EXECUTION COPY
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CREDIT AGREEMENT
among
U.S. OFFICE PRODUCTS COMPANY,
BLUE STAR GROUP LIMITED,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
BANKERS TRUST COMPANY,
as syndication agent
XXXXXXX XXXXX CAPITAL CORPORATION,
as documentation agent
and
THE CHASE MANHATTAN BANK,
as administrative agent
DATED AS OF JUNE 9, 1998
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CHASE SECURITIES INC., BT ALEX. BROWN INCORPORATED and XXXXXXX LYNCH,
XXXXXX, XXXXXX & XXXXX INCORPORATED,
as Co-Arrangers
Table of Contents
Page
SECTION 1. DEFINITIONS............................................................................................2
1.1 Defined Terms.................................................................................2
1.2 Other Definitional Provisions............................................................... 33
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS...................................................................... 33
2.1 Revolving Credit Commitments................................................................ 33
2.2 Revolving Credit Notes...................................................................... 34
2.3 Procedure for Revolving Credit Borrowing.................................................... 34
2.4 Termination or Reduction of Revolving Credit Commitments.................................... 35
2.5 Swing Line Commitments...................................................................... 35
2.6 Term Loans.................................................................................. 37
2.7 Tranche A Term Notes........................................................................ 37
2.8 Tranche B Term Notes........................................................................ 38
2.9 Multi-Draw Term Notes....................................................................... 39
2.10 Procedure for Term Loan Borrowing........................................................... 40
2.11 Termination or Reduction of Multi-Draw Term Loan Commitments................................ 41
2.12 Repayment of Loans.......................................................................... 41
2.13 Qualified Foreign Lender Notes.............................................................. 42
SECTION 3. LETTERS OF CREDIT.................................................................................... 43
3.1 L/C Commitment.............................................................................. 43
3.2 Procedure for Issuance of Letters of Credit................................................. 44
3.3 Fees, Commissions and Other Charges......................................................... 45
3.4 L/C Participations.......................................................................... 46
3.5 Reimbursement Obligation of the Borrower.................................................... 47
3.6 Obligations Absolute........................................................................ 47
3.7 Letter of Credit Payments................................................................... 48
3.8 Application................................................................................. 48
SECTION 4. GENERAL PROVISIONS APPLICABLE TO
LOANS AND LETTERS OF CREDIT..................................................................................... 49
4.1 Interest Rates and Payment Dates............................................................ 49
4.2 Conversion and Continuation Options......................................................... 49
4.3 Minimum Amounts of Tranches................................................................. 50
4.4 Optional Prepayments and Mandatory Prepayments and Commitment
Reductions............................................................................... 50
4.5 Commitment Fees; Administrative Agent's Fee; Other Fees..................................... 54
4.6 Computation of Interest and Fees............................................................ 54
4.7 Inability to Determine Interest Rate........................................................ 55
4.8 Pro Rata Treatment and Payments............................................................. 55
4.9 Illegality.................................................................................. 57
4.10 Requirements of Law......................................................................... 58
4.11 Taxes....................................................................................... 59
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4.12 Indemnity................................................................................... 62
4.13 Certain Rules Relating to the Payment of Additional Amounts................................. 62
SECTION 5. REPRESENTATIONS AND WARRANTIES....................................................................... 64
5.1 Financial Condition......................................................................... 64
5.2 No Change; Solvent.......................................................................... 65
5.3 Corporate Existence; Compliance with Law.................................................... 66
5.4 Corporate Power; Authorization; Enforceable Obligations..................................... 66
5.5 No Legal Bar................................................................................ 67
5.6 No Material Litigation...................................................................... 67
5.7 No Default.................................................................................. 67
5.8 Ownership of Property; Liens................................................................ 67
5.9 Intellectual Property....................................................................... 67
5.10 No Burdensome Restrictions.................................................................. 67
5.11 Taxes....................................................................................... 68
5.12 Federal Regulations......................................................................... 68
5.13 ERISA....................................................................................... 68
5.14 Collateral.................................................................................. 69
5.15 Investment Company Act; Other Regulations................................................... 70
5.16 Subsidiaries................................................................................ 70
5.17 Purpose of Loans............................................................................ 70
5.18 Environmental Matters....................................................................... 70
5.19 No Material Misstatements................................................................... 71
5.20 Delivery of the Transaction Documents....................................................... 72
5.21 Representations and Warranties Contained in the Transaction
Documents................................................................................ 72
5.22 Labor Matters............................................................................... 72
5.23 Public Utility Holding Company Act.......................................................... 72
5.24 Subordinated Debt........................................................................... 73
5.25 Year 2000................................................................................... 73
5.26 Spin-Off Tax Liability...................................................................... 73
5.27 Blue Star Parties........................................................................... 73
SECTION 6. CONDITIONS PRECEDENT................................................................................. 74
6.1 Conditions to Initial Extension of Credit................................................... 74
6.2 Conditions to Initial Blue Star Extensions of Credit........................................ 79
6.3 Conditions to Each Other Extension of Credit................................................ 80
SECTION 7. AFFIRMATIVE COVENANTS................................................................................ 81
7.1 Financial Statements........................................................................ 81
7.2 Certificates; Other Information............................................................. 82
7.3 Payment of Obligations...................................................................... 83
7.4 Conduct of Business and Maintenance of Existence............................................ 83
7.5 Maintenance of Property; Insurance.......................................................... 84
7.6 Inspection of Property; Books and Records; Discussions...................................... 84
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Page
7.7 Notices..................................................................................... 84
7.8 Environmental Laws.......................................................................... 86
7.9 After-Acquired Real Property and Fixtures................................................... 87
7.10 Acquired Subsidiaries; Further Security and Guarantees...................................... 88
7.11 Interest Rate Protection Agreement.......................................................... 89
7.12 Surveys..................................................................................... 89
SECTION 8. NEGATIVE COVENANTS APPLICABLE TO ALL
COMMITMENTS AND LOANS OTHER THAN THE
TRANCHE B TERM LOAN COMMITMENTS AND
TRANCHE B TERM LOANS................................................................. 89
8.1 Financial Condition Covenants............................................................... 90
8.2 Limitation on Indebtedness.................................................................. 91
8.3 Limitation on Liens......................................................................... 93
8.4 Limitation on Guarantee Obligations......................................................... 95
8.5 Limitation on Fundamental Changes........................................................... 97
8.6 Limitation on Sale of Assets................................................................ 98
8.7 Limitation on Restricted Payments/Dividends................................................. 99
8.8 Limitation on Capital Expenditures..........................................................100
8.9 Limitation on Investments, Loans and Advances...............................................101
8.10 Limitations on Certain Acquisitions.........................................................103
8.11 Limitation on Transactions with Affiliates..................................................103
8.12 Limitation on Sales and Leasebacks..........................................................105
8.13 Limitations on Dispositions of Collateral...................................................105
8.14 Limitation on Changes in Fiscal Year........................................................105
8.15 Limitation on Negative Pledge Clauses.......................................................105
8.16 Limitation on Lines of Business; Creation of Subsidiaries...................................106
8.17 Limitation on Optional Payments and Modifications of Debt
Instruments and other Material Agreements................................................106
8.18 Limitation on Optional Payments and Modifications of Tranche B
Terms....................................................................................107
SECTION 9. COVENANTS APPLICABLE TO TRANCHE B TERM LOAN
COMMITMENTS AND TRANCHE B TERM LOANS.................................................................107
SECTION 10. EVENTS OF DEFAULT...........................................................................107
10.1 Certain Bankruptcy Events...................................................................107
10.2 Other Events of Default Applicable to the Tranche A Commitments,
Revolving Credit Commitments, Multi-Draw Term Loan
Commitments and Amounts Owing Thereunder.................................................109
10.3 Certain Events of Default Applicable to Tranche B Term Loan
Commitments and Amounts Owing Thereunder.................................................112
10.4 Certain Provisions Applicable to Letters of Credit..........................................114
10.5 Certain Waivers.............................................................................115
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SECTION 11. THE ADMINISTRATIVE AGENT....................................................................115
11.1 Appointment.................................................................................115
11.2 Delegation of Duties........................................................................115
11.3 Exculpatory Provisions......................................................................115
11.4 Reliance by Administrative Agent............................................................116
11.5 Notice of Default...........................................................................116
11.6 Acknowledgements and Representations by Xxxxxxx.............................................117
11.7 Indemnification.............................................................................118
11.8 Administrative Agent in Its Individual Capacity.............................................118
11.9 Successor Administrative Agent..............................................................119
11.10 Swing Line Lender...........................................................................119
11.11 Release of Liens in Connection with Permitted Receivables
Securitization...........................................................................119
SECTION 12. MISCELLANEOUS...............................................................................119
12.1 Amendments and Waivers......................................................................119
12.2 Notices.....................................................................................122
12.3 No Waiver; Cumulative Remedies..............................................................123
12.4 Survival of Representations and Warranties..................................................124
12.5 Payment of Expenses and Taxes...............................................................124
12.6 Successors and Assigns; Participations and Assignments......................................125
12.7 Adjustments; Set-off........................................................................129
12.8 Counterparts................................................................................129
12.9 Severability................................................................................130
12.10 Integration.................................................................................130
12.11 GOVERNING LAW...............................................................................130
12.12 Submission To Jurisdiction; Waivers.........................................................130
12.13 Acknowledgements............................................................................131
12.14 WAIVER OF JURY TRIAL........................................................................132
12.15 Judgment Currency...........................................................................132
12.16 Confidentiality.............................................................................133
SCHEDULES
I Commitments and Addresses
II Applicable Margin and Commitment Fee Step-Downs
III Indicative Terms of Permitted Receivables Securitizations
IV Equity Investors
V Subsidiary Guarantors
1.1 Existing Revolving Letters of Credit
5.1 Disposition of Assets Prior to Effective Date
5.2(a) Material Adverse Effect Disclosure
5.4 Consents, Authorizations, Notices and Filings Required
5.6 Material Litigation
5.9 Intellectual Property Claims
5.14 Filing Jurisdictions and Lien Searches
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5.16 Subsidiaries
6.1(a) Effective Date Mortgages
6.1(l) Index of Environmental Reports
7.9(a) Post-Closing Mortgage Properties
8.2(e) Permitted Indebtedness
8.3(l) Permitted Liens
8.4(a) Guarantee Obligations
8.9(c) Permitted Investments
8.11(iv) Permitted Transactions with Affiliates
9(a) Negative Covenants Applicable to Tranche B Term Loans
EXHIBITS
A-1 Form of Revolving Credit Note
A-2 Form of Swing Line Note
A-3 Form of Tranche A Term Note
A-4 Form of Tranche B Term Note
A-5 Form of Multi-Draw Term Note
A-6 Form of QFL Revolving Credit Note
A-7 Form of QFL Tranche A Term Note
A-8 Form of QFL Tranche B Term Note
A-9 Form of QFL Multi-Draw Term Note
B Form of Guarantee and Collateral Agreement
C Form of U.S. Tax Compliance Certificate
D Form of Prepayment Option Notice
E Form of Mortgage
F Form of Landlord Consent
G-1 Form of Opinion of Special Counsel to Borrower
G-2 Form of Opinion of New Zealand Counsel to Borrower
G-3 Form of Opinion of Australian Counsel to Borrower
H Form of Assignment and Acceptance
I Form of Swing Line Loan Participation Certificate
J Form of Borrowing Certificate
K Form of Blue Star Representation Certificate
L Form of Equitable Mortgage of Securities
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CREDIT AGREEMENT, dated as of June 9, 1998, among U.S. OFFICE
PRODUCTS COMPANY, a Delaware corporation (the "Borrower"), Blue Star Group
Limited, a New Zealand corporation ("Blue Star Group"), the several banks and
other financial institutions from time to time parties to this Agreement (the
"Lenders"), BANKERS TRUST COMPANY, a New York banking corporation, as
syndication agent (in such capacity, the "Syndication Agent"), XXXXXXX XXXXX
CAPITAL CORPORATION, a Delaware corporation, as documentation agent for the
Lenders hereunder (in such capacity, the "Documentation Agent") and THE CHASE
MANHATTAN BANK, a New York banking corporation, as administrative agent for the
Lenders hereunder (in such capacity, the "Administrative Agent").
The parties hereto hereby agree as follows:
WHEREAS, prior to, and as part of, a strategic restructuring plan that
includes the Equity Investment (as defined herein) the Borrower intends to
purchase from its stockholders approximately 37,000,000 outstanding shares of
Borrower Common Stock or share equivalents at a price of $27 per share (the
"Stock Repurchase"); contribute its corporate travel services, educational
supplies, print management and technology solutions businesses to four newly
formed corporations (the "Spin-Cos"); and distribute the shares it holds in each
of the Spin-Cos to the holders of Borrower Common Stock after the Stock
Repurchase (the "Spin-Offs");
WHEREAS, in connection with the strategic restructuring plan, the
Borrower intends to effect the refinancing of existing debt (the "Debt
Refinancing"), including a tender (the "Debt Tender Offer") for all of the
Borrower's Convertible Notes Due 2003 and a conversion of all or part of the
Borrower's Convertible Notes Due 2001 into equity of the Borrower and the
issuance of fixed-rate senior subordinated debt by the Borrower for at least
$400,000,000 in gross cash proceeds (the "Subordinated Debt Financing")
(collectively the Equity Investment, the Stock Repurchase, the Spin-Offs, the
Debt Tender Offer, the Debt Refinancing and the Subordinated Debt Financing,
together with the payment of fees and expenses in connection therewith, the
"Transactions");
WHEREAS, Xxxxxxx, Xxxxxxxx & Xxxx, Inc. ("CD&R") proposes a
transaction pursuant to which CDR-PC Acquisition, L.L.C. ("CDR-PC Acquisition"),
an entity formed by Xxxxxxx, Xxxxxxxx & Xxxx Fund V Limited Partnership ("CD&R
Fund V"), a private investment partnership managed by CD&R, intends to invest
(the "Equity Investment") approximately $270,000,000 to acquire 24.9% of the
outstanding common stock, par value $.001 per share, of the Borrower (the
"Borrower Common Stock"), warrants to permit CDR-PC Acquisition to buy
additional shares of common stock to maintain its 24.9% ownership position (the
"Special Warrants") and warrants that will give CDR-PC Acquisition the right to
buy one share of Borrower Common Stock for each share of common stock purchased
by CDR-PC Acquisition in the Equity Investment and each share that CDR-PC
Acquisition has the right to buy pursuant to the Special Warrants (the
"Warrants"); and
WHEREAS, to finance (i) a portion of the Transactions, (ii) Permitted
Acquisitions (as defined herein), (iii) the payment of fees and expenses related
to Permitted Acquisitions and the Transactions and (iv) the working capital
needs of the Borrower and its subsidiaries in connection with and following the
Transactions, and subject to and upon the conditions herein set forth, the
Lenders are willing to make available the credit facilities provided for herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
For purposes hereof: "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by Chase as its prime rate in effect
at its principal office in New York City (the Prime Rate not being intended
to be the lowest rate of interest charged by Chase in connection with
extensions of credit to debtors); "Base CD Rate" shall mean the sum of (a)
the product of (i) the Three-Month Secondary CD Rate and (ii) a fraction,
the numerator of which is one and the denominator of which is one minus the
C/D Reserve Percentage and (b) the C/D Assessment Rate; "Three-Month
Secondary CD Rate" shall mean, for any day, the secondary market rate for
three-month certificates of deposit reported as being in effect on such day
(or, if such day shall not be a Business Day, the next preceding Business
Day) by the Board of Governors of the Federal Reserve System (the "Board")
through the public information telephone line of the Federal Reserve Bank
of New York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the week
following such day), or, if such rate shall not be so reported on such day
or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 A.M., New York City
time, on such day (or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Administrative Agent from three New York
City negotiable certificate of deposit dealers of recognized standing
selected by it; and "Federal Funds Effective Rate" shall mean, 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. Any change in the ABR due to
a change in the Prime Rate, the Three-Month Secondary CD 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, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
"ABR Loans": Loans the rate of interest applicable to which is based
upon the ABR.
"Acceleration": as defined in Section 10.2(e).
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"Accepting Lenders": as defined in subsection 4.4(h).
"Accounts": as defined in the Uniform Commercial Code as in effect in
the State of New York; and, with respect to the Borrower and its Domestic
Subsidiaries, all such Accounts of such Persons, whether now existing or
existing in the future, including, without limitation, (i) all accounts
receivable of such Person (whether or not specifically listed on schedules
furnished to the Administrative Agent) including, without limitation, all
accounts created by or arising from all of such Person's sales of goods or
rendition of services made under any of its trade names, or through any of
its divisions, (ii) all unpaid rights of such Person (including rescission,
replevin, reclamation and stopping in transit) relating to the foregoing or
arising therefrom, (iii) all rights to any goods represented by any of the
foregoing, including returned or repossessed goods, (iv) all reserves and
credit balances held by such Person with respect to any such accounts
receivable or any Obligors, (v) all letters of credit, guarantees or
collateral for any of the foregoing and (vi) all insurance policies or
rights relating to any of the foregoing.
"Acquired Business": shall mean each individual product or line or
unit of business (including the related assets) or Person acquired pursuant
to a Permitted Acquisition as permitted by subsection 8.10.
"Adjustment Date": each date occurring after the completion of the
first fiscal quarter of the Borrower after the Effective Date that is the
second Business Day following receipt by the Lenders of both (i) the
financial statements required to be delivered pursuant to subsection 7.1(a)
or 7.1(b), as applicable, for the most recently completed fiscal period and
(ii) the related compliance certificate required to be delivered pursuant
to subsection 7.2(b) with respect to such fiscal period.
"Administrative Agent": as defined in the Preamble hereto.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, 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 20% or more of the securities having ordinary voting
power for the election of directors of such Person or (b) direct or cause
the direction of the management and policies of such Person, whether by
contract or otherwise.
"Agents": collectively, the Administrative Agent, the Documentation
Agent and the Syndication Agent.
"Aggregate Outstanding Revolving 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 Revolving
Credit Lender then outstanding, (b) such Revolving Credit Xxxxxx's
Revolving Credit Commitment Percentage of the L/C Obligations then
outstanding and (c) such Revolving Credit Lender's Revolving Credit
Commitment Percentage of the Swing Line Loans then outstanding.
"Agreement": this Credit Agreement, as amended, supplemented, waived
or
3
otherwise modified from time to time.
"Applicable Margin": as applied to a given Type of Revolving Credit
Loans, Multi-Draw Term Loans, Tranche A Term Loans or Tranche B Term Loans,
the rate per annum determined as follows: During the period from the
Effective Date until the first Adjustment Date, the Applicable Margin (A)
in respect of Revolving Credit Loans, Multi-Draw Term Loans and Tranche A
Term Loans shall equal (i) with respect to ABR Loans, 1.25% per annum and
(ii) with respect to Eurodollar Loans, 2.25% per annum; and (B) in respect
of Tranche B Term Loans shall equal (i) with respect to ABR Loans, 1.50%
per annum and (ii) with respect to Eurodollar Loans, 2.50% per annum. Such
Applicable Margin will be adjusted on each Adjustment Date to the
applicable rate per annum set forth under the heading "ABR Loans Applicable
Margin" or "Eurodollar Loans Applicable Margin" on Schedule II which
corresponds to the achievement of certain performance criteria determined
from the financial statements and compliance certificate relating to the
end of the fiscal quarter immediately preceding such Adjustment Date;
provided that in the event that the financial statements required to be
delivered pursuant to subsection 7.1(a) or 7.1(b), as applicable, and the
related compliance certificate required to be delivered pursuant to
subsection 7.2(b), are not delivered when due, then
(a) if such financial statements and certificate are delivered
after the date such financial statements and certificate were required
to be delivered (without giving effect to any applicable cure period)
and the Applicable Margin increases from that previously in effect as
a result of the delivery of such financial statements, then the
Applicable Margin during the period from the date upon which such
financial statements were required to be delivered (without giving
effect to any applicable cure period) until the date upon which they
actually are delivered shall, except as otherwise provided in clause
(c) below, be the Applicable Margin as so increased;
(b) if such financial statements and certificate are delivered
after the date such financial statements and certificate were required
to be delivered and the Applicable Margin decreases from that
previously in effect as a result of the delivery of such financial
statements, then such decrease in the Applicable Margin shall not
become applicable until the date upon which the financial statements
and certificate actually are delivered; and
(c) if such financial statements and certificate are not
delivered prior to the expiration of the applicable cure period, then,
effective upon such expiration, for the period from the date upon
which such financial statements and certificate were required to be
delivered (after the expiration of the applicable cure period) until
two Business Days following the date upon which they actually are
delivered, the Applicable Margin in respect of Revolving Credit Loans,
Multi-Draw Term Loans and Tranche A Term Loans shall be 2.25% per
annum, in the case of Eurodollar Loans, and 1.25% per annum, in the
case of ABR Loans, and the Applicable Margin in respect of Tranche B
Term Loans shall be 2.50% per annum, in the case of Eurodollar Loans,
and 1.50% per annum, in the case of ABR Loans (it being understood
that the foregoing shall not limit the rights of the Administrative
Agent and the Lenders set forth in Section 10).
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"Application": an application, in such form as the Issuing Lender may
specify from time to time, requesting the Issuing Lender to open a Letter
of Credit.
"Approved Fund": with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans which is
managed or advised by the same investment advisor as such Lender or by an
affiliate of such investment advisor.
"Asset Sale": any sale, issuance, conveyance, transfer, lease or other
disposition (a "Disposition") by the Borrower or any of its Subsidiaries,
in one or a series of related transactions, of any real or personal,
tangible or intangible, property (including, without limitation, Capital
Stock of any Subsidiary of the Borrower, but excluding Capital Stock of the
Borrower) of the Borrower or such Subsidiary to any Person (other than to
the Borrower or any of its Domestic Subsidiaries that are Wholly Owned
Subsidiaries) 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
$2,500,000 other than any of the Transactions and the other transactions
expressly contemplated by the Transaction Documents, including, without
limitation, the Spin-Offs.
"Assignee": as defined in subsection 12.6(c).
"Assignment and Acceptance": as defined in subsection 12.6(c).
"Australian Pledge Agreement": the Equitable Mortgage of Securities to
be executed and delivered by the Borrower and the Administrative Agent,
substantially in the form of Exhibit L, as the same may be amended,
supplemented, waived or otherwise modified from time to time.
"Available Multi-Draw Term Loan Commitment": as to any Multi-Draw Term
Loan Lender at any time, an amount equal to the excess, if any, of (a) the
amount of such Multi-Draw Term Loan Lender's Multi-Draw Term Loan
Commitment at such time over (b) such Multi-Draw Term Loan Lender's
Multi-Draw Term Loan Commitment Percentage of the aggregate principal
amount of Multi-Draw Term Loans theretofore made hereunder (whether or not
such Multi-Draw Term Loans shall then remain outstanding).
"Available Revolving Credit Commitment": as to any Revolving Credit
Lender at any time, an amount equal to the excess, if any, of (a) the
amount of such Revolving Credit Lender's Revolving Credit Commitment at
such time over (b) the sum of (i) the aggregate unpaid principal amount at
such time of all Revolving Credit Loans made by such Revolving Credit
Lender, (ii) an amount equal to such Revolving Credit Lender's Revolving
Credit Commitment Percentage of the aggregate unpaid principal amount at
such time of all Swing Line Loans, provided that for purposes of
calculating Available Revolving Credit Commitments pursuant to subsection
4.5(a) such amount shall be zero, and (iii) an amount equal to such
Revolving Credit Lender's Revolving Credit Commitment Percentage of the
outstanding L/C Obligations at such time; collectively, as to all the
5
Lenders, the "Available Revolving Credit Commitments".
"Base CD Rate": as defined in the definition of the term "ABR" in this
subsection 1.1.
"Basic Lender": a Revolving Credit Lender, a Tranche A Term Loan
Lender or a Multi-Draw Term Loan Lender; collectively, the "Basic Lenders".
"Benefitted Lender": as defined in subsection 12.7.
"Blue Star Credit Facility": any credit facility so designated by the
Borrower, arranged by the Other Representatives, the administrative agent
of which shall be an affiliate of the Administrative Agent, in aggregate
principal amount (or Dollar Equivalent thereof if such facility is
denominated in NZ Dollars) not to exceed $180,000,000, that may be entered
into by Blue Star Group, the terms and conditions of which shall be
satisfactory to the Agents. Without limiting the foregoing, (i) the Blue
Star Credit Facility shall require mandatory prepayments in the event that
its Dollar Equivalent would not otherwise be fully covered by the Blue Star
Letters of Credit, (ii) all obligations of Blue Star Group under the Blue
Star Credit Facility shall be unconditionally guaranteed by the Company,
(iii) the Blue Star Credit Facility shall be for an initial period of one
year with annual extensions at Blue Star Group's option and (iv) the Blue
Star Credit Facility shall be guaranteed and collateralized by Blue Star
Group and its Material Subsidiaries in a manner reasonably satisfactory to
the Administrative Agent.
"Blue Star Group": as defined in the Preamble hereto.
"Blue Star Guarantee and Security Documents": the Guarantee and
Security Documents (including a guarantee by the Borrower of the
obligations of Blue Star Group) to be executed and delivered by Blue Star
Group and each Material Subsidiary of Blue Star Group in existence on the
date of the first Borrowing Date for the Blue Star Group, in form and
substance reasonably satisfactory to the Administrative Agent, as the same
may be amended, supplemented, waived or otherwise modified from time to
time. The Blue Star Guarantee and Security Documents shall provide for
guarantees supporting and security interests and liens securing only the
obligations of the Blue Star Group hereunder (and not the obligations of
the Borrower hereunder).
"Blue Star Intercompany Notes": the Intercompany Notes in the
aggregate principal amount outstanding on the Effective Date owing by Blue
Star Group to the Borrower or one of its Domestic Subsidiaries, as such
Intercompany Notes may be increased, repaid or reduced or amended,
supplemented or otherwise modified from time to time.
"Blue Star L/C Issuing Lender": any of the Agents or their respective
affiliates and/or any Lender satisfactory to the Agents and the Borrower in
its capacity as issuer of any Blue Star Letter of Credit.
"Blue Star Letters of Credit": as defined in subsection 3.1(b).
6
"Blue Star Mortgages": each of the mortgages to be executed and
delivered by Blue Star Group and its Material Subsidiaries on the date of
the first Borrowing Date for the Blue Star Group, in form and substance
reasonably satisfactory to the Administrative Agent, as the same may be
amended, supplemented, waived or otherwise modified from time to time.
"Blue Star Party": any Loan Party which is either Blue Star Group or a
Subsidiary of Blue Star Group.
"Blue Star Representation Certificate": The Blue Star Representation
Certificate to be executed and delivered by Blue Star Group, substantially
in the form of Exhibit K.
"Board": as defined in the definition of the term "ABR" in this
subsection 1.1.
"Borrower": as defined in the preamble hereto.
"Borrower Common Stock": as defined in the Recitals hereto.
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.3, 2.5, 2.10 or 3.2 as a date on which the Borrower requests
the Lenders to make Loans hereunder or the Issuing Lender to issue Letters
of Credit hereunder.
"BSIN Subsidiary": any Subsidiary of the Borrower formed to hold one
or more of the Blue Star Intercompany Notes, following a contribution or
other transfer to it of such Blue Star Intercompany Notes, provided that
such Subsidiary has been organized and is maintained as "bankruptcy remote"
from the Borrower and its other Subsidiaries in a manner reasonably
satisfactory to the Administrative Agent and that in connection with such
contribution and transfer such Subsidiary agrees for the benefit of the
Lenders and the Agents hereunder that such Subsidiary shall not incur any
material liabilities or engage in any material business activities other
than as may be incidental to the holding of the Blue Star Intercompany
Notes contributed or transferred to it and its organization and maintenance
in existence.
"Business": as defined in subsection 5.18(a).
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized or required by
law to close, except that, when used in connection with a Eurodollar Loan
with respect to which the Eurodollar Rate is determined based upon the
Telerate British Bankers Assoc. Interest Settlement Rates Page in
accordance with the definition of Eurodollar Base Rate, "Business Day"
shall mean any Business Day on which dealings in Dollars between banks may
be carried on in London, England and New York, New York.
"Capital Expenditures": with respect to any Person for any period, the
sum of the aggregate of all expenditures (excluding capital expenditures
made for acquisitions permitted by subsection 8.10) by such Person and its
consolidated Subsidiaries during such period which, in accordance with
GAAP, are or should be included in "capital
7
expenditures" or similar items reflected in the consolidated statement of
cash flows of such Person for such period.
"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 or options to purchase any of the
foregoing.
"Cash Equivalents": (a) securities issued or fully guaranteed or
insured by the United States Government or any agency or instrumentality
thereof, (b) time deposits, certificates of deposit or bankers' acceptances
of (i) any Lender or (ii) any commercial bank having capital and surplus in
excess of $500,000,000 and the commercial paper of the holding company of
which is rated at least A-2 or the equivalent thereof by Standard & Poor's
Ratings Group (a division of McGraw Hill Inc.) or any successor rating
agency ("S&P") or at least P-2 or the equivalent thereof by Xxxxx'x
Investors Service, Inc. or any successor rating agency ("Moody's") (or if
at such time neither is issuing ratings, then a comparable rating of such
other nationally recognized rating agency as shall be approved by the
Administrative Agent in its reasonable judgment), (c) commercial paper
rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the
equivalent thereof by Moody's (or if at such time neither is issuing
ratings, then a comparable rating of such other nationally recognized
rating agency as shall be approved by the Administrative Agent in its
reasonable judgment) and (d) investments in money market funds complying
with the risk limiting conditions of Rule 2a-7 or any successor rule of the
Securities and Exchange Commission under the Investment Company Act, in
each case provided in clauses (a), (b), (c) and (d) above, maturing within
twelve months after the date of acquisition.
"CD&R": as defined in the Recitals hereto.
"CD&R Fund V": as defined in the Recitals hereto.
"CD&R Group": CDR-PC Acquisition, CD&R and their Affiliates (other
than any Persons who are Affiliates solely by virtue of their direct or
indirect ownership interests in the Borrower) and any other investment fund
or vehicle managed, sponsored or advised by CD&R, or any Affiliate (other
than any Person who is an Affiliate solely by virtue of its direct or
indirect ownership interest in the Borrower) of or successor to CD&R, CD&R
Fund V or any such other investment fund or vehicle.
"CDR Agreements": collectively, (i) the Investment Agreement, (ii) the
Registration Rights Agreement, (iii) the Consulting Agreement and (iv) the
Indemnification Agreement, as each such agreement may be amended,
supplemented, waived or otherwise modified from time to time.
"CDR-PC Acquisition": as defined in the Recitals hereto.
"C/D Assessment Rate": for any day as applied to any ABR Loan, the
annual assessment rate in effect on such day which is payable by a member
of the Bank Insurance Fund classified as well-capitalized and within
supervisory subgroup "B" (or a
8
comparable successor assessment risk classification) within the meaning of
12 C.F.R. Section 327.4 (or any successor provision) to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of such institution in the
United States.
"C/D Reserve Percentage": for any day as applied to any ABR Loan, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve requirement
for a Depositary Institution (as defined in Regulation D of the Board) in
respect of new non-personal time deposits in Dollars of $100,000 or more
having a maturity of 30 days or more.
"Change in Consolidated Working Capital": for any period, the amount
of Consolidated Working Capital at the beginning of such period minus the
amount of Consolidated Working Capital at the end of such period.
"Change of Control": the occurrence of any of the following events:
(i) any Person or "group" (within the meaning of Section 13(d) or 14(d) of
the Exchange Act), other than one or more of the Equity Investors and their
Affiliates, shall have acquired beneficial ownership of more than 35% of
the outstanding shares of Voting Stock of the Borrower, (ii) the board of
directors of the Borrower shall cease to consist of a majority of
Continuing Directors of the Borrower or (iii) a change of control shall
have occurred under the Senior Subordinated Note Indenture or any other
indenture pursuant to which the Borrower has issued and outstanding
Indebtedness; as used in this paragraph "Voting Stock" shall mean shares of
Capital Stock entitled to vote generally in the election of directors.
"Chase": The Chase Manhattan Bank, a New York banking corporation.
"Chief Financial Officer": the chief financial officer of the
Borrower.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all assets of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security
Document.
"Commercial Letter of Credit": as defined in subsection 3.1(a).
"Commitment Fee Rate": 1/2 of 1% per annum; provided, that on and
after the first Adjustment Date, the Commitment Fee Rate will be the
applicable rate per annum set forth on Schedule II under the heading
"Commitment Fee" (determined on each Adjustment Date in the same manner as
described in the definition of "Applicable Margin").
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of
Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414 of the Code.
9
"Consolidated EBITDA": for any period, Consolidated Net Income for
such period adjusted to exclude the following items (without duplication)
of income or expense to the extent that such items are included in the
calculation of Consolidated Net Income: (a) Consolidated Interest Expense,
(b) any non-cash expenses and charges, (c) total income tax expense, (d)
depreciation expense, (e) the expense associated with amortization of
intangible and other assets (including amortization or other expense
recognition of any costs associated with asset write-ups in accordance with
APB Nos. 16 and 17), (f) non-cash provisions for reserves for discontinued
operations, (g) any extraordinary, unusual or non-recurring gains or losses
or charges or credits, (h) any gain or loss associated with the sale or
write-down of assets not in the ordinary course of business and (i) any
income or loss accounted for by the equity method of accounting (except (i)
in the case of income of Xxxxxx and (ii) in the case of income to the
extent of the amount of cash dividends or cash distributions paid to the
Borrower or any Subsidiary by the entity accounted for by the equity method
of accounting); provided, that (x) for the purposes of calculating the
Consolidated Interest Coverage Ratio and the Leverage Ratio there shall be
included in determining Consolidated EBITDA of the Borrower and its
Subsidiaries for any period, the Consolidated EBITDA calculated on a pro
forma basis of each Acquired Business acquired by the Borrower or any
Subsidiary during such period for the portion of such period prior to such
acquisition (calculated in accordance with the foregoing provisions) and
(y) for the purposes of calculating the Consolidated Interest Coverage
Ratio and the Leverage Ratio for any period that commenced prior to the
Effective Date, Consolidated EBITDA shall be calculated on a pro forma
basis for the portion of such period ending on the Effective Date as though
the Spin-Offs had occurred on the first day of such period. For the
purposes of this definition, the relevant testing period shall be (x) in
the case of subsection 8.1 (and the definitions used therein), the four
consecutive fiscal quarters ending on the applicable testing date, (y) in
the case of subsections 4.4(d) and 8.8 (and the definitions used therein),
the applicable fiscal year, and (z) in the case of subsection 8.10 (and the
definitions used therein), the four most recently ended fiscal quarters.
"Consolidated Interest Coverage Ratio": for any period, the ratio of
(a) an amount equal to Consolidated EBITDA for such period to (b)
Consolidated Interest Expense for such period.
"Consolidated Interest Expense": for any period, the sum of (a) interest
expense (accrued and paid or payable in cash for such period, and in any
event excluding any amortization or write-off of financing costs) on
Indebtedness of the Borrower and its consolidated Subsidiaries for such
period minus (b) interest income (accrued and received or receivable in
cash for such period) of the Borrower and its consolidated Subsidiaries for
such period, in each case determined on a consolidated basis in accordance
with GAAP; provided that Consolidated Interest Expense shall be adjusted to
include (x) the Consolidated Interest Expense for each Acquired Business
acquired by the Borrower or any Subsidiary during such period for the
portion of such period prior to such acquisition, (y) the additional
interest that would have been paid on all Indebtedness incurred by the
Borrower and its other Subsidiaries to finance each Permitted Acquisition
permitted by subsection 8.10 effected during such period as if, in each
such case, such Indebtedness had been incurred on the first day of such
period (with appropriate adjustment for any such Indebtedness refinancing
Indebtedness of the related Acquired Business), as
10
reasonably determined by the Borrower in a manner satisfactory to the
Administrative Agent, and (z) in the event of the consummation of a
Permitted Receivables Securitization, an amount equal to the interest (or
other fees in the nature of interest or discount accrued and paid or
payable in cash for such period) on such Permitted Receivables
Securitization.
"Consolidated Net Income": for any period, net income of the Borrower
and its consolidated Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Senior Debt": all Consolidated Total Funded Indebtedness
other than Subordinated Debt.
"Consolidated Total Funded Indebtedness": at the date of determination
thereof, the sum of (i) all Indebtedness of the Borrower and its
consolidated Subsidiaries which by its terms matures more than one year
after the date of calculation, and any such Indebtedness maturing within
one year from such date which is renewable or extendable at the option of
the obligor to a date more than one year from such date including, in any
event, all current maturities and current sinking fund payments in respect
of such Indebtedness whether or not required to be paid within one year
from the date of its creation and, in the case of the Borrower,
Indebtedness in respect of the Loans, in each case determined on a
consolidated basis in accordance with GAAP plus (ii) without duplication of
amounts included in clause (i) above, an amount equal to the aggregate cash
proceeds received by the Borrower or any Subsidiary from an unrelated third
party (net of amounts repaid) from the financing of Accounts pursuant to
any Permitted Receivables Securitization which are outstanding at the date
of determination. In determining under clause (i) of this definition the
Indebtedness of the Borrower and its consolidated Subsidiaries under or in
respect of any Permitted Receivables Securitization or under clause (ii) of
this definition the amount equal to the aggregate cash proceeds received by
the Borrower or any such Subsidiary from the financing of any Accounts
pursuant to any Permitted Receivables Securitization, such Indebtedness or
amount shall be reduced by any escrowed or pledged cash proceeds which
effectively secure such Indebtedness or the obligations of the Borrower or
any such Subsidiary under such Permitted Receivables Securitization.
"Consolidated Working Capital": at the date of determination thereof,
the aggregate amount of all current assets (excluding cash, Cash
Equivalents and deferred taxes recorded as assets) minus the aggregate
amount of all current liabilities (excluding the Revolving Credit Loans,
current maturities of long-term debt, working capital debt of Foreign
Subsidiaries and deferred taxes recorded as liabilities), in each case
determined on a consolidated basis for the Borrower and its consolidated
Subsidiaries.
"Consulting Agreement": Consulting Agreement, dated as of June 10,
1998, between CD&R (and its permitted successors and assigns thereunder)
and the Borrower.
"Continuing Directors": the directors of the Borrower on the Effective
Date, after giving effect to the Transactions and the other transactions
contemplated hereby, and each other director, if, in each case, such other
director's nomination for election to the board
11
of directors of the Borrower is recommended by at least a majority of the
then Continuing Directors or such other director receives the vote of the
Equity Investors in his or her election by the shareholders of the
Borrower.
"Contractual Obligation": as to any Person, any provision of any
material security issued by such Person or of any material agreement,
instrument or other undertaking to which such Person is a party or by which
it or any of its property is bound.
"Convertible Notes due 2001": the Borrower's 5 1/2% Convertible
Subordinated Notes due 2001.
"Convertible Notes due 2001 Exchange Offer Documents": Registration
Statement on Form S-4, dated May 4, 1998, relating to the Offering
Circular/Prospectus to Exchange, and a Letter of Transmittal, dated May 4,
1998.
"Convertible Notes due 2003": the Borrower's 5 1/2% Convertible
Subordinated Notes due 2003.
"Convertible Notes due 2003 Repurchase Documents": Schedule 13E-4,
dated May 5, 1998, relating to the Offer to Purchase, and a Letter of
Transmittal, dated May 5, 1998.
"CSI": Chase Securities Inc., a New York corporation.
"Debt Tender Offer": as defined in the Recitals hereto.
"Default": any of the events specified in Section 10, whether or not
any requirement for the giving of notice (other than, in the case of
Section 10.2(e) or 10.3(f), a Default Notice), the lapse of time, or both,
or any other condition, has been satisfied.
"Debt Refinancing": as defined in the Recitals hereto.
"Default Notice": as defined in Section 10.2(e).
"Disinterested Director": as defined in subsection 8.11.
"Disposition": as defined in the definition of the term "Asset Sale"
in this subsection 1.1.
"Distribution Agreement": Distribution Agreement, dated as of June 9,
1998, by and among the Borrower and the Spin-Cos, as such agreement may be
amended, supplemented, waived or otherwise modified from time to time.
"Dollar Equivalent": at any date, for any amount denominated in NZ
Dollars, such amount multiplied by the spot rate of exchange for NZ Dollars
into Dollars as determined by the Administrative Agent in accordance with
customary procedures.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
12
"Domestic Subsidiary": any Subsidiary of the Borrower which is not a
Foreign Subsidiary or Foreign Subsidiary Holdco.
"Xxxxxx": Xxxxxx Stationery Limited, a corporation organized under the
laws of the United Kingdom.
"ECF Percentage": 50%; provided, that with respect to any fiscal year
of the Borrower ending on or after April 24, 1999, the ECF Percentage shall
be reduced to 0% if the Leverage Ratio as of the last day of such fiscal
year is less than 3.5 to 1.0.
"Effective Date": the date on or before June 30, 1998 on which all the
conditions precedent set forth in subsection 6.1 shall be satisfied or
waived.
"Employee Benefits Services and Liabilities Agreement": Employee
Benefits Agreement, dated as of June 9, 1998, by and among the Borrower and
the Spin-Cos, as such agreement may be amended, supplemented, waived or
otherwise modified from time to time.
"Environmental Costs": any and all costs or expenses (including,
without limitation, attorney's and consultant's fees, investigation and
laboratory fees, response costs, court costs and litigation expenses,
fines, penalties, damages, settlement payments, judgments and awards), of
whatever kind or nature, known or unknown, contingent or otherwise, arising
out of, or in any way relating to any violation of, noncompliance with or
liability under any Environmental Laws or any orders, requirements,
demands, or investigations of any person related to any Environmental Laws.
Environmental Costs include any and all of the foregoing, without regard to
whether they arise out of or are related to any past, pending or threatened
proceeding of any kind.
"Environmental Laws": any and all applicable foreign, federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority having the force
and effect of law or other Requirements of Law (including, without
limitation, common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of the environment or human
health as related to the environment, as now or at any relevant time
hereafter in effect.
"Environmental Reports": the various reports contained in the binders
prepared for the Borrower by Environmental Strategies Corp., which were
previously delivered to the Administrative Agent and counsel to the
Administrative Agent and as referenced in Schedule 6.1(l) attached hereto.
"Equity Investment": as defined in the Recitals hereto.
"Equity Investors": CDR-PC Acquisition, CD&R Fund V, the CD&R Group
and the other equity investors arranged by CD&R and satisfactory to the
Agents as set forth on Schedule IV.
13
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the 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 pertaining to a Eurodollar Loan, the rate per annum determined by
the Administrative Agent to be the arithmetic mean (rounded to the nearest
1/100th of 1%) of the offered rates for Dollar deposits with a term
comparable to such Interest Period that appears on the Telerate British
Bankers Assoc. Interest Settlement Rates Page (as defined below) at
approximately 11:00 A.M., London time, on the second full Business Day
preceding the first day of such Interest Period; provided, however, that if
there shall at any time no longer exist a Telerate British Bankers Assoc.
Interest Settlement Rates Page, "Eurodollar Base Rate" shall mean, with
respect to each day during each Interest Period pertaining to a Eurodollar
Loan, the rate per annum equal to the rate at which Chase is offered Dollar
deposits at or about 10:00 A.M., New York City time, two Business Days
prior to the beginning of such Interest Period in the interbank eurodollar
market where the eurodollar and foreign currency and exchange operations in
respect of its Eurodollar Loans are then being conducted for delivery on
the first day of such Interest Period for the number of days comprised
therein and in an amount comparable to the amount of its Eurodollar Loan to
be outstanding during such Interest Period. "Telerate British Bankers
Assoc. Interest Settlement Rates Page" shall mean the display designated as
Dow Xxxxx Market Page 3750 (or such other page as may replace such page for
the purpose of displaying the rates at which Dollar deposits are offered by
leading banks in the London interbank deposit market).
"Eurodollar Loans": Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upwards to the
nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 10,
provided that any requirement for the giving of notice, the lapse of time,
or both, and any other condition, has been satisfied.
"Excess Cash Flow": for any period, Consolidated EBITDA minus (i) any
Capital
14
Expenditures made in cash during such period, minus (ii) any principal
payments (other than principal payments during such period pursuant to
subsection 4.4(c) or 4.4(d) unless and to the extent that the event giving
rise to such mandatory prepayment causes an increase in Consolidated
EBITDA) on the Term Loans made during such period, minus (iii) any
principal payments on any Indebtedness other than Indebtedness arising
hereunder of the Borrower or any of its consolidated Subsidiaries made
during such period, minus (iv) any portion of Consolidated Interest Expense
for such period, minus (v) any taxes paid or payable in cash during such
period, minus (vi) the Net Cash Proceeds from any Asset Sale to the extent
that such Net Cash Proceeds (A) consist of any Reinvested Amount or are
otherwise applied in accordance with subsection 4.4(c) and (B) are included
in the calculation of Consolidated EBITDA, minus (vii) (without duplication
of clause (i) of this definition) any Investment made in accordance with
subsection 8.9(e), (g), (i), (l) or (n) minus (viii) any earnings included
in Consolidated EBITDA for such period (except to the extent that any such
earnings are used for any purposes described in clauses (i) through (vii)
above) of a Receivables Subsidiary to the extent the terms of any Permitted
Receivables Securitization prohibit the distribution thereof to the
Borrower or any of its other Subsidiaries, plus (ix) the Change in
Consolidated Working Capital for such period.
"Exchange Act": the Securities Exchange Act of 1934, as amended.
"Exchange Note": as defined in subsection 2.13(a).
"Existing Revolving Letters of Credit": at any time, the letters of
credit issued by Bankers Trust Company and listed or described on Schedule
1.1 that are outstanding on such date.
"Extension of Credit": as to any Lender, the making of a Loan by such
Lender or the issuance of, or participation in, a Letter of Credit by such
Lender.
"Federal Funds Effective Rate": as defined in the definition of the
term "ABR" in this subsection 1.1.
"Final Maturity Date": June 9, 2006.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"FIRREA": the Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended.
"Foreign Subsidiary": any Subsidiary of the Borrower which is
organized and existing under the laws of any jurisdiction outside of the
United States of America.
"Foreign Subsidiary Holdco": any BSIN Subsidiary or any other
Subsidiary of the Borrower that has no material assets other than
securities of one or more Foreign Subsidiaries, and other assets relating
to an ownership interest in any such securities or Subsidiaries.
15
"Former Plan": any employee benefit plan in respect of which the
Borrower or a Commonly Controlled Entity has engaged in a transaction
described in Section 4069 or Section 4212(c) of ERISA.
"GAAP": with respect to the covenants contained in subsections 8.1 and
8.8 and all defined terms relating thereto, generally accepted accounting
principles in the United States of America in effect on the Effective Date
and, for all other purposes under this Agreement, generally accepted
accounting principles in the United States of America 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.
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement to be executed and delivered by the Borrower, each Domestic
Subsidiary of the Borrower listed on Schedule V attached hereto and in
existence on the Effective Date and the Administrative Agent, substantially
in the form of Exhibit B, as the same may be amended, supplemented, waived
or otherwise modified from time to time (including by supplements adding as
parties thereto Material Domestic Subsidiaries created or acquired after
the Effective Date).
"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) to
induce the creation of which 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 such 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. As to the Borrower, Guarantee Obligation shall include
any Letter of Credit in respect of any joint venture or similar arrangement
in which the Borrower or any of its Subsidiaries is an investor, but shall
exclude any Existing Revolving Letter of Credit supported by any Letter of
Credit issued hereunder. 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
16
instrument embodying such Guarantee Obligation, unless such primary
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.
"Guarantees": the collective reference to the Guarantee and Collateral
Agreement, the guarantees included in the Blue Star Guarantee and Security
Documents, and any other guarantee hereafter delivered to the
Administrative Agent (a copy of which will be provided to each Lender)
guaranteeing the obligations and liabilities of the Borrower hereunder,
under any Interest Rate Protection Agreements or Permitted Hedging
Arrangements entered into with any Lender or any affiliate thereof, under
any Notes and/or under any of the other Loan Documents.
"Guarantor": any Person delivering a Guarantee pursuant to this
Agreement.
"Indebtedness": of any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of
property or services (other than trade liabilities incurred in the ordinary
course of business and payable in accordance with customary practices), (b)
any other indebtedness of such Person which is evidenced by a note, bond,
debenture or similar instrument, (c) all obligations of such Person under
Financing Leases, (d) all obligations of such Person in respect of bankers'
acceptances issued or created for the account of such Person, (e) for
purposes of subsection 8.2 and Section 10.2(e) only, all obligations of
such Person in respect of interest rate protection agreements, interest
rate futures, interest rate options, interest rate caps and any other
interest rate hedge arrangements, (f) for the purposes of subsection 8.2
only, all preferred stock issued by such Person which, pursuant to its
terms, is subject to mandatory redemption, retirement or acquisition by
such Person on or prior to the Final Maturity Date and which redemption,
retirement or acquisition is not contingent on any condition (other than
the passage of time) yet to be satisfied and (g) all indebtedness or
obligations of the types referred to in the preceding clauses (a) through
(f) secured by any Lien on any property owned by such Person, to the extent
of the value of such property, even though such Person has not assumed or
otherwise become liable for the payment thereof. Contingent payment
obligations owing to sellers of businesses acquired by the Borrower and its
Subsidiaries shall not be deemed to be Indebtedness unless such contingent
payment obligations are required to be classified as indebtedness on the
consolidated financial statements of the Borrower in accordance with GAAP.
"Indemnification Agreement": Indemnification Agreement, dated as of
June 10, 1998, by and among the Borrower, CD&R, CDR-PC Acquisition and CD&R
Fund V (and their permitted successors and assigns thereunder).
"Indemnified Liabilities": as defined in subsection 12.5.
"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.
17
"Intellectual Property": as defined in subsection 5.9.
"Intercompany Notes": as defined in the Guarantee and Collateral
Agreement.
"Interest Payment Date": (a) as to any ABR 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 less, the last day of such
Interest Period, and (c) as to any Eurodollar Loan having an Interest
Period longer than three months, (x) each day which is three months, or a
whole multiple thereof, after the first day of such Interest Period and (y)
the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(i) 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
(ii) 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
Termination Date (in the case of the Tranche A Term Loans, the
Multi-Draw Term Loans and the Revolving Credit Loans) or beyond the
Final Maturity Date (in the case of the Tranche B Term Loans) shall
(for all purposes other than subsection 4.12) end on the Termination
Date or the Final Maturity Date, as the case may be;
(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 a calendar month; and
18
(4) the Borrower shall select Interest Periods so as not to
require a scheduled payment of any Eurodollar Loan during an Interest
Period for such Loan.
"Interest Rate Protection Agreement": any interest rate protection
agreement, interest rate future, interest rate option, interest rate cap or
collar or other interest rate hedge arrangement with a financial
institution reasonably acceptable to the Administrative Agent, to or under
which the Borrower is a party or a beneficiary on the Effective Date or
becomes a party or a beneficiary after the Effective Date, provided that
any such agreement or other arrangement is not entered into for purposes of
speculation.
"Inventory": as defined in the Uniform Commercial Code as in effect in
the State of New York.
"Investment Agreement": Investment Agreement, dated as of January 12,
1998, between the Borrower and CDR-PC Acquisition, as amended by Amendment
No. 1 dated as of February 3, 1998 and as may be amended, restricted and
supplemented from time to time.
"Investment Company Act": the Investment Company Act of 1940, as
amended.
"Investments": as defined in subsection 8.9.
"Issuing Lender": the collective reference to any Blue Star L/C
Issuing Lender and any Revolving L/C Issuing Lender.
"L/C Fee Payment Date": with respect to any Letter of Credit, (a) the
last day of each March, June, September and December occurring after the
date of issuance thereof and prior to the expiration thereof and (b) if
such Letter of Credit is outstanding on such day, 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
which have not then been reimbursed pursuant to subsection 3.5(a).
"L/C Participants": as to any Letter of Credit, the collective
reference to all the Revolving Credit Lenders other than the Issuing Lender
for such Letter of Credit.
"Lenders": as defined in the Preamble hereto.
"Letters of Credit": the collective reference to all of the Blue Star
Letters of Credit and all of the Revolving Letters of Credit.
"Leverage Ratio": for any period, the ratio of (a) Consolidated Total
Funded Indebtedness as at the last day in such period to (b) Consolidated
EBITDA for such period.
19
"Lien": any mortgage, pledge, hypothecation, assignment, security
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 Financing Lease having substantially the same
economic effect as any of the foregoing).
"Loan": a Revolving Credit Loan, a Tranche A Term Loan, a Tranche B
Term Loan, a Multi-Draw Term Loan or a Swing Line Loan, as the context
shall require; collectively, the "Loans".
"Loan Documents": this Agreement, any Notes, the Applications, the
Guarantees, the Security Documents and the Blue Star Representation
Certificate.
"Loan Parties": the Borrower, Blue Star Group and each Subsidiary of
the Borrower which is a party to a Loan Document; individually, a "Loan
Party".
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of the Borrower and the Subsidiaries taken as a whole or (b) the
validity or enforceability of this Agreement, any of the Notes or any of
the other Loan Documents taken as a whole or the rights and remedies of the
Administrative Agent and the Lenders under the Loan Documents taken as a
whole.
"Material Domestic Subsidiary": any Material Subsidiary which is a
Domestic Subsidiary.
"Material Environmental Amount": an amount payable by the Borrower
and/or its Subsidiaries in respect of or under any Environmental Law for
remedial costs, compliance costs, compensatory damages, fines, penalties,
or any combination thereof in an amount that would reasonably be expected
to have a Material Adverse Effect.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials, wastes, pollutants or
contaminants, defined or regulated as such in or under or which may give
rise to liability under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Material Subsidiary": any Subsidiary of the Borrower that had total
assets of more than $3,000,000 as of the last day of the most recently
completed fiscal quarter of the Borrower for which financial statements
have been furnished pursuant hereto.
"Moody's": as defined in the definition of the term "Cash Equivalents"
in this subsection 1.1.
"Mortgages": each of the mortgages to be executed and delivered by the
Borrower and its Subsidiaries substantially in the form of Exhibit E, as
the same may be amended, supplemented, waived or otherwise modified from
time to time.
20
"Multi-Draw Term Loan": as defined in subsection 2.6.
"Multi-Draw Term Loan Commitment": as to any Multi-Draw Term Loan
Lender, its obligation to make Multi-Draw Term Loans to the Borrower in an
aggregate amount not to exceed at any one time outstanding the amount set
forth opposite such Multi-Draw Term Loan Lender's name in Schedule I under
the heading "Multi-Draw Term Loan Commitment" or, in the case of any Lender
that is an Assignee, the amount of the assigning Lender's Multi-Draw Term
Loan Commitment assigned to such Assignee pursuant to subsection 12.6(c)
(in each case as such amount may be adjusted from time to time as provided
herein); collectively, as to all the Multi-Draw Term Loan Lenders, the
"Multi-Draw Term Loan Commitments".
"Multi-Draw Term Loan Lender": any Term Loan Lender having a
Multi-Draw Term Loan Commitment or having a Multi-Draw Term Loan
outstanding hereunder.
"Multi-Draw Term Loan Percentage": as to any Multi-Draw Term Loan
Lender, the percentage of the aggregate Available Multi-Draw Term Loan
Commitments and outstanding Multi-Draw Term Loans constituted by its
Available Multi-Draw Term Loan Commitment and outstanding Multi-Draw Term
Loans (or, if the Multi-Draw Term Loan Commitments have terminated or
expired, the percentage which (i) such Lender's then outstanding Multi-Draw
Term Loans then constitutes of (ii) the aggregate Multi-Draw Term Loans of
all the Multi-Draw Term Loan Lenders then outstanding).
"Multi-Draw Term Note": as defined in subsection 2.9(a).
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": with respect to any Asset Sale (including any
Sale and Leaseback Transaction permitted under subsection 8.12), any
issuance of any debt securities or any borrowings by the Borrower or any of
its Subsidiaries (other than issuances and borrowings permitted pursuant to
subsection 8.2), any Permitted Receivables Securitization, an amount equal
to the gross proceeds in cash and Cash Equivalents of such Asset Sale,
sale, issuance, borrowing or Permitted Receivables Securitization, net of
(i) reasonable attorneys' fees, accountants' fees, brokerage, consultant
and other customary fees, underwriting commissions and other reasonable
fees and expenses actually incurred in connection with such Asset Sale,
sale, issuance, borrowing or Permitted Receivables Securitization, (ii)
taxes paid or reasonably estimated to be payable as a result thereof, (iii)
appropriate amounts provided or to be provided by the Borrower or any of
its Subsidiaries as a reserve, in accordance with GAAP, against any
liabilities associated with such Asset Sale and retained by the Borrower or
any such Subsidiary after such Asset Sale and other appropriate amounts to
be used by the Borrower or any of its Subsidiaries to discharge or pay on a
current basis any other liabilities associated with such Asset Sale, (iv)
in the case of a sale or Sale and Leaseback Transaction of or involving an
asset subject to a Lien securing any Indebtedness, payments made and
installment payments required to be made to repay such Indebtedness (other
than the Loans), including payments in respect of principal, interest and
21
prepayment premiums and penalties, (v) in the case of any Permitted
Receivables Securitization, any escrowed or pledged cash proceeds which
effectively secure, or are required to be maintained as reserves by the
applicable Receivables Subsidiary for, the Indebtedness of the Borrower and
its Subsidiaries in respect of, or the obligations of the Borrower and its
Subsidiaries under, such Permitted Receivables Securitization and (vi) in
the case of any cash or Cash Equivalents not denominated in Dollars, any
costs associated with, or foreign exchange losses resulting from, the
actual conversion of such cash or Cash Equivalents into Dollars.
"Non-Excluded Taxes": as defined in subsection 4.11(a).
"Notes": the collective reference to the Revolving Credit Notes, the
Swing Line Note, the Tranche A Term Notes, the Tranche B Term Notes and the
Multi-Draw Term Loan Term Notes.
"NZ Dollars" and "NZ$": dollars in lawful currency of New Zealand.
"Obligor": any purchaser of goods or services or other Person
obligated to make payment to the Borrower or a Subsidiary in respect of a
purchase of such goods or services.
"Offer to Purchase": Offer to Purchase, dated May 5, 1998, to purchase
for cash any and all of the Convertible Notes due 2003.
"Offering Circular/Prospectus to Exchange": Offering
Circular/Prospectus, dated May 4, 1998, to exchange up to 8,889,920 Shares
of Borrower Common Stock for Convertible Notes due 2001 at a temporarily
reduced note conversion price.
"Offering Circular to Repurchase Stock": Offering Circular, dated May
4, 1998, to purchase for cash, 37,370,037 shares of Borrower Common Stock
at $27 per share.
"Option Purchases": as defined in subsection 8.7(b).
"Other Representatives": CSI, BT Xxxx. Xxxxx Incorporated and Xxxxxxx
Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, each in its capacity as
co-arranger of the Revolving Credit Commitments and the Term Loans
hereunder, and the Documentation Agent, the Syndication Agent and the
Issuing Lender, in their capacities as such.
"Participants": as defined in subsection 12.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor thereto).
"Permitted Acquisition": any acquisition of a type described in
subsection 8.10 that is permitted by said subsection to be effected by the
Borrower or any of its Subsidiaries.
"Permitted Acquisition Target": any Person or all or substantially all
of the assets of any Person or any product line or unit of business of any
Person, provided that such
22
Person, assets, product line or unit of business (a) is engaged in a
line of business that is the same as or related to the businesses in which
the Borrower and its Subsidiaries are engaged on the date hereof and (b)
has positive Consolidated EBITDA for its most recent fiscal year,
calculated on a pro forma basis after giving effect to the acquisition
hereof by the Borrower or any of its Subsidiaries.
"Permitted Hedging Arrangement": any agreement or arrangement relating
to currency, commodity or other hedging, to the extent and only to the
extent that such agreement or arrangement is entered into, purchased or
otherwise acquired in the ordinary course of business of the Borrower or
any of its Subsidiaries, and not for purposes of speculation, with (i) any
Lender or any affiliate of any Lender or (ii) any other reputable financial
institution that is rated at least A by S&P or A2 by Xxxxx'x.
"Permitted Receivables Securitization": any transaction or series of
related transactions providing for the securitization of any Receivables;
provided that any such transaction shall be consummated (i) on terms that
include terms substantially as described on Schedule III or as the Required
Lenders may otherwise consent, such consent not to be unreasonably
withheld, and (ii) pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent, as evidenced by its
written approval thereof.
"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.
"Plan": any employee benefit plan which is covered by ERISA and in
respect of which the Borrower or a Commonly Controlled Entity is an
"employer" as defined in Section 3(5) of ERISA.
"Pledged Securities": all securities of the Loan Parties, now owned or
hereafter acquired, pledged pursuant to any Security Document.
"Prepayment Date": as defined in subsection 4.4(h).
"Prepayment Option Notice": as defined in subsection 4.4(h).
"Prime Rate": as defined in the definition of the term "ABR" in this
subsection 1.1.
"Pro Forma Balance Sheet": as defined in subsection 5.1(b).
"Pro Forma Date": as defined in subsection 5.1(b).
"Properties": as defined in subsection 5.18(a).
"QFL Notes": as defined in subsection 2.13(a).
"QFL Revolving Credit Note": as defined in subsection 2.13(a).
23
"QFL Tranche A Term Note": as defined in subsection 2.13(a).
"QFL Tranche B Term Note": as defined in subsection 2.13(a).
"Qualified Foreign Lender": as defined in subsection 2.13(a).
"Receivables": all Accounts and accounts receivable of the Borrower or
any of its Subsidiaries (including any thereof constituting or evidenced by
chattel paper, instruments or general intangibles), and all proceeds
thereof and rights (contractual and other) and collateral related thereto.
"Receivables Subsidiary": any special purpose, bankruptcy-remote
Subsidiary that purchases, on a revolving basis, Receivables generated by
the Borrower or any of its Subsidiaries.
"Refunded Swing Line Loans": as defined in subsection 2.5(c).
"Register": as defined in subsection 12.6(d).
"Registration Rights Agreement": Registration Rights Agreement, dated
as of June 10, 1998, between the Borrower and CDR-PC Acquisition (and its
permitted successors and assigns thereunder).
"Regulation D": Regulation D of the Board as in effect from time to
time.
"Regulation T": Regulation T of the Board as in effect from time to
time.
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Regulation X": Regulation X of the Board as in effect from time to
time.
"Reimbursement Obligations": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to subsection 3.5(a) for amounts
drawn under Letters of Credit.
"Reinvested Amount": with respect to any Asset Sale, that portion of
the Net Cash Proceeds thereof as shall, according to a certificate of a
Responsible Officer delivered to the Administrative Agent on the date of
such Asset Sale, be reinvested in the business of the Borrower and its
Subsidiaries within 365 days of the receipt of such Net Cash Proceeds;
provided that any Net Cash Proceeds not so reinvested by such 365th day
shall be utilized on such day to prepay the Loans pursuant to subsection
4.4(c).
"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 subsection .22, .23, .25, .27 or .28 of PBGC Reg. Section 4043
or any successor regulation thereto.
24
"Required Basic Lenders": at any time, Basic Lenders the Total Credit
Percentages (calculated for this purpose without giving effect to any
outstanding Tranche B Term Loans) of which aggregate more than 50%.
"Required Lenders": at any time, Lenders the Total Credit Percentages
of which aggregate more than 50%.
"Required Release Lenders": at any time, (i) Revolving Credit Lenders,
Multi-Draw Term Loan Lenders and Tranche A Term Loan Lenders the Total
Credit Percentages (calculated for this purpose without reference to
outstanding Tranche B Term Loans) of which aggregate more than 50%, (ii)
Tranche B Term Loan Lenders the Tranche B Term Loan Percentages of which
aggregate more than 50% and (iii) Lenders the Total Credit Percentages of
which aggregate more than 80%.
"Required Tranche B Term Loan Lenders": at any time, Tranche B Term
Loan Lenders the Tranche B Term Loan Percentages of which aggregate more
than 50%.
"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, statute, ordinance, code, decree, 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 material property or to which such Person or any of
its material property is subject; provided that the foregoing shall not
apply to any non-binding recommendation of any Governmental Authority.
"Responsible Officer": as to the Borrower, any of its following
officers: (i) the chief executive officer or the president of the Borrower;
(ii) the chief financial officer, the vice president-finance, the treasurer
or the controller of the Borrower; (iii) with respect to legal matters, the
general counsel or deputy general counsel of the Borrower, (iv) the
divisional president of North American Office Products Group; (v) the chief
executive officer of Blue Star Group; (vi) the chief executive officer of
Mail Boxes, Etc. and (vii) with respect to ERISA related matters, the vice
president of human resources of the Borrower.
"Restricted Payment": as defined in subsection 8.7.
"Revolving Credit Commitment": as to any Revolving Credit Lender, its
obligation to make Revolving Credit Loans to, and/or make or participate in
Swing Line Loans made to, and/or issue or participate in Letters of Credit
issued on behalf of, the Borrower or Blue Star Group in an aggregate amount
not to exceed at any one time outstanding the amount set forth opposite
such Revolving Credit Lender's name in Schedule I under the heading
"Revolving Credit Commitment" or, in the case of any Lender that is an
Assignee, the amount of the assigning Xxxxxx's Revolving Credit Commitment
assigned to such Assignee pursuant to subsection 12.6(c) (in each case as
such amount may be adjusted from time to time as provided herein);
collectively, as to all the Revolving Credit Lenders, the "Revolving Credit
Commitments".
25
"Revolving Credit Commitment Percentage": as to any Revolving Credit
Lender, the percentage of the aggregate Revolving Credit Commitments
constituted by its Revolving Credit Commitment (or, if the Revolving Credit
Commitments have terminated or expired, the percentage which (i) the sum of
(a) such Xxxxxx's then outstanding Revolving Credit Loans plus (b) such
Xxxxxx's interests in the aggregate L/C Obligations and Swing Line Loans
then outstanding then constitutes of (ii) the sum of (a) the aggregate
Revolving Credit Loans of all the Revolving Credit Lenders then outstanding
plus (b) the aggregate L/C Obligations and Swing Line Loans then
outstanding).
"Revolving Credit Commitment Period": the period from and including
the Effective Date to but not including the Termination Date, or such
earlier date as the Revolving Credit Commitments shall terminate as
provided herein.
