the
Borrower and shall provide for increases in the Revolving Credit Commitments in
an aggregate principal amount equal to, without duplication, (i) the amount to
which consenting Lenders are willing to commit plus (ii) the amount committed to
by any New Lenders. Upon the effectiveness of any such Optional Increase
Amendment, the Borrower shall, at the request of any Lender, issue new or
replacement Revolving Credit Notes, as applicable, to each such affected Lender
and new Revolving Credit Notes to each such new Lender, and the percentage pro
rata share of each Lender will be adjusted, higher or lower as needed, to give
effect to the increase in the outstanding Revolving Credit Commitments.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, each Issuing Lender, in reliance on the agreements of the other
Revolving Credit Lenders set forth in Section 3.4(a), agrees to issue letters of
credit (the "Letters of Credit") for the account of the Borrower on any Business
Day during the Revolving Credit Commitment Period in such form as may be
approved from time to time by such Issuing Lender; provided that no Issuing
Lender shall have any obligation to issue any Letter of Credit if, after giving
effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment
or (ii) the aggregate amount of the Available Revolving Credit Commitments would
be less than zero. Each Letter of Credit shall (i) be denominated in Dollars and
(ii) expire no later than the earlier of (x) the first anniversary of its date
of issuance and (y) the date which is five Business Days prior to the Revolving
Credit Termination Date; provided that any Letter of Credit with a one-year term
may provide for the renewal thereof for additional one-year periods (which shall
in no event extend beyond the date referred to in clause (y) above).
43
(b) No Issuing Lender shall at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause such
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. The Borrower may
from time to time request that an Issuing Lender issue a Letter of Credit by
delivering to such Issuing Lender and the Administrative Agent, at their
respective addresses for notices specified herein, an Application therefor,
completed to the satisfaction of such Issuing Lender, and such other
certificates, documents and other papers and information as such Issuing Lender
may request. Upon receipt of any Application, an Issuing Lender will process
such Application and the certificates, documents and other papers and
information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby by issuing the original of such Letter of Credit to the beneficiary
thereof or as otherwise may be agreed to by such Issuing Lender and the Borrower
(but in no event shall any Issuing Lender be required to issue any Letter of
Credit earlier than three Business Days after receipt by such Issuing Lender and
the Administrative Agent of the Application therefor and all such other
certificates, documents and other papers and information relating thereto).
Promptly after issuance by an Issuing Lender of a Letter of Credit, such Issuing
Lender shall furnish a copy of such Letter of Credit to the Borrower and the
Administrative Agent. Each Issuing Lender shall promptly give notice to the
Administrative Agent of the issuance of each Letter of Credit issued by such
Issuing Lender (including the amount thereof).
3.3 Fees and Other Charges. (a) The Borrower will pay a fee on the
aggregate drawable amount of all outstanding Letters of Credit at a per annum
rate equal to the Applicable Margin then in effect with respect to Eurodollar
Loans under the Revolving Credit Facility, shared ratably among the Revolving
Credit Lenders in accordance with their respective Revolving Credit Percentages
and payable quarterly in arrears on each L/C Fee Payment Date after the issuance
date. In addition, the Borrower shall pay to the relevant Issuing Lender for its
own account a fronting fee at a rate of 0.40% per annum on the aggregate
drawable amount of all outstanding Letters of Credit issued by it, payable
quarterly in arrears on each L/C Fee Payment Date after the issuance date.
(b) In addition to the foregoing fees, the Borrower shall pay or
reimburse each Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by such Issuing Lender in issuing, negotiating,
effecting payment under, amending or otherwise administering any Letter of
Credit.
3.4 L/C Participations. (a) Each Issuing Lender irrevocably agrees
to grant and hereby grants to each L/C Participant, and, to induce each Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from each Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk, an undivided interest equal to such L/C
Participant's Revolving Credit Percentage in each Issuing Lender's obligations
and rights under each Letter of Credit issued by such Issuing Lender hereunder
and the amount of each draft paid by such Issuing Lender thereunder. Each L/C
Participant unconditionally and irrevocably agrees with each Issuing Lender
that, if a draft is paid under any Letter of Credit issued by such Issuing
Lender for which such Issuing Lender is not reimbursed in full by the Borrower
in accordance
44
with the terms of this Agreement, such L/C Participant shall pay to the
Administrative Agent, for the account of such Issuing Lender, upon demand at the
Administrative Agent's Payment Office (and thereafter the Administrative Agent
shall promptly pay to such Issuing Lender) an amount equal to such L/C
Participant's Revolving Credit Percentage of the amount of such draft, or any
part thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to an
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion
of any payment made by such Issuing Lender under any Letter of Credit is paid to
such Issuing Lender within three Business Days after the date such payment is
due, such Issuing Lender shall so notify the Administrative Agent, who shall
promptly notify such L/C Participant, and such L/C Participant shall pay to the
Administrative Agent, for the account of such Issuing Lender, on demand (and
thereafter the Administrative Agent shall promptly pay to such Issuing Lender)
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available
to such Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
Section 3.4(a) is not made available to the Administrative Agent, for the
account of such Issuing Lender, by such L/C Participant within three Business
Days after the date such payment is due, the Administrative Agent, on behalf of
such Issuing Lender, shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to Base Rate Loans under the Revolving Credit
Facility. A certificate of the Administrative Agent submitted on behalf of such
Issuing Lender to any L/C Participant with respect to any such amounts owing
under this Section shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after an Issuing Lender has made payment
under any Letter of Credit and has received from the Administrative Agent any
L/C Participant's pro rata share of such payment in accordance with Section
3.4(a), such Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the Borrower or otherwise, including proceeds of
collateral applied thereto by such Issuing Lender), or any payment of interest
on account thereof, such Issuing Lender will distribute to the Administrative
Agent for the account of such L/C Participant (and thereafter the Administrative
Agent will promptly distribute to such L/C Participant) its pro rata share
thereof; provided, however, that in the event that any such payment received by
such Issuing Lender shall be required to be returned by such Issuing Lender,
such L/C Participant shall return to the Administrative Agent for the account of
such Issuing Lender (and thereafter the Administrative Agent shall promptly
return to such Issuing Lender) the portion thereof previously distributed by
such Issuing Lender.
3.5 Reimbursement Obligation of the Borrower. The Borrower agrees
to reimburse each Issuing Lender, on each date on which such Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by such Issuing Lender, for the amount of (a) such
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by such Issuing Lender in connection with such payment (the amounts
described in the foregoing clauses (a) and (b) in respect of any drawing,
collectively, the "Payment Amount"). Each such payment shall be made to such
Issuing Lender at its address for
45
notices specified herein in lawful money of the United States of America and in
immediately available funds. Interest shall be payable on each Payment Amount
from the date of the applicable drawing until payment in full at the rate set
forth in (i) until the second Business Day following the date of the applicable
drawing, Section 2.13(b) and (ii) thereafter, Section 2.13(c). Each drawing
under any Letter of Credit shall (unless an event of the type described in
clause (i) or (ii) of Section 8(f) shall have occurred and be continuing with
respect to the Borrower, in which case the procedures specified in Section 3.4
for funding by L/C Participants shall apply) constitute a request by the
Borrower to the Administrative Agent for a borrowing pursuant to Section 2.5 of
Base Rate Loans in the amount of such drawing. The Borrowing Date with respect
to such borrowing shall be the first date on which a borrowing of Revolving
Credit Loans could be made, pursuant to Section 2.5, if the Administrative Agent
had received a notice of such borrowing at the time the Administrative Agent
receives notice from the relevant Issuing Lender of such drawing under such
Letter of Credit.
3.6 Obligations Absolute. The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that the
Borrower may have or have had against any Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with each Issuing
Lender that such Issuing Lender shall not be responsible for, and the Borrower's
Reimbursement Obligations under Section 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. No Issuing Lender
shall be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Issuing Lender.
The Borrower agrees that any action taken or omitted by an Issuing Lender under
or in connection with any Letter of Credit issued by it or the related drafts or
documents, if done in the absence of gross negligence or willful misconduct and
in accordance with the standards or care specified in the Uniform Commercial
Code of the State of New York, shall be binding on the Borrower and shall not
result in any liability of such Issuing Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the relevant Issuing Lender shall promptly
notify the Borrower and the Administrative Agent of the date and amount thereof.
The responsibility of the relevant Issuing Lender to the Borrower in connection
with any draft presented for payment under any Letter of Credit, in addition to
any payment obligation expressly provided for in such Letter of Credit issued by
such Issuing Lender, shall be limited to determining that the documents
(including each draft) delivered under such Letter of Credit in connection with
such presentment appear on their face to be in conformity with such Letter of
Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
46
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement and
to make the Loans and issue or participate in the Letters of Credit, the
Borrower hereby represents and warrants to each Agent and each Lender that:
4.1 Financial Condition. (a) The unaudited pro forma consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at June 30,
2003 (the "Pro Forma Balance Sheet"), copies of which have heretofore been
furnished to each Lender, has been prepared giving effect (as if such events had
occurred on such date) to (i) the consummation of the Refinancing, (ii) the
Loans to be made and the Subordinated Notes to be issued on the Closing Date and
the use of proceeds thereof, (iii) the payment of fees and expenses in
connection with the foregoing and (iv) the application of the net cash proceeds
of Dispositions by the Borrower or any of its Subsidiaries made after June 30,
2003 and before the Closing Date. The Pro Forma Balance Sheet has been prepared
based on the best information available to the Borrower as of the date of
delivery thereof, and presents fairly on a pro forma basis the estimated
financial position of Borrower and its consolidated Subsidiaries as at June 30,
2003, assuming that the events specified in the preceding sentence had actually
occurred at such date.
(b) The audited consolidated balance sheets of the Borrower as at
December 31, 2000, December 31, 2001 and December 31, 2002, and the related
consolidated statements of income and of cash flows for the fiscal years ended
on such dates, reported on by and accompanied by an unqualified report from
Ernst & Young LLP, present fairly the consolidated financial condition of the
Borrower as at such date, and the consolidated results of its operations and its
consolidated cash flows for the respective fiscal years then ended. The
unaudited consolidated balance sheet of the Borrower as at June 30, 2003, and
the related unaudited consolidated statements of income and cash flows for the
six-month period ended on such date, present fairly the consolidated financial
condition of the Borrower as at such date, and the consolidated results of its
operations and its consolidated cash flows for the six-month period then ended
(subject to normal year-end audit adjustments). All such financial statements
have been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by the aforementioned firm of accountants
and disclosed therein). Except as disclosed in accordance with this Agreement,
the Borrower and its Subsidiaries do not have any material Guarantee
Obligations, contingent liabilities and liabilities for taxes, or any long-term
leases or unusual forward or long-term commitments, including, without
limitation, any interest rate or foreign currency swap or exchange transaction
or other obligation in respect of derivatives, that are not reflected in the
most recent financial statements referred to in this paragraph. During the
period from December 31, 2002 to and including the date hereof, except as listed
on Schedule 4.1, there has been no Disposition by the Borrower or any of its
Subsidiaries of any material part of its business or Property.
4.2 No Change. Since December 31, 2002 there has been no
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of the Borrower
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to
47
own and operate its Property, to lease the Property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation 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 and (d) is in compliance with all
Requirements of Law, other than with respect to Environmental Laws which are
covered in Section 4.17, except to the extent that the failure to so qualify or
comply therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations. Each
Loan Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and, in the case
of the Borrower, to borrow hereunder. Each Loan Party has taken all necessary
corporate or other action to authorize the execution, delivery and performance
of the Loan Documents to which it is a party and, in the case of the Borrower,
to authorize the borrowings on the terms and conditions of this Agreement. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the Refinancing, the borrowings hereunder or the execution,
delivery, performance, validity or enforceability of this Agreement or any of
the other Loan Documents, except (i) consents, authorizations, filings and
notices described in Schedule 4.4, which consents, authorizations, filings and
notices have been obtained or made and are in full force and effect, (ii) the
filings referred to in Section 4.19 and (iii) the notices and other actions
required to redeem the 2006 Senior Notes. Each Loan Document has been duly
executed and delivered on behalf of each Loan Party that is a party thereto.
This Agreement constitutes, and each other Loan Document upon execution will
constitute, a legal, valid and binding obligation of each Loan Party that is a
party thereto, enforceable against each such Loan Party in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents, the issuance of Letters of Credit, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or any Contractual Obligation of the Borrower or any of its
Subsidiaries and will not result in, or require, the creation or imposition of
any Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation (other than the Liens
created by the Security Documents). No Requirement of Law or Contractual
Obligation applicable to the Borrower or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
4.6 No Material Adverse Litigation. Other than with respect to
matters arising under, or relating to, Environmental Laws which are covered in
Section 4.17, no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Borrower, threatened by or against the Borrower or any of its Subsidiaries or
against any of their respective businesses, properties or revenues that could
reasonably be expected to have a Material Adverse Effect.
48
4.7 No Default. Neither the Borrower nor any of its Subsidiaries
is in default under or with respect to any of its Contractual Obligations in any
respect that could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the Borrower and its
Subsidiaries has title in fee simple to, or a valid leasehold interest in, all
its real property, and good title to, or a valid leasehold interest in, all its
other Property, except where the failure to so own or hold a leasehold interest
could not reasonably be expected to have a Material Adverse Effect, and none of
such Property is subject to any Lien except as permitted by Section 7.3.
4.9 Intellectual Property. The Borrower and each of its
Subsidiaries owns, or is licensed to use, all Intellectual Property necessary
for the conduct of its business as currently conducted. No material claim has
been asserted and is pending by any Person challenging or questioning the use of
any Intellectual Property or the validity or effectiveness of any Intellectual
Property, nor does the Borrower know of any valid basis for any such claim. The
use of Intellectual Property by the Borrower and its Subsidiaries does not
infringe on the rights of any Person in any material respect.
4.10 Taxes. Each of the Borrower and each of its Subsidiaries has
filed or caused to be filed all Federal, state and other material tax returns
that are required to be filed and has paid all material taxes shown to be due
and payable on said returns or on any assessments made against it or any of its
Property and all other material taxes, fees or other charges imposed on it or
any of its Property by any Governmental Authority (other than any the amount or
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Borrower or its Subsidiaries, as the case may be);
and, to the knowledge of the Borrower, no claim is being asserted, with respect
to any such tax, fee or other charge, except for Liens permitted pursuant to
Section 7.3(a) hereof.
4.11 Federal Regulations. No part of the proceeds of any Loans will
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect or for any purpose that violates the provisions of the
Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-3 or FR Form U-1 referred to in Regulation U.
4.12 Labor Matters. There are no strikes or other labor disputes
against the Borrower or any of its Subsidiaries pending or, to the knowledge of
the Borrower, threatened that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. Hours worked by and
payment made to employees of the Borrower and its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement of
Law dealing with such matters that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. All payments due from
the Borrower or any of its Subsidiaries on account of employee health and
welfare insurance that (individually or in the
49
aggregate) could reasonably be expected to have a Material Adverse Effect if not
paid have been paid or accrued as a liability on the books of the Borrower or
the relevant Subsidiary.
