90,000,000 FIRST LIEN CREDIT AGREEMENT Dated as of September 27, 2007 Among UNITEK ACQUISITION, INC., as Borrower, UNITEK MIDCO, INC., as Parent, THE INITIAL LENDERS, INITIAL ISSUING BANK and INITIAL SWING LINE BANK NAMED HEREIN as Initial Lenders,...
EXECUTION
VERSION
$90,000,000
FIRST LIEN CREDIT AGREEMENT
Dated as
of September 27, 2007
Among
UNITEK
ACQUISITION, INC.,
as
Borrower,
UNITEK
MIDCO, INC.,
as
Parent,
THE
INITIAL LENDERS, INITIAL ISSUING BANK and INITIAL SWING LINE BANK
NAMED
HEREIN
as
Initial Lenders, Initial Issuing Bank and Initial Swing Line Bank
and
ROYAL
BANK OF CANADA,
as
Administrative Agent and Collateral Agent,
RBC
CAPITAL MARKETS*
as Sole
Lead Arranger and Bookrunner
* RBC
Capital Markets is a brand name for the capital markets activities of Royal Bank
of Canada.
Unitek –
First Lien Credit Agreement
TABLE
OF CONTENTS
Section
|
Page
|
ARTICLE
I DEFINITIONS AND ACCOUNTING TERMS
|
2
|
SECTION
1.01. Certain Defined Terms
|
2
|
SECTION
1.02. Computation of Time Periods; Other Definitional
Provisions
|
30
|
SECTION
1.03. Accounting Terms
|
30
|
SECTION
1.04. Currency Equivalents Generally
|
31
|
ARTICLE
II AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF
CREDIT
|
31
|
SECTION
2.01. The Advances and the Letters of Credit
|
31
|
SECTION
2.02. Making the Advances
|
33
|
SECTION
2.03. Issuance of and Drawings and Reimbursement Under Letters of
Credit.
|
35
|
SECTION
2.04. Repayment of Advances
|
36
|
SECTION
2.05. Termination or Reduction of the Commitments
|
38
|
SECTION
2.06. Prepayments
|
38
|
SECTION
2.07. Interest
|
40
|
SECTION
2.08. Fees
|
41
|
SECTION
2.09. Conversion of Advances
|
41
|
SECTION
2.10. Increased Costs, Etc
|
42
|
SECTION
2.11. Replacement of Lender; Mitigation or Circumstance
|
43
|
SECTION
2.12. Payments and Computations
|
43
|
SECTION
2.13. Taxes
|
46
|
SECTION
2.14. Sharing of Payments, Etc
|
48
|
SECTION
2.15. Use of Proceeds
|
49
|
SECTION
2.16. Defaulting Lenders
|
49
|
SECTION
2.17. Evidence of Debt
|
51
|
SECTION
2.18. Increase in the Aggregate Commitments
|
52
|
ARTICLE
III CONDITIONS OF LENDING AND ISSUANCES OF LETTERS OF
CREDIT
|
54
|
SECTION
3.01. Conditions Precedent to Initial Extension of Credit
|
54
|
SECTION
3.02. Conditions Precedent to Each Borrowing and Issuance
|
57
|
SECTION
3.03. Determinations Under Section 3.01
|
57
|
ARTICLE
IV REPRESENTATIONS AND WARRANTIES
|
57
|
SECTION
4.01. Representations and Warranties of the Loan Parties
|
57
|
ARTICLE
V COVENANTS OF THE LOAN PARTIES
|
62
|
SECTION
5.01. Affirmative Covenants
|
62
|
SECTION
5.02. Negative Covenants
|
67
|
SECTION
5.03. Reporting Requirements
|
78
|
SECTION
5.04. Financial Covenants
|
81
|
Unitek –
First Lien Credit Agreement
ii
ARTICLE
VI EVENTS OF DEFAULT
|
83
|
SECTION
6.01. Events of Default
|
83
|
SECTION
6.02. Actions in Respect of the Letters of Credit upon an Event of
Default
|
85
|
ARTICLE
VII THE AGENTS
|
85
|
SECTION
7.01. Authorization and Action
|
85
|
SECTION
7.02. Agents’ Reliance, Etc
|
86
|
SECTION
7.03. Royal Bank and Affiliates
|
87
|
SECTION
7.04. Lender Party Credit Decision
|
87
|
SECTION
7.05. Indemnification
|
87
|
SECTION
7.06. Successor Agents.
|
88
|
SECTION
7.07. Other Agents; Arrangers and Managers.
|
89
|
SECTION
7.08. Intercreditor Agreement.
|
89
|
ARTICLE
VIII GUARANTY
|
90
|
SECTION
8.01. Guaranty; Limitation of Liability
|
90
|
SECTION
8.02. Guaranty Absolute.
|
90
|
SECTION
8.03. Waivers and Acknowledgments.
|
91
|
SECTION
8.04. Subrogation.
|
92
|
SECTION
8.05. Guaranty Supplements.
|
92
|
SECTION
8.06. Subordination.
|
93
|
SECTION
8.07. Continuing Guaranty; Assignments.
|
93
|
SECTION
8.08. Release of Guarantor. .
|
93
|
ARTICLE
IX MISCELLANEOUS
|
94
|
SECTION
9.01. Amendments, Etc.
|
94
|
SECTION
9.02. Notices, Etc.
|
96
|
SECTION
9.03. No Waiver; Remedies
|
97
|
SECTION
9.04. Costs and Expenses
|
98
|
SECTION
9.05. Right of Set-off
|
99
|
SECTION
9.06. Binding Effect
|
100
|
SECTION
9.07. Assignments and Participations
|
100
|
SECTION
9.08. Execution in Counterparts
|
103
|
SECTION
9.09. No Liability of the Issuing Bank
|
104
|
SECTION
9.10. Non-Consenting Lenders
|
104
|
SECTION
9.11. Confidentiality
|
104
|
SECTION
9.12. Release of Collateral
|
105
|
SECTION
9.13. Patriot Act Notice.
|
105
|
SECTION
9.14. Jurisdiction, Etc.
|
105
|
SECTION
9.15. GOVERNING LAW
|
106
|
SECTION
9.16. WAIVER OF JURY TRIAL
|
106
|
Unitek –
First Lien Credit Agreement
iii
SCHEDULES
Schedule
I
|
-
|
Commitments
and Applicable Lending Offices
|
|
Schedule
II
|
-
|
Guarantors
|
|
Schedule
4.01(b)
|
-
|
Subsidiaries
|
|
Schedule
4.01(d)
|
-
|
Authorizations,
Approvals, Actions, Notices and Filings
|
|
Schedule
4.01(f)
|
-
|
Litigation
|
|
Schedule
4.01(o)
|
-
|
Plans
and Multiemployer Plans
|
|
Schedule
4.01(p)
|
-
|
Environmental
Disclosure
|
|
Schedule
4.01(q)
|
-
|
Taxes
|
|
Schedule
4.01(r)
|
-
|
Owned
Real Property
|
|
Schedule
4.01(s)
|
-
|
Leased
Real Property
|
|
Schedule
4.01(t)
|
-
|
Intellectual
Property
|
|
Schedule
5.01(i)
|
-
|
Transactions
with Affiliates
|
|
Schedule
5.02(a)
|
-
|
Existing
Liens
|
|
Schedule
5.02(b)
|
-
|
Surviving
Debt
|
|
Schedule
5.02(f)
|
-
|
Existing
Investments
|
|
EXHIBITS
|
|||
Exhibit
A-1
|
-
|
Form
of Revolving Credit Note
|
|
Exhibit
A-2
|
-
|
Form
of Term B Note
|
|
Exhibit
A-3
|
-
|
Form
of Term C Note
|
|
Exhibit
B
|
-
|
Form
of Notice of Borrowing
|
|
Exhibit
C
|
-
|
Form
of Assignment and Acceptance
|
|
Exhibit
D
|
-
|
Form
of Security Agreement
|
|
Exhibit
E
|
-
|
Form
of Guaranty Supplement
|
|
Exhibit
F
|
-
|
Form
of Solvency Certificate
|
|
Exhibit
G
|
-
|
Form
of Intercreditor
Agreement
|
Unitek –
First Lien Credit Agreement
FIRST
LIEN CREDIT AGREEMENT dated as of September 27, 2007 among UNITEK ACQUISITION,
INC., a Delaware corporation (the “Borrower”),
UNITEK MIDCO, INC., a Delaware corporation (the “Parent”),
the Subsidiary Guarantors (as hereinafter defined), the Initial Lenders (as
hereinafter defined), the Swing Line Bank (as hereinafter defined), the Issuing
Bank (as hereinafter defined), Royal Bank of Canada (“Royal
Bank”), as collateral agent (together with any successor collateral agent
appointed pursuant to Article VII, the
“Collateral
Agent”) for the Secured Parties (as hereinafter defined), Royal Bank, as
administrative agent (together with any successor administrative agent appointed
pursuant to Article VII, the
“Administrative
Agent”) for the Lender Parties (as hereinafter defined), and RBC Capital
Markets, as lead arranger and book-runner (the “Lead
Arranger” and, together with the Administrative Agent and the Collateral
Agent collectively, the “Agents”).
PRELIMINARY
STATEMENTS:
(1) The
Borrower has entered into that certain Membership Interests Purchase Agreement
dated as of September 27, 2007 (the “Purchase
Agreement”) among the Company, the Sellers and the Sellers’
Representative (as such terms are defined therein) to acquire all the limited
liability company interests in the Company (the “Acquisition”).
(2) Simultaneously
with entering into this Agreement, the Borrower is entering into that certain
Second Lien Term Loan Agreement, dated as of the date hereof (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
“Second
Lien Term Loan Agreement”) with the Parent, the guarantors party thereto,
the lenders party thereto and Royal Bank, as administrative agent and collateral
agent.
(3) The
Borrower has requested that (a) concurrently with the consummation of the
Acquisition, the Lender Parties lend to the Borrower $65,000,000 under the Term
B Facility and $5,000,000 under the Term C Facility provided for in this
Agreement, which shall be used to pay a portion of the purchase price in
connection with the Acquisition and to pay fees, expenses, and costs related
thereto, and (b) from time to time, the Lender Parties lend to the Borrower
and issue Letters of Credit for the account of the Borrower and its
Subsidiaries, each of which hereby acknowledges receiving the benefit thereof in
support of the consolidated enterprise represented by the Parent and its
Subsidiaries, pursuant to the $20,000,000 Revolving Credit Facility provided for
in this Agreement and in accordance with the terms of this
Agreement. The Lender Parties have indicated their willingness to
agree to lend such amounts and provide such Letters of Credit, but only on the
terms and conditions of this Agreement, including the granting of the Collateral
pursuant to the Collateral Documents and the making of the guarantees pursuant
to Article VIII
hereof.
(4) The
Equity Investors (as hereinafter defined) will contribute an aggregate amount
(the “Equity
Contribution”) equal to at least 54% of total capitalization of the
Borrower and its Subsidiaries as of the Effective Date after giving effect to
the Acquisition towards the purchase price for the Acquisition, such amount, in
each case to be reduced by the amount of common equity or options therefor in
the Borrower that is “rolled over” to common equity or options therefor in
connection with the Acquisition (so long as the aggregate dollar value (net of
exercise price) of the common equity or options therefor that is rolled over
does not exceed $10,000,000), to the extent permitted by this Agreement, by
existing shareholders of the Borrower.
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
SECTION
1.01. Certain Defined
Terms. As
used in this Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and plural forms of
the terms defined):
“Acquisition”
has the meaning specified in the Preliminary Statements.
“Administrative
Agent” has the meaning specified in the recital of parties to this
Agreement.
“Administrative
Agent’s Account” means the account of the Administrative Agent specified
by the Administrative Agent in writing to the Lender Parties from time to
time.
“Advance”
means a Term B Advance, a Term C Advance, a Revolving Credit Advance, a Letter
of Credit Advance, a Swing Line Advance or an advance under an Incremental
Facility.
“Affiliate”
means, as to any Person, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with such Person or is a
director or officer of such Person. For purposes of this definition,
the term “control” (including the terms “controlling,” “controlled by” and
“under common control with”) of a Person means the possession, direct or
indirect, of the power to vote 20% or more of the Voting Interests of such
Person or to direct or cause the direction of the management and policies of
such Person, whether through the ownership of Voting Interests, by contract or
otherwise; provided
that (a) no lender under the Second Lien Term Loan Agreement shall be
deemed to be an Affiliate of any Loan Party when acting in its capacity as a
lender under the Second Lien Term Loan Agreement, and (b) no Agent or
Lender Party shall be deemed to be an “Affiliate” of any Loan
Party.
“Agents”
has the meaning specified in the recital of parties to this
Agreement.
“Agreement
Value” means, for each Hedge Agreement, on any date of determination, an
amount determined by the Administrative Agent equal to: (a) in the
case of a Hedge Agreement documented pursuant to the Master Agreement
(Multicurrency-Cross Border) published by the International Swap and Derivatives
Association, Inc. (the “Master
Agreement”), the amount, if any, that would be payable by any Loan Party
or any of its Subsidiaries to its counterparty to such Hedge Agreement, as if
(i) such Hedge Agreement was being terminated early on such date of
determination, (ii) such Loan Party or Subsidiary was the sole “Affected Party,”
and (iii) the Administrative Agent was the sole party determining such payment
amount (with the Administrative Agent making such determination pursuant to the
provisions of the form of Master Agreement); (b) in the case of a Hedge
Agreement traded on an exchange, the xxxx-to-market value of such Hedge
Agreement, which will be the unrealized loss on such Hedge Agreement to the Loan
Party or Subsidiary of a Loan Party party to such Hedge Agreement determined by
the Administrative Agent based on the settlement price of such Hedge Agreement
on such date of determination; or (c) in all other cases, the xxxx-to-market
value of such Hedge Agreement, which will be the unrealized loss on such Hedge
Agreement to the Loan Party or Subsidiary of a Loan Party party to such Hedge
Agreement determined by the Administrative Agent as the amount, if any, by which
(i) the present value of the future cash flows to be paid by such Loan Party or
Subsidiary exceeds (ii) the present value of the future cash flows to be
received by such Loan Party or Subsidiary pursuant to such Hedge Agreement;
capitalized terms used and not otherwise defined in this definition shall have
the respective meanings set forth in the above described Master
Agreement.
2
“Applicable Equity
Prepayment Percentage” means the applicable equity prepayment percentage
set forth below based on the applicable Total Leverage Ratio set forth
below:
Total Leverage Ratio
|
Applicable Equity Prepayment
Percentage
|
|||
Level
I
greater
than 3:50:1.00
|
100 | % | ||
Level
II
less
than or equal to 3.50:1.00 but greater than 3.00:1.00
|
75 | % | ||
Level
III
less
than or equal to 3.00:1.00
|
50 | % |
The
Applicable Equity Prepayment Percentage shall, as of any date of determination,
be determined by reference to the Total Leverage Ratio as the last day of the
Measurement Period ending on the last day of the most recently-ended Fiscal Year
or fiscal quarter; provided,
however, that if the Administrative Agent shall not have received the
financial statements required to be delivered pursuant to Section 5.03(b)
and (c) in
respect of such Measurement Period by such date, the Applicable Equity
Prepayment Percentage shall be deemed to be at Level I.
“Applicable
Lending Office” means, with respect to each Lender Party, such Lender
Party’s Domestic Lending Office in the case of a Base Rate Advance and such
Lender Party’s Eurodollar Lending Office in the case of a Eurodollar Rate
Advance.
“Applicable
Margin” means (a) in respect of the Term B Facility, 3.25% per annum for
Base Rate Advances and 4.25% per annum for Eurodollar Rate Advances, (b) in
respect of the Term C Facility, at the rate per annum set forth in Section 2.07
of the Second Lien Term Loan Agreement (as in effect on the date hereof), (c) in
respect of any Incremental Facility, the percentages per annum for Base Rate
Advances and for Eurodollar Rate Advances that are agreed by the Borrower and
the applicable Incremental Lenders pursuant to Section 2.18; provided that in no event
shall the Applicable Margin in respect of any Incremental Facility be more than
the Applicable Margin for the Term B Facility, where the Incremental Facility is
an Incremental Term B Facility, or more than the Applicable Margin for the
Revolving Credit Facility, where the Incremental Facility is an Incremental
Revolving Credit Facility, unless, in each case, the Applicable Margin in
respect of the applicable Facility is increased to be the same as the Applicable
Margin for such Incremental Facility (which increase may be effected in a signed
writing between the Borrower and the Administrative Agent without regard to the
provisions of Section
9.01) and (d) from the Effective Date until the delivery of the financial
statements required pursuant to Section 5.03(b) or
(c) or the
first full fiscal quarter ending after the Effective Date in respect of the
Revolving Credit Facility and the Swing Line Facility, 3.25% per annum for Base
Rate Advances and 4.25% per annum for Eurodollar Rate Advances.
In the
case of the Revolving Credit Facility, any date thereafter, the applicable rate
per annum set forth below based on the Total Leverage Ratio:
3
Total Leverage Ratio
|
Revolving Credit Applicable Margin
|
|||||||
Base Rate
|
Eurodollar
|
|||||||
greater
than 3.00: 1.00
|
3.00 | % | 4.00 | % | ||||
less
than or equal to 3.00:1.00
|
2.50 | % | 3.50 | % |
“Applicable
Prepayment Percentage” means the applicable prepayment percentage set
forth below based on the applicable Total Leverage Ratio set forth
below:
Total Leverage Ratio
|
Applicable Prepayment Percentage
|
|||
Level
I
greater
than 3.50:1.00
|
100 | % | ||
Level
II
Less
than or equal to 3.50:1.00
|
75 | % |
The
Applicable Prepayment Percentage shall, as of any date of determination, be
determined by reference to the Total Leverage Ratio as the last day of the
Measurement Period ending on the last day of the most recently-ended Fiscal
Year; provided,
however, that if the Administrative Agent shall not have received the
financial statements required to be delivered pursuant to Section 5.03(b)
in respect of such Measurement Period by such date, the Applicable
Prepayment Percentage shall be deemed to be at Level I.
“Applicable
Reserve Requirement” means,
at any time, for any Eurodollar Rate Advance, 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 of the Board of Governors of the Federal Reserve
System) 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 Eurodollar Rate or
any other interest rate of an Advance is to be determined, or (ii) any category
of extensions of credit or other assets which include Eurodollar Rate
Advances. A Eurodollar Rate Advance 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 Advances shall be adjusted automatically on
and as of the effective date of any change in the Applicable Reserve
Requirement.
“Appropriate
Lender” means, at any time, with respect to (a) any of the Term B
Facility, the Term C Facility, the Revolving Credit Facility or an Incremental
Facility, a Lender that has a Commitment with respect to such Facility at such
time, (b) the Letter of Credit Facility, (i) the Issuing Bank and
(ii) if the other Revolving Credit Lenders have made Letter of Credit
Advances pursuant to Section 2.03(c)
that are outstanding at such time, each such other Revolving Credit Lender, and
(c) the Swing Line Facility, (i) the Swing Line Bank and (ii) if the other
Revolving Credit Lenders have made Swing Line Advances pursuant to Section 2.02(b) that
are outstanding at such time, each such other Revolving Credit
Lender.
“Approved
Fund” means any Fund that is administered or managed by (i) a Lender
Party, (ii) an Affiliate of a Lender Party or (iii) an entity or an Affiliate of
an entity that administers or manages a Lender Party.
4
“Assignment and
Acceptance” means an assignment and acceptance entered into by a Lender
Party and an Eligible Assignee (with the consent of any party whose consent is
required by Section
9.07 or the definition of “Eligible
Assignee”), and accepted by the Administrative Agent, in accordance with
Section 9.07 and
in substantially the form of Exhibit C hereto or any other form approved by
the Administrative Agent.
“Assuming
Lender” has the meaning specified in Section
2.18(d).
“Available
Amount” of any Letter of Credit means, at any time, the maximum amount
available to be drawn under such Letter of Credit at such time (assuming
compliance at such time with all conditions to drawing).
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar foreign, federal or state
law for the relief of debtors.
“Base Rate”
means a fluctuating interest rate per annum in effect from time to time, which
rate per annum shall at all times be equal to the higher of:
|
(a)
|
the
rate of interest established by Royal Bank, from time to time, as its
“corporate base rate”; and
|
(b) ½
of 1% per annum above the Federal Funds Rate;
provided, however,
that during the period
from the date hereof to the date that is thirty days following the Effective
Date (or such earlier date as shall be specified by the Administrative Agent on
which a Eurodollar Rate Advance has become available), “Base
Rate” shall mean the sum
of a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Reuters Screen LIBOR01 Page as the London interbank offered rate
for deposits in dollars with a one month term, determined at approximately 11:00
A.M. (London Time) on the Effective Date (provided, however, if more than one
rate is specified on Reuters Screen LIBOR01 Page, the applicable rate shall be
the arithmetic mean of all such rates), plus 1%. The corporate base rate is not
necessarily the lowest rate charged by the Lender acting as the Administrative
Agent to its customers.
“Base Rate
Advance” means an Advance that bears interest as provided in Section 2.07(a)(i).
“Borrower”
has the meaning specified in the recital of parties to this
Agreement.
“Borrower’s
Account” means the account of the Borrower specified by the Borrower in
writing to the Administrative Agent from time to time.
“Borrowing”
means a Term B Borrowing, Term C Borrowing, a Revolving Credit Borrowing, a
Swing Line Borrowing or a Borrowing under an Incremental Facility.
“Business
Day” means a day of the year on which banks are not required or
authorized by law to close in New York City and, if the applicable Business
Day relates to any Eurodollar Rate Advances, on which dealings are carried on in
the London interbank market.
5
“Capital
Expenditures” means, for any Person for any period, the sum of, without
duplication, all expenditures made, directly or indirectly, by such Person or
any of its Subsidiaries during such period for equipment, fixed assets, real
property or improvements, or for replacements or substitutions therefor or
additions thereto, that have been or should be, in accordance with GAAP,
reflected as additions to property, plant or equipment on a Consolidated balance
sheet of such Person. For purposes of this definition, the purchase
price of equipment that is purchased simultaneously with the trade in of
existing equipment or with insurance proceeds shall be included in Capital
Expenditures only to the extent of the gross amount of such purchase price less
the credit granted by the seller of such equipment for the equipment being
traded in at such time or the amount of such insurance proceeds, as the case may
be.
“Capitalized
Leases” means all leases that have been or should be, in accordance with
GAAP, recorded as capitalized leases.
“Cash
Equivalents” means any of the following, to the extent owned by the
Parent or any of its Subsidiaries free and clear of all Liens other than Liens
permitted by Section
5.02(a) and having a maturity of not greater than 180 days from the date
of acquisition thereof: (a) readily marketable direct
obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the full
faith and credit of the Government of the United States; (b) insured
certificates of deposit of or time deposits with any commercial bank that is a
Lender Party or a member of the Federal Reserve System, issues (or the parent of
which issues) commercial paper rated as described in clause (c) below, is
organized under the laws of the United States or any State thereof and has
combined capital and surplus of at least $500,000,000; (c) commercial paper
in an aggregate amount of no more than $1,000,000 per issuer outstanding at any
time issued by any corporation organized under the laws of any State of the
United States and rated at least “Prime-1” (or the then equivalent grade) by
Xxxxx’x or “A-1” (or the then equivalent grade) by S&P; (d) marketable securities (i) issued or
directly and unconditionally guaranteed as to interest and principal by the
Government of the United States or (ii) issued by any agency of the Government
of the United States the obligations of which are backed by the full faith and
credit of the United States; and (e) marketable direct obligations issued by any
State of the United States of or any political subdivision thereof or any public
instrumentality thereof, in each case having, at the time of the acquisition
thereof, a rating of at least “A-1” (or the then equivalent grade) from S&P or at least “Prime-1”
(or the then equivalent grade) from Xxxxx’x; Investments,
classified in accordance with GAAP as Current Assets of the Borrower or any of
its Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by financial
institutions that have the highest rating obtainable from either Xxxxx’x or
S&P, and the portfolios of which are limited solely to Investments of the
character, quality and maturity described in clauses (a), (b), (c), (d) and
(e) of this definition.
“Cash Interest
Expense” means, for any period, (a) interest expense for such period,
minus (b) the sum of
(without duplication) (i) interest on any Debt paid by the increase in the
principal amount of such debt including by issuance of additional Debt of such
kind, (ii) amortization of debt issuance costs, debt discount or premium and
other financing fees and expenses incurred by the Parent or any of its
Subsidiaries, (iii) gross interest income of the Parent and its Subsidiaries
(excluding interest income on finance receivables), (iv) any other non-cash
items that would otherwise be included in interest expense, (v) any cash items
related to the Transaction that would otherwise be included in interest expense
that are capitalized and amortized in a future period, (vi) to the extent
included in interest expense for such period, fees and expenses associated with
obtaining Hedge Agreements permitted hereunder, and (vii) to the extent included
in interest expense for such period, fees and expenses associated with any
Investment, recapitalization, issuances of Equity Interest or issuances of Debt
(whether or not consummated), in each case, not prohibited by this Agreement in
each case as determined for the Parent and its Subsidiaries on a Consolidated
basis in accordance with GAAP.
“CERCLA”
means the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended from time to time.
6
“CERCLIS”
means the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the U.S. Environmental Protection
Agency.
“CFC” means
an entity that is a controlled foreign corporation under Section 957 of the
Internal Revenue Code.
“Change of
Control” means the occurrence of any of the following: (a)
after the consummation of a Qualified Public Offering, any Person or two or more
Persons acting in concert (other than the Equity Investors) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934 but excluding any
employee benefit plan of such Person and its subsidiaries, and any Person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan), directly or indirectly, of Voting Interests of
the Borrower (or other securities convertible into such Voting Interests)
representing more than the greater of (i) 35% of the combined voting power of
all Voting Interests of the Parent and (ii) the percentage
of the then outstanding Equity Interests of the Borrower having ordinary voting
power owned, directly or
indirectly, beneficially
and of record by the Equity Investors; (b) during any period of up to 12
consecutive months, commencing after the date of the consummation of a Qualified
Public Offering,
Continuing Directors shall cease for any reason to constitute a majority of the
board of directors of the Parent; (c) prior to the consummation of a Qualified
Public Offering, any
Person or two or more Persons acting in concert (other than the Equity
Investors) shall have acquired by contract or otherwise the power to elect a
majority of the board of directors of the Parent; (d) the Parent shall cease to,
directly or indirectly, own 100% of the Equity Interests in the Borrower and,
except as a result of a transaction permitted by Section 5.02(d)(iii),
the Company; (e) the Equity Investors (or their investing affiliates) shall
cease to own, directly or indirectly, of record and beneficially an amount of
Equity Interests of the Parent having ordinary voting power that is at least 51% of the
amount of Equity Interests of the Parent having ordinary voting power owned,
directly or indirectly, by the Equity Investors of record and beneficially as of
the Effective Date; or (f) the occurrence of a “change of control”, “change in
control” or similar circumstance under the Second Lien Term Loan
Agreement.
“Closing Date
Limitations” means that, on the Effective Date and the date of the
Initial Extension of Credit, (a) to the extent any Subsidiary Guaranty or
Collateral cannot reasonably be provided after the use by the Loan Parties of
commercially reasonable efforts to do so (to the extent that the provision of
such Subsidiary Guaranty or Collateral is required by the terms hereof or the
Collateral Documents), the delivery of such Subsidiary Guaranty and/or
Collateral shall not constitute a condition precedent to the availability of the
Facilities on such date, so long as the Loan Parties shall have entered into
arrangements mutually acceptable to the Loan Parties and the Administrative
Agent to obtain the same, and (b) other than in respect of
the Effective Date Representations, the representations of the Loan
Parties in respect of the Company and its Subsidiaries set forth in Section 4.01 shall
not apply to the Initial Extension of Credit.
“Collateral”
means all “Collateral” and “Mortgaged Property” referred to in the Collateral
Documents and all other property that is or is intended to be subject to any
Lien in favor of the Collateral Agent for the benefit of the Secured
Parties.
“Collateral
Account” has the meaning specified in the Security
Agreement.
“Collateral
Agent” has the meaning specified in the recital of parties to this
Agreement.
“Collateral
Agent’s Office” means, with respect to the Collateral Agent or any
successor Collateral Agent, the office of such Agent as such Agent may from time
to time specify to the Borrower and the Administrative Agent.
7
“Collateral
Documents” means the Security Agreement, the Mortgages, the Intellectual
Property Security Agreement, each of the collateral documents, instruments and
agreements delivered pursuant to Section 5.01(j), and
each other agreement that creates or purports to create a Lien in favor of the
Collateral Agent for the benefit of the Secured Parties.
“Commitment”
means a Term B Commitment, a Term C Commitment, a Revolving Credit Commitment, a
Letter of Credit Commitment, a Swing Line Commitment or an Incremental
Commitment.
“Communications”
has the meaning specified in Section
9.02(b).
“Company”
means Unitek USA, LLC.
“Company Material
Adverse Effect” means any event, occurrence, violation, inaccuracy,
circumstance or other matter which has or is reasonably likely to have a
material adverse effect on (i) the business, assets, properties,
operations, financial condition or results of operations of the Company and its
Subsidiaries taken as a whole, or (ii) the ability of the Company to
consummate the transactions contemplated by the Purchase Agreement or any other
agreement, document, or instrument or certificate contemplated by the Purchase
Agreement or to be executed by the Company in connection with the consummation
of the transactions contemplated by the Purchase Agreement.
“Confidential
Information” means confidential information that any Loan Party furnishes
to any Agent or any Lender Party, but does not include any such information that
is or becomes generally available to the public, other than through a breach by
such Agent or Lender Party of Section 9.11, or that
is or becomes available to such Agent or such Lender Party from a source other
than the Loan Parties that is not, to the best of such Agent’s or such Lender
Party’s knowledge, acting in violation of a confidentiality agreement with a
Loan Party.
“Consolidated”
refers to the consolidation of accounts in accordance with GAAP.
“Continuing
Directors” means the directors of the Parent on the Effective Date as
elected or appointed after giving effect to the Acquisition and the transactions
contemplated thereby and each other director if, in each case, such other
director’s nomination for election to the board of directors of the Parent is
recommended by at least a majority of the then Continuing Directors or by one or
more Equity Investors or Persons nominated by one or more of the Equity
Investors.
“Conversion,”
“Convert”
and “Converted”
each refer to a conversion of Advances of one Type into Advances of the other
Type pursuant to Section 2.09 or
2.10.
“Current
Assets” of any Person means all assets of such Person that would, in
accordance with GAAP, be classified as current assets of a company conducting a
business the same as or similar to that of such Person, after deducting adequate
reserves in each case in which a reserve is proper in accordance with GAAP but
excluding amounts related to current or deferred Taxes based on income or
profits.
“Current
Liabilities” of any Person means all Debt of such Person that by its
terms is payable on demand or matures within one year after the date of
determination (excluding (a) any Debt (i) renewable or extendible, at the option
of such Person, to a date more than one year from such date or (ii) arising
under a revolving credit or similar agreement that obligates the lender or
lenders to extend credit during a period of more than one year from such date,
(b) the current portion of any long-term Debt, (c) outstanding Revolving
Credit Advances and Swing Line Advances, (d) accruals of Consolidated
interest expense (excluding Consolidated interest expense that is due and
unpaid), (e) accruals for current or deferred Taxes based on income or
profits and (f) accruals of any costs or expenses related to restructuring
reserves to the extent permitted to be included in the calculation of
EBITDA.
8
“Debt” of
any Person means, without duplication, (a) all indebtedness of such Person
for borrowed money, (b) all Obligations of such Person for the deferred
purchase price of property or services (other than trade payables and accrued
obligations incurred in the ordinary course of such Person’s business, customary
indemnification payments under purchase agreements in respect of Dispositions,
and any earn-out obligation until such obligation appears in the liability
section of the balance sheets of such Person), (c) all Obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments,
(d) all Obligations of such Person created or arising under any conditional
sale or other title retention agreement with respect to property acquired by
such Person (even though the rights and remedies of the seller or lender under
such agreement in the event of default are limited to repossession or sale of
such property), (e) all Obligations of such Person as lessee under
Capitalized Leases, (f) all Obligations of such Person under acceptance,
letter of credit or similar facilities, (g) all Obligations of such Person
in respect of Disqualified Equity Interests, (h) all Obligations of such
Person in respect of Hedge Agreements, valued at the Agreement Value thereof,
(i) all Guarantee Obligations and Synthetic Debt of such Person and
(j) all indebtedness and other payment obligations referred to in
clauses (a) through (i) above of another Person secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such indebtedness or other payment
Obligations.
“Debt for Borrowed
Money” of any Person means, at any date of determination, the sum of,
without duplication, the principal amount of (including the capitalized portion
of any interest), (a) Debt of the types referred to in clauses (a), (c), (e) and
(f) (but excluding undrawn amounts under Letters of Credit) of the definition
thereof, and (b) all Synthetic Debt of such Person at such date.
“Default”
means any Event of Default or any event that would constitute an Event of
Default but for the passage of time or the requirement that notice be given or
both.
“Default
Interest” has the meaning specified in Section
2.07(b).
“Defaulted
Advance” means, with respect to any Lender Party at any time, the portion
of any Advance required to be made by such Lender Party to the Borrower pursuant
to Section 2.01
or 2.02 at or prior to such time that has not been made by such Lender
Party or by the Administrative Agent for the account of such Lender Party
pursuant to Section
2.02(e) as of such time. In the event that a portion of a
Defaulted Advance shall be deemed made pursuant to Section 2.16(a),
the remaining portion of such Defaulted Advance shall be considered a Defaulted
Advance originally required to be made pursuant to Section 2.01 on
the same date as the Defaulted Advance so deemed made in part.
“Defaulted
Amount” means, with respect to any Lender Party at any time, any amount
required to be paid by such Lender Party to any Agent or any other Lender Party
hereunder or under any other Loan Document at or prior to such time that has not
been so paid as of such time, including, without limitation, any amount required
to be paid by such Lender Party to (a) the Swing Line Bank pursuant to Section 2.02(b) to
purchase a portion of a Swing Line Advance made by the Swing Line Bank,
(b) the Issuing Bank pursuant to Section 2.03(c)
to purchase a portion of a Letter of Credit Advance made by the Issuing Bank,
(c) the Administrative Agent pursuant to Section 2.02(e)
to reimburse the Administrative Agent for the amount of any Advance made by the
Administrative Agent for the account of such Lender Party, (d) any other
Lender Party pursuant to Section 2.14 to
purchase any participation in Advances owing to such other Lender Party and
(e) any Agent or any Issuing Bank pursuant to Section 7.05 to
reimburse such Agent or the Issuing Bank for such Lender Party’s ratable share
of any amount required to be paid by the Lender Parties to such Agent or the
Issuing Bank as provided therein. In the event that a portion of a
Defaulted Amount shall be deemed paid pursuant to Section 2.16(b),
the remaining portion of such Defaulted Amount shall be considered a Defaulted
Amount originally required to be paid hereunder or under any other Loan Document
on the same date as the Defaulted Amount so deemed paid in
part.
9
“Defaulting
Lender” means, at any time, any Lender Party that, at such time,
(a) owes a Defaulted Advance or a Defaulted Amount, (b) has notified the
Administrative Agent and/or the Borrower that it does not intend to comply with
Sections 2.01
or 2.02 or
(c) shall take any action or be the subject of any action or proceeding of
a type described in Section 6.01(g).
“Disposition”
(or similar words such as “Dispose”)
means any sale, lease, transfer or other conveyance.
“Disqualified
Equity Interest” means, with respect to any Person, any Equity Interest
of such Person which, by its terms, or by the terms of any security into which
it is convertible or for which it is putable or exchangeable, or upon the
happening of any event, matures or is mandatorily Redeemable (other than solely
for Equity Interests which are not Disqualified Equity Interests) pursuant to a
sinking fund obligation or otherwise, or is Redeemable at the option of the
holder thereof (other than solely as a result of a change of control or asset
sale), in whole or in part, in each case prior to the date 91 days after the
Scheduled Termination Date with respect to the Term B Advances; provided, however, that if such Equity
Interests are issued to any plan for the benefit of employees of the Parent or
its Subsidiaries or by any such plan to such employees, such Equity Interests
shall not constitute Disqualified Equity Interests solely because they may be
required to be repurchased in order to satisfy applicable statutory or
regulatory obligations.
“Disqualified
Institution” means any Person that is a direct competitor of the Borrower
and its Subsidiaries and is identified in writing by the Borrower to the
assigning Lender at the time of the proposed assignment pursuant to Section 9.07 of this
Agreement; provided that the restriction set forth in this definition shall not
be applicable if the proposed assignee is a finance company, fund or other
similar entity which holds an economic interest in a competitor.
“Domestic Lending
Office” means, with respect to any Lender Party, the office of such
Lender Party specified as its “Domestic Lending Office” opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender Party, as the case may be, or such other office of such Lender
Party as such Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
“Earn-Out
Obligations” has the meaning specified in Section 5.02(f)(xv).
“EBITDA”
means, for any period, the sum of (without duplication) (a) net income (or net
loss), plus (b) the
following to the extent deducted in calculating such net income (or net loss):
(i) interest expense, (ii) income tax expense, (iii) depreciation expense
and (iv) amortization expense, in each case of the Parent and its
Subsidiaries, determined in accordance with GAAP for such period, plus (c) to the extent
deducted in calculating such net income (or net loss), the Specified
Adjustments.
“Effective
Date” has the meaning specified in Section
3.01.
“Effective Date
Representations” shall mean, those representations, which are material to
the Lenders, that are made by the Company as set forth in the Purchase Agreement
in respect of the Target and its Subsidiaries, a breach of any of which would
permit the Parent and/or the Borrower to terminate their respective obligations
under the Purchase Agreement and those representations and warranties specified
in Section
4.01(a), (c), (d), (e) and (k).
10
“Eligible
Assignee” means with respect to any Facility (other than the Letter of
Credit Facility), (a) a Lender Party; (b) an Affiliate of a Lender Party; (c) an
Approved Fund; (d) any other Person (other than an individual or a Disqualified
Institution); and (e) in the case of any Term C Lender, its lender under a
credit facility that is a commercial bank having assets of not less than
$250,000,000, and in the case of clauses (d) and (e), approved by (x) the
Administrative Agent (such approval not to be unreasonably withheld or delayed),
(y) in the case of an assignment of a Revolving Credit Commitment, the Issuing
Bank (such approval not to be unreasonably withheld or delayed) and the Swing
Line Bank (such approval not to be unreasonably withheld or delayed), and (z)
unless an Event of Default has occurred and is continuing, the Borrower (such
approval not to be unreasonably withheld or delayed); provided, however, that
neither any Loan Party nor any Affiliate of a Loan Party shall qualify as an
Eligible Assignee under this definition.
“Environmental
Action” means any action, suit, demand, demand letter, claim, notice of
non-compliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating to any
Environmental Law, any Environmental Permit or Hazardous Material or arising
from alleged injury or threat to health or safety as such relate to exposure to
hazardous materials, or to the environment, including, without limitation,
(a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any
governmental or regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
“Environmental
Law” means any applicable Federal, state, local or foreign statute, law,
ordinance, rule, regulation, code, order, writ, judgment, injunction, decree or
legally binding judicial or agency interpretation, policy or guidance relating
to pollution or protection of the environment, or as such relates to exposure to
Hazardous Materials, of health or safety, or of natural resources, including,
without limitation, those relating to the use, handling, transportation,
treatment, storage, disposal, release or discharge of Hazardous
Materials.
“Environmental
Permit” means any permit, approval, identification number, license or
other authorization required under any Environmental Law.
“Equity
Contribution” has the meaning specified in the Preliminary
Statements.
“Equity
Interests” means, with respect to any Person, shares of capital stock of
(or other ownership or profit interests in) such Person, warrants, options or
other rights for the purchase or other acquisition from such Person of shares of
capital stock of (or other ownership or profit interests in) such Person,
securities convertible into or exchangeable for shares of capital stock of (or
other ownership or profit interests in) such Person or warrants, rights or
options for the purchase or other acquisition from such Person of such shares
(or such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are authorized or otherwise existing on any
date of determination.
“Equity
Investors” means (a) the Sponsor, (b) investing affiliates of the
Sponsor, (c) any Person making an Investment in the Parent or its Subsidiaries
concurrently with, and with the consent of, the Sponsor, (d) the members of
management of the Parent and its Subsidiaries who are investors, directly or
indirectly, in the Borrower and (e) other investors reasonably acceptable to the
Administrative Agent which invest on substantially the same terms as the
Sponsor.
