$600,000,000
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 22, 1997
AMONG
XXXX & XXXXXX OPERATING COMPANY,
AS BORROWER,
THE LENDERS LISTED HEREIN,
AS LENDERS,
AND
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT
XXXX & XXXXXX OPERATING COMPANY
CREDIT AGREEMENT
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Certain Defined Terms. . . . . . . . . . . . . . . . . . 2
1.2 Accounting Terms; Utilization of GAAP for
Purposes of Calculations Under Agreement . . . . . . . . 29
1.3 Other Definitional Provisions. . . . . . . . . . . . . . 29
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS . . . . . . . 29
2.1 Commitments; Loans . . . . . . . . . . . . . . . . . . . 29
2.2 Interest on the Loans. . . . . . . . . . . . . . . . . . 37
2.3 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . 43
2.4 Prepayments and Reductions in Commitments;
General Provisions Regarding Payments. . . . . . . . . . 45
2.5 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . 52
2.6 Special Provisions Governing Eurodollar Rate
Loans. . . . . . . . . . . . . . . . . . . . . . . . . . 52
2.7 Increased Costs; Taxes; Capital Adequacy . . . . . . . . 55
2.8 Lenders' Obligation to Mitigate. . . . . . . . . . . . . 59
2.9 Replacement of a Lender. . . . . . . . . . . . . . . . . 60
2.10 Defaulting Lenders . . . . . . . . . . . . . . . . . . . 62
SECTION 3. LETTERS OF CREDIT. . . . . . . . . . . . . . . . . . . . 63
3.1 Issuance of Letters of Credit and Lenders'
Purchase of Participations Therein . . . . . . . . . . . 63
3.2 Letter of Credit Fees. . . . . . . . . . . . . . . . . . 66
3.3 Drawings and Reimbursement of Amounts Drawn
Under Letters of Credit. . . . . . . . . . . . . . . . . 67
3.4 Obligations Absolute . . . . . . . . . . . . . . . . . . 70
3.5 Indemnification; Nature of Issuing Lenders'
Duties . . . . . . . . . . . . . . . . . . . . . . . . . 71
3.6 Increased Costs and Taxes Relating to Letters
of Credit. . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT. . . . . . . . 74
4.1 Conditions to Initial Revolving Loans. . . . . . . . . . 74
4.2 Conditions to All Loans. . . . . . . . . . . . . . . . . 78
4.3 Conditions to Letters of Credit. . . . . . . . . . . . . 79
(i)
PAGE
SECTION 5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . 80
5.1 Organization, Powers, Qualification, Good
Standing, Business and Subsidiaries. . . . . . . . . . . 80
5.2 Authorization of Borrowing, etc. . . . . . . . . . . . . 81
5.3 Financial Condition. . . . . . . . . . . . . . . . . . . 83
5.4 No Material Adverse Change; No Restricted
Junior Payments. . . . . . . . . . . . . . . . . . . . . 83
5.5 Title to Properties; Liens . . . . . . . . . . . . . . . 83
5.6 Litigation; Adverse Facts. . . . . . . . . . . . . . . . 84
5.7 Payment of Taxes . . . . . . . . . . . . . . . . . . . . 84
5.8 Performance of Agreements; Materially Adverse
Agreements . . . . . . . . . . . . . . . . . . . . . . . 85
5.9 Governmental Regulation. . . . . . . . . . . . . . . . . 85
5.10 Securities Activities. . . . . . . . . . . . . . . . . . 85
5.11 Employee Benefit Plans . . . . . . . . . . . . . . . . . 85
5.12 Certain Fees . . . . . . . . . . . . . . . . . . . . . . 86
5.13 Environmental Protection . . . . . . . . . . . . . . . . 86
5.14 Employee Matters . . . . . . . . . . . . . . . . . . . . 88
5.15 Solvency . . . . . . . . . . . . . . . . . . . . . . . . 88
5.16 Disclosure . . . . . . . . . . . . . . . . . . . . . . . 88
5.17 Intellectual Property. . . . . . . . . . . . . . . . . . 88
SECTION 6. AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . 89
6.1 Financial Statements and Other Reports . . . . . . . . . 89
6.2 Corporate Existence, etc.. . . . . . . . . . . . . . . . 94
6.3 Payment of Taxes and Claims; Tax Consolidation . . . . . 95
6.4 Maintenance of Properties; Insurance . . . . . . . . . . 95
6.5 Inspection; Lender Meeting . . . . . . . . . . . . . . . 95
6.6 Compliance with Laws, etc. . . . . . . . . . . . . . . . 96
6.7 Environmental Disclosure and Inspection. . . . . . . . . 96
6.8 Company's Remedial Action Regarding Hazardous
Materials. . . . . . . . . . . . . . . . . . . . . . . . 98
6.9 Execution of Subsidiary Guaranty and Collateral
Documents by Future Subsidiaries; Auxiliary
Pledge Agreements; Release of Liens and
Guarantees . . . . . . . . . . . . . . . . . . . . . . . 98
6.10 Additional Mortgages . . . . . . . . . . . . . . . . . . 101
6.11 BHFS Advances to Company . . . . . . . . . . . . . . . . 102
SECTION 7. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . 102
7.1 Indebtedness . . . . . . . . . . . . . . . . . . . . . . 102
7.2 Liens and Related Matters. . . . . . . . . . . . . . . . 105
7.3 Investments; Joint Ventures. . . . . . . . . . . . . . . 107
7.4 Contingent Obligations . . . . . . . . . . . . . . . . . 108
7.5 Restricted Junior Payments; Certain Other
Payments . . . . . . . . . . . . . . . . . . . . . . . . 110
7.6 Financial Covenants. . . . . . . . . . . . . . . . . . . 112
(ii)
PAGE
7.7 Restriction on Fundamental Changes; Asset
Sales; Acquisitions. . . . . . . . . . . . . . . . . . . 114
7.8 Sales and Lease-Backs. . . . . . . . . . . . . . . . . . 116
7.9 Sale or Discount of Receivables. . . . . . . . . . . . . 116
7.10 Transactions with Shareholders and Affiliates. . . . . . 117
7.11 Disposal of Subsidiary Stock . . . . . . . . . . . . . . 117
7.12 Conduct of Business. . . . . . . . . . . . . . . . . . . 117
7.13 Amendments of Certain Documents; Other Matters
Related to Indentures. . . . . . . . . . . . . . . . . . 118
7.14 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . 119
7.15 Separate Identity of Parent and Company. . . . . . . . . 120
SECTION 8. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . 120
8.1 Failure to Make Payments When Due. . . . . . . . . . . . 120
8.2 Default in Other Agreements. . . . . . . . . . . . . . . 120
8.3 Breach of Certain Covenants. . . . . . . . . . . . . . . 121
8.4 Breach of Warranty . . . . . . . . . . . . . . . . . . . 121
8.5 Other Defaults Under Loan Documents. . . . . . . . . . . 121
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc. . 121
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc. . . 122
8.8 Judgments and Attachments. . . . . . . . . . . . . . . . 122
8.9 Dissolution. . . . . . . . . . . . . . . . . . . . . . . 122
8.10 Employee Benefit Plans . . . . . . . . . . . . . . . . . 123
8.11 Change in Control. . . . . . . . . . . . . . . . . . . . 123
8.12 Invalidity of Guaranties . . . . . . . . . . . . . . . . 123
8.13 Failure of Security. . . . . . . . . . . . . . . . . . . 123
SECTION 9. ADMINISTRATIVE AGENT . . . . . . . . . . . . . . . . . . 125
9.1 Appointment. . . . . . . . . . . . . . . . . . . . . . . 125
9.2 Powers; General Immunity . . . . . . . . . . . . . . . . 125
9.3 Representations and Warranties; No
Responsibility For Appraisal of
Creditworthiness . . . . . . . . . . . . . . . . . . . . 127
9.4 Right to Indemnity . . . . . . . . . . . . . . . . . . . 127
9.5 Successor Administrative Agent and Swing Line
Lender . . . . . . . . . . . . . . . . . . . . . . . . . 128
9.6 Collateral Documents and Guaranties. . . . . . . . . . . 128
SECTION 10. GUARANTY OF PARENT . . . . . . . . . . . . . . . . . . . 129
10.1 Guaranty by Parent . . . . . . . . . . . . . . . . . . . 129
10.2 Terms of Guaranty. . . . . . . . . . . . . . . . . . . . 129
(iii)
PAGE
SECTION 11. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . 133