4.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has occurred, and no Lien
in favor of the PBGC or a Plan has arisen, during such five-year period. The
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits by a material amount. Neither the Borrower nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan that
has resulted or could reasonably be expected to result in a material liability
under ERISA, and neither the Borrower nor any Commonly Controlled Entity would
become subject to any material liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent.
4.14 Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
4.15 Subsidiaries. (a) The Subsidiaries listed on Schedule 4.15
constitute all the Subsidiaries of the Borrower at the date hereof. Schedule
4.15 sets forth as of the Closing Date the name and jurisdiction of
incorporation of each Subsidiary and, as to each Subsidiary, the percentage of
each class of Capital Stock owned by each Loan Party.
(b) There are no outstanding subscriptions, options, warrants, calls,
rights or other agreements or commitments (other than directors' qualifying
shares) of any nature relating to any Capital Stock of any Subsidiary of the
Borrower.
4.16 Use of Proceeds. The proceeds of the Term Loans shall be used
to fund a portion of the Refinancing and to pay related fees and expenses. The
proceeds of the Revolving Credit Loans, and the Letters of Credit, shall be used
to finance the working capital needs and general corporate purposes of the
Borrower and its Subsidiaries and, in the case of Revolving Credit Loans, to
prepay, repurchase or otherwise redeem Senior Notes to the extent permitted by
the last sentence of Section 7.9.
4.17 Environmental Matters. (a) Other than exceptions to any of the
following that could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect:
50
(i) The Borrower and its Subsidiaries: (A) are, and
within the period of all applicable statutes of
limitation have been, in compliance with all
applicable Environmental Laws; (B) hold all
Environmental Permits (each of which is in full force
and effect) required for any of their current
operations or for any property owned, leased, or
otherwise operated by any of them; (C) are, and
within the period of all applicable statutes of
limitation have been, in compliance with all of their
Environmental Permits; and (D) reasonably believe
that each of their Environmental Permits will be
timely renewed and complied with, without material
expense.
(ii) To the knowledge of the Borrower or any of its
Subsidiaries, (A) any additional Environmental
Permits that are reasonably likely to be required of
any of them will be timely obtained and complied
with, without material expense, and (B) compliance
with any Environmental Law that is or is reasonably
likely to become applicable to any of them will be
timely attained and maintained, without material
expense.
(iii) Materials of Environmental Concern are not present
at, on, under, or in any real property now or to the
knowledge of the Borrower or any of its Subsidiaries
formerly owned, leased or operated by the Borrower or
any of its Subsidiaries, or to the knowledge of the
Borrower or any of its Subsidiaries at any other
location (including, without limitation, any location
to which Materials of Environmental Concern have been
sent for re-use or recycling or for treatment,
storage, or disposal) which could reasonably be
expected to (A) give rise to liability of the
Borrower or any of its Subsidiaries under any
applicable Environmental Law or otherwise result in
costs to the Borrower or any of its Subsidiaries, or
(B) interfere with the Borrower's or any of its
Subsidiaries' continued operations, or (C) impair the
fair saleable value of any real property owned or
leased by the Borrower or any of its Subsidiaries.
(iv) There is no judicial, administrative, or arbitral
proceeding (including any notice of violation or
alleged violation) under or relating to any
Environmental Law to which the Borrower or any of its
Subsidiaries is, or to the knowledge of the Borrower
or any of its Subsidiaries will be, named as a party
that is pending or, to the knowledge of the Borrower
or any of its Subsidiaries, threatened.
(v) Neither the Borrower nor any of its Subsidiaries has
received any written request for information, or been
notified that it is a potentially responsible party
under or relating to the federal Comprehensive
Environmental Response, Compensation, and
51
Liability Act or any similar Environmental Law, or
with respect to any Materials of Environmental
Concern.
(vi) Neither the Borrower nor any of its Subsidiaries has
entered into or agreed to any consent decree, order,
or settlement or other agreement, or is subject to
any judgment, decree, or order or other agreement, in
any judicial, administrative, arbitral, or other
forum for dispute resolution, relating to compliance
with or liability under any Environmental Law.
(vii) Neither the Borrower nor any of its Subsidiaries has
assumed or retained, by contract or operation of law,
any liabilities of any kind, fixed or contingent,
known or unknown, under any Environmental Law or with
respect to any Material of Environmental Concern.
(b) For the purposes of Section 8, each of the foregoing
representations and warranties contained in this Section 4.17 that are qualified
by knowledge of the Borrower or any of its Subsidiaries shall be deemed not to
be so qualified.
4.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or statement furnished
to the Administrative Agent or the Lenders or any of them, by or on behalf of
any Loan Party for use in connection with the transactions contemplated by this
Agreement or the other Loan Documents, contained as of the date such statement,
information, document or certificate was so furnished (or, in the case of the
Confidential Information Memorandum, as of the date of this Agreement), any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained herein or therein not
misleading. The projections and pro forma financial information contained in the
materials referenced above are based upon good faith estimates and assumptions
believed by management of the Borrower to be reasonable at the time made, it
being recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount.
4.19 Security Documents. (a) The Guarantee and Collateral Agreement
is effective to create in favor of the Administrative Agent, for the benefit of
the applicable Secured Parties, a legal, valid and enforceable security interest
in the Collateral described therein and proceeds thereof. In the case of the
Pledged Securities described in the Guarantee and Collateral Agreement, when any
stock certificates and promissory notes representing such Pledged Securities are
delivered to the Administrative Agent, and in the case of the other Collateral
described in the Guarantee and Collateral Agreement, a security interest in
which may be perfected by filing UCC-1 financing statements or filing with the
United States Patent and Trademark Office or the United States Copyright Office,
when financing statements in appropriate form are filed in the offices specified
on Schedule 4.19(a) (which financing statements have been duly completed and
delivered to the Administrative Agent) and such other filings as are specified
on Schedule 3 to the Guarantee and Collateral Agreement have been
52
completed (all of which filings have been duly completed and executed and
delivered to the Administrative Agent), the Guarantee and Collateral Agreement
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in such Collateral and the proceeds
thereof, as security for the Obligations (as defined in the Guarantee and
Collateral Agreement), in each case prior and superior in right to any other
Person (except, in the case of Collateral other than Pledged Stock, Liens
permitted by Section 7.3).
(b) Each of the Term Loan Mortgages is effective to create in
favor of the Administrative Agent, for the benefit of the applicable Secured
Parties, a legal, valid and enforceable Lien on the Group 1 Mortgaged Properties
described therein and proceeds thereof; and when the Term Loan Mortgages are
filed in the offices specified on Schedule 4.19(b) (in the case of the Term Loan
Mortgages to be executed and delivered on the Closing Date) or in the recording
office designated by the Borrower (in the case of any Term Loan Mortgage to be
executed and delivered pursuant to Section 6.9), each Term Loan Mortgage shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the Loan Parties in the Group 1 Mortgaged Properties described
therein and the proceeds thereof, as security for the Obligations (as defined in
the relevant Term Loan Mortgage), in each case prior and superior in right to
any other Person (other than Persons holding Liens or other encumbrances or
rights permitted by the relevant Term Loan Mortgage).
(c) Each of the Revolving Credit Loan Mortgages is effective to
create in favor of the Administrative Agent, for the benefit of the applicable
Secured Parties, a legal, valid and enforceable Lien on the Mortgaged Properties
described therein and proceeds thereof; and when the Revolving Credit Loan
Mortgages are filed in the offices specified on Schedule 4.19(b) (in the case of
the Revolving Credit Loan Mortgages to be executed and delivered on the Closing
Date) or in the recording office designated by the Borrower (in the case of any
Revolving Credit Loan Mortgage to be executed and delivered pursuant to Section
6.9), each Revolving Credit Loan Mortgage shall constitute a fully perfected
Lien on, and security interest in, all right, title and interest of the Loan
Parties in the Mortgaged Properties described therein and the proceeds thereof,
as security for the Obligations (as defined in the relevant Revolving Credit
Loan Mortgage), in each case prior and superior in right to any other Person
(other than Persons holding Liens or other encumbrances or rights permitted by
the relevant Revolving Credit Loan Mortgage, which permitted encumbrances shall
include, in the case of any Group 1 Mortgaged Properties encumbered by a Term
Loan Mortgage, the Lien created on such Mortgaged Property by the relevant Term
Loan Mortgage).
4.20 Solvency. The Borrower and its Subsidiaries, taken as a whole,
are, and after giving effect to the Refinancing and the incurrence of all
Indebtedness and obligations being incurred in connection herewith and therewith
will be and will continue to be, Solvent.
4.21 Senior Indebtedness. The Obligations constitute "Senior Debt"
and "Designated Senior Debt" of the Borrower under and as defined in the
Subordinated Note Indenture.
4.22 Regulation H. No Mortgage encumbers improved real property
which is located in an area that has been identified by the Secretary of Housing
and Urban Development as an area having special flood hazards and in which flood
insurance has been made available
53
under the National Flood Insurance Act of 1968 (except any Mortgaged Properties
as to which such flood insurance as required by Regulation H has been obtained
and is in full force and effect as required by this Agreement).
4.23 Compliance With Health Care Laws. Without limiting the
generality of Section 4.3(d) or any other representation or warranty made
herein, to the Borrower's knowledge, the health care facilities, providers,
suppliers and other businesses owned or operated by the Borrower and its
Subsidiaries (collectively, the "Health Care Facilities"), and each of their
respective licensed employees and independent contractors in the exercise of
their respective duties on behalf of such Health Care Facilities, are in
compliance with all applicable Health Care Laws (including without limitation
Section 1128B(b) of the Social Security Act, as amended, 42 U.S.C. Section
1320a-7(b) (Criminal Penalties Involving Medicare or State Health Care
Programs), commonly referred to as the "Federal Anti-Kickback Statute," and the
Social Security Act, as amended, Section 1877, 42 U.S.C. Section 1395nn
(Prohibition Against Certain Referrals), commonly referred to as "Xxxxx
Statute") except to the extent that the failure to comply therewith could not,
in the aggregate, reasonably be expected to have a Material Adverse Effect. The
Borrower and each of its Subsidiaries have maintained in all material respects
all records required to be maintained by the Joint Commission on Accreditation
of Healthcare Organizations (if applicable), any Governmental Authority and the
federal Medicare and state Medicaid programs as required by the Health Care Laws
and, to the knowledge of the Borrower, there are no presently existing
circumstances or violations of Health Care Laws which are, in the aggregate,
reasonably likely to result in a Material Adverse Effect. The Borrower and its
Subsidiaries and the owners of the Health Care Facilities operated or managed by
the Borrower or its Subsidiaries have such permits, licenses, franchises,
certificates, provider agreements and other approvals or authorizations
(collectively "Governmental Approvals") of Governmental Authorities as are
necessary under applicable law to own their respective properties and to conduct
their respective business (including without limitation Government Approvals as
are necessary to xxxx the Medicare, Medicaid and other governmental programs,
and under such HMO or similar licensure laws and such insurance laws and
regulations, as are applicable thereto) except to the extent that the failure to
obtain or possess such Governmental Approvals or authorizations could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect. There
are no proceedings pending or, to the Borrower's knowledge, threatened by any
Governmental Authority seeking to modify, revoke or suspend such Governmental
Approvals. None of the Borrower or any Subsidiary has taken any action with
respect to a Facility that would materially adversely affect such Government
Approvals.
4.24 HIPAA Compliance. To the extent that and for so long as any
Health Care Facility of the Borrower or any of its Subsidiaries is a "covered
entity" within the meaning of HIPAA, the Borrower and its Subsidiaries (a) have
undertaken or will promptly undertake all necessary surveys, audits,
inventories, reviews, analyses and/or assessments (including any necessary risk
assessments) of all areas of their business and operations required by HIPAA
and/or that could be adversely affected by the failure of the Borrower and its
Subsidiaries to be HIPAA Compliant (as defined below); (b) have developed or
will promptly develop a detailed plan and time line for becoming HIPAA Compliant
(a "HIPAA Compliance Plan"); and (c) have implemented or will implement those
provisions of such HIPAA Compliance Plan in all material respects necessary to
ensure that the Borrower and its Subsidiaries are or become HIPAA Compliant. For
purposes hereof, "HIPAA Compliant" shall mean that the Borrower and its
54
Subsidiaries (i) are or will be in compliance with each of the applicable
requirements of the so-called "Administrative Simplification" provisions of
HIPAA on and as of each date that any part thereof, or any final rule or
regulation thereunder, becomes effective in accordance with its or their terms,
as the case may be (each such date, a "HIPAA Compliance Date") and (ii) are not
and could not reasonably be expected to become, as of any date following any
such HIPAA Compliance Date, the subject of any civil or criminal penalty,
process, claim, action or proceeding, or any administrative or other regulatory
review, survey, process or proceeding (other than routine surveys or reviews
conducted by any Governmental Authority or accreditation entity) that could
reasonably be expected to have a Material Adverse Effect.
4.25 Reimbursement From Third Party Payors. Each of the Borrower
and its Subsidiaries is in compliance with the written material reimbursement
policies, rules and regulations of third party payors such as Medicare,
Medicaid, or other governmental programs, private insurance companies, health
maintenance organizations, preferred provider organizations, managed care
systems and other third party payors, including, without limitation, adjustments
under any capitation arrangement, fee schedule, discount formula, prospective
payment system or cost-based reimbursement system the failure to comply with
which could reasonably be expected to have a Material Adverse Effect.
4.26 Fraud and Abuse. Neither the Borrower nor any Subsidiary, nor
any officer or director, acting on behalf of the Borrower or any Subsidiary, has
engaged on behalf of the Borrower or any Subsidiary in any of the following,
except as could not be reasonably be expected to have a Material Adverse Effect:
(a) knowing and willfully making or causing to be made a false statement or
representation of a material fact in any applications for any benefit or payment
under the Medicare, Medicaid other federal or state health care program; (b)
knowing and willfully making or causing to be made any false statement or
representation of a material fact for use in determining rights to any benefit
or payment under Medicare, Medicaid other federal or state health care program;
(c) any knowing and willful failure by the Borrower or any Subsidiary to
disclose to the appropriate Governmental Authority or government contractor any
material overpayment or other improper payment received from the Medicare,
Medicaid other federal or state health care program; or (d) any knowing and
willful violation of the federal or state anti-kickback or fraud and abuse laws
or the regulations promulgated thereunder.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement of
each Lender to make the initial extension of credit requested to be made by it
hereunder is subject to the satisfaction, prior to or concurrently with the
making of such extension of credit on the Closing Date, of the following
conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received
(i) this Agreement, executed and delivered by a duly authorized officer of the
Borrower, (ii) the Guarantee and Collateral Agreement, executed and delivered by
a duly authorized officer of the Borrower and each Subsidiary Guarantor, (iii) a
Term Loan Mortgage and a Revolving Credit Loan Mortgage covering each of the
Group 1 Mortgaged Properties and a Revolving Credit Loan Mortgage covering each
of the Group 2 Mortgaged Properties (in each case, other than the Post-
55
Closing Mortgaged Properties), executed and delivered by a duly authorized
officer of each party thereto, (iv) a Lender Addendum, executed and delivered by
each Lender and accepted by the Borrower, and (v) the Escrow Agreement, executed
and delivered by a duly authorized officer of the Borrower and the escrow agent
named therein.