11
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and any applicable regulation promulgated thereunder.
“ERISA
Affiliate” means any Person that for purposes of Title IV of ERISA
is a member of the controlled group of any Loan Party, or under common control
with any Loan Party, within the meaning of Section 414 of the Internal
Revenue Code.
“ERISA
Event” means (a) the occurrence of a reportable event, as defined in
Section 4043 of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the PBGC; (b) the
application for a minimum funding waiver with respect to a Plan; (c) the
provision by the administrator of any 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; (d) the cessation of operations at a
facility of any Loan Party or any ERISA Affiliate in the circumstances described
in Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or
any ERISA Affiliate from a Multiple Employer Plan during a plan year for which
it was a substantial employer, as defined in Section 4001(a)(2) of ERISA;
(f) the conditions for imposition of a lien under Section 302(f) of
ERISA shall have been met with respect to any Plan; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of a trustee
to administer, such Plan.
“Escrow
Bank” has the meaning specified in Section
2.16(c).
“Eurocurrency
Liabilities” has the meaning specified in Regulation D of the Board
of Governors of the Federal Reserve System, as in effect from time to
time.
“Eurodollar
Lending Office” means, with respect to any Lender Party, the office of
such Lender Party specified as its “Eurodollar Lending Office” opposite its name
on Schedule I hereto or in the Assignment and Acceptance pursuant to which
it became a Lender Party (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender Party as such Lender Party
may from time to time specify to the Borrower and the Administrative
Agent.
“Eurodollar
Rate” means, for any Interest Period for all Eurodollar Rate Advances
comprising part of the same Borrowing:
(a) the
rate per annum equal to the rate determined by the Administrative Agent to be
the offered rate that appears on the page of the LIBOR I screen (or any
successor thereto) that displays an average British Bankers Association Interest
Settlement Rate for deposits in U.S. Dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period, determined
as of approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period, or
(b) if
the rate referenced in the preceding subsection (a) does not appear on such page
or service or such page or service shall cease to be available, the rate per
annum equal to the rate determined by the Administrative Agent to be the offered
rate on such other page or other service that displays an average British
Bankers Association Interest Settlement Rate for deposits in U.S. Dollars (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00 A.M. (London time)
two Business Days prior to the first day of such Interest Period,
or
12
(c) if
the rates referenced in the preceding subsections (a) and (b) are not available,
the rate per annum determined by the Administrative Agent as the rate of
interest (rounded upward to the next 1/100th of 1%) at which deposits in U.S.
Dollars for delivery on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Rate Advance being made, continued
or converted by the Administrative Agent and with a term equivalent to such
Interest Period would be offered by the Administrative Agent's London Branch to
major banks in the offshore U.S. Dollar market at their request at approximately
11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period.
“Eurodollar Rate
Advance” means an Advance that bears interest as provided in Section 2.07(a)(ii).
“Events of
Default” has the meaning specified in Section 6.01.
“Excess
Amount” has the meaning specified in Section
5.02(n).
“Excess Cash
Flow” means, for any period,
(a)
the sum of (without duplication):
|
(i)
|
EBITDA
plus
|
|
(ii)
|
if
there was a net increase in Consolidated Current Liabilities of the
Borrower and its Subsidiaries during such period, the amount of such net
increase plus
|
|
(iii)
|
if
there was a net decrease in Consolidated Current Assets (excluding cash
and Cash Equivalents) of the Borrower and its Subsidiaries during such
period, the amount of such net decrease less
|
(b) the
sum of (without duplication):
(i) cash
payments made in satisfaction of non-current liabilities plus
(ii) the
amount of any taxes, including taxes based on income, profits or capital, state,
franchise and similar taxes, foreign withholding taxes and foreign unreimbursed
value added Taxes (to the extent added in calculating EBITDA), and including
penalties and interest on any of the foregoing, in each case, paid by the
Borrower and its Subsidiaries (to the extent not otherwise deducted in
calculating EBITDA), including payments made pursuant to any tax sharing
agreements or arrangements among the Borrower, its Subsidiaries and any direct
or indirect parent company of the Borrower (so long as such tax sharing payments
are attributable to the operations of the Borrower and its Subsidiaries) plus
(iii) consolidated
Cash Interest Expense, including costs of surety bonds in connection with
financing activities (to the extent included in Consolidated Cash Interest
Expense), to the extent not otherwise deducted in calculating EBITDA plus
(iv) if
there was a net decrease in Consolidated Current Liabilities of the Borrower and
its Subsidiaries during such period, the amount of such net decrease plus
13
(v) if
there was a net increase in Consolidated Current Assets (excluding cash and Cash
Equivalents) of the Borrower and its Subsidiaries during such period, the amount
of such net increase plus
(vi) the
aggregate amount of Capital Expenditures of the Borrower and its Subsidiaries
paid in cash during such period, except to the extent financed with long term
Indebtedness (other than revolving Indebtedness) plus
(vii) the
aggregate amount of all scheduled principal payments of Debt made during such
period (other than pursuant to Section 2.06) plus
(viii) the
aggregate principal amount of all optional prepayments of Debt (other than Debt
under the Loan Documents or Debt that is revolving in nature except to the
extent such Debt is permanently reduced in connection with such repayment) made
during such period plus
(ix) the
aggregate principal amount of Net Cash Proceeds of the type described in clause
(a) or (d) of the definition thereof to the extent that the applicable Net Cash
Proceeds were taken into account in calculating EBITDA plus
(x) to
the extent not deducted in the computation of Net Cash Proceeds in respect of
any Disposition giving rise thereto, the amount of any mandatory permanent
prepayment of Debt (other than Debt hereunder or under any other Loan Document),
together with any interest, premium or penalties required to be paid (and
actually paid) in connection therewith plus
(xi) proceeds
received by or on behalf of the Borrower and its Subsidiaries from insurance
claims with respect to casualty events, business interruption or product recalls
to the extent that such proceeds are applied to repair or replace the affected
asset or assets plus
(xii) the
aggregate amount of cash applied to Investments permitted pursuant to Section 5.02(f)
(other than Section
5.02(f)(iii)) during such period plus
(xiii) letter
of credit fees paid in cash, to the extent not otherwise deducted in calculating
EBITDA plus
(xiv) the
aggregate of all extraordinary, unusual or nonrecurring cash charges, to the
extent not otherwise deducted in calculating EBITDA plus
(xv) cash
fees and expenses incurred in connection with the Transactions, any Disposition
permitted and not prohibited under Section 5.02(e),
any Investment permitted under Section 5.02(f), any
recapitalization, any equity offering, the issuance or incurrence of any Debt or
any exchange, refinancing or other early extinguishment of Debt permitted by
this Agreement (in each case, whether or not consummated) plus
(xvi) cash
indemnity payments received pursuant to indemnifications provisions in any
agreement in connection with the Acquisition or any Permitted Acquisition plus
(xvii) cash
from operations used to consummate the Acquisition plus
(xviii) Net
Cash Proceeds pending reinvestment in accordance with Section 2.06(b) plus
14
(xix) the
amount of management, monitoring, consulting and advisory fees and related
expenses paid to the Sponsor permitted by Section 5.01(i), to
the extent not otherwise deducted in calculating EBITDA plus
(xx) cash
expenditures in respect of Hedging Agreements (including net cash losses
resulting in such period from Hedging Agreements) to the extent not otherwise
deducted in calculating EBITDA plus
(xxi) the
amount of payments made by the Borrower to the extent permitted by of Section 5.02(g)
(other than clause (iv) thereof) plus
(xxii) amounts
added to EBITDA pursuant to the definition of “Specified Adjustments” and paid
in cash.
“Excluded
Issuance” means (a) an issuance and sale of common Equity Interests of
the Parent (i) to the Equity Investors (including any Equity Interests issued
upon exercise of any warrant or option) or (ii) to the extent the proceeds of
which are used to implement Investments permitted by this Agreement or fees or
expenses incurred in connection therewith, and (b) any contribution by the
Equity Investors to the capital of the Parent in respect of its Equity
Interests, in the case of each of (a) and (b), to the extent such Equity
Interests are contributed to the Borrower.
“Existing
Debt” means Debt outstanding on the Effective Date under (i) that certain
Senior Subordinated Loan Agreement, dated as of December 29, 2006, by and among
Unitek USA, LLC, Directsat USA, LLC, Advanced Communications USA, LLC, FTS USA,
LLC, WTW USA, LLC and UDA Lender, L.P., a Delaware limited partnership and (ii)
that certain Loan and Security Agreement dated May 11, 2006 by and among Unitek
USA, LLC, Directsat USA, LLC, Advanced Communications USA, LLC, FTS
USA, LLC, WTW USA, LLC and Citizens Bank of Pennsylvania.
“Extraordinary
Receipt” means any cash received by or paid to or for the account of any
Person not in the ordinary course of business, including, without limitation,
tax refunds, pension plan reversions, proceeds of insurance (including, without
limitation, any key man life insurance but excluding proceeds of business
interruption insurance to the extent such proceeds constitute compensation for
lost earnings), condemnation awards (and payments in lieu thereof), indemnity
payments and any purchase price adjustment received in connection with any
purchase agreement (including any working capital adjustment received in
connection with the Purchase Agreement); provided, however, that an
Extraordinary Receipt shall not include cash receipts received from proceeds of
insurance, condemnation awards (or payments in lieu thereof) or indemnity
payments to the extent that such proceeds, awards or payments are received by
any Person in respect of any third party claim against such Person and applied
to pay (or to reimburse such Person for its prior payment of) such claim and the
costs and expenses of such Person with respect thereto.
“Facility”
means the Term B Facility, the Term C Facility, the Revolving Credit Facility,
the Letter of Credit Facility, the Swing Line Facility or any Incremental
Facility.
“Federal Funds
Rate” means, for any period, a fluctuating interest rate per annum equal
for each day during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that is
a Business Day, the average of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
15
“Fee
Letter” means the fee letter dated as of July 19, 2007 among the Borrower
and Royal Bank.
“First Lien
Leverage Ratio” means, at any date of determination, the ratio of (a)
Debt for Borrowed Money as of the last day of such Measurement Period that is
secured by a first-priority security interest in assets of the Parent and its
Subsidiaries to (b) EBITDA for such Measurement Period, in each case as
determined for the Parent and its Subsidiaries on a Consolidated
basis.
“Fiscal
Year” means a fiscal year of the Borrower and its Consolidated
Subsidiaries ending on December 31 in any calendar year.
“Fixed Charge
Coverage Ratio” means, for any Measurement Period, the ratio of
(a)(i) EBITDA less (ii) the amount of
Capital Expenditures that are not financed through the incurrence of
non-revolving long term Debt permitted by this Agreement to (b) the sum of
(i) Cash Interest Expense, plus (ii) scheduled
principal payments on all Debt for Borrowed Money payable in cash, including
without limitation under this Agreement, plus (iii) taxes on
income payable in cash, in each case as determined for the Parent and its
Subsidiaries on a Consolidated basis.
“Fund”
means any Person (other than an individual) that is or will be engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its
business.
“GAAP” has
the meaning specified in Section 1.03(a).
“Governmental
Authority” means any nation or government, any state, province, city,
municipal entity or other political subdivision thereof, and any governmental,
executive, legislative, judicial, administrative or regulatory agency,
department, authority, instrumentality, commission, board, bureau or similar
body, whether xxxxxxx, xxxxx, xxxxxxxxxx, xxxxxxxxxxx, local or
foreign.
“Governmental
Authorization” means any authorization, approval, consent, franchise,
license, covenant, order, ruling, permit, certification, exemption, notice,
declaration or similar right, undertaking or other action of, to or by, or any
filing, qualification or registration with, any Governmental
Authority.
“Guarantee
Obligation” means, with respect to any Person, any Obligation or
arrangement of such Person to guarantee or intended to guarantee any Debt
(“primary
obligations”) of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, including,
without limitation, (a) the direct or indirect guarantee, endorsement (other
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 a primary obligor, (b) the Obligation to make take-or-pay or similar
payments, if required, regardless of nonperformance by any other party or
parties to an agreement or (c) any Obligation of such Person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or
supply funds (A) for the purchase or payment of any such primary obligation
or (B) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor,
(iii) to purchase property, assets, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof. The amount of any
Guarantee Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made (or, if less, the maximum amount of such primary obligation
for which such Person may be liable pursuant to the terms of the instrument
evidencing such Guarantee Obligation) or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder), as determined by such Person in good
faith.
16
“Guaranteed
Obligations” has the meaning specified in Section
8.01(a).
“Guarantors”
means the Parent and the Subsidiary Guarantors.
“Guaranty”
means the Parent Guaranty and the Subsidiary Guaranty.
“Guaranty
Supplement” has the meaning specified in Section
8.05.
“Hazardous
Materials” means (a) any chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or contaminant
under any Environmental Law, and (b) petroleum or petroleum products,
by-products or breakdown products, radioactive materials, asbestos-containing
materials and polychlorinated biphenyls.
“Hedge
Agreements” means interest rate swap, cap or collar agreements, interest
rate future or option contracts, currency swap agreements, currency future or
option contracts and other hedging agreements.
“Hedge
Bank” means any Lender Party or an Affiliate of a Lender Party in its
capacity as a party to a Secured Hedge Agreement.
“Increase
Date” has the meaning specified in Section 2.18(a).
“Increasing
Lender” has the meaning specified in Section 2.18(b).
“Incremental
Commitment
Date” has the meaning specified in Section 2.18(b).
“Incremental
Commitment” has the meaning specified in Section
2.18(a).
“Incremental
Facility” has the meaning specified in Section
2.18(a).
“Incremental
Lender” means an Increasing Lender or an Assuming Lender pursuant to
Section
2.18.
“Incremental
Revolving Credit Facility” has the meaning specified in Section
2.18(a).
“Incremental Term
B Facility” has the meaning specified in Section 2.18(a).
“Indemnified
Costs” has the
meaning specified in Section
7.05(a).
“Indemnified
Party” has the meaning specified in Section 9.04(b).
“Information
Memorandum” means the information memorandum dated August 2007, used by
the Lead Arranger in connection with the syndication of the
Commitments.
“Initial Extension
of Credit” means the earlier to occur of the initial Borrowing and the
initial issuance of a Letter of Credit hereunder.
“Initial Issuing
Bank” means the bank listed on the signature pages hereof as the Initial
Issuing Bank.
17
“Initial
Lenders” means the banks, financial institutions and other institutional
lenders listed on the signature pages hereof as the Initial
Lenders.
“Initial Swing
Line Bank” means the bank listed on the signature pages hereof as the
Initial Swing Line Bank.
“Intercreditor
Agreement” means the Intercreditor Agreement in substantially the form of
Exhibit G between the Collateral Agent and Royal Bank, as second
lien collateral agent for the lenders under the Second Lien Term Loan
Agreement.
“Interest Coverage
Ratio” means, for any Measurement Period, the ratio of (a) EBITDA to
(b) Cash Interest Expense, in each case as determined for the Parent and its
Subsidiaries on a Consolidated basis.
“Interest
Period” means, for each Eurodollar Rate Advance comprising part of the
same Borrowing, the period commencing on the date of such Eurodollar Rate
Advance or the date of the Conversion of any Base Rate Advance into such
Eurodollar Rate Advance, and ending on the last day of the period selected by
the Borrower pursuant to the provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by the Borrower pursuant to
the provisions below. The duration of each such Interest Period shall
be one, two, three or six months and, subject to clause (c) of this definition,
nine or twelve months or a shorter period, as the Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however,
that:
(a) whenever
the last day of any Interest Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period shall be extended to occur on
the next succeeding Business Day; provided, however, that, if
such extension would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period shall occur
on the next preceding Business Day;
(b) whenever
the first day of any Interest Period occurs on a day of an initial calendar
month for which there is no numerically corresponding day in the calendar month
that succeeds such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period shall end on the
last Business Day of such succeeding calendar month; and
(c) in
the case of any such Borrowing, the Borrowers shall not be entitled to select an
Interest Period having duration of nine or twelve months or an Interest Period
shorter than one month unless, by 2:00 P.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period, each Lender
notifies the Administrative Agent that such Lender will be providing funding for
such Borrowing with such Interest Period (the failure of any Lender to so
respond by such time being deemed for all purposes of this Agreement as an
objection by such Lender to the requested duration of such Interest Period);
provided that, if any
or all of the Lenders object to the requested duration of such Interest Period,
the duration of the Interest Period for such Borrowing shall be one, two, three
or six months, as specified by the Borrower requesting such Borrowing in the
applicable Notice of Borrowing as the desired alternative to an Interest Period
of nine or twelve months or an Interest Period shorter than one
month.
“Internal Revenue
Code” means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated and rulings issued
thereunder.
18
“Investment”
in any Person means any loan or advance to such Person, any purchase or other
acquisition of any Equity Interests or Debt or the assets comprising a division
or business unit or a substantial part or all of the business of such Person,
any capital contribution to such Person or any other direct or indirect
investment in such Person.
“Issuing
Bank” means the Initial Issuing Bank and any Eligible Assignee to which
the Letter of Credit Commitment hereunder has been assigned pursuant to Section 9.07 so long
as such Eligible Assignee expressly agrees to perform in accordance with their
terms all of the obligations that by the terms of this Agreement are required to
be performed by it as an Issuing Bank and notifies the Administrative Agent of
its Applicable Lending Office and the amount of its Letter of Credit Commitment
(which information shall be recorded by the Administrative Agent in the
Register), for so long as such Initial Issuing Bank or Eligible Assignee, as the
case may be, shall have a Letter of Credit Commitment.
“L/C
Disbursement” shall mean a payment or disbursement made by any Issuing
Bank pursuant to a Letter of Credit.
“L/C Related
Documents” has the meaning specified in Section 2.04(c)(ii)(A).
“Lead
Arranger” has the meaning specified in the recital of parties to this
Agreement.
“Lender
Party” means any Lender, any Issuing Bank, the Swing Line Bank and any
Incremental Lender.
“Lenders”
means the Initial Lenders and each Person that shall become a Lender hereunder
pursuant to Section 9.07 for
so long as such Initial Lender or Person, as the case may be, shall be a party
to this Agreement.
“Letter of Credit
Advance” means an advance made by the Issuing Bank or any Revolving
Credit Lender pursuant to Section 2.03(c).
“Letter of Credit
Agreement” has the meaning specified in Section 2.03(a).
“Letter of Credit
Commitment” means, with respect to the Issuing Bank, the amount set forth
opposite the Issuing Bank’s name on Schedule I hereto under the caption
“Letter of Credit Commitment” or, if the Issuing Bank has entered into an
Assignment and Acceptance, set forth for the Issuing Bank in the Register
maintained by the Administrative Agent pursuant to Section 9.07(d)
as the Issuing Bank’s “Letter of Credit Commitment” as such amount may be
reduced at or prior to such time pursuant to Section 2.05.
“Letter of Credit
Facility” means, at any time, an amount equal to the amount of the
Issuing Bank’s Letter of Credit Commitments at such time, as such amount may be
reduced at or prior to such time pursuant to Section
2.05.
“Letters of
Credit” has the meaning specified in Section 2.01(c).
“Lien”
means any lien, security interest or other charge or encumbrance of any kind, or
any other type of preferential arrangement, including, without limitation, the
lien or retained security title of a conditional vendor and any easement, right
of way or other encumbrance on title to real property.
19
“Loan
Documents” means (a) for purposes of this
Agreement and the Guaranty, (i) this Agreement, (ii) the Notes,
(iii) the Guaranty, (iv) the Collateral Documents, (v) the Fee
Letter, (vi) the Intercreditor Agreement and (vii) each Letter
of Credit Agreement, in each case as amended, and (b) for purposes
of the Collateral Documents, (i) this Agreement, (ii) the Notes,
(iii) the Guaranty, (iv) the Collateral Documents, (v) the Fee
Letter, (vi) each Letter of Credit Agreement and (vii) each Secured
Hedge Agreement, in each case
as amended.
“Loan
Parties” means the Borrower and the Guarantors.
“Management
Agreements” means (a) the Monitoring and Oversight Agreement dated as of
September 27, 2007, by and among the Company, Borrower, Parent and the Sponsor
and (b) the Financial Advisory Agreement, dated as of September 27, 2007, by and
among the Company, Borrower, Parent and the Sponsor.
“Margin
Stock” has the meaning specified in Regulation U.
“Material Adverse
Change” means any material adverse change in the business, revenues,
operations, financial condition or liabilities (contingent or otherwise) of any
Loan Party or any of its Subsidiaries.
“Material Adverse
Effect” means any event, occurrence, violation, inaccuracy, circumstance
or other matter which has or is reasonably likely to have a material adverse
effect on (i) after the Effective Date (A) the business, assets, properties,
operations, financial condition or results of operations of the Parent and the
Subsidiaries taken as a whole, or (B) the ability of the Loan Parties,
taken as a whole, to perform their obligations under the Loan Documents, or (ii)
on or prior to the Effective Date, a Company Material Adverse
Effect.
“Maximum
Incremental Facility Amount” means, on any date,
$25,000,000.
“Measurement
Period” means, at any date of determination, the most recently completed
four consecutive fiscal quarters of the Parent ending on or prior to such date;
provided that for
purposes of determining Cash Interest Expense for the first three fiscal
quarters ending after the Effective Date, (i) in the case of the first fiscal
quarter ending after the Effective Date, “Measurement Period” shall refer to
Cash Interest Expense for such fiscal quarter multiplied by four,
(ii) in the case of the second fiscal quarter ending after the Effective Date,
“Measurement Period” shall refer to Cash Interest Expense for the two most
recently ended Financial Quarters multiplied by two and
(iii) in the case of the third fiscal quarter ending after the Effective Date,
“Measurement Period” shall refer to Cash Interest Expense for the three most
recently ended Financial Quarters multiplied by
4/3.
“Moody’s”
means Xxxxx’x Investor Services, Inc.
“Mortgaged
Properties” means each real property owned in fee, if any, which shall be
subject to a Mortgage delivered after the Effective Date pursuant to Section
5.01(j).
“Mortgage”
has the meaning specified in Section 5.01(j)(iv).
“Multiemployer
Plan” means a multiemployer plan, as defined in Section 4001(a)(3)
of ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing
an obligation to make contributions, or has within any of the preceding five
plan years made or accrued an obligation to make contributions.
20
“Multiple Employer
Plan” means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that is subject to Title IV of ERISA and
(a) is maintained for employees of any Loan Party or any ERISA Affiliate
and at least one Person other than the Loan Parties and the ERISA Affiliates or
(b) was so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
“Net Cash
Proceeds” means, (a) with respect to any Disposition of any asset of the
Borrower or any of its Subsidiaries (other than Disposition of assets permitted
(or not expressly prohibited) pursuant to Section 5.02(e)(i)
through (xiv)),
the excess, if any, of (i) the sum of cash and Cash Equivalents received in
connection with such sale, lease, transfer or other disposition (including any
cash or Cash Equivalents received by way of deferred payment pursuant to, or by
monetization of, a note receivable or otherwise, but only as and when so
received) over (ii) the sum of (A) the principal amount, premium or penalty (if
any) of any Debt (other than Debt under the Loan Documents) that is secured by
such asset, (B) the reasonable and customary out-of-pocket costs, fees,
commissions, premiums and expenses incurred by the Borrower or its Subsidiaries,
(C) federal, state, provincial, foreign and local taxes reasonably estimated (on
a Consolidated basis) to be actually payable in connection therewith, and (D) a
reasonable reserve for any purchase price adjustment, any indemnification
payments (fixed and contingent) attributable to the seller’s obligations to the
purchaser undertaken by the Borrower or any of its Subsidiaries or any liability
associated therewith or retained by the Borrower or any Subsidiary in connection
with such Disposition (but excluding any purchase price adjustment or
any indemnity which, by its terms, will not under any circumstances be made
prior to the Termination Date); provided, however, that Net
Cash Proceeds shall not include any such amounts to the extent such amounts are
(x) reinvested in the business of the Borrower and its Subsidiaries within 180
days after the date of receipt thereof or (y) committed to be reinvested in the
business of the Borrower and its Subsidiaries within nine months after the date
of receipt thereof, if such reinvestment is completed within 180 days after the
end of such nine month period;
(b) with
respect to the incurrence or issuance of any Debt (other than any Debt permitted
by Section
5.02(b)) by the Borrower or any of its Subsidiaries, the excess of (i)
the sum of the cash and Cash Equivalents received in connection with such
incurrence or issuance over (ii) Taxes and the underwriting discounts and
commissions or other similar payments, and other out-of-pocket costs, fees,
commissions, premiums and expenses incurred by the Borrower or any of its
Subsidiaries in connection with such incurrence or issuance to the extent such
amounts were not deducted in determining the amount referred to in clause
(i);
(c) with
respect to the sale or issuance of any Equity Interests (including, without
limitation, the receipt of any capital contribution) by any Person (other than
Excluded Issuances), an amount equal to the Applicable Equity Prepayment
Percentage of the excess of (i) the sum of the cash and Cash Equivalents
received in connection with such sale or issuance over (ii) Taxes and the
underwriting discounts and commissions or similar payments, and other
out-of-pocket costs, fees, commissions, premiums and expenses, incurred by the
Borrower or any of its Subsidiaries in connection with such sale or issuance to
the extent such amounts were not deducted in determining the amount referred to
in clause (i); and
(d) with
respect to any Extraordinary Receipt that is not otherwise included in clauses
(a), (b) or (c) above, the sum of the cash and Cash Equivalents received in
connection therewith in excess of all Taxes actually paid or estimated by the
Borrower to be payable in respect of the Extraordinary Receipt; provided, however, that Net Cash
Proceeds shall not include any such amounts to the extent such amounts are (x)
reinvested in the business of the Borrower and its Subsidiaries within 180 days
after the date of receipt thereof or (y) committed to be reinvested in the
business of the Borrower and its Subsidiaries within nine months after the date
of receipt thereof, if such reinvestment is completed within 180 days after the
end of such nine month period.
21
“Non-Consenting
Lender” means, in the event that the Required Lenders have agreed to any
consent, waiver or amendment pursuant to Section 9.01 that
requires the consent of one or more Lenders in addition to the Required Lenders,
any Lender who is entitled to agree to such consent, waiver or amendment but who
does not so agree.
“Note”
means a Term Note or a Revolving Credit Note.
“Notice of
Borrowing” has the meaning specified in Section 2.02(a).
“Notice of
Issuance” has the meaning specified in Section 2.03(a).
“Notice of
Renewal” has the meaning specified in Section 2.01(c).
"Notice of Swing
Line Borrowing" has the meaning specified in Section
2.02(b).
“Notice of
Termination” has the meaning specified in Section 2.01(c).
“NPL” means
the National Priorities List under CERCLA.
“Obligation”
means, with respect to any Person, any payment, performance or other obligation
of such Person of any kind, including, without limitation, any liability of such
Person on any claim, whether or not the right of any creditor to payment in
respect of such claim is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, disputed, undisputed, legal, equitable, secured or
unsecured, and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(h). Without
limiting the generality of the foregoing, the Obligations of any Loan Party
under the Loan Documents include (a) the obligation to pay principal,
interest, Letter of Credit commissions, charges, expenses, fees, attorneys’ fees
and disbursements, indemnities and other amounts payable by such Loan Party
under any Loan Document and (b) the obligation of such Loan Party to
reimburse any amount in respect of any of the foregoing that any Lender Party,
in its sole discretion, may elect to pay or advance on behalf of such Loan
Party.
“Other
Taxes” has the meaning specified in Section 2.13(b).
“Parent”
has the meaning specified in the recital of parties to this
Agreement.
“Parent
Guaranty” means the guaranty of the Parent set forth in Article
VIII.
“Participant
Register” has the meaning specified in Section
9.07(g).
“Patriot
Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56,
signed into law October 26, 2001.
“PBGC”
means the Pension Benefit Guaranty Corporation (or any successor).
“Permitted
Acquisition” means any acquisition consummated pursuant to Section
5.02(f)(vii).
“Permitted
Earn-Out Obligations” has the meaning specified in Section 5.02(f)(xv).
“Permitted
Encumbrances” means (a) easements, rights-of-way, zoning restrictions,
minor defects or irregularities in title and other similar encumbrances not
interfering in any material respect with the use of the property to which such
Lien is attached and (b) such other encumbrances specified in the
Mortgages.
22
“Permitted
Liens” means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced
as to a material portion of Collateral: (a) Liens for taxes, assessments
and governmental charges or levies not overdue for more than 30 days and, if
overdue by more than 30 days (i) which are being contested in good faith by
appropriate proceedings for which adequate reserves have been established in
accordance with GAAP or (ii) with respect to which the failure to make such
payment could not, individually or in the aggregate with all such other
payments, reasonably be expected to have a Material Adverse Effect;
(b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’,
workmen’s and repairmen’s Liens and other similar Liens arising in the ordinary
course of business securing obligations that (i) are not overdue for a
period of more than 30 days and (ii) and, if overdue by more than 30 days
(A) which are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books or (B) with respect to which the failure to make
payment could not reasonably be expected to result in a Material Adverse Effect;
(c) pledges or deposits in the ordinary course of business to secure
obligations under workers’ compensation laws or similar legislation or to secure
public or statutory obligations; (d) deposits to secure the performance of bids,
trade contracts and leases (other than indebtedness for borrowed money),
statutory obligations, surety bonds (other than bonds related to judgments or
litigation), performance bonds and other obligations of a like nature incurred
in the ordinary course of business; (e) Liens securing judgments (or the payment
of money not constituting a Default under Section 6.01(h) or
securing appeal or other surety bonds related to such judgments); (f) Liens
arising by virtue of deposits made in the ordinary course of business to secure
liability for premiums to insurance carriers; (g) letters of credit or bank
guarantees that have been posted to support payment of the items in clauses (c),
(d) or (f); and (h) Permitted Encumbrances.
“Permitted
Refinancing” means, with respect to any Person, any (x) modification,
refinancing, refunding, renewal or extension of any Debt of such Person or (y)
conversion of any Debt of such Person into Equity Interests of such Person
(other than Disqualified Equity Interests); provided that, in the case of
any such Debt, (a) the principal amount (or accreted value, if applicable)
thereof does not exceed the principal amount (or accreted value, if applicable)
of the Debt so modified, refinanced, refunded, renewed or extended except by an
amount equal to any unpaid accrued interest and a premium thereon plus other
reasonable amounts paid, and fees and expenses incurred in connection with such
modification, refinancing, refunding, renewal or extension and by an amount
equal to any existing commitments unutilized thereunder or as otherwise
permitted pursuant to Section 5.02(b), (b)
such modification, refinancing, refunding, renewal or extension has a final
maturity date equal to or later than the final maturity date of, and has a
weighted average life to maturity equal to or greater than the weighted average
life to maturity of, the Debt being modified, refinanced, refunded, renewed or
extended, (c) if the Debt being modified, refinanced, refunded, renewed or
extended is subordinated in right of payment to the Loans, such modification,
refinancing, refunding, renewal or extension is subordinated in right of payment
to the Advances on terms not materially less favorable to the Loan Parties,
taken as a whole, than those contained in the documentation governing the Debt
being modified, refinanced, refunded, renewed or extended and (d) the terms and
conditions (including, if applicable, as to collateral) of any such modified,
refinanced, refunded, renewed or extended Debt are not materially less favorable
to the Loan Parties or the Lenders than the terms and conditions of the Debt
being modified, refinanced, refunded, renewed or extended.
“Person”
means an individual, partnership, corporation (including a business trust),
limited liability company, joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any political
subdivision or agency thereof.
23
“Plan”
means a Single Employer Plan or a Multiple Employer Plan.
“Platform”
has the meaning specified in Section
9.02(b).
“Pledged
Debt” has the meaning specified in the Security Agreement.
“Pledged
Equity” has the meaning specified in the Security Agreement.
“Pro Rata
Share” of any amount means, with respect to any Revolving Credit Lender
at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender’s Revolving Credit Commitment at
such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or
6.01, such
Lender’s Revolving Credit Commitment as in effect immediately prior to such
termination) and the denominator of which is the Revolving Credit Facility at
such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or
6.01, the
Revolving Credit Facility as in effect immediately prior to such
termination).
“Pull-Back
Amount” has the meaning specified in Section
5.02(n).
“Purchase
Agreement” has the meaning specified in the Preliminary
Statements.
“Qualified Public
Offering” shall mean the issuance by the Borrower or any direct or
indirect parent of the Borrower of its common Equity Interests in an
underwritten primary public offering (other than a public offering pursuant to a
registration statement on Form S-8) pursuant to an effective registration
statement filed with the U.S. Securities and Exchange Commission in accordance
with the Securities Act of 1933, as amended.
“Redeemable”
means, with respect to any Equity Interest, any such Equity Interest that
(a) the issuer has undertaken to redeem at a fixed or determinable date or
dates, whether by operation of a sinking fund or otherwise, or upon the
occurrence of a condition not solely within the control of the issuer or
(b) is redeemable at the option of the holder.
“Register”
has the meaning specified in Section 9.07(d).
“Regulation
U” means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
“Related
Documents” means the Purchase Agreement and the Second Lien Term Loan
Agreement.
“Required
Lenders” means at any time, Lenders owed or holding more than a 55%
interest of the sum of (i) the aggregate principal amount of the Advances
outstanding at such time, (ii) the aggregate Available Amount of all
Letters of Credit outstanding at such time and (iii) the aggregate Unused
Revolving Credit Commitments at such time; provided, however, that if
any one Lender shall hold at any time more than a 55% interest of the sum of the
amounts set forth in (i), (ii) and (iii) above, then any determination of
Required Lenders shall include such Lender and at least one more Lender; provided further, however,
that if any Lender shall be a Defaulting Lender at such time, there shall be
excluded from the determination of Required Lenders at such time (A) the
aggregate principal amount of the Advances owing to such Lender (in its capacity
as a Lender) and outstanding at such time, (B) such Lender’s Pro Rata Share
of the aggregate Available Amount of all Letters of Credit outstanding at such
time and (C) the Unused Revolving Credit Commitment of such Lender at such
time. For purposes of this definition, the aggregate principal amount
of Swing Line Advances owing to the Swing Line Bank and Letter of Credit
Advances owing to any Issuing Bank and the Available Amount of each Letter of
Credit shall be considered to be owed to the Revolving Credit Lenders ratably in
accordance with their respective Revolving Credit Commitments.
24
“Responsible
Officer” means the chief executive officer, president, chief financial
officer or treasurer of a Loan Party. Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
such Loan Party.
“Revolving Credit
Advance” has the meaning specified in Section 2.01(b).
“Revolving Credit
Borrowing” means a borrowing consisting of simultaneous Revolving Credit
Advances of the same Type made by the Revolving Credit Lenders.
“Revolving Credit
Commitment” means, with respect to any Revolving Credit Lender at any
time, the amount set forth opposite such Lender’s name on Schedule I hereto
under the caption “Revolving Credit Commitment” or, if such Lender has entered
into one or more Assignment and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 9.07(d)
as such Lender’s “Revolving Credit Commitment,” as such amount may be reduced at
or prior to such time pursuant to Section 2.05.
“Revolving Credit
Commitment Fee” means 0.50% per annum; provided that such
amount shall be reduced to 0.375% per annum at any time when the Total Leverage
Ratio is not greater than 2.00:1:00. The Revolving Credit Commitment Fee shall,
as of any date of determination, be determined by reference to the Total
Leverage Ratio as the last day of the Measurement Period ending on the last day
of the most recently-ended fiscal quarter.
“Revolving Credit
Facility” means, at any time, the aggregate amount of the Revolving
Credit Lenders’ Revolving Credit Commitments at such time.
“Revolving Credit
Lender” means any Lender that has a Revolving Credit
Commitment.
“Revolving Credit
Note” means a promissory note of the Borrower payable to the order of any
Revolving Credit Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender resulting
from the Revolving Credit Advances, Letter of Credit Advances and Swing Line
Advances made by such Lender, as amended.
“Royal
Bank” has the meaning specified in the recital of parties to this
Agreement.
“Scheduled
Termination Date” means, (i) in respect of the Term B Facility, the
Revolving Credit Facility, the Letter of Credit Facility and the Swing Line
Facility, the date that is five years following the Effective Date, and (ii) in
respect of the Term C Facility, the Scheduled Termination Date as that term is
defined in the Second Lien Term Loan Agreement (as in effect on the date
hereof).
“Second Lien Term
Loan Agreement” has the meaning specified in the Preliminary
Statements.
“Secured Hedge
Agreement” means any Hedge Agreement required or permitted under Article V that is
entered into by and between the Borrower and any Hedge Bank.
“Secured
Obligations” has the meaning specified in Section 2 of the Security
Agreement.
25
“Secured
Parties” means the Agents, the Lender Parties (other than the Term C
Lenders) and the Hedge Banks.
“Security
Agreement” has the meaning specified in Section 3.01(a)(ii).
“Single Employer
Plan” means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that is subject to Title IV of ERISA, and
(a) is maintained for employees of any Loan Party or any ERISA Affiliate
and no Person other than the Loan Parties and the ERISA Affiliates or
(b) was so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4069 of ERISA in the event
such plan has been or were to be terminated.
“Solvent”
and “Solvency”
mean, with respect to any Person on a particular date, that on such date
(a) the fair value of the property of such Person on a consolidated basis
is greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person on a consolidated basis, (b) the
present fair salable value of the assets of such Person on a consolidated basis
is not less than the amount that will be required to pay the probable liability
of such Person on a consolidated basis on its debts as they become absolute and
matured, (c) such Person on a consolidated basis does not intend to, and
does not believe that it will, incur debts or liabilities beyond such Person’s
ability to pay such debts and liabilities as they mature on a consolidated basis
and (d) such Person on a consolidated basis is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person’s property would constitute an unreasonably small capital on a
consolidated basis. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
“Specified
Adjustments”
means, for any Measurement Period, the sum of:
(a) any
extraordinary, unusual or non-recurring gains or losses, plus/minus
(b) any
non-cash losses or gains resulting from Hedging Agreements permitted by Section 5.02(b),
plus
(c) fees
and expenses incurred in connection with the Transaction within 6 months of the
Effective Date, and
(d) management
and consulting fees relating to the A&M Communications acquisition paid in
lieu of purchase price prior to December 31, 2009 in an aggregate amount not to
exceed $2,000,000, plus
(e) expenses
and fees incurred in connection with, and within 6 months following the date of,
any Permitted Acquisition, whether or not consummated, in an aggregate amount
for all such expenses and fees not to exceed $500,000 for any Measurement
Period, plus
(f) HSP
project start-up expenses incurred within the 6 months following such startup in
an amount equal to the difference between actual gross margin for such HSP
project and a base gross margin of 14%, up to a maximum amount for all such
expenses not to exceed $250,000 for such HSP project, plus
(g) non-cash
losses, charges and expenses, minus
26
(h) cash
payments made during such period in respect of non-cash losses, charges or
expenses added to EBITDA in any prior period, plus
i) notwithstanding the foregoing, EBITDA
to the extent included in any relevant Measurement Period, with respect
to the fiscal quarters ended March 31, 2007, June 30, 2007, September 30, 2007
and December 31, 2007, shall be an amount equal to $1,082,584, $1,506,559,
$443,753 and $398,753, respectively, as provided in the Ernst & Young
quality of earnings report delivered to the Administrative Agent.
“Sponsor”
means, collectively, HM Capital Partners LLC, a Delaware limited liability
company and its Affiliates.
“S&P”
means Standard & Poor’s, a division of The McGraw Hill Companies,
Inc.
“Subordinated
Debt” shall mean Debt of the Loan Parties that is, by its terms,
subordinated in right of payment to the obligations of the Loan Parties under
the Loan Documents, as applicable.
“Subordinated
Obligations” has the meaning specified in Section
8.06.
“Subsidiary”
of any Person means any corporation, partnership, joint venture, limited
liability company, trust or estate of which (or in which) more than 50% of
(a) the issued and outstanding capital stock having ordinary voting power
to elect a majority of the board of directors of such corporation (irrespective
of whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such
partnership, joint venture or limited liability company or (c) the
beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more of
its other Subsidiaries or by one or more of such Person’s other
Subsidiaries.