11.1 Assignments and Participations in Loans and
Letters of Credit. . . . . . . . . . . . . . . . . . . . 133
11.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . 136
11.3 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . 137
11.4 Set Off; Security Interest in Deposit Accounts . . . . . 138
11.5 Ratable Sharing. . . . . . . . . . . . . . . . . . . . . 139
11.6 Amendments and Waivers . . . . . . . . . . . . . . . . . 139
11.7 Independence of Covenants. . . . . . . . . . . . . . . . 141
11.8 Notices. . . . . . . . . . . . . . . . . . . . . . . . . 141
11.9 Survival of Representations, Warranties and
Agreements . . . . . . . . . . . . . . . . . . . . . . . 142
11.10 Failure or Indulgence Not Waiver; Remedies
Cumulative . . . . . . . . . . . . . . . . . . . . . . . 142
11.11 Marshalling; Payments Set Aside. . . . . . . . . . . . . 142
11.12 Severability . . . . . . . . . . . . . . . . . . . . . . 143
11.13 Obligations Several; Independent Nature of
Lenders' Rights. . . . . . . . . . . . . . . . . . . . . 143
11.14 Headings . . . . . . . . . . . . . . . . . . . . . . . . 143
11.15 Applicable Law . . . . . . . . . . . . . . . . . . . . . 143
11.16 Successors and Assigns . . . . . . . . . . . . . . . . . 143
11.17 Consent to Jurisdiction and Service of Process . . . . . 144
11.18 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . 144
11.19 Confidentiality. . . . . . . . . . . . . . . . . . . . . 145
11.20 Counterparts; Effectiveness. . . . . . . . . . . . . . . 146
Signature pages . . . . . . . . . . . . . . . . . . . . S-1
(iv)
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT
IV FORM OF REVOLVING NOTE
V FORM OF SWINGLINE NOTE
VI FORM OF COMPLIANCE CERTIFICATE
VII FORM OF OPINIONS OF COUNSEL TO COMPANY
VIII FORM OF OPINION OF O'MELVENY & XXXXX
IX FORM OF ASSIGNMENT AGREEMENT
X FORM OF FINANCIAL CONDITION CERTIFICATE
XI FORM OF COMPANY OR PARENT PLEDGE AGREEMENT
XII FORM OF SUBSIDIARY PLEDGE AGREEMENT
XIII FORM OF SUBSIDIARY GUARANTY
XIV FORM OF MORTGAGE
XV FORM OF COLLATERAL ACCOUNT AGREEMENT
(v)
SCHEDULES
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
3.1C EXISTING LETTERS OF CREDIT
5.1 SUBSIDIARIES OF COMPANY
5.5 REAL PROPERTY ASSETS
5.13 ENVIRONMENTAL MATTERS
7.1 CERTAIN EXISTING INDEBTEDNESS
7.2 CERTAIN EXISTING LIENS
7.3 CERTAIN EXISTING INVESTMENTS
7.4 CERTAIN EXISTING CONTINGENT OBLIGATIONS
(vi)
XXXX & XXXXXX OPERATING COMPANY
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of September 22, 1997 and entered
into by and among XXXX & XXXXXX OPERATING COMPANY, a Delaware corporation
("COMPANY"), XXXX & XXXXXX COMPANY, a Delaware corporation and owner of all of
the equity securities of Company ("PARENT"), THE FINANCIAL INSTITUTIONS LISTED
ON THE SIGNATURE PAGES HEREOF, together with their successors and permitted
assigns hereunder (each individually referred to herein as a "LENDER" and
collectively as "LENDERS") and BANKERS TRUST COMPANY ("BANKERS"), as
administrative agent for Lenders (in such capacity, "ADMINISTRATIVE AGENT").
R E C I T A L S
WHEREAS, Parent and Company desire to effect a series of transactions
involving the Company (the "Transactions"), including the Common Stock Offering
(this and other capitalized terms used in these recitals without definition
being used as defined in subsection 1.1) and the refinancing of (i) that certain
Amended and Restated Credit Agreement dated as of April 22, 1996, among Parent,
Company, the Lenders, Administrative Agent and Bank of America National Trust
and Savings Association and The First National Bank of Chicago, as co-agents for
Lenders, as amended to the date hereof (the "Existing Credit Agreement"), (ii)
the Company's outstanding 10-3/4% Subordinated Notes, and (iii) the Parent's
outstanding 11-1/2% Senior Discount Debentures;
WHEREAS, Parent will receive not less than $95,000,000 in cash
proceeds from the Common Stock Offering;
WHEREAS, Lenders have agreed to extend certain credit facilities to
Company, the proceeds of which, together with the net proceeds from the Common
Stock Offering, will be used to (i) repay in full all Indebtedness outstanding
under the Existing Credit Agreement, (ii) repurchase or redeem the Company's
outstanding 10-3/4% Subordinated Notes, (iii) repurchase or redeem the
outstanding shares of the Parent Preferred Stock, and (iv) provide financing for
working capital and/or other general purposes of Company and its Subsidiaries;
WHEREAS, Parent has agreed to guarantee the Obligations hereunder and
under the Loan Documents;
1
WHEREAS, the Domestic Subsidiaries of Company (other than the BHFS
Group and the Inactive Subsidiaries) have agreed to guarantee the Obligations
hereunder and under the Loan Documents and have agreed to secure such
Obligations under the Subsidiary Guaranty with the Liens on the Collateral
granted to Administrative Agent, on behalf of Lenders under the Collateral
Documents; and
WHEREAS, Company has agreed to secure the Obligations hereunder and
under the Loan Documents with the Liens on the Collateral granted to
Administrative Agent on behalf of Lenders under the Collateral Documents.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Company, Parent, Lenders and
Administrative Agent agree as follows:
SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the
following meanings:
"10-3/4% SUBORDINATED NOTE INDENTURE" means the Indenture dated
as of October 5, 1992 between Company and State Street Bank and Trust Company,
as Trustee, pursuant to which the 10-3/4% Subordinated Notes were issued, as
such Indenture may be amended supplemented or otherwise modified from time to
time after the Closing Date to the extent permitted under subsection 7.13.
"10-3/4% SUBORDINATED NOTES" means the 10-3/4% Series B Senior
Subordinated Notes due October 1, 2002 issued in the aggregate principal amount
of $125,000,000 by Company pursuant to the 10-3/4% Subordinated Note Indenture.
"11-1/2% SENIOR DISCOUNT DEBENTURE INDENTURE" means the Indenture
dated as of February 23, 1993 between Parent and State Street Bank and Trust
Company, as Trustee, pursuant to which the 11-1/2% Senior Discount Debentures
were issued, as such Indenture may be amended, supplemented or otherwise
modified from time to time after the Closing Date to the extent permitted under
subsection 7.13.
"11-1/2% SENIOR DISCOUNT DEBENTURES" means the 11-1/2% Series B
Senior Discount Debentures of Parent issued in an aggregate principal amount of
$353,500,000 pursuant to the 11-1/2% Senior Discount Debenture Indenture.
"ACQUISITION" means any transaction, or series of related
transactions, pursuant to which Company or any of its Subsidiaries acquires all
or a substantial portion of the business, property, fixed assets, stock or other
evidence of beneficial ownership of
2
any Person or of a division or line of business of any Person and which in the
case of the acquisition of stock or other beneficial ownership interests, makes
such Person a direct or indirect Subsidiary of Company.
"ACQUISITION EXPENDITURES" means the aggregate consideration paid
by Company or any of its Subsidiaries, including without limitation the fair
market value of all Cash, property, stock or services paid or otherwise
transferred, and the amount of all assumed or incurred Indebtedness or other
incurred liabilities in connection with an Acquisition.
"ADDITIONAL MORTGAGE" and "ADDITIONAL MORTGAGES" have the
meanings assigned to those terms in subsection 6.10.
