CREDIT AND GUARANTY AGREEMENT
DATED AS OF MAY 16, 2005
AMONG
VICAR OPERATING, INC.,
VCA ANTECH, INC.
(FORMERLY KNOWN AS VETERINARY CENTERS OF AMERICA, INC.),
CERTAIN SUBSIDIARIES OF COMPANY,
AS GUARANTORS,
VARIOUS LENDERS,
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
AS JOINT LEAD ARRANGER, JOINT BOOKRUNNER AND SOLE SYNDICATION AGENT,
XXXXX FARGO BANK, N.A.,
AS JOINT LEAD ARRANGER, JOINT BOOKRUNNER AND ADMINISTRATIVE AGENT
AND
UNION BANK OF CALIFORNIA, N.A.,
AS DOCUMENTATION AGENT
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$550,000,000 SENIOR SECURED CREDIT FACILITIES
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND INTERPRETATION...............................................7
1.1 DEFINITIONS..................................................................7
1.2 ACCOUNTING TERMS............................................................35
1.3 INTERPRETATION, ETC.........................................................35
SECTION 2. LOANS.......................................................................35
2.1 TERM LOANS..................................................................35
2.2 REVOLVING LOANS.............................................................37
2.3 SWING LINE LOANS............................................................38
2.4 PRO RATA SHARES; AVAILABILITY OF FUNDS......................................40
2.5 USE OF PROCEEDS.............................................................40
2.6 EVIDENCE OF DEBT; REGISTER; LENDERS' BOOKS AND RECORDS; NOTES...............41
2.7 INTEREST ON LOANS...........................................................42
2.8 CONVERSION/CONTINUATION.....................................................43
2.9 DEFAULT INTEREST............................................................44
2.10 FEES........................................................................44
2.11 SCHEDULED PAYMENTS..........................................................45
2.12 VOLUNTARY PREPAYMENTS/COMMITMENT REDUCTIONS.................................46
2.13 MANDATORY PREPAYMENTS/COMMITMENT REDUCTIONS.................................47
2.14 APPLICATION OF PREPAYMENTS/REDUCTIONS.......................................49
2.15 GENERAL PROVISIONS REGARDING PAYMENTS.......................................50
2.16 RATABLE SHARING.............................................................51
2.17 MAKING OR MAINTAINING EURODOLLAR RATE LOANS.................................52
2.18 INCREASED COSTS; CAPITAL ADEQUACY...........................................54
2.19 TAXES; WITHHOLDING, ETC.....................................................55
2.20 OBLIGATION TO MITIGATE......................................................57
2.21 DEFAULTING LENDERS..........................................................57
2.22 REMOVAL OR REPLACEMENT OF A LENDER..........................................58
2.23 ISSUANCE OF LETTERS OF CREDIT AND PURCHASE OF PARTICIPATIONS THEREIN........59
2.24 INCREMENTAL FACILITIES......................................................62
SECTION 3. CONDITIONS PRECEDENT........................................................64
3.1 CLOSING DATE................................................................64
3.2 CONDITIONS TO EACH CREDIT EXTENSION.........................................67
SECTION 4. REPRESENTATIONS AND WARRANTIES..............................................68
4.1 ORGANIZATION; REQUISITE POWER AND AUTHORITY; QUALIFICATION..................69
4.2 CAPITAL STOCK AND OWNERSHIP.................................................69
4.3 DUE AUTHORIZATION...........................................................69
4.4 NO CONFLICT.................................................................69
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4.5 GOVERNMENTAL CONSENTS.......................................................69
4.6 BINDING OBLIGATION..........................................................70
4.7 HISTORICAL FINANCIAL STATEMENTS.............................................70
4.8 [RESERVED]..................................................................70
4.9 NO MATERIAL ADVERSE CHANGE..................................................70
4.10 NO RESTRICTED JUNIOR PAYMENTS...............................................70
4.11 ADVERSE PROCEEDINGS, ETC....................................................70
4.12 PAYMENT OF TAXES............................................................71
4.13 PROPERTIES..................................................................71
4.14 ENVIRONMENTAL MATTERS.......................................................71
4.15 NO DEFAULTS.................................................................72
4.16 GOVERNMENTAL REGULATION.....................................................72
4.17 MARGIN STOCK................................................................72
4.18 EMPLOYEE MATTERS............................................................72
4.19 EMPLOYEE BENEFIT PLANS......................................................73
4.20 CERTAIN FEES................................................................73
4.21 SOLVENCY....................................................................73
4.22 [RESERVED]..................................................................73
4.23 SUBORDINATION OF PERMITTED SELLER NOTES.....................................73
4.24 COMPLIANCE WITH STATUTES, ETC...............................................74
4.25 DISCLOSURE..................................................................74
SECTION 5. AFFIRMATIVE COVENANTS.......................................................74
5.1 FINANCIAL STATEMENTS AND OTHER REPORTS......................................74
5.2 EXISTENCE...................................................................78
5.3 PAYMENT OF TAXES AND CLAIMS.................................................78
5.4 MAINTENANCE OF PROPERTIES...................................................78
5.5 INSURANCE...................................................................79
5.6 INSPECTIONS.................................................................79
5.7 LENDERS MEETINGS............................................................79
5.8 COMPLIANCE WITH LAWS........................................................79
5.9 ENVIRONMENTAL...............................................................80
5.10 SUBSIDIARIES................................................................81
5.11 ADDITIONAL MATERIAL REAL ESTATE ASSETS......................................81
5.12 INTEREST RATE PROTECTION....................................................82
5.13 FURTHER ASSURANCES..........................................................82
5.14 POST-CLOSING COVENANT.......................................................82
SECTION 6. NEGATIVE COVENANTS..........................................................82
6.1 INDEBTEDNESS................................................................82
6.2 LIENS.......................................................................85
6.3 EQUITABLE LIEN..............................................................86
6.4 NO FURTHER NEGATIVE PLEDGES.................................................86
6.5 RESTRICTED JUNIOR PAYMENTS..................................................87
6.6 RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS....................................88
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6.7 INVESTMENTS.................................................................89
6.8 FINANCIAL COVENANTS.........................................................90
6.9 FUNDAMENTAL CHANGES; DISPOSITION OF ASSETS; ACQUISITIONS....................91
6.10 DISPOSAL OF SUBSIDIARY INTERESTS............................................93
6.11 SALES AND LEASE-BACKS.......................................................93
6.12 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES...............................93
6.13 CONDUCT OF BUSINESS.........................................................94
6.14 PERMITTED ACTIVITIES OF HOLDINGS............................................94
6.15 [RESERVED]..................................................................94
6.16 AMENDMENTS OR WAIVERS WITH RESPECT TO SUBORDINATED INDEBTEDNESS.............94
6.17 DESIGNATION OF "SENIOR INDEBTEDNESS"........................................95
6.18 FISCAL YEAR.................................................................95
SECTION 7. GUARANTY....................................................................95
7.1 GUARANTY OF THE OBLIGATIONS.................................................95
7.2 CONTRIBUTION BY GUARANTORS..................................................95
7.3 PAYMENT BY GUARANTORS.......................................................96
7.4 LIABILITY OF GUARANTORS ABSOLUTE............................................96
7.5 WAIVERS BY GUARANTORS.......................................................98
7.6 GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC........................99
7.7 SUBORDINATION OF OTHER OBLIGATIONS..........................................99
7.8 CONTINUING GUARANTY........................................................100
7.9 AUTHORITY OF GUARANTORS OR COMPANY.........................................100
7.10 FINANCIAL CONDITION OF COMPANY.............................................100
7.11 BANKRUPTCY, ETC............................................................100
7.12 DISCHARGE OF GUARANTY UPON SALE OF GUARANTOR...............................101
SECTION 8. EVENTS OF DEFAULT..........................................................101
8.1 EVENTS OF DEFAULT..........................................................101
SECTION 9. AGENTS.....................................................................104
9.1 APPOINTMENT OF AGENTS......................................................104
9.2 POWERS AND DUTIES..........................................................105
9.3 GENERAL IMMUNITY...........................................................105
9.4 AGENTS ENTITLED TO ACT AS LENDER...........................................106
9.5 LENDERS' REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENT....................107
9.6 RIGHT TO INDEMNITY.........................................................107
9.7 SUCCESSOR ADMINISTRATIVE AGENT AND SWING LINE LENDER.......................108
9.8 COLLATERAL DOCUMENTS AND GUARANTY..........................................108
SECTION 10. MISCELLANEOUS..............................................................109
10.1 NOTICES....................................................................109
10.2 EXPENSES...................................................................109
10.3 INDEMNITY..................................................................110
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10.4 SET-OFF....................................................................110
10.5 AMENDMENTS AND WAIVERS.....................................................111
10.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS.....................................113
10.7 INDEPENDENCE OF COVENANTS..................................................116
10.8 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.....................116
10.9 NO WAIVER; REMEDIES CUMULATIVE.............................................117
10.10 MARSHALLING; PAYMENTS SET ASIDE............................................117
10.11 SEVERABILITY...............................................................117
10.12 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.................117
10.13 ENTIRE AGREEMENT...........................................................117
10.14 HEADINGS...................................................................118
10.15 APPLICABLE LAW.............................................................118
10.16 CONSENT TO JURISDICTION....................................................118
10.17 WAIVER OF JURY TRIAL.......................................................118
10.18 CONFIDENTIALITY............................................................119
10.19 USURY SAVINGS CLAUSE.......................................................119
10.20 COUNTERPARTS...............................................................120
10.21 ELECTRONIC EXECUTION OF ASSIGNMENTS........................................120
10.22 USA PATRIOT ACT............................................................120
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APPENDICES: A-1 Term Loan Commitments
A-2 Revolving Loan Commitments
B Notice Addresses
SCHEDULES: 1.1 Permitted Leaseholds
1.2 Existing Permitted Partially-Owned Subsidiaries
3.1(g) Closing Date Mortgaged Property
4.1 Jurisdictions of Organization
4.2 Capital Stock and Ownership
4.10 Restricted Junior Payments
4.13 Real Estate Assets
5.14 Post-Closing Items
6.1 Certain Indebtedness
6.2 Certain Liens
6.7 Certain Investments
EXHIBITS: A-1 Funding Notice
A-2 Conversion/Continuation Notice
A-3 Issuance Notice
B-1 Term Loan Note
B-2 Revolving Loan Note
B-3 Swing Line Note
C Compliance Certificate
D Opinions of Counsel
E Assignment Agreement
F Certificate Re Non-bank Status
G Closing Date Certificate
H Counterpart Agreement
I Pledge and Security Agreement
J Mortgage
K Form of Permitted Seller Note
L Joinder Agreement
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CREDIT AND GUARANTY AGREEMENT
This CREDIT AND GUARANTY AGREEMENT, dated as of May 16, 2005, is entered
into by and among VICAR OPERATING, INC., a Delaware corporation ("COMPANY"), VCA
ANTECH, INC. (formerly known as Veterinary Centers of America, Inc.), a Delaware
corporation ("Holdings"), CERTAIN SUBSIDIARIES OF COMPANY, as Guarantors, the
Lenders party hereto from time to time, XXXXXXX XXXXX CREDIT PARTNERS L.P.
("GSCP"), as Joint Lead Arranger, Joint Bookrunner and as Sole Syndication Agent
(in such capacity, "SYNDICATION AGENT"), XXXXX FARGO BANK, N.A. ("XXXXX FARGO"),
as Joint Lead Arranger (in such capacity, together with GSCP, the "LEAD
ARRANGERS"), Joint Bookrunner and Administrative Agent (together with its
permitted successors in such capacity, "ADMINISTRATIVE AGENT") and as Collateral
Agent (together with its permitted successor in such capacity, "COLLATERAL
AGENT"), and UNION BANK OF CALIFORNIA, N.A. ("UBOC"), as Documentation Agent
("DOCUMENTATION AGENT").
RECITALS:
WHEREAS, capitalized terms used in these Recitals shall have the respective
meanings set forth for such terms in Section 1.1 hereof;
WHEREAS, Company, Holdings, the Guarantors, certain financial institutions
and other persons (the "EXISTING LENDERS"), GSCP, as joint lead arranger and
sole syndication agent, and Xxxxx Fargo, as joint lead arranger, administrative
agent and collateral agent, are parties to that certain Second Amended and
Restated Credit and Guaranty Agreement dated as of December 1, 2004 (as
heretofore amended, supplemented or otherwise modified, the "EXISTING CREDIT
AGREEMENT"), pursuant to which the Existing Lenders have extended certain credit
facilities to Company;
WHEREAS, Company, Holdings, the Guarantors, GSCP, Xxxxx Fargo and the
Lenders party hereto agree to enter into this Credit and Guaranty Agreement
(this "AGREEMENT") to extend certain credit facilities to Company in an
aggregate amount not to exceed $550,000,000, consisting of a $475,000,000
aggregate principal amount of Term Loans, up to $75,000,000 of Revolving
Commitments, and up to $25,000,000 of New Term Loans, the proceeds of which
shall be used (i) to refinance outstanding amounts under the Existing Credit
Agreement; (ii) to consummate the offer by Company to purchase up to 100% of the
outstanding Existing Subordinated Notes pursuant to a tender offer (the "TENDER
OFFER") and in addition, to the Tender Offer, to redeem the Existing
Subordinated Notes pursuant to the terms of the Existing Subordinated Note
Indenture (the "REDEMPTION"); and (iii) for working capital and other general
corporate purposes, including Permitted Acquisitions;
WHEREAS, Company has agreed to secure all of its Obligations by granting to
Collateral Agent, for the benefit of Secured Parties, a First Priority Lien on
certain of its assets, including a pledge of all of the Capital Stock of each of
its Domestic Subsidiaries and 65% of all the Capital Stock of each of its
Foreign Subsidiaries; and
WHEREAS, Guarantors have agreed to guarantee the obligations of Company
hereunder and to secure their respective Obligations by granting to Collateral
Agent, for the benefit of Secured Parties, a First Priority Lien on certain of
their respective assets, including a pledge of
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all of the Capital Stock of each of their respective Domestic Subsidiaries
(including Company) and 65% of all the Capital Stock of each of their respective
Foreign Subsidiaries;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS. The following terms used herein, including in the preamble,
recitals, exhibits and schedules hereto, shall have the following meanings:
"ADJUSTED EURODOLLAR RATE" means, for any Interest Rate Determination Date
with respect to an Interest Period for a Eurodollar Rate Loan, the rate per
annum obtained by dividing (and rounding upward to the next whole multiple of
1/16 of 1%) (i) (a) the rate per annum (rounded to the nearest 1/100 of 1%)
equal to the rate determined by Administrative Agent to be the offered rate
which appears on the page of the Telerate Screen which displays an average
British Bankers Association Interest Settlement Rate (such page currently being
page number 3740 or 3750, as applicable) for deposits (for delivery on the first
day of such period) with a term equivalent to such period in Dollars, determined
as of approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (b) in the event the rate referenced in the preceding
clause (a) does not appear on such page or service or if such page or service
shall cease to be available, the rate per annum (rounded to the nearest 1/100 of
1%) equal to the rate determined by Administrative Agent to be the offered rate
on such other page or other service which displays an average British Bankers
Association Interest Settlement Rate for deposits (for delivery on the first day
of such period) with a term equivalent to such period in Dollars, determined as
of approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (c) in the event the rates referenced in the preceding
clauses (a) and (b) are not available, the rate per annum (rounded to the
nearest 1/100 of 1%) equal to the offered quotation rate to first class banks in
the London interbank market by Xxxxx Fargo for deposits (for delivery on the
first day of the relevant period) in Dollars of amounts in same day funds
comparable to the principal amount of the applicable Loan of Administrative
Agent, in its capacity as a Lender, for which the Adjusted Eurodollar Rate is
then being determined with maturities comparable to such period as of
approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, by (ii) an amount equal to (a) one MINUS (b) the Applicable
Reserve Requirement.
"ADMINISTRATIVE AGENT" as defined in the preamble hereto.
"ADVERSE PROCEEDING" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration (whether or not purportedly on behalf of Holdings or any of its
Subsidiaries) at law or in equity, or before or by any Governmental Authority,
domestic or foreign (including any Environmental Claims), whether pending or, to
the knowledge of Holdings or any of its Subsidiaries, threatened against or
affecting Holdings or any of its Subsidiaries or any property of Holdings or any
of its Subsidiaries.
"AFFECTED LENDER" as defined in Section 2.17(b).
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"AFFECTED LOANS" as defined in Section 2.17(b).
"AFFILIATE" means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 10% or more of the Securities having
ordinary voting power for the election of directors of such Person or (ii) to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting securities or by contract or otherwise.
"AGENT" means each of Lead Arrangers, Syndication Agent, Administrative
Agent and Collateral Agent.
"AGGREGATE AMOUNTS DUE" as defined in Section 2.16.
"AGGREGATE PAYMENTS" as defined in Section 7.2.
"AGREEMENT" as defined in the Preamble hereto.
"APPLICABLE MARGIN" means (i) (a) with respect to Term Loans that are
Eurodollar Rate Loans, 1.50% per annum and (b) with respect to Revolving Loans
that are Eurodollar Rate Loans, 1.50% per annum, (ii) with respect to Term Loans
and Revolving Loans that are Base Rate Loans, the Applicable Margin for
Eurodollar Rate Loans as set forth in clause (i)(a) or (i)(b) above, as
applicable, MINUS (b) 1.00% per annum and (iii) with respect to Swing Line
Loans, (a) the Applicable Margin for Eurodollar Rate Loans as set forth in
clause (i)(b) above, MINUS (b) 1.00% per annum.
"APPLICABLE RESERVE REQUIREMENT" means, at any time, for any Eurodollar
Rate Loan, the maximum rate, expressed as a decimal, at which reserves
(including, without limitation, any basic marginal, special, supplemental,
emergency or other reserves) are required to be maintained with respect thereto
against "Eurocurrency liabilities" (as such term is defined in Regulation D)
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System or other applicable banking regulator. Without limiting
the effect of the foregoing, the Applicable Reserve Requirement shall reflect
any other reserves required to be maintained by such member banks with respect
to (i) any category of liabilities which includes deposits by reference to which
the applicable Adjusted Eurodollar Rate or any other interest rate of a Loan is
to be determined, or (ii) any category of extensions of credit or other assets
which include Eurodollar Rate Loans. A Eurodollar Rate Loan shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed subject to
reserve requirements without benefits of credit for proration, exceptions or
offsets that may be available from time to time to the applicable Lender. The
rate of interest on Eurodollar Rate Loans shall be adjusted automatically on and
as of the effective date of any change in the Applicable Reserve Requirement.
"APPLICABLE REVOLVING COMMITMENT FEE PERCENTAGE" means a percentage, per
annum, equal to (i) 0.50% with respect to any period during which the Total
Utilization of Revolving
8
Commitments is less than or equal to 50% of the total Revolving Commitments and
(ii) 0.375% at all other times.
"ASSET SALE" means a sale, lease or sub-lease (as lessor or sublessor),
sale and leaseback, assignment, conveyance, transfer or other disposition to, or
any exchange of property with, any Person (other than Company or a Guarantor
Subsidiary), in one transaction or a series of transactions, of all or any part
of Holdings' or any of its Subsidiaries' businesses, assets or properties of any
kind, whether real, personal, or mixed and whether tangible or intangible,
whether now owned or hereafter acquired, including, without limitation, the
Capital Stock of any of Holdings' Subsidiaries (PROVIDED, HOWEVER, that solely
for purposes of Section 2.13(a), such sale of Capital Stock shall not be
considered an Asset Sale), other than (i) inventory, equipment or other assets
sold or leased in the ordinary course of business, and (ii) sales of other
assets for aggregate consideration of less than $750,000 with respect to any
transaction or series of related transactions.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement substantially in the
form of Exhibit E, with such amendments or modifications as may be approved by
Administrative Agent.
"ASSIGNMENT EFFECTIVE DATE" as defined in Section 10.6(b).
"ASSOCIATED FEES, COSTS AND EXPENSES" means all fees, costs and expenses
associated with (i) the Tender Offer, (ii) the transactions contemplated by the
Offer to Purchase and Consent Solicitation Statement, and (iii) the Redemption.
"AUTHORIZED OFFICER" means, as applied to any Person, any individual
holding the position of chairman of the board (if an officer), chief executive
officer, president or one of its vice presidents (or the equivalent thereof),
and such Person's chief financial officer or treasurer.
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy," as now and hereafter in effect, or any successor statute.
"BASE RATE" means, for any day, a rate per annum equal to the greater of
(i) the Prime Rate in effect on such day and (ii) the Federal Funds Effective
Rate in effect on such day PLUS 1/2 of 1%. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective
on the effective day of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.
"BASE RATE LOAN" means a Loan bearing interest at a rate determined by
reference to the Base Rate.
"BENEFICIARY" means each Agent, Issuing Bank, Lender and Lender
Counterparty.
"BUSINESS DAY" means (i) any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of New York and/or
California or is a day on which banking institutions located in such state are
authorized or required by law or other governmental action to close and (ii)
with respect to all notices, determinations, fundings and payments in connection
with the Adjusted Eurodollar Rate or any Eurodollar Rate Loans, the term
"BUSINESS
9
DAY" shall mean any day which is a Business Day described in clause (i) and
which is also a day for trading by and between banks in Dollar deposits in the
London interbank market.
"CAPITAL LEASE" means, as applied to any Person, any lease of any property
(whether real, personal or mixed) by that Person as lessee that, in conformity
with GAAP, is or should be accounted for as a capital lease on the balance sheet
of that Person.
"CAPITAL STOCK" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation),
including, without limitation, partnership interests and membership interests,
and any and all warrants, rights or options to purchase or other arrangements or
rights to acquire any of the foregoing.
"CASH" means money, currency or a credit balance in any demand or Deposit
Account.
"CASH EQUIVALENTS" means, as at any date of determination, (i) marketable
securities (a) issued or directly and unconditionally guaranteed as to interest
and principal by the United States Government or (b) issued by any agency of the
United States the obligations of which are backed by the full faith and credit
of the United States, in each case maturing within one year after such date;
(ii) marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after such date
and having, at the time of the acquisition thereof, a rating of at least A-1
from S&P or at least P-1 from Xxxxx'x; (iii) commercial paper maturing no more
than one year from the date of creation thereof and having, at the time of the
acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
Xxxxx'x; (iv) certificates of deposit or bankers' acceptances maturing within
one year after such date and issued or accepted by any Lender or by any
commercial bank organized under the laws of the United States of America or any
state thereof or the District of Columbia that (a) is at least "adequately
capitalized" (as defined in the regulations of its primary Federal banking
regulator) and (b) has Tier 1 capital (as defined in such regulations) of not
less than $100,000,000; (v) shares of any money market mutual fund that (a) has
substantially all of its assets invested continuously in the types of
investments referred to in clauses (i) through (iv) above, (b) has net assets of
not less than $500,000,000, and (c) has the highest rating obtainable from
either S&P or Xxxxx'x; and (vi) guaranteed investment contracts (a) that are
provided by a provider that maintains a short-term certificate of deposit rating
of at least A-1 from S&P or the equivalent from Xxxxx'x and, if the term of such
investment contract is one year or more, a long-term certificate of deposit
rating of at least A from S&P or the equivalent from Xxxxx'x and (b) that are
redeemable at no less than par on not more than seven days' notice to the
provider.
"CERTIFICATE RE NON-BANK STATUS" means a certificate substantially in the
form of Exhibit F.
"CHANGE OF CONTROL" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or more related transactions, of all or
substantially all of the properties or assets of Holdings and its Subsidiaries
taken as a whole, or of Company and it Subsidiaries taken as a whole, to any
Person or "person" (as such term is used in Section 13(d)(3) of the Exchange
Act); (ii) the
10
adoption of a plan relating to the liquidation or dissolution of Holdings or
Company; or (iii) the consummation of any transaction (including without
limitation, any merger or consolidation), as a result of which (y) Holdings
ceases to own directly 100% of the Capital Stock of Company or (z) any Person or
"group" (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act),
shall have acquired, directly or indirectly, beneficial ownership of 35% or more
on a fully diluted basis of the aggregate voting interest attributable to all
outstanding Capital Stock of Holdings.
"CLASS" means (i) with respect to Lenders, each of the following classes of
Lenders: (a) Lenders having Term Loan Exposure; (b) Lenders having Revolving
Exposure (including Swing Line Lender), and (c) Lenders having New Term Loan
Exposure of a particular Series and (ii) with respect to Loans, each of the
following classes of Loans: (a) Term Loans; (b) Revolving Loans (including Swing
Line Loans); and (c) each Series of New Term Loans.
"CLOSING DATE" means the date upon which the conditions set forth in
Section 3.1 are satisfied.
"CLOSING DATE CERTIFICATE" means the Closing Date Certificate substantially
in the form of Exhibit G.
"CLOSING DATE MORTGAGED PROPERTY" as defined in Section 3.1(g)(i).
"CLOSING DATE TERM LOAN" means a Term Loan made by a Lender to Company
pursuant to Section 2.1(a)(i).
"CLOSING DATE TERM LOAN COMMITMENT" means the commitment of a Lender to
make or otherwise fund a Closing Date Term Loan and "CLOSING DATE TERM LOAN
COMMITMENTS" means such commitments of all Lenders in the aggregate. The amount
of each Lender's Closing Date Term Loan Commitment, if any, is set forth on
Appendix A-1 or in the applicable Assignment Agreement, subject to any
adjustment or reduction pursuant to the terms and conditions hereof. The
aggregate amount of the Closing Date Term Loan Commitments as of the Closing
Date is $285,000,000.
"COLLATERAL" means, collectively, all of the real, personal and mixed
property (including Capital Stock) in which Liens are purported to be granted
pursuant to the Collateral Documents as security for the Obligations.
"COLLATERAL AGENT" means the institution serving as such under the
Collateral Documents.
"COLLATERAL DOCUMENTS" means the Pledge and Security Agreement, the
Mortgages and all other instruments, documents and agreements delivered by any
Credit Party pursuant to this Agreement or any of the other Credit Documents in
order to grant to Collateral Agent, for the benefit of Secured Parties, a Lien
on any real, personal or mixed property of that Credit Party as security for the
Obligations.
"COMMITMENT" means any Revolving Commitment, Term Loan Commitment or New
Term Loan Commitment.
11
"COMPANY" as defined in the preamble hereto.
"COMPLIANCE CERTIFICATE" means a Compliance Certificate substantially in
the form of Exhibit C.
"CONSOLIDATED ADJUSTED EBITDA" means, for any period, an amount determined
for Company and its Subsidiaries on a consolidated basis equal to (i) the sum,
without duplication, of the amounts for such period of (a) Consolidated Net
Income, (b) Consolidated Interest Expense, (c) provisions for taxes based on
income, (d) total depreciation expense, (e) total amortization expense, (f)
other non-Cash items reducing Consolidated Net Income (excluding any such
non-Cash item to the extent that it represents an accrual or reserve for
potential Cash items in any future period or amortization of a prepaid Cash item
that was paid in a prior period but, notwithstanding anything to the contrary
herein, including without limitation, reserves for lease expense and other
charges and expenses related to the closure of hospitals to the extent not paid
in cash), and (g) to the extent deducted in calculating Consolidated Net Income,
Transaction Costs, MINUS (ii) non-Cash items increasing Consolidated Net Income
for such period (excluding any such non-Cash item to the extent it represents
the reversal of an accrual or reserve for potential Cash item in any prior
period).
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the aggregate of
the expenditures of Company and its Subsidiaries during such period determined
on a consolidated basis that, in accordance with GAAP, are or should be included
in "purchase of property and equipment" or similar items reflected in the
consolidated statement of cash flows of Company and its Subsidiaries excluding,
(i) any acquisition of assets that constitutes a Permitted Acquisition and (ii)
any expenditures made by Company pursuant to Sections 2.13(a) and 2.13(b)
hereof; PROVIDED, HOWEVER, that notwithstanding any of the foregoing to the
contrary, Consolidated Capital Expenditures shall include expenditures of
Company and its Subsidiaries with respect to assets constituting a fee interest
in real property acquired by Company or its Subsidiaries in connection with a
Permitted Acquisition.
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period, Consolidated
Interest Expense for such period, excluding any amounts not payable in Cash.
"CONSOLIDATED CURRENT ASSETS" means, as at any date of determination, the
total assets of Company and its Subsidiaries on a consolidated basis that may
properly be classified as current assets in conformity with GAAP, excluding Cash
and Cash Equivalents.
"CONSOLIDATED CURRENT LIABILITIES" means, as at any date of determination,
the total liabilities of Company and its Subsidiaries on a consolidated basis
that may properly be classified as current liabilities in conformity with GAAP,
excluding the current portion of long term debt.
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an amount (if
positive) equal to: (i) the sum, without duplication, of the amounts for such
period of (a) Consolidated Adjusted EBITDA, and (b) the Consolidated Working
Capital Adjustment, MINUS (ii) the sum, without duplication, of the amounts for
such period of (a) voluntary and scheduled repayments of Consolidated Total Debt
(excluding repayments of Revolving Loans or Swing Line Loans except
12
to the extent the Revolving Commitments are permanently reduced in connection
with such repayments), (b) Consolidated Capital Expenditures (net of any
proceeds of any related financings with respect to such expenditures), (c)
Consolidated Cash Interest Expense, (d) the provision for current taxes based on
income of Holdings and its Subsidiaries and payable in cash with respect to such
period, (e) to the extent not otherwise deducted in determining Consolidated
Excess Cash Flow, cash payments made in connection with Permitted Acquisitions
(net of any proceeds of related financing), (f) all amounts that were made as
Investments in Persons, other than Holdings, Company or a Guarantor Subsidiary
in conformity with the provisions of Section 6.7 hereof, (g) Transaction Costs
to the extent paid in cash during such period, and (h) all amounts that were
distributed pro rata to the holders of Capital Stock of Subsidiaries of Company
(other than Company and Subsidiaries of Company) or that were paid in cash to
repurchase the Capital Stock of Holdings or any Subsidiary of Company from a
Person who is not an Affiliate of Company in conformity with the provisions of
Sections 6.5 and 6.7, and MINUS (or plus) (iii) the amount by which outstanding
loans permitted pursuant to Section 6.7(g) hereof increased or decreased during
such period when compared to such amount as of the end of the immediately
preceding Fiscal Year.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum, without
duplication, of the amounts determined for Company and its Subsidiaries on a
consolidated basis equal to (i) Consolidated Cash Interest Expense, (ii)
scheduled payments of principal on Consolidated Total Debt, (iii) Consolidated
Capital Expenditures and (iv) provisions for current cash taxes based on income
with respect to such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP and capitalized interest) of Company and its Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness of Company and
its Subsidiaries, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and net costs under Interest Rate
Agreements, but excluding, however, any amounts referred to in Section 2.10(e)
payable on or before the Closing Date.
"CONSOLIDATED NET INCOME" means, for any period, (i) the net income (or
loss) of Company and its Subsidiaries on a consolidated basis for such period
taken as a single accounting period determined in conformity with GAAP, MINUS
(ii) (a) the income of any Person (other than a Subsidiary of Company) in which
any other Person (other than Company or any of its Subsidiaries) has a joint
interest, except to the extent of the amount of dividends or other distributions
actually paid to Company or any of its Subsidiaries by such Person during such
period, (b) the income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary of Company or is merged into or consolidated with Company
or any of its Subsidiaries or that Person's assets are acquired by Company or
any of its Subsidiaries, (c) the income of any Subsidiary of Company to the
extent that the declaration or payment of dividends or similar distributions by
that Subsidiary of that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary, (d) any
after-tax gains or losses attributable to Asset Sales or returned surplus assets
of any Pension Plan, and (e) (to the extent not included in clauses (a) through
(d) above) any net extraordinary gains or net extraordinary losses.
13
"CONSOLIDATED TOTAL DEBT" means, as at any date of determination, the
aggregate stated balance sheet amount of all Indebtedness of Company and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED WORKING CAPITAL" means, as at any date of determination, the
excess of Consolidated Current Assets over Consolidated Current Liabilities.
"CONSOLIDATED WORKING CAPITAL ADJUSTMENT" means, for any period on a
consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or is
less than) Consolidated Working Capital as of the end of such period.
"CONTRACTUAL OBLIGATION" means, as applied to any Person, any provision of
any Security issued by that Person or of any indenture, mortgage, deed of trust,
contract, undertaking, agreement or other instrument to which that Person is a
party or by which it or any of its properties is bound or to which it or any of
its properties is subject.
"CONVERSION/CONTINUATION DATE" means the effective date of a continuation
or conversion, as the case may be, as set forth in the applicable
Conversion/Continuation Notice.
"CONVERSION/CONTINUATION NOTICE" means a Conversion/Continuation Notice
substantially in the form of Exhibit A-2.
"COUNTERPART AGREEMENT" means a Counterpart Agreement substantially in the
form of Exhibit H delivered by a Credit Party pursuant to Section 5.10.
"CONTRIBUTING GUARANTORS" as defined in Section 7.2.
"CREDIT DATE" means the date of a Credit Extension.
"CREDIT DOCUMENT" means any of this Agreement, the Notes, if any, the
Collateral Documents, any documents or certificates executed by Company in favor
of Issuing Bank relating to Letters of Credit, and all other documents,
instruments or agreements executed and delivered by a Credit Party for the
benefit of any Agent, Issuing Bank or any Lender in connection herewith,
including, without limitation, any Hedge Agreement entered into in connection
herewith.
"CREDIT EXTENSION" means the making of a Loan or the issuing of a Letter of
Credit.
"CREDIT PARTY" means each Person (other than any Agent, Issuing Bank or any
Lender or any other representative thereof) from time to time party to a Credit
Document.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency swap
agreement, futures contract, option contract, synthetic cap or other similar
agreement or arrangement, each of which is for the purpose of hedging the
projected foreign currency risk associated with Holdings' and its Subsidiaries'
operations and not for speculative purposes.
14
"DDTL COMMITMENT" means the commitment of a Lender to make or otherwise
fund a Delayed Draw Term Loan and "DDTL COMMITMENTS" means such commitments of
all Lenders in the aggregate. The amount of each Lender's DDTL Commitment, if
any, is set forth on Appendix A-1 or in the applicable Assignment Agreement,
subject to any adjustment or reduction pursuant to the terms and conditions
hereof. The aggregate amount of the DDTL Commitments as of the Closing Date is
$190,000,000.
"DDTL FUNDING DATE" means the date on or before the date which is thirty
(30) days after the Closing Date.
"DELAYED DRAW TERM LOAN" means a Term Loan made by a Lender to Company
pursuant to Section 2.1(a)(ii).
"DEFAULT" means a condition or event that, after notice or lapse of time or
both, would constitute an Event of Default.
"DEFAULT EXCESS" means, with respect to any Defaulting Lender, the excess,
if any, of such Defaulting Lender's Pro Rata Share of the aggregate outstanding
principal amount of Loans of all Lenders (calculated as if all Defaulting
Lenders (other than such Defaulting Lender) had funded all of their respective
Defaulted Loans) over the aggregate outstanding principal amount of all Loans of
such Defaulting Lender.
"DEFAULT PERIOD" means, with respect to any Defaulting Lender, the period
commencing on the date of the applicable Funding Default and ending on the
earliest of the following dates: (i) the date on which all Commitments are
cancelled or terminated and/or the Obligations are declared or become
immediately due and payable, (ii) the date on which (a) the Default Excess with
respect to such Defaulting Lender shall have been reduced to zero (whether by
the funding by such Defaulting Lender of any Defaulted Loans of such Defaulting
Lender or by the non-pro rata application of any voluntary or mandatory
prepayments of the Loans in accordance with the terms of Section 2.13 or Section
2.14 or by a combination thereof) and (b) such Defaulting Lender shall have
delivered to Company and Administrative Agent a written reaffirmation of its
intention to honor its obligations hereunder with respect to its Commitments,
and (iii) the date on which Company, Administrative Agent and Requisite Lenders
waive all Funding Defaults of such Defaulting Lender in writing.
"DEFAULTING LENDER" as defined in Section 2.21.
"DEFAULTED LOAN" as defined in Section 2.21.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or like account
with a bank, savings and loan association, credit union or like organization,
other than an account evidenced by a negotiable certificate of deposit.
"DOCUMENTATION AGENT" as defined in the preamble thereto.
"DOLLARS" and the sign "$" mean the lawful money of the United States of
America.
15
"DOMESTIC SUBSIDIARY" means any Subsidiary organized under the laws of the
United States of America, any State thereof or the District of Columbia.
"EARN-OUT OBLIGATIONS" means any unsecured contingent liability of Holdings
or any of its Subsidiaries owed to any seller in connection with a Permitted
Acquisition that (a) constitutes a portion of the purchase price for such
Permitted Acquisition but is not an amount certain on the date of incurrence
thereof and is not subject to any right of acceleration by such seller and (b)
is only payable upon the achievement of performance standards by the Person or
other property acquired in such Permitted Acquisition and in an amount based
upon such achievement PROVIDED that the formula for determining the aggregate
amount of such liability shall be fixed at the date of such Permitted
Acquisition.
"ELIGIBLE ASSIGNEE" means (i) any Lender, any Affiliate of any Lender and
any Related Fund (any two or more Related Funds being treated as a single
Eligible Assignee for all purposes hereof), and (ii) any commercial bank,
insurance company, investment or mutual fund or other entity that is an
"accredited investor" (as defined in Regulation D under the Securities Act) and
which extends credit or buys loans as one of its businesses; PROVIDED, no
Affiliate of Holdings shall be an Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as defined in
Section 3(3) of ERISA which is or was sponsored, maintained or contributed to
by, or required to be contributed by, Holdings or any of its Subsidiaries or, to
the extent that Holdings or any of its Subsidiaries would be liable under ERISA
in respect thereof, any of their respective ERISA Affiliates.
"ENVIRONMENTAL CLAIM" means any investigation, notice, notice of violation,
claim, action, suit, proceeding, demand, abatement order or other order or
directive (conditional or otherwise), by any governmental authority or any other
Person, arising (i) pursuant to or in connection with any actual or alleged
violation of any Environmental Law; (ii) in connection with any Hazardous
Material or any actual or alleged Hazardous Materials Activity; or (iii) in
connection with any actual or alleged damage, injury, threat or harm to health,
safety, natural resources or the environment.
"ENVIRONMENTAL LAWS" means any and all current or future foreign or
domestic, federal or state (or any subdivision of either of them), statutes,
ordinances, orders, rules, regulations, guidance documents, judgments,
Governmental Authorizations, or any other requirements of Governmental
Authorities relating to (i) environmental matters, including those relating to
any Hazardous Materials Activity; (ii) the generation, use, storage,
transportation or disposal of Hazardous Materials; or (iii) occupational safety
and health, industrial hygiene, land use or the protection of human, plant or
animal health or welfare, in any manner applicable to Holdings or any of its
Subsidiaries or any Facility.
"ENVIRONMENTAL REPORTS" means any reports and other information, in form
scope and substance satisfactory to Syndication Agent and Collateral Agent
regarding environmental matters relating to the Facilities.
16
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto.
"ERISA AFFILIATE" means, as applied to any Person, (i) any corporation
which is a member of a controlled group of corporations within the meaning of
Section 414(b) of the Internal Revenue Code of which that Person is a member;
(ii) any trade or business (whether or not incorporated) which is a member of a
group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii)
any member of an affiliated service group within the meaning of Section 414(m)
or (o) of the Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described in clause (ii)
above is a member. Any former ERISA Affiliate of Holdings or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate of Holdings or
any such Subsidiary within the meaning of this definition with respect to the
period such entity was an ERISA Affiliate of Holdings or such Subsidiary and
with respect to liabilities arising after such period for which Holdings or such
Subsidiary could be liable under the Internal Revenue Code or ERISA.
"ERISA EVENT" means (i) a "reportable event" within the meaning of Section
4043 of ERISA and the regulations issued thereunder with respect to any Pension
Plan (excluding those for which the provision for 30-day notice to the PBGC has
been waived by regulation); (ii) the failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code with respect to any Pension
Plan (whether or not waived in accordance with Section 412(d) of the Internal
Revenue Code) or the failure to make by its due date a required installment
under Section 412(m) of the Internal Revenue Code with respect to any Pension
Plan or the failure to make any required contribution to a Multiemployer Plan;
(iii) the provision by the administrator of any Pension Plan pursuant to Section
4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (iv) the withdrawal by
Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates
from any Pension Plan with two or more contributing sponsors or the termination
of any such Pension Plan resulting in liability pursuant to Section 4063 or 4064
of ERISA; (v) the institution by the PBGC of proceedings to terminate any
Pension Plan, or the occurrence of any event or condition which might constitute
grounds under ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; (vi) the imposition of liability on Holdings, any
of its Subsidiaries or any of their respective ERISA Affiliates pursuant to
Section 4062(e) or 4069 of ERISA or by reason of the application of Section
4212(c) of ERISA; (vii) the withdrawal of Holdings, any of its Subsidiaries or
any of their respective ERISA Affiliates in a complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer
Plan if there is any potential liability therefore, or the receipt by Holdings,
any of its Subsidiaries or any of their respective ERISA Affiliates of notice
from any Multiemployer Plan that it is in reorganization or insolvency pursuant
to Section 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act
or omission which could give rise to the imposition on Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates of fines, penalties,
taxes or related charges under Chapter 43 of the Internal Revenue Code or under
Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of
any Employee Benefit Plan; (ix) receipt from the Internal Revenue Service of
notice of the failure of any Pension Plan (or any other Employee Benefit Plan
intended to be qualified under Section 401(a) of the Internal Revenue Code) to
qualify
17
under Section 401(a) of the Internal Revenue Code; or (x) the imposition of a
Lien pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan.
"EURODOLLAR RATE LOAN" means a Loan bearing interest at a rate determined
by reference to the Adjusted Eurodollar Rate.
"EVENT OF DEFAULT" means each of the conditions or events set forth in
Section 8.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor statute.
"EXISTING CREDIT AGREEMENT" as defined in the recitals hereto.
"EXISTING LENDERS" as defined in the recitals hereto.
"EXISTING SUBORDINATED NOTE INDENTURE" means the Indenture entered into
among Company, the Guarantors (as defined therein) and X.X. Xxxxxx Trust
Company, National Association, as successor in interest to Chase Manhattan Bank
and Trust Company, National Association, dated as of November 27, 2001, pursuant
to which the Existing Subordinated Notes were issued, as such Indenture may
hereafter be amended, restated, supplemented or otherwise modified from time to
time to the extent permitted under Section 6.16.
"EXISTING SUBORDINATED NOTES" means the subordinated notes due December 1,
2009 in an aggregate principal amount of $170,000,000, as such notes may
hereafter be amended, restated, supplemented or otherwise modified from time to
time to the extent permitted under Section 6.16.