"Revolving Credit Lender": any Lender having a Revolving Credit
Commitment hereunder or having a Revolving Credit Loan outstanding
hereunder.
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.2.
"Revolving L/C Issuing Lender": Chase or any of its affiliates
(including without limitation, Chase Manhattan Delaware), in its capacity
as issuer of any Revolving Letter of Credit.
"Revolving Letters of Credit": as defined in subsection 3.1(a).
"Sale and Leaseback Transaction": as defined in subsection 8.12.
"Securities Act": the Securities Act of 1933, as amended.
"Security Documents": the collective reference to the Mortgages, the
Guarantee and Collateral Agreement, the Blue Star Guarantee and Security
Documents, the Australian Pledge Agreement and all other similar security
documents hereafter delivered to the Administrative Agent on behalf of the
Lenders (and the Administrative Agent will provide each Lender with a copy
thereof) granting a Lien on any asset or assets of any Person to secure the
obligations and liabilities of the Borrower or Blue Star Group hereunder,
under any Notes and/or under any of the other Loan Documents or to secure
any guarantee of any such obligations and liabilities.
"Senior Subordinated Note Indenture": the Indenture, dated as of June
10, 1998, entered into by the Borrower in connection with the issuance of
the Senior 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 subsection 8.17.
"Senior Subordinated Notes": the fixed rate subordinated notes of the
Borrower issued on the Effective Date pursuant to the Senior Subordinated
Note Indenture.
26
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent" and "Solvency": with respect to any Person on a particular
date, the condition that, on such date, (a) the fair value of the property
of such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond
such Person's ability to pay as such debts and liabilities mature, and (d)
such Person is not engaged in business or a transaction, and is not about
to engage in business or a transaction, for which such Person's property
would constitute an unreasonably small amount of capital.
"S&P": as defined in the definition of the term "Cash Equivalents" in
this subsection 1.1.
"Special Warrants": as defined in the Recitals hereto.
"Spin-Cos": as defined in the Recitals hereto.
"Spin-Offs": as defined in the Recitals hereto.
"Standby Letter of Credit": as defined in subsection 3.1(a).
"Stock Repurchase": as defined in the Recitals hereto.
"Stock Repurchase Offer to Purchase": Schedule 13E-4, dated May 4,
1998, relating to an Offering Circular to Repurchase Stock, Special
Instructions for Holders of Certain Types of Shares, dated May 4, 1998, and
a Letter of Transmittal, dated May 4, 1998.
"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 six months after the Final Maturity Date, (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
(as evidenced by its prior written approval) 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 Agents, the
Other Representatives and the Lenders hereunder and under the other Loan
Documents.
"Subordinated Subsidiary Guarantees": the subordinated guarantees
delivered by the Subsidiaries of the Borrower guaranteeing the obligations
and liabilities of the
27
Borrower in respect of the Senior Subordinated Notes.
"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, limited liability company 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. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"Swing Line Commitment": the Swing Line Lender's obligation to make
Swing Line Loans pursuant to subsection 2.5.
"Swing Line Lender": Chase, in its capacity as provider of the Swing
Line Loans.
"Swing Line Loan Participation Certificate": a certificate in
substantially the form of Exhibit I.
"Swing Line Loans": as defined in subsection 2.5(a).
"Swing Line Note": as defined in subsection 2.5(b).
"Syndication Agent": as defined in the Preamble hereto.
"Tax Allocation Agreement": Tax Allocation Agreement, dated as of June
10, 1998, by and among the Borrower and the Spin-Cos, as such agreement may
be amended, supplemented, waived or otherwise modified from time to time.
"Tax Indemnification Agreement": Tax Indemnification Agreement, dated
as of June 10, 1998, by and among the Spin-Cos, as such agreement may be
amended, supplemented, waived or otherwise modified from time to time.
"Telerate British Bankers Assoc. Interest Settlement Rates Page": as
defined in the definition of the term "Eurodollar Base Rate" in this
subsection 1.1.
"Termination Date": June 9, 2005.
"Term Loan": a Tranche A Term Loan, a Tranche B Term Loan or a
Multi-Draw Term Loan, as the context shall require; collectively, the "Term
Loans".
"Term Loan Lender": any Lender having a Term Loan outstanding
hereunder.
"Term Note": a Tranche A Term Note, a Tranche B Term Note or a
Multi-Draw Term Loan Note, as the context shall require; collectively, the
"Term Notes".
"Three-Month Secondary CD Rate": as defined in the definition of the
term
28
"ABR" in this subsection 1.1.
"Title Insurance Company": the title insurance company issuing the
policy referred to in subsection 7.12.
"Total Credit Percentage": as to any Lender at any time, the
percentage of the aggregate Revolving Credit Commitments, Available
Multi-Draw Term Loan Commitments, outstanding Tranche A Term Loans,
outstanding Tranche B Term Loans and outstanding Multi-Draw Term Loans then
constituted by its Revolving Credit Commitment, Available Multi-Draw Term
Loan Commitment, outstanding Tranche A Term Loan, outstanding Tranche B
Term Loan and outstanding Multi-Draw Term Loans (or, if the Revolving
Credit Commitments have terminated or expired, the percentage of the
aggregate Available Multi-Draw Term Loan Commitments, outstanding Revolving
Credit Loans, outstanding Term Loans and interests in the outstanding L/C
Obligations and Swing Line Loans then constituted by its Available
Multi-Draw Term Loan Commitments, outstanding Revolving Credit Loans,
outstanding Term Loans and interests in outstanding L/C Obligations and
Swing Line Loans).
"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).
"Tranche A Term Loan": as defined in subsection 2.6.
"Tranche A Term Loan Lender": any Term Loan Lender having a Tranche A
Term Loan outstanding hereunder.
"Tranche A Term Loan Percentage": as to any Term Loan Lender at any
time, the percentage which (i) such Term Loan Lender's Tranche A Term Loan
then outstanding constitutes of (ii) the aggregate Tranche A Term Loans of
all the Term Loan Lenders then outstanding.
"Tranche A Term Note": as defined in subsection 2.7(a).
"Tranche B Prepayment Amount": as defined in subsection 4.4(g).
"Tranche B Term Loan": as defined in subsection 2.6.
"Tranche B Term Loan Lender": any Term Loan Lender having a Tranche B
Term Loan outstanding hereunder.
"Tranche B Term Loan Percentage": as to any Term Loan Lender at any
time, the percentage which (i) such Term Loan Lender's Tranche B Term Loan
then outstanding constitutes of (ii) the aggregate Tranche B Term Loans of
all the Term Loan Lenders then outstanding.
"Tranche B Term Note": as defined in subsection 2.8(a).
29
"Transaction Documents": the collective reference to the CDR
Agreements, the Senior Subordinated Note Indenture, the Distribution
Agreement, the Tax Allocation Agreement, the Tax Indemnification Agreement,
the Stock Repurchase Offer to Purchase, the Convertible Notes due 2003
Repurchase Documents, the Convertible Notes due 2001 Exchange Offer
Documents and the Employee Benefits Services and Liabilities Agreement.
"Transactions": as defined in the Recitals hereto.
"Transferee": as defined in subsection 12.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"Underfunding": an excess of all accrued benefits under a Plan (based
on those assumptions used to fund such Plan), determined as of the most
recent annual valuation date, over the value of the assets of such Plan
allocable to such accrued benefits.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended from time to time.
"U.S. Tax Compliance Certificate": as defined in subsection 4.11(b).
"Voting Stock": as defined in the definition of the term "Change of
Control" in this subsection 1.1.
"Warrants": as defined in the Recitals hereto.
"Wholly Owned Subsidiary": as to any Person, any Subsidiary of such
Person of which such Person owns, directly or indirectly through one or
more Wholly Owned Subsidiaries, all of the Capital Stock of such Subsidiary
other than directors qualifying shares or shares held by nominees.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes, any other Loan Document or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in any Notes and any other Loan Document, 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
subsection 1.1 and accounting terms partly defined in 1.1, the extent not
defined, shall have the respective meanings given to them under GAAP.
(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, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
30
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans ("Revolving Credit Loans") to the Borrower or Blue Star
Group, as the case may be, from time to time during the Revolving Credit
Commitment Period in an aggregate principal amount at any one time outstanding
which, when added to such Revolving Credit Xxxxxx's Revolving Credit Commitment
Percentage of the sum of the then outstanding L/C Obligations and the then
outstanding Swing Line Loans, does not exceed the amount of such Revolving
Credit Lender's Revolving Credit Commitment then in effect, provided that in no
event shall Revolving Credit Loans be made available to Blue Star Group in
aggregate principal amount outstanding in excess of $50,000,000. During the
Revolving Credit Commitment Period the Borrower and Blue Star Group 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.
(b) The Revolving Credit Loans may from time to time be (i) Eurodollar
Loans, (ii) ABR Loans or (iii) a combination thereof, as determined by the
Borrower or Blue Star Group, as the case may be, and notified to the
Administrative Agent in accordance with subsections 2.3 and 4.2, provided that
no Revolving Credit Loan shall be made as a Eurodollar Loan after the day that
is one month prior to the Termination Date.
(c) The Borrower agrees that neither it nor the Blue Star Group shall
borrow Revolving Credit Loans, Swing Line Loans or Multi-Draw Term Loans,
request the issuance of any Letter of Credit or optionally reduce or terminate
the Revolving Credit Commitments or the Multi-Draw Term Loan Commitments, if the
effect of such borrowing, issuance, reduction or termination would be to cause
the sum of the Available Revolving Credit Commitments and the Available
Multi-Draw Term Loan Commitments to be less than the aggregate principal amount
outstanding of the Borrower's Convertible Notes due 2001 and its Convertible
Notes due 2003.
2.2 Revolving Credit Notes. Each of the Borrower and Blue Star Group
agrees that, upon the request to the Administrative Agent by any Revolving
Credit Lender made on or prior to the Effective Date or in connection with any
assignment of its Loan or Revolving Credit Commitment, in order to evidence such
Revolving Credit Xxxxxx's Revolving Credit Loans the Borrower and Blue Star
Group will execute and deliver to such Revolving Credit Lender a promissory note
substantially in the form of Exhibit A-1, with appropriate insertions as to
payee, date and principal amount (each, as amended, supplemented, replaced or
otherwise modified from time to time, a "Revolving Credit Note"), payable to the
order of such Revolving Credit Lender and in a principal amount equal to the
lesser of (a) the amount set forth opposite such Revolving Credit Lender's name
in Schedule I under the heading "Revolving Credit Commitment" and (b) the
aggregate unpaid principal amount of all Revolving Credit Loans made by such
Revolving Credit Lender. Each Revolving Credit Note shall (x) be dated the
Effective Date, (y) be stated to mature on the Termination Date and (z) provide
for the payment of interest in accordance with subsection 4.1.
31
2.3 Procedure for Revolving Credit Borrowing. The Borrower or Blue
Star Group, as the case may be, may borrow under the Revolving Credit
Commitments during the Revolving Credit Commitment Period on any Business Day,
provided that the Borrower or Blue Star Group shall give the Administrative
Agent irrevocable notice (which notice must be received by the Administrative
Agent prior to (a) 12:30 P.M., New York City time, at least three Business Days
prior to the requested Borrowing Date, if all or any part of the requested
Revolving Credit Loans are to be initially Eurodollar Loans, or (b) 11:00 A.M.,
New York City time, on the requested Borrowing Date, otherwise), specifying (i)
whether the Loans are to be borrowed by the Borrower or Blue Star Group, (ii)
the amount to be borrowed, (iii) the requested Borrowing Date, (iv) whether the
borrowing is to be of Eurodollar Loans, ABR Loans or a combination thereof and
(iv) if the borrowing is to be entirely or partly of Eurodollar Loans, the
respective amounts of each such Type of Loan and the respective lengths of the
initial Interest Periods therefor. Each borrowing under the Revolving Credit
Commitments shall be in an amount equal to (x) in the case of ABR Loans, except
any ABR Loan to be used solely to pay a like amount of outstanding Reimbursement
Obligations or Swing Line Loans, $5,000,000 or a whole multiple of $1,000,000 in
excess thereof (or, if the then Available Revolving Credit Commitments are (A)
less than $5,000,000, $1,000,000 or a whole multiple thereof or (B) 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 notice from the Borrower or Blue Star Group, as the case may be, the
Administrative Agent shall promptly notify each Revolving Credit Lender thereof.
Notwithstanding the foregoing, the initial borrowing of Revolving Credit Loans
on the Effective Date shall be in a maximum aggregate principal amount of
$150,000,000. Subject to the satisfaction of the conditions precedent specified
in subsection 6.3, each Revolving Credit Lender will make the amount of its pro
rata share of each borrowing of Revolving Credit Loans available to the
Administrative Agent for the account of the Borrower or Blue Star Group, as the
case may be, at the office of the Administrative Agent specified in subsection
12.2 prior to 12:00 Noon (or 10:00 A.M., in the case of the initial borrowing
hereunder on the Effective Date), New York City time, on the Borrowing Date
requested by the Borrower or Blue Star Group, as the case may be, in Dollars and
in funds immediately available to the Administrative Agent. Such borrowing will
then be made available to the Borrower or Blue Star Group, as the case may be,
by the Administrative Agent crediting the account of the Borrower or Blue Star
Group, as the case may be, on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the Revolving Credit
Lenders and in like funds as received by the Administrative Agent.
2.4 Termination or Reduction of Revolving Credit Commitments. Subject
to subsection 2.1(c), the Borrower shall have the right, upon not less than
three Business Days' notice to the Administrative Agent (which will promptly
notify the Lenders thereof), to terminate the Revolving Credit Commitments or,
from time to time, to reduce the amount of the Revolving Credit Commitments;
provided that no such termination or reduction shall be permitted if, after
giving effect thereto and to any prepayments of the Revolving Credit Loans and
Swing Line Loans made on the effective date thereof, the aggregate principal
amount of the Revolving Credit Loans then outstanding, when added to the sum of
the then outstanding L/C Obligations and the then outstanding Swing Line Loans,
would exceed the Revolving Credit Commitments then in effect. Any such reduction
shall be in an amount equal to $1,000,000 or a whole multiple of $1,000,000 in
excess thereof and shall reduce permanently the Revolving Credit Commitments
then in effect.
32
2.5 Swing Line Commitments. (a) Subject to the terms and conditions
hereof, the Swing Line Lender agrees to make swing line loans (individually, a
"Swing Line Loan"; collectively, the "Swing Line Loans") to the Borrower from
time to time during the Revolving Credit Commitment Period in an aggregate
principal amount at any one time outstanding not to exceed $15,000,000, provided
that at no time may the sum of the then outstanding Swing Line Loans, Revolving
Credit Loans and L/C Obligations exceed the Revolving Credit Commitments then in
effect. Amounts borrowed by the Borrower under this subsection 2.5 may be repaid
and, through but excluding the Termination Date, reborrowed. All Swing Line
Loans shall be made as ABR Loans and shall not be entitled to be converted into
Eurodollar Loans. The Borrower shall give the Swing Line Lender irrevocable
notice (which notice must be received by the Swing Line Lender prior to 2:00
p.m., New York City time) on the requested Borrowing Date specifying the amount
of the requested Swing Line Loan which shall be in a minimum amount of
$1,000,000 or whole multiples of $100,000 in excess thereof. The proceeds of the
Swing Line Loan will be made available by the Swing Line Lender to the Borrower
at the office of the Swing Line Lender by crediting the account of the Borrower
at such office with such proceeds in Dollars.
(b) The Borrower agrees that, upon the request to the Administrative
Agent by the Swing Line Lender, in order to evidence the Swing Line Loans the
Borrower will execute and deliver to the Swing Line Lender a promissory note
substantially in the form of Exhibit A-2, with appropriate insertions (as the
same may be amended, supplemented, replaced or otherwise modified from time to
time, the "Swing Line Note"), payable to the order of the Swing Line Lender and
representing the obligation of the Borrower to pay the amount of the Swing Line
Commitment or, if less, the unpaid principal amount of the Swing Line Loans,
with interest thereon as prescribed in subsection 4.1. The Swing Line Note shall
(a) be dated the Effective Date, (b) be stated to mature on the Termination Date
and (c) provide for the payment of interest in accordance with subsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute
discretion may, and, at any time as there shall be a Swing Line Loan outstanding
for more than seven Business Days, the Swing Line Lender shall, on behalf of the
Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender
to act on its behalf), request each Revolving Credit Lender, including the Swing
Line Lender, to make a Revolving Credit Loan as an ABR Loan in an amount equal
to such Revolving Credit Lender's Revolving Credit Commitment Percentage of the
principal amount of the Swing Line Loans (the "Refunded Swing Line Loans")
outstanding on the date such notice is given; provided that the provisions of
this subsection shall not affect the Borrower's obligations to prepay Swing Line
Loans in accordance with the provisions of subsection 4.4(e). Unless the
Revolving Credit Commitments shall have expired or terminated (in which event
the procedures of paragraph (d) of this subsection 2.5 shall apply), each
Revolving Credit Lender will make the proceeds of its Revolving Credit Loan
available to the Administrative Agent for the account of the Swing Line Lender
at the office of the Administrative Agent prior to 12:00 Noon, New York City
time, in funds immediately available on the Business Day next succeeding the
date such notice is given. The proceeds of such Revolving Credit Loans shall be
immediately applied to repay the Refunded Swing Line Loans.
(d) If the Revolving Credit Commitments shall expire or terminate at
any time while Swing Line Loans are outstanding, each Revolving Credit Lender
shall, at the option of the
33
Swing Line Lender exercised reasonably, either (i)
notwithstanding the expiration or termination of the Revolving Credit
Commitments, make a Revolving Credit Loan as an ABR Loan or (ii) purchase an
undivided participating interest in such Swing Line Loans, in either case in an
amount equal to such Revolving Credit Lender's Revolving Credit Commitment
Percentage determined on the date of, and immediately prior to, expiration or
termination of the Revolving Credit Commitments of the aggregate principal
amount of such Swing Line Loans. Each Revolving Credit Lender will make the
proceeds of any Revolving Credit Loan made pursuant to the immediately preceding
sentence available to the Administrative Agent for the account of the Swing Line
Lender at the office of the Administrative Agent prior to 12:00 Noon, New York
City time, in funds immediately available on the Business Day next succeeding
the date on which the Revolving Credit Commitments expire or terminate. The
proceeds of such Revolving Credit Loans shall be immediately applied to repay
the Swing Line Loans outstanding on the date of termination or expiration of the
Revolving Credit Commitments. In the event that the Revolving Credit Lenders
purchase undivided participating interests pursuant to the first sentence of
this paragraph (d), each Revolving Credit Lender shall immediately transfer to
the Swing Line Lender, in immediately available funds, the amount of its
participation and upon receipt thereof the Swing Line Lender will deliver to
such Revolving Credit Lender a Swing Line Loan Participation Certificate,
substantially in the form of Exhibit I, dated the date of receipt of such funds
and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received
from any Revolving Credit Lender such Revolving Credit Lender's participating
interest in a Swing Line Loan, the Swing Line Lender receives any payment on
account thereof, the Swing Line Lender will distribute to such Revolving Credit
Lender its participating interest in such amount (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such
Revolving Credit Lender's participating interest was outstanding and funded);
provided, however, that in the event that such payment received by the Swing
Line Lender is required to be returned, such Revolving Credit Lender will return
to the Swing Line Lender any portion thereof previously distributed by the Swing
Line Lender to it.
2.6 Term Loans. Subject to the terms and conditions hereof (including,
without limitation, subsection 2.1(c)), each Term Loan Lender severally agrees
(a) to make a term loan to the Borrower (a "Tranche A Term Loan"), on the
Effective Date in the principal amount set forth opposite such Term Loan
Lender's name in Schedule I under the heading "Tranche A Term Loan Commitment";
(b) to make a term loan to the Borrower (a "Tranche B Term Loan") on the
Effective Date in the principal amount set forth opposite such Term Loan
Lender's name in Schedule I under the heading "Tranche B Term Loan Commitment"
and (c) to make term loans to the Borrower ("Multi-Draw Term Loans"), from time
to time from the Effective Date to and including the third anniversary of the
Effective Date in an aggregate principal amount up to but not exceeding the
amount set forth opposite such Term Loan Lender's name in Schedule I under the
heading "Multi-Draw Term Loan Commitment". The Term Loans may from time to time
be (a) Eurodollar Loans, (b) ABR Loans or (c) a combination thereof, as
determined by the Borrower and notified to the Administrative Agent in
accordance with subsections 2.9 and 4.2.
2.7 Tranche A Term Notes. (a) The Borrower agrees that, upon the
request to the Administrative Agent by any Tranche A Term Loan Lender made on or
prior to the Effective Date or in connection with any assignment of its Loan, in
order to evidence such Term Loan Lender's Tranche A Term Loans the Borrower will
execute and deliver to such Term Loan
34
Lender one or more promissory notes substantially in the form of
Exhibit A-3 (each, as amended, supplemented, replaced or otherwise
modified from time to time, a "Tranche A Term Note"), with appropriate
insertions therein as to payee, date and principal amount, payable to
the order of such Term Loan Lender and in an aggregate principal
amount equal to the lesser of (a) the amount set forth opposite such
Term Loan Lender's name on Schedule I under the heading "Tranche A
Term Loan Commitment" and (b) the unpaid principal amount of the
Tranche A Term Loans made by such Term Loan Lender. Each Tranche A
Term Note shall (i) be dated the Effective Date, (ii) be payable as
provided in subsection 2.7(b) and (iii) provide for the payment of
interest in accordance with subsection 4.1.
(b) The aggregate Tranche A Term Loans of all the Term Loan Lenders
shall be payable in 27 consecutive quarterly installments on the dates and in a
principal amount equal to the amount set forth below (together with all accrued
interest thereon) opposite the applicable installment date (or, if less, the
aggregate amount of the Tranche A Term Loans then outstanding):
Dates Amounts
----- -------
January 24, 1999 $4,166,666
April 24, 1999 $4,166,667
July 24, 1999 $4,166,667
October 24, 1999 $3,750,000
January 24, 2000 $3,750,000
April 24, 2000 $3,750,000
July 24, 2000 $3,750,000
October 24, 2000 $3,750,000
January 24, 2001 $3,750,000
April 24, 2001 $3,750,000
July 24, 2001 $3,750,000
October 24, 2001 $3,750,000
January 24, 2002 $3,750,000
April 24, 2002 $3,750,000
July 24, 2002 $3,750,000
October 24, 2002 $3,750,000
January 24, 2003 $3,750,000
April 24, 2003 $3,750,000
July 24, 2003 $3,750,000
October 24, 2003 $3,750,000
January 24, 2004 $3,750,000
April 24, 2004 $3,750,000
July 24, 2004 $3,750,000
October 24, 2004 $3,125,000
January 24, 2005 $3,125,000
April 24, 2005 $3,125,000
Termination Date $3,125,000
2.8 Tranche B Term Notes. (a) The Borrower agrees that, upon the
request to the Administrative Agent by any Tranche B Term Loan Lender made on or
prior to the Effective Date or in connection with any assignment of its Loan, in
order to evidence such Term Loan Lender's Tranche B Term Loan the Borrower will
execute and deliver to such Term Loan Lender
35
a promissory note substantially in the form of Exhibit A-4 (each, as
amended, supplemented, replaced or otherwise modified from time to time, a
"Tranche B Term Note"), with appropriate insertions therein as to payee,
date and principal amount, payable to the order of such Term Loan Lender
and in a principal amount equal to the lesser of (a) the amount set forth
opposite such Term Loan Lender's name on Schedule I under the heading
"Tranche B Term Loan Commitment" and (b) the unpaid principal amount of the
Tranche B Term Loan made by such Term Loan Lender. Each Tranche B Term Note
shall (i) be dated the Effective Date, (ii) be payable as provided in
subsection 2.8(b) and (iii) provide for the payment of interest in
accordance with subsection 4.1.
(b) The aggregate Tranche B Term Loans of all the Term Loan Lenders
shall be payable in 31 consecutive quarterly installments on the dates and in a
principal amount equal to the amount set forth below (together with all accrued
interest thereon) opposite the applicable installment date (or, if less, the
aggregate amount of the Tranche B Term Loans then outstanding):
Dates Amount
----- ------
January 24, 1999 $ 333,333
April 24, 1999 $ 333,333
July 24, 1999 $ 333,334
October 24, 1999 $ 250,000
January 24, 2000 $ 250,000
April 24, 2000 $ 250,000
July 24, 2000 $ 250,000
October 24, 2000 $ 250,000
January 24, 2001 $ 250,000
April 24, 2001 $ 250,000
July 24, 2001 $ 250,000
October 24, 2001 $ 250,000
January 24, 2002 $ 250,000
April 24, 2002 $ 250,000
July 24, 2002 $ 250,000
October 24, 2002 $ 250,000
January 24, 2003 $ 250,000
April 24, 2003 $ 250,000
July 24, 2003 $ 250,000
October 24, 2003 $ 250,000
January 24, 2004 $ 250,000
April 24, 2004 $ 250,000
July 24, 2004 $ 250,000
October 24, 2004 $ 23,000,000
January 24, 2005 $ 23,000,000
April 24, 2005 $ 23,000,000
July 24, 2005 $ 23,000,000
October 24, 2005 $144,250,000
January 24, 2006 $144,250,000
April 24, 2006 $144,250,000
Final Maturity Date $144,250,000
2.9 Multi-Draw Term Notes. (a) The Borrower agrees that, upon the request
to
36
the Administrative Agent by any Multi-Draw Term Loan Lender made on or prior
to the Effective Date or in connection with any assignment of its Loan, in order
to evidence such Multi-Draw Term Loan Lender's Multi-Draw Term Loans the
Borrower will execute and deliver to such Term Loan Lender promissory notes
substantially in the form of Exhibit A-5 (each, as amended, supplemented,
replaced or otherwise modified from time to time, a "Multi-Draw Term Note"),
with appropriate insertions therein as to payee, date and principal amount,
payable to the order of such Term Loan Lender and in an aggregate principal
amount equal to the lesser of (a) the amount set forth opposite such Term Loan
Lender's name on Schedule I under the heading "Multi-Draw Term Loan Commitment"
and (b) the unpaid principal amount of the Multi-Draw Term Loans made by such
Term Loan Lender. Each Multi-Draw Term Note shall (i) be dated the Effective
Date, (ii) be payable as provided in subsection 2.9(b) and (iii) provide for the
payment of interest in accordance with subsection 4.1.
(b) The aggregate Multi-Draw Term Loans of all the Term Loan Lenders
outstanding on the third anniversary of the Effective Date shall be payable in
16 consecutive quarterly installments on the dates and in a principal amount
equal to the aggregate principal amount of the Multi-Draw Term Loans outstanding
on the third anniversary of the Effective Date multiplied by the percentage set
forth below (together with all accrued interest thereon) opposite the applicable
installment date (or, if less, the aggregate amount of the Multi-Draw Term Loans
then outstanding):
Dates Percentage
----- ----------
October 24, 2001 2.625%
January 24, 2002 2.625%
April 24, 2002 2.625%
July 24, 2002 2.625%
October 24, 2002 7.875%
January 24, 2003 7.875%
April 24, 2003 7.875%
July 24, 2003 7.875%
October 24, 2003 11.625%
January 24, 2004 11.625%
April 24, 2004 11.625%
July 24, 2004 11.625%
October 24, 2004 2.875%
January 24, 2005 2.875%
April 24, 2005 2.875%
Termination Date 2.875%
2.10 Procedure for Term Loan Borrowing. The Borrower may borrow the Term
Loans (i) on the Effective Date, in the case of the Tranche A Term Loans and the
Tranche B Term Loans, or (ii) on any Business Day during the period from the
Effective Date to and including the third anniversary of the Effective Date, in
the case of the Multi-Draw Term Loans, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 12:30 P.M., New York City time, at least (a) three
Business Days prior to the requested Borrowing Date, if all or any part of the
Term Loans are to be initially Eurodollar Loans or (b) one Business Day prior to
the requested Borrowing Date, otherwise) requesting that the Term Loan Lenders
make the Term Loans on the
37
requested Borrowing Date and specifying (i) in the case of Tranche A Term
Loans, Tranche B Term Loans and Multi-Draw Term Loans, the amount to be
borrowed, (ii) whether the Term Loans are to be initially Eurodollar Loans, ABR
Loans or a combination thereof, and (iii) if the Term Loans are to be entirely
or partly Eurodollar Loans, the respective amounts of each such Type of Loan and
the respective lengths of the initial Interest Periods therefor. Each borrowing
under the Multi-Draw Term Loan Commitments shall be in an amount at least equal
to $25,000,000. Upon receipt of such notice the Administrative Agent shall
promptly notify each Term Loan Lender thereof. Each Term Loan Lender will make
the amount of its pro rata share of the Term Loans available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in subsection 12.2 prior to 12:00 Noon (or 10:00
A.M., in the case of the borrowings of Tranche A Term Loans and Tranche B Term
Loans on the Effective Date), New York City time, on the requested Borrowing
Date in Dollars and in funds immediately available to the Administrative Agent.
The Administrative Agent shall on such date credit the account of the Borrower
on the books of such office of the Administrative Agent with the aggregate of
the amounts made available to the Administrative Agent by the Term Loan Lenders
and in like funds as received by the Administrative Agent.
2.11 Termination or Reduction of Multi-Draw Term Loan Commitments.
Subject to subsection 2.1(c), the Borrower shall have the right, upon not less
than three Business Days' notice to the Administrative Agent (which will
promptly notify the Lenders thereof), to terminate the Multi-Draw Term Loan
Commitments or, from time to time, to reduce the amount of the Multi-Draw Term
Loan Commitments. Any such reduction shall be in an amount equal to $5,000,000
or a whole multiple of $1,000,000 in excess thereof and shall reduce permanently
the Multi-Draw Term Loan Commitments then in effect.
2.12 Repayment of Loans. (a) The Borrower hereby unconditionally
promises to pay and, with respect to the Loans made to Blue Star Group, the
Borrower hereby unconditionally promises to cause Blue Star Group and Blue Star
Group hereby unconditionally promises to pay to the Administrative Agent for the
account of (i) each Revolving Credit Lender, the then unpaid principal amount of
each Revolving Credit Loan of such Revolving Credit Lender, on the Termination
Date (or such earlier date on which the Revolving Credit Loans become due and
payable pursuant to Section 10); (ii) the Swing Line Lender, the then unpaid
principal amount of the Swing Line Loans, on the Termination Date (or such
earlier date on which the Swing Line Loans become due and payable pursuant to
Section 10); (iii) each Tranche A Term Loan Lender, the amounts specified in
subsection 2.7(b) (or, if less, the aggregate amount of the Tranche A Term Loans
then outstanding), on the dates specified in subsection 2.7(b) (or such earlier
date on which the Tranche A Term Loans become due and payable pursuant to
Section 10); (iv) each Tranche B Term Loan Lender, the amounts specified in
subsection 2.8(b) (or, if less, the aggregate amount of the Tranche B Term Loans
then outstanding), on the dates specified in subsection 2.8(b) (or such earlier
date on which the Tranche B Term Loans become due and payable pursuant to
Section 10) and (v) each Multi-Draw Term Loan Lender, the amounts specified in
subsection 2.9(b) (or, if less, the aggregate amount of the Multi-Draw Term
Loans then outstanding), on the dates specified in subsection 2.9(b) (or such
earlier date on which the Multi-Draw Term Loans become due and payable pursuant
to Section 10). 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 subsection 4.1.
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(b) Each Lender (including the Swing Line Lender) shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of the Borrower or Blue Star Group 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 shall maintain the Register pursuant to
subsection 12.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period, if any, applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower or Blue
Star Group to each Lender hereunder and (iii) both the amount of any sum
received by the Administrative Agent hereunder from the Borrower or Blue Star
Group and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 12.6(d) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower and Blue Star Group 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 or Blue Star Group to repay (with
applicable interest) the Loans made to the Borrower or Blue Star Group by such
Lender in accordance with the terms of this Agreement.
2.13 Qualified Foreign Lender Notes. (a) Any Lender that is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code and that is in compliance
with the requirements of subsection 4.11(b)(Y) of this Agreement (a "Qualified
Foreign Lender") shall upon receipt of the written request of the Borrower or
the Administrative Agent, and may upon its own written request to the
Administrative Agent, (i) exchange any Revolving Credit Note held by or assigned
to it for a QFL Revolving Credit Note in the form attached hereto as Exhibit A-6
(a "QFL Revolving Credit Note"), (ii) exchange any Tranche A Term Note held by
or assigned to it for a QFL Tranche A Term Note in the form attached hereto as
Exhibit A-7 (a "QFL Tranche A Term Note"), (iii) exchange any Tranche B Term
Note held by or assigned to it for a QFL Tranche B Term Note in the form
attached hereto as Exhibit A-8 (a "QFL Tranche B Term Note") and (iv) exchange
any Multi-Draw Term Note held by an assignment to it for a QFL Multi-Draw Term
Note in the form attached hereto as Exhibit A-9 (a "QFL Multi-Draw Term Note";
together with any QFL Revolving Credit Notes, QFL Tranche A Term Notes and QFL
Tranche B Term Note, the "QFL Notes"), provided that, prior to any exchange of
Notes, such Lender shall have delivered to the Borrower the certificates,
documents and forms described in Section 4.11(b)(Y) of this Agreement. Any QFL
Notes issued in exchange for any existing Notes pursuant to this subsection
shall be (i) dated the Effective Date, (ii) issued in the names of the entities
in whose names such existing Notes were issued and (iii) issued in the same
principal amounts as such existing Notes. Any Revolving Credit Note, Tranche A
Term Note, Tranche B Term Note and Multi-Draw Term Note exchanged pursuant to
this subsection is sometimes referred to herein as an exchange note ("Exchange
Note").
(b) The Borrower agrees that, upon the request of or delivery of a
request to a Qualified Foreign Lender pursuant to paragraph (a) of this
subsection, it shall execute and deliver QFL Notes to the Administrative Agent
in exchange for the Exchange Notes surrendered in
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connection with such request conforming to the requirements of such
paragraph. Each Qualified Foreign Lender shall surrender its Notes to the
Administrative Agent in connection with any exchange pursuant to this
subsection. Upon receipt by the Administrative Agent of the existing Notes to be
exchanged for such QFL Notes in accordance with this paragraph, the
Administrative Agent shall forward the QFL Notes to the Qualified Foreign Lender
which surrendered its existing Notes for exchange and shall forward the existing
Notes to the Borrower marked "cancelled." Once issued, QFL Notes (i) shall be
deemed to and shall be "Notes", "Tranche A Term Notes", "Tranche B Term Notes",
"Multi-Draw Term Notes" or "Revolving Credit Notes", as the case may be, for all
purposes under this Agreement, the Security Documents and the other Loan
Documents, (ii) may not be exchanged for Revolving Credit Notes, Tranche A Term
Notes, Tranche B Term Notes or Multi-Draw Term Notes, notwithstanding anything
to the contrary in this Agreement, and (iii) shall at all times thereafter be
QFL Notes, including, without limitation, following any transfer or assignment
thereof.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions hereof, the
Revolving L/C Issuing Lender, in reliance on the agreements of the other
Revolving Credit Lenders set forth in subsection 3.4(a), agrees to continue
outstanding under this Agreement the Existing Revolving Letters of Credit and
issue letters of credit (such letters of credit, "Revolving 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 the
Revolving L/C Issuing Lender, provided that the Revolving L/C Issuing Lender
shall not issue any Revolving Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations in respect of Revolving Letters of Credit
would exceed $50,000,000 or (ii) the Aggregate Outstanding Revolving Credit of
all the Revolving Credit Lenders would exceed the Revolving Credit Commitments
of all the Revolving Credit Lenders then in effect. Each Letter of Credit shall
(i) be denominated in Dollars and shall be either (x) a standby letter of credit
issued to support obligations of the Borrower or any of its Subsidiaries or a
joint venture or similar arrangement in which the Borrower or any of its
Subsidiaries is an investor, contingent or otherwise, which finance the working
capital and business needs of the Borrower and its Subsidiaries or such joint
venture or other arrangement incurred in the ordinary course of business (a
"Standby Letter of Credit"), or (y) a commercial letter of credit in respect of
the purchase of goods or services by the Borrower, any of its Subsidiaries or a
joint venture or similar arrangement in which the Borrower or any of its
Subsidiaries is an investor in the ordinary course of business (a "Commercial
Letter of Credit"), (ii) expire no later than the date five Business Days prior
to the Termination Date, and (iii) expire no later than 365 or 366 days, as the
case may be, after its date of issuance in the case of Standby Letters of
Credit, and 180 days after its date of issuance in the case of Commercial
Letters of Credit, provided that any Standby 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 (ii)).
(b) Subject to the terms and conditions hereof, the Blue Star L/C
Issuing Lenders, in reliance on the agreements of the other Revolving Credit
Lenders set forth in subsection 3.4(a), each agree to issue stand-by letters of
credit ("Blue Star Letters of Credit") to support borrowings under the Blue Star
Credit Facility 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
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the Blue Star L/C Issuing Lender, provided that the Blue Star L/C
Issuing Lenders shall not issue any Blue Star Letters of Credit if, after giving
effect to such issuance, (i) the L/C Obligations in respect of the Blue Star
Letters of Credit would exceed the lesser of $200,000,000 or 110% of the
aggregate principal amount of the loans outstanding at any time under the Blue
Star Credit Facility or (ii) the Aggregate Outstanding Revolving Credit of all
the Revolving Credit Lenders would exceed the Revolving Credit Commitments of
all the Revolving Credit Lenders then in effect and provided, further that the
Blue Star Credit Facility shall be in an aggregate principal amount (i) not less
than $25,000,000 and (ii) not in excess of $180,000,000, including 90 days
interest thereon. Each Blue Star Letter of Credit shall (i) be denominated in
Dollars, (ii) expire no later than the date five Business Days prior to the
Termination Date, and (iii) expire no later than 365 or 366 days, as the case
may be, after its date of issuance, provided that any Blue Star 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 to date referred to in clause
(ii)). Each Blue Star Letter of Credit shall provide for a drawing thereunder in
the event of an acceleration of the Blue Star Credit Facility or a bankruptcy or
similar event of any obligor thereunder.
(c) Each Letter of Credit shall be subject to the Uniform Customs and,
to the extent not inconsistent therewith, the laws of the State of New York.
(d) The Issuing Lender shall not at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause the
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letters of Credit. (a) The Borrower may
from time to time request that the Revolving L/C Issuing Lender issue a
Revolving Letter of Credit by delivering to the Revolving L/C Issuing Lender, at
its address for notices specified herein, an Application therefor, completed to
the reasonable satisfaction of the Revolving L/C Issuing Lender, and such other
certificates, documents and other papers and information as the Revolving L/C
Issuing Lender may reasonably request. Upon receipt of any Application, the
Revolving L/C 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 Revolving Letter of Credit requested thereby (but in no event shall the
Revolving L/C Issuing Lender be required to issue any Letter of Credit earlier
than three Business Days after its receipt of the Application therefor and all
such other certificates, documents and other papers and information relating
thereto) by issuing the original of such Letter of Credit to the beneficiary
thereof or as otherwise maybe agreed by the Revolving L/C Issuing Lender and the
Borrower. The Revolving L/C Issuing Lender shall furnish a copy of such
Revolving Letter of Credit to the Borrower promptly following the issuance
thereof.
(b) The Borrower may from time to time request that the Blue Star L/C
Issuing Lenders issue a single Letter of Credit to which they are all parties or
ratable Letters of Credit by delivering to the Blue Star L/C Issuing Lenders, at
their addresses for notices specified herein, an Application therefor, completed
to the reasonable satisfaction of each of the Blue Star L/C Issuing Lenders, and
such other certificates, documents and other papers and information as the Blue
Star L/C Issuing Lenders may reasonably request, provided that any such
Application shall specify the aggregate amount of Blue Star Letters of Credit
requested and each of the Blue Star L/C Issuing Lenders shall issue Blue Star
Letters of Credit or join in a single Blue Star Letter of Credit as follows: (i)
the Administrative Agent or an affiliate thereof shall issue a Blue Star
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Letter of Credit in an amount equal to 40% of the aggregate amount
requested or be responsible for 40% of such a single Blue Star Letter of Credit,
(ii) the Syndication Agent or an affiliate thereof shall issue a Blue Star
Letter of Credit in an amount equal to 40% of the aggregate amount requested or
be responsible for 40% of such a single Blue Star Letter of Credit and (iii) the
Documentation Agent or an affiliate thereof, shall issue a Blue Star Letter of
Credit in an amount equal to 20% of the aggregate amount requested or be
responsible for 20% of such a single Blue Star Letter of Credit. Notwithstanding
the foregoing proviso, in the event that any Lender other than the
Administrative Agent, the Syndication Agent or the Documentation Agent becomes a
Blue Star L/C Issuing Lender with respect to the single Blue Star Letter of
Credit or Blue Star Letters of Credit to be issued pursuant to any Application,
such other Lender shall join in such single Blue Star Letter of Credit in its
agreed percentage or issue a Blue Star Letter of Credit in an amount equal to
its agreed percentage of the aggregate amount requested by the Borrower, as the
case may be, and the agreed percentages of the other Blue Star L/C Issuing
Lenders shall be ratably reduced as determined by the Administrative Agent. Upon
receipt of any Application, each of the Blue Star L/C Issuing Lenders 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 or join in a Blue Star Letter of
Credit as requested thereby (but in no event shall such Blue Star L/C Issuing
Lender be required to issue or join in any Blue Star Letter of Credit earlier
than three Business Days after its receipt of the Application therefor and all
such other certificates, documents and other papers and information relating
thereto) by issuing the original of such Blue Star Letter of Credit to the
beneficiary thereof or as otherwise may be agreed by the Blue Star L/C Issuing
Lender and the Borrower. Each of the Blue Star L/C Issuing Lenders shall furnish
a copy of such Blue Star Letter of Credit to the Borrower promptly following the
issuance thereof.
3.3 Fees, Commissions and Other Charges. (a) The Borrower shall pay to
the Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, a letter of credit commission with respect to each Letter of
Credit, computed for the period from and including the date of issuance of such
Letter of Credit to the expiration date of such Letter of Credit, computed at
the rate per annum equal to the Applicable Margin in effect for Revolving Credit
Loans that are Eurodollar Loans, calculated on the basis of a 365- (or 366-, as
the case may be) day year, of the aggregate amount available to be drawn under
such Letter of Credit, payable (without duplication) quarterly in arrears on
each L/C Fee Payment Date to occur while such Letter of Credit remains
outstanding and on the expiration date of such Letter of Credit and the
Termination Date. Such commission shall be payable to the Administrative Agent
for the account of the Revolving Credit Lenders to be shared ratably among them
in accordance with their respective Revolving Credit Commitment Percentages. The
Borrower shall also pay to the Administrative Agent, for the account of the
Issuing Lender, a fee equal to 1/4 of 1% per annum of the aggregate amount
available to be drawn under such Letter of Credit, payable quarterly in arrears
on each L/C Fee Payment Date to occur while such Letter of Credit remains
outstanding and on the expiration date of such Letter of Credit. Such
commissions shall be nonrefundable.
(b) In addition to the foregoing fees and commissions, the Borrower
shall pay or reimburse the Issuing Lender for such normal and customary costs
and expenses as are incurred or charged by the Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
(c) The Administrative Agent shall, promptly following its receipt
thereof,
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distribute to the Issuing Lender and the L/C Participants all fees and
commissions received by the Administrative Agent for their respective accounts
pursuant to this subsection. The Administrative Agent shall notify the Lenders
at least monthly of the aggregate outstanding Letters of Credit.
3.4 L/C Participations. (a) The Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the 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 Commitment Percentage (determined on the date of
issuance of the relevant Letter of Credit) in the Issuing Lender's obligations
and rights under each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in accordance with subsection 3.5(a), such
L/C Participant shall pay to the Issuing Lender upon demand at the Issuing
Lender's address for notices specified herein an amount equal to such L/C
Participant's Revolving Credit Commitment Percentage of the amount of such
draft, or any part thereof, which is not so reimbursed; provided that nothing in
this paragraph shall relieve the Issuing Lender of any liability resulting from
the gross negligence or willful misconduct as determined by a court of competent
jurisdiction of the Issuing Lender, or otherwise affect any defense or other
right that any L/C Participant may have as a result of such gross negligence or
willful misconduct.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to subsection 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit is
not paid to the Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
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 the 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
subsection 3.4(a) is not in fact made available to the Issuing Lender by such
L/C Participant within three Business Days after the date such payment is due,
the 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 ABR Loans that are Revolving Credit Loans. A
certificate of the Issuing Lender submitted to any L/C Participant with respect
to any amounts owing under this subsection shall be conclusive in the absence of
manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 3.4(a), the 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 the Issuing Lender), or any payment of interest on account thereof, the
Issuing Lender will, if such payment is received prior to 1:00 P.M., New York
City time, on a Business Day, distribute to such L/C Participant its pro rata
share thereof prior to the end of such Business
43
Day and otherwise the Issuing Lender will distribute such payment on the next
succeeding Business Day; provided, however, that in the event that any such
payment received by the Issuing Lender shall be required to be returned by the
Issuing Lender, such L/C Participant shall return to the Issuing Lender the
portion thereof previously distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. (a) The Borrower agrees to
reimburse the Issuing Xxxxxx, upon receipt of notice from the Issuing Lender of
the date and amount of a draft presented under any Letter of Credit and paid by
the Issuing Lender, for the amount of (i) such draft so paid and (ii) any taxes,
fees, charges or other costs or expenses reasonably incurred by the Issuing
Lender in connection with such payment. Each such payment shall be made to the
Issuing Lender, at its address for notices specified herein in Dollars and in
immediately available funds, on the date on which the Borrower receives such
notice, if received prior to 11:00 A.M., New York City time, on a Business Day
and otherwise on the next succeeding Business Day.
(b) Interest shall be payable on any and all amounts remaining unpaid by
the Borrower under this subsection (i) from the date the draft presented under
the affected Letter of Credit is paid to the date on which the Borrower is
required to pay such amounts pursuant to paragraph (a) above at the rate which
would then be payable on any outstanding ABR Loans that are Revolving Credit
Loans and (ii) thereafter until payment in full at the rate which would be
payable on any outstanding ABR Loans that are Tranche B Term Loans which were
then overdue.
3.6 Obligations Absolute. (a) The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any set-off, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender, any L/C Participant or
any beneficiary of a Letter of Credit, provided that this paragraph shall not
relieve the Issuing Lender or any L/C Participant of any liability resulting
from the gross negligence or willful misconduct of the Issuing Lender or such
L/C Participant, or otherwise affect any defense or other right that the
Borrower may have as a result of any such gross negligence or willful
misconduct.
(b) The Borrower also agrees with the Issuing Lender that the Issuing
Lender and the L/C Participants shall not be responsible for, and the Borrower's
Reimbursement Obligations under subsection 3.5(a) shall not be affected by,
among other things, (i) 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 (ii) 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 (iii) any claims whatsoever of the
Borrower against any beneficiary of such Letter of Credit or any such
transferee, provided that this paragraph shall not relieve the Issuing Lender or
any L/C Participant of any liability resulting from the gross negligence or
willful misconduct as determined by a court of competent jurisdiction of the
Issuing Lender or such L/C Participant, or otherwise affect any defense or other
right that the Borrower may have as a result of any such gross negligence or
willful misconduct.
(c) Neither the Issuing Lender nor any L/C Participant 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
44
omissions caused by such Person's gross negligence or willful misconduct.
(d) The Borrower agrees that any action taken or omitted by the Issuing
Lender under or in connection with any Letter of Credit or the related drafts or
documents, if done in the absence of gross negligence or willful misconduct and
in accordance with the standards of 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 the Issuing Lender or any L/C Participant to the
Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in substantial conformity with such Letter
of Credit, provided that this paragraph shall not relieve the Issuing Lender of
any liability resulting from the gross negligence or willful misconduct as
determined by a court of competent jurisdiction of the Issuing Lender, or
otherwise affect any defense or other right that the Borrower may have as a
result of any such gross negligence or willful misconduct.
3.8 Application. 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.
SECTION 4. GENERAL PROVISIONS APPLICABLE TO
LOANS AND LETTERS OF CREDIT
4.1 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.
(b) Each ABR Loan shall bear interest for each day that it is
outstanding at a rate per annum equal to the ABR for such day plus the
Applicable Margin in effect for such day.
(c) If all or a portion of (i) the principal amount of any Loan, (ii)
any interest payable thereon or (iii) 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 which is (x) in the case of overdue principal, the rate that would
otherwise be applicable thereto pursuant to the relevant foregoing provisions of
this subsection plus 2.00% or (y) in the case of overdue interest, fees or other
amounts, the rate described in paragraph (b) of this subsection for ABR Loans
that are Tranche B Term Loans plus 2.00%, in each case from the date of such
non-payment until such amount is paid in full (as well after 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 subsection
shall be payable from time to
45
time on demand.
(e) It is the intention of the parties hereto to comply strictly with
applicable usury laws; accordingly, it is stipulated and agreed that the
aggregate of all amounts which constitute interest under applicable usury laws,
whether contracted for, charged, taken, reserved, or received, in connection
with the indebtedness evidenced by this Agreement or any Notes, or any other
document relating or referring hereto or thereto, now or hereafter existing,
shall never exceed under any circumstance whatsoever the maximum amount of
interest allowed by applicable usury laws.
4.2 Conversion and Continuation Options. (a) The Borrower or Blue Star
Group, as the case may be, may elect from time to time to convert outstanding
Term Loans and Revolving Credit Loans from Eurodollar Loans to ABR 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 only be made on the last day of an Interest Period with respect thereto. The
Borrower or Blue Star Group, as the case may be, may elect from time to time to
convert outstanding Term Loans and Revolving Credit Loans from ABR Loans to
Eurodollar Loans by giving the Administrative Agent at least three Business
Days' prior irrevocable notice of such election. Any such notice of conversion
to Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the Administrative
Agent shall promptly notify each affected Lender thereof. All or any part of
outstanding Eurodollar Loans and ABR Loans may be converted as provided herein,
provided that (i) (unless the Required Lenders otherwise consent) no Loan may be
converted into a Eurodollar Loan when any Default or Event of Default has
occurred and is continuing and, in the case of any Default, the Administrative
Agent has given notice to the Borrower that no such conversions may be made and
(ii) no Loan may be converted into a Eurodollar Loan after the date that is one
month prior to either the Termination Date (in the case of conversions of
Revolving Credit Loans) or the date of the final installment of principal of the
Term Loans (in the case of conversions of Term Loans).
(b) Any Eurodollar Loans may be continued as such upon the expiration of
the then current Interest Period with respect thereto by the Borrower or Blue
Star Group, as the case may be, giving notice to the Administrative Agent, of
the length of the next Interest Period to be applicable to such Loans,
determined in accordance with the applicable provisions of the term "Interest
Period" set forth in subsection 1.1, provided that no Eurodollar Loan may be
continued as such (i) (unless the Required Lenders otherwise consent) when any
Default or Event of Default has occurred and is continuing and, in the case of
any Default, the Administrative Agent has given notice to the Borrower that no
such continuations may be made or (ii) after the date that is one month prior to
either the Termination Date (in the case of continuations of Revolving Credit
Loans, Tranche A Term Loans or Multi-Draw Term Loans) or the Final Maturity Date
(in the case of continuations of Tranche B Term Loans), and provided, further,
that if the Borrower or Blue Star Group, as the case may be, 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
automatically converted to ABR Loans on the last day of such then expiring
Interest Period. Upon receipt of any such notice of continuation pursuant to
this subsection 4.2(b), the Administrative Agent shall promptly notify each
affected Lender thereof.
4.3 Minimum Amounts of Tranches. All borrowings, conversions and
46
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the
Eurodollar Loans comprising each Tranche shall be equal to $10,000,000 or a
whole multiple of $1,000,000 in excess thereof and so that there shall not be
more than twenty Tranches at any one time outstanding.
4.4 Optional Prepayments and Mandatory Prepayments and Commitment
Reductions. (a) The Borrower or Blue Star Group, as the case may be, may at
any time and from time to time prepay the Loans (including the Reimbursement
Obligations in respect of Letters of Credit issued for the Borrower's
account), in whole or in part, without premium or penalty (other than, in the
case of prepayments of Tranche B Term Loans not required pursuant to
subsections 4.4(c), 4.4(d) or 4.4(e) made on or prior to the date which is
eighteen months following the Effective Date, which shall incur a premium in
an amount equal to 1% of the amount prepaid), upon at least three Business
Days' irrevocable notice to the Administrative Agent (in the case of
Eurodollar Loans, at least one Business Day's irrevocable notice to the
Administrative Agent (in the case of ABR Loans other than Swing Line Loans)
or same-day irrevocable notice to the Administrative Agent (in the case of
Swing Line Loans), specifying the date and amount of prepayment or reduction,
as the case may be, and whether the prepayment is (i) of Loans of the
Borrower or Blue Star Group, or a combination thereof, (ii) of Term Loans,
Revolving Credit Loans or Swing Line Loans, or a combination thereof, and
(iii) of Eurodollar Loans, ABR Loans or a combination thereof, and, in each
case if a combination thereof, the principal amount allocable to each and, in
the case of any prepayment of Reimbursement Obligations, the date and amount
of prepayment, the identity of the applicable Letter of Credit or Letters of
Credit and the amount allocable to each of such Reimbursement Obligations.
Upon the receipt of any such notice the Administrative Agent shall promptly
notify each affected 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 (if a Eurodollar Loan is prepaid other than at the end
of the Interest Period applicable thereto) any amounts payable pursuant to
subsection 4.12 and, in the case of prepayments of the Term Loans only,
accrued interest to such date on the amount prepaid plus premiums, if any.
Partial prepayments of (i) the Term Loans shall be applied (x) pro rata
(based on outstanding principal amount) to the Tranche A Term Loans, the
Tranche B Term Loans, and the Multi-Draw Term Loans, and (y) pro rata to the
respective installments of principal thereof, provided that, at the option of
the Borrower, any such partial payment may be applied, first, to the extent
of the aggregate amount of the installments of principal of the Tranche A
Term Loans and the Multi-Draw Term Loans and, if no Tranche B Term Loan
Lenders decline such prepayment, the Tranche B Term Loans due within twelve
months of the date of prepayment, to such installments, and, thereafter (and
after giving effect to the application in the first clause of this proviso)
as provided above without regard to this proviso, and (ii) the Revolving
Credit Loans and the Letters of Credit shall be applied, first, to payment of
the Swing Line Loans then outstanding, second, to payment of the Revolving
Credit Loans then outstanding, third, to payment of any Reimbursement
Obligations then outstanding and, last, to cash collateralize any outstanding
L/C Obligation on terms reasonably satisfactory to the Administrative Agent.
Partial prepayments pursuant to this subsection 4.4(a) shall be in an
aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof.
(b) If, at any time during the Revolving Credit Commitment Period, the
Aggregate Outstanding Revolving Credit with respect to all of the Revolving
Credit Lenders (including the Swing Line Lender) exceeds the aggregate Revolving
Credit Commitments then in
47
effect, the Borrower shall, or shall cause Blue Star Group to, without notice or
demand, immediately repay the Revolving Credit Loans and the Swing Line Loans in
an aggregate principal amount equal to such excess, together with interest
accrued to the date of such payment or prepayment and any amounts payable under
subsection 4.12. To the extent that after giving effect to any prepayment of the
Loans required by the preceding sentence, such Aggregate Outstanding Revolving
Credit exceeds the aggregate Revolving Credit Commitments then in effect, the
Borrower shall, without notice or demand, immediately cash collateralize the
then outstanding L/C Obligations in an amount equal to such excess upon terms
reasonably satisfactory to the Administrative Agent.
(c) If (i) the Borrower or any of its Subsidiaries shall incur
Indebtedness for borrowed money (other than Indebtedness permitted pursuant to
subsection 8.2) pursuant to a public offering or private placement or otherwise
or (ii) the Borrower or any of its Subsidiaries shall make an Asset Sale (other
than pursuant to subsections 8.6(a), (b), (c), (e), (f) and (h)), then, in each
case, the Borrower shall prepay the Loans and cash collateralize the L/C
Obligations in an amount equal to (x) in the case of the incurrence of any such
Indebtedness, 100% of the Net Cash Proceeds thereof and (y) in the case of any
such Asset Sale, 100% of the Net Cash Proceeds thereof minus any Reinvested
Amounts, in each such case, with such prepayment to be made on the date of
receipt of any such Net Cash Proceeds. Nothing in this paragraph (c) shall limit
the rights of the Administrative Agent and the Lenders set forth in Section 10.
(d) Commencing July 31, 1999, and on each July 31 thereafter, the
Borrower shall apply toward the prepayment of the Loans and the cash
collateralization the L/C Obligations as set forth in subsection 4.4(g) the ECF
Percentage of the Borrower's Excess Cash Flow for the fiscal year ending on the
immediately preceding April 30th (or, in the case of the first such payment, the
fiscal period beginning on the Effective Date and ending on April 24, 1999).
(e) If the Borrower or any of its Subsidiaries shall enter into a
Permitted Receivables Securitization, then an amount equal to 100% of the Net
Cash Proceeds thereof shall be applied first to permanently reduce the Revolving
Credit Commitments (but not to an aggregate amount below $200,000,000), second
to permanently reduce the Multi-Draw Term Loan Commitment by up to the then
Available Multi-Draw Term Loan Commitments, provided that at the written request
of the Borrower delivered to the Administrative Agent, the Multi-Draw Term Loan
Commitments shall not be so reduced, third to prepay the Multi-Draw Term Loans
pro rata to the respective installments of principal thereof, provided that at
the written request of the Borrower delivered to the Administrative Agent, the
Multi-Draw Term Loans shall not be so prepaid, fourth to prepay the other Term
Loans pro rata (based on outstanding principal amount) to the Tranche A Term
Loans, and the Tranche B Term Loans and pro rata to the respective installments
of principal thereof, provided that, at the option of the Borrower, any such
partial payment may be applied, first, to the extent of the aggregate amount of
the installments of principal of the Tranche A Term Loans and the Multi-Draw
Term Loans and, if no Tranche B Term Loan Lenders decline such prepayment, the
Tranche B Term Loans due within twelve months of the date of prepayment, to such
installments, and, thereafter (and after giving effect to the application in the
first clause of this proviso) as provided above without regard to this proviso.
(f) The Borrower shall prepay all Swing Line Loans then outstanding
simultaneously with each borrowing of Revolving Credit Loans.
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(g) Prepayments pursuant to subsections 4.4(c) and 4.4(d) shall be
applied, first, to prepay Term Loans then outstanding, second, to prepay Swing
Line Loans then outstanding, third, to prepay Revolving Credit Loans then
outstanding, fourth, to pay any Reimbursement Obligations then outstanding,
fifth, to cash collateralize any outstanding L/C Obligations on terms reasonably
satisfactory to the Administrative Agent, sixth to permanently reduce the
Revolving Credit Commitments and, last, to permanently reduce the Multi-Draw
Term Loan Commitments. Prepayments of Term Loans pursuant to subsections 4.4(c)
and 4.4(d) shall be applied (x) pro rata (based on outstanding principal amount)
to the Tranche A Term Loans, the Tranche B Term Loans and the Multi-Draw Term
Loans and (y) pro rata to the respective installments of principal thereof,
provided that, at the option of the Borrower, any such partial payment may be
applied, first, to the extent of the aggregate amount of the installments of
principal of the Tranche A Term Loans and the Multi-Draw Term Loans and, if no
Tranche B Term Loan Lenders decline such prepayment, the Tranche B Term Loans
due within twelve months of the date of prepayment, to such installments, and,
thereafter (and after giving effect to the application in the first clause of
this proviso) as provided in clauses (x) and (y) above without regard to this
proviso.
(h) (i) Notwithstanding anything to the contrary in this subsection 4.4,
so long as any Tranche A Term Loans or Multi-Draw Term Loans are outstanding,
each Tranche B Term Loan Lender may, at its option, decline the portion of any
optional prepayment or mandatory payment applicable to the Tranche B Term Loans
of such Lender; accordingly, with respect to the amount of any optional or
mandatory prepayment described in this subsection 4.4 that is allocated to
Tranche B Term Loans (such amount, the "Tranche B Prepayment Amount"), the
Borrower will, in lieu of applying such amount to the prepayment of Tranche B
Term Loans as provided in subsections 4.4(a), 4.4(c), 4.4(d) and 4.4(e), on the
date specified in this subsection 4.4 for such prepayment, give the
Administrative Agent telephonic notice (promptly confirmed in writing)
requesting that the Administrative Agent prepare and provide to each Tranche B
Term Loan Lender a notice (each, a "Prepayment Option Notice") as described
below. As promptly as practicable after receiving such notice from the Borrower,
the Administrative Agent will send to each Tranche B Term Loan Lender a
Prepayment Option Notice, which shall be in the form of Exhibit D, and shall
include an offer by the Borrower to prepay on the date (each, a "Prepayment
Date") that is ten Business Days after the date of the Prepayment Option Notice,
the Tranche B Term Loans of such Lender by an amount equal to the Tranche B
Prepayment Amount indicated in such Lender's Prepayment Option Notice. On the
Prepayment Date, (i) the Borrower shall pay to the Administrative Agent the
aggregate amount necessary to prepay that portion of the outstanding Tranche B
Term Loans in respect of which Tranche B Term Loan Lenders have accepted
prepayment as described above (such Lenders, the "Accepting Lenders"), and such
amount shall be applied to reduce the Tranche B Prepayment Amounts with respect
to each Accepting Lender and (ii) the Borrower shall pay to the Administrative
Agent an amount equal to the portion of the Tranche B Prepayment Amount not
accepted by the Accepting Lenders, and such amount shall be applied ratably to
the prepayment of the Tranche A Term Loans and the Multi-Draw Term Loans then
outstanding.
(i) Notwithstanding anything to the contrary in this subsection 4.4, in
the event no Tranche A Term Loans or Multi-Draw Term Loans are outstanding, any
prepayment of Tranche B Term Loans made on or prior to the date which is
eighteen months following the Effective Date with the proceeds of any
Indebtedness issued after the Effective Date shall be deemed an optional
prepayment and shall incur a premium in an amount equal to 1% of the
49
amount prepaid.
(j) Amounts prepaid on account of Term Loans pursuant to subsection
4.4(a), 4.4(c), 4.4(d) or 4.4(e) may not be reborrowed.
(k) The Revolving Credit Commitments shall be permanently reduced by the
amount of all prepayments of Revolving Credit Loans, payments of Reimbursement
Obligations and cash collateralizations of L/C Obligations made under subsection
4.4(c), 4.4(d).
4.5 Commitment Fees; Administrative Agent's Fee; Other Fees. (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
first day of the Revolving Credit Commitment Period to the Termination Date,
computed at the Commitment Fee Rate on the average daily amount of the Available
Revolving Credit Commitment of such Revolving Credit 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 Termination Date or such earlier
date as the Revolving Credit Commitments shall terminate as provided herein,
commencing on the first of such days following the Effective Date.
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Multi-Draw Term Loan Lender, a commitment fee for the period
from and including the Effective Date to and including the third anniversary of
the Effective Date, computed at the Commitment Fee Rate on the average daily
amount of the Available Multi-Draw Term Loan Commitment of such Multi-Draw Term
Loan 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
third anniversary of the Effective Date or such earlier date as the Multi-Draw
Term Loan Commitments shall terminate as provided herein, commencing on the
first of such days following the Effective Date.
(c) The Borrower shall pay to the Administrative Agent an annual
administration fee of $500,000 in respect of the period from the Effective Date
to the first anniversary thereof and of $250,000 in respect of each annual
period subsequent thereto, which fee shall be payable in equal quarterly
installments in advance on the Effective Date in respect of the quarter in which
the Effective Date occurs (prorated for the period from the Effective Date to
the end of such quarter) and on the last day of each January, April, July and
October thereafter (pro rated for the quarterly installment paid immediately
prior to the first anniversary of the Effective Date based on the $500,000
amount for the period from the scheduled date of payment of such quarterly
installment to such first anniversary and based on the $250,000 amount for the
remainder of the quarterly period for which such payment is made).
(d) The Borrower shall pay (without duplication, including of any fee
payable under subsections 4.5(a), 4.5(b) and 4.5(c)) to Chase, for its account
and, as specified therein, for the account of the Lenders, the other fees
required to be paid pursuant to (i) the Commitment Letter, dated March 24, 1998,
among the Borrower, the Agents and the Co-Arrangers and (ii) the Fee Letter,
dated March 24, 1998, among the Borrower, the Agents and the Co-Arrangers, in
each case in the amounts and on the dates set forth therein.
4.6 Computation of Interest and Fees. (a) Interest (other than interest
based on
50
the Prime Rate) shall be calculated on the basis of a 360-day year for the
actual days elapsed; and commitment fees and interest based on the Prime Rate
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 affected Lenders of each determination
of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR, the Eurocurrency Reserve Requirements, the C/D Assessment
Rate or the C/D Reserve Percentage 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 affected 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 in reasonable detail the calculations used by the
Administrative Agent in determining any interest rate pursuant to subsection
4.1, excluding any Eurodollar Base Rate which is based upon the Telerate British
Bankers Assoc. Interest Settlement Rates Page and any ABR which is based upon
the Prime Rate.
4.7 Inability to Determine Interest Rate. If prior to the first day of
any Interest Period, the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period, the
Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as ABR Loans, (y) any Loans that were to have been
converted on the first day of such Interest Period to or continued as Eurodollar
Loans shall be converted to or continued as ABR Loans and (z) any outstanding
Eurodollar Loans shall be converted, on the first day of such Interest Period,
to ABR Loans. Until such notice has been withdrawn by the Administrative Agent,
no further Eurodollar Loans shall be made or continued as such, nor shall the
Borrower or Blue Star Group, as the case may be, have the right to convert ABR
Loans to Eurodollar Loans.