"ADJUSTED EURODOLLAR RATE" means, for any Interest Rate
Determination Date with respect to a Eurodollar Rate Loan, the rate obtained by
dividing (i) the arithmetic average (rounded upward to the nearest 1/100 of one
percent) of the offered quotation, if any, to first class banks in the interbank
Eurodollar market by each of the Reference Lenders for U.S. dollar deposits of
amounts in same day funds comparable to the principal amount of the Eurodollar
Rate Loan for which the Adjusted Eurodollar Rate is then being determined with
maturities comparable to the Interest Period for which such Adjusted Eurodollar
Rate will apply as of approximately 10:00 A.M. (New York time) on such Interest
Rate Determination Date by (ii) a percentage equal to 100% minus the stated
maximum rate of all reserve requirements (including, without limitation, any
marginal, emergency, supplemental, special or other reserves) applicable to any
member bank of the Federal Reserve System in respect of "Eurocurrency
liabilities" as defined in Regulation D (or any successor category of
liabilities under Regulation D); PROVIDED that if any Reference Lender fails to
provide Administrative Agent with its aforementioned quotation then the Adjusted
Eurodollar Rate shall be determined based on the quotation(s) provided to
Administrative Agent by the other Reference Lender(s).
"ADMINISTRATIVE AGENT" has the meaning assigned to that term in
the introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 9.5.
"AFFECTED LENDER" has the meaning assigned to that term in
subsection 2.6C.
"AFFECTED LOANS" has the meaning assigned to that term in
subsection 2.6C.
"AFFILIATE", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of
3
the management and policies of that Person, whether through the ownership of
voting securities or by contract or otherwise.
"AGREEMENT" means this Credit Agreement dated as of September 22,
1997, as it may be further amended, supplemented or otherwise modified from time
to time.
"ASSET SALE" means the sale by Company or any of its Subsidiaries
to any Person other than Company or any of its Wholly-Owned Subsidiaries of
(i) any of the stock of any of Company's Subsidiaries (other than an Inactive
Subsidiary), (ii) all or substantially all of the assets of any division or line
of business of Company or any of its Subsidiaries (other than an Inactive
Subsidiary), or (iii) any other assets (whether tangible or intangible) of
Company or any of its Subsidiaries other than (a) inventory sold in the ordinary
course of business, (b) receivables sold by BHFS Group in the ordinary course of
business so long as such sale is permitted under subsection 7.9, (c) receivables
sold by Foreign Subsidiaries in the ordinary course of business in accordance
with past practices so long as such sale is permitted under subsection 7.9, (d)
any other assets to the extent that the aggregate value of such assets sold in
any single transaction or related series of transactions is equal to $500,000 or
less or $5,000,000 or less in the aggregate for all such excluded transactions
and (e) the sale or sale and leaseback of the Real Property Asset located at
0000 XxXxxxxxx, Xxxxxxxxxxx, Xxxxxxxx.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement entered into
by a Lender and an Eligible Assignee, and accepted by Administrative Agent, in
substantially the form of EXHIBIT IX annexed hereto.
"AUXILIARY PLEDGE AGREEMENT" means each pledge agreement or
similar instrument governed by the laws of a country other than the United
States, executed from time to time in accordance with subsection 6.9 by Company
or any Domestic Subsidiary (other than BHFS Group and any Inactive Subsidiaries)
that owns capital stock of the Foreign Subsidiaries organized in such country,
in form and substance satisfactory to Administrative Agent, as such Auxiliary
Pledge Agreement may be amended, supplemented or otherwise modified from time to
time, and "AUXILIARY PLEDGE AGREEMENTS" means all such pledge agreements,
collectively.
"BANKERS" has the meaning assigned to that term in the
introduction to this Agreement.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any successor statute.
"BASE RATE" means, at any time, the higher of (x) the Prime Rate
or (y) the rate which is 1/2 of 1% in excess of the Federal Funds Effective
Rate.
"BASE RATE LOANS" means Loans bearing interest at rates
determined by reference to the Base Rate as provided in subsection 2.2A.
4
"BHFS" means Xxxx & Xxxxxx Financial Services Company, a Delaware
corporation and a Subsidiary of Company.
"BHFS GROUP" means BHFS and its Subsidiaries.
"BUSINESS DAY" means (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the State of New York or is a day on which
banking institutions located in such state are authorized or required by law or
other governmental action to close, and (ii) with respect to all notices,
determinations, fundings and payments in connection with the Adjusted Eurodollar
Rate or any Eurodollar Rate Loans, any day that is a Business Day described in
clause (i) above and that is also a day during which trading is conducted by and
between banks in Dollar deposits in the applicable interbank Eurodollar market.
"CANADIAN RECEIVABLES DIVISION" means the division of Xxxx &
Xxxxxx Ltd., a Canadian corporation and a Wholly-Owned Subsidiary of Company,
engaged in receivables financing for Company's Canadian operations.
"CAPITAL LEASE", as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"CASH" means money, currency or a credit balance in a Deposit
Account.
"CASH EQUIVALENTS" means (i) marketable securities issued or
directly and unconditionally guaranteed by the United States Government or
issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof; (ii) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such state or
any public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having a rating of AA or
better from Xxxxx'x Investors Service, Inc. ("Moody's") or an equivalent rating
from Standard & Poor's Corporation ("S&P"); (iii) commercial paper maturing no
more than one year from the date of creation thereof and, at the time of
acquisition, having a rating of at least A-1 from S&P or at least P-1 from
Moody's; (iv) certificates of deposit or bankers' acceptances maturing within
one year from the date of acquisition thereof issued by any Lender or any
commercial bank chartered in the United States of America or any state thereof
or the District of Columbia having unimpaired capital and surplus of not less
than $250,000,000 (each Lender and each such commercial bank herein called a
"CASH EQUIVALENT BANK"); (v) Eurodollar time deposits having a maturity of less
than one year purchased directly from any Cash Equivalent Bank (whether such
deposit is with such Cash Equivalent Bank or any other Cash Equivalent Bank);
(vi) shares of any money market mutual fund that (a) has at least 95% of its
assets continuously invested in the types of investments referred to in clauses
(i) - (iv) above, (b) has net assets of not less
5
than $500,000,000, and (c) has a rating of AA or better from Moody's or
equivalent rating from S&P and (vii) with respect to Foreign Subsidiaries,
investments of the types described in clauses (iv) and (v) above issued by or
purchased from a Cash Equivalent Bank or any commercial bank of recognized
standing chartered in the country where such Foreign Subsidiary is domiciled
having unimpaired capital and surplus of at least $100,000,000.
"CASH PROCEEDS" means, with respect to any Asset Sale, Cash
payments (including any Cash received by way of deferred payment pursuant to, or
monetization of, a note receivable or otherwise, but only as and when so
received) received from such Asset Sale.
"CERTIFICATE RE NON-BANK STATUS" means a certificate in form and
substance satisfactory to Administrative Agent delivered by a Lender to
Administrative Agent pursuant to subsection 2.7B(iii) pursuant to which such
Lender certifies that it is not (i) a "bank" as such term is defined in
subsection 881(c)(3) of the Internal Revenue Code; (ii) a 10 percent shareholder
of Company within the meaning of Section 871(h)(3)(B) or Section 881(c)(3)(B) of
the Internal Revenue Code; or (iii) a "controlled" foreign corporation related
to Company within the meaning of Section 864(d)(4) of the Internal Revenue Code.
"CLOSING DATE" means September 22, 1997.
"COLLATERAL" means, collectively, all real, personal and mixed
property collateral securing the Obligations pursuant to the Collateral
Documents.
"COLLATERAL ACCOUNT" has the meaning assigned to that term in the
Collateral Account Agreement.
"COLLATERAL ACCOUNT AGREEMENT" means the Collateral Account
Agreement executed and delivered by Company and Administrative Agent on the
Closing Date, as such Collateral Account Agreement may hereafter be amended,
supplemented or otherwise modified from time to time.
"COLLATERAL DOCUMENTS" means the Company Pledge Agreement, the
Parent Pledge Agreement, the Collateral Account Agreement, the Subsidiary Pledge
Agreements, the Mortgages, the Auxiliary Pledge Agreements and all other
instruments or documents delivered by any Loan Party pursuant to this Agreement
or any of the other Loan Documents in order to grant to Administrative Agent, on
behalf of Lenders, Liens in real, personal or mixed property of that Loan Party
as security for the Obligations.
"COLLATERAL RELEASE DATE" has the meaning assigned to that term
in subsection 6.9D.
6
"COMMERCIAL LETTER OF CREDIT" means any letter of credit or
similar instrument issued for the purpose of providing the primary payment
mechanism in connection with the purchase of any materials, goods or services by
Company or any of its Subsidiaries in the ordinary course of business of Company
or its Subsidiaries.
"COMMITMENT TERMINATION DATE" means December 31, 2003.