"FACILITY" means any real property (including all buildings, fixtures or
other improvements located thereon) now, hereafter or heretofore owned, leased,
operated or used by Holdings or any of its Subsidiaries or any of their
respective predecessors or Affiliates.
"FAIR SHARE CONTRIBUTION AMOUNT" as defined in Section 7.2.
"FAIR SHARE" as defined in Section 7.2.
"FAIR SHARE SHORTFALL" as defined in Section 7.2.
"FEDERAL FUNDS EFFECTIVE RATE" means for any day, the rate per annum
(expressed, as a decimal, rounded upwards, if necessary, to the next higher
1/100 of 1%) equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; PROVIDED, (i) if such day
is not a Business Day, the Federal Funds Effective Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Effective Rate
for such day shall be the average rate charged to Administrative Agent, in its
capacity as a Lender, on such day on such transactions as determined by
Administrative Agent.
18
"FINANCIAL OFFICER CERTIFICATION" means, with respect to the financial
statements for which such certification is required, the certification of the
chief financial officer of Holdings that such financial statements fairly
present, in all material respects, the financial condition of Holdings and its
Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated, subject to changes resulting from
audit and normal year-end adjustments.
"FINANCIAL PLAN" as defined in Section 5.1(i).
"FIRST PRIORITY" means, with respect to any Lien purported to be created in
any Collateral pursuant to any Collateral Document, that such Lien is the only
Lien to which such Collateral is subject, other than Permitted Liens.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Holdings and its Subsidiaries ending
on December 31 of each calendar year.
"FIXED CHARGE COVERAGE RATIO" means the ratio as of the last day of any
Fiscal Quarter of (i) Consolidated Adjusted EBITDA for the four-Fiscal Quarter
period then ending, to (ii) Consolidated Fixed Charges for such four-Fiscal
Quarter period.
"FLOOD HAZARD PROPERTY" means any Real Estate Asset subject to a Mortgage
and located in an area designated by the Federal Emergency Management Agency as
having special flood or mud slide hazards.
"FOREIGN SUBSIDIARY" means any Subsidiary that is not a Domestic
Subsidiary.
"FUNDING DEFAULT" as defined in Section 2.21.
"FUNDING GUARANTORS" as defined in Section 7.2.
"FUNDING NOTICE" means a notice substantially in the form of Exhibit A-1.
"GAAP" means, subject to the limitations on the application thereof set
forth in Xxxxxxx 0.0, Xxxxxx Xxxxxx generally accepted accounting principles in
effect as of the date of determination thereof.
"GOVERNMENTAL ACTS" means any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
Governmental Authority.
"GOVERNMENTAL AUTHORITY" means any federal, state, municipal, national or
other government, governmental department, commission, board, bureau, court,
agency or instrumentality or political subdivision thereof or any entity or
officer exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to any government or any court, in
each case whether associated with a state of the United States, the United
States, or a foreign entity or government.
19
"GOVERNMENTAL AUTHORIZATION" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any Governmental
Authority.
"GRANTOR" as defined in the Pledge and Security Agreement.
"GUARANTEED OBLIGATIONS" as defined in Section 7.1.
"GUARANTOR" means each of Holdings and each Domestic Subsidiary of Holdings
(other than Company and certain Permitted Partially-Owned Subsidiaries that do
not provide a Guaranty).
"GUARANTOR SUBSIDIARY" means each Guarantor other than Holdings.
"GUARANTY" means the guaranty of each Guarantor set forth in Section 7.
"HAZARDOUS MATERIALS" means any chemical, material or substance, exposure
to which is prohibited, limited or regulated by any Governmental Authority or
which may or could pose a hazard to the health and safety of the owners,
occupants or any Persons in the vicinity of any Facility or to the indoor or
outdoor environment.
"HAZARDOUS MATERIALS ACTIVITY" means any past, current, proposed or
threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"HEDGE AGREEMENT" means an Interest Rate Agreement or a Currency Agreement
entered into with a Lender Counterparty in order to satisfy the requirements of
this Agreement.
"HIGHEST LAWFUL RATE" means the maximum lawful interest rate, if any, that
at any time or from time to time may be contracted for, charged, or received
under the laws applicable to any Lender which are presently in effect or, to the
extent allowed by law, under such applicable laws which may hereafter be in
effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.
"HISTORICAL FINANCIAL STATEMENTS" means as of the Closing Date, (i) the
audited financial statements of Holdings and its Subsidiaries, for the
immediately preceding three Fiscal Years, consisting of balance sheets and the
related consolidated statements of income, stockholders' equity and cash flows
for such Fiscal Years, and (ii) the unaudited financial statements of Holdings
and its Subsidiaries as at the most recently ended Fiscal Quarter, consisting of
a balance sheet and the related consolidated statements of income, stockholders'
equity and cash flows for the three-, six- or nine-month period, as applicable,
ending on such date, and, in the case of clauses (i) and (ii), certified by the
chief financial officer of Company that they fairly present, in all material
respects, the financial condition of Holdings and its Subsidiaries as at the
dates indicated and the results of their operations and their cash flows for the
periods indicated, subject to changes resulting from audit and normal year-end
adjustments.
20
"HOLDINGS" as defined in the preamble hereto.
"IMMATERIAL SUBSIDIARY" for purposes of Section 8.1(f) and Section 8.1(g),
shall mean one or more Subsidiaries of Holdings that, on a consolidated basis
did not (i) for the most recently concluded Fiscal Year account for more than
3.0% of consolidated revenues of Holdings and its Subsidiaries and (ii) as of
the last day of such Fiscal Year own more than 3.0% of the consolidated assets
of Holdings and its Subsidiaries.
"INCREASED AMOUNT DATE" as defined in Section 2.24.
"INCREASED-COST LENDERS" as defined in Section 2.22.
"INDEBTEDNESS", as applied to any Person, means, without duplication, (i)
all indebtedness for borrowed money; (ii) that portion of obligations with
respect to Capital Leases that is properly classified as a liability on a
balance sheet in conformity with GAAP; (iii) notes payable and drafts accepted
representing extensions of credit whether or not representing obligations for
borrowed money; (iv) any obligation owed for all or any part of the deferred
purchase price of property or services (excluding any such obligations incurred
under ERISA and ordinary course trade payables), which purchase price is (a) due
more than six months from the date of incurrence of the obligation in respect
thereof or (b) evidenced by a note or similar written instrument; (v) all
indebtedness secured by any Lien on any property or asset owned or held by that
Person regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is nonrecourse to the credit of that Person; (vi) the
face amount of any letter of credit issued for the account of that Person or as
to which that Person is otherwise liable for reimbursement of drawings; (vii)
the direct or indirect guaranty, endorsement (otherwise than for collection or
deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the obligation of another;
(viii) any obligation of such Person the primary purpose or intent of which is
to provide assurance to an obligee that the obligation of the obligor thereof
will be paid or discharged, or any agreement relating thereto will be complied
with, or the holders thereof will be protected (in whole or in part) against
loss in respect thereof; (ix) any liability of such Person for the obligation of
another through any agreement (contingent or otherwise) (a) to purchase,
repurchase or otherwise acquire such obligation or any security ~therefore, or
to provide funds for the payment or discharge of such obligation (whether in the
form of loans, advances, stock purchases, capital contributions or otherwise) or
(b) to maintain the solvency or any balance sheet item, level of income or
financial condition of another if, in the case of any agreement described under
subclauses (a) or (b) of this clause (ix), the primary purpose or intent thereof
is as described in clause (viii) above; and (x) obligations of such Person in
respect of any exchange traded or over the counter derivative transaction,
including, without limitation, any Interest Rate Agreement and Currency
Agreement, whether entered into for hedging or speculative purposes; PROVIDED,
in no event shall obligations under any Interest Rate Agreement and any Currency
Agreements be deemed "Indebtedness" for any purpose under Section 6.8.
"INDEMNIFIED LIABILITIES" means, collectively, any and all liabilities,
obligations, losses, damages (including natural resource damages), penalties and
claims (including Environmental Claims), and any and all reasonable and
documented costs (including the costs of any investigation, study, sampling,
testing, abatement, cleanup, removal, remediation or other
21
response action necessary to remove, remediate, clean up or xxxxx any Hazardous
Materials Activity), expenses and disbursements of any kind or nature whatsoever
(including the reasonable and documented fees and disbursements of counsel for
Indemnitees in connection with any investigative, administrative or judicial
proceeding commenced or threatened by any Person, whether or not any such
Indemnitee shall be designated as a party or a potential party thereto, and any
fees or expenses incurred by Indemnitees in enforcing this indemnity), whether
direct, indirect or consequential and whether based on any federal, state or
foreign laws, statutes, rules or regulations (including securities and
commercial laws, statutes, rules or regulations and Environmental Laws), on
common law or equitable cause or on contract or otherwise, that may be imposed
on, incurred by, or asserted against any such Indemnitee, in any manner relating
to or arising out of (i) this Agreement or the other Credit Documents or the
transactions contemplated hereby or thereby (including Lenders' agreement to
make Credit Extensions or the use or intended use of the proceeds thereof, or
any enforcement of any of the Credit Documents (including any sale of,
collection from, or other realization upon any of the Collateral or the
enforcement of the Guaranty)); (ii) the statements contained in the commitment
letter delivered by any Lender to Company with respect to the transactions
contemplated by this Agreement; or (iii) any Environmental Claim or any
Hazardous Materials Activity relating to or arising from, directly or
indirectly, any past or present activity, operation, land ownership, or practice
of Holdings or any of its Subsidiaries.
"INDEMNITEE" as defined in Section 10.3.
"INSTALLMENT" as defined in Section 2.11.
"INSTALLMENT DATE" as defined in Section 2.11.
"INTEREST PAYMENT DATE" means with respect to (i) any Loan that is a Base
Rate Loan, the last Business Day of each March, June, September and December of
each year, commencing on the first such date to occur after the Closing Date and
the final maturity date of such Loan; and (ii) any Loan that is a Eurodollar
Rate Loan, the last day of each Interest Period applicable to such Loan;
PROVIDED, in the case of each Interest Period of longer than three months
"Interest Payment Date" shall also include each date that is three months, or an
integral multiple thereof, after the commencement of such Interest Period.
"INTEREST PERIOD" means, in connection with a Eurodollar Rate Loan, an
interest period of one-, two-, three- or six-months, as selected by Company in
the applicable Funding Notice or Conversion/Continuation Notice, (i) initially,
commencing on the Credit Date or Conversion/Continuation Date thereof, as the
case may be; and (ii) thereafter, commencing on the day on which the immediately
preceding Interest Period expires; PROVIDED, (a) if an Interest Period would
otherwise expire on a day that is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day unless no further Business Day occurs
in such month, in which case such Interest Period shall expire on the
immediately preceding Business Day; (b) any Interest Period that begins on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clauses (c) through (d), of this definition, end on
the last Business Day of a calendar month; (c) no Interest Period with respect
to any portion of any Class of Term Loans shall extend beyond such Class's Term
Loan Maturity Date; and (d) no Interest
22
Period with respect to any portion of the Revolving Loans shall extend beyond
the Revolving Commitment Termination Date.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement, interest rate hedging
agreement or other similar agreement or arrangement, each of which is for the
purpose of hedging the interest rate exposure associated with Holdings' and its
Subsidiaries' operations and not for speculative purposes.
"INTEREST RATE DETERMINATION DATE" means, with respect to any Interest
Period, the date that is two Business Days prior to the first day of such
Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as amended
to the date hereof and from time to time hereafter, and any successor statute.
"INVESTMENT" means (i) any direct or indirect purchase or other acquisition
by Holdings or any of its Subsidiaries of, or of a beneficial interest in, any
of the Securities of any other Person (other than Company or a Guarantor
Subsidiary); (ii) any direct or indirect redemption, retirement, purchase or
other acquisition for value, by any Subsidiary of Holdings from any Person
(other than Holdings, Company or any Guarantor Subsidiary), of any Capital Stock
of such Person; and (iii) any direct or indirect loan, advance (other than
advances to employees for moving, entertainment and travel expenses, drawing
accounts and similar expenditures in the ordinary course of business) or capital
contribution by Holdings or any of its Subsidiaries to any other Person (other
than Holdings, Company or any Guarantor Subsidiary), including all indebtedness
and accounts receivable from that other Person that are not current assets or
did not arise from sales to that other Person in the ordinary course of
business. The amount of any Investment shall be the original cost of such
Investment PLUS the cost of all additions thereto, without any adjustments for
increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment.
"INVESTMENT RELATED PROPERTY" as defined in the Pledge and Security
Agreement.
"ISSUANCE NOTICE" means an Issuance Notice substantially in the form of
Exhibit A-3.
"ISSUING BANK" means Xxxxx Fargo as Issuing Bank hereunder, together with
its permitted successors and assigns in such capacity.
"JOINDER AGREEMENT" means an agreement substantially in the form of Exhibit
L.
"JOINT VENTURE" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; PROVIDED, in
no event shall any corporate Subsidiary of any Person be considered to be a
Joint Venture to which such Person is a party.
"LANDLORD CONSENT AND ESTOPPEL" means, with respect to any Leasehold
Property, a letter, certificate or other instrument in writing from the lessor
under the related lease, pursuant to which, among other things, the landlord
consents to the granting of a Mortgage on such Leasehold Property by the Credit
Party tenant, such Landlord Consent and Estoppel to be in form and substance
acceptable to the Collateral Agent in its reasonable discretion, but in any
event sufficient for the Collateral Agent to obtain a Title Policy with respect
to such Mortgage.
23
"LEAD ARRANGERS" as defined in the preamble hereto.
"LEASEHOLD PROPERTY" means any leasehold interest of any Credit Party as
lessee under any lease of real property, other than any such leasehold interest
designated from time to time by Collateral Agent in its sole discretion as not
being required to be included in the Collateral.
"LENDER" means each financial institution listed on the signature pages
hereto as a Lender and any other Person that becomes a party hereto pursuant to
an Assignment Agreement or a Joinder Agreement.
"LENDER COUNTERPARTY" means each Lender or any Affiliate of a Lender
counterparty to a Hedge Agreement (including any Person who is a Lender (and any
Affiliate thereof) as of the Closing Date but subsequently, whether before or
after entering into a Hedge Agreement, ceases to be a Lender), including,
without limitation, each such Affiliate that enters into a joinder agreement
with the Collateral Agent.
"LETTER OF CREDIT" means a commercial or standby letter of credit issued or
to be issued by Issuing Bank pursuant to this Agreement.
"LETTER OF CREDIT SUBLIMIT" means the lesser of (i) $10,000,000 and (ii)
the aggregate unused amount of the Revolving Commitments then in effect.
"LETTER OF CREDIT USAGE" means, as at any date of determination, the sum of
(i) the maximum aggregate amount which is, or at any time thereafter may become,
available for drawing under all Letters of Credit then outstanding, and (ii) the
aggregate amount of all drawings under Letters of Credit honored by Issuing Bank
and not theretofore reimbursed by or on behalf of Company.
"LEVERAGE RATIO" means the ratio as of the last day of any Fiscal Quarter
of (i) Consolidated Total Debt as of such day to (ii) Consolidated Adjusted
EBITDA for the four-Fiscal Quarter period ending on such date (as determined in
accordance with Section 6.8(f)).
"LIEN" means (i) any lien, claim, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any agreement to give any
of the foregoing, any conditional sale or other title retention agreement, and
any lease in the nature thereof) and any option, trust or other preferential
arrangement having the practical effect of any of the foregoing and (ii) in the
case of Securities, any purchase option, call or similar right of a THIRD party
with respect to such Securities.
"LOAN" means a Term Loan, a Revolving Loan, a Swing Line Loan or a New Term
Loan.
"MARGIN STOCK" as defined in Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"MARYLAND MORTGAGE" as defined in Section 7.12.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
business, operations, properties, assets, condition (financial or otherwise) or
prospects of Holdings and its Subsidiaries, taken as a whole; (ii) the ability
of the Credit Parties to fully and timely perform the
24
Obligations, taking into consideration the Guaranty and the joint and several
obligations of the Guarantors in respect of the Guaranty; (iii) the legality,
validity, binding effect or enforceability against the Credit Parties of the
Credit Documents, taking into consideration the Guaranty and the joint and
several obligations of the Guarantors in respect of the Guaranty; (iv) the
rights, remedies and benefits available to, or conferred upon, any Agent and any
Lender or any Secured Party under the Credit Documents, taking into
consideration the Guaranty and the joint and several obligations of the
Guarantors in respect of the Guaranty; or (v) the Collateral or the Collateral
Agent's Liens, on behalf of Secured Parties on the Collateral or the First
Priority of such Liens.
"MATERIAL CONTRACT" means any contract or other arrangement to which
Holdings or any of its Subsidiaries is a party (other than the Credit Documents)
for which breach, nonperformance, cancellation or failure to renew could
reasonably be expected to have a Material Adverse Effect.
"MATERIAL REAL ESTATE ASSET" means (i) (a) any fee-owned Real Estate Asset
having a fair market value in excess of $1,000,000 as of the date of the
acquisition thereof and (b) all Leasehold Properties other than those with
respect to which the aggregate payments under the term of the lease are less
than $500,000 per annum or (ii) any Real Estate Asset that the Requisite Lenders
have reasonably determined is material to the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Holdings or any
Subsidiary thereof, including Company and with respect to which the
Administrative Agent has provided written notice to Company of such
determination; PROVIDED that notwithstanding the foregoing, the leases set forth
on Schedule 1.1 shall not be deemed Material Real Estate Assets as of the
Closing Date.
"MOODY'S" means Xxxxx'x Investor Services, Inc.
"MORTGAGE" means a Mortgage substantially in the form of Exhibit J, as it
may be amended, supplemented or otherwise modified from time to time.
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NAIC" means The National Association of Insurance Commissioners, and any
successor thereto.
"NARRATIVE REPORT" means, with respect to the financial statements for
which such narrative report is required, a narrative report describing the
operations of Holdings and its Subsidiaries in the form and to the extent
prepared for presentation to senior management thereof for the applicable month,
Fiscal Quarter or Fiscal Year and for the period from the beginning of the then
current Fiscal Year to the end of such period to which such financial statements
relate.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset Sale, an amount
equal to: (i) Cash payments (including any Cash received by way of deferred
payment pursuant to, or by monetization of, a note receivable or otherwise, but
only as and when so received) received by Holdings or any of its Subsidiaries
from such Asset Sale, MINUS (ii) any bona fide direct costs incurred in
connection with such Asset Sale, including (a) income or gains taxes payable by
the
25
seller as a result of any gain recognized in connection with such Asset Sale,
(b) payment of the outstanding principal amount of, premium or penalty, if any,
and interest on any Indebtedness (other than the Loans) that is secured by a
Lien on the stock or assets in question and that is required to be repaid under
the terms thereof as a result of such Asset Sale and (c) a reasonable reserve
for any indemnification payments (fixed or contingent) attributable to seller's
indemnities and representations and warranties to purchaser in respect of such
Asset Sale undertaken by Holdings or any of its Subsidiaries in connection with
such Asset Sale.
"NET INSURANCE/CONDEMNATION PROCEEDS" means an amount equal to: (i) any
Cash payments or proceeds received by Holdings or any of its Subsidiaries (a)
under any casualty insurance policy in respect of a covered loss thereunder or
(b) as a result of the taking of any assets of Holdings or any of its
Subsidiaries by any Person pursuant to the power of eminent domain, condemnation
or otherwise, or pursuant to a sale of any such assets to a purchaser with such
power under threat of such a taking, MINUS (ii) (a) any actual and reasonable
costs incurred by Holdings or any of its Subsidiaries in connection with the
adjustment or settlement of any claims of Holdings or such Subsidiary in respect
thereof, and (b) any bona fide direct costs incurred in connection with any sale
of such assets as referred to in clause (i)(b) of this definition, including
income taxes payable as a result of any gain recognized in connection therewith.
"NEW TERM LOAN COMMITMENTS" as defined in Section 2.24.
"NEW TERM LOAN EXPOSURE" means, with respect to any Lender, as of any date
of determination, the outstanding principal amount of the New Term Loans of such
Lender.
"NEW TERM LOAN LENDER" as defined in Section 2.24.
"NEW TERM LOAN MATURITY DATE" means the date that New Term Loans of a
Series shall become due and payable in full hereunder, as specified in the
applicable Joinder Agreement, including by acceleration or otherwise.
"NEW TERM LOANS" as defined in Section 2.24.
"NON-US LENDER" as defined in Section 2.19(c).
"NOTE" means a Term Loan Note, a Revolving Loan Note or a Swing Line Note.
"NOTICE" means a Funding Notice or a Conversion/Continuation Notice.
"OBLIGATIONS" means all obligations of every nature of each Credit Party
from time to time owed to the Agents (including former Agents), the Lenders or
any of them or their respective Affiliates and Lender Counterparties, under any
Credit Document or Hedge Agreement (including, without limitation, with respect
to a Hedge Agreement, obligations owed thereunder to any person who was a Lender
or an Affiliate of a Lender at the time such Hedge Agreement was entered into),
whether for principal, interest (including interest which, but for the filing of
a petition in bankruptcy with respect to such Credit Party, would have accrued
on any Obligation, whether or not a claim is allowed against such Credit Party
for such interest in the related bankruptcy proceeding), reimbursement of
amounts drawn under Letters of Credit,
26
payments for early termination of Hedge Agreements, fees, expenses,
indemnification or otherwise.
"OBLIGEE GUARANTOR" as defined in Section 7.7.
"OFFER TO PURCHASE AND CONSENT SOLICITATION STATEMENT" means that certain
Offer to Purchase and Consent Solicitation Statement dated as of April 19, 2005
of Vicar Operating, Inc. relating to the offer to purchase the entire
$170,000,000 aggregate principal amount of the Existing Subordinated Notes and
consent to amend the Existing Subordinated Note Indenture.
"ORGANIZATIONAL DOCUMENTS" means (i) with respect to any corporation, its
certificate or articles of incorporation, as amended, and its by-laws, as
amended, (ii) with respect to any limited partnership, its certificate of
limited partnership, as amended, and its partnership agreement, as amended,
(iii) with respect to any general partnership, its partnership agreement, as
amended, and (iv) with respect to any limited liability company, its articles of
organization, as amended, and its operating agreement, as amended. In the event
any term or condition of this Agreement or any other Credit Document requires
any Organizational Document to be certified by a secretary of state or similar
governmental official, the reference to any such "Organizational Document" shall
only be to a document of a type customarily certified by such governmental
official.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"PENSION PLAN" means any Employee Benefit Plan, other than a Multiemployer
Plan, that is subject to Section 412 of the Internal Revenue Code or Section 302
of ERISA.
"PERMITTED ACQUISITION" means any acquisition by Company or any of its
Subsidiaries, whether by purchase, merger or otherwise, of (y) all or
substantially all of the assets of, or 51% or more of the Capital Stock of, or a
business line or unit or a division of, any Person or (z) any additional
portion, or all, of the Capital Stock of any Permitted Partially-Owned
Subsidiary; PROVIDED,
(i) immediately prior to, and after giving effect thereto, no Default
or Event of Default shall have occurred and be continuing or
would result therefrom;
(ii) all transactions in connection therewith shall be consummated, in
all material respects, in accordance with all applicable laws and
in conformity with all applicable Governmental Authorizations;
(iii) in the case of the acquisition of Capital Stock, (i) at least
51% of the Capital Stock (except for any such Securities in the
nature of directors' qualifying shares required pursuant to
applicable law) acquired or otherwise issued by such Person or
any newly formed Subsidiary of Company in connection with such
acquisition shall be owned by Company or a Guarantor Subsidiary
thereof, (ii) in the case of acquisitions where Company owns more
than 51% but less than 100% of such Subsidiary, Company shall
designate such Subsidiary as a Permitted Partially-Owned
Subsidiary, and (iii) except in the case of a Permitted
Partially-Owned Subsidiary, Company shall have taken, or caused
to be taken, as of the date such Person
27
becomes a Subsidiary of Company, each of the actions set forth in
Sections 5.10 and/or 5.11, as applicable;
(iv) Any Person or assets so acquired shall be located exclusively in
the United States or Canada;
(v) Holdings and its Subsidiaries shall be in compliance with the
financial covenants set forth in Section 6.8 on a pro forma basis
after giving effect to such acquisition as of the last day of the
Fiscal Quarter most recently ended (as determined in accordance
with Section 6.8(f));
(vi) Company shall have delivered to Administrative Agent (A) at least
five Business Days prior to such proposed acquisition, a
Compliance Certificate evidencing compliance with Section 6.8 as
required under clause (v) above, together with all relevant
financial information with respect to such acquired assets,
including, without limitation, the aggregate consideration for
such acquisition and any other information required to
demonstrate compliance with Section 6.8; PROVIDED, HOWEVER, that
Company shall not be required to comply with the provisions of
this clause (vi) with respect to acquisitions unless the
consideration of such acquisition is greater than $7,500,000;
(vii) any Person or assets or division as acquired in accordance
herewith shall be in a business or lines of business the same as,
related, complementary or ancillary to, the business or lines of
business in which Company and/or its Subsidiaries are engaged as
of the Closing Date; and
(viii) notwithstanding any of the foregoing to the contrary,
"Permitted Acquisition" shall not include any acquisition of any
assets constituting a fee interest in real property to the extent
such acquisition of assets is included in the calculation of
Consolidated Capital Expenditures.
"PERMITTED LIENS" means each of the Liens permitted pursuant to Section
6.2.
"PERMITTED PARTIALLY-OWNED SUBSIDIARY" means (a) those Subsidiaries of
Company listed on Schedule 1.2 existing on the Closing Date, and (b) those
Subsidiaries of Company acquired or created after the Closing Date and
designated by Company as a Permitted Partially-Owned Subsidiary by written
notice to the Administrative Agent, PROVIDED, that, with respect to Permitted
Partially-Owned Subsidiaries acquired or created after the Closing Date, (i)
Company owns at least 51% of the outstanding Capital Stock of such Subsidiary,
(ii) the remaining Capital Stock of such Subsidiary is owned directly or
indirectly, by one or more licensed veterinarians who are actively involved in
the business of such Subsidiary, (iii) Company shall use its commercially
reasonable efforts to cause such Subsidiary to become a Guarantor Subsidiary,
(iv) if Company fails to obtain a Guaranty from such Subsidiary, then such
Subsidiary shall not own and lease any Material Real Estate Assets, and (v)
Company shall use commercially reasonable efforts to cause such veterinarian to
pledge his or her Capital Stock in such Permitted Partially-Owned Subsidiary in
favor of the Collateral Agent for the benefit of the Secured Parties; PROVIDED,
FURTHER, that at no time shall the total portion of Consolidated Adjusted
28
EBITDA contributed by all Subsidiaries constituting Permitted Partially-Owned
Subsidiaries exceed 15% of Consolidated Adjusted EBITDA.
"PERMITTED SELLER NOTES" means promissory notes containing subordination
provisions in substantially the form of, or no less favorable to Lenders (in the
reasonable judgment of Administrative Agent) than the subordination provisions
contained in, Exhibit K annexed hereto, representing any Indebtedness of
Holdings or Company incurred in connection with any Permitted Acquisition
payable to the seller in connection therewith, as such note may be amended,
supplemented or otherwise modified from time to time to the extent permitted
under Section 6.16; PROVIDED that, no Permitted Seller Note shall (i) be
guarantied by any Subsidiary of Holdings or secured by any property of Holdings,
Company or any of its Subsidiaries, (ii) bear cash interest at a rate greater
than 8.5% per annum; or, (iii) except in accordance with Section 6.5, provide
for any prepayment or repayment of all or any portion of the principal thereof
prior to the date of the final scheduled installment of principal of the Loans;
PROVIDED, FURTHER, that in no event shall the aggregate scheduled cash payments
of principal and interest on all outstanding Permitted Seller Notes exceed
$4,000,000 in any Fiscal Year.
"PERSON" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and Governmental Authorities.
"PLEDGE AND SECURITY AGREEMENT" means the Pledge and Security Agreement to
be executed by Company and each Guarantor, substantially in the form of Exhibit
I, as it may be amended, supplemented or otherwise modified from time to time.
"PRIME RATE" means the rate of interest per annum that Xxxxx Fargo
announces from time to time as its prime lending rate, as in effect from time to
time. The Prime Rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer. Xxxxx Fargo or any other
Lender may make commercial loans or other loans at rates of interest at, above
or below the Prime Rate.
"PRINCIPAL OFFICE" means, for each of Administrative Agent, Swing Line
Lender and Issuing Bank, such Person's "Principal Office" as set forth on
Appendix B, or such other office or office of a third party or sub-agent, as
appropriate, as such Person may from time to time designate in writing to
Company, Administrative Agent and each Lender.
"PROJECTIONS" as defined in Section 3.1(i).
"PRO RATA SHARE" means (i) with respect to all payments, computations and
other matters relating to the Term Loan of any Lender, the percentage obtained
by dividing (a) the Term Loan Exposure of that Lender by (b) the aggregate Term
Loan Exposure of all Lenders; (ii) with respect to all payments, computations
and other matters relating to the Revolving Commitment or Revolving Loans of any
Lender or participations purchased therein by any Lender or any participations
in any Swing Line Loans purchased by any Lender, the percentage obtained by
dividing (a) the Revolving Exposure of that Lender by (b) the aggregate
Revolving Exposure of all Lenders; and (iii) with respect to all payments,
computations, and other matters
29
relating to New Term Loan Commitments or New Term Loans of a particular Series,
the percentage obtained by dividing (a) the New Term Loan Exposure of that
Lender with respect to that Series by (b) the aggregate New Term Loan Exposure
of all Lenders with respect to that Series. For all other purposes with respect
to each Lender, "Pro Rata Share" means the percentage obtained by dividing (A)
an amount equal to the sum of the Term Loan Exposure, the Revolving Exposure and
the New Term Loan Exposure of that Lender, by (B) an amount equal to the sum of
the aggregate Term Loan Exposure, the aggregate Revolving Exposure and the
aggregate New Term Loan Exposure of all Lenders.
"REAL ESTATE ASSET" means, at any time of determination, any interest (fee,
leasehold or otherwise) then owned by any Credit Party in any real property.
"RECORD DOCUMENT" means, with respect to any Leasehold Property, (i) the
lease evidencing such Leasehold Property or a memorandum thereof, executed and
acknowledged by the owner of the affected real property, as lessor, or (ii) if
such Leasehold Property was acquired or subleased from the holder of a Recorded
Leasehold Interest, the applicable assignment or sublease document, executed and
acknowledged by such holder, in each case in form sufficient to give such
constructive notice upon recordation and otherwise in form reasonably
satisfactory to Collateral Agent.
"RECORDED LEASEHOLD INTEREST" means a Leasehold Property with respect to
which a Record Document has been recorded in all places necessary or desirable,
in Administrative Agent's reasonable judgment, to give constructive notice of
such Leasehold Property to third-party purchasers and encumbrancers of the
affected real property.
"REDEMPTION" as defined in the preamble hereto.
"REFUNDED SWING LINE LOANS" as defined in Section 2.3(b)(iv).
"REGISTER" as defined in Section 2.6(b).
"REGULATION D" means Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"REIMBURSEMENT DATE" as defined in Section 2.23(d).
"RELATED FUND" means, with respect to any Lender that is an investment
fund, any other investment fund that invests in commercial loans and that is
managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"RELEASE" means any release, spill, emission, leaking, pumping, pouring,
injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching
or migration of any Hazardous Material into the indoor or outdoor environment
(including the abandonment or disposal of any barrels, containers or other
closed receptacles containing any Hazardous Material), including the movement of
any Hazardous Material through the air, soil, surface water or groundwater.
"REPLACEMENT LENDER" as defined in Section 2.22.
30
"REPLACEMENT TERM LOANS" as defined in Section 10.5(e).
"REQUISITE CLASS LENDERS" means, as at any date of determination, (i) for
the Class of Lenders having Term Loan Exposure, Lenders holding more than 50% of
the aggregate Term Loan Exposure of all Lenders; (ii) for the Class of Lenders
having Revolving Exposure, Lenders having or holding more than 50% of the
aggregate Revolving Exposure of all Lenders; and (iii) for each Class of Lenders
having New Term Loan Exposure, Lenders holding more than 50% of the aggregate
New Term Loan Exposure of that Class.
"REQUISITE LENDERS" means three or more Lenders having or holding Term Loan
Exposure, New Term Loan Exposure and/or Revolving Exposure and representing more
than 50% of the sum of (i) the aggregate Term Loan Exposure of all Lenders; (ii)
the aggregate Revolving Exposure of all Lenders; and (iii) the aggregate New
Term Loan Exposure of all Lenders.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock of Holdings
or Company or any of its Subsidiaries now or hereafter outstanding, except a
dividend payable solely in shares of that class of stock to the holders of that
class; (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any shares of
any class of stock of Holdings or Company or any of its Subsidiaries now or
hereafter outstanding; (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of stock of Holdings or Company or any of its Subsidiaries
now or hereafter outstanding and (iv) any payment or prepayment of principal of,
premium, if any, or interest on, or redemption, purchase, retirement, defeasance
(including in-substance or legal defeasance), sinking fund or similar payment
with respect to, any Subordinated Indebtedness.
"REVOLVING COMMITMENT" means the commitment of a Lender to make or
otherwise fund any Revolving Loan and to acquire participations in Letters of
Credit and Swing Line Loans hereunder and "REVOLVING COMMITMENTS" means such
commitments of all Lenders in the aggregate. The amount of each Lender's
Revolving Commitment, if any, is set forth in the applicable Assignment
Agreement, subject to any adjustment or reduction pursuant to the terms and
conditions hereof. The aggregate amount of the Revolving Commitments as of the
Closing Date is $75,000,000.
"REVOLVING COMMITMENT PERIOD" means the period from the Closing Date to but
excluding the Revolving Commitment Termination Date.
"REVOLVING COMMITMENT TERMINATION DATE" means the earliest to occur of (i)
May 16, 2010, (ii) the date the Revolving Commitments are permanently reduced
to zero pursuant to Section 2.12(b) or 2.13, and (iii) the date of the
termination of the Revolving Commitments pursuant to Section 8.1.
"REVOLVING EXPOSURE" means, with respect to any Lender as of any date of
determination, (i) prior to the termination of the Revolving Commitments, that
Lender's Revolving Commitment; and (ii) after the termination of the Revolving
Commitments, the sum
31
of (a) the aggregate outstanding principal amount of the Revolving Loans of that
Lender, (b) in the case of Issuing Bank, the aggregate Letter of Credit Usage in
respect of all Letters of Credit issued by that Lender (net of any
participations by Lenders in such Letters of Credit), (c) the aggregate amount
of all participations by that Lender in any outstanding Letters of Credit or any
unreimbursed drawing under any Letter of Credit, (d) in the case of Swing Line
Lender, the aggregate outstanding principal amount of all Swing Line Loans (net
of any participations therein by other Lenders), and (e) the aggregate amount of
all participations therein by that Lender in any outstanding Swing Line Loans.
"REVOLVING LOAN" means a Loan made by a Lender to Company pursuant to
Section 2.2(a).
"REVOLVING LOAN NOTE" means a promissory note in the form of Exhibit B-3,
as it may be amended, supplemented or otherwise modified from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw Hill
Corporation.
"SECURED PARTIES" has the meaning assigned to that term in the Pledge and
Security Agreement.
"SECURITIES" means any stock, shares, partnership interests, voting trust
certificates, certificates of interest or participation in any profit-sharing
agreement or arrangement, options, warrants, bonds, debentures, notes, or other
evidences of indebtedness, secured or unsecured, convertible, subordinated or
otherwise, or in general any instruments commonly known as "securities" or any
certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time, and any successor statute.
"SERIES" as defined in Section 2.24.
"SETTLEMENT CONFIRMATION" as defined in Section 10.6(b).
"SETTLEMENT SERVICE" as defined in Section 10.6(d).
"SOLVENCY CERTIFICATE" means a Solvency Certificate of the chief financial
officer of Holdings substantially in the form of Exhibit G-2.
"SOLVENT" means, with respect to any Person, that as of the date of
determination both (i) (a) the sum of such Person's debt (including contingent
liabilities) does not exceed all of its property, at a fair valuation; (b) the
present fair saleable value of the property of such Person is not less than the
amount that will be required to pay the probable liabilities on such Person's
then existing debts as they become absolute and matured; (c) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (d) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will
32
incur, debts beyond its ability to pay such debts as they become due; and (ii)
such Person is "solvent" within the meaning given that term and similar terms
under applicable laws relating to fraudulent transfers and conveyances. For
purposes of this definition, the amount of any contingent liability at any time
shall be computed as the amount that, in light of all of the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability (irrespective of whether
such contingent liabilities meet the criteria for accrual under Statement of
Financial Accounting Standard No. 5).
"SUBJECT TRANSACTION" as defined in Section 6.8(f).
"SUBORDINATED INDEBTEDNESS" means (i) Indebtedness of Company and its
Subsidiaries under the Existing Subordinated Note Indenture and (ii)
Indebtedness outstanding under Permitted Seller Notes.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof; PROVIDED, in determining the percentage of ownership interests of any
Person controlled by another Person, no ownership interest in the nature of a
"qualifying share" of the former Person shall be deemed to be outstanding.
"SWING LINE LENDER" means Xxxxx Fargo in its capacity as Swing Line Lender
hereunder, together with its permitted successors and assigns in such capacity.
"SWING LINE LOAN" means a Loan made by Swing Line Lender to Company
pursuant to Section 2.3.
"SWING LINE NOTE" means a promissory note in the form of Exhibit B-4, as it
may be amended, supplemented or otherwise modified from time to time.
"SWING LINE SUBLIMIT" means the lesser of (i) $5,000,000, and (ii) the
aggregate unused amount of Revolving Commitments then in effect.
"SYNDICATION AGENT" as defined in the preamble hereto.
"TAKE OUT SECURITIES" means Capital Stock or other securities convertible
into or otherwise linked to Capital Stock, the net proceeds of which are used to
pay, acquire, or redeem (i) Existing Subordinated Notes pursuant to the Tender
Offer and/or Redemption, or (ii) to repay the Loans and/or the Revolving
Commitments; PROVIDED, however, that to the extent the issuance of such Capital
Stock or other securities constitute Indebtedness, such Indebtedness shall be
unsecured and subordinated in a manner satisfactory to the Agents.
"TAX" means any present or future tax, levy, impost, duty, assessment,
charge, fee, deduction or withholding of any nature now or hereafter imposed,
levied, collected, withheld or
33
assessed by any taxing authority; PROVIDED, "Tax on the overall net income" of a
Person shall be construed as a reference to a tax imposed by the jurisdiction in
which that Person is organized or in which that Person's applicable principal
office (and/or, in the case of a Lender, its lending office) is located or in
which that Person (and/or, in the case of a Lender, its lending office) is
deemed to be doing business on or measured by all or part of the net income,
profits or gains (whether worldwide, or only insofar as such income, profits or
gains are considered to arise in or to relate to a particular jurisdiction, or
otherwise) of that Person (and/or, in the case of a Lender, its applicable
lending office).
"TENDER OFFER" as defined in the preamble hereto.
"TERM LOAN" means a Closing Date Term Loan, a Delayed Draw Term Loan or a
New Term Loan.
"TERM LOAN COMMITMENT" means the Closing Date Term Loan Commitments and the
Delayed Draw Term Loan Commitments.
"TERM LOAN EXPOSURE" means, with respect to any Lender, as of any date of
determination, the outstanding principal amount of the Term Loans (other than
New Term Loans) of such Lender; PROVIDED, at any time prior to the making of the
Term Loans, the Term Loan Exposure of any Lender shall be equal to such Lender's
Term Loan Commitment.
"TERM LOAN MATURITY DATE" means the earlier of (i) May 16, 2011, and (ii)
the date that all Term Loans shall become due and payable in full hereunder,
whether by acceleration or otherwise.
"TERM LOAN NOTE" means a promissory note in the form of Exhibit B-1, as it
may be amended, supplemented or otherwise modified from time to time.
"TERMINATED LENDER" as defined in Section 2.22.
"TOTAL UTILIZATION OF REVOLVING COMMITMENTS" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
Revolving Loans (other than Revolving Loans made for the purpose of repaying any
Refunded Swing Line Loans or reimbursing Issuing Bank for any amount drawn under
any Letter of Credit, but not yet so applied), (ii) the aggregate principal
amount of all outstanding Swing Line Loans, and (iii) the Letter of Credit
Usage.
"TRANSACTION COSTS" means the fees, costs and expenses payable by Holdings,
Company or any of Company's Subsidiaries in connection with the closing of the
transactions contemplated by the Credit Documents, on the Closing Date and
Associated Fees, Costs and Expenses.
"TYPE OF LOAN" means (i) with respect to either Term Loans or Revolving
Loans, a Base Rate Loan or a Eurodollar Rate Loan, and (ii) with respect to
Swing Line Loans, a Base Rate Loan.
"UBOC" as defined in the preamble hereto.
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"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction.
"UCC QUESTIONNAIRE" means a certificate in form satisfactory to the
Collateral Agent that provides information with respect to the personal or mixed
property of each Credit Party.
"UNADJUSTED EURODOLLAR RATE COMPONENT" means that component of the interest
costs to Company in respect of a Eurodollar Rate Loan that is based upon the
rate obtained pursuant to clause (i) of the definition of Adjusted Eurodollar
Rate.
"VCA GUARANTOR" as defined in Section 7.12.
1.2 ACCOUNTING TERMS. Except as otherwise expressly provided herein, all
accounting terms not otherwise defined herein shall have the meanings
assigned to them in conformity with GAAP. Financial statements and
other information required to be delivered by Holdings to Lenders
pursuant to Sections 5.1(b) and 5.1(c) shall be prepared in accordance
with GAAP as in effect at the time of such preparation (and delivered
together with the reconciliation statements provided for in Section
5.1(e), if applicable). Subject to the foregoing, calculations in
connection with the definitions, covenants and other provisions hereof
shall utilize accounting principles and policies in conformity with
those used to prepare the Historical Financial statements.
1.3 INTERPRETATION, ETC. Any of the terms defined herein may, unless the
context otherwise requires, be used in the singular or the plural,
depending on the reference. References herein to any Section,
Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a
Schedule or an Exhibit, as the case may be, hereof unless otherwise
specifically provided. The use herein of the word "include" or
"including", when following any general statement, term or matter,
shall not be construed to limit such statement, term or matter to the
specific items or matters set forth immediately following such word or
to similar items or matters, whether or not nonlimiting language (such
as "without limitation" or "but not limited to" or words of similar
import) is used with reference thereto, but rather shall be deemed to
refer to all other items or matters that fall within the broadest
possible scope of such general statement, term or matter.
SECTION 2. LOANS
2.1 TERM LOANS.
(a) TERM LOAN COMMITMENTS.