“Subsidiary
Guarantors” means the Subsidiaries of the Parent listed on
Schedule II hereto and each other Subsidiary of the Parent that shall be
required to execute and deliver a guaranty pursuant to Section 5.01(j).
“Subsidiary
Guaranty” means the guaranty of the Subsidiary Guarantors set forth in
Article VIII,
together with each other guaranty and guaranty supplement delivered pursuant to
Section
5.01(j), in each case as amended, amended and restated, modified or
otherwise supplemented.
“Supplemental
Collateral Agent” has the meaning specified in Section
7.01(c).
“Surviving
Debt” means Debt of each Loan Party and its Subsidiaries outstanding
immediately before and after giving effect to the Initial Extension of
Credit.
“Swing Line
Advance” means an advance made by (a) the Swing Line Bank pursuant to
Section 2.01(d)
or (b) any Revolving Credit Lender pursuant to Section
2.02(b).
“Swing Line
Bank” means the Initial Swing Line Bank and any Eligible Assignee to
which the Swing Line Commitment hereunder has been assigned pursuant to Section 9.07 so long
as such Eligible Assignee expressly agrees to perform in accordance with their
terms all obligations that by the terms of this Agreement are required to be
performed by it as a Swing Line Bank and notifies the Administrative Agent of
its Applicable Lending Office and the amount of its Swing Line Commitment (which
information shall be recorded by the Administrative Agent in the Register), for
so long as such Initial Swing Line Bank or Eligible Assignee, as the case may
be, shall have a Swing Line Commitment.
27
“Swing Line
Borrowing” means a borrowing consisting of a Swing Line Advance made by
the Swing Line Bank pursuant to Section 2.01(d) or
the Revolving Credit Lenders pursuant to Section
2.02(b).
“Swing Line
Commitment” means, with respect to the Swing Line Bank at any time, the
amount set forth opposite the Swing Line Bank’s name on Schedule I hereto under
the caption “Swing Line Commitment” or, if the Swing Line Bank has entered into
an Assignment and Assumptions, set forth for the Swing Line Bank in the Register
maintained by the Administrative Agent pursuant to Section 9.07(d) as
the Swing Line Bank’s “Swing Line Commitment,” as such amount may be reduced at
or prior to such time pursuant to Section
2.05.
“Swing Line
Facility” means, at any time, an amount equal to the lesser of (a) the
amount of the Swing Line Bank’s Swing Line Commitment at such time and (b)
$5,000,000, as such amount may be reduced at or prior to such time pursuant to
Section
2.05.
“Synthetic
Debt” means, with respect to any Person as of any date of determination thereof, all Obligations of such
Person in respect of transactions entered into by such Person that are
intended to function primarily as a borrowing of funds (including, without
limitation, any minority interest transactions that function primarily as a
borrowing) but are not otherwise included in the definition of
“Debt” or as a liability on the consolidated balance sheet of such Person and
its Subsidiaries in accordance with GAAP.
“Tax
Returns” means all returns, statements, filings, attachments and other
documents or certifications required to be filed in respect of taxes and similar
government charges.
“Taxes” has the meaning specified in
Section 2.13(a).
“Term B
Advance” has the meaning specified in Section
2.01(a)(i).
“Term B
Borrowing” means a borrowing consisting of simultaneous Term B Advances
of the same Type made by the Term B Lenders.
“Term B
Commitment” means, with respect to any Term B Lender at any time, the
amount set forth opposite such Lender’s name on Schedule I hereto under the
caption “Term B Commitment” or, if such Lender has entered into one or more
Assignment and Acceptance, set forth for such Lender in the Register maintained
by the Administrative Agent pursuant to Section 9.07(d) as
such Lender’s “Term B Commitment”.
“Term B
Facility” means, at any time, the aggregate amount of the Term B Lenders’
Term B Commitments at such time.
“Term B
Lender” means any Lender that has a Term B Commitment.
“Term B
Note” means a promissory note of the Borrower payable to the order of any
Term B Lender, in substantially the form of Exhibit A-2 hereto, evidencing the
indebtedness of the Borrower to such Lender resulting from the Term B Advance
made by such Lender, as amended.
“Term C
Advance” has the meaning specified in Section
2.01(a)(ii).
“Term C
Borrowing” means a borrowing consisting of simultaneous Term C Advances
of the same Type made by the Term C Lenders.
28
“Term C
Commitment” means, with respect to any Term C Lender at any time, the
amount set forth opposite such Lender’s name on Schedule I hereto under the
caption “Term C Commitment” or, if such Lender has entered into one or more
Assignment and Acceptance, set forth for such Lender in the Register maintained
by the Administrative Agent pursuant to Section 9.07(d) as
such Lender’s “Term C Commitment”.
“Term C Facility” means,
at any time, the aggregate amount of the Term C Commitments at such
time.
“Term C
Lender” means any Lender that has a Term C Commitment.
“Term C
Note” means a promissory note of the Borrower payable to the order of any
Term C Lender, in substantially the form of Exhibit A-3 hereto, evidencing the
indebtedness of the Borrower to such Lender resulting from the Term C Advance
made by such Lender, as amended.
“Termination
Date” shall mean (a) as used in the Collateral Documents and the
Guaranty, the date upon which all Commitments (other than the Term C Commitment)
have terminated, all obligations under all Secured Hedge Agreements have
terminated or otherwise secured or satisfied on terms reasonably acceptable to
the applicable Hedge Banks, no Letters of Credit are outstanding (or as to any
Letter of Credit that remains outstanding, as to which the Borrower has provided
a backstop letter of credit or cash-collateralized the obligations thereunder on
terms reasonably acceptable to the Issuing Bank), and the Advances (other than
the Term C Advances), together with all interest, Fees and other non-contingent
Obligations, have been paid in full in cash, and (b) for all other purposes, the
date upon which all Commitments have terminated, no Letters of Credit are
outstanding (or if Letters of Credit remain outstanding, as to which the
Borrower has cash-collateralized such Letters of Credit), and the Advances,
together with all interest, Fees and other non-contingent Obligations, have been
paid in full in cash.
“Total Leverage
Ratio” means, at any date of determination, the ratio of (a) Debt for
Borrowed Money as of the last day of such Measurement Period to (b) EBITDA for
such Measurement Period, in each case as determined for the Parent and its
Subsidiaries on a Consolidated basis.
“Transaction”
means consummation of the Acquisition and the other transactions contemplated by
the Transaction Documents.
“Transaction
Documents” means, collectively, the Loan Documents and the Related
Documents.
“Type”
refers to the distinction between Advances bearing interest at the Base Rate and
Advances bearing interest at the Eurodollar Rate.
“Unused Revolving
Credit Commitment” means, with respect to any Revolving Credit Lender at
any time, (a) such Lender’s Revolving Credit Commitment at such time minus (b) the sum of
(i) the aggregate principal amount of all Revolving Credit Advances, Swing
Line Advances and Letter of Credit Advances made by such Lender (in its capacity
as a Lender) and outstanding at such time plus (ii) such Lender’s
Pro Rata Share of (A) the aggregate Available Amount of all Letters of
Credit outstanding at such time, (B) the aggregate principal amount of all
Letter of Credit Advances made by the Issuing Bank pursuant to Section 2.03(c)
and outstanding at such time and (C) the aggregate principal amount of all Swing
Line Advances made by the Swing Line bank pursuant to Section 2.01(d) and
outstanding at such time.
29
“Voting
Interests” means shares of capital stock issued by a corporation, or
equivalent Equity Interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of such Person, even if
the right so to vote has been suspended by the happening of such a
contingency.
“Withdrawal
Liability” has the meaning in Title IV of ERISA.
SECTION
1.02. Computation of Time Periods;
Other Definitional Provisions. In this Agreement and the other
Loan Documents in the computation of periods of time from a specified date to a
later specified date, the word “from”
means “from and including” and the words “to” and
“until”
each mean “to but excluding”. References in the Loan Documents to any
agreement or contract “as
amended” shall mean and be a reference to such agreement or contract as
amended, amended and restated, supplemented or otherwise modified from time to
time in accordance with its terms. References to any Person include
the permitted successors and permitted assigns of such Person.
SECTION
1.03. Accounting
Terms. (a) All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles in the United States of America in effect on the date of
determination thereof (“GAAP”);
provided, however,
that, in the event of any change in GAAP or the application thereof including
treatment for revenue recognition from those applied in the preparation of the
financial statements referred to in Section 4.01(g) that would affect
the computation of any financial covenant or requirement set forth in this
Agreement or any other Loan Document, and the Borrower or the Required Lenders
shall so request, the Agents (subject to the approval of the Required Lenders)
and the Borrower shall negotiate in good faith to amend such financial covenant
or requirement to preserve the original intent thereof in light of such change
in GAAP; provided, further,
that, until so amended as provided in the preceding proviso, (a) such
ratio or requirement shall continue to be computed in accordance with GAAP
without regard to such change therein, and (b) the Loan Parties shall furnish to
the Agents financial statements and other documents required under this
Agreement setting forth a reconciliation between calculations of such financial
covenant or requirement made before and after giving effect to such change in
GAAP.
(b) As
of any date of determination, for purposes of determining any test, covenant or
ratio (and any financial calculations required to be made or included within
such ratios), or required for purposes of preparing any certificate to be
delivered pursuant to the definition of “Permitted Acquisition”, the calculation
of such tests, covenants, ratios and other financial calculations shall include
or exclude, as the case may be, the effect of any assets or businesses that have
been acquired or any Subsidiary, line of business or facility Disposed of by the
Borrower or any of its Subsidiaries pursuant to the terms hereof (including
through mergers or consolidations) as of such date of determination, as
determined by the Borrower on a pro forma basis (to be
limited to (i) pro forma adjustments arising out of events which are directly
attributable to the Acquisition, any such Permitted Acquisition, Disposition or
incurrence of Debt, are factually supportable and are expected to have a
continuing impact, in each case as determined on a basis consistent with Article
11 of Regulation S-X of the Securities Act, as interpreted by the Staff of the
Securities and Exchange Commission or (ii) pro forma adjustments reasonably
acceptable to the Administrative Agent and evidenced by a “quality of earnings”
or similar report prepared by the Borrower’s auditors arising out of operating
expense reductions attributable to such transaction being given pro forma effect
that (A) have been realized or (B) will be implemented following such
transaction and are supportable and quantifiable and, in each case, including,
but not limited to, (1) reduction in personnel expenses, (2) reduction of costs
related to administrative functions, (3) reductions of costs related to leased
or owned properties and (4) reductions from the consolidation of operations and
streamlining of corporate overhead) using, for purposes of determining such
compliance, the historical financial statements of all entities or assets so
acquired or sold and the consolidated financial statements of the Borrower and
its Subsidiaries, which shall be reformulated as if such Permitted Acquisition
or Disposition, and all other Permitted Acquisitions or Dispositions that have
been consummated during the period, and any Debt or other liabilities repaid in
connection therewith had been consummated and incurred or repaid at the
beginning of such period (and assuming that such Debt to be incurred bears
interest during any portion of the applicable measurement period prior to the
relevant acquisition at the interest rate which is or would be in effect with
respect to such Debt as at the relevant date of determination); provided that any increase in
EBITDA as a result of such adjustments shall not exceed 15% of total
consolidated EBITDA.
30
SECTION
1.04. Currency Equivalents
Generally. Any amount specified in this Agreement (other than
in Articles II, VII and IX) or any of the other Loan Documents
to be in U.S. dollars shall also include the equivalent of such amount in any
currency other than U.S. dollars, such equivalent amount to be determined at the
rate of exchange quoted by the Administrative Agent in New York, New York at the
close of business on the Business Day immediately preceding any date of
determination thereof, to prime banks in New York, New York for the spot
purchase in the New York foreign exchange market of such amount in U.S. dollars
with such other currency.
ARTICLE
II
AMOUNTS
AND TERMS OF THE ADVANCES
AND
THE LETTERS OF CREDIT
SECTION
2.01. The
Advances and the Letters of Credit. (a) (i) The Term B Advances. Each
Term B Lender severally agrees, on the terms and conditions hereinafter set
forth, to make a single advance (a “Term B
Advance”) to the Borrower on the Effective Date in an amount not to
exceed such Lender’s Term B Commitment at such time. The Term B
Borrowing shall consist of Term B Advances made simultaneously by the Term B
Lenders ratably according to their Term B Commitments. Amounts
borrowed under this Section 2.01(a) and repaid or
prepaid may not be reborrowed.
(ii) The Term C
Advances. Each Term C Lender agrees to make a
Term C Advance on the terms and conditions as set forth in Section 2.01 of the
Second Lien Term Loan Agreement (as in effect on the date hereof); provided that
from and after the making of such advance, such Term C Advance shall be deemed
to be outstanding under this Agreement.
(b) The Revolving Credit
Advances. Each Revolving Credit Lender severally agrees, on
the terms and conditions hereinafter set forth, to make advances (each a “Revolving Credit
Advance”) to the Borrower from time to time on any Business Day during
the period from the Effective Date until the Termination Date in an amount for
each such Advance not to exceed such Lender’s Unused Revolving Credit Commitment
at such time. Each Revolving Credit Borrowing shall be in an
aggregate amount of $1,000,000 or an integral multiple of $100,000 in excess
thereof (other than a Borrowing the proceeds of which shall be used solely to
repay or prepay in full outstanding Letter of Credit Advances) and shall consist
of Revolving Credit Advances made simultaneously by the Revolving Credit Lenders
ratably according to their Revolving Credit Commitments. Within the
limits of each Revolving
Credit Lender’s Unused Revolving Credit Commitment in effect from time to time,
the Borrower may borrow under this Section 2.01(b),
prepay pursuant to Section 2.06(a)
and reborrow under this Section 2.01(b). The
Revolving Credit Facility shall not exceed $20,000,000 at any
time.
31
(c) The Letters of
Credit. The Issuing Bank agrees, on the terms and conditions
hereinafter set forth, to issue (or cause its Affiliate that is a commercial
bank to issue on its behalf) standby letters of credit (the “Letters of
Credit”) in U.S. Dollars for the account of the Borrower from time to
time on any Business Day during the period from the Effective Date until 5
Business Days before the Scheduled Termination Date in an aggregate Available
Amount (i) for all Letters of Credit issued by the Issuing Bank not to
exceed at any time the Letter of Credit Facility at such time and (ii) for
each such Letter of Credit not to exceed an amount equal to the aggregate Unused
Revolving Credit Commitments of the Revolving Credit Lenders at such
time. No Letter of Credit shall have an expiration date (including
all rights of the Borrower or the beneficiary to require renewal) later than the
earlier of (x) the date that is 12 months after the date such Letter of Credit
is issued and (y) the date that is five Business Days before the Scheduled
Termination Date, but may by its terms be renewable automatically for a
successive 12 month period or renewable annually upon notice (a “Notice of
Renewal”) given to the Issuing Bank and the Administrative Agent on or
prior to any date for notice of renewal set forth in such Letter of Credit but
in any event at least three Business Days prior to the date of the proposed
renewal of such Letter of Credit and upon fulfillment of the applicable
conditions set forth in Article III unless
the Issuing Bank has notified the Borrower (with a copy to the Administrative
Agent) on or prior to the date for notice of termination set forth in such
Letter of Credit but in any event at least 30 Business Days prior to the date of
automatic renewal of its election not to renew such Letter of Credit (a “Notice of
Termination”); provided that the terms of
each Letter of Credit that is automatically renewable annually shall
(w) require the Issuing Bank to give the beneficiary named in such Letter
of Credit notice of any Notice of Termination, (x) permit such beneficiary,
upon receipt of such notice, to draw under such Letter of Credit prior to the
date such Letter of Credit otherwise would have been automatically renewed, (y)
permit the Issuing Bank to prevent any such renewal at least once in each twelve
month period (commencing with the date of issuance of each such Letter of
Credit) by giving prior notice to the beneficiary thereof not later than a day
in each such twelve month period to be agreed upon at the time each such Letter
of Credit is issued, and (z) not permit the expiration date (after giving
effect to any renewal) of such Letter of Credit in any event to be extended to a
date later than five Business Days before the Scheduled Termination
Date. If either a Notice of Renewal is not given by the Borrower or a
Notice of Termination is given by the Issuing Bank pursuant to the immediately
preceding sentence, such Letter of Credit shall expire on the date on which it
otherwise would have been automatically renewed; provided, however, that even
in the absence of receipt of a Notice of Renewal the Issuing Bank may in its
discretion, unless instructed to the contrary by the Administrative Agent or the
Borrower, deem that a Notice of Renewal had been timely delivered and in such
case, a Notice of Renewal shall be deemed to have been so delivered for all
purposes under this Agreement. Within the limits of the Letter of
Credit Facility, and subject to the limits referred to above, the Borrower may
request the issuance of Letters of Credit under this Section 2.01(c),
repay any Letter of Credit Advances resulting from drawings thereunder pursuant
to Section 2.04(c)
and request the issuance of additional Letters of Credit under this Section 2.01(c).
The Letter of Credit Facility shall not exceed $10,000,000 at any
time.
(d) The Swing Line
Advances. Each Swing Line Bank severally agrees, on the terms
and conditions hereinafter set forth, to make Swing Line Advances to the
Borrower from time to time on any Business Day during the period from the date
hereof until the Scheduled Termination Date (i) in an aggregate amount not to
exceed at any time outstanding the lesser of (x) the Swing Line Facility at such
time and (y) the Swing Line Bank’s Swing Line Commitment at such time and (ii)
in an amount for each such Swing Line Borrowing not to exceed the aggregate of
the Unused Revolving Credit Commitments of the Revolving Credit Lenders at such
time. No Swing Line Advance shall be used for the purpose of funding
the payment of principal of any other Swing Line Advance. Each Swing
Line Borrowing shall be in an amount of $500,000 or an integral multiple of
$100,000 in excess thereof and shall be made as a Base Rate
Advance. Within the limits of the Swing Line Facility and within the
limits referred to in clause (ii) above, the Borrower may borrow under this
Section
2.01(d), prepay pursuant to Section 2.06 and
reborrow under this Section
2.01(d). Immediately upon the making of a Swing Line Advance,
each Revolving Credit Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Bank a risk
participation in such Swing Line Advance in an amount equal to the product of
such Lender’s Pro Rata Share times the amount of such Swing Line
Advance.
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SECTION
2.02. Making the
Advances. (a) Except as otherwise provided in Section 2.01(a)(ii), 2.02(b) or (c) or 2.03, each Borrowing shall be made on
notice, given not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances, or the first Business Day
prior to the date of the proposed Borrowing in the case of a Borrowing
consisting of Base Rate Advances, by the Borrower to the Administrative Agent,
which shall give to each Appropriate Lender prompt notice thereof by telecopier
or electronic communication. Each such notice by the Borrower of a
Borrowing (a “Notice of
Borrowing”) may be by either telephone (confirmed immediately in
writing), telecopier or electronic communication, in substantially the form of
Exhibit B hereto, in each case specifying therein the requested (i) date of
such Borrowing, (ii) Facility under which such Borrowing is to be made,
(iii) Type of Advances comprising such Borrowing, (iv) aggregate
amount of such Borrowing and (v) in the case of a Borrowing consisting of
Eurodollar Rate Advances, initial Interest Period for each such
Advance. Each Appropriate Lender shall, before 11:00 A.M.
(New York City time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent’s Account, in same day funds, such Lender’s ratable portion
of such Borrowing in accordance with the respective Commitments under the
applicable Facility of such Lender and the other Appropriate
Lenders. After the Administrative Agent’s receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the Administrative
Agent will make such funds available to the Borrower by crediting the Borrower’s
Account; provided,
however, that, in the case of any Revolving Credit Borrowing, the
Administrative Agent shall first apply such funds to prepay ratably the
aggregate principal amount of any Letter of Credit Advances outstanding at such
time, together with interest accrued and unpaid thereon to and as of such
date.
(b) (i)
Each Swing Line Borrowing shall be made on notice, given not later than 11:00
A.M. (New York City time) on the date of the proposed Swing Line Borrowing, by
the Borrower to the Swing Line Bank. Each such notice of a Swing Line
Borrowing (a “Notice of Swing
Line Borrowing”) shall be by telephone, confirmed immediately in writing,
or by telecopier or electronic communication, specifying therein the requested
(i) date of such Borrowing, (ii) amount of such Borrowing and (iii) maturity of
such Borrowing (which maturity shall be no later than the seventh day after the
requested date of such Borrowing). The Swing Line Bank will make the
amount of the requested Swing Line Advances available to the Borrower at the
Borrower’s Account, in same day funds.
(ii) The
Swing Line Bank may, at any time in its sole and absolute discretion, make a
request to the Administrative Agent on behalf of the Borrower (and the Borrower
hereby irrevocably authorizes the Swing Line Bank to so request on its behalf)
that each Revolving Credit Lender make a Base Rate Advance in an amount equal to
such Lender’s Pro Rata Share of the amount of Swing Line Advances then
outstanding. Such request shall be deemed to be a Notice of Borrowing for
purposes hereof and shall be made in accordance with the provisions of Section 2.02(a)
without regard solely to the minimum amounts specified therein but subject to
the satisfaction of the conditions set forth in Section 3.02; provided, that for the
purposes of determining each Revolving Credit Lender’s Commitment with respect
to such Borrowing, the Swing Line Advance to be repaid with the proceeds of such
Borrowing shall be deemed to not be outstanding. The Swing Line Bank
shall furnish the Borrower with a copy of the applicable Notice of Borrowing
promptly after delivering such notice to the Administrative
Agent. Each Revolving Credit Lender shall make an amount equal to its
Pro Rata Share of the amount specified in such Notice of Borrowing available for
the account of its Applicable Lending Office to the Administrative Agent for the
account of the Swing Line Bank, by deposit to the Administrative Agent’s
Account, in same date funds, not later than 11:00 A.M. on the day specified in
such Notice of Borrowing.
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(iii) If
for any reason any Swing Line Advance cannot be refinanced by a Revolving Credit
Borrowing as contemplated by Section 2.02(b)(ii),
the request for Base Rate Advances submitted by the Swing Line Bank as set forth
in Section
2.02(b)(ii) shall be deemed to be a request by the Swing Line Bank that
each of the Revolving Credit Lenders fund its risk participation in the relevant
Swing Line Advance and each Revolving Credit Lender’s payment to the
Administrative Agent for the account of the Swing Line Bank pursuant to Section 2.02(b)(ii)
shall be deemed payment in respect of such participation.
(iv) If
and to the extent that any Revolving Credit Lender shall not have made the
amount of its Pro Rata Share of such Swing Line Advance available to the
Administrative Agent in accordance with the provisions of Section 2.02(b)(ii),
such Revolving Credit Lender agrees to pay to the Administrative Agent forthwith
on demand such amount together with interest thereon, for each day from the date
of the applicable Notice of Borrowing delivered by the Swing Line Bank until the
date such amount is paid to the Administrative Agent, at the greater of the
Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry practices on interbank
compensation.
(v) Each
Revolving Credit Lender’s obligation to make Revolving Credit Advances or to
purchase and fund risk participations in Swing Line Advance pursuant to this
Section 2.02(b)
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment, defense or
other right that such Lender may have against the Swing Line Bank, the Borrower
or any other Person for any reason whatsoever, (B) the occurrence of continuance
of a Default or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each Revolving
Credit Lender’s obligation to make Revolving Credit Advances pursuant to this
Section 2.02(b)
is subject to satisfaction of the conditions set forth in Section
3.02. No funding of risk participations shall relieve or
otherwise impair the obligation of the Borrower to repay Swing Line Advances,
together with interest as provided herein.
(c) Anything
in subsection (a) above to the contrary notwithstanding, (i) the
Borrower may not select Eurodollar Rate Advances for the initial Borrowing
hereunder or for the first 30 days following the Effective Date (or until such
earlier date as shall be specified in its sole discretion by the Administrative
Agent in a written notice to the Borrower and the Lenders) or for any Borrowing
if the aggregate amount of such Borrowing is less than $1,000,000 or if the
obligation of the Appropriate Lenders to make Eurodollar Rate Advances shall
then be suspended pursuant to Section 2.09 or
2.10 and
(ii) the Term B Advances may not be outstanding as part of more than five
separate Borrowings, the Term C Advance may not be outstanding as part of more
than one Borrowing and the Revolving Credit Advances may not be outstanding as
part of more than ten separate Borrowings.
(d) Each
Notice of Borrowing and each Notice of Swing Line Borrowing shall be irrevocable
and binding on the Borrower. In the case of any Borrowing that the
related Notice of Borrowing specifies is to be comprised of Eurodollar Rate
Advances, the Borrower shall indemnify each Appropriate Lender against any loss,
cost or expense incurred by such Lender as a result of any failure to fulfill on
or before the date specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III
pursuant to Section
9.04(c).
(e) Unless
the Administrative Agent shall have received notice from an Appropriate Lender
prior to the date of any Borrowing under a Facility under which such Lender has
a Commitment that such Lender will not make available to the Administrative
Agent such Lender’s ratable portion of such Borrowing, the Administrative Agent
may assume that such Lender has made such portion available to the
Administrative Agent on the date of such Borrowing in accordance with Section 2.02(a)
and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and
to the extent that such Lender shall not have so made such ratable portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay or pay to the Administrative Agent forthwith on demand such
corresponding amount and to pay interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid or paid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at such time under Section 2.07 to
Advances comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate. If such Lender shall pay to the Administrative
Agent such corresponding amount, such amount so paid shall constitute such
Lender’s Advance as part of such Borrowing for all purposes.
34
(f) The
failure of any Lender to make the Advance to be made by it as part of any
Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
SECTION
2.03. Issuance of and Drawings and
Reimbursement Under Letters of Credit. (a) Request for
Issuance. Each Letter of Credit shall be issued upon notice,
given not later than 11:00 A.M. (New York City time) on the third Business Day prior to
the date of the proposed issuance of such Letter of Credit, by the Borrower to
the Issuing Bank, which shall give to the Administrative Agent and each
Revolving Credit Lender prompt notice thereof by telecopier. Each
such notice of issuance of a Letter of Credit (a “Notice of
Issuance”) may be by either telephone (confirmed immediately in writing)
or telecopier or electronic communication, in each case specifying therein the
requested (A) date of such issuance (which shall be a Business Day),
(B) Available Amount of such Letter of Credit, (C) expiration date of
such Letter of Credit, (D) name and address of the beneficiary of such
Letter of Credit and (E) form of such Letter of Credit, and shall be
accompanied by such application and agreement for letter of credit as the
Issuing Bank may specify to the Borrower for use in connection with such
requested Letter of Credit (a “Letter of Credit
Agreement”). If (x) the requested form of such Letter of
Credit is acceptable to the Issuing Bank in its sole discretion and (y) it has
not received notice of objection to such issuance from the Required Lenders, the
Issuing Bank will, upon fulfillment of the applicable conditions set forth in
Article III,
make such Letter of Credit available to the Borrower at its office referred to
in Section 9.02
or as otherwise agreed with the Borrower in connection with such
issuance. In the event and to the extent that the provisions of any
Letter of Credit Agreement shall conflict with this Agreement, the provisions of
this Agreement shall govern.
(b) Letter of Credit
Reports. The Issuing Bank shall furnish (A) to the
Administrative Agent on the first Business Day of each week a written report
summarizing issuance and expiration dates of Letters of Credit issued by the
Issuing Bank during the previous week and drawings during such week under all
Letters of Credit issued by the Issuing Bank, (B) to each Revolving Credit
Lender on the first Business Day of each month a written report summarizing
issuance and expiration dates of Letters of Credit issued by the Issuing Bank
during the preceding month and drawings during such month under all Letters of
Credit issued by the Issuing Bank and (C) to the Administrative Agent and
each Revolving Credit Lender on the first Business Day of each calendar quarter
a written report setting forth the average daily aggregate Available Amount
during the preceding calendar quarter of all Letters of Credit issued by the
Issuing Bank.
35
(c) Participations in Letters of
Credit. Upon the issuance of a Letter of Credit by the Issuing
Bank under Section
2.03(a), the Issuing Bank shall be deemed, without further action by any
party hereto, to have sold to each Revolving Credit Lender, and each such
Revolving Credit Lender shall be deemed, without further action by any party
hereto, to have purchased from the Issuing Bank, a participation in such Letter
of Credit in an amount for each Revolving Credit Lender equal to such Lender’s
Pro Rata Share of the Available Amount of such Letter of Credit, effective upon
the issuance of such Letter of Credit. In consideration and in
furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and
unconditionally agrees to pay such Lender’s Pro Rata Share of each L/C
Disbursement made by the Issuing Bank and not reimbursed by the Borrower
forthwith on the date due as provided in Section 2.04(c) by
making available for the account of its Applicable Lending Office to the
Administrative Agent for the account of the Issuing Bank by deposit to the
Administrative Agent’s Account, in same day funds, an amount equal to such
Lender’s Pro Rata Share of such L/C Disbursement. Each Revolving
Credit Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this Section 2.03(c) in
respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or an Event of Default or the termination of the
Commitments, and that each such payment shall be made without any off-set,
abatement, withholding or reduction whatsoever. If and to the extent
that any Revolving Credit Lender shall not have so made its Pro Rata Share of
the amount of such L/C Disbursement available to the Administrative Agent, such
Revolving Credit Lender agrees to pay to the Administrative Agent forthwith on
demand such amount together with interest thereon, for each day from the date
such L/C Disbursement is due pursuant to Section 2.04(c) until
the date such amount is paid to the Administrative Agent, at the Federal Funds
Rate for its account or the account of such Issuing Bank, as
applicable. If such Lender shall pay to the Administrative Agent its
Pro Rata Share of the amount of such L/C Disbursement, plus any applicable
interest, for the account of such Issuing Bank on any Business Day, such amount
so paid in respect of principal shall constitute a Letter of Credit Advance made
by such Lender on such Business Day for purposes of this Agreement, and the
outstanding principal amount of the Letter of Credit Advance made by the Issuing
Bank shall be reduced by such amount on such Business Day.
(d) Drawing and
Reimbursement. The payment by the Issuing Bank of a draft
drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by the Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the amount of such draft.
(e) Failure to Make Letter of
Credit Advances. The failure of any Lender to make the Letter
of Credit Advance to be made by it on the date specified in Section 2.03(c) shall
not relieve any other Lender of its obligation hereunder to make its Letter of
Credit Advance on such date, but no Lender shall be responsible for the failure
of any other Lender to make the Letter of Credit Advance to be made by such
other Lender on such date.
SECTION
2.04. Repayment of
Advances. (a)(i) Term
B Advances. The Borrower shall repay to the Administrative
Agent for the ratable account of the Term B Lenders the aggregate outstanding
principal amount of the Term B Advances in quarterly installments payable on the
last Business Day of each March, June, September and December, commencing on the
last Business Day of December, 2007, in an amount equal to (i) on each such date
occurring after the Effective Date through and including December 31, 2008,
0.25% , (ii) on each date occurring thereafter until December 31, 2009, 0.50%,
and (iii) on each date thereafter 0.75%, in each case of the sum of the original
principal amount of the Term B Advances (which amount shall be reduced as a
result of the application of prepayments in accordance with the order of
priority set forth in Section
2.06). The final principal installment shall be repaid on the
Scheduled Termination Date and in any event shall be in an amount equal to the
aggregate principal amount of the Term B Advances outstanding on such
date.
(ii) Term C Advances. The
Borrower shall repay all Term C Advances in accordance with Section 2.04 of the
Second Lien Term Loan Agreement (as in effect on the date hereof).
(b) Revolving Credit
Advances. The Borrower shall repay to the Administrative Agent
for the ratable account of the Revolving Credit Lenders on the Scheduled
Termination Date the aggregate principal amount of the Revolving Credit Advances
then outstanding.
(c) Letter of Credit
Advances. (i) The Borrower shall repay to the
Administrative Agent for the account of the Issuing Bank and each other
Revolving Credit Lender that has made a Letter of Credit Advance on the earlier
of one Business Day following demand and the Scheduled Termination Date, the
outstanding principal amount of each Letter of Credit Advance made by each of
them.
36
(ii) The
Obligations of the Borrower under this Agreement, any Letter of Credit Agreement
and any other agreement or instrument relating to any Letter of Credit shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement, such Letter of Credit Agreement and such other
agreement or instrument under all circumstances, including, without limitation,
the following circumstances (it being understood that any such payment by the
Borrower is without prejudice to, and does not constitute a waiver of, any
rights the Borrower might have or might acquire as a result of the payment
by any
Issuing Bank of any draft or the reimbursement by the Borrower
thereof):
(A) any
lack of validity or enforceability of any Loan Document, any Letter of Credit
Agreement, any Letter of Credit or any other agreement or instrument relating
thereto (all of the foregoing being, collectively, the “L/C Related
Documents”);
(B) any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Obligations of the Borrower in respect of any L/C Related Document
or any other amendment or waiver of or any consent to departure from all or any
of the L/C Related Documents;
(C) the
existence of any claim, set-off, defense or other right that the Borrower may
have at any time against any beneficiary or any transferee of a Letter of Credit
(or any Persons for which any such beneficiary or any such transferee may be
acting), the Issuing Bank or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any unrelated
transaction;
(D) any
statement or any other document presented under a 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;
(E) payment
by the Issuing Bank under a Letter of Credit against presentation of a draft,
certificate or other document that does not strictly comply with the terms of
such Letter of Credit;
(F) any
exchange, release or non-perfection of any Collateral or other collateral, or
any release or amendment or waiver of or consent to departure from the Guaranty
or any other guarantee, for all or any of the Obligations of the Borrower in
respect of the L/C Related Documents; or
(G) any
other circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including, without limitation, any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Borrower or
a guarantor.
(d) Swing Line
Advances. The Borrower shall repay to the Administrative Agent
for the ratable account of the Swing Line Bank and each other Revolving Credit
Lender that has made a Swing Line Advance, the outstanding principal amount of
each Swing Line Advance made by each of them on the earlier of the maturity date
specified in the applicable Notice of Swing Line Borrowing (which maturity shall
be no later than the seventh Business Day after the requested date of such
Borrowing) and the Scheduled Termination Date.
37
SECTION
2.05. Termination or Reduction of
the Commitments. (a) Optional. The
Borrower may, without premium or penalty, upon at least five Business Days’
notice to the Administrative Agent, terminate in whole or reduce in part the
unused portions of the Letter of Credit Facility, the Swing Line Facility and
the Unused Revolving Credit Commitments; provided, however, that each
partial reduction of a Facility (i) shall be in an aggregate amount of
$500,000 or an integral multiple of $100,000 in excess thereof, (ii) shall
be made ratably among the Appropriate Lenders in accordance with their
Commitments with respect to such Facility; provided, further that the
Borrower may rescind or postpone any notice of termination if such termination
would have resulted from a refinancing of all of the Facilities, which
refinancing shall not be consummated or otherwise shall be delayed.
(b) Mandatory.
(i) The
Letter of Credit Facility shall be permanently reduced from time to time on the
date of each reduction in the Revolving Credit Facility by the amount, if any,
by which the amount of the Letter of Credit Facility exceeds the Revolving
Credit Facility after giving effect to such reduction of the Revolving Credit
Facility.
(ii) The
Swing Line Facility shall be permanently reduced from time to time on the date
of each reduction in the Revolving Credit Facility by the amount, if any, by
which the amount of the Swing Line Facility exceeds the Revolving Credit
Facility after giving effect to such reduction of the Revolving Credit
Facility.
SECTION
2.06. Prepayments. (a) Optional. (i)
In respect of each Facility (other than the Term C Facility), the Borrower may,
upon at least one Business Day’s notice in the case of Base Rate Advances and
three Business Days’ notice in the case of Eurodollar Rate Advances, in each
case to the Administrative Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding aggregate principal amount of the Advances
comprising part of the same Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the aggregate principal
amount prepaid; provided,
however, that (x) each partial prepayment shall be in an aggregate
principal amount of $500,000 or an integral multiple of $100,000 in excess
thereof and (y) if any prepayment of a Eurodollar Rate Advance is made on a date
other than the last day of an Interest Period for such Advance, the Borrower
shall also pay any amounts owing pursuant to Section 9.04(c);
provided, however, that the Borrower
may rescind or postpone any notice of prepayment if such prepayment would have
resulted from a refinancing of all of the Facilities, which refinancing shall
not be consummated or otherwise shall be delayed. Each such
prepayment of any Advances (other than the Term C Advances) shall be applied to
the remaining installments thereof as directed by the Borrower.
(ii) In
respect of the Term C Facility, the Borrower may make prepayments as described
in Section 2.06(a) of the Second Lien Term Loan Facility.
(b) Mandatory. Other
than in respect of the Term C Advances (which must be repaid in accordance with
Section 2.06(b) of the Second Lien Term Loan Agreement (as in effect on the date
hereof)), (i) the Borrower shall (i) for the Fiscal Year ending on
December 31, 2008, on the 125th day
following the end of such Fiscal Year, and (ii) commencing with the Fiscal Year
ending on December 31, 2009, on the 100th day
following the end of each Fiscal Year, in each case prepay an aggregate
principal amount of the Advances comprising part of the same Borrowings in an
amount equal to the Applicable Prepayment Percentage of Excess Cash Flow for
such Fiscal Year; provided, that prepayment of
(A) the Term B Advances pursuant to Section 2.06(a) or
(B) the Revolving Advances pursuant to Section 2.06(a) if
accompanied by concurrent identical voluntary reductions of the Revolving Credit
Commitment pursuant to Section 2.05 during
the period commencing on the first day of such Fiscal Year through the date of
prepayment (without duplication) shall reduce on a dollar-for-dollar basis the
amount otherwise required to be prepaid pursuant to this clause
(b)(i). Each such prepayment shall be applied first to the remaining
installments of the Term B Facility on a pro rata basis and second to the Revolving
Credit Facility as set forth in clause (v) below.
38
(ii) The
Borrower shall, within 5 Business Days of the date of receipt of any Net Cash
Proceeds by any Loan Party or any of its Subsidiaries prepay an aggregate
principal amount of the Advances comprising part of the same Borrowings in an
amount equal to the amount of such Net Cash Proceeds. Each such
prepayment shall be applied first to the remaining
installments of the Term B Facility on a pro rata basis and second to the Revolving
Credit Facility as set forth in clause (v) below.
(iii) Upon
notice from the Administrative Agent, the Borrower shall, on each Business Day,
post cash collateral in an aggregate principal amount of the Revolving Credit
Advances comprising part of the same Borrowings, the Letter of Credit Advances
and the Swing Line Advances and, as provided in clause (v) below, deposit an
amount in the Borrower’s Collateral Account in an amount equal to the amount by
which (A) the sum of the aggregate principal amount of (x) the Revolving
Credit Advances, (y) the Letter of Credit Advances and (z) the Swing Line
Advances then outstanding plus the aggregate Available Amount of all Letters of
Credit then outstanding exceeds the Revolving Credit Facility on such Business
Day.
(iv) Upon
notice from the Administrative Agent, the Borrower shall, on each Business Day,
pay to the Administrative Agent for deposit in the Collateral Account an amount
sufficient to cause the aggregate amount on deposit in the Collateral Account to
equal the amount by which the aggregate Available Amount of all Letters of
Credit then outstanding exceeds the Letter of Credit Facility on such Business
Day.
(v) Prepayments
of the Revolving Credit Facility made pursuant to clauses (i), (ii) or (iii)
above shall be first
applied to prepay Letter of Credit Advances then outstanding until such Advances
are paid in full, second applied to prepay
Swing Line Advances then outstanding until such Advances are paid in full; third applied to prepay
Revolving Credit Advances then outstanding comprising part of the same
Borrowings until such Advances are paid in full and fourth (solely in respect of
clauses (iii) and (iv) above) applied as set forth in clause (iv)
above.
(vi) Notwithstanding
anything to the contrary contained in subsection (b)(ii) of this Section 2.06, so long
as no Event of Default shall have occurred and be continuing and subject to
reinvestment rights of the Loan Parties, if, on any date on which a prepayment
of Advances would otherwise be required pursuant to subsection (b)(ii) of this
Section 2.06,
the aggregate amount of Net Cash Proceeds or other amounts otherwise required by
such subsections to be applied to prepay Advances on such date are less than or
equal to $250,000, the Borrower may defer such prepayment until the date on
which the aggregate amount of Net Cash Proceeds or other amounts otherwise
required by such subsections to be applied to prepay Advances exceeds
$1,000,000, and then only the excess over $1,000,000 shall be required to prepay
Advances. During such deferral period the Borrower may apply all or
any part of such aggregate amount to prepay Revolving Credit Advances and may,
subject to the fulfillment of the conditions set forth in Section 3.02,
reborrow such amounts (which amounts, to the extent originally constituting Net
Cash Proceeds, shall be deemed to retain their original character as Net Cash
Proceeds when so reborrowed).