"COMMITMENTS" means the commitments of Lenders to make Loans as
set forth in subsection 2.1A.
"COMMON STOCK OFFERING" means the public offering of Parent's
common stock to be made on or before the Closing Date.
"COMPANY" has the meaning assigned to that term in the
introduction to this Agreement, and upon consummation of any combination of
Parent and Company permitted by subsection 7.7(vii) in which Parent is the
surviving corporation, shall mean and include Parent.
"COMPANY COMMON STOCK" means the common stock of Company, par
value $.01 per share, as such par value may be changed from time to time.
"COMPANY PLEDGE AGREEMENT" means the Pledge Agreement executed
and delivered by Company on the Closing Date, substantially in the form of
Exhibit XI annexed hereto, as such Pledge Agreement may hereafter be amended,
supplemented or otherwise modified from time to time.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the
form annexed hereto as EXHIBIT VI delivered to Administrative Agent and Lenders
by Company pursuant to subsection 6.1(iv).
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
sum of (i) the aggregate of all expenditures (whether paid in cash or other
consideration or accrued as a liability and including that portion of Capital
Leases which is capitalized on the consolidated balance sheet of Company and its
Subsidiaries) by Company and its Subsidiaries during that period that, in
conformity with GAAP, are included in "additions to property, plant or
equipment" or comparable items reflected in the consolidated statement of cash
flows of Company and its Subsidiaries plus (ii) to the extent not covered by
clause (i) of this definition, the aggregate of all expenditures by Company and
its Subsidiaries during that period to acquire (by purchase or otherwise) the
business, property or fixed assets of, or stock or other beneficial ownership
of, any Person.
"CONSOLIDATED EBITDA" means, for any period, the sum (without
duplication) of the amounts for such period of (i) Consolidated Net Income,
(ii) Consolidated Net Interest Expense, (iii) provisions for taxes based on
income, (iv) total depreciation expense, (v) total amortization expense and
(vi) other non-cash items reducing
7
Consolidated Net Income LESS other non-cash items increasing Consolidated Net
Income, all of the foregoing as determined on a consolidated basis for Company
and its Subsidiaries in conformity with GAAP.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, for any period,
the ratio of (i) Consolidated EBITDA to (ii) Consolidated Fixed Charges for any
four consecutive fiscal quarters.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum of
the amounts for such period of (i) Consolidated Net Cash Interest Expense,
(ii) all dividends on Preferred Stock paid or payable in Cash to the extent
required to permit Parent to pay Cash interest on the 11-1/2% Senior Discount
Debentures, (iii) all dividends on Company Common Stock paid or payable in Cash
to the extent permitted to be so paid pursuant to subsection 7.5, (iv) scheduled
amortization payments made on all Indebtedness of Company and its Subsidiaries
(other than BHFS Group and the Canadian Receivables Division) other than payment
of the Senior Notes upon the final scheduled maturity thereof or the repurchase
or redemption thereof, and (v) Consolidated Capital Expenditures MINUS
Acquisition Expenditures for such period, all of the foregoing as determined on
a consolidated basis for Company and its Subsidiaries in conformity with GAAP.
"CONSOLIDATED NET INTEREST EXPENSE" means, for any period, total
interest expense (including that portion attributable to Capital Leases in
accordance with GAAP and capitalized interest), net of cash interest income, of
Company and its Subsidiaries on a consolidated basis with respect to all
outstanding Indebtedness of Company and its Subsidiaries, including, without
limitation, all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing and net costs
under Interest Rate Agreements, but excluding, however, any amounts referred to
in subsection 2.3 payable to the Administrative Agent and Lenders on or before
the Closing Date.
"CONSOLIDATED NET CASH INTEREST EXPENSE" means, for any period,
Consolidated Net Interest Expense less the sum of any amounts not payable in
cash (including amortization of deferred financing fees).
"CONSOLIDATED NET INCOME" means, for any period, the net income
(or loss) of Company and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with GAAP;
PROVIDED that there shall be excluded (i) the income (or loss) of any Person
(other than a Subsidiary of Company) in which any other Person (other than
Company or any of its Subsidiaries) has a joint interest, except to the extent
of the amount of dividends or other distributions actually paid to Company or
any of its Subsidiaries by such Person during such period, (ii) the income (or
loss) of any Person accrued prior to the date it becomes a Subsidiary of Company
or is merged into or consolidated with Company or any of its Subsidiaries or
that Person's assets are acquired by Company or any of its Subsidiaries,
(iii) the income of any Subsidiary of Company to the extent that the declaration
or payment of dividends or
8
similar distributions by that Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
that Subsidiary, (iv) any after-tax gains or losses attributable to Asset Sales
or returned surplus assets of any Pension Plan, and (v) (to the extent not
included in clauses (i) through (iv) above) any net extraordinary gains or net
extraordinary losses, and increases or decreases resulting from cumulative
accounting changes.
"CONSOLIDATED NET WORTH" means, as at any date of determination,
the sum of the capital stock and additional paid-in capital plus retained
earnings (or minus accumulated deficits) of Company and its Subsidiaries on a
consolidated basis determined in conformity with GAAP; PROVIDED that increases
or decreases resulting from (i) cumulative currency translation adjustments,
(ii) extraordinary gains or losses incurred subsequent to December 28, 1996
(determined in accordance with GAAP), (iii) cumulative accounting changes, (iv)
one-time write-offs or write-downs of goodwill but not including any
amortization of goodwill in the ordinary course) and (v) redemptions of
Preferred Stock to the extent required to permit Parent to make Debt Repurchases
permitted in accordance with subsection 7.5, shall be excluded.
"CONSOLIDATED TOTAL DEBT" means, as at any date of determination,
the aggregate stated balance sheet amount of all Indebtedness of Company and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATING" means for the purposes of subsections 5.3 and
6.1, with respect to quarterly financial statements, consolidating by major
business line of Company as prepared by Company on June 28, 1997 for internal
use, and with respect to annual financial statements, consolidating by
Subsidiary of Company.
"CONTINGENT OBLIGATION", as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person, other
than Contractual Obligations or liabilities that constitute Indebtedness,
(i) with respect to any Indebtedness, lease, dividend or other obligation of
another if the primary purpose or intent thereof by the Person incurring the
Contingent Obligation is to provide assurance to the obligee of such obligation
of another that such obligation of another will be paid or discharged, or that
any agreements relating thereto will be complied with, or that the holders of
such obligation will be protected (in whole or in part) against loss in respect
thereof, (ii) with respect to any letter of credit issued for the account of
that Person or as to which that Person is otherwise liable for reimbursement of
drawings, or (iii) under Interest Rate Agreements and Currency Agreements.
Contingent Obligations shall include, without limitation, (a) the direct or
indirect guaranty, endorsement (otherwise than for collection or deposit in the
ordinary course of business), co-making, discounting with recourse or sale with
recourse by such Person of the obligation of another Person, (b) the obligation
to make take-or-pay or similar payments if required regardless of non-
performance by any other party or parties to an agreement, PROVIDED that nothing
in this clause (b) shall be deemed to include payments in the nature of damages
which arise solely as a result of a
9
breach of or default in a contractual obligation and which are payable by such
breaching or defaulting party, and (c) any liability of such Person for the
obligation of another through any agreement (contingent or otherwise) (x) to
purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise) or (y) to maintain the solvency or any balance sheet item, level
of income or financial condition of another if, in the case of any agreement
described under subclauses (x) or (y) of this sentence, the primary purpose or
intent thereof is as described in the preceding sentence. The amount of any
Contingent Obligation shall be equal to the amount of the obligation so
guaranteed or otherwise supported or, if less, the amount to which such
Contingent Obligation is specifically limited. In the event any such amount is
not readily determinable, the Company may make a good faith estimate of such
amount.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement, futures contract, forward or futures contracts for the
purchase of bullion or foreign currencies and other similar arrangements, option
contract, synthetic cap or other similar agreement or arrangement (but excluding
any option contract or other similar agreement or arrangement under which
Company and its Subsidiaries have no liability for the payment of any amounts
other than the payment of a usual and customary purchase price), in each case
with a term of 60 months or less, designed to protect Company or any of its
Subsidiaries against fluctuations in currency values with respect to (i) known
or reasonably anticipated receipts or disbursements of funds or (ii) currency
translations of earnings of the Company's Foreign Subsidiaries.