(b) Subordinated Notes. The Borrower shall have received at least
$115,000,000 in gross cash proceeds from the issuance and sale of the
Subordinated Notes, on terms and conditions satisfactory to the Lenders.
(c) Refinancing. The Refinancing (other than the repayment of the
2006 Senior Notes and the repayment of certain other indebtedness in respect of
which prior notice is required for prepayment) shall occur on the Closing Date,
and the Administrative Agent shall have received satisfactory evidence of the
consummation thereof, including evidence satisfactory to the Administrative
Agent that the Existing Credit Agreement and related loan documentation shall be
simultaneously terminated, all amounts thereunder shall be simultaneously paid
in full or otherwise satisfied and arrangements satisfactory to the
Administrative Agent shall have been made for the termination of Liens and
security interests granted in connection therewith.
(d) Redemption of 2006 Senior Notes. The Administrative Agent
shall have received satisfactory evidence that the Borrower has commenced on the
Closing Date the required actions to redeem the 2006 Senior Notes, including the
giving notice of redemption thereof. The Administrative Agent shall have
received satisfactory evidence that, after giving effect to the deposit into the
Escrow Account on the Closing Date of the proceeds of the Term Loans together
with a portion of the proceeds of the Subordinated Notes, the Escrow Account
contains an amount sufficient to fund the redemption of the 2006 Senior Notes
and related fees and expenses, including the call premium relating to such
redemption.
(e) Pro Forma Balance Sheet; Financial Statements. The Lenders
shall have received (i) the Pro Forma Balance Sheet, (ii) audited consolidated
financial statements of the Borrower for the 2000, 2001 and 2002 fiscal years
and (iii) unaudited interim consolidated financial statements of the Borrower
for each quarterly period ended subsequent to the date of the latest applicable
financial statements delivered pursuant to clause (ii) of this paragraph as to
which such financial statements are available; and such financial statements
shall not, in the reasonable judgment of the Lenders, reflect any material
adverse change in the consolidated financial condition of the Borrower, as
reflected in the financial statements or projections contained in the
Confidential Information Memorandum.
(f) Approvals. All governmental and third party approvals
(including landlords' and other consents, if any) necessary in connection with
the Refinancing, the continuing operations of the Borrower and its Subsidiaries
and the transactions contemplated hereby shall have been obtained and be in full
force and effect, and all applicable waiting periods shall have expired without
any action being taken or threatened by any competent authority which would
restrain, prevent or otherwise impose material adverse conditions on the
Refinancing or the financing contemplated hereby.
(g) Related Agreements. The Administrative Agent shall have
received true and correct copies, certified as to authenticity by the Borrower,
of (i) the Subordinated Note
56
Indenture, (ii) the Senior Note Indenture, (iii) the master documentation
entered into in connection with the Xxxxxxx Funding Facility and (iv) such other
documents or instruments as (subject to compliance with any applicable
confidentiality requirements) may be reasonably requested by the Administrative
Agent.
(h) Fees. The Lenders, the Arranger and the Agents shall have
received all fees required to be paid, and all reasonable out-of-pocket expenses
required to be reimbursed for which invoices have been presented (including
reasonable fees, disbursements and other charges of counsel to the
Administrative Agent), on or before the Closing Date. All such amounts will be
paid with proceeds of Loans made on the Closing Date and will be reflected in
the funding instructions given by the Borrower to the Administrative Agent on or
before the Closing Date.
(i) Business Plan. The Lenders shall have received a business plan
for fiscal years 2003 through 2008.
(j) Pro Forma EBITDA and Ratios. The Lenders shall have received
satisfactory evidence that (i) the Borrower's consolidated pro forma EBITDA,
calculated in a manner satisfactory to the Administrative Agent for the period
of four consecutive fiscal quarters most recently ended prior to the Closing
Date for which financial statements are available (the "Pro Forma EBITDA"),
shall have been not less than $150,000,000, (ii) the ratio of Consolidated Total
Debt on the Closing Date (after giving pro forma effect to the incurrence of
indebtedness on the Closing Date and the application of the proceeds thereof,
including the anticipated application of such proceeds to prepay the 2006 Senior
Notes) will be not greater than 4.1 times the Pro Forma EBITDA and (iii) the
ratio of Consolidated Senior Secured Debt on the Closing Date (determined on a
pro forma basis as described in clause (ii) above) will be not greater than 2.1
times the Pro Forma EBITDA.
(k) Solvency Certificate. The Lenders shall have received a
solvency certificate from a Responsible Officer of the Borrower, certifying the
solvency of the Borrower and its Subsidiaries considered as a whole after giving
effect to the Refinancing and the other transactions contemplated hereby.
(l) Lien Searches. The Administrative Agent shall have received
the results of a recent lien search in each of the jurisdictions in which
Uniform Commercial Code financing statement or other filings or recordations
should be made to evidence or perfect security interests in all assets of the
Loan Parties (other than any Excluded Subsidiaries), and such search shall
reveal no liens on any of the assets of any Loan Party, except for Liens
permitted by Section 7.3 and Liens to be terminated on or prior to the Closing
Date.
(m) Environmental Matters. The Administrative Agent shall have
received all environmental information reasonably required by the Administrative
Agent regarding environmental matters relating to the Borrower and its
Subsidiaries, and such information shall be reasonably acceptable to the
Administrative Agent, and shall be satisfactory in form, scope, and substance to
the Administrative Agent in its reasonable discretion.
(n) Expenses. The Administrative Agent shall have received
satisfactory evidence that the fees and expenses to be incurred in connection
with the Refinancing and the
57
financing thereof (including the call premium payable in connection with the
redemption of the 2006 Senior Notes) shall not exceed $14,000,000.
(o) Closing Certificate. The Administrative Agent shall have
received a certificate of each Loan Party (other than any Excluded Subsidiary),
dated the Closing Date, substantially in the form of Exhibit C, with appropriate
insertions and attachments.
(p) Legal Opinions. The Administrative Agent shall have received
the following executed legal opinions:
(i) the legal opinion of Weil, Gotshal & Xxxxxx LLP,
counsel to the Borrower and its Subsidiaries,
substantially in the form of Exhibit F-1;
(ii) the legal opinion of Xxxx Xxxxx, Esq., General
Counsel - Corporate of the Borrower and its
Subsidiaries, substantially in the form of Exhibit
F-2; and
(iii) the legal opinion of local counsel in each of the
states listed on Schedule 5.1(p) and of such other
special and local counsel as may be required by the
Administrative Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
(q) Pledged Stock; Stock Powers. The Administrative Agent shall
have received the certificates representing the shares of Capital Stock pledged
pursuant to the Guarantee and Collateral Agreement, together with an undated
stock power for each such certificate executed in blank by a duly authorized
officer of the pledgor thereof.
(r) Filings, Registrations and Recordings. Each document
(including, without limitation, any Uniform Commercial Code financing statement)
required by the Security Documents or under law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order to create in
favor of the Administrative Agent, for the benefit of the applicable Secured
Parties, a perfected Lien on the Collateral described therein, prior and
superior in right to any other Person (other than with respect to Liens
expressly permitted by Section 7.3), shall have been filed, registered or
recorded or shall have been delivered to the Administrative Agent in proper form
for filing, registration or recordation.
(s) Title Insurance; Flood Insurance. (i) The Administrative Agent
shall have received in respect of each Mortgaged Property (other than the
Post-Closing Mortgaged Properties) a mortgagee's title insurance policy (or
policies) or marked up unconditional binder for such insurance. Each such policy
shall (A) be in an amount satisfactory to the Administrative Agent; (B) be
issued at ordinary rates; (C) insure that the Mortgage insured thereby creates,
in the case of each Term Loan Mortgage, a valid first Lien on the applicable
Group 1 Mortgaged Property free and clear of all defects and encumbrances,
except for Permitted Encumbrances, and, in the case of each Revolving Credit
Loan Mortgage, a valid second Lien on the applicable Group 1 Mortgaged Property,
second in priority only to the Lien of the Term Loan Mortgage or a
58
valid first Lien on the applicable Group 2 Mortgaged Property, in each case,
free and clear of all defects and encumbrances, except for Permitted
Encumbrances; (D) name the Administrative Agent for the benefit of the
applicable Secured Parties as the insured thereunder; (E) be in the form of ALTA
Loan Policy - 1970 (Amended 10/17/70 and 10/17/84) (or equivalent policies); (F)
contain such endorsements and affirmative coverage as the Administrative Agent
may reasonably request and (G) be issued by title companies reasonably
satisfactory to the Administrative Agent (including any such title companies
acting as co-insurers or reinsurers, at the option of the Administrative Agent).
The Administrative Agent shall have received evidence satisfactory to it that
all premiums in respect of each such policy, all charges for mortgage recording
tax, and all related expenses, if any, have been paid.
(ii) If requested by the Administrative Agent, the Administrative Agent
shall have received (A) a policy of flood insurance that (1) covers any parcel
of improved real property that is encumbered by any Mortgage, (2) is written in
an amount not less than the outstanding principal amount of the indebtedness
secured by such Mortgage that is reasonably allocable to such real property or
the maximum limit of coverage made available with respect to the particular type
of property under the National Flood Insurance Act of 1968, whichever is less,
and (3) has a term ending not later than the maturity of the indebtedness
secured by such Mortgage or that may be extended to such maturity date and (B)
confirmation that the Borrower has received the notice required pursuant to
Section 208(e)(3) of Regulation H of the Board.
(iii) The Administrative Agent shall have received a copy of all
recorded documents referred to, or listed as exceptions to title in, the title
policy or policies referred to in clause (i) above and a copy of all other
documents relating thereto and requested by the Administrative Agent.
(t) Insurance. The Administrative Agent shall have received
insurance certificates satisfying the requirements of Section 5.2 of the
Guarantee and Collateral Agreement.
5.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit requested to be made by it hereunder on
any date (including, without limitation, its initial extension of credit and any
issuance of a Letter of Credit) is subject to the satisfaction of the following
conditions precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by any Loan Party in or pursuant to the Loan Documents shall
be true and correct in all material respects on and as of such date as if made
on and as of such date, unless such representation and warranty relates to an
earlier date, in which case such representation and warranty shall be true and
correct in all material respects as of such earlier date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or immediately after giving effect to the
extensions of credit requested to be made on such date.
59
Each borrowing by and issuance of a Letter of Credit on behalf of the
Borrower hereunder shall constitute a representation and warranty by the
Borrower as of the date of such extension of credit that the conditions
contained in this Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Letter of Credit remains outstanding or any Loan or other amount is
owing to any Lender or any Agent hereunder, the Borrower shall and shall cause
each of its Subsidiaries to:
6.1 Financial Statements. Furnish to each Agent and each Lender:
(a) as soon as available, but in any event within 90 days after
the end of each fiscal year of the Borrower, a copy of the audited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the end of
such year and the related audited consolidated statements of income and of cash
flows for such year, setting forth in each case in comparative form the figures
as of the end of and for the previous year, reported on without a "going
concern" or like qualification or exception, or qualification arising out of the
scope of the audit, by Ernst & Young LLP or other independent certified public
accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal year
of the Borrower, the unaudited consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and of cash flows for such quarter
and the portion of the fiscal year through the end of such quarter, setting
forth in each case in comparative form the figures as of the end of and for the
corresponding period in the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal year-end
adjustments); and
(c) as soon as available, but in any event not later than 45 days
after the end of each month occurring during each fiscal year of the Borrower
(other than the third, sixth, ninth and twelfth such month), the unaudited
consolidated balance sheets of the Borrower and its Subsidiaries as at the end
of such month and the related unaudited consolidated statements of income and of
cash flows for such month and the portion of the fiscal year through the end of
such month, setting forth in each case in comparative form the figures as of the
end of and for the corresponding period in the previous year;
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to each Agent and
each Lender, or, in the case of clause (f), to the relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent certified public
accountants reporting on such
60
financial statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default, except as
specified in such certificate (it being understood that such certificate shall
be limited to the items that independent certified public accountants are
permitted to cover in such certificates pursuant to their professional standards
and customs of the profession);
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1(a) or (b), (i) a certificate of a Responsible Officer
stating that, to the best of such Responsible Officer's knowledge, each Loan
Party during such period has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained in this Agreement and
the other Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as specified in such certificate and (ii)
a Compliance Certificate containing all calculations necessary for determining
compliance by the Borrower and its Subsidiaries with the provisions of this
Agreement referred to therein as of the last day of the fiscal quarter or fiscal
year of the Borrower, as the case may be;
(c) as soon as available, and in any event no later than 75 days
after the end of each fiscal year of the Borrower, a detailed consolidated
budget for the following fiscal year (including a projected consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of the following fiscal
year, and the related consolidated statements of projected cash flow, projected
changes in financial position and projected income), and, as soon as available,
significant revisions, if any, of such budget with respect to such fiscal year
(collectively, the "Projections"), which Projections shall in each case be
accompanied by a certificate of a Responsible Officer stating that such
Projections are based on reasonable estimates, information and assumptions;
(d) no later than 10 Business Days prior to the effectiveness
thereof, copies of substantially final drafts of any proposed amendment,
supplement, waiver or other modification with respect to the Subordinated Note
Indenture or the Senior Note Indenture;
(e) within five days after the same are sent, copies of all
financial statements and reports that the Borrower sends to the holders of any
class of its debt securities or public equity securities and, within five days
after the same are filed, to the extent not publicly available, copies of all
financial statements and reports that the Borrower may make to, or file with,
the SEC; and
(f) promptly, such additional financial and other information as
any Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be.
61
6.4 Conduct of Business and Maintenance of Existence, etc. (a) (i)
Preserve, renew and keep in full force and effect its corporate or other
existence and (ii) take all reasonable action to maintain all rights,
privileges, Government Approvals and franchises necessary or desirable in the
normal conduct of its business, except, in each case, as otherwise permitted by
Sections 7.4 and 7.5 and except, in the case of clause (ii) above, to the extent
that failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (b) comply with all Contractual Obligations and Requirements
of Law, except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all Property
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted and except as otherwise permitted by Sections
7.4 and 7.5 and except to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect and (b) maintain with financially
sound and reputable insurance companies insurance on all its Property in at
least such amounts and against at least such risks as are usually insured
against in the same general area by companies engaged in the same or a similar
business; provided that the Borrower and its Subsidiaries may self-insure to the
extent they reasonably deem prudent.
6.6 Inspection of Property; Books and Records; Discussions. (a)
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities and (b)
permit representatives of any Lender to visit and inspect any of its properties
and examine and make abstracts from any of its books and records at any
reasonable time and as often as may reasonably be desired and to discuss the
business, operations, properties and financial and other condition of the
Borrower and its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and with its independent certified public accountants.