(i) Subject to the terms and conditions hereof, each Lender
severally agrees to make, on the Closing Date, a Closing
Date Term Loan to Company in an amount equal to such
Lender's Closing Date Term Loan Commitment. Company may make
only one borrowing under the Closing Date Term Loan
Commitment which shall be on the Closing Date. Any amount
borrowed under this Section 2.1(a)(i) and subsequently
repaid or prepaid may not be reborrowed. Subject to Sections
2.12(a) and 2.13, all amounts owed hereunder with respect to
the Closing Date Term Loans shall be paid in full no later
than the Term Loan Maturity Date. Each Lender's Closing Date
Term Loan Commitment shall terminate immediately and without
further action on the Closing Date after giving effect to
the funding of such Lender's Closing Date Term Loan
Commitment on such date.
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(ii) Subject to the terms and conditions hereof, each Lender
severally agrees to make, on the DDTL Funding Date, a
Delayed Draw Term Loan to the Company in an amount equal to
such Lender's DDTL Commitment. Company may make only one
borrowing under the DDTL Commitment which shall be on the
DDTL Funding Date. Any amount borrowed under this Section
2.1(a)(ii) and subsequently repaid or prepaid may not be
reborrowed. Subject to Sections 2.13(a) and 2.14, all
amounts owed hereunder with respect to the Delayed Draw Term
Loans shall be paid in full no later than the Term Loan
Maturity Date. Each Lender's DDTL Commitment shall terminate
immediately and without further action on the DDTL Funding
Date after giving effect to the funding of such Lender's
DDTL Commitment on such date.
(b) BORROWING MECHANICS FOR CLOSING DATE TERM LOANS.
(i) Company shall deliver to Administrative Agent a fully
executed and delivered Closing Date Certificate (which shall
be deemed to be a Funding Notice with respect to the Closing
Date Term Loans for all purposes hereof) no later than three
Business Days prior to the Closing Date. Promptly upon
receipt by Administrative Agent of such certificate,
Administrative Agent shall notify each Lender of the
proposed borrowing.
(ii) Each Lender shall make its Closing Date Term Loan available
to Administrative Agent not later than 12:00 p.m. (New York
City time) on the Closing Date, by wire transfer of same day
funds in Dollars, at the Principal Office designated by
Administrative Agent. Upon satisfaction or waiver of the
conditions precedent specified herein, Administrative Agent
shall make the proceeds of the Closing Date Term Loans
available to Company on the Closing Date by causing an
amount of same day funds in Dollars equal to the proceeds of
all such Loans received by Administrative Agent from Lenders
to be credited to the account of Company at the Principal
Office designated by Administrative Agent or to such other
account as may be designated in writing to Administrative
Agent by Company.
(c) BORROWING MECHANICS FOR DELAYED DRAW TERM LOANS.
(i) Company shall deliver to Administrative Agent a fully
executed Funding Notice no later than (y) three Business
Days prior to the DDTL Funding Date in the case of Delayed
Draw Term Loans which are Eurodollar Rate Loans and (z) one
Business Day prior to the DDTL Funding Date in the case of
Delayed Draw Term Loans which are Base Rate Loans. Promptly
upon receipt by Administrative Agent of such notice,
Administrative Agent shall notify each Lender of the
proposed borrowing.
(ii) Each Lender shall make its Delayed Draw Term Loan available
to Administrative Agent not later than 12:00 p.m. (New York
City time) on the DDTL Funding Date, by wire transfer of
same day funds in Dollars, at the Principal office
designated by Administrative Agent. Upon satisfaction or
waiver of the conditions precedent specified herein,
Administrative Agent shall make the proceeds of the Delayed
Draw Term Loans available to the Company on the DDTL Funding
Date by causing an amount of same day funds in Dollars equal
to the proceeds of all such Loans received by Administrative
Agent from Lenders to be credited to the account of the
Company at the Principal Office designated by Administrative
Agent or to such other account as may be designated in
writing to Administrative Agent by the Company.
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2.2 REVOLVING LOANS.
(a) REVOLVING COMMITMENTS. During the Revolving Commitment Period,
subject to the terms and conditions hereof, each Lender severally
agrees to make Revolving Loans to Company in the aggregate amount
up to but not exceeding such Lender's Revolving Commitment;
PROVIDED, after giving effect to the making of any Revolving
Loans in no event shall the Total Utilization of Revolving
Commitments exceed the Revolving Commitments then in effect.
Amounts borrowed pursuant to this Section 2.2(a) may be repaid
and reborrowed during the Revolving Commitment Period. Each
Lender's Revolving Commitment shall expire on the Revolving
Commitment Termination Date and all Revolving Loans and all other
amounts owed hereunder with respect to the Revolving Loans and
the Revolving Commitments shall be paid in full no later than
such date.
(b) BORROWING MECHANICS FOR REVOLVING LOANS.
(i) Revolving Loans that are Base Rate Loans shall be made in an
aggregate minimum amount of $1,000,000 and integral
multiples of $500,000 in excess of that amount, and
Revolving Loans that are Eurodollar Rate Loans shall be in
an aggregate minimum amount of $2,000,000 and integral
multiples of $1,000,000 in excess of that amount.
(ii) Whenever Company desires that Lenders make Revolving Loans,
Company shall deliver to Administrative Agent a fully
executed and delivered Funding Notice no later than 1:00
p.m. (New York City time) at least three Business Days in
advance of the proposed Credit Date in the case of a
Eurodollar Rate Loan, and at least one Business Day in
advance of the proposed Credit Date in the case of a
Revolving Loan that is a Base Rate Loan. Except as otherwise
provided herein, a Funding Notice for a Revolving Loan that
is a Eurodollar Rate Loan shall be irrevocable on and after
the related Interest Rate Determination Date, and Company
shall be bound to make a borrowing in accordance therewith.
(iii) Notice of receipt of each Funding Notice in respect of
Revolving Loans, together with the amount of each Lender's
Pro Rata Share thereof, if any, together with the applicable
interest rate, shall be provided by Administrative Agent to
each applicable Lender by telefacsimile with reasonable
promptness, but (provided Administrative Agent shall have
received such notice by 1:00 p.m. (New York City time)) not
later than 3:00 p.m. (New York City time) on the same day as
Administrative Agent's receipt of such Notice from Company.
(iv) Each Lender shall make the amount of its Revolving Loan
available to Administrative Agent not later than 12:00 p.m.
(New York City time) on the applicable Credit Date by wire
transfer of same day funds in Dollars, at the Principal
Office designated by the Administrative Agent. Except as
provided herein, upon satisfaction or waiver of the
conditions precedent specified herein, Administrative Agent
shall make the proceeds of such Revolving Loans available to
Company on the applicable Credit Date by causing an amount
of same day funds in Dollars equal to the proceeds of all
such Revolving Loans received by Administrative Agent from
Lenders to be credited to the account of Company at the
Principal Office designated by the Administrative Agent or
such other account as may be designated in writing to
Administrative Agent by Company.
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2.3 SWING LINE LOANS.
(a) SWING LINE LOANS COMMITMENTS. During the Revolving Commitment
Period, subject to the terms and conditions hereof, Swing Line
Lender hereby agrees to make Swing Line Loans to Company in the
aggregate amount up to but not exceeding the Swing Line Sublimit;
PROVIDED, after giving effect to the making of any Swing Line
Loan, in no event shall the Total Utilization of Revolving
Commitments exceed the Revolving Commitments then in effect.
Amounts borrowed pursuant to this Section 2.3 may be repaid and
reborrowed during the Revolving Commitment Period. Swing Line
Lender's Revolving Commitment shall expire on the Revolving
Commitment Termination Date and all Swing Line Loans and all
other amounts owed hereunder with respect to the Swing Line Loans
and the Revolving Commitments shall be paid in full no later than
such date.
(b) BORROWING MECHANICS FOR SWING LINE LOANS.
(i) Swing Line Loans shall be made in an aggregate minimum
amount of $100,000 and integral multiples of $100,000 in
excess of that amount.
(ii) Whenever Company desires that Swing Line Lender make a Swing
Line Loan, Company shall deliver to Administrative Agent a
Funding Notice no later than 1:00 p.m. (New York City time)
on the proposed Credit Date.
(iii) Swing Line Lender shall make the amount of its Swing Line
Loan available to Administrative Agent not later than 3:00
p.m. (New York City time) on the applicable Credit Date by
wire transfer of same day funds in Dollars, at the
Administrative Agent's Principal Office. Except as provided
herein, upon satisfaction or waiver of the conditions
precedent specified herein, Administrative Agent shall make
the proceeds of such Swing Line Loans available to Company
on the applicable Credit Date by causing an amount of same
day funds in Dollars equal to the proceeds of all such Swing
Line Loans received by Administrative Agent from Swing Line
Lender to be credited to the account of Company at the
Administrative Agent's Principal Office, or to such other
account as may be designated in writing to Administrative
Agent by Company.
(iv) With respect to any Swing Line Loans which have not been
voluntarily prepaid by Company pursuant to Section 2.12,
Swing Line Lender may at any time in its sole and absolute
discretion, deliver to Administrative Agent (with a copy to
Company), no later than 11:00 a.m. (New York City time) at
least one (1) Business Day in advance of the proposed Credit
Date, a notice (which shall be deemed to be a Funding Notice
given by Company) requesting that each Lender holding a
Revolving Commitment make Revolving Loans that are Base Rate
Loans to Company on such Credit Date in an amount equal to
the amount of such Swing Line Loans (the "REFUNDED SWING
LINE LOANS") outstanding on the date such notice is given
which the Swing Line Lender requests Lenders to prepay.
Notwithstanding anything contained in this Agreement to the
contrary, (1) the proceeds of such Revolving Loans made by
the Lenders other than Swing Line Lender shall be
immediately delivered by the Administrative Agent to Swing
Line Lender (and not to Company) and applied to repay a
corresponding portion of the Refunded Swing Line Loans and
(2) on the day such Revolving Loans are made, Swing Line
Lender's Pro Rata Share of the Refunded Swing Line Loans
shall
38
be deemed to be paid with the proceeds of a Revolving Loan
made by Swing Line Lender to Company, and such portion of
the Swing Line Loans deemed to be so paid shall no longer be
outstanding as Swing Line Loans and shall no longer be due
under the Swing Line Note of Swing Line Lender but shall
instead constitute part of Swing Line Lender's outstanding
Revolving Loans to Company and shall be due under the
Revolving Loan Note issued by Company to Swing Line Lender.
Company hereby authorizes Administrative Agent and Swing
Line Lender to charge Company's accounts with Administrative
Agent and Swing Line Lender (up to the amount available in
each such account) in order to immediately pay Swing Line
Lender the amount of the Refunded Swing Line Loans to the
extent the proceeds of such Revolving Loans made by Lenders,
including the Revolving Loan deemed to be made by the Swing
Line Lender, are not sufficient to repay in full the
Refunded Swing Line Loans. If any portion of any such amount
paid (or deemed to be paid) to Swing Line Lender should be
recovered by or on behalf of Company from Swing Line Lender
in bankruptcy, by assignment for the benefit of creditors or
otherwise, the loss of the amount so recovered shall be
ratably shared among all Lenders in the manner contemplated
by Section 2.16.
(v) If for any reason Revolving Loans are not made pursuant to
Section 2.3(b)(iv) in an amount sufficient to repay any
amounts owed to Swing Line Lender in respect of any
outstanding Swing Line Loans on or before the third Business
Day after demand for payment thereof by Swing Line Lender,
each Lender holding a Revolving Commitment shall be deemed
to, and hereby agrees to, have purchased a participation in
such outstanding Swing Line Loans, and in an amount equal to
its Pro Rata Share of the applicable unpaid amount together
with accrued interest thereon. Upon one (1) Business Day's
notice from Swing Line Lender, each Lender holding a
Revolving Commitment shall deliver to Swing Line Lender an
amount equal to its respective participation in the
applicable unpaid amount in same day funds at the Principal
Office of Swing Line Lender. In order to evidence such
participation each Lender holding a Revolving Commitment
agrees to enter into a participation agreement at the
request of Swing Line Lender in form and substance
reasonably satisfactory to Swing Line Lender. In the event
any Lender holding a Revolving Commitment fails to make
available to Swing Line Lender the amount of such Lender's
participation as provided in this paragraph, Swing Line
Lender shall be entitled to recover such amount on demand
from such Lender together with interest thereon for three
Business Days at the rate customarily used by Swing Line
Lender for the correction of errors among banks and
thereafter at the Base Rate, as applicable.
(vi) Notwithstanding anything contained herein to the contrary,
(1) each Lender's obligation to make Revolving Loans for the
purpose of repaying any Refunded Swing Line Loans pursuant
to the second preceding paragraph and each Lender's
obligation to purchase a participation in any unpaid Swing
Line Loans pursuant to the immediately preceding paragraph
shall be absolute and unconditional and shall not be
affected by any circumstance, including without limitation
(A) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against Swing Line Lender,
any Credit Party or any other Person for any reason
whatsoever; (B) the occurrence or continuation of a Default
or Event of Default; (C) any adverse change in the business,
operations, properties, assets, condition (financial or
otherwise) or prospects of any Credit Party; (D) any breach
of this Agreement or any other Credit Document by any party
thereto; or (E) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing;
PROVIDED that such obligations of each Lender are subject to
the condition that Swing Line Lender believed in good faith
that all
39
conditions under Section 3.2 to the making of the applicable
Refunded Swing Line Loans or other unpaid Swing Line Loans,
were satisfied at the time such Refunded Swing Line Loans or
unpaid Swing Line Loans were made, or the satisfaction of
any such condition not satisfied had been waived by
Requisite Lenders prior to or at the time such Refunded
Swing Line Loans or other unpaid Swing Line Loans were made;
and (2) Swing Line Lender shall not be obligated to make any
Swing Line Loans (A) if it has elected not to do so after
the occurrence and during the continuation of a Default or
Event of Default or (B) at a time when a Funding Default
exists unless Swing Line Lender has entered into
arrangements satisfactory to it and Company to eliminate
Swing Line Lender's risk with respect to the Defaulting
Lender's participation in such Swing Line Loan, including by
cash collateralizing such Defaulting Lender's Pro Rata Share
of the outstanding Swing Line Loans.
2.4 PRO RATA SHARES; AVAILABILITY OF FUNDS.
(a) PRO RATA SHARES. All Loans shall be made, and all participations
purchased, by Lenders simultaneously and proportionately to their
respective Pro Rata Shares, it being understood that no Lender
shall be responsible for any default by any other Lender in such
other Lender's obligation to make a Loan requested hereunder or
purchase a participation required hereby nor shall any Term Loan
Commitment or any Revolving Commitment of any Lender be increased
or decreased as a result of a default by any other Lender in such
other Lender's obligation to make a Loan requested hereunder or
purchase a participation required hereby.
(b) AVAILABILITY OF FUNDS. Unless Administrative Agent shall have
been notified by any Lender prior to the applicable Credit Date
that such Lender does not intend to make available to
Administrative Agent the amount of such Lender's Loan requested
on such Credit Date, Administrative Agent may assume that such
Lender has made such amount available to Administrative Agent on
such Credit Date and Administrative Agent may, in its sole
discretion, but shall not be obligated to, make available to
Company a corresponding amount on such Credit Date. If such
corresponding amount is not in fact made available to
Administrative Agent by such Lender, Administrative Agent shall
be entitled to recover such corresponding amount on demand from
such Lender together with interest thereon, for each day from
such Credit Date until the date such amount is paid to
Administrative Agent, at the customary rate set by Administrative
Agent for the correction of errors among banks for three Business
Days and thereafter at the Base Rate. If such Lender does not pay
such corresponding amount forthwith upon Administrative Agent's
demand therefore, Administrative Agent shall promptly notify
Company and Company shall immediately pay such corresponding
amount to Administrative Agent together with interest thereon,
for each day from such Credit Date until the date such amount is
paid to Administrative Agent, at the rate payable hereunder for
Base Rate Loans for such Class of Loans. Nothing in this Section
2.4(b) shall be deemed to relieve any Lender from its obligation
to fulfill its Term Loan Commitments and Revolving Commitments
hereunder or to prejudice any rights that Company may have
against any Lender as a result of any default by such Lender
hereunder.
2.5 USE OF PROCEEDS. All proceeds of the Closing Date Term Loans shall be
applied by Company to repay and refinance all amounts outstanding
under the Existing Credit Agreement and to pay fees, costs and
expenses in connection therewith and, to the extent of any
40
funds remaining thereafter, for general corporate purposes. The
proceeds of the Delayed Draw Term Loan shall be applied by Company to
tender, call or redeem the Existing Subordinated Notes pursuant to the
Tender Offer. The proceeds of the Revolving Loans, Letters of Credit,
Swing Line Loans and any New Term Loans shall be applied by Company
for working capital and general corporate purposes of Company and its
Subsidiaries, including Permitted Acquisitions (including, without
limitation, the Redemption). No portion of the proceeds of any Credit
Extension shall be used in any manner that causes or might cause such
Credit Extension or the application of such proceeds to violate
Regulation T, Regulation U or Regulation X of the Board of Governors
of the Federal Reserve System or any other regulation thereof or to
violate the Exchange Act.
2.6 EVIDENCE OF DEBT; REGISTER; LENDERS' BOOKS AND RECORDS; NOTES.
(a) LENDERS' EVIDENCE OF DEBT. Each Lender shall maintain on its
internal records an account or accounts evidencing the
Indebtedness of Company to such Lender, including the amounts of
the Loans made by it and each repayment and prepayment in respect
thereof. Any such recordation shall be prima facie evidence
thereof; PROVIDED, failure to make any such recordation, or any
error in such recordation, shall not affect any Lender's
Revolving Commitments or Company's Obligations in respect of any
applicable Loans; and PROVIDED further, in the event of any
inconsistency between the Register and any Lender's records, the
recordations in the Register shall govern.
(b) REGISTER. Administrative Agent (or its agent or sub-agent
appointed by it) shall maintain at the Principal Office a
register for the recordation of the names and addresses of
Lenders and the Revolving Commitments and Loans of each Lender
from time to time (the "Register"). The Register, as in effect at
the close of business on the preceding Business Day, shall be
available for inspection by Company or any Lender at any
reasonable time and from time to time upon reasonable prior
notice. Administrative Agent shall record, or shall cause to be
recorded, in the Register the Revolving Commitments and the Loans
in accordance with the provisions of Section 10.6, and each
repayment or prepayment in respect of the principal amount of the
Loans, and any such recordation shall be conclusive and binding
on Company and each Lender, absent manifest error; provided,
failure to make any such recordation, or any error in such
recordation, shall not affect any Lender's Revolving Commitments
or Company's Obligations in respect of any Loan. Company hereby
designates Xxxxx Fargo to serve as Company's agent solely for
purposes of maintaining the Register as provided in this Section
2.6, and Company hereby agrees that, to the extent Xxxxx Fargo
serves in such capacity, Xxxxx Fargo and its officers, directors,
employees, agents, sub-agents and affiliates shall constitute
"Indemnitees."
(c) NOTES. If so requested by any Lender by written notice to Company
(with a copy to Administrative Agent) at least two Business Days
prior to the Closing Date, or at any time thereafter, Company
shall execute and deliver to such Lender (and/or, if applicable
and if so specified in such notice, to any Person who is an
assignee of such Lender pursuant to Section 10.6) on the Closing
Date (or, if such notice is delivered after the Closing Date,
promptly after Company's receipt of such notice) a Note or Notes
to evidence such Lender's Term Loan, New Term Loan, Revolving
Loan or Swing Line Loan, as the case may be.
41
2.7 INTEREST ON LOANS.
(a) Except as otherwise set forth herein, each Class of Loan shall
bear interest on the unpaid principal amount thereof from the
date made through repayment (whether by acceleration or
otherwise) thereof as follows:
(i) in the case of Term Loans and Revolving Loans:
(1) if a Base Rate Loan, at the Base Rate PLUS the
Applicable Margin; or
(2) if a Eurodollar Rate Loan, at the Adjusted Eurodollar
Rate PLUS the Applicable Margin; and
(ii) in the case of Swing Line Loans, at the Base Rate PLUS the
Applicable Margin.
(b) The basis for determining the rate of interest with respect to
any Loan (except a Swing Line Loan which can be made and
maintained as Base Rate Loans only), and the Interest Period with
respect to any Eurodollar Rate Loan, shall be selected by Company
and notified to Administrative Agent and Lenders pursuant to the
applicable Funding Notice or Conversion/Continuation Notice, as
the case may be. If on any day a Loan is outstanding with respect
to which a Funding Notice or Conversion/Continuation Notice has
not been delivered to Administrative Agent in accordance with the
terms hereof specifying the applicable basis for determining the
rate of interest, then for that day such Loan shall be a Base
Rate Loan."
(c) In connection with Eurodollar Rate Loans there shall be no more
than twelve (12) Interest Periods outstanding at any time. In the
event Company fails to specify between a Base Rate Loan or a
Eurodollar Rate Loan in the applicable Funding Notice or
Conversion/Continuation Notice, such Loan (if outstanding as a
Eurodollar Rate Loan) shall be automatically converted into a
Base Rate Loan on the last day of the then-current Interest
Period for such Loan (or if outstanding as a Base Rate Loan will
remain as, or (if not then outstanding) shall be made as, a Base
Rate Loan). In the event Company fails to specify an Interest
Period for any Eurodollar Rate Loan in the applicable Funding
Notice or Conversion/Continuation Notice, Company shall be deemed
to have selected an Interest Period of one month. As soon as
practicable after 10:00 a.m. (New York City time) on each
Interest Rate Determination Date, Administrative Agent shall
determine (which determination shall be prima facie evidence
thereof) the interest rate that shall apply to the Eurodollar
Rate Loans for which an interest rate is then being determined
for the applicable Interest Period and shall promptly give notice
thereof (in writing or by telephone confirmed in writing) to
Company and each Lender.
(d) Interest payable pursuant to Section 2.7(a) shall be computed (i)
in the case of Base Rate Loans on the basis of a 365-day or
366-day year, as the case may be, and (ii) in the case of
Eurodollar Rate Loans, on the basis of a 360-day year, in each
case for the actual number of days elapsed in the period during
which it accrues. In computing interest on any Loan, the date of
the making of such Loan or the first day of an Interest Period
applicable to such Loan or, with respect to a Term Loan, the last
Interest Payment Date with respect to such Term Loan or, with
respect to a Base Rate Loan being converted from a Eurodollar
Rate Loan,
42
the date of conversion of such Eurodollar Rate Loan to such Base
Rate Loan, as the case may be, shall be included, and the date of
payment of such Loan or the expiration date of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan
being converted to a Eurodollar Rate Loan, the date of conversion
of such Base Rate Loan to such Eurodollar Rate Loan, as the case
may be, shall be excluded; PROVIDED, if a Loan is repaid on the
same day on which it is made, one day's interest shall be paid on
that Loan.
(e) Interest on each Loan shall accrue and shall be payable in
arrears on each Interest Payment Date and at maturity, including
final maturity; PROVIDED, that interest accruing in accordance
with Section 2.7(f)(ii) or Section 2.9 shall be payable on
demand.
(f) Company agrees to pay to Issuing Bank, with respect to drawings
honored under any Letter of Credit, interest on the amount paid
by Issuing Bank in respect of each such honored drawing from the
date such drawing is honored to but excluding the date such
amount is reimbursed by or on behalf of Company at a rate equal
to (i) for the period from the date such drawing is honored to
but excluding the applicable Reimbursement Date, the rate of
interest otherwise payable hereunder with respect to Revolving
Loans that are Base Rate Loans, and (ii) from and after the
applicable Reimbursement Date (if not paid by the applicable
Reimbursement Date), a rate which is 2% per annum in excess of
the rate of interest otherwise payable hereunder with respect to
Revolving Loans that are Base Rate Loans.
(g) Interest payable pursuant to Section 2.7(f) shall be computed on
the basis of a 365/366-day year for the actual number of days
elapsed in the period during which it accrues, and shall be
payable on demand or, if no demand is made, on the date on which
the related drawing under a Letter of Credit is reimbursed in
full. Promptly upon receipt by Issuing Bank of any payment of
interest pursuant to Section 2.7(f), Issuing Bank shall
distribute to each Lender, out of the interest received by
Issuing Bank in respect of the period from the date such drawing
is honored to but excluding the date on which Issuing Bank is
reimbursed for the amount of such drawing (including any such
reimbursement out of the proceeds of any Revolving Loans), the
amount that such Lender would have been entitled to receive in
respect of the letter of credit fee that would have been payable
in respect of such Letter of Credit for such period if no drawing
had been honored under such Letter of Credit. In the event
Issuing Bank shall have been reimbursed by Lenders for all or any
portion of such honored drawing, Issuing Bank shall distribute to
each Lender which has paid all amounts payable by it under
Section 2.23(e) with respect to such honored drawing such
Lender's Pro Rata Share of any interest received by Issuing Bank
in respect of that portion of such honored drawing so reimbursed
by Lenders for the period from the date on which Issuing Bank was
so reimbursed by Lenders to but excluding the date on which such
portion of such honored drawing is reimbursed by Company.
2.8 CONVERSION/CONTINUATION.
(a) Subject to Section 2.17 and so long as no Default or Event of
Default shall have occurred and then be continuing, Company shall
have the option:
(i) to convert at any time all or any part of any Term Loan or
Revolving Loan equal to $1,000,000 and integral multiples of
$500,000 in excess of that amount from one Type of Loan to
another Type of Loan; PROVIDED, a Eurodollar Rate Loan may
only be
43
converted on the expiration of the Interest Period
applicable to such Eurodollar Rate Loan unless Company shall
pay all amounts due under Section 2.17 in connection with
any such conversion; or
(ii) upon the expiration of any Interest Period applicable to any
Eurodollar Rate Loan, to continue all or any portion of such
Loan equal to $2,000,000 and integral multiples of
$1,000,000 in excess of that amount as a Eurodollar Rate
Loan.
(b) The Company shall deliver a Conversion/Continuation Notice to
Administrative Agent no later than 1:00 p.m. (New York City time)
at least one Business Day in advance of the proposed conversion
date (in the case of a conversion to a Base Rate Loan) and at
least three Business Days in advance of the proposed
conversion/continuation date (in the case of a conversion to, or
a continuation of, a Eurodollar Rate Loan). Except as otherwise
provided herein, a Conversion/Continuation Notice for conversion
to, or continuation of, any Eurodollar Rate Loans (or telephonic
notice in lieu thereof) shall be irrevocable on and after the
related Interest Rate Determination Date, and Company shall be
bound to effect a conversion or continuation in accordance
therewith.
2.9 DEFAULT INTEREST. Upon the occurrence and during the continuance of an
Event of Default described in Section 8.1(a), the principal amount of
all Loans, and any interest payments on the Loans or any fees or other
amounts owed hereunder not paid when due, in each case whether at
stated maturity, by notice of prepayment, by acceleration or
otherwise, shall, to the extent permitted by applicable law,
thereafter bear interest (including post-petition interest in any
proceeding under the Bankruptcy Code or other applicable bankruptcy
laws) payable on demand at a rate that is 2% per annum in excess of
the interest rate otherwise payable hereunder with respect to the
applicable Loans (or, in the case of any such fees and other amounts,
at a rate which is 2% per annum in excess of the interest rate
otherwise payable hereunder for Base Rate Loans); PROVIDED, in the
case of Eurodollar Rate Loans, upon the expiration of the Interest
Period in effect at the time any such increase in interest rate is
effective such Eurodollar Rate Loans shall thereupon become Base Rate
Loans and shall thereafter bear interest payable upon demand at a rate
which is 2% per annum in excess of the interest rate otherwise payable
hereunder for Base Rate Loans. Payment or acceptance of the increased
rates of interest provided for in this Section 2.9 is not a permitted
alternative to timely payment and shall not constitute a waiver of any
Event of Default or otherwise prejudice or limit any rights or
remedies of Administrative Agent or any Lender.
2.10 FEES.
(a) Company agrees to pay to Lenders having Revolving Exposure:
(i) commitment fees equal to (1) the average of the daily
difference between (a) the Revolving Commitments, and (b)
the sum of (x) the aggregate principal amount of outstanding
Revolving Loans (but not any outstanding Swing Line Loans)
plus (y) the Letter of Credit Usage, times (2) the
Applicable Revolving Commitment Fee Percentage; and
(ii) letter of credit fees equal to (1) the Applicable Margin for
Revolving Loans that are Eurodollar Rate Loans, times (2)
the average aggregate daily maximum
44
amount available to be drawn under all such Letters of
Credit (regardless of whether any conditions for drawing
could then be met and determined as of the close of business
on any date of determination).
(b) [Reserved].
(c) Company agrees to pay directly to Issuing Bank, for its own
account, the following fees:
(i) a fronting fee equal to 0.250%, per annum, times the average
aggregate daily maximum amount available to be drawn under
all Letters of Credit (determined as of the close of
business on any date of determination); and
(ii) such documentary and processing charges for any issuance,
amendment, transfer or payment of a Letter of Credit as are
in accordance with Issuing Bank's standard schedule for such
charges and as in effect at the time of such issuance,
amendment, transfer or payment, as the case may be.
(d) All fees referred to in Section 2.10(a) shall be calculated on
the basis of a 360-day year, and the actual number of days
elapsed and shall be payable quarterly in arrears on April 1,
July 1, October 1 and January 1 of each year during the Revolving
Commitment Period, commencing on the first such date to occur
after the Closing Date, and on the Revolving Commitment
Termination Date.
(e) In addition to any of the foregoing fees, Company agrees to pay
to Agents such other fees in the amounts and at the times
separately agreed upon.
2.11 SCHEDULED PAYMENTS. The principal amount of the Term Loans shall be
repaid in consecutive quarterly installments (each, an "INSTALLMENT")
in the aggregate amounts set forth below on the last day of each
Fiscal Quarter (each, an "INSTALLMENT DATE") commencing June 30, 2005:
FISCAL QUARTER ENDING INSTALLMENTS
------------------------------ ------------------------
June 30, 2005 $ 1,187,500
September 30, 2005 $ 1,187,500
December 31, 2005 $ 1,187,500
March 31, 2006 $ 1,187,500
June 30, 2006 $ 1,187,500
September 30, 2006 $ 1,187,500
December 31, 2006 $ 1,187,500
March 31, 2007 $ 1,187,500
June 30, 2007 $ 1,187,500
September 30, 2007 $ 1,187,500
December 31, 2007 $ 1,187,500
March 31, 2008 $ 1,187,500
June 30, 2008 $ 1,187,500
September 30, 2008 $ 1,187,500
45
FISCAL QUARTER ENDING INSTALLMENTS
------------------------------ ------------------------
December 31, 2008 $ 1,187,500
March 31, 2009 $ 1,187,500
June 30, 2009 $ 1,187,500
September 30, 2009 $ 1,187,500
December 31, 2009 $ 1,187,500
March 31, 2010 $ 1,187,500
June 30, 2010 $ 1,187,500
September 30, 2010 $ 1,187,500
December 31, 2010 $ 1,187,500
March 31, 2011 $ 1,187,500
------------------------------ ------------------------
Term Loan Maturity Date $446,500,000
; PROVIDED, in the event any New Term Loans are made, the amount of any
Installment shall be applied on the relevant Installment Date, pro-rata in
accordance with the outstanding principal balances, to the Term Loans and the
New Term Loans then outstanding on such Installment Date.
Notwithstanding the foregoing, (y) such Installments shall be reduced in
connection with any voluntary or mandatory prepayments of the Term Loans in
accordance with Sections 2.12, 2.13 and 2.14 as applicable; and (z) the Term
Loans, together with all other amounts owed hereunder with respect thereto,
shall, in any event, be paid in full no later than the Term Loan Maturity Date.
2.12 VOLUNTARY PREPAYMENTS/COMMITMENT REDUCTIONS.
(a) VOLUNTARY PREPAYMENTS.
(i) Any time and from time to time:
(1) with respect to Base Rate Loans, Company may prepay,
any such Loans on any Business Day in whole or in part,
in an aggregate minimum amount of $1,000,000 and
integral multiples of $500,000 in excess of that
amount;
(2) with respect to Eurodollar Rate Loans, Company may
prepay, any such Loans on any Business Day in whole or
in part in an aggregate minimum amount of $2,000,000
and integral multiples of $1,000,000 in excess of that
amount; and
(3) with respect to Swing Line Loans, Company may prepay,
any such Loans on any Business Day in whole or in part
in an aggregate minimum amount of $100,000, and in
integral multiples of $100,000 in excess of that
amount.
(ii) All such prepayments shall be made:
46
(1) upon not less than one Business Day's prior written or
telephonic notice in the case of Base Rate Loans;
(2) upon not less than three Business Day's prior written
or telephonic notice in the case of Eurodollar Rate
Loans; and
(3) upon written or telephonic notice on the date of
prepayment, in the case of Swing Line Loans;
in each case given to Administrative Agent or Swing Line Lender, as the case may
be, by 1:00 p.m. (New York City time) on the date required and, if given by
telephone, promptly confirmed in writing to Administrative Agent (and
Administrative Agent will promptly transmit such telephonic or original notice
for Term Loans or Revolving Loans, as the case may be, by telefacsimile or
telephone to each Lender) or Swing Line Lender, as the case may be. Upon the
giving of any such notice, the principal amount of the Loans specified in such
notice shall become due and payable on the prepayment date specified therein.
(b) VOLUNTARY COMMITMENT REDUCTIONS.
(i) Company may, upon not less than three Business Days' prior
written or telephonic notice confirmed in writing to
Administrative Agent (which original written or telephonic
notice Administrative Agent will promptly transmit by
telefacsimile or telephone to each applicable Lender), at
any time and from time to time terminate in whole or
permanently reduce in part, without premium or penalty, the
Revolving Commitments in an amount up to the amount by which
the Revolving Commitments exceed the Total Utilization of
Revolving Commitments at the time of such proposed
termination or reduction; PROVIDED, any such partial
reduction of the Revolving Commitments shall be in an
aggregate minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess of that amount.
(ii) Company's notice to Administrative Agent shall designate the
date (which shall be a Business Day) of such termination or
reduction and the amount of any partial reduction, and such
termination or reduction of the Revolving Commitments shall
be effective on the date specified in Company's notice and
shall reduce the Revolving Commitment of each Lender
proportionately to its Pro Rata Share thereof.
2.13 MANDATORY PREPAYMENTS/COMMITMENT REDUCTIONS.
(a) ASSET SALES. No later than the first Business Day following the
date of receipt by Holdings or any of its Subsidiaries of any Net
Asset Sale Proceeds, Company shall prepay the Loans and/or the
Revolving Commitments shall be permanently reduced as set forth
in Section 2.14(b) in an aggregate amount equal to such Net Asset
Sale Proceeds; PROVIDED, (i) so long as no Default or Event of
Default shall have occurred and be continuing, and (ii) to the
extent that aggregate Net Asset Sale Proceeds from the Closing
Date through the applicable date of determination do not exceed
$10,000,000, Company shall have the option, directly or through
one or more of its Subsidiaries, to invest Net Asset Sale
Proceeds within two hundred seventy (270) days of receipt thereof
in long term productive assets of the general type used in the
business of Company and its Subsidiaries; PROVIDED FURTHER,
pending any such investment all such Net Asset Sale Proceeds
shall be applied to prepay Revolving Loans to the extent
47
outstanding (without a reduction in Revolving Commitments).
Notwithstanding any of the foregoing to the contrary, upon
receipt by Company of Net Asset Sale Proceeds pursuant to the
sale of assets permitted under Section 6.9(d), Company may invest
the first $1,000,000 of such proceeds directly or through one or
more of its Subsidiaries in long-term productive assets of the
general type used in the business of Company and its
Subsidiaries, and the remainder of such Net Asset Sale Proceeds
shall be applied in accordance with the provisions set forth
above.
(b) INSURANCE/CONDEMNATION PROCEEDS. No later than the first Business
Day following the date of receipt by Holdings or any of its
Subsidiaries, or Administrative Agent as loss payee, of any Net
Insurance/Condemnation Proceeds, Company shall prepay the Loans
and/or the Revolving Commitments shall be permanently reduced as
set forth in Section 2.14(b) in an aggregate amount equal to such
Net Insurance/Condemnation Proceeds; PROVIDED, (i) so long as no
Default or Event of Default shall have occurred and be
continuing, and (ii) to the extent that aggregate Net
Insurance/Condemnation Proceeds from the Closing Date through the
applicable date of determination do not exceed $10,000,000,
Company shall have the option, directly or through one or more of
its Subsidiaries to invest such Net Insurance/Condemnation
Proceeds within two hundred seventy (270) days of receipt thereof
in long term productive assets of the general type used in the
business of Holdings and its Subsidiaries, which investment may
include the repair, restoration or replacement of the applicable
assets thereof; PROVIDED FURTHER, pending any such investment all
such Net Insurance/Condemnation Proceeds, as the case may be,
shall be applied to prepay Revolving Loans to the extent
outstanding (without a reduction in Revolving Commitments).
(c) ISSUANCE OF EQUITY SECURITIES. On the date of receipt by Holdings
or Company of any Cash proceeds from a capital contribution to,
or the issuance of any Capital Stock of, or the sale of any
Capital Stock of, Holdings or any of its Subsidiaries (other than
(i) pursuant to any employee stock or stock option compensation
plan; (ii) equity issued in consideration of a Permitted
Acquisition; or (iii) issuances pursuant to any Take Out
Securities), Company shall prepay the Loans and/or the Revolving
Commitments shall be permanently reduced as set forth in Section
2.14(b) in an aggregate amount equal to 75% of such proceeds, net
of underwriting discounts and commissions and other reasonable
costs and expenses associated therewith, including reasonable
legal fees and expenses; PROVIDED, HOWEVER, that notwithstanding
any of the foregoing to the contrary set forth in this Section
2.13(c), to the extent Holdings, Company and/or any of their
Subsidiaries receives any Cash proceeds from the issuance of
Capital Stock or the sale of Capital Stock of any of Holdings'
Subsidiaries in connection with the creation of a Permitted
Partially-Owned Subsidiary, Holdings or Company shall on an
annual basis commencing December 31, 2005, apply the aggregate
amount of such Cash proceeds received, to the extent such
aggregate amount exceeds $250,000 per annum to prepay the Loans
and/or reduce the Revolving Commitments in accordance with
Section 2.14(b).
(d) ISSUANCE OF DEBT. On the date of receipt by Holdings or any of
its Subsidiaries of any Cash proceeds from incurrence of any
Indebtedness of Holdings or any of its Subsidiaries (other than
with respect to any Indebtedness permitted to be incurred
pursuant to Section 6.1), Company shall prepay the Loans and/or
the Revolving Commitments shall be permanently reduced as set
forth in Section 2.14(b) in an aggregate amount equal to 100% of
such proceeds, net of underwriting discounts and commissions and
other reasonable costs and expenses associated therewith,
including reasonable legal fees and expenses.
48
(e) CONSOLIDATED EXCESS CASH FLOW. In the event that there shall be
Consolidated Excess Cash Flow for any Fiscal Year (commencing
with the Fiscal Year ending December 31, 2005), Company shall, no
later than one hundred (100) days after the end of such Fiscal
Year, prepay the Loans and/or the Revolving Commitments shall be
permanently reduced as set forth in Section 2.14(b) in an
aggregate amount equal to 75% of such Consolidated Excess Cash
Flow.
(f) REVOLVING LOANS AND SWING LOANS. Company shall from time to time
prepay FIRST, the Swing Line Loans, and SECOND, the Revolving
Loans to the extent necessary so that the Total Utilization of
Revolving Commitments shall not at any time exceed the Revolving
Commitments then in effect.
(g) PREPAYMENT CERTIFICATE. Concurrently with any prepayment of the
Loans and/or reduction of the Revolving Commitments pursuant to
Sections 2.13(a) through 2.13(e), Company shall deliver to
Administrative Agent a certificate of an Authorized Officer
demonstrating the calculation of the amount of the applicable net
proceeds or Consolidated Excess Cash Flow, as the case may be. In
the event that Company shall subsequently determine that the
actual amount received exceeded the amount set forth in such
certificate, Company shall promptly make an additional prepayment
of the Loans and/or the Revolving Commitments shall be
permanently reduced in an amount equal to such excess, and
Company shall concurrently therewith deliver to Administrative
Agent a certificate of an Authorized Officer demonstrating the
derivation of such excess.
2.14 APPLICATION OF PREPAYMENTS/REDUCTIONS.
(a) APPLICATION OF VOLUNTARY PREPAYMENTS BY TYPE OF LOANS. Any
prepayment of any Loan pursuant to Section 2.12(a) shall be
applied as specified by Company in the applicable notice of
prepayment; PROVIDED, in the event Company fails to specify the
Loans to which any such prepayment shall be applied, such
prepayment shall be applied as follows:
FIRST, to repay outstanding Swing Line Loans to the full
extent thereof;
SECOND, to repay outstanding Revolving Loans to the full
extent thereof; and
THIRD, to repay the Term Loans on a pro rata basis (in
accordance with the outstanding principal amounts) and shall
be further applied on a pro rata basis to each scheduled
Installment of principal of the Term Loans.
Any prepayment of Term Loan pursuant to Section 2.12(a) shall be further applied
on a pro rata basis to reduce the scheduled remaining installments of principal
on Term Loans.
(b) APPLICATION OF MANDATORY PREPAYMENTS BY TYPE OF LOANS. Any amount
required to be paid pursuant to Sections 2.13(a) through 2.13(e)
shall be applied as follows:
49
FIRST, to prepay Term Loans on a pro rata basis (in
accordance with the outstanding principal amounts) and shall
be further applied on a pro rata basis to each scheduled
Installment of principal of the Term Loans;
SECOND, to prepay the Swing Line Loans to the full extent
thereof and to permanently reduce the Revolving Commitments
by the amount of such prepayment;
THIRD, to prepay the Revolving Loans to the full extent
thereof and to further permanently reduce the Revolving
Commitments by the amount of such prepayment;
FOURTH, to prepay outstanding reimbursement obligations with
respect to Letters of Credit and to further permanently
reduce the Revolving Commitments by the amount of such
prepayment;
FIFTH, to cash collateralize Letters of Credit and to
further permanently reduce the Revolving Commitments by the
amount of such cash collateralization; and
SIXTH, to further permanently reduce the Revolving
Commitments to the full extent thereof.
2.15 GENERAL PROVISIONS REGARDING PAYMENTS.
(a) All payments by Company of principal, interest, fees and other
Obligations shall be made in Dollars in same day funds, without
defense, setoff or counterclaim, free of any restriction or
condition, and delivered to Administrative Agent not later than
1:00 p.m. (New York City time) on the date due at the Principal
Office designated by the Administrative Agent for the account of
Lenders; for purposes of computing interest and fees, funds
received by Administrative Agent after that time on such due date
shall be deemed to have been paid by Company on the next
succeeding Business Day.