"DEBT REPURCHASES" means the aggregate principal amount or
accreted value, as the case may be, of all Senior Notes, 10-3/4% Subordinated
Notes and 11-1/2% Senior Discount Debentures redeemed or otherwise repurchased
by Company or Parent after the Closing Date as permitted by subsection 7.5.
"DEFAULT EXCESS" has the meaning assigned to such term in
subsection 2.10.
"DEFAULT PERIOD" has the meaning assigned to such term in
subsection 2.10.
"DEFAULTED REVOLVING LOAN" has the meaning assigned to such term
in subsection 2.10.
"DEFAULTING LENDER" has the meaning assigned to such term in
subsection 2.10.
10
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"DOLLARS" and the sign "$" mean the lawful money of the United
States of America.
"DOMESTIC SUBSIDIARY" means a Subsidiary of Company which is
incorporated in a state of the United States or in the District of Columbia.
"DM" means Deutschemarks, the lawful money of the Federal
Republic of Germany.
"ELIGIBLE ASSIGNEE" means (i) (a) a commercial bank organized
under the laws of the United States or any state thereof having unimpaired
capital and surplus of not less than $250,000,000; (b) a commercial bank
organized under the laws of any other country or a political subdivision thereof
having unimpaired capital and surplus of not less than $250,000,000; provided
that (x) such bank is acting through a branch or agency located in the United
States or (y) such bank is organized under the laws of a country that is a
member of the Organization for Economic Cooperation and Development or a
political subdivision of such country; and (c) any other entity which is an
"accredited investor" (as defined in Regulation D under the Securities Act)
which extends credit or buys loans as one of its businesses having unimpaired
capital and surplus of not less than $250,000,000, including, but not limited
to, insurance companies, mutual funds and lease financing companies, and
(ii) any Lender and any Affiliate of any Lender and, with respect to any Lender
that is a fund that invests in loans, any other fund that invests in loans and
is managed by the same investment advisor of such Lender or by an Affiliate of
such investment advisor; PROVIDED that no Affiliate of Company shall be an
Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as
defined in Section 3(3) of ERISA which is, or was at any time during the three
years preceding the Closing Date, maintained or contributed to by Company or any
of its ERISA Affiliates, or as to which Company or any of its ERISA Affiliates
has any liability or obligation as a current or former employer or sponsor.
"ENVIRONMENTAL CLAIM" means any notice of violation, claim,
demand, abatement order or other order or direction by any governmental
authority or any Person for any damage, including, without limitation, personal
injury (including sickness, disease or death), property damage, contribution,
indemnity, indirect or consequential damages, damage to the environment,
nuisance, pollution, contamination or other adverse effects on the environment,
or for fines, penalties or restrictions, in each case relating to, resulting
from or in connection with Hazardous Materials and relating to Company, any of
its Subsidiaries, any of their respective Affiliates or any Facility.
11
"ENVIRONMENTAL LAWS" means all applicable statutes, ordinances,
orders, rules, regulations or decrees relating to (i) environmental matters,
including, without limitation, those relating to fines, injunctions, penalties,
damages, contribution, cost recovery compensation, losses or injuries resulting
from the Release or threatened Release of Hazardous Materials, (ii) the
generation, use, storage, transportation or disposal of Hazardous Materials, or
(iii) occupational safety and health, industrial hygiene, land use or the
protection of human, plant or animal health or welfare, applicable to Company or
any of its Subsidiaries or any or their respective properties, including,
without limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9601 ET SEQ.), the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801 ET SEQ.), the Resource Conservation
and Recovery Act (42 U.S.C. Section 6901 ET SEQ.), the Federal Water Pollution
Control Act ( 33 U.S.C. Section 1251 ET SEQ.), the Clean Air Act (42 U.S.C.
Section 7401 ET SEQ.), the Toxic Substances Control Act (15 U.S.C. Section 2601
ET SEQ.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C.
Section 136 ET SEQ.), the Occupational Safety and Health Act (29 U.S.C. Section
651 ET SEQ.) and the Emergency Planning and Community Right-to-Know Act (42
U.S.C. Section 11001 ET SEQ.), each as amended or supplemented, and any
analogous future or present local, state and federal statutes and regulations
promulgated pursuant thereto, each as in effect as of the date of determination.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA AFFILIATE", as applied to any Person, means (i) any
corporation which is, or was at any time, a member of a controlled group of
corporations within the meaning of Section 414(b) of the Internal Revenue Code
of which that Person is, or was at any time, a member; (ii) any trade or
business (whether or not incorporated) which is, or was at any time, a member of
a group of trades or businesses under common control within the meaning of
Section 414(c) of the Internal Revenue Code of which that Person is, or was at
any time, a member; and (iii) any member of an affiliated service group within
the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that
Person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is, or was at any time, a member.
"ERISA EVENT" means (i) a "reportable event" within the meaning
of Section 4043 of ERISA and the regulations issued thereunder with respect to
any Pension Plan (excluding those for which the provision for 30-day notice to
the PBGC has been waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure (excluding an inadvertent immaterial
failure) to make by its due date a required installment under Section 412(m) of
the Internal Revenue Code with respect to any Pension Plan or the failure to
make any required contribution to a Multiemployer Plan; (iii) the provision by
the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of
a notice of intent to terminate such plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the withdrawal by Company or any of its ERISA
Affiliates from any Pension
12
Plan with two or more contributing sponsors or the termination of any such
Pension Plan resulting in liability pursuant to Sections 4063 or 4064 of ERISA;
(v) the institution by the PBGC of proceedings to terminate any Pension Plan, or
the occurrence of any event or condition which might reasonably be expected to
constitute grounds under ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan; (vi) the imposition of liability on
Company or any of its ERISA Affiliates pursuant to Section 4062(e) or 4069 of
ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the
withdrawal by Company or any of its ERISA Affiliates in a complete or partial
withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any
Multiemployer Plan if there is any potential liability therefor, or the receipt
by Company or any of its ERISA Affiliates of notice from any Multiemployer Plan
that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of
ERISA, or that it intends to terminate or has terminated under Section 4041A or
4042 of ERISA; (viii) the occurrence of an act or omission which could
reasonably be expected to give rise to the imposition on Company or any of its
ERISA Affiliates of material fines, penalties, taxes or related charges under
Chapter 43 of the Internal Revenue Code or under Section 409 or 502(c), (i) or
(l) or 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the assertion
of a material claim (other than routine claims for benefits) against any
Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or
against Company or any of its ERISA Affiliates in connection with any such
Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice
of the failure of any Pension Plan (or any other Employee Benefit Plan intended
to be qualified under Section 401(a) of the Internal Revenue Code) to qualify
under Section 401(a) of the Internal Revenue Code, or the failure of any trust
forming part of any Pension Plan to qualify for exemption from taxation under
Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien
pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan.
"EURODOLLAR RATE LOANS" means Loans bearing interest at rates
determined by reference to the Adjusted Eurodollar Rate as provided in
subsection 2.2A.
"EVENT OF DEFAULT" means each or any one of the events set forth
in Section 8.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"EXCHANGE RATE" means, on any date when an amount expressed in a
currency other than Dollars is to be determined with respect to any Letter of
Credit, the rate of exchange of the applicable Issuing Lender in the New York
foreign exchange market for the purchase by such Issuing Lender (by cable
transfer) of such currency in exchange for Dollars at 12:00 noon (New York time)
one Business Day prior to such date, expressed as a number of units of such
currency per one Dollar.
13
"EXISTING CREDIT AGREEMENT" has the meaning assigned to that term
in the recitals to this Agreement.
"EXISTING LETTER OF CREDIT" shall have the meaning provided in
subsection 3.1C.
"FACILITIES" means any and all real property (including, without
limitation, all buildings, fixtures or other improvements located thereon) now,
hereafter or heretofore owned, leased, operated or used by Company or any of its
Subsidiaries or any of their respective Affiliates.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a
fluctuating interest rate 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 which is a Business Day, the average of the quotations for such day
on such transactions received by Administrative Agent from three Federal funds
brokers of recognized standing selected by Administrative Agent.
"FISCAL YEAR" means the fiscal year of Company and its
Subsidiaries ending on the Saturday nearest to December 31 of each calendar
year. For purposes of this Agreement, any particular Fiscal Year shall be
designated by reference to the calendar year in which the majority of such
Fiscal Year occurs.