(vii) All
prepayments under this subsection (b) shall be made together with accrued
interest to the date of such prepayment on the principal amount prepaid,
together with any amounts owing pursuant to Section
9.04(c).
39
(c) All
payments made pursuant to this Section 2.06 shall be
without penalty or premium (other than payment of any applicable amounts owing
under Section
2.07(b) or Section
9.04(c)).
SECTION
2.07. Interest. (a) Scheduled
Interest. Other than in respect of the Term C Advances, which
interest shall accrue and be paid in accordance with Section 2.07(a) of the
Second Lien Term Loan Agreement (as in effect on the date hereof), the Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate
Advances. During such periods as such Advance is a Base Rate
Advance, a rate per annum equal at all times to the sum of (A) the Base
Rate in effect from time to time plus (B) the Applicable
Margin, payable in arrears quarterly on the last Business Day of each March,
June, September and December during such periods and on the date such Base Rate
Advance shall be Converted or paid in full.
(ii) Eurodollar Rate
Advances. During such periods as such Advance is a Eurodollar
Rate Advance, a rate per annum equal at all times during each Interest Period
for such Advance to the sum of (A) the Eurodollar Rate for such Interest
Period for such Advance plus (B) the Applicable
Margin, payable in arrears on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each day that
occurs during such Interest Period that is three months, or an integral multiple
thereof, after the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full.
(b) Default
Interest. Upon the occurrence and during the continuation of
an Event of Default and at the request of the Required Lenders (or in the case
of an Event of Default under Sections 6.01(e) or
(f),
automatically), the Borrower shall pay interest (“Default
Interest”) on (i) the outstanding principal balance of the Advances owing
to each Lender Party, payable in arrears on the dates referred to in clause (i)
or (ii) of Section
2.07(a), as applicable, and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on such
Advances pursuant to clause (i) or (ii) of Section 2.07(a), as
applicable, and (ii) to the fullest extent permitted by applicable law, the
overdue amount of any such unpaid interest, fee or other amount payable under
this Agreement or any other Loan Document to any Agent or any Lender Party, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid, in the case of interest, on the Type of Advance on which
such interest has accrued pursuant to clause (i) or (ii) of Section 2.07(a), as
applicable, and, in all other cases, on Base Rate Advances pursuant to clause
(i) of Section
2.07(a).
(c) Notice of Interest Period
and Interest Rate. Promptly after receipt of a Notice of
Borrowing pursuant to Section 2.02(a), a
notice of Conversion pursuant to Section 2.09 or
a notice of selection of an Interest Period pursuant to the terms of the
definition of “Interest Period,” the Administrative Agent shall give notice to
the Borrower and each Appropriate Lender of the applicable Interest Period, if
any, and the applicable interest rate determined by the Administrative Agent for
purposes of clause (a)(i) or (a)(ii) above.
40
SECTION
2.08. Fees. (a) Revolving Credit Commitment
Fee. The Borrower shall pay to the Administrative Agent for
the account of the Revolving Credit Lenders a Revolving Credit Commitment Fee,
from the Effective Date in the case of each such Initial Lender and from the
effective date specified in the Assignment and Acceptance pursuant to which it
became a Lender in the case of each other such Lender until the Termination
Date, payable in arrears quarterly on the last Business Day of each March, June,
September and December and on the Termination Date, on the average daily Unused
Revolving Credit Commitment of such Lender disregarding, for purposes of such
determination, the outstanding amount of any Swing Line Advances; provided, however, that any
commitment fee accrued with respect to the Revolving Credit Commitments of a
Defaulting Lender during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by the Borrower
so long as such Lender shall be a Defaulting Lender except to the extent that
such commitment fee shall otherwise have been due and payable by the Borrower
prior to such time; and provided further that no
commitment fee shall accrue on any of the Revolving Credit Commitments of a
Defaulting Lender so long as such Lender shall be a Defaulting
Lender.
(b) Letter of Credit Fees,
Etc. (i) The Borrower shall pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commission, payable in arrears quarterly on the last Business Day of each March,
June, September and December and on the Termination Date, on such Lender’s
Pro Rata Share of the average daily aggregate Available Amount during such
quarter of all Letters of Credit outstanding from time to time at a rate of per
annum equal to the Applicable Margin for Eurodollar Rate Advances under the
Revolving Credit Facility.
(ii) The
Borrower shall pay to each Issuing Bank, for its own account, in arrears
quarterly, on the last Business Day of each March, June, September and December
a fronting fee for each Letter of Credit issued by such Issuing Bank in an
amount equal to 0.125% of the Available Amount of such Letter of Credit on the
date of issuance of such Letter of Credit and other customary commissions,
issuance fees, transfer fees and other fees and charges of the Issuing Bank in
connection with the issuance or administration of each Letter of
Credit.
(c) Agents’
Fees. The Borrower shall pay to each Agent for its own account
such fees as may from time to time be agreed between the Borrower and such
Agent.
SECTION
2.09. Conversion of
Advances. (a) Optional. The
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the date of the proposed Conversion and subject to the provisions
of Sections 2.07
and 2.10,
Convert all or any portion of the Advances (other than a Term C Advance) of one
Type comprising the same Borrowing into Advances of the other Type; provided, however, any
Conversion of Eurodollar Rate Advances into Base Rate Advances on a date other
than the last day of an Interest Period for such Eurodollar Rate Advances shall
be subject to Section
9.04(c), any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be in an amount not less than the minimum amount specified in
Section 2.02(c),
no Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(c)
and each Conversion of Advances comprising part of the same Borrowing under any
Facility shall be made ratably among the Appropriate Lenders in accordance with
their Commitments under such Facility. Each such notice of Conversion
shall, within the restrictions specified above, specify (i) the date of
such Conversion, (ii) the Advances to be Converted and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
(b) Mandatory. (i) On
the date on which the aggregate unpaid principal amount of Eurodollar Rate
Advances comprising any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $1,000,000, such Advances shall automatically Convert
into Base Rate Advances.
(ii) If
the Borrower shall fail to select the duration of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions contained in the
definition of “Interest Period” in Section 1.01,
the Administrative Agent will forthwith so notify the Borrower and the
Appropriate Lenders, whereupon each such Eurodollar Rate Advance will
automatically and, subject to the satisfaction of Section 9.04(c), on
the last day of the then existing Interest Period therefor, Convert into a
Eurodollar Advance of one month’s duration.
41
(iii) Upon
the occurrence and during the continuance of any Event of Default, (x) each
Eurodollar Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance and (y) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended.
SECTION
2.10. Increased Costs,
Etc. (a) If,
due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender Party of agreeing to make or of making, funding or
maintaining Eurodollar Rate Advances or of agreeing to issue or of issuing or
maintaining or participating in Letters of Credit or of agreeing to make or of
making or maintaining Letter of Credit Advances (excluding, for purposes of this
Section 2.10,
any such increased costs resulting from (x) Taxes or Other Taxes (as to
which Section
2.13 shall govern) and (y) changes in the basis of taxation of
overall net income or overall gross income by the United States or by the
foreign jurisdiction or state under the laws of which such Lender Party is
organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, upon demand by such Lender
Party (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender Party additional amounts
sufficient to compensate such Lender Party for such increased cost.
(b) If
any Lender Party determines that compliance with any law or regulation or any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Lender Party or any
corporation controlling such Lender Party and that the amount of such capital is
increased by or based upon the existence of such Lender Party’s commitment to
lend or to issue or participate in Letters of Credit hereunder and other
commitments of such type or the issuance or maintenance of or participation in
the Letters of Credit (or similar contingent obligations), then, upon demand by
such Lender Party or such corporation (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent for
the account of such Lender Party, from time to time as specified by such Lender
Party, additional amounts sufficient to compensate such Lender Party in the
light of such circumstances, to the extent that such Lender Party reasonably
determines such increase in capital to be allocable to the existence of such
Lender Party’s commitment to lend or to issue or participate in Letters of
Credit hereunder or to the issuance or maintenance of or participation in any
Letters of Credit. A certificate as to such amounts submitted to the
Borrower by such Lender Party shall be conclusive and binding for all purposes,
absent manifest error.
(c) If,
with respect to any Eurodollar Rate Advances under any Facility, Lenders owed at
least 51% of the then aggregate unpaid principal amount thereof shall notify the
Administrative Agent that the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Lenders of making, funding
or maintaining their Eurodollar Rate Advances for such Interest Period, the
Administrative Agent shall forthwith so notify the Borrower and the Appropriate
Lenders, whereupon (i) each such Eurodollar Rate Advance under such
Facility will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (ii) the obligation
of the Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lenders have determined that the circumstances causing such
suspension no longer exist.
42
(d)
Notwithstanding any other provision of this Agreement, if the introduction of or
any change in or in the interpretation of any law or regulation shall make it
unlawful, or any central bank or other governmental authority shall assert that
it is unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to continue to fund or
maintain Eurodollar Rate Advances hereunder, then, on notice thereof and demand
therefor by such Lender to the Borrower through the Administrative Agent,
(i) each Eurodollar Rate Advance under each Facility under which such
Lender has a Commitment will automatically, upon such demand, Convert into a
Base Rate Advance and (ii) the obligation of the Appropriate Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Administrative Agent shall notify the Borrower that such Lender has
determined that the circumstances causing such suspension no longer exist; provided, however, that, before making
any such demand, such Lender agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to designate a
different Eurodollar Lending Office if the making of such a designation would
allow such Lender or its Eurodollar Lending Office to continue to perform its
obligations to make Eurodollar Rate Advances or to continue to fund or maintain
Eurodollar Rate Advances and would not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender.
(e)
Notwithstanding the foregoing, this Section 2.10 shall
not apply to the Term C Lender or Obligations in respect of the Term C Advances,
which shall instead be governed by Section 2.10 of the Second Lien Term Loan
Agreement.
SECTION
2.11. Replacement of Lender;
Mitigation of Circumstance. In
the event that any Lender Party demands payment of costs or additional amounts
pursuant to Section
2.10 or Section
2.13 or asserts, pursuant to Section 2.10(d), that
it is unlawful for such Lender Party to make Eurodollar Rate Advances or becomes
a Defaulting Lender then (subject to such Lender Party’s or Issuing Bank’s right
to rescind such demand or assertion within 5 Business Days after the notice from
the Borrower referred to below) the Borrower may, upon 5 Business Days’ notice
to such Lender Party, Issuing Bank and the Administrative Agent, elect to cause
such Lender Party or Issuing Bank to assign its Advances and Commitments in full
to one or more Persons selected by the Borrower so long as (a) each such Person
satisfies the criteria of an Eligible Assignee and is reasonably satisfactory to
the Administrative Agent, (b) such Lender Party receives payment in full in cash
of the outstanding principal amount of all Advances made by it and all accrued
and unpaid interest thereon and all other amounts due and payable to such Lender
Party as of the date of such assignment (including, without limitation, amounts
owing pursuant to Sections 2.10, 2.13 and 9.04) and (c) each
such Lender Party assignee agrees to accept such assignment and to assume all
obligations of such Lender Party hereunder in accordance with Section
9.07.
SECTION
2.12. Payments and
Computations. (a) The
Borrower shall make each payment hereunder and under the other Loan Documents,
irrespective of any right of counterclaim or set-off (except as otherwise
provided in Section
2.16), not later than 11:00 A.M. (New York City time) on the
day when due in U.S. dollars to the Administrative Agent at the Administrative
Agent’s Account in same day funds, with payments being received by the
Administrative Agent after such time being deemed to have been received on the
next succeeding Business Day. The Administrative Agent will promptly
thereafter cause like funds to be distributed (i) if such payment by the
Borrower is in respect of principal, interest, commitment fees or any other
Obligation then payable hereunder and under the other Loan Documents to more
than one Lender Party, to such Lender Parties for the account of their
respective Applicable Lending Offices ratably in accordance with the amounts of
such respective Obligations then payable to such Lender Parties and (ii) if
such payment by the Borrower is in respect of any Obligation then payable
hereunder to one Lender Party, to such Lender Party for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the Register
pursuant to Section 9.07(d),
from and after the effective date of such Assignment and Acceptance, the
Administrative Agent shall make all payments hereunder and under the other Loan
Documents in respect of the interest assigned thereby to the Lender Party
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
43
(b) The
Borrower hereby authorizes each Lender Party and each of its Affiliates, if and
to the extent payment owed to such Lender Party is not made when due hereunder
or under the other Loan Documents to charge from time to time, to the fullest
extent permitted by law, against any or all of the Borrower’s accounts with such
Lender Party or such Affiliate any amount so due.
(c) All
computations of interest based on the Base Rate shall be made by the
Administrative Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Eurodollar Rate or the Federal
Funds Rate and of fees and Letter of Credit commissions shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or commissions are
payable. Each determination by the Administrative Agent of an
interest rate, fee or commission hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(d)
Whenever any payment or the performance of any covenant, duty or obligation or
delivery of any notice, document, certificate or other writing hereunder or
under the other Loan Documents shall be stated to be due on a day other than a
Business Day, such payment, performance or delivery shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment or letter of
credit fee or commission, as the case may be; provided, however, that, if
such extension would cause payment of interest on or principal of Eurodollar
Rate Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.
(e)
Unless the Administrative Agent shall have received notice from the Borrower
prior to the date on which any payment is due to any Lender Party hereunder that
the Borrower will not make such payment in full, the Administrative Agent may
assume that the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each such Lender Party on such due date
an amount equal to the amount then due such Lender Party. If and to
the extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each such Lender Party shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Lender Party together
with interest thereon, for each day from the date such amount is distributed to
such Lender Party until the date such Lender Party repays such amount to the
Administrative Agent, at the Federal Funds Rate.
(f)
Whenever any payment received by the Administrative Agent under the Loan
Documents is insufficient to pay in full all amounts due and payable to the
Agents and the Lender Parties under or in respect of the Loan Documents on any
date, such payment shall be distributed by the Administrative Agent and applied
by the Agents and the Lender Parties in the following order of
priority:
(i)
first, to the payment of all
of the fees, indemnification payments, costs and expenses that are due and
payable to the Agents (solely in their respective capacities as Agents) under or
in respect of this Agreement and the other Loan Documents on such date, ratably
based upon the respective aggregate amounts of all such fees, indemnification
payments, costs and expenses owing to the Agents on such date;
(ii) second, to the payment of all
of the fees, indemnification payments, costs and expenses that are due and
payable to the Issuing Bank (solely in its capacity as such) under or in respect
of this Agreement and the other Loan Documents on such date, ratably based upon
the respective aggregate amounts of all such fees, indemnification payments,
costs and expenses owing to the Issuing Bank;
44
(iii) third, to the payment of all
of the indemnification payments, costs and expenses that are due and payable to
the Lenders under Sections 9.04 hereof,
Section 22 of the Security Agreement and any similar section of any of the other
Loan Documents on such date, ratably based upon the respective aggregate amounts
of all such indemnification payments, costs and expenses owing to the Lenders on
such date;
(iv) fourth, to the payment of all
of the amounts that are due and payable to the Administrative Agent and the
Lender Parties under Sections 2.10 and
2.13 hereof on
such date, ratably based upon the respective aggregate amounts thereof owing to
the Administrative Agent and Lender Parties on such
date;
(v)
fifth, to the payment of all
of the fees that are due and payable to the Appropriate Lenders under Section 2.08(a) on
such date, ratably based upon the respective undrawn aggregate Commitments of
such Lenders under the Facilities on such date;
(vi) sixth, to the payment of all
of the accrued and unpaid interest on the Obligations of the Borrower under or
in respect of the Loan Documents that is due and payable to the Agents and the
Lender Parties under Section 2.07(b) on
such date, ratably based upon the respective aggregate amounts of all such
interest owing to the Agents and the Lender Parties on such date;
(vii) seventh, to the payment of
all of the accrued and unpaid interest on the Advances that is due and payable
to the Lender Parties under Section 2.07(a) on
such date, ratably based upon the respective aggregate amounts of all such
interest owing to the Lender Parties on such date;
(viii) eighth, to the payment of the
principal amount of all of the outstanding Advances and the Secured Hedge
Agreements that is due and payable to the Lender Parties on such date, ratably
based upon the respective aggregate amounts of all such principal owing to the
Administrative Agent and the Lender Parties on such date; and
(ix)
ninth, to the payment of all
other Obligations of the Loan Parties owing under or in respect of the Loan
Documents that are due and payable to the Agents and the other Secured Parties
on such date, ratably based upon the respective aggregate amounts of all such
Obligations owing to the Agents and the other Secured Parties on such
date.
If the
Administrative Agent receives funds for application to the Obligations of the
Loan Parties under or in respect of the Loan Documents under circumstances for
which the Loan Documents do not specify the Advances or the Facility to which,
or the manner in which, such funds are to be applied, the Administrative Agent
may, but shall not be obligated to, elect to distribute such funds to each of
the Lender Parties in accordance with such Lender Party’s Pro Rata Share of the
sum of (A) the aggregate principal amount of all Advances outstanding at such
time and (B) the aggregate Available Amount of all Letters of Credit outstanding
at such time, in repayment or prepayment of such of the outstanding Advances or
other Obligations then owing to such Lender Party, and, in the case of the Term
B Facility, for application to such principal repayment installments thereof, as
the Administrative Agent shall direct.
(g) Notwithstanding
the foregoing, this Section 2.12 shall
not apply to the Term C Lender or the Obligations in respect of the Term C
Advances, which will instead receive applications and payments when the same are
made in respect of the Debt under the Second Lien Term Loan Agreement (such
applications and payments to be governed by Section 2.12 of the Second Lien Term
Loan Agreement).
45
SECTION
2.13. Taxes. (a) Subject
to Section
2.13(f), any and all payments by any Loan Party to or for the account of
any Lender Party or any Agent hereunder or under any other Loan Document shall
be made, in accordance with Section 2.12 or
the applicable provisions of such other Loan Document, if any, free and clear of
and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case
of each Lender Party and each Agent, taxes that are imposed on its overall gross
or net income by the United States and taxes that are imposed on its overall
gross or net income (and franchise taxes imposed in lieu thereof) by the state
or foreign jurisdiction under the laws of which such Lender Party or such Agent,
as the case may be, is organized or any political subdivision thereof and, or by
a jurisdiction in which it is, or formerly was, otherwise engaged in business
(other than solely as a result of the transactions hereunder) (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the other Loan Documents
being hereinafter referred to as “Taxes”). Subject
to Section
2.13(f), if any Loan Party shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder or under any other Loan Document
to any Lender Party or any Agent, (i) the sum payable by such Loan Party
shall be increased as may be necessary so that after such Loan Party and the
Administrative Agent have made all required deductions (including deductions
applicable to additional sums payable under this Section 2.13)
such Lender Party or such Agent, as the case may be, receives an amount equal to
the sum it would have received had no such deductions been made, (ii) such
Loan Party shall make all such deductions and (iii) such Loan Party shall
pay the full amount deducted to the relevant taxing authority or other authority
in accordance with applicable law.
(b) In
addition, each Loan Party shall pay any present or future stamp, documentary,
excise, property, intangible, mortgage recording or similar taxes, charges or
levies that arise from any payment made by such Loan Party hereunder or under
any other Loan Documents or from the execution, delivery or registration of,
performance under, or otherwise with respect to, this Agreement, the other Loan
Documents (hereinafter referred to as “Other
Taxes”).
(c)
Subject to Section
2.13(f), the Loan Parties shall indemnify each Lender Party and each
Agent for and hold them harmless against the full amount of Taxes and Other
Taxes, and for the full amount of taxes of any kind imposed or asserted by any
jurisdiction on amounts payable under this Section 2.13,
imposed on or paid by such Lender Party or such Agent (as the case may be) and
any liability (including penalties, additions to tax, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall
be made within 30 days from the date such Lender Party or such Agent (as the
case may be) makes written demand therefor.
(d) As
soon as practicable, and in no event later than 60 days, after the date of any
payment of Taxes, the appropriate Loan Party shall furnish to the Administrative
Agent, at its address referred to in Section 9.02,
the original or a certified copy of a receipt evidencing such payment, to the
extent such a receipt is issued therefor, or other written proof of payment
thereof that is reasonably satisfactory to the Administrative
Agent. In the case of any payment hereunder or under the other Loan
Documents by or on behalf of a Loan Party through an account or branch outside
the United States or by or on behalf of a Loan Party by a payor that is not a
United States person, if such Loan Party determines that no Taxes are payable in
respect thereof, such Loan Party shall furnish, or shall cause such payor to
furnish, to the Administrative Agent, at such address, an opinion of counsel
acceptable to the Administrative Agent stating that such payment is exempt from
Taxes. For purposes of subsections (d) and (e) of this Section 2.13,
the terms “United
States” and “United States
person” shall have the meanings specified in Section 7701 of the
Internal Revenue Code.
46
(e) Each
Lender Party organized under the laws of a jurisdiction outside the United
States shall, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender Party and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender Party in the
case of each other Lender Party, and from time to time thereafter as reasonably
requested in writing by the Loan Party (but only so long thereafter as such
Lender Party remains lawfully able to do so), provide each of the Administrative
Agent and such Loan Party with two original Internal Revenue Service
Forms X-0XXX, X-0XXX or W-8IMY (with appropriate attachments) or (in the
case of a Lender Party that has certified in writing to the Administrative Agent
that it is not (i) a “bank” as defined in Section 881(c)(3)(A) of the Internal
Revenue Code), (ii) a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Internal Revenue Code) of any Loan Party or (iii) a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Internal Revenue Code), Internal Revenue Service Form
W-8BEN or W-8IMY (with appropriate attachments) as appropriate, or any successor
or other forms prescribed by the Internal Revenue Service, certifying that such
Lender Party is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the other Loan
Documents or, in the case of a Lender Party that has certified that
it is not a “bank” as described above, certifying that such Lender Party is a
foreign corporation, partnership, estate or trust. If the forms
provided by a Lender Party at the time such Lender Party first becomes a party
to this Agreement indicate a United States interest withholding tax rate in
excess of zero, withholding tax at such rate shall be considered excluded from
Taxes unless and until such Lender Party provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
forms; provided, however, that if, at the
effective date of the Assignment and Acceptance pursuant to which a Lender Party
becomes a party to this Agreement, the Lender Party assignor was entitled to
payments under subsection (a) of this Section 2.13 in
respect of United States withholding tax with respect to interest paid at such
date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender Party assignee on such date. If any form or
document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service
Form X-0XXX, X-0XXX or W-8IMY or the related certificate described above,
that the applicable Lender Party reasonably considers to be confidential, such
Lender Party shall give notice thereof to the Borrower and shall not be
obligated to include in such form or document such confidential
information.
(f) For
any period with respect to which a Lender Party has failed to provide the
Borrower with the appropriate form, certificate or other document described in
subsection (e) above (other than if such failure is
due to a change in law, or in the interpretation or application thereof,
occurring after the date on which a form, certificate or other document
originally was required to be provided or if such form, certificate or other
document otherwise is not required under subsection (e) above), such Lender
Party shall not be entitled to indemnification under subsection (a) or (c)
of this Section 2.13
with respect to Taxes imposed by the United States by reason of such failure;
provided, however, that should a
Lender Party become subject to Taxes because of its failure to deliver a form,
certificate or other document required hereunder, the Loan Parties shall take
such steps as such Lender Party shall reasonably request to assist such Lender
Party to recover such Taxes. For sake of clarity, in the case where a
Lender Party assignee is legally unable to deliver a form described in
subsection (e) above due to a change in law, or in the interpretation or
application thereof, that also effected such party's assignor prior to the
assignment, such Lender Party assignee shall not be required to deliver any such
form pursuant to subsection (e) above.
47
(g) If
the Administrative Agent, a Lender or the Issuing Bank determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.13, it
shall pay to the Borrower an amount equal to such refund (but only to the extent
of indemnity payments made, or additional amounts paid, by the Borrower under
this Section
2.13 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent, such
Lender or the Issuing Bank, as the case may be, and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such
refund); provided that
the Borrower, upon the request of the Administrative Agent, such Lender or the
Issuing Bank, agrees to repay the amount paid over to Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the Issuing Bank in the
event the Administrative Agent, such Lender or the Issuing Bank is required to
repay such refund to such Governmental Authority. This paragraph
shall not be construed to require the Administrative Agent, any Lender or the
Issuing Bank to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Borrower or any other
person. Notwithstanding anything to the contrary, in no event will
any Lender be required to pay any amount to the Borrower the payment of which
would place such Lender in a less favorable net after-tax position than such
Lender would have been in if the additional amounts giving rise to such refund
of any Taxes or Other Taxes had never been paid.
(h)
Notwithstanding the foregoing,
this Section
2.13 shall not apply to
the Term C Lender or the Obligations in respect of the Term C Advances, which
will instead be governed by Section 2.13 of the Second Lien Term Loan
Agreement
SECTION
2.14. Sharing of Payments,
Etc. If
any Lender Party shall obtain at any time any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise, other
than as a result of an assignment pursuant to Section 9.07)
(a) on account of Obligations due and payable to such Lender Party
hereunder and under the other Loan Documents at such time in excess of its
ratable share (according to the proportion of (i) the amount of such
Obligations due and payable to such Lender Party at such time to (ii) the
aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under the other Loan Documents at such time) of payments on
account of the Obligations due and payable to all Lender Parties hereunder and
under the other Loan Documents at such time obtained by all the Lender Parties
at such time or (b) on account of Obligations owing (but not due and
payable) to such Lender Party hereunder and under the other Loan Documents at
such time in excess of its ratable share (according to the proportion of
(i) the amount of such Obligations owing to such Lender Party at such time
to (ii) the aggregate amount of the Obligations owing (but not due and
payable) to all Lender Parties hereunder and under the other Loan Documents at
such time) of payments on account of the Obligations owing (but not due and
payable) to all Lender Parties hereunder and under the other Loan Documents at
such time obtained by all of the Lender Parties at such time, such Lender Party
shall forthwith purchase from the other Lender Parties such interests or
participating interests in the Obligations due and payable or owing to them, as
the case may be, as shall be necessary to cause such purchasing Lender Party to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender Party, such purchase from each other Lender Party shall be
rescinded and such other Lender Party shall repay to the purchasing Lender Party
the purchase price to the extent of such Lender Party’s ratable share (according
to the proportion of (i) the purchase price paid to such Lender Party to
(ii) the aggregate purchase price paid to all Lender Parties) of such
recovery together with an amount equal to such Lender Party’s ratable share
(according to the proportion of (i) the amount of such other Lender Party’s
required repayment to (ii) the total amount so recovered from the
purchasing Lender Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so recovered; provided further that, so
long as the Obligations under the Loan Documents shall not have been
accelerated, any excess payment received by any Appropriate Lender shall be
shared on a pro rata basis only with other Appropriate Lenders. The
Borrower agrees that any Lender Party so purchasing an interest or participating
interest from another Lender Party pursuant to this Section 2.14
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such interest or participating
interest, as the case may be, as fully as if such Lender Party were the direct
creditor of the Borrower in the amount of such interest or participating
interest, as the case may be. Notwithstanding the foregoing, this Section 2.14 shall
not apply to the Term C Advances, which shall be governed by Section 2.14 of the
Second Lien Term Loan Agreement.
48
SECTION
2.15. Use
of Proceeds. The
proceeds of (a) Term B Advances and Term C Advances shall be utilized solely to
(i) finance the Acquisition (including the repayment of Existing Debt) and (ii)
pay the fees and expenses incurred in connection with the Transaction of the
Borrower and its Subsidiaries, (b) Revolving Credit Advances shall be utilized
(i) on the Effective Date, to finance in part the Acquisition (to be limited to
(x) the financing of up to $4,000,000 of working capital to be used in
connection with the Acquisition and (y) “backstopping” or replacing existing
letters of credit of the Borrower) and (ii) after the Effective Date, for the
Parent’s and its Subsidiaries’ working capital requirements and other general
corporate purposes (including Investments and purchase price adjustments (up to
$4,000,000) in connection with the Acquisition) and (c) Letters of Credit shall
be utilized for general corporate purposes of the Borrower and its Subsidiaries
(including to “backstop” or replace existing letters of credit of the
Borrower).
SECTION
2.16. Defaulting
Lenders (a) In
the event that, at any one time, (i) any Lender Party shall be a Defaulting
Lender, (ii) such Defaulting Lender shall owe a Defaulted Advance to the
Borrower, and (iii) the Borrower shall be required to make any payment
hereunder or under any other Loan Document to or for the account of such
Defaulting Lender, then the Borrower may, so long as no Default shall occur or
be continuing at such time and to the fullest extent permitted by applicable
law, set off and otherwise apply the Obligation of the Borrower to make such
payment to or for the account of such Defaulting Lender against the obligation
of such Defaulting Lender to make such Defaulted Advance. In the
event that, on any date, the Borrower shall so set off and otherwise apply its
obligation to make any such payment against the obligation of such Defaulting
Lender to make any such Defaulted Advance on or prior to such date, the amount
so set off and otherwise applied by the Borrower shall constitute for all
purposes of this Agreement and the other Loan Documents an Advance by such
Defaulting Lender made on the date of such setoff under the Facility pursuant to
which such Defaulted Advance was originally required to have been made pursuant
to Section 2.01. Such
Advance shall be considered, for all purposes of this Agreement, to comprise
part of the Borrowing in connection with which such Defaulted Advance was
originally required to have been made pursuant to Section 2.01,
even if the other Advances comprising such Borrowing shall be Eurodollar Rate
Advances on the date such Advance is deemed to be made pursuant to this
subsection (a). The Borrower shall notify the Administrative
Agent at any time the Borrower exercises its right of set-off pursuant to this
subsection (a) and shall set forth in such notice (A) the name of the
Defaulting Lender and the Defaulted Advance required to be made by such
Defaulting Lender and (B) the amount set off and otherwise applied in
respect of such Defaulted Advance pursuant to this
subsection (a). Any portion of such payment otherwise required
to be made by the Borrower to or for the account of such Defaulting Lender which
is paid by the Borrower, after giving effect to the amount set off and otherwise
applied by the Borrower pursuant to this subsection (a), shall be applied
by the Administrative Agent as specified in subsection (b) or (c) of this
Section 2.16.
(b) In
the event that, at any one time, (i) any Lender Party shall be a Defaulting
Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to any
Agent or any of the other Lender Parties and (iii) the Borrower shall make
any payment hereunder or under any other Loan Document to the Administrative
Agent for the account of such Defaulting Lender, then the Administrative Agent
may, on its behalf or on behalf of such other Agents or such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent required to
pay such Defaulted Amount. In the event that the Administrative Agent
shall so apply any such amount to the payment of any such Defaulted Amount on
any date, the amount so applied by the Administrative Agent shall constitute for
all purposes of this Agreement and the other Loan Documents payment, to such
extent, of such Defaulted Amount on such date. Any such amount so
applied by the Administrative Agent shall be retained by the Administrative
Agent or distributed by the Administrative Agent to such other Agents or such
other Lender Parties, ratably in accordance with the respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent, such other
Agents and such other Lender Parties and, if the amount of such payment made by
the Borrower shall at such time be insufficient to pay all Defaulted Amounts
owing at such time to the Administrative Agent, such other Agents and such other
Lender Parties, in the following order of priority:
49
(i) first, to the Agents for any
Defaulted Amounts then owing to them, in their capacities as such, ratably in
accordance with such respective Defaulted Amounts then owing to the
Agents;
(ii) second, to the Issuing
Bank and the Swing
Line Bank for any Defaulted Amounts then owing to them, in their capacities as
such, ratably in accordance with such respective Defaulted Amounts then owning
to the Issuing Bank and the Swing Line Bank; and
(iii) third, to any other Lender
Parties for any Defaulted Amounts then owing to such other Lender Parties,
ratably in accordance with such respective Defaulted Amounts then owing to such
other Lender Parties.
Any
portion of such amount paid by the Borrower for the account of such Defaulting
Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by
the Administrative Agent as specified in subsection (c) of this Section 2.16.
(c) In
the event that, at any one time, (i) any Lender Party shall be a Defaulting
Lender, (ii) such Defaulting Lender shall not owe a Defaulted Advance or a
Defaulted Amount and (iii) the Borrower, any Agent or any other Lender
Party shall be required to pay or distribute any amount hereunder or under any
other Loan Document to or for the account of such Defaulting Lender, then the
Borrower or such Agent or such other Lender Party shall pay such amount to the
Administrative Agent to be held by the Administrative Agent, to the fullest
extent permitted by applicable law, in escrow or the Administrative Agent shall,
to the fullest extent permitted by applicable law, hold in escrow such amount
otherwise held by it. Any funds held by the Administrative Agent in
escrow under this subsection (c) shall be deposited by the Administrative
Agent in an account with a bank (the “Escrow
Bank”) selected by the Administrative Agent, in the name and under the
control of the Administrative Agent, but subject to the provisions of this
subsection (c). The terms applicable to such account, including
the rate of interest payable with respect to the credit balance of such account
from time to time, shall be the Escrow Bank’s standard terms applicable to
escrow accounts maintained with it. Any interest credited to such
account from time to time shall be held by the Administrative Agent in escrow
under, and applied by the Administrative Agent from time to time in accordance
with the provisions of, this subsection (c). The Administrative
Agent shall, to the fullest extent permitted by applicable law, apply all funds
so held in escrow from time to time to the extent necessary to make any Advances
required to be made by such Defaulting Lender and to pay any amount payable by
such Defaulting Lender hereunder and under the other Loan Documents to the
Administrative Agent or any other Lender Party, as and when such Advances or
amounts are required to be made or paid and, if the amount so held in escrow
shall at any time be insufficient to make and pay all such Advances and amounts
required to be made or paid at such time, in the following order of
priority:
(i) first, to the Agents for any
amounts then due and payable by such Defaulting Lender to them hereunder, in
their capacities as such, ratably in accordance with such respective amounts
then due and payable to the Agents;
50
(ii) second, to the Issuing Bank
and the Swing Line Bank for any amounts then due and payable to them hereunder,
in their capacities as such, by such Defaulting Lender, ratably in accordance
with such respective amounts then due and payable to the Issuing Bank and the
Swing Line Bank;
(iii) third, to any other Lender
Parties for any amount then due and payable by such Defaulting Lender to such
other Lender Parties hereunder, ratably in accordance with such respective
amounts then due and payable to such other Lender Parties; and
(iv) fourth, to the Borrower for
any Advance then required to be made by such Defaulting Lender pursuant to a
Commitment of such Defaulting Lender.
In the
event that any Lender Party that is a Defaulting Lender shall, at any time,
cease to be a Defaulting Lender, any funds held by the Administrative Agent in
escrow at such time with respect to such Lender Party shall be distributed by
the Administrative Agent to such Lender Party and applied by such Lender Party
to the Obligations owing to such Lender Party at such time under this Agreement
and the other Loan Documents ratably in accordance with the respective amounts
of such Obligations outstanding at such time.
(d) The
rights and remedies against a Defaulting Lender under this Section 2.16 are
in addition to other rights and remedies that the Borrower may have against such
Defaulting Lender with respect to any Defaulted Advance and that any Agent or
any Lender Party may have against such Defaulting Lender with respect to any
Defaulted Amount.
SECTION
2.17. Evidence of
Debt. (a) Each
Lender Party shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Advance owing to such Lender Party from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder. The Borrower agrees that upon notice by any Lender
Party to the Borrower (with a copy of such notice to the Administrative Agent)
to the effect that a promissory note or other evidence of indebtedness is
required or appropriate in order for such Lender Party to evidence (whether for
purposes of pledge, enforcement or otherwise) the Advances owing to, or to be
made by, such Lender Party, the Borrower shall promptly execute and deliver to
such Lender Party, with a copy to the Administrative Agent, a Revolving Credit
Note, a Term B Note and/or a Term C Note, as applicable, in substantially the
form of Exhibits X-0, X-0 and A-3 hereto, respectively, payable to the order of
such Lender Party in a principal amount equal to the Revolving Credit Commitment
and the Term B Commitment, respectively, of such Lender Party. All
references to Notes in the Loan Documents shall mean Notes, if any, to the
extent issued hereunder.
(b) The
Register maintained by the Administrative Agent pursuant to Section 9.07(d)
shall include a control account, and a subsidiary account for each Lender Party,
in which accounts (taken together) shall be recorded (i) the date and
amount of each Borrowing made hereunder, the Type of Advances comprising such
Borrowing and, if appropriate, the Interest Period applicable thereto,
(ii) the terms of each Assignment and Acceptance delivered to and accepted
by it, (iii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender Party hereunder, and
(iv) the amount of any sum received by the Administrative Agent from the
Borrower hereunder and each Lender Party’s share thereof.
(c)
Entries made in good faith by the Administrative Agent in the Register pursuant
to subsection (b) above, and by each Lender Party in its account or accounts
pursuant to subsection (a) above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender Party and, in the
case of such account or accounts, such Lender Party, under this Agreement,
absent manifest error; provided, however, that the failure of
the Administrative Agent or such Lender Party to make an entry, or any finding
that an entry is incorrect, in the Register or such account or accounts shall
not limit or otherwise affect the obligations of the Borrower under this
Agreement.
51
SECTION
2.18. Increase in the Aggregate
Commitments (a) The
Borrower may, at any time and from time to time after the Effective Date and
prior to the earlier of Termination Date and Scheduled Termination Date so long
as no Event of Default has occurred and is continuing, by notice to the
Administrative Agent, request (x) the addition of one or more new term loan
facilities or an increase in the Term B Commitments (each of such commitment
increases and any such new term loan facility being an “Incremental Term
B Facility”) or (y) an increase in the Revolving Credit Commitments (each
of such commitment increases being an “Incremental
Revolving Credit Facility” and, any Incremental Revolving Credit
Facilities together with any Incremental Term B Facilities, each an “Incremental
Facility” and the commitment of any lender with respect to any
Incremental Facility being an “Incremental
Commitment”) to be effective as of a date (the “Increase
Date”) specified in the related notice to the Administrative Agent; provided, however, that (i) in no
event shall the aggregate amount of all Incremental Commitments exceed the
Maximum Incremental Facility Amount; (ii) each Incremental Term B Facility
shall be in an amount not less than $5,000,000; (iii) each Incremental Revolving
Credit Facility shall be in an amount of not less than $5,000,000; (iv) no more
than four such requests may be made pursuant to this Section 2.18; (v) on
the date of any request by the Borrower for an Incremental Commitment and on the
related Increase Date, the applicable conditions set forth in Section 3.02 and
in clause (d) of this Section 2.18
shall be satisfied; (vi) after giving effect to the incurrence of any
Incremental Facility, the Borrower shall be in pro forma compliance with all
financial covenants set forth in Section 5.04;
(vii) after giving pro forma effect to the incurrence of any Incremental
Facility, the Total Leverage Ratio shall not be higher than that immediately
prior to the application of the proceeds of the Incremental Facility;
(viii) the terms of any such Incremental Revolving Credit Facility shall be
the same as the terms of the Revolving Credit Facility and such Incremental
Revolving Credit Facility shall form part of the Revolving Credit Facility for
all purposes; (ix) any Incremental Term B Facility shall have a final
maturity date no earlier than the Scheduled Termination Date and the weighted
average life thereof shall not be less than the weighted average life of the
outstanding Term B Advances; (x) any advances under any Incremental Term B
Facility shall not be entitled to receive optional or mandatory prepayments
unless the existing Term B Advances are entitled simultaneously to receive
prepayments ratably; (xi) any advances under any Incremental Term B Facility
shall not be required to be repaid unless the existing Term B Advances are
required to be repaid ratably; (xii) except as otherwise set forth herein,
such Incremental Term B Facility shall be documented on terms no less favorable
to the Loan Parties than those applicable to the Term B Facility and on other
terms and conditions that are reasonably satisfactory to the Administrative
Agent; (xiii) the Term B Lenders shall initially have the right, but not
the obligation, to commit up to their pro rata portion of any Incremental Term B
Facility; (xiv) the Revolving Credit Lenders shall initially have the
right, but not the obligation, to commit up to their pro rata portion of any
Incremental Revolving Credit Facility; and (xv) the Loan Documents may be
amended by the Administrative Agent and the Loan Parties, if necessary, to
provide for terms applicable to each Incremental Commitment consistent with the
terms hereof.