(b) All payments in respect of the principal amount of any Loan
(other than voluntary prepayments of Revolving Loans) shall
include payment of accrued interest on the principal amount being
repaid or prepaid, and all such payments (and, in any event, any
payments in respect of any Loan on a date when interest is due
and payable with respect to such Loan) shall be applied to the
payment of interest before application to principal.
(c) Administrative Agent (or its agent or sub-agent appointed by it)
shall promptly distribute to each Lender at such address as such
Lender shall indicate in writing, such Lender's applicable Pro
Rata Share of all payments and prepayments of principal and
interest due hereunder, together with all other amounts due
thereto, including, without limitation, all fees payable with
respect thereto, to the extent received by Administrative Agent.
(d) Notwithstanding the foregoing provisions hereof, if any
Conversion/Continuation Notice is withdrawn as to any Affected
50
Lender or if any Affected Lender makes Base Rate Loans in lieu of
its Pro Rata Share of any Eurodollar Rate Loans, Administrative
Agent shall give effect thereto in apportioning payments received
thereafter.
(e) Subject to the provisos set forth in the definition of "Interest
Period" as they may apply to Eurodollar Rate Loans, whenever any
payment to be made hereunder with respect to any Loan shall be
stated to be due on a day that is not a Business Day, such
payment shall be made on the next succeeding Business Day and,
with respect to Revolving Loans only, such extension of time
shall be included in the computation of the payment of interest
hereunder or of the Revolving Commitment fees hereunder.
(f) Company hereby authorizes Administrative Agent to charge
Company's accounts with Administrative Agent in order to cause
timely payment to be made to Administrative Agent of all
principal, interest, fees and expenses due hereunder (subject to
sufficient funds being available in its accounts for that
purpose).
(g) Administrative Agent shall deem any payment by or on behalf of
Company hereunder that is not made in same day funds prior to
1:00 p.m. (New York City time) to be a non-conforming payment.
Any such payment shall not be deemed to have been received by
Administrative Agent until the later of (i) the time such funds
become available funds, and (ii) the applicable next Business
Day. Administrative Agent shall give prompt telephonic notice to
Company and each applicable Lender (confirmed in writing) if any
payment is non-conforming. Any non-conforming payment may
constitute or become a Default or Event of Default in accordance
with the terms of Section 8.1(a). Interest shall continue to
accrue on any principal as to which a non-conforming payment is
made until such funds become available funds (but in no event
less than the period from the date of such payment to the next
succeeding applicable Business Day) at the rate determined
pursuant to Section 2.9 from the date such amount was due and
payable until the date such amount is paid in full.
(h) If an Event of Default shall have occurred and be continuing and
not otherwise been waived, and the maturity of the Obligations
shall have been accelerated pursuant to Section 8.1,
notwithstanding Section 2.14, all payments or proceeds received
by Agents hereunder in respect of any of the Obligations, shall
be applied in accordance with the application arrangements
described in Section 6.5 of the Pledge and Security Agreement.
2.16 RATABLE SHARING. Lenders hereby agree among themselves that, except as
otherwise provided in the Collateral Documents with respect to amounts
realized from the exercise of rights with respect to Liens on the
Collateral, if any of them shall, whether by voluntary payment (other
than a voluntary prepayment of Loans made and applied in accordance
with the terms hereof), through the exercise of any right of set-off
or banker's lien, by counterclaim or cross action or by the
enforcement of any right under the Credit Documents or otherwise, or
as adequate protection of a deposit treated as cash collateral under
the Bankruptcy Code, receive payment or reduction of a proportion of
the aggregate amount of principal, interest, fees and other amounts
then due and owing to such Lender hereunder or under the other Credit
Documents (collectively, the "AGGREGATE AMOUNTS DUE" to such Lender)
which is greater than the proportion received by any other Lender in
respect of the Aggregate Amounts Due to such other Lender, then the
Lender receiving such proportionately greater payment shall (a) notify
Administrative Agent and each other Lender of the receipt of such
payment and (b)
51
apply a portion of such payment to purchase participations (which it
shall be deemed to have purchased from each seller of a participation
simultaneously upon the receipt by such seller of its portion of such
payment) in the Aggregate Amounts Due to the other Lenders so that all
such recoveries of Aggregate Amounts Due shall be shared by all
Lenders in proportion to the Aggregate Amounts Due to them; PROVIDED,
if all or part of such proportionately greater payment received by
such purchasing Lender is thereafter recovered from such Lender upon
the bankruptcy or reorganization of Company or otherwise, those
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such purchasing Lender ratably to
the extent of such recovery, but without interest. Company expressly
consents to the foregoing arrangement and agrees that any holder of a
participation so purchased may exercise any and all rights of banker's
lien, set-off or counterclaim with respect to any and all monies owing
by Company to that holder with respect thereto as fully as if that
holder were owed the amount of the participation held by that holder.
2.17 MAKING OR MAINTAINING EURODOLLAR RATE LOANS.
(a) INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event
that Administrative Agent shall have determined (which
determination shall be prima facie evidence thereof), on any
Interest Rate Determination Date with respect to any Eurodollar
Rate Loans, that by reason of circumstances affecting the London
interbank market adequate and fair means do not exist for
ascertaining the interest rate applicable to such Loans on the
basis provided for in the definition of Adjusted Eurodollar Rate,
Administrative Agent shall on such date give notice (by
telefacsimile or by telephone confirmed in writing) to Company
and each Lender of such determination, whereupon (i) no Loans may
be made as, or converted to, Eurodollar Rate Loans until such
time as Administrative Agent notifies Company and Lenders that
the circumstances giving rise to such notice no longer exist, and
(ii) any Funding Notice or Conversion/Continuation Notice given
by Company with respect to the Loans in respect of which such
determination was made shall be deemed to be rescinded by
Company.
(b) ILLEGALITY OR IMPRACTICABILITY OF EURODOLLAR RATE LOANS. In the
event that on any date any Lender shall have determined (which
determination shall be prima facie evidence thereof, but shall be
made only after consultation with Company and Administrative
Agent) that the making, maintaining or continuation of its
Eurodollar Rate Loans (i) has become unlawful as a result of
compliance by such Lender in good faith with any law, treaty,
governmental rule, regulation, guideline or order (or would
conflict with any such treaty, governmental rule, regulation,
guideline or order not having the force of law even though the
failure to comply therewith would not be unlawful), or (ii) has
become impracticable, as a result of contingencies occurring
after the date hereof which materially and adversely affect the
London interbank market or the position of such Lender in that
market, then, and in any such event, such Lender shall be an
"AFFECTED LENDER" and it shall on that day give notice (by
telefacsimile or by telephone confirmed in writing) to Company
and Administrative Agent of such determination (which notice
Administrative Agent shall promptly transmit to each other
Lender). Thereafter (1) the obligation of the Affected Lender to
make Loans as, or to convert Loans to, Eurodollar Rate Loans
shall be suspended until such notice shall be withdrawn by the
Affected Lender, (2) to the extent such determination by the
Affected Lender relates to a Eurodollar Rate Loan then being
requested by Company pursuant to a Funding Notice or a
Conversion/Continuation Notice, the Affected Lender shall make
such Loan as (or continue such
52
Loan as or convert such Loan to, as the case may be) a Base Rate
Loan, (3) the Affected Lender's obligation to maintain its
outstanding Eurodollar Rate Loans (the "AFFECTED LOANS") shall be
terminated at the earlier to occur of the expiration of the
Interest Period then in effect with respect to the Affected Loans
or when required by law, and (4) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such
termination. Notwithstanding the foregoing, to the extent a
determination by an Affected Lender as described above relates to
a Eurodollar Rate Loan then being requested by Company pursuant
to a Funding Notice or a Conversion/Continuation Notice, Company
shall have the option, subject to the provisions of Section
2.17(c), to rescind such Funding Notice or
Conversion/Continuation Notice as to all Lenders by giving notice
(by telefacsimile or by telephone confirmed in writing) to
Administrative Agent of such rescission on the date on which the
Affected Lender gives notice of its determination as described
above (which notice of rescission Administrative Agent shall
promptly transmit to each other Lender). Except as provided in
the immediately preceding sentence, nothing in this Section
2.17(b) shall affect the obligation of any Lender other than an
Affected Lender to make or maintain Loans as, or to convert Loans
to, Eurodollar Rate Loans in accordance with the terms hereof.
(c) COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST
PERIODS. Company shall compensate each Lender, upon written
request by such Lender (which request shall set forth the basis
for requesting such amounts), for all reasonable losses, expenses
and liabilities (including any interest paid by such Lender to
lenders of funds borrowed by it to make or carry its Eurodollar
Rate Loans and any loss, expense or liability sustained by such
Lender in connection with the liquidation or re-employment of
such funds but excluding loss of anticipated profits) which such
Lender may sustain: (i) if for any reason (other than a default
by such Lender) a borrowing of any Eurodollar Rate Loan does not
occur on a date specified therefore in a Funding Notice or a
telephonic request for borrowing, or a conversion to or
continuation of any Eurodollar Rate Loan does not occur on a date
specified therefore in a Conversion/Continuation Notice or a
telephonic request for conversion or continuation; (ii) if any
prepayment or other principal payment or any conversion of any of
its Eurodollar Rate Loans occurs on a date prior to the last day
of an Interest Period applicable to that Loan; or (iii) if any
prepayment of any of its Eurodollar Rate Loans is not made on any
date specified in a notice of prepayment given by Company.
(d) BOOKING OF EURODOLLAR RATE LOANS. Any Lender may make, carry or
transfer Eurodollar Rate Loans at, to, or for the account of any
of its branch offices or the office of an Affiliate of such
Lender.
(e) ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR RATE LOANS.
Calculation of all amounts payable to a Lender under this Section
2.17 and under Section 2.18 shall be made as though such Lender
had actually funded each of its relevant Eurodollar Rate Loans
through the purchase of a Eurodollar deposit bearing interest at
the rate obtained pursuant to clause (i) of the definition of
Adjusted Eurodollar Rate in an amount equal to the amount of such
Eurodollar Rate Loan and having a maturity comparable to the
relevant Interest Period and through the transfer of such
Eurodollar deposit from an offshore office of such Lender to a
domestic office of such Lender in the United States of America;
PROVIDED, HOWEVER, each Lender may fund each of its Eurodollar
Rate Loans in any manner it sees fit and the foregoing
assumptions shall be
53
utilized only for the purposes of calculating amounts payable
under this Section 2.17 and under Section 2.18.
2.18 INCREASED COSTS; CAPITAL ADEQUACY.
(a) COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the
provisions of Section 2.19 (which shall be controlling with
respect to the matters covered thereby), in the event that any
Lender (which term shall include Issuing Bank for purposes of
this Section 2.18(a)) shall determine (which determination shall
be prima facie evidence thereof) that any law, treaty or
governmental rule, regulation or order, or any change therein or
in the interpretation, administration or application thereof
(including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of
a court or governmental authority, in each case that becomes
effective after the date hereof, or compliance by such Lender
with any guideline, request or directive issued or made after the
date hereof by any central bank or other governmental or
quasi-governmental authority (whether or not having the force of
law): (i) subjects such Lender (or its applicable lending office)
to any additional Tax (other than any franchise Tax or a Tax on
the overall net income of such Lender) with respect to this
Agreement or any of the other Credit Documents or any of its
obligations hereunder or thereunder or any payments to such
Lender (or its applicable lending office) of principal, interest,
fees or any other amount payable hereunder; (ii) imposes,
modifies or holds applicable any reserve (including any marginal,
emergency, supplemental, special or other reserve), special
deposit, compulsory loan, FDIC insurance or similar requirement
against assets held by, or deposits or other liabilities in or
for the account of, or advances or loans by, or other credit
extended by, or any other acquisition of funds by, any office of
such Lender (other than any such reserve or other requirements
with respect to Eurodollar Rate Loans that are reflected in the
definition of Adjusted Eurodollar Rate); or (iii) imposes any
other condition (other than with respect to a Tax matter) on or
affecting such Lender (or its applicable lending office) or its
obligations hereunder or the London interbank market; and the
result of any of the foregoing is to increase the cost to such
Lender of agreeing to make, making or maintaining Loans hereunder
or to reduce any amount received or receivable by such Lender (or
its applicable lending office) with respect thereto; then, in any
such case, Company shall promptly pay to such Lender, upon
receipt of the statement referred to in the next sentence, such
additional amount or amounts (in the form of an increased rate
of, or a different method of calculating, interest or otherwise
as such Lender in its sole discretion shall determine) as may be
necessary to compensate such Lender for any such increased cost
or reduction in amounts received or receivable hereunder. Such
Lender shall deliver to Company (with a copy to Administrative
Agent) a written statement, setting forth in reasonable detail
the basis for calculating the additional amounts owed to such
Lender under this Section 2.18(a), which statement shall be prima
facie evidence thereof.
(b) CAPITAL ADEQUACY ADJUSTMENT. In the event that any Lender (which
term shall include Issuing Bank for purposes of this Section
2.18(b)) shall have determined that the adoption, effectiveness,
phase-in or applicability after the Closing Date of any law, rule
or regulation (or any provision thereof) regarding capital
adequacy, or any change therein or in the interpretation or
administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its
applicable lending office) with any guideline, request or
directive regarding capital adequacy (whether or not having the
force of law) of any such Governmental Authority,
54
central bank or comparable agency, has or would have the effect
of reducing the rate of return on the capital of such Lender or
any corporation controlling such Lender as a consequence of, or
with reference to, such Lender's Loans or Revolving Commitments,
or participations therein or other obligations hereunder with
respect to the Loans to a level below that which such Lender or
such controlling corporation could have achieved but for such
adoption, effectiveness, phase-in, applicability, change or
compliance (taking into consideration the policies of such Lender
or such controlling corporation with regard to capital adequacy),
then from time to time, within five Business Days after receipt
by Company from such Lender of the statement referred to in the
next sentence, Company shall pay to such Lender such additional
amount or amounts as will compensate such Lender or such
controlling corporation on an after-tax basis for such reduction.
Such Lender shall deliver to Company (with a copy to
Administrative Agent) a written statement, setting forth in
reasonable detail the basis for calculating the additional
amounts owed to Lender under this Section 2.18(b), which
statement shall be prima facie evidence thereof.
2.19 TAXES; WITHHOLDING, ETC.
(a) PAYMENTS TO BE FREE AND CLEAR. All sums payable by any Credit
Party hereunder and under the other Credit Documents shall
(except to the extent required by law) be paid free and clear of,
and without any deduction or withholding on account of, any Tax
(other than a franchise Tax or a Tax on the overall net income of
any Lender) imposed, levied, collected, withheld or assessed by
or within the United States of America or any political
subdivision in or of the United States of America or any other
jurisdiction from or to which a payment is made by or on behalf
of any Credit Party.
(b) WITHHOLDING OF TAXES. If any Credit Party or any other Person is
required by law to make any deduction or withholding on account
of any such Tax from any sum paid or payable by any Credit Party
to Administrative Agent or any Lender (which term shall include
Issuing Bank for purposes of this Section 2.19(b)) under any of
the Credit Documents: (i) Company shall notify Administrative
Agent of any such requirement or any change in any such
requirement as soon as Company becomes aware of it; (ii) Company
shall pay any such Tax before the date on which penalties attach
thereto, such payment to be made (if the liability to pay is
imposed on any Credit Party) for its own account or (if that
liability is imposed on Administrative Agent or such Lender, as
the case may be) on behalf of and in the name of Administrative
Agent or such Lender; (iii) the sum payable by such Credit Party
in respect of which the relevant deduction, withholding or
payment is required shall be increased to the extent necessary to
ensure that, after the making of that deduction, withholding or
payment, Administrative Agent or such Lender, as the case may be,
receives on the due date a net sum equal to what it would have
received had no such deduction, withholding or payment been
required or made; and (iv) within thirty (30) days after paying
any sum from which it is required by law to make any deduction or
withholding, and within thirty (30) days after the due date of
payment of any Tax which it is required by clause (ii) above to
pay, Company shall deliver to Administrative Agent evidence
satisfactory to the other affected parties of such deduction,
withholding or payment and of the remittance thereof to the
relevant taxing or other authority; PROVIDED, no such additional
amount shall be required to be paid to any Lender or
Administrative Agent under clause (iii) above except to the
extent that any change after the date hereof (in the case of each
Lender listed on the signature pages hereof on the Closing Date)
or after the effective date of the Assignment Agreement pursuant
to which such Lender became a Lender (in
55
the case of each other Lender) in any requirement mentioned
therein for a deduction, withholding or payment shall result in
an increase in the rate of such deduction, withholding or payment
from that in effect at the date hereof or at the date of such
Assignment Agreement, as the case may be, in respect of payments
to such Lender or Administrative Agent.
(c) EVIDENCE OF EXEMPTION FROM U.S. WITHHOLDING TAX(i).
(i) Each Lender that is not a United States Person (as such term
is defined in Section 7701(a)(30) of the Internal Revenue
Code) for U.S. federal income tax purposes (a "NON-US
LENDER") shall deliver to Administrative Agent for
transmission to Company, on or prior to the Closing Date (in
the case of each Lender listed on the signature pages hereof
on the Closing Date) or on or prior to the date of the
Assignment Agreement pursuant to which it becomes a Lender
(in the case of each other Lender), and at such other times
as may be necessary in the determination of Company or
Administrative Agent (each in the reasonable exercise of its
discretion), (A) two original copies of Internal Revenue
Service Form W-8BEN or W-8ECI (or any successor forms),
properly completed and duly executed by such Lender, and
such other documentation required under the Internal Revenue
Code and reasonably requested by Company to establish that
such Lender is not subject to deduction or withholding of
United States federal income tax with respect to any
payments to such Lender of principal, interest, fees or
other amounts payable under any of the Credit Documents, or
(B) if such Lender is not a "bank" or other Person described
in Section 881(c)(3) of the Internal Revenue Code and cannot
deliver either Internal Revenue Service Form W-8BEN or
W-8ECI pursuant to clause (A) above, a Certificate re
Non-Bank Status together with two original copies of
Internal Revenue Service Form W-8 (or any successor form),
properly completed and duly executed by such Lender, and
such other documentation required under the Internal Revenue
Code and reasonably requested by Company to establish that
such Lender is not subject to deduction or withholding of
United States federal income tax with respect to any
payments to such Lender of interest payable under any of the
Credit Documents. Each Lender required to deliver any forms,
certificates or other evidence with respect to United States
federal income tax withholding matters pursuant to this
Section 2.19(c) hereby agrees, from time to time after the
initial delivery by such Lender of such forms, certificates
or other evidence, whenever a lapse in time or change in
circumstances renders such forms, certificates or other
evidence obsolete or inaccurate in any material respect,
that such Lender shall promptly deliver to Administrative
Agent for transmission to Company two new original copies of
Internal Revenue Service Form W-8BEN or W-8ECI, or a
Certificate re Non-Bank Status and two original copies of
Internal Revenue Service Form W-8, as the case may be,
properly completed and duly executed by such Lender, and
such other documentation required under the Internal Revenue
Code and reasonably requested by Company to confirm or
establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect
to payments to such Lender under the Credit Documents, or
notify Administrative Agent and Company of its inability to
deliver any such forms, certificates or other evidence.
Company shall not be required to pay any additional amount
to any Non-US Lender under Section 2.19(b)(iii) if such
Lender shall have failed to deliver the forms, certificates
or other evidence referred to in the second sentence of this
Section 2.19(c), or (2) to notify Administrative Agent and
Company of its inability to deliver any such forms,
certificates or other evidence, as the case may be;
PROVIDED, if such Lender shall have satisfied the
requirements of the first sentence of this Section 2.19(c)
on the Closing Date or on the date of the Assignment
Agreement pursuant to which it became a Lender, as
applicable, nothing in this last sentence of Section 2.19(c)
shall relieve Company of its obligation to pay any
additional amounts pursuant to Section 2.18(a) in
56
the event that, as a result of any change in any applicable
law, treaty or governmental rule, regulation or order, or
any change in the interpretation, administration or
application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at
a subsequent date establishing the fact that such Lender is
not subject to withholding as described herein.
(ii) If any non-corporate Lender is a United States Person as
such term is defined in the Internal Revenue Code, such
Lender shall deliver to Administrative Agent on or prior to
the Closing Date or on or prior to the date of the
Assignment Agreement, pursuant to which it becomes a Lender
(in the case of each other Lender) two original copies of
Internal Revenue Service Form W-9 (or any successor forms),
properly completed and duly executed by such Lender and such
other documentation required under the Internal Revenue Code
to establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect
to such principal, interest, fees or other amounts payable
under the any of the Credit Documents.
2.20 OBLIGATION TO MITIGATE. Each Lender (which term shall include Issuing
Bank for purposes of this Section 2.20) agrees that, as promptly as
practicable after the officer of such Lender responsible for
administering its Loans becomes aware of the occurrence of an event or
the existence of a condition that would cause such Lender to become an
Affected Lender or that would entitle such Lender to receive payments
under Section 2.17, 2.18 or 2.19, it will, to the extent not
inconsistent with the internal policies of such Lender and any
applicable legal or regulatory restrictions, use reasonable efforts to
(a) make, issue, fund or maintain its Credit Extensions, including any
Affected Loans, through another office of such Lender, or (b) take
such other measures as such Lender may deem reasonable, if as a result
thereof the circumstances which would cause such Lender to be an
Affected Lender would cease to exist or the additional amounts which
would otherwise be required to be paid to such Lender pursuant to
Section 2.17, 2.18 or 2.19 would be materially reduced and if, as
determined by such Lender in its sole but reasonable discretion, the
making, issuing, funding or maintaining of such Revolving Commitments
or Loans through such other office or in accordance with such other
measures, as the case may be, would not otherwise adversely affect
such Revolving Commitments or Loans or the interests of such Lender;
PROVIDED, such Lender will not be obligated to utilize such other
office pursuant to this Section 2.20 unless Company agrees to pay all
incremental expenses incurred by such Lender as a result of utilizing
such other office as described above. A certificate as to the amount
of any such expenses payable by Company pursuant to this Section 2.20
(setting forth in reasonable detail the basis for requesting such
amount) submitted by such Lender to Company (with a copy to
Administrative Agent) shall be prima facie evidence thereof.
2.21 DEFAULTING LENDERS. Anything contained herein to the contrary
notwithstanding, in the event that any Lender, at the direction or
request of any regulatory agency or authority, defaults (a "DEFAULTING
LENDER") in its obligation to fund (a "FUNDING DEFAULT") any Revolving
Loan or its portion of any unreimbursed payment under Section
2.3(b)(iv) (in each case, a "DEFAULTED LOAN"), then (a) during any
Default Period with respect to such Defaulting Lender, such Defaulting
Lender shall be deemed not to be a "Lender" for purposes of voting on
any matters (including the granting of any consents or waivers) with
respect to any of the Credit Documents; (b) to the extent permitted by
applicable law, until such time as the Default Excess with respect to
such Defaulting Lender shall have been reduced to zero, (i) any
voluntary
57
prepayment of the Revolving Loans shall, if Company so directs at the
time of making such voluntary prepayment, be applied to the Revolving
Loans of other Lenders as if such Defaulting Lender had no Revolving
Loans outstanding and the Revolving Exposure of such Defaulting Lender
were zero, and (ii) any mandatory prepayment of the Revolving Loans
shall, if Company so directs at the time of making such mandatory
prepayment, be applied to the Revolving Loans of other Lenders (but
not to the Revolving Loans of such Defaulting Lender) as if such
Defaulting Lender had funded all Defaulted Loans of such Defaulting
Lender, it being understood and agreed that Company shall be entitled
to retain any portion of any mandatory prepayment of the Revolving
Loans that is not paid to such Defaulting Lender solely as a result of
the operation of the provisions of this clause (b); (c) such
Defaulting Lender's Revolving Commitment and outstanding Revolving
Loans and such Defaulting Lender's Pro Rata Share of the Letter of
Credit Usage shall be excluded for purposes of calculating the
Revolving Commitment fee payable to Lenders in respect of any day
during any Default Period with respect to such Defaulting Lender, and
such Defaulting Lender shall not be entitled to receive any Revolving
Commitment fee pursuant to Section 2.10 with respect to such
Defaulting Lender's Revolving Commitment in respect of any Default
Period with respect to such Defaulting Lender; and (d) the Total
Utilization of Revolving Commitments as at any date of determination
shall be calculated as if such Defaulting Lender had funded all
Defaulted Loans of such Defaulting Lender. No Revolving Commitment of
any Lender shall be increased or otherwise affected, and, except as
otherwise expressly provided in this Section 2.21, performance by
Company of its obligations hereunder and the other Credit Documents
shall not be excused or otherwise modified as a result of any Funding
Default or the operation of this Section 2.21. The rights and remedies
against a Defaulting Lender under this Section 2.21 are in addition to
other rights and remedies which Company may have against such
Defaulting Lender with respect to any Funding Default and which
Administrative Agent or any Lender may have against such Defaulting
Lender with respect to any Funding Default.
2.22 REMOVAL OR REPLACEMENT OF A LENDER. Anything contained herein to the
contrary notwithstanding, in the event that: (a) any Lender (an
"INCREASED-COST LENDER") shall give notice to Company that such Lender
is an Affected Lender or that such Lender is entitled to receive
payments under Section 2.17, 2.18 or 2.19, the circumstances which
have caused such Lender to be an Affected Lender or which entitle such
Lender to receive such payments shall remain in effect, and such
Lender shall fail to withdraw such notice within five Business Days
after Company's request for such withdrawal; or (b) any Lender shall
become a Defaulting Lender, the Default Period for such Defaulting
Lender shall remain in effect, and such Defaulting Lender shall fail
to cure the default as a result of which it has become a Defaulting
Lender within five Business Days after Company's request that it cure
such default; or (c) in connection with any proposed amendment,
modification, termination, waiver or consent with respect to any of
the provisions hereof as contemplated by Section 10.5(b), the consent
of Requisite Lenders shall have been obtained but the consent of one
or more of such other Lenders (each a "NON-CONSENTING LENDER") whose
consent is required shall not have been obtained; then, with respect
to each such Increased-Cost Lender, Defaulting Lender or
Non-Consenting Lender (the "TERMINATED LENDER"), Company may, by
giving written notice to Administrative Agent and any Terminated
Lender of its election to do so, elect to cause such Terminated Lender
(and such Terminated Lender hereby irrevocably agrees) to assign its
outstanding Loans and its Revolving Commitments, if any, in full to
one or more Eligible Assignees (each a "REPLACEMENT LENDER") in
accordance with the provisions of Section 10.6 and Terminated
58
Lender shall pay any fees payable thereunder in connection with such
assignment; PROVIDED, (1) on the date of such assignment, the
Replacement Lender shall pay to Terminated Lender an amount equal to
the sum of (A) an amount equal to the principal of, and all accrued
interest on, all outstanding Loans of the Terminated Lender, (B) an
amount equal to all unreimbursed drawing that have been funded by such
Terminated Lender, together with all then unpaid interest with respect
thereto at such time and (C) an amount equal to all accrued, but
theretofore unpaid fees owing to such Terminated Lender pursuant to
Section 2.10; (2) on the date of such assignment, Company shall pay
any amounts payable to such Terminated Lender pursuant to Section
2.17(c), 2.18 or 2.19 or otherwise as if it were a prepayment; and (3)
in the event such Terminated Lender is a Non-Consenting Lender, each
Replacement Lender shall consent, at the time of such assignment, to
each matter in respect of which such Terminated Lender was a
Non-Consenting Lender; PROVIDED, Company may not make such election
with respect to any Terminated Lender that is also an Issuing Bank
unless, prior to the effectiveness of such election, Company shall
have caused each outstanding Letter of Credit issued thereby to be
cancelled. Upon the prepayment of all amounts owing to any Terminated
Lender and the termination of such Terminated Lender's Revolving
Commitments, if any, such Terminated Lender shall no longer constitute
a "Lender" for purposes hereof; PROVIDED, any rights of such
Terminated Lender to indemnification hereunder shall survive as to
such Terminated Lender.
2.23 ISSUANCE OF LETTERS OF CREDIT AND PURCHASE OF PARTICIPATIONS THEREIN.
(a) LETTERS OF CREDIT. During the Revolving Commitment Period,
subject to the terms and conditions hereof, Issuing Bank agrees
to issue Letters of Credit for the account of Company in the
aggregate amount up to but not exceeding the Letter of Credit
Sublimit; PROVIDED, (i) each Letter of Credit shall be
denominated in Dollars; (ii) the stated amount of each Letter of
Credit shall not be less than $10,000 or such lesser amount as is
acceptable to Issuing Bank; (iii) after giving effect to such
issuance, in no event shall the Total Utilization of Revolving
Commitments exceed the Revolving Commitments then in effect; (iv)
after giving effect to such issuance, in no event shall the
Letter of Credit Usage exceed the Letter of Credit Sublimit then
in effect; (v) in no event shall any standby Letter of Credit
have an expiration date later than the earlier of (1) the
Revolving Commitment Termination Date and (2) the date which is
one year from the date of issuance of such standby Letter of
Credit; and (vi) in no event shall any commercial Letter of
Credit (x) have an expiration date later than the earlier of (1)
the Revolving Loan Commitment Termination Date and (2) the date
which is 180 days from the date of issuance of such commercial
Letter of Credit or (b) be issued if such commercial Letter of
Credit is otherwise unacceptable to Issuing Bank in its
reasonable discretion. Subject to the foregoing, Issuing Bank may
agree that a standby Letter of Credit will automatically be
extended for one or more successive periods not to exceed one
year each, unless Issuing Bank elects not to extend for any such
additional period; PROVIDED, Issuing Bank shall not extend any
such Letter of Credit if it has received written notice that an
Event of Default has occurred and is continuing at the time
Issuing Bank must elect to allow such extension; PROVIDED,
FURTHER, in the event a Funding Default exists, Issuing Bank
shall not be required to issue any Letter of Credit unless
Issuing Bank has entered into arrangements satisfactory to it and
Company to eliminate Issuing Bank's risk with respect to the
participation in Letters of Credit of the Defaulting Lender,
including by cash collateralizing such Defaulting Lender's Pro
Rata Share of the Letter of Credit Usage.
59
(b) NOTICE OF ISSUANCE. Whenever Company desires the issuance of a
Letter of Credit, it shall deliver to Administrative Agent an
Issuance Notice no later than 12:00 p.m. (New York City time) at
least three Business Days (in the case of standby letters of
credit) or five Business Days (in the case of commercial letters
of credit), or in each case such shorter period as may be agreed
to by Issuing Bank in any particular instance, in advance of the
proposed date of issuance. Upon satisfaction or waiver of the
conditions set forth in Section 3.2, Issuing Bank shall issue the
requested Letter of Credit only in accordance with Issuing Bank's
standard operating procedures. Upon the issuance of any Letter of
Credit or amendment or modification to a Letter of Credit,
Issuing Bank shall promptly notify each Lender of such issuance,
which notice shall be accompanied by a copy of such Letter of
Credit or amendment or modification to a Letter of Credit and the
amount of such Lender's respective participation in such Letter
of Credit pursuant to Section 2.23(e).
(c) RESPONSIBILITY OF ISSUING BANK WITH RESPECT TO REQUESTS FOR
DRAWINGS AND PAYMENTS. In determining whether to honor any
drawing under any Letter of Credit by the beneficiary thereof,
Issuing Bank shall be responsible only to examine the documents
delivered under such Letter of Credit with reasonable care so as
to ascertain whether they appear on their face to be in
accordance with the terms and conditions of such Letter of
Credit. As between Company and Issuing Bank, Company assumes all
risks of the acts and omissions of, or misuse of the Letters of
Credit issued by Issuing Bank, by the respective beneficiaries of
such Letters of Credit. In furtherance and not in limitation of
the foregoing, Issuing Bank shall not be responsible for: (i) the
form, validity, sufficiency, accuracy, genuineness or legal
effect of any document submitted by any party in connection with
the application for and issuance of any such Letter of Credit,
even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any such Letter of
Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, which may prove to be invalid or ineffective
for any reason; (iii) failure of the beneficiary of any such
Letter of Credit to comply fully with any conditions required in
order to draw upon such Letter of Credit; (iv) errors, omissions,
interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether
or not they be in cipher; (v) errors in interpretation of
technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing
under any such Letter of Credit or of the proceeds thereof; (vii)
the misapplication by the beneficiary of any such Letter of
Credit of the proceeds of any drawing under such Letter of
Credit; or (viii) any consequences arising from causes beyond the
control of Issuing Bank, including any Governmental Acts; none of
the above shall affect or impair, or prevent the vesting of, any
of Issuing Bank's rights or powers hereunder. Without limiting
the foregoing and in furtherance thereof, any action taken or
omitted by Issuing Bank under or in connection with the Letters
of Credit or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not give rise to any
liability on the part of Issuing Bank to Company. Notwithstanding
anything to the contrary contained in this Section 2.23(c),
Company shall retain any and all rights it may have against
Issuing Bank for any liability arising solely out of the gross
negligence or willful misconduct of Issuing Bank.
(d) REIMBURSEMENT BY COMPANY OF AMOUNTS DRAWN OR PAID UNDER LETTERS
OF CREDIT. In the event Issuing Bank has determined to honor a
drawing under a Letter of Credit, it shall immediately notify
Company and Administrative Agent, and Company shall reimburse
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Issuing Bank on or before the Business Day immediately following
the date on which such drawing is honored (the "REIMBURSEMENT
DATE") in an amount in Dollars and in same day funds equal to the
amount of such honored drawing; PROVIDED, anything contained
herein to the contrary notwithstanding, (i) unless Company shall
have notified Administrative Agent and Issuing Bank prior to
10:00 a.m. (New York City time) on the date such drawing is
honored that Company intends to reimburse Issuing Bank for the
amount of such honored drawing with funds other than the proceeds
of Revolving Loans, Company shall be deemed to have given a
timely Funding Notice to Administrative Agent requesting Lenders
to make Revolving Loans that are Base Rate Loans on the
Reimbursement Date in an amount in Dollars equal to the amount of
such honored drawing, and (ii) subject to satisfaction or waiver
of the conditions specified in Section 3.2, Lenders shall, on the
Reimbursement Date, make Revolving Loans that are Base Rate Loans
in the amount of such honored drawing, the proceeds of which
shall be applied directly by Administrative Agent to reimburse
Issuing Bank for the amount of such honored drawing; and PROVIDED
FURTHER, if for any reason proceeds of Revolving Loans are not
received by Issuing Bank on the Reimbursement Date in an amount
equal to the amount of such honored drawing, Company shall
reimburse Issuing Bank, on demand, in an amount in same day funds
equal to the excess of the amount of such honored drawing over
the aggregate amount of such Revolving Loans, if any, which are
so received. Nothing in this Section 2.23(d) shall be deemed to
relieve any Lender from its obligation to make Revolving Loans on
the terms and conditions set forth herein, and Company shall
retain any and all rights it may have against any Lender
resulting from the failure of such Lender to make such Revolving
Loans under this Section 2.23(d).
(e) LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF CREDIT.
Immediately upon the issuance of each Letter of Credit, each
Lender having a Revolving Commitment shall be deemed to have
purchased, and hereby agrees to irrevocably purchase, from
Issuing Bank a participation in such Letter of Credit and any
drawings honored thereunder in an amount equal to such Lender's
Pro Rata Share (with respect to the Revolving Commitments) of the
maximum amount which is or at any time may become available to be
drawn thereunder. In the event that Company shall fail for any
reason to reimburse Issuing Bank as provided in Section 2.23(d),
Issuing Bank shall promptly notify each Lender of the
unreimbursed amount of such honored drawing and of such Lender's
respective participation therein based on such Lender's Pro Rata
Share of the Revolving Commitments. Each Lender shall make
available to Issuing Bank an amount equal to its respective
participation, in Dollars and in same day funds, at the office of
Issuing Bank specified in such notice, not later than 12:00 p.m.
(New York City time) on the first business day (under the laws of
the jurisdiction in which such office of Issuing Bank is located)
after the date notified by Issuing Bank. In the event that any
Lender fails to make available to Issuing Bank on such business
day the amount of such Lender's participation in such Letter of
Credit as provided in this Section 2.23(e), Issuing Bank shall be
entitled to recover such amount on demand from such Lender
together with interest thereon for three Business Days at the
rate customarily used by Issuing Bank for the correction of
errors among banks and thereafter at the Base Rate. Nothing in
this Section 2.23(e) shall be deemed to prejudice the right of
any Lender to recover from Issuing Bank any amounts made
available by such Lender to Issuing Bank pursuant to this Section
in the event that it is determined that the payment with respect
to a Letter of Credit in respect of which payment was made by
such Lender constituted gross negligence or willful misconduct on
the part of Issuing Bank. In the event Issuing Bank shall have
been reimbursed by other Lenders pursuant to this Section 2.23(e)
for all or any portion of any
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drawing honored by Issuing Bank under a Letter of Credit, such
Issuing Bank shall distribute to each Lender which has paid all
amounts payable by it under this Section 2.23(e) with respect to
such honored drawing such Lender's Pro Rata Share of all payments
subsequently received by Issuing Bank from Company in
reimbursement of such honored drawing when such payments are
received. Any such distribution shall be made to a Lender at its
primary address set forth below its name on Appendix B or at such
other address as such Lender may request.
(f) OBLIGATIONS ABSOLUTE. The obligation of Company to reimburse
Issuing Bank for drawings honored under the Letters of Credit
issued by it and to repay any Revolving Loans made by Lenders
pursuant to Section 2.23(d) and the obligations of Lenders under
Section 2.23(e) shall be unconditional and irrevocable and shall
be paid strictly in accordance with the terms hereof under all
circumstances including any of the following circumstances: (i)
any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right
which Company or any Lender may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any
Persons for whom any such transferee may be acting), Issuing
Bank, Lender or any other Person or, in the case of a Lender,
against Company, whether in connection herewith, the transactions
contemplated herein or any unrelated transaction (including any
underlying transaction between Company or one of its Subsidiaries
and the beneficiary for which any Letter of Credit was procured);
(iii) any draft or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or
inaccurate in any respect; (iv) payment by Issuing Bank under any
Letter of Credit against presentation of a draft or other
document which does not substantially comply with the terms of
such Letter of Credit; (v) any adverse change in the business,
operations, properties, assets, condition (financial or
otherwise) or prospects of Holdings or any of its Subsidiaries;
(vi) any breach hereof or any other Credit Document by any party
thereto; (vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing; or (viii) the
fact that an Event of Default or a Default shall have occurred
and be continuing; PROVIDED, in each case, that payment by
Issuing Bank under the applicable Letter of Credit shall not have
constituted gross negligence or willful misconduct of Issuing
Bank under the circumstances in question.
(g) INDEMNIFICATION. Without duplication of any obligation of Company
under Section 10.2 or 10.3, in addition to amounts payable as
provided herein, Company hereby agrees to protect, indemnify, pay
and save harmless Issuing Bank from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable fees, expenses and disbursements
of counsel and allocated costs of internal counsel) which Issuing
Bank may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of any Letter of Credit by Issuing
Bank, other than as a result of (1) the gross negligence or
willful misconduct of Issuing Bank or (2) the wrongful dishonor
by Issuing Bank of a proper demand for payment made under any
Letter of Credit issued by it, or (ii) the failure of Issuing
Bank to honor a drawing under any such Letter of Credit as a
result of any Governmental Act.
2.24 INCREMENTAL FACILITIES. Company may by written notice to Syndication
Agent elect to request the establishment of one or more new term loan
commitments (the "NEW TERM LOAN COMMITMENTS"), by an amount not in
excess of $25,000,000 in the aggregate and not less than $10,000,000
individually (or such lesser amount which shall be approved by
Administrative Agent and Syndication Agent), and integral multiples of
$1,000,000 in excess of that amount.
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Each such notice shall specify (A) the date (each, an "INCREASED
AMOUNT DATE") on which Company proposes that the New Term Loan
Commitments shall be effective, which shall be a date not less than 10
Business Days after the date on which such notice is delivered to
Syndication Agent (or such later date as may be agreed to by the
Syndication Agent), and (B) the identity of each Lender or other
Person that is an Eligible Assignee (each, a "NEW TERM LOAN LENDER")
to whom Company proposes any portion of such New Term Loan Commitments
be allocated and the amounts of such allocations; PROVIDED that any
Lender approached to provide all or a portion of the New Term Loan
Commitments may elect or decline, in its sole discretion, to provide a
New Term Loan Commitment. Such New Term Loan Commitments shall become
effective, as of such Increased Amount Date; PROVIDED that (1) no
Default or Event of Default shall exist on such Increased Amount Date
before or after giving effect to such New Term Loan Commitments, as
applicable; (2) both before and after giving effect to the making of
any Series of New Term Loans, each of the conditions set forth in
Section 3.2 shall be satisfied; (3) Company and its Subsidiaries shall
be in pro forma compliance with each of the covenants set forth in
Section 6.8 as of the last day of the most recently ended Fiscal
Quarter after giving effect to such New Term Loan Commitments; (4) the
New Term Loan Commitments shall be effected pursuant to one or more
Joinder Agreements executed and delivered by Company, Syndication
Agent and Administrative Agent, each of which Joinder Agreements shall
be recorded in the Register and shall be subject to the requirements
set forth in Section 2.19(c); (5) Company shall make any payments
required pursuant to such Joinder Agreements in connection with the
New Term Loan Commitments; and (6) Company shall deliver or cause to
be delivered any legal opinions or other documents reasonably
requested by Administrative Agent in connection with any such
transaction. Any New Term Loans made on an Increased Amount Date shall
be designated a separate series (a "SERIES") of New Term Loans for all
purposes of this Agreement.
On any Increased Amount Date on which any New Term Loan Commitments of any
Series are effective, subject to the satisfaction of the foregoing terms and
conditions, (i) each New Term Loan Lender of any Series shall make a Loan to
Company (a "NEW TERM LOAN") in an amount equal to its New Term Loan Commitment
of such Series, and (ii) each New Term Loan Lender of any Series shall become a
Lender hereunder with respect to the New Term Loan Commitment of such Series and
the New Term Loans of such Series made pursuant thereto.
Administrative Agent shall notify Lenders promptly upon receipt of
Company's notice of each Increased Amount Date and in respect thereof the Series
of New Term Loan Commitments and the New Term Loan Lenders of such Series.