4.8 Pro Rata Treatment and Payments. (a) Each borrowing of Revolving
Credit Loans (other than Swing Line Loans) by the Borrower or Blue Star Group,
as the case may be, from the Revolving Credit Lenders hereunder shall be made,
each payment by the Borrower on account of any commitment fee in respect of the
Revolving Credit Commitments hereunder shall be allocated by the Administrative
Agent, and any reduction of the Revolving Credit Commitments of the Revolving
Credit Lenders shall be allocated by the Administrative Agent, pro rata
according to the relevant Revolving Credit Commitment Percentages of the
Revolving Credit Lenders. Each borrowing of Multi-Draw Term Loans by the
Borrower from the Multi-Draw Term Loan Lenders hereunder shall be made, each
payment by the Borrower on account of any commitment fee in respect of the
Multi-Draw Term Loan Commitments hereunder shall be allocated by the
Administrative Agent, and any reduction of the Multi-Draw Term Loan Commitments
of the Multi-Draw Term Loan Lenders shall be allocated by the Administrative
Agent, pro rata according to the relevant Multi-Draw Term Loan Percentages of
the Multi-Draw Term Loan Lenders. Each payment (including each prepayment) by
the Borrower or Blue Star Group, as the case may be, on account of principal of
and interest on any Revolving Credit Loans shall be allocated by the
Administrative Agent pro rata according to the respective outstanding
51
principal amounts of such Revolving Credit Loans then held by the Revolving
Credit Lenders. Each payment (including each prepayment) by the Borrower on
account of principal of and interest on any Term Loans shall, subject to
subsection 4.4(h), be allocated by the Administrative Agent pro rata according
to the respective outstanding principal amounts of such Term Loans then held by
the Term Loan Lenders. All payments (including prepayments) to be made by the
Borrower or Blue Star Group, as the case may be, hereunder and under any Notes,
whether on account of principal, interest, fees, Reimbursement Obligations or
otherwise, shall be made without set-off, counterclaim or, except as permitted
under Subsection 4.11, other deduction and shall be made prior to 1:00 P.M., New
York City time, on the due date thereof to the Administrative Agent, for the
account of the Lenders holding the relevant Loans or the L/C Participants, as
the case may be, at the Administrative Agent's office specified in subsection
12.2, in Dollars and in immediately available funds. Payments received by the
Administrative Agent after such time shall be deemed to have been received on
the next Business Day. The Administrative Agent shall distribute such payments
to such Lenders, if any such payment is received prior to 1:00 P.M., New York
City time, on a Business Day, in like funds as received prior to the end of such
Business Day and otherwise the Administrative Agent shall distribute such
payment to such Lenders on the next succeeding Business Day. If any payment
hereunder (other than payments on the Eurodollar Loans) becomes due and payable
on a day other than a Business Day, the maturity of such payment shall be
extended to the next succeeding Business Day, and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension. If any payment on a Eurodollar Loan becomes due and payable on a
day other than a Business Day, the maturity of such payment shall be extended to
the next succeeding Business Day (and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension) 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.
(b) Unless the Administrative Agent shall have been notified in writing
by any Revolving Credit Lender prior to a borrowing that such Revolving Credit
Lender will not make the amount that would constitute its Revolving Credit
Commitment Percentage of such borrowing available to the Administrative Agent,
the Administrative Agent may assume that such Revolving Credit 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 or Blue
Star Group, as the case may be, a corresponding amount. If such amount is not
made available to the Administrative Agent by the required time on the Borrowing
Date therefor, such Revolving Credit 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 Revolving Credit
Lender makes such amount immediately available to the Administrative Agent. A
certificate of the Administrative Agent submitted to any Revolving Credit Lender
with respect to any amounts owing under this subsection shall be conclusive in
the absence of manifest error. If such Revolving Credit Lender's Revolving
Credit Commitment Percentage of such borrowing is not made available to the
Administrative Agent by such Revolving Credit Lender within three Business Days
of such Borrowing Date, (x) the Administrative Agent shall notify the Borrower
or Blue Star Group, as the case may be, of the failure of such Revolving Credit
Lender to make such amount available to the Administrative Agent and the
Administrative Agent shall also be entitled to recover such amount with interest
thereon at the rate per annum applicable to Revolving Credit Loans which are ABR
Loans hereunder, on demand, from the Borrower or Blue Star Group, as the case
may be, and (y) then
52
the Borrower or Blue Star Group, as the case may be, may, without waiving any
rights it may have against such Revolving Credit Lender, borrow a like amount on
an unsecured basis from any commercial bank for a period ending on the date upon
which such Revolving Credit Lender does in fact make such borrowing available,
provided that at the time such borrowing is made and at all times while such
amount is outstanding the Borrower or Blue Star Group, as the case may be, would
be permitted to borrow such amount pursuant to subsection 2.1.
(c) Unless the Administrative Agent shall have been notified in writing
by any Multi-Draw Term Loan Lender prior to a borrowing that such Multi-Draw
Term Loan Lender will not make the amount that would constitute its Multi-Draw
Term Loan Percentage of such borrowing available to the Administrative Agent,
the Administrative Agent may assume that such Multi-Draw Term Loan 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 Multi-Draw Term
Loan 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 Multi-Draw Term Loan Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Multi-Draw Term Loan Lender with respect
to any amounts owing under this subsection shall be conclusive in the absence of
manifest error. If such Multi-Draw Term Loan Lender's Multi-Draw Term Loan
Percentage of such borrowing is not made available to the Administrative Agent
by such Multi-Draw Term Loan Lender within three Business Days of such Borrowing
Date, (x) the Administrative Agent shall notify the Borrower of the failure of
such Multi-Draw Term Loan Lender to make such amount available to the
Administrative Agent and the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
Multi-Draw Term Loans which are ABR Loans hereunder, on demand, from the
Borrower and (y) then the Borrower may, without waiving any rights it may have
against such Multi-Draw Term Loan Lender, borrow a like amount on an unsecured
basis from any commercial bank for a period ending on the date upon which such
Multi-Draw Term Loan Lender does in fact make such borrowing available, provided
that at the time such borrowing is made and at all times while such amount is
outstanding the Borrower would be permitted to borrow such amount pursuant to
clause (c) of the first sentence of subsection 2.6.
4.9 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 occurring after the Effective Date shall make it unlawful
for any Lender to make or maintain Eurodollar Loans as contemplated by this
Agreement, (a) such Lender shall promptly give written notice of such
circumstances to the Borrower and the Administrative Agent (which notice shall
be withdrawn whenever such circumstances no longer exist), (b) the commitment of
such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as
such and convert ABR Loans to Eurodollar Loans shall forthwith be cancelled and,
until such time as it shall no longer be unlawful for such Lender to make or
maintain Eurodollar Loans, such Lender shall then have a commitment only to make
an ABR Loan when a Eurodollar Loan is requested and (c) such Xxxxxx's Loans then
outstanding as Eurodollar Loans, if any, shall be converted automatically to ABR
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
53
thereto, the Borrower shall or shall cause Blue Star Group to pay to such Lender
such amounts, if any, as may be required pursuant to subsection 4.12.
4.10 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable to
any Lender, or compliance by any Lender with any request or directive of general
application (whether or not having the force of law) from any central bank or
other Governmental Authority, in each case made subsequent to the Effective Date
(or, if later, the date on which such Lender becomes a Lender):
(i) shall subject such Lender to any tax of any kind
whatsoever with respect to any Letter of Credit, any Application or any
Eurodollar Loans made by it or its obligation to make Eurodollar Loans, or
change the basis of taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by subsection 4.11 (including
Non-Excluded Taxes imposed solely by reason of any failure of such Lender to
comply with its obligations (if any) under subsection 4.11(b) or 4.11(c)) and
changes in taxes measured by or imposed upon the overall net income, or
franchise taxes, or taxes measured by or imposed upon overall capital or net
worth, or branch taxes (in the case of such capital, net worth or branch
taxes, imposed in lieu of such net income tax), of such Lender or its
applicable lending office, branch, or any affiliate thereof);
(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 which is not otherwise included in the determination of
the Eurodollar Rate hereunder, or
(iii) shall impose on such Lender any other condition (excluding
any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
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, upon notice to the Borrower from such Lender,
through the Administrative Agent, in accordance herewith, the Borrower shall or
shall cause Blue Star Group to promptly pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender for such increased cost
or reduced amount receivable, provided that, in any such case, the Borrower or
Blue Star Group, as the case may be, may elect to convert the Eurodollar Loans
made by such Lender hereunder to ABR Loans by giving the Administrative Agent at
least one Business Day's notice of such election, in which case the Borrower
shall or shall cause Blue Star Group to promptly pay to such Lender, upon
demand, without duplication, such amounts, if any, as may be required pursuant
to subsection 4.12. If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall provide prompt notice thereof to
the Borrower, through the Administrative Agent, certifying (x) that one of the
events described in this paragraph (a) has occurred and describing in reasonable
detail the nature of such event, (y) as to the increased cost or reduced amount
resulting from such event and (z) as to the additional amount demanded by such
Xxxxxx and a reasonably detailed explanation of the calculation thereof. Such a
certificate as to any additional
54
amounts payable pursuant to this subsection submitted by such Lender, through
the Administrative Agent, to the Borrower 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.
(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 of general
application regarding capital adequacy (whether or not having the force of law)
from any Governmental Authority, in each case, made subsequent to the Effective
Date (or, if later, the date on which such Lender becomes a Lender), does or
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 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, within ten Business Days after submission by such Lender to the
Borrower (with a copy to the Administrative Agent) of a written request therefor
certifying (x) that one of the events described in this paragraph (b) has
occurred and describing in reasonable detail the nature of such event, (y) as to
the reduction of the rate of return on capital resulting from such event and (z)
as to the additional amount or amounts demanded by such Lender and a reasonably
detailed explanation of the calculation thereof, the Borrower shall or shall
cause Blue Star Group to pay to such Lender such additional amount or amounts as
will compensate such Lender for such reduction. Such a certificate as to any
additional amounts payable pursuant to this subsection submitted by such Lender,
through the Administrative Agent, to the Borrower 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.
4.11 Taxes. (a) Except as provided below in this subsection, all
payments made by the Borrower or Blue Star Group under this Agreement and any
Notes 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 taxes measured by or imposed upon the overall net income of the
Administrative Agent or any Lender or its applicable lending office, or any
branch or affiliate of either, and all franchise taxes, branch taxes, taxes on
doing business or taxes measured by or imposed upon the overall capital or net
worth of the Administrative Agent or any Lender or its applicable lending
office, or any branch or affiliate of either in each case imposed: (i) by the
jurisdiction under the laws of which the Administrative Agent or such Lender,
applicable lending office, branch or affiliate is organized or is located, or in
which its principal executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or (ii) by reason
of any connection between the jurisdiction imposing such tax and the
Administrative Agent or such Lender, applicable lending office, branch or
affiliate other than a connection arising solely from the Administrative Agent
or such Lender having executed, delivered or performed its obligations under, or
received payment under or enforced, this Agreement or any Notes. If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder or under any Notes,
the
55
amounts so payable to the Administrative Agent or such Lender shall be increased
to the extent necessary to yield to the Administrative Agent or such Lender
(after payment of all Non-Excluded Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement and
any Notes, provided, however, that the Borrower or Blue Star Group, as the case
may be, shall be entitled to deduct and withhold any Non-Excluded Taxes and
shall not be required to increase any such amounts payable to any Lender with
respect to Non-Excluded Taxes that are attributable to such Lender's failure to
comply with the requirements of paragraph (b) and (c) of this subsection.
Whenever any Non-Excluded Taxes are payable by the Borrower or Blue Star Group,
as the case may be, as promptly as possible thereafter the Borrower or Blue Star
Group, as the case may be, shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower or Blue Star Group, as
the case may be, showing payment thereof. If the Borrower or Blue Star Group, as
the case may be, fails to pay any Non-Excluded 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 Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure. The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
(b) Each Lender that is not a United States person as defined in Section
7701(a)(30) of the Code shall:
(X) (i) on or before the date of any payment by the Borrower or Blue
Star Group, as the case may be, under this Agreement or any Notes to such
Lender, deliver to the Borrower and the Administrative Agent (A) two duly
completed copies of United States Internal Revenue Service Form 1001 or 4224,
or successor applicable form, as the case may be and such other forms and
certifications as may be required under applicable law, in order to establish
that it is entitled to receive payments under this Agreement and any Notes
without deduction or withholding of any United States federal income taxes
and (B) an Internal Revenue Service Form W-8 or W-9, or successor applicable
form, as the case may be, certifying that it is entitled to an exemption from
United States backup withholding tax;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date that
any such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the Borrower
or the Administrative Agent; or
(Y) in the case of any such Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code and that is not entitled to
comply with subparagraph (X) hereof, (i) represent to the Borrower (for the
benefit of the Borrower, Blue Star Group and the Administrative Agent) that
it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (ii)
agree to furnish to the Borrower on or before the date of
56
any payment by the Borrower, with a copy to the Administrative Agent, (A) a
certificate substantially in the form of Exhibit C (any such certificate a
"U.S. Tax Compliance Certificate") and (B) two accurate and complete
original signed copies of Internal Revenue Service Form W-8, or successor
applicable form certifying to such Lender's legal entitlement at the date
of such certificate to an exemption from U.S. withholding tax under the
provisions of Section 871(h) or 881(c) of the Code with respect to payments
to be made under this Agreement and any Notes (and to deliver to the
Borrower and the Administrative Agent two further copies of such form on or
before the date it expires or becomes obsolete and after the occurrence of
any event requiring a change in the most recently provided form and, if
necessary, obtain any extensions of time reasonably requested by the
Borrower or the Administrative Agent for filing and completing such forms),
and (iii) agree, to the extent legally entitled to do so, upon reasonable
request by the Borrower, to provide to the Borrower (for the benefit of the
Borrower, Blue Star Group and the Administrative Agent) such other forms as
may be reasonably required in order to establish the legal entitlement of
such Lender to an exemption from withholding with respect to payments under
this Agreement and any Notes;
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender hereunder which renders all such
forms inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Administrative Agent. Each Person that shall become a Lender or
a Participant pursuant to subsection 12.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms, certifications and
statements required pursuant to this subsection, provided that in the case of a
Participant the obligations of such Participant pursuant to this paragraph (b)
shall be determined as if such Participant were a Lender except that such
Participant shall furnish all such required forms, certifications and statements
to the Lender from which the related participation shall have been purchased.
(c) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the laws of New Zealand, or any treaty to which
New Zealand 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 Xxxxxx's reasonable judgment such
completion, execution or submission would not be materially disadvantageous to
such Lender.
4.12 Indemnity. The Borrower agrees and, with respect to Loans to Blue
Star Group, the Borrower and Blue Star Group agree to indemnify each Lender and
to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur (other than through such Lender's gross negligence or willful
misconduct) as a consequence of (a) failure of the Borrower or Blue Star Group,
as the case may be, to make a borrowing of, conversion into or continuation of
Eurodollar Loans after the Borrower or Blue Star Group, as the case may be, has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) failure of the Borrower or Blue Star Group, as the case may be,
to make any prepayment or conversion of Eurodollar Loans after the Borrower or
Blue Star Group, as the case may be, has given a notice thereof in accordance
with the provisions of this Agreement or (c) the making of a
57
prepayment of Eurodollar Loans on a day which 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 which would have
accrued on the amount so prepaid, or converted, or not so borrowed, converted or
continued, for the period from the date of such prepayment or conversion or of
such failure to borrow, convert or continue to the last day of the applicable
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 Eurodollar 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) which
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 subsection
submitted to the Borrower or Blue Star Group, as the case may be, 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.
4.13 Certain Rules Relating to the Payment of Additional Amounts. (a)
Upon the request, and at the expense, of the Borrower or Blue Star Group, as the
case may be, each Lender to which the Borrower or Blue Star Group, as the case
may be, is required to pay any additional amount pursuant to subsection 4.10 or
4.11, and any Participant in respect of whose participation such payment is
required, shall reasonably afford the Borrower or Blue Star Group, as the case
may be, the opportunity to contest, and reasonably
cooperate with the Borrower or Blue Star Group, as the case may be, in
contesting, the imposition of any Non-Excluded Tax giving rise to such payment;
provided that (i) such Lender shall not be required to afford the Borrower or
Blue Star Group, as the case may be, the opportunity to so contest unless the
Borrower or Blue Star Group, as the case may be, shall have confirmed in writing
to such Lender its obligation to pay such amounts pursuant to this Agreement and
(ii) the Borrower or Blue Star Group, as the case may be, shall reimburse such
Lender for its reasonable attorneys' and accountants' fees and disbursements
incurred in so cooperating with the Borrower or Blue Star Group, as the case may
be, in contesting the imposition of such Non-Excluded Tax; provided, however
that notwithstanding the foregoing no Lender shall be required to afford the
Borrower or Blue Star Group, as the case may be, the opportunity to contest, or
cooperate with the Borrower or Blue Star Group, as the case may be, in
contesting, the imposition of any Non-Excluded Taxes, if such Lender in its
discretion in good faith determines that to do so would have a material adverse
effect on it.
(b) If a Lender changes its applicable lending office (other than
pursuant to paragraph (c) below) and the effect of the change, as of the date of
the change, would be to cause the Borrower or Blue Star Group, as the case may
be, to become obligated to pay any additional amount under subsection 4.10 or
4.11, neither the Borrower nor Blue Star Group, as the case may be, shall be
obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the
passage of time or giving of notice, result in the payment of any additional
amount to any Lender by the Borrower or Blue Star Group, as the case may be,
pursuant to subsection 4.10 or 4.11, such Lender shall promptly notify the
Borrower and the Administrative Agent and shall take such steps as may
reasonably be available to it and acceptable to the Borrower to mitigate the
effects of such condition or event (which shall include efforts to rebook the
Loans held by such Lender at
58
another lending office, or through another branch or an affiliate, of such
Lender); provided that such Lender shall not be required to take any step that,
in its reasonable judgment, would be materially disadvantageous to its business
or operations or would require it to incur additional costs (unless the Borrower
agrees to reimburse such Lender for the reasonable incremental out-of-- pocket
costs thereof).
(d) If the Borrower or Blue Star Group, as the case may be, shall become
obligated to pay additional amounts pursuant to subsection 4.10 or 4.11 and any
affected Lender shall not have promptly taken steps necessary to avoid the need
for payments under subsection 4.10 or 4.11, the Borrower shall have the right,
for so long as such obligation remains, (x) with the assistance of the
Administrative Agent, to seek one or more substitute Lenders reasonably
satisfactory to the Administrative Agent and the Borrower to purchase the
affected Loan, in whole or in part, at an aggregate price no less than such
Loan's principal amount plus accrued interest, and assume the affected
obligations under this Agreement, or (y) upon at least four Business Days'
irrevocable notice to the Administrative Agent, to prepay the affected Loan, in
whole or in part, subject to subsection 4.12, without premium or penalty. In the
case of the substitution of a Lender, the Borrower, the Administrative Agent,
the affected Lender, and any substitute Lender shall execute and deliver an
appropriately completed Assignment and Acceptance pursuant to subsection 12.6(c)
to effect the assignment of rights to, and the assumption of obligations by, the
substitute Lender; provided that any fees required to be paid pursuant to
subsection 12.6(e) in connection with such assignment shall be paid by the
Borrower. In the case of a prepayment of an affected Loan, the amount specified
in the notice shall be due and payable on the date specified therein, together
with any accrued interest to such date on the amount prepaid. In the case of
each of the substitution of a Lender and of the prepayment of an affected Loan,
the Borrower or Blue Star Group, as the case may be, shall first pay the
affected Lender any additional amounts owing under subsections 4.10 and 4.11 (as
well as any commitment fees and other amounts then due and owing to such Lender)
prior to such substitution or prepayment.
(e) If the Administrative Agent or any Lender receives a refund in
respect of taxes for which the Borrower or Blue Star Group, as the case may be,
has made additional payments pursuant to subsection 4.10(a) or 4.11(a), the
Administrative Agent or such Lender, as the case may be, shall promptly pay such
refund (together with any interest with respect thereto received from the
relevant taxing authority) to the Borrower or Blue Star Group, as the case may
be, provided, however, that the Borrower or Blue Star Group, as the case may be,
agrees promptly to return such refund (together with any interest with respect
thereto due to the relevant taxing authority) (free of all Non-Excluded Taxes)
to the Administrative Agent or the applicable Lender, as the case may be, upon
receipt of a notice that such refund is required to be repaid to the relevant
taxing authority.
(f) For purposes of subsections 4.10 and 4.11, a change in treaty, law,
rule or regulation shall not include the ratification or entry into force of the
income tax treaty between Luxembourg and the United States.
(g) The obligations of a Lender or Participant under this subsection
4.13 shall survive the termination of this Agreement and the payment of the
Loans and all amounts payable hereunder.
59
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and each Lender to make the
Extensions of Credit requested to be made by it on the Effective Date and on
each Borrowing Date thereafter, the Borrower hereby represents and warrants, on
the Effective Date (both before and after giving effect to the Transactions
consummated on the Effective Date) and on every Borrowing Date thereafter, to
the Administrative Agent and each Lender that:
5.1 Financial Condition. (a) The audited consolidated balance sheets of
the Borrower and its consolidated Subsidiaries as of April 30, 1995, April 30,
1996 and April 26, 1997 and the audited consolidated statements of income and of
cash flows for the fiscal years ended on such dates have heretofore been
furnished to each Lender. Such financial statements (including the notes
thereto) (i) have been audited by Price Waterhouse, (ii) have been prepared in
accordance with GAAP consistently applied throughout the periods covered thereby
and (iii) (on the basis disclosed in the footnotes to such financial statements)
present fairly, in all material respects, the consolidated financial condition,
results of operations and cash flows of the Borrower and its consolidated
Subsidiaries as of such dates and for such periods. The unaudited interim
consolidated balance sheets of the Borrower and its consolidated Subsidiaries as
at the end of, and the related unaudited interim consolidated statements of
income and of cash flows for, each of the three-month periods ending on July 26,
1997, October 25, 1997 and January 24, 1998 and each fiscal month ended after
January 24, 1998 and prior to the Effective Date have heretofore been furnished
to each Lender. During the period from April 26, 1997 to and including the
Effective Date, except for the Spin-Offs or as disclosed in Schedule 5.1 hereto,
there has been no sale, transfer or other disposition by the Borrower or its
Subsidiaries of any material part of the business or property of the Borrower
and its consolidated Subsidiaries, taken as a whole, and no purchase or other
acquisition by any of them of any business or property (including any Capital
Stock of any other Person) material in relation to the consolidated financial
condition of the Borrower and its consolidated Subsidiaries, taken as a whole,
in each case, which is not reflected in the foregoing financial statements or in
the notes thereto and has not otherwise been disclosed in writing to the Lenders
on or prior to the Effective Date.
(b) The pro forma balance sheet of the Borrower and its consolidated
Subsidiaries (the "Pro Forma Balance Sheet"), copies of which have heretofore
been furnished to each Lender, is the balance sheet of the Borrower and its
consolidated Subsidiaries as of January 24, 1998 (the "Pro Forma Date"),
adjusted to give effect (as if such events had occurred on such date) to (i) the
consummation on the Effective Date of the Transactions, (ii) the making of the
Loans to be made on the Effective Date in an aggregate principal amount of up to
$925,000,000 and (iii) the payment of estimated fees, expenses, financing costs
and estimated tax payments related to the transactions contemplated hereby and
thereby. The Pro Forma Balance Sheet was prepared in good faith by a Responsible
Officer of the Borrower on the basis of reasonable assumptions and estimates as
of the date thereof.
5.2 No Change; Solvent. Since January 24, 1998, (a) except as and to the
extent disclosed on Schedule 5.2(a), there has been no development or event
relating to or affecting any Loan Party which has had or would be reasonably
expected to have a Material Adverse Effect (after giving effect to the
Transactions and the transactions relating thereto, including the financing
thereof) and (b) except as permitted under this Agreement or (at any time prior
to the
60
consummation of the Transactions on the Effective Date) the Transaction
Documents, and except for dividends or other distributions by the Borrower prior
to the execution and delivery of the Investment Agreement and except pursuant to
the Transactions, no dividends or other distributions have been declared, paid
or made upon the Capital Stock of the Borrower nor has any of the Capital Stock
of the Borrower been redeemed, retired, purchased or otherwise acquired for
value by the Borrower or any of its Subsidiaries. As of the Effective Date,
after giving effect to (i) the consummation of the Transactions, (ii) the making
of Loans to be made on the Effective Date in an aggregate principal amount not
to exceed $925,000,000 and (iii) the payment of estimated fees, expenses and
financing costs related to the transactions contemplated hereby and thereby, the
Borrower is Solvent.
5.3 Corporate Existence; Compliance with Law. Each of the Loan Parties
(a) is duly organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation or formation, (b) has the corporate power
and authority, and the legal right, to own and operate its property, to lease
the property it operates as lessee and to conduct the business in which it is
currently engaged, except to the extent that the failure to have such legal
right would not be reasonably expected to have a Material Adverse Effect, (c) is
duly qualified as a foreign corporation or limited liability company 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, other than in such jurisdictions where the failure to be so
qualified and in good standing would not be reasonably expected to have a
Material Adverse Effect, and (d) is in compliance with all Requirements of Law,
except to the extent that the failure to comply therewith would not, in the
aggregate, be reasonably expected to have a Material Adverse Effect.
5.4 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 and Blue Star Group, to obtain Extensions of Credit hereunder,
and each such Loan Party has taken all necessary corporate 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 Extensions of Credit on
the terms and conditions of this Agreement, any Notes and the Applications. No
consent or authorization of, filing with, notice to or other similar act by or
in respect of, any Governmental Authority or any other Person is required to be
obtained or made by or on behalf of any Loan Party in connection with the
execution, delivery, performance, validity or enforceability of the Loan
Documents to which it is a party or, in the case of the Borrower or Blue Star
Group, with the Extensions of Credit hereunder, except for (i) consents,
authorizations, notices and filings described in Schedule 5.4, all of which have
been obtained or made, (ii) filings to perfect the Liens created by the Security
Documents, (iii) filings pursuant to the Assignment of Claims Act of 1940, as
amended (31 U.S.C. Section 3727 et seq.) in respect of Accounts and contracts of
the Borrower and its Subsidiaries, the Obligor of which is the United States of
America or any department, agency or instrumentality thereof and (iv) consents,
authorizations, notices and filings which the failure to obtain or make would
not reasonably be expected to have a Material Adverse Effect. This Agreement has
been duly executed and delivered by the Borrower and Blue Star Group, and each
other Loan Document to which any Loan Party is a party, has been, or will be
duly executed and delivered on behalf of such Loan Party. This Agreement
constitutes a legal, valid and binding obligation of the Borrower and Blue Star
Group, and each other Loan Document to which any Loan Party is a party as
executed and delivered does constitute, or when executed and delivered, will
constitute, a legal, valid and binding obligation of such Loan Party,
enforceable against such
61
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) and an implied covenant of good faith and fair dealing.
5.5 No Legal Bar. Except as previously disclosed in writing to the
Lenders on or prior to the Effective Date, the execution, delivery and
performance of the Loan Documents by the Loan Parties, the Extensions of Credit
hereunder and the use of the proceeds thereof (a) will not violate any
Requirement of Law or Contractual Obligation of any Loan Party in any respect
that would reasonably be expected to have a Material Adverse Effect and (b) will
not result in, or require, the creation or imposition of any Lien (other than
the Liens created by the Security Documents) on any of its or their respective
properties or revenues pursuant to any such Requirement of Law or Contractual
Obligation.
5.6 No Material Litigation. Except as set forth on Schedule 5.6, 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 its or their respective properties or revenues, which (a) is so pending or
threatened on or prior to the Effective Date and relates to any of the Loan
Documents or any of the transactions contemplated hereby or thereby or (b) which
would be reasonably expected to have a Material Adverse Effect.
5.7 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 which would be reasonably expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
5.8 Ownership of Property; Liens. Each of the Borrower and its
Subsidiaries has good record and marketable title in fee simple to, or a valid
leasehold interest in, all its material real property, and good title to, or a
valid leasehold interest in, all its other material property, and none of such
property interest is subject to any Lien, except for Liens permitted by
subsection 8.3.
5.9 Intellectual Property. Each of the Borrower and each of its
Subsidiaries owns, or has the legal right to use, all United States patents,
patent applications, trademarks, trademark applications, tradenames, service
marks, copyrights, technology, know-how and processes necessary for each of them
to conduct its business as currently conducted or as proposed to be conducted
immediately following the Effective Date (the "Intellectual Property") except
for those the failure to own or have such legal right to use would not be
reasonably expected to have a Material Adverse Effect. Except as provided on
Schedule 5.9, no claim has been asserted and is pending by any Person
challenging or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property, nor does the
Borrower know of any such claim, and, to the knowledge of the Borrower, the use
of such Intellectual Property by the Borrower and its Subsidiaries does not
infringe on the rights of any Person, except for such claims and infringements
that, in the aggregate, would not be reasonably expected to have a Material
Adverse Effect.
5.10 No Burdensome Restrictions. Except as previously disclosed in
writing to the Lenders on or prior to the Effective Date, no Requirement of Law
or Contractual Obligation
62
of the Borrower or any of its Subsidiaries would be reasonably expected to have
a Material Adverse Effect.
5.11 Taxes. To the knowledge of the Borrower: each of the Borrower and
its Subsidiaries has filed or caused to be filed all United States federal
income tax returns and all other material tax returns which are required to be
filed and has paid (a) all taxes shown to be due and payable on said returns and
(b) all taxes shown to be due and payable on any assessments of which it has
received notice made against it or any of its property and all other taxes, fees
or other charges imposed on it or any of its property by any Governmental
Authority (other than any (i) taxes, fees or other charges with respect to which
the failure to pay, in the aggregate, would not have a Material Adverse Effect
or (ii) taxes, fees or other charges the amount or validity of which are
currently being contested in good faith by appropriate proceedings diligently
conducted 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 no tax Lien has been filed, and no material claim is being asserted, in each
case with respect to any such tax, fee or other charge.
5.12 Federal Regulations. No part of the proceeds of any Loans or any
Letter of Credit will be used for "buying" or "carrying" any "margin stock"
within the respective meanings of each of the quoted terms under Regulation U
except for the Stock Repurchase, which shall be made in compliance with
Regulation U, or for any purpose which violates the provisions of the
Regulations of the Board, including, without limitation, Regulation T,
Regulation U or Regulation X 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 or such other similar form referred
to in Regulation T, Regulation U or Regulation X of the Board, as the case may
be.
5.13 ERISA. During the five year period prior to each date as of which
this representation is made, or deemed made, with respect to any Plan (or, with
respect to (vi) or (viii) below, as of the date such representation is made or
deemed made), none of the following events or conditions, either individually or
in the aggregate, has resulted or is reasonably likely to result in a liability
to the Borrower or any of its Subsidiaries which would be reasonably expected to
have a Material Adverse Effect: (i) a Reportable Event; (ii) an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA); (iii) any material noncompliance with the applicable provisions
of ERISA or the Code; (iv) a termination of a Single Employer Plan (other than a
standard termination pursuant to Section 4041(b) of ERISA); (v) a Lien in favor
of the PBGC or a Plan; (vi) Underfunding with respect to any Single Employer
Plan; (vii) a complete or partial withdrawal from any Multiemployer Plan by the
Borrower or any Commonly Controlled Entity; (viii) any liability of the Borrower
or any Commonly Controlled Entity under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the annual valuation date most closely preceding the date on which
this representation is made or deemed made; (ix) the Reorganization or
Insolvency of any Multiemployer Plan; (x) the excess of the present value
(determined using actuarial and other assumptions which are reasonable in
respect of the benefits provided and the employees participating) of the
aggregate liability of the Borrower or any of its Subsidiaries for
post-retirement benefits to be provided to their current and former employees
under Plans which are welfare benefit plans (as defined in Section 3(1) of
ERISA) over the assets under all such Plans; and (xi) an event or condition with
respect to which the Borrower or any
63
Commonly Controlled Entity could incur any liability in respect of a Former
Plan. There have been no transactions that resulted or could result in any
liability to the Borrower or any Commonly Controlled Entity under Section 4069
of ERISA or Section 4212(c) of ERISA.
5.14 Collateral. Except with regard to (i) Liens on equipment
constituting fixtures, (ii) any reserved rights of the United States government
or any state government as required under law, (iii) Liens upon Patents, Patent
Licenses, Trademarks and Trademark Licenses to the extent that (a) such Liens
cannot be perfected by the filing of financing statements under the Uniform
Commercial Code or by the filing and acceptance thereof in the United States
Patent and Trademark Office or (b) such Patents, Patent Licenses, Trademarks and
Trademark Licenses are not, individually or in the aggregate, material to the
business of the Borrower and its Subsidiaries taken as a whole, (iv) Liens on
uncertificated securities, (v) Liens on Collateral the perfection of which
requires filings in or other actions under the laws of jurisdictions outside of
the United States of America, any State, territory or dependency thereof or the
District of Columbia (except to the extent that such filings or other actions
have been made or taken), (vi) Liens on contracts or Accounts on which the
United States of America or any state government or any department, agency, or
instrumentality thereof is the Obligor, (vii) Liens on proceeds of Accounts,
until transferred to or deposited in a Collateral Proceeds Account (as defined
in the Guarantee and Collateral Agreement), and (viii) the claims of creditors
of Persons receiving goods included as Collateral for "sale or return" within
the meaning of Section 2-326 of the Uniform Commercial Code of the applicable
jurisdiction, upon filing of the financing statements delivered to the
Administrative Agent by the Borrower and its Subsidiaries on the Effective Date
in the jurisdictions listed on Schedule 5.14 (which financing statements are in
proper form for filing in such jurisdictions) and the recording of the Mortgages
(and the recording of the Guarantee and Collateral Agreement, and the making of
filings in any other jurisdiction as may be necessary under any Requirement of
Law after the Effective Date) and the delivery to, and continuing possession by,
the Administrative Agent of all Instruments, Chattel Paper and Documents a
security interest in which is perfected by possession, the Liens created
pursuant to each Security Document, when executed and delivered, will constitute
valid Liens on and, to the extent provided therein, perfected security interests
in the collateral referred to in such Security Document (but as to the
Copyrights and the Copyright Licenses and accounts arising therefrom, only to
the extent the Uniform Commercial Code of the relevant jurisdiction, from time
to time in effect, is applicable) in favor of the Administrative Agent for the
ratable benefit of the Lenders, which Liens will be prior to all other Liens of
all other Persons, except for Liens permitted pursuant to the Loan Documents
(including, without limitation, those permitted to exist pursuant to subsection
8.3), and which Liens are enforceable as such as against all other Persons
(except, with respect to goods only, buyers in the ordinary course of business
to the extent provided in Section 9-307(1) of the Uniform Commercial Code as
from time to time in effect in the applicable jurisdiction), 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) and an implied
covenant of good faith and fair dealing. Notwithstanding any other provision of
this Agreement, capitalized terms which are used in this subsection 5.14 and not
defined in this Agreement are so used as defined in the applicable Security
Document.
5.15 Investment Company Act; Other Regulations. Neither the Borrower nor
any of its Subsidiaries is an "investment company", or a company "controlled" by
an "investment
64
company", within the meaning of the Investment Company Act. The Borrower is not
subject to regulation under any federal or state statute or regulation which
limits its ability to incur Indebtedness as contemplated hereby.
5.16 Subsidiaries. Schedule 5.16 sets forth all the Subsidiaries of the
Borrower at the Effective Date, the jurisdiction of their incorporation and the
direct or indirect percentage ownership interest of the Borrower therein.
5.17 Purpose of Loans. The proceeds of the Tranche A Term Loans and the
Tranche B Term Loans shall be used by the Borrower (i) to finance at or after
the Effective Date a portion of the Transactions (including the repurchase,
redemption or payment of the Convertible Notes due 2001 or the Convertible Notes
due 2003) and (ii) to pay certain transaction fees and expenses related to the
Transactions (such transaction fees and expenses not to exceed $75,000,000). The
proceeds of the Multi-Draw Term Loans shall be used by the Borrower to (i)
finance or refinance the cash purchase price of Permitted Acquisitions after the
Effective Date and pay transaction fees and expenses related to such Permitted
Acquisitions and (ii) finance the purchase, redemption or payment at maturity of
the Borrower's Convertible Notes due 2001 and its Convertible Notes due 2003.
The proceeds of the Revolving Credit Loans, the Swing Line Loans and the Letters
of Credit shall be used by the Borrower or Blue Star Group (i) for the purposes
described in the preceding two sentences and (ii) to finance the other working
capital and business requirements of the Borrower and its Subsidiaries.
5.18 Environmental Matters. Other than exceptions to any of the
following that would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect:
(a) To the knowledge of the Borrower, the facilities and properties
owned, leased or operated by the Borrower or any of its Subsidiaries (the
"Properties") and all operations at the Properties are in compliance with all
applicable Environmental Laws, and there is no violation of any applicable
Environmental Law with respect to the Properties or the business operated by
the Borrower or any of its Subsidiaries (the "Business"), and there are no
conditions relating to the Business or Properties that would be reasonably
likely to give rise to liability under any applicable Environmental Law.
(b) To the knowledge of the Borrower, the Properties do not contain, and
have not previously contained, any Materials of Environmental Concern at, on
or under the Properties in amounts or concentrations that constitute or
constituted a violation of, or would reasonably give rise to liability under,
applicable Environmental Laws.
(c) Neither the Borrower nor any of its Subsidiaries has received any
written or verbal notice of, or inquiry from any Governmental Authority
regarding, any violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
applicable Environmental Laws with regard to any of the Properties or the
Business, nor does the Borrower have knowledge or reason to believe that any
such notice will be received or is being threatened.
(d) To the knowledge of the Borrower, Materials of Environmental Concern
have not been transported or disposed of from the Properties, or generated,
treated, stored or
65
disposed of at, on or under any of the Properties or any other location, in
violation of, or in a manner that would be reasonably likely to give rise to
liability of the Borrower or any of its Subsidiaries under, any applicable
Environmental Law, or materially interfere with the continued operations of
the Borrower or any of its Subsidiaries or materially impair the fair
saleable value of any of the Properties.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Borrower, threatened, under any
applicable Environmental Law to which the Borrower or any of its Subsidiaries
is or will be named as a party, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any applicable
Environmental Law with respect to the Borrower or any of its Subsidiaries,
the Properties or the Business.
(f) There has been no release or, to the knowledge of the Borrower,
threat of release of Materials of Environmental Concern at or from the
Properties, or arising from or related to the operations (including, without
limitation, disposal) of the Borrower or any of its Subsidiaries in
connection with the Properties or otherwise in connection with the Business,
in violation of or in amounts or in a manner that would be reasonably likely
to give rise to liability under applicable Environmental Laws.
(g) Neither the Borrower nor any of its Subsidiaries has assumed or
retained, by contract or, to its knowledge, operation of law, any known or
suspected liabilities of any kind, fixed or contingent, as a result of any
violation or breach of applicable Environmental Law or with respect to any
contamination by any Materials of Environmental Concern.
5.19 No Material Misstatements. The written information, reports,
financial statements, exhibits and schedules furnished by or on behalf of the
Borrower to the Administrative Agent, the Other Representatives and the Lenders
in connection with the negotiation of any Loan Document or included therein or
delivered pursuant thereto, taken as a whole, did not contain as of the
Effective Date any material misstatement of fact and did not omit to state as of
the Effective Date any material fact necessary to make the statements therein
taken as a whole and in the light of the circumstances under which they were
made, not materially misleading in their presentation of the Transactions or of
the Borrower and its Subsidiaries. It is understood that no representation or
warranty is made concerning the forecasts, estimates, pro forma information,
projections and statements as to anticipated future performance or conditions,
and the assumptions on which they were based, contained in any such information,
reports, financial statements, certificates, exhibits or schedules, except that,
as of the date such forecasts, estimates, pro forma information, projections and
statements were generated, (i) such forecasts, estimates, pro forma information,
projections and statements were based on the good faith assumptions of the
management of the Borrower and (ii) such assumptions were believed by such
management to be reasonable. Such forecasts, estimates, pro forma information
and statements, and the assumptions on which they were based, may or may not
prove to be correct.
5.20 Delivery of the Transaction Documents. The Borrower has delivered
to the Administrative Agent, for itself and for each Lender, a complete
photocopy of each of the Transaction Documents (including all exhibits,
schedules and disclosure letters referred to
66
therein or delivered pursuant thereto, if any) and all amendments thereto,
waivers relating thereto and other side letters or agreements affecting the
terms thereof in any material respect.
5.21 Representations and Warranties Contained in the Transaction
Documents. Each of the Transaction Documents will have been duly executed and
delivered, by each of the Loan Parties which is a party thereto prior to the
Effective Date and, to the knowledge of the Borrower, all other parties thereto,
and is in full force and effect on the Effective Date. As of the Effective Date,
the representations and warranties of the Borrower in any of the Transaction
Documents (after giving effect to any amendments, supplements, waivers or other
modifications of any of the Transaction Documents prior to the Effective Date in
accordance with this Agreement) are true and correct in all material respects
except as otherwise disclosed to the Administrative Agent in writing prior to
the Effective Date and except to the extent such representations and warranties
relate to an earlier date in which case such representations and warranties
shall be true and correct in all material respects as of such earlier date.
5.22 Labor Matters. There are no strikes pending or, to the knowledge of
the Borrower, reasonably expected to be commenced against the Borrower or any of
its Subsidiaries which, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect. The hours worked and payments made
to employees of the Borrower and each of its Subsidiaries have not been in
violation of any applicable laws, rules or regulations, except where such
violations would not reasonably be expected to have a Material Adverse Effect.
The consummation of the Transactions will not give rise to a right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which the Borrower or any of its Subsidiaries
(or any predecessor) is a party or by which the Borrower or any of its
Subsidiaries (or any predecessor) is bound except as would not reasonably be
expected to have a Material Adverse Effect.
5.23 Public Utility Holding Company Act. Neither the Borrower nor any of
its Subsidiaries is a "holding company" or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.24 Subordinated Debt. The Loans, L/C Obligations and all other
obligations hereunder and under the other Loan Documents constitute "Designated
Senior Indebtedness" for all purposes of the Convertible Notes Due 2001, the
Convertible Notes Due 2003 and the Senior Subordinated Notes.
5.25 Year 2000. Any reprogramming required to permit the proper
functioning (but only to the extent that such proper functioning would otherwise
be impaired by the occurrence of the year 2000), in and following the year 2000,
of the Borrower's and its Subsidiaries' internally developed business software
which is critical to the Borrower and its Subsidiaries taken as a whole will be
completed by October 31, 1999. Based on the Borrower's estimates as of the
Effective Date, the cost to the Borrower and its Subsidiaries of such
reprogramming, to the extent not reflected or reserved for on the consolidated
balance sheet of the Borrower and its Subsidiaries, would not reasonably be
expected to have a Material Adverse Effect.
5.26 Spin-Off Tax Liability. To the best knowledge of the Borrower as of
the
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Effective Date, the Borrower will not incur any material Federal income tax
liability as a result of the consummation of the Spin-Offs (whether or not any
such Federal income tax liability would be indemnified). As of the Effective
Date the Borrower is not aware of any plan by any of the Spin-Cos to consummate
any transaction that would cause Borrower to incur any such material Federal
income tax liability.
5.27 Blue Star Parties. (a) Pari Passu. The obligations of each Blue
Star Party under the Loan Documents to which it is a party, when executed and
delivered by such Blue Star Party, will rank at least pari passu with all other
unsecured Indebtedness of such Blue Star Party.
(b) No Immunities, etc. Each Blue Star Party is subject to civil and
commercial law with respect to its obligations under the Loan Documents to which
it is a party, and the execution, delivery and performance by such Blue Star
Party of the Loan Documents to which it is a party constitute and will
constitute private and commercial acts and not public or governmental acts.
Neither such Blue Star Party nor any of its property, whether or not held for
its own account, has any immunity (sovereign or other similar immunity) from any
suit or proceeding, from jurisdiction of any court or from set-off or any legal
process (whether service or notice, attachment prior to judgment, attachment in
aid of execution of judgment, execution of judgment or other similar immunity)
under laws of the jurisdiction in which such Blue Star Party is organized and
existing in respect of its obligations under the Loan Documents to which it is a
party. Such Blue Star Party has, pursuant to subsection 12.12, waived every
immunity (sovereign or otherwise) to which it or any of its properties would
otherwise be entitled from any legal action, suit or proceeding, from
jurisdiction of any court or from set-off or any legal process (whether service
or notice, attachment prior to judgment, attachment in aid of execution of
judgment, execution of judgment or otherwise) under the laws of the jurisdiction
in which such Blue Star Party is organized and existing in respect of its
obligations under the Loan Documents to which it is a party. The waiver by such
Blue Star Party described in the immediately preceding sentence is the legal,
valid and binding obligation of such Blue Star Party.
(c) No Recordation Necessary. Each of the Loan Documents to which any
Blue Star Party is a party, is in proper legal form under the law of the
jurisdiction in which such Blue Star Party is organized and existing for the
enforcement hereof or thereof against such Blue Star Party under the law of such
jurisdiction, and to ensure the legality, validity, enforceability, priority or
admissibility in evidence of each of the Loan Documents to which any Blue Star
Party is a party. It is not necessary to ensure the legality, validity,
enforceability, priority or admissibility in evidence of any of the Loan
Documents or any other Loan Document be filed, registered or recorded with, or
executed or notarized before, any court or other authority in the jurisdiction
in which any Blue Star Party is organized and existing or that any registration
charge or stamp or similar tax be paid on or in respect of any of the Loan
Documents, except for any such filing, registration or recording, or execution
or notarization, as has been made or is not required to be made until such Loan
Document is sought to be enforced and for any charge or tax as has been timely
paid.
(d) Exchange Controls. The execution, delivery and performance by each
Blue Star Party of each Loan Document to which such Blue Star Party is a party,
is, under applicable foreign exchange control regulations of the jurisdiction in
which such Blue Star Party is organized and existing, not subject to any
notification or authorization except such as have been made or obtained or
cannot be made or obtained until a later date.
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SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Extension of Credit. This Agreement,
including, without limitation, the agreement of each Lender to make the initial
Extension of Credit requested to be made by it, shall become effective on the
date on which the following conditions precedent shall have been satisfied or
waived:
(a) Loan Documents. The Administrative Agent shall have received the
following Loan Documents (each of which shall be satisfactory in form and
substance to the Administrative Agent), executed and delivered as required
below, with a copy for each applicable Lender: (i) this Agreement, executed
and delivered by a duly authorized officer of the Borrower and Blue Star
Group, (ii) the Guarantee and Collateral Agreement, executed and delivered by
a duly authorized officer of each of the Borrower and the Domestic
Subsidiaries of the Borrower listed on Schedule V, (iii) each of the
Mortgages with respect to the properties listed on Schedule 6.1(a), executed
and delivered by a duly authorized officer of the Loan Party thereto, (iv)
the Australian Pledge Agreement, executed and delivered by a duly authorized
officer of the Borrower and (v) any Notes requested by the Lenders in
accordance with subsections 2.2, 2.5, 2.7, 2.8 and 2.9, executed by a duly
authorized officer of the Borrower.
(b) Investment Agreement. The Equity Investment shall have been
consummated substantially in accordance with the terms and conditions of the
Investment Agreement for an aggregate purchase price not less than
approximately $270,000,000, and the Administrative Agent shall have received
from the Borrower a list, prepared in good faith in a commercially reasonable
manner, of the estimated transaction expenses incurred in connection with the
Transactions and the financing thereof, which estimate shall not exceed
$75,000,000 in the aggregate.
(c) Senior Subordinated Notes. The Administrative Agent shall have
received evidence, in form and substance reasonably satisfactory to it, that
the Borrower or its account shall have received gross cash proceeds of
approximately $400,000,000 from the issuance of Senior Subordinated Notes.
(d) Tender Offers and Spin-Offs. The Administrative Agent shall have
received evidence, in form and substance reasonably satisfactory to it, that
Borrower shall have spent not more than $1,000,000,000 (less an amount equal
to the aggregate exercise price of all options which are surrendered in
exchange for a cash payment) pursuant to the Stock Repurchase and shall have
completed the Spin-Offs. The Administrative Agent shall have received copies
of the Tender Offer materials with respect to the Stock Repurchase and the
Debt Tender Offer which materials shall be in form and substance reasonably
satisfactory to the Agents.
(e) Capital Structure. The capital structure of the Borrower and its
Subsidiaries shall be reasonably satisfactory to the Lenders, provided that
such condition shall be deemed satisfied by the receipt of the Administrative
Agent and each of the Lenders of a compliance certificate of a Responsible
Officer of the Borrower demonstrating that the
69
Leverage Ratio (which shall be calculated for this purpose by subtracting
from Consolidated Total Funded Indebtedness an amount equal to the aggregate
amount of all cash and Cash Equivalents of the Borrower and its consolidated
Subsidiaries, to the extent such cash and Cash Equivalents are on deposit in
one or more accounts maintained with the Administrative Agent and are not
subject to any Lien in favor of a third party as of the Effective Date) of
the Borrower and its consolidated Subsidiaries for the four fiscal quarters
of the Borrower ended April 24, 1998, on a pro forma basis giving effect (as
if such events had occurred on such day) to (i) the consummation of the
Transactions as actually consummated on the Effective Date, (ii) the making
of the Loans to be made on the Effective Date and (iii) the payment of
estimated fees, expenses, financing costs and estimated tax payments related
to the transactions contemplated hereby and thereby, is not greater than
6.20 to 1.00.
(f) Financial Information. The Lenders shall have received copies of and
shall be reasonably satisfied, in form and substance, with (i) the audited
consolidated balance sheets and statements of income and of cash flows of the
Borrower and its consolidated Subsidiaries for the fiscal years ended and as
at April 30, 1995, April 30, 1996 and April 26, 1997, in each case
accompanied by a report of Price Waterhouse LLP, (ii) the unaudited
consolidated balance sheets and statements of income, retained income and
cash flows of the Borrower and its consolidated Subsidiaries as at the end of
and for each fiscal month and quarterly period ended after April 26, 1997 and
prior to the Effective Date for which such unaudited financial statements are
available and (iii) the Pro Forma Balance Sheet, together with a
reconciliation thereof to the balance sheet of the Borrower and its
consolidated Subsidiaries as of the Pro Forma Date.
(g) Projections. The Lenders shall have received a reasonably detailed
business plan of the Borrower and its Subsidiaries for fiscal year 1998 in a
form and level of detail reasonably satisfactory to the Lenders.
(h) Consents, Licenses and Approvals. The Administrative Agent shall
have received, with a copy for each Lender, a certificate of a Responsible
Officer of the Borrower stating that all consents, authorizations, notices
and filings referred to in Schedule 5.4 are in full force and effect or have
the status described therein, and the Administrative Agent shall have
received evidence thereof reasonably satisfactory to it.
(i) Lien Searches. The Administrative Agent shall have received the
results of a recent search by a Person reasonably satisfactory to the
Administrative Agent and its counsel, of the Uniform Commercial Code,
judgment and tax lien filings which may have been filed with respect to
personal property of the Borrower and its Material Domestic Subsidiaries then
parties to the Security Documents in any of the jurisdictions set forth in
Schedule 5.14, and the results of such search shall not reveal any Liens
other than Liens permitted by subsection 8.3 or that are otherwise reasonably
satisfactory to the Administrative Agent and its counsel.
(j) Legal Opinions. The Administrative Agent shall have received, with a
copy for each Lender, the following executed legal opinions:
(i) the executed legal opinion of Xxxxxx, Xxxxxx & Xxxxxxxxx,
special
70
counsel to the Borrower, substantially in the form of Exhibit G-1;
(ii) the executed legal opinion of Xxxxxxx XxXxxxx
XxXxxxxx Bartleet & Co., special New Zealand counsel to Xxxxxxxx and the
other Loan Parties, substantially in the form of Exhibit G-2; and
(iii) the executed legal opinion of Xxxxxx Xxxxxxx, special
Australian counsel to the Borrower and the other Loan Parties,
substantially in the form of Exhibit G-3.
In addition, the Administrative Agent shall have received, with a copy for
each Lender, the legal opinions referred to in Sections 9.02(b) and 9.03(d)
of the Investment Agreement and each such legal opinion shall state that the
Administrative Agent and the Lenders are entitled to rely thereon as if such
legal opinion were addressed to the Administrative Agent and the Lenders.
(k) Tax Opinion. The Borrower shall have received an opinion, which may
be relied upon by the Agents and the Lenders, of Xxxxxx, Xxxxxx & Xxxxxxxxx,
special counsel to the Borrower, that for U.S. federal income tax purposes,
the Spin-Offs will qualify as tax-free spin-offs under Section 355 of the
Code, and will not be taxable under Section 355(e) of the Code.
(l) Environmental Assessment. The Administrative Agent shall have
received the Environmental Reports described on Schedule 6.1(l).
(m) Actions to Perfect Liens. The Administrative Agent shall have
received evidence in form and substance reasonably satisfactory to it that
all filings, recordings, registrations and other actions, including, without
limitation, the filing of duly executed financing statements on Form UCC-1 in
each jurisdiction set forth on Schedule 5.14, necessary or, in the reasonable
opinion of the Administrative Agent, desirable to perfect the Liens created
by the Security Documents shall have been completed or shall be ready to be
completed promptly following the Effective Date, and all agreements,
statements and other documents relating thereto shall be in form and
substance reasonably satisfactory to the Administrative Agent.
(n) Pledged Securities; Stock Powers and Endorsements. The
Administrative Agent shall have received the certificates and the promissory
notes, if any, representing the Pledged Securities under (and as defined in
the Guarantee and Collateral Agreement), together with an undated stock power
for each stock certificate executed in blank by a duly authorized officer of
the pledgor thereof and/or duly endorsed as required by the Guarantee and
Collateral Agreement.
(o) Title Insurance Policy. The Administrative Agent shall have received
in respect of each parcel of owned real property covered by a Mortgage a
mortgagee's title policy (or policies) or marked up unconditional (except
with respect to any matter which may be shown on a related survey) binder for
such insurance dated the date of the recording of such Mortgage. Each such
policy shall (i) be in an amount reasonably satisfactory to the
Administrative Agent but no more than the value of the particular
71
property; (ii) insure that the Mortgage insured thereby creates a valid first
(or, in the case of the property so indicated on Schedule 6.1(a), a second)
Lien on such parcel free and clear of all defects and encumbrances, except
those permitted by subsection 8.3 and such as may be approved by the
Administrative Agent; (iii) name the Administrative Agent for the benefit of
the Lenders as the insured thereunder; (iv) be in the form of an ALTA Loan
Policy; (v) contain such endorsements and affirmative coverage as the
Administrative Agent may reasonably request and (vi) be issued by First
American Title Insurance Company. The Administrative Agent shall have
received evidence reasonably satisfactory to it that all premiums in respect
of each such policy, and all charges for mortgage recording tax, if any, have
been paid. The Administrative Agent shall have also received a copy of all
recorded documents referred to, or listed as exceptions to title in, the
title policy or policies referred to in this subsection and a copy certified
by such parties as the Administrative Agent may deem reasonably appropriate,
of all other documents affecting the property covered by each Mortgage as
shall have been reasonably requested by the Administrative Agent.
(p) Fees. The Borrower shall have paid to the Administrative Agent the
fees to be received on the Effective Date referred to in subsection 4.5.
(q) Borrowing Certificate. The Administrative Agent shall have received,
with a copy for each Lender, a certificate of the Borrower, dated the
Effective Date, substantially in the form of Exhibit J, with appropriate
insertions and attachments, reasonably satisfactory in form and substance to
the Administrative Agent, executed by a Responsible Officer and the Secretary
or any Assistant Secretary of the Borrower.
(r) Corporate Proceedings of the Loan Parties. The Administrative Agent
shall have received, with a copy for each Lender, a copy of the resolutions,
in form and substance reasonably satisfactory to the Administrative Agent, of
the Board of Directors of each Loan Party authorizing, as applicable, (i) the
execution, delivery and performance of this Agreement, any Notes and the
other Loan Documents to which it is or will be a party, (ii) the Extensions
of Credit contemplated hereunder and (iii) the granting by it of the Liens to
be created pursuant to the Security Documents to which it will be a party,
certified by the Secretary or an Assistant Secretary of such Person as of the
Effective Date, which certificate shall be in form and substance reasonably
satisfactory to the Administrative Agent and shall state that the resolutions
thereby certified have not been amended, modified (except as any later such
resolution may modify any earlier such resolution), revoked or rescinded and
are in full force and effect as of the Effective Date.
(s) Incumbency Certificates of the Loan Parties. The Administrative
Agent shall have received, with a copy for each Lender, a certificate of each
Loan Party, dated the Effective Date, as to the incumbency and signature of
the officers of such Person executing any Loan Document, reasonably
satisfactory in form and substance to the Administrative Agent, executed by a
Responsible Officer and the Secretary or any Assistant Secretary of such
Person.
(t) Corporate Documents. The Administrative Agent shall have received,
with a copy for each Lender, copies of the certificate of incorporation and
by-laws of each Loan Party, certified as of the Effective Date as complete
and correct copies thereof by the
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Secretary or an Assistant Secretary of such Loan Party.
(u) Insurance. The Administrative Agent shall have received evidence in
form and substance reasonably satisfactory to it that the requirements of
Section 5.2.2 of the Guarantee and Collateral Agreement and Section 5 of each
Mortgage shall have been satisfied, together with certificates of insurance
and other evidence of such insurance, if any, naming the Administrative Agent
as an additional insured and/or loss payee.
(v) No Material Change. Since the date of the most recent financial
statements provided to the Lenders prior to the date hereof, there shall not
have occurred or become known to any Loan Party any change, development or
event that would reasonably be expected to have a Material Adverse Effect.
(w) No Material Litigation. No litigation, investigation, injunction or
restraining order shall be pending, entered or threatened that would
reasonably be expected to have a Material Adverse Effect.
The making of the initial Extensions of Credit by the Lenders hereunder shall
conclusively be deemed to constitute an acknowledgement by the Administrative
Agent and each Lender that each of the conditions precedent set forth in this
subsection 6.1 shall have been satisfied in accordance with its respective terms
or shall have been irrevocably waived by such Person.
6.2 Conditions to Initial Blue Star Extensions of Credit. The agreement
of each Lender to make the initial Extension of Credit requested by Blue Star
Group to be made by such Lender (including if such Extension of Credit is the
initial Extension of Credit hereunder) is subject to the satisfaction or waiver
of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received the
following Loan Documents (each of which shall be satisfactory in form and
substance to the Administrative Agent), executed and delivered as required
below, with a copy for each applicable Lender: (i) each of the Blue Star
Guarantee and Security Documents, executed and delivered by a duly authorized
officer of the Borrower, Blue Star Group and the Subsidiaries of Blue Star
Group parties thereto, (ii) each of the Blue Star Mortgages, executed and
delivered by a duly authorized officer of the Loan Party thereto (iii) any
Notes requested by the Lenders in accordance with subsection 2.2 executed by
a duly authorized officer of Blue Star Group and (iv) the Blue Star
Representation Certificate, substantially in the form of Exhibit K, executed
and delivered by a duly authorized officer of Blue Star Group.
(b) Lien Searches. The Administrative Agent shall have received the
results of a recent search by a Person reasonably satisfactory to the
Administrative Agent and its counsel, of the lien (including judgment and tax
lien) filings which may have been filed with respect to personal property of
the Blue Star Group and its Material Subsidiaries then parties to the Blue
Star Guarantee and Security Documents in any of the jurisdictions reasonably
requested by the Administrative Agent, and the results of such search shall
not reveal any Liens other than Liens permitted by subsection 8.3 or that are
otherwise reasonably satisfactory to the Administrative Agent and its
counsel.
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(c) Legal Opinions. The Administrative Agent shall have received, with a
copy for each Lender, the following executed legal opinions:
(i) the executed legal opinion of Xxxxxxx XxXxxxx
Bartleet & Co., special New Zealand counsel to Xxxxxxxx and the other
Loan Parties, in form and substance satisfactory to the Administrative
Agent and its counsel; and
(ii) the executed legal opinion of Xxxxxx Xxxxxxx, special
Australian counsel to the Borrower and the other Loan Parties in form
and substance satisfactory to the Administrative Agent and its counsel.
(d) Actions to Perfect Liens. The Administrative Agent shall have
received evidence in form and substance reasonably satisfactory to it that
all filings, recordings, registrations and other actions, including, without
limitation, the filing or recording of duly executed lien statements or
instruments, necessary or, in the reasonable opinion of the Administrative
Agent, desirable to perfect the Liens created by the Blue Star Guarantee and
Security Documents shall have been completed or shall be ready to be
completed promptly following the first Borrowing Date for the Blue Star
Group, and all agreements, statements and other documents relating thereto
shall be in form and substance reasonably satisfactory to the Administrative
Agent.
(e) Corporate Proceedings of the Loan Parties. The Administrative Agent
shall have received, with a copy for each Lender, a copy of the resolutions,
in form and substance reasonably satisfactory to the Administrative Agent, of
the Board of Directors of each Loan Party which is party to any of the Blue
Star Guarantee and Security Documents authorizing, as applicable, (i) the
execution, delivery and performance of the Blue Star Guarantee and Security
Documents to which it is or will be a party, (ii) the Extensions of Credit
contemplated for the Blue Star Group hereunder and (iii) the granting by it
of the Liens to be created pursuant to the Blue Star Guarantee and Security
Documents to which it will be a party, certified by the Secretary or an
Assistant Secretary of such Person as of the first Borrowing Date for the
Blue Star Group, which certificate shall be in form and substance reasonably
satisfactory to the Administrative Agent and shall state that the resolutions
thereby certified have not been amended, modified (except as any later such
resolution may modify any earlier such resolution), revoked or rescinded and
are in full force and effect as of the first Borrowing Date for the Blue Star
Group.
(f) Incumbency Certificates of the Loan Parties. The Administrative
Agent shall have received, with a copy for each Lender, a certificate of each
Loan Party which is party to any of the Blue Star Guarantee and Security
Documents, dated the date of the first Borrowing Date for the Blue Star
Group, as to the incumbency and signature of the officers of such Person
executing any Blue Star Guarantee and Security Document, reasonably
satisfactory in form and substance to the Administrative Agent, executed by a
Responsible Officer and the Secretary or any Assistant Secretary of such
Person.
(g) Corporate Documents. The Administrative Agent shall have received,
with a copy for each Lender, copies of the certificate of incorporation and
by-laws of each Loan Party which is party to any Blue Star Guarantee and
Security Document, certified as of the first Borrowing Date for the Blue Star
Group as complete and correct copies thereof
74
by the Secretary or an Assistant Secretary of such Loan Party.
6.3 Conditions to Each Other Extension of Credit. The agreement of each
Lender to make any Extension of Credit requested to be made by it on any date
(including, without limitation, the initial Extension of Credit and each Swing
Line Loan) is subject to the satisfaction or waiver of the following conditions
precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party pursuant to this Agreement or any other
Loan Document (or in any amendment, modification or supplement hereto or
thereto) to which it is a party, and each of the representations and
warranties contained in any certificate furnished at any time by or on behalf
of any Loan Party pursuant to this Agreement or any other Loan Document,
shall, except to the extent that they relate to a particular date, be true
and correct in all material respects on and as of such date as if made on and
as of such date.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the Extensions of Credit
requested to be made on such date.
(c) Letter of Credit Application. With respect to the issuance of any
Letter of Credit, the Issuing Lender shall have received an Application
completed to its satisfaction, and such other certificates, documents and
other papers and information as the Issuing Lender may reasonably request.
Each borrowing by and Letter of Credit issued on behalf of the Borrower or Blue
Star Group hereunder shall constitute a representation and warranty by the
Borrower and, if any such borrowing is by Blue Star Group, Blue Star Group as of
the date of such borrowing or such issuance that the conditions contained in
this subsection 6.3 have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, from and after the Effective Date and
so long as the Revolving Credit Commitments and Multi-Draw Term Loan Commitments
remain in effect, and thereafter until payment in full of the Loans, all
Reimbursement Obligations and any other amount then due and owing to any Lender
or the Administrative Agent hereunder and under any Note and termination or
expiration of all Letters of Credit, the Borrower shall and (except in the case
of delivery of financial information, reports and notices) shall cause each of
its respective Subsidiaries to:
7.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event not later than 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 (which may be the Borrower's annual
report, as filed with the SEC on Form 10-K), setting forth in each case in
comparative form the figures for and as of the end of the previous year,
reported
75
on without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by Price Waterhouse LLP
or other independent certified public accountants of nationally recognized
standing reasonably satisfactory to the Administrative Agent; and
(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 of the Borrower
and its consolidated Subsidiaries for such quarter and the portion of the
fiscal year through the end of such quarter (which may be the Borrower's
quarterly financial statements, as filed with the SEC on Form 10-Q), setting
forth in each case in comparative form the budgeted figures (as adjusted
consistent with past practice) for the relevant period and the figures for
the corresponding period of the previous fiscal year, certified by a
Responsible Officer of the Borrower as being fairly stated in all material
respects (subject to normal year-end audit and other adjustments);
all such financial statements delivered pursuant to subsection 7.1(a) or 7.1(b)
to be (and, in the case of financial statements delivered pursuant to subsection
7.1(b) shall be certified by a Responsible Officer of the Borrower as being)
complete and correct in all material respects in conformity with GAAP and to be
(and, in the case of financial statements delivered pursuant to subsection
7.1(b) shall be certified by a Responsible Officer of the Borrower as being)
prepared in reasonable detail in accordance with GAAP applied consistently
throughout the periods reflected therein and with prior periods that began on or
after the Effective Date (except as approved by such accountants or officer, as
the case may be, and disclosed therein, and except, in the case of the financial
statements delivered pursuant to subsection 7.1(b), for the absence of certain
notes).