6.7 Notices. Promptly give notice to the Administrative Agent and
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the Borrower or
any of its Subsidiaries and any Governmental Authority, that in either case
could reasonably be expected to have a Material Adverse Effect;
(c) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof: (i) the
occurrence of any Reportable Event with respect to any Plan, a failure to make
any required contribution to a Plan, the creation of any Lien in favor of the
PBGC or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or
the taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal from,
or the termination, Reorganization or Insolvency of, any Plan;
62
(d) (i) the destruction or damage of any Mortgaged Property or any
material portion thereof the reasonably estimated cost of repair or replacement
of which is in excess of $1,000,000 or (ii) the institution of any proceedings
for the condemnation of any Mortgaged Property or any material portion thereof;
and
(e) any development or event with respect to the Borrower or any
of its Subsidiaries that has had or could reasonably be expected to have a
Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower or the relevant Subsidiary proposes to take
with respect thereto.
6.8 Environmental Laws. (a) Comply with, and use commercially
reasonable efforts to ensure compliance by all tenants and subtenants, if any,
with all applicable Environmental Laws (including but not limited to all
investigations, studies, sampling and testing, and all remedial, removal and
other actions required thereunder), and obtain and comply with and maintain, and
use commercially reasonable efforts to ensure that all tenants and subtenants
obtain and comply with and maintain, any and all Environmental Permits. For
purposes of this Section 6.8(a), noncompliance by the Borrower with any
applicable Environmental Law or Environmental Permit shall be deemed not to
constitute a breach of this covenant, provided that, upon learning of any actual
or suspected noncompliance, the Borrower shall promptly undertake all reasonable
efforts to achieve compliance, and provided further that, in any case, such
non-compliance, and any other noncompliance with Environmental Law, individually
or in the aggregate, could not reasonably be expected to give rise to a Material
Adverse Effect or materially and adversely affect the value of any Mortgaged
Property.
(b) Promptly comply with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws other than such orders and
directives as to which an appeal or other appropriate measure has been timely
and properly taken in good faith, and provided that the pendency of any and all
such appeals or other appropriate measures could not reasonably be expected to
give rise to a Material Adverse Effect and does not materially and adversely
affect the value of any Mortgaged Property.
(c) Generate, use, treat, store, release, dispose of, and
otherwise manage Materials of Environmental Concern in a manner that would not
reasonably be expected to result in a material liability to the Borrower or any
of its Subsidiaries or to materially affect any real property owned or leased by
any of them; and take reasonable efforts to prevent any other Person from
generating, using, treating, storing, releasing, disposing of, or otherwise
managing Materials of Environmental Concern in a manner that could reasonably be
expected to result in a material liability to, or materially affect any real
property owned or operated by, the Borrower or any of its Subsidiaries.
Noncompliance by the Borrower with this Section 6.8(c) shall be deemed not to
constitute a breach of this covenant provided that, upon learning of any actual
or suspected noncompliance, the Borrower shall promptly undertake all reasonable
efforts to achieve compliance, and provided further that, in any case, such
non-compliance, and any other noncompliance with Environmental Law, individually
or in the aggregate, could not reasonably be expected to give rise to a Material
Adverse Effect or materially and adversely affect the value of any Mortgaged
Property.
63
6.9 Additional Collateral, etc. (a) With respect to any Property
acquired after the Closing Date by the Borrower or any of its Subsidiaries in an
asset swap in which the Property Disposed of is Collateral, promptly (i) if such
acquired Property is personal property, (A) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
or such other documents as the Administrative Agent deems necessary or advisable
to grant to the Administrative Agent, for the benefit of the applicable Secured
Parties, a security interest in such Property and (B) take all actions necessary
or advisable to grant to the Administrative Agent, for the benefit of the
applicable Secured Parties, a perfected first priority security interest in such
Property, including without limitation, the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Guarantee
and Collateral Agreement or by law or as may be requested by the Administrative
Agent and (ii) if such acquired Property is real property, (A) execute and
deliver (x) if the Property so Disposed of was a Group 1 Mortgaged Property, a
first priority Term Loan Mortgage in favor of the Administrative Agent for the
benefit of the applicable Secured Parties, and a second priority Revolving
Credit Loan Mortgage (second in priority only to the Lien of the Term Loan
Mortgage) in favor of the Administrative Agent for the benefit of the applicable
Secured Parties, and (y) if the Property so Disposed of was a Group 2 Mortgaged
Property or was not a Mortgaged Property but was Collateral, a first priority
Revolving Credit Loan Mortgage in favor of the Administrative Agent for the
benefit of the applicable Secured Parties, in each case covering such real
property, (B) if requested by the Administrative Agent, provide the Lenders with
(x) title insurance covering such real property in an amount at least equal to
the purchase price of such real property (or such other amount as shall be
reasonably specified by the Administrative Agent) and (y) any consents or
estoppels reasonably deemed necessary or advisable by the Administrative Agent
in connection with such Mortgage, each of the foregoing in form and substance
reasonably satisfactory to the Administrative Agent, and (C) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(b) With respect to any Property that is substituted by the
Borrower in connection with the Disposition of a Mortgaged Property pursuant to
Section 7.5(k), promptly (i) execute and deliver (A) if the Property so Disposed
of was a Group 1 Mortgaged Property, a first priority Term Loan Mortgage in
favor of the Administrative Agent for the benefit of the applicable Secured
Parties, and a second priority Revolving Credit Loan Mortgage (second in
priority only to the Lien of the Term Loan Mortgage) in favor of the
Administrative Agent for the benefit of the applicable Secured Parties, and (B)
if the Property so Disposed of was a Group 2 Mortgaged Property, a first
priority Revolving Credit Loan Mortgage in favor of the Administrative Agent for
the benefit of the applicable Secured Parties, in each case covering such real
property, (ii) if requested by the Administrative Agent, provide the Lenders
with (A) title insurance covering such real property in an amount at least equal
to the purchase price of such real property (or such other amount as shall be
reasonably specified by the Administrative Agent) and (B) any consents or
estoppels reasonably deemed necessary or advisable by the Administrative Agent
in connection with such Mortgage, each of the foregoing in form and substance
reasonably satisfactory to the Administrative Agent, and (iii) if requested by
the Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
64
(c) With respect to any Post-Closing Mortgaged Property, within 90
days after the Closing Date, (i) execute and deliver (A) if such Property is a
Group 1 Mortgaged Property, a first priority Term Loan Mortgage in favor of the
Administrative Agent for the benefit of the applicable Secured Parties, and a
second priority Revolving Credit Loan Mortgage (second in priority only to the
Lien of the Term Loan Mortgage) in favor of the Administrative Agent for the
benefit of the applicable Secured Parties, and (B) if such Property is a Group 2
Mortgaged Property, a first priority Revolving Credit Loan Mortgage in favor of
the Administrative Agent for the benefit of the applicable Secured Parties, in
each case covering such real property, (ii) provide the Lenders with (A) title
insurance covering such real property in an amount at least equal to the
purchase price of such real property (or such other amount as shall be
reasonably specified by the Administrative Agent) and (B) any consents or
estoppels reasonably deemed necessary or advisable by the Administrative Agent
in connection with such Mortgage, each of the foregoing in form and substance
reasonably satisfactory to the Administrative Agent, and (iii) deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
(d) With respect to any new Subsidiary (other than an Excluded
Subsidiary or an Excluded Foreign Subsidiary) created or acquired after the
Closing Date (which, for the purposes of this paragraph, shall include any
existing Subsidiary that ceases to be an Excluded Subsidiary or an Excluded
Foreign Subsidiary), by the Borrower or any of its Subsidiaries, promptly (i)
execute and deliver to the Administrative Agent such amendments to the Guarantee
and Collateral Agreement as the Administrative Agent deems necessary or
advisable to grant to the Administrative Agent, for the benefit of the
applicable Secured Parties, a perfected first priority security interest in the
Capital Stock of such new Subsidiary that is owned by the Borrower or any of its
Subsidiaries, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the Borrower or such
Subsidiary, as the case may be and (iii) cause such new Subsidiary (A) to become
a party to the Guarantee and Collateral Agreement and (B) to take such actions
necessary or advisable to grant to the Administrative Agent for the benefit of
the applicable Secured Parties a perfected first priority security interest in
the Collateral described in the Guarantee and Collateral Agreement with respect
to such new Subsidiary, including, without limitation, the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required by
the Guarantee and Collateral Agreement or by law or as may be requested by the
Administrative Agent.
(e) With respect to any new Excluded Foreign Subsidiary (other
than an Excluded Subsidiary) created or acquired after the Closing Date by the
Borrower or any of its Subsidiaries (other than any Excluded Subsidiary or any
Excluded Foreign Subsidiaries), promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
or such other documents as the Administrative Agent deems necessary or advisable
in order to grant to the Administrative Agent, for the benefit of the applicable
Secured Parties, a perfected first priority security interest in the Capital
Stock of such new Subsidiary that is owned by the Borrower or any of its
Subsidiaries (other than any Excluded Subsidiary or any Excluded Foreign
Subsidiaries), provided that, notwithstanding any other provision of any Loan
Document, in no event shall more than 65% of the total outstanding Capital Stock
of any such new Excluded Foreign Subsidiary be required to be so pledged and
(ii)
65
deliver to the Administrative Agent the certificates representing such Capital
Stock, together with undated stock powers, in blank, executed and delivered by a
duly authorized officer of the Borrower or such Subsidiary, as the case may be,
and take such other action as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the Lien of the Administrative Agent
thereon.
6.10 Further Assurances. From time to time execute and deliver, or
cause to be executed and delivered, such additional instruments, certificates or
documents, and take such actions, as the Administrative Agent may reasonably
request for the purposes of implementing or effectuating the provisions of this
Agreement and the other Loan Documents, or of more fully perfecting or renewing
the rights of the Administrative Agent and the Lenders with respect to the
Collateral (or with respect to any additions thereto or replacements or proceeds
thereof or with respect to any other property or assets hereafter acquired by
the Borrower or any Subsidiary which may be deemed to be part of the Collateral)
pursuant hereto or thereto. Upon the exercise by the Administrative Agent or any
Lender of any power, right, privilege or remedy pursuant to this Agreement or
the other Loan Documents which requires any consent, approval, recording,
qualification or authorization of any Governmental Authority, the Borrower will
execute and deliver, or will cause the execution and delivery of, all
applications, certifications, instruments and other documents and papers that
the Administrative Agent or such Lender may be required to obtain from the
Borrower or any of its Subsidiaries for such governmental consent, approval,
recording, qualification or authorization.
6.11 Redemption of 2006 Senior Notes. Proceed with all required
actions to redeem the 2006 Senior Notes and, no later than the date that is 75
days after the Closing Date, consummate the redemption of all outstanding 2006
Senior Notes.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Letter of Credit remains outstanding or any Loan or other amount is
owing to any Lender or any Agent hereunder, the Borrower shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio as at the last day of any period of four consecutive fiscal
quarters of the Borrower ending with any fiscal quarter set forth below
to exceed the ratio set forth below opposite such fiscal quarter:
Consolidated
Fiscal Quarter Leverage Ratio
-------------- --------------
FQ4 2003 - FQ3 2004 5.90 to 1.00
FQ4 2004 - FQ3 2005 5.75 to 1.00
FQ4 2005 - FQ2 2006 5.50 to 1.00
FQ3 2006 5.25 to 1.00
FQ4 2006 - FQ3 2007 5.00 to 1.00
66
FQ4 2007 and thereafter 4.75 to 1.00
(b) Consolidated Senior Secured Leverage Ratio. Permit the
Consolidated Senior Secured Leverage Ratio as at the last day of any period of
four consecutive fiscal quarters of the Borrower ending with any fiscal quarter
set forth below to exceed the ratio set forth below opposite such fiscal
quarter:
Consolidated
Fiscal Quarter Senior Secured Leverage Ratio
-------------- -----------------------------
FQ4 2003 - FQ3 2004 2.50 to 1.00
FQ4 2004 - FQ3 2005 2.25 to 1.00
FQ4 2005 - FQ3 2006 2.00 to 1.00
FQ4 2006 and thereafter 1.75 to 1.00
(c) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio for any period of four consecutive fiscal quarters of
the Borrower ending with any fiscal quarter set forth below to be less than the
ratio set forth below opposite such fiscal quarter:
Consolidated
Fiscal Quarter Interest Coverage Ratio
-------------- -----------------------
FQ4 2003 - FQ3 2004 2.50 to 1.00
FQ4 2004 - FQ3 2005 2.75 to 1.00
FQ4 2005 - FQ3 2006 3.00 to 1.00
FQ4 2006 - FQ3 2007 3.25 to 1.00
FQ4 2007 and thereafter 3.50 to 1.00
provided that Consolidated Interest Expense of the Borrower and its Subsidiaries
shall be deemed to equal (i) in the case of the fiscal quarter ending December
31, 2003, Consolidated Interest Expense for such fiscal quarter multiplied by 4,
(ii) in the case of the fiscal quarter ending March 31, 2004, Consolidated
Interest Expense for such fiscal quarter and for the immediately preceding
fiscal quarter multiplied by 2 and (iii) in the case of the fiscal quarter
ending June 30, 2004, Consolidated Interest Expense for such fiscal quarter and
for the immediately two preceding fiscal quarters multiplied by 4/3; provided,
further, that Consolidated Interest Expense of the Borrower and its Subsidiaries
for the fiscal quarter ending December 31, 2003 shall be calculated on a pro
forma basis as if the Refinancing had occurred on the first day of such fiscal
quarter.