The terms and provisions of the New Term Loans and New Term Loan
Commitments of any Series shall be, except as otherwise set forth herein or in
the Joinder Agreement, identical to the Term Loans. In any event (i) the
weighted average life to maturity of all New Term Loans of any Series shall be
no shorter than the remaining weighted average life to maturity of the Terms
Loans, (ii) the applicable New Term Loan Maturity Date of each Series shall be
no shorter than the final maturity of the Term Loans, and (iii) the rate of
interest and any non-usage fee applicable to the New Term Loans of each Series
shall be as determined by Company and the applicable new Lenders and shall be
set forth in each applicable Joinder Agreement; PROVIDED HOWEVER that the
interest rate applicable to the New Term Loans shall not be greater than the
highest interest rate that may, under any circumstances, be payable with respect
to Term Loans
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plus 0.50% per annum unless the interest rate with respect to the
Term Loan is increased so as to equal the interest rate applicable to the New
Term Loans. Each Joinder Agreement may, without the consent of any other
Lenders, effect such amendments to this Agreement and the other Credit Documents
as may be necessary or appropriate, in the opinion of the Syndication Agent and
Administrative Agent, to effect the provisions of this Section 2.24.
SECTION 3. CONDITIONS PRECEDENT
3.1 CLOSING DATE. The obligation of any Lender to make a Credit Extension
on the Closing Date is subject to the satisfaction, or waiver in
accordance with Section 10.5, of the following conditions on or before
the Closing Date:
(a) CREDIT DOCUMENTS. Administrative Agent shall have received
sufficient copies of each Credit Document originally executed and
delivered by each applicable Credit Party for each Lender.
(b) ORGANIZATIONAL DOCUMENTS; INCUMBENCY. Administrative Agent shall
have received (i) sufficient copies of each Organizational
Document originally executed and delivered by each Credit Party,
as applicable, and accompanied by a certificate by an Authorized
Officer certifying that there have been no material amendments to
those Organizational Documents previously delivered to the
Administrative Agent in connection with the Existing Credit
Agreement; (ii) signature and incumbency certificates of the
officers of such Person executing the Credit Documents to which
it is a party; (iii) resolutions of the Board of Directors or
similar governing body of each Credit Party approving and
authorizing the execution, delivery and performance of this
Agreement and the other Credit Documents or by which it or its
assets may be bound as of the Closing Date, certified as of the
Closing Date by its secretary or an assistant secretary as being
in full force and effect without modification or amendment; (iv)
a good standing certificate from the applicable Governmental
Authority of each Credit Party's jurisdiction of incorporation,
organization or formation, each dated a recent date prior to the
Closing Date; and (v) such other documents as Administrative
Agent may reasonably request.
(c) ORGANIZATIONAL AND CAPITAL STRUCTURE. The organizational
structure and capital structure of Holdings and its Subsidiaries,
shall be as set forth on Schedule 4.1.
(d) EXISTING CREDIT AGREEMENT. On the Closing Date, Holdings and its
Subsidiaries shall have (i) repaid in full the Existing Credit
Agreement, (ii) terminated any commitments to lend or make other
extensions of credit thereunder, and (iii) delivered to
Syndication Agent and Administrative Agent all documents or
instruments necessary to release all Liens securing the Existing
Credit Agreement or other obligations of Holdings and its
Subsidiaries thereunder being repaid on the Closing Date.
(e) TRANSACTION COSTS. On or prior to the Closing Date, Company shall
have delivered to Administrative Agent Company's reasonable best
estimate of the Transactions Costs (other than fees payable to
any Agent).
(f) GOVERNMENTAL AUTHORIZATIONS AND CONSENTS. Each Credit Party shall
have obtained all Governmental Authorizations and all consents of
other Persons, in each case that are necessary or advisable in
connection with the transactions contemplated by the Credit
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Documents and each of the foregoing shall be in full force and
effect and in form and substance reasonably satisfactory to
Syndication Agent and Administrative Agent. All applicable
waiting periods shall have expired without any action being taken
or threatened by any competent authority which would restrain,
prevent or otherwise impose adverse conditions on the
transactions contemplated by the Credit Documents or the
financing thereof and no action, request for stay, petition for
review or rehearing, reconsideration, or appeal with respect to
any of the foregoing shall be pending, and the time for any
applicable agency to take action to set aside its consent on its
own motion shall have expired.
(g) REAL ESTATE ASSETS. In order to create in favor of Collateral
Agent, for the benefit of Secured Parties, a valid and, subject
to any filing and/or recording referred to herein, perfected
First Priority security interest in the Material Real Estate
Assets, Collateral Agent shall have received from Company and
each applicable Guarantor:
(i) fully executed and notarized Mortgages, in proper form for
recording in all appropriate places in all applicable
jurisdictions, encumbering each Real Estate Asset listed in
Schedule 3.1(g) (each, a "CLOSING DATE MORTGAGED PROPERTY");
(ii) an opinion of counsel (which counsel shall be reasonably
satisfactory to Collateral Agent) in (i) Alaska, (ii)
California, (iii) Louisiana, (iv) Maryland, (v) New Mexico
and (vi) Nevada, in each case with respect to the
enforceability of the form(s) of Mortgages to be recorded in
such state and such other matters as Collateral Agent may
reasonably request, in each case in form and substance
reasonably satisfactory to Collateral Agent;
(iii) [Reserved];
(iv) (A) ALTA mortgagee title insurance policies or unconditional
commitments therefor issued by one or more title companies
reasonably satisfactory to Collateral Agent with respect to
each Closing Date Mortgaged Property (each, a "TITLE
POLICY"), in amounts not less than the fair market value of
each Closing Date Mortgaged Property, together with a title
report issued by a title company with respect thereto, dated
not more than thirty days prior to the Closing Date and
copies of all recorded documents listed as exceptions to
title or otherwise referred to therein, each in form and
substance reasonably satisfactory to Collateral Agent and
(B) evidence satisfactory to Collateral Agent that such
Credit Party has paid to the title company or to the
appropriate governmental authorities all expenses and
premiums of the title company and all other sums required in
connection with the issuance of each Title Policy and all
recording and stamp taxes (including mortgage recording and
intangible taxes) payable in connection with recording the
Mortgages for each Closing Date Mortgaged Property in the
appropriate real estate records; and
(v) evidence of flood insurance with respect to each Flood
Hazard Property that is located in a community that
participates in the National Flood Insurance Program, in
each case in compliance with any applicable regulations of
the Board of Governors of the Federal Reserve System, in
form and substance reasonably satisfactory to Collateral
Agent.
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(h) PERSONAL PROPERTY COLLATERAL. In order to create in favor of
Collateral Agent, for the benefit of Secured Parties, a valid and
perfected First Priority security interest in the personal
property Collateral, Collateral Agent shall have received:
(i) evidence satisfactory to the Collateral Agent of the
compliance by each Credit Party of their obligations under
the Pledge and Security Agreement and the other Collateral
Documents (including, without limitation, their obligations
to execute and deliver UCC financing statements, originals
of securities, instruments and chattel paper and any
agreements governing deposit and/or securities accounts as
provided therein);
(ii) a certificate of an Authorized Officer listing each Credit
Party, together with each Credit Party's jurisdiction of
incorporation, organization or formation and organizational
identification number (if any); and
(iii) evidence that each Credit Party shall have taken or caused
to be taken any other action, executed and delivered or
caused to be executed and delivered any other agreement,
document and instrument and made or caused to be made any
other filing and recording (other than as set forth herein)
reasonably required by Collateral Agent.
(i) FINANCIAL STATEMENTS; PROJECTIONS. Lenders shall have received
from Holdings (i) the Historical Financial Statements, (ii) pro
forma consolidated and consolidating balance sheets of Holdings
and its Subsidiaries as at the most recent calendar quarter end
prior to the Closing Date, the related financings and the other
transactions contemplated by the Credit Documents to occur on or
prior to the Closing Date, which pro forma financial statements
shall be in form and substance satisfactory to Administrative
Agent and Syndication Agent, and (iii) projected consolidated
financial statements of Holdings and its Subsidiaries for the
five year period commencing with Fiscal Year 2005 (the
"PROJECTIONS").
(j) EVIDENCE OF INSURANCE. Syndication Agent and Administrative Agent
shall have received a certificate from Holding's insurance broker
or other evidence satisfactory to it that all insurance required
to be maintained pursuant to Section 5.5 is in full force and
effect and that Administrative Agent, for the benefit of Lenders
has been named as additional insured and loss payee thereunder to
the extent required under Section 5.5.
(k) OPINION OF COUNSEL TO CREDIT PARTIES. Lenders and their
respective counsel shall have received originally executed copies
of the favorable written opinion of Akin Gump Xxxxxxx Xxxxx &
Xxxx LLP, counsel for Credit Parties, in the form of Exhibit D
and as to such other matters as Administrative Agent or
Syndication Agent may reasonably request, dated as of the Closing
Date and otherwise in form and substance reasonably satisfactory
to Administrative Agent and Syndication Agent.
(l) FEES. Company shall have paid to Syndication Agent and
Administrative Agent, the fees payable on the Closing Date
referred to in Section 2.10(e).
(m) CLOSING DATE CERTIFICATE. Holdings and Company shall have
delivered to Syndication Agent and Administrative Agent an
originally executed Closing Date Certificate, together with all
attachments thereto.
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(n) NO LITIGATION. There shall not exist any action, suit,
investigation, litigation or proceeding or other legal or
regulatory developments, pending or threatened in any court or
before any arbitrator or Governmental Authority that, in the
reasonable opinion of Administrative Agent and Syndication Agent,
singly or in the aggregate, materially impairs the transactions
contemplated by the Credit Documents, or that could have a
Material Adverse Effect.
(o) COMPLETION OF PROCEEDINGS. All partnership, corporate and other
proceedings taken or to be taken in connection with the
transactions contemplated hereby and all documents incidental
thereto not previously found acceptable by Administrative Agent
or Syndication Agent and its counsel shall be satisfactory in
form and substance to Administrative Agent and Syndication Agent
and such counsel, and Administrative Agent, Syndication Agent and
such counsel shall have received all such counterpart originals
or certified copies of such documents as Administrative Agent or
Syndication Agent may reasonably request.
(p) FUNDING NOTICE. Company shall have delivered to Administrative
Agent a fully executed Funding Notice with respect to the Closing
Date Term Loans to be made on the Closing Date.
(q) DESIGNATED SENIOR DEBT. Company shall take all actions reasonably
requested by Administrative Agent or Syndication Agent to
designate the Obligations hereunder as "Designated Senior Debt"
under the Existing Subordinated Note Indenture (such actions to
include, without limitation, (i) a board resolution or action by
unanimous consent designating the Obligations hereunder as
"Designated Senior Debt"; and (ii) a notice to the Trustee under
the Existing Subordinated Note Indenture designating the
Obligations hereunder as "Designated Senior Debt").
(r) MAXIMUM LEVERAGE RATIO. The ratio of (i) total indebtedness for
the Company and its Subsidiaries as of the Closing Date to (ii)
pro forma Consolidated Adjusted EBITDA for the twelve-month
period ending March 31, 2005 shall not be greater than 3.25:1.00.
(s) MINIMUM EBITDA. Administrative Agent and Syndication Agent shall
have received evidence that pro forma Consolidated Adjusted
EBITDA after giving effect to the Credit Documents for the
twelve-month period ending March 31, 2005 shall not be less than
$145,000,000.
Each Lender, by delivering its signature page to this Agreement and funding
a Loan on the Closing Date, shall be deemed to have acknowledged receipt of, and
consented to and approved, each Credit Document and each other document required
to be approved by any Agent, Requisite Lenders or Lenders, as applicable on the
Closing Date.
3.2 CONDITIONS TO EACH CREDIT EXTENSION.
(a) CONDITIONS PRECEDENT. The obligation of each Lender to make any
Loan, or Issuing Bank to issue any Letter of Credit, on any
Credit Date, including the Closing Date, are subject to the
satisfaction, or waiver in accordance with Section 10.5, of the
following conditions precedent:
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(i) Administrative Agent shall have received a fully executed
and delivered Funding Notice;
(ii) after making the Credit Extensions requested on such Credit
Date, (y) the Total Utilization of Revolving Commitments
shall not exceed the Revolving Commitments then in effect
and (z) with respect to Revolving Loans used to finance
Permitted Acquisitions, after making the Credit Extensions
on such Credit Date, Company shall have $10,000,000 of
unutilized Revolving Commitments available and the Leverage
Ratio determined on a pro forma basis as of the last day of
the Fiscal Quarter most recently ended and giving effect to
the Permitted Acquisition as of such date shall be not
greater than the ratio specified in Section 6.8 with respect
to such date LESS 0.125.
(iii) as of such Credit Date, the representations and warranties
contained herein and in the other Credit Documents shall be
true and correct in all material respects on and as of that
Credit Date to the same extent as though made on and as of
that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which
case such representations and warranties shall have been
true and correct in all material respects on and as of such
earlier date;
(iv) as of such Credit Date, no event shall have occurred and be
continuing or would result from the consummation of the
applicable Credit Extension that would constitute an Event
of Default or a Default; and
(v) on or before the date of issuance of any Letter of Credit,
Administrative Agent shall have received (i) a fully
executed and delivered Issuance Notice, (ii) all other
information required by the applicable Issuance Notice and
(iii) such other documents or information as Issuing Bank
may reasonably require in connection with the issuance of
such Letter of Credit.
(b) NOTICES. Any Notice shall be executed by an Authorized Officer in
a writing delivered to Administrative Agent. In lieu of
delivering a Notice, Company may give Administrative Agent
telephonic notice by the required time of any proposed borrowing,
conversion/continuation or issuance of a Letter of Credit, as the
case may be; PROVIDED each such notice shall be promptly
confirmed in writing by delivery of the applicable Notice to
Administrative Agent on or before the applicable date of
borrowing or continuation/conversion. Neither Administrative
Agent nor any Lender shall incur any liability to Company in
acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by
a duly authorized officer or other person authorized on behalf of
Company or for otherwise acting in good faith.
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders and Issuing Bank to enter into this Agreement
and to make each Credit Extension to be made thereby, each Credit Party
represents and warrants to each Lender and Issuing Bank, on the Closing Date and
on each Credit Date, that the following statements are true and correct:
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4.1 ORGANIZATION; REQUISITE POWER AND AUTHORITY; QUALIFICATION. Each of
Holdings and its Subsidiaries (a) is duly organized, validly existing
and in good standing under the laws of its jurisdiction of
organization as identified in Schedule 4.1, (b) has all requisite
power and authority to own and operate its properties, to carry on its
business as now conducted and as proposed to be conducted, to enter
into the Credit Documents to which it is a party and to carry out the
transactions contemplated thereby, and (c) is qualified to do business
and in good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its business and
operations, except in jurisdictions where the failure to be so
qualified or in good standing has not had, and could not be reasonably
expected to have, a Material Adverse Effect.
4.2 CAPITAL STOCK AND OWNERSHIP. The Capital Stock of each of Holdings and
its Subsidiaries has been duly authorized and validly issued and is
fully paid and non-assessable. Except as set forth on Schedule 4.2, as
of the date hereof, there is no existing option, warrant, call, right,
commitment or other agreement to which Holdings or any of its
Subsidiaries is a party requiring, and there is no membership interest
or other Capital Stock of Holdings or any of its Subsidiaries
outstanding which upon conversion or exchange would require, the
issuance by Holdings or any of its Subsidiaries of any additional
membership interests or other Capital Stock of Holdings or any of its
Subsidiaries or other Securities convertible into, exchangeable for or
evidencing the right to subscribe for or purchase, a membership
interest or other Capital Stock of Holdings or any of its
Subsidiaries. Schedule 4.2 correctly sets forth the ownership interest
of Holdings and each of its Subsidiaries in their respective
Subsidiaries as of the Closing Date.
4.3 DUE AUTHORIZATION. The execution, delivery and performance of the
Credit Documents have been duly authorized by all necessary action on
the part of each Credit Party that is a party thereto.
4.4 NO CONFLICT. The execution, delivery and performance by Credit Parties
of the Credit Documents to which they are parties and the consummation
of the transactions contemplated by the Credit Documents do not and
will not (a) violate any provision of any law or any governmental rule
or regulation applicable to Holdings or any of its Subsidiaries, any
of the Organizational Documents of Holdings or any of its
Subsidiaries, or any order, judgment or decree of any court or other
agency of government binding on Holdings or any of its Subsidiaries
except to the extent such violation could not be reasonably expected
to have a Material Adverse Effect; (b) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a
default under any Contractual Obligation of Holdings or any of its
Subsidiaries except to the extent such conflict, breach or default
could not reasonably be expected to have a Material Adverse Effect;
(c) result in or require the creation or imposition of any Lien upon
any of the properties or assets of Holdings or any of its Subsidiaries
(other than any Liens created under any of the Credit Documents in
favor of Collateral Agent, on behalf of Secured Parties); or (d)
require any approval of stockholders, members or partners or any
approval or consent of any Person under any Contractual Obligation of
Holdings or any of its Subsidiaries, except for such approvals or
consents which will be obtained on or before the Closing Date and
disclosed in writing to Lenders and except for any such approvals or
consents the failure of which to obtain will not have a Material
Adverse Effect.
4.5 GOVERNMENTAL CONSENTS. The execution, delivery and performance by
Credit Parties of the Credit Documents to which they are parties and
the consummation of the
69
transactions contemplated by the Credit Documents do not and will not
require any registration with, consent or approval of, or notice to,
or other action to, with or by, any Governmental Authority except for
filings and recordings with respect to the Collateral to be made, or
otherwise delivered to Collateral Agent for filing and/or recordation,
as of the Closing Date.
4.6 BINDING OBLIGATION. Each Credit Document has been duly executed and
delivered by each Credit Party that is a party thereto and is the
legally valid and binding obligation of such Credit Party, enforceable
against such Credit Party in accordance with its respective terms,
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights
generally or by equitable principles relating to enforceability.
4.7 HISTORICAL FINANCIAL STATEMENTS. The Historical Financial Statements
were prepared in conformity with GAAP and fairly present, in all
material respects, the financial position, on a consolidated basis, of
the Persons described in such financial statements as at the
respective dates thereof and the results of operations and cash flows,
on a consolidated basis, of the entities described therein for each of
the periods then ended, subject, in the case of any such unaudited
financial statements, to changes resulting from audit and normal
year-end adjustments. As of the Closing Date, neither Holdings nor any
of its Subsidiaries has any contingent liability or liability for
taxes, long-term lease or unusual forward or long-term commitment that
is not reflected in the most recent financial statements delivered
pursuant to Section 5 of this Agreement or the notes thereto and which
in any such case is material in relation to the business, operations,
properties, assets, condition (financial or otherwise) or prospects of
Holdings and any of its Subsidiaries taken as a whole.
4.8 [Reserved].
4.9 NO MATERIAL ADVERSE CHANGE. Since December 31, 2004, no event or
change has occurred that has caused or evidences, either in any case
or in the aggregate, a Material Adverse Effect.
4.10 NO RESTRICTED JUNIOR PAYMENTS. Since December 31, 2004, neither
Holdings nor any of its Subsidiaries has directly or indirectly
declared, ordered, paid or made, or set apart any sum or property for,
any Restricted Junior Payment or agreed to do so except as permitted
pursuant to Section 6.5.
4.11 ADVERSE PROCEEDINGS, ETC. There are no Adverse Proceedings,
individually or in the aggregate, that could reasonably be expected to
have a Material Adverse Effect. Neither Holdings nor any of its
Subsidiaries (a) is in violation of any applicable laws (including
Environmental Laws) that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, or (b) is
subject to or in default with respect to any final judgments, writs,
injunctions, decrees, rules or regulations of any court or any
federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or
foreign, that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
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4.12 PAYMENT OF TAXES. Except as otherwise permitted under Section 5.3, all
federal and state income tax returns and all other material tax
returns and reports of Holdings and its Subsidiaries required to be
filed by any of them have been timely filed, and all taxes shown on
such tax returns to be due and payable and all material assessments,
fees and other governmental charges upon Holdings and its Subsidiaries
and upon their respective properties, assets, income, businesses and
franchises which are due and payable have been paid when due and
payable. Holdings knows of no proposed tax assessment against Holdings
or any of its Subsidiaries which is not being actively contested by
Holdings or such Subsidiary in good faith and by appropriate
proceedings; PROVIDED, such reserves or other appropriate provisions,
if any, as shall be required in conformity with GAAP shall have been
made or provided therefore.
4.13 PROPERTIES.
(a) TITLE. Each of Holdings and its Subsidiaries has (i) good,
sufficient and marketable legal title to (in the case of fee
interests in real property), (ii) valid leasehold interests in
(in the case of leasehold interests in real or personal
property), and (iii) good title to (in the case of all other
personal property), all of their respective properties and assets
reflected in their respective Historical Financial Statements
referred to in Section 4.7 and in the most recent financial
statements delivered pursuant to Section 5.1, in each case except
for assets disposed of since the date of such financial
statements in the ordinary course of business or as otherwise
permitted under Section 6.9. Except as permitted by this
Agreement, all such properties and assets are free and clear of
Liens.
(b) REAL ESTATE. As of the Closing Date, Schedule 4.13 contains a
true, accurate and complete list of (i) all Real Estate Assets,
and (ii) all leases, subleases or assignments of leases (together
with all amendments, modifications, supplements, renewals or
extensions of any thereof) affecting each Real Estate Asset of
any Credit Party, regardless of whether such Credit Party is the
landlord or tenant (whether directly or as an assignee or
successor in interest) under such lease, sublease or assignment.
Each agreement listed in clause (ii) of the immediately preceding
sentence is in full force and effect and Holdings does not have
knowledge of any default that has occurred and is continuing
thereunder, and each such agreement constitutes the legally valid
and binding obligation of each applicable Credit Party,
enforceable against such Credit Party in accordance with its
terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable
principles.
4.14 ENVIRONMENTAL MATTERS. Neither Holdings nor any of its Subsidiaries
nor any of their respective Facilities or operations are subject to
any outstanding written order, consent decree or settlement agreement
with any Person relating to any Environmental Law, any Environmental
Claim, to the knowledge of Holdings or any of its Subsidiaries, or any
Hazardous Materials Activity that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
Neither Holdings nor any of its Subsidiaries has received any letter
or request for information under Section 104 of the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. s.
9604) or any comparable state law. There are and, to each of Holdings'
and its Subsidiaries' knowledge, have been, no conditions,
occurrences, or Hazardous Materials Activities which could reasonably
be expected to form the basis of an Environmental Claim against
Holdings or any of its Subsidiaries that, individually or in the
71
aggregate, could reasonably be expected to have a Material Adverse
Effect. Neither Holdings nor any of its Subsidiaries nor, to any
Credit Party's knowledge, any predecessor of Holdings or any of its
Subsidiaries has filed any notice under any Environmental Law
indicating past or present treatment of Hazardous Materials at any
Facility, and none of Holdings' or any of its Subsidiaries' operations
involves the generation, transportation, treatment, storage or
disposal of hazardous waste, as defined under 40 C.F.R. Parts 260-270
or any state equivalent except for such filings, generation,
transportation, treatment, storage or disposal that could not
reasonably be expected to have a Material Adverse Effect. Compliance
with all current or reasonably foreseeable future requirements
pursuant to or under Environmental Laws could not be reasonably
expected to have, individually or in the aggregate, a Material Adverse
Effect. No event or condition has occurred or is occurring with
respect to Holdings or any of its Subsidiaries relating to any
Environmental Law, any Release of Hazardous Materials, or any
Hazardous Materials Activity which individually or in the aggregate
has had, or could reasonably be expected to have, a Material Adverse
Effect.
4.15 NO DEFAULTS. Neither Holdings nor any of its Subsidiaries is in
default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any of its
Contractual Obligations, and no condition exists which, with the
giving of notice or the lapse of time or both, could constitute such a
default, except where the consequences, direct or indirect, of such
default or defaults, if any, could not reasonably be expected to have
a Material Adverse Effect.
4.16 GOVERNMENTAL REGULATION. Neither Holdings nor any of its Subsidiaries
is subject to regulation under the Public Utility Holding Company Act
of 1935, the Federal Power Act or the Investment Company Act of 1940
or under any other federal or state statute or regulation which may
limit its ability to incur Indebtedness or which may otherwise render
all or any portion of the Obligations unenforceable. Neither Holdings
nor any of its Subsidiaries is a "registered investment company" or is
"controlled" by a "registered investment company" or a "principal
underwriter" of a "registered investment company" as such terms are
defined in the Investment Company Act of 1940.
4.17 MARGIN STOCK. Neither Holdings nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin
Stock. No part of the proceeds of the Loans made to such Credit Party
will be used to purchase or carry any such margin stock or to extend
credit to others for the purpose of purchasing or carrying any such
margin stock or for any purpose that violates, or is inconsistent
with, the provisions of Regulation T, U or X of the Board of Governors
of the Federal Reserve System.
4.18 EMPLOYEE MATTERS. Neither Holdings nor any of its Subsidiaries is
engaged in any unfair labor practice that could reasonably be expected
to have a Material Adverse Effect. There is (a) no unfair labor
practice complaint pending against Holdings or any of its
Subsidiaries, or to the best knowledge of Holdings and Company,
threatened against any of them before the National Labor Relations
Board and no grievance or arbitration proceeding arising out of or
under any collective bargaining agreement that is so pending against
Holdings or any of its Subsidiaries or to the best knowledge of
Holdings and Company, threatened against any of them, (b) no strike or
work stoppage in existence or threatened involving Holdings or any of
its
72
Subsidiaries that could reasonably be expected to have a Material
Adverse Effect, and (c) to the best knowledge of Holdings and Company,
no union representation question existing with respect to the
employees of Holdings or any of its Subsidiaries and, to the best
knowledge of Holdings and Company, no union organization activity that
is taking place, except (with respect to any matter specified in
clause (a), (b) or (c) above, either individually or in the aggregate)
such as is not reasonably likely to have a Material Adverse Effect.
4.19 EMPLOYEE BENEFIT PLANS. Holdings, each of its Subsidiaries and each of
their respective ERISA Affiliates are in material compliance with all
applicable provisions and requirements of ERISA and the Internal
Revenue Code and the regulations and published interpretations
thereunder with respect to each Employee Benefit Plan, and have
substantially performed all their obligations under each Employee
Benefit Plan. Each Employee Benefit Plan which is intended to qualify
under Section 401(a) of the Internal Revenue Code has substantially
met requirements for qualification. No material liability to the PBGC
(other than required premium payments), the Internal Revenue Service,
any Employee Benefit Plan or any Trust established under Title IV of
ERISA has been or is expected to be incurred by Holdings, any of its
Subsidiaries or any of their ERISA Affiliates. No ERISA Event has
occurred or is reasonably expected to occur. Except to the extent
required under Section 4980B of the Internal Revenue Code or similar
state laws, no Employee Benefit Plan provides health or welfare
benefits (through the purchase of insurance or otherwise) for any
retired or former employee of Holdings, any of its Subsidiaries or any
of their respective ERISA Affiliates. As of the most recent valuation
date for any Pension Plan, the amount of benefit liabilities (as
defined in Section 4001(a)(18) of ERISA), individually or in the
aggregate for all Pension Plans (excluding for purposes of such
computation any Pension Plans with respect to which assets exceed
benefit liabilities), does not exceed $3,500,000. As of the most
recent valuation date for each Multiemployer Plan for which the
actuarial report is available, the potential liability of Holdings,
its Subsidiaries and their respective ERISA Affiliates for a complete
withdrawal from such Multiemployer Plan (within the meaning of Section
4203 of ERISA), when aggregated with such potential liability for a
complete withdrawal from all Multiemployer Plans, based on information
available pursuant to Section 4221(e) of ERISA, does not exceed
$3,500,000. Holdings, each of its Subsidiaries and each of their ERISA
Affiliates have complied with the requirements of Section 515 of ERISA
with respect to each Multiemployer Plan and are not in material
"default" (as defined in Section 4219(c)(5) of ERISA) with respect to
payments to a Multiemployer Plan.
4.20 CERTAIN FEES. No broker's or finder's fee or commission will be
payable with respect hereto or any of the transactions contemplated
hereby, except those broker's and finder's fees otherwise disclosed to
the Agents prior to the Closing Date.
4.21 SOLVENCY. Each Credit Party is and, upon the incurrence of any
Obligation by such Credit Party on any date on which this
representation and warranty is made, will be, Solvent.
4.22 [RESERVED].
4.23 SUBORDINATION OF PERMITTED SELLER NOTES. The subordination provisions
of any Permitted Seller Notes or other Subordinated Indebtedness are
enforceable against the holders thereof, and the Loans and other
Obligations thereunder are and will be within the definition of
73
"Subordinated Indebtedness" or "Subordinated Debt", or similar term,
as applicable, included in such provisions.
4.24 COMPLIANCE WITH STATUTES, ETC. Each of Holdings and its Subsidiaries
is in compliance with all applicable statutes, regulations and orders
of, and all applicable restrictions imposed by, all Governmental
Authorities, in respect of the conduct of its business and the
ownership of its property (including compliance with all applicable
Environmental Laws with respect to any Real Estate Asset or governing
its business and the requirements of any permits issued under such
Environmental Laws with respect to any such Real Estate Asset or the
operations of Holdings or any of its Subsidiaries), except such
non-compliance that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
4.25 DISCLOSURE. No representation or warranty of any Credit Party
contained in any Credit Document or in any other documents,
certificates or written statements (excluding any projections,
pro-forma financial information or estimates) furnished to Lenders by
or on behalf of Holdings or any of its Subsidiaries for use in
connection with the transactions contemplated hereby taken as a whole
contains any untrue statement of a material fact or omits to state a
material fact (known to Holdings or Company, in the case of any
document not furnished by either of them) necessary in order to make
the statements contained herein or therein not misleading in light of
the circumstances in which the same were made. Any projections and pro
forma financial information contained in such materials are based upon
good faith estimates and assumptions believed by Holdings or Company
to be reasonable at the time made, it being recognized by Lenders that
such projections as to future events are not to be viewed as facts and
that actual results during the period or periods covered by any such
projections may differ from the projected results by a material
amount. There are no facts known (or which should upon the reasonable
exercise of diligence be known) to Holdings or Company (other than
matters of a general economic nature) that, individually or in the
aggregate, could reasonably be expected to result in a Material
Adverse Effect and that have not been disclosed herein or in such
other documents, certificates and statements furnished to Lenders for
use in connection with the transactions contemplated hereby.
SECTION 5. AFFIRMATIVE COVENANTS
Each Credit Party covenants and agrees that so long as any Commitment is in
effect and until payment in full of all Obligations, each Credit Party shall
perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 5.
5.1 FINANCIAL STATEMENTS AND OTHER REPORTS. Holdings will deliver to
Administrative Agent and Lenders:
(a) [Reserved];
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available, and in any
event within forty-five (45) days after the end of each of the
first three Fiscal Quarters of each Fiscal Year, the consolidated
balance sheet of Holdings and its Subsidiaries as at the end of
such Fiscal Quarter and the related consolidated statements of
income, stockholders' equity and cash flows of Holdings and its
Subsidiaries for such Fiscal Quarter and for the period from the
beginning of
74
the then current Fiscal Year to the end of such Fiscal Quarter,
setting forth in each case in comparative form the corresponding
figures for the corresponding periods of the previous Fiscal Year
and the corresponding figures from the Financial Plan for the
current Fiscal Year, all in reasonable detail, together with a
Financial Officer Certification and a Narrative Report with
respect thereto;
(c) ANNUAL FINANCIAL STATEMENTS. As soon as available, and in any
event within ninety (90) days after the end of each Fiscal Year,
(i) the consolidated balance sheet of Holdings and its
Subsidiaries as at the end of such Fiscal Year and the related
consolidated statements of income, stockholders' equity and cash
flows of Holdings and its Subsidiaries for such Fiscal Year,
setting forth in each case in comparative form the corresponding
figures for the previous Fiscal Year and the corresponding
figures from the Financial Plan for the Fiscal Year covered by
such financial statements, in reasonable detail, together with a
Financial Officer Certification and a Narrative Report with
respect thereto; and (ii) with respect such consolidated
financial statements a report thereon of independent certified
public accountants of recognized national standing selected by
Holdings, and reasonably satisfactory to Administrative Agent
(which report shall be unqualified as to going concern and scope
of audit, and shall state that such consolidated financial
statements fairly present, in all material respects, the
consolidated financial position of Holdings and its Subsidiaries
as at the dates indicated and the results of their operations and
their cash flows for the periods indicated in conformity with
GAAP applied on a basis consistent with prior years (except as
otherwise disclosed in such financial statements) and that the
examination by such accountants in connection with such
consolidated financial statements has been made in accordance
with generally accepted auditing standards) together with a
written statement by such independent certified public
accountants stating whether, in connection with their audit
examination, any condition or event that constitutes a Default or
an Event of Default under Section 8 hereof has come to their
attention and, if such a condition or event has come to their
attention, specifying the nature and period of existence thereof;
provided that such accountants shall not be liable by reason of
any failure to obtain knowledge of any such Default or Event of
Default that would not be disclosed in the course of their audit
examination;
(d) COMPLIANCE CERTIFICATE. Together with each delivery of financial
statements of Holdings and its Subsidiaries pursuant to Sections
5.1(b) and 5.1(c), a duly executed and completed Compliance
Certificate;
(e) STATEMENTS OF RECONCILIATION AFTER CHANGE IN ACCOUNTING
PRINCIPLES. If, as a result of any change in accounting
principles and policies from those used in the preparation of the
Historical Financial Statements, the consolidated financial
statements of Holdings and its Subsidiaries delivered pursuant to
Section 5.1(b) or 5.1(c) will differ in any material respect from
the consolidated financial statements that would have been
delivered pursuant to such subdivisions had no such change in
accounting principles and policies been made, then, together with
the first delivery of such financial statements after such
change, one or more statements of reconciliation for all such
prior financial statements in form and substance satisfactory to
Administrative Agent;
(f) NOTICE OF DEFAULT. Promptly upon any officer of Holdings or
Company obtaining knowledge (i) of any condition or event that
constitutes a Default or an Event of Default or that notice has
been given to Holdings or Company with respect thereto; (ii) that
any
75
Person has given any notice to Holdings or any of its
Subsidiaries or taken any other action with respect to any event
or condition set forth in Section 8.1(b); or (iii) of the
occurrence of any event or change that has caused or evidences,
either in any case or in the aggregate, a Material Adverse
Effect, a certificate of its Authorized Officers specifying the
nature and period of existence of such condition, event or
change, or specifying the notice given and action taken by any
such Person and the nature of such claimed Event of Default,
Default, default, event or condition, and what action Holdings
has taken, is taking and proposes to take with respect thereto;
(g) NOTICE OF LITIGATION. Promptly upon any officer of Holdings or
Company obtaining knowledge of (i) the institution of, or
non-frivolous threat of, any Adverse Proceeding not previously
disclosed in writing by Company to Lenders, or (ii) any material
development in any Adverse Proceeding that, in the case of either
(i) or (ii) if adversely determined, could be reasonably expected
to have a Material Adverse Effect, or seeks to enjoin or
otherwise prevent the consummation of, or to recover any damages
or obtain relief as a result of, the transactions contemplated
hereby, written notice thereof together with such other
information as may be reasonably available to Holdings or Company
to enable Lenders and their counsel to evaluate such matters;
(h) ERISA. (i) Promptly upon becoming aware of the occurrence any
ERISA Event, a written notice specifying the nature thereof, what
action Holdings, any of its Subsidiaries or any of their
respective ERISA Affiliates has taken, is taking or proposes to
take with respect thereto and, when known, any action taken or
threatened by the Internal Revenue Service, the Department of
Labor or the PBGC with respect thereto; and (ii) with reasonable
promptness, copies of (1) each Schedule B (Actuarial Information)
to the annual report (Form 5500 Series) filed by Holdings, any of
its Subsidiaries or any of their respective ERISA Affiliates with
the Internal Revenue Service with respect to each Pension Plan;
(2) all notices received by Holdings, any of its Subsidiaries or
any of their respective ERISA Affiliates from a Multiemployer
Plan sponsor concerning an ERISA Event; and (3) copies of such
other documents or governmental reports or filings relating to
any Employee Benefit Plan as Administrative Agent shall
reasonably request;
(i) FINANCIAL PLAN. As soon as practicable and in any event no later
than ninety (90) days after the beginning of each Fiscal Year, a
consolidated plan and financial forecast for such Fiscal Year and
the next three succeeding Fiscal Years (a "FINANCIAL PLAN"),
including (i) a forecasted consolidated balance sheet and
forecasted consolidated statements of income and cash flows of
Holdings and its Subsidiaries for each such Fiscal Year, together
with a schedule demonstrating compliance with the financial
covenants required by Section 6.8 and an explanation of the
assumptions on which such forecasts are based and (ii) forecasted
consolidated statements of income and cash flows of Holdings and
its Subsidiaries for each month of the current Fiscal Year,
together with an explanation of the assumptions on which such
forecasts are based;
(j) INSURANCE REPORT. As soon as practicable and in any event by the
last day of each Fiscal Year, a report in form and substance
satisfactory to Administrative Agent outlining all material
insurance coverage maintained as of the date of such report by
Holdings
76
and its Subsidiaries and all material insurance coverage planned
to be maintained by Holdings and its Subsidiaries in the
immediately succeeding Fiscal Year;
(k) NOTICE OF CHANGE IN BOARD OF DIRECTORS. With reasonable
promptness, written notice of any change in the board of
directors (or similar governing body) of Holdings or Company;
(l) NOTICE REGARDING MATERIAL CONTRACTS. Promptly, and in any event
within ten (10) Business Days (i) after any Material Contract of
Holdings or any of its Subsidiaries is terminated or amended in a
manner that is materially adverse to Holdings or such Subsidiary,
as the case may be, or (ii) any new Material Contract is entered
into, a written statement describing such event, with copies of
such material amendments or new contracts, delivered to
Administrative Agent (to the extent such delivery is permitted by
the terms of any such Material Contract; PROVIDED, no such
prohibition on delivery shall be effective if it were bargained
for by Holdings or its applicable Subsidiary with the intent of
avoiding compliance with this Section 5.1(l)), and an explanation
of any actions being taken with respect thereto;
(m) ENVIRONMENTAL REPORTS AND AUDITS. As soon as practicable
following receipt thereof, copies of all environmental audits and
reports with respect to environmental matters at any Facility or
which relate to any environmental liabilities of Holdings or its
Subsidiaries which, in any such case, individually or in the
aggregate, could reasonably be expected to result in a Material
Adverse Effect;
(n) INFORMATION REGARDING COLLATERAL. The Company will furnish to the
Collateral Agent prompt written notice of any change (i) in any
Credit Party's corporate name, (ii) in the location of any Credit
Party's chief executive office, its principal place of business,
any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which
Collateral (other than real property and improvements and
fixtures thereto) owned by it with a book value in excess of
$250,000 is located (including the establishment of any such new
office or facility), (iii) in any Credit Party's identity or
corporate structure or (iv) in any Credit Party's Federal
Taxpayer Identification Number. The Company agrees not to effect
or permit any change referred to in the preceding sentence unless
all filings have been made under the Uniform Commercial Code or
otherwise that are required in order for the Collateral Agent to
continue at all times following such change to have a valid,
legal and perfected security interest in all the Collateral and
for the Collateral at all times following such change to have a
valid, legal and perfected security interest as contemplated in
the Collateral Documents. The Company also agrees promptly to
notify the Collateral Agent if any material portion of the
Collateral is damaged or destroyed;
(o) ANNUAL COLLATERAL VERIFICATIONS. Each year, no later than thirty
(30) days after the delivery of annual financial statements with
respect to the preceding Fiscal Year pursuant to Section 5.1, the
Company shall deliver to the Collateral Agent an Officer's
Certificate (i) either confirming that there has been no change
in such information since the date of the UCC Questionnaire
delivered on the Closing Date or the date of the most recent
certificate delivered pursuant to this Section and/or identifying
such changes and (ii) certifying that all Uniform Commercial Code
financing statements (including fixtures filings, as applicable)
or other appropriate filings, recordings or registrations, have
been filed of record in each
77
governmental, municipal or other appropriate office in each
jurisdiction identified pursuant to clause (i) above to the
extent necessary to protect and perfect the security interests
under the Collateral Documents for a period of not less than 18
months after the date of such certificate (except as noted
therein with respect to any continuation statements to be filed
within such period); and
(p) OTHER INFORMATION. (A) Promptly upon their becoming available,
copies of (i) all financial statements, reports, notices and
proxy statements sent or made available generally by Holdings to
its security holders acting in such capacity or by any Subsidiary
of Holdings to its security holders other than Holdings or
another Subsidiary of Holdings, (ii) all regular and periodic
reports and all registration statements and prospectuses, if any,
filed by Holdings or any of its Subsidiaries with any securities
exchange or with the Securities and Exchange Commission or any
governmental or private regulatory authority, (iii) all press
releases and other statements made available generally by
Holdings or any of its Subsidiaries to the public concerning
material developments in the business of Holdings or any of its
Subsidiaries, and (B) such other information and data with
respect to Holdings or any of its Subsidiaries as from time to
time may be reasonably requested by Administrative Agent or any
Lender.
5.2 EXISTENCE. Except as otherwise permitted under Section 6.9, each
Credit Party will, and will cause each of its Subsidiaries to, at all
times preserve and keep in full force and effect its existence and all
rights and franchises, licenses and permits material to its business;
PROVIDED, no Credit Party or any of its Subsidiaries shall be required
to preserve any such existence, right or franchise, licenses and
permits if such Person's board of directors (or similar governing
body) shall determine that the preservation thereof is no longer
desirable in the conduct of the business of such Person, and that the
loss thereof is not disadvantageous in any material respect to such
Person or to Lenders.
5.3 PAYMENT OF TAXES AND CLAIMS. Each Credit Party will, and will cause
each of its Subsidiaries to, pay all Taxes imposed upon it or any of
its properties or assets or in respect of any of its income,
businesses or franchises before any penalty or fine accrues thereon,
and all claims (including claims for labor, services, materials and
supplies) for sums that have become due and payable and that by law
have or may become a Lien upon any of its properties or assets, prior
to the time when any penalty or fine shall be incurred with respect
thereto; PROVIDED, no such Tax or claim need be paid if it is being
contested in good faith by appropriate proceedings promptly instituted
and diligently conducted, so long as (a) an adequate reserve or other
appropriate provision, as shall be required in conformity with GAAP
shall have been made ~therefore, and (b) in the case of a charge or
claim which has or may become a Lien against any of the Collateral,
such contest proceedings conclusively operate to stay the sale of any
portion of the Collateral to satisfy such Tax or claim. No Credit
Party will, nor will it permit any of its Subsidiaries to, file or
consent to the filing of any consolidated income Tax return with any
Person (other than Holdings or any of its Subsidiaries).
5.4 MAINTENANCE OF PROPERTIES. Each Credit Party will, and will cause each
of its Subsidiaries to, maintain or cause to be maintained in good
repair, working order and condition, ordinary wear and tear excepted,
all material properties used or useful in the business of Holdings and
its Subsidiaries and from time to time will make or cause to be made
all
78
appropriate repairs, renewals and replacements thereof, and each
Credit Party shall defend any Collateral against all Persons at any
time claiming any interest therein other than Permitted Liens.