"FOREIGN FINANCIAL ACCOMMODATIONS" means, with respect to any
Foreign Subsidiary (excluding the Canadian Receivables Division), arrangements
for the extension of credit to such Foreign Subsidiary or other financial
accommodation for the benefit of such Foreign Subsidiary, in each case from a
Person other than the Company or any Subsidiary, including committed or
uncommitted lines of credit for advances or other financial accommodation,
letters of credit, performance or surety bonds and the like, committed or
uncommitted agreements for the purchase of accounts receivable or other
financial assets, with or without recourse or repurchase obligation, but
excluding trade accounts payable arising in the ordinary course of business of
such Foreign Subsidiary. For the purposes of this Agreement, the amount of any
Foreign Financial Accommodation shall be equal to the maximum liability which
may be asserted against the relevant Foreign Subsidiary with respect thereto.
"FOREIGN SUBSIDIARY" means a direct or indirect Subsidiary of
Company which is incorporated in a jurisdiction other than the states of the
United States and the District of Columbia.
"FUNDING DATE" means the date of the funding of a Loan.
14
"FUNDING DEFAULT" has the meaning assigned to such term in
subsection 2.10.
"GAAP" means, subject to the limitations on the application
thereof set forth in subsection 1.2, generally accepted accounting principles
set forth in opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, in each case as the same are applicable to the
circumstances as of the date of determination.
"GOVERNMENTAL AUTHORIZATION" means any applicable permit,
license, authorization, plan, directive, consent order or consent decree of or
from any federal, state or local governmental authority, agency or court.
"GUARANTIES" means collectively the Subsidiary Guaranty and the
guaranty made by Parent pursuant to Section 10 hereof, and "GUARANTY" means any
one of such Guaranties.
"HAZARDOUS MATERIALS" means (i) any chemical, material or
substance at any time defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials", "extremely hazardous
waste", "restricted hazardous waste", "infectious waste", "toxic substances" or
any other formulations intended to define, list or classify substances by reason
of deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, "TCLP toxicity" or "EP
toxicity" or words of similar import under any applicable Environmental Laws;
(ii) any oil, petroleum, petroleum fraction or petroleum derived substance;
(iii) any drilling fluids, produced waters and other wastes associated with the
exploration, development or production of crude oil, natural gas or geothermal
resources; (iv) any explosives; (v) any radioactive materials; (vi) asbestos in
any form; (vii) urea formaldehyde foam insulation; (viii) electrical equipment
which contains any oil or dielectric fluid containing levels of polychlorinated
biphenyls in excess of fifty parts per million; and (ix) pesticides (other than
those used in routine maintenance).
"INACTIVE SUBSIDIARY" means any Subsidiary of Company that does
not engage in any significant business activity or own any asset or assets
(including capital stock of another Person) with an aggregate fair market value
in excess of $100,000 or generate revenues in excess of $50,000 annually and
does not have any Subsidiary other than an Inactive Subsidiary; PROVIDED that
neither the aggregate assets owned nor the aggregate revenues generated by all
Inactive Subsidiaries shall exceed $250,000.
"INDEBTEDNESS", as applied to any Person, means (i) all
indebtedness for borrowed money, (ii) that portion of obligations with respect
to Capital Leases that is properly classified as a liability on a balance sheet
in conformity with GAAP, (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing
15
obligations for borrowed money, (iv) any obligation owed for all or any part of
the deferred purchase price of property or services (excluding any such
obligations incurred under ERISA and royalty payments and similar liabilities
accrued in the ordinary course of business in accordance with past practices
that are not overdue by more than 90 days), which purchase price is (a) due more
than six months from the date of incurrence of the obligation in respect thereof
or (b) evidenced by a note or similar written instrument, and (v) all
indebtedness secured by any Lien on any property or asset owned or held by that
Person regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is nonrecourse to the credit of that Person.
Obligations which constitute Contingent Obligations are not Indebtedness.
"INDEMNITEE" has the meaning assigned to that term in subsection
11.3.
"INDENTURES" means the Senior Note Indenture, the 11-1/2% Senior
Discount Debenture Indenture, and the 10-3/4% Subordinated Note Indenture.
"INTELLECTUAL PROPERTY" means all patents, trademarks,
tradenames, republishing rights, copyrights, technology, know-how and processes
used in or necessary for the conduct of the business of Company and its
Subsidiaries as currently conducted that are material to the condition
(financial or otherwise), business or operations of Company and its
Subsidiaries, taken as a whole.
"INTEREST PAYMENT DATE" means (i) with respect to any Base Rate
Loan, each February 28 (or 29, as the case may be), May 31, August 31 and
November 30 of each year, commencing on the first such date to occur after the
Closing Date, and (ii) with respect to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan; PROVIDED that in the case of each
Interest Period of six months, "Interest Payment Date" shall also include the
date that is three months after the commencement of such Interest Period.
"INTEREST PERIOD" has the meaning assigned to that term in
subsection 2.2B.
"INTEREST RATE AGREEMENT" means any interest rate agreement,
including swaps, collars or other similar agreement or arrangement (but
excluding any interest rate cap agreement) designed to protect Company or any of
its Subsidiaries against fluctuations in interest rates.
"INTEREST RATE DETERMINATION DATE" means the second Business Day
prior to the first day of the related Interest Period for a Eurodollar Rate
Loan.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986,
as amended to the date hereof and from time to time hereafter.
"INVESTMENT" means (i) any direct or indirect purchase or other
acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, stock or other
16
Securities of any other Person (other than a direct or indirect Wholly-Owned
Domestic Subsidiary of Company), or (ii) any direct or indirect loan, advance
(other than advances to employees for moving, entertainment and travel expenses,
drawing accounts and similar expenditures in the ordinary course of business) or
capital contribution by Company or any of its Subsidiaries to any other Person
(other than a direct or indirect Domestic Subsidiary of Company), including all
indebtedness and accounts receivable from that other Person that are not current
assets or did not arise from sales to that other Person in the ordinary course
of business. The amount of any Investment shall be the original cost of such
Investment plus the cost of all additions thereto, without any adjustments for
increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment.
"ISSUING LENDER" means, with respect to any Letter of Credit, the
Lender which agrees or is otherwise obligated to issue such Letter of Credit,
determined as provided in subsection 3.1B(ii).
"JOINT VENTURE" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form;
PROVIDED that in no event shall any corporate Subsidiary of any Person be
considered to be a Joint Venture to which such Person is a party.
"KEYSTONE" means Keystone, Inc. or its successors.
"LENDER" and "LENDERS" means the persons identified as "Lenders"
and listed on the signature pages of this Agreement, together with their
successors and permitted assigns pursuant to subsection 11.1.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means the Standby
Letters of Credit and Commercial Letters of Credit issued or to be issued by
Issuing Lenders for the account of Company pursuant to subsection 3.1.
"LETTER OF CREDIT USAGE" means, as at any date of determination,
the sum of (i) the maximum aggregate amount which is or at any time thereafter
may become available for drawing under all Letters of Credit then outstanding
PLUS (ii) the aggregate amount of all drawings under Letters of Credit honored
by Issuing Lenders and not theretofore reimbursed by Company.
"LEVERAGE RATIO" means the ratio of (i) Consolidated Total Debt
LESS the amount of Non-Recourse Debt of the BHFS Group to the extent included in
Consolidated Total Debt as of the last day of any fiscal quarter to
(ii) Consolidated EBITDA for the four consecutive fiscal quarters ended as of
the last day of such fiscal quarter.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest)
17
and any trust or other preferential arrangement having the practical effect of
any of the foregoing.
"LOAN" or "LOANS" means one or more of the Revolving Loans or
Swingline Loans or any combination thereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Letters of
Credit (and any applications for, or reimbursement agreements or other documents
or certificates executed by Company in favor of an Issuing Lender relating to,
the Letters of Credit), the Guaranties and the Collateral Documents.
"LOAN PARTY" means each of Company, Parent and any of Company's
Subsidiaries from time to time executing a Loan Document, and "LOAN PARTIES"
means all such Persons, collectively.
"LOCAL FOREIGN DEBT" means with respect to any Foreign
Subsidiary, Foreign Financial Accommodations incurred by such Foreign Subsidiary
in any country where such Foreign Subsidiary conducts its business.