7.2 Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary;
67
(c) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 7.3(g) in an aggregate
principal amount at any one time outstanding not to exceed (i) during the period
from the Closing Date through December 31, 2004, $50,000,000 and (ii)
thereafter, $70,000,000;
(d) Indebtedness outstanding on the date hereof and listed on
Schedule 7.2(d) and any refinancings, refundings, renewals or extensions thereof
(without any increase in the principal amount thereof (other than any increase
not exceeding the amount of any fees, premium, if any, and financing costs
relating to such refinancing) or any shortening of the maturity of any principal
amount thereof);
(e) Guarantee Obligations made in the ordinary course of business
by the Borrower or any of its Subsidiaries of obligations of the Borrower or any
Subsidiary Guarantor;
(f) (i) Indebtedness of the Borrower in respect of the
Subordinated Notes in an aggregate principal amount not to exceed $115,000,000
and (ii) any refinancings, refundings, renewals or extensions by the Borrower of
any Indebtedness described in the foregoing clause (i), provided that (A) the
principal amount thereof is not increased (other than any increase not exceeding
the amount of any fees, premium, if any, and financing costs relating to such
refinancing), (B) such Indebtedness has no scheduled principal payments (whether
by way of mandatory sinking fund, mandatory redemption, mandatory prepayment or
otherwise) prior to the date that is six months after the Term Loan Maturity
Date, (C) the obligations of the Borrower in respect of such Indebtedness are
subordinated to the Obligations to the same extent as the obligations of the
Borrower in respect of the Subordinated Notes and (D) such Indebtedness
otherwise contains terms which are, when taken as a whole, at least as favorable
to the Borrower and its Subsidiaries as the terms of the Indebtedness described
in the foregoing clause (i));
(g) (i) Indebtedness of the Borrower in respect of the Senior
Notes in an aggregate principal amount not to exceed $200,000,000 and Guarantee
Obligations of any Subsidiary Guarantor in respect of such Indebtedness and (ii)
any refinancings, refundings, renewals or extensions by the Borrower of any
Indebtedness described in the foregoing clause (i), provided that (A) the
principal amount thereof is not increased (other than any increase not exceeding
the amount of any fees, premium, if any, and financing costs relating to such
refinancing), (B) such Indebtedness has no scheduled principal payments (whether
by way of mandatory sinking fund, mandatory redemption, mandatory prepayment or
otherwise) prior to the date that is six months after the Term Loan Maturity
Date and (C) such Indebtedness otherwise contains terms which are, when taken as
a whole, at least as favorable to the Borrower and its Subsidiaries as the terms
of the Indebtedness described in the foregoing clause (i));
(h) at any time prior to the effectiveness of any Optional
Increase Amendment, (i) Indebtedness of Xxxxxxx Funding in respect of the
Permitted Receivables Financing Securities, provided that the aggregate
principal and redemption amount of all Permitted Receivables Financing
Securities outstanding at any time shall not exceed $70,000,000 or (ii)
Indebtedness of the Borrower and/or Xxxxxxx Funding in respect of the Additional
Letter of Credit Facility, provided that the aggregate face amount of the
Additional Letter of Credit Facility shall not exceed $40,000,000;
68
(i) Indebtedness of the Borrower in respect of the Sale and
Leaseback Transaction permitted by Section 7.11;
(j) Indebtedness of any Person that becomes a Subsidiary of the
Borrower after the Closing Date, and any extensions, renewals and replacements
of any such Indebtedness that do not increase the outstanding principal amount
thereof, provided that such Indebtedness (other than any such extension, renewal
or replacement) exists at the time such Person becomes a Subsidiary and is not
created in contemplation of or in connection with such Person becoming a
Subsidiary; and
(k) additional Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount (for the Borrower and all
Subsidiaries) not to exceed $25,000,000 at any one time outstanding.
7.3 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its Property, whether now owned or hereafter acquired,
except for:
(a) Liens for taxes not yet due, or which are due and payable but
are not yet delinquent, or which are being contested in good faith by
appropriate proceedings, provided that adequate reserves with respect thereto
are maintained on the books of the Borrower or its Subsidiaries, as the case may
be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 60 days or that are being contested in
good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business;
(e) zoning restrictions, easements, rights-of-way, restrictions
and other similar encumbrances incurred in the ordinary course of business and,
with respect to any Mortgaged Property, other matters of record set forth in the
applicable title insurance policy (which policy shall be in form and substance
reasonably satisfactory to the Administrative Agent) for such Mortgaged Property
that, in the aggregate, are not substantial in amount and which do not in any
case materially detract from the value of the Property subject thereto or
materially interfere with the ordinary conduct of the business of the Borrower
or any of its Subsidiaries;
(f) Liens in existence on the date hereof, securing Indebtedness
permitted by Section 7.2(d), provided that no such Lien is spread to cover any
additional Property after the Closing Date and that the amount of Indebtedness
secured thereby is not increased;
(g) Liens securing Indebtedness of the Borrower or any other
Subsidiary incurred pursuant to Section 7.2(c) to finance the acquisition of
fixed or capital assets, provided that (i) such Liens shall be created
substantially simultaneously with or within 18 months of the
69
acquisition of such fixed or capital assets, (ii) such Liens do not at any time
encumber any Property other than the Property financed by such Indebtedness,
(iii) the amount of Indebtedness secured thereby is not increased and (iv) the
amount of Indebtedness initially secured thereby is not more than 100% of the
purchase price of such fixed or capital asset;
(h) Liens created pursuant to the Security Documents;
(i) (A) Liens on Medicaid, Veteran's Administration or other
governmental accounts receivable of the Borrower or any of its Subsidiaries, or
on Permitted Receivables Financing Securities, granted to secure Permitted
Receivables Financing Securities issued in connection with the Xxxxxxx Funding
Facility, provided that the net amount of all uncollected accounts receivable
owing to the Borrower or any of its Subsidiaries over which such a Lien is
granted, together, without duplication, with the net amount of all uncollected
accounts receivable owing to the Borrower or any of its Subsidiaries that are
assigned to secure such Permitted Receivables Financing Securities, shall not
exceed, at any time, the lesser of (x) 200% of the aggregate principal or
redemption amount of all Permitted Receivables Financing Securities then
outstanding and (y) $140,000,000 or (B) Liens on Medicaid, Veteran's
Administration or other governmental accounts receivable of the Borrower or any
of its Subsidiaries granted to secure the Additional Letter of Credit Facility,
provided that the net amount of all uncollected accounts receivable owing to the
Borrower or any of its Subsidiaries over which such a Lien is granted shall not
exceed, at any time, the lesser of (x) 150% of the aggregate face amount of the
Additional Letter of Credit Facility and (y) $60,000,000;
(j) Liens on the assets leased by the Borrower pursuant to the
Sale and Leaseback Transaction permitted by Section 7.11;
(k) any interest or title of a lessor under any lease entered into
by the Borrower or any other Subsidiary in the ordinary course of its business
and covering only the assets so leased;
(l) Liens on Property ("Substitute Collateral") substituted for
Property (the "Original Collateral") subject to a Lien permitted by clause (f)
of this Section 7.3, provided that (i) such Lien on Substitute Collateral
secures the same obligations as the Lien on the Original Collateral for which it
is substituted, (ii) the Substitute Collateral is not Collateral subject to the
Lien in favor of the Administrative Agent under any Security Document and (iii)
at least ten Business Days prior to any such substitution of Properties, the
Borrower delivers to the Administrative Agent a certificate, in form and
substance satisfactory to the Administrative Agent and signed by a Responsible
Officer of the Borrower, as to the compliance of such substitution with the
requirements of the foregoing clauses and setting forth calculations
satisfactory to the Administrative Agent demonstrating such compliance;
(m) any Lien existing on any property of any Person that becomes a
Subsidiary of the Borrower after the Closing Date prior to the time such Person
becomes a Subsidiary, provided that (i) such Lien is not created in
contemplation of or in connection with such Person becoming a Subsidiary, (ii)
such Lien shall not apply to any other property of the Borrower or any
Subsidiary of the Borrower (other than improvements, accessions, proceeds,
dividends or distributions in respect thereof and assets fixed or appurtenant
thereto) and (iii) such Lien shall
70
secure only those obligations which it secures on the date such Person becomes a
Subsidiary and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof; and
(n) Liens not otherwise permitted by this Section 7.3 so long as
(i) neither (A) the aggregate outstanding principal amount of the obligations
secured thereby nor (B) the aggregate fair market value (determined, in the case
of each such Lien, as of the date such Lien is incurred) of the assets subject
thereto exceeds (as to the Borrower and all Subsidiaries) $20,000,000 at any one
time and (ii) such Liens do not attach to any Collateral (as defined in the
Guarantee and Collateral Agreement) or Property mortgaged pursuant to Section
5.1 or 6.9.
7.4 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of all or substantially all
of its Property or business, except that:
(a) any Subsidiary of the Borrower may be merged or consolidated
with or into the Borrower (provided that the Borrower shall be the continuing or
surviving corporation) or with or into any other Subsidiary (provided that if
such merger or consolidation involves a Subsidiary Guarantor (i) such Subsidiary
Guarantor shall be the continuing or surviving corporation or (ii)
simultaneously with such transaction, the continuing or surviving corporation
shall become a Subsidiary Guarantor and the Borrower shall comply with Section
6.9 to the extent required thereby);
(b) any Subsidiary of the Borrower may Dispose of any or all of
its assets (upon voluntary liquidation or otherwise) to the Borrower or any
Subsidiary Guarantor; and
(c) Dispositions permitted under Section 7.5.
7.5 Limitation on Disposition of Property. Dispose of any of its
Property (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary's Capital Stock to any Person,
except:
(a) the Disposition of obsolete, worn out or surplus property
(other than any real property mortgaged pursuant to Section 5.1 or 6.9) in the
ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.4(b)
(d) the sale or issuance of any Subsidiary's Capital Stock to the
Borrower or any Subsidiary Guarantor;
(e) the Disposition in the ordinary course of business of Cash
Equivalents and other investment securities;
(f) the Disposition, within two years after the Closing Date, of
the Phase I Assets;
71
(g) the Borrower and its Subsidiaries may (i) assign or grant
security interests in their Medicaid, Veteran's Administration or other
governmental accounts receivable to Xxxxxxx Funding to secure Permitted
Receivables Financing Securities, provided that the net amount at any time of
all uncollected accounts receivable owing to the Borrower or any of its
Subsidiaries that are so assigned or in which a security interest is so granted
shall not exceed the lesser of (A) 200% of the aggregate principal or redemption
amount of all Permitted Receivables Financing Securities then outstanding and
(B) $140,000,000 or (ii) grant security interests in their Medicaid, Veteran's
Administration or other governmental accounts receivable to Bank of Montreal (or
any affiliate thereof) to secure the Additional Letter of Credit Facility,
provided that the net amount at any time of all uncollected accounts receivable
owing to the Borrower or any of its Subsidiaries in which a security interest is
so granted shall not exceed the lesser of (A) 150% of the aggregate face amount
of the Additional Letter of Credit Facility and (B) $60,000,000;
(h) the Disposition by the Borrower of its corporate headquarters
pursuant to a Sale and Leaseback Transaction permitted by Section 7.11, provided
that the requirements of Section 2.10(b) are complied with in connection
therewith;
(i) the Disposition of Properties designated as "Assets Held for
Sale" in the Borrower's financial statements for June 30, 2003, provided that
the requirements of Section 2.10(b) are complied with in connection therewith;
(j) the Disposition of Property in an asset swap; provided that:
(i) the amount of Consolidated EBITDAM attributable to the
Property acquired by the Borrower or such Subsidiary in such asset swap, for the
period of four consecutive fiscal quarters most recently ended prior to the date
of such Disposition, is not less than 90% of the Consolidated EBITDAM for such
period of the Property swapped by the Borrower or such Subsidiary,
(ii) the revenues attributable to the Property acquired by the
Borrower or such Subsidiary in such asset swap, for the period of four
consecutive fiscal quarters most recently ended prior to the date of such
acquisition, have been derived from those businesses in which the Borrower and
its Subsidiaries are engaged on the date of this Agreement or that are
reasonably related thereto,
(iii) no Property acquired by the Borrower or such Subsidiary in
such asset swap is subject to aggregate general and professional patient care
liabilities (contingent or otherwise) in excess of the aggregate of such
liabilities to which the Property swapped in such Disposition is subject,
(iv) if the Property swapped in such Disposition was Collateral,
then the Property acquired by the Borrower or such Subsidiary in such asset swap
constitutes Collateral subject to the Lien of the Administrative Agent, for the
benefit of the applicable Secured Parties,
(v) not more than an aggregate of five Properties may be swapped
by the Borrower or any of its Subsidiaries in any fiscal year of the Borrower,
and
72
(vi) the requirements of Section 2.10(b) are complied with in
connection with such asset swap;
(k) the Disposition of other assets having a fair market value not
to exceed $50,000,000 in the aggregate during the term of this Agreement,
provided that (i) the requirements of Section 2.10(b) are complied with in
connection therewith, (ii) in no event may Mortgaged Properties having a fair
market value in excess of $35,000,000 in the aggregate be Disposed of during the
term of this Agreement pursuant to this paragraph (k) and (iii) in no event may
Mortgaged Properties having a fair market value in excess of $25,000,000 in the
aggregate be Disposed of during the term of this Agreement pursuant to this
paragraph (k) unless, with respect to each such Disposition of Mortgaged
Property covered by this clause (iii), the Borrower and its Subsidiaries
promptly execute and deliver the applicable Mortgages and related documentation
required by Section 6.9(b) in respect of substitute Property satisfying the
following requirements:
(A) the amount of Consolidated EBITDAM attributable to the
Property substituted by the Borrower or such Subsidiary, for the period of four
consecutive fiscal quarters most recently ended prior to the date of such
substitution, is not less than 90% of the Consolidated EBITDAM for such period
of the Mortgaged Property Disposed of,
(B) the revenues attributable to the Property substituted by the
Borrower or such Subsidiary, for the period of four consecutive fiscal quarters
most recently ended prior to the date of such substitution, have been derived
from those businesses in which the Borrower and its Subsidiaries are engaged on
the date of this Agreement or that are reasonably related thereto, and
(C) no Property substituted by the Borrower or such Subsidiary is
subject to aggregate general and professional patient care liabilities
(contingent or otherwise) in excess of the aggregate of such liabilities to
which the Property Disposed of is subject;
(l) the Disposition of other assets having a fair market value not
to exceed $25,000,000 in the aggregate during the term of this Agreement,
provided that (i) all Dispositions permitted by this paragraph (l) shall be made
for fair market value and for at least 85% cash consideration and (ii) the
Borrower shall apply the Net Cash Proceeds (which, for purposes of this clause
(l) shall be calculated without regard to any exclusion set forth in the
definition of "Asset Sale") of each such Disposition, on the date of receipt
thereof, to prepay the Loans in the order set forth in Section 2.10(e);
(m) any Recovery Event, provided that the requirements of Section
2.10(b) are complied with in connection therewith; and
(n) the Disposition of the assets specified on Schedule 7.5(n).
7.6 Limitation on Restricted Payments. Declare or pay any dividend
on, or make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of, any Capital Stock of the Borrower or any Subsidiary,
whether now or hereafter outstanding, or make any other distribution in respect
thereof, either directly or indirectly, whether in cash or property or in
73
obligations of the Borrower or any Subsidiary, or enter into any derivatives or
other transaction with any financial institution, commodities or stock exchange
or clearinghouse (a "Derivatives Counterparty") obligating the Borrower or any
Subsidiary to make payments to such Derivatives Counterparty as a result of any
change in market value of any such Capital Stock (collectively, "Restricted
Payments"), except that:
(a) any Subsidiary may make Restricted Payments to the Borrower or
any other Subsidiary;
(b) the Borrower may make Restricted Payments in the form of
common stock of the Borrower; and
(c) the Borrower may make Restricted Payments if (i) no Event of
Default shall have occurred and be continuing or would result therefrom and (ii)
after giving effect thereto, the aggregate amount of all such Restricted
Payments during the term of this Agreement does not exceed $20,000,000, provided
that, for purposes of this clause (ii), if the Consolidated Senior Secured
Leverage Ratio for the most recent period of four consecutive fiscal quarters
for which the relevant financial information is available is less than 2.0 to
1.0 and if, immediately after giving effect thereto, Consolidated Liquidity is
at least $30,000,000, the Borrower may make additional Restricted Payments in
any fiscal year in an aggregate amount not to exceed, for such fiscal year, the
lesser of (A) 25% of Excess Cash Flow for the immediately preceding fiscal year
and (B) $5,000,000.