5.5 INSURANCE. Holdings will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability
insurance, third party property damage insurance, business
interruption insurance and casualty insurance with respect to
liabilities, losses or damage in respect of the assets, properties and
businesses of Holdings and its Subsidiaries as may customarily be
carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses, in each case in
such amounts (giving effect to self-insurance), with such deductibles,
covering such risks and otherwise on such terms and conditions as
shall be customary for such Persons. Without limiting the generality
of the foregoing, Holdings will maintain or cause to be maintained (a)
flood insurance with respect to each Flood Hazard Property that is
located in a community that participates in the National Flood
Insurance Program, in each case in compliance with any applicable
regulations of the Board of Governors of the Federal Reserve System,
and (b) replacement value casualty insurance on the Collateral under
such policies of insurance, with such insurance companies, in such
amounts, with such deductibles, and covering such risks as are at all
times carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses. Each such policy
of insurance shall (i) name Administrative Agent, on behalf of Lenders
as an additional insured thereunder as its interests may appear and
(ii) in the case of each casualty insurance policy, contain a loss
payable clause or endorsement, satisfactory in form and substance to
Administrative Agent, that names Administrative Agent, on behalf of
Lenders as the loss payee thereunder.
5.6 INSPECTIONS. Each Credit Party will, and will cause each of its
Subsidiaries to, permit any authorized representatives designated by
any Lender to visit and inspect any of the properties of any Credit
Party and any of its respective Subsidiaries, to inspect, copy and
take extracts from its and their financial and accounting records, and
to discuss its and their affairs, finances and accounts with its and
their officers and independent public accountants, all upon reasonable
notice and at such reasonable times during normal business hours and
as often as may reasonably be requested; PROVIDED, that each Lender
shall coordinate with Administrative Agent with respect to the
frequency and timing of such visits and inspections so as to
reasonably minimize the burden imposed on each Credit Party and its
Subsidiaries.
5.7 LENDERS MEETINGS. Holdings and Company will, upon the request of
Administrative Agent or Requisite Lenders, participate in a meeting of
Administrative Agent and Lenders once during each Fiscal Year to be
held at Company's corporate offices (or at such other location as may
be agreed to by Company and Administrative Agent) at such time as may
be agreed to by Company and Administrative Agent.
5.8 COMPLIANCE WITH LAWS. Each Credit Party will comply, and shall cause
each of its Subsidiaries and all other Persons, if any, on or
occupying any Facilities to comply, with the requirements of all
applicable laws, rules, regulations and orders of any governmental
authority (including all Environmental Laws), noncompliance with which
could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
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5.9 ENVIRONMENTAL.
(a) ENVIRONMENTAL DISCLOSURE. Holdings will deliver to Administrative
Agent and Lenders:
(i) as soon as practicable following receipt thereof, copies of
all environmental audits, investigations, analyses and
reports of any kind or character, whether prepared by
personnel of Holdings or any of its Subsidiaries or by
independent consultants, governmental authorities or any
other Persons, with respect to significant environmental
matters at any Facility or with respect to any known
Environmental Claims;
(ii) promptly upon the occurrence thereof, written notice
describing in reasonable detail (1) any Release required to
be reported to any federal, state or local governmental or
regulatory agency under any applicable Environmental Laws,
(2) any remedial action taken by Holdings or any other
Person in response to (A) any Hazardous Materials Activities
the existence of which has a reasonable possibility of
resulting in one or more Environmental Claims having,
individually or in the aggregate, a Material Adverse Effect,
or (B) any Environmental Claims that, individually or in the
aggregate, have a reasonable possibility of resulting in a
Material Adverse Effect, and (3) Holdings or Company's
discovery of any occurrence or condition on any real
property adjoining or in the vicinity of any Facility that
could cause such Facility or any part thereof to be subject
to any material restrictions on the ownership, occupancy,
transferability or use thereof under any Environmental Laws;
(iii) as soon as practicable following the sending or receipt
thereof by Holdings or any of its Subsidiaries, a copy of
any and all material written communications with respect to
(1) any Environmental Claims that, individually or in the
aggregate, have a reasonable possibility of giving rise to a
Material Adverse Effect, (2) any Release required to be
reported to any federal, state or local governmental or
regulatory agency, and (3) any request for information from
any governmental agency that suggests such agency is
investigating whether Holdings or any of its Subsidiaries
may be potentially responsible for any Hazardous Materials
Activity that has a reasonable possibility of giving rise to
a Material Adverse Effect;
(iv) prompt written notice describing in reasonable detail (1)
any proposed acquisition of stock, assets, or property by
Holdings or any of its Subsidiaries that could reasonably be
expected to (A) expose Holdings or any of its Subsidiaries
to, or result in, Environmental Claims that could reasonably
be expected to have, individually or in the aggregate, a
Material Adverse Effect or (B) affect the ability of
Holdings or any of its Subsidiaries to maintain in full
force and effect all material Governmental Authorizations
required under any Environmental Laws for their respective
operations and (2) any proposed action to be taken by
Holdings or any of its Subsidiaries to modify current
operations in a manner that could reasonably be expected to
subject Holdings or any of its Subsidiaries to any
additional material obligations or requirements under any
Environmental Laws; and
(v) with reasonable promptness, such other documents and
information as from time to time may be reasonably requested
by Administrative Agent in relation to any matters disclosed
pursuant to this Section 5.9(a).
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(b) HAZARDOUS MATERIALS ACTIVITIES, ETC. Each Credit Party shall
promptly take, and shall cause each of its Subsidiaries promptly
to take, any and all actions necessary to (i) cure any violation
of applicable Environmental Laws by such Credit Party or its
Subsidiaries that could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, and
(ii) make an appropriate response to any known Environmental
Claim against such Credit Party or any of its Subsidiaries where
failure to do so could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect;
PROVIDED, HOWEVER, that nothing in this Section 5.9(b) shall
preclude any Credit Party or any of its Subsidiaries from
contesting in good faith any such Environmental Claim.
5.10 SUBSIDIARIES. In the event that any Person becomes a Domestic
Subsidiary of Company, Company shall, except with respect to Permitted
Partially-Owned Subsidiaries, (a) promptly cause such Domestic
Subsidiary to become a Guarantor hereunder and a Grantor under the
Pledge and Security Agreement by executing and delivering to
Administrative Agent and Collateral Agent a Counterpart Agreement, and
(b) take all such actions and execute and deliver, or cause to be
executed and delivered, all such Environmental Reports and all such
documents, instruments, agreements, and certificates as are similar to
those described in Sections 3.1(b) and 3.1(h), and to the extent
reasonably requested by Administrative Agent, such documents,
instruments, agreements, and certificates as are similar to those
described in Section 3.1(k). In the event that any Person becomes a
Foreign Subsidiary of Company, and the ownership interests of such
Foreign Subsidiary are owned by Company or by any Domestic Subsidiary
thereof, Company shall, or shall cause such Domestic Subsidiary to,
deliver, all such documents, instruments, agreements, and certificates
as are similar to those described in Sections 3.1(b), and Company
shall take, or shall cause such Domestic Subsidiary to take, all of
the actions referred to in Section 3.1(h)(i) necessary to grant and to
perfect a First Priority Lien in favor of Administrative Agent, for
the benefit of Secured Parties, under the Pledge and Security
Agreement in not more than 65% of such ownership interests. With
respect to each such Subsidiary, Company shall promptly send to
Administrative Agent written notice setting forth with respect to such
Person (i) the date on which such Person became a Subsidiary of
Company, and (ii) all of the data required to be set forth in
Schedules 4.1 and 4.2 with respect to all Subsidiaries of Company;
PROVIDED, such written notice shall be deemed to supplement Schedules
4.1 and 4.2 for all purposes hereof.
5.11 ADDITIONAL MATERIAL REAL ESTATE ASSETS. In the event that any Credit
Party acquires a Material Real Estate Asset or a Real Estate Asset
owned on the Closing Date becomes a Material Real Estate Asset and
such interest has not otherwise been made subject to the Lien of the
Collateral Documents in favor of Collateral Agent, for the benefit of
Secured Parties, then such Credit Party, contemporaneously with
acquiring such, or when such Real Estate Asset becomes a, Material
Real Estate Asset, shall take all such actions and execute and
deliver, or cause to be executed and delivered, all such Environmental
Reports and all such documents, instruments, agreements, opinions and
certificates similar to those described in Section 3.1(g) with respect
to each such Material Real Estate Asset that Collateral Agent shall
reasonably request to create in favor of Collateral Agent, for the
benefit of Secured Parties, a valid and, subject to any filing and/or
recording referred to herein, perfected First Priority security
interest in such Material Real Estate Assets. In addition to the
foregoing, Company shall, at the request of Requisite Lenders,
deliver, from time to time, to Collateral Agent such appraisals as are
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required by law or regulation of Real Estate Assets with respect to
which Collateral Agent has been granted a Lien.
5.12 INTEREST RATE PROTECTION. No later than ninety (90) days following the
Closing Date and at all times thereafter until the third anniversary
of the Closing Date, Company shall maintain, or caused to be
maintained protection against fluctuations in interest rates pursuant
to one or more Interest Rate Agreements in form and substance
reasonably satisfactory to Administrative Agent and Syndication Agent,
in order to ensure that no less than 25% of the aggregate principal
amount of the total Indebtedness of Holdings and its Subsidiaries as
of the Closing Date is either (i) subject to such Interest Rate
Agreements or (ii) fixed rate Indebtedness.
5.13 FURTHER ASSURANCES. At any time or from time to time upon the request
of Administrative Agent, each Credit Party will, at its expense,
promptly execute, acknowledge and deliver such further documents and
do such other acts and things as Administrative Agent or Collateral
Agent may reasonably request in order to effect fully the purposes of
the Credit Documents. In furtherance and not in limitation of the
foregoing, each Credit Party shall take such actions as Administrative
Agent or Collateral Agent may reasonably request from time to time to
ensure that the Obligations are guarantied by the Guarantors and are
secured by substantially all of the assets of Holdings, and its
Subsidiaries and all of the outstanding Capital Stock of Company and
its Subsidiaries (subject to limitations contained in the Credit
Documents with respect to Foreign Subsidiaries).
5.14 POST-CLOSING COVENANT. Company shall take all such actions to deliver
and/or execute the certificates or documents set forth on Schedule
5.14 within the time frames specified on Schedule 5.14.
SECTION 6. NEGATIVE COVENANTS
Each Credit Party covenants and agrees that, so long as any Commitment is
in effect and until payment in full of all Obligations, such Credit Party shall
perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 6.
6.1 INDEBTEDNESS. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or
guaranty, or otherwise become or remain directly or indirectly liable
with respect to any Indebtedness, except:
(a) the Obligations;
(b) Indebtedness of any Guarantor Subsidiary to Company or to any
other Guarantor Subsidiary, or of Company to any Guarantor
Subsidiary; PROVIDED, (i) all such Indebtedness shall be
evidenced by promissory notes and all such notes shall be subject
to a First Priority Lien pursuant to the Pledge and Security
Agreement, (ii) all such Indebtedness shall be unsecured and
subordinated in right of payment to the payment in full of the
Obligations pursuant to the terms of the applicable promissory
notes or an intercompany subordination agreement that in any such
case, is reasonably satisfactory to Administrative Agent, and
(iii) any payment by any such Guarantor Subsidiary under any
guaranty of the Obligations shall result in a pro tanto reduction
of the amount of any Indebtedness owed by such Subsidiary to
Company or to any of its Subsidiaries for whose benefit such
payment is made;
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(c) (i) Indebtedness incurred by Company with respect to the Existing
Subordinated Notes and (ii) other Indebtedness incurred to
refinance, in whole or in part, Indebtedness under the Existing
Subordinated Notes if the terms and conditions thereof are not
less favorable, taken as a whole, to the obligor thereon or to
the Lenders than the Indebtedness being refinanced and the
average life to maturity thereof is greater than or equal to that
of the Indebtedness being refinanced; PROVIDED, such Indebtedness
permitted under the immediately preceding clause (ii) above shall
(A) not include Indebtedness of an obligor that was not an
obligor with respect to the Indebtedness being refinanced, (B)
not exceed in principal amount (or accreted value, in the case of
any such refinancing Indebtedness issued with a discount) of the
Indebtedness (including the amount of interest and principal (and
premium, if any)) being refinanced PLUS the amount of customary
underwriting discounts, financing fees and commissions and other
reasonable costs and expenses associated with the issuance
thereof, (C) be subordinated to the Obligations on terms which
are not less favorable, taken as a whole, to the Lenders than the
corresponding terms of the Indebtedness being refinanced and (D)
not be incurred, created or assumed if any Default or Event of
Default has occurred and is continuing or would result therefrom;
(d) [Reserved];
(e) Indebtedness incurred by Holdings or any of its Subsidiaries
arising from agreements providing for indemnification, adjustment
of purchase price or similar obligations, or from guaranties or
letters of credit, surety bonds or performance bonds securing the
performance of the Company or any such Subsidiary pursuant to
such agreements, in connection with Permitted Acquisitions or
permitted dispositions of any business, assets or Subsidiary of
Holdings or any of its Subsidiaries;
(f) Indebtedness (i) which may be deemed to exist pursuant to any
guaranties, performance, surety, statutory, appeal or similar
obligations (including, for the sake of clarity, obligations of
the type described in Section 6.2(d)) incurred in the ordinary
course of business or (ii) consisting of reimbursement
obligations in respect of letters of credit issued in connection
with any such obligations;
(g) Indebtedness in respect of netting services, overdraft
protections and otherwise in connection with deposit accounts;
(h) guaranties in the ordinary course of business of the obligations
of suppliers, customers, franchisees and licensees of Holdings
and its Subsidiaries;
(i) guaranties by Company of Indebtedness of a Guarantor Subsidiary
or guaranties by a Subsidiary of Company of Indebtedness of
Company or a Guarantor Subsidiary with respect, in each case, to
Indebtedness otherwise permitted to be incurred pursuant to this
Section 6.1;
(j) Indebtedness described in Schedule 6.1 or otherwise permitted
under this Section 6.1, but not any extensions, renewals or
replacements of such Indebtedness except (i) renewals and
extensions expressly provided for in the agreements evidencing
any such Indebtedness as the same are in effect on the date of
this Agreement and (ii) refinancings and
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extensions of any such Indebtedness if the terms and conditions
thereof are not less favorable to the obligor thereon or to the
Lenders than the Indebtedness being refinanced or extended, and
the average life to maturity thereof is greater than or equal to
that of the Indebtedness being refinanced or extended; PROVIDED,
such Indebtedness permitted under the immediately preceding
clause (i) or (ii) above shall not (A) include Indebtedness of an
obligor that was not an obligor with respect to the Indebtedness
being extended, renewed or refinanced, (B) exceed in a principal
amount the Indebtedness being renewed, extended or refinanced or
(C) incurred, created or assumed if any Default or Event of
Default has occurred and is continuing or would result therefrom;
(k) Indebtedness with respect to Capital Leases in an aggregate
amount not to exceed at any time $15,000,000;
(l) purchase money Indebtedness in an aggregate amount not to exceed
at any time $6,000,000 (including any Indebtedness acquired in
connection with a Permitted Acquisition); PROVIDED, any such
Indebtedness (i) shall be secured only to the asset acquired in
connection with the incurrence of such Indebtedness, and (ii)
shall constitute not less than 75% of the aggregate consideration
paid with respect to such asset;
(m) Permitted Seller Notes (i) issued by Holdings as consideration in
Permitted Acquisitions; PROVIDED, that the aggregate principal
amount of such Permitted Seller Notes issued by Holdings shall
not exceed $17,500,000; and (ii) issued by Company as
consideration in Permitted Acquisitions; PROVIDED, that the
aggregate amount of such Permitted Seller Notes issued by Company
shall not exceed $7,500,000;
(n) Earn-Out Obligations incurred by Holdings constituting
consideration payable in connection with Permitted Acquisitions;
PROVIDED, that the maximum aggregate exposure, as reasonably
estimated by management under all such Earn-Out Obligations shall
not exceed $12,000,000 at any time outstanding;
(o) A Subsidiary acquired pursuant to a Permitted Acquisition may
become or remain liable with respect to Indebtedness of such
Subsidiary existing at the time of the acquisition of such
Subsidiary by Company or any of its Subsidiaries and, a
Subsidiary may become liable with respect to Indebtedness secured
by assets acquired pursuant to a Permitted Acquisition; provided
that (i) such Indebtedness was not incurred in connection with,
or in anticipation of, such Permitted Acquisition, and (ii) the
aggregate principal amount of all such Indebtedness at any time
outstanding does not exceed $10,000,000;
(p) Indebtedness of Company or any of its Subsidiaries to a Person to
the extent incurred in connection with a Permitted Acquisition of
a portion or all of the Capital Stock of a Permitted
Partially-Owned Subsidiary and any guaranty of such Indebtedness
by Holdings, in an aggregate principal amount not to exceed at
any time outstanding $2,500,000;
(q) Holdings and its Subsidiaries may incur the post-Closing Date
obligations to pay Transaction Costs;
(r) Indebtedness of Holdings constituting Investments by Company
permitted under Section 6.7 hereof;
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(s) other unsecured Indebtedness of Holdings and its Subsidiaries
(other than with respect to Permitted Seller Notes), in an
aggregate amount not to exceed at any time $20,000,000;
(t) the guaranty by Holdings of Indebtedness of Company pursuant to
the Existing Subordinated Notes; PROVIDED, that such guaranty is
unsecured and subordinated to the Obligations; and
(u) Indebtedness of Holdings or Company comprised of Take Out
Securities.
6.2 LIENS. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or
permit to exist any Lien on or with respect to any property or asset
of any kind (including any document or instrument in respect of goods
or accounts receivable) of Holdings or any of its Subsidiaries,
whether now owned or hereafter acquired, or any income or profits
therefrom, or file or permit the filing of, or permit to remain in
effect, any financing statement or other similar notice of any Lien
with respect to any such property, asset, income or profits under the
UCC of any State or under any similar recording or notice statute,
except:
(a) Liens in favor of Collateral Agent for the benefit of Secured
Parties granted pursuant to any Credit Document;
(b) Liens for Taxes if obligations with respect to such Taxes are
being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted;
(c) statutory Liens of landlords, banks (and rights of set-off), of
carriers, warehousemen, mechanics, repairmen, workmen and
materialmen, and other Liens imposed by law (other than any such
Lien imposed pursuant to Section 401 (a)(29) or 412(n) of the
Internal Revenue Code or by ERISA), in each case incurred in the
ordinary course of business (i) for amounts not yet overdue or
(ii) for amounts that are overdue and that (in the case of any
such amounts overdue for a period in excess of five days) are
being contested in good faith by appropriate proceedings, so long
as such reserves or other appropriate provisions, if any, as
shall be required by GAAP shall have been made for any such
contested amounts;
(d) Liens incurred in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other
types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money or other
Indebtedness), so long as no foreclosure, sale or similar
proceedings have been commenced with respect to any portion of
the Collateral on account thereof;
(e) easements, rights-of-way, restrictions, encroachments, and other
minor defects or irregularities in title, in each case which do
not and will not interfere in any material respect with the
ordinary conduct of the business of Holdings or any of its
Subsidiaries;
(f) any interest or title of a lessor, sublessor, lessee or
sub-lessee under any lease of real estate permitted hereunder;
85
(g) Liens solely on any xxxx xxxxxxx money deposits made by Holdings
or any of its Subsidiaries in connection with any letter of
intent or purchase agreement entered into by it as permitted
hereunder;
(h) purported Liens evidenced by the filing of precautionary UCC
financing statements relating solely to operating leases of
personal property entered into in the ordinary course of
business;
(i) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection
with the importation of goods;
(j) any zoning or similar law or right reserved to or vested in any
governmental office or agency to control or regulate the use of
any real property;
(k) licenses of patents, trademarks and other intellectual property
rights granted by Holdings or any of its Subsidiaries in the
ordinary course of business and not interfering in any respect
with the ordinary conduct of the business of Company or such
Subsidiary;
(l) Liens described in Schedule 6.2 or on a title report delivered in
connection with Section 3.1(g)(iv);
(m) Liens securing Indebtedness permitted pursuant to Section 6.1(k)
and 6.1(l); provided, any such Lien shall encumber only the asset
acquired with the proceeds of such Indebtedness;
(n) Liens on assets acquired pursuant to a Permitted Acquisition, so
long as such Liens were not created in anticipation of such
Permitted Acquisition; and
(o) Liens in replacement of any of the foregoing to the extent that
they do not cover additional property or secure additional
obligations than the Liens which they replace.
6.3 EQUITABLE LIEN. If any Credit Party or any of its Subsidiaries shall
create or assume any Lien upon any of its properties or assets,
whether now owned or hereafter acquired, other than Permitted Liens,
it shall make or cause to be made effective provisions whereby the
Obligations will be secured by such Lien equally and ratably with any
and all other Indebtedness secured thereby as long as any such
Indebtedness shall be so secured; PROVIDED, notwithstanding the
foregoing, this covenant shall not be construed as a consent by
Requisite Lenders to the creation or assumption of any such Lien not
otherwise permitted hereby.
6.4 NO FURTHER NEGATIVE PLEDGES. Except with respect to (a) specific
property encumbered to secure payment of particular Indebtedness or to
be sold pursuant to an executed agreement with respect to a permitted
Asset Sale and (b) restrictions by reason of customary provisions
restricting assignments, subletting or other transfers contained in
leases, licenses and similar agreements entered into in the ordinary
course of business (PROVIDED that such restrictions are limited to the
property or assets secured by such Liens or the property or assets
subject to such leases, licenses or similar agreements, as the case
may be) no Credit Party nor any of its
86
Subsidiaries shall enter into any agreement prohibiting the creation
or assumption of any Lien upon any of its properties or assets,
whether now owned or hereafter acquired.
6.5 RESTRICTED JUNIOR PAYMENTS. No Credit Party shall, nor shall it permit
any of its Subsidiaries to, directly or indirectly, declare, order,
pay, make or set apart any sum for any Restricted Junior Payment
except the following shall be permitted:
(a) [Reserved];
(b) Company may make regularly scheduled payments (but not voluntary
prepayments) in respect of (i) the Existing Subordinated Notes in
accordance with the terms of, and only to the extent required by,
and subject to the subordination provisions contained in, the
Existing Subordinated Note Indenture and (ii) any repurchase or
repayment of the Existing Subordinated Notes with the proceeds of
any refinancing of the Existing Subordinated Notes permitted
under Section 6.1(c);
(c) So long as no Default or Event of Default shall have occurred and
be continuing or shall be caused thereby, Company may make
regularly scheduled payments of interest on any Take Out
Securities; PROVIDED that (i) the aggregate amount of any such
interest payments shall not exceed $10,000,000 in any Fiscal Year
and (ii) at the time of such Restricted Junior Payment, and after
giving effect thereto, Company shall be in pro forma compliance
with the covenants set forth in Section 6.8 as of the last day of
the most recently ended Fiscal Quarter after giving effect to
such payments;
(d) So long as no Default or Event of Default shall have occurred and
be continuing or shall be caused thereby, Company may consummate
the Tender Offer or effect the Redemption in accordance with the
terms of the Existing Subordinated Note Indenture;
(e) Subsidiaries of Company may make Restricted Junior Payments by
way of dividends to its shareholders proportionate to their
respective holdings;
(f) Holdings may make regularly scheduled payments in respect of (i)
Permitted Seller Notes in accordance with the terms of, and only
to the extent required by, and subject to the subordination
provisions contained in, the agreement pursuant to which such
Permitted Seller Notes were issued or were otherwise subject, and
(ii) Earn-Out Obligations in accordance with the terms of, and
only to the extent required by, and subject to the subordination
provisions contained in, the documents related to the relevant
Permitted Acquisition;
(g) Company and any of its Subsidiaries may issue Indebtedness
pursuant to Section 6.1(p) and may make regularly scheduled
payments in respect of such Indebtedness and Company and its
Subsidiaries may make Restricted Junior Payments to make a
Permitted Acquisition of a portion or all of the Capital Stock of
a Permitted Partially-Owned Subsidiary; provided that (i) the
aggregate amount of such Restricted Junior Payments do not exceed
$750,000 in any Fiscal Year, and (ii) the aggregate principal
amount of any such Indebtedness outstanding pursuant to Section
6.1(p) does not exceed at any time $2,500,000 in the aggregate;
(h) Company may make Restricted Junior Payments to Holdings to the
extent required to enable Holdings (i) to make scheduled payments
of principal and interest on the
87
Permitted Seller Notes and (ii) to make payments on Earn-Out
Obligations in accordance with the terms of, and only to the
extent required by, the documents related to the relevant
Permitted Acquisition, so long as Holdings applies the amount of
any such Restricted Junior Payment for such purpose; PROVIDED,
that at the time of such Restricted Junior Payment pursuant to
this clause (h) and immediately after giving effect thereto, no
Event of Default shall have occurred and be continuing under
Section 8.1(a), Section 8.1(c) or Section 8.1(e);
(i) [Reserved];
(j) Holdings may repurchase shares of Capital Stock of Holdings held
by officers and employees of Holdings and its Subsidiaries upon
the termination of the employment of such officers and employees;
PROVIDED, HOWEVER, that the amount of such repurchase shall not
exceed in any Fiscal Year the sum of (1) $1,500,000 PLUS (2) the
unutilized portion of such $1,500,000 from the immediately
preceding Fiscal Year;
(k) Company may make Restricted Junior Payments to Holdings to the
extent required to enable Holdings to make the repurchases
permitted pursuant to Section 6.5(j), so long as Holdings applies
the amount of any such Restricted Junior Payment for such
purpose;
(l) [Reserved];
(m) so long as no Default or Event of Default shall have occurred and
be continuing or shall be caused thereby, Company may make
Restricted Junior Payments to Holdings, to the extent necessary
to permit Holdings to pay reasonable general administrative costs
and expenses and (ii) to the extent necessary to permit Holdings
to discharge the consolidated tax liabilities of Holdings and its
Subsidiaries, in each case so long as Holdings applies the amount
of any such Restricted Junior Payment for such purpose;
(n) [Reserved];
(o) Company or any of its Subsidiaries may purchase any additional
portion, or all, of the Capital Stock of any Permitted
Partially-Owned Subsidiary in accordance with Section 6.9(h); and
(p) So long as no Default or Event of Default shall have occurred and
be continuing or shall be caused thereby, Holdings may repurchase
shares of Capital Stock of Holdings; PROVIDED, HOWEVER, that the
amount of such repurchase shall not exceed (1) $15,000,000 at any
time if the Leverage Ratio at the time of such repurchase and
after giving effect thereto is greater than or equal to 2.00:1.00
or (2) $75,000,000 at any time if the Leverage Ratio at the time
of such repurchase and after giving effect thereto is less than
2.00:1.00.
6.6 RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS. Except as provided herein,
no Credit Party shall, nor shall it permit any of its Subsidiaries to,
create or otherwise cause or suffer to exist or become effective any
consensual encumbrance or restriction of any kind on the ability of
any Subsidiary of Company to (a) pay dividends or make any other
distributions on any of such Subsidiary's Capital Stock owned by
Company or any other Subsidiary of Company, (b) repay or prepay any
Indebtedness owed by such Subsidiary to Company or any other
Subsidiary of Company, (c) make loans or advances to Company or any
other Subsidiary of Company, or
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(d) transfer any of its property or assets to Company or any other
Subsidiary of Company other than restrictions (i) in agreements
evidencing Indebtedness permitted by Section 6.1(k), Section 6.1(l)
and Section 6.1(o) that impose restrictions on the transfer of
property so acquired or securing such Indebtedness and (ii) by reason
of customary provisions restricting assignments, subletting or other
transfers contained in leases, licenses, joint venture agreements and
similar agreements entered into in the ordinary course of business,
and (iii) that are or were created by virtue of any transfer of,
agreement to transfer or option or right with respect to any property,
assets or Capital Stock not otherwise prohibited under this Agreement.
6.7 INVESTMENTS. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, make or own any Investment in
any Person, including without limitation any Joint Venture, except:
(a) [Reserved];
(b) Cash Equivalents;
(c) equity Investments owned as of the Closing Date in any Subsidiary
and Investments made after the Closing Date in any Subsidiary of
Company;
(d) Investments (i) in accounts receivable arising and trade credit
granted in the ordinary course of business and in any Securities
received in satisfaction or partial satisfaction thereof from
financially troubled account debtors and (ii) deposits,
prepayments and other credits to suppliers made in the ordinary
course of business consistent with the past practices of Holdings
and its Subsidiaries;
(e) intercompany loans to the extent permitted under Section 6.1(b);
(f) Consolidated Capital Expenditures permitted by Section 6.8(e);
(g) loans and advances to employees of Holdings and its Subsidiaries
made in the ordinary course of business, including to purchase
Capital Stock of Holdings, in an aggregate principal amount not
to exceed $2,000,000 at any one time outstanding; PROVIDED,
HOWEVER, that the amount allocable to loans and advances to
purchase Capital Stock of Holdings shall not exceed $1,000,000 in
the aggregate; PROVIDED, FURTHER, HOWEVER, that the proceeds
received by Holdings of such purchase of Holdings' Capital Stock,
shall be used by Holdings to acquire Capital Stock of Company or
otherwise used to make a common equity contribution to Company or
to repay loans or advances made to Holdings by Company pursuant
to Section 6.7(i);
(h) the payment of Transaction Costs;
(i) loans and advances from Company to Holdings to permit Holdings to
make payments contemplated to be made pursuant to Section 6.5
hereof;
(j) Investments made to purchase the Capital Stock of any Subsidiary
of Company from a Person who is not an Affiliate of Company and
loans and advances to Persons permitted pursuant to Section
6.9(g) to purchase Capital Stock of any Subsidiary of Company in
order to allow such purchases;
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(k) Investments made in connection with Permitted Acquisitions
permitted pursuant to Section 6.9;
(l) Investments described in Schedule 6.7; and
(m) other Investments in an aggregate amount not to exceed at any
time $20,000,000.
6.8 FINANCIAL COVENANTS.
(a) [Reserved].
(b) FIXED CHARGE COVERAGE RATIO. Company shall not permit the Fixed
Charge Coverage Ratio as of the last day of any Fiscal Quarter,
beginning with the Fiscal Quarter ending June 30, 2005, to be
less than the correlative ratio indicated:
----------------------- ---------------------
FIXED CHARGE
FISCAL QUARTER COVERAGE RATIO
----------------------- ---------------------
June 30, 2005 and 1.20:1.00
thereafter
----------------------- ---------------------
(c) LEVERAGE RATIO. Company shall not permit the Leverage Ratio as of
the last day of any Fiscal Quarter, beginning with the Fiscal
Quarter ending June 30, 2005, to exceed the correlative ratio
indicated:
----------------------- ---------------------
LEVERAGE
FISCAL QUARTER RATIO
----------------------- ---------------------
June 30, 2005 3.25:1.00
September 30, 2005 3.25:1.00
December 31, 2005 3.25:1.00
March 31, 2006 3.00:1.00
June 30, 2006 3.00:1.00
September 30, 2006 3.00:1.00
December 31, 2006 3.00:1.00
March 31, 2007 2.75:1.00
June 30, 2007 2.75:1.00
September 30, 2007 2.75:1.00
December 31, 2007 2.75:1.00
March 31, 2008 2.50:1.00
June 30, 2008 2.50:1.00
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----------------------- ---------------------
LEVERAGE
FISCAL QUARTER RATIO
----------------------- ---------------------
September 30, 2008 2.50:1.00
December 31, 2008 2.50:1.00
March 31, 2009 and 2.25:1.00
thereafter
----------------------- ---------------------
(d) [RESERVED].
(e) MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES. Holdings shall not,
and shall not permit its Subsidiaries to, make or incur
Consolidated Capital Expenditures, in any Fiscal Year beginning
with the Fiscal Year 2005, in an aggregate amount for Holdings
and its Subsidiaries in excess of $40,000,000 in any Fiscal Year;
provided, that 50% of any unutilized amount for any Fiscal Year
may be utilized in the next succeeding Fiscal Year, but in no
event shall any amount from any Fiscal Year prior to the
immediately preceding Fiscal Year be utilized in the calculations
of the foregoing.
(f) CERTAIN CALCULATIONS. With respect to any period during which a
Permitted Acquisition or an Asset Sale has occurred (each, a
"SUBJECT TRANSACTION"), for purposes of determining compliance
with the financial covenants set forth in this Section 6.8,
Consolidated Adjusted EBITDA shall be calculated with respect to
such period on a pro forma basis (including pro forma adjustments
arising out of events which are directly attributable to a
specific transaction, are factually supportable and are expected
to have a continuing impact, in each case determined on a basis
consistent with Article 11 of Regulation S-X promulgated under
the Securities Act and as interpreted by the staff of the
Securities and Exchange Commission, which would include cost
savings resulting from head count reduction, closure of
facilities and similar restructuring charges, which pro forma
adjustments shall be certified by the chief financial officer of
Company) using the historical audited financial statements, to
the extent available, of any business so acquired or to be
acquired or sold or to be sold and the consolidated financial
statements of Holdings and its Subsidiaries which shall be
reformulated as if such Subject Transaction, and any Indebtedness
incurred or repaid in connection therewith, had been consummated
or incurred or repaid at the beginning of such period (and
assuming that such Indebtedness bears interest during any portion
of the applicable measurement period prior to the relevant
acquisition at the weighted average of the interest rates
applicable to outstanding Loans incurred during such period);
PROVIDED, HOWEVER, calculations of pro forma Consolidated
Adjusted EBITDA with respect to a Permitted Acquisition, the
aggregate consideration for which constitutes $7,500,000 or less,
shall be based on reasonable estimations made by Company of such
pre-acquisition EBITDA based on actual pre-acquisition revenues;
PROVIDED, FURTHER that, such Consolidated Adjusted EBITDA shall
not exceed in such case 20% of such actual pre-acquisition
revenues.
6.9 FUNDAMENTAL CHANGES; DISPOSITION OF ASSETS; ACQUISITIONS. No Credit
Party shall, nor shall it permit any of its Subsidiaries to, enter
into any transaction of merger or consolidation, or liquidate, wind-up
or dissolve itself (or suffer any liquidation or dissolution), or
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convey, sell, lease or sub-lease (as lessor or sublessor), transfer or
otherwise dispose of, in one transaction or a series of transactions,
all or any part of its business, assets or property of any kind
whatsoever, whether real, personal or mixed and whether tangible or
intangible, whether now owned or hereafter acquired, or acquire by
purchase or otherwise (other than purchases or other acquisitions of
inventory, materials and equipment in the ordinary course of business)
the business, property or fixed assets of, or stock or other evidence
of beneficial ownership of, any Person or any division or line of
business or other business unit of any Person, except:
(a) any Subsidiary of Holdings may be merged with or into Company or
any Guarantor Subsidiary, or be liquidated, wound up or
dissolved, or all or any part of its business, property or assets
may be conveyed, sold, leased, transferred or otherwise disposed
of, in one transaction or a series of transactions, to Company or
any Guarantor Subsidiary; PROVIDED, in the case of such a merger,
Company or such Guarantor Subsidiary, as applicable shall be the
continuing or surviving Person;
(b) sales or other dispositions of assets that do not constitute
Asset Sales;
(c) Asset Sales, the proceeds of which (valued at the 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) (i) are less than $5,000,000
with respect to any single Asset Sale or series of related Asset
Sales and (ii) when aggregated with the proceeds of all other
Asset Sales made within the same Fiscal Year, are less than
$15,000,000; PROVIDED (1) the consideration received for such
assets shall be in an amount at least equal to the fair market
value thereof (determined in good faith by the board of directors
of Company (or similar governing body)), (2) no less than 80%
thereof shall be paid in Cash, and (3) the Net Asset Sale
Proceeds thereof shall be applied as required by Section 2.13(a);
(d) leases and subleases (as lessor or sublessor) of real property to
third parties at reasonable rents, taking into consideration any
services provided by lessee or sublessee, in an aggregate amount
not to exceed $1,000,000 in any Fiscal Year;
(e) [Reserved];
(f) disposals of obsolete, worn out, redundant or surplus property;
(g) sales, assignments or other dispositions by Company and any of
its Subsidiaries of the Capital Stock of any of their respective
Subsidiaries to be owned, directly or indirectly, by one or more
licensed veterinarians who will be actively involved in such
Subsidiary; provided that Company designates such Subsidiary as a
Permitted Partially-Owned Subsidiary;
(h) Permitted Acquisitions, the consideration for which constitutes
(i) $110,000,000 or less in the aggregate during the period from
the Closing Date through the end of Fiscal Year 2005 or (ii)
$50,000,000 or less in the aggregate in any Fiscal Year
thereafter; PROVIDED, that $10,000,000 of any unutilized amount
for any Fiscal Year may be utilized in the next immediately
succeeding Fiscal Year (but not in any Fiscal Years thereafter);
PROVIDED, FURTHER, HOWEVER, that with respect to any acquisition
the consideration of which is greater than $15,000,000, Company
shall not make such acquisition without the prior consent of
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Administrative Agent and Syndication Agent, such consent not to
be unreasonably withheld; PROVIDED, FURTHER, HOWEVER, that with
respect to any Permitted Acquisitions made in Canada, such
Permitted Acquisitions shall not exceed $35,000,000 in the
aggregate. In addition, with respect to Permitted Acquisitions of
any additional portion or all of the Capital Stock in any of the
Permitted Partially-Owned Subsidiaries the consideration shall
not exceed $5,000,000 in the aggregate in any Fiscal Year;
PROVIDED, that all Permitted Acquisitions of any additional
portion or all of the Capital Stock in any of the Permitted
Partially-Owned Subsidiaries shall reduce the $50,000,000 amount
set forth above on a dollar for dollar basis;
(i) Sales and lease backs permitted pursuant to Section 6.11; and
(j) Investments made in accordance with Section 6.7.
6.10 DISPOSAL OF SUBSIDIARY INTERESTS. Except for any sale of interests in
the Capital Stock of any of its Subsidiaries in compliance with the
provisions of Section 6.9, no Credit Party shall, (a) directly or
indirectly sell, assign, pledge or otherwise encumber or dispose of
any Capital Stock of any of its Subsidiaries, except to qualify
directors if required by applicable law; or (b) permit any of its
Subsidiaries directly or indirectly to sell, assign, pledge or
otherwise encumber or dispose of any Capital Stock of any of its
Subsidiaries, except to another Credit Party (subject to the
restrictions on such disposition otherwise imposed hereunder), or to
qualify directors if required by applicable law.
6.11 SALES AND LEASE-BACKS. No Credit Party shall, nor shall it permit any
of its Subsidiaries to, directly or indirectly, become or remain
liable as lessee or as a guarantor or other surety with respect to any
lease of any property (whether real, personal or mixed), whether now
owned or hereafter acquired, which such Credit Party (a) has sold or
transferred or is to sell or to transfer to any other Person (other
than Holdings or any of its Subsidiaries), or (b) intends to use for
substantially the same purpose as any other property which has been or
is to be sold or transferred by such Credit Party to any Person (other
than Holdings or any of its Subsidiaries) in connection with such
lease; PROVIDED, HOWEVER, that Company and its Subsidiaries may sell
and lease-back assets in an aggregate amount not to exceed $5,000,000
in any Fiscal Year.
6.12 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES. No Credit Party shall,
nor shall it permit any of its Subsidiaries to, directly or
indirectly, enter into or permit to exist any transaction (including
the purchase, sale, lease or exchange of any property or the rendering
of any service) with any holder of 10% or more of any class of Capital
Stock of Holdings or any of its Subsidiaries or with any Affiliate of
Holdings or of any such holder, on terms that are less favorable to
Holdings or that Subsidiary, as the case may be, than those that might
be obtained at the time from a Person who is not such a holder or
Affiliate; PROVIDED, the foregoing restriction shall not apply to (a)
any transaction between Holdings, Company and any Subsidiary; (b)
reasonable and customary fees paid to members of the board of
directors (or similar governing body) of Holdings and its
Subsidiaries; (c) compensation and management equity arrangements for
officers and other employees of Holdings and its Subsidiaries entered
into in the ordinary course of business; (d) payment of Transaction
Costs to the extent such payments are made to any holder of 10% or
more of any class of Capital Stock of Holdings or any of its
Subsidiaries or to any Affiliate of Holdings or of any such holder;
and (e) sales or purchases by Company or any of its Subsidiaries of
the Capital Stock of a Subsidiary of Company; PROVIDED,
93
that with respect to such sales, Company designates such Subsidiary a
Permitted Partially-Owned Subsidiary, and, with respect to such
purchases, such purchases are permitted pursuant to Sections 6.1(p)
and 6.5(g).
6.13 CONDUCT OF BUSINESS. From and after the Closing Date, no Credit Party
shall, nor shall it permit any of its Subsidiaries to, engage in any
business other than (i) the businesses engaged in by such Credit Party
on the Closing Date and businesses or lines of businesses the same as,
related, complementary or ancillary to, the business in which such
Credit Party is engaged as of the Closing Date and (ii) such other
lines of business as may be consented to by Requisite Lenders.
6.14 PERMITTED ACTIVITIES OF HOLDINGS. Notwithstanding anything to the
contrary contained herein, Holdings shall not (a) incur, directly or
indirectly, any Indebtedness or any other obligation or liability
whatsoever other than the Indebtedness and obligations permitted to be
incurred by Holdings under Section 6.1 (including, without limitation,
Indebtedness and obligations owing to Company, Permitted Seller Notes
and Earn-Out Obligations and Indebtedness and obligations set forth on
Schedule 6.1 for which Holdings is obligor as of the Closing Date),
obligations to pay Transaction Costs, obligations for Taxes and
administrative costs and expenses as contemplated on Sections 6.5(l)
and 6.5(m); (b) create or suffer to exist any Lien upon any property
or assets now owned or hereafter acquired by it other than the Liens
created under the Collateral Documents to which it is a party or
permitted pursuant to Section 6.2; (c) engage in any business or
activity or own any assets other than (i) holding 100% of the Capital
Stock of Company, (ii) performing its obligations and activities
incidental thereto under the Credit Documents, (iii) performing its
obligations under Permitted Seller Notes and Earn-Out Obligations and
for Taxes and administrative costs and expenses as contemplated by
Sections 6.5(l) and 6.5(m); and (iv) making Restricted Junior Payments
and Investments to the extent permitted by this Agreement; (d)
consolidate with or merge with or into, or convey, transfer or lease
all or substantially all its assets to, any Person; (e) sell or
otherwise dispose of any Capital Stock of any of its Subsidiaries
except to the extent permitted by Section 6.9; (f) create or acquire
any Subsidiary or make or own any Investment in any Person other than
Company and other than as permitted under Section 6.7(g); or (g) fail
to hold itself out to the public as a legal entity separate and
distinct from all other Persons.