7.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements referred
to in subsection 7.1(a), a certificate of the independent certified public
accountants reporting on such financial statements stating that in making the
audit necessary therefor no knowledge was obtained of any Default or Event of
Default insofar as the same relates to any financial accounting matters
covered by their audit, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements referred
to in subsections 7.1(a) and 7.1(b), a certificate signed by a Responsible
Officer of the Borrower, (i) stating that, to the best of each such
Responsible Officer's knowledge, each of the Borrower and each of its
Subsidiaries during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition, contained in
this Agreement, any Notes 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,
in each case, as specified in such certificate, and (ii) setting forth the
calculations required to determine (A) compliance with all covenants set
forth in subsection 8.1 (in the case of a certificate furnished with the
financial statements referred to in subsections 7.1(a) and 7.1(b)) and (B)
compliance with the covenant set forth in subsection 8.8 (in the case of a
certificate furnished with the financial
76
statements referred to in subsection 7.1(a));
(c) as soon as available, but in any event not later than 90 days after
the beginning of each fiscal year of the Borrower, a copy of the projections
of the operating budget and cash flow budget of the Borrower and its
Subsidiaries for such fiscal year as customarily prepared by the management
for its internal use, such projections to be accompanied by a certificate of
a Responsible Officer of the Borrower to the effect that such Responsible
Officer believes such projections to have been prepared on the basis of
reasonable assumptions;
(d) within five Business Days after the same are sent, copies of all
financial statements and reports which the Borrower sends to its public
security holders, if any, and within five Business Days after the same are
filed, copies of all financial statements and periodic reports which the
Borrower may file with the Securities and Exchange Commission or any
successor or analogous Governmental Authority;
(e) within two Business Days after the same are filed, copies of all
registration statements and any amendments and exhibits thereto, which the
Borrower may file with the Securities and Exchange Commission or any
successor or analogous Governmental Authority, and such other documents or
instruments as may be reasonably requested by the Administrative Agent in
connection therewith; and
(f) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
7.3 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
diligently conducted 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.
7.4 Conduct of Business and Maintenance of Existence. Continue to engage
in business of the same general type as conducted by the Borrower and its
Subsidiaries on the Effective Date, taken as a whole, and preserve, renew and
keep in full force and effect its corporate existence and take all reasonable
action to maintain all rights, privileges and franchises necessary or desirable
in the normal conduct of the business of the Borrower and its Subsidiaries,
taken as a whole, except as otherwise expressly permitted pursuant to subsection
8.5, provided that the Borrower and its Subsidiaries shall not be required to
maintain any such rights, privileges or franchises, if the failure to do so
would not reasonably be expected to have a Material Adverse Effect; and comply
with all Contractual Obligations and Requirements of Law except to the extent
that failure to comply therewith, in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.
7.5 Maintenance of Property; Insurance. Keep all property useful and
necessary in the business of the Borrower and its Subsidiaries, taken as a
whole, in good working order and condition, normal wear and tear excepted;
maintain with financially sound and reputable insurance companies insurance
on all property material to the business of the Borrower and its
77
Subsidiaries, taken as a whole, in at least such amounts and against at
least such risks (but including in any event public liability, product liability
and business interruption) as are usually insured against in the same general
area by companies engaged in the same or a similar business; and furnish to the
Administrative Agent, upon written request, information in reasonable detail as
to the insurance carried, together with copies of certificates of insurance and
other evidence of such insurance, if any, naming the Administrative Agent as an
additional insured and/or loss payee.
7.6 Inspection of Property; Books and Records; Discussions. (a) Keep
proper books of records and account in which full, complete and correct entries
in conformity with GAAP and all material Requirements of Law shall be made of
all dealings and transactions in relation to its business and activities; and
permit representatives of any Lender to visit and inspect any of its properties
and examine and, to the extent reasonable, make abstracts from any of its books
and records and to discuss the business, operations, properties and financial
and other condition of the Borrower and its Subsidiaries with officers of the
Borrower and its Subsidiaries and with its independent certified public
accountants, in each case at any reasonable time during normal business hours,
upon reasonable notice to the Chief Financial Officer or other Responsible
Officer of the Borrower, and as often as may reasonably be desired at reasonable
intervals, provided that any such visits and inspections shall be coordinated
through the Administrative Agent.
(b) If a Default or Event of Default shall have occurred and be
continuing, the Borrower shall reimburse the Administrative Agent for any
reasonable fees and expenses of third parties incurred in connection with any
appraisal of the Borrower's or any of its Subsidiaries' real property reasonably
requested in writing by the Required Lenders.
7.7 Notices. Promptly give notice to the Administrative Agent and each
Lender of:
(a) as soon as possible after a Responsible Officer of the Borrower
knows thereof, the occurrence of any Default or Event of Default;
(b) as soon as possible after a Responsible Officer of the Borrower
knows thereof, any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries, other than as
previously disclosed in writing to the Lenders, or (ii) litigation,
investigation or proceeding which may exist at any time between the Borrower
or any of its Subsidiaries and any Governmental Authority, which in either
case, if not cured or if adversely determined, as the case may be, would
reasonably be expected to have a Material Adverse Effect;
(c) as soon as possible after a Responsible Officer of the Borrower
knows thereof, any litigation or proceeding affecting the Borrower or any of
its Subsidiaries in which the amount involved is $1,000,000 or more and which
is not covered by insurance or in which injunctive or similar relief is
sought that would reasonably be expected to have a Material Adverse Effect;
(d) the following events, as soon as possible and in any event within 30
days after a Responsible Officer of the Borrower knows thereof: (i) the
occurrence or expected
78
occurrence of any Reportable Event with respect to any Single Employer Plan
(other than a Reportable Event described in Section 4043(c)(9) of ERISA), a
failure to make any required contribution to a Single Employer Plan or
Multiemployer Plan, the creation of any Lien on the property of the Borrower
or any of its Subsidiaries in favor of the PBGC or a Plan or any withdrawal
from, or the termination, Reorganization or Insolvency of, any Multiemployer
Plan if, as a result thereof, the Borrower or any of its Subsidiaries would
reasonably be expected to incur any material liability; (ii) the existence of
an Underfunding under a Single Employer Plan determined as of the most recent
annual valuation date of such Single Employer on the basis of the actuarial
assumptions used to determine the funding requirements of such Single
Employer Plan as of such date; (iii) the institution of proceedings or the
taking of any other formal 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 Single
Employer Plan or Multiemployer Plan if, as a result thereof, the Borrower or
any of its Subsidiaries would reasonably be expected to incur any material
liability; or (iv) the occurrence or expected occurrence of any event or
condition under which the Borrower or any Commonly Controlled Entity has
incurred or could incur any liability in respect of a Former Plan;
(e) as soon as possible after a Responsible Officer of the Borrower
knows thereof, any material adverse change in the business, operations,
property, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole;
(f) as soon as possible after a Responsible Officer of the Borrower
knows thereof and except as would not, individually or in the aggregate,
reasonably be expected to result in the payment of a Material Environmental
Amount, (i) any release or discharge by the Borrower or any of its
Subsidiaries of any Materials of Environmental Concern required to be
reported under applicable Environmental Laws to any Governmental Authority;
(ii) any condition, circumstance, occurrence or event that would result in
liability pursuant to applicable Environmental Laws or would result in the
imposition of any lien or other restriction on the title, ownership or
transferability of any Property; (iii) any proposed action to be taken by the
Borrower or any of its Subsidiaries that would reasonably be expected to
subject the Borrower or any of its Subsidiaries to any additional or
different requirements or liabilities, to the knowledge of the Borrower or
any of its Subsidiaries, under any applicable Environmental Law; (iv) any
Governmental Authority has notified the Borrower or any of its Subsidiaries
that any such Person is a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability Act or any
comparable law for the cleanup of Materials of Environmental Concern at any
location, whether or not owned, leased or operated by the Borrower or any of
its Subsidiaries; (v) any Governmental Authority has notified the Borrower or
any of its Subsidiaries that it will revoke any permit pursuant to any
Environmental Law held by the Borrower or any of its Subsidiaries, or deny or
refuse to renew any such permit sought by the Borrower or any of its
Subsidiaries; or (vi) any Governmental Authority has notified the Borrower or
any of its Subsidiaries that any property owned, leased, or operated by the
Borrower or any of its Subsidiaries is being listed on, or proposed for
listing on, the National Priorities List (NPL) or the Comprehensive
Environmental Response, Compensation and Liability Information System
(CERCLIS) maintained by the U.S. Environmental Protection Agency, or on any
similar list maintained by any
79
Governmental Authority; and
(g) within three Business Days of the issuance thereof, notice of any
issuance of a letter of credit permitted by subsection 8.2(h).
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer of the Borrower (and, if applicable, the relevant Commonly
Controlled Entity or Subsidiary) setting forth details of the occurrence
referred to therein and stating what action the Borrower (or, if applicable, the
relevant Commonly Controlled Entity or Subsidiary) proposes to take with respect
thereto.
7.8 Environmental Laws. (a) Comply substantially with all Environmental
Laws applicable to it, and obtain, comply substantially with and maintain any
and all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws; and (ii) take all reasonable efforts to ensure
that all tenants, subtenants, contractors, subcontractors and invitees comply
substantially with all Environmental Laws, and obtain, comply substantially with
and maintain any and all licenses, approvals, notifications, registrations or
permits required by Environmental Laws applicable to any of them insofar as any
failure to so comply, obtain or maintain reasonably would be expected to
adversely affect the Borrower or any of its Subsidiaries. For purposes of this
subsection 7.8(a), noncompliance shall be deemed not to constitute a breach of
this covenant provided that, upon learning of any actual or suspected
noncompliance, the Borrower shall in a timely fashion undertake or cause to be
undertaken reasonable efforts to achieve substantial compliance, and provided,
further that, in any case, such noncompliance, and any other noncompliance with
any Environmental Law, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.
(b) Promptly upon the Administrative Agent's request if the Borrower
shall have failed to pay any principal of any Loan or any interest on any Loan
within five days after such interest becomes due in accordance with the terms
hereof so as to cause an Event of Default, permit an environmental consultant,
whom the Administrative Agent designates and which consultant is reasonably
acceptable to the Borrower, to perform an environmental assessment (including,
without limitation: reviewing documents; interviewing knowledgeable persons; and
sampling and analyzing soil, air, surface rate, ground water, and/or other
media) in or about any Property subject to a Mortgage. Such environmental
assessment shall be in form, scope and substance reasonably satisfactory to the
Administrative Agent. The Borrower or its Subsidiaries shall cooperate fully in
the conduct of such environmental assessment, and shall pay the costs of such
environmental assessment promptly upon written demand by the Administrative
Agent. Pursuant to this subsection 7.8(b) the Administrative Agent shall have
the right, but shall not have any duty, to request and/or obtain such
environmental assessment.
7.9 After-Acquired Real Property and Fixtures. (a) With respect to any
owned real property with a fair market value (as determined in good faith by the
Borrower) of $1,500,000 or more or related fixtures in which the Borrower or any
of its Domestic Subsidiaries acquires ownership rights at any time after the
Effective Date, promptly, or (i) with respect to either of the properties listed
on Schedule 7.9(a)(i) , on the date six months after the date hereof if such
property has not been sold by such date or (ii) with respect to the property
listed on Schedule 7.9(a)(ii), within 60 days after the Effective Date, grant to
the Administrative Agent, for the ratable benefit of the Lenders, a Lien of
record on all such owned real property and
80
fixtures, upon terms reasonably satisfactory in form and substance to the
Administrative Agent and in accordance with any applicable requirements of any
Governmental Authority (including, without limitation, any required appraisals
of such property under FIRREA); provided, that, at the request of the Borrower,
the Administrative Agent may, but is under no obligation to, waive the
requirement that the Borrower xxxxx x Xxxx of record on such owned real property
and fixtures; and provided further that nothing in this subsection 7.9 shall
defer or impair the attachment or perfection of any security interest in any
Collateral covered by any of the Security Documents which would attach or be
perfected pursuant to the terms thereof without action by the Borrower, any
Subsidiary or any other Person. In connection with any such grant to the
Administrative Agent, for the benefit of the Lenders, of a first priority Lien
of record on any such real property in accordance with this subsection, the
Borrower or such Subsidiary shall deliver or cause to be delivered to the
Administrative Agent any surveys, title insurance policies, environmental
reports and other documents in connection with such grant of such Lien obtained
by it in connection with the acquisition of such ownership rights in such real
property or as the Administrative Agent shall reasonably request (in light of
the value of such real property and the cost and availability of such surveys,
title insurance policies, environmental reports and other documents and whether
the delivery of such surveys, title insurance policies, environmental reports
and other documents would be customary in connection with such grant of such
Lien in similar circumstances).
(b) At its own expense, execute, acknowledge and deliver, or cause the
execution, acknowledgement and delivery of, and thereafter register, file or
record in an appropriate governmental office, any document or instrument
reasonably deemed by the Administrative Agent to be necessary or desirable for
the creation and perfection of the foregoing Liens or any other Liens created
pursuant to the Security Documents.
(c) At its own expense, request, and use reasonable efforts to obtain,
(i) a consent, substantially in the form of Exhibit F or such other form as may
be reasonably satisfactory to the Administrative Agent, from the landlord of
each of the existing facilities in which Inventory of any Loan Party is located,
as of the Effective Date, in which such landlord acknowledges the Administrative
Agent's security interest in the Inventory pledged by each Loan Party to the
Administrative Agent for the benefit of the Lenders, copies of which consent, if
obtained, shall be delivered to the Administrative Agent by the Effective Date
and (ii) prior to entering into a lease of a facility in which Inventory will be
located on or after the Effective Date, a consent, substantially in the form of
Exhibit F or such other form as may be reasonably satisfactory to the
Administrative Agent, from each landlord of any such facility, in which such
landlord acknowledges the Administrative Agent's first priority security
interest in the Inventory pledged by each Loan Party to the Administrative Agent
for the benefit of the Lenders.
7.10 Acquired Subsidiaries; Further Security and Guarantees. (a) In the
event that the Borrower or any of its Subsidiaries acquires any Material
Subsidiary from any third party as permitted by the other provisions of this
Agreement or creates any new Material Subsidiary, (i) if such Material
Subsidiary is a Material Domestic Subsidiary, such new Material Domestic
Subsidiary shall, to the extent permitted by law, execute and deliver to the
Administrative Agent (A) the Guarantee and Collateral Agreement, (B) mortgages
in respect of real property with a fair market value (as determined in good
faith by the Borrower) of $1,500,000 or more provided, that, at the request of
the Borrower, the Administrative Agent may waive the requirement that the
Borrower execute and deliver a mortgage with respect to such real property and
(C) other
81
security documents and take any necessary steps to perfect the security interest
to be created thereby and (ii) the relevant parent corporation (if such parent
corporation is the Borrower or a Domestic Subsidiary) shall execute and deliver
to the Administrative Agent a stock pledge agreement (or, if the parent
corporation is a party to the Guarantee and Collateral Agreement, pledge the
Capital Stock of such Material Subsidiary owned by such parent corporation
pursuant to such agreement) and shall take any necessary steps to perfect the
security interest to be created thereby (which security interest shall not apply
to more than 65% of such parent corporation's ownership interest in any Foreign
Subsidiary or any Foreign Subsidiary Holdco).
(b) In the event that the Borrower or any of its Subsidiaries creates
any new Subsidiary which is a Receivables Subsidiary, the relevant parent
corporation of such Receivables Subsidiary shall execute and deliver a stock
pledge agreement and deliver or cause to be delivered to the Administrative
Agent the stock certificates representing all of the outstanding capital stock
of such new Receivables Subsidiary, together with undated stock powers for each
such certificate executed in blank by a duly authorized officer of such parent
corporation.
(c) Within 30 days after the due date for delivery of financial
statements pursuant to subsection 7.1(a) or (b), (i) the Borrower shall, to the
extent permitted by law, cause any Subsidiary that qualifies as a Material
Domestic Subsidiary (based on its total assets as of the end of the most
recently completed fiscal quarter of the Borrower), but which is not a party to
the Guarantee and Collateral Agreement to execute and deliver to the
Administrative Agent, the Guarantee and Collateral Agreement and mortgages in
respect of real property with a fair market value (as determined in good faith
by the Borrower) of $1,500,000 or more and other security documents and take any
necessary steps to perfect the security interest to be created thereby and (ii)
the relevant parent corporation of any Subsidiary that qualifies as a Material
Subsidiary (based on its total assets as of the end of the most recently
completed fiscal quarter of the Borrower) (if such parent corporation is the
Borrower or a Domestic Subsidiary) shall execute and deliver to the
Administrative Agent a stock pledge agreement (or, if the parent corporation is
a party to the Guarantee and Collateral Agreement, pledge the Capital Stock of
such Material Subsidiary owned by such parent corporation pursuant to such
agreement) and shall take any necessary steps to perfect the security interest
to be created thereby (which security interest shall not apply to more than 65%
of such parent corporation's ownership interest in any Foreign Subsidiary or any
Foreign Subsidiary Holdco).
7.11 Interest Rate Protection Agreement. The Borrower shall have
incurred on a fixed rate basis, or shall enter into, no later than 180 days
after the Effective Date, an Interest Rate Protection Agreement with respect to,
an amount at least equal to 50% of the aggregate principal amount of the Term
Loans and Senior Subordinated Notes, and any Interest Rate Protection Agreement
entered into by the Borrower shall be in form and substance, and for a term,
reasonably satisfactory to the Administrative Agent.
7.12 Surveys. Within 60 days after the Effective Date, the Borrower
shall provide each of the Administrative Agent and the Title Insurance Company
with maps or plats of an as-built survey of the sites of the owned real property
covered by the Mortgages certified to the Administrative Agent and the Title
Insurance Company in a manner reasonably satisfactory to them, dated a date
reasonably satisfactory to the
82
Administrative Agent and the Title Insurance Company by an independent
professional licensed land surveyor reasonably satisfactory to the
Administrative Agent and the Title Insurance Company, which maps or plats and
the surveys on which they are based shall be made in accordance with the Minimum
Standard Detail Requirements for Land Title Surveys jointly established and
adopted by the American Land Title Association and the American Congress on
Surveying and Mapping in 1992, and, without limiting the generality of the
foregoing, there shall be surveyed and shown on such maps, plats or surveys the
following: (i) the locations on such sites of all the buildings, structures and
other improvements and the established building setback lines; (ii) the lines of
streets abutting the sites and width thereof; (iii) all access and other
easements appurtenant to the sites necessary to use the sites; (iv) all
roadways, paths, driveways, easements, encroachments and overhanging projections
and similar encumbrances affecting the sites, whether recorded, apparent from a
physical inspection of the sites or otherwise known to the surveyor; (v) any
encroachments on any adjoining property by the building structures and
improvements on the sites; and (vi) if the site is described as being on a filed
map, a legend relating the survey to said map; and, the Borrower shall enter
into and cause to be recorded such amendments to the Mortgages, and deliver to
the Administrative Agent suitable accompanying endorsements of any related title
insurance policies, as may be reasonably requested by the Administrative Agent
to address new information contained in such surveys..
SECTION 8. NEGATIVE COVENANTS APPLICABLE TO ALL COMMITMENTS AND LOANS
OTHER THAN THE TRANCHE B TERM LOAN COMMITMENTS AND TRANCHE B
TERM LOANS
The Borrower hereby agrees that, from and after the Effective Date and
so long as the Revolving Credit Commitments or Multi-Draw Term Loan Commitments
remain in effect, and thereafter until payment in full of the Loans (other than
Tranche B Term Loans), all Reimbursement Obligations and any other amount then
due and owing to any Lender (other than a Tranche B Term Loan Lender) or the
Administrative Agent hereunder and under any Note (other than a Tranche B Term
Loan Note) and termination or expiration of all Letters of Credit, the Borrower
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly:
8.1 Financial Condition Covenants.
(a) Maintenance of Consolidated Interest Coverage Ratio. Permit, at the
last day of any fiscal quarter ending during any test period set forth below,
the Consolidated Interest Coverage Ratio for the period of four consecutive
fiscal quarters ending on such date (or, if less than four full fiscal
quarters shall have begun after and elapsed since the Effective Date, then
for all such fiscal quarters beginning after the Effective Date that shall
have elapsed since the Effective Date), to be less than the ratio set forth
opposite such test period below:
Test Period Ratio
----------- -----
Effective Date - last day of
the third quarter ending in January 1999 1.50 to 1.00
First day of the fourth quarter beginning
83
in January/February 1999 - last day of the third
quarter ending in 2000 1.75 to 1.00
First day of the fourth quarter beginning
in January/February 2000 - last day of the third
quarter ending in January 2001 2.00 to 1.00
First day of the fourth quarter beginning
in January/February 2001 - last day of the third
quarter ending in January 2002 2.25 to 1.00
First day of the fourth quarter beginning
in January/February 2002 - last day of the third
quarter ending in January 2005 2.50 to 1.00
Thereafter 2.75 to 1.00
(b) Maintenance of Leverage Ratio. Permit, at the last day of any fiscal
quarter ending during any test period set forth below, the Leverage Ratio for
the period of four fiscal quarters ending on such date, to be greater than
the ratio set forth opposite such test period below:
Test Period Ratio
----------- -----
First day of second quarter beginning in
July/August 1998 - last day of the second quarter
ending in October 1998 6.95 to 1.00
First day of the third quarter beginning in
October/November 1998 - last day of the
second quarter ending in January 1999 6.85 to 1.00
First day of the fourth quarter beginning in
January/February 1999 - last day of the
second quarter ending in January 2000 6.65 to 1.00
First day of the fourth quarter beginning in
January/February 2000 - last day of the
second quarter ending in January 2001 5.90 to 1.00
First day of the fourth quarter beginning in
January/February 2001 - last day of the
second quarter ending in January 2002 5.00 to 1.00
First day of the fourth quarter beginning in
January/February 2002 - last day of the
second quarter ending in January 2003 4.50 to 1.00
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Thereafter 4.00 to 1.00
8.2 Limitation on Indebtedness. Create, incur, assume or suffer to exist
any Indebtedness (including any Indebtedness of any of its Subsidiaries),
except:
(a) (i) Indebtedness of the Borrower under this Agreement and under any
other Loan Documents and (ii) Indebtedness of the Borrower and Blue Star
Group under the Blue Star Credit Facility.
(b) Indebtedness of the Borrower to any of its Wholly Owned Subsidiaries
and of any Subsidiary of the Borrower to the Borrower or any other Wholly
Owned Subsidiary of the Borrower;
(c) Indebtedness of the Borrower and any of its Subsidiaries incurred to
finance or refinance the acquisition of fixed or capital assets (whether
pursuant to a loan, a Financing Lease or otherwise) otherwise permitted
pursuant to this Agreement, and any other Financing Leases, in an aggregate
principal amount not exceeding in the aggregate as to the Borrower and its
Subsidiaries $50,000,000 at any time outstanding, provided that such
Indebtedness is incurred substantially simultaneously with such acquisition
or within six months after such acquisition or in connection with a
refinancing thereof;
(d) Indebtedness of the Borrower under Interest Rate Protection
Agreements relating to Indebtedness of the Borrower under this Agreement and
Indebtedness of the Borrower and its Subsidiaries under Permitted Hedging
Arrangements;
(e) other Indebtedness outstanding on the Effective Date and listed on
Schedule 8.2(e) and any refinancings, refundings, renewals or extensions
thereof, provided that the amount of such Indebtedness is not increased at
the time of such refinancing, refunding, renewal or extension except by an
amount equal to the premium or other amounts paid, and fees and expenses
incurred, in connection with such refinancing and by an amount equal to the
unutilized commitments thereunder;
(f) to the extent that any Guarantee Obligation permitted under
subsection 8.4 constitutes Indebtedness, such Indebtedness;
(g) Indebtedness of the Borrower and any of its Subsidiaries assumed in
connection with any Permitted Acquisition, provided that such Indebtedness
shall not exceed $25,000,000 in aggregate principal amount at any one time
outstanding and any refinancing, refunding, renewal or extension of any such
Indebtedness; provided that the amount of such Indebtedness is not increased
at the time of such refinancing, refunding, renewal or extension, except by
an amount equal to the premium or other amounts paid, and fees and expenses
incurred, in connection with such refinancing, refunding, renewal or
extension.
(h) Indebtedness of the Borrower or any of its Subsidiaries pursuant to
any Permitted Receivables Securitization, provided that upon the
effectiveness of any such Permitted Receivables Securitization, the Term
Loans shall be prepaid and the Revolving
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Credit Commitments shall be automatically and permanently reduced in
accordance with subsections 4.4(e) and 4.4(j);
(i) Indebtedness in respect of letters of credit (excluding Letters of
Credit) issued by a Lender or an affiliate of a Lender for the account of the
Borrower and its Subsidiaries, provided that (i) the aggregate amount of any
such Indebtedness shall not exceed the Letter of Credit commitment of the
Issuing Lender pursuant to subsection 3.1 and (ii) upon the effectiveness of
any such letter of credit and for so long as it remains outstanding, the
Letter of Credit commitment of the Issuing Lender pursuant to subsection 3.1
shall be reduced by an amount equal to the aggregate amount of such
Indebtedness;
(j) Indebtedness of the Borrower or any of its Subsidiaries in respect
of Sale and Leaseback Transactions permitted under subsection 8.12;
(k) Indebtedness of the Borrower or any of its Subsidiaries incurred to
finance insurance premiums in the ordinary course of business;
(l) Indebtedness arising from the honoring of a check, draft or similar
instrument against insufficient funds, provided that such Indebtedness is
extinguished within five Business Days of its incurrence;
(m) Indebtedness of the Borrower on account of the Senior Subordinated
Notes;
(n) Indebtedness of Foreign Subsidiaries of the Borrower (in addition to
Indebtedness of Foreign Subsidiaries of the Borrower permitted by subsection
8.2(e)) not exceeding, as to all such Foreign Subsidiaries, $25,000,000 in
aggregate principal amount at any one time outstanding; and
(o) additional Indebtedness of the Borrower or any Subsidiary of the
Borrower, together with Guarantee Obligations permitted by subsection 8.4(o),
not exceeding $50,000,000 as to the Borrower and its Subsidiaries in
aggregate principal amount at any one time outstanding.
8.3 Limitation on Liens. Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes, assessments and similar charges not yet delinquent
or the nonpayment of which in the aggregate would not reasonably be expected
to have a Material Adverse Effect, or which are being contested in good faith
by appropriate proceedings diligently conducted and 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 which are being contested in
good faith by appropriate proceedings diligently conducted;
86
(c) Liens of landlords or of mortgagees of landlords arising by
operation of law or pursuant to the terms of real property leases, provided
that the rental payments secured thereby are not yet due and payable;
(d) pledges, deposits or other Liens in connection with workers'
compensation, unemployment insurance, other social security benefits or other
insurance related obligations (including, without limitation, pledges or
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements);
(e) Liens arising by reason of any judgment, decree or order of any
court or other Governmental Authority, if appropriate legal proceedings which
may have been duly initiated for the review of such judgment, decree or
order, are being diligently prosecuted and shall not have been finally
terminated or the period within which such proceedings may be initiated shall
not have expired;
(f) Liens to secure the performance of bids, trade contracts (other than
for borrowed money), obligations for utilities, leases, statutory
obligations, surety and appeal bonds, performance bonds, judgment and like
bonds, replevin and similar bonds and other obligations of a like nature
incurred in the ordinary course of business;
(g) zoning restrictions, easements, rights-of-way, restrictions on the
use of property, other similar encumbrances incurred in the ordinary course
of business and minor irregularities of title, which do not materially
interfere with the ordinary conduct of the business of the Borrower and its
Subsidiaries taken as a whole;
(h) Liens securing or consisting of Indebtedness of the Borrower and its
Subsidiaries permitted by subsection 8.2(c) incurred to finance the
acquisition of fixed or capital assets, provided that (i) such Liens shall be
created substantially simultaneously with such acquisition and (ii) such
Liens securing such Indebtedness do not at any time encumber any property
other than the property financed by such Indebtedness;
(i) Liens securing any Indebtedness permitted by subsection 8.2(n) or
other Indebtedness of Foreign Subsidiaries permitted by subsection 8.2;
provided that such Liens attach only to the assets of the Foreign Subsidiary
or Subsidiaries liable with respect to such Indebtedness;
(j) Liens securing Indebtedness permitted by subsection 8.2(g), provided
that (i) such Liens existed at the time of the Permitted Acquisition relating
to such Indebtedness and were not created in anticipation thereof and (ii)
any such Lien is not spread to cover any additional property or assets after
the time of such Permitted Acquisition;
(k) Liens existing on assets or properties at the time of the
acquisition thereof by the Borrower or a Subsidiary which do not materially
interfere with the use of the property subject thereto or extend to or cover
any assets of the Borrower or such Subsidiary other than the assets or
property being acquired;
(l) Liens in existence on the Effective Date and listed in Schedule
8.3(l) and
87
continuations of such Liens to secure Indebtedness of the Borrower and its
Subsidiaries permitted by subsection 8.2(e), provided that no such Lien is
spread to cover any additional property after the Effective Date and that the
amount of Indebtedness secured thereby is not increased except as permitted
by subsection 8.2(e);
(m) Liens on Intellectual Property and foreign patents, patent
applications, trademarks, trademark applications, trade names, service marks,
copyrights, technology, know-how and processes to the extent such Liens arise
from the granting of licenses to use such Intellectual Property and foreign
patents, patent applications, trademarks, trademark applications, trade
names, service marks, copyrights, technology, know-how and processes to any
Person in the ordinary course of business of the Borrower and its
Subsidiaries;
(n) Liens securing Guarantee Obligations permitted under subsection
8.4(f) not exceeding (as to the Borrower and all its Subsidiaries) $5,000,000
in aggregate amount at any time outstanding;
(o) Liens created pursuant to the Security Documents or otherwise
securing Indebtedness permitted by subsection 8.2(a);
(p) Liens created pursuant to and in accordance with any Permitted
Receivables Securitization;
(q) Liens on property subject to Sale and Leaseback Transactions
permitted under subsection 8.12 and general intangibles related thereto;
(r) Liens securing obligations of Blue Star Group under the Blue Star
Credit Facility; and
(s) additional Liens not otherwise permitted by the preceding clauses of
this subsection 8.3 which secure obligations not to exceed $10,000,000 in the
aggregate at any time outstanding.
8.4 Limitation on Guarantee Obligations. Create, incur, assume or suffer
to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the Effective Date and listed
in Schedule 8.4(a), and any refinancings, refundings, extensions or renewals
thereof, provided that the amount of such Guarantee Obligation shall not be
increased at the time of such refinancing, refunding, extension or renewal
except to the extent that the amount of Indebtedness in respect of such
Guarantee Obligations is permitted to be increased by subsection 8.2(e);
(b) Guarantee Obligations for performance, appeal, judgment, replevin
and similar bonds, or suretyship arrangements, all in the ordinary course of
business;
(c) Guarantee Obligations in respect of indemnification and contribution
agreements expressly permitted by subsection 8.11(iii) or similar agreements
by the
88
Borrower or any of its Subsidiaries;
(d) Reimbursement Obligations in respect of the Letters of Credit and
reimbursement obligations owing to the issuer of any letter of credit
permitted by subsection 8.2(i);
(e) Guarantee Obligations in respect of third-party loans and advances
to directors, officers or employees of the Borrower or any Subsidiary and, in
the case of loans or advances to finance the purchase of common stock of the
Borrower, to the immediate family members or relatives thereof, or trusts or
partnerships for the benefit of any of the foregoing, or any of their heirs,
executors, or legal representatives, (i) for travel and entertainment
expenses incurred in the ordinary course of business, (ii) for relocation
expenses incurred in the ordinary course of business or (iii) for any other
purpose and, in the case of this clause (iii), in an aggregate principal
amount (as to the Borrower and all its Subsidiaries), together with the
aggregate amount of all Investments permitted under subsection 8.9(e)(iii),
of up to $5,000,000 outstanding at any time, plus the net cash proceeds
received by the Borrower since the Effective Date from the issuance or sale
of capital stock of the Borrower (including any options, warrants or other
rights in respect thereof) to any such Person;
(f) obligations to insurers required in connection with worker's
compensation and other insurance coverage incurred in the ordinary course of
business;
(g) obligations of the Borrower under any Interest Rate Protection
Agreements relating to Indebtedness of the Borrower under this Agreement and
obligations of the Borrower and its Subsidiaries under Permitted Hedging
Arrangements;
(h) guarantees made in the ordinary course of its business by the
Borrower or any of its Subsidiaries of obligations of the Borrower or any of
its Subsidiaries, which obligations are otherwise permitted under this
Agreement;
(i) Guarantee Obligations in connection with sales or other dispositions
permitted under subsection 8.6, including indemnification obligations with
respect to leases, and guarantees of collectability in respect of accounts
receivables or notes receivable for up to face value;
(j) accommodation guarantees for the benefit of trade creditors of the
Borrower or any of its Subsidiaries in the ordinary course of business of
obligations of the Borrower or any of its Subsidiaries, which obligations are
otherwise permitted by this Agreement;
(k) Guarantee Obligations of the Borrower and its Subsidiaries in
respect of recourse events in connection with any Permitted Receivables
Securitization;
(l) Guarantee Obligations (including any Letters of Credit issued
hereunder in respect of the purchase of goods or services by any joint
venture or similar arrangement) in respect of Indebtedness of a Person in
connection with a joint venture or similar arrangement in respect of which no
other co-investor or other Person has a greater legal or beneficial ownership
interest than the Borrower or any of its Subsidiaries and as to all
89
of such Persons does not at any time exceed $25,000,000 in aggregate
principal amount, provided that such amount shall be reduced by the aggregate
amount of then existing Investments permitted by subsection 8.9(l);
(m) Guarantee Obligations in connection with the Transactions;
(n) Guarantee Obligations incurred pursuant to the Guarantees or
otherwise in respect of Indebtedness permitted by subsection 8.2(a);
(o) Guarantee Obligations not otherwise permitted by the preceding
clauses of this subsection 8.4, together with Indebtedness permitted by
subsection 8.2(o), not exceeding $50,000,000 in aggregate principal amount at
any one time outstanding; and
(p) Guarantee Obligations under the Subordinated Subsidiary Guarantees
in respect of the Senior Subordinated Notes.
8.5 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 convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except:
(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 one or more Wholly Owned
Subsidiaries of the Borrower (provided that the Wholly Owned Subsidiary or
Subsidiaries of the Borrower shall be the continuing or surviving corporation
and provided further that no Domestic Subsidiary may be merged or
consolidated with or into a Foreign Subsidiary unless the continuing or
surviving entity is a Domestic Subsidiary);
(b) any Subsidiary of the Borrower may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or to any other Subsidiary which is a Wholly Owned
Subsidiary of the Borrower that is a Guarantor; and
(c) any Foreign Subsidiary of the Borrower may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to any other Foreign Subsidiary that is a Wholly Owned Subsidiary
of the Borrower;
(d) as expressly permitted by subsection 8.6 and 8.10 (so long as, if
the Borrower or, if there are any Loans outstanding to Blue Star Group, Blue
Star Group is party to any merger, consolidation or amalgamation, the
Borrower or, in the case of a merger, consolidation or amalgamation involving
Blue Star Group, a Wholly Owned Subsidiary of the Borrower shall be the
surviving corporation).
8.6 Limitation on Sale of Assets. Convey, sell, lease, assign, transfer
or otherwise dispose of any of its property, business or assets (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 other
90
than the Borrower or any Wholly Owned Subsidiary of the Borrower, except:
(a) the sale or other Disposition of obsolete or worn out property,
whether now owned or hereafter acquired, in the ordinary course of business;
(b) the sale or other Disposition of any property (including Inventory)
in the ordinary course of business;
(c) the sale or discount without recourse of accounts receivable or
notes receivable arising in the ordinary course of business, or the
conversion or exchange of accounts receivable into or for notes receivable,
in connection with the compromise or collection thereof, provided that, in
the case of any Foreign Subsidiary of the Borrower, any such sale or discount
may be with recourse if such sale or discount is consistent with customary
practice in such Foreign Subsidiary's country of business and the aggregate
amount of any such recourse shall (to the extent such recourse is required by
GAAP to be included as Indebtedness on the consolidated balance sheet of the
Borrower and its consolidated subsidiaries) be included in the determination
of such Foreign Subsidiary's Indebtedness for purposes of subsection 8.2(h);
(d) as permitted by subsections 8.5(b) and 8.5(c) and pursuant to Sale
and Leaseback Transactions permitted by subsection 8.12;
(e) the sale, transfer or discount of Receivables pursuant to any
Permitted Receivables Securitization; provided that upon the effectiveness of
any such Permitted Receivables Securitization, the Term Loans shall be
prepaid and the Revolving Credit Commitments shall be automatically and
permanently reduced to the extent required by subsections 4.4(e) and 4.4(j);
(f) Dispositions of any assets or property by the Borrower or any
Subsidiary of the Borrower to the Borrower or any Wholly Owned Subsidiary of
the Borrower, provided that the Wholly Owned Subsidiary has executed each of
the guarantees and security documents required pursuant to subsection 6.1(a).
(g) any sales or other Dispositions by the Borrower or any of its
Subsidiaries of any property the Net Cash Proceeds of which do not exceed
$20,000,000 in the aggregate per annum and the non-cash portion of which does
not exceed 25% of the consideration therefor, provided that in the case of
any Asset Sale an amount equal to 100% of the Net Cash Proceeds of such sale
less the Reinvested Amount with respect thereto is applied in accordance with
subsection 4.4(c);
(h) any sale or other Disposition of any property resulting from the
consolidation of the Borrower's distribution operations into
centrally-located regional warehouses known as district fulfillment centers;
(i) the abandonment or other Disposition of patents, trademarks or other
intellectual property that are, in the reasonable judgment of the Borrower,
no longer economically practicable to maintain or useful in the conduct of
the business of the Borrower and its Subsidiaries taken as a whole;
91
(j) the disposition of any Subsidiary that is not a Material
Subsidiary;
(k) the Transactions and the other transactions expressly contemplated
by the Transaction Documents, including, without limitation, the Spin-Offs;
and
(l) the contribution or other transfer of any Blue Star Intercompany
Notes to a BSIN Subsidiary.
8.7 Limitation on Restricted Payments/Dividends. Declare or pay any
dividend (other than dividends payable solely in common stock of the Borrower or
options, warrants or other rights to purchase common stock of the Borrower) 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 shares of any class of Capital Stock of the Borrower or any
warrants or options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution (other than distributions payable
solely in common stock of the Borrower or options, warrants or other rights to
purchase common stock of the Borrower) in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of the Borrower or any
Subsidiary (any of the foregoing, a "Restricted Payment"), except:
(a) the Transactions and the other transactions expressly contemplated
by the Transaction Documents, including, without limitation, the Spin-Offs
and the Stock Repurchase;
(b) so long as no Default or Event of Default shall have occurred and be
continuing or would result therefrom, payments by the Borrower to repurchase
or otherwise acquire Capital Stock of the Borrower (including any options,
warrants or other rights in respect thereof) from officers, directors or
employees, and former officers, directors or employees, of the Borrower or
any of its Subsidiaries, or family members or relatives thereof, or trusts or
partnerships for the benefit of any of the foregoing, or any of their heirs,
executors, successors and legal representatives (all of the foregoing "Option
Purchases"), in an aggregate amount not to exceed the aggregate amount of
option proceeds received on or prior to the Effective Date pursuant to the
Transactions minus the aggregate principal amount of the Borrower's
Convertible Notes due 2001 outstanding or paid, prepaid or redeemed for
consideration other than common stock of the Borrower; provided that the
Leverage Ratio of the Borrower for its four fiscal quarters ended on the date
of the financial statements most recently furnished to the Lenders pursuant
to subsection 7.1, as adjusted to give effect to any Indebtedness incurred
since such date to finance Option Purchases, shall not exceed 6.00 to 1.00;
(c) so long as no Default or Event of Default shall have occurred and be
continuing or would result therefrom, any purchase or other acquisition of
Capital Stock of the Borrower that is used or is to be used within ten
Business Days as consideration in any Permitted Acquisition, including,
without limitation, the reacquisition of any such Capital Stock from escrow
or as part of a purchase price adjustment in connection with any Permitted
Acquisition, provided that the Borrower shall not hold more than $10,000,000
aggregate fair market value of its Capital Stock at any one time for such
92
purposes; and
(d) Restricted Payments in an aggregate not to exceed 6% of the
aggregate gross proceeds received by the Borrower in or from public offerings
of common stock of the Borrower after the Effective Date.
8.8 Limitation on Capital Expenditures. Make or commit to make any
Capital Expenditures (excluding any expenses incurred in connection with normal
replacement and maintenance programs properly charged to current operations, any
Reinvested Amounts and any asset acquired in connection with any Permitted
Acquisition, but including any asset acquired under a Financing Lease); provided
that the Borrower and its consolidated Subsidiaries may make Capital
Expenditures in an amount not to exceed, for any fiscal year of the Borrower set
forth below, an amount equal to the Borrower's Consolidated EBITDA for such
fiscal year multiplied by the percentage set forth opposite such fiscal year
below:
Fiscal Year Percentage
----------- ----------
1999 22.5%
2000 22.5%
2001 18.5%
2002 18.5%
2003 16.0%
2004 16.0%
2005 16.0%
2006 16.0%
provided that (x) 100% of the unused amount of any Capital Expenditures
permitted to be made during each of the first three fiscal years during the term
of this Agreement and not made during such fiscal year may be carried over and
expended during the next succeeding fiscal year (and any amount so carried over
to be deemed the first amount applied and expended for Capital Expenditures
during such next succeeding fiscal year) and (y) 50% of the unused amount of any
Capital Expenditures permitted to be made during each subsequent fiscal year and
not made during such fiscal year may be carried over and expended during the
next succeeding fiscal year (and any amount so carried over shall be deemed the
first amount applied and expended for Capital Expenditures during such next
succeeding fiscal year).
8.9 Limitation on Investments, Loans and Advances. Make any advance,
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets constituting a
business unit of, or make any other investment in (each an "Investment"), any
Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) Investments existing on the Effective Date and described in Schedule
8.9(c), setting forth the respective amounts of such Investments as of a
recent date;
93
(d) Investments in notes receivable in connection with transactions
permitted by subsection 8.6(c);
(e) loans and advances to officers, directors or employees of the
Borrower or any of its Subsidiaries and, in the case of loans and advances to
finance the acquisition of common stock of the Borrower, to immediate family
members or relatives thereof, or trusts or partnerships for the benefit of
any of the foregoing, or any of their heirs, executors, or legal
representatives, (i) in the ordinary course of business for travel and
entertainment or relocation expenses, (ii) existing on the Effective Date and
described in Schedule 8.9(c), (iii) made after the Effective Date for other
purposes, not to exceed (as to the Borrower and all its Subsidiaries),
together with the amount of all Guarantee Obligations permitted pursuant to
subsection 8.4(e)(iii), $5,000,000 in the aggregate outstanding at any time,
plus the net cash proceeds received by the Borrower since the Effective Date
from the issuance or sale of capital stock of the Borrower (including any
options, warrants or other rights in respect thereof) to any such Person and
(iv) relating to indemnification or reimbursement of any officers, directors
or employees in respect of liabilities relating to their serving in any such
capacity or as otherwise specified in Section 8.11;
(f) Investments by the Borrower in its Wholly Owned Subsidiaries (other
than any Receivables Subsidiary) and by such Subsidiaries in the Borrower and
in Wholly Owned Subsidiaries of the Borrower (other than any Receivables
Subsidiary);
(g) acquisitions expressly permitted by subsection 8.10;
(h) Investments of the Borrower under Interest Rate Protection
Agreements relating to Indebtedness of the Borrower under this Agreement and
Investments by the Borrower and its Subsidiaries under Permitted Hedging
Arrangements;
(i) any Investment by the Borrower and its Subsidiaries which, in the
judgment of the Borrower, is reasonably necessary in connection with, and
pursuant to, any Permitted Receivables Securitization;
(j) Investments in the nature of pledges or deposits with respect to
leases or utilities provided to third parties in the ordinary course of
business or otherwise described in subsection 8.3(c), (d) or (f);
(k) Investments representing non-cash consideration received by the
Borrower or any of its Subsidiaries in connection with any Asset Sale,
provided that in the case of any Asset Sale permitted under subsection
8.6(g), such non-cash consideration constitutes not more than 20% of the
aggregate consideration received in connection with such Asset Sale and any
such non-cash consideration received by the Borrower or any of its Material
Subsidiaries (other than Foreign Subsidiaries) is pledged to the
Administrative Agent for the benefit of the Lenders pursuant to the Security
Documents;
(l) Investments by the Borrower or any of its Subsidiaries in a Person
in connection with a joint venture or similar arrangement in respect of which
no other co-investor or other Person has a greater legal or beneficial
ownership interest than the
94
Borrower or such Subsidiary in an aggregate amount (after giving effect to
any repayments or other realized returns on prior Investments made under this
subsection 8.9(k)) not to exceed an amount equal to $25,000,000 at any one
time outstanding, provided that such amount shall be reduced by the aggregate
amount of the outstanding Guarantee Obligations permitted by subsection
8.4(l);
(m) Investments representing evidences of Indebtedness, securities or
other property received from another Person by the Borrower or any of its
Subsidiaries in connection with any bankruptcy proceeding or other
reorganization of such other Person or as a result of foreclosure, perfection
or enforcement of any Lien or exchange for evidences of Indebtedness,
securities or other property of such other Person held by the Borrower or any
of its Subsidiaries, provided that any such securities or other property
received by the Borrower or any of its Material Subsidiaries (other than
Foreign Subsidiaries) is pledged to the Administrative Agent for the benefit
of the Lenders pursuant to the Security Documents, and provided, further,
that in the event that the aggregate expected value of such securities or
other property received with respect to a Person is less than $500,000, the
Borrower or such Subsidiary may, rather than pledge such securities and other
property to the Administrative Agent, dispose of such securities and other
property within 180 days of the receipt thereof so long as the Net Cash
Proceeds of such Disposition are utilized to prepay the Loans pursuant to
subsection 4.4(c), and any such securities and other property not so disposed
of by such 180th day shall be pledged to the Administrative Agent for the
benefit of the Lenders pursuant to the Security Documents; and
(n) Investments not otherwise permitted by the preceding clauses of this
subsection 8.9 in an aggregate amount (after giving effect to any repayments
or other realized returns on prior Investments made under this subsection
8.9(n)) not to exceed $15,000,000 at any one time outstanding.
8.10 Limitations on Certain Acquisitions. Acquire by purchase, merger,
consolidation or otherwise all the business or assets of, or stock or other
evidences of beneficial ownership of, any Person or substantially all of the
assets and business of any Person or of any product line or unit of business of
any Person, except that the Borrower and its Subsidiaries shall be allowed to
make any such acquisition that is "non-hostile" so long as (a) such acquisition
is expressly permitted by subsection 8.5 or (b) (i) the target of such
acquisition is a Permitted Acquisition Target and (ii) after giving effect
thereto, no Default or Event of Default shall occur as a result of such
acquisition and, in the exercise of its best judgment, the Borrower shall
believe that the Borrower and its Subsidiaries will have adequate financial
liquidity to engage in their business in the ordinary course for the reasonably
foreseeable future (the making of any such acquisition and related borrowing, if
clause (iii) below does not apply, being deemed a representation and warranty by
the Borrower with respect to the matters set forth in clauses (i) and (ii)
above), and (iii) the Borrower provides a compliance certificate in form and
substance reasonably satisfactory to Administrative Agent issued by a
Responsible Officer of the Borrower and delivered three Business Days prior to
the consummation of such acquisition to the effect of clauses (i) and (ii) above
(excluding the parenthetical clause therein) and showing computations of
compliance with the financial covenants on a pro forma basis for the four most
recently ended fiscal quarters for which financial statements are available, if:
(x) such acquisition involves a cash purchase price of more than $25,000,000; or
(y) the cash purchase price of such acquisition,
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together with the aggregate cash purchase price of all other such acquisitions
during the then current fiscal quarter of the Borrower exceeds $50,000,000,
provided, however, that in making such computation any acquisition involving (1)
a cash purchase price of more than $25,000,000 or (2) a cash purchase price of
less than $1,000,000 (unless the aggregate cash purchase price of all
acquisitions in the same fiscal quarter of less than $1,000,000 exceeds
$10,000,000) shall be excluded; once a certificate has been provided for a
fiscal quarter pursuant to clause (iii)(y), the Borrower shall not be required
to deliver an additional certificate unless the aggregate purchase price of
additional acquisitions of the type referred to in clause (iii)(y) completed in
such quarter shall be equal to or greater than $50,000,000; and provided,
further, that the Borrower and its Subsidiaries shall be allowed to make
additional acquisitions in which the target of such acquisition is not a
Permitted Acquisition Target by reason of the fact that it does not have
positive Consolidated EBITDA for its most recent fiscal year, calculated as
provided above, so long as (A) the Borrower delivers a compliance certificate in
form and substance reasonably satisfactory to the Administrative Agent signed by
a Responsible Officer of the Borrower and delivered at least three Business Days
prior to the consummation of such acquisition showing that such target is
reasonably expected to have positive Consolidated EBITDA for the following
fiscal year calculated on a projected basis after giving effect to the
acquisition thereof by the Borrower or any of its Subsidiaries and after taking
into account any synergies such Responsible Officer reasonably believes will
result from such acquisition, and (B) the purchase price of such acquisition,
together with the sum of the purchase prices of each other acquisition during
the then current fiscal year of the Borrower pursuant to this proviso, does not
exceed $10,000,000.
8.11 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate of the
Borrower unless such transaction is (a) otherwise permitted under this
Agreement, and (b) upon 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 which is not an Affiliate; provided that
nothing contained in this subsection 8.11 shall be deemed to prohibit:
(i) the Borrower or any of its Subsidiaries from entering into
or performing any consulting, management or employment agreements or other
compensation arrangements with a director, officer or employee of the
Borrower or any of its Subsidiaries, provided that the annual aggregate base
cash compensation with respect to any such director, in his or her capacity
as such is not in excess of $100,000 for each such director;
(ii) the payment of transaction expenses in connection with
this Agreement, the Transactions and the other transactions related hereto
and thereto;
(iii) the Borrower or any of its Subsidiaries from entering
into, making payments or satisfying obligations pursuant to and otherwise
performing agreements in favor of CDR-PC Acquisition, CD&R, CD&R Fund V, the
Affiliates thereof and each person who becomes a director, officer, agent or
employee of the Borrower, the Borrower or any of their respective
Subsidiaries, pursuant to the CDR Agreements or in respect of liabilities (A)
arising under the Securities Act, the Exchange Act and any other applicable
securities laws or otherwise, in connection with any offering of securities
by the Borrower or any of its Subsidiaries, (B) incurred to third parties for
any action or failure
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to act of the Borrower or any of its Subsidiaries, predecessors or
successors, (C) arising out of the performance by CD&R of management
consulting or financial advisory services provided to the Borrower or any of
its Subsidiaries, (D) arising out of the fact that any indemnitee was or is a
director, officer, agent or employee of the Borrower or any of its
Subsidiaries, or is or was serving at the request of any such corporation as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or enterprise or (E) to the fullest extent permitted by
Delaware or other applicable state law, out of any breach or alleged breach
by such indemnitee of his or her fiduciary duty as a director or officer of
the Borrower or any of its Subsidiaries;
(iv) the Borrower or any of its Subsidiaries from performing
any agreements or commitments with or to any Affiliate existing on the
Effective Date and described on Schedule 8.11(iv);
(v) any transaction with any Receivables Subsidiary;
(vi) the Transactions and the other transactions expressly
contemplated by the Transaction Documents, including, without limitation, the
Spin-Offs and the Stock Repurchase; or
(vii) any transaction permitted under subsection 8.2(b), 8.4(c),
8.4(e), 8.4(h), 8.5, 8.6(f), 8.6(j), 8.7, 8.9(e), or 8.9(f), or any
transaction with a Wholly Owned Subsidiary of the Borrower.
For purposes of this subsection 8.11, (A) any transaction with any Affiliate
shall be deemed to have satisfied the standard set forth in subparagraph (b) of
the first sentence hereof if (i) such transaction is approved by a majority of
the Disinterested Directors of the Board of Directors of the Borrower or the
applicable Subsidiary, or (ii) in the event that at the time of any such
transaction, there are no Disinterested Directors serving on the Board of
Directors of the Borrower or such Subsidiary, such transaction shall be approved
by a nationally recognized expert with expertise in appraising the terms and
conditions of the type of transaction for which approval is required, and (B)
"Disinterested Director" shall mean, with respect to any Person and transaction,
a member of the Board of Directors of such Person who does not have any material
direct or indirect financial interest in or with respect to such transaction
other than by virtue of such member's ownership of capital stock of the Person.
8.12 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 (any of such
arrangements, a "Sale and Leaseback Transaction"), other than in connection with
any Disposition permitted under subsection 8.6, unless (a) in the case of any
Financing Lease pursuant to such arrangement, the incurrence of such Financing
Lease is permitted under subsection 8.2 or (b) in the case of any other lease
pursuant to such arrangements, the (i) lease payments thereunder will be treated
as an operating expense for purposes of determining Consolidated EBITDA and (ii)
the aggregate Net Cash Proceeds from all Sale and Leaseback Transactions
permitted by this clause (b) shall not during the term of this Agreement exceed
$50,000,000 plus the aggregate amount of such Net Cash Proceeds applied to
prepay the Loans pursuant to
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subsection 4.4(c).
8.13 Limitations on Dispositions of Collateral. Xxxxxx, sell, transfer,
lease, or otherwise dispose of any of the Collateral, or attempt, offer or
contract to do so, except for (a) mergers, consolidations, sales, leases,
transfers or other Dispositions expressly permitted under subsection 8.5 and (b)
sales or other Dispositions expressly permitted under subsection 8.6, including
sales of Inventory in the ordinary course of business; and the Administrative
Agent shall, and the Lenders hereby authorize the Administrative Agent to,
execute such releases of Xxxxx and take such other actions as the Borrower may
reasonably request in connection with the foregoing.
8.14 Limitation on Changes in Fiscal Year. Permit the fiscal year of the
Borrower or any of its Subsidiaries to end on a day other than the last Business
Day of April.
8.15 Limitation on Negative Pledge Clauses. Enter into with any Person
any agreement, other than (a) this Agreement and the other Loan Documents and
(b) any industrial revenue or development bonds, purchase money mortgages,
acquisition agreements or Financing Leases or agreements in connection with any
Permitted Receivables Securitization permitted by this Agreement (in which
cases, any prohibition or limitation shall only be effective against the assets
financed or acquired thereby) or operating leases of real property entered into
in the ordinary course of business, which prohibits or limits the ability of the
Borrower or any of its Subsidiaries (other than Foreign Subsidiaries) to create,
incur, assume or suffer to exist any Lien in favor of the Lenders with respect
to the obligations secured by the Security Documents upon any of its property,
assets or revenues, whether now owned or hereafter acquired.
8.16 Limitation on Lines of Business; Creation of Subsidiaries. Enter
into any business, either directly or through any Subsidiary, except for those
businesses of the same general type as those in which the Borrower and its
Subsidiaries are engaged on the date of this Agreement or which are related
thereto.
8.17 Limitation on Optional Payments and Modifications of Debt
Instruments and other Material Agreements. (a) Make any optional payment,
prepayment, repurchase or redemption of the Senior Subordinated Notes or make
any payments on account of or for a sinking or other analogous fund for the
repurchase, redemption, defeasance or other acquisition thereof (other than
scheduled payments of principal and interest and payments of, in each case, fees
and expenses required by the Senior Subordinated Notes or the Senior
Subordinated Note Indenture, only to the extent permitted under the
subordination provisions, if any, applicable thereto), (b) make any amendment,
supplement, modification or waiver of any of the terms of the Senior
Subordinated Notes or the Senior Subordinated Note Indenture (i) which amends or
modifies the subordination provisions contained in the Senior Subordinated Notes
and the Senior Subordinated Note Indenture; (ii) which shortens the fixed
maturity or increases the principal amount of, or increases the rate or shortens
the time of payment of interest on, or increases the amount or shortens the time
of payment of any principal or premium payable whether at maturity, at a date
fixed for prepayment or by acceleration or otherwise of the Indebtedness
evidenced by the Senior Subordinated Notes or increases the amount of, or
accelerates the time of payment of, any fees or other amounts payable in
connection therewith; (iii) which relates to any material affirmative or
negative covenants or any events of default or remedies thereunder and the
effect of which is to subject the Borrower, or any of its Subsidiaries, to any
more onerous
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or more restrictive provisions; or (iv) which otherwise adversely affects the
interests of the Lenders as senior creditors with respect to the Senior
Subordinated Notes or the interests of the Lenders hereunder in any material
respect or (c) in the event of the occurrence of a Change of Control, repurchase
the Senior Subordinated Notes, unless the Borrower shall have (i) made payment
in full of the Loans, all Reimbursement Obligations and any other amounts then
due and owing to any Lender or the Administrative Agent hereunder and under any
Note and cash collateralized the L/C Obligations on terms reasonably
satisfactory to the Administrative Agent or (ii) made an offer to pay the Loans,
all Reimbursement Obligations and any amounts then due and owing to each Lender
and the Administrative Agent hereunder and under any Note and to cash
collateralize the L/C Obligations in respect of each Lender and shall have made
payment in full thereof to each such Lender or the Administrative Agent which
has accepted such offer and cash collateralized the L/C Obligations in respect
of each such Lender which has accepted such offer.
8.18 Limitation on Optional Payments and Modifications of Tranche B
Terms. (a) Make any optional payment, prepayment or purchase of the Tranche B
Term Loans (other than scheduled payments or mandatory prepayments of principal
and interest or as part of an optional prepayment of the Term Loans pursuant to
the provisions of the Agreement) or (b) consent to any amendment of this
Agreement or enter into any other agreement that would have the effect of
changing (to earlier dates) any dates upon which payments of principal or
interest are due on the Tranche B Term Loans.
SECTION 9. COVENANTS APPLICABLE TO TRANCHE B TERM LOAN COMMITMENTS
AND TRANCHE B TERM LOANS
The Borrower hereby agrees that, until payment in full of all Tranche B
Loans, and any other amount then due and owing on account of the Tranche B Loans
to any Tranche B Lender or the Administrative Agent hereunder or under any Note:
(a) The covenants (the "Covenants") (together with the definitions of
such terms as may be used therein) as set forth in Schedule 9(a) are hereby
deemed to be incorporated herein by reference.
(b) The Borrower shall, and shall cause its Restricted Subsidiaries (as
defined in Schedule 9(a) to, observe and perform the Covenants, as such
Covenants may be amended, supplemented or otherwise modified from time to
time with the consent of the Required Tranche B Term Loan Lenders.
SECTION 10. EVENTS OF DEFAULT
10.1 Certain Bankruptcy Events. If any of the following events shall
occur and be continuing:
(a) Any Loan Party shall commence any case, proceeding or other action
(i) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for
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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 (ii) 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 any Loan Party shall make a general assignment for the
benefit of its creditors; or
(b) There shall be commenced against any Loan Party any case, proceeding
or other action of a nature referred to in clause (i) above which (i) results
in the entry of an order for relief or any such adjudication or appointment
or (ii) remains undismissed, undischarged, unstayed or unbonded for a period
of 60 days; or
(c) There shall be commenced against any Loan Party 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 which results in the entry of an order for any such relief which shall
not have been vacated, discharged, stayed or bonded pending appeal within 60
days from the entry thereof; or
(d) Any Loan Party shall take any corporate action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts
set forth in clause (a), (b), or (c) above; or
(e) Any Loan Party shall be generally unable to, or shall admit in
writing its general inability to, pay its debts as they become due;
then, and in any such event:
(A) if such event is an Event of Default specified in clause (a) or (b)
of this subsection 10.1 with respect to the Borrower, automatically the
Revolving Credit Commitments and Multi-Draw Term Loan Commitments shall
immediately terminate and the Loans hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement (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 specified in this
subsection 10.1, any or all of the following actions may be taken: (i) with
the consent of the Required Basic Lenders, the Administrative Agent may, or
upon the request of the Required Basic Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Revolving Credit Commitments
and/or the Tranche A Term Loan Commitments and/or the Multi-Draw Term Loan
Commitments to be terminated forthwith, whereupon the Revolving Credit
Commitments and/or the Tranche A Term Loan Commitments and/or the Multi-Draw
Term Loan Commitments (as the case may be) shall immediately terminate; (ii)
with the consent of the Required Basic Lenders, the Administrative Agent may,
or upon the request of the Required Basic Lenders, the Administrative Agent
shall, by notice to the Borrower, declare the Swing Line Loans and/or the
Revolving Credit Loans and/or the Tranche A Loans and/or the Multi-Draw Term
Loans hereunder (with accrued interest
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thereon) and all other amounts owing on account thereof under this Agreement
(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; (iii) with the
consent of the Required Tranche B Term Loan Lenders, the Administrative Agent
may, or upon the request of the Required Tranche B Term Loan Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Tranche B
Commitments to be terminated forthwith, whereupon the Tranche B Commitments
shall immediately terminate; and (iv) with the consent of the Required
Tranche B Term Loan Lenders, the Administrative Agent may, or upon the
request of the Required Tranche B Term Loan Lenders, the Administrative Agent
shall, by notice to the Borrower, declare the Tranche B Loans (with accrued
interest thereon) and all other amounts owing on account thereof under this
Agreement to be due and payable forthwith, whereupon the same shall
immediately become due and payable.
10.2 Other Events of Default Applicable to the Tranche A Commitments,
Revolving Credit Commitments, Multi-Draw Term Loan Commitments and Amounts Owing
Thereunder. If any of the following events shall occur and be continuing:
(a) The Borrower or Blue Star Group, as the case may be, shall fail to
pay any principal of any Revolving Credit Loan, Tranche A Term Loan or
Multi-Draw Term Loan or any Reimbursement Obligation when due in accordance
with the terms hereof; or the Borrower or Blue Star Group shall fail to pay
any interest on any Revolving Credit Loan, Tranche A Term Loan or Multi-Draw
Term Loan, or any other amount payable hereunder, within five days after any
such interest or other amount becomes due in accordance with the terms
hereof; or
(b) Any representation or warranty made or deemed made by any Loan Party
herein or in any other Loan Document (or in any amendment, modification or
supplement hereto or thereto) or which is contained in any certificate
furnished at any time by or on behalf of any Loan Party pursuant to this
Agreement or any such other Loan Document shall prove to have been incorrect
in any material respect on or as of the date made or deemed made; or
(c) Any Loan Party shall default in the observance or performance of any
agreement contained in (i) subsection 7.7(a), subsection 7.11, 7.12, Section
8 or Section 9 of this Agreement or (ii) Section 5 of the Guarantee and
Collateral Agreement, and, in the case of a default in the observance or
performance of its obligations under subsection 7.7(a) hereof, such default
shall have continued unremedied for a period of two days after a Responsible
Officer of the Borrower shall have discovered or should have discovered such
default; 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 subsection 10.2), and
such default shall continue unremedied for a period ending on the earlier of
(i) the date 32 days after a Responsible Officer of the Borrower shall have
discovered or should have discovered such default and (ii) the date 15 days
after written notice has been given to the Borrower by the Administrative
Agent or the Required Lenders; or
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(e) The Borrower or any of its Subsidiaries shall (i) default in any
payment of principal of or interest on any Indebtedness (other than the
Revolving Credit Loans, Tranche A Term Loans or Multi-Draw Term Loans and the
Reimbursement Obligations) in excess of $10,000,000 or in the payment of any
Guarantee Obligation in excess of $10,000,000, beyond the period of grace
(not to exceed 30 days), if any, provided in the instrument or agreement
under which such Indebtedness or Guarantee Obligation was created; or (ii)
default in the observance or performance of any other agreement or condition
relating to any Indebtedness or Guarantee Obligation referred to in clause
(i) above or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to permit
the holder or holders of such Indebtedness or beneficiary or beneficiaries of
such Guarantee Obligation (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause, with the giving of notice,
lapse of time or both if required, such Indebtedness to become due prior to
its stated maturity or such Guarantee Obligation to become payable (an
"Acceleration"), and such time shall have lapsed and, if any notice (a
"Default Notice") shall be required to commence a grace period or declare the
occurrence of an event of default before notice of Acceleration may be
delivered, such Default Notice shall have been given; or
(f) (i) Any of the Security Documents shall cease for any reason to be
in full force and effect (other than pursuant to the terms hereof or
thereof), or any Loan Party which is a party to any of the Security Documents
shall so assert in writing, or (ii) the Lien created by any of the Security
Documents shall cease to be perfected and enforceable in accordance with its
terms or of the same effect as to perfection and priority purported to be
created thereby with respect to any significant portion of the Collateral
(other than in connection with any termination of such Lien in respect of any
Collateral as permitted hereby or by any Security Document), and such failure
of such Lien to be perfected and enforceable with such priority shall have
continued unremedied for a period of 20 days; or
(g) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability
(net of any insurance or indemnity payments actually received in respect
thereof prior to or within 60 days from the entry thereof, or to be received
in respect thereof, in the event any appeal thereof shall be unsuccessful) of
$15,000,000 or more and all such judgments or decrees shall not have been
vacated, discharged, satisfied, stayed or bonded pending appeal within 60
days from the entry thereof; or
(h) Any Guarantee shall cease for any reason to be in full force and
effect (other than pursuant to the terms hereof or thereof) or any Guarantor
shall so assert in writing; or
(i) The Senior Subordinated Notes, for any reason, shall not be or shall
cease to be validly subordinated as provided therein and in the Senior
Subordinated Note Indenture to the monetary obligations of the Borrower under
this Agreement, any Notes and the other Loan Documents; or
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(j) A Change of Control shall have occurred; or
(k) Any event entitling the Persons financing Receivables pursuant to a
Permitted Receivables Securitization to stop financing such Receivables shall
have occurred and be continuing and such Person shall have stopped financing
such Receivables prior to the time such financing is scheduled to end; or
(l) Any Loan Document (other than this Agreement, any of the Security
Documents or any Guarantee) shall cease for any reason to be in full force
and effect (other than pursuant to the terms hereof or thereof) or any Loan
Party shall so assert in writing; or
(m) The Borrower shall (i) consent to liability in respect of an
adjustment in its federal income tax liability as a result of the Spin-Offs
of an amount which, to the extent it has not been paid, would cause the
Borrower not to be in compliance on a pro forma basis with subsection 8.1(b)
as of the end of the period for which the most recent financial statements
have been furnished to the Lenders under subsection 7.1, computed by treating
the amount of liability, reduced by the indemnification payments (if any)
with respect thereto reasonably expected to be received by the Borrower from
the Spin-Cos, as Indebtedness; or (ii) receive a statutory notice of
deficiency (or similar notice) from the Internal Revenue Service stating a
federal income tax deficiency as a result of the Spin-Offs and shall not,
within 60 days thereafter, commence appropriate proceedings challenging such
adjustment and provide to the Administrative Agent an opinion of Xxxxxx,
Xxxxxx & Xxxxxxxxx or other nationally recognized tax counsel to the effect,
with customary qualifications, that the Borrower is more likely than not
substantially to prevail in such proceedings or appeals therefrom, if the
federal income tax deficiency as a result of the Spin-Offs stated in such
notice of deficiency would cause the Borrower not to be in compliance on a
pro forma basis with subsection 8.1(b) as of the end of the period for which
the most recent financial statements have been furnished to the Lenders under
subsection 7.1, computed by treating the amount of such deficiency, reduced
by the indemnification payments (if any) with respect thereto reasonably
expected to be received by the Borrower from the Spin-Cos, as Indebtedness.