7.7 Limitation on Capital Expenditures. Make or commit to make any
Capital Expenditure, except (a) Capital Expenditures of the Borrower and its
Subsidiaries not exceeding (i) $20,000,000 for the Borrower's fiscal quarter
ending December 31, 2003 and (ii) $80,000,000 in any fiscal year of the Borrower
thereafter; provided that (A) any such amount referred to above, if not so
expended in the fiscal period for which it is permitted, may be carried over for
expenditure in the next succeeding fiscal year (as to such year, the "CapEx
Carryforward Amount") and (B) Capital Expenditures made pursuant to this clause
(a) during any fiscal year shall be deemed made, first, in respect of amounts
carried over from the prior fiscal period pursuant to subclause (A) above and,
second, in respect of amounts permitted for such fiscal year as provided above,
and (C) in no event may the Capital Expenditures made by the Borrower and its
Subsidiaries pursuant to this clause (a) exceed $125,000,000 in any fiscal year
of the Borrower and (b) Capital Expenditures made with the proceeds of any
Reinvestment Deferred Amount.
7.8 Limitation on Investments. Make any advance, loan, extension
of credit (by way of guaranty or otherwise) or capital contribution to, or
purchase any Capital Stock, bonds, notes, debentures or other debt securities
of, or any assets constituting an ongoing business from, or make any other
investment in, any other Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
74
(c) Investments arising in connection with the incurrence of
Indebtedness permitted by Section 7.2(b) and (e);
(d) loans and advances to employees of the Borrower or any
Subsidiaries of the Borrower in the ordinary course of business (including,
without limitation, for travel, entertainment and relocation expenses) in an
aggregate amount for the Borrower and its Subsidiaries not to exceed $7,500,000
at any one time outstanding;
(e) Investments in assets useful in the Borrower's business made
by the Borrower or any of its Subsidiaries with the proceeds of any Reinvestment
Deferred Amount;
(f) Investments (other than those relating to the incurrence of
Indebtedness permitted by Section 7.8(c)) by the Borrower or any of its
Subsidiaries in the Borrower or any Person that, prior to such Investment, is a
Subsidiary;
(g) at any time prior to the closing date of the Additional Letter
of Credit Facility, Investments made by the Borrower or any of its Subsidiaries
in Xxxxxxx Funding by means of the sale of, or the granting of security
interests in, Medicaid, Veteran's Administration or other governmental accounts
receivable owing to the Borrower or such Subsidiary, in either case to Xxxxxxx
Funding pursuant to the Receivables Financing Program, provided that the net
amount of all uncollected accounts receivable owing to the Borrower or any of
its Subsidiaries that have been so sold or in which a security interest has been
so granted shall not exceed the lesser of (i) 200% of the aggregate principal or
redemption amount of all Permitted Receivables Financing Securities then
outstanding and (ii) $140,000,000;
(h) Permitted Acquisitions;
(i) Investments in joint ventures engaged primarily in those
businesses in which the Borrower and its Subsidiaries are engaged on the date of
this Agreement or that are reasonably related thereto, in an aggregate amount
(valued at cost) at any one time outstanding not to exceed (i) during the period
from the Closing Date through December 31, 2004, $30,000,000 and (ii)
thereafter, $40,000,000, provided that any such amount may be increased by not
more than $10,000,000 in the aggregate to the extent that such increase is in
respect of consideration paid solely with Capital Stock of the Borrower;
(j) promissory notes received as consideration for facilities or
all of the common stock of any Subsidiary sold in a Disposition permitted under
Section 7.5(f), 7.5(i), 7.5(k) or 7.5(l), provided that (i) such promissory
notes shall be pledged and delivered to the Administrative Agent to the extent
required by the Guarantee and Collateral Agreement, (ii) with respect to any
promissory notes received as consideration for Dispositions permitted under
Section 7.5(k), the amount of all such notes at any time outstanding shall not
exceed $25,000,000 in the aggregate, of which not more than $8,750,000 in the
aggregate may have been received in connection with any Dispositions of
Collateral permitted by Section 7.5(k) and (iii) with respect to any promissory
notes received as consideration for Dispositions permitted under Section 7.5(l),
the amount of all such notes at any time outstanding shall not exceed $3,750,000
in the aggregate; and
75
(k) in addition to Investments otherwise expressly permitted by
this Section, Investments by the Borrower or any of its Subsidiaries in an
aggregate amount (valued at cost) not to exceed $15,000,000 during the term of
this Agreement.
7.9 Limitation on Optional Payments and Modifications of Debt
Instruments, etc. (a) Except as expressly permitted by Section 7.2(f) or 7.2(g),
as applicable, make or offer to make any optional or voluntary payment,
prepayment, repurchase or redemption of, or otherwise voluntarily or optionally
defease, the Subordinated Notes or the Senior Notes, or segregate funds for any
such payment, prepayment, repurchase, redemption or defeasance, or enter into
any derivative or other transaction with any Derivatives Counterparty obligating
the Borrower or any Subsidiary to make payments to such Derivatives Counterparty
as a result of any change in market value of the Subordinated Notes or the
Senior Notes, (b) repurchase or redeem any or all of the Subordinated Notes or
the Senior Notes upon the occurrence of a Specified Change of Control, (c)
amend, modify or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of the Subordinated
Notes or the Senior Notes (other than any such amendment, modification, waiver
or other change which (i) would extend the maturity or reduce the amount of any
payment of principal thereof, reduce the rate or extend the date for payment of
interest thereon or relax any covenant or other restriction applicable to the
Borrower or any of its Subsidiaries and (ii) does not involve the payment of a
consent fee), (d) designate any Indebtedness (other than the Obligations) as
"Designated Senior Indebtedness" for the purposes of the Subordinated Note
Indenture or (e) amend its certificate of incorporation in any manner determined
by the Administrative Agent to be adverse to the Lenders. **********************
********************************************************************************
********************************************************************************
********************************************************************************
********************************************************************************
********************************************************************************
********************************************************************************
************************************t*******************************************
********************************************************************************
**********. [The asterisked portion of this document has been omitted and is
filed separately with the Securities and Exchange Commission.]
7.10 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than the
Borrower or any Subsidiary) unless such transaction is (a) otherwise not
prohibited under this Agreement, (b) in the ordinary course of business of the
Borrower or such Subsidiary, as the case may be, and (c) upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary, as the
case may be, than it would obtain in a comparable arm's length transaction with
a Person that is not an Affiliate.
7.11 Limitation on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Borrower or such Subsidiary (a "Sale and Leaseback
Transaction"), except for a single Sale and Leaseback Transaction entered into
by the
76
Borrower in respect of its corporate headquarters located at 0000 Xxxxxxx Xxx,
Xxxx Xxxxx, Xxxxxxxx.
7.12 Limitation on Changes in Fiscal Periods. Permit the fiscal
year of the Borrower to end on a day other than December 31 or change the
Borrower's method of determining fiscal quarters.
7.13 Limitation on Negative Pledge Clauses. Enter into or suffer to
exist or become effective any agreement that prohibits or limits the ability of
the Borrower or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, to secure the Obligations or, in the case of any guarantor,
its obligations under the Guarantee and Collateral Agreement, other than (a)
this Agreement and the other Loan Documents, (b) the Subordinated Note
Indenture, (c) the Senior Note Indenture and (d) any agreements governing any
purchase money Liens or Capital Lease Obligations otherwise permitted hereby (in
which case, any prohibition or limitation shall only be effective against the
assets financed thereby).
7.14 Limitation on Restrictions on Subsidiary Distributions. Enter
into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary to (a) make Restricted Payments in
respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness
owed to, the Borrower or any other Subsidiary, (b) make Investments in the
Borrower or any other Subsidiary or (c) transfer any of its assets to the
Borrower or any other Subsidiary, except for such encumbrances or restrictions
existing under or by reason of (i) any restrictions existing under the Loan
Documents and (ii) any restrictions with respect to a Subsidiary imposed
pursuant to an agreement that has been entered into in connection with the
Disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary.
7.15 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for those businesses in which
the Borrower and its Subsidiaries are engaged on the date of this Agreement or
that are reasonably related thereto, or permit Xxxxxxx Indemnity, Ltd. to engage
in any business other than the operation of an insurance business under the
insurance laws of the State of Vermont.
7.16 Limitation on Amendments to Escrow Agreement. Amend,
supplement or otherwise modify (pursuant to a waiver or otherwise) the terms and
conditions of the Escrow Agreement, other than amendments which could not
reasonably be expected to have a material adverse effect on the Administrative
Agent or the Lenders.
7.17 Limitation on Hedge Agreements. Enter into any Hedge Agreement
other than Hedge Agreements entered into in the ordinary course of business, and
not for speculative purposes, to protect against changes in interest rates or
foreign exchange rates.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
77
(a) The Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or the
Borrower shall fail to pay any interest on any Loan or Reimbursement Obligation,
or any other amount payable hereunder or under any other Loan Document, within
five days after any such interest or other amount becomes due in accordance with
the terms hereof or thereof; or
(b) Any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or that is contained in any
certificate, document or financial or other statement furnished by it at any
time under or in connection with this Agreement or any such other Loan Document
shall prove to have been inaccurate in any material respect on or as of the date
made or deemed made or furnished; or
(c) Any Loan Party shall default in the observance or performance
of any agreement contained in clause (i) or (ii) of Section 6.4(a) (with respect
to the Borrower only), Section 6.7(a), Section 6.11 or Section 7 or (ii) an
"Event of Default" under and as defined in any Mortgage shall have occurred and
be continuing; or
(d) Any Loan Party shall default in the observance or performance
of any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied for a period of 30 days after any Loan Party
shall have obtained actual knowledge of such failure or after written notice
thereof has been given to the Borrower by the Administrative Agent at the
request of any Lender; or
(e) The Borrower or any of its Subsidiaries shall (i) default in
making any payment of any principal of any Indebtedness (including, without
limitation, any Guarantee Obligation, but excluding the Loans and Reimbursement
Obligations) on the scheduled or original due date with respect thereto, and
such default shall continue beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or (ii)
default in making any payment of any interest on any such Indebtedness beyond
the period of grace, if any, provided in the instrument or agreement under which
such Indebtedness was created; or (iii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder
or beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or to become subject to
a mandatory offer to purchase by the obligor thereunder or (in the case of any
such Indebtedness constituting a Guarantee Obligation) to become payable;
provided that a default, event or condition described in clause (i), (ii) or
(iii) of this paragraph (e) shall not at any time constitute an Event of Default
unless, at such time, one or more defaults, events or conditions of the type
described in clauses (i), (ii) and (iii) of this paragraph (e) shall have
occurred and be continuing with respect to Indebtedness the outstanding
principal amount of which exceeds in the aggregate $20,000,000; or
(f) (i) The Borrower or any of its Subsidiaries shall commence any
case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or
78
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, or the Borrower or any of its
Subsidiaries shall make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against the Borrower or any of its Subsidiaries
any case, proceeding or other action of a nature referred to in clause (i) above
that (A) results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period of
60 days; or (iii) there shall be commenced against the Borrower or any of its
Subsidiaries any case, proceeding or other action seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for any
such relief that shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) the Borrower or
any of its Subsidiaries shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) the Borrower or any of its Subsidiaries
shall generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(g) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan, or any Lien in
favor of the PBGC or a Plan shall arise on the assets of the Borrower or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer Plan,
which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Required Lenders shall be likely to, incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any, could, in
the sole judgment of the Required Lenders, reasonably be expected to have a
Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving for the Borrower and its
Subsidiaries taken as a whole a liability (not paid or fully covered by
insurance as to which the relevant insurance company has acknowledged coverage)
of $20,000,000 or more, and all such judgments or decrees shall not have been
paid (or reserved for and is being paid in accordance with the terms
thereof), vacated, discharged, stayed or bonded pending appeal within 45 days
from the entry thereof; or
(i) Other than by reason of the express release thereof pursuant
to Section 10.15, any of the Security Documents shall cease, for any reason to
be in full force and effect, or any Loan Party shall so assert, or any Lien
created by any of the Security Documents shall cease to be enforceable and of
the same effect and priority purported to be created thereby; or
79
(j) The guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason (other than by reason of the
express release thereof pursuant to Section 10.15), to be in full force and
effect or any Loan Party shall so assert; or
(k) Any Change of Control shall occur; or
(l) The Subordinated Notes shall cease, for any reason, to be
validly subordinated to the Obligations, as provided in the Subordinated Note
Indenture, or any Loan Party, the trustee in respect of the Subordinated Notes
or the holders of at least 25% in aggregate principal amount of the Subordinated
Notes shall so assert; or
(m) The Borrower or any of its Subsidiaries, to the extent, if
any, presently participating or required by law to participate, in Medicaid,
Medicare or any Federal health care program (as defined in Section 1128B(f) of
the Social Security Act, 42 U.S.C. Section 1320a-7b(f)) is excluded from or
shall otherwise fail to be eligible for any reason to participate in Medicaid,
Medicare or any Federal health care program or to accept assignment or rights to
reimbursement under Requirements of Law applicable to Medicaid, Medicare or any
Federal health care program, such failure could reasonably be expected to have a
Material Adverse Effect, and such failure shall also continue beyond the
completion of any appeal process diligently pursued by the Borrower or such
Subsidiary in good faith;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable, and (B) if such event is
any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Required Lenders, the Administrative Agent
may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Revolving Credit Commitments to be
terminated forthwith, whereupon the Revolving Credit Commitments shall
immediately terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable. In the case of all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to this paragraph, the Borrower shall at such time deposit
in a cash collateral account opened by the Administrative Agent an amount equal
to the aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
80
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrower hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Borrower (or such other Person as may be lawfully entitled thereto).
SECTION 9. THE AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Agents as the agents of such Lender under this Agreement and the
other Loan Documents, and each Lender irrevocably authorizes each Agent, in such
capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to such Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Agent shall have any duties or responsibilities,
except those expressly set forth herein, or 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 any Agent.
9.2 Delegation of Duties. Each Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Loan Document
(except to the extent that any of the foregoing are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Loan Party or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Agents under or in connection with, this Agreement or any other Loan
Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document or for any failure
of any Loan Party to perform its obligations hereunder or thereunder. The Agents
shall not 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 any Loan Party.
9.4 Reliance by Agents. Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any instrument, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order 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, without
81
limitation, counsel to the Loan Parties), independent accountants and other
experts selected by such Agent. The Agents may deem and treat the payee of any
Note as the owner thereof for all purposes unless such Note shall have been
transferred in accordance with Section 10.6 and all actions required by such
Section in connection with such transfer shall have been taken. Each 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 Required Lenders (or, if so specified by this Agreement,
all Lenders or any other instructing group of Lenders specified by this
Agreement) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such action.