6.15 [RESERVED].
6.16 AMENDMENTS OR WAIVERS WITH RESPECT TO SUBORDINATED INDEBTEDNESS. No
Credit Party shall, nor shall it permit any of its Subsidiaries to,
amend or otherwise change the terms of any Subordinated Indebtedness,
or make any payment consistent with an amendment thereof or change
thereto, if the effect of such amendment or change is to increase the
interest rate on such Subordinated Indebtedness, change (to earlier
dates) any dates upon which payments of principal or interest are due
thereon, change any event of default or condition to an event of
default with respect thereto (other than to eliminate any such event
of default or increase any grace period related thereto), change the
redemption, prepayment or defeasance provisions thereof, change the
subordination provisions of such Subordinated Indebtedness (or of any
guaranty thereof), or if the effect of such amendment or change,
together with all other amendments or changes made, is to increase
materially the obligations of the obligor thereunder or to confer any
additional rights on the holders of such Subordinated Indebtedness (or
a trustee
94
or other representative on their behalf) which would be adverse to any
Credit Party or Lenders. Notwithstanding the foregoing, any Credit
Party may make any payment with respect to the Existing Subordinated
Notes and amend or supplement the Existing Subordinated Note
Indenture, consistent with the terms of the Offer to Purchase and
Consent Solicitation Statement.
6.17 DESIGNATION OF "SENIOR INDEBTEDNESS". Company shall not designate any
Indebtedness (other than the Obligations) as "Senior Indebtedness" (as
defined in the Existing Subordinated Note Indenture) for purposes of
the Existing Subordinated Note Indenture without the prior written
consent of Requisite Lenders.
6.18 FISCAL YEAR. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, change its Fiscal Year-end from December 31.
SECTION 7. GUARANTY
7.1 GUARANTY OF THE OBLIGATIONS. Subject to the provisions of Section 7.2,
Guarantors jointly and severally hereby irrevocably and
unconditionally guaranty to Administrative Agent for the ratable
benefit of the Beneficiaries the due and punctual payment in full of
all Obligations when the same shall become due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or
otherwise (including amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. s. 362(a)) (collectively, the "GUARANTEED
OBLIGATIONS").
7.2 CONTRIBUTION BY GUARANTORS. All Guarantors desire to allocate among
themselves (collectively, the "CONTRIBUTING GUARANTORS"), in a fair
and equitable manner, their obligations arising under this Guaranty.
Accordingly, in the event any payment or distribution is made on any
date by a Guarantor (a "FUNDING GUARANTOR") under this Guaranty that
exceeds its Fair Share as of such date, such Funding Guarantor shall
be entitled to a contribution from each of the other Contributing
Guarantors in the amount of such other Contributing Guarantor's Fair
Share Shortfall as of such date, with the result that all such
contributions will cause each Contributing Guarantor's Aggregate
Payments to equal its Fair Share as of such date. "FAIR SHARE" means,
with respect to a Contributing Guarantor as of any date of
determination, an amount equal to (a) the ratio of (i) the Fair Share
Contribution Amount with respect to such Contributing Guarantor to
(ii) the aggregate of the Fair Share Contribution Amounts with respect
to all Contributing Guarantors multiplied by (b) the aggregate amount
paid or distributed on or before such date by all Funding Guarantors
under this Guaranty in respect of the obligations Guaranteed. "FAIR
SHARE SHORTFALL" means, with respect to a Contributing Guarantor as of
any date of determination, the excess, if any, of the Fair Share of
such Contributing Guarantor over the Aggregate Payments of such
Contributing Guarantor. "FAIR SHARE CONTRIBUTION AMOUNT" means, with
respect to a Contributing Guarantor as of any date of determination,
the maximum aggregate amount of the obligations of such Contributing
Guarantor under this Guaranty that would not render its obligations
hereunder or thereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of Title 11 of the United States Code
or any comparable applicable provisions of state law; PROVIDED, solely
for purposes of calculating the "FAIR SHARE CONTRIBUTION AMOUNT" with
respect to any Contributing Guarantor for purposes of this Section
7.2, any assets or liabilities of such Contributing Guarantor arising
by virtue of any rights to subrogation, reimbursement or
indemnification or any rights to or obligations of
95
contribution hereunder shall not be considered as assets or
liabilities of such Contributing Guarantor. "AGGREGATE PAYMENTS"
means, with respect to a Contributing Guarantor as of any date of
determination, an amount equal to (1) the aggregate amount of all
payments and distributions made on or before such date by such
Contributing Guarantor in respect of this Guaranty (including, without
limitation, in respect of this Section 7.2), MINUS (2) the aggregate
amount of all payments received on or before such date by such
Contributing Guarantor from the other Contributing Guarantors as
contributions under this Section 7.2. The amounts payable as
contributions hereunder shall be determined as of the date on which
the related payment or distribution is made by the applicable Funding
Guarantor. The allocation among Contributing Guarantors of their
obligations as set forth in this Section 7.2 shall not be construed in
any way to limit the liability of any Contributing Guarantor
hereunder. Each Guarantor is a third party beneficiary to the
contribution agreement set forth in this Section 7.2.
7.3 PAYMENT BY GUARANTORS. Subject to Section 7.2, Guarantors hereby
jointly and severally agree, in furtherance of the foregoing and not
in limitation of any other right which any Beneficiary may have at law
or in equity against any Guarantor by virtue hereof, that upon the
failure of Company to pay any of the Guaranteed Obligations when and
as the same shall become due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise (including
amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. s.
362(a)), Guarantors will upon demand pay, or cause to be paid, in
Cash, to Administrative Agent for the ratable benefit of
Beneficiaries, an amount equal to the sum of the unpaid principal
amount of all Guaranteed Obligations then due as aforesaid, accrued
and unpaid interest on such Guaranteed Obligations (including interest
which, but for Company's becoming the subject of a case under the
Bankruptcy Code, would have accrued on such Guaranteed Obligations,
whether or not a claim is allowed against Company for such interest in
the related bankruptcy case) and all other Guaranteed Obligations then
owed to Beneficiaries as aforesaid.
7.4 LIABILITY OF GUARANTORS ABSOLUTE. Each Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and
unconditional and shall not be affected by any circumstance which
constitutes a legal or equitable discharge of a guarantor or surety
other than payment in full of the Guaranteed Obligations. In
furtherance of the foregoing and without limiting the generality
thereof, each Guarantor agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of
collectability. This Guaranty is a primary obligation of each
Guarantor and not merely a contract of surety;
(b) Administrative Agent may enforce this Guaranty upon the
occurrence of an Event of Default notwithstanding the existence
of any dispute between Company and any Beneficiary with respect
to the existence of such Event of Default;
(c) the obligations of each Guarantor hereunder are independent of
the obligations of Company and the obligations of any other
guarantor (including any other Guarantor) of the obligations of
Company, and a separate action or actions may be brought and
prosecuted against such Guarantor whether or not any action is
brought against Company or any of such other guarantors and
whether or not Company is joined in any such action or actions;
96
(d) payment by any Guarantor of a portion, but not all, of the
Guaranteed Obligations shall in no way limit, affect, modify or
abridge any Guarantor's liability for any portion of the
Guaranteed Obligations which has not been paid. Without limiting
the generality of the foregoing, if Administrative Agent is
awarded a judgment in any suit brought to enforce any Guarantor's
covenant to pay a portion of the Guaranteed Obligations, such
judgment shall not be deemed to release such Guarantor from its
covenant to pay the portion of the Guaranteed Obligations that is
not the subject of such suit, and such judgment shall not, except
to the extent satisfied by such Guarantor, limit, affect, modify
or abridge any other Guarantor's liability hereunder in respect
of the Guaranteed Obligations;
(e) any Beneficiary, upon such terms as it deems appropriate, without
notice or demand and without affecting the validity or
enforceability hereof or giving rise to any reduction,
limitation, impairment, discharge or termination of any
Guarantor's liability hereunder, from time to time may (i) renew,
extend, accelerate, increase the rate of interest on, or
otherwise change the time, place, manner or terms of payment of
the Guaranteed Obligations; (ii) settle, compromise, release or
discharge, or accept or refuse any offer of performance with
respect to, or substitutions for, the Guaranteed Obligations or
any agreement relating thereto and/or subordinate the payment of
the same to the payment of any other obligations; (iii) request
and accept other guaranties of the Guaranteed Obligations and
take and hold security for the payment hereof or the Guaranteed
Obligations; (iv) release, surrender, exchange, substitute,
compromise, settle, rescind, waive, alter, subordinate or modify,
with or without consideration, any security for payment of the
Guaranteed Obligations, any other guaranties of the Guaranteed
Obligations, or any other obligation of any Person (including any
other Guarantor) with respect to the Guaranteed Obligations; (v)
enforce and apply any security now or hereafter held by or for
the benefit of such Beneficiary in respect hereof or the
Guaranteed Obligations and direct the order or manner of sale
thereof, or exercise any other right or remedy that such
Beneficiary may have against any such security, in each case as
such Beneficiary in its discretion may determine consistent
herewith or the applicable Hedge Agreement and any applicable
security agreement, including foreclosure on any such security
pursuant to one or more judicial or nonjudicial sales, whether or
not every aspect of any such sale is commercially reasonable, and
even though such action operates to impair or extinguish any
right of reimbursement or subrogation or other right or remedy of
any Guarantor against Company or any security for the Guaranteed
Obligations; and (vi) exercise any other rights available to it
under the Credit Documents or the Hedge Agreements; and
(f) this Guaranty and the obligations of Guarantors hereunder shall
be valid and enforceable and shall not be subject to any
reduction, limitation, impairment, discharge or termination for
any reason (other than payment in full of the Guaranteed
Obligations), including the occurrence of any of the following,
whether or not any Guarantor shall have had notice or knowledge
of any of them: (i) any failure or omission to assert or enforce
or agreement or election not to assert or enforce, or the stay or
enjoining, by order of court, by operation of law or otherwise,
of the exercise or enforcement of, any claim or demand or any
right, power or remedy (whether arising under the Credit
Documents or the Hedge Agreements, at law, in equity or
otherwise) with respect to the Guaranteed Obligations or any
agreement relating thereto, or with respect to any other guaranty
of or security for the payment of the Guaranteed Obligations;
(ii) any rescission, waiver, amendment or modification of, or any
consent to departure from, any of the terms or provisions
(including provisions relating to events of default) hereof, any
of the
97
other Credit Documents, any of the Hedge Agreements or any
agreement or instrument executed pursuant thereto, or of any
other guaranty or security for the Guaranteed Obligations, in
each case whether or not in accordance with the terms hereof or
such Credit Document, such Hedge Agreement or any agreement
relating to such other guaranty or security; (iii) the Guaranteed
Obligations, or any agreement relating thereto, at any time being
found to be illegal, invalid or unenforceable in any respect;
(iv) the application of payments received from any source (other
than payments received pursuant to the other Credit Documents or
any of the Hedge Agreements or from the proceeds of any security
for the Guaranteed Obligations, except to the extent such
security also serves as collateral for indebtedness other than
the Guaranteed Obligations) to the payment of indebtedness other
than the Guaranteed Obligations, even though any Beneficiary
might have elected to apply such payment to any part or all of
the Guaranteed Obligations; (v) any Beneficiary's consent to the
change, reorganization or termination of the corporate structure
or existence of Holdings or any of its Subsidiaries and to any
corresponding restructuring of the Guaranteed Obligations; (vi)
any failure to perfect or continue perfection of a security
interest in any collateral which secures any of the Guaranteed
Obligations; (vii) any defenses, set-offs or counterclaims which
Company may allege or assert against any Beneficiary in respect
of the Guaranteed Obligations, including failure of
consideration, breach of warranty, payment, statute of frauds,
statute of limitations, accord and satisfaction and usury; and
(viii) any other act or thing or omission, or delay to do any
other act or thing, which may or might in any manner or to any
extent vary the risk of any Guarantor as an obligor in respect of
the Guaranteed Obligations.
7.5 WAIVERS BY GUARANTORS. Each Guarantor hereby waives, for the benefit
of Beneficiaries: (a) any right to require any Beneficiary, as a
condition of payment or performance by such Guarantor, to (i) proceed
against Company, any other guarantor (including any other Guarantor)
of the Guaranteed Obligations or any other Person, (ii) proceed
against or exhaust any security held from Company, any such other
guarantor or any other Person, (iii) proceed against or have resort to
any balance of any Deposit Account or credit on the books of any
Beneficiary in favor of Company or any other Person, or (iv) pursue
any other remedy in the power of any Beneficiary whatsoever; (b) any
defense arising by reason of the incapacity, lack of authority or any
disability or other defense of Company or any other Guarantor
including any defense based on or arising out of the lack of validity
or the unenforceability of the Guaranteed Obligations or any agreement
or instrument relating thereto or by reason of the cessation of the
liability of Company or any other Guarantor from any cause other than
payment in full of the Guaranteed Obligations; (c) any defense based
upon any statute or rule of law which provides that the obligation of
a surety must be neither larger in amount nor in other respects more
burdensome than that of the principal; (d) any defense based upon any
Beneficiary's errors or omissions in the administration of the
Guaranteed Obligations, except behavior which amounts to bad faith;
(e) (i) any principles or provisions of law, statutory or otherwise,
which are or might be in conflict with the terms hereof and any legal
or equitable discharge of such Guarantor's obligations hereunder, (ii)
the benefit of any statute of limitations affecting such Guarantor's
liability hereunder or the enforcement hereof, (iii) any rights to
set-offs, recoupments and counterclaims, and (iv) promptness,
diligence and any requirement that any Beneficiary protect, secure,
perfect or insure any security interest or lien or any property
subject thereto; (f) notices, demands, presentments, protests, notices
of protest, notices of dishonor and notices of any action or inaction,
including acceptance hereof, notices of default hereunder, the Hedge
Agreements or any agreement or instrument related thereto, notices of
any renewal, extension or modification of
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the Guaranteed Obligations or any agreement related thereto, notices
of any extension of credit to Company and notices of any of the
matters referred to in Section 7.4 and any right to consent to any
thereof; and (g) any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate guarantors
or sureties, or which may conflict with the terms hereof.
7.6 GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC. Until the
Guaranteed Obligations shall have been indefeasibly paid in full and
the Revolving Commitments shall have terminated each Guarantor hereby
waives any claim, right or remedy, direct or indirect, that such
Guarantor now has or may hereafter have against Company or any other
Guarantor or any of its assets in connection with this Guaranty or the
performance by such Guarantor of its obligations hereunder, in each
case whether such claim, right or remedy arises in equity, under
contract, by statute, under common law or otherwise and including
without limitation (a) any right of subrogation, reimbursement or
indemnification that such Guarantor now has or may hereafter have
against Company with respect to the Guaranteed Obligations, (b) any
right to enforce, or to participate in, any claim, right or remedy
that any Beneficiary now has or may hereafter have against Company,
and (c) any benefit of, and any right to participate in, any
collateral or security now or hereafter held by any Beneficiary. In
addition, until the Guaranteed Obligations shall have been
indefeasibly paid in full and the Revolving Commitments shall have
terminated each Guarantor shall withhold exercise of any right of
contribution such Guarantor may have against any other guarantor
(including any other Guarantor) of the Guaranteed Obligations,
including, without limitation, any such right of contribution as
contemplated by Section 7.2. Each Guarantor further agrees that, to
the extent the waiver or agreement to withhold the exercise of its
rights of subrogation, reimbursement, indemnification and contribution
as set forth herein is found by a court of competent jurisdiction to
be void or voidable for any reason, any rights of subrogation,
reimbursement or indemnification such Guarantor may have against
Company or against any collateral or security, and any rights of
contribution such Guarantor may have against any such other guarantor,
shall be junior and subordinate to any rights any Beneficiary may have
against Company, to all right, title and interest any Beneficiary may
have in any such collateral or security, and to any right any
Beneficiary may have against such other guarantor. If any amount shall
be paid to any Guarantor on account of any such subrogation,
reimbursement, indemnification or contribution rights at any time when
all Guaranteed Obligations shall not have been paid in full, such
amount shall be held in trust for Administrative Agent on behalf of
Beneficiaries and shall forthwith be paid over to Administrative Agent
for the benefit of Beneficiaries to be credited and applied against
the Guaranteed Obligations, whether matured or unmatured, in
accordance with the terms hereof.
7.7 SUBORDINATION OF OTHER OBLIGATIONS. Any Indebtedness of Company or any
Guarantor now or hereafter held by any Guarantor (the "OBLIGEE
GUARANTOR") is hereby subordinated in right of payment to the
Guaranteed Obligations, and any such indebtedness collected or
received by the Obligee Guarantor after an Event of Default has
occurred and is continuing shall be held in trust for Administrative
Agent on behalf of Beneficiaries and shall forthwith be paid over to
Administrative Agent for the benefit of Beneficiaries to be credited
and applied against the Guaranteed Obligations but without affecting,
impairing or limiting in any manner the liability of the Obligee
Guarantor under any other provision hereof.
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7.8 CONTINUING GUARANTY. This Guaranty is a continuing guaranty and shall
remain in effect until all of the Guaranteed Obligations shall have
been finally and indefeasibly paid in full and the Revolving
Commitments shall have terminated. Each Guarantor hereby irrevocably
waives any right to revoke this Guaranty as to future transactions
giving rise to any Guaranteed Obligations.
7.9 AUTHORITY OF GUARANTORS OR COMPANY. It is not necessary for any
Beneficiary to inquire into the capacity or powers of any Guarantor or
Company or the officers, directors or any agents acting or purporting
to act on behalf of any of them.
7.10 FINANCIAL CONDITION OF COMPANY. Any Credit Extension may be made to
Company or continued from time to time, and any Hedge Agreements may
be entered into from time to time, in each case without notice to or
authorization from any Guarantor regardless of the financial or other
condition of Company at the time of any such grant or continuation or
at the time such Hedge Agreement is entered into, as the case may be.
No Beneficiary shall have any obligation to disclose or discuss with
any Guarantor its assessment, or any Guarantor's assessment, of the
financial condition of Company. Each Guarantor has adequate means to
obtain information from Company on a continuing basis concerning the
financial condition of Company and its ability to perform its
obligations under the Credit Documents and the Hedge Agreements, and
each Guarantor assumes the responsibility for being and keeping
informed of the financial condition of Company and of all
circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations. Each Guarantor hereby waives and relinquishes any duty on
the part of any Beneficiary to disclose any matter, fact or thing
relating to the business, operations or conditions of Company now
known or hereafter known by any Beneficiary.
7.11 BANKRUPTCY, ETC.
(a) So long as any Guaranteed Obligations remain outstanding, no
Guarantor shall, without the prior written consent of
Administrative Agent acting pursuant to the instructions of
Requisite Lenders, commence or join with any other Person in
commencing any bankruptcy, reorganization or insolvency case or
proceeding of or against Company or any other Guarantor. The
obligations of Guarantors hereunder shall not be reduced,
limited, impaired, discharged, deferred, suspended or terminated
by any case or proceeding, voluntary or involuntary, involving
the bankruptcy, insolvency, receivership, reorganization,
liquidation or arrangement of Company or any other Guarantor or
by any defense which Company or any other Guarantor may have by
reason of the order, decree or decision of any court or
administrative body resulting from any such proceeding.
(b) Each Guarantor acknowledges and agrees that any interest on any
portion of the Guaranteed Obligations which accrues after the
commencement of any case or proceeding referred to in clause (a)
above (or, if interest on any portion of the Guaranteed
Obligations ceases to accrue by operation of law by reason of the
commencement of such case or proceeding, such interest as would
have accrued on such portion of the Guaranteed Obligations if
such case or proceeding had not been commenced) shall be included
in the Guaranteed Obligations because it is the intention of
Guarantors and Beneficiaries that the Guaranteed Obligations
which are Guaranteed by Guarantors pursuant hereto should be
determined without regard to any rule of law or order which may
relieve Company of any portion of such Guaranteed Obligations.
Guarantors will permit any trustee in bankruptcy, receiver,
debtor in possession, assignee for the benefit of creditors or
similar person to pay Administrative Agent, or allow the claim of
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Administrative Agent in respect of, any such interest accruing
after the date on which such case or proceeding is commenced.
(c) In the event that all or any portion of the Guaranteed
Obligations are paid by Company, the obligations of Guarantors
hereunder shall continue and remain in full force and effect or
be reinstated, as the case may be, in the event that all or any
part of such payment(s) are rescinded or recovered directly or
indirectly from any Beneficiary as a preference, fraudulent
transfer or otherwise, and any such payments which are so
rescinded or recovered shall constitute Guaranteed Obligations
for all purposes hereunder.
7.12 DISCHARGE OF GUARANTY UPON SALE OF GUARANTOR. If all of the Capital
Stock of any Guarantor or any of its successors in interest hereunder
shall be sold or otherwise disposed of (including by merger or
consolidation) in accordance with the terms and conditions hereof, the
Guaranty of such Guarantor or such successor in interest, as the case
may be, hereunder shall automatically be discharged and released
without any further action by any Beneficiary or any other Person
effective as of the time of such Asset Sale.
Notwithstanding anything in this Agreement or any of the other Credit
Documents to the contrary, the obligations of VCA Real Property
Acquisition Corporation ("VCA GUARANTOR") pursuant to this Agreement
(including, without limitation, the provisions of Section 7 hereof),
that are secured by (i) that certain Mortgage granted by VCA Guarantor
pursuant to this Agreement and to be recorded in Xxxxxxxxxx County,
Maryland, and (ii) that certain Mortgage granted by VCA Guarantor
pursuant to this Agreement and to be recorded in Worcester County,
Maryland (individually, "MARYLAND MORTGAGE," and collectively,
"MARYLAND MORTGAGES"), shall not be, or be deemed to be, primary
obligations of VCA Guarantor, and the enforcement of Lender's rights
under the Maryland Mortgages or either Maryland Mortgage shall be
conditioned and contingent upon the occurrence of an Event of Default
under this Agreement. In the event of a conflict between the foregoing
sentence and any provision of any other Credit Document, the
provisions of the foregoing sentence shall prevail.
SECTION 8. EVENTS OF DEFAULT
8.1 EVENTS OF DEFAULT. If any one or more of the following conditions or
events shall occur:
(a) FAILURE TO MAKE PAYMENTS WHEN DUE. Failure by Company to pay (i)
when due any installment of principal of any Loan, whether at
stated maturity, by acceleration, by notice of voluntary
prepayment, by mandatory prepayment or otherwise; (ii) when due
any amount payable to Issuing Bank in reimbursement of any
drawing under a Letter of Credit; or (iii) any interest on any
Loan or any fee or any other amount due hereunder within five (5)
days after the date due; or
(b) DEFAULT IN OTHER AGREEMENTS. (i) Failure of any Credit Party or
any of their respective Subsidiaries to pay when due any
principal of or interest on or any other amount payable in
respect of one or more items of Indebtedness (other than
Indebtedness referred to in Section 8.1(a)) in a principal amount
of $3,500,000 or more, beyond the grace period, if any, provided
therefore and the holder of such Indebtedness has any rights or
remedies exercisable
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as a result of such failure; or (ii) breach or default by any
Credit Party with respect to any other material term of (1) one
or more items of Indebtedness in the individual or aggregate
principal amounts referred to in clause (i) above or (2) any loan
agreement, mortgage, indenture or other agreement relating to
such item(s) of Indebtedness, in each case beyond the grace
period, if any, provided ~therefore, if the effect of such breach
or default is to cause, or to permit the holder or holders of
that Indebtedness (or a trustee on behalf of such holder or
holders), to cause, that Indebtedness to become or be declared
due and payable (or redeemable) prior to its stated maturity or
the stated maturity of any underlying obligation, as the case may
be; or
(c) BREACH OF CERTAIN COVENANTS. Failure of any Credit Party to
perform or comply with any term or condition contained in Section
2.5, Section 5.2 or Section 6; or
(d) BREACH OF REPRESENTATIONS, ETC. Any representation, warranty,
certification or other statement made or deemed made by any
Credit Party in any Credit Document or in any statement or
certificate at any time given by any Credit Party or any of its
Subsidiaries in writing pursuant hereto or thereto or in
connection herewith or therewith shall be false in any material
respect as of the date made or deemed made; or
(e) OTHER DEFAULTS UNDER CREDIT DOCUMENTS. Any Credit Party shall
default in the performance of or compliance with any term
contained herein or any of the other Credit Documents, other than
any such term referred to in any other Section of this Section
8.1, and such default shall not have been remedied or waived
within thirty (30) days after the earlier of (i) an officer of
such Credit Party becoming aware of such default or (ii) receipt
by Company of notice from Administrative Agent or any Lender of
such default; or
(f) INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. (i) A court
of competent jurisdiction shall enter a decree or order for
relief in respect of Holdings or any of its Subsidiaries (other
than Immaterial Subsidiaries) in an involuntary case under the
Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect, which
decree or order is not stayed; or any other similar relief shall
be granted under any applicable federal or state law; or (ii) an
involuntary case shall be commenced against Holdings or any of
its Subsidiaries (other than Immaterial Subsidiaries) under the
Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect; or a decree
or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over Holdings or
any of its Subsidiaries (other than Immaterial Subsidiaries), or
over all or a substantial part of its property, shall have been
entered; or there shall have occurred the involuntary appointment
of an interim receiver, trustee or other custodian of Holdings or
any of its Subsidiaries (other than Immaterial Subsidiaries) for
all or a substantial part of its property; or a warrant of
attachment, execution or similar process shall have been issued
against any substantial part of the property of Holdings or any
of its Subsidiaries (other than Immaterial Subsidiaries), and any
such event described in this clause (ii) shall continue for sixty
(60) days without having been dismissed, bonded or discharged; or
(g) VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. (i) Holdings
or any of its Subsidiaries (other than Immaterial Subsidiaries)
shall have an order for relief entered with respect to it or
shall commence a voluntary case under the Bankruptcy Code or
under any other
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applicable bankruptcy, insolvency or similar law now or hereafter
in effect, or shall consent to the entry of an order for relief
in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or shall consent to
the appointment of or taking possession by a receiver, trustee or
other custodian for all or a substantial part of its property; or
Holdings or any of its Subsidiaries (other than Immaterial
Subsidiaries) shall make any assignment for the benefit of
creditors; or (ii) Holdings or any of its Subsidiaries (other
than Immaterial Subsidiaries) shall be unable, or shall fail
generally, or shall admit in writing its inability, to pay its
debts as such debts become due; or the board of directors (or
similar governing body) of Holdings or any of its Subsidiaries
(other than Immaterial Subsidiaries) (or any committee thereof)
shall adopt any resolution or otherwise authorize any action to
approve any of the actions referred to herein or in Section
8.1(f); or
(h) JUDGMENTS AND ATTACHMENTS. Any money judgment, writ or warrant of
attachment or similar process involving an amount in excess of
$3,500,000 (to the extent not adequately covered by insurance as
to which a solvent and unaffiliated insurance Company has
acknowledged coverage) shall be entered or filed against Holdings
or any of its Subsidiaries or any of their respective assets and
shall remain undischarged, unvacated, unbonded or unstayed for a
period of sixty (60) days (or in any event later than five days
prior to the date of any proposed sale thereunder); or
(i) DISSOLUTION. Any order, judgment or decree shall be entered
against any Credit Party decreeing the dissolution or split up of
such Credit Party and such order shall remain undischarged or
unstayed for a period in excess of thirty (30) days; or
(j) EMPLOYEE BENEFIT PLANS. There shall occur one or more ERISA
Events which individually or in the aggregate results in or might
reasonably be expected to result in liability of Holdings, any of
its Subsidiaries or any of their respective ERISA Affiliates in
excess of $3,500,000 during the term hereof; there shall exist
one or more facts or circumstances that might reasonably be
expected to result in the imposition of a Lien pursuant to
Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan; or there
shall exist an amount of therefore benefit liabilities (as
defined in Section 4001(a)(18) of ERISA), individually or in the
aggregate for all Pension Plans (excluding for purposes of such
computation any Pension Plans with respect to which assets exceed
benefit liabilities), which exceeds $3,500,000; or
(k) CHANGE OF CONTROL. A Change of Control shall occur; or
(l) GUARANTIES, COLLATERAL DOCUMENTS AND OTHER CREDIT DOCUMENTS. At
any time after the execution and delivery thereof, (i) any
material part of the Guaranty (taking into consideration the
joint and several obligations of the Guarantors in respect of the
Guaranty) for any reason, other than the satisfaction in full of
all Obligations, shall cease to be in full force and effect
(other than in accordance with its terms) or shall be declared to
be null and void or any Guarantor shall repudiate its obligations
thereunder, (ii) this Agreement or any Collateral Document ceases
to be in full force and effect (other than by reason of a release
of Collateral in accordance with the terms hereof or thereof or
the satisfaction in full of the Obligations in accordance with
the terms hereof) or shall be declared null and void, or
Collateral Agent shall not have or shall cease to have a valid
and perfected Lien in any Collateral purported to be
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covered by the Collateral Documents with the priority required by
the relevant Collateral Document, in each case for any reason
other than the failure of Collateral Agent or any Secured Party
to take any action within its control, or (iii) any Credit Party
shall contest the validity or enforceability of any Credit
Document in writing or deny in writing that it has any further
liability, including with respect to future advances by Lenders,
under any Credit Document to which it is a party;
THEN, (1) upon the occurrence of any Event of Default described
in Section 8.1(f) or 8.1(g), automatically, and (2) upon the
occurrence of any other Event of Default, at the request of (or
with the consent of) Requisite Lenders, upon notice to Company by
Administrative Agent, (A) the Revolving Commitments, if any, of
each Lender having such Revolving Commitments and the obligation
of Issuing Bank to issue any Letter of Credit shall immediately
terminate; (B) each of the following shall immediately become due
and payable, in each case without presentment, demand, protest or
other requirements of any kind, all of which are hereby expressly
waived by each Credit Party: (I) the unpaid principal amount of
and accrued interest on the Loans, (II) an amount equal to the
maximum amount that may at any time be drawn under all Letters of
Credit then outstanding (regardless of whether any beneficiary
under any such Letter of Credit shall have presented, or shall be
entitled at such time to present, the drafts or other documents
or certificates required to draw under such Letters of Credit),
and (III) all other Obligations; PROVIDED, the foregoing shall
not affect in any way the obligations of Lenders under Section
2.3(b)(iv) or Section 2.23(e); (C) Administrative Agent may cause
Collateral Agent to enforce any and all Liens and security
interests created pursuant to Collateral Documents; and (D)
Administrative Agent shall direct Company to pay (and Company
hereby agrees upon receipt of such notice, or upon the occurrence
of any Event of Default specified in Sections 8.1(f) and (g) to
pay) to Administrative Agent such additional amounts of cash, to
be held as security for Company's reimbursement Obligations in
respect of Letters of Credit then outstanding, equal to the
Letter of Credit Usage at such time.
Notwithstanding any of the foregoing to the contrary set forth
herein, it shall not constitute an Event of Default hereunder if
any of the circumstances described above in Sections 8.1(f),
8.1(g), 8.1(i) and 8.1(l) shall have occurred with respect to one
or more Subsidiaries of Company which in the aggregate do not
account for more than 2.50% of Company's total Consolidated
Adjusted EBITDA for the four-Fiscal Quarter period most recently
ended.
SECTION 9. AGENTS
9.1 APPOINTMENT OF AGENTS. GSCP and Xxxxx Fargo are hereby appointed Joint
Lead Arrangers, GSCP is hereby appointed Syndication Agent, and UBOC
is hereby appointed Documentation Agent hereunder, and each Lender
hereby authorizes Lead Arrangers, Syndication Agent and Documentation
Agent to act as its agents in accordance with the terms hereof and the
other Credit Documents. Xxxxx Fargo is hereby appointed Administrative
Agent hereunder and under the other Credit Documents and each Lender
hereby authorizes Administrative Agent to act as its agent in
accordance with the terms hereof and the other Credit Documents. Each
Agent hereby agrees to act upon the express conditions contained
herein and the other Credit Documents, as applicable. The provisions
of this Section 9 are solely for the benefit of Agents and Lenders and
no Credit Party shall have any rights as a third party beneficiary of
any of the provisions hereof. In performing its functions and duties
hereunder,
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each Agent shall act solely as an agent of Lenders and does not assume
and shall not be deemed to have assumed any obligation towards or
relationship of agency or trust with or for Holdings or any of its
Subsidiaries. Syndication Agent, without consent of or notice to any
party hereto, may assign any and all of its rights or obligations
hereunder to any of its Affiliates. As of the Closing Date, all the
respective obligations of GSCP and Xxxxx Fargo, in their capacity as
Lead Arrangers, GSCP, in its capacity as Syndication Agent, and UBOC,
in its capacity as Documentation Agent, shall terminate.
9.2 POWERS AND DUTIES. Each Lender irrevocably authorizes each Agent to
take such action on such Lender's behalf and to exercise such powers,
rights and remedies hereunder and under the other Credit Documents as
are specifically delegated or granted to such Agent by the terms
hereof and thereof, together with such powers, rights and remedies as
are reasonably incidental thereto. Each Agent shall have only those
duties and responsibilities that are expressly specified herein and
the other Credit Documents. Each Agent may exercise such powers,
rights and remedies and perform such duties by or through its agents
or employees. No Agent shall have, by reason hereof or any of the
other Credit Documents, a fiduciary relationship in respect of any
Lender; and nothing herein or in any of the other Credit Documents,
expressed or implied, is intended to or shall be so construed as to
impose upon any Agent any obligations in respect hereof or of any of
the other Credit Documents except as expressly set forth herein or
therein.
9.3 GENERAL IMMUNITY.
(a) NO RESPONSIBILITY FOR CERTAIN MATTERS. No Agent shall be
responsible to any Lender for the execution, effectiveness,
genuineness, validity, enforceability, collectability or
sufficiency hereof or of any other Credit Document or for any
representations, warranties, recitals or statements made herein
or therein or made in any written or oral statements or in any
financial or other statements, instruments, reports or
certificates or any other documents furnished or made by any
Agent to Lenders or by or on behalf of any Credit Party, any
Lender or any person providing the Settlement Service to any
Agent or any Lender in connection with the Credit Documents and
the transactions contemplated thereby or for the financial
condition or business affairs of any Credit Party or any other
Person liable for the payment of any Obligations, nor shall any
Agent be required to ascertain or inquire as to the performance
or observance of any of the terms, conditions, provisions,
covenants or agreements contained in any of the Credit Documents
or as to the use of the proceeds of the Loans or as to the
existence or possible existence of any Event of Default or
Default. Anything contained herein to the contrary
notwithstanding, Administrative Agent shall not have any
liability arising from confirmations of the amount of outstanding
Loans or the Letter of Credit Usage or the component amounts
thereof.
(b) EXCULPATORY PROVISIONS. No Agent nor any of its officers,
partners, directors, employees or agents shall be liable to
Lenders for any action taken or omitted by any Agent under or in
connection with any of the Credit Documents except to the extent
caused by such Agent's gross negligence or willful misconduct.
Each Agent shall be entitled to refrain from any act or the
taking of any action (including the failure to take an action) in
connection herewith or any of the other Credit Documents or from
the exercise of any power, discretion or authority vested in it
hereunder or thereunder unless and until such Agent shall have
received instructions in respect thereof from Requisite Lenders
(or such other Lenders as may be required
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to give such instructions under Section 10.5) and, upon receipt
of such instructions from Requisite Lenders (or such other
Lenders, as the case may be), such Agent shall be entitled to act
or (where so instructed) refrain from acting, or to exercise such
power, discretion or authority, in accordance with such
instructions. Without prejudice to the generality of the
foregoing, (i) each Agent shall be entitled to rely, and shall be
fully protected in relying, upon any communication, instrument or
document believed by it to be genuine and correct and to have
been signed or sent by the proper Person or Persons, including
any Settlement Confirmation or other communication issues by any
Settlement Service, and shall be entitled to rely and shall be
protected in relying on opinions and judgments of attorneys (who
may be attorneys for Holdings and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii)
no Lender shall have any right of action whatsoever against any
Agent as a result of such Agent acting or (where so instructed)
refraining from acting hereunder or any of the other Credit
Documents in accordance with the instructions of Requisite
Lenders (or such other Lenders as may be required to give such
instructions under Section 10.5).
(c) DELEGATION OF DUTIES. Administrative Agent may perform any and
all of its duties and exercise its rights and powers under this
Agreement or under any other Credit Document by or through any
one or more sub-agents appointed by Administrative Agent;
PROVIDED, that the appointment of one or more sub-agents shall
not relieve the Administrative Agent of any of its duties or
obligations under this Agreement or any other Credit Documents
and the Administrative Agent shall exercise due care in the
selection and monitoring of any such sub-agent. Administrative
Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their
respective Affiliates. The exculpatory, indemnification and other
provisions of this Section 9.3 and of Section 9.6 shall apply to
any the Affiliates of Administrative Agent and shall apply to
their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities
as Administrative Agent. All of the rights, benefits, and
privileges (including the exculpatory and indemnification
provisions) of this Section 9.3 and of Section 9.6 shall apply to
any such sub-agent and to the Affiliates of any such sub-agent,
and shall apply to their respective activities as sub-agent as if
such sub-agent and Affiliates were named herein. Notwithstanding
anything herein to the contrary, with respect to each sub-agent
appointed by the Administrative Agent, (i) such sub-agent shall
be a third party beneficiary under this Agreement with respect to
all such rights, benefits and privileges (including exculpatory
rights and rights to indemnification) and shall have all of the
rights and benefits of a third party beneficiary, including an
independent right of action to enforce such rights, benefits and
privileges (including exculpatory rights and rights to
indemnification) directly, without the consent or joinder of any
other Person, against any or all of the Credit Parties and the
Lenders, and (ii) such rights, benefits and privileges (including
exculpatory rights and rights to indemnification) shall not be
modified or amended without the consent of such sub-agent. Any
sub-agent shall be obligated to account for all money and other
property handled by it in connection with this Agreement or any
other Credit Document as if it were a party hereto or thereto, as
applicable, as Administrative Agent, but shall otherwise deal
solely with and at the direction of Administrative Agent.
9.4 AGENTS ENTITLED TO ACT AS LENDER. The agency hereby created shall in
no way impair or affect any of the rights and powers of, or impose any
duties or obligations upon, any Agent in its individual capacity as a
Lender hereunder. With respect to its participation in the Loans, each
Agent shall have the same rights and powers hereunder as any other
Lender and may
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exercise the same as if it were not performing the duties and
functions delegated to it hereunder, and the term "Lender" shall,
unless the context clearly otherwise indicates, include each Agent in
its individual capacity. Any Agent and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of
banking, trust, financial advisory or other business with Holdings or
any of its Affiliates as if it were not performing the duties
specified herein, and may accept fees and other consideration from
Company for services in connection herewith and otherwise without
having to account for the same to Lenders.
9.5 LENDERS' REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENT.
(a) Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs
of Holdings and its Subsidiaries in connection with Credit
Extensions hereunder and that it has made and shall continue to
make its own appraisal of the creditworthiness of Holdings and
its Subsidiaries. No Agent shall have any duty or responsibility,
either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of Lenders or to
provide any Lender with any credit or other information with
respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter, and no
Agent shall have any responsibility with respect to the accuracy
of or the completeness of any information provided to Lenders.
(b) Each Lender, by delivering its signature page to this Agreement
or a Joinder Agreement and funding its Term Loan and/or a
Revolving Loan on the Closing Date, shall be deemed to have
acknowledged receipt of, and consented to and approved, each
Credit Document and each other document required to be approved
by any Agent, Requisite Lenders or Lenders, as applicable on the
Closing Date.
9.6 RIGHT TO INDEMNITY. Each Lender, in proportion to its Pro Rata Share,
severally agrees to indemnify each Agent, to the extent that such
Agent shall not have been reimbursed by any Credit Party, for and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including
counsel fees and disbursements) or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against
such Agent in exercising its powers, rights and remedies or performing
its duties hereunder or under the other Credit Documents or otherwise
in its capacity as such Agent in any way relating to or arising out
hereof or the other Credit Documents; PROVIDED, no Lender shall be
liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent's gross negligence or willful
misconduct. If any indemnity furnished to any Agent for any purpose
shall, in the opinion of such Agent, be insufficient or become
impaired, such Agent may call for additional indemnity and cease, or
not commence, to do the acts indemnified against until such additional
indemnity is furnished; PROVIDED, in no event shall this sentence
require any Lender to indemnify any Agent against any liability,
obligation, loss, damage, penalty, action, judgment, suit, cost,
expense or disbursement in excess of such Lender's Pro Rata Share
thereof; and PROVIDED FURTHER, this sentence shall not be deemed to
require any Lender to indemnify any Agent against any liability,
obligation, loss, damage, penalty, action, judgment, suit, cost,
expense or disbursement described in the proviso in the immediately
preceding sentence.
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9.7 SUCCESSOR ADMINISTRATIVE AGENT AND SWING LINE LENDER. Administrative
Agent may resign at any time by giving thirty (30) days' prior written
notice thereof to Lenders and Company, and Administrative Agent may be
removed at any time with or without cause by an instrument or
concurrent instruments in writing delivered to Company and
Administrative Agent and signed by Requisite Lenders. Upon any such
notice of resignation or any such removal, Requisite Lenders shall
have the right, upon five Business Days' notice to Company, to appoint
a successor Administrative Agent. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor
Administrative Agent, that successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Administrative Agent
and the retiring or removed Administrative Agent shall promptly (i)
transfer to such successor Administrative Agent all sums, Securities
and other items of Collateral held under the Collateral Documents,
together with all records and other documents necessary or appropriate
in connection with the performance of the duties of the successor
Administrative Agent under the Credit Documents, and (ii) execute and
deliver to such successor Administrative Agent such amendments to
financing statements, and take such other actions, as may be necessary
or appropriate in connection with the assignment to such successor
Administrative Agent of the security interests created under the
Collateral Documents, whereupon such retiring or removed
Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring or removed Administrative
Agent's resignation or removal hereunder as Administrative Agent, the
provisions of this Section 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent
hereunder. Any resignation or removal of Administrative Agent pursuant
to this Section shall also constitute the resignation or removal of
Xxxxx Fargo or its successor as Swing Line Lender, and any successor
Administrative Agent appointed pursuant to this Section shall, upon
its acceptance of such appointment, become the successor Swing Line
Lender for all purposes hereunder. In such event (a) Company shall
prepay any outstanding Swing Line Loans made by the retiring or
removed Administrative Agent in its capacity as Swing Line Lender, (b)
upon such prepayment, the retiring or removed Administrative Agent and
Swing Line Lender shall surrender any Swing Line Note held by it to
Company for cancellation, and (c) Company shall issue, if so requested
by Successor Administrative Agent and Swing Line Loan Lender, a new
Swing Line Note to the successor Administrative Agent and Swing Line
Lender, in the principal amount of the Swing Line Loan Sublimit then
in effect and with other appropriate insertions.