For purposes of determining whether the Borrower's payment of an adjustment
in its federal income tax liability as a result of the Spin-Offs would cause
the Borrower not to be in compliance on a pro forma basis with subsection
8.1(b) as of the end of the period for which the most recent financial
statements have been furnished to the Lenders under subsection 7.1, the
amount of the Borrower's payment shall be reduced by (x) indemnification
payments (if any) with respect thereto reasonably expected to be received by
the Borrower from the Spin-Cos, and (y) claims for refund of such tax
payments filed by the Borrower, as to which the Borrower has provided to the
Administrative Agent an opinion of Xxxxxx, Xxxxxx & Xxxxxxxxx or other
nationally recognized tax counsel to the effect, with customary
qualifications, that the Borrower is more likely than not substantially to
prevail in such claim for refund, including related court proceedings or
appeals therefrom.
then, and in any such event, either or both of the following actions may be
taken: (i) with the consent of the Required Basic Lenders, the Administrative
Agent may, or upon the request of the Required Basic Lenders, the Administrative
Agent shall, by notice to the Borrower, declare the
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Revolving Credit Commitments and/or the Tranche A Term Loan Commitments and/or
the Multi-Draw Term Loan Commitments to be terminated forthwith, whereupon the
Revolving Credit Commitments and/or the Tranche A Term Loan Commitments and/or
the Multi-Draw Term Loan Commitments shall immediately terminate; and (ii) with
the consent of the Required Basic Lenders, the Administrative Agent may, or upon
the request of the Required Basic Lenders, the Administrative Agent shall, by
notice to the Borrower, declare the Loans (other than the Tranche B Term Loans)
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement (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) and any Notes (other than any
Tranche B Term Loan Notes) to be due and payable forthwith, whereupon the same
shall immediately become due and payable.
10.3 Certain Events of Default Applicable to Tranche B Term Loan
Commitments and Amounts Owing Thereunder. If any of the following events shall
occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Tranche B Term
Loan when due in accordance with the terms hereof; or the Borrower shall fail
to pay any interest on any Tranche B Term Loan, or any other amount payable
on account thereof hereunder, within five days after any such interest or
other amount becomes due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made on or prior to
the Effective Date by any Loan Party herein or in any other Loan Document or
which is contained in any certificate furnished on or prior to the Effective
Date by or on behalf of any Loan Party pursuant to this Agreement or any such
other Loan Document shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) Prior to the termination of the Revolving Credit Commitments and the
Multi-Draw Term Loan Commitments and the payment in full of the Loans and any
other amounts then due and owing hereunder or under any Note the Borrower
shall default in the observance or performance of any agreement contained in
subsection 8.1 and such default shall continue unremedied for a period of 20
Business Days after the Borrower has or should have notified the
Administrative Agent in writing pursuant to subsection 7.7(a); or
(d) The Borrower shall default in the observance or performance of any
agreement contained in Section 7, and such default shall continue unremedied
for a period ending on the earlier of (i) the date 32 days after a
Responsible Officer of the Borrower shall have discovered or should have
discovered such default and (ii) the date 15 days after written notice has
been given to the Borrower by the Administrative Agent or the Required
Lenders; or
(e) The Borrower or any other Loan Party shall default in the observance
of performance of any agreement contained in Section 9 (and any grace period
provided in the Senior Subordinated Note Indenture with respect to the
relevant Covenant referred to in Section 9 shall have expired, with any such
grace period which commences upon
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notice from the Noteholders or the trustee thereunder to commence upon notice
from a comparable percentage of the Tranche B Term Loan Lenders or the
Agents) or subsection 8.17; or
(f) The Borrower or any of its Subsidiaries shall (i) default in any
payment of principal of or interest on any Indebtedness (other than the
Tranche B Term Loans) in excess of $10,000,000 or in the payment of any
Guarantee Obligation (other than in respect of the Tranche B Term Loans) in
excess of $10,000,000, beyond the period of grace (not to exceed 30 days), if
any, provided in the instrument or agreement under which such Indebtedness or
Guarantee Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any Indebtedness
or Guarantee Obligation referred to in clause (i) above or contained in any
instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice or lapse of
time if required, an Acceleration, and such time shall have lapsed and, a
Default Notice shall be required to commence a grace period or declare the
occurrence of an event of default before notice of Acceleration may be
delivered, such Default Notice shall have been given; provided, however, that
no Default or Event of Default shall exist under this paragraph unless in the
case of clause (ii) above only, (x) such default or other event or condition
shall have continued for a period of 60 days and (y) the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or administrative agent on behalf of such holder or
holders or beneficiary or beneficiaries) shall not have caused such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; or
(g) (i) Any of the Security Documents shall cease for any reason to be
in full force and effect (other than pursuant to the terms hereof or
thereof), or any Loan Party which is a party to any of the Security Documents
shall so assert in writing, or (ii) the Lien created by any of the Security
Documents shall cease to be perfected and enforceable in accordance with its
terms or of the same effect as to perfection and priority purported to be
created thereby with respect to any significant portion of the Collateral
(other than in connection with any termination of such Lien in respect of any
Collateral as permitted hereby or by any Security Document), and such failure
of such Lien to be perfected and enforceable with such priority shall have
continued unremedied for a period of 20 days; or
(h) Any Guarantee shall cease for any reason to be in full force and
effect (other than pursuant to the terms hereof or thereof) or any Guarantor
shall so assert in writing; or
(i) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability
(net of any insurance or indemnity payments actually received in respect
thereof prior to or within 60 days from the entry thereof, or to be received
in respect thereof, in the event any appeal thereof shall be unsuccessful) of
$15,000,000 or more and all such judgments or decrees shall not have
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been vacated, discharged, stayed, satisfied or bonded pending appeal within
60 days from the entry thereof; or
(j) A Change of Control shall have occurred;
then, and in any such event, either or both of the following actions may be
taken: (i) with the consent of the Required Tranche B Term Loan Lenders, the
Administrative Agent may, or upon the request of the Required Tranche B Term
Loan Lenders, the Administrative Agent shall, by notice to the Borrower, declare
the Tranche B Term Loan Commitments to be terminated forthwith, whereupon the
Tranche B Term Loan Commitments shall immediately terminate; and (ii) with the
consent of the Required Tranche B Term Loan Lenders, the Administrative Agent
may, or upon the request of the Required Tranche B Term Loan Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Tranche B
Term Loans to be due and payable forthwith, whereupon the same shall immediately
become due and payable.
10.4 Certain Provisions Applicable to Letters of Credit. With respect to
all Letters of Credit with respect to which presentment for honor shall not have
occurred at the time of an acceleration pursuant to subsection 10.1 or
subsection 10.2, 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. The Borrower hereby
grants to the Administrative Agent, for the benefit of the Issuing Lender and
the L/C Participants, a security interest in such cash collateral to secure all
obligations of the Borrower in respect of such Letters of Credit under this
Agreement and the other Loan Documents. The Borrower shall execute and deliver
to the Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, such further documents and instruments as the Administrative Agent
may request to evidence the creation and perfection of such security interest in
such cash collateral account. 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 have expired or been fully drawn upon, if any, shall be applied to
repay other obligations of the Borrower hereunder and under any Notes. 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 any Notes shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the
Borrower.
10.5 Certain Waivers. Except as expressly provided above in this
Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived.
SECTION 11. THE ADMINISTRATIVE AGENT
11.1 Appointment. (a) Each Lender hereby irrevocably designates and
appoints Chase as the Administrative Agent of such Lender under this Agreement
and the other Loan Documents, and each such Lender irrevocably authorizes Chase,
as the Administrative Agent for such Lender, 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 the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
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Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent and the Other Representatives shall not have any duties or
responsibilities, except, in the case of the Administrative Agent and the Other
Representatives, 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 the Administrative Agent or the Other
Representatives.
(b) Each Lender hereby irrevocably designates and appoints Bankers Trust
Company, as the Syndication Agent, and Xxxxxxx Xxxxx Capital Corporation, as
Documentation Agent, under this Agreement and the other Loan Documents.
Notwithstanding any provision to the contrary elsewhere in this Agreement,
neither the Syndication Agent nor the Documentation Agent shall have any duties
or responsibilities hereunder, 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 the Syndication Agent or the Documentation Agent,
provided, however, that each of the Syndication Agent and the Documentation
Agent may have duties and responsibilities in its capacity as Blue Star L/C
Issuing Lender or as a Lender.
11.2 Delegation of Duties. The Administrative 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. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact or counsel selected by it with reasonable care.
11.3 Exculpatory Provisions. None of the Administrative Agent or any
Other Representative nor any of their officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by such Person under or in connection with this
Agreement or any other Loan Document (except for the gross negligence or willful
misconduct of such Person or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates) or (ii) responsible in any manner to any of the
Lenders for any recitals, statements, representations or warranties made by the
Borrower or any other 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 Administrative
Agent 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 Notes or any other Loan Document or for any
failure of the Borrower or any other Loan Party to perform its obligations
hereunder or thereunder. Neither the Administrative Agent nor any Other
Representative shall be under any obligation to any Lender to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of the Borrower or any other Loan Party. Each
Lender agrees that, except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent hereunder or
given to the Administrative Agent for the account of or with copies for the
Lenders, the Administrative Agent and the Other Representatives shall not 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 the Borrower or any other Loan
Party which may come into the possession of the Administrative Agent and the
Other
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Representatives or any of their officers, directors, employees, agents,
attorneys-in-fact or affiliates.
11.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
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 limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified as between itself and the Lenders
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 Basic Lenders, the Required Tranche B Term Loan Lenders or the Required
Lenders as required by Section 12.1 or it shall first be indemnified to its
satisfaction by the Basic Lenders, the Tranche B Term Loan Lenders or the
Required Lenders as it deems appropriate against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action (other than any liability or expense resulting from its own
gross negligence or wilful misconduct). The Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement and any Notes and the other Loan Documents in accordance with a
request of the Basic Lenders, the Tranche B Term Loan Lenders or the Required
Lenders as required by Section 12.1, 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.
11.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has 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 receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action reasonably promptly with respect to, or permitted as a result of, any
Default or Event of Default, or any Acceleration of any amounts due hereunder as
shall be directed by the Required Basic Lenders, the Required Tranche B Term
Loan Lenders or the Required Lenders (depending upon whether such Default, Event
of Default or Acceleration relates to Basic Lenders, the Tranche B Term Loan
Lenders or both); 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, Event of Default or Acceleration as it shall deem advisable in
the best interests of the relevant Lenders. To the extent that, as a result of
the exercise by it of any remedies with respect to any Collateral, the
Administrative Agent shall receive or realize any amounts, it shall distribute
such amounts ratably among the Lenders by reference to the aggregate amounts
accrued and unpaid that are outstanding under the Agreement and the other Loan
Documents and owing to the respective Lenders (after deducting and applying any
amounts then owing to the Administrative Agent or on account of expenses of the
Administrative Agent previously paid by any Lender), and if the portion to be so
distributed to any Lenders shall exceed the sum then due and payable to such
Lenders, such excess shall be held by the Administrative Agent in a collateral
account for such
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Lenders.
11.6 Acknowledgements and Representations by Xxxxxxx. Each Lender
expressly acknowledges that none of the Administrative Agent or the Other
Representatives nor any of their officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to it
and that no act by the Administrative Agent or any Other Representative
hereafter taken, including any review of the affairs of the Borrower or any
other Loan Party, shall be deemed to constitute any representation or warranty
by the Administrative Agent or such Other Representative to any Lender. Each
Lender represents to the Administrative Agent, the Other Representatives and
each of the Loan Parties that, independently and without reliance upon the
Administrative Agent, the Other Representatives or any other Lender, and based
on such documents and information as it has deemed appropriate, it has made and
will make its own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of the Borrower and
the other Loan Parties, it has made its own decision to make its Loans hereunder
and enter into this Agreement and it will make its own decisions in taking or
not taking action under this Agreement and the other Loan Documents. Each Lender
represents to each other party hereto that it is a bank, savings and loan
association or other similar savings institution, insurance company, investment
fund or company or other financial institution which makes or acquires
commercial loans in the ordinary course of its business, that it is
participating hereunder as a Lender for its account and for such commercial
purposes, and that it has the knowledge and experience to be and is capable of
evaluating the merits and risks of being a Lender hereunder. Each Lender
acknowledges and agrees to comply with the provisions of subsection 12.6
applicable to the Lenders. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Administrative Agent
hereunder or given to the Administrative Agent for the account of or with copies
for the Lenders, the Administrative Agent shall not 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 the Borrower or any other Loan
Party which may come into the possession of the Administrative Agent or any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates.
11.7 Indemnification. The Lenders agree to indemnify the Administrative
Agent and the Other Representatives (provided that the Term Loan Lenders shall
have no obligation to indemnify the Issuing Lender) in their capacities as such
(to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower or any of the other Loan Parties to do so), ratably
according to their respective Total Credit Percentages in effect on the date on
which indemnification is sought under this subsection (or, if indemnification is
sought after the date upon which the Revolving Credit Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with their Total Credit Percentages immediately prior to such date), from and
against any and all liabilities, obligations, losses,
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damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Loans) be imposed on, incurred by or
asserted against the Administrative Agent or any Other Representative in any way
relating to or arising out of 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
the Administrative Agent or any Other Representative 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 to the extent
resulting from the Administrative Agent's or any Other Representative's gross
negligence or willful misconduct. The obligations to indemnify the Issuing
Lender shall be ratable among the Revolving Credit Lenders in accordance with
their respective Revolving Credit Commitments (or, if the Revolving Credit
Commitments have been terminated, the outstanding principal amount of their
respective Revolving Credit Loans and L/C Obligations and their respective
participating interests in the outstanding Letters of Credit). The agreements in
this subsection shall survive the payment of the Loans and all other amounts
payable hereunder.
11.8 Administrative Agent in Its Individual Capacity. The Administrative
Agent, the Other Representatives and their affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower or
any other Loan Party as though the Administrative Agent and the Other
Representatives were not the Administrative Agent and the Other Representatives
hereunder and under the other Loan Documents. With respect to Loans made or
renewed by them and any Note issued to them and with respect to any Letter of
Credit issued or participated in by them, the Administrative Agent and the Other
Representatives 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 they
were not the Administrative Agent or an Other Representative, and the terms
"Lender" and "Lenders" shall include the Administrative Agent in its individual
capacity.
11.9 Successor Administrative Agent. The Administrative Agent, the
Documentation Agent or the Syndication Agent may resign as such upon 10 days'
notice to the Lenders. 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 be approved by the Borrower (such approval
not to be unreasonably withheld), 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. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this subsection shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
11.10 Swing Line Lender. The provisions of this Section 11 shall apply
to the Swing Line Lender in its capacity as such to the same extent that such
provisions apply to the Administrative Agent.
11.11 Release of Liens in Connection with Permitted Receivables
Securitization. In connection with a Permitted Receivables Securitization, the
Borrower may deliver to the Administrative Agent a written request for release
identifying the relevant Receivables and the terms of such Permitted Receivables
Securitization in reasonable detail together with a certification by the
Borrower stating that such transaction is in compliance with this Agreement. The
Administrative Agent shall execute and deliver to the Borrower (at the sole cost
and expense of the Borrower) all releases and other documents (including,
without limitation, Uniform Commercial Code termination statements) necessary or
reasonably desirable for the release of
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the Liens created by the Guarantee and Collateral Agreement on such Receivables
as the Borrower may reasonably request, provided that the Loans have been
prepaid and/or the Revolving Credit Commitments shall have been reduced in
accordance with subsection 4.4. Each of the Lenders hereby authorizes the
Administrative Agent to deliver such releases or other documents.
SECTION 12. MISCELLANEOUS
12.1 Amendments and Waivers. (a) Neither this Agreement nor any other
Loan Document, nor any terms hereof or thereof, may be amended, supplemented or
modified except in accordance with the provisions of this subsection. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (x) enter into with the Borrower
and the other Loan Parties, as the case may be, written amendments, supplements
or modifications hereto and to the other Loan Documents for the purpose of
adding any provisions to this Agreement or the other Loan Documents or changing
in any manner the rights or obligations of the Lenders or of the Borrower and
the other Loan Parties, as the case may be, hereunder or thereunder or (y) at
the Borrower's or another Loan Party's request, on such terms and conditions as
the Required Lenders or the Administrative Agent, as the case may be, may
specify in such instrument, waive 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) reduce the amount or extend the scheduled date of maturity
of any Loan or any Reimbursement Obligation or of any scheduled installment
thereof, or 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 Lender's Revolving Credit Commitment or
Multi-Draw Term Loan Commitment, in each case, without the written consent of
each Lender directly affected thereby,
(ii) amend, modify or waive any provision of subsection 12.5 or
this subsection 12.1 or reduce the percentage specified in the definition of
Required Lenders or of Required Release Lenders, or consent to the assignment
or transfer by any Loan Party of any of its rights and obligations under this
Agreement and the other Loan Documents (other than pursuant to subsection
8.5), in each case, without the written consent of all the Lenders,
(iii) release any Guarantee or, in the aggregate, a material
portion of the Collateral without the written consent of the Required Release
Lenders, except as expressly permitted hereby or by any Guarantee or Security
Document (as such documents are in effect on the date hereof or, if later,
the date of execution and delivery thereof in accordance with the terms
hereof),
(iv) amend, modify or waive any provision of (x) subsection 2.6
(to the extent such subsection 2.6 relates to the Tranche A Term Loans) or
2.7 without the written consent of Tranche A Term Loan Lenders, the Tranche A
Term Loan Percentages of which aggregate more than 50%, (y) subsection 2.6
(to the extent such subsection 2.6 relates to the Tranche B Term Loans) or
2.8 without the written consent of the Required
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Tranche B Term Loan Lenders or (z) subsection 2.6 (to the extent that
subsection 2.6 relates to the Multi-Draw Term Loans) or 2.9 or 2.11 without
the consent of Multi-Draw Term Loan Lenders the Multi-Draw Term Loan
Percentages of which aggregate more than 50%,
(v) amend, modify or waive any provision of subsection 2.1,
2.2, 2.3, 2.4, 2.5 or Section 3 without the written consent of the Revolving
Credit Lenders, the Revolving Credit Commitment Percentages of which
aggregate more than 50%,
(vi) amend, modify or waive any provision of Section 11 without
the written consent of the then Administrative Agent and of any Other
Representative affected thereby,
(vii) amend, modify or waive any prepayment required by
subsection 4.4(c), 4.4(d) or 4.4(e) without the written consent of Tranche A
Term Loan Lenders, Tranche B Term Loan Lenders and Multi-Draw Term Loan
Lenders having in the aggregate more than 50% of the sum of the outstanding
Term Loans and Available Multi-Draw Term Loan Commitments,
(viii) amend, modify or waive the order of application of
prepayments specified in subsection 4.4(e) or 4.4(g) without the written
consent of (w) Revolving Credit Lenders the Revolving Credit Commitment
Percentages of which aggregate more than 50%, (x) Tranche A Term Loan Lenders
the Tranche A Term Loan Percentages of which aggregate more than 50%, (y) the
Required Tranche B Term Loan Lenders and (z) Multi-Draw Term Loan Lenders the
Multi-Draw Term Loan Percentages of which aggregate more than 50%,
(ix) amend, modify or waive any provision of the Swing Line
Note (if any) or subsection 2.5 without the written consent of the Swing Line
Lender and each other Lender, if any, which holds or is required to purchase
a participation in the Swing Line Loan pursuant to subsection 2.5(d),
(x) amend, modify or waive the provisions of Section 3, any
Letter of Credit or any L/C Obligation without the written consent of each
relevant Issuing Lender and Revolving Credit Lenders the Revolving Credit
Commitment Percentages of which aggregate more than 50%.
(xi) (A) amend, modify or waive any provision of subsection 6.2
or Section 5 (after the Effective Date only) 7 or 8 (other than subsection
8.17) or subsection 10.2 or any definitions to the extent used therein or,
(B) waive any Default or Event of Default under subsection 10.2 or any
consequences of such Default or Event of Default, in each case, without the
written consent of the Required Basic Lenders (it being agreed that the
consent of the Required Lenders shall not be required for any such amendment,
modification or waiver);
(xii) (A) amend, modify or waive any provision of Section 9 (or
any of the covenants incorporated therein by reference) or subsection 10.3 or
any definitions to the extent used therein or (B) waive any Default or Event
of Default under subsection 10.3 or
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any consequences of such Default or Event of Default, in each case, without
the written consent of the Required Tranche B Term Loan Lenders (it being
agreed that the consent of the Required Lenders shall not be required for any
such amendment, modification or waiver);
(xiii) reduce the percentage specified in the definition of
Required Tranche B Term Loan Lenders without the written consent of all of
the Tranche B Term Loan Lenders; or reduce the percentage specified in
Required Basic Lenders without the written consent of all of the Basic
Lenders; or
(xiv) amend, modify or waive any provision of any Security
Document that provides for the ratable sharing by the Lenders of the proceeds
of any realization on the Collateral to provide for a non-ratable sharing
thereof, without the written consent of the Required Release Lenders.
Any waiver and any amendment, supplement or modification pursuant to this
subsection 12.1 shall apply to each of the Lenders and shall be binding upon the
Borrower, the other Loan Parties, the Lenders, the Administrative Agent and all
future holders of the Loans. In the case of any waiver, the Borrower, the other
Loan Parties, the Lenders and the Administrative Agent 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.
12.2 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 by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, or, in the case of delivery by a nationally recognized overnight
courier, when received, addressed as follows in the case of the Borrower, Blue
Star Group and the Administrative Agent, and as set forth in Schedule I in the
case of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of the Loans:
The Borrower and U.S. Office Products Company
and the Blue 0000 Xxxxxx Xxxxxxxxx Xxxxxx, X.X.
Star Group: Suite 600 East
Washington D.C. 20007
Attention: Xxxxxx X. Xxxxx and Mark Director
Telecopy: (000) 000-0000
Blue Star Group Limited
Coopers & Xxxxxxx Building
00-00 Xxxxxx Xxxxxx
P.O. Box 0000
Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxxx
113
Attention: Xxxxxxx Xxxx, CFO
Telecopy: (011) (64) (0) 000-0000
with a copy to: Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Washington, D.C. 20037
Attention: Xxxxxx Xxxxxx/Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
with a copy to: c/o Clayton, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
Telecopy: (000) 000-0000
with a copy to: Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Administrative The Chase Manhattan Bank
Agent, Swing Line 000 Xxxx Xxxxxx
Xxxxxx xxx Xxxxxxx Xxx Xxxx, Xxx Xxxx 00000
Lender Attention: Xxxxxxxx Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to: The Chase Manhattan Bank
c/o The Loan & Agency Services Group
Xxx Xxxxx Xxxxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, New York 10081
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to: The Chase Manhattan Bank, Delaware
c/o Corporate Banking Dept.
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.3, 2.10, 3.2, 4.2, 4.4 or 4.8 shall not
be effective until received.
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12.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Administrative Agent, any Lender or any Loan
Party, 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 rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
12.4 Survival of Representations and Warranties. All representations and
warranties made hereunder and in the other Loan Documents (or in any amendment,
modification or supplement hereto or thereto) and in any certificate delivered
pursuant hereto or such other Loan Documents shall survive the execution and
delivery of this Agreement and the making of the Loans hereunder.
12.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent and the Other Representatives for all their
reasonable out-of-pocket costs and expenses incurred in connection with the
preparation, execution and delivery of, and any amendment, supplement, waiver 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 (including the syndication of the Revolving
Credit Commitments and Term Loans, the Administrative Agent's due diligence
investigation and any collateral audit) contemplated hereby and thereby,
including, without limitation, the reasonable fees and disbursements of one firm
of counsel and of local counsel to the Administrative Agent and the Other
Representatives, (b) to pay or reimburse each Lender, each Other Representative
and the Administrative Agent for all its respective reasonable costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the reasonable fees and disbursements
of one firm of counsel and of local counsel to the Administrative Agent, the
Other Representatives and the several Lenders, and any reasonable Environmental
Costs arising out of or in any way relating to any Loan Party or any property in
which any Loan Party has had any interest at any time, (c) to pay, and indemnify
and hold harmless each Lender, the Administrative Agent and the Other
Representatives from and against, 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, and indemnify and hold harmless each Lender, the
Administrative Agent and the Other Representatives (and their respective
directors, officers, employees, agents, successors and assigns) 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 (whether or not caused by any such Person's own negligence
(other than gross negligence) and including, without limitation, the reasonable
fees and disbursements of counsel) with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Loan
Documents and any such other documents (regardless of whether the Administrative
Agent, any such Other Representative or any Lender is a party to the litigation
or other proceeding giving rise thereto) and any of the
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transactions contemplated hereby or thereby, including, without limitation, any
of the foregoing relating to the violation of, noncompliance with, or liability
under, any Environmental Laws or any orders, requirements or demands of
Governmental Authorities related thereto applicable to the operations of the
Borrower, any of its Subsidiaries or any of the Properties (all the foregoing in
this clause (d), collectively, the "Indemnified Liabilities"), provided that the
Borrower shall not have any obligation hereunder to the Administrative Agent,
any such Other Representative or any Lender with respect to Environmental Costs
or Indemnified Liabilities arising from (i) the gross negligence or willful
misconduct of the Administrative Agent, any Other Representative or any such
Lender (or any of their respective directors, officers, employees, agents,
successors and assigns) or (ii) legal proceedings commenced against the
Administrative Agent, any Other Representative or any such Lender by any
securityholder or creditor thereof arising out of and based upon rights afforded
any such securityholder or creditor solely in its capacity as such.
Notwithstanding the foregoing, except as provided in clauses (b) and (c) above,
the Borrower shall have no obligation under this subsection 12.5 to the
Administrative Agent, any Other Representative or any Lender with respect to any
tax, levy, impost, duty, charge, fee, deduction or withholding imposed, levied,
collected, withheld or assessed by any Governmental Authority. The agreements in
this subsection shall survive repayment of the Loans and all other amounts
payable hereunder.
12.6 Successors and Assigns; Participations and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower, Blue
Star Group, the Lenders, the Administrative Agent, the Other Representatives,
all future holders of the Loans and their respective successors and assigns,
except that the Borrower or Blue Star Group, as the case may be, may not, other
than in accordance with subsection 8.5, assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("Participants") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Revolving Credit Commitment of such
Lender or any other interest of such Lender hereunder and under the other Loan
Documents; provided that (unless the Borrower and the Administrative Agent
otherwise consent in writing) no such participating interests shall be in an
aggregate principal amount of less than (i) in the case of Tranche A Term Loans,
Multi-Draw Term Loans, Multi-Draw Term Loan Commitments and Revolving Credit
Commitments, $5,000,000 in the aggregate (or, if less, the full amount of such
selling Lender's Revolving Credit Loans, Multi-Draw Term Loans, Multi-Draw Term
Loan Commitments, Tranche A Term Loans and Revolving Credit Commitments) or (ii)
in the case of Tranche B Term Loans, $5,000,000 (or, if less, the full amount of
such selling Lender's Tranche B Term Loans). Such sale of participating
interests need not be ratable as among the Tranche A Term Loans, the Multi-Draw
Term Loans, the Multi-Draw Term Loan Commitments, the Revolving Credit
Commitments and the Tranche B Term Loans of such Lender. 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 (and
any Note evidencing such Loan) for all purposes under this Agreement and the
other Loan Documents and the Borrower, Blue Star Group, and the Administrative
Agent shall continue to deal solely and directly with such Lender in connection
with such Xxxxxx's rights and obligations under this Agreement and the other
Loan Documents, and such Lender shall be solely responsible for any
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withholding taxes or any filing or reporting requirements relating to such
Participant. Any agreement pursuant to which any Lender shall sell any such
participating interest shall provide that such Lender shall retain the sole
right and responsibility to exercise such Lender's rights and enforce the
Borrower's and Blue Star Group's obligations hereunder, including the right to
consent to any amendment, supplement, modification or waiver of any provision of
this Agreement or any of the other Loan Documents, provided that such
participation agreement may provide that such Lender will not agree to any
amendment, supplement, modification or waiver described in clause (i) or (ii) of
the proviso to the second sentence of subsection 12.1 without the consent of the
Participant. The Borrower and Blue Star Group agree that each Lender shall be
entitled to the benefits of subsections 4.9, 4.10, 4.11, 4.12, 12.1 and 12.5
without regard to whether it has granted any participating interests, and that
all amounts payable to a Lender under subsections 4.9, 4.10, 4.11, 4.12 and 12.5
shall be determined as if such Lender had not granted any such participating
interests.
(c) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to any
Lender or any affiliate thereof or to any Approved Fund or, with the prior
written consent of the Administrative Agent and the Borrower or Blue Star Group,
as the case may be, (which in each case shall not be unreasonably withheld), to
an additional bank, savings and loan association or other similar savings
institution, insurance company, investment fund or company or other financial
institution (an "Assignee") all or any part of its rights and obligations under
this Agreement and any Notes, including, without limitation, its Revolving
Credit Commitments and Loans, pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit H, (an "Assignment and Acceptance")
executed by such Assignee such assigning Lender (and, in the case of an Assignee
that is not then a Lender or an affiliate thereof, or an Approved Fund, by the
Borrower and the Administrative Agent) and delivered to the Administrative Agent
for its acceptance and recording in the Register; provided that (i) (unless the
Administrative Agent and the Borrower or Blue Star Group, as the case may be,
otherwise consent in writing (such consent not to be unreasonably withheld)) no
such transfer to an Assignee (other than a Lender or any affiliate thereof or
any Approved Fund) shall be in an aggregate principal amount less than (x) in
the case of Tranche A Term Loans, Multi-Draw Term Loans, Multi-Draw Term Loan
Commitments and Revolving Credit Commitments, $5,000,000 in the aggregate (or,
if less, the full amount of such assigning Lender's Tranche A Term Loans,
Multi-Draw Term Loans, Multi-Draw Term Loan Commitments, Revolving Credit Loans
and Revolving Credit Commitments) or (y) in the case of Tranche B Term Loans,
$5,000,000 (or, if less, the full amount of such assigning Lender's Tranche B
Term Loans) and (ii) if any Lender assigns all or any part of its rights and
obligations under this Agreement to one of its affiliates in connection with or
in contemplation of the sale or other disposition of its interest in such
affiliate, the Borrower's prior written consent shall be required for such
assignment. Any such assignment shall be ratable as between the Tranche A Term
Loans, the Multi-Draw Term Loans, the Multi-Draw Term Loan Commitments and the
Revolving Credit Commitments of such Lender unless the Administrative Agent and
the Borrower otherwise consent in writing, but need not be ratable as between
the Tranche A Term Loans, the Multi-Draw Term Loans, the Multi-Draw Term Loan
Commitments and the Revolving Credit Commitments of such Lender, on the one
hand, and the Tranche B Term Loans of such Lender, on the other hand. Upon such
execution, delivery, acceptance and recording, 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 a Revolving Credit Commitment, Multi-Draw Term Loan Commitment, Tranche A
Term Loan, Tranche B Term
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Loan and Multi-Draw Term Loan as set forth therein, and (y) the assigning Lender
thereunder shall be released from its obligations under this Agreement to the
extent that such obligations shall have been expressly assumed by the Assignee
pursuant to such Assignment and Acceptance (and, in the case of an Assignment
and Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such assigning Lender shall cease
to be a party hereto but shall nevertheless continue to be entitled to the
benefits of subsections 4.10, 4.11, 4.12 and 12.5). Notwithstanding the
foregoing, no Assignee, which as of the date of any assignment to it pursuant to
this subsection 12.6(c) would be entitled to receive any greater payment under
subsection 4.10 or 4.11 than the assigning Lender would have been entitled to
receive as of such date under such subsections with respect to the rights
assigned, shall be entitled to receive such payments unless the Borrower has
consented in writing to the assignment after disclosure of such fact.
(d) The Administrative Agent, on behalf of the Borrower shall maintain
at its address referred to in subsection 12.2 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 Revolving Credit Commitment
of, and the principal amount of the Loans owing to, and the Notes evidencing
such Loans owed by, each Lender from time to time. Notwithstanding anything in
this Agreement to the contrary, the Borrower, Blue Star Group, the
Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register as the owner of the Loan, the Notes and the Revolving
Credit Commitments recorded therein for all purposes of this Agreement and the
other Loan Documents. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Notwithstanding anything in this Agreement to the contrary, no
assignment under subsection 12.6(c) of any rights or obligations under or in
respect of the Loans or the Notes evidencing such Loans shall be effective
unless and until the Administrative Agent shall have recorded the assignment
pursuant to subsection 12.6(d). Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an Assignee (and, in the case of an Assignee
that is not then a Lender or an affiliate thereof, by the Administrative Agent
and the Borrower), together with payment to the Administrative Agent of a
registration and processing fee of $3,500 (which fee need not be paid in the
case of any assignment to an affiliate or Approved Fund of the assigning
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 prompt notice of such
acceptance and recordation to the Lenders and the Borrower. On or prior to such
effective date, the assigning Lender shall surrender any outstanding Notes held
by it all or a portion of which are being assigned, and the Borrower or Blue
Star Group, as the case may be, at its own expense, shall, upon the request to
the Administrative Agent by the assigning Lender or the Assignee, as applicable,
execute and deliver to the Administrative Agent (in exchange for the outstanding
Notes of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note,
Tranche B Term Note, Multi-Draw Term Note and/or Swing Line Note, as the case
may be (such new Note to be a new QFL Note in the case of an assignment of a QFL
Note), to the order of such Assignee in an amount equal to (i) in the case of a
Revolving Credit Note, the lesser of (A) the amount of such Assignee's Revolving
Credit Commitment and (B) the aggregate principal amount of all Revolving Credit
Loans made by such Assignee, (ii) in the case of a Tranche A Term Note, the
amount of such Assignee's Tranche A Term Loan, (iii) in the case of a Tranche B
Term Note, the amount of such
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Assignee's Tranche B Term Loan, (iv) in the case of a Swing Line Note, the
lesser of (A) the Swing Line Commitment and (B) the aggregate principal amount
of all Swing Line Loans made by such Assignee and (v) in the case of a
Multi-Draw Term Loan Note, the lesser of (A) such Assignee's Multi-Draw Term
Loan Commitment and (B) the aggregate principal amount of all Multi-Draw Term
Loans made by such Assignee, in each case with respect to the relevant Loan,
Swing Line Commitment, Revolving Credit Commitment or Multi-Draw Term Loan
Commitment after giving effect to such Assignment and Acceptance and, if the
assigning Lender has retained a Swing Line Commitment, Revolving Credit
Commitment or Multi-Draw Term Loan Commitment or Term Loan hereunder, a new
Revolving Credit Note, Tranche A Term Note, Tranche B Term Note, Multi-Draw Term
Loan Note and/or Swing Line Note, as the case may be, to the order of the
assigning Lender in an amount equal to (i) in the case of a Revolving Credit
Note, the lesser of (A) the amount of such Lender's Revolving Credit Commitment
and (B) the aggregate principal amount of all Revolving Credit Loans made by
such Lender, (ii) in the case of a Tranche A Term Note, the amount of such
Lender's Tranche A Term Loan, (iii) in the case of a Tranche B Term Note, the
amount of such Lender's Tranche B Term Loan, (iv) in the case of a Swing Line
Note, the lesser of (A) the Swing Line Commitment and (B) the aggregate
principal amount of all Swing Line Loans made by such Lender and (v) in the case
of a Multi-Draw Term Loan Note, the lesser of (A) such Lender's Multi-Draw Term
Loan Commitment and (B) the aggregate principal amount of all Multi-Draw Term
Loans made by such Lender, in each case with respect to the relevant Loan, Swing
Line Commitment or Revolving Credit Commitment after giving effect to such
Assignment and Acceptance. Any such new Notes shall be dated the Effective Date
and shall otherwise be in the form of the Note replaced thereby. Any Notes
surrendered by the assigning Xxxxxx shall be returned by the Administrative
Agent to the Borrower marked "cancelled".
(f) The Borrower authorizes each Lender to disclose to any Participant
or Assignee (each, a "Transferee") and any prospective Transferee, subject to
the provisions of subsection 12.15, any and all information in such Xxxxxx's
possession concerning the Borrower and its Affiliates which has been delivered
to such Lender by or on behalf of the Borrower pursuant to this Agreement or
which has been delivered to such Lender by or on behalf of the Borrower in
connection with such Xxxxxx's credit evaluation of the Borrower and its
Affiliates prior to becoming a party to this Agreement. No assignment or
participation made or purported to be made to any Transferee shall be effective
without the prior written consent of the Borrower if it would require the
Borrower to make any filing with any Governmental Authority or qualify any Loan
or Note under the laws of any jurisdiction, and the Borrower shall be entitled
to request and receive such information and assurances as it may reasonably
request from any Lender or any Transferee to determine whether any such filing
or qualification is required or whether any assignment or participation is
otherwise in accordance with applicable law.
(g) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection 12.6 concerning assignments relate only
to absolute assignments and that such provisions do not prohibit assignments
creating security interests, including any pledge or assignment by a Lender of
any Loan or Note to any Federal Reserve Bank in accordance with applicable law,
provided that any foreclosure or similar action shall be subject to the
provisions of this subsection concerning assignments and shall be void and of no
force or effect unless effected in compliance with such provisions.
12.7 Adjustments; Set-off. (a) If any Lender (a "Benefitted Lender")
shall at any
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time receive any payment of all or part of its Revolving Credit Loans, Term
Loans or the Reimbursement Obligations owing to it, or interest thereon, 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 10.1, or otherwise (except pursuant to subsection 4.4, 4.13(d) or
12.6)), in a greater proportion than any such payment to or collateral received
by any other Lender, if any, in respect of such other Lender's Revolving Credit
Loans, Term Loans or the Reimbursement Obligations, as the case may be, owing to
it, or interest thereon, such Benefitted Lender shall purchase for cash from the
other Lenders a participating interest in such portion of each such other
Lender's Revolving Credit Loans, Term Loans or the Reimbursement Obligations, as
the case may be, owing to it, or shall provide such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such Benefitted Lender to share the excess payment or benefits of such
collateral or proceeds 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 the occurrence of an Event of Default under Section 10.1 to
set-off and appropriate and apply against any amount then due and payable under
Section 10.1 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 set-off and application made by such Lender,
provided that the failure to give such notice shall not affect the validity of
such set-off and application.
12.8 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be delivered to the Borrower, and the
Administrative Agent.
12.9 Severability. Any provision of this Agreement which 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.
12.10 Integration. This Agreement and the other Loan Documents represent
the entire agreement of the Borrower, the other Loan Parties, the Administrative
Agent and the Lenders with respect to the subject matter hereof, and there are
no promises, undertakings, representations or warranties by the Borrower, the
other Loan Parties, the Administrative Agent or any Lender relative to the
subject matter hereof not expressly set forth or referred to herein or in the
other Loan Documents.
12.11 GOVERNING LAW. THIS AGREEMENT AND ANY NOTES AND
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THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND ANY NOTES
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS
THEREOF.
12.12 Submission To Jurisdiction; Waivers. (a) Each party hereto hereby
irrevocably and unconditionally:
(i) 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;
(ii) 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 forum and agrees not to plead or
claim the same;
(iii) 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,
Blue Star Group, the applicable Lender or the Administrative Agent, as the
case may be, at the address specified in subsection 12.2 or at such other
address of which the Administrative Agent, any such Lender, the Borrower and
Blue Star Group shall have been notified pursuant thereto;
(iv) 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
sue in any other jurisdiction; and
(v) 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 subsection any punitive damages.
(b) Blue Star Group hereby agrees to irrevocably and unconditionally
appoint the Borrower as its agent for service of process (in such capacity, the
"New York Process Agent"), to receive on behalf of Blue Star Group and its
property service of copies of the summons and complaint and any other process
which may be served in any action or proceeding in any such New York State or
Federal court described in paragraph (a) of this subsection and agrees promptly
to appoint a successor New York Process Agent in The City of New York (which
successor New York Process Agent shall accept such appointment in a writing
reasonably satisfactory to the Administrative Agent) prior to the termination
for any reason of the appointment of the initial New York Process Agent. In any
such action or proceeding in such New York State or Federal court, such service
may be made on Blue Star Group by delivering a copy of such process to Blue Star
Group in care of the New York Process Agent at the New York Process Agent's
address and by depositing a copy of such process in the mails by certified or
registered air mail, addressed to Blue Star Group at its address specified in
subsection 12.2 (such
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service to be effective upon such receipt by the New York Process Agent and the
depositing of such process in the mails as aforesaid). Blue Star Group hereby
irrevocably and unconditionally authorizes and directs the New York Process
Agent to accept such service on its behalf. As an alternate method of service,
Blue Star Group irrevocably and unconditionally consents to the service of any
and all process in any such action or proceeding in such New York State or
Federal court by mailing of copies of such process to Blue Star Group by
certified or registered air mail at its address specified in subsection 12.2.
Blue Star Group agrees that, to the fullest extent permitted by applicable law,
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
(c) To the extent that Blue Star Group has or hereafter may acquire any
immunity (sovereign or otherwise) from any legal action, suit or proceeding,
from jurisdiction of any court or from set-off or any legal process (whether
service or notice, attachment prior to judgment, attachment in aid of execution
of judgment, execution of judgment or otherwise) with respect to itself or any
of its property, Blue Star Group hereby irrevocably waives and agrees not to
plead or claim such immunity in respect of its obligations under the Loan
Documents.
12.13 Acknowledgements. The Borrower and Blue Star Group hereby
acknowledge 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 Administrative Agent nor any Other Representative or
Xxxxxx has any fiduciary relationship with or duty to the Borrower or Blue
Star Group arising out of or in connection with this Agreement or any of the
other Loan Documents, and the relationship between the Administrative Agent
and Lenders, on the one hand, and the Borrower, or Blue Star Group, as the
case may be, on the other hand, in connection herewith or therewith is solely
that of creditor and debtor; and
(c) no joint venture is created hereby or by the other Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby and
thereby among the Lenders or among the Borrower, Blue Star Group and the
Lenders.
12.14 WAIVER OF JURY TRIAL. THE BORROWER, BLUE STAR GROUP, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
12.15 Judgment Currency. (a) The obligations of each Loan Party
hereunder and under the other Loan Documents to make payments in a specified
currency (the "Obligation Currency") shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in or converted into any
currency other than the Obligation Currency, except to the extent that such
tender or recovery results in the effective receipt by the Administrative Agent
or a Lender of the full amount of the Obligation Currency expressed to be
payable to the
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Administrative Agent or such Lender under this Agreement or the other Loan
Documents. If, for the purpose of obtaining or enforcing judgment against any
Loan Party in any court or in any jurisdiction, it becomes necessary to convert
into or from any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "Judgment Currency") an amount due
in the Obligation Currency, the conversion shall be made, at the rate of
exchange (as quoted by the Administrative Agent or if the Administrative Agent
does not quote a rate of exchange on such currency, by a known dealer in such
currency designated by the Administrative Agent) determined, in each case, as of
the Business Day immediately preceding the date on which the judgment is given
(such Business Day being hereinafter referred to as the "Judgment Currency
Conversion Date").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, each relevant Loan Party agrees to pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount), as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.
(c) For purposes of determining any rate of exchange or currency
equivalent for this Section, such amounts shall include any premium and costs
payable in connection with the purchase of the Obligation Currency.
12.16 Confidentiality. Each of the Administrative Agent and each Lender
(including their successors and assigns) on behalf of itself and each of its
Affiliates, directors, officers, employees, agents, advisors and representatives
agrees to keep confidential any written or oral information (a) provided to it
by or on behalf of the Borrower, Blue Star Group or any of their Subsidiaries
pursuant to or in connection with this Agreement or (b) obtained by such Lender
based on a review of the books and records of the Borrower, Blue Star Group or
any of their Subsidiaries; provided that nothing herein shall prevent any Lender
from disclosing any such information (i) to the Administrative Agent or any
other Lender, (ii) to any Transferee or prospective Transferee which agrees to
comply with the provisions of this subsection, (iii) to its Affiliates, Approved
Funds, its Subsidiaries and the employees, directors, agents, attorneys,
accountants and other professional advisors of it, its Affiliates, Approved
Funds, and its Subsidiaries, provided that such Lender shall inform each such
Person of the agreement under this subsection 12.16 and shall take reasonable
actions to cause compliance by any such Person referred to in this clause (iii)
with this Agreement (including, to cause any such Person to acknowledge its
agreement to be bound by the provisions of this subsection 12.16), (iv) upon the
request or demand of any Governmental Authority having jurisdiction over such
Lender or to the extent required in response to any order of any court or other
Governmental Authority or as shall otherwise be required pursuant to any
Requirement of Law, provided that such Lender shall, unless prohibited by any
Requirement of Law, notify the Borrower of any disclosure pursuant to this
clause (iv) as far in advance as is reasonably practicable under such
circumstances except that such Lender may make required disclosures to federal
or state banking or other examiners and regulators without notifying the
Borrower, (v) which has been publicly disclosed other than in breach of this
Agreement, (vi) in connection with the exercise of any remedy hereunder, (vii)
in connection with periodic regulatory examinations, (viii) in connection with
any litigation to
123
which such Lender may be a party, subject to the proviso in clause (iv), (ix) to
any 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 (A) has
been approved in writing by the Borrower and (B) agrees in a writing enforceable
by the Borrower to be bound by the provisions of this subsection 12.16) and (x)
if, prior to such information having been so provided or obtained, such
information was already in the Administrative Agent's or a Xxxxxx's possession
on a nonconfidential basis without a duty of confidentiality to the Borrower or
Blue Star Group being violated.
124
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.
U.S. OFFICE PRODUCTS COMPANY
By:______________________________________
Title:
BLUE STAR GROUP LIMITED
By:______________________________________
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent, Swing Line
Lender, Issuing Lender and Lender
By:______________________________________
Title:
BANKERS TRUST COMPANY, as Syndication Agent
and Lender
By:______________________________________
Title:
XXXXXXX XXXXX CAPITAL CORPORATION, as
Documentation Agent and
Lender
By:______________________________________
Title:
BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION
By:______________________________________
Title:
Address for Notices:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
BANKBOSTON, N.A.
By:______________________________________
Title:
Address for Notices:
Diversified Finance
XX 00-00-00
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
THE BANK OF NEW YORK
By:______________________________________
Title:
Address for Notices:
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
BHF - BANK AKTIENGESELLSCHAFT
By:______________________________________
Title:
By:______________________________________
Title:
Address for Notices:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
BARCLAYS BANK PLC
By:______________________________________
Title:
Address for Notices:
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Xxxxxxxx: (000) 000-0000
Telephone: (000) 000-0000
CITICORP USA, INC.
By:______________________________________
Title:
Address for Notices:
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
NATIONSBANK, N.A.
By:______________________________________
Title:
Address for Notices:
0000 Xxxxxxxxx Xxxxx, 0xx Xx
Xxxxxxxxx, XX 00000-1876
Xxxxxxx Xxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
XXXXX XXXX BANK CO., LTD., NEW YORK AGENCY
By:______________________________________
Title:
Address for Notices:
One World Financial Center, 30th Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
CITY NATIONAL BANK
By:______________________________________
Title:
Address for Notices:
000 Xxxxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
CREDIT AGRICOLE INDOSUEZ
By:______________________________________
Title:
By:______________________________________
Title:
Address for Notices:
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN
By:______________________________________
Title:
By:______________________________________
Title:
Address for Notices:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
FIRST UNION NATIONAL BANK
By:______________________________________
Title:
Address for Notices:
F.C. 1-8-10-69
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
GENERAL ELECTRIC CAPITAL CORPORATION
By:______________________________________
Title:
Address for Notices:
GE Capital - Commercial Finance
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
XXXXXX FINANCIAL, INC.
By:______________________________________
Title:
Address for Notices:
000 Xxxx Xxxxxx Xx.
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
HIBERNIA NATIONAL BANK
By:______________________________________
Title:
Address for Notices:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
IMPERIAL BANK, A CALIFORNIA BANKING CORPORATION
By:______________________________________
Title:
Address for Notices:
0000 Xxxxx Xx Xxxxxxx Xxxxxxxxx, Xxxx. 0000
Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
NATIONAL BANK OF CANADA, A CANADIAN CHARTERED BANK
By:______________________________________
Title:
By:______________________________________
Title:
Address for Notices:
000 Xxxx Xxxxx Xx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
NATIONAL CITY BANK
By:______________________________________
Title:
Address for Notices:
Telecopy:
Telephone:
THE SAKURA BANK LIMITED
By:______________________________________
Title:
Address for Notices:
000 Xxxx Xxxxxx, 00xx Xx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxx Xxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
SOUTHERN PACIFIC BANK
By:______________________________________
Title:
Address for Notices:
00000 Xxxxxxxx Xxxx.
Los Angeles, CA 90025
Attn: Xxxxxx Xxxxxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
THE SUMITOMO BANK, LIMITED
By:______________________________________
Title:
Address for Notices:
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
THE MITSUBISHI TRUST & BANKING CORPORATION
By:______________________________________
Title:
Address for Notices:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
CYPRESSTREE INVESTMENT MANAGEMENT COMPANY,
As: Attorney-in-Fact and on behalf of
First Allmerica Financial
Life Insurance Company as Portfolio
Manager
By:______________________________________
Title:
Address for Notices:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Telecopy: 000-000-0000
Telephone:000-000-0000
ALLSTATE INSURANCE COMPANY
By:______________________________________
Title:
By:______________________________________
Title:
Address for Notices:
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000-7127
Attn: Xxxxxxx Xxxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
ALLSTATE LIFE INSURANCE COMPANY
By:______________________________________
Title:
By:______________________________________
Title:
Address for Notices:
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000-7127
Attn: Xxxxxxx Xxxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
BALANCED HIGH-YIELD FUND I LTD.
by: BHF-BANK AKTIENGESELLSCHAFT, acting
through its New York
Branch , as attorney-in-fact
By:______________________________________
Title:
By:______________________________________
Title:
Address for Notices:
c/o BHF-Bank
000 Xxxxxxx Xxx, 00xx Xx
Xxx Xxxx, XX
Attn: Xxxxx Xxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
CYPRESS TREE INVESTMENT FUND, LLC
By:______________________________________
Title:
Address for Notices:
Telecopy:
Telephone:
DEEPROCK & COMPANY
by: Xxxxx Xxxxx Management, as Investment Advisor
By:______________________________________
Title:
Address for Notices:
c/o Boston Management and Research
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
FIRST COMMERCIAL BANK, NEW YORK
By:______________________________________
Title:
Address for Notices:
0 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
KZH-ING-2 CORPORATION
By:______________________________________
Title:
Address for Notices:
c/o The Chase Manhattan Bank
000 Xxxx 00xx Xx, 00xx Xx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
KZH - SOLEIL-2 CORPORATION
By:______________________________________
Title:
Address for Notices:
c/o The Chase Manhattan Bank
000 Xxxx 00xx Xx, 00xx Xx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
NATIONAL WESTMINSTER BANK PLC
by: NatWest Capital Markets, Limited, its agent
by: Greenwich Capital Markets , Inc., its agent
By:______________________________________
Title:
Address for Notices:
c/o American Money Management Corp.
Xxx Xxxx Xxxxxx Xx, 0xx Xx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
PARIBAS CAPITAL FUNDING LLC
By:______________________________________
Title:
Address for Notices:
000 Xxxxxxx Xxxxxx, 00xx Xx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
PRIME INCOME TRUST
By:______________________________________
Title:
Address for Notices:
c/o Xxxx Xxxxxx InterCapital, Inc.
Two World Trade Center, 00xx Xx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By:______________________________________
Title:
Address for Notices:
Xxx Xxxxxx American Capital
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
and
State Street Bank & Trust
Corporate Trust Department
P.O. Box 778
Boston, MA 02102
Attn: Xxxx Xxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
XXX XXXXXX AMERICAN CAPITAL SENIOR
FLOATING RATE FUND
By:______________________________________
Title:
Address for Notices:
Xxx Xxxxxx American Capital
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
and
State Street Bank & Trust
Corporate Trust Department
P.O. Box 778
Boston, MA 02102
Attn: Xxxx Xxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
KZH-IV CORPORATION
By:______________________________________
Title:
Address for Notices:
000 X.00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxxx X. Xxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
KZH-CYPRESSTREE-1 CORPORATION
By:______________________________________
Title:
Address for Notices:
000 X.00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxxx X. Xxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
KZH CRESCENT-2 CORPORATION
By:______________________________________
Title:
Address for Notices:
000 X.00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxxx X. Xxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
KZH-ING-2 CORPORATION
By:______________________________________
Title:
Address for Notices:
000 X.00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxxx X. Xxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
Schedule I
Commitments and Addresses
Schedule II
Applicable Margin and Commitment Fee Step-Downs
Step-Downs for Revolving Credit Loans, Tranche A Term Loans, Multi-Draw Term
Loans and Commitment Fees
Leverage Eurodollar Loans ABR Loans
Ratio Applicable Margin Applicable Margin Commitment Fee
--------- ------------------ ------------------ ----------------
greater than 5.00 to 1 2.25% 1.25% 0.500%
greater than 4.50 to 1 2.00% 1.00% 0.500%
greater than 4.00 to 1 1.75% 0.75% 0.375%
greater than 3.50 to 1 1.50% 0.50% 0.375%
-----
greater than 3.00 to 1 1.25% 0.25% 0.300%
less than or equal to 3.00 to 1.00% 0.00% 0.300%
1
Step-Downs for Tranche B Term Loans
Eurodollar Loans
Leverage Applicable ABR Loans Applicable
Ratio Margin Margin
--------- ------------------- ----------------------
greater than 5.00 to 1 2.50% 1.50%
greater than 4.50 to 1 2.25% 1.25%
greater than 4.00 to 1 2.00% 1.00%
greater than 3.50 to 1 2.00% 1.00%
greater than 3.00 to 1 2.00% 1.00%
less than or equal to 3.00 to 1 2.00% 1.00%
Schedule III
to Credit Agreement
Indicative Terms of Permitted Receivables Securitizations
Transaction Summary: The Borrower may establish, directly or indirectly, one
or more special purpose, bankruptcy remote subsidiaries
(collectively, the "Receivables Company") that will
purchase, on a revolving basis, all or a designated
portion of the trade account receivables, together with
any designated assets related to such receivables such
as agreements, security arrangements, guarantees and
other related assets (collectively, the "Receivables"),
generated by the Borrower and its subsidiaries. The
purchases of the Receivables by the Receivables Company
will be financed in part by the creation of a
receivables facility, with or without external credit
enhancement, in which ownership interests in, or notes,
commercial paper, certificates or other debt instruments
secured by or representing beneficial interests in the
Receivables (such ownership interests, notes, commercial
paper, certificates or instruments, the "Receivables
Securities") will be sold in one or more registered
public offerings, private placements, or other available
capital markets transactions by the Receivables Company
or an unaffiliated special purpose entity. If the
financing is provided through an unaffiliated special
purpose entity, the Borrower may or may not elect to
create a Receivables Company to implement the
transaction.
Interest Rate on
Receivables Securities: Under the terms of the definitive documentation for the
creation and issuance of the Receivables Securities (the
"Receivables Facility Documents"), the Receivables
Securities will bear interest or have an equivalent
yield thereon at a rate that at the time of issuance the
Borrower reasonably expects to be less than the interest
rate provided for on the Revolving Credit Loans
(including, in the case of a fixed rate offering of
Receivables Securities, the interest rate swap
equivalent in respect thereof on the date of issuance
thereof).
Limited Recourse: The transfer of Receivables by the Borrower to the
Receivables Company will be made with limited recourse.
The Borrower may be liable under the Receivables
Facility
Documents for customary recourse events, and in any
event may be liable for (a) the breach of certain
representations and warranties (consistent with similar
financing transactions of this type) set forth therein,
(b) the aggregate amount of any dilution with respect to
any transferred Receivables, (c) its other agreements
and obligations (consistent with similar financing
transactions of this type) under the Receivables
Facility Documents, (d) any obligations incurred in
respect of any underwriting or placement agency
agreements entered into in connection with the offering
of the Receivables Securities, (e) its servicing
obligations and (f) customary indemnification and
repurchase provisions.
Default/Termination/
Amortization Events
Under the Receivables
Facility Documents: The Receivables Facility Documents may contain customary
defaults/termination/amortization events, and in any
event may contain the following
defaults/termination/amortization events: failure to
pass certain performance tests, including maintenance of
a minimum amount of eligible receivables outstanding or
generated during a specified period, a maximum dilution
ratio, delinquency ratio, default ratio, and maximum
days sales outstanding ratio; nonpayment of amounts when
due; violation of covenants; failure of any
representation or warranty to be true in all material
respects; cross-acceleration to Borrower's credit
facilities; bankruptcy events with respect to all
parties to the transaction; change in control; material
judgments; tax and ERISA matters; and actual or asserted
(by the Borrower, the Receivables Company or any of
their affiliates) invalidity of any Receivables Facility
Documents or security or beneficial interests
thereunder; and such other events as are required by any
rating agency rating the Receivables Securities.
Schedule IV
Equity Investors
CDR-PC Acquisition, L.L.C.
Schedule V
Subsidiary Guarantors
Schedule VI
Blue Star Subsidiary Guarantors
SCHEDULE I
LENDERS; COMMITMENTS
-----------------------------------------------------------------------------------------------------------------------------------
Multi-Draw Tranche A Tranche B
Revolving Credit Term Loan Term Loan Term Loan
Lender Commitment Commitment Commitment Commitment
-----------------------------------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank $16,545,454.55 $15,636,389.64 $ 6,818,181.82 $347,000,000.00
Bankers Trust Company $15,909,090.91 $12,727,272.73 $ 6,363,636.36 $31,000,000.00
Xxxxxxx Xxxxx Capital Corporation $15,000,000.00 $12,000,000.00 $ 6,000,000.00 $11,000,000.00
Barclays Bank PLC $13,636,363.64 $10,909,080.91 $ 5,454,545.45 $10,000,000.00
Bank of America National Trust and Savings Association $13,636,363.64 $10,909,080.91 $ 5,454,545.45 $10,000,000.00
Citicorp USA, Inc. $13,636,363.64 $10,909,080.91 $ 5,454,545.45 $10,000,000.00
BHF - Bank Aktiengesellschaft $13,636,363.64 $10,909,080.91 $ 5,454,545.45 $10,000,000.00
NationsBank, N.A. $13,636,363.64 $10,909,080.91 $ 5,454,545.45
The Bank of New York $11,363,636.36 $ 9,090,909.09 $ 4,545,454.55
General Electric Capital Corporation $11,363,636.36 $ 9,090,909.09 $ 4,545,454.55 $10,000,000.00
National Bank of Canada, A Canadian Chartered Bank $11,363,636.36 $ 9,090,909.09 $ 4,545,454.55
Southern Pacific Bank $11,363,636.36 $ 9,090,909.09 $ 4,545,454.55
Credit Agricole Indosuez $ 9,090,909.09 $ 7,272,727.27 $ 3,636,363.64
First Union National Bank $ 6,818,181.82 $ 5,454,545.45 $ 2,727,272.73
The Mitsubishi Trust & Banking Corporation $ 6,818,181.82 $ 5,454,545.45 $ 2,727,272.73
City National Bank $ 6,818,181.82 $ 5,454,545.45 $ 2,727,272.73
Xxxxx Xxxx Bank Co., Ltd., New York Agency $ 6,818,181.82 $ 5,454,545.45 $ 2,727,272.73
Xxxxxx Financial, Inc. $ 6,818,181.82 $ 5,454,545.45 $ 2,727,272.73
Erste Bank Der Oesterreichischen Sparkassen $ 6,818,181.82 $ 5,454,545.45 $ 2,727,272.73
Hibernia National Bank $ 6,818,181.82 $ 5,454,545.45 $ 2,727,272.73
The Sakura Bank Limited $ 6,818,181.82 $ 5,454,545.45 $ 2,727,272.73
First Commerical Bank, New York $ 8,000,000.00 $ 4,000,000.00 $ 3,000,000.00
National City Bank $ 4,545,454.55 $ 3,636,363.64 $ 1,818,181.82
The Sumitomo Bank Limited $ 4,545,454.55 $ 3,636,363.64 $ 1,818,181.82 $ 5,000,000.00
1
-----------------------------------------------------------------------------------------------------------------------------------
Multi-Draw Tranche A Tranche B
Revolving Credit Term Loan Term Loan Term Loan
Lender Commitment Commitment Commitment Commitment
-----------------------------------------------------------------------------------------------------------------------------------
BankBoston, N.A. $ 4,545,454.55 $ 3,636,363.64 $ 1,818,181.82 $ 5,000,000.00
Imperial Bank, a California Banking Corporation $ 3,636,363.64 $ 2,909,090.91 $ 1,454,545.45
KZH - IV Corporation $65,000,000.00
Xxx Xxxxxx American Capital Prime Rate Income Trust $45,000,000.00
Prime Income Trust $20,000,000.00
KZH - Soleil - 2 Corporation $15,000,000.00
National Westminster Bank PLC $15,000,000.00
KZH - ING - 2 Corporation $10,000,000.00
Paribas Capital Funding LLC $10,000,000.00
Xxx Xxxxxx American Capital Senior Floating Rate $10,000,000.00
Fund
Allstate Insurance Company $6,666,666.67
KZH - CypressTree - 1 Corporation $8,000,000.00
Balanced High-Yield Fund I Ltd. $5,000,000.00
KZH - Crescent 2 Corporation $5,000,000.00
First Allmerica Financial Life Insurance $5,000,000.00
Allstate Life Insurance Company $3,333,333.33
Cypress Tree Investment Fund, LLC $2,000,000.00
Deeprock & Company $1,000,000.00
-----------------------------------------------------------------------------------------------------------------------------------
TOTAL $250,000,000.00 $200,000,000.00 $100,000,000.00 $675,000,000.00
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
2
Schedule 9(a)
-------------
I. COVENANTS APPLICABLE TO TRANCHE B TERM LOAN COMMITMENTS AND
TRANCHE B TERM LOANS
As used in this Schedule, the terms defined in part II of this Schedule
shall have the meanings set forth therein.
I.1. Limitation on Indebtedness. (a) The Borrower will not, and will
not permit any Restricted Subsidiary to, Incur any Indebtedness; provided,
however, that the Borrower or any Note Guarantor may Incur Indebtedness if on
the date of the Incurrence of such Indebtedness, after giving effect to the
Incurrence thereof, the Consolidated Coverage Ratio would be greater than
1.75:1.00 if such Indebtedness is Incurred prior to June 15, 2001 or 2.00:1.00
if such Indebtedness is Incurred thereafter.
(b) Notwithstanding the foregoing paragraph (a), the Borrower and its
Restricted Subsidiaries may Incur the following Indebtedness:
(i) Indebtedness Incurred pursuant to the Credit Agreement
(including but not limited to Indebtedness in respect of letters of
credit or bankers' acceptances issued or created hereunder) and
Indebtedness of any Foreign Subsidiary Incurred other than under the
Credit Agreement, and (without limiting the foregoing), in each case,
any Refinancing Indebtedness in respect thereof, in a maximum principal
amount at any time outstanding not exceeding in the aggregate the
amount equal to (A) $1,350.0 million, plus (B) the amount, if any, by
which the Borrowing Base exceeds $400.0 million, plus (C) in the case
of any refinancing of the Credit Agreement or any portion thereof, the
aggregate amount of fees, underwriting discounts, premiums and other
costs and expenses incurred in connection with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the
Borrower or (B) of the Borrower or any Restricted Subsidiary to any
Restricted Subsidiary; provided that any subsequent issuance or
transfer of any Capital Stock of such Restricted Subsidiary to which
such Indebtedness is owed, or other event, that results in such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
other subsequent transfer of such Indebtedness (except to the Borrower
or a Restricted Subsidiary) will be deemed, in each case, an Incurrence
of such Indebtedness by the issuer thereof;
(iii) Indebtedness represented by the Notes (other than any
Additional Notes), any Indebtedness (other than the Indebtedness
described in clauses (i) or (ii) above) outstanding on the Issue Date
and any Refinancing Indebtedness Incurred in respect of any
Indebtedness described in this clause (iii) or paragraph (a) above;
(iv) Purchase Money Obligations and Capitalized Lease
Obligations, and any Refinancing Indebtedness with respect thereto, in
an aggregate principal amount at any time outstanding not exceeding an
amount equal to 3.5% of Consolidated Total Assets at any time
outstanding;
(v) Indebtedness of any Foreign Subsidiary Incurred for
working capital purposes;
(vi) (A) Guarantees by the Borrower or any Restricted
Subsidiary of Indebtedness or any other obligation or liability of the
Borrower or any Restricted Subsidiary (other than any Indebtedness
incurred by the Borrower or such Restricted Subsidiary, as the case may
be, in violation of this Section I.1), or (B) without limiting Section
I.6 of this Schedule, Indebtedness of the Borrower or any Restricted
Subsidiary arising by reason of any Lien granted by or applicable to
such Person securing Indebtedness of the Borrower or any Restricted
Subsidiary (other than any Indebtedness Incurred by the Borrower or
such Restricted Subsidiary, as the case may be, in violation of the
covenant described under this Section I.1);
(vii) Indebtedness of the Borrower or any Restricted
Subsidiary (A) arising from the honoring of a check, draft or similar
instrument of such Person drawn against insufficient funds, provided
that such Indebtedness is extinguished within five Business Days of its
incurrence, or (B) consisting of guarantees, indemnities, obligations
in respect of earn-outs or other purchase price adjustments, or similar
obligations, Incurred in connection with the acquisition or disposition
of any business, assets or Person (including pursuant to the Strategic
Restructuring);
(viii) Indebtedness of the Borrower or any Restricted
Subsidiary in respect of (A) letters of credit, bankers' acceptances or
other similar instruments or obligations issued, or relating to
liabilities or obligations incurred, in the ordinary course of business
(including those issued to governmental entities in connection with
self-insurance under applicable workers' compensation statutes), or (B)
completion guarantees, surety, judgment, appeal or performance bonds,
or other similar bonds, instruments or obligations, provided, or
relating to liabilities or obligations incurred, in the ordinary course
of business, or (C) Hedging Obligations entered into for bona fide
hedging purposes in the ordinary course of business, or (D) Management
Guarantees or (E) the financing of insurance premiums in the ordinary
course of business;
(ix) Indebtedness of a Receivables Subsidiary secured by a
Lien on all or part of the assets disposed of in, or otherwise incurred
in connection with, a Financing Disposition;
(x) Indebtedness of any Person that is assumed by the
Borrower or any Restricted Subsidiary in connection with its
acquisition of assets from such Person or any Affiliate thereof or is
issued and outstanding on or prior to the date on which such Person was
acquired by the Borrower or any Restricted Subsidiary or merged or
consolidated with or into any Restricted Subsidiary (other than
Indebtedness Incurred to finance, or otherwise in connection with, such
acquisition), provided that on the date of such acquisition, merger or
consolidation, after giving effect thereto, (x) with respect to any
such Indebtedness of the Borrower, any Foreign Subsidiary or any Note
Guarantor, (A) the Borrower could Incur at least $1.00 of additional
Indebtedness pursuant to paragraph (a) above or (B) the Consolidated
Coverage Ratio is greater than it was on such date immediately prior to
giving effect to such acquisition and (y) with respect to any such
2
Indebtedness of any Domestic Subsidiary that is not a Note Guarantor,
the Borrower could Incur at least $1.00 of additional Indebtedness
pursuant to paragraph (a) above; and any Refinancing Indebtedness with
respect to any such Indebtedness;
(xi) Indebtedness of any Restricted Subsidiary in an
aggregate principal amount at any time outstanding for all such
Indebtedness not exceeding (A) an amount equal to 5% of Consolidated
Total Assets, provided that either on the date of Incurrence of such
Indebtedness after giving effect thereto, the Borrower could Incur at
least $1.00 of additional Indebtedness pursuant to paragraph (a) above,
or such Indebtedness is Refinancing Indebtedness in respect of any such
Indebtedness initially so Incurred, or (B) otherwise, an amount equal
to 2.5% of Consolidated Total Assets;
(xii) Indebtedness of the Borrower or any Restricted
Subsidiary in an amount at any time outstanding not exceeding twice the
amount of Excluded Contributions made after the Issue Date, provided
that the proceeds of such Indebtedness and the related amount of such
Excluded Contributions are used to finance the acquisition of assets
from any Person in a Related Business or the merger or consolidation of
such a Person into or with the Borrower or any Restricted Subsidiary
(including but not limited to payment of any related fees and
expenses), or to refinance any such acquisition, merger or
consolidation with such Indebtedness being Incurred for such
refinancing within nine months of the closing of such acquisition,
merger or consolidation; and any Refinancing Indebtedness with respect
to any such Indebtedness; and
(xiii) Indebtedness of the Borrower or any Restricted
Subsidiary in an aggregate principal amount at any time outstanding not
exceeding an amount equal to 5% of Consolidated Total Assets.