Each Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement and the other Loan Documents in accordance
with a request of the Required Lenders (or, if so specified by this Agreement,
all Lenders or any other instructing group of Lenders specified by this
Agreement), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Loans.
9.5 Notice of Default. No Agent shall be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default hereunder unless
such Agent shall have received 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". In the event that the Administrative Agent
shall receive such a notice, the Administrative Agent shall give notice thereof
to the Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Required
Lenders (or, if so specified by this Agreement, all Lenders or any other
instructing group of Lenders specified by this Agreement); provided that unless
and until the Administrative Agent shall have received such directions, 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 in the best interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither any of the Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
any Agent hereafter taken, including any review of the affairs of a Loan Party
or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender represents to
the Agents that it has, independently and without reliance upon any Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any Agent or any other Lender, 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 investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent hereunder, no Agent shall
82
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of any Loan Party or any affiliate
of a Loan Party that may come into the possession of such Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Aggregate Exposure Percentages in effect on the date on which
indemnification is sought under this Section (or, if indemnification is sought
after the date upon which the Commitments shall have terminated and the Loans
shall have been paid in full, ratably in accordance with such Aggregate Exposure
Percentages immediately prior to such date), for, and to save each Agent
harmless from and against, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time (including, without limitation, at
any time following the payment of the Loans) be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from such Agent's gross negligence or
willful misconduct. The agreements in this Section shall survive the payment of
the Loans and all other amounts payable hereunder.
9.8 Agent in Its Individual Capacity. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with any Loan Party as though such Agent were not an Agent.
With respect to its Loans made or renewed by it and with respect to any Letter
of Credit issued or participated in by it, each Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include each Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 8(a) or Section
8(f) with respect to the Borrower shall have occurred and be continuing) be
subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative
83
Agent by the date that is 10 days following a retiring Administrative Agent's
notice of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective, and the Lenders shall assume and
perform all of the duties of the Administrative Agent hereunder until such time,
if any, as the Required Lenders appoint a successor agent as provided for above.
Any Syndication Agent or Documentation Agent may, at any time, by notice to the
Lenders and the Administrative Agent, resign as Syndication Agent or
Documentation Agent, as applicable, hereunder, whereupon the duties, rights,
obligations and responsibilities of such Syndication Agent or Documentation
Agent, as applicable, hereunder shall automatically be assumed by, and inure to
the benefit of, the Administrative Agent, without any further act by such
Syndication Agent or Documentation Agent, as applicable, the Administrative
Agent or any Lender. After any retiring Agent's resignation as Agent, the
provisions of this Section 9 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent under this Agreement and the
other Loan Documents.
9.10 Authorization to Release Liens and Guarantees. The
Administrative Agent is hereby irrevocably authorized by each of the Lenders to
effect any release of Liens or guarantee obligations contemplated by Section
10.15.
9.11 The Arranger; Co-Arrangers; Syndication Agents; Documentation
Agents. No Arranger, Co-Arranger, Syndication Agent or Documentation Agent, in
its capacity as such, shall have any duties or responsibilities, and none of
them shall incur any liability, under this Agreement and the other Loan
Documents.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement or any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may, or
(with the written consent of the Required Lenders) the Agents and each Loan
Party party to the relevant Loan Document may, from time to time, (a) enter into
written amendments, supplements or modifications hereto and to the other Loan
Documents (including amendments and restatements hereof or thereof) for the
purpose of adding any provisions to this Agreement or the other Loan Documents
or changing in any manner the rights of the Lenders or of the Loan Parties
hereunder or thereunder or (b) waive, on such terms and conditions as may be
specified in the instrument of waiver, any of the requirements of this Agreement
or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall:
(i) forgive or reduce the principal amount or extend the
final scheduled date of maturity of any Loan or
Reimbursement Obligation, extend the scheduled date
of any amortization payment in respect of any Term
Loan, reduce the stated rate of any interest or fee
payable hereunder or extend the scheduled date of any
payment thereof, or increase the amount or extend the
expiration date of any Commitment of any Lender, in
each case without the consent of each Lender directly
affected thereby;
84
(ii) amend, modify or waive any provision of this Section,
or reduce any percentage specified in the definition
of Required Lenders, Supermajority Lenders or
Required Prepayment Lenders, or consent to the
assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement and the
other Loan Documents, in each case without the
consent of all Lenders;
(iii) except as provided in Section 10.15, (A) release
Collateral with a book value exceeding 10% of the
book value of all of the Collateral in the aggregate
in any one year or (B) release any Subsidiary
Guarantor (other than an Excluded Subsidiary) from
its guarantee obligations under the Guarantee and
Collateral Agreement, in each case without the
consent of all Lenders;
(iv) reduce the percentage specified in the definition of
Majority Facility Lenders with respect to any
Facility without the written consent of all Lenders
under such Facility;
(v) amend, modify or waive any provision of Section 9
without the consent of any Agent directly affected
thereby;
(vi) amend, modify or waive any provision of Section
2.10(a), 2.10(b), 2.10(c) or 2.10(e) without the
consent of the Required Prepayment Lenders;
(vii) amend, modify or waive any provision of Section
2.10(d) without the consent of all Lenders;
(viii) amend, modify or waive any provision of Section 2.16
without the consent of each Lender directly affected
thereby;
(ix) amend, modify or waive any provision of Section 3
without the consent of the Issuing Lender;
(x) amend, modify or waive any provision of (A) Section
7.5(k) to increase the aggregate fair market value of
assets that may be Disposed of as permitted
thereunder to an aggregate amount in excess of
$65,000,000, (B) clause (ii) of Section 7.5(k) to
increase the aggregate fair market value of Mortgaged
Properties that may be Disposed of as permitted
thereunder to an aggregate amount in excess of
$50,000,000, (C) clause (iii) of Section 7.5(k) to
increase the aggregate fair market value of Mortgaged
Properties that may be Disposed of as permitted
thereunder without delivering Mortgages on substitute
Properties to an aggregate amount in excess of
$40,000,000, (D) Section 7.5(l) to increase the
aggregate fair market value of other assets that may
be Disposed of as permitted thereunder to an
aggregate amount in excess of $40,000,000, or (E)
clause (i) of Section 7.5(l) to decrease the
85
percentage of cash consideration below 85%, in each
case without the consent of the Supermajority
Lenders;
(xi) except as otherwise provided in Section 2.22,
increase the aggregate Commitments without the
consent of the Supermajority Lenders;
(xii) impose restrictions on assignments and participations
that are more restrictive than, or additional to,
those set forth in Section 10.6 without the consent
of all Lenders;
(xiii) amend, modify or waive any provision of Section
10.7(a) or 10.7(b) without the consent of all
Lenders; or
(xiv) amend, modify or waive any provision of Section 6.5
of the Guarantee and Collateral Agreement without the
consent of all Lenders.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Loan Parties, the
Lenders, the Agents and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Agents shall be restored to their
former position and rights hereunder and under the other Loan Documents, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon. Any such waiver,
amendment, supplement or modification shall be effected by a written instrument
signed by the parties required to sign pursuant to the foregoing provisions of
this Section; provided that delivery of an executed signature page of any such
instrument by facsimile transmission shall be effective as delivery of a
manually executed counterpart thereof.
This Agreement and any other Loan Document may be amended (or amended
and restated) with the written consent of the Supermajority Lenders, the
Administrative Agent and each Loan Party to each relevant Loan Document (x) to
add one or more additional credit facilities to this Agreement and to permit the
extensions of credit from time to time outstanding thereunder and the accrued
interest and fees in respect thereof (collectively, the "Additional Extensions
of Credit") to share ratably in the benefits of this Agreement and the other
Loan Documents with the Term Loans and Revolving Extensions of Credit and the
accrued interest and fees in respect thereof and (y) to include appropriately
the Lenders holding such credit facilities in any determination of the Required
Lenders, Required Prepayment Lenders and Majority Facility Lenders; provided,
however, that no such amendment shall permit the Additional Extensions of Credit
to share ratably with or with preference to the Loans in the application of
mandatory prepayments without the consent of the Required Prepayment Lenders.
In addition to amendments effected pursuant to the foregoing paragraphs
of this Section 10.1, this Agreement will be amended to provide for increases in
the Revolving Credit Commitments and matters related thereto upon (A) execution
and delivery by the Borrower, the Administrative Agent and each Lender
increasing its Revolving Credit Commitment of the
86
Optional Increase Amendment and (B) such other documents with respect thereto as
are specified in Section 2.22(d).
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, 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, addressed (a) in the case of the Borrower and the Administrative
Agent, as follows and (b) in the case of the Lenders, as set forth in an
administrative questionnaire delivered to the Administrative Agent or on
Schedule I to the Lender Addendum to which such Lender is a party or, in the
case of a Lender which becomes a party to this Agreement pursuant to an
Assignment and Acceptance, in such Assignment and Acceptance or (c) in the case
of any party, to such other address as such party may hereafter notify to the
other parties hereto:
The Borrower: Xxxxxxx Enterprises, Inc.
0000 Xxxxxxx Xxx
Xxxx Xxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to: Xxxxxxx Enterprises, Inc.
0000 Xxxxxxx Xxx
Xxxx Xxxxx, Xxxxxxxx 00000
Attention: General Counsel - Corporate
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Administrative Agent: Xxxxxx Commercial Paper Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Issuing Lender: As notified by such Issuing Lender to the
Administrative Agent and the Borrower
provided that any notice, request or demand to or upon the any Agent, the
Issuing Lender or any Lender shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Loan Documents 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. The
87
rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made herein, in the other Loan Documents and in
any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder.
10.5 Payment of Expenses. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the syndication of the Facilities
(other than fees payable to syndicate members) and the development, preparation
and execution of, and any amendment, supplement or modification to, this
Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements and other charges of counsel to the
Administrative Agent and the charges of IntraLinks(TM), (b) to pay or reimburse
each Lender and the Agents for all their costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any other documents prepared in
connection herewith or therewith, including, without limitation, the fees and
disbursements of counsel (including the allocated fees and disbursements and
other charges of in-house counsel) to each Lender and of counsel to the Agents,
(c) to pay, indemnify, or reimburse each Lender and the Agents for, and hold
each Lender and the Agents harmless from, any and all recording and filing fees
and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify or reimburse each Lender, each Agent, their
respective affiliates, and their respective officers, directors, trustees,
employees, advisors, agents and controlling persons (each, an "Indemnitee") for,
and hold each Indemnitee harmless from and against, any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, any of the foregoing relating to the use of proceeds of the
Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower any of its
Subsidiaries or any of the Properties and the fees and disbursements and other
charges of legal counsel in connection with claims, actions or proceedings by
any Indemnitee against the Borrower hereunder (all the foregoing in this clause
(d), collectively, the "Indemnified Liabilities"), provided that the Borrower
shall have no obligation hereunder to any Indemnitee with respect to Indemnified
Liabilities to the extent such Indemnified Liabilities are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such Indemnitee, or relate to
Materials of Environmental Concern that are unrelated to the Borrower or any of
its Subsidiaries and that are first used, released, disposed, or otherwise
emitted by a person other than the Borrower or any of its Subsidiaries on any
Property after such Property has been transferred to any Indemnitee or its
successors or assigns by
88
foreclosure, deed-in-lieu of foreclosure or similar transfer. No Indemnitee
shall be liable for any damages arising from the use by unauthorized persons of
Information or other materials sent through electronic, telecommunications or
other information transmission systems that are intercepted by such persons or
for any special, indirect, consequential or punitive damages in connection with
the Facilities. Without limiting the foregoing, and to the extent permitted by
applicable law, the Borrower agrees not to assert and to cause its Subsidiaries
not to assert, and hereby waives and agrees to cause its Subsidiaries so to
waive, all rights for contribution or any other rights of recovery with respect
to all claims, demands, penalties, fines, liabilities, settlements, damages,
costs and expenses of whatever kind or nature, under or related to Environmental
Laws, that any of them might have by statute or otherwise against any Indemnitee
unless such rights arise out of conditions created by the gross negligence or
willful misconduct of such Indemnitee. All amounts due under this Section shall
be payable not later than 30 days after written demand therefor. Statements for
amounts payable by the Borrower pursuant to this Section shall be submitted to
the Borrower, at the address of the Borrower set forth in Section 10.2, or to
such other Person or address as may be hereafter designated by the Borrower in a
notice to the Administrative Agent. The agreements in this Section shall survive
repayment of the Loans and all other amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Agents, all future holders of the Loans and their respective
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 the Agents and each Lender.
(b) Any Lender may, without the consent of the Borrower, in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating interests
in any Loan owing to such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Agents shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. In no event shall any Participant under
any such participation have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
would require the consent of all Lenders pursuant to Section 10.1. The Borrower
agrees that if amounts outstanding under this Agreement and the Loans are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff 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, provided that, in purchasing
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in Section 10.7(a) as
fully as if such Participant were a Lender hereunder. The Borrower also agrees
that each Participant shall be entitled to the
89
benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in
the Commitments and the Loans outstanding from time to time as if such
Participant were a Lender; provided that, in the case of Section 2.18, such
Participant shall have complied with the requirements of said Section, and
provided, further, that no Participant shall be entitled to receive any greater
amount pursuant to any such Section than the transferor Lender would have been
entitled to receive in respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with applicable
law and upon written notice to the Administrative Agent, at any time and from
time to time assign to any Lender or any affiliate, Related Fund or Control
Investment Affiliate of a Lender or, with the consent of the Borrower and the
Administrative Agent and, in the case of any assignment of Revolving Credit
Commitments, the written consent of the Issuing Lender (which, in each case,
shall not be unreasonably withheld or delayed) (provided (x) that no such
consent need be obtained by the Administrative Agent or any of its affiliates
and (y) the consent of the Borrower need not be obtained with respect to any
assignment of Term Loans), to an additional bank, financial institution or other
entity (an "Assignee") all or any part of its rights and obligations under this
Agreement pursuant to an Assignment and Acceptance, substantially in the form of
Exhibit E (an "Assignment and Acceptance"), executed by such Assignee and such
Assignor (and, where the consent of the Borrower, the Administrative Agent or
the Issuing Lender is required pursuant to the foregoing provisions, by the
Borrower and such other Persons) and delivered to the Administrative Agent for
its acceptance and recording in the Register; provided that (A) no such
assignment to an Assignee (other than any Lender or any affiliate, Related Fund
or Control Investment Affiliate of a Lender) shall be in an aggregate principal
amount of less than $1,000,000 (in the case of the Term Loan Facility) or
$5,000,000 (in the case of the Revolving Credit Facility), unless (1) otherwise
agreed by the Borrower and the Administrative Agent or (2) such assignment
represents an assignment of all of a Lender's interests under this Agreement and
(B) if the Assignor shall retain any Loans or Commitments after giving effect to
such assignment, such Loans and Commitments shall, unless otherwise agreed by
the Borrower and the Administrative Agent, be in an aggregate principal amount
of not less than $1,000,000 (in the case of the Term Loan Facility) and
$5,000,000 (in the case of the Revolving Credit Facility). Any such assignment
need not be ratable as among the Facilities. Upon such execution, delivery,
acceptance and recording in the Register, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with Commitments and/or Loans as set forth therein, and (y) the Assignor
thereunder shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of an Assignor's rights and obligations
under this Agreement, such Assignor shall cease to be a party hereto, except as
to Section 2.17, 2.18 and 10.5 in respect of the period prior to such effective
date). Notwithstanding any provision of this Section, the consent of the
Borrower shall not be required for any assignment that occurs at any time when
any Event of Default shall have occurred and be continuing. For purposes of the
minimum assignment amounts set forth in this paragraph, multiple assignments by
two or more affiliates, Related Funds or Control Investment Affiliates of a
Lender shall be aggregated.