9.8 COLLATERAL DOCUMENTS AND GUARANTY.
(a) AGENTS UNDER COLLATERAL DOCUMENTS AND GUARANTY. Each Lender
hereby further authorizes Agent, on behalf of and for the benefit
of Lenders, to be the agent for and representative of Lenders
with respect to the Guaranty, the Collateral and the Collateral
Documents. Subject to Section 10.5, without further written
consent or authorization from Lenders, Administrative Agent or
Collateral Agent, as applicable, may execute any documents or
instruments necessary to (i) release any Lien encumbering any
item of Collateral that is the subject of a sale or other
disposition of assets permitted hereby or to which Requisite
Lenders (or such other Lenders as may be required to give such
consent under Section 10.5) have otherwise consented or (ii)
release any Guarantor from the Guaranty pursuant to Section 7.13
or with respect to which Requisite Lenders (or such other Lenders
as may be required to give such consent under Section 10.5) have
otherwise consented.
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(b) RIGHT TO REALIZE ON COLLATERAL AND ENFORCE GUARANTY. Anything
contained in any of the Credit Documents to the contrary
notwithstanding, Company, Administrative Agent, Collateral Agent
and each Lender hereby agree that (i) no Lender shall have any
right individually to realize upon any of the Collateral or to
enforce the Guaranty, it being understood and agreed that all
powers, rights and remedies hereunder may be exercised solely by
Administrative Agent, on behalf of Lenders in accordance with the
terms hereof and all powers, rights and remedies under the
Collateral Documents may be exercised solely by Collateral Agent,
and (ii) in the event of a foreclosure by Collateral Agent on any
of the Collateral pursuant to a public or private sale,
Administrative Agent or any Lender may be the purchaser of any or
all of such Collateral at any such sale and Collateral Agent, as
agent for and representative of Secured Parties (but not any
Lender or Lenders in its or their respective individual
capacities unless Requisite Lenders shall otherwise agree in
writing) shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any
portion of the Collateral sold at any such public sale, to use
and apply any of the Obligations as a credit on account of the
purchase price for any collateral payable by Collateral Agent at
such sale.
SECTION 10. MISCELLANEOUS
10.1 NOTICES. Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given to a
Credit Party, Lead Arrangers, Syndication Agent, Collateral Agent,
Administrative Agent, Swing Line Lender or Issuing Bank, shall be sent
to such Person's address as set forth on Appendix B or in the other
relevant Credit Document, and in the case of any Lender, the address
as indicated on Appendix B or otherwise indicated to Administrative
Agent in writing. Each notice hereunder shall be in writing and may be
personally served, telexed or sent by telefacsimile or United States
mail or courier service and shall be deemed to have been given when
delivered in person or by courier service and signed for against
receipt thereof, upon receipt of telefacsimile or telex, or three
Business Days after depositing it in the United States mail with
postage prepaid and properly addressed; PROVIDED, no notice to any
Agent shall be effective until received by such Agent; PROVIDED
FURTHER, any such notice or other communication shall at the request
of the Administrative Agent be provided to any sub-agent appointed
pursuant to Section 9.3(c) hereto as designated by the Administrative
Agent from time to time.
10.2 EXPENSES. Whether or not the transactions contemplated hereby shall be
consummated, Company agrees to pay promptly (a) all the actual and
reasonable costs and expenses of preparation of the Credit Documents
and any consents, amendments, waivers or other modifications thereto;
(b) all the costs of furnishing all opinions by counsel for Company
and the other Credit Parties; (c) the reasonable and documented fees,
expenses and disbursements of counsel to Agents (in each case
including allocated costs of internal counsel) in connection with the
negotiation, preparation, execution and administration of the Credit
Documents and any consents, amendments, waivers or other modifications
thereto and any other documents or matters requested by Company; (d)
all the actual costs and reasonable and documented expenses of
creating and perfecting Liens in favor of Collateral Agent, for the
benefit of Lenders pursuant hereto, including filing and recording
fees, expenses and taxes, stamp or documentary taxes, search fees,
title insurance premiums and reasonable fees, expenses and
disbursements of counsel to each Agent and of counsel providing any
opinions that any Agent or Requisite Lenders may request in respect of
the Collateral or the Liens created pursuant
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to the Collateral Documents; (e) all the actual costs and reasonable
and documented fees, expenses and disbursements of any auditors,
accountants, consultants or appraisers; (f) all the actual costs and
reasonable and documented expenses (including the reasonable fees,
expenses and disbursements of any appraisers, consultants, advisors
and agents employed or retained by Collateral Agent and its counsel)
in connection with the custody or preservation of any of the
Collateral; (g) all other actual and reasonable and documented costs
and expenses incurred by each Agent in connection with the syndication
of the Loans and Commitments and the negotiation, preparation and
execution of the Credit Documents and any consents, amendments,
waivers or other modifications thereto and the transactions
contemplated thereby; and (h) after the occurrence of a Default or an
Event of Default, all costs and expenses, including reasonable and
documented attorneys' fees (including allocated costs of internal
counsel) and costs of settlement, incurred by any Agent and Lenders in
enforcing any Obligations of or in collecting any payments due from
any Credit Party hereunder or under the other Credit Documents by
reason of such Default or Event of Default (including in connection
with the sale of, collection from, or other realization upon any of
the Collateral or the enforcement of the Guaranty) or in connection
with any refinancing or restructuring of the credit arrangements
provided hereunder in the nature of a "work-out" or pursuant to any
insolvency or bankruptcy cases or proceedings.
10.3 INDEMNITY. In addition to the payment of expenses pursuant to Section
10.2, whether or not the transactions contemplated hereby shall be
consummated, each Credit Party agrees to defend (subject to
Indemnitees' selection of counsel), indemnify, pay and hold harmless,
each Agent and Lender and the officers, partners, directors, trustees,
employees, agents, sub-agents and Affiliates of each Agent and each
Lender (each, an "INDEMNITEE"), from and against any and all
Indemnified Liabilities; PROVIDED, no Credit Party shall have any
obligation to any Indemnitee hereunder with respect to any Indemnified
Liabilities to the extent such Indemnified Liabilities arise from the
gross negligence or willful misconduct of that Indemnitee. To the
extent that the undertakings to defend, indemnify, pay and hold
harmless set forth in this Section 10.3 may be unenforceable in whole
or in part because they are violative of any law or public policy, the
applicable Credit Party shall contribute the maximum portion that it
is permitted to pay and satisfy under applicable law to the payment
and satisfaction of all Indemnified Liabilities incurred by
Indemnitees or any of them. To the extent permitted by applicable law,
no Credit Party shall assert, and each hereby waives, any claim
against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of,
any Credit Document or any agreement or instrument or transaction
contemplated hereby.
10.4 SET-OFF. In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon
the occurrence of any Event of Default each Lender is hereby
authorized by each Credit Party at any time or from time to time
subject to the consent of Administrative Agent (such consent not to be
unreasonably withheld or delayed), without notice to any Credit Party
or to any other Person (other than Administrative Agent), any such
notice being hereby expressly waived, to set off and to appropriate
and to apply any and all deposits (general or special, including
Indebtedness evidenced by certificates of deposit, whether matured or
unmatured, but not including trust accounts) and any other
Indebtedness at any time held or owing by such Lender to or for the
credit or the account of any Credit Party against and on account of
the obligations and liabilities of any Credit Party to such Lender
hereunder, and participations therein and under the other Credit
Documents, including all claims of any nature
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or description arising out of or connected hereto and participations
therein or with any other Credit Document, irrespective of whether or
not (a) such Lender shall have made any demand hereunder or (b) the
principal of or the interest on the Loans or any other amounts due
hereunder shall have become due and payable pursuant to Section 2 and
although such obligations and liabilities, or any of them, may be
contingent or unmatured. Each Credit Party hereby further grants to
Administrative Agent and each Lender a security interest in all
Deposit Accounts maintained with Administrative Agent or such Lender
as security for the Obligations.
10.5 AMENDMENTS AND WAIVERS.
(a) REQUISITE LENDERS' CONSENT. Subject to Section 10.5(b) and
10.5(c), no amendment, modification, termination or waiver of any
provision of the Credit Documents, or consent to any departure by
any Credit Party therefrom, shall in any event be effective
without the written concurrence of the Requisite Lenders.
(b) AFFECTED LENDERS' CONSENT. Without the written consent of each
Lender (other than a Defaulting Lender) that would be affected
thereby, no amendment, modification, termination, or consent
shall be effective if the effect thereof would:
(i) extend the scheduled final maturity of any Loan or Note;
(ii) waive, reduce or postpone any scheduled repayment (but not
prepayment);
(iii) reduce the rate of interest on any Loan (other than any
waiver of any increase in the interest rate applicable to
any Loan pursuant to Section 2.10) or any fee payable
hereunder;
(iv) extend the time for payment of any such interest or fees;
(v) reduce the principal amount of any Loan;
(vi) amend, modify, terminate or waive any provision of this
Section 10.5(b) or Section 10.5(c);
(vii) amend the definition of "REQUISITE LENDERS" or "PRO RATA
SHARE"; PROVIDED, with the consent of Requisite Lenders,
additional extensions of credit pursuant hereto may be
included in the determination of "REQUISITE LENDERS" or "PRO
RATA SHARE" on substantially the same basis as the Term Loan
Commitments, the Term Loans, the Revolving Commitments and
the Revolving Loans are included on the Closing Date;
(viii) release or otherwise subordinate all or substantially all
of the Collateral or all or substantially all of the
Guarantors from the Guaranty except as expressly provided in
the Credit Documents;
(ix) consent to the assignment or transfer by any Credit Party of
any of its rights and obligations under any Credit Document;
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(x) extend the stated expiration date of any Letter of Credit
beyond the Revolving Commitment Termination Date; or
(xi) reduce any reimbursement obligation in respect of any Letter
of Credit.
(c) OTHER CONSENTS. No amendment, modification, termination or waiver
of any provision of the Credit Documents, or consent to any
departure by any Credit Party therefrom, shall:
(i) increase any Revolving Commitment of any Lender over the
amount thereof then in effect without the consent of such
Lender; PROVIDED, no amendment, modification or waiver of
any condition precedent, covenant, Default or Event of
Default shall constitute an increase in any Revolving
Commitment of any Lender;
(ii) amend, modify, terminate or waive any provision hereof
relating to the Swing Line Sublimit or the Swing Line Loans
without the consent of Swing Line Lender;
(iii) amend the definition of "REQUISITE CLASS LENDERS" without
the consent of Requisite Class Lenders of each Class;
PROVIDED, with the consent of the Requisite Lenders,
additional extensions of credit pursuant hereto may be
included in the determination of such "REQUISITE CLASS
LENDERS" on substantially the same basis as the Term Loan
Commitments, the Term Loans, the Revolving Commitments and
the Revolving Loans are included on the Closing Date;
(iv) alter the required application of any repayments or
prepayments as between Classes pursuant to Section 2.14
without the consent of Requisite Class Lenders of each Class
which is being allocated a lesser repayment or prepayment as
a result thereof; PROVIDED, Requisite Lenders may waive, in
whole or in part, any prepayment so long as the application,
as between Classes, of any portion of such prepayment which
is still required to be made is not altered;
(v) amend, modify, terminate or waive any provision of Section 9
as the same applies to any Agent, or any other provision
hereof as the same applies to the rights or obligations of
any Agent, in each case without the consent of such Agent;
or
(vi) amend, modify, terminate or waive any obligation of Lenders
relating to the purchase of participations in Letters of
Credit as provided in Section 2.23(e) without the written
consent of Administrative Agent and of Issuing Bank.
(d) EXECUTION OF AMENDMENTS, ETC. Administrative Agent may, but shall
have no obligation to, with the concurrence of any Lender,
execute amendments, modifications, waivers or consents on behalf
of such Lender. Any waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it
was given. No notice to or demand on any Credit Party in any case
shall entitle any Credit Party to any other or further notice or
demand in similar or other circumstances. Any amendment,
modification, termination, waiver or consent effected in
accordance with this Section 10.5 shall be binding upon each
Lender at the time outstanding, each future Lender and, if signed
by a Credit Party, on such Credit Party.
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(e) REFINANCING TERM LOANS. Notwithstanding anything to the contrary
contained herein, this Agreement may be amended with the written
consent of the Administrative Agent, Company, the holders of not
less than 50.0% of the Revolving Exposure and the Lenders
providing the relevant Replacement Term Loans to permit the
refinancing of all outstanding Term Loans (the "REFINANCED TERM
LOAN") with a replacement term loan tranche hereunder (the
"REPLACEMENT TERM LOANS"), PROVIDED that (a) the aggregate
principal amount of such Replacement Term Loans shall not exceed
the aggregate principal amount of such Refinanced Term Loan, (b)
the interest rate for such Replacement Term Loans shall not be
higher than the interest rate for such Refinanced Term Loan, (c)
the weighted average life to maturity of such Replacement Term
Loans shall not be shorter than the weighted average life to
maturity of such Refinanced Term Loan at the time of such
refinancing and (d) all other terms applicable to such
Replacement Term Loans shall be substantially identical to, or
less favorable to the Lenders providing such Replacement Term
Loans than those applicable to such Refinanced Term Loan, except
to the extent necessary to provide for covenants and other terms
applicable to any period after the latest final maturity of the
Term Loans in effect immediately prior to such refinancing.
10.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS.
(a) GENERALLY. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall
inure to the benefit of the parties hereto and the successors and
assigns of Lenders. No Credit Party's rights or obligations
hereunder nor any interest therein may be assigned or delegated
by any Credit Party without the prior written consent of all
Lenders.
(b) REGISTER. Company, Administrative Agent and Lenders shall deem
and treat the Persons listed as Lenders in the Register as the
holders and owners of the corresponding Commitments and Loans
listed therein for all purposes hereof, and no assignment or
transfer of any such Commitment or Loan shall be effective, in
each case, unless and until recorded in the Register following
receipt of (x) a written or electronic confirmation of an
assignment issued by a Settlement Service pursuant to Section
10.6(d) (a "SETTLEMENT CONFIRMATION") or (y) an Assignment
Agreement effecting the assignment or transfer thereof, in each
case, as provided in Section 10.6(d). Each assignment shall be
recorded in the Register on the Business Day the Settlement
Confirmation or Assignment Agreement is received by the
Administrative Agent, if received by 12:00 p.m New York City
time, and on the following Business Day if received after such
time. Prompt notice thereof shall be provided to Company and a
copy of such Assignment Agreement or Settlement Confirmation
shall be maintained, as applicable. The date of such recordation
of a transfer shall be referred to herein as the "ASSIGNMENT
EFFECTIVE DATE." Any request, authority or consent of any Person
who, at the time of making such request or giving such authority
or consent, is listed in the Register as a Lender shall be
conclusive and binding on any subsequent holder, assignee or
transferee of the corresponding Commitments or Loans.
(c) RIGHT TO ASSIGN. Each Lender shall have the right at any time to
sell, assign or transfer all or a portion of its rights and
obligations under this Agreement, including, without limitation,
all or a portion of its Commitment or Loans owing to it, Note or
Notes held by it, or other Obligation (PROVIDED, HOWEVER, that
each such assignment shall be of a uniform, and not varying,
percentage of all rights and obligations under and in respect of
any Loan and any related Commitments):
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(i) to any Person meeting the criteria of clause (i) of the
definition of the term of "Eligible Assignee" upon the
giving of notice to Company and Administrative Agent; and
(ii) to any Person meeting the criteria of clause (ii) of the
definition of the term of "Eligible Assignee" and, in the
case of assignments of Revolving Loans or Revolving
Commitments to any such Person (except in the case of
assignments made by or to GSCP), consented to by each of
Company and Administrative Agent (such consent not to be (x)
unreasonably withheld or delayed or, (y) in the case of
Company, required at any time an Event of Default shall have
occurred and then be continuing); PROVIDED, FURTHER each
such assignment pursuant to this Section 10.6(c)(ii) shall
be in an aggregate amount of not less than (A) $2,500,000
(or such lesser amount as may be agreed to by Company and
Administrative Agent or as shall constitute the aggregate
amount of the Revolving Commitments and/or Revolving Loans
of the assigning Lender) with respect to the assignment of
the Revolving Commitments and/or Revolving Loans and (B)
$500,000 (or such lesser amount as may be agreed to by
Company and Administrative Agent or as shall constitute the
aggregate amount of the Term Loans or New Term Loans of a
Series of the assigning Lender) with respect to the
assignment of the Term Loans.
(d) MECHANICS. Mechanics. Assignments of Term Loans by Lenders may be
made via an electronic settlement system acceptable to
Administrative Agent as designated in writing from time to time
to the Lenders by Administrative Agent (the "SETTLEMENT
SERVICE"). Each such assignment shall be effected by the
assigning Lender and proposed assignee pursuant to the procedures
then in effect under the Settlement Service, which procedures
shall be consistent with the other provisions of this Section
10.6. Each assignor Lender and proposed assignee shall comply
with the requirements of the Settlement Service in connection
with effecting any transfer of Loans pursuant to the Settlement
Service. Administrative Agent's and Company's consent shall be
deemed to have been granted pursuant to Section 10.6(c)(ii) with
respect to any transfer effected through the Settlement Service.
Subject to the other requirements of this Section 10.6,
assignments and assumptions of Term Loans may also be effected by
manual execution delivery to the Administrative Agent of an
Assignment Agreement with the prior written consent of each of
Company and Administrative Agent (such consent not to be (x)
unreasonably withheld or delayed or (y) in the case of Company,
required at any time an Event of Default shall have occurred and
then be continuing). Initially, assignments and assumptions of
Term Loans shall be effected by such manual execution until
Administrative Agent notifies Lenders to the contrary.
Assignments and assumptions of Revolving Loans or Revolving
Commitments shall only be effected by manual execution and
delivery to the Administrative Agent of an Assignment Agreement.
Assignments made pursuant to the foregoing provision shall be
effective as of the Assignment Effective Date. In connection with
all assignments there shall be delivered to Administrative Agent
such forms, certificates or other evidence, if any, with respect
to United States federal income tax withholding matters as the
assignee under such Assignment Agreement may be required to
deliver pursuant to Section 2.19(c). Notwithstanding anything
herein or in any Assignment Agreement to the contrary and (i)
unless notice to the contrary is delivered to the Lenders from
the Administrative Agent or (ii) so long as no Default or Event
of Default has occurred and is continuing, payment to the
assignor by the assignee in respect of the settlement of an
assignment of any Term Loan (but not any Revolving Loan or
Revolving Commitment) shall include such compensation to the
assignor as may be agreed upon
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by the assignor and the assignee with respect to all unpaid
interest which has accrued on such Term Loan to but excluding the
Assignment Effective Date. On and after the applicable Assignment
Effective Date, the applicable assignee shall be entitled to
receive all interest paid or payable with respect to the assigned
Term Loan, whether such interest accrued before or after the
applicable Assignment Effective Date.
(e) REPRESENTATIONS AND WARRANTIES OF ASSIGNEE. Each Lender, upon
execution and delivery hereof or upon succeeding to an interest
in the Commitments and Loans, as the case may be, represents and
warrants as of the Closing Date or as of the Assignment Effective
Date that (i) it is an Eligible Assignee; (ii) it has experience
and expertise in the making of or investing in commitments or
loans such as the applicable Commitments or Loans, as the case
may be; and (iii) it will make or invest in, as the case may be,
its Commitments or Loans for its own account in the ordinary
course of its business and without a view to distribution of such
Commitments or Loans within the meaning of the Securities Act or
the Exchange Act or other federal securities laws (it being
understood that, subject to the provisions of this Section 10.6,
the disposition of such Commitments or Loans or any interests
therein shall at all times remain within its exclusive control).
(f) EFFECT OF ASSIGNMENT. Subject to the terms and conditions of this
Section 10.6, as of the Assignment Effective Date: (i) the
assignee thereunder shall have the rights and obligations of a
"Lender" hereunder to the extent of its interest in the Loans and
Commitments as reflected in the Register and shall thereafter be
a party hereto and a "LENDER" for all purposes hereof; (ii) the
assigning Lender thereunder shall, to the extent that rights and
obligations hereunder have been assigned to the assignee,
relinquish its rights (other than any rights which survive the
termination hereof under Section 10.8) and be released from its
obligations hereunder (and, in the case of an assignment covering
all or the remaining portion of an assigning Lender's rights and
obligations hereunder, such Lender shall cease to be a party
hereto on the Assignment Effective Date; PROVIDED, anything
contained in any of the Credit Documents to the contrary
notwithstanding, (y) Issuing Bank shall continue to have all
rights and obligations thereof with respect to such Letters of
Credit until the cancellation or expiration of such Letters of
Credit and the reimbursement of any amounts drawn thereunder and
(z) such assigning Lender shall continue to be entitled to the
benefit of all indemnities hereunder as specified herein with
respect to matters arising out of the prior involvement of such
assigning Lender as a Lender hereunder; (iii) the Commitments
shall be modified to reflect the Commitment of such assignee and
any remaining Commitment of such assigning Lender, if any; and
(iv) if any such assignment occurs after the issuance of any Note
hereunder, the assigning Lender shall, upon the effectiveness of
such assignment or as promptly thereafter as practicable,
surrender its applicable Notes to Administrative Agent for
cancellation, and thereupon Company shall issue and deliver new
Notes, if so requested by the assignee and/or assigning Lender,
to such assignee and/or to such assigning Lender, with
appropriate insertions, to reflect the new Commitments and/or
outstanding Loans of the assignee and/or the assigning Lender.
(g) PARTICIPATIONS. Each Lender shall have the right at any time to
sell one or more participations to any Person (other than
Holdings, any of its Subsidiaries or any of its Affiliates) in
all or any part of its Commitments, Loans or in any other
Obligation. The holder of any such participation, other than an
Affiliate of the Lender granting such participation, shall not be
entitled to require such Lender to take or omit to take any
action hereunder except with
115
respect to any amendment modification or waiver that would (i)
extend the final scheduled maturity of any Loan, Note or Letter
of Credit (unless such Letter of Credit is not extended beyond
the Revolving Commitment Termination Date) in which such
participant is participating, or reduce the rate or extend the
time of payment of Interest or Fees thereon (except in connection
with a waiver of applicability of any post-default increase in
interest rates) or reduce the principal amount thereof, or
increase the amount of the participant's participation over the
amount thereof then in effect (it being understood that a waiver
of any Default or Event of Default or of a mandatory reduction in
the Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan
shall be permitted without the consent of any participant if the
participant's participation is not increased as a result
thereof), (ii) consent to the assignment or transfer by any
Credit Party of any of its rights and obligations under this
Agreement or (iii) release all or substantially all of the
Collateral under the Collateral Documents (except as expressly
provided in the Credit Documents) supporting the Loans hereunder
in which such participant is participating. All amounts payable
by any Credit Party hereunder, including amounts payable to such
Lender pursuant to Section 2.17(c), 2.18 or 2.19, shall be
determined as if such Lender had not sold such participation.
Each Credit Party and each Lender hereby acknowledge and agree
that, solely for purposes of Sections 2.16 and 10.4, (1) any
participation will give rise to a direct obligation of each
Credit Party to the participant and (2) the participant shall be
considered to be a "Lender."
(h) CERTAIN OTHER ASSIGNMENTS. In addition to any other assignment
permitted pursuant to this Section 10.6, (i) any Lender may
assign and pledge all or any portion of its Loans, the other
Obligations owed to such Lender, and its Notes, if any, to any
Federal Reserve Bank as collateral security pursuant to
Regulation A of the Board of Governors of the Federal Reserve
System and any operating circular issued by such Federal Reserve
Bank, and (ii) any Lender which is an investment fund may pledge
all or any portion of its Notes, if any, or Loans to its trustee
in support of its obligations to such trustee; PROVIDED, no
Lender, as between Company and such Lender, shall be relieved of
any of its obligations hereunder as a result of any such
assignment and pledge, and provided further, in no event shall
the applicable Federal Reserve Bank or trustee be considered to
be a "Lender" or be entitled to require the assigning Lender to
take or omit to take any action hereunder.
10.7 INDEPENDENCE OF COVENANTS. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be
permitted by an exception to, or would otherwise be within the
limitations of, another covenant shall not avoid the occurrence of a
Default or an Event of Default if such action is taken or condition
exists.
10.8 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements made herein shall survive
the execution and delivery hereof and the making of any Credit
Extension. Notwithstanding anything herein or implied by law to the
contrary, the agreements of each Credit Party set forth in Sections
2.17(c), 2.18, 2.19, 10.2, 10.3 and 10.4 and the agreements of Lenders
set forth in Sections 2.16 and 9.6 shall survive the payment of the
Loans and the reimbursement of any amounts drawn thereunder, and the
termination hereof.
116
10.9 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of any
Agent or any Lender in the exercise of any power, right or privilege
hereunder or under any other Credit Document shall impair such power,
right or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any
such power, right or privilege preclude other or further exercise
thereof or of any other power, right or privilege. The rights, powers
and remedies given to each Agent and each Lender hereby are cumulative
and shall be in addition to and independent of all rights, powers and
remedies existing by virtue of any statute or rule of law or in any of
the other Credit Documents or any of the Hedge Agreements. Any
forbearance or failure to exercise, and any delay in exercising, any
right, power or remedy hereunder shall not impair any such right,
power or remedy or be construed to be a waiver thereof, nor shall it
preclude the further exercise of any such right, power or remedy.
10.10 MARSHALLING; PAYMENTS SET ASIDE. Neither any Agent nor any Lender
shall be under any obligation to marshal any assets in favor of any
Credit Party or any other Person or against or in payment of any or
all of the Obligations. To the extent that any Credit Party makes a
payment or payments to Administrative Agent or Lenders (or to
Administrative Agent, on behalf of Lenders), or Administrative Agent
or Lenders enforce any security interests or exercise their rights of
setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, any other state or federal law, common law
or any equitable cause, then, to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and
all Liens, rights and remedies therefore or related thereto, shall be
revived and continued in full force and effect as if such payment or
payments had not been made or such enforcement or setoff had not
occurred.
10.11 SEVERABILITY. In case any provision in or obligation hereunder or any
Note shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions
or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
10.12 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS. The
obligations of Lenders hereunder are several and no Lender shall be
responsible for the obligations or Commitment of any other Lender
hereunder. Nothing contained herein or in any other Credit Document,
and no action taken by Lenders pursuant hereto or thereto, shall be
deemed to constitute Lenders as a partnership, an association, a joint
venture or any other kind of entity. The amounts payable at any time
hereunder to each Lender shall be a separate and independent debt, and
each Lender shall be entitled to protect and enforce its rights
arising out hereof and it shall not be necessary for any other Lender
to be joined as an additional party in any proceeding for such
purpose.
10.13 ENTIRE AGREEMENT. This Agreement (together with the schedules hereto,
the letter agreements dated the date hereof and making specific
reference hereto, exhibits hereto, annexes hereto and the other
agreements, documents and instruments delivered pursuant hereto) and
the Credit Documents constitute the entire agreement among the parties
or any of them with respect to the subject matter hereof and thereof
and supersede all other prior agreements and
117
understandings, both written and verbal, among the parties or any of
them with respect to the subject matter hereof.
10.14 HEADINGS. Section headings herein are included herein for convenience
of reference only and shall not constitute a part hereof for any other
purpose or be given any substantive effect.
10.15 APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICT
OF LAWS PRINCIPLES THEREOF.
10.16 CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY
CREDIT PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT
DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX
XX XXX XXXX. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH CREDIT
PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM
NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS
ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1; (D) AGREES THAT
SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER
PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES AGENTS AND LENDERS
RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY
OTHER JURISDICTION.
10.17 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO
WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER
CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT
MATTER OF THIS LOAN TRANSACTION OR THE LENDER/COMPANY RELATIONSHIP
THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY
COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS.
118
EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS
ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND
THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE
DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT
HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY
AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL
WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.17 AND
EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS
OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
10.18 CONFIDENTIALITY. Each Lender shall hold all non-public information
obtained pursuant to the requirements hereof which has been identified
as confidential by Company in accordance with such Lender's customary
procedures for handling confidential information of this nature and in
accordance with prudent lending or investing practices, it being
understood and agreed by Company that in any event a Lender may make
disclosures to Affiliates of such Lender (and to other persons
authorized by a Lender or Agent to organize, present or disseminate
such information in connection with disclosures otherwise made in
accordance with this Section 10.18), disclosures reasonably required
by any bona fide or potential assignee, transferee or participant in
connection with the contemplated assignment, transfer or participation
by such Lender of any Loans or any participations therein or by any
direct or indirect contractual counterparties (or the professional
advisors thereto) in Hedge Agreements (PROVIDED, such counterparties
and advisors are advised of and agree to be bound by the provisions of
this Section 10.18) or disclosures required or requested by any
governmental agency or representative thereof or by the NAIC or
pursuant to legal process; PROVIDED, unless specifically prohibited by
applicable law or court order, each Lender shall make reasonable
efforts to notify Company of any request by any governmental agency or
representative thereof (other than any such request in connection with
any examination of the financial condition or other routine
examination of such Lender by such governmental agency) for disclosure
of any such non-public information prior to disclosure of such
information.
10.19 USURY SAVINGS CLAUSE. Notwithstanding any other provision herein, the
aggregate interest rate charged with respect to any of the
Obligations, including all charges or fees in connection therewith
deemed in the nature of interest under applicable law shall not exceed
the Highest Lawful Rate. If the rate of interest (determined without
regard to the preceding sentence) under this Agreement at any time
exceeds the Highest Lawful Rate, the outstanding amount of the Loans
made hereunder shall bear interest at the Highest Lawful Rate until
the total amount of interest due hereunder equals the amount of
interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect.
In addition, if when the Loans made hereunder are repaid in full the
total interest due
119
hereunder (taking into account the increase provided for above) is
less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement
had at all times been in effect, then to the extent permitted by law,
Company shall pay to Administrative Agent an amount equal to the
difference between the amount of interest paid and the amount of
interest which would have been paid if the Highest Lawful Rate had at
all times been in effect. Notwithstanding the foregoing, it is the
intention of Lenders and Company to conform strictly to any applicable
usury laws. Accordingly, if any Lender contracts for, charges, or
receives any consideration which constitutes interest in excess of the
Highest Lawful Rate, then any such excess shall be cancelled
automatically and, if previously paid, shall at such Lender's option
be applied to the outstanding amount of the Loans made hereunder or be
refunded to Company.
10.20 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall
constitute but one and the same instrument.
10.21 ELECTRONIC EXECUTION OF ASSIGNMENTS. The words "execution," "signed,"
"signature," and words of like import in any Assignment Agreement
shall be deemed to include electronic signatures or the keeping of
records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature or
the use of a paper-based recordkeeping system, as the case may be, to
the extent and as provided for in any applicable law, including the
Federal Electronic Signatures in Global and National Commerce Act, the
New York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions Act.
10.22 USA PATRIOT ACT. Each Lender hereby notifies Company that pursuant to
the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "PATRIOT ACT"), it is
required to obtain, verify and record information that identifies
Company, which information includes the name and address of Company
and other information that will allow such Lender to identify Company
in accordance with the Patriot Act.
[Remainder of page intentionally left blank]
120
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY: VICAR OPERATING, INC.
By:
-----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer and President
By:
-----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer and Assistant
Secretary
HOLDINGS: VCA ANTECH, INC.
By:
-----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer and President
By:
-----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer and Assistant
Secretary
GUARANTORS:
VCA ANTECH, INC.
VICAR OPERATING, INC.
AAH MERGER CORPORATION
AHC OF SOUTHERN SARATOGA COUNTY, INC.
ALBANY VETERINARY CLINIC, INC.
ANIMAL CENTER, INC.
ANIMAL CLINIC OF SANTA XXXX, INC.
APEX VETERINARY HOSPITAL, INC.
XXXXXX PETCARE CENTER, INC.
ASSOCIATES IN PET CARE, INC.
BERWYN VETERINARIAN HOSPITAL, INC.
XXXXX ANIMAL HOSPITAL, INC.
CACOOSING ANIMAL HOSPITAL, LTD.
CAT CLINIC OF TULSA, INC.
CLARMAR ANIMAL HOSPITAL, INC.
CORNERSTONE VETERINARY HOSPITAL, INC.
C.V.T., INC.
XXXXXXXX VETERINARY CLINIC, INC.
DIAGNOSTIC VETERINARY SERVICE, INC.
EAGLE PARK ANIMAL CLINIC, INC.
EAGLE RIVER VETERINARY HOSPITAL, INC.
EAST MILL PLAIN ANIMAL HOSPITAL, INC.
EDGEBROOK, INC.
FLORIDA VETERINARY LABORATORIES, INC.
FOX CHAPEL ANIMAL HOSPITAL, INC.
FREEHOLD, INC.
XXXX ANIMAL HOSPITAL, INC.
GOLDEN MERGER CORPORATION
HALECREST VETERINARY HOSPITAL, INC.
H.B. ANIMAL CLINICS, INC.
HIGHLANDS ANIMAL HOSPITAL, INC.
INDIANA VETERINARY DIAGNOSTIC LAB, INC.
KIRKWOOD ANIMAL HOSPITAL, INC.
KIRKWOOD ANIMAL HOSPITAL BOARDING & GROOMING, INC.
LAFAYETTE VETERINARY HOSPITAL, INC.
LAKE XXXXXXX VETERINARY CLINIC, INC.
LAKEWOOD ANIMAL HOSPITAL, INC.
XXXXXXX VETERINARY HOSPITAL, INC.
XXXXXXXXX VETERINARY CLINIC, INC.
MAIN STREET SMALL ANIMAL HOSPITAL
XXXXXX ANIMAL HOSPITAL
M.S. ANIMAL HOSPITALS, INC.
NATIONAL PETCARE CENTERS, INC.
S-2
NEWARK ANIMAL HOSPITAL, INC.
NORTH COAST VETERINARY MEDICAL GROUP
NORTHERN ANIMAL HOSPITAL INC.
NORTH ROCKVILLE VETERINARY HOSPITAL, INC.
NORTHSIDE ANIMAL HOSPITAL, INC.
XXXXX ANIMAL HOSPITAL, INC.
NPC OPERATIONS, INC.
OCEAN BEACH VETERINARY HOSPITAL, INC.
OLD RIVER VETERINARY HOSPITAL, INC.
OLD TOWN VETERINARY HOSPITAL, INC.
PET CARE HOSPITAL, INC.
PETS' RX, INC.
PETS' RX NEVADA, INC.
PPI OF PENNSYLVANIA, INC.
PRESTON PARK ANIMAL HOSPITAL, INC.
PRINCETON ANIMAL HOSPITAL, INC.
PROFESSIONAL VETERINARY SERVICES, INC.
RALEIGH HILLS VETERINARY CLINIC, INC.
RIVIERA ANIMAL HOSPITAL, INC.
ROSSMOOR - EL DORADO ANIMAL HOSPITAL, INC.
SILVER SPUR ANIMAL HOSPITAL, INC.
SOUND TECHNOLOGIES, INC.
SOUTH COUNTY VETERINARY CLINIC, INC.
SOUTHEAST AREA VETERINARY MEDICAL CENTER, INC.
SPANISH RIVER ANIMAL HOSPITAL, INC.
SUNDOWN ANIMAL CLINIC LTD.
TAMPA ANIMAL MEDICAL CENTER, INC.
TANGLEWOOD PET HOSPITAL, INC.
TEMPE VETS, INC.
THE PET PRACTICE (FLORIDA), INC.
THE PET PRACTICE (ILLINOIS), INC.
THE PET PRACTICE (MASSACHUSETTS), INC.
THE PET PRACTICE OF MICHIGAN, INC.
TOMS RIVER VETERINARY HOSPITAL, P.A.
TOTAL CARE ANIMAL HOSPITAL, INC.
UNIVERSITY PET CLINIC INC.
VCA - XXXXX, INC.
VCA ALABAMA, INC.
VCA ALBANY ANIMAL HOSPITAL, INC.
VCA ALBUQUERQUE, INC.
VCA ALL PETS ANIMAL COMPLEX, INC.
VCA ALPINE ANIMAL HOSPITAL, INC.
VCA XXXXXXXX ANIMAL HOSPITAL, INC.
VCA XXXXXXXX OF CALIFORNIA ANIMAL HOSPITAL, INC.
VCA ANIMAL HOSPITALS, INC.
VCA APAC ANIMAL HOSPITAL, INC.
S-3
VCA CACOOSING ANIMAL HOSPITAL, INC.
VCA CASTLE XXXXXXX VETERINARY HOSPITAL INC.
VCA CENTERS-TEXAS, INC.
VCA CENVET, INC.
VCA CLARMAR ANIMAL HOSPITAL, INC.
VCA CLINICAL VETERINARY LABS, INC.
VCA CLINIPATH LABS, INC.
VCA CLOSTER, INC.
VCA XXXXXXXX ANIMAL HOSPITAL, INC.
VCA DOVER ANIMAL HOSPITAL, INC.
VCA EAGLE RIVER ANIMAL HOSPITAL, INC.
VCA EAST ANCHORAGE ANIMAL HOSPITAL, INC.
VCA EMERGENCY PET CLINIC, INC.
VCA GREATER SAVANNAH ANIMAL HOSPITAL, INC.
VCA HOWELL BRANCH ANIMAL HOSPITAL, INC.
VCA KANEOHE ANIMAL HOSPITAL, INC.
VCA LAKESIDE ANIMAL HOSPITAL, INC.
VCA LAMB & XXXXXXX ANIMAL HOSPITAL, INC.
VCA XXXXXXX ANIMAL HOSPITAL, INC.
VCA XXXXX ANIMAL HOSPITAL, INC.
VCA MARINA ANIMAL HOSPITAL, INC.
VCA XXXXXX-XXXXXXXXX #152
VCA MISSION, INC.
VCA MISSOURI, INC.
VCA NORTHBORO ANIMAL HOSPITAL, INC.
VCA NORTHWEST VETERINARY DIAGNOSTICS, INC.
VCA OF NEW YORK, INC.
VCA OF SAN XXXX, INC.
VCA OF XXXXXXXX, INC.
VCA PROFESSIONAL ANIMAL LABORATORY, INC.
VCA REAL PROPERTY ACQUISITION CORPORATION
VCA REFERRAL ASSOCIATES ANIMAL HOSPITAL, INC.
VCA XXXXXX ANIMAL HOSPITAL, INC.
VCA - ROSSMOOR, INC.
VCA SILVER SPUR ANIMAL HOSPITAL, INC.
VCA SOUTH SHORE ANIMAL HOSPITAL, INC.
VCA SQUIRE ANIMAL HOSPITAL, INC.
VCA ST. PETERSBURG ANIMAL HOSPITAL, INC.
VCA TEXAS MANAGEMENT, INC.
VCA WORTH ANIMAL HOSPITAL, INC.
VCA WYOMING ANIMAL HOSPITAL, INC.
VETERINARY HOSPITALS, INC.
WEST SHORE VETERINARY HOSPITAL, INC.
WEST LOS ANGELES VETERINARY MEDICAL GROUP, INC.
S-4
XXXXXXX X. XXXXX, LTD.
XXXXXXX, INC.
WOODLAND ANIMAL MEDICAL CENTER, INC.
By:
--------------------------------------------
Name:
Title:
VETERINARY CENTERS OF AMERICA - TEXAS, L.P.
BY: VCA CENTERS-TEXAS, INC., GENERAL PARTNER
By:
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer and President
By:
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer and Assistant
Secretary
S-5
JOINT LEAD ARRANGER, JOINT
BOOKRUNNER, SOLE SYNDICATION
AGENT AND A LENDER:
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By:
-------------------------------------
Authorized Signatory
S-6
JOINT LEAD ARRANGER,
JOINT BOOKRUNNER,
ADMINISTRATIVE AGENT,
SWING LINE LENDER, ISSUING
BANK AND A LENDER: XXXXX FARGO BANK, N.A.,
By:
---------------------------------------
Name: S. Xxxxxxx St. Geme
Title: Vice President
S-7
LENDER:
By:
---------------------------------------
Name:
Title:
APPENDIX A-1
TO CREDIT AND GUARANTY AGREEMENT
TERM LOAN COMMITMENTS
======================================= =====================================
LENDER TERM LOAN COMMITMENTS
======================================= =====================================
Xxxxxxx Sachs Credit Partners L.P. $334,000,000
Xxxxx Fargo Bank, N.A. 75,000,000
Commerzbank AG, New York and Grand
Cayman Branches 28,000,000
Union Bank of California, N.A. 10,000,000
The Bank of New York 7,000,000
National City Bank 20,000,000
Firstrust Bank 1,000,000
-------------------------------------- -------------------------------------
TOTAL $475,000,000
APPENDIX X-0
XXXXXXXX X-0
TO CREDIT AND GUARANTY AGREEMENT
REVOLVING LOAN COMMITMENTS
======================================= =====================================
LENDER TERM LOAN COMMITMENTS
======================================= =====================================
Xxxxx Fargo Bank, N.A. 18,000,000
Commerzbank AG, New York and Grand
Cayman Branches 2,000,000
Bank of America, N.A. 15,000,000
Union Bank of California, N.A. 17,000,000
The Bank of New York 10,000,000
Firstrust Bank 3,000,000
United Overseas Bank Limited, New
York Agency 10,000,000
-------------------------------------- -------------------------------------
TOTAL $ 75,000,000
APPENDIX A-2
APPENDIX B
TO CREDIT AND GUARANTY AGREEMENT
NOTICE ADDRESSES
VICAR OPERATING, INC.
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
VCA ANTECH, INC.
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
SUBSIDIARY GUARANTORS
c/o VCA Antech, Inc.
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
XXXXXXX SACHS CREDIT PARTNERS L.P.,
as Joint Lead Arranger, Joint Bookrunner, Sole Syndication Agent and a Lender
Xxxxxxx Xxxxx Credit Partners L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx
Telecopier: (000) 000-0000
APPENDIX B-1
with a copy to:
Xxxxxxx Xxxxx Credit Partners L.P. (for Assignment Agreements only)
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
Telecopier: (000) 000-0000
Xxxxxxx Xxxxx Credit Partners L.P. (for Loan Activity)
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopier: (000) 000-0000
Xxxxxxx Xxxxx Credit Partners L.P. (for Financials, Amendments,
Credit Documents & Voting)
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopier: (000) 000-0000
XXXXX FARGO BANK, N.A.
as Joint Lead Arranger, Joint Bookrunner,
Administrative Agent, Swing Line Lender and a Lender
Administrative Agent's Principal Office:
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: S. Xxxxxxx St. Geme
Telecopier: (000) 000-0000
Swing Line Lender's Principal Office:
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: S. Xxxxxxx St. Geme
Telecopier: (000) 000-0000
APPENDIX B-2