(c) For purposes of determining compliance with, and the outstanding
principal amount of any particular Indebtedness Incurred pursuant to and in
compliance with, this covenant, (i) any other obligation of the obligor on such
Indebtedness (or of any other Person who could have Incurred such Indebtedness
under this Section I.1) arising under any Guarantee, Lien or letter of credit,
bankers' acceptance or other similar instrument or obligation supporting such
Indebtedness shall be disregarded to the extent that such Guarantee, Lien or
letter of credit, bankers' acceptance or other similar instrument or obligation
secures the principal amount of such Indebtedness; (ii) in the event that
Indebtedness meets the criteria of more than one of the types of Indebtedness
described in paragraph (b) above, the Borrower, in its sole discretion, shall
classify such item of Indebtedness and only be required to include the amount
and type of such Indebtedness in one of such clauses; and (iii) the amount of
Indebtedness issued at a price that is less than the principal amount thereof
shall be equal to the amount of the liability in respect thereof determined in
accordance with GAAP.
(d) For purposes of determining compliance with any Dollar-denominated
restriction on the Incurrence of Indebtedness denominated in a foreign currency,
the Dollar-equivalent principal amount of such Indebtedness Incurred pursuant
thereto shall be calculated based on the relevant currency exchange rate in
effect on the date that such Indebtedness was Incurred, in the case of term
Indebtedness, or first committed, in the case of revolving credit Indebtedness,
provided that (x) the Dollar-equivalent principal amount of any such
Indebtedness outstanding on the Issue Date shall be calculated based on the
relevant currency exchange rate in effect on the
3
Issue Date, (y) if such Indebtedness is Incurred to refinance other Indebtedness
denominated in a foreign currency, and such refinancing would cause the
applicable Dollar-denominated restriction to be exceeded if calculated at the
relevant currency exchange rate in effect on the date of such refinancing, such
Dollar-denominated restriction shall be deemed not to have been exceeded so long
as the principal amount of such refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being refinanced and (z) the
Dollar-equivalent principal amount of Indebtedness denominated in a foreign
currency and Incurred pursuant to the Credit Agreement shall be calculated based
on the relevant currency exchange rate in effect on, at the Borrower's option,
(i) the Issue Date, (ii) any date on which any of the respective commitments
under the Credit Agreement shall be reallocated between or among facilities or
subfacilities thereunder, or on which such rate is otherwise calculated for any
purpose thereunder, or (iii) the date of such Incurrence. The principal amount
of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a
different currency from the Indebtedness being refinanced, shall be calculated
based on the currency exchange rate applicable to the currencies in which such
respective Indebtedness is denominated that is in effect on the date of such
refinancing.
I.2. Limitation on Restricted Payments. (a) The Borrower shall not, and
shall not permit any Restricted Subsidiary, directly or indirectly to (i)
declare or pay any dividend or make any distribution on or in respect of its
Capital Stock (including any such payment in connection with any merger or
consolidation to which the Borrower is a party) except (x) dividends or
distributions payable solely in its Capital Stock (other than Disqualified
Stock) and (y) dividends or distributions payable to the Borrower or any
Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making
such dividend or distribution, to other holders of its Capital Stock on no more
than a pro rata basis, measured by value), (ii) purchase, redeem, retire or
otherwise acquire for value any Capital Stock of the Borrower held by Persons
other than the Borrower or a Restricted Subsidiary, (iii) purchase, repurchase,
redeem, defease or otherwise acquire or retire for value, prior to scheduled
maturity, scheduled repayment or scheduled sinking fund payment, any
Subordinated Obligations (other than a purchase, redemption, defeasance or other
acquisition or retirement for value in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one
year of the date of such acquisition or retirement) or (iv) make any Investment
(other than a Permitted Investment) in any Person (any such dividend,
distribution, purchase, redemption, repurchase, defeasance, other acquisition or
retirement or Investment being herein referred to as a "Restricted Payment"), if
at the time the Borrower or such Restricted Subsidiary makes such Restricted
Payment and after giving effect thereto:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) the Borrower could not incur at least an additional $1.00
of Indebtedness pursuant to paragraph (a) of the covenant described
under Section I.1 of this Schedule; or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments (the amount so expended, if other than in
cash, to be as determined in good faith by the Board of Directors,
whose determination shall be conclusive) declared or made subsequent to
the Issue Date and then outstanding would exceed the sum of:
(A) 50% of the Consolidated Net Income accrued during
the period (treated as one accounting period) from April 25,
1998 to the end of the most
4
recent fiscal quarter ending prior to the date of such
Restricted Payment for which consolidated financial statements
of the Borrower are available (or, in case such Consolidated
Net Income shall be a negative number, 100% of such negative
number);
(B) the aggregate Net Cash Proceeds, and fair value
(as determined in good faith by the Board of Directors) of
property or assets, received (x) by the Borrower as capital
contributions to the Borrower after the Issue Date or from the
issuance or sale (other than to a Restricted Subsidiary) of
its Capital Stock (other than Disqualified Stock) after the
Issue Date (other than Excluded Contributions) or (y) by the
Borrower or any Restricted Subsidiary from the issuance and
sale by the Borrower or any Restricted Subsidiary after the
Issue Date of Indebtedness that shall have been converted into
or exchanged for Capital Stock of the Borrower (other than
Disqualified Stock), plus the amount of cash, property or
assets (determined as provided above) received by the Borrower
or any Restricted Subsidiary upon such conversion or exchange;
(C) the aggregate amount equal to the net reduction
in Investments in Unrestricted Subsidiaries resulting from (i)
dividends, distributions, interest payments, return of
capital, repayments of Investments or other transfers of
assets to the Borrower or any Restricted Subsidiary from any
Unrestricted Subsidiary, or (ii) the redesignation of any
Unrestricted Subsidiary as a Restricted Subsidiary (valued in
each case as provided in the definition of "Investment"), not
to exceed in the case of any such Unrestricted Subsidiary the
aggregate amount of Investments (other than Permitted
Investments) made by the Borrower or any Restricted Subsidiary
in such Unrestricted Subsidiary after the Issue Date;
(D) in the case of any disposition or repayment of
any Investment constituting a Restricted Payment (without
duplication of any amount deducted in calculating the amount
of Investments at any time outstanding included in the amount
of Restricted Payments), an amount in the aggregate equal to
the lesser of the return of capital, repayment or other
proceeds with respect to all such Investments and the initial
amount of all such Investments; and
(E) the aggregate exercise price of all options
attributable to shares of Capital Stock purchased in the
Equity Tender Offer.
(b) The provisions of the foregoing paragraph (a) will not prohibit any
of the following (each, a "Permitted Payment"):
(i) any purchase, redemption, repurchase, defeasance or
other acquisition or retirement of Capital Stock of the Borrower or
Subordinated Obligations made by exchange (including any such exchange
pursuant to the exercise of a conversion right or privilege in
connection with which cash is paid in lieu of the issuance of
fractional shares) for, or out of the proceeds of the substantially
concurrent issuance or sale of, Capital Stock of the Borrower (other
than Disqualified Stock and other than Capital Stock issued or sold to
a Subsidiary) or a substantially concurrent capital contribution to the
Borrower; provided, that the Net Cash Proceeds from such issuance,
5
sale or capital contribution shall be excluded in subsequent
calculations under clause (3)(B) of the preceding paragraph (a) and
shall not constitute an Excluded Contribution;
(ii) any purchase, redemption, repurchase, defeasance or
other acquisition or retirement of Subordinated Obligations (x) made by
exchange for, or out of the proceeds of the substantially concurrent
issuance or sale of, Indebtedness of the Borrower or Refinancing
Indebtedness Incurred in compliance with Section I.1 of this Schedule,
(y) from Net Available Cash to the extent permitted by Section I.4 of
this Schedule or (z) to the extent required by the agreement governing
such Subordinated Obligations, following the occurrence of a Change of
Control (or other similar event described therein as a "change of
control"), but only if the Borrower shall have paid or prepaid the
Tranche B Term Loans (except to the extent prepayment has been declined
by any Tranche B Term Loan Lender) or obtained a waiver of or a
suitable amendment to subsection 10.3(j) of the Credit Agreement;
(iii) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend would
have complied with the preceding paragraph (a);
(iv) Investments in an aggregate amount outstanding at any
time not to exceed the amount of Excluded Contributions (excluding the
amount of Excluded Contributions used to Incur Indebtedness pursuant to
clause (xii) of paragraph (b) of Section I.1 of this Schedule);
(v) payments by the Borrower to repurchase or otherwise
acquire Capital Stock (including any options, warrants or other rights
in respect thereof) from Management Investors (including loans,
advances, dividends or distributions by the Borrower to a Parent to
permit such Parent to make any such repurchase or other acquisition),
such payments, loans, advances, dividends or distributions not to
exceed an amount (net of repayments of any such loans or advances)
equal to (1) $25.0 million, plus (2) $3.0 million multiplied by the
number of calendar years that have commenced since the Issue Date (not
to exceed $9.0 million in the aggregate), plus (3) the Net Cash
Proceeds received by the Borrower since the Issue Date from, or as a
capital contribution from, the issuance or sale to Management Investors
of Capital Stock (including any options, warrants or other rights in
respect thereof), to the extent such Net Cash Proceeds are not included
in any calculation under clause (3)(B)(x) of the preceding paragraph
(a) and do not constitute an Excluded Contribution;
(vi) the payment by the Borrower of (or loans, advances,
dividends or distributions by the Borrower to a Parent to pay)
dividends on the common stock or equity of the Borrower (or such
Parent) following a public offering of such common stock or equity, in
an amount not to exceed in any fiscal year 6% of the aggregate gross
proceeds received by the Borrower in or from such public offering;
(vii) Restricted Payments (including loans or advances) in
an aggregate amount outstanding at any time not to exceed $20.0 million
(net of repayments of any such loans or advances);
6
(viii) payments by the Borrower or any Restricted Subsidiary
to satisfy obligations under the CDR Agreements; and Permitted Parent
Payments;
(ix) payments by the Borrower, or loans, advances,
dividends or distributions by the Borrower to a Parent to make
payments, to holders of Capital Stock of the Borrower or such Parent in
lieu of issuance of fractional shares of such Capital Stock, not to
exceed $100,000 in the aggregate outstanding at any time;
(x) dividends or other distributions of Capital Stock,
Indebtedness or other securities of Unrestricted Subsidiaries;
(xi) the Transactions; and
(xii) any purchase, redemption, retirement or other
acquisition of Capital Stock (x) that is used as consideration in
making any Investment that involves an acquisition of a Person,
business or assets and that is permitted as a Restricted Payment
Transaction or (y) deemed to occur upon the exercise of options if such
Capital Stock represents a portion of the exercise price thereof;
provided, that (A) in the case of clauses (iii), (vi), (vii) and (ix), the net
amount of any such Permitted Payment shall be included in subsequent
calculations of the amount of Restricted Payments, (B) in the case of clause
(v), at the time of any calculation of the amount of Restricted Payments, the
net amount of Permitted Payments that have then actually been made under clause
(v) that is in excess of 50% of the total amount of Permitted Payments then
permitted under clause (v) shall be included in such calculation of the amount
of Restricted Payments, (C) in all cases other than pursuant to clauses (A) and
(B) immediately above, the net amount of any such Permitted Payment shall be
excluded in subsequent calculations of the amount of Restricted Payments and (D)
solely with respect to clause (vii), no Default or Event of Default shall have
occurred or be continuing at the time of such Permitted Payment after giving
effect thereto.
I.3. Limitation on Restrictions on Distributions from Restricted
Subsidiaries. The Borrower will not, and will not permit any Restricted
Subsidiary to, create or otherwise cause to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distributions on its Capital
Stock or pay any Indebtedness or other obligations owed to the Borrower, (ii)
make any loans or advances to the Borrower or (iii) transfer any of its property
or assets to the Borrower, except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or
entered into on the Issue Date (including, without limitation, the
Credit Agreement), the Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, or
relating to Indebtedness or Capital Stock of a Person, which Person is
acquired by or merged or consolidated with or into the Borrower or any
Restricted Subsidiary, or which agreement or instrument is assumed by
the Borrower or any Restricted Subsidiary in connection with an
acquisition of assets from such Person, as in effect at the time of
such acquisition, merger or consolidation (except to the extent that
such Indebtedness was incurred to finance, or otherwise in connection
with, such acquisition, merger or consolidation),
7
provided that for purposes of this clause (2), if another Person is the
Successor Company, any Subsidiary thereof or agreement or instrument of
such Person or any such Subsidiary shall be deemed acquired or assumed,
as the case may be, by the Borrower or a Restricted Subsidiary, as the
case may be, when such Person becomes the Successor Company;
(3) pursuant to an agreement or instrument (a "Refinancing
Agreement") effecting a refinancing of Indebtedness Incurred pursuant
to, or that otherwise extends, renews, refunds, refinances or replaces,
an agreement or instrument referred to in clause (1) or (2) of this
covenant or this clause (3) (an "Initial Agreement") or contained in
any amendment, supplement or other modification to an Initial Agreement
(an "Amendment"); provided, however, that the encumbrances and
restrictions contained in any such Refinancing Agreement or Amendment
are not materially less favorable to the Holders of the Notes taken as
a whole than encumbrances and restrictions contained in the Initial
Agreement or Initial Agreements to which such Refinancing Agreement or
Amendment relates (as determined in good faith by the Borrower);
(4) (A) that restricts in a customary manner the subletting,
assignment or transfer of any property or asset that is subject to a
lease, license or similar contract, or the assignment or transfer of
any lease, license or other contract, (B) by virtue of any transfer of,
agreement to transfer, option or right with respect to, or Lien on, any
property or assets of the Borrower or any Restricted Subsidiary not
otherwise prohibited by the Indenture, (C) contained in mortgages,
pledges or other security agreements securing Indebtedness of a
Restricted Subsidiary to the extent restricting the transfer of the
property or assets subject thereto, (D) pursuant to customary
provisions restricting dispositions of real property interests set
forth in any reciprocal easement agreements of the Borrower or any
Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that
impose encumbrances or restrictions on the property or assets so
acquired, (F) on cash or other deposits or net worth imposed by
customers under agreements entered into in the ordinary course of
business, (G) pursuant to customary provisions contained in agreements
and instruments entered into in the ordinary course of business
(including but not limited to leases and joint ventures and other
similar agreements entered into in the ordinary course of business), or
(H) that arises or is agreed to in the ordinary course of business and
does not detract from the value of property or assets of the Borrower
or any Restricted Subsidiary in any manner material to the Borrower or
such Restricted Subsidiary;
(5) with respect to a Restricted Subsidiary (or any of its
property or assets) imposed pursuant to an agreement entered into for
the direct or indirect sale or disposition of all or substantially all
the Capital Stock or assets of such Restricted Subsidiary (or the
property or assets that are subject to such restriction) pending the
closing of such sale or disposition;
(6) required by any applicable law, rule, regulation or order
or by any regulatory authority having jurisdiction over the Borrower or
any Restricted Subsidiary or any of their business; or
(7) pursuant to an agreement or instrument (A) relating to any
Indebtedness permitted to be Incurred subsequent to the Issue Date
pursuant to the provisions of
8
Section I.1 of this Schedule if the Borrower determines that such
encumbrance or restriction will not cause the Borrower not to have the
funds necessary to pay the principal of or interest on the Notes, (B)
relating to any sale of receivables by a Foreign Subsidiary or (C)
relating to Indebtedness of or a Financing Disposition to or by any
Receivables Entity.
I.4 Limitation on Sales of Assets and Subsidiary Stock. (a) The
Borrower will not, and will not permit any Restricted Subsidiary to, make any
Asset Disposition unless
(i) the Borrower or such Restricted Subsidiary receives
consideration (including by way of relief from, or by any other Person
assuming responsibility for, any liabilities, contingent or otherwise)
at the time of such Asset Disposition at least equal to the fair market
value of the shares and assets subject to such Asset Disposition, as
such fair market value may be determined (and shall be determined, to
the extent such Asset Disposition involves aggregate consideration in
excess of $10.0 million) in good faith by the Board of Directors, whose
determination shall be conclusive (including as to the value of all
noncash consideration),
(ii) in the case of any Asset Disposition having a fair
market value of $10.0 million or more, at least 75% of the
consideration therefor (excluding, in the case of an Asset Disposition
of assets, any consideration by way of relief from, or by any other
Person assuming responsibility for, any liabilities, contingent or
otherwise, that are not Indebtedness) received by the Borrower or such
Restricted Subsidiary is in the form of cash, and provided that this
clause (ii) shall not apply to any Asset Disposition involving assets
that accounted for less than two percent of Consolidated EBITDA during
the period of the most recent four consecutive fiscal quarters ending
prior to the date of such Asset Disposition for which consolidated
financial statements of the Borrower are available, and
(iii) an amount equal to 100% of the Net Cash Proceeds from
such Asset Disposition minus any Reinvested Amount is applied by the
Borrower (or any Restricted Subsidiary, as the case may be) as follows:
(A) first, to make any prepayment of the Loans and
cash collateralization of the L/C Obligations required under
subsection 4.4(c) of the Credit Agreement; and
(B) second, to the extent of the balance of such Net
Cash Proceeds after application in accordance with clause (A)
above, to fund (to the extent consistent with any other
applicable provision of the Credit Agreement) any general
corporate purpose (including but not limited to the
repurchase, repayment or other acquisition or retirement of
any Subordinated Obligations).
I.5 Limitation on Transactions with Affiliates. (a) The Borrower will
not, and will not permit any Restricted Subsidiary to, directly or indirectly,
enter into or conduct any transaction or series of related transactions
(including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate of the Borrower (an "Affiliate
Transaction") unless (i) the terms of such Affiliate Transaction are not
materially less favorable to the Borrower
9
or such Restricted Subsidiary, as the case may be, than those that could be
obtained at the time in a transaction with a Person who is not such an Affiliate
and (i) if such Affiliate Transaction involves aggregate consideration in excess
of $10.0 million, the terms of such Affiliate Transaction have been approved by
a majority of the Disinterested Directors. For purposes of this paragraph, any
Affiliate Transaction shall be deemed to have satisfied the requirements set
forth in this paragraph if (x) such Affiliate Transaction is approved by a
majority of the Disinterested Directors, or (y) in the event there are no
Disinterested Directors, a fairness opinion is provided by a nationally
recognized appraisal or investment banking firm with respect to such Affiliate
Transaction.
(b) The provisions of the preceding paragraph (a) will not apply to:
(i) any Restricted Payment Transaction,
(ii) (1) the entering into, maintaining or performance of
any employment contract, collective bargaining agreement, benefit plan,
program or arrangement, related trust agreement or any other similar
arrangement for or with any employee, officer or director heretofore or
hereafter entered into in the ordinary course of business, including
vacation, health, insurance, deferred compensation, severance,
retirement, savings or other similar plans, programs or arrangements,
(2) the payment of compensation, performance of indemnification or
contribution obligations, or any issuance, grant or award of stock,
options, other equity-related interests or other securities, to
employees, officers or directors in the ordinary course of business,
(3) the payment of fees to directors of the Borrower or any of its
Subsidiaries, (4) any transaction with an officer or director in the
ordinary course of business not involving more than $250,000 in any one
case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Borrower, any Restricted
Subsidiary, or any Receivables Entity,
(iv) any transaction arising out of agreements or
instruments in existence on the Issue Date, and any payments made
pursuant thereto,
(v) execution, delivery and performance of the CDR
Agreements, including (1) payment to CDR or any Affiliate of CDR of a
fee of $15.0 million plus out-of-pocket expenses in connection with the
Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of
up to $1.0 million in any fiscal year plus all out-of-pocket expenses
incurred by CDR or any such Affiliate in connection with its
performance of management consulting, monitoring, financial advisory or
other services with respect to the Borrower and its Restricted
Subsidiaries,
(vi) the Transactions, all transactions in connection
therewith (including but not limited to the financing thereof), and all
fees or expenses paid or payable in connection with the Transactions,
(vii) any transaction in the ordinary course of business
on terms not materially less favorable to the Borrower or the relevant
Restricted Subsidiary than those that could be obtained at the time in
a transaction with a Person who is not an Affiliate of
10
the Borrower, and
(viii) any transaction in the ordinary course of business,
or approved by a majority of the Board of Directors, between the
Borrower or any Restricted Subsidiary and any Affiliate of the Borrower
controlled by the Borrower that is a joint venture or similar entity.
I.6 Limitation on Liens. The Borrower shall not, and shall not permit
any Restricted Subsidiary to, directly or indirectly, (i) create or permit to
exist any Lien (other than Permitted Liens) on any of its property or assets
(including Capital Stock of any other Person), whether owned on the Issue Date
or thereafter acquired, securing any Indebtedness of the Borrower or any Note
Guarantor (other than Indebtedness under the Credit Agreement) or (ii) create or
permit to exist any Lien (the "Initial Lien") securing the Revolving Credit
Loans, the L/C Obligations (except to the extent of cash collateralization
therefor as contemplated by the Credit Agreement), the Tranche A Term Loans or
the Multi-Draw Terms Loans, or guarantees by any Subsidiary Guarantors thereof
or any Refinancing Indebtedness which refinances all or substantially all of
such Revolving Credit Loans, L/C Obligations, Tranche A Term Loans, Multi-Draw
Term Loans or guarantees by any Subsidiary Guarantors of any such Refinancing
Indebtedness, unless contemporaneously therewith effective provision is made to
secure the Tranche B Term Loans or the guarantees thereof, equally and ratably
for so long as such Initial Lien is in effect. Any such Lien thereby created in
favor of the Tranche B Term Loans or guarantees thereof will be automatically
and unconditionally released and discharged upon (i) the release and discharge
of the Initial Lien to which it relates, or (ii) any sale, exchange or transfer
to any Person (other than a Subsidiary or the Borrower) of the property or
assets secured by such Initial Lien, or of all of the Capital Stock held by the
Borrower or any Restricted Subsidiary in, or all or substantially all the assets
of, any Restricted Subsidiary creating such Lien.
II. DEFINITIONS
Unless otherwise defined in this Schedule, capitalized terms
used in this Schedule (including in other capitalized terms in this Schedule or
in other such capitalized terms) have the respective meanings specified in the
Senior Subordinated Note Indenture (as defined in the Credit Agreement):
"Borrower" has the meaning specified in the Credit Agreement.
"Board of Directors" means the board of directors or other
governing body of the Borrower or, if the Borrower is owned or managed by a
single entity, the board of directors or other governing body of such entity,
or, in either case, any committee thereof duly authorized to act on behalf of
such board or governing body (or, for purposes of clause (i) of paragraph (a) of
Section I.4 of this Schedule, a committee of Officers of the Borrower designated
by such board or governing body).
"Consolidated Total Assets" means, as of any date of
determination, the total assets shown on the consolidated balance sheet of the
Borrower and its Restricted Subsidiaries as of the most recent date for which
such a balance sheet is available, determined on a consolidated basis in
accordance with GAAP (and, in the case of any determination relating to any
Incurrence of Indebtedness or any Investment, on a pro forma basis including any
property or assets being
11
acquired in connection therewith), provided that for purposes of paragraph (b)
of Section I.1 of this Schedule and the definition of "Permitted Investment",
Consolidated Total Assets shall not be less than $2,006 million.
"Credit Agreement" means the Credit Agreement to which this
Schedule is attached and is a part, as amended, modified, or supplemented from
time to time.
"Excluded Contribution" means Net Cash Proceeds, or the fair
value, as determined in good faith by the Board of Directors, of property or
assets, received by the Borrower as capital contributions to the Borrower after
the Issue Date or from the issuance or sale (other than to a Restricted
Subsidiary) of Capital Stock (other than Disqualified Stock) of the Borrower ,
in each case to the extent designated as an Excluded Contribution pursuant to an
Officer's Certificate of the Borrower and not previously included in the
calculation set forth in Section I.2 of this Schedule for purposes of
determining whether a Restricted Payment may be made.
"Issue Date" means the Effective Date, as defined in the
Credit Agreement.
"L/C Obligations" has the meaning specified in the Credit
Agreement.
"Loans" has the meaning specified in the Credit Agreement.
"Note Guarantor" means a Subsidiary Guarantor.
"Reinvested Amount" has the meaning specified in the Credit
Agreement.
"Subsidiary Guarantee" means, as to any Subsidiary Guarantor,
its Guarantee of the Loans.
"Subsidiary Guarantor" has the meaning specified in the Credit
Agreement.
"Subordinated Obligations" means any Indebtedness of the
Borrower (whether outstanding on the date of the Credit Agreement or thereafter
Incurred) that is expressly subordinated in right of payment to the Tranche B
Term Loans pursuant to a written agreement.
"Tranche B Term Loan" has the meaning specified in the Credit
Agreement.
"Tranche B Term Loan Lender" has the meaning specified in the
Credit Agreement.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Borrower that at the time of determination is an Unrestricted Subsidiary, as
designated by the Board of Directors in the manner provided below, and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate
any Subsidiary of the Borrower (including any newly acquired or newly formed
Subsidiary of the Borrower ) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of,
or owns or holds any Lien on any property of, the Borrower or any other
Restricted Subsidiary of the Borrower that is not a Subsidiary of the Subsidiary
to be so designated; provided, that either (A) the Subsidiary to be so
12
designated has total consolidated assets of $1,000 or less or (B) if such
Subsidiary has consolidated assets greater than $1,000, then such designation
would be permitted in Section I.2 of this Schedule. The Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided,
that immediately after giving effect to such designation either (x) the Borrower
could incur at least $1.00 of additional Indebtedness under paragraph (a) of
Section I.1 of this Schedule or (y) the Consolidated Coverage Ratio would be
greater than it was immediately prior to giving effect to such designation. Any
such designation by the Board of Directors shall be evidenced to the Agent by
promptly filing with the Agent a copy of the resolution of the Borrower's Board
of Directors giving effect to such designation and an Officer's Certificate
certifying that such designation complied with the foregoing provisions.
13
EXHIBIT A-1
-----------
FORM OF REVOLVING CREDIT NOTE
THIS REVOLVING CREDIT NOTE AND THE OBLIGATIONS EVIDENCED HEREBY MAY NOT BE
TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT
AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS REVOLVING CREDIT NOTE AND THE
OBLIGATIONS EVIDENCED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE
ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$_____________ New York, New York
June __, 1998
FOR VALUE RECEIVED, the undersigned, [U.S. OFFICE PRODUCTS
COMPANY, a Delaware corporation] [BLUE STAR GROUP LIMITED, a New Zealand
corporation] (the "Borrower"), hereby unconditionally promises to pay to the
order of _____________ (the "Lender") and its successors and assigns, at the
office of The Chase Manhattan Bank, located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, in lawful money of the United States of America and in immediately
available funds, the principal amount of the lesser of (a)
_________________________ DOLLARS ($_____________) and (b) the aggregate unpaid
principal amount of the Revolving Credit Loans made by the Lender to the
undersigned pursuant to subsection 2.1 of the Credit Agreement referred to
below, which sum shall be payable on the Termination Date.
The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time at the
applicable rates per annum and on the dates set forth in subsection 4.1 of the
Credit Agreement until such principal amount is paid in full (both before and
after judgment).
The holder of this Revolving Credit Note is authorized to
endorse on the schedules annexed hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof the
date, Type and amount of each Revolving Credit Loan made pursuant to the Credit
Agreement and the date and amount of each payment or prepayment of principal
thereof, each continuation thereof, each conversion of all or a portion thereof
to another Type and, in the case of Eurodollar Loans, the length of each
Interest Period with respect thereto. Each such endorsement shall constitute
prima facie evidence of the accuracy of the information endorsed. The failure to
make any such endorsement shall not affect the obligations of the Borrower in
respect of such Revolving Credit Loan.
This Revolving Credit Note is one of the Revolving Credit
Notes referred to in, and is subject in all respects to, the Credit Agreement,
dated as of June __, 1998 (as amended, supplemented, waived or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
several banks and other financial institutions from time to time parties thereto
2
(including the Lender), The Chase Manhattan Bank, as collateral and
administrative agent for such banks and financial institutions, Bankers Trust
Company, as syndication agent for such banks and financial institutions and
Xxxxxxx Xxxxx Capital Corporation, as documentation agent for such banks and
financial institutions, and is entitled to the benefits thereof, is secured and
guaranteed as provided therein and in the Loan Documents and is subject to
optional and mandatory prepayment in whole or in part as provided therein.
Reference is hereby made to the Loan Documents for a description of the
properties and assets in which a security interest has been granted, the nature
and extent of the security and the guarantees, the terms and conditions upon
which the security interests and each guarantee were granted and the rights of
the holder of this Revolving Credit Note in respect thereof. Each holder hereof,
by its acceptance of this Revolving Credit Note, agrees to the terms of, and to
be bound by and to observe the provisions applicable to the Lenders contained
in, the Credit Agreement. Terms used herein which are defined in the Credit
Agreement shall have such defined meanings unless otherwise defined herein or
unless the context otherwise requires.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Revolving Credit Note shall become, or may be declared to be, immediately
due and payable, all as provided therein.
All parties now and hereafter liable with respect to this
Revolving Credit Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive, to the maximum extent permitted by applicable law,
presentment, demand, protest and all other notices of any kind under this
Revolving Credit Note.
2
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT
OF LAWS THEREOF.
[U.S. OFFICE PRODUCTS COMPANY
By: ]
Title:
[BLUE STAR GROUP LIMITED
By: ]
Title:
3
Schedule A to
Revolving Credit Note
---------------------
LOANS, CONTINUATIONS, CONVERSIONS AND
REPAYMENTS OF EURODOLLAR LOANS
------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Amount of ABR Interest Period and Amount of Principal Amount of Eurodollar
Amount of Eurodollar Loans Converted to Eurodollar Rate with of Eurodollar Loans Loans Converted to
Date Loans Eurodollar Loans Respect Thereto Repaid ABR Loans
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------
---------------------------------------------------
Unpaid Principal
Balance of Eurodollar
Loans Notation Made by
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
Schedule B to
Revolving Credit Note
---------------------
LOANS, CONVERSIONS AND
REPAYMENTS OF ABR LOANS
-----------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Amount of Eurodollar Amount of ABR
Amount of ABR Loans Converted to ABR Amount of Principal of Loans Converted to
Date Loans Loans ABR Loans Repaid Eurodollar Loans
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
Unpaid Principal Balance
of ABR Loans Notation Made by
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
EXHIBIT A-2
-----------
FORM OF SWING LINE NOTE
$____________ New York, New York
June __, 1998
FOR VALUE RECEIVED, the undersigned, U.S OFFICE PRODUCTS
COMPANY, a Delaware corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of THE CHASE MANHATTAN BANK (the "Swing Line
Lender") and its successors and assigns, at the office of The Chase Manhattan
Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in lawful money of the United
States of America and in immediately available funds, the principal amount of
the lesser of (a) __________________________ DOLLARS ($____________) and (b) the
aggregate unpaid principal amount of all Swing Line Loans made by the Swing Line
Lender to the undersigned pursuant to subsection 2.5 of the Credit Agreement
referred to below, which sum shall be payable on the Termination Date.
The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time at the
applicable rates per annum and on the dates set forth in subsection 4.1 of the
Credit Agreement until paid in full (both before and after judgment).
The holder of this Swing Line Note is authorized to endorse on
the schedule annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof the date and amount of
each Swing Line Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof. Each such endorsement
shall constitute prima facie evidence of the accuracy of the information
endorsed. The failure to make any such endorsement shall not affect the
obligations of the Borrower in respect of such Swing Line Loan.
This Swing Line Note is the Swing Line Note referred to in,
and is subject in all respects to, the Credit Agreement, dated as of June __,
1998 (as amended, supplemented, waived or otherwise modified from time to time,
the "Credit Agreement"), among the Borrower, the several banks and other
financial institutions from time to time parties thereto (including the Swing
Line Lender), The Chase Manhattan Bank, as collateral and administrative agent
for such banks and financial institutions, Bankers Trust Company, as syndication
agent for such banks and financial institutions and Xxxxxxx Xxxxx Capital
Corporation, as documentation agent for such banks and financial institutions,
and is entitled to the benefits thereof, is secured and guaranteed as provided
therein and in the Loan Documents and is subject to optional and mandatory
prepayment in whole or in part as provided therein. Reference is hereby made to
the Loan Documents for a description of the properties and assets in which a
security interest has been granted, the nature and extent of the security and
the guarantees, the terms and conditions upon which the security interests and
each guarantee were granted and the rights of the holder of this Swing Line Note
in respect thereof. The holder hereof, by its acceptance of this Swing Line
Note, agrees to the terms of, and to be bound by and to observe the provisions
applicable to the Lenders contained in, the Credit Agreement. Terms used herein
which are defined in the Credit Agreement
shall have such defined meanings unless otherwise defined herein or unless the
context otherwise requires.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts remaining unpaid on this
Swing Line Note shall become, or may be declared to be, immediately due and
payable all as provided therein.
All parties now and hereafter liable with respect to this
Swing Line Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive, to the maximum extent permitted by applicable law,
presentment, demand, protest and all other notices of any kind under this Swing
Line Note.
2
THIS SWING LINE NOTE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT
OF LAWS THEREOF.
U.S. OFFICE PRODUCTS COMPANY
By:
Title:
3
Schedule A to
Swing Line Note
---------------
LOANS AND REPAYMENTS OF SWING LINE LOANS
----------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Amount of Principal of Swing Unpaid Principal Balance of
Date Amount of Swing Line Loans Line Loans Repaid Swing Line Loans Notation Made By
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT A-3
-----------
FORM OF TRANCHE A TERM NOTE
THIS TERM NOTE AND THE OBLIGATIONS EVIDENCED HEREBY MAY NOT BE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT
REFERRED TO BELOW. TRANSFERS OF THIS TERM NOTE AND THE OBLIGATIONS EVIDENCED
HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT
PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$____________ New York, New York
June __, 1998
FOR VALUE RECEIVED, the undersigned, U.S. OFFICE PRODUCTS
COMPANY, a Delaware corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of _____________ (the "Lender") and its successors
and assigns, at the office of The Chase Manhattan Bank, located at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in lawful money of the United States of
America and in immediately available funds, the principal amount of the lesser
of (a) ___________________________ DOLLARS ($____________) and (b) the aggregate
unpaid principal amount of the Tranche A Term Loan made by the Lender to the
undersigned pursuant to subsection 2.6 of the Credit Agreement referred to
below, which sum shall be payable in accordance with subsection 2.7(b) of the
Credit Agreement in 27 consecutive quarterly installments, commencing December
31, 1998, each such installment to be in an amount equal to the Lender's Tranche
A Term Loan Percentage of the amount set forth next to the applicable
installment date in such subsection 2.7(b) (or, if less, the aggregate amount of
Tranche A Term Loans then outstanding).
The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time at the
applicable rates per annum and on the dates set forth in subsection 4.1 of the
Credit Agreement until such principal amount is paid in full (both before and
after judgment).
The holder of this Tranche A Term Note is authorized to
endorse on the schedules annexed hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof the
date, Type and amount of each Tranche A Term Loan made pursuant to the Credit
Agreement and the date and amount of each payment or prepayment of principal
thereof, each continuation thereof, each conversion of all or a portion thereof
to another Type and, in the case of Eurodollar Loans, the length of each
Interest Period with respect thereto. Each such endorsement shall constitute
prima facie evidence of the accuracy of the information endorsed. The failure to
make any such endorsement shall not affect the obligations of the Borrower in
respect of such Tranche A Term Loan.
This Tranche A Term Note is one of the Tranche A Term Notes
referred to in, and is subject in all respects to, the Credit Agreement, dated
as of June __, 1998 (as amended, supplemented, waived or otherwise modified from
time to time, the "Credit Agreement"), among the Borrower, the several banks and
other financial institutions from time to time parties thereto
(including the Lender), The Chase Manhattan Bank, as collateral and
administrative agent for such banks and financial institutions, Bankers Trust
Company, as syndication agent for such banks and financial institutions and
Xxxxxxx Xxxxx Capital Corporation, as documentation agent for such banks and
financial institutions, and is entitled to the benefits thereof, is secured and
guaranteed as provided therein and in the Loan Documents and is subject to
optional and mandatory prepayment in whole or in part as provided therein.
Reference is hereby made to the Loan Documents for a description of the
properties and assets in which a security interest has been granted, the nature
and extent of the security and the guarantees, the terms and conditions upon
which the security interests and each guarantee were granted and the rights of
the holder of this Tranche A Term Note in respect thereof. Each holder hereof,
by its acceptance of this Tranche A Term Note, agrees to the terms of, and to be
bound by and observe the provisions applicable to the Lenders contained in, the
Credit Agreement. Terms used herein which are defined in the Credit Agreement
shall have such defined meanings unless otherwise defined herein or unless the
context otherwise requires.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Tranche A Term Note shall become, or may be declared to be, immediately due
and payable, all as provided therein.
All parties now and hereafter liable with respect to this
Tranche A Term Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive, to the maximum extent permitted by applicable law,
presentment, demand, protest and all other notices of any kind under this
Tranche A Term Note.
2
THIS TRANCHE A TERM NOTE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
U.S. OFFICE PRODUCTS COMPANY
By:
Title:
3
Schedule A to
Tranche A Term Note
-------------------
LOANS, CONTINUATIONS, CONVERSIONS AND
REPAYMENTS OF EURODOLLAR LOANS
-------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Amount of ABR Interest Period Amount of Principal Amount of Eurodollar
Amount of Eurodollar Loans Converted to and Eurodollar Rate of Eurodollar Loans Loans Converted to
Date Loans Eurodollar Loans with Respect Thereto Repaid ABR Loans
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------
--------------------------------------------------
Unpaid Principal
Balance of Eurodollar
Loans Notation Made by
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
Schedule B to
Tranche A Term Note
-------------------
LOANS, CONVERSIONS AND
REPAYMENTS OF ABR LOANS
-----------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
Amount of Eurodollar Amount of ABR
Amount of ABR Loans Converted to ABR Amount of Principal of Loans Converted to
Date Loans Loans ABR Loans Repaid Eurodollar Loans
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
Unpaid Principal Balance
of ABR Loans Notation Made by
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
EXHIBIT A-4
-----------
FORM OF TRANCHE B TERM NOTE
THIS TERM NOTE AND THE OBLIGATIONS EVIDENCED HEREBY MAY NOT BE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT
REFERRED TO BELOW. TRANSFERS OF THIS TERM NOTE AND THE OBLIGATIONS EVIDENCED
HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT
PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$_____________ New York, New York
June __, 1998
FOR VALUE RECEIVED, the undersigned, U.S. OFFICE PRODUCTS
COMPANY, a Delaware corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of _____________ (the "Lender") and its successors
and assigns, at the office of The Chase Manhattan Bank, located at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in lawful money of the United States of
America and in immediately available funds, the principal amount of the lesser
of (a) ___________________________ DOLLARS ($_____________) and (b) the
aggregate unpaid principal amount of the Tranche B Term Loan made by the Lender
to the undersigned pursuant to subsection 2.6 of the Credit Agreement referred
to below, which sum shall be payable in accordance with subsection 2.8(b) of the
Credit Agreement in 31 consecutive quarterly installments, commencing December
31, 1998, each such installment to be in an amount equal to the Lender's Tranche
B Term Loan Percentage of the amount set forth next to the applicable
installment date in such subsection 2.8(b) (or, if less, the aggregate amount of
Tranche B Term Loans then outstanding).
The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time at the
applicable rates per annum and on the dates set forth in subsection 4.1 of the
Credit Agreement until such principal amount is paid in full (both before and
after judgment).
The holder of this Tranche B Term Note is authorized to
endorse on the schedules annexed hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof the
date, Type and amount of each Tranche B Term Loan made pursuant to the Credit
Agreement and the date and amount of each payment or prepayment of principal
thereof, each continuation thereof, each conversion of all or a portion thereof
to another Type and, in the case of Eurodollar Loans, the length of each
Interest Period with respect thereto. Each such endorsement shall constitute
prima facie evidence of the accuracy of the information endorsed. The failure to
make any such endorsement shall not affect the obligations of the Borrower in
respect of such Tranche B Term Loan.
This Tranche B Term Note is one of the Tranche B Term Notes
referred to in, (and is subject in all respects to,) the Credit Agreement, dated
as of June __, 1998 (as amended, supplemented, waived or otherwise modified from
time to time, the "Credit Agreement"), among the Borrower, the several banks and
other financial institutions from time to time parties thereto
(including the Lender), The Chase Manhattan Bank, as collateral and
administrative agent for such banks and financial institutions, Bankers Trust
Company, as syndication agent for such banks and financial institutions and
Xxxxxxx Xxxxx Capital Corporation, as documentation agent for such banks and
financial institutions, and is entitled to the benefits thereof, is secured and
guaranteed as provided therein and in the Loan Documents and is subject to
optional and mandatory prepayment in whole or in part as provided therein.
Reference is hereby made to the Loan Documents for a description of the
properties and assets in which a security interest has been granted, the nature
and extent of the security and the guarantees, the terms and conditions upon
which the security interests and each guarantee were granted and the rights of
the holder of this Tranche B Term Note in respect thereof. Each holder hereof,
by its acceptance of this Tranche B Term Note, agrees to the terms of, and to be
bound by and to observe the provisions applicable to the Lenders contained in,
the Credit Agreement. Terms used herein which are defined in the Credit
Agreement shall have such defined meanings unless otherwise defined herein or
unless the context otherwise requires.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Tranche B Term Note shall become, or may be declared to be, immediately due
and payable, all as provided therein.
All parties now and hereafter liable with respect to this
Tranche B Term Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive, to the maximum extent permitted by applicable law,
presentment, demand, protest and all other notices of any kind under this
Tranche B Term Note.
2
THIS TRANCHE B TERM NOTE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT
OF LAWS THEREOF.
U.S. OFFICE PRODUCTS COMPANY
By:
Title:
3
Schedule A to
Tranche B Term Note
-------------------
LOANS, CONTINUATIONS, CONVERSIONS AND
REPAYMENTS OF EURODOLLAR LOANS
------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Amount of ABR Interest Period and Amount of Principal Amount of Eurodollar
Amount of Eurodollar Loans Converted to Eurodollar Rate with of Eurodollar Loans Loans Converted to
Date Loans Eurodollar Loans Respect Thereto Repaid ABR Loans
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------
-------------------------------------------------
Unpaid Principal
Balance of Eurodollar
Loans Notation Made by
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
Schedule B to
Tranche B Term Note
-------------------
LOANS, CONVERSIONS AND
REPAYMENTS OF ABR LOANS
-----------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
Amount of Eurodollar Amount of ABR Loans
Amount of ABR Loans Converted to ABR Amount of Principal of Converted to Eurodollar
Date Loans Loans ABR Loans Repaid Loans
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
Unpaid Principal Balance
of ABR Loans Notation Made by
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
EXHIBIT A-5
-----------
FORM OF MULTI-DRAW TERM NOTE
THIS TERM NOTE AND THE OBLIGATIONS EVIDENCED HEREBY MAY NOT BE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT
REFERRED TO BELOW. TRANSFERS OF THIS TERM NOTE AND THE OBLIGATIONS EVIDENCED
HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT
PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$____________ New York, New York
June __, 1998
FOR VALUE RECEIVED, the undersigned, U.S. OFFICE PRODUCTS
COMPANY, a Delaware corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of _____________ (the "Lender") and its successors
and assigns, at the office of The Chase Manhattan Bank, located at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in lawful money of the United States of
America and in immediately available funds, the principal amount of the lesser
of (a) ___________________________ DOLLARS ($____________) and (b) the aggregate
unpaid principal amount of the Multi-Draw Term Loan made by the Lender to the
undersigned pursuant to subsection 2.6 of the Credit Agreement referred to
below, which sum shall be payable in accordance with subsection 2.9(b) of the
Credit Agreement in 16 consecutive quarterly installments, commencing September
30, 2001, each such installment to be in an amount equal to the Lender's
Multi-Draw A Term Loan Percentage of the amount set forth next to the applicable
installment date in such subsection 2.9(b) (or, if less, the aggregate amount of
Multi-Draw Term Loans then outstanding).
The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time at the
applicable rates per annum and on the dates set forth in subsection 4.1 of the
Credit Agreement until such principal amount is paid in full (both before and
after judgment).
The holder of this Multi-Draw Term Note is authorized to
endorse on the schedules annexed hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof the
date, Type and amount of each Multi-Draw Term Loan made pursuant to the Credit
Agreement and the date and amount of each payment or prepayment of principal
thereof, each continuation thereof, each conversion of all or a portion thereof
to another Type and, in the case of Eurodollar Loans, the length of each
Interest Period with respect thereto. Each such endorsement shall constitute
prima facie evidence of the accuracy of the information endorsed. The failure to
make any such endorsement shall not affect the obligations of the Borrower in
respect of such Multi-Draw Term Loan.
This Multi-Draw Term Note is one of the Multi-Draw Term Notes
referred to in, and is subject in all respects to, the Credit Agreement, dated
as of June __, 1998 (as amended, supplemented, waived or otherwise modified from
time to time, the "Credit Agreement"), among the Borrower, the several banks and
other financial institutions from time to time parties thereto
(including the Lender), The Chase Manhattan Bank, as collateral and
administrative agent for such banks and financial institutions, Bankers Trust
Company, as syndication agent for such banks and financial institutions and
Xxxxxxx Xxxxx Capital Corporation, as documentation agent for such banks and
financial institutions, and is entitled to the benefits thereof, is secured and
guaranteed as provided therein and in the Loan Documents and is subject to
optional and mandatory prepayment in whole or in part as provided therein.
Reference is hereby made to the Loan Documents for a description of the
properties and assets in which a security interest has been granted, the nature
and extent of the security and the guarantees, the terms and conditions upon
which the security interests and each guarantee were granted and the rights of
the holder of this Multi-Draw Term Note in respect thereof. Each holder hereof,
by its acceptance of this Multi-Draw Term Note, agrees to the terms of, and to
be bound by and observe the provisions applicable to the Lenders contained in,
the Credit Agreement. Terms used herein which are defined in the Credit
Agreement shall have such defined meanings unless otherwise defined herein or
unless the context otherwise requires.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Multi-Draw Term Note shall become, or may be declared to be, immediately
due and payable, all as provided therein.
All parties now and hereafter liable with respect to this
Multi-Draw Term Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive, to the maximum extent permitted by applicable law,
presentment, demand, protest and all other notices of any kind under this
Multi-Draw Term Note.
2
THIS MULTI-DRAW TERM NOTE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
U.S. OFFICE PRODUCTS COMPANY
By:
Title:
3
Schedule A to
Multi-Draw Term Note
--------------------
LOANS, CONTINUATIONS, CONVERSIONS AND
REPAYMENTS OF EURODOLLAR LOANS
------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Amount of ABR Interest Period Amount of Principal Amount of Eurodollar
Amount of Eurodollar Loans Converted to and Eurodollar Rate of Eurodollar Loans Loans Converted to
Date Loans Eurodollar Loans with Respect Thereto Repaid ABR Loans
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------
---------------------------------------------------
Unpaid Principal
Balance of Eurodollar
Loans Notation Made by
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
Schedule B to
Multi-Draw Term Note
--------------------
LOANS, CONVERSIONS AND
REPAYMENTS OF ABR LOANS
-----------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
Amount of Eurodollar Amount of ABR
Amount of ABR Loans Converted to ABR Amount of Principal of Loans Converted to
Date Loans Loans ABR Loans Repaid Eurodollar Loans
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
Unpaid Principal Balance
of ABR Loans Notation Made by
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
EXHIBIT A-6
-----------
FORM OF QFL REVOLVING CREDIT NOTE
THIS QFL REVOLVING CREDIT NOTE AND THE OBLIGATIONS EVIDENCED HEREBY MAY NOT BE
TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT
AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS QFL REVOLVING CREDIT NOTE AND THE
OBLIGATIONS EVIDENCED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE
ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$_____________ New York, New York
June __, 1998
FOR VALUE RECEIVED, the undersigned, U.S OFFICE PRODUCTS
COMPANY, a Delaware corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of _____________ (the "Lender") and its successors
and assigns, at the office of The Chase Manhattan Bank, located at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in lawful money of the United States of
America and in immediately available funds, the principal amount of the lesser
of (a) __________________________ DOLLARS ($_____________) and (b) the aggregate
unpaid principal amount of the Revolving Credit Loans made by the Lender to the
undersigned pursuant to subsection 2.1 of the Credit Agreement referred to
below, which sum shall be payable on the Termination Date.
The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time at the
applicable rates per annum and on the dates set forth in subsection 4.1 of the
Credit Agreement until such principal amount is paid in full (both before and
after judgment).
The holder of this QFL Revolving Credit Note is authorized to
endorse on the schedules annexed hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof the
date, Type and amount of each Revolving Credit Loan made pursuant to the Credit
Agreement and the date and amount of each payment or prepayment of principal
thereof, each continuation thereof, each conversion of all or a portion thereof
to another Type and, in the case of Eurodollar Loans, the length of each
Interest Period with respect thereto. Each such endorsement shall constitute
prima facie evidence of the accuracy of the information endorsed. The failure to
make any such endorsement shall not affect the obligations of the Borrower in
respect of such Revolving Credit Loan.
This QFL Revolving Credit Note is one of the QFL Revolving
Credit Notes referred to in, and is subject in all respects to, the Credit
Agreement, dated as of June __, 1998 (as amended, supplemented, waived or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the several banks and other financial institutions from time to time
parties thereto (including the Lender), The Chase Manhattan Bank, as collateral
and
administrative agent for such banks and financial institutions, Bankers Trust
Company, as syndication agent for such banks and financial institutions and
Xxxxxxx Xxxxx Capital Corporation, as documentation agent for such banks and
financial institutions, and is entitled to the benefits thereof, is secured and
guaranteed as provided therein and in the Loan Documents and is subject to
optional and mandatory prepayment in whole or in part as provided therein.
Reference is hereby made to the Loan Documents for a description of the
properties and assets in which a security interest has been granted, the nature
and extent of the security and the guarantees, the terms and conditions upon
which the security interests and each guarantee were granted and the rights of
the holder of this QFL Revolving Credit Note in respect thereof. Each holder
hereof, by its acceptance of this QFL Revolving Credit Note, agrees to the terms
of, and to be bound by and to observe the provisions applicable to the Lenders
contained in, the Credit Agreement. Terms used herein which are defined in the
Credit Agreement shall have such defined meanings unless otherwise defined
herein or unless the context otherwise requires.
As provided in subsection 12.6(c) of the Credit Agreement,
this QFL Revolving Credit Note and the obligations evidenced hereby may be
assigned in whole or in part only by registration of such assignment of this QFL
Revolving Credit Note and the obligations evidenced hereby on the Register
described in subsection 12.6(d) of the Credit Agreement. Any assignment of all
or part of such obligations and this QFL Revolving Credit Note evidencing the
same shall be registered on the Register only upon surrender for registration of
assignment of this QFL Revolving Credit Note evidencing such obligations, duly
endorsed by (or accompanied by a written instrument of assignment duly executed
by) the holder of this QFL Revolving Credit Note, and thereupon one or more new
QFL Revolving Credit Notes in the same aggregate principal amount shall be
issued to the designated Assignee or Assignees and this QFL Revolving Credit
Note shall be returned to the Borrower marked "cancelled". No assignment of this
QFL Revolving Credit Note and the obligations evidenced hereby shall be
effective unless such assignment shall have been recorded in the Register as
provided herein and in subsection 12.6(e) of the Credit Agreement. This QFL
Revolving Credit Note may not be exchanged for promissory notes that are not QFL
Revolving Credit Notes.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this QFL Revolving Credit Note shall become, or may be declared to be,
immediately due and payable, all as provided therein.
All parties now and hereafter liable with respect to this QFL
Revolving Credit Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive, to the maximum extent permitted by applicable law,
presentment, demand, protest and all other notices of any kind under this QFL
Revolving Credit Note.
2
THIS QFL REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
U.S. OFFICE PRODUCTS COMPANY
By:
Title:
3
Schedule A to QFL
Revolving Credit Note
---------------------
LOANS, CONTINUATIONS, CONVERSIONS AND
REPAYMENTS OF EURODOLLAR LOANS
------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Amount of ABR Interest Period Amount of Principal Amount of Eurodollar
Amount of Eurodollar Loans Converted to and Eurodollar Rate of Eurodollar Loans Loans Converted to
Date Loans Eurodollar Loans with Respect Thereto Repaid ABR Loans
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------
---------------------------------------------------
Unpaid Principal
Balance of Eurodollar
Loans Notation Made by
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
Schedule B to QFL
Revolving Credit Note
---------------------
LOANS, CONVERSIONS AND
REPAYMENTS OF ABR LOANS
-----------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
Amount of Eurodollar Amount of ABR
Amount of ABR Loans Converted to ABR Amount of Principal of Loans Converted to
Date Loans Loans ABR Loans Repaid Eurodollar Loans
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
Unpaid Principal Balance
of ABR Loans Notation Made by
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
EXHIBIT A-7
-----------
FORM OF QFL TRANCHE A TERM NOTE
THIS QFL TRANCHE A TERM NOTE AND THE OBLIGATIONS EVIDENCED HEREBY MAY NOT BE
TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT
AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS QFL TRANCHE A TERM NOTE AND THE
OBLIGATIONS EVIDENCED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE
ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$____________ New York, New York
June __, 1998
FOR VALUE RECEIVED, the undersigned, U.S. OFFICE PRODUCTS
COMPANY, a Delaware corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of _____________ (the "Lender") and its successors
and assigns, at the office of The Chase Manhattan Bank, located at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in lawful money of the United States of
America and in immediately available funds, the principal amount of the lesser
of (a) __________________________ DOLLARS ($____________) and (b) the aggregate
unpaid principal amount of the Tranche A Term Loan made by the Lender to the
undersigned pursuant to subsection 2.6 of the Credit Agreement referred to
below, which sum shall be payable in accordance with subsection 2.7(b) of the
Credit Agreement in 27 consecutive quarterly installments, commencing December
31, 1998, each such installment to be in an amount equal to the Lender's Tranche
A Term Loan Percentage of the amount set forth next to the applicable
installment date in such subsection 2.7(b) (or, if less, the aggregate amount of
Tranche A Term Loans then outstanding).
The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time at the
applicable rates per annum and on the dates set forth in subsection 4.1 of the
Credit Agreement until such principal amount is paid in full (both before and
after judgment).
The holder of this QFL Tranche A Term Note is authorized to
endorse on the schedules annexed hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof the
date, Type and amount of each Tranche A Term Loan made pursuant to the Credit
Agreement and the date and amount of each payment or prepayment of principal
thereof, each continuation thereof, each conversion of all or a portion thereof
to another Type and, in the case of Eurodollar Loans, the length of each
Interest Period with respect thereto. Each such endorsement shall constitute
prima facie evidence of the accuracy of the information endorsed. The failure to
make any such endorsement shall not affect the obligations of the Borrower in
respect of such Tranche A Term Loan.
This QFL Tranche A Term Note is one of the QFL Tranche A Term
Notes referred to in, and is subject in all respects to, the Credit Agreement,
dated as of June __, 1998
(as amended, supplemented, waived or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, the several banks and other financial
institutions from time to time parties thereto (including the Lender), The Chase
Manhattan Bank, as [collateral and] administrative agent for such banks and
financial institutions, Bankers Trust Company, as syndication agent for such
banks and financial institutions and Xxxxxxx Xxxxx Capital Corporation, as
documentation agent for such banks and financial institutions, and is entitled
to the benefits thereof, is secured and guaranteed as provided therein and in
the Loan Documents and is subject to optional and mandatory prepayment in whole
or in part as provided therein. Reference is hereby made to the Loan Documents
for a description of the properties and assets in which a security interest has
been granted, the nature and extent of the security and the guarantees, the
terms and conditions upon which the security interests and each guarantee were
granted and the rights of the holder of this QFL Tranche A Term Note in respect
thereof. Each holder hereof, by its acceptance of this QFL Tranche A Term Note,
agrees to the terms of, and to be bound by and to observe the provisions
applicable to the Lenders contained in, the Credit Agreement. Terms used herein
which are defined in the Credit Agreement shall have such defined meanings
unless otherwise defined herein or unless the context otherwise requires.
As provided in subsection 12.6(e) of the Credit Agreement,
this QFL Tranche A Term Note and the obligations evidenced hereby may be
assigned in whole or in part only by registration of such assignment of this QFL
Tranche A Term Note and the obligations evidenced hereby on the Register
described in subsection 12.6(d) of the Credit Agreement. Any assignment of all
or part of such obligations and this QFL Tranche A Term Note evidencing the same
shall be registered on the Register only upon surrender for registration of
assignment of this QFL Tranche A Term Note evidencing such obligations, duly
endorsed by (or accompanied by a written instrument of assignment duly executed
by) the holder of this QFL Tranche A Term Note, and thereupon one or more new
QFL Tranche A Term Notes in the same aggregate principal amount shall be issued
to the designated Assignee or Assignees and this QFL Tranche A Term Note shall
be returned to the Borrower marked "cancelled". No assignment of this QFL
Tranche A Term Note and the obligations evidenced hereby shall be effective
unless such assignment shall have been recorded in the Register as provided
herein and in subsection 12.6(e) of the Credit Agreement. This QFL Tranche A
Term Note may not be exchanged for promissory notes that are not QFL Tranche A
Term Notes.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this QFL Tranche A Term Note shall become, or may be declared to be, immediately
due and payable, all as provided therein.
All parties now and hereafter liable with respect to this QFL
Tranche A Term Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive, to the maximum extent permitted by applicable law,
presentment, demand, protest and all other notices of any kind under this QFL
Tranche A Term Note.
THIS QFL TRANCHE A TERM NOTE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
U.S. OFFICE PRODUCTS COMPANY.
2
By:
Title:
3
Schedule A to QFL
Tranche A Term Note
-------------------
LOANS, CONTINUATIONS, CONVERSIONS AND
REPAYMENTS OF EURODOLLAR LOANS
------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Amount of ABR Interest Period Amount of Principal Amount of Eurodollar
Amount of Eurodollar Loans Converted to and Eurodollar Rate of Eurodollar Loans Loans Converted to
Date Loans Eurodollar Loans with Respect Thereto Repaid ABR Loans
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------
---------------------------------------------------
Unpaid Principal
Balance of Eurodollar
Loans Notation Made by
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
Schedule B to QFL
Tranche A Term Note
-------------------
LOANS, CONVERSIONS AND
REPAYMENTS OF ABR LOANS
-----------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
Amount of Eurodollar Amount of ABR
Amount of ABR Loans Converted to ABR Amount of Principal of Loans Converted to
Date Loans Loans ABR Loans Repaid Eurodollar Loans
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
Unpaid Principal Balance
of ABR Loans Notation Made by
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
EXHIBIT A-8
-----------
FORM OF QFL TRANCHE B TERM NOTE
THIS QFL TRANCHE B TERM NOTE AND THE OBLIGATIONS EVIDENCED HEREBY MAY NOT BE
TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT
AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS QFL TRANCHE B TERM NOTE AND THE
OBLIGATIONS EVIDENCED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE
ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$_____________ New York, New York
June __, 1998
FOR VALUE RECEIVED, the undersigned, U.S. OFFICE PRODUCTS
COMPANY, a Delaware corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of _____________ (the "Lender") and its successors
and assigns, at the office of The Chase Manhattan Bank, located at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in lawful money of the United States of
America and in immediately available funds, the principal amount of the lesser
of (a) __________________________ DOLLARS ($_____________) and (b) the aggregate
unpaid principal amount of the Tranche B Term Loans made by the Lender to the
undersigned pursuant to subsection 2.6 of the Credit Agreement referred to
below, which sum shall be payable in accordance with subsection 2.8(b) of the
Credit Agreement in 31 consecutive quarterly installments, commencing December
31, 1998, each such installment to be in an amount equal to the Lender's Tranche
B Term Loan Percentage of the amount set forth next to the applicable
installment date in such subsection 2.8(b) (or, if less, the aggregate amount of
Tranche B Term Loans then outstanding).
The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time at the
applicable rates per annum and on the dates set forth in subsection 4.1 of the
Credit Agreement until such principal amount is paid in full (both before and
after judgment).
The holder of this QFL Tranche B Term Note is authorized to
endorse on the schedules annexed hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof the
date, Type and amount of each Tranche B Term Loan made pursuant to the Credit
Agreement and the date and amount of each payment or prepayment of principal
thereof, each continuation thereof, each conversion of all or a portion thereof
to another Type and, in the case of Eurodollar Loans, the length of each
Interest Period with respect thereto. Each such endorsement shall constitute
prima facie evidence of the accuracy of the information endorsed. The failure to
make any such endorsement shall not affect the obligations of the Borrower in
respect of such Tranche B Term Loan.
This QFL Tranche B Term Note is one of the QFL Tranche B Term
Notes referred to in the Credit Agreement, dated as of June __, 1998 (as
amended, supplemented, waived or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower,
the several banks and other financial institutions from time to time parties
thereto (including the Lender), The Chase Manhattan Bank, as collateral and
administrative agent for such banks and financial institutions, Bankers Trust
Company, as syndication agent for such banks and financial institutions and
Xxxxxxx Xxxxx Capital Corporation, as documentation agent for such banks and
financial institutions, and is entitled to the benefits thereof, is secured and
guaranteed as provided therein and in the Loan Documents and is subject to
optional and mandatory prepayment in whole or in part as provided therein.
Reference is hereby made to the Loan Documents for a description of the
properties and assets in which a security interest has been granted, the nature
and extent of the security and the guarantees, the terms and conditions upon
which the security interests and each guarantee were granted and the rights of
the holder of this QFL Tranche B Term Note in respect thereof. Each holder
hereof, by its acceptance of this QFL Tranche B Term Note, agrees to the terms
of, and to be bound by and to observe the provisions applicable to the Lenders
contained in, the Credit Agreement. Terms used herein which are defined in the
Credit Agreement shall have such defined meanings unless otherwise defined
herein or unless the context otherwise requires.
As provided in subsection 12.6(e) of the Credit Agreement,
this QFL Tranche B Term Note and the obligations evidenced hereby may be
assigned in whole or in part only by registration of such assignment of this QFL
Tranche B Term Note and the obligations evidenced hereby on the Register
described in subsection 12.6(d) of the Credit Agreement. Any assignment of all
or part of such obligations and this QFL Tranche B Term Note evidencing the same
shall be registered on the Register only upon surrender for registration of
assignment of this QFL Tranche B Term Note evidencing such obligations, duly
endorsed by (or accompanied by a written instrument of assignment duly executed
by) the holder of this QFL Tranche B Term Note, and thereupon one or more new
QFL Tranche B Term Notes in the same aggregate principal amount shall be issued
to the designated Assignee or Assignees and this QFL Tranche B Term Note shall
be returned to the Borrower marked "cancelled". No assignment of this QFL
Tranche B Term Note and the obligations evidenced hereby shall be effective
unless such assignment shall have been recorded in the Register as provided
herein and in subsection 12.6(e) of the Credit Agreement. This QFL Tranche B
Term Note may not be exchanged for promissory notes that are not QFL Tranche B
Term Notes.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this QFL Tranche B Term Note shall become, or may be declared to be, immediately
due and payable, all as provided therein.
All parties now and hereafter liable with respect to this QFL
Tranche B Term Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive, to the maximum extent permitted by applicable law,
presentment, demand, protest and all other notices of any kind under this QFL
Tranche B Term Note.