52
(b) The
Administrative Agent shall promptly notify the Term B Lenders or the Revolving
Credit Lenders of a request by the Borrower for an Incremental Term B Facility
or an Incremental Revolving Credit Facility, respectively, which notice shall
include (i) the proposed amount of such requested Incremental Commitment,
(ii) the proposed Increase Date and (iii) the date by which the
relevant Lenders wishing to participate in the Incremental Commitment must
commit to an increase in the amount of their respective Commitments (which shall
in no event be less than ten Business Days from the date of delivery of such
notice to the relevant Lenders) (the “Incremental
Commitment Date”). Each relevant Lender that is willing to
participate in the requested Incremental Commitment (each an “Increasing
Lender”) shall, in its sole discretion, give written notice to the
Administrative Agent on or prior to the Incremental Commitment Date of the
amount by which it is willing to commit to the Incremental
Facility. Any Lender not responding within such time period shall be
deemed to have declined to participate in the requested Incremental
Commitment. In the event that any Lender elects not to participate in
the requested Incremental Commitment or elects to commit an amount that is less
than its pro rata portion of such Incremental Commitment, each of the remaining
Increasing Lenders shall have the right to increase their participation in the
Incremental Commitment pro
rata, and any remaining amount of the requested Incremental Commitment
shall be allocated among the relevant Lenders (including Persons who become
Lenders in connection therewith) in such amounts as are agreed between the
Borrower and the Administrative Agent.
(c)
Promptly following the applicable Incremental Commitment Date, the
Administrative Agent shall notify the Borrower as to the amount, if any, by
which the relevant Lenders are willing to participate in the requested
Incremental Commitment. If the aggregate amount by which the Lenders
are willing to participate in the requested Incremental Commitment on any such
Incremental Commitment Date is less than the requested Incremental Commitment,
then the Borrower may extend offers to one or more Eligible Assignees to
participate in any portion of the requested Incremental Commitment that has not
been committed to by the relevant Lenders as of the Incremental Commitment Date;
provided, however, that (i) the
Commitment of each such Eligible Assignee shall be in an amount equal to at
least $1,000,000 and (ii) each such Eligible Assignee shall be subject to
the approval of the Administrative Agent (which approval shall not be
unreasonably withheld or delayed).
(d) On
the applicable Increase Date, each Eligible Assignee that accepts an offer to
participate in a requested Incremental Commitment in accordance with Section 2.18(c)
(each such Eligible Assignee, an “Assuming
Lender”) shall become a Lender Party to this Agreement as of the
applicable Increase Date and the Commitment of each Increasing Lender for such
Incremental Commitment shall be so increased by such amount (or by the amount
allocated to such Lender pursuant to the last sentence of Section 2.18(b))
as of such Increase Date; provided, however, that the
Administrative Agent shall have received on or before the Increase Date the
following, each dated such date:
(i) certified
copies of resolutions of the board of directors of the Borrower approving the
applicable Incremental Commitment and the corresponding modifications to this
Agreement;
(ii) an
assumption agreement from each Assuming Lender, if any, in form and substance
reasonably satisfactory to the Borrower and the Administrative Agent (each a
“Commitment
Assumption Agreement”), duly executed by such Eligible Assignee, the
Administrative Agent and each Borrower; and
(iii) conformation
from each Increasing Lender of the increase in the amount of its Commitment in a
writing satisfactory to the Borrower and the Administrative Agent.
On the
applicable Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.18(d),
the Administrative Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) and the Borrower, on or before 1:00 P.M.
(New York City time), by telecopier or telex, of the occurrence of the
applicable Incremental Commitment to be effected on the related Increase Date
and shall record in the Register the relevant information with respect to each
Increasing Lender and each Assuming Lender on such date. On the
applicable Increase Date, the Advances under any Incremental Facility that is to
become part of an outstanding Facility shall bear interest at the Eurodollar
Rates and for the remainder of the Interest Periods that are then applicable to
such outstanding Facility in order to ensure that each Lender under such
Facility, after giving effect to the Incremental Commitments, is entitled to a
ratable share of all interest payments due under such Facility on the same
dates.
53
ARTICLE
III
CONDITIONS
OF LENDING AND
ISSUANCES
OF LETTERS OF CREDIT
SECTION
3.01. Conditions Precedent to
Initial Extension of Credit Subject
to the Closing Date Limitations, Section 2.01 of this
Agreement shall become effective on and as of the first date (the “Effective
Date”) on which the following conditions have been satisfied or waived
and the obligation of each Lender to make an Advance (other than a Term C
Advance, which is governed by Section 3.01 of the Second Lien Term Loan
Agreement) or of the Issuing Bank to issue a Letter of Credit on the Effective
Date is subject to the satisfaction or waiver of such conditions precedent
before or substantially concurrently with the Effective Date:
(a) The
Administrative Agent shall have received on or before the Effective Date the
following, each dated such day (unless otherwise specified), in form and
substance reasonably satisfactory to the Administrative Agent:
(i) The
Notes payable to the order of the Lenders to the extent requested by the Lenders
pursuant to the terms of Section
2.17.
(ii) A
security agreement in substantially the form of Exhibit D hereto (together with
each other security agreement and security agreement supplement delivered
pursuant to Section
5.01(j), in each case as amended, the “Security
Agreement”), duly executed by each Loan Party party thereto, together
with:
(A) certificates,
if any, representing the Pledged Equity referred to therein accompanied by
undated stock powers executed in blank and instruments evidencing the Pledged
Debt indorsed in blank,
(B) proper
financing statements in form appropriate for filing under the Uniform Commercial
Code in all jurisdictions necessary to perfect the first priority (subject only
to Liens permitted by Section 5.02(a))
liens and security interests created under the Security Agreement, covering the
Collateral described in the Security Agreement,
(C) completed
requests for information, dated on or before the Effective Date, listing all
effective financing statements filed in the jurisdictions referred to in clause
(B) above that name any Loan Party as debtor, together with copies of such
financing statements,
(D) evidence
of the insurance required by Section
5.01(d),
(E) evidence
that all other action required by the Collateral Document or reasonably
requested by the Administrative Agent in order to perfect and protect the first
priority (subject only to Liens permitted Section 5.02(a))
liens and security interests created under the Security Agreement has been taken
(including, without limitation, receipt of duly executed payoff letters and
UCC-3 termination statements.
54
(iii) Certified
copies of the resolutions of the board of directors (or similar governing body)
of each Loan Party approving each Loan Document to which it is or is to be a
party.
(iv) A
copy of a certificate of the Secretary of State of the jurisdiction of
incorporation or formation, as applicable, of each Loan Party certifying
(A) as to a true and correct copy of the charter of such Loan Party and
each amendment thereto on file in such Secretary’s office and (B) that
(1) such amendments are the only amendments to such Loan Party’s charter on
file in such Secretary’s office, (2) such Loan Party has paid all franchise
taxes to the date of such certificate and (3) such Loan Party is duly
incorporated or formed, as applicable, and in good standing or presently
subsisting under the laws of the State of the jurisdiction of its incorporation
or formation, as applicable.
(v) A
certificate of each Loan Party, signed on behalf of such Loan Party by its
Secretary or an Assistant Secretary, dated the date of the Initial Extension of
Credit (the statements made in which certificate shall be true on and as of the
date of the Initial Extension of Credit), certifying as to (A) the absence
of any amendments to the charter of such Loan Party since the date of the
Secretary of State’s certificate referred to in Section 3.01(a)(iv),
(B) a true and correct copy of the bylaws (or other applicable formation
documents) of such Loan Party as in effect on the date on which the resolutions
referred to in Section 3.01(a)(iii)
were adopted and on the date of the Initial Extension of Credit, and (C) the
absence of any proceeding for the dissolution or liquidation of such Loan
Party.
(vi) A
certificate signed by the Responsible Officer of the Borrower, dated the date of
the Initial Extension of Credit, certifying as to (A) the truth in all material
respects of the Effective Date Representations contained in the Loan Documents
as though made on and as of the date of the Initial Extension of Credit, other
than any such representations or warranties that, by their terms, refer to a
specific date other than the Effective Date, in which case as of such specific
date and (B) the absence of any event occurring and continuing, or
resulting from the Initial Extension of Credit, that constitutes a
Default.
(vii) A
certificate of the Secretary or an Assistant Secretary of each Loan Party
certifying the names and true signatures of the officers of such Loan Party
authorized to sign each Loan Document to which it is or is to be a party and the
other documents to be delivered hereunder and thereunder.
(viii) A
certified copy of the Purchase Agreement, duly executed by the parties thereto,
together with all exhibits and schedules thereto.
(ix) The
Intercreditor Agreement duly executed by each party thereto and acknowledged by
each Loan Party.
(x) Certificate,
in substantially the form of Exhibit F hereto, attesting to the Solvency of
the Parent and its Subsidiaries on a Consolidated basis, after giving effect to
the Transaction, from its Responsible Officer.
55
(xi) (A)
audited financial statements of the Company and its Subsidiaries for the three
year period prior to the Acquisition, unaudited Consolidated financial
statements of the Company and its Subsidiaries for each subsequent fiscal
quarter ended at least 45 days before the Initial Extension of Credit in each
case, together with related statements of income, stockholders’ equity and cash
flows; (B) the Consolidated pro forma balance sheet of the Company and its
Subsidiaries as at December 31, 2006; (C) Consolidated pro forma forecasts of
operations of the Company and its Subsidiaries, prepared by management of the
Parent for each year commencing with December 31, 2006, until December 31, 2012;
(D) a written certification from the chief financial officer of the Parent and
the Borrower that the pro forma Consolidated EBITDA of the Company and its
subsidiaries for the twelve months ended June 30, 2007 was not less than
$13,000,000; and (E) the pro forma financial statements delivered pursuant to
clause (A) above and the forecasts heretofore delivered to the Administrative
Agent and delivered pursuant to clause (B) above were prepared in good faith on
the basis of the assumptions stated therein, which assumptions are fair in light
of then existing conditions (it being understood that (1) such forecasts are
subject to uncertainties and contingencies which may be beyond any Loan Party’s
control, (2) no assurances are given by any Loan Party that the results set
forth in such forecasts or projections will be realized, and (3) the actual
results may differ from the results set forth in such forecasts or projections
and such differences may be material).
(xii) The
Administrative Agent shall have received evidence of insurance as required
pursuant to Section
5.01(d) naming the Collateral Agent as additional insured and loss
payee.
(xiii) A
Notice of Borrowing or Notice of Issuance, as applicable, relating to the
Initial Extension of Credit.
(xiv) An
opinion of Weil, Gotshal & Xxxxxx LLP, special counsel for the Loan Parties,
in form reasonably satisfactory to the Administrative Agent.
(b) The
Equity Investors shall have made the Equity Contribution.
(c) All
reasonable and invoiced out-of-pocket fees and expenses accrued as of at least
one Business Day prior to the Initial Extension of Credit and required to be
paid by Section
9.04 and all fees required to be paid under the Fee Letter in
connection with the Loan Documents shall have been paid in full.
(d) The
Acquisition shall have been (or substantially simultaneously with the Initial
Extension of Credit shall be) consummated substantially in accordance with the
terms of the Purchase Agreement (except for the payment of the purchase price,
which shall be made substantially concurrently with the Initial Extension of
Credit) without any waiver or amendment not consented to by the Lender Parties
of any term, provision or condition set forth therein, in any manner which would
be materially adverse to the interests of the Lender Parties without the consent
of the Administrative Agent.
(e) The
Administrative Agent shall have received, at least five Business Days prior to
the Effective Date, all information that it has reasonably requested pursuant to
Section
9.13.
(f)
The Administrative Agent shall have
received such other approvals, opinions or documents as any Appropriate Lender,
acting through the Administrative Agent, may reasonably request upon reasonable
prior notice.
56
SECTION
3.02. Conditions Precedent to Each
Borrowing and Issuance. The
obligation of each Appropriate Lender to make an Advance (other than a Letter of
Credit Advance made by the Issuing Bank, a Revolving Credit Lender pursuant to
Section 2.03(c),
a Swing Line Advance made by a Revolving Credit Lender pursuant to Section 2.02(b), or a
Term C Advance) on the occasion of each Borrowing (including the initial
Borrowing), and the obligation of the Issuing Bank to issue a Letter of Credit
(including the initial issuance) and the right of the Borrower to request a
Swing Line Borrowing, shall be subject to the further conditions precedent that
on the date of such Borrowing or issuance the following statements shall be true
and the Administrative Agent shall have received for the account of such Lender
or such Issuing Bank a Borrowing Notice delivered pursuant to Section 2.02, signed
by a Responsible Officer of the Borrower, dated the date of such Borrowing or
issuance, stating that,
(a) the
representations and warranties contained in each Loan Document are true and
correct in all material respects on and as of such date, before and after giving
effect to such Borrowing or issuance or renewal and to the application of the
proceeds therefrom, as though made on and as of such date, other than any such
representations or warranties that, by their terms, refer to a specific date
other than the date of such Borrowing or issuance, in which case as of such
specific date; provided,
however, that solely for purposes of representations and warranties made
on the Effective Date, such representations and warranties shall be limited in
all respects to the Effective Date Representations and
(b) no
Default has occurred and is continuing, or would result from such Borrowing or
issuance or from the application of the proceeds therefrom.
SECTION
3.03. Determinations Under Section
3.01. For
purposes of determining compliance with the conditions specified in Section 3.01,
each Lender Party shall be deemed to have consented to, approved or accepted or
to be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lender Parties
unless an officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Effective Date specifying its objection thereto and, if the
Initial Extension of Credit consists of a Borrowing, such Lender Party shall not
have made available to the Administrative Agent such Lender Party’s ratable
portion of such Borrowing.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01. Representations and
Warranties of the Loan Parties. Each
Loan Party represents and warrants to the Lenders (other than the Term C Lenders
as to which Section 4.01 of the Second Lien Term Loan Agreement shall apply) as
follows:
(a) Existence, Qualification and
Power. Each Loan Party and each of its Subsidiaries (i) is a
corporation, limited liability company or limited partnership duly organized,
validly existing and (as applicable) in good standing under the laws of the
jurisdiction of its formation, except where the failure to be in good standing
could not reasonably be expected to result in a Material Adverse Effect,
(ii) is duly qualified and (as applicable) in good standing as a foreign
corporation or company in each other jurisdiction in which it owns or leases
property or in which the conduct of its business requires it to so qualify or be
licensed, except where the failure to so qualify or be licensed could not be
reasonably expected to have a Material Adverse Effect, (iii) is in compliance
with all laws, writs, injunctions and orders of any Governmental Authority
applicable to it or its property, in each case except those with which failure
to comply could not reasonably be expected to have a Material Adverse Effect,
and (iv) has all requisite corporate, limited liability company or
partnership (as applicable) power and authority (including, without limitation,
all Governmental Authorizations) to own, lease or operate its properties and to
carry on its business as now conducted and as proposed to be conducted, except
those which the failure to own, lease or operate could not reasonably be
expected to have a Material Adverse Effect. All of the outstanding
Equity Interests in the Borrower have been validly issued, are fully paid and
non-assessable.
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(b) Subsidiaries: Equity
Interest. Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of, as of the date hereof, all Subsidiaries of each Loan Party,
showing as of the date hereof (as to each such Subsidiary) the correct legal
name thereof, the type of entity, the jurisdiction of its formation, the number
of shares, membership interests or partnership interests (as applicable) of each
class of its Equity Interests authorized, and the number outstanding, on the
date hereof and the percentage of each such class of its Equity Interests owned
(directly or indirectly) by such Loan Party on the date hereof and the number of
shares covered by all outstanding options, warrants, rights of conversion or
purchase and similar rights at the date hereof. All of the
outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly
issued, are fully paid and non-assessable and are owned by such Loan Party or
one or more of its Subsidiaries free and clear of all Liens, except those
created under the Collateral Documents, Liens securing the Second Lien Term Loan
Agreement on a second-priority basis to the Facilities or Liens permitted by
Section
5.02(a).
(c) Authorization:
Non-Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which it is or is to be a party, and the
consummation of the transaction contemplated hereby, are within such Loan
Party’s corporate, limited liability company or limited partnership (as
applicable) powers, have been duly authorized by all necessary corporate,
limited liability company or limited partnership (as applicable) action, and do
not (i) contravene such Loan Party’s charter, bylaws, limited liability
agreement, partnership agreement or other constituent documents,
(ii) violate any law, rule, regulation applicable to such Loan Party, or
any order, writ, judgment, injunction, decree, determination or award binding on
such Loan Party, (iii) conflict with or result in the breach of, or
constitute a default or require any payment to be made under, any contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument binding
on or affecting any Loan Party, any of its Subsidiaries or any of their
properties, or (iv) except for the Liens created under the Loan Documents,
the Second Lien Term Loan Agreement and the related Loan Documents (as defined
therein) or Liens permitted by Section 5.02(a),
result in or require the creation or imposition of any Lien upon or with respect
to any of the properties of any Loan Party or any of its Subsidiaries except in
each case of clauses (ii) and (iii) above, to the extent such violation, breach,
conflict, default or imposition of a Lien could not reasonably be expected to
have a Material Adverse Effect. No Loan Party or any of its
Subsidiaries is in violation of any such law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or other
instrument, the violation or breach of which could be reasonably likely to have
a Material Adverse Effect.
(d) Governmental Authorization;
Other Consents. Except to the extent the failure to obtain or make the
same could not reasonably be expected to result in a Material Adverse Effect, no
Governmental Authorization, and no notice to or filing with, or consent of any
Governmental Authority or any other third party is required for (i) the due
execution, delivery, recordation, filing or performance by any Loan Party of any
Loan Document to which it is or is to be a party, or for the
consummation of the transaction contemplated hereby, (ii) the grant by any
Loan Party of the Liens granted by it pursuant to the Collateral Documents,
(iii) the perfection or maintenance of the Liens created under the
Collateral Documents (including the first priority (subject only to Liens
permitted by Section
5.02(a)) nature thereof), (iv) the exercise by any Agent or any
Lender Party of its rights under the Loan Documents or the remedies in respect
of the Collateral pursuant to the Collateral Documents, except for the
authorizations, approvals, actions, notices and filings (A) specifically
contemplated by the Collateral Documents or (B) or listed on
Schedule 4.01(d) hereto or (v) filings and registrations necessary to
perfect the Liens on the Collateral granted by the Loan Parties pursuant to the
Collateral Documents.
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(e) Binding Effect. This
Agreement has been, and each other Loan Document when delivered hereunder will
have been, duly executed and delivered by each Loan Party
thereto. This Agreement is, and each other Loan Document when
delivered hereunder will constitute, the legal, valid and binding obligation of
each Loan Party thereto, enforceable against such Loan Party in accordance with
its terms.
(f) Litigation. Except as
set forth on Schedule 4.01(f), no Loan Party or any Subsidiary is a party to any
suit, investigation, litigation or proceeding including any Environmental
Action, pending or, to the knowledge of the Borrower, threatened in writing
before any Governmental Authority or arbitrator that (i) either
individually or in the aggregate could be reasonably likely to have a Material
Adverse Effect or (ii) purports to affect the legality, validity or
enforceability of any Loan Document or the consummation of the transaction
contemplated.
(g) Financial Statements; No
Material Adverse Effect. The financial statements delivered pursuant to
Sections
3.01(a)(xi)(A) and (B) fairly present, in
all material respects, the Consolidated financial condition of the Company and
its Subsidiaries as at such dates and the Consolidated results of operations of
the Company and its Subsidiaries for the periods ended on such dates, all in
accordance with GAAP except as otherwise noted therein and subject, in the case
of any such unaudited financial statements, to changes resulting from audit and
normal year-end adjustments and the absence of footnote disclosures, and since
December 31, 2006, there has been no Material Adverse Change.
(h) Pro Forma Balance
Sheet. The Consolidated pro forma balance sheet of the Company and
its Subsidiaries as at December 31, 2006, certified by a Responsible Officer of
the Borrower, copies of which have been furnished to each Lender Party, fairly
present the Consolidated pro forma financial condition of the Company and
its Subsidiaries as at such date and the Consolidated pro forma results of
operations of the Company and its Subsidiaries for the period ended on such
date, in each case giving effect to the Transaction all in accordance with
GAAP.
(i) Projections. The
Consolidated forecasted statement of operations of the Company and its
Subsidiaries delivered to the Lender Parties pursuant to Section 3.01(a)(xi)
and the Consolidated balance sheet, statements of income and statements of cash
flows of the Parent and its Subsidiaries delivered to the Lender Parties
pursuant to Section
5.03, in each case were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such forecasts, and represented,
at the time of delivery, the Parent’s best estimate of its future financial
performance.
(j) Information. Neither
the Information Memorandum nor any other written information, exhibit or report,
other than projections, pro forma financial information, forecasts and
information of a general economic or industry nature, furnished by or on behalf
of any Loan Party to any Agent or any Lender Party in connection with the
negotiation and syndication of the Loan Documents or pursuant to the terms of
the Loan Documents, taken as a whole at the time it was furnished, contained any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements made therein not materially misleading in light
of the circumstances under which such statements were made.
(k) Margin Regulations.
The Borrower is not engaged in the business of extending credit for the purpose
of purchasing or carrying Margin Stock, and no proceeds of any Advance or
drawings under any Letter of Credit will be used to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing or carrying
any Margin Stock.
59
(l) Investment Company
Act. No Loan Party is an “investment company,” or an “affiliated person”
of, or “promoter” or “principal underwriter” for, an “investment company,” as such
terms are defined in the Investment Company Act of 1940, as
amended.
(m) Security
Interest. The Collateral Documents create in favor of the
Collateral Agent for the benefit of the Secured Parties a valid security
interest in the Collateral, securing the payment of the Secured Obligations, and
upon the filing of UCC financing statements and any Mortgages with respect to
Mortgaged Properties and other actions to be taken pursuant to the Collateral
Documents, such Liens constitute perfected first priority (subject only to the
Liens permitted by Sections 5.02(a))
security interest in the Collateral. The Loan Parties are the legal
and beneficial owners of the Collateral free and clear of any Lien, except for
Liens created or permitted under Section
5.02(a).
(n) Solvency. As
of the Effective Date, after giving effect to the Transaction, the Loan Parties
are, on a consolidated basis, Solvent.
(o) Labor Matters; ERISA
Compliance. Except as, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect,
there is (i) no unfair labor practice complaint pending or, to the knowledge of
the Borrower, threatened against any of the Loan Parties or their Subsidiaries
by or before any Governmental Authority, and no grievance or arbitration
proceeding pending or, to the knowledge of the Borrower, threatened against any
of the Loan Parties or any of their Subsidiaries which arises out of or under
any collective bargaining agreement, (ii) no strike, labor dispute, slowdown,
stoppage or similar action or grievance pending or, to the knowledge of the
Borrower, threatened against any of the Loan Parties or any of their
Subsidiaries and (c) to the knowledge of the Borrower, no union representation
question existing with respect to the employees of any of the Loan Parties or
any of their Subsidiaries and no union organizing activity taking place with
respect to any of the employees of any of them. Set forth on
Schedule 4.01(o) hereto is a complete and accurate list of all Plans and
Multiemployer Plans as of the date hereof.
(i) No
ERISA Event has occurred or is reasonably expected to occur with respect to any
Plan which could be reasonably likely to have a Material Adverse
Effect.
(ii) Schedule
B (Actuarial Information) to the most recent annual report (Form 5500
Series) for each Plan, copies of which have been filed with the Internal Revenue
Service and furnished to the Lender Parties, fairly presents the funding status
of such Plan, and since the date of such Schedule B there has been no
change in such funding status which could be reasonably likely to have a
Material Adverse Effect.
(iii) Neither
any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to
incur any Withdrawal Liability to any Multiemployer Plan which could be
reasonably likely to have a Material Adverse Effect.
(iv) Neither
any Loan Party nor any ERISA Affiliate has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and no such
Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated, within the meaning of Title IV of ERISA which could be
reasonably likely to have a Material Adverse Effect.
60
(p) Environmental
Compliance. (i) Except as set forth on Part I on Schedule
4.01(p) hereto, the operations and properties of each Loan Party and each of its
Subsidiaries comply in all material respects with all applicable Environmental
Laws and Environmental Permits, which compliance includes obtaining and
maintaining all material Environmental Permits that are necessary for the
operations or properties of any of the Loan Parties or any of their Subsidiaries
and all past non-compliance with such Environmental Laws and Environmental
Permits has been resolved without ongoing material obligations or costs, and no
circumstances exist that could be reasonably likely to (A) form the basis
of an Environmental Action against any Loan Party or any of its Subsidiaries or
any of their properties that could have a Material Adverse Effect or
(B) cause any such property to be subject to any material restrictions on
ownership, occupancy, use or transferability under any Environmental Law which
could adversely affect the Loan Parties or any of their
Subsidiaries.
(ii) Except
as would not reasonably be expected to result in the Loan Parties or their
Subsidiaries incurring any material liability and except as set forth on Part II
on Schedule 4.01(p) hereto, none of the properties currently or, to the
knowledge of any Loan Party, formerly owned or operated by any Loan Party or any
of its Subsidiaries is listed or formally proposed for listing on the NPL or on
the CERCLIS or any analogous foreign, state or local list that requires or would
reasonably be expected to require any investigation, remediation, clean-up or
remedial or corrective action under any Environmental Law by any Loan party or
any of its Subsidiaries; the Loan Parties do not currently use and, to the
knowledge of the Loan Parties, there never have been any underground or
aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps
or lagoons in which Hazardous Materials are being or have been treated, stored
or disposed on any property currently owned or operated by any Loan Party or any
of its Subsidiaries; there is no asbestos or asbestos-containing material on any
property currently owned or operated by any Loan Party or any of its
Subsidiaries that requires abatement, encapsulation or remediation pursuant to
Environmental Law; and Hazardous Materials have not been released, discharged or
disposed of by or on behalf of any Loan Party or any of its Subsidiaries that
require any investigation, remediation, clean-up or remedial or corrective
action under any Environmental Law, or on any property currently owned or
operated by any Loan Party or any of its Subsidiaries that require any
investigation, remediation, clean up or remedial or corrective action under any
Environmental Law by any Loan Party or any of its Subsidiaries.
(iii) Except
as set forth on Part III on Schedule 4.01(p) hereto, neither any Loan Party nor
any of its Subsidiaries is undertaking, and has not completed, either
individually or together with other potentially responsible parties, any
investigation or assessment or remedial or response action relating to any
actual or threatened release, discharge or disposal of Hazardous Materials at
any site, location or operation, either voluntarily or pursuant to the order of
any governmental or regulatory authority or the requirements of any
Environmental Law and all Hazardous Materials generated, used, treated, handled
or stored at, or transported to or from, any property currently or formerly
owned or operated by any Loan Party or any of its Subsidiaries have been
disposed of in a manner not reasonably expected to result in material liability
to any Loan Party or any of its Subsidiaries.
(q) Taxes. Except
as set forth on Part I of Schedule 4.01(q), neither any Loan Party nor any of
its Subsidiaries is a party to any tax sharing agreement.
(i) Each
Loan Party and each of its Subsidiaries and Affiliates has filed, has caused to
be filed or has been included in all Tax Returns (Federal, state, local and
foreign) required to be filed and has paid, or caused to be paid, all taxes
shown thereon to be due, together with applicable interest and penalties, except
where the failure to file or pay could not reasonably be expected to have a
Material Adverse Effect.
(ii) Except
as set forth in Part II of Schedule 4.01(q), no issues have been raised by any
Federal, state, local or foreign tax authorities in respect of tax periods for
which the applicable statute of limitations for assessment or collection has not
expired that, individually or in the aggregate, could be reasonably likely to
have a Material Adverse Effect.
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(r) Real Property. Set
forth on Schedule 4.01(r) hereto is a complete and accurate list of all
material real property owned in fee by any Loan Party or any of its Subsidiaries
as of the date hereof, showing as of the date hereof the street address, county
or other relevant jurisdiction, state, record owner and book and fair value
thereof. Each Loan Party or such Subsidiary has good, marketable and
insurable fee simple title to such real property, free and clear of all Liens,
other than Permitted Liens, Permitted Encumbrances, other Liens permitted by
Section
5.02(a), and minor defects in title that do not materially interfere with
such Loan Party’s ability to conduct its business or to utilize such assets for
their intended purposes and except where the failure to have such title could
not reasonably be expected to have a Material Adverse Effect.
(s) Leases. Set forth on
Schedule 4.01(s) hereto is a complete and accurate list of all material
leases of real property under which any Loan Party or any of its Subsidiaries is
the lessee as of the date hereof, showing as of the date hereof the street
address, county or other relevant jurisdiction, state, lessor and
lessee. To the knowledge of each Loan Party, each such lease is the
legal, valid and binding obligation of the lessor thereof, enforceable in
accordance with its terms, except to the extent the failure to have such valid
leasehold could not reasonably be expected to have a Material Adverse
Effect.
(t) Intellectual
Property. Set forth on Schedule 4.01(t) hereto is a complete and
accurate list of all material patents, trademarks, trade names, service marks
and copyrights, and all applications therefor and licenses thereof, of each Loan
Party or any of its Subsidiaries as of the date hereof, showing as of the date
hereof the registration number and the date of registration.
ARTICLE
V
COVENANTS
OF THE LOAN PARTIES
SECTION
5.01. Affirmative
Covenants. Until
the Termination Date, each Loan Party will:
(a) Compliance with Laws,
Etc. (a) Comply, and cause each of its Subsidiaries to comply,
in all material respects, with all applicable laws, rules, regulations and
orders of any Governmental Authority, such compliance to include, without
limitation, compliance with ERISA, the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of 1970 and the Patriot
Act, except to the extent noncompliance could not reasonably be expected to
result in a Material Adverse Effect and (b) obtain and maintain in effect all
Governmental Authorizations that are necessary (i) to own or lease and operate
their respective property and assets and to conduct their respective businesses
as now conducted, except where and to the extent that the failure to obtain or
maintain in effect all Governmental Authorizations, either individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect or (ii) for the due execution, delivery or performance by the Borrower or
any of its Subsidiaries of any of the Loan Documents to which it is a
party.
(b) Payment of Taxes,
Etc. Pay and discharge, and cause each of its Subsidiaries to
pay and discharge, to the extent due and payable and before the same shall
become delinquent, (i) all material taxes, assessments and governmental
charges or levies and other governmental charges imposed upon it or upon its
property and (ii) all lawful claims that, if unpaid, might by law become a
Lien upon its property and assets or any part thereof; provided, however, that neither any
Loan Party nor any of its Subsidiaries shall be required to pay or discharge any
such tax, assessment, reassessment, levy, charge or claim (x) that is being
contested in good faith and by proper proceedings and as to which appropriate
reserves are being maintained, unless and until any Lien resulting therefrom
attaches to its property and becomes enforceable against its other creditors or
(y) the failure to pay could not reasonably be expected to have a Material
Adverse Effect.
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(c) Compliance with
Environmental Laws. Except to the extent that failure to do so
could not reasonably be expected to result in a Material Adverse Effect, comply,
and cause each of its Subsidiaries and use all commercially reasonable efforts
to cause all lessees and other Persons operating or occupying its properties to
comply, in all respects, with all applicable Environmental Laws and
Environmental Permits; which compliance includes: (i) obtaining and
renewing and causing each of its Subsidiaries to obtain and renew, all
Environmental Permits necessary for its operations and properties; and (ii)
conducting and causing each of its Subsidiaries to conduct, any investigation,
study, sampling and testing, and (iii) undertaking any cleanup, removal,
remedial or other action necessary to remove and clean up all Hazardous
Materials from any of its properties, in accordance with the requirements of all
Environmental Laws; provided, however, that neither any
Loan Party nor any of its Subsidiaries shall be required to undertake any such
cleanup, removal, remedial or other action to the extent that its obligation to
do so is being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances.
(d) Maintenance of
Insurance. Maintain, and cause each of its Subsidiaries to
maintain, insurance for their respective properties, assets and businesses with
financially sound and reputable insurance companies or associations (including,
without limitation, insurance against theft and fraud and against loss or damage
by fire, explosion or hazard of or to property and general public liability
insurance), in such amounts and with such deductibles, and covering such risks
as is usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which such Loan Party or such
Subsidiary operates.
(e) Preservation of Legal
Existence, Etc. Except to the extent that the failure to do so
could not reasonably be expected to result in a Material Adverse Effect,
preserve and maintain, and cause each of its Subsidiaries to preserve and
maintain, its existence in its jurisdiction of organization and all material
rights (charter and statutory), permits, licenses, approvals, privileges and
franchises; provided,
however, that such Loan
Party and its Subsidiaries may consummate any merger or consolidation permitted
under Section 5.02(d).
(f) Visitation
Rights. Permit during normal business hours and upon
reasonable advance notice, any of the Agents or any of the Lender Parties, or
any agents or representatives thereof (in each case coordinated through the
Administrative Agent), from time to time, to examine and make copies of and
abstracts from the records and books of account of, and visit the properties of,
such Loan Party and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of such Loan Party and any of its Subsidiaries with any of
their officers, and with their independent certified public accountants; provided that, such Loan
Party shall be given the opportunity to participate in any discussions with its
accountants; provided
further that absent the occurrence and continuation of an Event of
Default, only one such visit shall be at the expense of the Borrower in any
Fiscal Year.
(g) Keeping of
Books. Keep, and cause each of its Subsidiaries to keep,
proper books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of such Loan
Party and each such Subsidiary in accordance with GAAP.
(h) Maintenance of Properties,
Etc. Except if the failure to do so could not reasonably be
expected to have a Material Adverse Effect, (i) maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its material
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear, casualty and condemnation
excepted and (ii) make and cause each of its Subsidiaries to make, from time to
time, all repairs, renewals, additions, replacements, betterments and
improvements of such properties in accordance with prudent industry practice;
provided, however, that nothing in this
Section 5.01(h)
shall prohibit sales of assets permitted by Section
5.02(e).
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(i) Transactions with
Affiliates. Conduct, and cause each of its Subsidiaries to
conduct, all transactions otherwise permitted under the Loan Documents with any
of their Affiliates on terms that are fair and reasonable and no less favorable
to such Loan Party or such Subsidiary than it would obtain in a comparable
arm’s-length transaction with a Person not an Affiliate; provided, however, that
nothing in this Section 5.01(i) shall
prevent (i) any transaction between Loan Parties, (ii) the payment of reasonable
and customary fees to members of the governing bodies of any Loan Party and
reimbursement of reasonable out-of-pocket expenses of such Persons, (iii)
payments permitted by Section 5.02(g), (iv)
Investments in Loan Parties and their Subsidiaries permitted pursuant to Section 5.02(f), (v)
reasonable and customary director, officer and employee compensation (including
bonuses and severance) and other benefits (including retirement, health, stock
option and other benefit plans) and indemnification arrangements in the ordinary
course of business and in good faith or to the extent approved in good faith by
the board of directors, (vi) the Transactions and the payment of fees and
expenses in connection therewith, (vii) equity issuances permitted (and not
otherwise prohibited) by this Agreement, (viii) loans and transactions between
or among the Borrower and one or more of its Subsidiaries expressly permitted by
Section 5.02(b)
and 5.02(f) of this
Agreement, (ix) reasonable and customary fees paid to members of the board of
directors of the Parent (or its direct or indirect parent) and its Subsidiaries
(or after the consummation of a Qualified Public Offering of the Borrower, of
the Borrower), and reimbursement of reasonable out-of-pocket costs and expenses
of such Persons, (x) employment and severance arrangements between the Borrower
and any of its Subsidiaries and their directors, officers, employees and members
of management in the ordinary course of business, (xi) payments by the Parent
and its Subsidiaries pursuant to the tax sharing agreements among Parent and its
Subsidiaries on customary terms, (xii) transactions with customers, clients,
suppliers, joint venture partners or purchasers or sellers of good and services,
in each case, in the ordinary course of business or otherwise not prohibited by
the Loan Documents, (xiii) transactions listed on Schedule 5.01(i) and (xiv)
unless requested by the Required Lenders upon the occurrence and during the
continuance of an Event of Default (in which case such amounts may accrue, but
not be payable in cash during such period, but all such accrued amounts may be
payable in cash upon the cure or waiver of such Event of Default), the Borrower
from paying financial advisory and monitoring fees to the Sponsor as provided in
the Management Agreements as in effect on the Effective Date and reimbursement
of all reasonable, out-of-pocket expenses and indemnification and reimbursement
of reasonable out-of-pocket expenses;
(j) Covenant to Guarantee
Obligations and Give Security. Upon (x) the request of the
Collateral Agent following the occurrence and during the continuance of an Event
of Default, (y) the formation or acquisition of any new direct or indirect
Subsidiary by any Loan Party or (z) the acquisition of any property of the
type constituting Collateral by any Loan Party, and such Collateral, shall not
already be subject to a perfected first priority (subject only to Liens
permitted by Section
5.02(a)) security interest in favor of the Collateral Agent for the
benefit of the Secured Parties, then in each case at the Borrower’s
expense:
(i) in
connection with the formation or acquisition of a Subsidiary that is not (x) a
CFC or (y) a Subsidiary that is held directly or indirectly by a CFC, within 30
days (or such longer period as to which the Administrative Agent may consent)
after such formation or acquisition, cause each such Subsidiary to duly execute
and deliver to the Collateral Agent a guaranty or Guaranty Supplement in form
and substance reasonably satisfactory to the Collateral Agent, guaranteeing the
other Loan Parties’ obligations under the Loan Documents and an Acknowledgement
(as defined in the Intercreditor Agreement),
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(ii) in
connection with the acquisition of such property of the type constituting
Collateral under the Collateral Documents, on or prior to 30 days (or such
longer period as to which the Administrative Agent may consent) following such
acquisition of property by any Loan Party, (A) duly execute and deliver, and
cause each Loan Party to duly execute and deliver, to the Collateral Agent such
additional pledges, assignments, security agreement supplements,
intellectual property security agreement supplements and other security
agreements as specified by the Collateral Documents, and in form and substance
reasonably satisfactory to the Collateral Agent, securing payment of all the
Obligations of such Loan Party under the Loan Documents and constituting Liens
on all such properties and (B) such formation or acquisition of any new
Subsidiary, duly execute and deliver and cause each Subsidiary to duly execute
and deliver to the Collateral Agent pledges, assignments, security agreement
supplements and other security agreements as specified by the Collateral
Documents, and in form and substance reasonably satisfactory to the Collateral
Agent, securing payment of all of the obligations of such Subsidiary under the
Loan Documents; provided that (1) the stock
of any Subsidiary held by a CFC shall not be pledged and (2) if such new
property is Equity Interests in a CFC, only 66% of such Equity Interests shall
be pledged in favor of the Secured Parties,
(iii) in
connection with the acquisition of such property of the type constituting
Collateral under the Collateral Documents, on or prior to 30 days (or such
longer period as to which the Administrative Agent may consent) following such
acquisition of property by any Loan Party, after such request, formation or
acquisition, take, and cause each Loan Party and each newly acquired or newly
formed Subsidiary (other than any Subsidiary that is a CFC or a Subsidiary that
is held directly or indirectly by a CFC) to take, whatever action (including,
without limitation, the recording of mortgages, the filing of Uniform Commercial
Code financing statements, the giving of notices and the endorsement of notices
on title documents) may be necessary or advisable in the opinion of the
Collateral Agent to vest in the Collateral Agent (or in any representative of
the Collateral Agent designated by it) valid and subsisting Liens on the
properties purported to be subject to the mortgages, pledges, assignments,
security agreement supplements and security agreements delivered pursuant to
this Section 5.01(j),
enforceable against all third parties in accordance with their
terms,
(iv) within
90 days (or such longer period as to which the Administrative Agent may consent)
following the date of the acquisition of any fee interest in any real property
located in the United States with a book value in excess of $250,000 (as
reasonably estimated by the Borrower) acquired after the Effective Date by any
Loan Party (other than any Subsidiary that is a CFC or a Subsidiary that is held
directly or indirectly by a CFC), execute and deliver deeds or trust, trust
deeds, mortgages substantially in the form of reasonably satisfactory to the
Administrative Agent (a “Mortgage”), duly executed by the
appropriate Loan Party, together with (x) evidence that counterparts of the
Mortgages have been either (i) duly recorded or (ii) duly executed, acknowledged
and delivered in form suitable for filing or recording, in all filing or
recording offices that the Administrative Agent may deem necessary in order to
create a valid first and subsisting Lien (subject to Permitted Encumbrances) on
the property described therein in favor of the Collateral Agent for the benefit
of the Secured Parties and that all filing and recording taxes and fees have
been paid, (y) title insurance policies in form and substance, with endorsements
and in amount reasonably acceptable to the Administrative Agent and (z) any
existing survey,
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(v) at
any time and from time to time, promptly execute and deliver, and cause to
execute and deliver, each Loan Party and each newly acquired or newly formed
Subsidiary (other than any Subsidiary that is a CFC or a Subsidiary that is held
directly or indirectly by a CFC) any and all further instruments and documents
(including customary legal opinion as to the foregoing, if reasonably requested
by the Administrative Agent) and take, and cause each Loan Party and each newly
acquired or newly formed Subsidiary (other than any Subsidiary that is a CFC or
a Subsidiary that is held directly or indirectly by a CFC) to take, all such
other action as the Collateral Agent may deem reasonably necessary in obtaining
the full benefits of, or in perfecting and preserving the Liens of, such
guaranties, mortgages, pledges, assignments, security agreement supplements,
intellectual property security agreement supplements and security
agreements.