"MARGIN DETERMINATION CERTIFICATE" means an Officer's Certificate
of Company delivered pursuant to subsection 6.1(iv) setting forth in reasonable
detail the Leverage Ratio for the four-fiscal quarter period ending as of the
last day of the fiscal quarter immediately preceding the fiscal quarter during
which such Officer's Certificate is delivered.
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System as in
effect from time to time.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect
upon the business, operations, properties, assets, condition (financial or
otherwise) or prospects of Company and its Subsidiaries, taken as a whole, or
(ii) the impairment in any material respect of the ability of the Loan Parties,
taken as a whole, to perform, or of Administrative Agent or Lenders to enforce,
the Obligations; PROVIDED THAT, failure to perform as projected in the reports
provided pursuant to subsection 6.1(xii) shall not be the sole basis for a
Material Adverse Effect and a decline in the price of Parent or Company's stock
shall not be the basis for a Material Adverse Effect.
"MORTGAGE" means an instrument (whether designated as a deed of
trust, a trust deed or a mortgage or by any similar title) executed and
delivered by Company or any of its Subsidiaries on the Closing Date,
substantially in the form of Exhibit XIV annexed hereto, encumbering a fee
interest in Real Property Assets as such instrument may be further amended,
supplemented or otherwise modified from time to time, and "MORTGAGES" means all
such instruments, including any Additional Mortgages, collectively.
18
"MORTGAGE POLICIES" means ALTA mortgagee title insurance policies
issued by a title insurance company satisfactory to Administrative Agent, in the
amounts satisfactory to Administrative Agent with respect to any particular Real
Property Assets subject to Mortgages, assuring Administrative Agent that the
applicable Mortgages create valid and enforceable first priority mortgage liens
on the respective Real Property Assets subject to Mortgages, free and clear of
all defects and encumbrances except Permitted Encumbrances and subject to a
standard survey exception, which Mortgage Policies shall be in form and
substance reasonably satisfactory to Administrative Agent and shall include an
endorsement for mechanics' liens, for any other matters that Administrative
Agent may reasonably request and for future advances under this Agreement, the
Notes and the other Loan Documents, and shall provide for affirmative insurance
and such reinsurance as Administrative Agent may request, all of the foregoing
in form and substance reasonably satisfactory to Administrative Agent.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", as defined in
Section 3(37) of ERISA, to which Company or any of its ERISA Affiliates is
contributing, or within the three years preceding the Closing Date has
contributed to, or to which Company or any of its ERISA Affiliates has, or has
had within the three years preceding the Closing Date, an obligation to
contribute, or has any liability or obligation as a current or former employer
or sponsor.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, Cash
Proceeds of such Asset Sale net of bona fide cash costs and expenses directly
related to such sale including (i) income taxes reasonably estimated to be
payable within two years of the date of such Asset Sale or that would be payable
in the absence of net operating or capital loss carryforwards or tax credits, in
each case as a result of such Asset Sale, (ii) severance payments made or to be
made as a result of such Asset Sale, (iii) moving expenses directly related to
such Asset Sale and (iv) payment of the outstanding principal amount of, premium
or penalty, if any, and interest on any Indebtedness (other than the Loans)
required to be repaid under the terms thereof as a result of such Asset Sale,
PROVIDED, that Net Cash Proceeds shall include the amount of all income taxes
estimated to be payable as a result of such Asset Sale that are not actually
paid within two years from the consummation of such Asset Sale or for which net
operating loss carryforwards and tax credits are not reduced.
"NON-RECOURSE DEBT" means Indebtedness which (i) is not secured
by any asset of Company or any of its Subsidiaries (other than BHFS Group);
(ii) by its terms does not restrict the operations and activities of Company and
its Subsidiaries (other than BHFS Group); (iii) by its terms contains no
financial covenants applicable to Company and its Subsidiaries (other than BHFS
Group); (iv) is not guarantied by Company or any of its Subsidiaries (other than
BHFS Group); and (v) is non-recourse in every way to Company and its
Subsidiaries (other than BHFS Group).
"NOTES" means one or more of the Revolving Notes or Swingline
Note or any combination thereof (as such promissory notes may be amended,
endorsed or
19
otherwise modified from time to time, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal thereof).
"NOTICE OF BORROWING" means a notice substantially in the form of
EXHIBIT I annexed hereto delivered by Company to Administrative Agent pursuant
to subsection 2.1B with respect to a proposed borrowing.
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially
in the form of EXHIBIT II annexed hereto delivered by Company to Administrative
Agent pursuant to subsection 2.2D with respect to a proposed conversion or
continuation of the applicable basis for determining the interest rate with
respect to the Loans specified therein.
"NOTIFICATION DATE" has the meaning assigned to that term in
subsection 3.1A.
"OBLIGATIONS" means all obligations of every nature of each Loan
Party from time to time owed to Administrative Agent, Lenders or any of them
under the Loan Documents, whether for principal, interest, reimbursement of
amounts drawn under Letters of Credit, fees, expenses, indemnification or
otherwise.
"OFFICER'S CERTIFICATE" means, as applied to any corporation, a
certificate executed on behalf of such corporation by its chairman of the board
(if an officer), its president, one of its vice presidents, its chief financial
officer, its chief accounting officer or its treasurer; PROVIDED that every
Officer's Certificate with respect to the compliance with a condition precedent
to the making of any Loans hereunder shall include (i) a statement that the
officer or officers making or giving such Officer's Certificate have read such
condition and any definitions or other provisions contained in this Agreement
relating thereto, (ii) a statement that, in the opinion of the signer, he has
made or has caused to be made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or not such condition
has been complied with, and (iii) a statement as to whether, in the opinion of
the signer, such condition has been complied with.
"OPERATING LEASE" means, as applied to any Person, any lease
(including, without limitation, leases that may be terminated by the lessee at
any time) of any property (whether real, personal or mixed) that is not a
Capital Lease other than any such lease under which that Person is the lessor.
"OWNED REAL PROPERTY ASSETS" means Real Property Assets that are
owned in fee by Company or any of its Subsidiaries.
"PARENT" has the meaning assigned to that term in the
introduction to this Agreement and, upon consummation of any combination of
Parent and Company permitted by subsection 7.7(vii) in which Company is the
surviving corporation, shall mean and include Company.
20
"PARENT PLEDGE AGREEMENT" means the Pledge Agreement executed and
delivered by Parent pursuant to subsection 6.9, as such Pledge Agreement may
hereafter be amended, supplemented or otherwise modified from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto).
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"PERMITTED ENCUMBRANCES" means the following types of Liens
(other than any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of
the Internal Revenue Code or by ERISA):
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not, at the time, required by subsection
6.3;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics and materialmen and other Liens imposed by law
incurred in the ordinary course of business for sums not yet delinquent
or being contested in good faith, if such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made
therefor;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(iv) any attachment or judgment Lien not constituting an Event
of Default under subsection 8.8;
(v) leases or subleases granted to others not interfering in
any material respect with the ordinary conduct of the business of Company
or any of its Subsidiaries;
(vi) easements, rights-of-way, restrictions, minor defects,
encroachments or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the ordinary
conduct of the business of Company or any of its Subsidiaries;
(vii) any interest or title of a lessor or sublessor under any
lease permitted by this Agreement;
21
(viii) Liens arising from filing Uniform Commercial Code
financing statements relating solely to leases permitted by this
Agreement;
(ix) 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; and
(x) licenses or sublicenses relating to any patents or any
trademarks granted to others by Company or a Subsidiary of Company in
accordance with the provisions of any such agreement.
"PERSON" means and includes natural persons, corporations,
limited partnerships, general partnerships, joint stock companies, Joint
Ventures, associations, companies, trusts, banks, trust companies, land trusts,
business trusts or other organizations, whether or not legal entities, and
governments and agencies and political subdivisions thereof.
"PLEDGED SUBSIDIARY" means any Subsidiary of Company, the capital
stock of which has been pledged to Administrative Agent, on behalf of Lenders,
pursuant to the Company Pledge Agreement, or a Subsidiary Pledge Agreement or
Auxiliary Pledge Agreement, as applicable.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that,
after notice or lapse of time or both, would constitute an Event of Default.
"PREFERRED STOCK" means the $121.33 Preferred Stock of Company,
with a liquidation preference of $1,000 per share, plus accrued and unpaid
dividends thereon, if any, with the terms set forth in the Certificate of
Designations filed with the Secretary of State of Delaware on February 23, 1993
or any preferred stock of Company issued in substitution therefor upon terms,
including, without limitation, preferences, amount and type of dividends payable
with respect thereto, dividend payment dates, redemption provisions, voting
rights and the like, and subject to documentation, acceptable to Administrative
Agent and Requisite Lenders.