2
THIS QFL TRANCHE B TERM NOTE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
U.S. OFFICE PRODUCTS COMPANY
By:
Title:
3
Schedule A to QFL
Tranche B Term Note
-------------------
LOANS, CONTINUATIONS, CONVERSIONS AND
REPAYMENTS OF EURODOLLAR LOANS
------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Amount of ABR Interest Period Amount of Principal Amount of Eurodollar
Amount of Eurodollar Loans Converted to and Eurodollar Rate of Eurodollar Loans Loans Converted to
Date Loans Eurodollar Loans with Respect Thereto Repaid ABR Loans
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------
---------------------------------------------------
Unpaid Principal
Balance of Eurodollar
Loans Notation Made by
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
Schedule B to QFL
Tranche B Term Note
-------------------
LOANS, CONVERSIONS AND
REPAYMENTS OF ABR LOANS
-----------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
Amount of Eurodollar Amount of ABR
Amount of ABR Loans Converted to ABR Amount of Principal of Loans Converted to
Date Loans Loans ABR Loans Repaid Eurodollar Loans
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
Unpaid Principal Balance
of ABR Loans Notation Made by
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
EXHIBIT A-9
-----------
FORM OF QFL MULTI-DRAW TERM NOTE
THIS QFL MULTI-DRAW TERM NOTE AND THE OBLIGATIONS EVIDENCED HEREBY MAY NOT BE
TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT
AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS QFL MULTI-DRAW TERM NOTE AND THE
OBLIGATIONS EVIDENCED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE
ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$____________ New York, New York
June __, 1998
FOR VALUE RECEIVED, the undersigned, U.S. OFFICE PRODUCTS
COMPANY, a Delaware corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of _____________ (the "Lender") and its successors
and assigns, at the office of The Chase Manhattan Bank, located at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in lawful money of the United States of
America and in immediately available funds, the principal amount of the lesser
of (a) __________________________ DOLLARS ($____________) and (b) the aggregate
unpaid principal amount of the Multi-Draw Term Loan made by the Lender to the
undersigned pursuant to subsection 2.6 of the Credit Agreement referred to
below, which sum shall be payable in accordance with subsection 2.9(b) of the
Credit Agreement in 16 consecutive quarterly installments, commencing December
31, 2001, each such installment to be in an amount equal to the Lender's
Multi-Draw Term Loan Percentage of the amount set forth next to the applicable
installment date in such subsection 2.9(b) (or, if less, the aggregate amount of
Multi-Draw Term Loans then outstanding).
The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time at the
applicable rates per annum and on the dates set forth in subsection 4.1 of the
Credit Agreement until such principal amount is paid in full (both before and
after judgment).
The holder of this QFL Multi-Draw Term Note is authorized to
endorse on the schedules annexed hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof the
date, Type and amount of each Multi-Draw Term Loan made pursuant to the Credit
Agreement and the date and amount of each payment or prepayment of principal
thereof, each continuation thereof, each conversion of all or a portion thereof
to another Type and, in the case of Eurodollar Loans, the length of each
Interest Period with respect thereto. Each such endorsement shall constitute
prima facie evidence of the accuracy of the information endorsed. The failure to
make any such endorsement shall not affect the obligations of the Borrower in
respect of such Multi-Draw Term Loan.
This QFL Multi-Draw Term Note is one of the QFL Multi-Draw
Term Notes referred to in, and is subject in all respects to, the Credit
Agreement, dated as of June __, 1998
(as amended, supplemented, waived or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, the several banks and other financial
institutions from time to time parties thereto (including the Lender), The Chase
Manhattan Bank, as collateral and administrative agent for such banks and
financial institutions, Bankers Trust Company, as syndication agent for such
banks and financial institutions and Xxxxxxx Xxxxx Capital Corporation, as
documentation agent for such banks and financial institutions, and is entitled
to the benefits thereof, is secured and guaranteed as provided therein and in
the Loan Documents and is subject to optional and mandatory prepayment in whole
or in part as provided therein. Reference is hereby made to the Loan Documents
for a description of the properties and assets in which a security interest has
been granted, the nature and extent of the security and the guarantees, the
terms and conditions upon which the security interests and each guarantee were
granted and the rights of the holder of this QFL Multi-Draw Term Note in respect
thereof. Each holder hereof, by its acceptance of this QFL Multi-Draw Term Note,
agrees to the terms of, and to be bound by and to observe the provisions
applicable to the Lenders contained in, the Credit Agreement. Terms used herein
which are defined in the Credit Agreement shall have such defined meanings
unless otherwise defined herein or unless the context otherwise requires.
As provided in subsection 12.6(e) of the Credit Agreement,
this QFL Multi-Draw Term Note and the obligations evidenced hereby may be
assigned in whole or in part only by registration of such assignment of this QFL
Multi-Draw Term Note and the obligations evidenced hereby on the Register
described in subsection 12.6(d) of the Credit Agreement. Any assignment of all
or part of such obligations and this QFL Multi-Draw Term Note evidencing the
same shall be registered on the Register only upon surrender for registration of
assignment of this QFL Multi-Draw Term Note evidencing such obligations, duly
endorsed by (or accompanied by a written instrument of assignment duly executed
by) the holder of this QFL Multi-Draw Term Note, and thereupon one or more new
QFL Multi-Draw Term Notes in the same aggregate principal amount shall be issued
to the designated Assignee or Assignees and this QFL Multi-Draw Term Note shall
be returned to the Borrower marked "cancelled". No assignment of this QFL
Multi-Draw Term Note and the obligations evidenced hereby shall be effective
unless such assignment shall have been recorded in the Register as provided
herein and in subsection 12.6(e) of the Credit Agreement. This QFL Multi-Draw
Term Note may not be exchanged for promissory notes that are not QFL Multi-Draw
Term Notes.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this QFL Multi-Draw Term Note shall become, or may be declared to be,
immediately due and payable, all as provided therein.
All parties now and hereafter liable with respect to this QFL
Multi-Draw Term Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive, to the maximum extent permitted by applicable law,
presentment, demand, protest and all other notices of any kind under this QFL
Multi-Draw Term Note.
THIS QFL MULTI-DRAW TERM NOTE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
U.S. OFFICE PRODUCTS COMPANY.
2
By:
Title:
3
Schedule A to QFL
Multi-Draw Term Note
--------------------
LOANS, CONTINUATIONS, CONVERSIONS AND
REPAYMENTS OF EURODOLLAR LOANS
------------------------------
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Amount of ABR Interest Period Amount of Principal Amount of Eurodollar
Amount of Eurodollar Loans Converted to and Eurodollar Rate of Eurodollar Loans Loans Converted to
Date Loans Eurodollar Loans with Respect Thereto Repaid ABR Loans
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Unpaid Principal
Balance of Eurodollar
Loans Notation Made by
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Schedule B to QFL
Multi-Draw Term Note
--------------------
LOANS, CONVERSIONS AND
REPAYMENTS OF ABR LOANS
-----------------------
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Amount of Eurodollar Amount of Principal of Amount of ABR
Amount of ABR Loans Converted to ABR ABR Loans Repaid Loans Converted to
Date Loans Loans Eurodollar Loans
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Unpaid Principal Balance
of ABR Loans Notation Made by
---------------------------------------------------------
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EXHIBIT C TO
CREDIT AGREEMENT
----------------
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
Reference is made to the Loans held by the undersigned,
___________________ (the "Non-U.S. Lender"), pursuant to the Credit
Agreement, dated as of June 9, 1998 (as amended, supplemented, waived or
otherwise modified from time to time, the "Credit Agreement"), among U.S.
Office Products Company, a Delaware corporation, (the "Borrower"), the
several banks and other financial institutions from time to time parties to
the Credit Agreement (the "Lenders"), The Chase Manhattan Bank, a New York
banking corporation, as collateral agent and administrative agent for the
Lenders, Bankers Trust Company, a New York banking corporation, as
syndication agent for the Lenders and Xxxxxxx Xxxxx Capital Corporation, a
Delaware corporation, as documentation agent for the Lenders. Unless
otherwise defined herein, terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement. The
Non-U.S. Lender is providing this certificate pursuant to subsection
4.11(b)(Y) of the Credit Agreement. The Non-U.S. Lender hereby certifies that:
(1) The Non-U.S. Lender is the sole record and beneficial
owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s))
registered in its name and in respect of which it is providing this
certificate;
(2) The Non-U.S. Lender is not a "bank" (as such term is used
in Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as
amended (the "Code")), is not subject to regulatory or other legal
requirements as a bank in any jurisdiction, and has not been treated
as a bank for purposes of any tax, securities law or other filing or
submission made to any Governmental Authority, any application made to
a rating agency or any qualification for any exemption from any tax,
securities law or other legal requirements;
(3) The Non-U.S. Lender is not a 10-percent shareholder
of the Borrower within the meaning of Section 881(c)(3)(B) of the
Code; and
(4) The Non-U.S. Lender is not a controlled foreign
corporation receiving interest from a related person within the
meaning of Section 881(c)(3)(C) of the Code.
The Non-U.S. Lender has furnished you with a certficate of its
non-U.S person status on Internal Revenue Service Form W-8. By executing this
certificate, the Non-U.S. Xxxxxx agrees that if the information provided on this
certificate changes, the Non-U.S. Lender shall so inform the Borrower and the
Administrative Agent in writing within thirty days of such change.
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate.
[NAME OF XXX-X.X. XXXXXX]
By:
--------------------------------
[Address]
Date:
---------------------
2
EXHIBIT D TO
CREDIT AGREEMENT
----------------
FORM OF
PREPAYMENT OPTION NOTICE
Attention of
---------------
Telecopy No.
---------------
[Date]
Ladies and Gentlemen:
The undersigned, The Chase Manhattan Bank, as administrative
agent (in such capacity, the "Administrative Agent") for the Lenders referred to
below, refers to the Credit Agreement, dated as of June __, 1998 (as amended,
supplemented, waived or otherwise modified from time to time, the "Credit
Agreement"), among U.S. Office Products Company, the banks and other financial
institutions from time to time parties thereto (the "Lenders"), the
Administrative Agent, Bankers Trust Company as syndication agent (in such
capacity, the "Syndication Agent") for the Lenders and Xxxxxxx Xxxxx Capital
Corporation, as documentation agent for the Lenders. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to such
terms in the Credit Agreement. The Administrative Agent hereby gives notice of
an offer of prepayment made by the Borrower pursuant to Section 4.4(h) of the
Credit Agreement of the Tranche B Prepayment Amount. Amounts applied to prepay
the Tranche B Term Loans shall be applied pro rata to the Tranche B Term Loan
held by you. The portion of the prepayment amount to be allocated to the Tranche
B Term Loan held by you and the date on which such prepayment will be made to
you (should you elect to receive such prepayment) are set forth below:
(A) Total Tranche B Term Loan Prepayment Amount
------------
(B) Portion of Tranche B Prepayment Amount to be
received by you ------------
(C) Prepayment Date (10 Business Days after the
date of this Prepayment Option Notice)
------------
IF YOU DO NOT WISH TO RECEIVE ALL OF THE TRANCHE B PREPAYMENT
AMOUNT TO BE ALLOCATED TO YOU ON THE PREPAYMENT DATE INDICATED IN PARAGRAPH (C)
ABOVE, please sign this notice in the space provided below and indicate the
percentage of the Tranche B Prepayment Amount otherwise payable which you do not
wish to receive. Please return this notice as so completed via
telecopy to the attention of ___________________ at ____________________, no
later than [10:00] a.m., New York City time, on the Prepayment Date, at telecopy
________________. IF YOU DO NOT RETURN THIS NOTICE, YOU WILL RECEIVE 100% OF THE
TRANCHE B PREPAYMENT ALLOCATED TO YOU ON THE PREPAYMENT DATE.
THE CHASE MANHATTAN BANK
as Administrative Agent
By:
------------------------
Name:
Title:
[LENDER]
By:
------------------------
Name:
Title:
Percentage of Tranche B
Prepayment Amount
Declined: %
----------
2
EXHIBIT E TO
CREDIT AGREEMENT
FORM OF
MORTGAGE
from
[SUBSIDIARY GUARANTOR], Mortgagor
to
THE CHASE MANHATTAN BANK, as Administrative Agent, Mortgagee
DATED AS OF JUNE __, 1998
After recording, please return to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxx Xxxxxxxx, Esq.
TABLE OF CONTENTS
Page
Background......................................................... 1
Granting Clauses................................................... 3
Terms and Conditions............................................... 6
1. Warranty of Title..................................... 6
2. Payment of Obligations................................ 6
3. Requirements.......................................... 6
4. Payment of Taxes and Other Impositions................ 7
5. Insurance............................................. 8
6. Restrictions on Liens and Encumbrances................ 13
7. Due on Sale and Other Transfer Restrictions........... 13
8. Maintenance; No Alteration; Inspection; Utilities..... 13
9. Condemnation/Eminent Domain........................... 13
10. Restoration.......................................... 14
11. Leases............................................... 14
12. Further Assurances................................... 16
13. Mortgagee's Right to Perform......................... 16
14. Events of Default.................................... 16
15. Remedies............................................. 17
16. Right of Mortgagee to Credit Sale.................... 18
17. Appointment of Receiver.............................. 18
18. Extension, Release, etc.............................. 18
19. Security Agreement under Uniform Commercial Code..... 19
20. Assignment of Rents.................................. 20
21. Additional Rights.................................... 21
22. Changes in Method of Taxation........................ 21
23. Notices.............................................. 21
24. No Oral Modification................................. 21
25. Partial Invalidity................................... 21
26. Mortgagor's Waiver of Rights......................... 22
27. Remedies Not Exclusive............................... 22
28. Multiple Security.................................... 22
29. Successors and Assigns............................... 23
30. No Waivers, etc.................................. 24
31. Governing Law, etc................................... 24
32. Waiver of Trial by Jury.............................. 24
33. Certain Definitions.................................. 24
34. Release of Mortgage.................................. 25
35. Conflict with Credit Agreement....................... 25
Schedule A......................................................... 28
-i-
MORTGAGE
THIS MORTGAGE, dated as of June 9, 1998 is made by [SUBSIDIARY
GUARANTOR], a _________ corporation whose address is ______________________
("Mortgagor"), to THE CHASE MANHATTAN BANK, a New York banking corporation whose
address is 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as Administrative Agent (in
such capacity, together with its successors and assigns, "Mortgagee") for itself
and the several banks and financial institutions (collectively, the "Lenders")
(together with any banking affiliate of any Lender entering into an Interest
Rate Protection Agreement) from time to time parties to the Credit Agreement
dated as of the date hereof under such agreement or any successor agreements (as
the same may be amended, waived, supplemented or otherwise modified from time to
time and together with any such agreement, the "Credit Agreement") among
Mortgagor, the Lenders and Mortgagee. References to this "Mortgage" shall mean
this instrument and any and all renewals, modifications, amendments,
supplements, extensions, consolidations, substitutions, spreaders and
replacements of this instrument. Unless otherwise defined herein, capitalized
terms herein shall have the meanings ascribed to them in the Credit Agreement.
Background
A. U.S. Office Products Company, a Delaware corporation (the
"Borrower") has entered into that certain Credit Agreement dated as of the date
hereof (as the same may be amended, supplemented, restated or otherwise modified
from time to time, the "Credit Agreement") with Blue Star Group, Limited, a New
Zealand corporation, the several banks and other financial institutions or
entities from time to time parties thereto (the "Lenders"), Banker Trust
Company, as Syndication Agent, Xxxxxxx Xxxxx Capital Corporation, as
Documentation Agent and Mortgagee. Capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Credit Agreement.
References in this Mortgage to the "Default Rate" shall mean the interest rate
applicable to ABR Loans that are Tranche B Term Loans as provided for in
subsection 4.1(c) of the Credit Agreement plus 2%.
X. Xxxxxxxxx is the fee owner of the parcel(s) of real
property together with the improvements located thereon (the "Improvements")
described on Schedule A attached hereto (the "Real Estate").
C. Pursuant to the terms of the Credit Agreement, (1) the
Lenders have agreed (a) to make certain Revolving Credit Loans to Borrower in an
aggregate principal amount at any one time outstanding not to exceed
$250,000,000.00 and (b) to make certain Term Loans to Borrower in an aggregate
principal amount not to exceed $775,000,000.00, (2) the Multi-Draw Term Loan
Lenders have agreed to make certain Multi-Draw Term Loans to Borrower in an
aggregate principal amount at any one time outstanding not to exceed
$200,000,000.00, (3) the Swing Line Lender has agreed to make certain Swing Line
Loans to Borrower in an aggregate
2
principal amount at any one time outstanding not to exceed $15,000,000.00, and
(4) the Issuing Lender has agreed to issue, and the other Lenders which are L/C
Participants have agreed to acquire participating interests in, Letters of
Credit for the account of Borrower; the sum of (i) the aggregate then undrawn
and unexpired amount of the then outstanding Letters of Credit and (ii) the
aggregate amount of drawings under the Letters of Credit which have not been
reimbursed pursuant to subsection 3.5(a) of the Credit Agreement shall not
exceed $50,000,000.00. The maximum aggregate principal amount of the Loans and
the L/C Obligations outstanding at any one time shall not exceed
$1,225,000,000.00.
D. It is a condition precedent to the effectiveness of the
Credit Agreement and the obligations of the Lenders to make their respective
extensions of credit to the Borrower thereunder inter alia, that (1) Mortgagor
guaranty the obligations of Borrower under the Credit Agreement and the other
Loan Documents in respect of the Loans and the Reimbursement Obligations by
executing and delivering that certain Guarantee and Collateral Agreement dated
as of even date herewith in favor of Mortgagee (as the same may be amended,
supplemented or otherwise modified from time to time, the "Guarantee and
Collateral Agreement") and (2) Mortgagor secure its obligations under the
Guarantee and Collateral Agreement by executing and delivering this Mortgage.
Mortgagor, a subsidiary of the Company, will receive substantial direct and
indirect benefit from the extensions of credit made to the Borrower pursuant to
the Credit Agreement.
NOW THEREFORE, in consideration of the premises and for the
sum of Ten Dollars ($10.00), the receipt and sufficiency of which are hereby
acknowledged, Xxxxxxxxx hereby agrees as follows:
3
Granting Clauses
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Xxxxxxxxx agrees that to secure
the following (collectively, the "Obligations"):
A. the due and punctual payment and performance by
Mortgagor of any and all of its obligations and liabilities,
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 the Guarantee and
Collateral Agreement;
B. the payment of all other obligations and
liabilities of Mortgagor, 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 the Guarantee and Collateral Agreement, this
Mortgage, any other document securing payment of the
Obligations (the "Security Documents") and any amendments,
supplements, extensions, renewals, restatements, replacements
or modifications of any of the foregoing (the Credit
Agreement, the Letters of Credit, the Interest Rate Protection
Agreements, the Guarantee and Collateral Agreement, this
Mortgage and the other Security Documents and all other
documents and instruments from time to time evidencing,
securing or guaranteeing the payment and performance of the
Obligations, as any of the same may be amended, supplemented,
extended, renewed, restated, replaced or modified from time to
time, are collectively referred to as the "Loan Documents"),
in each case whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses
or otherwise (including, without limitation, all fees, charges
and disbursements of counsel to Mortgagee or to the Lenders
that are required to be paid by Mortgagor pursuant to the
terms of the Credit Agreement, this Mortgage or any other Loan
Document); and
C. the performance of all covenants, agreements,
obligations and liabilities of Mortgagor under or pursuant to
the provisions of the Loan Documents; and
D. IT IS AGREED THAT THIS MORTGAGE SHALL STAND AS
SECURITY FOR ALL SUCH FUTURE AND ADDITIONAL INDEBTEDNESS
WHETHER IT BE INCURRED FOR ANY BUSINESS PURPOSE THAT WAS
RELATED OR WHOLLY UNRELATED TO THE PURPOSE OF THE LOANS, OR
WHETHER IT WAS INCURRED FOR SOME PERSONAL OR NONBUSINESS
PURPOSE, OR FOR ANY OTHER PURPOSE RELATED OR UNRELATED, OR
SIMILAR OR DISSIMILAR, TO THE PURPOSE OF THE LOANS;
XXXXXXXXX XXXXXX GRANTS TO MORTGAGEE A LIEN UPON AND A SECURITY INTEREST IN, AND
HEREBY MORTGAGES, GRANTS, BARGAINS, SELLS, CONVEYS, ASSIGNS, TRANSFERS AND SETS
OVER TO MORTGAGEE:
4
(A) the Real Estate;
(B) all the estate, right, title, claim or demand whatsoever
of Mortgagor, in possession or expectancy, in and to the Real Estate or
any part thereof;
(C) all right, title and interest of Mortgagor in, to and
under all easements, rights of way, gores of land, streets, ways,
alleys, passages, sewer rights, waters, water courses, water and
riparian rights, development rights, air rights, mineral rights and all
estates, rights, titles, interests, privileges, licenses, tenements,
hereditaments and appurtenances belonging, relating or appertaining to
the Real Estate, and any reversions, remainders, rents, issues, profits
and revenue thereof and all land lying in the bed of any street, road
or avenue, in front of or adjoining the Real Estate to the center line
thereof;
(D) all right, title and interest of Mortgagor in and to all
of the fixtures, chattels, business machines, machinery, apparatus,
equipment, furnishings, fittings and articles of personal property of
every kind and nature whatsoever, and all appurtenances and additions
thereto and substitutions or replacements thereof (together with, in
each case, attachments, components, parts and accessories), currently
owned or subsequently acquired by Xxxxxxxxx and now or subsequently
attached to, or contained in or used or usable in any way in connection
with any operation or letting of the Real Estate, including but without
limiting the generality of the foregoing, all screens, awnings, shades,
blinds, curtains, draperies, artwork, carpets, rugs, storm doors and
windows, furniture and furnishings, heating, electrical, and mechanical
equipment, lighting, switchboards, plumbing, ventilating, air
conditioning and air- cooling apparatus, refrigerating, and
incinerating equipment, escalators, elevators, loading and unloading
equipment and systems, stoves, ranges, laundry equipment, cleaning
systems (including window cleaning apparatus), telephones,
communication systems (including satellite dishes and antennae),
televisions, computers, sprinkler systems and other fire prevention and
extinguishing apparatus and materials, security systems, motors,
engines, machinery, pipes, pumps, tanks, conduits, appliances, fittings
and fixtures of every kind and description (all of the foregoing in
this paragraph (D) being referred to as the "Equipment");
(E) all right, title and interest of Xxxxxxxxx in and to all
substitutes and replacements of, and all additions and improvements to,
the Real Estate and the Equipment, subsequently acquired by or released
to Mortgagor or constructed, assembled or placed by Mortgagor on the
Real Estate, immediately upon such acquisition, release, construction,
assembling or placement, including, without limitation, any and all
building materials whether stored at the Real Estate or offsite, and,
in each such case, without any further mortgage, conveyance, assignment
or other act by Mortgagor;
(F) all right, title and interest of Mortgagor in, to and
under all leases, subleases, underlettings, concession agreements,
management agreements, licenses and other agreements relating to the
use or occupancy of the Real Estate or the Equipment or any part
thereof, now existing or subsequently entered into by Mortgagor and
whether written or oral and all guarantees of any of the foregoing
(collectively, as any of the foregoing may be amended, restated,
extended, renewed or modified from time to time, the
5
"Leases"), and all rights of Mortgagor in respect of cash and
securities deposited thereunder and the right to receive and collect
the revenues, income, rents, issues and profits thereof, together with
all other rents, royalties, issues, profits, revenue, income and other
benefits arising from the use and enjoyment of the Mortgaged Property
(as defined below) (collectively, the "Rents");
(G) all books and records relating to or used in connection
with the operation of the Real Estate or the Equipment or any part
thereof;
(H) all unearned premiums under insurance policies now or
subsequently obtained by Mortgagor relating to the Real Estate or
Equipment and Mortgagor's interest in and to all proceeds of any such
insurance policies (including title insurance policies) including the
right to collect and receive such proceeds, subject to the provisions
relating to insurance generally set forth below; and all awards and
other compensation, including the interest payable thereon and the
right to collect and receive the same, made to the present or any
subsequent owner of the Real Estate or Equipment for the taking by
eminent domain, condemnation or otherwise, of all or any part of the
Real Estate or any easement or other right therein, subject to the
provisions relating to condemnation awards generally set forth below;
(I) all right, title and interest of Xxxxxxxxx, to the extent
assignable, in and to (i) all contracts from time to time executed by
Xxxxxxxxx or any manager or agent on its behalf relating to the
ownership, construction, maintenance, repair, operation, occupancy,
sale or financing of the Real Estate or Equipment or any part thereof
and all agreements relating to the purchase or lease of any portion of
the Real Estate or any property which is adjacent or peripheral to the
Real Estate, together with the right to exercise such options
(collectively, the "Contracts"), (ii) all consents, licenses, building
permits, certificates of occupancy and other governmental approvals
relating to construction, completion, occupancy, use or operation of
the Real Estate or any part thereof (collectively, the "Permits") and
(iii) all drawings, plans, specifications and similar or related items
relating to the Real Estate (collectively, the "Plans");
(J) any and all monies now or subsequently on deposit for the
payment of real estate taxes or special assessments against the Real
Estate or for the payment of premiums on insurance policies covering
the foregoing property or otherwise on deposit with or held by
Mortgagee as provided in this Mortgage;
(K) all accounts and revenues arising from the operation of
the Improvements; and
(L) all proceeds, both cash and noncash, of the foregoing;
but excluding any liens of the type referred to in Section
8.3(o) of the Credit Agreement (all of the foregoing property and rights and
interests now owned or held or subsequently acquired by Xxxxxxxxx and described
in the foregoing clauses (A) through (E) are collectively referred to as the
"Premises", and those described in the foregoing clauses (A) through (L) are
collectively referred to as the "Mortgaged Property").
6
Mortgagee shall have a lien upon and security interest in the
plant, property and equipment and all replacements thereof and accessions
thereto, including replacement parts and equipment, located in and on the
Mortgaged Property owned by Mortgagor and which are now and hereafter shall
become fixtures, to the extent that the foregoing are deemed to be real property
under the laws of the State in which the Premises are located. This instrument
shall constitute a fixture financing statement and filing under the Uniform
Commercial Code (the "Code").
TO HAVE AND TO HOLD the Mortgaged Property and the rights and
privileges hereby mortgaged unto Mortgagee, its successors and assigns for the
uses and purposes set forth, until the Obligations are fully paid and performed.
Terms and Conditions
Xxxxxxxxx further represents, warrants, covenants and agrees
with Mortgagee as follows:
1. Warranty of Title. Mortgagor warrants that Xxxxxxxxx has
good title to the Real Estate in fee simple and good title to the rest of the
Mortgaged Property, subject only to the matters that are set forth in Schedule B
of the title insurance policy or policies being issued to Mortgagee to insure
the lien of this Mortgage and Liens permitted by Section 8.3 of the Credit
Agreement (the "Permitted Exceptions") and Mortgagor shall warrant, defend and
preserve such title and the lien of the Mortgage thereon against all claims of
all persons and entities. Mortgagor further warrants that it has the right to
mortgage the Mortgaged Property.
2. Payment of Obligations. Mortgagor shall pay and perform all
the Obligations at the times and places and in the manner specified in the
Guarantee and Collateral Agreement and in this Mortgage.
3. Requirements.
(a) Mortgagor shall promptly comply with, or cause to be
complied with, and conform to all present and future laws, statutes, codes,
ordinances, orders, judgments, decrees, rules, regulations and requirements, and
irrespective of the nature of the work to be done, of each of the United States
of America, any State and any municipality, local government or other political
subdivision thereof and any agency, department, bureau, board, commission or
other instrumentality of any of them, now existing or subsequently created
(collectively, "Governmental Authority") which has jurisdiction over the
Mortgaged Property and all covenants, restrictions and conditions now or later
of record which may be applicable to any of the Mortgaged Property, or to the
use, manner of use, occupancy, possession, operation, maintenance, alteration,
repair or reconstruction of any of the Mortgaged Property, except to the extent
that failure to comply therewith, in the aggregate, would not reasonably be
expected to have a Material Adverse Effect. All present and future laws,
statutes, codes, ordinances, orders, judgments, decrees, rules, regulations and
requirements of every Governmental Authority applicable to Mortgagor or to any
of the Mortgaged Property and all covenants, restrictions, and conditions which
now or later may be applicable to any of the Mortgaged Property are collectively
referred to as the "Legal Requirements".
7
(b) From and after the date of this Mortgage, Mortgagor shall
not by act or omission permit, other than Permitted Exceptions, any building or
other improvement on any premises not subject to the lien of this Mortgage to
rely on the Premises or any part thereof or any interest therein to fulfill any
Legal Requirement, and Mortgagor hereby assigns to Mortgagee any and all rights
to give consent for all or any portion of the Premises or any interest therein
to be so used. Mortgagor shall not by act or omission impair the integrity of
any of the Real Estate as a single zoning lot separate and apart from all other
premises. Mortgagor represents that each parcel of the Real Estate constitutes a
legally subdivided lot, in compliance with all subdivision laws and similar
Legal Requirements, except to the extent that failure to comply therewith, in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect. Any act or omission by Mortgagor which would result in a violation of
any of the provisions of this subsection shall be void.
4. Payment of Taxes and Other Impositions. (a) Mortgagor,
prior to delinquency, shall pay and discharge all taxes of every kind and nature
(including, without limitation, all real and personal property, income,
franchise, withholding, transfer, gains, profits and gross receipts taxes), all
charges for any easement or agreement maintained for the benefit of any of the
Mortgaged Property, all general and special assessments, levies, permits,
inspection and license fees, all water and sewer rents and charges and all other
public charges even if unforeseen or extraordinary, imposed upon or assessed
against or which may become a lien on any of the Mortgaged Property, or arising
in respect of the occupancy, use or possession thereof, together with any
penalties or interest on any of the foregoing (all of the foregoing are
collectively referred to as the "Impositions"). Mortgagor shall within 30 days
after the request of Mortgagee deliver to Mortgagee (i) original or copies of
receipted bills and cancelled checks evidencing payment of such Imposition if it
is a real estate tax or other public charge and (ii) evidence reasonably
acceptable to Mortgagee showing the payment of any other such Imposition. If by
law any Imposition, at Xxxxxxxxx's option, may be paid in installments (whether
or not interest shall accrue on the unpaid balance of such Imposition),
Mortgagor may elect to pay such Imposition in such installments and shall be
responsible for the payment of such installments with interest, if any.
(b) Nothing herein shall affect any right or remedy of
Mortgagee under this Mortgage or otherwise, without notice or demand to
Mortgagor, to pay any Imposition after the date such Imposition shall have
become delinquent, and to add to the Obligations the amount so paid, together
with interest from the time of payment at the Default Rate. Any sums paid by
Mortgagee in discharge of any Impositions shall be (i) a lien on the Premises
secured hereby prior to any right or title to, interest in, or claim upon the
Premises subordinate to the lien of this Mortgage, and (ii) payable on demand by
Xxxxxxxxx to Mortgagee together with interest at the Default Rate as set forth
above.
(c) Xxxxxxxxx shall not claim, demand or be entitled to
receive any credit or credits toward the satisfaction of this Mortgage or on any
interest payable thereon for any taxes assessed against the Mortgaged Property
or any part thereof, and shall not claim any deduction from the taxable value of
the Mortgaged Property by reason of this Mortgage.
(d) Mortgagor shall have the right before any delinquency
occurs to contest or object in good faith to the amount or validity of any
Imposition by appropriate legal proceedings,
8
but such right shall not be deemed or construed in any way as relieving,
modifying, or extending Mortgagor's covenant to pay any such Imposition at the
time and in the manner provided in this Section unless (i) Mortgagor has given
prior written notice to Mortgagee of Mortgagor's intent so to contest or object
to an Imposition, (ii) Mortgagor shall demonstrate to Mortgagee's satisfaction
that the legal proceedings shall operate conclusively to prevent the sale of the
Mortgaged Property, or any part thereof, to satisfy such Imposition prior to
final determination of such proceedings and (iii) Mortgagor shall have set aside
on its books adequate reserves as required by GAAP.
(e) Upon written notice to Mortgagor, Mortgagee during the
continuance of an Event of Default (as defined below) shall be entitled to
require Mortgagor to pay monthly in advance to Mortgagee the equivalent of
1/12th of the estimated annual Impositions. Mortgagee may commingle such funds
with its own funds and Mortgagor shall not be entitled to interest thereon.
5. Insurance. (a) Mortgagor shall maintain or cause to be
maintained on all of the Premises
(i) property insurance against loss or damage by fire,
lightning, windstorm, tornado, water damage, flood, earthquake and by
such other further risks and hazards as now are or subsequently may be
covered by an "all risk" policy or a fire policy covering "special"
causes of loss (provided, however, that the maintenance of insurance
against earthquake and flood risks shall be subject to availability of
such insurance coverage on commercially reasonable terms). The policy
shall include building ordinance law endorsements and the policy limits
shall be automatically reinstated after each loss (other than with
respect to flood and earthquake coverage which shall be reinstated on a
commercially reasonable basis);
(ii) commercial general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language or similar language of such endorsement), covering all claims
for personal injury, bodily injury or death, or property damage,
subject to standard policy terms, conditions and exclusions, occurring
on, in or about the Premises in an amount not less than $10,000,000
combined single limit with respect to personal injury, bodily injury or
death, or property damage, relating to any one occurrence plus such
excess limits as Mortgagee shall reasonably request from time to time;
(iii) when and to the extent reasonably required by
Mortgagee, insurance against loss or damage by any other risk commonly
insured against by persons occupying or using like properties in the
locality or localities in which the Real Estate is situated;
(iv) during the course of any construction or repair of
Improvements, commercial general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language or similar language of such endorsement), (including coverage
for elevators and escalators, if any). The policy shall include
coverage for independent contractors and completed operations. The
completed operations coverage shall stay in effect for two years after
construction of any
9
Improvements has been completed. The policy shall provide coverage on
an occurrence basis against claims for personal injury, bodily injury,
death and property damage resulting from Xxxxxxxxx's negligence or
other behavior for which Mortgagor may be adjudged tortiously liable,
subject to standard policy terms, conditions and exclusions, occurring
on, in or about the Premises and the adjoining streets, sidewalks and
passageways, such insurance to afford immediate minimum protection to
a limit of not less than that reasonably required by Mortgagee with
respect to personal injury, bodily injury or death to any one or more
persons or damage to property;
(v) during the course of any construction or repair of the
Improvements, workers' compensation insurance (including employer's
liability insurance) for all employees of Mortgagor engaged on or with
respect to the Premises in such amounts as are reasonably satisfactory
to Mortgagee, but in no event less than the limits established by law;
(vi) during the course of any construction, addition,
alteration or repair of the Improvements, builder's risk completed
value property insurance form against "all risks of physical loss,"
including collapse, water damage, flood and earthquake and transit
coverage, during construction or repairs of the Improvements in
reporting form, covering the total replacement value of work performed
and equipment, supplies and materials furnished (with an appropriate
limit for soft costs in the case of construction); provided, however,
that the maintenance of insurance against earthquake and flood risks
shall be subject to availability of such insurance coverage on
commercially reasonable terms;
(vii) boiler and machinery property insurance covering
pressure vessels, air tanks, boilers, machinery, pressure piping,
heating, air conditioning and elevator equipment and escalator
equipment, provided the Improvements contain equipment of such nature,
in such amounts as are reasonably satisfactory to Mortgagee but not
less than the lesser of $1,000,000 or 10% of the value of the
Improvements;
(viii) if any portion of the Premises are located in an area
identified as a special flood hazard area by the Federal Emergency
Management Agency or other applicable agency, flood insurance in an
amount reasonably satisfactory to Mortgagee, but in no event less than
the maximum limit of coverage available under the National Flood
Insurance Act of 1968, as amended; and
(ix) such other insurance in such amounts as Mortgagee may
reasonably request from time to time.
Each insurance policy (other than flood insurance written under the National
Flood Insurance Act of 1968, as amended, in which case to the extent available)
shall (i) provide that it shall not be cancelled, non-renewed or materially
amended without 30-days' prior written notice to Mortgagee, and (ii) with
respect to all property insurance, provide for deductibles not to exceed
$250,000, other than with respect to windstorm and earthquake perils for which
deductibles shall not exceed $500,000, contain a "Replacement Cost Endorsement"
without any deduction made for depreciation and with no co-insurance penalty (or
attaching an agreed amount endorsement reasonably satisfactory to Mortgagee),
with loss payable solely to Mortgagee (modified, if necessary, to provide that
proceeds in the amount of replacement cost may be retained by
10
Mortgagee without the obligation to rebuild) as its interest may appear, without
contribution, under a "standard" or "New York" mortgagee clause reasonably
acceptable to Mortgagee and be written by insurance companies having an A.M.
Best Company, Inc. rating of A- or higher and a financial size category of not
less than VII, or otherwise as reasonably approved by Mortgagee. Liability
insurance policies shall name Mortgagee as an additional insured and contain a
waiver of subrogation against Mortgagee; all such policies shall indemnify and
hold Mortgagee harmless from all liability claims occurring on, in or about the
Premises and the adjoining streets, sidewalks and passageways, subject to
standard policy terms, conditions and exclusions. The amounts of each insurance
policy and the form of each such policy shall at all times be reasonably
satisfactory to Mortgagee. Each policy shall expressly provide that any proceeds
which are payable to Mortgagee shall be paid by check payable to the order of
Mortgagee only and requiring the endorsement of Mortgagee only. If any required
insurance shall expire, be withdrawn, become void by breach of any condition
thereof by Mortgagor or by any lessee of any part of the Mortgaged Property or
become void or unsafe by reason of the failure or impairment of the capital of
any insurer, or if for any other reason whatsoever such insurance shall become
unsatisfactory to Mortgagee, Mortgagor shall immediately obtain new or
additional insurance reasonably satisfactory to Mortgagee. Mortgagor shall not
take out any separate or additional insurance which is contributing in the event
of loss unless it is properly endorsed and otherwise reasonably satisfactory to
Mortgagee in all respects.
(b) Mortgagor shall deliver to Mortgagee an original of each
insurance policy required to be maintained, or a certificate of such insurance
reasonably acceptable to Mortgagee, together with a copy of the declaration page
for each such policy. Mortgagor shall (i) pay as they become due all premiums
for such insurance, (ii) not later than 7 days prior to the expiration of each
policy to be furnished pursuant to the provisions of this Section, deliver a
renewed policy or policies or certificates of insurance reasonably acceptable to
Mortgagee, or duplicate original or originals thereof. Within 60 days of the
inception of each insurance policy or renewal, Mortgagor shall deliver to
Mortgagee evidence reasonably satisfactory to Mortgagee of payment therefor.
Upon the reasonable request of Mortgagee, Mortgagor shall cause its insurance
underwriter or broker to certify to Mortgagee in writing that all the
requirements of this Mortgage governing insurance have been satisfied.
(c) If Mortgagor is in default of its obligations to insure or
deliver any such prepaid policy or policies or certificates of insurance
reasonably acceptable to Mortgagee, then Mortgagee, at its option and without
notice, may effect such insurance from year to year, and pay the premium or
premiums therefor, and Mortgagor shall pay to Mortgagee on demand such premium
or premiums so paid by Mortgagee with interest from the time of payment at the
Default Rate and the same shall be deemed to be secured by this Mortgage and
shall be collectible in the same manner as the Obligations secured by this
Mortgage.
(d) Mortgagor shall increase the amount of property insurance
required to equal 100% replacement cost pursuant to the provisions of this
Section at the time of each renewal of each policy (but not later than 12 months
from the date of this Mortgage and each successive 12 month period to occur
thereafter) by using the Xxxxxxxx & Swift Building Cost Index to determine
whether there shall have been an increase in the replacement value since the
most recent adjustment and, if there shall have been such an increase, the
amount of insurance required shall be adjusted accordingly.
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(e) Mortgagor promptly shall in all material respects comply
with and conform to (i) all provisions of each such insurance policy, and (ii)
all requirements of the insurers applicable to Mortgagor or to any of the
Mortgaged Property or to the use, manner of use, occupancy, possession,
operation, maintenance, alteration or repair of any of the Mortgaged Property.
Mortgagor shall not use or permit the use of the Mortgaged Property in any
manner which would permit any insurer to cancel any insurance policy or void
coverage required to be maintained by this Mortgage.
(f) If the Mortgaged Property, or any part thereof, shall be
destroyed or damaged by fire or any other casualty, whether insured or
uninsured, or in the event any claim is made against Mortgagor for any personal
injury, bodily injury or property damage incurred on or about the Premises,
Xxxxxxxxx shall promptly give notice thereof to Mortgagee. If the Mortgaged
Property is damaged by fire or other casualty and the cost to repair such damage
is less than the lesser of (i) 30% of the replacement cost of the Improvements
at the affected Real Estate site and (ii) $1,000,000, then provided that no
Event of Default shall have occurred and be continuing, Mortgagor shall have the
right to adjust such loss, and the insurance proceeds relating to such loss may
be paid over to Mortgagor; provided that Mortgagor shall, promptly after any
such damage, repair in all material respects all such damage regardless of
whether any insurance proceeds have been received or whether such proceeds, if
received, are sufficient to pay for the costs of repair. If the Mortgaged
Property is damaged by fire or other casualty, and the cost to repair such
damage exceeds the above limit, or if an Event of Default shall have occurred
and be continuing, then Mortgagor authorizes and empowers Mortgagee, at
Mortgagee's option and in Mortgagee's reasonable discretion, as attorney-in-fact
for Mortgagor, to make proof of loss, to adjust and compromise any claim under
any insurance policy, to appear in and prosecute any action arising from any
policy, to collect and receive insurance proceeds and to deduct therefrom
Mortgagee's expenses incurred in the collection process. Each insurance company
concerned is hereby authorized and directed to make payment for such loss
directly to Mortgagee. Mortgagee shall have the right to require Mortgagor to
repair or restore the Mortgaged Property in all material respects, and Mortgagor
hereby designates Mortgagee as its attorney-in-fact for the purpose of making
any election required or permitted under any insurance policy relating to repair
or restoration. The insurance proceeds or any part thereof received by Mortgagee
may be applied by Mortgagee toward reimbursement of all reasonable costs and
expenses of Mortgagee in collecting such proceeds, and the balance shall be
advanced to Mortgagor to be used for the restoration or repair of the Mortgaged
Property, provided, however, if an Event of Default has occurred and is
continuing, the balance may be applied, at Mortgagee's option in its sole and
absolute discretion, to the principal (to the installments in inverse order of
maturity, if payable in installments) and interest due or to become due on the
Loans, to fulfill any other Obligation of Mortgagor, to the restoration or
repair of the property damaged, or released to Mortgagor. In the event Mortgagee
elects to release such proceeds to Mortgagor, Mortgagor shall be obligated to
use such proceeds to restore or repair the Mortgaged Property. Application by
Mortgagee of any insurance proceeds toward the last maturing installments of
principal and interest due or to become due on the Loans shall not excuse
Mortgagor from making any regularly scheduled payments due thereunder, nor shall
such application extend or reduce the amount of such payments.
(g) In the event of foreclosure of this Mortgage or other
transfer of title to the Mortgaged Property in extinguishment of the
Obligations, all right, title and interest of Mortgagor in and to any insurance
policies then in force shall pass to the purchaser or grantee
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and Mortgagor hereby appoints Mortgagee its attorney-in-fact, in Xxxxxxxxx's
name, to assign and transfer all such policies and proceeds to such purchaser or
grantee.
(h) Upon written notice to Mortgagor, Mortgagee, during the
continuance of an Event of Default, shall be entitled to require Mortgagor to
pay monthly in advance to Mortgagee the equivalent of 1/12th of the estimated
annual premiums due on such insurance. Mortgagee may commingle such funds with
its own funds and Mortgagor shall not be entitled to interest thereon.
(i) Mortgagor may maintain insurance required under this
Mortgage by means of one or more blanket insurance policies maintained by
Mortgagor; provided, however, that (A) any such policy shall specify, or
Mortgagor shall furnish to Mortgagee a written statement from the insurer so
specifying, the maximum amount of the total insurance afforded by such blanket
policy that is allocated to the Premises and the other Mortgaged Property and
any sublimits in such blanket policy applicable to the Premises and the other
Mortgaged Property, (B) each such blanket policy shall include an endorsement
providing that, in the event of a loss resulting from an insured peril,
insurance proceeds shall be allocated to the Mortgaged Property in an amount
equal to the coverages required to be maintained by Mortgagor as provided above
and (C) the protection afforded under any such blanket policy shall be no less
than that which would have been afforded under a separate policy or policies
relating only to the Mortgaged Property.
6. Restrictions on Liens and Encumbrances. Except for the lien
of this Mortgage and the Permitted Exceptions and except as otherwise permitted
pursuant to the terms of the Credit Agreement, Mortgagor shall not further
mortgage, nor otherwise encumber the Mortgaged Property nor create or suffer to
exist any lien, charge or encumbrance on the Mortgaged Property, or any part
thereof, whether superior or subordinate to the lien of this Mortgage and
whether recourse or non-recourse.
7. Due on Sale and Other Transfer Restrictions. Except as may
be permitted pursuant to Sections 8.5 and 8.6 of the Credit Agreement, Mortgagor
shall not sell, transfer, convey or assign all or any portion of, or any
interest in, the Mortgaged Property.
8. Maintenance; No Alteration; Inspection; Utilities. (a)
Mortgagor shall maintain or cause to be maintained all the Improvements in good
condition and repair and shall not commit or suffer any waste of the
Improvements. Mortgagor shall repair, restore, replace or rebuild promptly any
part of the Premises which may be damaged or destroyed by any casualty
whatsoever to a condition substantially equivalent to its condition prior to the
damage or destruction. Except as permitted by the Credit Agreement, the
Improvements shall not be demolished or materially altered, nor any material
additions built, without the prior written consent of Mortgagee, provided that
Mortgagor may make alterations or additions without the consent of Mortgagee
that do not materially reduce the value of the Mortgaged Property.
(b) Mortgagee and any persons authorized by Mortgagee shall,
upon reasonable notice and at any reasonable time, have the right to enter and
inspect the Premises and the right to inspect all work done, labor performed and
materials furnished in and about the Improvements and the right to inspect and
make copies, to the extent reasonable, of all books, contracts and records of
Mortgagor relating to the Mortgaged Property.
13
(c) Mortgagor shall pay or cause to be paid prior to
delinquency, all utility charges which are incurred for gas, electricity, water
or sewer services furnished to the Premises and all other assessments or charges
of a similar nature, whether public or private, affecting the Premises or any
portion thereof, whether or not such assessments or charges are liens thereon.
9. Condemnation/Eminent Domain. Promptly upon obtaining
knowledge of the institution of any proceedings for the condemnation of the
Mortgaged Property, or any portion thereof, Mortgagor will notify Mortgagee of
the pendency of such proceedings. Xxxxxxxxx authorizes Mortgagee, at Mortgagee's
option and in Mortgagee's reasonable discretion, as attorney-in-fact for
Xxxxxxxxx, to commence, appear in and prosecute, in Mortgagee's or Xxxxxxxxx's
name, any action or proceeding relating to any condemnation of the Mortgaged
Property, or any portion thereof, and to settle or compromise any claim in
connection with such condemnation upon the occurrence and during the continuance
of an Event of Default. If Mortgagee elects not to participate in such
condemnation proceeding, then Mortgagor shall, at its expense, diligently
prosecute any such proceeding and shall consult with Mortgagee, its attorneys
and experts and cooperate with them in any defense of any such proceedings. All
awards and proceeds of condemnation shall be assigned to Mortgagee to be applied
in the same manner as insurance proceeds, as provided above, and Xxxxxxxxx
agrees to execute any such assignments of all such awards as Mortgagee may
request.
10. Restoration. If Mortgagee elects or is required hereunder
to release funds to Mortgagor for restoration of any of the Mortgaged Property,
then such restoration shall be performed only in accordance with the following
conditions:
(i) prior to the commencement of any restoration, the
plans and specifications for such restoration, and the budgeted costs,
shall be submitted to and reasonably approved by Mortgagee;
(ii) prior to making any advance of restoration funds,
Mortgagee shall be reasonably satisfied that the remaining restoration
funds are sufficient to complete the restoration and to pay all related
expenses, including interest on the Obligations and real estate taxes
on the Premises, during restoration;
(iii) at the time of any disbursement of the restoration
funds, (A) no Default shall then exist, (B) no mechanics' or
materialmen's liens shall have been filed and remain undischarged,
except those discharged by the disbursement of the requested
restoration funds and (C) a reasonably satisfactory bring-down or
continuation of title insurance on the Premises shall be delivered to
Mortgagee;
(iv) disbursements shall be made from time to time in an
amount not exceeding the cost of the work completed since the last
disbursement, upon receipt of reasonably satisfactory evidence of the
stage of completion and of performance of the work in a good and
workmanlike manner and in accordance with the contracts, plans and
specifications reasonably acceptable to Mortgagee;
(v) with respect to each advance of restoration funds,
Mortgagee may retain 10% of the amount of such advance as a holdback
until the restoration is fully
14
completed;
(vi) the restoration funds shall bear no interest and may
be commingled with Mortgagee's other funds;
(vii) Mortgagee may impose such other conditions as are
customarily imposed by construction lenders; and
(viii) any restoration funds remaining shall be retained by
Mortgagee and shall be applied by Mortgagee to the Obligations in the
order specified in subsection 4.4(g) of the Credit Agreement or to
other expenses related to the Mortgaged Property, as herein permitted.
11. Leases. (a) Mortgagor shall not (i) execute an assignment
or pledge of any Lease relating to all or any portion of the Mortgaged Property
other than in favor of Mortgagee, or (ii) without the prior written consent of
Mortgagee, which consent shall not be unreasonably withheld or delayed, execute
or permit to exist any Lease of any of the Mortgaged Property, except for
Permitted Encumbrances and except as permitted by subsection 8.6 of the Credit
Agreement.
(b) As to any Lease consented to by Mortgagee, Mortgagor
shall:
(i) promptly perform in all material respects all of the
provisions of the Lease on the part of the lessor thereunder to be
performed;
(ii) promptly enforce all of the material provisions of the
Lease on the part of the lessee thereunder to be performed;
(iii) appear in and defend any action or proceeding arising
under or in any manner connected with the Lease or the obligations of
Mortgagor as lessor or of the lessee thereunder;
(iv) exercise, within 5 days after a reasonable request by
Mortgagee, any right to request from the lessee a certificate with
respect to the status thereof;
(v) promptly deliver to Mortgagee copies of any notices of
default which Xxxxxxxxx may at any time forward to or receive from the
lessee;
(vi) promptly deliver to Mortgagee a fully executed
counterpart of the Lease; and
(vii) promptly deliver to Mortgagee, upon Mortgagee's
reasonable request, an assignment of the Mortgagor's interest under
such Lease.
(c) Mortgagor shall deliver to Mortgagee, within 10 days after
a reasonable request by Mortgagee, a written statement, certified by Xxxxxxxxx
as being true, correct and complete, containing the names of all lessees and
other occupants of the Mortgaged Property, the terms of all Leases and the
spaces occupied and rentals payable thereunder, and a list of all
15
Leases which are then in default, including the nature and magnitude of the
default; such statement shall be accompanied by credit information with respect
to the lessees and such other information as Mortgagee may reasonably request.
(d) All Leases entered into by Mortgagor after the date
hereof, if any, and all rights of any lessees thereunder shall be subject and
subordinate in all respects to the lien and provisions of this Mortgage unless
Mortgagee shall otherwise elect in writing.
(e) As to any Lease now in existence or subsequently consented
to by Mortgagee, Mortgagor shall not supplement, alter, revise, modify or amend
such Lease or permit any such action to be taken nor shall Mortgagor accept the
payment of rent more than thirty (30) days in advance of its due date.
(f) In the event of the enforcement by Mortgagee of any remedy
under this Mortgage, the lessee under each Lease shall, if requested by
Mortgagee or any other person succeeding to the interest of Mortgagee as a
result of such enforcement, attorn to Mortgagee or to such person and shall
recognize Mortgagee or such successor in interest as lessor under the Lease
without change in the provisions thereof; provided however, that Mortgagee or
such successor in interest shall not be: (i) bound by any payment of an
installment of rent or additional rent which may have been made more than 30
days before the due date of such installment; (ii) bound by any amendment or
modification to the Lease made without the consent of Mortgagee or such
successor in interest; (iii) liable for any previous act or omission of
Mortgagor (or its predecessors in interest); (iv) responsible for any monies
owing by Mortgagor to the credit of such lessee or subject to any credits,
offsets, claims, counterclaims, demands or defenses which the lessee may have
against Mortgagor (or its predecessors in interest); (v) bound by any covenant
to undertake or complete any construction of the Premises or any portion
thereof; or (vi) obligated to make any payment to such lessee other than any
security deposit actually delivered to Mortgagee or such successor in interest.
Each lessee or other occupant, upon request by Mortgagee or such successor in
interest, shall execute and deliver an instrument or instruments confirming such
attornment. In addition, Xxxxxxxxx agrees that each Lease entered into after the
date of this Mortgage shall include language to the effect of subsections
(d)-(f) of this Section; provided that the provisions of such subsections shall
be self-operative and any failure of any Lease to include such language shall
not impair the binding effect of such provisions on any lessee under such Lease.
12. Further Assurances. To further assure Xxxxxxxxx's rights
under this Mortgage, Xxxxxxxxx agrees upon demand of Mortgagee to do any act or
execute any additional documents (including, but not limited to, security
agreements on any personalty included or to be included in the Mortgaged
Property and a separate assignment of each Lease in recordable form) as may be
reasonably required by Mortgagee to confirm the lien of this Mortgage and all
other rights or benefits conferred on Mortgagee.
13. Mortgagee's Right to Perform. If Mortgagor fails to
perform any of the covenants or agreements of Mortgagor, Mortgagee, without
waiving or releasing Mortgagor from any obligation or default under this
Mortgage, may, at any time (but shall be under no obligation to) pay or perform
the same, and the amount or cost thereof, with interest at the Default Rate,
shall immediately be due from Mortgagor to Mortgagee and the same shall be
secured by this Mortgage and shall be a lien on the Mortgaged Property prior to
any right, title to, interest in or
16
claim upon the Mortgaged Property attaching subsequent to the lien of this
Mortgage. No payment or advance of money by Mortgagee under this Section shall
be deemed or construed to cure Mortgagor's default or waive any right or remedy
of Mortgagee.
14. Events of Default. The occurrence of an Event of Default
under the Credit Agreement shall constitute an Event of Default hereunder.
15. Remedies.
(a) Upon the occurrence of any Event of Default, in addition
to any other rights and remedies Mortgagee may have pursuant to the Loan
Documents, or as provided by law, and without limitation, the Obligations and
all other amounts payable with respect to the this Mortgage and the other
applicable Loan Documents shall become due and payable as provided in the Credit
Agreement. Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
In addition, upon the occurrence of any Event of Default, Mortgagee may
immediately take such action, without notice or demand, as it deems advisable to
protect and enforce its rights against Mortgagor and in and to the Mortgaged
Property, including, but not limited to, the following actions, each of which
may be pursued concurrently or otherwise, at such time and in such manner as
Mortgagee may determine, in its sole discretion, without impairing or otherwise
affecting the other rights and remedies of Mortgagee:
(i) Mortgagee may, to the extent permitted by applicable
law, (A) institute and maintain an action of mortgage foreclosure
against all or any part of the Mortgaged Property, (B) institute and
maintain an action on the Guarantee and Collateral Agreement or any
other Loan Document, (C) sell all or part of the Mortgaged Property
(Mortgagor expressly granting to Mortgagee the power of sale), or (D)
take such other action at law or in equity for the enforcement of this
Mortgage or any of the Loan Documents as the law may allow. Mortgagee
may proceed in any such action to final judgment and execution thereon
for all sums due hereunder, together with interest thereon as provided
in the Credit Agreement and all reasonable costs of suit, including,
without limitation, reasonable attorneys' fees and disbursements.
Interest at the Default Rate shall be due on any judgment obtained by
Mortgagee from the date of judgment until actual payment is made of the
full amount of the judgment.
(ii) Mortgagee may personally, or by its agents, attorneys
and employees and without regard to the adequacy or inadequacy of the
Mortgaged Property or any other collateral as security for the
Obligations enter into and upon the Mortgaged Property and each and
every part thereof and exclude Mortgagor and its agents and employees
therefrom without liability for trespass, damage or otherwise
(Mortgagor hereby agreeing to surrender possession of the Mortgaged
Property to Mortgagee upon demand at any such time) and use, operate,
manage, maintain and control the Mortgaged Property and every part
thereof. Following such entry and taking of possession, Mortgagee shall
be entitled, without limitation, (x) to lease all or any part or parts
of the Mortgaged Property for such periods of time and upon such
conditions as Mortgagee may, in its discretion, deem proper, (y) to
enforce, cancel or modify any Lease and (z) generally to execute, do
and perform any other act, deed, matter or thing concerning the
Mortgaged Property as Mortgagee shall deem appropriate as fully as
Mortgagor might do.
17
(b) The holder of this Mortgage, in any action to foreclose
it, shall be entitled to the appointment of a receiver. In case of a foreclosure
sale, the Real Estate may be sold, at Mortgagee's election, in one parcel or in
more than one parcel and Mortgagee is specifically empowered (without being
required to do so, and in its sole and absolute discretion) to cause successive
sales of portions of the Mortgaged Property to be held.
(c) In the event of any breach of any of the covenants,
agreements, terms or conditions contained in this Mortgage, and notwithstanding
to the contrary any exculpatory or non-recourse language which may be contained
herein, subject to the giving of any notice and the expiration of any cure
period as provided for in Section 10.2(d) of the Credit Agreement, Mortgagee
shall be entitled to enjoin such breach and obtain specific performance of any
covenant, agreement, term or condition and Mortgagee shall have the right to
invoke any equitable right or remedy as though other remedies were not provided
for in this Mortgage.
16. Right of Mortgagee to Credit Sale. Upon the occurrence of
any sale made under this Mortgage, whether made under the power of sale or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale, Mortgagee may bid for and acquire the Mortgaged Property or any part
thereof. In lieu of paying cash therefor, Mortgagee may make settlement for the
purchase price by crediting upon the Obligations or other sums secured by this
Mortgage the net sales price after deducting therefrom the expenses of sale and
the cost of the action and any other sums which Mortgagee is authorized to
deduct under this Mortgage. In such event, this Mortgage and any and all
documents evidencing expenditures secured hereby may be presented to the person
or persons conducting the sale in order that the amount so used or applied may
be credited upon the Obligations as having been paid.
17. Appointment of Receiver. If an Event of Default shall have
occurred and be continuing, Mortgagee as a matter of right and without notice to
Mortgagor, unless otherwise required by applicable law, and without regard to
the adequacy or inadequacy of the Mortgaged Property or any other collateral as
security for the Obligations or the interest of Mortgagor therein, shall have
the right to apply to any court having jurisdiction to appoint a receiver or
receivers or other manager of the Mortgaged Property, and Mortgagor hereby
irrevocably consents to such appointment and waives notice of any application
therefor (except as may be required by law). Any such receiver or receivers
shall have all the usual powers and duties of receivers in like or similar cases
and all the powers and duties of Mortgagee in case of entry as provided in this
Mortgage, including, without limitation and to the extent permitted by law, the
right to enter into leases of all or any part of the Mortgaged Property, and
shall continue as such and exercise all such powers until the date of
confirmation of sale of the Mortgaged Property unless such receivership is
sooner terminated.
18. Extension, Release, etc. (a) Without affecting the lien or
charge of this Mortgage upon any portion of the Mortgaged Property not then or
theretofore released as security for the full amount of the Obligations,
Mortgagee may, from time to time and without notice, agree to (i) release any
person liable for the indebtedness guaranteed under the Guarantee and Collateral
Agreement, (ii) extend the maturity or alter any of the terms of the
indebtedness guaranteed under the Guarantee and Collateral Agreement or any
other guaranty thereof, (iii) grant other indulgences, (iv) release or reconvey,
or cause to be released or reconveyed at any
18
time at Mortgagee's option any parcel, portion or all of the Mortgaged Property,
(v) take or release any other or additional security for any obligation herein
mentioned, or (vi) make compositions or other arrangements with debtors in
relation thereto. If at any time this Mortgage shall secure less than all of the
principal amount of the Obligations, it is expressly agreed that any repayments
of the principal amount of the Obligations shall not reduce the amount of the
lien of this Mortgage until the lien amount shall equal the principal amount of
the Obligations outstanding.
(b) No recovery of any judgment by Xxxxxxxxx and no levy of an
execution under any judgment upon the Mortgaged Property or upon any other
property of Mortgagor shall affect the lien of this Mortgage or any liens,
rights, powers or remedies of Mortgagee hereunder, and such liens, rights,
powers and remedies shall continue unimpaired.
(c) If Mortgagee shall have the right to foreclose this
Mortgage, Mortgagor authorizes Mortgagee at its option to foreclose the lien of
this Mortgage subject to the rights of any tenants of the Mortgaged Property.
The failure to make any such tenants parties defendant to any such foreclosure
proceeding and to foreclose their rights will not be asserted by Mortgagor as a
defense to any proceeding instituted by Mortgagee to collect the Obligations or
to foreclose the lien of this Mortgage.
(d) Unless expressly provided otherwise, in the event that
ownership of this Mortgage and title to the Mortgaged Property or any estate
therein shall become vested in the same person or entity, this Mortgage shall
not merge in such title but shall continue as a valid lien on the Mortgaged
Property for the amount secured hereby.
19. Security Agreement under Uniform Commercial Code. (a) It
is the intention of the parties hereto that this Mortgage shall constitute a
Security Agreement within the meaning of the Code of the State in which the
Mortgaged Property is located. If an Event of Default shall occur under this
Mortgage, then in addition to having any other right or remedy available at law
or in equity, Mortgagee shall have the option of either (i) proceeding under the
Code and exercising such rights and remedies as may be provided to a secured
party by the Code with respect to all or any portion of the Mortgaged Property
which is personal property (including, without limitation, taking possession of
and selling such property) or (ii) treating such property as real property and
proceeding with respect to both the real and personal property constituting the
Mortgaged Property in accordance with Mortgagee's rights, powers and remedies
with respect to the real property (in which event the default provisions of the
Code shall not apply). If Mortgagee shall elect to proceed under the Code, then
five days' notice of sale of the personal property shall be deemed reasonable
notice and the reasonable expenses of retaking, holding, preparing for sale,
selling and the like incurred by Mortgagee shall include, but not be limited to,
reasonable attorneys' fees and legal expenses. At Mortgagee's request during the
continuance of an Event of Default, Xxxxxxxxx shall assemble the personal
property and make it available to Mortgagee at a place designated by Mortgagee
which is reasonably convenient to both parties.
(b) Xxxxxxxxx and Mortgagee agree, to the extent permitted by
law, that: (i) all of the goods described within the definition of the word
"Equipment" are or are to become fixtures on the Real Estate; (ii) this Mortgage
upon recording or registration in the real estate records of the proper office
shall constitute a financing statement filed as a "fixture filing" within the
meaning of Sections 9-313 and 9-402 of the Code; (iii) Mortgagor is the record
owner of the
19
Real Estate; and (iv) the addresses of Mortgagor and Mortgagee are as set forth
on the first page of this Mortgage.
(c) Mortgagor, upon request by Mortgagee from time to time,
shall execute, acknowledge and deliver to Mortgagee one or more separate
security agreements, in form reasonably satisfactory to Mortgagee, covering all
or any part of the Mortgaged Property and will further execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, any financing
statement, affidavit, continuation statement or certificate or other document as
Mortgagee may request in order to perfect, preserve, maintain, continue or
extend the security interest under and the priority of this Mortgage and such
security instrument. Xxxxxxxxx further agrees to pay to Mortgagee on demand all
reasonable costs and expenses incurred by Mortgagee in connection with the
preparation, execution, recording, filing and re-filing of any such document and
all reasonable costs and expenses of any record searches for financing
statements Mortgagee shall reasonably require. If Mortgagor shall fail to
furnish any financing or continuation statement within 10 days after request by
Mortgagee, then pursuant to the provisions of the Code, Mortgagor hereby
authorizes Mortgagee, without the signature of Xxxxxxxxx, to execute and file
any such financing and continuation statements. The filing of any financing or
continuation statements in the records relating to personal property or chattels
shall not be construed as in any way impairing the right of Mortgagee to proceed
against any personal property encumbered by this Mortgage as real property, as
set forth above.
20. Assignment of Rents. Mortgagor hereby assigns to Mortgagee
the Rents as further security for the payment and performance of the
Obligations, and Mortgagor grants to Mortgagee the right to enter the Mortgaged
Property for the purpose of collecting the same and to let the Mortgaged
Property or any part thereof, and to apply the Rents on account of the
Obligations. The foregoing assignment and grant is present and absolute and
shall continue in effect until the Obligations are paid and performed in full,
but Mortgagee hereby waives the right to enter the Mortgaged Property for the
purpose of collecting the Rents, letting the Mortgaged Property or any part
thereof or applying the Rents and Mortgagor shall be entitled to collect,
receive, use and retain the Rents until the occurrence of an Event of Default
under this Mortgage; such right of Mortgagor to collect, receive, use and retain
the Rents may be revoked by Mortgagee upon the occurrence of any Event of
Default under this Mortgage by giving not less than five days' written notice of
such revocation to Mortgagor; in the event such notice is given, Mortgagor shall
pay over to Mortgagee, or to any receiver appointed to collect the Rents, any
lease security deposits, and shall pay monthly in advance to Mortgagee, or to
any such receiver, the fair and reasonable rental value as determined by
Mortgagee for the use and occupancy of the Mortgaged Property or of such part
thereof as may be in the possession of Mortgagor or any affiliate of Mortgagor,
and upon default in any such payment Mortgagor and any such affiliate will
vacate and surrender the possession of the Mortgaged Property to Mortgagee or to
such receiver, and in default thereof may be evicted by summary proceedings or
otherwise. Mortgagor shall not accept prepayments of installments of Rent to
become due for a period of more than one month in advance (except for security
deposits and estimated payments of percentage rent, if any).