Notwithstanding
anything to the contrary in this Section 5.01(j) or
any other Collateral Document, the Collateral Agent shall not require the taking
of a Lien on, or require the perfection of any Lien granted in, those assets as
to which the cost of obtaining or perfecting such Lien (including any mortgage
stamp, intangibles or other tax or expenses relating to such Lien) is excessive
in relation to the benefit to the Lenders of the security afforded thereby as
reasonably determined by the Borrower and the Administrative Agent. The
provisions of this Section 5.01(j) shall
not apply to the Term C Advances, which instead shall be governed by Section
5.01(j) of the Second Lien Term Loan Agreement.
(k) Further
Assurances. Promptly upon the request by any Agent, or any
Lender Party through the Administrative Agent, do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register any and all
such further acts, deeds, conveyances, pledge agreements, mortgages, deeds of
trust, trust deeds, assignments, financing statements and continuations thereof,
termination statements, notices of assignment, transfers, certificates,
assurances and other instruments as any Agent, or any Lender Party through the
Administrative Agent, may reasonably require from time to time in order to
perfect and maintain the validity, effectiveness and priority of any of the
Collateral Documents and any of the Liens intended to be created thereunder. The
provisions of this Section 5.01(k) shall
not apply to the Term C Lenders and/or Term C Advances which shall instead be
governed by Section 5.01(k) of the Second Lien Term Loan Agreement.
(l) Interest Rate
Hedging. Within 90 days of the Effective Date, obtain and
maintain for the first three years following the Effective Date, interest rate
Hedge Agreements in form and substance and with counterparties reasonably
acceptable to the Administrative Agent, covering a notional amount of not less
than 50% of the Debt outstanding under the First Lien Credit Agreement
(exclusive of the Term C Advances), and, as of the tenth day following the
making of any interest payment pursuant to Section
2.07, cause such Hedge
Agreements to cover not less than 50% of the Debt outstanding under the First
Lien Credit
Agreement (exclusive of the Term C
Advances).
(m) Preparation of Environmental
Reports. Upon the reasonable written request of the
Administrative Agent during the continuance of an Event of Default, provide to
the Administrative Agent within 60 days after receipt of such written request,
at the expense of the Borrower or such Loan Party, an environmental site
assessment report for any of its or its Subsidiaries’ properties described in
such request, prepared by an environmental consulting firm acceptable to the
Administrative Agent, indicating the presence or absence of Hazardous Materials
at levels exceeding those allowed by Environmental Laws and the estimated cost
of any compliance, removal or remedial action required by Environmental Laws in
connection with any Hazardous Materials on such properties, without limiting the
generality of the foregoing, if the Administrative Agent determines at any time
that a material risk exists that any such report will not be provided within the
time referred to above, the Administrative Agent may retain an environmental
consulting firm to prepare such report at the expense of the Borrower or such
Loan Party, and each Loan Party hereby grants and agrees to cause any Subsidiary
that owns any property described in such request to grant at the time of such
request to the Agents, the Lender Parties, such firm and any agents or
representatives thereof an irrevocable non-exclusive license, subject to the
rights of tenants, to enter onto their respective properties to undertake such
an assessment.
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(n) Compliance with Terms of
Leaseholds. Make all payments and otherwise perform all
obligations in respect of all leases of real property to which each Loan Party
or any of its Subsidiaries is a party, keep such leases in full force and effect
and not allow such leases to lapse or be terminated or any rights to renew such
leases to be forfeited or cancelled, except in any case, where the failure to do
so, either individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(o) Ratings. Maintain
at all times, (i) a private rating of the Facilities (other than the Term C
Facility) by Xxxxx’x and S&P and (ii) a corporate rating from S&P and a
corporate family rating from Xxxxx’x, in each case, of the
Borrower.
SECTION
5.02. Negative
Covenants. Until
the Termination Date has occurred, no Loan Party will at any time:
(a) Liens,
Etc. Create, incur, assume or suffer to exist, or permit any
of its Subsidiaries to create, incur, assume or suffer to exist, any Lien on or
with respect to any of its properties of any character (including, without
limitation, accounts) whether now owned or hereafter acquired, or
assign, or permit any of its Subsidiaries to assign, any accounts or other right
to receive income, except:
(i) Liens
created under the Loan Documents;
(ii) Liens
on the Collateral securing the Obligations in respect of the Term C Advances and
the other obligations securing the Second Lien Term Loan Agreement on a
second-priority basis to the Facilities and subject to the terms of the
Intercreditor Agreement;
(iii) Permitted
Liens;
(iv) Liens
existing on the date hereof and described on Schedule 5.02(a) hereto and
extensions, renewals or replacements of any of the foregoing; provided that no such Lien
shall encumber any additional property (other than (A) after-acquired property
affixed or incorporated into the property covered by such Lien, and (B) proceeds
and products thereof);
(v) purchase
money Liens upon or in property (real or personal) acquired or held by such Loan
Party or any of its Subsidiaries to secure the purchase price of such property
or to secure Debt incurred solely for the purpose of financing the acquisition,
construction or improvement of any such property to be subject to such Liens, or
Liens existing on any such property at the time of acquisition (other than any
such Liens created in contemplation of such acquisition that do not secure the
purchase price), or extensions, renewals or replacements of any of the foregoing
for the same or a lesser amount; provided, however, that no such Lien
shall extend to or cover any property other than the property being
acquired, constructed or improved, and no such extension, renewal or
replacement shall extend to or cover any property not theretofore subject to the
Lien being extended, renewed or replaced (other than (A) after-acquired property
affixed or incorporated into the property covered by such Lien or financed by
Debt permitted under Section 5.02(b), and
(B) proceeds and products thereof); and provided further that the aggregate
principal amount of the Debt secured by Liens permitted by this clause (v)
shall not exceed the amount permitted under Section 5.02(b)(iii)
at any time outstanding;
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(vi) Liens
arising in connection with Capitalized Leases permitted under Section 5.02(b)(iv);
provided that no such
Lien shall extend to or cover any Collateral or assets other than the assets
subject to such Capitalized Leases (other than (A) after-acquired property
affixed or incorporated into the property covered by such Lien or financed by
Debt permitted pursuant to Section 5.02(b) and
(B) the proceeds and products thereof and accessions thereto);
(vii) Liens
securing Debt permitted by Section 5.02(b) and
on property existing at the time such Person became a Subsidiary; provided that such Liens
existed prior to such Person becoming a Subsidiary or such Investment being
made, were not created in anticipation thereof and attach only to specific
assets of such Person and the proceeds and products thereof;
(viii) (a)
leases, subleases, licenses and sublicenses granted to other Persons not
interfering in any material respect with the ordinary course of the business of
the Borrower or its Subsidiaries and (b) the rights reserved or vested in any
Person by the terms of any lease, license, franchise, grant or permit held by
the Borrower or any of its Subsidiaries or by a statutory provision, to
terminate any such lease, license, franchise, grant or permit, or to require
annual or periodic payments as a condition to the continuance
thereof;
(ix) Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business;
(x) bankers’
Liens, rights of setoff and other similar Liens existing solely with respect to
cash and Cash Equivalents on deposit in one or more accounts maintained by the
Parent or any Subsidiary, in each case granted in the ordinary course of
business in favor of the bank or banks with which such accounts are maintained,
securing amounts owing to such bank with respect to cash management and
operating account arrangements, including those involving pooled accounts and
netting arrangements;
(xi) Licenses,
sublicenses or grant of any other right of intellectual property granted by the
Parent or any of its Subsidiaries in the ordinary course of
business;
(xii) the
filing of UCC financing statements solely as a precautionary measure in
connection with operating leases or consignment of goods;
(xiii) Liens
(a)(1) on advances of cash or Cash Equivalents in favor of the seller of any
property to be acquired in a Permitted Acquisition or in an Investment permitted
pursuant to Section
5.02(f) to be applied against the purchase price for such Permitted
Acquisition or such Investment and (2) consisting of an agreement to dispose of
any property in a Disposition permitted under Section 5.02(e), in
each case, solely to the extent such Permitted Acquisition, Investment or
Disposition, as the case may be, would have been permitted on the date of the
creation of such Lien and (b) xxxxxxx money deposits of cash or Cash Equivalents
by the Parent or any of its Subsidiaries in connection with any letter of intent
or purchase agreement permitted hereunder;
(xiv) Liens
encumbering reasonable customary initial deposits and margin deposits and
similar Liens attaching to commodity trading accounts or other brokerage
accounts incurred in the ordinary course of business and not for speculative
purposes;
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(xv) (a)
any interest or title of a lessor, sublessor, licensee or licensor under any
lease or license agreement in the ordinary course of business, (b) any Lien or
restriction that the interest or title of such lessor or sublessor may be
subject to, or (c) any subordination of the interest of the lessee or sublessee
under such lease to any Lien or restriction referred to in the preceding
clause (b);
(xvi) 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;
(xvii) Liens
securing obligations (other than obligations representing indebtedness for
borrowed money) under operating, reciprocal easement or similar agreements
entered into in the ordinary course of business of the Borrower and its
Subsidiaries;
(xviii) other
Liens securing Debt and other obligations outstanding in an aggregate principal
amount not to exceed $1,000,000; and
(xix) any
extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Lien referred to in the foregoing
clauses; provided,
however, than no such Lien shall extend to or cover any property not theretofore
subject to the Lien being extended, renewed or replaced; provided further, however,
that the aggregate principal amount of the Debt secured by Liens permitted by
this clause (xix) shall not exceed the amount permitted under Section 5.02(b) at
any time outstanding.
(b) Debt. Create,
incur, assume or suffer to exist, or permit any of its Subsidiaries to create,
incur, assume or suffer to exist, any Debt, except:
(i)
Debt under the Loan Documents (exclusive of the Term C Advances);
(ii) the
Term C Advances and Debt under the Second Lien Term Loan Agreement in an
aggregate principal amount not to exceed $30,000,000 plus any accrued interest
(including pay-in-kind interest) thereunder (less the amount of all principal
prepayments thereof);
(iii) Debt
secured by Liens permitted by Section 5.02(a)(v)
in an aggregate principal amount, together with Debt permitted under clause (iv)
below, not to exceed $2,500,000 at any time outstanding;
(iv) Capitalized
Leases in an aggregate principal amount, together with Debt permitted under
clause (iii) above, not to exceed $2,500,000 at any time outstanding, and in the
case of Capitalized Leases to which any Subsidiary of any Loan Party is a party,
Debt of such Loan Party of the type described in clause (i) of the definition of
“Debt”
guaranteeing the Obligations of such Subsidiary under such Capitalized
Leases;
(v)
the Surviving Debt
described on Schedule 5.02(b) and any Debt extending the maturity of, or
refunding or refinancing, in whole or in part, any Surviving Debt, provided that the principal amount of such
Surviving Debt shall not be increased above the principal amount thereof
outstanding immediately prior to such extension, refunding or refinancing, and
the direct and contingent obligors therefor shall not be changed, as a result of
or in connection with such extension, refunding or
refinancing;
(vi) Debt
in respect of Hedge Agreements designed to hedge against fluctuations in
interest rates incurred in the ordinary course of business and consistent with
prudent business practice;
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(vii) (A)
Debt owed (x) to a Loan Party by a Loan Party or (y) by a Subsidiary that is not
a Loan Party pursuant to, and subject to the limitations of, Section
5.02(f)(vi)(C), in each case, which Debt shall constitute Collateral, (B)
Debt owed to any Subsidiary that is not a Loan Party by any Subsidiary that is
not a Loan Party or (C) Debt by a Loan Party in an aggregate amount not to
exceed $250,000 owed to any Subsidiary that is not a Loan Party, which Debt in
respect of this clause (C) shall be on terms acceptable to the Administrative
Agent;
(viii) Debt
in respect of performance, surety, bid, appeal bonds, completion guarantees or
other similar obligations provided in the ordinary course of business, including
guarantees or obligations of the Borrower and its Subsidiaries with respect to
letters of credit supporting such performance, surety, bid, appeal bonds,
completion guarantees or other similar obligations but excluding Debt incurred
through the borrowing of money, Capitalized Leases and purchase money
obligations in an aggregate amount for all such Debt incurred pursuant to this
clause (viii) not to exceed $10,000,000;
(ix)
Debt consisting of promissory notes issued to future,
present or former directors, officers, members of management, employees or
consultants of the Parent or any of its Subsidiaries or their respective
estates, heirs, family members, spouses or former spouses to finance the
purchase or redemption of Equity Interests of the Parent or any of its direct or
indirect parent companies permitted by Section 5.02(g) in
the ordinary course of business in an aggregate amount not to exceed
$1,000,000;
(x)
Cash management obligations and other Debt in respect of netting services,
overdraft protections and similar arrangements in each case in connection with
cash management and deposit accounts in the ordinary course of
business;
(xi)
Debt consisting of
the financing of insurance premiums, so long as the aggregate amount payable
pursuant to such Debt does not materially exceed the amount of the premium for
such insurance;
(xii) Debt
arising in connection with endorsement of instruments for deposit in the
ordinary course of business;
(xiii) Debt
of the Parent to the Borrower in lieu of any payment permitted to be made
pursuant to Section
5.02(g);
(xiv) other
Debt of the Borrower and its Subsidiaries in an aggregate amount at any time
outstanding not to exceed $1,000,000;
(xv) Guarantee
Obligations in respect of indemnity agreements to title insurers to cause such
title insurers to issue title insurance policies;
(xvi) all
premiums (if any), interest (including post-petition interest), fees, expenses,
charges and additional or contingent interest on obligations described in
clauses (i) through (xv) of this Section
5.02(b);
(xvii) Debt
consisting of Permitted Earn-Out Obligations;
(xviii) (a)
Guarantee Obligations of a Loan Party in respect of Debt of a Loan Party
otherwise permitted by this Section 5.02(b), and
(b) Guarantee Obligations of a Subsidiary of the Parent that is not Loan Party
in respect of Debt of the Parent or any of its Subsidiaries otherwise permitted
by this Section
5.02(b); and
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(xix) any
extension, renewal, replacement, modification or refinancing of any Debt
described in paragraphs (ii), (iii), (iv) and (v) of this Section 5.02(b) that
would be a Permitted Refinancing thereof.
(c) Change in Nature of
Business. Make, or permit any of its Subsidiaries to make, any
material change in the nature of its business as carried on at the date hereof;
provided that the foregoing shall not limit the ability of its Subsidiaries to
engage in any business reasonably incidental, similar, related or ancillary
thereto.
(d) Mergers,
Etc. Merge into or consolidate with any Person or permit any
Person to merge into it, or permit any of its Subsidiaries to do so, except
that:
(i)
any Subsidiary of the Borrower may merge into or consolidate with any
other Subsidiary of the Borrower; provided that, in the case of
any such merger or consolidation of a Subsidiary Guarantor, the Person formed by
such merger or consolidation shall be a Subsidiary Guarantor or a Person who
becomes a Subsidiary Guarantor simultaneously therewith;
(ii)
the Company or any Subsidiary of the Borrower may merge into or
consolidate with the Borrower; provided that, in the case of
any such merger or consolidation, the Borrower shall be the surviving
entity;
(iii) in
connection with any investment permitted under Section 5.02(f), the
Borrower or any Subsidiary of the Borrower may merge into or consolidate with
any other Person or permit any other Person to merge into or consolidate with
it; provided that the
Person surviving such merger shall be a Subsidiary Guarantor or the Borrower;
and
(iv) in
connection with any sale or other disposition permitted under Section 5.02(e)
(other than clause (ii) thereof), any Subsidiary of the Borrower may merge into
or consolidate with any other Person or permit any other Person to merge into or
consolidate with it;
provided, however, that in
each case, immediately before and after giving effect thereto, no Event of
Default shall have occurred and be continuing and, in the case of any such
merger to which the Borrower is a party, the Borrower is the surviving
corporation.
(e) Sales, Etc., of
Assets. Dispose of, or permit any of its Subsidiaries to
Dispose of, any assets, or grant any option or other right to purchase, lease or
otherwise acquire any assets (except, in the case of the granting of any option
or other right as to which the related Disposition is not permitted below, to
the extent that the consent of the Required Lenders is a condition to the
obligation of such Loan Party or such Subsidiary to consummate the underlying
Disposition or the Termination Date will otherwise occur in connection with such
Disposition), except:
(i)
sales of Inventory or obsolete, damaged or
worn out property, in the ordinary course of its business and the granting of
any option or other right to purchase, lease or otherwise acquire Inventory or
such property in the ordinary course of business;
(ii)
in a transaction authorized by Section 5.02(d)
(other than subsection (iv) thereof);
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(iii) Dispositions
of assets among the Borrower and any Subsidiary; provided that if the
transferor in such transaction is the Borrower or a Subsidiary Guarantor, then
the transferee must either be the Borrower, the Parent or a Subsidiary Guarantor
or to the extent constituting an Investment, such transaction is permitted under
Section
5.02(f);
(iv) a
Disposition of cash or Cash Equivalents;
(v)
the sale, lease, transfer or other disposition of accounts in the
ordinary course of business for collection;
(vi) Investments
in compliance with Section
5.02(f);
(vii) leases,
subleases, licenses or sublicenses of property in the ordinary course of
business which do not materially interfere with the business of the Borrower and
its Subsidiaries taken as a whole;
(viii) transfers
of property subject to any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or any similar
proceedings;
(ix)
Dispositions in the ordinary course of business consisting of the
abandonment of intellectual property which, in the reasonable good faith
determination of the Borrower, are not material to the conduct of the business
of the Borrower and its Subsidiaries;
(x)
Dispositions of tangible property to the extent that (A) such property is
exchanged for credit against the purchase price of similar replacement property
or (B) the proceeds of such Disposition are promptly applied to the purchase
price of such replacement property;
(xi)
in order to resolve disputes that occur in the ordinary course of
business, in which event the Borrower and its Subsidiaries may discount or
otherwise compromise for less than the face value thereof, notes or accounts
receivable;
(xii) a
Disposition in order to qualify members of the Board of Directors if required by
applicable law;
(xiii) voluntary
terminations of Hedging Agreements;
(xiv) Liens
granted in compliance with Section 5.02(a) or
Dispositions to the extent otherwise permitted under Section 5.02(f) and
(g); provided however that no
Liens may be granted or Dispositions made solely pursuant to this Section 5.02(e)(xiv);
and
(xv) so
long as no Event of Default shall have occurred and be continuing or would
result from such sale, sales, transfers or other dispositions of assets for cash
and for fair value in an aggregate amount not to exceed $5,000,000 in any Fiscal
Year;
provided that in the case of
sales of assets pursuant to clause (xv) above, the Borrower shall, on the
date of receipt by any Loan Party or any of its Subsidiaries of the Net Cash
Proceeds from such sale, prepay the Advances pursuant to, and in the amount and
order of priority set forth in, Section 2.06(b)(ii),
as specified therein.
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(f) Investments in Other
Persons. Make or hold, or permit any of its Subsidiaries to
make or hold, any Investment in any Person, except:
(i)
Investments in Loan Parties;
(ii)
loans and advances (including advances of payroll payments) to
directors, officers, members of management or employees in the ordinary course
of business in an aggregate principal amount not to exceed $250,000 at any time
outstanding;
(iii) Investments
in cash and Cash Equivalents;
(iv) Investments
existing on the date hereof and described on Schedule 5.02(f) hereto with
any modifications, replacements, renewals or extensions thereof; provided that
the amount of the original Investment is not increased except by the terms of
such Investment or as otherwise permitted by this Section
5.02(f);
(v)
Investments in Hedge Agreements permitted
under Article
V;
(vi) Investments
(A) in any Loan Party, (B) by any Subsidiary that is not a Loan Party in any
Loan Party or Subsidiary that is not a Loan Party or (C) in an aggregate amount
not to exceed $250,000 by a Loan Party in any Subsidiary that is not a Loan
Party;
(vii) the
purchase or other acquisition of all of the Equity Interests in, or all or
substantially all of the property and assets of, any Person that, upon the
consummation thereof, will be wholly-owned directly by the Borrower or one or
more of its wholly-owned Subsidiaries (including, without limitation, as a
result of a merger or consolidation), in an aggregate amount for all such
purchases or other acquisitions not to exceed the sum of $40,000,000 plus the proceeds of Excluded
Issuances; provided
that, with respect to each purchase or other acquisition made pursuant to this
clause (vii):
(A) any
such newly created or acquired Subsidiary shall comply with the requirements of
Section
5.01(j);
(B) the
lines of business of the Person to be (or the property and assets of which are
to be) so purchased or otherwise acquired shall be substantially the same lines
of business (or reasonably incidental, related or ancillary thereto) as one or
more of the principal businesses of the Borrower and its Subsidiaries in the
ordinary course;
(C) such
purchase or other acquisition shall not include or result in any contingent
liabilities that could reasonably be expected to have a Material Adverse Effect
(as determined in good faith by the board of directors (or the persons
performing similar functions) of the Borrower or such Subsidiary if the board of
directors is otherwise approving such transaction and, in each other case, by a
Responsible Officer, and taking into account any available indemnities and
insurance coverage);
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(D) (1)
immediately before and immediately after giving effect to any such purchase or
other acquisition, no Default shall have occurred and be continuing and (2)
immediately after giving effect to such purchase or other acquisition, (x) the
Parent and its Subsidiaries shall be in pro forma compliance with all of the
covenants set forth in Section 5.04, such
compliance to be determined on the basis of the financial information most
recently delivered to the Administrative Agent pursuant to Section 5.03 as
though such purchase or other acquisition had been consummated as of the first
day of the fiscal period covered thereby and (y) the Borrower shall have
borrowing capacity under the Revolving Credit Facility of not less than
$3,000,000; and
(E) The
Borrower shall have delivered to the Administrative Agent, on behalf of the
Lender Parties, at least five Business Days prior to the date on which any such
purchase or other acquisition is to be consummated, a certificate of a
Responsible Officer, in form and substance reasonably satisfactory to the
Administrative Agent, certifying that all of the requirements set forth in this
clause (vii) have been satisfied or will be satisfied on or prior to the
consummation of such purchase or other acquisition;
(viii) Investments
consummated on the Effective Date in connection with the
Transaction;
(ix) Investments
received in connection with the bankruptcy or reorganization of, or settlement
of delinquent accounts and disputes with, customers and suppliers, in each case
in the ordinary course of business;
(x)
Investments constituting (A) accounts or notes receivable arising, (B) trade
debt granted, (C) deposits made in connection with the purchase price of goods
or services, (D) endorsement of negotiable instruments held for collection
or (E) lease, utility and other similar deposits, in each case in the ordinary
course of business;
(xi)
loans and advances to the Parent (and by the Parent to its direct or indirect
parent) in lieu of any payment permitted to be made pursuant to Section
5.02(g);
(xii) Investments
consisting of promissory notes issued to any Loan Party by future, present or
former directors, officers, members of management, employees, or consultants of
the Parent or any of its Subsidiaries or their respective estates, heirs, family
members, spouses or former spouses to finance the purchase or redemption of
Equity Interests of the Parent or any of its direct or indirect parent
companies;
(xiii) Investments
received in connection with an Disposition made in compliance with Section 5.02(e),
including any deferred portion of the sales price received by the Borrower or
any Subsidiary in connection with any Disposition permitted under Section
5.02(e);
(xiv) Debt,
Liens, Guarantee Obligations, restricted payments, fundamental changes,
Dispositions and Capital Expenditures otherwise permitted by Sections 5.02(a),
(b), (c), (d), (e), (g) and (n), respectively;
provided however that
no Investments may be made solely pursuant to this Section
5.02(f)(xiv);
(xv) purchase
price adjustments, earnouts and similar obligations (“Earn-Out
Obligations”) which (A) are incurred in connection with Permitted
Acquisitions, (B) are in amount which, taken together with all existing Earn-Out
Obligations permitted pursuant to this clause 5.02(g)(xv) and
determined on the date of any such Permitted Acquisition, does not exceed 10% of
EBITDA for the most recently ended Measurement Period, (C) will not result in an
increase in the Total Leverage Ratio as determined on a pro forma basis and (D)
are subject to terms pursuant to which payments in respect thereof during the
continuance of an Event of Default may accrue, but shall not be payable in cash
during such period, but may be payable in cash upon the cure or waiver of such
Event of Default (such obligations, “Permitted
Earn-Out Obligations”); and
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(xvi) Investments
by the Borrower and its Subsidiaries not otherwise permitted under this Section 5.02(f) in an
aggregate amount not to exceed $1,000,000.
(g) Restricted
Payments. Declare or pay any dividends, purchase, redeem,
retire, defease or otherwise acquire for value any of its Equity Interests now
or hereafter outstanding, return any capital to its stockholders, partners or
members (or the equivalent Persons thereof) as such, make any distribution of
assets, Equity Interests, obligations or securities to its stockholders,
partners or members (or the equivalent Persons thereof) as such or, other than
in the case of the Parent, issue or sell any Equity Interests, or permit any of
its Subsidiaries to do any of the foregoing, or permit any of its Subsidiaries
to purchase, redeem, retire, defease or otherwise acquire for value any Equity
Interests in the Borrower or to issue or sell any Equity Interests therein,
except that:
(i) (A) the
Parent and its Subsidiaries may declare and pay dividends and distributions
payable only in common stock of the Parent, the Company or the Borrower, as the
case may be, and (B) except to the extent the Net Cash Proceeds thereof are
required to be applied to the prepayment of the Advances pursuant to Section 2.06(b),
the Parent may purchase, redeem, retire, defease or otherwise acquire shares of
its capital stock with the proceeds received contemporaneously from the issue of
new shares of its capital stock with equal or inferior voting powers,
designations, preferences and rights;
(ii) (A)
payments by the Borrower to or on behalf of the Parent (and by the Parent to its
direct parent, Unitek Holdings, Inc.) in an amount sufficient to pay franchise
taxes and other fees required to maintain the legal existence of the Parent (and
of Unitek Holdings, Inc.), (B) payments by the Borrower to or on behalf of the
Parent (and by the Parent to its direct parent, Unitek Holdings, Inc.) in an
amount sufficient to pay operating expenses (including out-of-pocket legal,
accounting and filing costs and other expenses) in the nature of overhead in the
ordinary course of business of the Parent (and of the Parent’s direct parent,
Unitek Holdings, Inc.), (C) customary indemnification claims made by directors,
officers, members of management, employees or consultants of the Parent (and of
the Parent’s direct parent, Unitek Holdings, Inc.) attributable to the ownership
or operations of the Borrower and its Subsidiaries, (D) the funding of any
Investment permitted to be made pursuant to Section 5.02(f),
provided that (1) such
payment shall be made substantially concurrently with the closing of such
Investment and (2) the Parent shall, immediately following the closing thereof,
cause (x) all property acquired (whether assets or Equity Interests) to be
contributed to the Borrower or any Subsidiary or (y) the merger (to the extent
permitted in Section
5.02(d)) of the Person formed or acquired into the Borrower or any
Subsidiary in order to consummate such Investment, (E) fees and expenses related
to any unsuccessful equity or debt offering permitted by this Agreement and (F)
cash payments in an aggregate amount not to exceed $100,000 in lieu of issued
fractional shares in connection with the exercise of warrants, options or other
securities convertible into or exchangeable for Equity Interests of the Parent
(and of the Parent’s direct parent, Unitek Holdings, Inc.) or its
Subsidiaries;
(iii) any
Subsidiary of the Borrower may (A) declare and pay cash dividends to the
Borrower, (B) declare and pay cash dividends to any other Loan Party of which it
is a Subsidiary and (C) accept capital contributions from its
parent;
75
(iv) so
long as no Default shall have occurred and be continuing at the time of any
action described below or would result therefrom, payments to the Parent (and by
the Parent to its direct or indirect parent) to permit the Parent (or such
direct or indirect parent) to repurchase or redeem Qualified Equity Interests of
the Parent (or such parent) held by directors, officers, members of management,
employees or consultants of the Parent or any of its Subsidiaries or former
directors, officers, employees, members of management, or consultants (or their
transferees, estates or beneficiaries under their estates) of the Parent or any
Subsidiary, upon their death, disability, retirement, severance or termination
of employment or service; provided that the aggregate
cash consideration paid for all such redemptions and payments shall not exceed,
in any Fiscal Year, the sum of $1,000,000;
(v)
the Parent and its Subsidiaries may make a cashless repurchase of
Equity Interests which is deemed to occur upon the exercise of options, rights
or warrants to the extent such Equity Interests represent a portion of the
exercise price of those options, rights or warrants;
(vi) from
and after the consummation of a Qualified Public Offering, the Borrower may make
the restricted payments permitted to be made by the Parent (or its direct or
indirect parent) under this Agreement; and
(vii) payments
as permitted by Section
5.01(i)(xiv).
(h) Amendments of Constitutive
Documents. Amend, or permit any of its Subsidiaries to amend,
its certificate of incorporation or bylaws or other constitutive documents other
than amendments that could not be reasonably expected to have a Material Adverse
Effect.
(i) Accounting
Changes. Make or permit, or permit any of its Subsidiaries to
make or permit, any change in (i) accounting policies or reporting
practices, except as required or permitted by GAAP, or (ii) Fiscal
Year.
(j) Prepayments, Etc., of
Certain Debt. Prepay, redeem, purchase, defease or otherwise
satisfy prior to the scheduled maturity thereof in any manner, or make any
payment in violation of any subordination terms of, any Subordinated Debt or
Debt under the Second Lien Term Loan Agreement (including with respect to the
Term C Advances) prior to the Termination Date, except (i) regularly
scheduled interest or required repayments or principal payments as and when due
of such Debt, (ii) all prepayments, redemptions, purchases, defeasances or
satisfactions of Debt required or necessary on the Effective Date to consummate
the Transaction and (iii) any Permitted Refinancing thereof, or permit any of
its Subsidiaries to do any of the foregoing.
(k) Amendment, Etc., of Other
Debt. (i) Amend, modify or change in any manner any term or
condition of the Second Lien Term Loan Agreement or any agreement relating to
Subordinated Debt or give any consent, waiver or approval thereunder, other than
any amendment, modification or change to the Second Lien Term Loan Agreement or
any agreement relating to Subordinated Debt which (A) extends the date or
reduces the amount of any required repayment, prepayment or redemption of the
principal under such agreement, (B) with respect to the Second Lien Term Loan
Agreement (including with respect to the Term C Advances) only, does not
increase the rate by more than 3% (other than as a result of the default rate)
or shorten the date for payment of the interest, premium (if any) or fees
payable on such Debt under such agreement, (C) does not make the covenants,
events of default or remedies in such agreement materially more burdensome,
taken as a whole and (D) would not materially impair the rights or interests of
any Agent or any Lender Party; or (ii) permit any of its Subsidiaries to do any
of the foregoing.
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(l) Negative
Pledge. Enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement prohibiting or
conditioning the creation or assumption of any Lien upon any of its property or
assets except (i) in favor of the Secured Parties or (ii) in
connection with (A) any Surviving Debt, (B) any purchase money Debt
permitted by Section 5.02(b)(iii)
solely to the extent that the agreement or instrument governing such Debt
prohibits a Lien on the property acquired with the proceeds of such Debt, (C)
any Capitalized Lease permitted by Section 5.02(b)(iv)
solely to the extent that such Capitalized Lease prohibits a Lien on the
property subject thereto, (D) any Debt outstanding on the date any Subsidiary of
such Loan Party becomes such a Subsidiary (so long as such agreement was not
entered into solely in contemplation of such Subsidiary becoming a Subsidiary of
such Loan Party), (E) any agreement where such the prohibition of the creation
of the Lien is rendered ineffective by the Uniform Commercial Code, (F) the
Second Lien Term Loan Agreement and the related Loan Documents (as defined
therein) (subject to the terms of the Intercreditor Agreement), (G) customary
restrictions in connection with Debt permitted under Section 5.02(b), (H)
any agreement of a Subsidiary that is not a Loan Party governing the Debt
permitted by Section
5.02(b), (I) applicable law, (J) customary provisions restricting
subletting or assignment of any lease governing a leasehold interest of the
Borrower or a Subsidiary, (K) customary provisions restricting assignment of any
agreement entered into by the Borrower or a Subsidiary in the ordinary course of
business, (L) any holder of a Lien permitted by Section 5.02(a)
restricting the transfer of the property subject thereto, (M) customary
restrictions and conditions contained in any agreement relating to the sale of
any property permitted under Section 5.02(e)
pending the consummation of such sale or in leases, subleases, licenses or
sub-licenses relating to the assets covered thereby, (N) customary provisions in
partnership agreements, limited liability company organizational governance
documents, asset sale and stock sale agreements and other similar agreements
entered into in the ordinary course of business that restrict the transfer of
ownership interests in such partnership, limited liability company or similar
Person, (O) restrictions on cash or other deposits or net worth imposed by
suppliers or landlords under contracts entered into in the ordinary course of
business, (P) any instrument governing Debt assumed in connection with any
Permitted Acquisition, which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person or the
properties or assets of the Person so acquired, (Q) customary provisions in
joint venture agreements and similar agreements applicable to joint ventures
relating solely to such joint venture, or (R) any encumbrances or restrictions
imposed by any amendments or refinancings that are otherwise permitted by the
Loan Documents of the contracts, instruments or obligations referred to above;
provided that such
amendments or refinancings are no more materially restrictive with respect to
such encumbrances and restrictions than those prior to such amendment or
refinancing.
(m) Speculative
Transactions. Engage, or permit any of its Subsidiaries to
engage, in any transaction involving commodity options or futures contracts or
any similar speculative transactions.
(n) Capital
Expenditures. Make, or permit any of its Subsidiaries to make,
any Capital Expenditures that would cause the aggregate of all such Capital
Expenditures made by the Parent and its Subsidiaries, as determined on a
Consolidated basis, in any Fiscal Year to exceed $3,000,000 (or, when EBITDA is
greater than $40,000,000 for a Measurement Period and the maximum amount of
Capital Expenditures permitted for such Fiscal Year is less than $5,000,000,
$5,000,000 thereafter), provided, however, that if,
for any Fiscal Year, the aggregate amount of Capital Expenditures made by the
Parent and its Subsidiaries, as determined on a Consolidated basis during such
Fiscal Year is less than the maximum amount permitted to be made in any Fiscal
Year (the amount of such excess being the “Excess
Amount”), the Parent and its Subsidiaries shall be entitled to make
additional Capital Expenditures in the immediately succeeding Fiscal Year in an
amount (such amount being referred to herein as the “Carryover
Amount”) equal to 50% of such Excess Amount, (ii) to the extent that the
aggregate amount of such Capital Expenditures to be made in any Fiscal Year is
greater than the maximum amount permitted to be made for such Fiscal Year, up to
50% of the amount available in the next succeeding Fiscal Year (each such amount
being a “Pull-Back
Amount”) may be pulled back to the immediately preceding Fiscal Year and
used to make Capital Expenditures in such immediately preceding Fiscal Year it
being understood and agreed that such amount for such next succeeding Fiscal
Year set forth above shall be reduced by the amount of such Pull-Back Amount and
(iii) after a Permitted Acquisition, the foregoing limitations shall be
increased by an amount equal to 125% of the average Capital Expenditures of the
acquired Person for the three consecutive twelve-month periods most recently
ended prior to the closing of the Permitted Acquisition.
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For
purposes of this Section 5.02(n), it
is understood and agreed that the following shall not constitute Capital
Expenditures: (i) Permitted Acquisitions, (ii) the reinvestment of
any Net Cash Proceeds, (iii) expenditures of insurance settlements, condemnation
awards or other settlements in respect of lost, destroyed, damaged or condemned
assets or other property and (iv) expenditures for Capital Expenditures
accounted for as Capital Expenditures of the Parent or any of its Subsidiaries
which are paid for or reimbursed by a third party which is neither a Loan Party
or a Subsidiary of the Borrower.
(o) Payment Restrictions
Affecting Subsidiaries. Directly or indirectly, enter into or
suffer to exist, or permit any of its Subsidiaries to enter into or suffer to
exist, any agreement or arrangement limiting the ability of any Subsidiaries of
the Borrower to declare or pay dividends or other distributions in respect of
its Equity Interests or repay or prepay any Debt owed to, make loans or advances
to, or otherwise transfer assets to or invest in, the Borrower or any Subsidiary
of the Borrower, except (i) the Loan Documents, (ii) the Second Lien Term Loan
Agreement and all related documents, instruments and agreements, (iii) any
agreement or instrument evidencing Surviving Debt, (iv) any agreement in effect
at the time such Subsidiary becomes a Subsidiary of such Loan Party, so long as
such agreement was not entered into solely in contemplation of such Person
becoming a Subsidiary of such Loan Party, (v) customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (vi)
restrictions and conditions imposed by law, (vi) agreements governing
Capitalized Leases and purchase money Debt and (vii) by reason of customary
provisions restricting assignments, subletting or other transfers contained in
joint venture agreements, leases, subleases, licenses, sublicenses and similar
agreements entered into in the ordinary course of business.
(p) The Parent as a Holding
Company. In the case of the Parent, enter into or conduct any
business, or engage in any activity other than (i) the holding of the Equity
Interests in the Borrower and its Subsidiaries; (ii) the making of equity
Investments in the Borrower and its Subsidiaries; (iii) the maintenance of any
deposit accounts required in connection with the conduct of business or
activities otherwise permitted under the Loan Documents; (iv) the
execution, delivery and performance of the Transaction Documents and all related
documents, instruments and agreements to which it is a party; (v) Guarantee
Obligations permitted under this Agreement; (vi) obligations under the Second
Lien Term Loan Agreement and the Loan Documents (as defined therein), if any;
(vii) issuing and selling its Equity Interests or options or warrants in respect
thereof; (viii) the maintenance of its existence and legal, tax and accounting
matters in connection with any activity otherwise permitted hereunder; (ix)
entering into any transaction otherwise permitted by this Agreement; (x)
ownership of assets pursuant to a Permitted Acquisition; provided that such assets are
promptly contributed to one or more Subsidiaries); and (xi) activities
incidental to each of the foregoing.
SECTION
5.03. Reporting
Requirements. Until
the Termination Date, the Loan Parties will furnish to the Administrative Agent
(for further distribution to the Lenders):
(a) Default
Notice. As soon as possible and in any event within three
Business Days after any Responsible Officer of the Borrower obtaining knowledge
of the occurrence of each Default or any event, development or occurrence that
could be reasonably likely to have a Material Adverse Effect continuing on the
date of such statement, a statement of a Responsible Officer of the Borrower
setting forth details of such Default and the action that the Borrower has taken
and proposes to take with respect thereto.
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(b) Annual
Financials. As soon as available and in any event within (x)
120 days after the end of the Fiscal Year ending December 31, 2007 and (y) 90
days after the end of each Fiscal Year thereafter, a copy of the annual audit
report for such year for the Parent and its Subsidiaries, including therein a
Consolidated balance sheet of the Parent and its Subsidiaries as of the end of
such Fiscal Year and a Consolidated statement of income and a Consolidated
statement of cash flows of the Parent and its Subsidiaries for such Fiscal Year,
in each case accompanied by an opinion as to such audit report of independent public
accountants of recognized standing, without a going concern or like
qualification, together with a (i) schedule in form reasonably satisfactory to
the Administrative Agent of the computations used by the Parent in determining,
as of the end of such Fiscal Year, compliance with the covenants contained in
Section 5.04 and
(ii) a certificate of a Responsible Officer of the Parent stating that no
Default has occurred and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and the action that the Parent
has taken and proposes to take with respect thereto.