90
(d) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in Section 10.2 a copy of each 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 and stated interest 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, each Agent and the Lenders shall treat each
Person whose name is recorded in the Register as the owner of the Loans and any
Notes evidencing such Loans recorded therein for all purposes of this Agreement.
Any assignment of any Loan, whether or not evidenced by a Note, shall be
effective only upon appropriate entries with respect thereto being made in the
Register (and each Note shall expressly so provide). Any assignment or transfer
of all or part of a Loan evidenced by a Note shall be registered on the Register
only upon surrender for registration of assignment or transfer of the Note
evidencing such Loan, accompanied by a duly executed Assignment and Acceptance;
thereupon one or more new Notes in the same aggregate principal amount shall be
issued to the designated Assignee, and the old Notes shall be returned by the
Administrative Agent to the Borrower marked "canceled". The Register shall be
available for inspection by the Borrower or any Lender (with respect to any
entry relating to such Lender's Loans) at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by
an Assignor and an Assignee (and, in any case where the consent of any other
Person is required by Section 10.6(c), by each such other Person) together with
payment to the Administrative Agent of a registration and processing fee of
$3,500 (treating multiple, simultaneous assignments by or to two or more
affiliates, Related Funds or Control Investment Affiliates of a Lender as a
single assignment) (except that no such registration and processing fee shall be
payable in the case of an Assignee which is already a Lender or is an affiliate,
Related Fund or Control Investment Affiliate of a Lender or a Person under
common management with a Lender), the Administrative Agent shall (i) promptly
accept such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Borrower. On or prior to
such effective date, the Borrower, at its own expense, upon request, shall
execute and deliver to the Administrative Agent (in exchange for the Revolving
Credit Note and/or applicable Term Notes, as the case may be, of the assigning
Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case
may be, to the order of such Assignee in an amount equal to the Revolving Credit
Commitment and/or applicable Term Loans, as the case may be, assumed or acquired
by it pursuant to such Assignment and Acceptance and, if the Assignor has
retained a Revolving Credit Commitment and/or Term Loans, as the case may be,
upon request, a new Revolving Credit Note and/or Term Notes, as the case may be,
to the order of the Assignor in an amount equal to the Revolving Credit
Commitment and/or applicable Term Loans, as the case may be, retained by it
hereunder. Such new Note or Notes shall be dated the Closing Date and shall
otherwise be in the form of the Note or Notes replaced thereby.
(f) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of Loans
and Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests in Loans and Notes, including,
without limitation, any pledge or assignment by a Lender of any Loan or Note to
any Federal Reserve Bank in accordance with applicable law.
91
(g) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPC"), identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower, the option to provide to the
Borrower all or any part of any Loan that such Granting Lender would otherwise
be obligated to make to the Borrower pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to make any Loan and
(ii) if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any state thereof. In addition,
notwithstanding anything to the contrary in this Section 10.6(g), any SPC may
(A) with notice to, but without the prior written consent of, the Borrower and
the Administrative Agent and without paying any processing fee therefor, assign
all or a portion of its interests in any Loans to the Granting Lender, or with
the prior written consent of the Borrower and the Administrative Agent (which
consent shall not be unreasonably withheld) to any financial institutions
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans, and (B) disclose on a confidential
basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC; provided that non-public information with
respect to the Borrower may be disclosed only with the Borrower's consent which
will not be unreasonably withheld. This paragraph (g) may not be amended without
the written consent of any SPC with Loans outstanding at the time of such
proposed amendment.
10.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement or any of the other Loan Documents provides for payments to be
allocated to a particular Lender, if any Lender (for purposes of this sentence,
a "Benefitted Lender") shall at any time prior to any date on which the
Commitments are terminated and the Loans or Reimbursement Obligations become due
and payable pursuant to Section 8 (an "Acceleration") receive any payment of all
or part of the Obligations owing to it under any Facility, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 8(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of the Obligations owing to
such other Lender under such Facility, such Benefitted Lender shall purchase for
cash from the other Lenders a participating interest in such portion of the
Obligations owing to each such other Lender under such Facility, or shall
provide such other Lenders with the benefits of any such collateral, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral ratably with each of the Lenders under such
Facility; provided, however, that if all or any portion of such excess payment
or benefits is thereafter recovered from such Benefitted Lender, such purchase
shall be rescinded, and the purchase price and
92
benefits returned, to the extent of such recovery, but without interest. If any
Lender (for purposes of this sentence, a "Benefitted Lender") shall at any time
after an Acceleration receive any payment of all or part of the aggregate amount
of the Obligations owing to such Benefitted Lender, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in Section 8(f), or otherwise),
in a greater proportion than any such payment or collateral received by any
other Lender, if any, in respect of such other Lender's Obligations, such
Benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Obligations, or shall
provide such other Lenders with the benefits of any such collateral as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise), to set
off and appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such setoff and application made
by such Lender, provided that the failure to give such notice shall not affect
the validity of such setoff and application.
(c) Notwithstanding anything herein or in any other Loan Document
to the contrary, in no event shall Collateral constituting assets of any
Excluded Foreign Subsidiary secure, or shall proceeds of such Collateral be
available for, payment of the Obligations of the Borrower or any Domestic Loan
Party.
10.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement or of a
Lender Addendum by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
10.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
93
10.10 Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Borrower, the Agents, the Arranger and the
Lenders with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Arranger, any Agent
or any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 10.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.
10.13 Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;
(b) neither the Arranger, any Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Arranger, the Agents and the Lenders, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith is solely
that of creditor and debtor; and
94
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Arranger, the Agents and the Lenders or among the Borrower and the
Lenders.
10.14 Confidentiality. Each of the Agents and the Lenders agrees to
keep confidential all non-public information provided to it by any Loan Party
pursuant to this Agreement that is designated by such Loan Party as
confidential; provided that nothing herein shall prevent any Agent or any Lender
from disclosing any such information (a) to the Arranger, any Agent, any other
Lender or any affiliate of any thereof, (b) to any Participant or Assignee
(each, a "Transferee") or prospective Transferee that agrees to comply with the
provisions of this Section or substantially equivalent provisions, (c) to any of
its employees, directors, agents, attorneys, accountants and other professional
advisors, (d) to any financial institution that is a direct or indirect
contractual counterparty in swap agreements or such contractual counterparty's
professional advisor (so long as such contractual counterparty or professional
advisor to such contractual counterparty agrees to be bound by the provisions of
this Section), (e) upon the request or demand of any Governmental Authority
having jurisdiction over it, (f) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (g) in connection with any litigation or similar proceeding,
(h) that has been publicly disclosed other than in breach of this Section, (i)
to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's investment portfolio in connection with ratings
issued with respect to such Lender or (j) in connection with the exercise of any
remedy hereunder or under any other Loan Document. Notwithstanding anything
herein to the contrary, any party subject to confidentiality obligations
hereunder or under any other related document (and any employee, representative
or other agent of such party) may disclose to any and all persons, without
limitation of any kind, such party's U.S. federal income tax treatment and the
U.S. federal income tax structure of the transactions contemplated by this
Agreement relating to such party and all material of any kind (including
opinions or other tax analyses) that are provided to it relating to such tax
treatment and tax structure. However, no such party shall disclose any
information relating to such tax treatment or tax structure to the extent
nondisclosure is reasonably necessary in order to comply with applicable
securities laws.
10.15 Release of Collateral and Guarantee Obligations. (a)
Notwithstanding anything to the contrary contained herein or in any other Loan
Document, upon request of the Borrower in connection with any Disposition of
Property permitted by the Loan Documents, the Administrative Agent shall
(without notice to, or vote or consent of, any Lender, or any affiliate of any
Lender that is a party to any Specified Hedge Agreement) take such actions as
shall be required to release its security interest in any Collateral being
Disposed of in such Disposition, and to release any guarantee obligations under
any Loan Document of any Person being Disposed of in such Disposition, to the
extent necessary to permit consummation of such Disposition in accordance with
the Loan Documents.
(b) Notwithstanding anything to the contrary contained herein or
in any other Loan Document, upon request of the Borrower in connection with any
redemption or repayment in full of all outstanding Senior Notes, the
Administrative Agent shall (without notice to, or vote or consent of, any
Lender, or any affiliate of any Lender that is a party to any Specified Hedge
95
Agreement) take such actions as shall be required to release, on or after the
consummation of such redemption or repayment, the Guarantee Obligations under
the Guarantee and Collateral Agreement of any Subsidiary Guarantor that (i)
immediately prior to such redemption or repayment, was a guarantor of the Senior
Notes, (ii) immediately after giving effect to such redemption or repayment,
does not have any Guarantee Obligations in respect of any Indebtedness that
redeemed, refinanced, refunded, renewed, extended or otherwise replaced such
Senior Notes and (iii) is an Excluded Subsidiary.
(c) Notwithstanding anything to the contrary contained herein or
any other Loan Document, when all Obligations (other than obligations in respect
of any Specified Hedge Agreement) have been paid in full, all Commitments have
terminated or expired and no Letter of Credit shall be outstanding (other than
any Letter of Credit in respect of which the relevant Issuing Lender has
received cash collateral or a back-to-back letter of credit, in each case
satisfactory to such Issuing Lender), upon request of the Borrower, the
Administrative Agent shall (without notice to, or vote or consent of, any
Lender, or any affiliate of any Lender that is a party to any Specified Hedge
Agreement) take such actions as shall be required to release its security
interest in all Collateral, and to release all guarantee obligations under any
Loan Document, whether or not on the date of such release there may be
outstanding Obligations in respect of Specified Hedge Agreements. Any such
release of guarantee obligations shall be deemed subject to the provision that
such guarantee obligations shall be reinstated if after such release any portion
of any payment in respect of the Obligations guaranteed thereby shall be
rescinded or must otherwise be restored or returned upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Borrower or any
Subsidiary Guarantor, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, the Borrower or
any Subsidiary Guarantor or any substantial part of its property, or otherwise,
all as though such payment had not been made.
96
10.16 Priority of Mortgages. Each Agent and Lender, by its execution
and delivery of this Agreement, a Lender Addendum or an Assignment and
Acceptance pursuant to which such Lender becomes a party hereto, acknowledges
and agrees that (a) the Obligations in respect of the Term Loan Facility are
secured by a first priority Lien on the Group 1 Mortgaged Properties mortgaged
pursuant to Sections 5.1 and 6.9, (b) the Obligations in respect of the
Revolving Credit Facility are secured by (i) a second priority Lien (second only
to the Lien of the Term Loan Mortgages) on the Group 1 Mortgaged Properties
mortgaged pursuant to Section 5.1 and (ii) a first priority Lien on the Group 2
Mortgaged Properties mortgaged pursuant to Sections 5.1 and 6.9 and (c) so long
as any Term Loan Mortgage is in effect, (i) the Administrative Agent, in its
capacity as mortgagee under any Revolving Credit Loan Mortgages with respect to
a Group 1 Mortgaged Property, will not (A) exercise or seek to exercise any
rights or exercise any remedies with respect to any Collateral that is subject
to the security interests granted under any Term Loan Mortgage or (B) institute
any action or proceeding with respect to such rights or remedies, including
without limitation, any action of foreclosure, and (ii) the Administrative
Agent, in its capacity as mortgagee under the Term Loan Mortgages, shall have
the exclusive right to enforce rights and exercise remedies with respect to the
Collateral that is subject to the Term Loan Mortgages.
10.17 Delivery of Lender Addenda. Each initial Lender shall become a
party to this Agreement by delivering to the Administrative Agent a Lender
Addendum duly executed by such Lender, the Borrower and the Administrative
Agent.
10.18 Senior Debt. The Borrower hereby designates the Obligations as
"Designated Senior Debt" as such term is defined in, and for purposes of, the
Subordinated Note Indenture.
10.19 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN.
97
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
XXXXXXX ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Sr. VP & Treasurer
XXXXXX BROTHERS INC.,
as Sole Lead Arranger
By: /s/ Xxxxxxx Xxxxx
-----------------
Name: Xxxxxxx Xxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent
By: /s/ Xxxxxxx Xxxxx
-----------------
Name: Xxxxxxx Xxxxx
Title: Vice President
BANK OF MONTREAL,
as a Syndication Agent and a Co-Arranger
By: /s/ Xxxxxx X. XxXxxxx
---------------------
Name: Xxxxxx X. XxXxxxx
Title: Vice President
98
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Syndication Agent and a Co-Arranger
By: /s/ Xxxxxx X. Xxxxxxx, III
--------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Duly Authorized Signatory
XXXXXXX XXXXX CAPITAL,
as a Documentation Agent
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title:
XXXXX FARGO FOOTHILL, INC.,
as a Documentation Agent
By: /s/ M. Xxxxxx Xxxxxxx
---------------------
Name: M. Xxxxxx Xxxxxxx
Title: Sr. V.P.
Annex A
PRICING GRID FOR REVOLVING CREDIT LOANS
AND TERM LOANS
SCHEDULE 1.1
MORTGAGED PROPERTY
Group 1 Mortgaged Properties
[Properties to be mortgaged under Term Loan Mortgages and Revolving Credit Loan
Mortgages]
Group 2 Mortgaged Properties
[Properties to be mortgaged under Revolving Credit Loan Mortgages]
Post-Closing Mortgaged Properties
A. Post-Closing Mortgaged Properties that are Group 1 Properties
B. Post-Closing Mortgaged Properties that are Group 2 Properties
SCHEDULE 4.1
COMPLETED ASSET DISPOSITIONS
SCHEDULE 4.4
CONSENTS, AUTHORIZATIONS, FILINGS AND NOTICES
SCHEDULE 4.15
SUBSIDIARIES
SCHEDULE 4.19(a)
UCC FILING JURISDICTIONS
[Borrower to list name of each Loan Party which is a party to any
Security Document and each filing office in which a UCC financing statement must
be filed in respect of such Loan Party and its collateral]
SCHEDULE 4.19(b)
MORTGAGE FILING JURISDICTIONS
SCHEDULE 5.1(p)
LOCAL COUNSEL JURISDICTIONS
SCHEDULE 7.2(d)
EXISTING INDEBTEDNESS
SCHEDULE 7.5(f)
PHASE I ASSETS
SCHEDULE 7.5(n)
NON-OPERATING ASSET DISPOSITIONS