21. Additional Rights. The holder of any subordinate lien on
the Mortgaged Property shall have no right to terminate any Lease whether or not
such Lease is subordinate to this Mortgage nor shall any holder of any
subordinate lien join any tenant under any Lease in any action to foreclose the
lien or modify, interfere with, disturb or terminate the rights of any tenant
20
under any Lease. By recordation of this Mortgage all subordinate lienholders are
subject to and notified of this provision, and any action taken by any such
lienholder contrary to this provision shall be null and void. Upon the
occurrence of any Event of Default, Mortgagee may, in its sole discretion and
without regard to the adequacy of its security under this Mortgage, apply all or
any part of any amounts on deposit with Mortgagee under this Mortgage against
all or any part of the Obligations. Any such application shall not be construed
to cure or waive any Default or Event of Default or invalidate any act taken by
Mortgagee on account of such Default or Event of Default.
22. Changes in Method of Taxation. In the event of the passage
after the date hereof of any law of any Governmental Authority deducting from
the value of the Premises for the purposes of taxation any lien thereon, or
changing in any way the laws for the taxation of mortgages or debts secured
thereby for federal, state or local purposes, or the manner of collection of any
such taxes, and imposing a tax, either directly or indirectly, on mortgages or
debts secured thereby, the holder of this Mortgage shall have the right to
declare the Obligations due on a date to be specified by not less than 30 days'
written notice to be given to Mortgagor unless within such 30-day period
Mortgagor shall assume as an Obligation hereunder the payment of any tax so
imposed until full payment and performance of the Obligations and such
assumption shall be permitted by law.
23. Notices. All notices, requests, demands and other
communications hereunder shall be deemed to have been sufficiently given or
served when served in the manner set forth in Section 12.2 of the Credit
Agreement.
24. No Oral Modification. This Mortgage may not be changed or
terminated orally. Any agreement made by Mortgagor and Mortgagee after the date
of this Mortgage relating to this Mortgage shall be superior to the rights of
the holder of any intervening or subordinate lien or encumbrance.
25. Partial Invalidity. In the event any one or more of the
provisions contained in this Mortgage shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, but each shall be
construed as if such invalid, illegal or unenforceable provision had never been
included. Notwithstanding to the contrary anything contained in this Mortgage or
in any provisions of the Obligations or Loan Documents, the obligations of
Mortgagor and of any other obligor under the Obligations or Loan Documents shall
be subject to the limitation that Mortgagee shall not charge, take or receive,
nor shall Mortgagor or any other obligor be obligated to pay to Mortgagee, any
amounts constituting interest in excess of the maximum rate permitted by law to
be charged by Mortgagee.
26. Mortgagor's Waiver of Rights. To the fullest extent
permitted by law, Mortgagor waives the benefit of all laws now existing or that
may subsequently be enacted providing for (i) any appraisement before sale of
any portion of the Mortgaged Property, (ii) any extension of the time for the
enforcement of the collection of the Obligations or the creation or extension of
a period of redemption from any sale made in collecting such debt and (iii)
exemption of the Mortgaged Property from attachment, levy or sale under
execution or exemption from civil process. To the full extent Mortgagor may do
so, Xxxxxxxxx agrees that Xxxxxxxxx will not at any time insist upon, plead,
claim or take the benefit or advantage of any
21
law now or hereafter in force providing for any appraisement, valuation, stay,
exemption, extension or redemption, or requiring foreclosure of this Mortgage
before exercising any other remedy granted hereunder and Xxxxxxxxx, for
Mortgagor and its successors and assigns, and for any and all persons ever
claiming any interest in the Mortgaged Property, to the extent permitted by law,
hereby waives and releases all rights of redemption, valuation, appraisement,
stay of execution, notice of election to mature or declare due the whole of the
secured indebtedness and marshalling in the event of foreclosure of the liens
hereby created.
27. Remedies Not Exclusive. Mortgagee shall be entitled to
enforce payment and performance of the Obligations and to exercise all rights
and powers under this Mortgage or under any of the other Loan Documents or other
agreement or any laws now or hereafter in force, notwithstanding some or all of
the Obligations may now or hereafter be otherwise secured, whether by mortgage,
security agreement, pledge, lien, assignment or otherwise. Neither the
acceptance of this Mortgage nor its enforcement, shall prejudice or in any
manner affect Mortgagee's right to realize upon or enforce any other security
now or hereafter held by Mortgagee, it being agreed that Mortgagee shall be
entitled to enforce this Mortgage and any other security now or hereafter held
by Mortgagee in such order and manner as Mortgagee may determine in its absolute
discretion. No remedy herein conferred upon or reserved to Mortgagee is intended
to be exclusive of any other remedy herein or by law provided or permitted, but
each shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute. Every
power or remedy given by any of the Loan Documents to Mortgagee or to which it
may otherwise be entitled, may be exercised, concurrently or independently, from
time to time and as often as may be deemed expedient by Mortgagee. In no event
shall Mortgagee, in the exercise of the remedies provided in this Mortgage
(including, without limitation, in connection with the assignment of Rents to
Mortgagee, or the appointment of a receiver and the entry of such receiver on to
all or any part of the Mortgaged Property), be deemed a "mortgagee in
possession," and Mortgagee shall not in any way be made liable for any act,
either of commission or omission, in connection with the exercise of such
remedies.
28. Multiple Security. If (a) the Premises shall consist of
one or more parcels, whether or not contiguous and whether or not located in the
same county, or (b) in addition to this Mortgage, Mortgagee shall now or
hereafter hold one or more additional mortgages, liens, deeds of trust or other
security (directly or indirectly) for the Obligations upon other property in the
State in which the Premises are located (whether or not such property is owned
by Mortgagor or by others) or (c) both the circumstances described in clauses
(a) and (b) shall be true, then to the fullest extent permitted by law,
Mortgagee may, at its election, commence or consolidate in a single foreclosure
action all foreclosure proceedings against all such collateral securing the
Obligations (including the Mortgaged Property), which action may be brought or
consolidated in the courts of any county in which any of such collateral is
located. Mortgagor acknowledges that the right to maintain a consolidated
foreclosure action is a specific inducement to Mortgagee to enter into the
Credit Agreement and to extend the indebtedness guaranteed by the Guarantee and
Collateral Agreement, and Mortgagor expressly and irrevocably waives any
objections to the commencement or consolidation of the foreclosure proceedings
in a single action and any objections to the laying of venue or based on the
grounds of forum non conveniens which it may now or hereafter have. Xxxxxxxxx
further agrees that if Mortgagee shall be prosecuting one or more foreclosure or
other proceedings against a portion of the Mortgaged Property or against any
collateral other than the Mortgaged Property, which collateral directly or
indirectly secures the
22
Obligations, or if Mortgagee shall have obtained a judgment of foreclosure and
sale or similar judgment against such collateral, then, whether or not such
proceedings are being maintained or judgments were obtained in or outside the
State in which the Premises are located, Mortgagee may commence or continue
foreclosure proceedings and exercise its other remedies granted in this Mortgage
against all or any part of the Mortgaged Property and Mortgagor waives any
objections to the commencement or continuation of a foreclosure of this Mortgage
or exercise of any other remedies hereunder based on such other proceedings or
judgments, and waives any right to seek to dismiss, stay, remove, transfer or
consolidate either any action under this Mortgage or such other proceedings on
such basis. Neither the commencement nor continuation of proceedings to
foreclose this Mortgage nor the exercise of any other rights hereunder nor the
recovery of any judgment by Mortgagee in any such proceedings shall prejudice,
limit or preclude Mortgagee's right to commence or continue one or more
foreclosure or other proceedings or obtain a judgment against any other
collateral (either in or outside the State in which the Premises are located)
which directly or indirectly secures the Obligations, and Xxxxxxxxx expressly
waives any objections to the commencement of, continuation of, or entry of a
judgment in such other proceedings or exercise of any remedies in such
proceedings based upon any action or judgment connected to this Mortgage, and
Xxxxxxxxx also waives any right to seek to dismiss, stay, remove, transfer or
consolidate either such other proceedings or any action under this Mortgage on
such basis. It is expressly understood and agreed that to the fullest extent
permitted by law, Mortgagee may, at its election, cause the sale of all
collateral which is the subject of a single foreclosure action at either a
single sale or at multiple sales conducted simultaneously and take such other
measures as are appropriate in order to effect the agreement of the parties to
dispose of and administer all collateral securing the Obligations (directly or
indirectly) in the most economical and least time-consuming manner.
29. Successors and Assigns. All covenants of Mortgagor
contained in this Mortgage are imposed solely and exclusively for the benefit of
Mortgagee and its successors and assigns, and no other person or entity shall
have standing to require compliance with such covenants or be deemed, under any
circumstances, to be a beneficiary of such covenants, any or all of which may be
freely waived in whole or in part by Mortgagee at any time if in its sole
discretion it deems such waiver advisable. All such covenants of Mortgagor shall
run with the land and bind Xxxxxxxxx, the successors and assigns of Mortgagor
(and each of them) and all subsequent owners, encumbrancers and tenants of the
Mortgaged Property, and shall inure to the benefit of Mortgagee, its successors
and assigns. The word "Mortgagor" shall be construed as if it read "Mortgagors"
whenever the sense of this Mortgage so requires and if there shall be more than
one Mortgagor, the obligations of the Mortgagors shall be joint and several.
30. No Waivers, etc. Any failure by Mortgagee to insist upon
the strict performance by Xxxxxxxxx of any of the terms and provisions of this
Mortgage shall not be deemed to be a waiver of any of the terms and provisions
hereof, and Mortgagee, notwithstanding any such failure, shall have the right
thereafter to insist upon the strict performance by Xxxxxxxxx of any and all of
the terms and provisions of this Mortgage to be performed by Xxxxxxxxx.
Mortgagee may release, regardless of consideration and without the necessity for
any notice to or consent by the holder of any subordinate lien on the Mortgaged
Property, any part of the security held for the obligations secured by this
Mortgage without, as to the remainder of the security, in anywise impairing or
affecting the lien of this Mortgage or the priority of such lien over any
subordinate lien.
23
31. Governing Law, etc. This Mortgage shall be governed by and
construed in accordance with the laws of the State in which the Premises are
located, except that Mortgagor expressly acknowledges that by its terms the
Credit Agreement shall be governed and construed in accordance with the laws of
the State of New York, without regard to principles of conflict of law, and for
purposes of consistency, Xxxxxxxxx agrees that in any in personam proceeding
related to this Mortgage the rights of the parties to this Mortgage shall also
be governed by and construed in accordance with the laws of the State of New
York governing contracts made and to be performed in that State, without regard
to principles of conflict of law.
32. Waiver of Trial by Jury. Mortgagor and Mortgagee each
hereby irrevocably and unconditionally waive trial by jury in any action, claim,
suit or proceeding relating to this Mortgage and for any counterclaim brought
therein.
33. Certain Definitions. Unless the context clearly indicates
a contrary intent or unless otherwise specifically provided herein, words used
in this Mortgage shall be used interchangeably in singular or plural form and
the word "Mortgagor" shall mean "each Mortgagor or any subsequent owner or
owners of the Mortgaged Property or any part thereof or interest therein," the
word "Mortgagee" shall mean "Mortgagee or any successor Administrative Agent,"
the words "Guarantee and Collateral Agreement" shall mean "the Guarantee and
Collateral Agreement, the Credit Agreement or any other evidence of indebtedness
secured by this Mortgage," the word "person" shall include any individual,
corporation, partnership, limited liability company, trust, unincorporated
association, government, governmental authority, or other entity, and the words
"Mortgaged Property" shall include any portion of the Mortgaged Property or
interest therein. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice versa. The
captions in this Mortgage are for convenience or reference only and in no way
limit or amplify the provisions hereof.
34. Release of Mortgage. Upon payment in full of all the
Loans, all Reimbursement Obligations and all other Obligations, the termination
or expiration of all Letters of Credit, the termination of all Commitments (as
defined in the Guarantee and Collateral Agreement) and the compliance with the
Obligations then required to be complied with, Mortgagee shall release the lien
of this Mortgage.
35. Conflict with Credit Agreement. In the event of any
conflict or inconsistency between the terms and provisions of this Mortgage and
the terms and provisions of the Credit Agreement, the terms and provisions of
the Credit Agreement shall govern, other than with respect to the Governing Law
provision set forth in Section 31 hereof.
24
This Mortgage has been duly executed by Xxxxxxxxx on June __,
1998 and is intended to be effective as of June 9, 1998.
[SUBSIDIARY GUARANTOR],
a ___________ corporation
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK)
On the day of _____________ ___, 1998, before me personally
came , to me known, who, being by me duly sworn, did depose and say that [s]he
resides at ___________________________________________; that [s]he is a[n] [ ]
President of [SUBSIDIARY GUARANTOR], the corporation described in and which
executed the foregoing instrument; and that [s]he signed [his][her] name thereto
by authority of the board of directors of said corporation.
WITNESS my hand and seal as such Notary Public on this ____
day of __________, 1998.
-------------------------
Notary Public
[Notarial Stamp]
My Commission Expires:
----------------------
Schedule A
Description of the Premises
[Attach Legal Description of all parcels]
EXHIBIT F
TO CREDIT AGREEMENT
-------------------
FORM OF LANDLORD CONSENT
[TENANT]
[ADDRESS]
as of June __, 1998
VIA OVERNIGHT SERVICE
---------------------
[LANDLORD NAME]
[XXXXXXXX ADDRESS]
[ADDRESS[ES] OF LEASED PREMISES]
--------------------------------
Dear Landlord:
The undersigned is the tenant of the above-described property
(the "Property").
U.S. Office Products Company, the parent of the undersigned
("USOP"), has arranged for financing from a group of banks led by The Chase
Manhattan Bank, as Administrative Agent, having an address at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000. These banks have agreed to make loans to USOP, which
are to be guaranteed by the undersigned and secured by, among other things, a
lien on any furniture, goods, documents, fixtures, equipment, leasehold
improvements and inventory that is now or in the future may be located at the
Property (collectively, the "Personal Property"), which loans may be modified,
refinanced, extended or restructured, from time to time. The Administrative
Agent has asked that we notify you and request that you agree to the terms of
this letter by returning it to us in the enclosed postage-paid envelope.
By signing this letter you agree that any lien of any kind and
any and all rights, including levy, execution, sale and distraint for unpaid
rents, that you may have or obtain on the Personal Property shall be junior to
the Administrative Agent's lien, and that prior to taking any action to enforce
any lien, you will give the Administrative Agent at least ten (10) business
days' prior notice of your intent to take action. If we should default to the
banks, you agree that in all circumstances the Administrative Agent may have
access to the Property for the purpose of removing or selling the Personal
Property, provided that the Administrative Agent agrees to pay you for the
reasonable cost of repair of any physical damage to the Property caused by the
Administrative Agent in connection with any removal or sale. This letter
agreement is not
intended to nor shall create any rights in favor of you with respect to the
Personal Property not already existing at law or under lease documents demising
the Property.
Because these loans are important for the future of USOP and
our company and because the bank group and the Administrative Agent will be
relying on this letter, we would greatly appreciate it if you would sign the
enclosed copy of this letter and return it to me by [June 1], 1998, in the
enclosed envelope. If you have any questions, please feel free to contact USOP
at (___) ___-____.
Thank you in advance for your cooperation.
Sincerely,
By:
------------------------
Name:
Title:
Acknowledged and agreed as of
the date first above written:
[LANDLORD NAME]
By:
-------------------------
Name:
Title:
2
ACKNOWLEDGEMENT AND CONSENT (1)
The undersigned hereby acknowledges receipt of a copy of the Guarantee
and Collateral Agreement dated as of June __, 1998 (the "Agreement"), made by
the Granting Parties (as defined therein) named therein for the benefit of The
Chase Manhattan Bank, as Administrative Agent. The undersigned agrees in
favor of the Administrative Agent for the ratable benefit of the Secured
Parties (as defined therein) as follows:
1. The undersigned will be bound by the terms of the Agreement and will
comply with such terms insofar as such terms are applicable to the
undersigned.
2. The undersigned will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 5.3.1 of
the Agreement.
3. The terms of Sections 6.3(a) and 6.7 of the Agreement shall apply to
it, mutatis mutandis, with respect to all actions that may be required of it
pursuant to Section 6.3(a) and 6.7 of the Agreement.
[NAME OF ISSUER]
By
-------------------------------
Title
----------------------------
Address for Notices:
---------------------------------
---------------------------------
Fax:-----------------------------
--------------------
(1)This consent is necessary only with respect to any Issuer of Pledged Stock
which is not also a Grantor.
Annex 1 to
Guarantee and Collateral Agreement
ASSUMPTION AGREEMENT, dated as of _________ __, 199_, made by
______________________________, a ______________ corporation (the "Additional
Granting Party"), in favor of THE CHASE MANHATTAN BANK, as administrative
agent (in such capacities, the "Administrative Agent") for the banks and other
financial institutions (the "Lenders") from time to time parties to the Credit
Agreement referred to below and the other Secured Parties (as defined below).
All capitalized terms not defined herein shall have the meaning ascribed to
them in the Guarantee and Collateral Agreement referred to below, or if not
defined therein, in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, U.S. OFFICE PRODUCTS COMPANY, a Delaware corporation (the
"Borrower"), BLUE STAR GROUP, LIMITED, a New Zealand corporation ("Blue Star
Group"), the Lenders, the Administrative Agent, BANKERS TRUST COMPANY, as
syndication agent (in such capacity, the "Syndication Agent") and XXXXXXX
XXXXX CAPITAL CORPORATION, as documentation agent (in such capacity, the
"Documentation Agent") are parties to a Credit Agreement, dated as of June 9,
1998 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement");
WHEREAS, in connection with the Credit Agreement, the Borrower and
the other Granting Parties named therein are parties to the Guarantee and
Collateral Agreement, dated as of June 10, 1998 (as amended, supplemented or
otherwise modified from time to time, the "Guarantee and Collateral
Agreement") in favor of the Administrative Agent, for the ratable benefit of
the Secured Parties (as defined in the Guarantee and Collateral Agreement);
WHEREAS, the Additional Granting Party is a member of an affiliated
group of companies that includes the Borrower and the other Granting Parties
to the Guarantee and Collateral Agreement; the proceeds of the extensions of
credit under the Credit Agreement will be used in part to enable the Borrower
to make valuable transfers to one or more of the other Granting Parties
(including the Additional Granting Party) in connection with the operation of
their respective businesses; and the Borrower and the other Granting Parties
(including the Additional Granting Party) are engaged in related businesses,
and each such Granting Party (including the Additional Granting Party) will
derive substantial direct and indirect benefit from the making of the
extensions of credit under the Credit Agreement;
WHEREAS, the Credit Agreement requires the Additional Granting Party
to become a party to the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Granting Party has agreed to execute and
deliver this Assumption Agreement in order to become a party to the Guarantee
and Collateral Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee and Collateral Agreement. By executing and delivering
this Assumption Agreement, the Additional Granting Party, as provided in
Section 8.15 of the Guarantee and Collateral Agreement, hereby becomes a party
to the Guarantee and Collateral Agreement as a Granting Party thereunder with
the same force and effect as if originally named therein as a Guarantor [,
Grantor and Pledgor] [and Grantor] [and Pledgor](2) and, without limiting the
generality of the foregoing, hereby expressly assumes all obligations and
liabilities of a Guarantor [, Grantor and Pledgor] [and Grantor] [and
Pledgor](3) thereunder. The information set forth in Annex 1-A hereto is
hereby added to the information set forth in Schedules ____________ to the
Guarantee and Collateral Agreement, and such Schedules are hereby amended and
modified to include such information. The Additional Granting Party hereby
represents and warrants that each of the representations and warranties of
such Additional Grantor, in its capacities as a Guarantor [, Grantor and
Pledgor] [and Grantor] [and Pledgor],(4) contained in Section 4 of the
Guarantee and Collateral Agreement is true and correct in all material
respects on and as the date hereof (after giving effect to this Assumption
Agreement) as if made on and as of such date.
2. Governing Law. THIS ASSUMPTION AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above
written.
[ADDITIONAL GRANTING PARTY]
(2) Indicate the capacities in which the Additional Granting Party is
becoming a Granting Party.
(3) Indicate the capacities in which the Additional Granting Party is
becoming a Granting Party.
(4) Indicate the capacities in which the Additional Granting Party is
becoming a Granting Party.
By:
-------------------------------
Name:
Title:
Annex 1-A to
Assumption Agreement
EXHIBIT G-3
TO CREDIT AGREEMENT
FORM OF OPINION OF LOCAL
COUNSEL TO THE LOAN PARTIES
June __, 1998
The Chase Manhattan Bank,
as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
And each of the Lenders parties to the Credit
Agreement referred to below
We have acted as special counsel in the State of
(the "State") to U.S. Office Products Company, a Delaware corporation
("Borrower"), and , a
corporation (together with the Borrowers, the "Loan Parties") in connection with
(a) the Credit Agreement, dated as of June __, 1998 (the "Credit Agreement"),
among Borrower, the several banks and other financial institutions from time to
time parties thereto (the "Lenders"), the Bankers Trust Company, a New York
banking corporation, as syndication agent, Xxxxxxx Xxxxx Capital Corporation, as
documentation agent for the Lenders and The Chase Manhattan Bank, a New York
banking corporation, as collateral and administrative agent for the Lenders (in
such capacities, the "Administrative Agent") and (b) the Guarantee and
Collateral Agreement (the "Guarantee") delivered pursuant to the Credit
Agreement.
The opinions expressed below are furnished to you pursuant to the
Credit Agreement. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings ascribed to them in the Credit
Agreement.
In arriving at the opinions expressed below,
(a) we have examined and relied on the originals, or copies certified
or otherwise identified to our satisfaction, of each of (1) the Credit
Agreement, (2) the Guarantee and (3) the mortgage listed on Schedule 1 (the
"State Mortgage" and, together with the Credit Agreement and the Guarantee, the
"Loan Documents");
(b) we have examined unfiled copies of financing statements
(collectively, the "Financing Statements") naming Borrower as Debtor and the
Administrative Agent as Secured Party and describing the Collateral (as defined
in the Guarantee and the State Mortgage) as to which security interests may be
perfected by filing under the Uniform Commercial Code of the State (the "Filing
Collateral"), which we understand will be filed in the filing offices listed on
Schedule 2 (the "Filing Offices"); and
The Chase Manhattan Bank,
as Administrative Agent -2- June __, 1998
(c) we have examined such corporate documents and records of the Loan
Parties and such other instruments and certificates of public officials,
officers and representatives of the Loan Parties and other Persons, and we have
made such investigations of law, in each case as we have deemed appropriate as a
basis for such opinions.
In rendering the opinions expressed below, we have assumed, with your
permission, without independent investigation or inquiry, (a) the authenticity
of all documents submitted to us as originals, (b) the genuineness of all
signatures on all documents that we examined and (c) the conformity to authentic
originals of documents submitted to us as certified, conformed or photostatic
copies.
Based upon and subject to the foregoing, we are of the opinion that:
1. The execution and delivery by each of the Loan Parties of the Loan
Documents to which it is a party, the borrowing by the Borrower in accordance
with the terms of the Loan Documents, the performance by the Loan Parties of
their respective obligations under the Loan Documents and the creation and
perfection of any security interest upon or with respect to any of the
properties of the Loan Parties provided for therein (a) do not and will not
violate any Requirement of Law of the State and (b) except for the filings
described on Schedule 2 to perfect the security interests created by the
Guarantee with respect to the Filing Collateral and the recordings described on
Schedule 1 attached hereto to perfect the liens created by the State Mortgage do
not and will not require any consent or authorization of, approval by, notice
to, filing with or other act by or in respect of, any Governmental Authority of
the State.
2. (a) The provisions of the Guarantee create in favor of the
Administrative Agent for the benefit of the Lenders a legal, valid and
enforceable security interest in the Collateral.
(b) The Administrative Agent upon filing of the Financing Statements in
the Filing Offices will have a perfected security interest for the benefit of
the Lenders in the Filing Collateral.
3. The State Mortgage:
(a) constitutes a legal, valid and binding obligation of Borrower
enforceable against Borrower in accordance with its terms;
(b) is in proper form for recording;
(c) complies as to form with all existing Requirements of Law;
(d) creates in favor of the Mortgagee (as defined in such State
Mortgage) for the benefit of the Lenders a legal, valid and binding lien on the
real property and fixtures described in such State Mortgage, enforceable as such
against Borrower and, when recorded in the applicable office listed on Schedule
1, all other Persons; and
The Chase Manhattan Bank,
as Administrative Agent -3- June __, 1998
(e) when recorded in the applicable office listed on Schedule 1, will
constitute a perfected lien on the real property and fixtures described in such
State Mortgage.
The facts that (a) the State Mortgage secures the guaranty of
obligations arising under a revolving line of credit and (b) the Revolving
Credit Loans may from time to time be repaid in full or in part and reborrowed
in accordance with the terms of the Credit Agreement will not result in a
subordination of the liens of the State Mortgage to any other lien on the real
property and fixtures described in such State Mortgage or otherwise impair the
priority of the liens of such State Mortgage.
4. The courts of the State will enforce those provisions in the Loan
Documents which provide that the validity, construction and enforceability of
such documents will be governed by the laws of the State of New York, except
that the Courts of the State may apply the internal law of the State to
determine the perfection and effect of perfection of the liens created under
such documents and the application of remedies in enforcing such liens with
respect to property located in the State.
5. To our knowledge, there is no action, suit or proceeding before or
by any court, arbitrator or governmental agency, body or official, now pending,
to which any Loan Party is a party or to which the business, assets or property
of any Loan Party is subject and no such action, suit or proceeding is
threatened to which any Loan Party or the business, assets or property of any
Loan Party would be subject that, in either case, would be reasonably expected
to have a Material Adverse Effect or questions the validity of the Loan
Documents.
Our opinions set forth in paragraphs 2 and 3 above are subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
We are members of the bar of the State and we express no opinion as to
the laws of any jurisdiction other than the laws of the State and the Federal
laws of the United States of America.
This opinion has been rendered solely for your benefit and for the
benefit of your Transferees pursuant to the Credit Agreement in connection with
the Credit Agreement and the transactions contemplated thereby and may not be
used, circulated, quoted, relied upon or otherwise referred to for any other
purpose without our prior written consent; provided, however, that this opinion
may be delivered to your regulators, accountants, attorneys and other
professional advisers and may be used in connection with any legal or regulatory
proceeding relating to the subject matter of this opinion.
Very truly yours,
EXHIBIT I TO
CREDIT AGREEMENT
FORM OF SWING LINE LOAN PARTICIPATION CERTIFICATE
-----------,
[Name of Lender]
------------------
------------------
Ladies and Gentlemen:
Pursuant to subsection 2.5(d) of the Credit Agreement dated as
of June __, 1998 (as amended, supplemented, waived or otherwise modified from
time to time) among U.S. Office Products Company, a Delaware corporation, the
several banks and other financial institutions from time to time parties thereto
(the "Lenders"), The Chase Manhattan Bank, as collateral agent and
administrative agent for the Lenders, Bankers Trust Company, as syndication
agent for the Lenders and Xxxxxxx Xxxxx Capital Corporation, as documentation
agent for the Lenders, the undersigned hereby acknowledges receipt from you on
the date hereof of DOLLARS ($ ) as payment for
a participating interest in the following Swing Line Loan:
Date of Swing Line Loan:
---------------
Principal Amount of Swing Line Loan:
------------
Very truly yours,
THE CHASE MANHATTAN BANK
By:
---------------
Title:
EXHIBIT J TO
CREDIT AGREEMENT
FORM OF BORROWING CERTIFICATE
U.S. OFFICE PRODUCTS COMPANY
Pursuant to subsection 6.1(r) of the Credit Agreement, dated
as of June __, 1998 (the "Credit Agreement"; terms defined therein being used
herein as therein defined), among U.S. Office Products Company, a Delaware
corporation (the "Borrower"), the several banks and other financial institutions
from time to time parties thereto (the "Lenders"), and The Chase Manhattan Bank,
as administrative agent for the Lenders, Bankers Trust Company, as syndication
agent for the Lenders and Xxxxxxx Xxxxx Capital Corporation, as documentation
agent for the Lenders, the Borrower hereby certifies that:
1. The representations and warranties of the Borrower set
forth in the Credit Agreement and each of the other Loan Documents to
which the Borrower is a party or which are contained in any certificate
furnished by or on behalf of the Borrower pursuant to or in connection
with the Credit Agreement or any of the other Loan Documents are true
and correct on and as of the date hereof with the same effect as if
made on the date hereof except for representations and warranties
expressly stated to relate to a specific earlier date, in which case
such representations and warranties are true and correct as of such
earlier date; and
2. No Default or Event of Default has occurred and is
continuing as of the date hereof or after giving effect to the Loans to
be made on the date hereof and/or the issuance of any Letters of Credit
to be issued on the date hereof.
IN WITNESS WHEREOF, the has caused this certificate to be duly
executed and delivered on its behalf as of the date set forth below.
U.S. OFFICE PRODUCTS COMPANY
By:
----------------
Title:
Date: , 1998
----------
EXHIBIT K
TO CREDIT AGREEMENT
FORM OF REPRESENTATION CERTIFICATE
Reference is made to the Credit Agreement, dated as of June 9,
1998 (as amended, waived, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among U.S. Office Products Company, a Delaware
corporation ("USOP" or the "Borrower"), Blue Star Group, Limited, a New Zealand
corporation ("Blue Star Group"), the banks and other financial institutions from
time to time parties thereto (the "Lenders"), The Chase Manhattan Bank, as
administrative agent (in such capacity, the "Administrative Agent"), Bankers
Trust Company, as syndication agent (in such capacity, the "Syndication Agent"),
and Xxxxxxx Xxxxx Capital Corporation, as documentation agent (in such capacity,
the "Documentation Agent"). Unless otherwise defined herein, capitalized terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
To induce the Administrative Agent and each Lender to make the
Extensions of Credit requested to be made by it on each Borrowing Date, Blue
Star Group hereby represents and warrants, on the date hereof and on every
Borrowing Date hereafter, to the Administrative Agent and each Lender that:
(a) Corporate Existence; Compliance with Law. Blue Star Group
(i) is duly incorporated and validly existing under the laws of the jurisdiction
of its incorporation, (ii) has the corporate power and authority, and the legal
right, to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently engaged, except to
the extent that the failure to have such legal right would not be reasonably
expected to have a Material Adverse Effect, (iii) 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, other than in such jurisdictions where the failure
to be so qualified and in good standing would not be reasonably expected to have
a Material Adverse Effect, and (iv) is in compliance with all Requirements of
Law, except to the extent that the failure to comply therewith would not, in the
aggregate, be reasonably expected to have a Material Adverse Effect.
(b) Corporate Power; Authorization; Enforceable Obligations.
Blue Star Group 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 to
obtain Extensions of Credit under the Credit Agreement, and it has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Loan Documents to which it is a party and to authorize the Extensions of
Credit on the terms and conditions of the Credit Agreement, any Notes and the
Applications. No consent or authorization of, filing with, notice to or other
similar act by or in respect of, any Governmental Authority or any other Person
is required to be obtained or made by or on behalf of Blue Star Group in
connection with the execution, delivery, performance, validity or enforceability
of the Loan Documents to which it is a party or with the Extensions of Credit
hereunder, except for (i) consents, authorizations, notices and filings
described in Schedule 1, all of which have been obtained or made prior to the
date hereof, (ii) filings to perfect the Liens created by the Security
Documents, (iii) filings pursuant to the Assignment of Claims Act of
2
1940, as amended (31 U.S.C. Section 3727 et seq.) in respect of Accounts and
contracts of it and its Subsidiaries, the Obligor of which is the United States
of America or any department, agency or instrumentality thereof and (iv)
consents, authorizations, notices and filings which the failure to obtain or
make would not reasonably be expected to have a Material Adverse Effect. Each
Loan Document to which Blue Star Group is a party has been or will be duly
executed and delivered on behalf of it. Each Loan Document to which Blue Star
Group is a party as executed and delivered does constitute, or when executed and
delivered, will constitute, a legal, valid and binding obligation of it,
enforceable against it 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) and an implied covenant of good faith and fair dealing.
(c) No Legal Bar. The execution, delivery and performance of
the Loan Documents by Blue Star Group, the Extensions of Credit under the Credit
Agreement and the use of the proceeds thereof (a) will not violate any
Requirement of Law or Contractual Obligation of it in any respect that would
reasonably be expected to have a Material Adverse Effect and (b) will not result
in, or require, the creation or imposition of any Lien (other than the Liens
created by the Security Documents) on any of its properties or revenues pursuant
to any such Requirement of Law or Contractual Obligation.
(d) No Default. Neither Blue Star Group nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which would be reasonably expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
(e) Ownership of Property; Liens. Each of Blue Star Group and
its Subsidiaries has good record and marketable title in fee simple to, or a
valid leasehold interest in, all its material real property, and good title to,
or a valid leasehold interest in, all its other material property, and none of
such property interest is subject to any Lien, except for Liens permitted by
subsection 8.3 of the Credit Agreement.
(f) Pari Passu. The obligations of each Blue Star Party under
the Loan Documents to which it is a party, when executed and delivered by it,
will rank at least pari passu with all other of its unsecured Indebtedness.
(g) No Immunities, etc. Each Blue Star Party is subject to
civil and commercial law with respect to its obligations under the Loan
Documents to which it is a party, and the execution, delivery and performance by
it of the Loan Documents to which it is a party constitute and will constitute
private and commercial acts and not public or governmental acts. No Blue Star
Party nor any of its property, whether or not held for its own account, has any
immunity (sovereign or other similar immunity) from any suit or proceeding, from
jurisdiction of any court or from set-off or any legal process (whether service
or notice, attachment prior to judgment, attachment in aid of execution of
judgment, execution of judgment or other similar immunity) under laws of the
jurisdiction in which it is organized and existing in respect of its obligations
under the Loan Documents to which it is a party. Each Blue Star Party has,
pursuant to subsection 12.3 of the Credit Agreement, waived every immunity
(sovereign or otherwise) to which it or any of its properties would otherwise be
entitled from any legal action, suit or
3
proceeding, from jurisdiction of any court or from set-off or any legal
process (whether service or notice, attachment prior to judgment, attachment in
aid of execution of judgment, execution of judgment or otherwise) under the laws
of the jurisdiction in which it is organized and existing in respect of its
obligations under the Loan Documents to which it is a party. The waiver by each
Blue Star Party described in the immediately preceding sentence is the legal,
valid and binding obligation of it.
(h) No Recordation Necessary. Each of the Loan Documents to
which each Blue Star Party is a party is in proper legal form under the law of
the jurisdiction in which it is organized and existing for the enforcement
hereof or thereof against it under the law of such jurisdiction, and to ensure
the legality, validity, enforceability, priority or admissibility in evidence of
each of the Loan Documents to which it is a party. It is not necessary to ensure
the legality, validity, enforceability, priority or admissibility in evidence of
any of the Loan Documents or any other Loan Document be filed, registered or
recorded with, or executed or notarized before, any court or other authority in
the jurisdiction in which it is organized and existing or that any registration
charge or stamp or similar tax be paid on or in respect of any of the Loan
Documents, except for any such filings, registration or recording, or execution
or notarization, as has been made (including with respect to any such filing,
registrations and recordings made to perfect any liens created pursuant to the
Security Documents) or is not required to be made until such Loan Document is
sought to be enforced and for any charge or tax as has been timely paid.
(i) Exchange Controls. The execution, delivery and performance
by each Blue Star Party of each Loan Document is, under applicable foreign
exchange control regulations of the jurisdiction in which it is organized and
existing, not subject to any notification or authorization except such as have
been made or obtained or cannot be made or obtained until a later date.
4
IN WITNESS WHEREOF, the undersigned has caused this
Representation Certificate to be duly executed and delivered by its proper and
duly authorized officer as of the day and year first above written.
BLUE STAR GROUP LIMITED
------------------
By:
Title:
EXHIBIT L
U.S. OFFICE PRODUCTS COMPANY
THE CHASE MANHATTAN BANK
EQUITABLE MORTGAGE OF SECURITIES
EXECUTION COPY
U.S. OFFICE PRODUCTS COMPANY
THE CHASE MANHATTAN BANK
EQUITABLE MORTGAGE OF SECURITIES
TABLE OF CONTENTS
Page
1. INTERPRETATION................................................................................ 1
1.1 Definitions.......................................................................... 1
1.2 Other expressions.................................................................... 4
2. MORTGAGE...................................................................................... 4
2.1 Creating the Mortgage................................................................ 4
2.2 Continuing security and discharging the Mortgage..................................... 4
2.3 Priority............................................................................. 5
2.4 Limitation on amount secured......................................................... 5
3. PAYMENT OBLIGATIONS........................................................................... 5
3.1 Borrower Obligations................................................................. 5
3.2 Interest............................................................................. 5
3.3 Costs and expenses................................................................... 5
4. MORTGAGOR'S OTHER OBLIGATIONS................................................................. 5
4.1 General Negative obligations......................................................... 5
4.2 Obligations concerning Securities.................................................... 6
4.3 Obligations concerning voting rights and dividends................................... 6
5. BETTER SECURITY AND RIGHTS FOR FINANCIER...................................................... 7
6. DEFAULT....................................................................................... 7
7. FINANCIER'S POWERS............................................................................ 7
7.1 Generally............................................................................ 7
7.2 To take possession of Mortgaged Property............................................. 8
7.3 To deal with the Mortgaged Property and Mortgagor's business......................... 8
7.4 To discharge or acquire prior Security Interest...................................... 10
7.5 Exercise of rights under clause 7.4.................................................. 10
7.6 To sell and give options............................................................. 10
7.7 To appoint Receivers................................................................. 11
7.8 To appoint more than one Receiver.................................................... 11
7.9 To pay the Receiver.................................................................. 11
7.10 Notice or lapse of time required before rights exercised............................. 11
7.11 To give up possession and terminate receivership..................................... 12
7.12 Persons dealing not bound to enquire................................................. 12
8. RECEIVER'S POWERS............................................................................. 12
8.1 General.............................................................................. 12
8.2 Receiver is agent of Mortgagor....................................................... 13
8.3 Accountability of Receiver........................................................... 13
i
Page
9.1 Appointment and powers............................................................... 13
9.2 Attorney may delegate powers......................................................... 14
9.3 Purpose.............................................................................. 14
10. NOTICES FROM THE ADMINISTRATIVE AGENT......................................................... 15
11. PRESERVING RIGHTS, POWERS AND REMEDIES........................................................ 15
11.1 Preservation......................................................................... 15
11.2 Moratorium legislation............................................................... 15
11.3 Voidable payments.................................................................... 15
11.4 Effect of release.................................................................... 16
12. MISCELLANEOUS................................................................................. 16
12.1 No obligations to exercise rights or give consent, consent must be in
writing.............................................................................. 16
12.2 No marshalling....................................................................... 16
12.3 Surplus proceeds..................................................................... 16
12.4 Applying receipts.................................................................... 17
12.5 The Administrative Agent may assign rights........................................... 17
12.6 Dealing with third parties........................................................... 17
12.7 Certificates......................................................................... 17
12.8 If due date not a business day....................................................... 17
12.9 Severability......................................................................... 17
12.10 Governing law and jurisdiction....................................................... 18
12.11 The Administrative Agent need not execute............................................ 18
ii
EQUITABLE MORTGAGE OF SECURITIES
DEED dated June 10, 1998
BETWEEN U.S OFFICE PRODUCTS COMPANY, a Delaware corporation
of 0000 Xxxxxx Xxxxxxxxx Xxxxxx, XX, Xxxxx 000X,
Xxxxxxxxxx XX 00000, Xxxxxx Xxxxxx xx Xxxxxxx
("Mortgagor")
AND THE CHASE MANHATTAN BANK, a New York banking
corporation of 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 as administrative agent for certain banks and
financial institutions party to a credit agreement
dated as of June 9, 1998
("Administrative Agent")
1. INTERPRETATION
1.1 Definitions
In this document:
'Attorney' means an attorney-in-fact appointed under a Relevant
Agreement
'Borrower Obligations' means the 'Borrower Obligations' as defined in
the Collateral Agreement.
'Collateral Agreement' means the document entitled 'Guarantee and
Collateral Agreement, dated as of June 10 1998, by the Mortgagor in
favour of the Administrative Agent (on behalf of the Lenders), as the
same may be amended, waived, supplemented or otherwise modified from
time to time.
'Collateral Security' means a Guarantee, Security Interest or
negotiable instrument held or given, whether before of after this
document is executed, as security for or otherwise in connection with
the Borrower Obligations and includes, but is not limited to, the
Collateral Agreement.
'Credit Agreement' means the Credit Agreement dated as of June 9, 1998
between the Mortgagor, Blue Star Group Limited, a New Zealand
corporation, the Administrative Agent, certain banks and other
financial institutions from time to time party thereto (as 'Lenders'),
Bankers Trust Company (as 'Syndication Agent') and Xxxxxxx Xxxxx
Capital Corporation (as 'Documentation Agent'), as the same may be
amended, waived, supplemented or otherwise modified from time to time.
'Debtor' means a person any of whose present or future, actual or
contingent indebtedness or liabilities to the Administrative Agent or
the Lenders is supported or
secured by a present or future Guarantee or Security Interest given or
entered into by the Mortgagor.
'Event of Default' means an 'Event of Default' as defined in the Credit
Agreement.
'External Administrator' means an administrator, receiver, receiver and
manager, trustee, provisional liquidator, liquidator, inspector or any
other person (however described) holding or appointed to an analogous
office or acting or purporting to act in an analogous capacity.
'Guarantee' means a guarantee, indemnity, letter of credit, letter of
comfort or any other obligation (whatever it is called and whatever its
nature) by which a person is responsible for another person's
obligation or debt.
'Issuer' means Blue Star Group Pty Limited ACN 074 868 901.
'Lenders' has the meaning so defined in the Collateral Agreement.
'Mortgage' means the mortgage over the Mortgaged Property created under
this document.
'Mortgaged Property' means all present and future:
(a) Securities; and
(b) Securities resulting from the conversion, consolidation,
re-classification, redemption, reconstruction, amalgamation or
subdivision of the Securities; and
(c) money, distributions, dividends or return of capital from time
to time payable to the Mortgagor or its nominee as the holder
of, or otherwise in connection with, the Securities; and
(d) proceeds from the sale, redemption or disposal of the
Securities; and
(e) the benefit of any document relating to any of the things
specified in this definition (including any share
certificate); and
(f) all other rights, benefits and advantages of any nature now or
in the future attaching to or arising in connection with any
of the Securities,
whether held by the Mortgagor beneficially or in trust or subject to
any other third party right or interest, provided that the Securities
do not include shares in the issued capital of the Issuer in excess of
65% of any series of the outstanding capital stock of the Issuer.
'New Rights' means the Securities, rights, money, distributions,
dividends and proceeds referred to in paragraphs (b) to (f) of the
definition of Mortgaged Property.
'Permitted Security Interest' means a Security Interest which the
Administrative Agent
2
has consented to (including, without limitation, the Permitted Liens
(as defined in the Credit Agreement)). It does not include a Security
Interest which the Administrative Agent has consented to on one or more
conditions if those conditions are not complied with.
'Public Authority' means a government or minister or any government, a
semi- government or judicial department or entity and includes, but is
not limited to, Australian Stock Exchange Limited, the Reserve Bank of
Australia and the governing body of any stock exchange on which any
Securities forming part of the Mortgaged Property are listed.
'Receiver' means a receiver or receiver and manager appointed under
this document. When two or more persons are appointed, the expression
'Receiver' refers to each of those persons severally as well as to two
or more of them jointly.
'Records' means all the information which relates in any way to a
specified person's business or any transaction entered into by the
person, whether the information is recorded electronically,
magnetically or otherwise.
'Related Party' means:
(a) a person providing Collateral Security; and
(b) a Debtor.
'Relevant Agreement' means:
(a) this document; and
(b) a Collateral Security; and
(c) the Credit Agreement.
'Securities' means 88,015,337 ordinary fully paid A$1 par value shares
in the capital of the Issuer (being the shares the subject at the date
of this document of certificate no. 2 issued by the Issuer on 5 June
1998).
'Security Interest' means a mortgage, pledge, lien, charge,
preferential right, trust arrangement, agreement or other arrangement
given or created as security.
'Tax' includes a tax, levy, duty or charge (and associated penalty or
interest) imposed or withheld by a Public Authority.
'Winding Up' includes:
(a) dissolution, liquidation, provisional liquidation and
bankruptcy; and
(b) a procedure which is equivalent or analogous in any
jurisdiction.
3
1.2 Other expressions
In this document, unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
(b) if this document binds two or more persons, it binds them
severally and jointly;
(c) a reference to a party to this document includes that party's
successors and permitted assigns;
(d) a reference to a document or agreement includes that document
or agreement as novated, altered or replaced;
(e) a reference to any thing includes the whole or any part of
that thing and a reference to a group of things or persons
includes each thing or person in that group;
(f) 'A$' refers to Australian currency;
(g) words implying natural persons include partnerships, bodies
corporate, associations and Public Authorities.
2. MORTGAGE
2.1 Creating the Mortgage
The Mortgagor mortgages the Mortgaged Property in favour of the
Administrative Agent, for the ratable benefit of the Lenders, as
security for (subject to clause 2.4) the payment of the Borrower
Obligations.
2.2 Continuing security and discharging the Mortgage
The Mortgage is a continuing security. It remains in effect until the
Administrative Agent gives a final discharge to the Mortgagor. The
Mortgagor is only entitled to a final discharge if all of the Borrower
Obligations have been paid or as provided in the Relevant Agreements
(including, without limitation, upon the sale or other disposition of
the Securities).
2.3 Priority
This Mortgage is a first ranking mortgage of the Mortgaged Property and
takes priority over all Security Interests.
2.4 Limitation on amount secured
4
Despite anything contained in this document, unless the Administrative
Agent and the Mortgagor specifically agree in writing that this clause
does not apply, the maximum principal amount recoverable by the
Administrative Agent or the Lenders under this document will be limited
to A$15,000 or any other amount agreed to by the Administrative Agent
and the Mortgagor.
3. PAYMENT OBLIGATIONS
3.1 Borrower Obligations
The Mortgagor must pay the Borrower Obligations at the times and in the
way specified in the Relevant Agreements.
3.2 Interest
The Mortgagor must pay interest on the Borrower Obligations to or as
directed by the Administrative Agent, at the rates specified in the
Relevant Agreements.
3.3 Costs and expenses
The Mortgagor indemnifies the Administrative Agent and the Lenders
against, and must pay on demand to the Administrative Agent, all stamp,
excise, sales and other similar taxes with respect to any of the
Mortgaged Property and all reasonable costs and expenses (including,
but not limited to, reasonable legal costs and disbursements) which the
Administrative Agent, a Lender or a Receiver or Attorney pays, or is
liable to pay, in connection with protecting, enforcing or exercising a
right, power or remedy of the Administrative Agent or a Lender or a
Receiver or Attorney under this document.
4. XXXXXXXXX'S OTHER OBLIGATIONS
4.1 General Negative obligations
Except as otherwise provided in the Relevant Agreements, the Mortgagor
must not, without the consent of the Administrative Agent:
(a) deal with or dispose of the Mortgaged Property; or
(b) permit a Security Interest (other than a Permitted Security
Interest) to affect the Mortgaged Property; or
(c) do or allow anything to be done which may prejudice the
Administrative Agent's or the Lender's security or rights
under a Relevant Agreement.
4.2 Obligations concerning Securities
The Mortgagor must:
5
(a) immediately deposit with the Administrative Agent all
certificates, documents of title or other documents that from
time to time relate to or evidence the Securities; and
(b) on demand by the Administrative Agent, deposit with it
transfers executed in blank by the Mortgagor. The transfers
must be in a form, and executed in a manner, acceptable to the
Administrative Agent in its reasonable discretion; and
(c) punctually pay all calls, installments and other moneys which
may at any time be payable on any of the Securities or which,
if unpaid, may result in the creation of a Security Interest
over any of the Securities; and
(d) promptly notify the Administrative Agent in writing when the
Xxxxxxxxx becomes entitled to any New Rights.
4.3 Obligations concerning voting rights and dividends
The Mortgagor:
(a) may until an Event of Default occurs exercise voting rights
conferred on it as the holder of any Securities, but it must
not in doing so permit or cause anything to occur that would
or would be likely to be an Event of Default. However, if an
Event of Default occurs and the Administrative Agent gives
notice to the Mortgagor as provided in Section 63 of the
Collateral Agreement, the Mortgagor may no longer exercise any
of those voting rights, except with the prior written consent
of the Administrative Agent; and
(b) may, until an Event of Default occurs and the Administrative
Agent gives notice to the Mortgagor as provided in Section 63
of the Collateral Agreement:
(i) acquire any of the Securities referred to in
paragraphs (b) of the definition of Mortgaged
Property, provided that the pledge of such acquired
Securities to the Administrative Agent would not
result in the Mortgagor's pledging in excess of 65%
of any series of the outstanding capital stock of the
Issuer;
(ii) receive and use in the ordinary course of its
business cash dividends and other distributions
payable in relation to the Securities; and
However, if an Event of Default occurs and the Administrative
Agent gives notice to the Mortgagor as provided in Section 63
of the Collateral Agreement, while that Event of Default
remains unremedied:
(iii) the Mortgagor may not do any of the things specified
in paragraphs (i) or (ii) and during that period only
the Administrative Agent may do those things; and
6
(iv) the Mortgagor must (at its cost) do all things
necessary to enable the Administrative Agent to do
the things specified in paragraphs (i) and (ii).
5. BETTER SECURITY AND RIGHTS FOR FINANCIER
5.1 The Mortgagor must, at the Mortgagor's cost, do whatever the
Administrative Agent reasonably requires to enable the Administrative
Agent to better exercise or perfect its or the Lender's rights over the
Mortgaged Property.
5.2 This includes, but is not limited to, executing a legal mortgage over
any of the Mortgaged Property (or doing the things the Administrative
Agent requires so that this Mortgage takes effect as a legal mortgage)
or any other Security Interest over the Mortgaged Property reasonably
required by the Administrative Agent.
6. DEFAULT
After an Event of Default occurs and shall be continuing, the
Administrative Agent may declare the Borrower Obligations payable as
provided in the Credit Agreement. If so, the Borrower Obligations
become immediately payable, unless the Administrative Agent specifies
otherwise.
7. FINANCIER'S POWERS
7.1 Generally
(a) Subject to the terms of the Relevant Agreements, while an
Event of Default remains unremedied, the Administrative Agent
may do the things which a mortgage and an absolute owner could
do to the Mortgaged Property and exercise the rights, powers
and remedies of a mortgagee and an absolute owner of the
Mortgaged Property. These include, but are not limited to, the
things and powers described in clause 7.
(b) The Administrative Agent need not make a demand or give notice
to anyone before doing these things or exercising these
powers, except if notice is required as described in clause
7.10.
7.2 To take possession of Mortgaged Property
Subject to the terms of the Relevant Agreements, while an Event of
Default remains unremedied, the Administrative Agent may:
(a) take possession of the Mortgaged Property; and
(b) receive the rents and profits of the Mortgaged Property.
7.3 To deal with the Mortgaged Property and Xxxxxxxxx's business
7
Subject to the terms of the Relevant Agreements, while an Event of
Default remains unremedied, the Administrative Agent may:
(a) (contractual rights)
(i) perform the Mortgagor's obligations under; and
(ii) enforce or exercise or not exercise the Mortgagor's
rights and powers under; and
(iii) agree to vary or rescind,
an instrument, arrangement or right forming part of the
Mortgaged Property (regardless of whether it is entered into
on behalf of the Mortgagor by an Attorney, Receiver or the
Administrative Agent); and
(b) (compromise) settle, compromise or submit to arbitration a
dispute in connection with the Mortgaged Property; and
(c) (perform Mortgagor's obligations) do everything it may to
comply with the obligations of the Mortgagor under a Relevant
Agreement; and
(d) (remedy breach) do everything it may to make good a breach or
default inherent in an Event of Default, to its own
satisfaction; and
(e) (deposit money in suspense or other accounts) invest, deposit
or hold the Mortgaged Property in any way that, and for as
long as, the Administrative Agent thinks fit and vary,
transpose or reinvest the Mortgaged Property; and
(f) (pay calls) pay any calls and other money payable in
connection with the Mortgaged Property; and
(g) (recover, protect Mortgaged Property) do everything the
Administrative Agent thinks necessary to recover or protect
the Mortgaged Property or the rights of the Administrative
Agent under this document; and
(h) (legal proceedings) commence, prosecute, defend and settle
proceedings which the Administrative Agent considers expedient
in connection with this document or the Mortgaged Property in
or before a Public Authority in the name of the Mortgagor or
otherwise; and
(i) (vote Securities) exercise rights and powers and do everything
expedient in connection with Securities which form part of the
Mortgaged Property. The Mortgagor appoints the Administrative
Agent and any officer of the Administrative Agent nominated by
the Administrative Agent for this purpose, severally and
jointly, to be the authorised representative and proxy of the
Mortgagor to do the things described in this paragraph; and
8
(j) (transfers) complete and procure the registration of any
transfers or other documents that may have been lodged with
the Administrative Agent in relation to the Mortgaged
Property; and
(k) (acquire) acquire by purchase, subscription or otherwise any
Securities; and
(l) (exchange) exchange the Mortgaged Property for any other
property or rights (with or without giving or receiving any
other consideration for the exchange); and
(m) (transfer obligations) assign to any person the obligations of
the Mortgagor which arise under a Relevant Agreement or
otherwise; and
(n) (execute documents) enter into agreements and execute
documents itself or on behalf of the Mortgagor for any purpose
in connection with a Relevant Agreement; and
(o) (delegate) delegate to any person for any time that the
Administrative Agent thinks fit any of the powers of the
Administrative Agent under this clause, including this right
of delegation; and
(p) (incidental power) do anything the Administrative Agent thinks
expedient in its interests and incidental to any of the powers
under this clause, without limiting those powers; and
(q) (spend money) spend money in connection with the powers in
this clause. That money then forms part of the Borrower
Obligations.
7.4 To discharge or acquire prior Security Interest
While an Event of Default remains unremedied, the Administrative Agent
may:
(a) purchase the debt secured by a prior Security Interest; or
(b) pay the amount required to discharge or satisfy that debt
(including, but not limited to, a debt secured by a Permitted
Security Interest); or
(c) take a transfer or assignment of that Security Interest and
any Guarantee, document or right ancillary or collateral to
it, at the Mortgagor's cost.
7.5 Exercise of rights under clause 7.4
If the Administrative Agent exercises its rights under clause 7.4:
(a) the Mortgagor is indebted to the Administrative Agent for the
same amount paid by the Administrative Agent. This does not
limit any other debt acquired by the Administrative Agent; and
9
(b) that debt is immediately payable to the Administrative Agent
and forms part of the Borrower Obligations and interest
accrues on the unpaid amount of that debt under clause 3.2;
and
(c) the Administrative Agent need not enquire whether the money
claimed to be owing is actually owing in connection with the
prior Security Interest, or an ancillary or collateral
document; and
(d) the person with the benefit of the prior Security Interest
need not enquire whether there is any money owing under a
Relevant Agreement; and
(e) the Mortgagor directs any person with the benefit of a prior
Security Interest to give the Administrative Agent any
information it requires in connection with the prior Security
Interest. This includes, but is not limited to, the state of
accounts for that Security Interest.
7.6 To sell and give options
Subject to the terms of the Relevant Agreements, while an Event of
Default remains unremedied, the Administrative Agent may:
(a) (options) give an option to purchase the Mortgaged Property on
the term it thinks fit; and
(b) (sell together with other property) sell the Mortgaged
Property with any other property in any manner that the
Administrative Agent thinks expedient; and
(c) (hive off assets or obligations) promote the formation of any
company so that the company may purchase or acquire the
Mortgaged Property or assume obligations of the Mortgagor or
both; and
(d) (effect hive-off) sell or assign the Mortgaged Property or
assume the Mortgagor's obligations.
7.7 To appoint Receivers
While an Event of Default remains unremedied, the Administrative Agent
may:
(a) appoint one or more persons to be a Receiver or Receivers of
the Mortgaged Property, with one or more of the powers and
rights described in clauses 7.1 and 7.2; and
(b) remove that Receiver or those Receivers; and
(c) if a Receiver is removed, retires or dies, appoint another or
others in his or her
10
place; and
(d) in the case of removal or retirement of a Receiver, reappoint
that person.
7.8 To appoint more than one Receiver
If the Administrative Agent appoints two or more persons to be the
Receiver, the Administrative Agent may appoint them to act jointly,
severally or jointly and severally. If it is not specified in the
instrument of appointment, the Receivers are appointed to act
severally.
7.9 To pay the Receiver
The Administrative Agent may fix the remuneration of a Receiver at an
amount agreed between the Administrative Agent and the Receiver.
7.10 Notice or lapse of time required before rights exercised
(a) If notice or lapse of time is required under any statute
before the Administrative Agent can exercise its power of sale
of any other rights available to it under this document or by
law, then that notice or lapse of time is dispensed with.
(b) Paragraph (a) only applies if the relevant statute allows
notice or lapse of time to be dispensed with.
(c) If the relevant statute does not allow notice or lapse of time
to be dispensed with, but allows it to be shortened, then for
the purposes of this document, the period of notice or lapse
of time is one day.
7.11 To give up possession and terminate receivership
The Administrative Agent may:
(a) give up possession of the whole or any part of the Mortgaged
Property; or
(b) terminate a receivership,
or both.
7.12 Persons dealing not bound to enquire
A person dealing with the Administrative Agent or a Receiver or
Attorney:
(a) need not enquire whether there has been a default by the
Mortgagor under a Relevant Agreement or whether the
Administrative Agent, Receiver or Attorney has acted properly;
or
11
(b) has no notice (actual or implied) that an act of the
Administrative Agent, Receiver or Attorney is unnecessary or
improper;
and whenever the Administrative Agent, a Receiver or an Attorney deals
with the Mortgaged Property, that dealing is authorised and valid as
far as anyone involved with that dealing is concerned. The receipt of
the Administrative Agent or a Receiver or Attorney for any money
payable to the Mortgagor discharges the person paying that money to the
extent of the payment.
8. RECEIVER'S POWERS
8.1 General
Unless the terms of the Receiver's appointment say otherwise, the
Receiver has the following powers over the Mortgaged Property which the
Receiver is appointed to deal with:
(a) all the rights and powers given by law to mortgagees in
possession, receivers or receivers and managers; and
(b) all the rights and powers of the Administrative Agent under
this document and at law (other than the power to appoint
Receivers); and
(c) power to obtain financial accommodation from the
Administrative Agent, alone or together with any other person,
for a purpose and on the terms that the Receiver considers
expedient in connection with the Mortgaged Property; and
(d) power to secure the payment or repayment of indebtedness
relating to that financial accommodation by a Security
Interest over the Mortgaged Property, however it ranks for
priority with the Mortgage or a Collateral Security. The
Receiver may exercise these rights and powers in the name of
the Mortgagor or otherwise.
8.2 Receiver is agent of Mortgagor
A Receiver is the agent of the Mortgagor. The Mortgagor alone is
responsible for the Receiver's acts and defaults. But the Receiver, to
the extent required by law, ceases to be the agent of the Mortgagor if
a resolution is passed or an order is made to Wind Up the Mortgagor.
The Receiver may become the agent of the Administrative Agent if the
Administrative Agent gives a notice to the Receiver in writing to that
effect. The Administrative Agent may appoint a further Receiver,
despite that resolution or order.
8.3 Accountability of Receiver
A Receiver is not responsible for a loss arising in connection with the
exercise or execution of the Receiver's powers, nor for any act or
default of an employee or agent of the Administrative Agent or the
Receiver. A Receiver need not account for more money
12
than the Receiver actually receives.
9. POWER OF ATTORNEY
9.1 Appointment and powers
The Mortgagor for valuable consideration irrevocably appoints the
Administrative Agent, each officer of the Administrative Agent and each
Receiver separately as its attorneys to do the following on the
Mortgagor's behalf and in the name of the Mortgagor or the Attorney:
(a) anything which the Mortgagor must do under a Relevant
Agreement; and
(b) anything which, in the opinion of the Attorney:
(i) would give effect to a right, power or remedy of the
Administrative Agent or a Receiver; or
(ii) the Mortgagor should do,
under a Relevant Agreement; and
(c) enter into or execute transactions, documents and agreements
which, in the opinion of the Attorney, the Mortgagor should
enter into or execute under a Relevant Agreement; and
(d) use the Mortgagor's name to exercise the powers of the
Administrative Agent or a Receiver under a Relevant Agreement,
the law or otherwise,
(e) obtain the issue of duplicate certificates for the Mortgagor's
Securities if the original certificates are lost or destroyed
or believed to be so; and
(f) direct payment or any delivery of a dividend, notice, scrip or
attend to any other matter relating to the Mortgaged Property;
and
(g) perfect a security given by the Mortgagor in favour of the
Administrative Agent over the Mortgaged Property; and
(h) exercise voting rights or any other power, right or remedy
relating to the Mortgaged Property;
and the Mortgagor agrees to ratify anything done by an Attorney under
this power of attorney.
Anything is this Section 9.1 to the contrary notwithstanding, the
Administrative Agent and the Receiver agree that they will not exercise
any rights under the power of attorney provided for in this Section 9.1
unless an Event of Default shall have
13
occurred and be continuing.
9.2 Attorney may delegate powers
An Attorney may delegate its powers (including the power to delegate)
to any person for any period and may revoke the delegation.
9.3 Purpose
The power of attorney created under this clause is irrevocable and is
granted to secure the performance by the Mortgagor of the Mortgagor's
obligations under each Relevant Agreement to which the Mortgagor is a
party.
10. NOTICES FROM THE ADMINISTRATIVE AGENT
All notices, requests and demands to or on the Mortgagor or
Administrative Agent must be effected in the manner provided in
subsection 12.2 of the Credit Agreement.
11. PRESERVING RIGHTS, POWERS AND REMEDIES
11.1 Preservation
(a) The fact that the Administrative Agent does not exercise, or
delays the exercise of, any right, power or remedy does not
affect any of its other rights, powers or remedies.
(b) The fact that the Administrative Agent delays the exercise of
any right, power or remedy does not constitute a waiver of
that right, power or remedy.
(c) The fact that the Administrative Agent exercises a right,
power or remedy does not prevent the Administrative Agent from
exercising that right, power or remedy again.
(d) This document does not operate to extinguish or prejudice any
right, power or remedy of the Administrative Agent under a
Relevant Agreement.
11.2 Moratorium legislation
A moratorium does not apply to a Relevant Agreement or the recovery of
the Borrower Obligations except if:
(a) the Administrative Agent agrees in writing that it does; or
(b) it cannot be excluded by law.
11.3 Voidable payments
14
If any payment made to the Administrative Agent by or for a Debtor or
the Mortgagor is repaid or void or found to be void, voidable or
repayable for any reason, then:
(a) that payment has not discharged the relevant liability of the
Mortgagor; and
(b) the Administrative Agent may recover the amount of that
payment from the Mortgagor,
despite any release, settlement or discharge in connection with the
Borrower Obligations.
11.4 Effect of release
Each indemnity given by the Mortgagor to the Administrative Agent under
this document is a continuing indemnity. A full or partial release of
this Mortgage does not release the Mortgagor from liability under an
indemnity unless the release is specifically of that indemnity.
12. MISCELLANEOUS
12.1 No obligations to exercise rights or give consent, consent must be in
writing
(a) Each of the Administrative Agent and a Receiver may:
(i) exercise or not exercise any right, power or remedy;
and
(ii) give or not give consent; and
(iii) make or not make a decision,
under this document, in its absolute discretion without giving
a reason and without being liable or accountable for the
consequences.
(b) A consent given or a right, power or remedy waived by the
Administrative Agent is effective only if given or waived in
writing.
12.2 No marshalling
The Administrative Agent need not resort to a Collateral Security or
other Security Interest before exercising a power under this document.
12.3 Surplus proceeds
If surplus money remains in the hands of the Administrative Agent or a
Receiver after payment of all the Borrower Obligations (and
satisfaction of any obligation ranking in priority to the Borrower
Obligations or secured by a Security Interest over the Mortgaged
Property):
15
(a) no trust arises over that surplus money; and
(b) that surplus money does not carry interest and the
Administrative Agent or Receiver may pay it to an account in
the name of the Mortgagor (whether or not opened by the
Administrative Agent or Receiver for that purpose). The
Administrative Agent or Receiver is then no longer liable for
the surplus money.
12.4 Applying receipts
The Administrative Agent may apply or appropriate money received to
reduce the Borrower Obligations in the order, and to satisfy whatever
part of the Borrower Obligations, as provided in the Relevant
Agreements.
12.5 The Administrative Agent may assign rights
The Administrative Agent may assign or otherwise deal with its rights
and benefits under this document.
12.6 Dealing with third parties
No person need enquire whether the Administrative Agent, a Receiver or
an Attorney has executed or registered an instrument or exercised a
right, power or remedy properly or with authority.
12.7 Certificates
A certificate signed by an officer of the Administrative Agent stating:
(a) that a specified sum of money is owing or payable (or both)
under a Relevant Agreement;
(b) that an Event of Default has occurred; or
(c) something relevant to the rights or obligations of the
Administrative Agent or the Mortgagor under a Relevant
Agreement, whether relating to the Borrower Obligations or
otherwise,
is admissible in proceedings and is conclusive evidence of the matters
stated except if there is manifest error.
12.8 If due date not a business day
If anything should be done under this document on a day other than a
business day, it must be done on the previous business day.
12.9 Severability
16
(a) The parties agree that a construction of this document that
results in all provisions being enforceable is to be preferred
to a construction that does not so result.
(b) If, despite the application of paragraph (a), a provision of
this document is illegal or unenforceable;
(i) and it would be legal and enforceable if a word or
words were omitted, that word or those words are
severed; and
(ii) in any other case, the whole provision is severed,
and the remainder of this document continues in
force.
12.10 Governing law and jurisdiction
This document is governed by the law applicable in the State of New
York and the Mortgagor submits to the non-exclusive jurisdiction of the
courts of the State of New York.
12.11 The Administrative Agent need not execute
This document is enforceable by the Administrative Agent even if the
Administrative Agent does not execute it.
17
EXECUTED as a deed.
U.S. OFFICE PRODUCTS COMPANY
By:.................................
Name:
Title:
18
Schedule 1
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MORTGAGE RECORDINGS
IN THE STATE OF __________________
Description of Mortgage Recording Office
----------------------- ----------------
Schedule 2
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FILING OFFICES
IN THE STATE OF____________________