(c) Quarterly
Financials. As soon as available and in any event within (x)
45 days after the end of each of the first three fiscal quarters of each Fiscal
Year and (y) after the last fiscal quarter of each Fiscal Year, upon the date
that the annual audited report is due pursuant to clause (b) above,
a Consolidated balance sheet of the Parent and its Subsidiaries as of the
end of such quarter and a Consolidated statement of income and a
Consolidated statement of cash flows of the Parent and its Subsidiaries for the
period commencing at the end of the previous fiscal quarter and ending with the
end of such fiscal quarter and a Consolidated statement of income and a
Consolidated statement of cash flows of the Parent and its Subsidiaries for the
period commencing at the end of the previous Fiscal Year and ending with the end
of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding date or period of the preceding
Fiscal Year, all in reasonable detail and duly certified (subject to the
exclusion of footnotes and year-end audit adjustments) by a Responsible Officer
of the Parent as having been prepared in accordance with GAAP, together with
(i) a certificate of a Responsible Officer stating that no Default has
occurred and is continuing or, if a Default has occurred and is continuing, a
statement as to the nature thereof and the action that the Parent has taken and
proposes to take with respect thereto and (ii) a schedule in form
reasonably satisfactory to the Administrative Agent of the computations used by
the Parent in determining compliance with the covenants contained in Section
5.04.
(d) Monthly
Financials. As soon as available and in any event within 30
days after the end of each of calendar month, unless such month is also the end
of a fiscal quarter, and then upon the date that quarterly report is due
pursuant to clause (c) above, a Consolidated balance sheet of the Parent
and its Subsidiaries as of the end of such month and a Consolidated
statement of income and a Consolidated statement of cash flows of the Parent and
its Subsidiaries for the period commencing at the end of the previous calendar
month and ending with the end of such calendar month and a Consolidated
statement of income and a Consolidated statement of cash flows of the Parent and
its Subsidiaries for the period commencing at the end of the previous Fiscal
Year and ending with the end of such calendar month, setting forth in each case
in comparative form the corresponding figures for the corresponding date or
period of the preceding Fiscal Year, all in reasonable detail and duly certified
(subject to the exclusion of footnotes and year-end audit adjustments) by a
Responsible Officer of the Parent as having been prepared in accordance with
GAAP.
(e) Annual
Forecasts. As soon as available and in any event no later than
30 days after the end of each Fiscal Year, financial forecasts prepared in good
faith by management of the Parent, in form reasonably satisfactory to the
Administrative Agent, of balance sheets, income statements and cash flow
statements on a monthly basis for the succeeding Fiscal Year.
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(f) Litigation. Promptly
after the commencement thereof, notice of all actions, suits, investigations,
litigation and proceedings before any Governmental Authority affecting any Loan
Party or any of its Subsidiaries of the type described in Section
4.01(f).
(g) Securities
Reports. Promptly after the sending or filing thereof, copies
of all proxy statements, financial statements and reports that any Loan Party
sends to its stockholders generally, and copies of all regular, periodic and
special reports, and all registration statements (other than on S-8 or a similar
form), that any Loan Party files with the Securities and Exchange Commission or
any Governmental Authority that may be substituted therefor, or with any
national securities exchange.
(h) Agreement
Notices. Promptly upon receipt thereof, copies of all material
notices, requests and other documents received by any Loan Party under or
pursuant to the Second Lien Term Loan Agreement.
(i) ERISA. (i) ERISA Events and ERISA
Reports. (A) Promptly and in any event within 10 Business
Days after any Loan Party or any ERISA Affiliate knows or has a reason to know
that any ERISA Event that could reasonably be expected to have a Material
Adverse Effect has occurred, a statement of a Responsible Officer of the
Borrower describing such ERISA Event and the action, if any, that such Loan
Party or such ERISA Affiliate has taken and proposes to take with respect
thereto and (B) on the date any records, documents or other information
must be furnished to the PBGC with respect to any Plan pursuant to Section 4010
of ERISA, a copy of such records, documents and information.
(i)
Plan
Terminations. Promptly after receipt thereof by any Loan Party
or any ERISA Affiliate, copies of each notice from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed to administer any
Plan.
(ii) Multiemployer Plan
Notices. Promptly after receipt thereof by any Loan Party or
any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each
notice concerning (A) the imposition of Withdrawal Liability by any such
Multiemployer Plan, (B) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer Plan or
(C) the amount of liability incurred, or that may be incurred, by such Loan
Party or any ERISA Affiliate in connection with any event described in
clause (A) or (B).
(j) Environmental
Conditions. Promptly after the assertion or occurrence
thereof, notice of any Environmental Action against or of any noncompliance by
any Loan Party or any of its Subsidiaries with any Environmental Law or
Environmental Permit that could (i) reasonably be expected to have a
Material Adverse Effect or (ii) cause any property described in the
Mortgages to be subject to any material restrictions on ownership, occupancy,
use or transferability under any Environmental Law.
(k) Insurance. As
soon as available and in any event within 30 days after the end of each Fiscal
Year in which there has been a material and negative change in the amount or
scope of the insurance coverage in effect for the Loan Parties, a report
summarizing the insurance coverage (specifying type, amount and carrier) in
effect for each Loan Party and its Subsidiaries.
(l) Other
Information. Such other information respecting the business,
condition (financial or otherwise), operations, performance or properties of any
Loan Party as any Agent, or any Lender Party through the Administrative Agent,
may from time to time reasonably request.
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Information
required to be delivered pursuant to this Section 5.03 shall be
deemed to have been delivered if such information, or one or more annual or
quarterly reports containing such information, shall have been posted by the
Administrative Agent on a SyndTrak, IntraLinks or similar site to which the
Lenders have been granted access or shall be available on the website of the
Securities and Exchange Commission at http:xxx.xxx.xxx or
on the website of the Borrower. Information required to be delivered
pursuant to this Section may also be delivered by electronic communications
pursuant to procedures approved by the Administrative Agent. Each
Lender shall be solely responsible for timely accessing posted documents and
maintaining its copies of such documents.
SECTION
5.04. Financial
Covenants. Until
the occurrence of the Termination Date, the Borrower will:
(a) Total Leverage
Ratio. Maintain as of the last day of each Measurement Period
set forth below a Total Leverage Ratio of not more than the ratio set forth
below for such Measurement Period:
Measurement
Period Ended
|
Ratio
|
|
December
31, 2007 through and including March 31, 2008
|
4.75:1.00
|
|
June
30, 2008
|
4.50:1.00
|
|
September
30, 2008
|
4.25:1.00
|
|
December
31, 2008
|
4.00:1.00
|
|
March
31, 2009
|
3.90:1.00
|
|
June
30, 2009
|
3.75:1.00
|
|
September
30, 2009
|
3.50:1.00
|
|
December
31, 2009
|
3.25:1.00
|
|
March
31, 2010 and thereafter
|
3.00:1.00
|
(b) First Lien Leverage
Ratio. Maintain as of the last day of each Measurement Period
set forth below a First Lien Leverage Ratio of not more than the ratio set forth
below for such Measurement Period:
Measurement
Period Ended
|
Ratio
|
|
December
31, 2007 through and including March 31, 2008
|
3.50:1.00
|
|
June
30, 2008
|
3.20:1.00
|
|
September
30, 2008 through and including December 31, 2008
|
3.00:1.00
|
|
March
31, 2009
|
2.85:1.00
|
|
June
30, 2009
|
2.75:1.00
|
|
September
30, 2009
|
2.50:1.00
|
|
December
31, 2009
|
2.30:1.00
|
|
March
31, 2010 and thereafter
|
2.00:1.00
|
81
(c) Fixed Charge Coverage
Ratio. Maintain as of the last day of each Measurement Period
set forth below a Fixed Charge Coverage Ratio of not less than the ratio set
forth below for such Measurement Period:
Measurement
Period Ended
|
Ratio
|
|
December
31, 2007
|
1.55:1.00
|
|
March
31, 2008
|
1.65:1.00
|
|
June
30, 2008 through and including September 30, 2008
|
1.75:1.00
|
|
December
31, 2008 through and including September 30, 2009
|
1.80:1.00
|
|
December
31, 2009 and thereafter
|
2.00:1.00
|
(d) Interest Coverage
Ratio. Maintain as of the last day of each Measurement Period
set forth below an Interest Coverage Ratio of not less than the ratio set forth
below for such Measurement Period:
Measurement
Period Ended
|
Ratio
|
|
December
31, 2007
|
1.85:1.00
|
|
March
31, 2008
|
2.00:1.00
|
|
June
30, 2008
|
2.25:1.00
|
|
September
30, 2008
|
2.40:1.00
|
|
December
31, 2008 through and including March 31, 2009
|
2.50:1.00
|
|
June
30, 2009 through and including September 30, 2009
|
2.60:1.00
|
|
December
31, 2009
|
2.90:1.00
|
|
March
31, 2010 and thereafter
|
3.00:1.00
|
82
ARTICLE
VI
EVENTS
OF DEFAULT
SECTION
6.01. Events of
Default. If
any of the following events (“Events of
Default”) shall occur and be continuing:
(a) (i)
the Borrower shall fail to pay any principal of any Advance when the same shall
become due and payable, (ii) the Borrower shall fail to pay any interest on any
Advance, within three Business Days after the
same shall become due and payable or (iii) the Borrower shall fail to pay any
fee or any other payment under any Loan Document within five Business Days after
the same shall become due and payable; or
(b) any
representation or warranty made by any Loan Party (or any of its officers) under
or in connection with any Loan Document or in any document delivered in
connection therewith to the Administrative Agent or any of the Lenders shall
prove to have been incorrect in any material respect when made; or
(c) the
Borrower shall fail to perform or observe any term, covenant or agreement
contained in Section 2.15,
5.01(e), (f), (i), 5.02, 5.03(a) or 5.04; or
(d) the
Borrower shall fail to provide the financial reports referred to in Section 5.03(c) or
(d) within five
Business Days of the due date thereof;
(e) any
Loan Party shall fail to perform or observe any other term, covenant or
agreement contained in any Loan Document (which is not specified in Section 6.01(c) or
(d)) on its
part to be performed or observed if such failure shall remain unremedied for 30
days after the date on which written notice thereof shall have been given to the
Borrower by the Administrative Agent; or
(f) any
Loan Party or any of its Subsidiaries shall fail to pay any principal of,
premium or interest on or any other amount payable in respect of any Debt of
such Loan Party or such Subsidiary (as the case may be) that is outstanding in a
principal amount (or, in the case of any Hedge Agreement, an Agreement Value) of
at least $3,500,000 either individually or in the aggregate for all such Loan
Parties and Subsidiaries (but excluding Debt outstanding hereunder (such
threshold amount being “Material
Debt”)), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Material Debt; or any other event
shall occur or condition shall exist under any agreement or instrument relating
to any such Material Debt and shall continue after the applicable grace period,
if any, specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the maturity of
such Material Debt or otherwise to cause, or to permit the holder thereof to
cause, such Material Debt to mature; or any such Material Debt shall be declared
to be due and payable or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or defeased,
or an offer to prepay, redeem, purchase or defease such Debt shall be required
to be made, in each case prior to the stated maturity thereof; provided that this
paragraph (f) shall not apply to secured Debt that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such Debt if
such sale or transfer is permitted hereunder and under the documents providing
for such Debt; or
83
(g) (i)
any Loan Party or any of its Subsidiaries shall generally not pay its debts in
excess of the threshold amount that constitutes Material Debt as such debts
become due, or shall admit in writing its inability to pay its debts generally
as they become due, or shall make a general assignment for the benefit of
creditors; (ii) any proceeding shall be instituted by or against any Loan Party
or any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee or other
similar official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted by it)
that is being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of 60 days or any of the
actions sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or any substantial part of its
property) shall occur; or (iii) the board of directors (or equivalent body) of
any Loan Party or any of its Subsidiaries shall adopt resolutions authorizing
the filing of any proceeding referred to in clause (ii) in this subsection (g);
or
(h) any
final judgments or orders, either individually or in the aggregate, for the
payment of money in excess of $3,500,000 (to the extent not covered by
third-party insurance by a third party insurer as to which the insurer has not
denied coverage) shall be rendered against any Loan Party or any of its
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall
be any period of 60 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(i) any
material provision of any Loan Document after delivery thereof pursuant to Section 3.01 or
5.01(j) shall
for any reason (other than pursuant to the terms thereof) cease to be valid and
binding on or enforceable against any Loan Party party to it, or any such Loan
Party shall so state in writing (other than as a result of the discharge of such
Loan Party in accordance with the terms of the Loan Documents); or
(j) other
than with respect to de minimis items of Collateral not exceeding $250,000 in
the aggregate, any Collateral Document or financing statement after delivery
thereof pursuant to Section 3.01 or
5.01(j) shall
for any reason (other than pursuant to the terms thereof) cease to create a
valid and perfected first priority lien on and security interest in the
Collateral purported to be covered thereby, except (i) to the extent otherwise
permitted by the Loan Documents, (ii) to the extent that any such lack of
validity, perfection or priority results from any act of any Agent and (iii) as
to Collateral consisting of real property, to the extent that such lack of
validity, perfection or priority are covered by a lender’s title insurance
policy and such insurer has not denied coverage; or
(k) a
Change of Control shall occur;
then, and
in any such event, the Administrative Agent (i) shall at the request, or
may with the consent, of the Required Lenders, by written notice to the
Borrower, declare the Commitments of each Lender Party and the obligation of
each Lender Party to make Advances (other than Letter of Credit Advances by an
Issuing Bank or a Revolving Credit Lender pursuant to Section 2.03(c)
and Swing Line Advances by a Revolving Credit Lender pursuant to Section 2.02(b)) and
of the Issuing Bank to issue Letters of Credit to be terminated, whereupon the
same shall forthwith terminate, and (ii) shall at the request, or may with
the consent, of the Required Lenders, (A) by written notice to the
Borrower, declare the Advances, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon the Advances, all such interest and all such amounts
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrower, (B) by written notice to each party required under the
terms of any agreement in support of which a Letter of Credit is issued, request
that all Obligations under such agreement be declared to be due and payable;
provided, however, that
in the event of an actual or deemed entry of an order for relief with respect to
the Borrower under the Federal Bankruptcy Code, (x) the Commitments of each
Lender Party and the obligation of each Lender Party to make Advances (other
than Letter of Credit Advances by an Issuing Bank or a Revolving Credit Lender
pursuant to Section 2.03(c)
and Swing Line Advances by a Revolving Credit Lender pursuant to Section 2.02(b)) and
of the Issuing Bank to issue Letters of Credit shall automatically be terminated
and (y) the Advances, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
84
SECTION
6.02. Actions in Respect of the
Letters of Credit upon an Event of Default. If
any Event of Default shall have occurred and be continuing, the Administrative
Agent may, or shall at the request of the Required Lenders, irrespective of
whether it is taking any of the actions described in Section 6.01 or
otherwise, make demand upon the Borrower to, and forthwith upon such demand the
Borrower will, pay to the Collateral Agent on behalf of the Lender Parties in
same day funds at the Collateral Agent’s Office, for deposit in the Collateral
Account, an amount equal to the aggregate Available Amount of all Letters of
Credit then outstanding; provided, however, that in the event of
an actual or deemed entry of an order for relief with respect to the Borrower
under the Bankruptcy Law, the Borrower will pay to the Collateral Agent on
behalf of the Lender Parties in same day funds at the Collateral Agent’s Office,
for deposit in the Collateral Account, an amount equal to the aggregate
Available Amount of all Letters of Credit then outstanding, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower. If at any time the Administrative Agent or
the Collateral Agent determines that any funds held in the Collateral Account
are subject to any right or claim of any Person other than the Agents and the
Lender Parties or that the total amount of such funds is less than the aggregate
Available Amount of all Letters of Credit, the Borrower will, forthwith upon
demand by the Administrative Agent or the Collateral Agent, pay to the
Collateral Agent, as additional funds to be deposited and held in the Collateral
Account, an amount equal to the excess of (a) such aggregate Available
Amount over (b) the total amount of funds, if any, then held in the
Collateral Account that the Administrative Agent or the Collateral Agent, as the
case may be, determines to be free and clear of any such right and
claim. Upon the drawing of any Letter of Credit for which funds are
on deposit in the Collateral Account, such funds shall be applied to reimburse
the relevant Issuing Bank or Revolving Credit Lenders, as applicable, to the
extent permitted by applicable law.
ARTICLE
VII
THE
AGENTS
SECTION
7.01. Authorization and
Action. (a) Each
Lender Party (in its capacities as a Lender, the Swing Line Bank (if applicable)
and the Issuing Bank (if applicable) and on behalf of itself and its Affiliates
as potential Hedge Banks) hereby appoints and authorizes each Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement and the other Loan Documents as are delegated to such Agent by
the terms hereof and thereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly
provided for by the Loan Documents (including, without limitation, enforcement
or collection of the Advances), no Agent shall be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all Lender Parties, all Hedge Banks and all holders of Notes; provided, however, that no
Agent shall be required to take any action that exposes such Agent to personal
liability or that is contrary to this Agreement or applicable
law. Each Agent agrees to give to each Lender Party prompt notice of
each notice given to it by the Borrower pursuant to the terms of this
Agreement.
85
(b) In
furtherance of the foregoing, each Lender Party (in its capacities as a Lender,
the Swing Line Bank (if applicable) and the Issuing Bank (if applicable) and on
behalf of itself and its Affiliates as potential Hedge Banks) hereby appoints
and authorizes the Collateral Agent to act as the agent of such Lender Party for
purposes of acquiring, holding and enforcing any and all Liens on Collateral
granted by any of the Loan Parties to secure any of the Secured Obligations,
together with such powers and discretion as are reasonably incidental
thereto. In this connection, the Collateral Agent (and any
Supplemental Collateral Agents appointed by the Collateral Agent pursuant to
Section 7.01(c)
for purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents, or for exercising any rights or
remedies thereunder at the direction of the Collateral Agent), shall be entitled
to the benefits of this Article VII
(including, without limitation, Section 7.05 as
though any such Supplemental Collateral Agents were an “Agent” under the Loan
Documents) as if set forth in full herein with respect thereto.
(c) Any
Agent may execute any of its duties under this Agreement or any other Loan
Document (including for purposes of holding or enforcing any Lien on the
Collateral (or any portion thereof) granted under the Collateral Documents or of
exercising any rights and remedies thereunder at the direction of the Collateral
Agent) by or through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel and other consultants or experts concerning all
matters pertaining to such duties. The Collateral Agent may also from
time to time, when the Collateral Agent deems it to be necessary or desirable,
appoint one or more trustees, co-trustees, collateral co-agents, collateral
subagents or attorneys-in-fact (each, a “Supplemental
Collateral Agent”) with respect to all or any part of the Collateral;
provided, however, that no such
Supplemental Collateral Agent shall be authorized to take any action with
respect to any Collateral unless and except to the extent expressly authorized
in writing by the Collateral Agent. Should any instrument in writing
from the Borrower or any other Loan Party be required by any Supplemental
Collateral Agent so appointed by the Collateral Agent to more fully or certainly
vest in and confirm to such Supplemental Collateral Agent such rights, powers,
privileges and duties, the Borrower shall, or shall cause such Loan Party to,
execute, acknowledge and deliver any and all such instruments promptly upon
reasonable request by the Collateral Agent. If any Supplemental
Collateral Agent, or successor thereto, shall die, become incapable of acting,
resign or be removed, all rights, powers, privileges and duties of such
Supplemental Collateral Agent, to the extent permitted by law, shall
automatically vest in and be exercised by the Collateral Agent until the
appointment of a new Supplemental Collateral Agent. No Agent shall be
responsible for the negligence or misconduct of any agent, attorney-in-fact or
Supplemental Collateral Agent that it selects in accordance with the foregoing
provisions of this Section 7.01(c) in
the absence of such Agent’s gross negligence or willful misconduct.
SECTION
7.02. Agents’ Reliance,
Etc. Neither
any Agent nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the
generality of the foregoing, each Agent: (a) may consult with
legal counsel (including counsel for any Loan Party), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (b) makes no warranty or
representation to any Lender Party and shall not be responsible to any Lender
Party for any statements, warranties or representations (whether written or
oral) made in or in connection with the Loan Documents; (c) shall not have
any duty to ascertain or to inquire as to the performance, observance or
satisfaction of any of the terms, covenants or conditions of any Loan Document
on the part of any Loan Party or the existence at any time of any Default under
the Loan Documents or to inspect the property (including the books and records)
of any Loan Party; (d) shall not be responsible to any Lender Party for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; and (e) shall
incur no liability under or in respect of any Loan Document by acting upon any
notice, consent, certificate or other instrument or writing (which may be by
telegram or telecopy) believed by it to be genuine and signed or sent by the
proper party or parties.
86
SECTION
7.03. Royal
Bank and Affiliates. With
respect to its Commitments, the Advances made by it and any Notes issued to it,
Royal Bank shall have the same rights and powers under the Loan Documents as any
other Lender Party and may exercise the same as though they were not Agents; and
the term “Lender Party” or “Lender Parties” shall, unless otherwise expressly
indicated, include Royal Bank in its individual capacity. Royal Bank
and its affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, any Loan Party, any of its Subsidiaries and any
Person that may do business with or own securities of any Loan Party or any such
Subsidiary, all as if Royal Bank were not an Agent and without any duty to
account therefor to the Lender Parties. No Agent shall have any duty
to disclose any information obtained or received by it or any of its Affiliates
relating to any Loan Party or any of its Subsidiaries to the extent such
information was obtained or received in any capacity other than as such
Agent.
SECTION
7.04. Lender Party Credit
Decision. Each
Lender Party acknowledges that it has, independently and without reliance upon
any Agent or any other Lender Party and based on the financial statements
referred to in Section 4.01(g)
and such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each
Lender Party also acknowledges that it will, independently and without reliance
upon any Agent or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this
Agreement.
SECTION
7.05. Indemnification. (a) Each
Lender Party severally agrees to indemnify each Agent (to the extent not
promptly reimbursed by the Borrower under Section 9.04) from
and against such Lender Party’s ratable share (determined as provided below) of
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against such Agent
in any way relating to or arising out of the Loan Documents or any action taken
or omitted by such Agent under the Loan Documents (collectively, the “Indemnified
Costs”); provided,
however, that no Lender Party 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 as found in a final, non-appealable judgment by a court of
competent jurisdiction. Without limitation of the foregoing, each
Lender Party agrees to reimburse each Agent promptly upon demand for its ratable
share of any costs and expenses (including, without limitation, fees and
expenses of counsel) payable by the Borrower under Section 9.04, to the
extent that such Agent is not promptly reimbursed for such costs and expenses by
the Borrower. In the case of any investigation, litigation or
proceeding giving rise to any Indemnified Costs, this Section 7.05
applies whether any such investigation, litigation or proceeding is brought by
any Lender Party or any other Person.
(b) Each
Lender Party severally agrees to indemnify the Issuing Bank (to the extent not
promptly reimbursed by the Borrower under Section 9.04) from
and against such Lender Party’s ratable share (determined as provided below) of
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against such Issuing
Bank in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Issuing Bank under the Loan Documents; provided, however, that no
Lender Party shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Issuing Bank’s gross negligence or willful
misconduct as found in a final, non-appealable judgment by a court of competent
jurisdiction. Without limitation of the foregoing, each Lender Party
agrees to reimburse such Issuing Bank promptly upon demand for its ratable share
of any costs and expenses (including, without limitation, fees and expenses of
counsel) payable by the Borrower under Section 9.04, to the
extent that such Issuing Bank is not promptly reimbursed for such costs and
expenses by the Borrower.
87
(c) For
purposes of this Section 7.05,
each Lender Party’s respective ratable share of any amount shall be determined,
at any time, according to the sum of (i) the aggregate principal amount of
the Advances outstanding at such time and owing to such Lender Party,
(ii) such Lender Party’s Pro Rata Share of the aggregate Available Amount
of all Letters of Credit outstanding at such time and (iii) such Lender
Party’s Unused Revolving Credit Commitments at such time; provided that the aggregate
principal amount of Letter of Credit Advances owing to the Issuing Bank shall be
considered to be owed to the Revolving Credit Lenders ratably in accordance with
their respective Revolving Credit Commitments. The failure of any
Lender Party to reimburse any Agent or the Issuing Bank, as the case may be,
promptly upon demand for its ratable share of any amount required to be paid by
the Lender Parties to such Agent or the Issuing Bank, as the case may be, as
provided herein shall not relieve any other Lender Party of its obligation
hereunder to reimburse such Agent or such Issuing Bank, as the case may be, for
its ratable share of such amount, but no Lender Party shall be responsible for
the failure of any other Lender Party to reimburse such Agent or such Issuing
Bank, as the case may be, for such other Lender Party’s ratable share of such
amount. Without prejudice to the survival of any other agreement of
any Lender Party hereunder, the agreement and obligations of each Lender Party
contained in this Section 7.05
shall survive the payment in full of principal, interest and all other amounts
payable hereunder and under the other Loan Documents.
SECTION
7.06. Successor
Agents. Subject
to the appointment and acceptance of a successor Agent as provided below, any
Agent may resign as to any or all of the Facilities at any time by giving
written notice thereof to the Lender Parties and the Borrower and may be removed
as to all of the Facilities at any time with or without cause by the Required
Lenders (but with the consent of the Borrower not to be unreasonably withheld);
provided, however, that any removal of
the Administrative Agent will not be effective until it has also been replaced
as Collateral Agent, Swing Line Bank and Issuing Bank and released from all of
its obligations in respect thereof. Upon any such resignation or
removal, the Required Lenders shall have the right, with the consent of the
Borrower (such consent not to be unreasonably withheld), to appoint a successor
Agent other than Disqualified Institutions as to such of the Facilities as to
which such Agent has resigned or been removed. If no successor Agent
shall have been so appointed by the Required Lenders, and shall have accepted
such appointment, within 30 days after the retiring Agent’s giving of notice of
resignation or the Required Lenders’ removal of the retiring Agent, then the
retiring Agent may, on behalf of the Lender Parties, appoint a successor Agent,
which shall be a commercial bank organized under the laws of the United States
or of any State thereof and having a combined capital and surplus of at least
$250,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent as to all of the Facilities and, in the case of a
successor Collateral Agent, upon the execution and filing or recording of such
financing statements, or amendments thereto, and such amendments or supplements
to the Mortgages, and such other instruments or notices, as may be necessary or
desirable, or as the Required Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Agent shall succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under the
Loan Documents. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent as to less than all of the Facilities and, in the
case of a successor Collateral Agent, upon the execution and filing or recording
of such financing statements, or amendments thereto, and such amendments or
supplements to the Mortgages, and such other instruments or notices, as may be
necessary or desirable, or as the Required Lenders may request, in order to
continue the perfection of the Liens granted or purported to be granted by the
Collateral Documents, such successor Agent shall succeed to and become vested
with all the rights, powers, discretion, privileges and duties of the retiring
Agent as to such Facilities, other than with respect to funds transfers and
other similar aspects of the administration of Borrowings under such Facilities,
issuances of Letters of Credit (notwithstanding any resignation as Agent with
respect to the Letter of Credit Facility) and payments by the Borrower in
respect of such Facilities, and the retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement as to such
Facilities, other than as aforesaid. If within 30 days after written
notice is given of the retiring Agent’s resignation or removal under this Section 7.06 no
successor Agent shall have been appointed and shall have accepted such
appointment, then on such 30th day
(a) the retiring Agent’s resignation or removal shall become effective,
(b) the retiring Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (c) the Required Lenders shall
thereafter perform all duties of the retiring Agent under the Loan Documents
until such time, if any, as the Required Lenders appoint a successor Agent as
provided above. After any retiring Agent’s resignation or removal
hereunder as Agent as to any of the Facilities shall have become effective, the
provisions of this Article VII
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent as to such Facilities under this Agreement.
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SECTION
7.07. Other
Agents; Arrangers and Managers. None
of the Lender Parties or other Persons identified on the facing page or
signature pages of this Agreement as a “syndication agent,” “documentation
agent,” “bookrunner,” or “lead arranger” shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than to
the extent expressly set forth herein and, in the case of such Lenders, those
applicable to all Lender Parties as such. Without limiting the
foregoing, none of the Lender Parties or other Persons so identified shall have
or be deemed to have any fiduciary relationship with any Lender. Each
Lender Party acknowledges that it has not relied, and will not rely, on any of
the Lender Parties or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
SECTION
7.08. Intercreditor
Agreement. Each
of the Lender Parties hereby acknowledges that it has received and reviewed the
Intercreditor Agreement and agrees to be bound by the terms
thereof. Each Lender Party (and each Person that becomes a Lender
Party hereunder pursuant to Section 9.07) hereby
(i) acknowledges that Royal Bank is acting under the Intercreditor Agreement in
multiple capacities as the Administrative Agent, the Collateral Agent and the
second lien collateral agent under the Intercreditor Agreement and (ii) waives
any conflict of interest, now contemplated or arising hereafter, in connection
therewith and agrees not to assert against Royal Bank any claims, causes of
action, damages or liabilities of whatever kind or nature relating thereto,
except to the extent such damages or liabilities are determined in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
primarily from Royal Bank’s gross negligence or willful
misconduct. Each Lender Party (and each Person that becomes a Lender
Party hereunder pursuant to Section 9.07) hereby
authorizes and directs Royal Bank to enter into the Intercreditor Agreement on
behalf of such Lender and agrees that Royal Bank, in its various capacities
thereunder, may take such actions on its behalf as is contemplated by the terms
of the Intercreditor Agreement.
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ARTICLE
VIII
GUARANTY
SECTION
8.01. Guaranty; Limitation of
Liability. (a) Each
Guarantor, jointly and severally, hereby absolutely, unconditionally and
irrevocably guarantees the punctual payment when due, whether at scheduled
maturity or on any date of a required prepayment or by acceleration, demand or
otherwise, of all Obligations of each other Loan Party now or hereafter existing
under or in respect of the Loan Documents and the Secured Hedge Agreements
(including, without limitation, any extensions, modifications, substitutions,
amendments or renewals of any or all of the foregoing Obligations), whether
direct or indirect, absolute or contingent, and whether for principal, interest,
premiums, fees, indemnities, contract causes of action, costs, expenses or
otherwise (such Obligations, but excluding any Obligations pertaining to the
Term C Advances, being the “Guaranteed
Obligations”), and agrees to pay any and all expenses (including, without
limitation, fees and expenses of counsel) incurred by any Agent or any Lender
Party in enforcing any rights under this Guaranty. Without limiting
the generality of the foregoing, each Guarantor’s liability shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by
any other Loan Party to any Agent or any Lender Party under or in respect of the
Loan Documents but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar proceeding involving
such other Loan Party.
(b) Each
Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and
each Lender Party, hereby confirms that it is the intention of all such Persons
that this Guaranty and the Obligations of each Subsidiary Guarantor hereunder
not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar foreign, federal or state law to the extent applicable to this
Guaranty and the Obligations of each Subsidiary
Guarantor hereunder. To effectuate the foregoing
intention, the Administrative Agent, the Lender Parties and the Guarantors
hereby irrevocably agree that the Obligations of each Subsidiary
Guarantor under this Guaranty at any time shall be limited to the
maximum amount as will result in the Obligations of such Subsidiary Guarantor
under this Guaranty not constituting a fraudulent transfer or
conveyance.
(c) Each
Guarantor hereby unconditionally and irrevocably agrees that in the event any
payment shall be required to be made to any Lender Party under this Guaranty or
any other guaranty, such Guarantor will contribute, to the maximum extent
permitted by law, such amounts to each other Guarantor and each other guarantor
so as to maximize the aggregate amount paid to the Agents and the Lender Parties
under or in respect of the Loan Documents.
SECTION
8.02. Guaranty
Absolute.
Each
Guarantor guarantees that the Guaranteed Obligations will be paid strictly in
accordance with the terms of the Loan Documents, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of any Agent or any Lender Party with respect
thereto. The Obligations of each Guarantor under or in respect of
this Guaranty are independent of the Guaranteed Obligations or any other
Obligations of any other Loan Party under or in respect of the Loan Documents,
and a separate action or actions may be brought and prosecuted against each
Guarantor to enforce this Guaranty, irrespective of whether any action is
brought against the Borrower or any other Loan Party or whether the Borrower or
any other Loan Party is joined in any such action or actions. The
liability of each Guarantor under this Guaranty shall be irrevocable, absolute
and unconditional irrespective of, and each Guarantor hereby irrevocably waives,
to the extent permitted by law, any defenses it may now have or hereafter
acquire in any way relating to, any or all of the following:
(a) any
lack of validity or enforceability of any Loan Document or any agreement or
instrument relating thereto;
(b) any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Guaranteed Obligations or any other Obligations of any other
Loan Party under or in respect of the Loan Documents, or any other amendment or
waiver of or any consent to departure from any Loan Document, including, without
limitation, any increase in the Guaranteed Obligations resulting from the
extension of additional credit to any Loan Party or any of its Subsidiaries or
otherwise;
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(c) any
taking, exchange, release or non-perfection of any Collateral or any other
collateral, or any taking, release or amendment or waiver of, or consent to
departure from, any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any
manner of application of Collateral or any other collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of sale or
other disposition of any Collateral or any other collateral for all or any of
the Guaranteed Obligations or any other Obligations of any Loan Party under the
Loan Documents or any other assets of any Loan Party or any of its
Subsidiaries;
(e) any
change, restructuring or termination of the corporate structure or existence of
any Loan Party or any of its Subsidiaries;
(f) any
failure of any Agent or any Lender Party to disclose to any Loan Party any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party now or
hereafter known to such Agent or such Lender Party, as the case may be (each
Guarantor waiving any duty on the part of the Agents and the Lender Parties to
disclose such information);
(g) the
failure of any other Person to execute or deliver this Guaranty, any Guaranty
Supplement or any other guaranty or agreement or the release or reduction of
liability of any Guarantor or other guarantor or surety with respect to the
Guaranteed Obligations; or
(h) any
other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by any Agent or any Lender
Party that might otherwise constitute a defense available to, or a discharge of,
any Loan Party or any other guarantor or surety (other than the occurrence of
the Termination Date).
This
Guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment of any of the Guaranteed Obligations is rescinded or
must otherwise be returned by any Agent or any Lender Party or any other Person
upon the insolvency, bankruptcy or reorganization of the Borrower or any other
Loan Party or otherwise, all as though such payment had not been
made.
SECTION
8.03. Waivers and
Acknowledgments. (a) To
the extent permitted by law, each Guarantor hereby unconditionally and
irrevocably waives promptness, diligence, notice of acceptance, presentment,
demand for performance, notice of nonperformance, default, acceleration, protest
or dishonor and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and any requirement that any Agent or any Lender
Party protect, secure, perfect or insure any Lien or any property subject
thereto or exhaust any right or take any action against any Loan Party or any
other Person or any Collateral.
(b) Each
Guarantor hereby unconditionally and irrevocably waives any right to revoke this
Guaranty and acknowledges that this Guaranty is continuing in nature and applies
to all Guaranteed Obligations, whether existing now or in the
future.
(c) Each
Guarantor hereby unconditionally and irrevocably waives (i) any
defense (other than the occurrence of the Termination Date) arising
by reason of any claim or defense based upon an election of remedies by any
Agent or any Lender Party that in any manner impairs, reduces, releases or
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against any of the other Loan Parties, any other guarantor
or any other Person or any Collateral and (ii) any defense (other than the
occurrence of the Termination Date) based on any right of set-off or
counterclaim against or in respect of the Obligations of such Guarantor
hereunder.
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(d) Each
Guarantor acknowledges that the Collateral Agent may, without notice to or
demand upon such Guarantor and without affecting the liability of such Guarantor
under this Guaranty, foreclose under any mortgage by nonjudicial sale, and each
Guarantor hereby waives any defense (other than the occurrence of the
Termination Date) to the recovery by the Collateral Agent and the other Secured
Parties against such Guarantor of any deficiency after such nonjudicial sale and
any defense or benefits that may be afforded by applicable law.
(e) Each
Guarantor hereby unconditionally and irrevocably waives any duty on the part of
any Agent or any Lender Party to disclose to such Guarantor any matter, fact or
thing relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Loan Party or any of its
Subsidiaries now or hereafter known by such Agent or such Secured Party, as the
case may be.
(f) Each
Guarantor acknowledges that it will receive substantial direct and indirect
benefits from the financing arrangements contemplated by the Loan Documents and
that the waivers set forth in Section 8.02 and
this Section 8.03 are
knowingly made in contemplation of such benefits.
SECTION
8.04. Subrogation. Each
Guarantor hereby unconditionally and irrevocably agrees not to exercise any
rights that it may now have or hereafter acquire against the Borrower, any other
Loan Party or any other insider guarantor that arise from the existence,
payment, performance or enforcement of such Guarantor’s Obligations under or in
respect of this Guaranty or any other Loan Document, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution
or indemnification and any right to participate in any claim or remedy of any
Agent or any Lender Party against the Borrower, any other Loan Party or any
other insider guarantor or any Collateral, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from the Borrower, any other
Loan Party or any other insider guarantor, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, unless and until the occurrence of the
Termination Date. If any amount shall be paid to any Guarantor in
violation of the immediately preceding sentence at any time prior to the
occurrence of the Termination Date such amount shall be received and held in
trust for the benefit of the Secured Parties, shall be segregated from other
property and funds of such Guarantor and shall forthwith be paid or delivered to
the Administrative Agent in the same form as so received (with any necessary
endorsement or assignment) to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Guaranty, whether matured
or unmatured, in accordance with the terms of the Loan Documents, or to be held
as Collateral for any Guaranteed Obligations or other amounts payable under this
Guaranty thereafter arising. If the Termination Date shall have
occurred, the Agents and the Lender Parties will, at such Guarantor’s request
and expense, execute and deliver to such Guarantor appropriate documents,
without recourse and without representation or warranty, necessary to evidence
the transfer by subrogation to such Guarantor of an interest in the Guaranteed
Obligations resulting from such payment made by such Guarantor pursuant to this
Guaranty.
SECTION
8.05. Guaranty
Supplements. Upon
the execution and delivery by any Person of a guaranty supplement in
substantially the form of Exhibit E hereto (each, a “Guaranty
Supplement”), (a) such Person shall be referred to as an “Additional
Guarantor” and shall become and be a Guarantor hereunder, and each
reference in this Guaranty to a “Subsidiary
Guarantor” shall also mean and be a reference to such Additional
Guarantor, and each reference in any other Loan Document to a “Guarantor”
shall also mean and be a reference to such Additional Guarantor, and
(b) each reference herein to “ this
Guaranty,” “hereunder,”
“hereof” or
words of like import referring to this Guaranty, and each reference in any other
Loan Document to the “Guaranty,”
“thereunder,”
“thereof”
or words of like import referring to this Guaranty, shall mean and be a
reference to this Guaranty as supplemented by such Guaranty
Supplement.
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SECTION
8.06. Subordination. Until
the Termination Date, each Guarantor hereby subordinates any and all debts,
liabilities and other Obligations owed to such Guarantor by each other Loan
Party (the “Subordinated
Obligations”) to the Guaranteed Obligations to the extent and in the
manner hereinafter set forth in this Section 8.06:
(a) Prohibited Payments,
Etc. Except during the continuance of an Event of Default,
each Guarantor may receive payments from any other Loan Party on account of the
Subordinated Obligations. After the occurrence and during the
continuance of any Event of Default, however, unless the Required Lenders
otherwise agree, no Guarantor shall demand, accept or take any action to collect
any payment on account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed
Obligations. In any proceeding under any Bankruptcy Law
relating to any other Loan Party, each Guarantor agrees that the Agents and the
Lender Parties shall be entitled to receive payment in full in cash of all
Guaranteed Obligations (including all interest and expenses accruing after the
commencement of a proceeding under any Bankruptcy Law, whether or not
constituting an allowed claim in such proceeding (“Post-Petition
Interest”)) before such Guarantor receives payment of any Subordinated
Obligations.
(c) Turn-Over. After
the occurrence and during the continuance of any Event of Default, each
Guarantor shall, if the Administrative Agent so requests, collect, enforce and
receive payments on account of the Subordinated Obligations as trustee for the
Agents and the Lender Parties and deliver such payments to the Administrative
Agent on account of the Guaranteed Obligations (including all Post-Petition
Interest), together with any necessary endorsements or other instruments of
transfer, but without reducing or affecting in any manner the liability of such
Guarantor under the other provisions of this Guaranty.
SECTION
8.07. Continuing Guaranty;
Assignments. This
Guaranty is a continuing guaranty and shall (a) remain in full force and
effect until the Termination Date and (b) be binding upon each Guarantor,
its successors and assigns and (c) inure to the benefit of and be
enforceable by the Agents and the Lender Parties and their successors,
transferees and permitted assigns. Without limiting the generality of
clause (c) of the immediately preceding sentence, any Lender Party may
assign or otherwise transfer all or any portion of its rights and obligations
under this Agreement (including, without limitation, all or any portion of its
Commitments, the Advances owing to it and any Note or Notes held by it) to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Lender Party herein or otherwise, in
each case as and to the extent provided in Section 9.07. No
Guarantor shall have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Secured Parties.
SECTION
8.08. Release of
Guarantor. A Subsidiary Guarantor shall automatically be
released from its obligations hereunder and the Liens created hereunder in the
Collateral of such Subsidiary Guarantor shall be automatically released upon the
consummation of any sale, disposition or other transaction (including merger or
consolidation) permitted by this Agreement as a result of which such Subsidiary
Guarantor ceases to be a subsidiary
SECTION
8.09. Term
C Advances. This Guaranty shall not apply to any Obligations in respect
of the Term C Advances in respect of the Term C Advances, which shall instead by
governed pursuant to Article VIII of the Second Lien Term Loan
Agreement.
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ARTICLE
IX
MISCELLANEOUS
SECTION
9.01. Amendments,
Etc. Except
for actions expressly permitted to be taken by the Agents, no amendment or
waiver of any provision of this Agreement or any other Loan Document, nor
consent to any departure by any Loan Party therefrom, shall in any event be
effective unless the same shall be in writing and signed (or, in the case of the
Collateral Documents, consented to) by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that
(a) no amendment, waiver or consent shall, unless in writing and signed by
all of the Lender Parties (other than any Lender Party that is, at such time, a
Defaulting Lender and the Term C Lender, which Term C Lender, for the purposes
of this Section
9.01(a) shall be subject to Section 9.01(a) of the Second Lien Term Loan
Agreement (as in effect on the date hereof)), do any of the following at any
time:
(i) waive
any of the conditions specified in Section 3.02 or, in
the case of the Initial Extension of Credit, Section
3.01;
(ii) change
the number of Lenders or the percentage of (x) the Commitments, (y) the
aggregate unpaid principal amount of the Advances or (z) the aggregate Available
Amount of outstanding Letters of Credit that, in each case, shall be required
for the Lenders or any of them to take any action hereunder;
(iii) other
than in connection with a transaction specifically permitted hereby, release one
or more Guarantors (or otherwise limit such Guarantors’ liability with respect
to the Obligations owing to the Agents and the Lender Parties under the
Guaranty) if such release or limitation is in respect of all or substantially
all of the value of the Guaranties to the Lender Parties; or
(iv) release
all or substantially all of the Collateral in any transaction or series of
related transactions;
and (b)
no amendment, waiver or consent shall, unless in writing and signed by the
Required Lenders and each Lender, including for greater certainty, the Term C
Lender (other than any Lender that is, at such time, a Defaulting Lender)
specified below for such amendment, waiver or consent:
(i) increase
the Commitments of a Lender Party without the consent of such Lender Party (it
being understood that a waiver of any condition precedent set forth in Article III or the
waiver of any Default or mandatory prepayment shall not constitute an increase
of any Commitment of any Lender Party);
(ii) extend
the Scheduled Termination Date in respect of either Facility without the consent
of each Lender under such Facility;
(iii) reduce
the principal of, or stated rate of interest on, the Advances owed to a Lender
Party or any fees or other amounts stated to be payable hereunder or under the
other Loan Documents to such Lender Party without the consent of such Lender
Party (it being understood that this clause (iii) shall not apply solely as a
result of amendments of the definition of “Total Leverage Ratio” and the
definitions used therein);
(iv) amend,
modify or waive the provisions of Section 2.12(f)
without the consent of each Lender adversely affected thereby;
94
(v) postpone
any date scheduled for any payment of principal of, or interest on, the Advances
pursuant to Section
2.04 or 2.07 or any date
fixed for any payment of fees hereunder to a Lender Party without the consent of
such Lender Party; provided, that only the
consent of the Required Lenders shall be necessary to amend the provisions of
Section 2.07(b)
providing for the Default Interest or to waive any obligations of the Borrower
to pay interest at such Default Interest;
(vi) change
the order of application of any reduction in the Commitments or any prepayment
of Advances among the Facilities from the application thereof set forth in the
applicable provisions of Section 2.05(b)
or 2.06(b),
respectively, in any manner that materially adversely affects the Lenders under
one Facility without the consent of holders of a majority of the Commitments or
Advances outstanding under such Facility;
(vii) amend,
waive, modify or consent to any departure from the provisions of this Section 9.01 in a
manner that would adversely affect the rights of any Lender under this Section 9.01 without
the consent of such Lender;
provided, further, that no amendment,
waiver or consent shall, unless in writing and signed by the Swing Line Bank and
the Issuing Bank, as the case may be, in addition to the Lenders required above
to take such action, affect the rights or obligations of the Issuing Bank, as
the case may be, under this Agreement; and provided, further, that no amendment,
waiver or consent shall, unless in writing and signed by an Agent in addition to
the Lenders required above to take such action, affect the rights or duties of
such Agent under this Agreement or the other Loan Documents.
In
addition, notwithstanding the foregoing, this Agreement may be amended with the
written consent of the Administrative Agent, the Borrower and the Lenders
providing the Replacement Term Loans (as defined below) to permit the
refinancing of the outstanding Term B Advances and Term C Advances (as
applicable, “Refinanced
Term
Loans”)
with a replacement term loan tranche denominated in dollars (as applicable,
“Replacement Term
Loans”) hereunder; provided that (i) the
aggregate principal amount of such Replacement Term Loans shall not exceed the
aggregate principal amount of such Refinanced Term Loans, (ii) the Applicable
Margin for such Replacement Term Loans shall not be higher than the Applicable
Margin for such Refinanced Term Loans, (iii) 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 Loans at the time of such
refinancing (except to the extent of nominal amortization for periods where
amortization has been eliminated as a result of prepayment of the Refinanced
Term Loans) and (iv) 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
Loans, except to the extent necessary to provide for covenants and other terms
applicable to any period after the latest final maturity of the Term B Advances
and Term C Advances in effect immediately prior to such
refinancing.
(c) Notwithstanding
the foregoing, in addition to any credit extensions and amendments related to
the Incremental Facilities effectuated without the consent of Lenders in
accordance with Section 2.18,
this Agreement (including this Section 9.01)
may be amended (or amended and restated) with the written consent of the
Required Lenders, the Administrative Agent and the Borrower (i) to add one
or more additional credit facilities to this Agreement and to permit the
extensions of credit from time to time outstanding thereunder and the accrued
interest and fees in respect thereof to share ratably in the benefits of this
Agreement and the other Loan Documents with the Term B Advances and the
Revolving Credit Advances and the accrued interest and fees in respect thereof
and (ii) to include appropriately the Lenders holding such credit
facilities in any determination of the Required Lenders and other definitions
related to such new credit facilities.
95
(d) Notwithstanding
anything to the contrary contained in this Section 9.01, at any
time prior to 90 days following the Effective Date, the Loan Parties agree that
the Administrative Agent shall have the authority, without the consent of the
Loan Parties but after consultation with the Loan Parties, to make such
amendments to the Loan Documents as shall be reasonably necessary to give effect
to the provisions of the Fee Letter (as from time to time may be amended,
supplemented or otherwise modified) solely to the extent that such amendments do
not impair the rights, obligations or interests of any other Lender under this
Agreement in any material respect.
(e) Notwithstanding
anything to the contrary contained in this Section 9.01, if the
Administrative Agent and the Borrower (A) shall have jointly identified an
obvious error or any error or omission of a technical or immaterial nature, in
each case, in any provision of the Loan Documents, or (B) shall seek to amend
the Loan Documents in a manner more favorable to the Lenders, taken as a whole,
then, in each case, the Administrative Agent and the Borrower shall be permitted
to amend such provision and such amendment shall become effective without any
further action or consent of any other party to any Loan Document if the same is
not objected to in writing by the Required Lenders within five (5) Business Days
following receipt of notice thereof.
SECTION
9.02. Notices,
Etc. (a) Except
in the case of notices and other communications expressly permitted to be given
by telephone, all notices and other communications provided for hereunder shall
be either (x) in writing (including telecopy communication) and mailed,
telecopied or delivered by hand or overnight courier service, or (y) as and to
the extent set forth in Section 9.02(b) and
in the proviso to this Section 9.02(a), in
an electronic medium and as delivered as set forth in Section 9.02(b), if
to any Loan Party, at the Borrower’s address at Gwynedd Hall, 0000 Xxxxxx
Xxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxx, XX 00000, Fax: 000-000-0000,
Attn: Chief Financial Officer, with a copy to the Sponsor at the Sponsor’s
address, telecopy number or electronic mail address at 000 Xxxxxxxx Xxxxx, Xxxxx
0000, Xxxxxx, XX 00000, Attention: Xxxxxx Xxxxxx, Fax 000.000.0000, Email:
xxxxxxx@xxxxxxxxx.xxx; if to any Initial Lender Party, at its Domestic Lending
Office, telecopy number or electronic mail address specified opposite its name
on Schedule I hereto; if to any other Lender Party, at its Domestic Lending
Office, telecopy number or electronic mail address specified in the Assignment
and Acceptance pursuant to which it became a Lender Party; if to the Collateral
Agent or the Administrative Agent, at its address at 000 Xxx Xxxxxx,
00xx Xxxxx, Xxxxx Xxxxx, Xxxxx Bank Plaza, Toronto, Ontario M5J 2W7,
Attention: Manager, Agency, Fax: 000.000.0000 or, as to any
party, at such other address, telecopy number or electronic mail address as
shall be designated by such party in a written notice to the other parties;
provided, however, that materials and
information described in Section 9.02(b) shall
be delivered to the Administrative Agent in accordance with the provisions
thereof or as otherwise specified to the Borrower by the Administrative Agent in
writing. All such notices and other communications delivered by hand
or overnight courier service shall be effective when received, all such notices
sent by mail shall be effective as of the earlier of receipt thereof and three
Business Days after deposit in the mails, and all such notices and other
communications sent by telecopy shall be effective when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to
have been given at the opening of business on the next business day for the
recipient). All such notices delivered by electronic mail, as
provided in subsection (b) below, shall be effective when
delivered. Delivery by telecopier of an executed counterpart of a
signature page to any amendment or waiver of any provision of this Agreement or
the Notes or of any Exhibit hereto to be executed and delivered hereunder shall
be effective as delivery of an original executed counterpart
thereof. As agreed to among the Borrower, including as set forth in
subsection (b) below, the Administrative Agent and the applicable Lender Parties
from time to time, notices and other communications may also be delivered by
e-mail to the e-mail address of a representative of the applicable Person
provided from time to time by such Person.
96
(b) The
Borrower hereby agrees that it will provide to the Administrative Agent all
information, documents and other materials that it is obligated to furnish to
the Administrative Agent pursuant to the Loan Documents, including, without
limitation, all notices, requests, financial statements, financial and other
reports, certificates and other information materials, but excluding (i) any
Notice of Borrowing, Notice of Issuance, Notice of Renewal or notice of
Conversion pursuant to Section 2.09, (ii)
any notice of any prepayment of the Advances pursuant to Section 2.06, (iii)
any notice of a Default or Event of Default under this Agreement or (iv) any
certificate, agreement or other document required to be delivered to satisfy any
condition set forth in Article III of this
Agreement (all such non-excluded communications being referred to herein
collectively as “Communications”),
by delivering the Communications by e-mail to an e-mail address specified by the
Administrative Agent to the Borrower. In addition, the Borrower
agrees to continue to provide the Communications to the Administrative Agent in
the manner specified in the Loan Documents but only to the extent requested by
the Administrative Agent. The Borrower further agrees that the
Administrative Agent may make the Communications available to the Lenders by
posting the Communications on Intralinks or a substantially similar electronic
transmission system (the “Platform”).
(c) The
Platform is provided on an “as is” and “as available” basis and the Agent
Parties (as defined below) make no representation or warranty of any
kind as the accuracy or completeness of the Communications or as to the adequacy
of the Platform, and expressly disclaim any liability for any errors or
omissions in the Communications. In no event shall the Administrative
Agent or any of its Affiliates or any of their respective officers, directors,
employees, agents, Advisors or representatives (collectively, the “Agent
Parties”) have any liability to the Borrower, any Lender Party or any
other Person or entity for damages of any kind, including, without limitation,
any direct or indirect, special, incidental or consequential damages, losses or
expenses (whether in tort, contract or otherwise) arising out of the Borrower’s
or the Administrative Agent’s delivery of any Communications through the
internet, except to the extent the liability of any Agent Party is found in a
final non-appealable judgment by a court of competent jurisdiction to have
resulted primarily from such Agent Party’s gross negligence or willful
misconduct.
(d) The
Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address set forth above shall constitute
effective delivery of the Communications to the Administrative Agent for
purposes of the Loan Documents. Each Lender Party agrees that notice
to it (as provided in the next sentence) specifying that the Communications have
been posted to the Platform shall constitute effective delivery of the
Communications to such Lender Party for purposes of the Loan
Documents. Each Lender Party agrees to (i) notify the Administrative
Agent in writing (including by e-mail) from time to time of such Lender Party’s
e-mail address to which the foregoing notice may be sent by electronic
transmission and (ii) that the foregoing notice may be sent to such e-mail
address. Nothing herein shall prejudice the right of the
Administrative Agent or any Lender Party to give any notice or other
communication pursuant to any Loan Document in any other manner specified in
such Loan Document.
SECTION
9.03. No
Waiver; Remedies. No
failure on the part of any Lender Party or any Agent to exercise, and no delay
in exercising, any right hereunder or under any Note or any other Loan Document
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
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SECTION
9.04. Costs
and Expenses. (a) The
Borrower agrees to pay within 30 days after receipt of an invoice setting forth
such amounts in reasonable detail (i) all reasonable and documented
out-of-pocket costs and expenses of each Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of,
or any consent or waiver under, the Loan Documents (including, without
limitation, (A) all due diligence, collateral review, syndication,
transportation, duplication, appraisal, audit, insurance, consultant, search,
filing and recording fees and expenses and (B) the reasonable fees and
expenses of one counsel to the Agents and the Lenders taken as a whole (and, if
reasonably necessary, of one local counsel in any applicable jurisdiction, and
additional counsel if a conflict of interest exists between any Agent or Lender
and any other Agent or Lender, as determined in good faith by such a party),
with respect to advising such Agent as to its rights and responsibilities, or
the perfection, protection or preservation of rights or interests, under the
Loan Documents, with respect to negotiations with any Loan Party or with other
creditors of any Loan Party or any of its Subsidiaries arising out of any
Default or any events or circumstances that may give rise to a Default and with
respect to presenting claims in or otherwise participating in or monitoring any
bankruptcy, insolvency or other similar proceeding involving creditors’ rights
generally and any proceeding ancillary thereto) and (ii) all reasonable and
documented out-of-pocket costs and expenses of each Agent and the Lender Parties
in connection with the enforcement of the Loan Documents, whether in any action,
suit or litigation, or any bankruptcy, insolvency or other similar proceeding
affecting creditors’ rights generally (including, without limitation, the
reasonable fees and expenses of counsel for the Administrative Agent and the
Lender Parties with respect thereto).
(b) The
Borrower agrees to indemnify, defend and save and hold harmless each Agent, each
Lender Party and each of their Affiliates and their respective officers,
directors, employees, agents and advisors (each, an “Indemnified
Party”) (i) from and against, and shall pay within 30 days after receipt
of an invoice setting forth such amounts in reasonable detail, any and all
reasonable and documented out-of-pocket expenses (including, without limitation,
the reasonable and documented fees, disbursements and other charges of one
counsel to the Administrative Agent and the Lenders taken as a whole, and, if
reasonably necessary, of one local counsel in any applicable jurisdiction, and
additional counsel if a conflict of interest exists between the Indemnified
Parties, as determined in good faith by an Indemnified Party) that may be
incurred by any Indemnified Party, arising out of or associated with the
syndication of the Facilities and the preparation, execution, delivery and
administration of the Loan Documents and any amendment or waiver with respect
thereto, and (ii) from and against, and shall pay within 30 days after receipt
of an invoice setting forth such amounts in reasonable detail, any and all
claims, damages, losses, liabilities and reasonable and documented out-of-pocket
expenses (including, without limitation, the reasonable and documented fees,
disbursements and other charges of one counsel to the Administrative Agent and
the Lenders taken as a whole, and, if reasonably necessary, of one local counsel
in any applicable jurisdiction, and additional counsel if a conflict of interest
exists between the Indemnified Parties, as determined in good faith by an
Indemnified Party) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case of clauses (i) and (ii) arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation or proceeding or preparation of a defense in
connection therewith) (A) the Facilities, the actual or proposed use of the
proceeds of the Advances or the Letters of Credit, or any of the transactions
contemplated by the Transaction Documents or (B) the actual or alleged
presence of Hazardous Materials on any property of any Loan Party or any of its
Subsidiaries or any Environmental Action relating in any way to any Loan Party
or any of its Subsidiaries, except to the extent such claim, damage, loss,
liability or expense (w) is found in a final, non-appealable judgment by a court
of competent jurisdiction to have resulted from such Indemnified Party’s gross
negligence, willful misconduct or bad faith, (x) arises out of material breach
of the Loan Documents by any Indemnified Party or (y) arises solely out of a
dispute among the Indemnified Parties; provided that the
Administrative Agent shall continue to be indemnified in the event of a dispute
between it and other Indemnified Parties. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 9.04(b)
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Loan Party, its directors,
shareholders or creditors or any Indemnified Party or any other Person, whether
or not any Indemnified Party is otherwise a party thereto and whether or not the
Transaction is consummated. Each party hereto also agrees not to
assert any claim against any other party or any of their Affiliates, or any of
their respective officers, directors, employees, agents and advisors, on any
theory of liability, for special, indirect, consequential or punitive damages
arising out of or otherwise relating to the Facilities, the actual or proposed
use of the proceeds of the Advances or the Letters of Credit, the Transaction
Documents or any of the transactions contemplated by the Transaction
Documents.
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(c) If
any payment of principal of, or Conversion of, any Eurodollar Rate Advance
(other than a Term C Advance) is made by the Borrower to or for the account of a
Lender Party other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.06,
2.09(b)(i) or
2.10(d),
acceleration of the maturity of the Advances pursuant to Section 6.01 or
for any other reason, or by an Eligible Assignee to a Lender Party other than on
the last day of the Interest Period for such Advance upon an assignment of
rights and obligations under this Agreement pursuant to Section 9.07, as
a result of a demand by the Borrower pursuant to Section 2.11(e)
or Section
9.10, or if the Borrower fails to make any payment or prepayment of an
Advance (other than a Term C Advance) for which an irrevocable notice of
prepayment has been given or that is otherwise required to be made, whether
pursuant to Section 2.04,
2.06 or 6.01 or otherwise,
the Borrower shall, upon demand by such Lender Party (with a copy of such demand
to the Administrative Agent), pay to the Administrative Agent for the account of
such Lender Party any amounts required to compensate such Lender Party for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment or Conversion or such failure to pay or prepay, as the case may be,
including, without limitation, any loss (excluding any loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by any Lender Party to fund or maintain such
Advance.
(d) If
any Loan Party fails to pay when due any costs, expenses or other amounts
payable by it under any Loan Document, including, without limitation, fees and
expenses of counsel and indemnities, such amount may be paid on behalf of such
Loan Party by the Administrative Agent or any Lender Party, in its sole
discretion.
(e) Without
prejudice to the survival of any other agreement of any Loan Party hereunder or
under any other Loan Document, the agreements and obligations of the Borrower
contained in Sections 2.10
and 2.13 and
this Section 9.04
shall survive the payment in full of principal, interest and all other amounts
payable hereunder and under any of the other Loan Documents.
(f) For
the avoidance of doubt, any and all payments by any Loan Party to or for the
account of any Lender Party or any Agent hereunder or under any other Loan
Document with respect to Taxes shall be governed exclusively by Section 2.12 and not
by this Section
9.04.
SECTION
9.05. Right
of Set-off. Upon
(a) the occurrence and during the continuance of any Event of Default and
(b) the making of the request or the granting of the consent specified by
Section 6.01 to
authorize the Administrative Agent to declare the Advances due and payable
pursuant to the provisions of Section 6.01,
each Agent and each Lender Party and each of their respective Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and otherwise apply any and all deposits (general
or special, time or demand, provisional or final) (other than with respect to
payroll accounts, zero balance accounts and trust funds) at any time held and
other indebtedness at any time owing by such Agent, such Lender Party or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the Obligations of the Borrower now or hereafter existing under the Loan
Documents, irrespective of whether such Agent or such Lender Party shall have
made any demand under this Agreement or the other Loan Documents and although
such Obligations may be unmatured. Each Agent and each Lender Party
agrees promptly to notify the Borrower after any such set-off and application;
provided, however, that
the failure to give such notice shall not affect the validity of such set-off
and application. The rights of each Agent and each Lender Party and
their respective Affiliates under this Section are in addition to other rights
and remedies (including, without limitation, other rights of set-off) that such
Agent, such Lender Party and their respective Affiliates may have.
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SECTION
9.06. Binding
Effect. This
Agreement shall become effective when it shall have been executed by the
Borrower and each Agent and the Administrative Agent shall have been notified by
each Initial Lender Party that such Initial Lender Party has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, each
Agent and each Lender Party and their respective successors and assigns, except
that the Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of each Lender
Party.
SECTION
9.07. Assignments and
Participations. (a) Each
Lender may assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment or Commitments, the Advances owing to it and the
Note or Notes held by it); provided, however, that
(i) except in the case of an assignment to a Person that, immediately prior
to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund
of any Lender, each such assignment shall be of a uniform, and not a varying,
percentage of all rights and obligations under and in respect of any or all
Facilities, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender, an Affiliate of any Lender
or an Approved Fund of any Lender or an assignment of all of a Lender’s rights
and obligations under this Agreement, the aggregate amount of the Commitments
being assigned to such Eligible Assignee pursuant to such assignment (determined
as of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event be less than $1,000,000 (or such lesser amount as shall be
approved by the Administrative Agent (such approval not to be unreasonably
withheld or delayed) and, so long as no Event of Default shall have occurred and
be continuing at the time of the effectiveness of such assignment, the Borrower
(which approval shall not be unreasonably withheld or delayed)) under each
Facility for which a Commitment is being assigned, (iii) each such assignment
shall be to an Eligible Assignee, (iv) each such assignment made as a result of
a demand by the Borrower pursuant to Section 2.11(e) or
Section 9.10
shall be arranged by the Borrower after consultation with the Administrative
Agent and shall be either an assignment of all of the rights and obligations of
the assigning Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or other
such assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Borrower pursuant to Section 2.11(e) or
Section 9.10
unless and until such Lender shall have received one or more payments from
either the Borrower or one or more Eligible Assignees in an aggregate amount at
least equal to the aggregate outstanding principal amount of the Advances owing
to such Lender, together with accrued interest thereon to the date of payment of
such principal amount and all other amounts payable to such Lender under this
Agreement and (vi) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance, together with any Note or Notes (if any) subject
to such assignment and a processing and recordation fee of $3,500 (which
processing and recordation fee shall not be charged with respect to assignments
to any Affiliate or Approved Fund of such Lender).
(b) Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in such Assignment and Acceptance, (i) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the
case may be, hereunder and (ii) the Lender or Issuing Bank assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
(other than its rights under Sections 2.10,
2.13 and 9.04 to the extent
any claim thereunder relates to an event arising prior to such assignment) and
be released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the remaining portion of an assigning
Lender’s or Issuing Bank’s rights and obligations under this Agreement, such
Lender or Issuing Bank shall cease to be a party hereto).
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(c) By
executing and delivering an Assignment and Acceptance, each Lender Party
assignor thereunder and each assignee thereunder confirm to and agree with each
other and the other parties thereto and hereto as
follows: (i) other than as provided in such Assignment and
Acceptance, such assigning Lender Party makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; (ii) such
assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under any
Loan Document or any other instrument or document furnished pursuant thereto;
(iii) such assignee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in Section 4.01(g)
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance
upon any Agent, such assigning Lender Party or any other Lender Party and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes each Agent to take such action
as agent on its behalf and to exercise such powers and discretion under the Loan
Documents as are delegated to such Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender or Issuing Bank, as the case may
be.
(d) The
Administrative Agent, acting for this purpose (but only for this purpose) as the
agent of the Borrower, shall maintain at its address referred to in Section 9.02 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lender Parties
and the Commitment under each Facility of, and principal amount of the Advances
owing under each Facility (and stated interest thereon) to, each Lender Party
from time to time (the “Register”). The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Agents and the Lender Parties may treat each Person whose
name is recorded in the Register as a Lender Party hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the
Borrower or any Agent or any Lender Party at any reasonable time and from time
to time upon reasonable prior notice. A Commitment or Advance (and a Note, if
any, evidencing the same) may be assigned or sold in whole or in part only by
registration of such assignment or sale on the Register (and each Note shall
expressly so provide). Any assignment or sale of all or part of such Commitment
or Advance (and the Note, if any, evidencing the same) may be effected only by
registration of such assignment or sale on the Register).
(e) Upon
its receipt of an Assignment and Acceptance executed by an assigning Lender
Party and an assignee, together with any Note or Notes subject to such
assignment, the Administrative Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit C hereto,
(i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to
the Borrower and each other Agent. In the case of any assignment by a
Lender, within five Business Days after its receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Administrative
Agent in exchange for the surrendered Note or Notes (if any) a new Note to the
order of such Eligible Assignee in an amount equal to the Commitment assumed by
it under each Facility pursuant to such Assignment and Acceptance and, if any
assigning Lender that had a Note or Notes prior to such assignment has retained
a Commitment hereunder under such Facility, a new Note payable to such assigning
Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be dated the effective date
of such Assignment and Acceptance and shall otherwise be in substantially the
form of Exhibit A-1 or A-2 hereto, as the case may be.
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(f) The
Issuing Bank may assign to one or more Eligible Assignees all or a portion of
its rights and obligations under the undrawn portion of its Letter of Credit
Commitment at any time; provided, however, that (i)
each such assignment shall be to an Eligible Assignee and (ii) the parties to
each such assignment shall execute and deliver to the Administrative Agent, for
its acceptance and recording in the Register, an Assignment and Acceptance,
together with a processing and recordation fee of $3,500.
(g) Each
Lender Party may sell participations to one or more Persons (other than any Loan
Party or any of its Affiliates) in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitments, the Advances owing to it and any Note or Notes held
by it); provided,
however, that (i) such Lender Party’s obligations under this
Agreement (including, without limitation, its Commitments) shall remain
unchanged, (ii) such Lender Party shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such
Lender Party shall remain the holder of any such Note for all purposes of this
Agreement, (iv) the Borrower, the Agents and the other Lender Parties shall
continue to deal solely and directly with such Lender Party in connection with
such Lender Party’s rights and obligations under this Agreement and (v) no
participant under any such participation shall have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to any
departure by any Loan Party therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Advances or
any fees or other amounts payable hereunder, in each case to the extent subject
to such participation, postpone any date fixed for any payment of principal of,
or interest on, the Advances or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or release all or
substantially all of the Collateral or the value of the Guaranty. A participant
shall be entitled to the benefits of Section 2.13(a) and
(c) as if it
were a Lender hereunder; provided, however, that a
participant shall not be entitled to receive any greater payment under Section 2.13(a) or
Section 2.13(c)
than the applicable Lender would have been entitled to receive with respect to
the participation sold to such participant. A participant shall not be entitled
to the benefits of Section 2.13 unless
the Loan Party is notified of the participation sold to such participant and
such participant agrees, for the benefit of the Loan Party, to comply with Section 2.13(e) as
though it were a Lender. In the event that any Lender sells participations in a
Commitment or Advance, such Lender shall maintain, on behalf and acting solely
for this purpose as a non-fiduciary agent of the Borrower, a register on which
it enters the name of all participants in the Commitment or Advance held by it
and the principal amount (and stated interest thereon) of the portion of the
Commitment or Advance which is the subject of the participation (the “Participant
Register”). A Commitment or Advance may be participated in whole or in
part only by registration of such participation on the Participant Register (and
each Note shall expressly so provide). Any participation of such Commitment or
Advance may be effected only by the registration of such participation on the
Participant Register. The Participant Register shall be available for inspection
by the Borrower at any reasonable time and from time to time upon reasonable
prior notice.
(h)
Any Lender Party may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this Section 9.07,
disclose to the assignee or participant or proposed assignee or participant any
information relating to the Borrower furnished to such Lender Party by or on
behalf of the Borrower; provided, however, that,
prior to any such disclosure, the assignee or participant or proposed assignee
or participant shall agree to preserve the confidentiality of any Confidential
Information received by it from such Lender Party pursuant to Section
9.11.
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(i)
Notwithstanding any other
provision set forth in this Agreement, any Lender Party may at any time (and
without the consent of the Administrative Agent or the Borrower) create a
security interest in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and any Note or Notes
held by it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve
System.
(j)
Notwithstanding anything to the contrary contained
herein, any Lender that is a fund that invests in bank loans may create a
security interest in all or any portion of the Advances owing to it and the Note
or Notes held by it to the trustee for holders of obligations owed, or
securities issued, by such fund as security for such obligations or securities,
provided, however, that unless and
until such trustee actually becomes a Lender in compliance with the other
provisions of this Section 9.07, (i) no
such pledge shall release the pledging Lender from any of its obligations under
the Loan Documents and (ii) such trustee shall not be entitled to exercise any
of the rights of a Lender under the Loan Documents even though such trustee may
have acquired ownership rights with respect to the pledged interest through
foreclosure or otherwise.
(k) Notwithstanding
anything to the contrary contained herein, any Lender Party (a “Granting
Lender”) may grant to a special purpose funding vehicle identified as
such in writing from time to time by the Granting Lender to the Administrative
Agent and the Borrower (an “SPC”) the
option to provide all or any part of any Advance that such Granting Lender would
otherwise be obligated to make pursuant to this Agreement; provided, however, that
(i) nothing herein shall constitute a commitment by any SPC to fund any
Advance, and (ii) if an SPC elects not to exercise such option or otherwise
fails to make all or any part of such Advance, the Granting Lender shall be
obligated to make such Advance pursuant to the terms hereof. The
making of an Advance by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Advance were made by such
Granting Lender. Each party hereto hereby agrees that (i) no SPC
shall be liable for any indemnity or similar payment obligation under this
Agreement for which a Lender Party would be liable, (ii) no SPC shall be
entitled to the benefits of Sections 2.10 and
2.13 (or any
other increased costs protection provision) and (iii) the Granting Lender shall
for all purposes, including, without limitation, the approval of any amendment
or waiver of any provision of any Loan Document, remain the Lender Party of
record hereunder. In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior Debt of any SPC, it will not
institute against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State
thereof. Notwithstanding anything to the contrary contained in this
Agreement, any SPC may (i) with notice to, but without prior consent of,
the Borrower and the Administrative Agent, assign all or any portion of its
interest in any Advance to the Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding of
Advances to any rating agency, commercial paper dealer or provider of any surety
or guarantee or credit or liquidity enhancement to such SPC. This
subsection (k) may not be amended without the prior written consent of each
Granting Lender, all or any part of whose Advances are being funded by the SPC
at the time of such amendment. Any assignment or transfer pursuant to this Section 9.07(k) shall
be recorded on a register (which is comparable to the Register described in
paragraph (d) under this Section 9.07) by such
transferor.
SECTION
9.08. Execution in
Counterparts. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement. Delivery by telecopier or other electronic
communication of an executed counterpart of a signature page to this Agreement
shall be effective as delivery of an original executed counterpart of this
Agreement.
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SECTION
9.09. No
Liability of the Issuing Bank. The
Borrower assumes all risks of the acts or omissions of any beneficiary or
transferee of any Letter of Credit with respect to its use of such Letter of
Credit. Neither any Issuing Bank nor any of its officers or directors
shall be liable or responsible for: (a) the use that may be made
of any Letter of Credit or any acts or omissions of any beneficiary or
transferee in connection therewith; (b) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent or
forged; (c) payment by such Issuing Bank against presentation of documents
that do not comply with the terms of a Letter of Credit, including failure of
any documents to bear any reference or adequate reference to the Letter of
Credit; or (d) any other circumstances whatsoever in making or failing to
make payment under any Letter of Credit, except that the Borrower shall have a
claim against such Issuing Bank, and such Issuing Bank shall be liable to the
Borrower, to the extent of any direct, but not consequential, damages suffered
by the Borrower that the Borrower proves were caused by (i) such Issuing
Bank’s willful misconduct or gross negligence as determined in a final,
non-appealable judgment by a court of competent jurisdiction in determining
whether documents presented under any Letter of Credit comply with the terms of
the Letter of Credit or (ii) such Issuing Bank’s willful failure to make
lawful payment under a Letter of Credit after the presentation to it of a draft
and certificates strictly complying with the terms and conditions of the Letter
of Credit. In furtherance and not in limitation of the foregoing,
such Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION
9.10. Non-Consenting
Lenders. If
at any time, any Lender becomes a Non-Consenting Lender, then the Borrower may,
at its sole cost and expense, on prior written notice to the Administrative
Agent and such Lender, replace such Lender by causing such Lender to (and such
Lender shall be obligated to) assign pursuant to Section 9.07 all of
its rights and obligations under this Agreement to one or more Eligible
Assignees; provided that neither the Administrative Agent nor any Lender shall
have any obligation to the Borrower to find a replacement Lender or other such
Person; provided,
further, that such Non-Consenting Lender shall be entitled to receive the
full outstanding principal amount of Advances so assigned, together with accrued
interest and fees payable in respect of such Advances as of the date of such
assignment.
SECTION
9.11. Confidentiality. Neither
any Agent nor any Lender Party shall disclose any Confidential Information to
any Person without the consent of the Borrower, other than (a) to such
Agent’s or such Lender Party’s Affiliates and their officers, directors,
employees, agents and advisors and to actual or prospective Eligible Assignees
and participants, and then only on a confidential basis, (b) as required by
any law, rule or regulation or judicial process; provided that such Agent or
Lender Party shall provide the Borrower with prompt notice of such disclosure to
the extent permitted by applicable law, (c) as requested or required by any
state, Federal or foreign authority or examiner (including the National
Association of Insurance Commissioners or any similar organization or
quasi-regulatory authority) regulating such Lender Party, (d) to any rating
agency when required by it; provided that, prior to any
such disclosure, such rating agency shall undertake to preserve the
confidentiality of any Confidential Information relating to the Loan Parties
received by it from such Lender Party, (e) in connection with any litigation or
proceeding to which such Agent or such Lender Party or any of its Affiliates may
be a party, or (f) in connection with the exercise of any right or remedy under
this Agreement or any other Loan Document.
104
SECTION
9.12. Release of
Collateral. (a)(i)
Upon the sale, lease, transfer or other disposition of any item of Collateral of
any Loan Party (including, without limitation, as a result of the sale, in
accordance with the terms of the Loan Documents, of the Loan Party that owns
such Collateral) in accordance with the terms of the Loan Documents or, subject
to Section 9.01, if
approved, authorized or ratified in writing by the Required Lenders, (ii) upon
the Termination Date (and, concurrently therewith, to release all the Loan
Parties from their obligations under the Loan Documents (other than those that
specifically survive the Termination Date)), or (iii) upon release of a
Subsidiary Guarantor from its obligations under its Guaranty pursuant to clause
(c) below, the Lenders irrevocably authorize the Agents, and the Agents agree,
at the Borrower’s expense, to execute and deliver to such Loan Party such
documents as such Loan Party may reasonably request to evidence the release of
such item of Collateral from the assignment and security interest granted under
the Collateral Documents in accordance with the terms of the Loan
Documents.
(b) The
Lenders irrevocably authorize the Agents, and the Agents agree, at the request
of the Borrower, to subordinate any Lien on any property granted to or held by
the Administrative Agent under any Loan Document to the holder of any Lien on
such property that is permitted by Sections 5.02(a)(iv)
and (v).
(c) The
Lenders irrevocably authorize the Agents, and the Agents agree, to release any
Subsidiary Guarantor from its obligations under any Loan Document to which it is
a party if such Person ceases to be a Subsidiary as a result of a transaction or
designation permitted hereunder.
SECTION
9.13. Patriot Act
Notice. Each
Lender Party and each Agent (for itself and not on behalf of any Lender Party)
hereby notifies the Loan Parties that pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that
identifies each Loan Party, which information includes the name and address of
such Loan Party and other information that will allow such Lender Party or such
Agent, as applicable, to identify such Loan Party in accordance with the Patriot
Act. The Borrower shall, and shall cause each of its Subsidiaries to,
provide to the extent commercially reasonable, such information and take such
actions as are reasonably requested by any Agents or any Lender Party in order
to assist the Agents and the Lender Parties in maintaining compliance with the
Patriot Act.
SECTION
9.14. Jurisdiction,
Etc. (a) Each
of the parties hereto hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or any of the other Loan Documents to which
it is a party, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in any
such New York State court or, to the fullest extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right
that any party may otherwise have to bring any action or proceeding relating to
this Agreement or any of the other Loan Documents in the courts of any
jurisdiction.
(b) Each
of the parties hereto irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or any of the other Loan Documents to which
it is a party in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
105
SECTION
9.15. GOVERNING
LAW. THIS
AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
SECTION
9.16. WAIVER OF JURY
TRIAL. EACH
OF THE BORROWER, THE AGENTS AND THE LENDER PARTIES IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN
DOCUMENTS, THE ADVANCES, THE LETTERS OF CREDIT OR THE ACTIONS OF ANY AGENT OR
ANY LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
THEREOF.
[REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK]
106
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first above
written.
UNITEK
ACQUISITION, INC., as
Borrower
|
||
UNITEK
MIDCO, INC., as Parent
|
||
UNITEK
USA, LLC, as Guarantor
|
||
ADVANCED
COMMUNICATIONS
USA,
LLC, as Guarantor
|
||
DIRECTSAT
USA, LLC, as Guarantor
|
||
FTS
USA, LLC, as Guarantor
|
||
WTW
USA, LLC, as Guarantor
|
||
By:
|
/s/ Xxxxxxx Xxxxxx
|
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
Title:
|
Chief
Financial Officer
|
Unitek – First
Lien Credit Agreement
ROYAL
BANK OF CANADA,
|
||
as
Administrative Agent and Collateral
Agent
|
||
By
|
|
/s/
Xxxx Xxxxxx
|
Title:
|
Xxxx
Xxxxxx
|
|
Manager,
Agency
|
Unitek – First Lien Credit Agreement
ROYAL
BANK OF CANADA, as Initial
Lender,
Initial Issuing Bank and Initial
Swing
Line Bank
|
||
By
|
|
|
Title:
|
Authorized
Signatory
|
Unitek – First
Lien Credit Agreement
SCHEDULE
I
COMMITMENTS
AND APPLICABLE LENDING OFFICES
Name of Initial Lender
|
Term B
Commitment
|
Term C
Commitment
|
Revolving
Credit
Commitment
|
Letter of
Credit
Commitment
|
Domestic
Lending
Office
|
Eurodollar
Lending
Office
|
|||||||||||||
Royal
Bank of Canada
|
$ | 65,000,000 | $ | 5,000,000 | $ | 20,000,000 | $ | 10,000,000 |
000
Xxx Xxxxxx,
00xx
Xxxxx, Xxxxx Xxxxx,
Xxxxx
Bank Plaza, Toronto, Ontario M5J 2W7
Attention: Manager,
Agency, Fax: 000.000.0000
|
000
Xxx Xxxxxx, 00xx Xxxxx, Xxxxx Xxxxx,
Xxxxx
Bank Plaza, Toronto, Ontario M5J 2W7
Attention: Manager,
Agency, Fax: 000.000.0000
|
|||||||||
Unitek –
First Lien Credit Agreement