"PRIME RATE" means the rate that Bankers announces from time to
time as its prime lending rate, as in effect from time to time. The Prime Rate
is a reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. Bankers or any other Lender may make
commercial loans or other loans at rates of interest at, above or below the
Prime Rate.
"PRO FORMA" means, with respect to any calculation made or
required to be made pursuant to the terms of this Agreement, a calculation
showing the impact of a proposed transaction on the consolidated financial
position and operations of the Company for the twelve-month period immediately
preceding the date of the proposed transaction and giving effect to the
occurrence of the proposed transaction at the beginning of such
22
twelve-month period and including appropriate adjustments to give effect to such
proposed transaction, including without limitation after giving effect to all
Indebtedness incurred or assumed in connection therewith and calculating
interest on any such Indebtedness at a fixed rate equal to the rate (whether
fixed or floating) which such Indebtedness would bear on the date of
determination.
"PRO RATA SHARE" means with respect to each Lender, the
percentage obtained by DIVIDING (x) the Revolving Loan Exposure of that Lender
BY (y) the aggregate Revolving Loan Exposure of all Lenders, as such percentage
may be adjusted by assignments permitted pursuant to subsection 11.1. The
initial Pro Rata Share of each Lender is set forth opposite the name of that
Lender in SCHEDULE 2.1 annexed hereto.
"PROCEEDINGS" has the meaning assigned to that term in subsection
6.1(ix).
"REAL PROPERTY ASSETS" means interests in land, buildings,
improvements and fixtures attached thereto or used in the operation thereof, in
each case owned or leased (as lessee) by Company or any of its Subsidiaries.
"REFERENCE LENDERS" means Bankers, The First National Bank of
Chicago and The Bank of Nova Scotia.
"REFUNDED SWINGLINE LOANS" has the meaning assigned to that term
in subsection 2.1A(ii).
"REGISTER" has the meaning assigned to such term in subsection
2.1E.
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"REIMBURSEMENT DATE" has the meaning assigned to that term in
subsection 3.3B.
"RELEASE" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Materials into the indoor or outdoor
environment (including, without limitation, the abandonment or disposal of any
barrels, containers or other closed receptacles containing any Hazardous
Materials), or into or out of any Facility, including the movement of any
Hazardous Material through the air, soil, surface water, groundwater or
property.
"REPLACED LENDER" has the meaning assigned to such term in
subsection 2.9C.
"REPLACEMENT LENDER" has the meaning assigned to such term in
subsection 2.9C.
23
"REQUEST FOR ISSUANCE OF LETTER OF CREDIT" means a notice
substantially in the form of Exhibit III annexed hereto delivered by Company to
Administrative Agent pursuant to subsection 3.1B(i) with respect to the proposed
issuance of a Letter of Credit.
"REQUISITE LENDERS" means Lenders having or holding 51% or more
of the aggregate Revolving Loan Exposure of all Lenders.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of Company now or hereafter outstanding, except a dividend payable solely in
shares of that class of stock to the holders of that class, (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of stock of Company now or
hereafter outstanding, (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of stock of Company now or hereafter outstanding, and
(iv) any payment or prepayment of principal of, premium, if any, or interest on,
or redemption, purchase, retirement, defeasance (including in-substance or legal
defeasance), sinking fund or similar payment with respect to, any Subordinated
Indebtedness.
"REVOLVING LOAN COMMITMENT" or "REVOLVING LOAN COMMITMENTS" means
the commitment or commitments of a Lender or Lenders to make Revolving Loans to
Company pursuant to subsection 2.1A(i).
"REVOLVING LOAN EXPOSURE" means, with respect to any Lender as of
any date of determination (i) prior to the termination of the Revolving Loan
Commitments, that Lender's Revolving Loan Commitment, and (ii) after the
termination of the Revolving Loan Commitments, the sum of (a) the aggregate
outstanding principal amount of the Revolving Loans of that Lender PLUS (b) in
the event that Lender is an Issuing Lender, the aggregate Letter of Credit Usage
in respect of all Letters of Credit issued by that Lender (in each case net of
any participations purchased by other Lenders in the applicable Letters of
Credit and any unreimbursed drawings under any Letters of Credit) PLUS (c) the
aggregate amount of all participations purchased by that Lender in outstanding
Letters of Credit and any unreimbursed drawings under any Letters of Credit PLUS
(d) in the event that Lender is the Swingline Lender, the aggregate outstanding
principal amount of the Swingline Loans (net of any participations therein
purchased by other Lenders) PLUS (e) the aggregate amount of all participations
purchased by that Lender in any outstanding Swingline Loans.
"REVOLVING LOANS" means the Loans made by Lenders to Company
pursuant to subsection 2.1A(i).
"REVOLVING NOTES" means (i) the promissory notes of Company
issued pursuant to subsection 2.1D on the Closing Date and (ii) any promissory
notes issued by Company pursuant to the last sentence of subsection 11.1B(i) in
connection with assignments of the Revolving Loan Commitments and Revolving
Loans of any Lenders, in
24
each case substantially in the form of EXHIBIT IV annexed hereto, as they may be
amended, supplemented or otherwise modified from time to time.
"SECURITIES" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"SENIOR DEBT REPURCHASE FACILITY" has the meaning assigned to
that term in subsection 2.1A(i).
"SENIOR NOTE INDENTURE" means the Indenture dated as of June 21,
1993 between Company and State Street Bank and Trust Company, as Trustee, as
such Indenture may be amended, supplemented or otherwise modified from time to
time after the Closing Date to the extent permitted under subsection 7.13.
"SENIOR NOTES" means the $80,000,000 aggregate principal amount
of 9-1/4% Senior Notes due July 15, 2000 of Company issued pursuant to the
Senior Note Indenture.
"SENIOR INDEBTEDNESS" means (i) the Indebtedness of Company
evidenced by the Senior Notes and (ii) any other senior indebtedness of Company
permitted under subsection 7.1(vii).
"SHAREHOLDERS AGREEMENT" means that certain Shareholders
Agreement dated as of May 10, 1988 among Company, Management Shareholders (as
defined therein) and Investor Shareholders (as defined therein), as amended to
the Closing Date and as it may thereafter be amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof and hereof.
"SOLVENT" means, with respect to any Person, that as of the date
of determination, considering all financing alternatives and potential asset
sales reasonably available to such Person, both (A) (i) the then fair saleable
value of the assets of such Person is (y) greater than the total amount of
liabilities (including Contingent Obligations) of such Person and (z) greater
than the amount that will be required to pay the probable liabilities on such
Person's then existing debts as they become absolute and matured; (ii) such
Person's capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (iii) such Person does not intend to
incur, or believe that it will incur, debts beyond its ability to pay such debts
as they become due;
25
and (B) such Person is "solvent" within the meaning given that term and similar
terms under applicable laws relating to fraudulent transfers and conveyances.
"STANDBY LETTER OF CREDIT" means any standby letter of credit or
similar instrument issued for the purpose of supporting (i) Indebtedness of
Company or any of its Subsidiaries in respect of industrial revenue or
development bonds or financings, (ii) workers' compensation liabilities of
Company or any of its Subsidiaries, (iii) the obligations of third party
insurers of Company or any of its Subsidiaries, (iv) obligations with respect to
Capital Leases or Operating Leases of Company or any of its Subsidiaries, and
(v) performance, payment, deposit or surety obligations of Company or any of its
Subsidiaries, in any case if required by law or governmental rule or regulation
or in accordance with custom and practice in the industry; PROVIDED that Standby
Letters of Credit may not be issued for the purpose of supporting trade
payables.
"SUBORDINATED DEBT REPURCHASE FACILITY" has the meaning assigned
to that term in subsection 2.1A(i).
"SUBORDINATED INDEBTEDNESS" means (i) the Indebtedness of Company
evidenced by the 10-3/4% Subordinated Notes, (ii) any other Indebtedness of
Company permitted under subsection 7.1 that is subordinated in right of payment
to the Obligations, including without limitation upon any combination of Company
and Parent permitted under subsection 7.7(vii), the 11-1/2% Senior Discount
Debentures, and (iii) any other Indebtedness of Company subordinated in right of
payment to the Obligations pursuant to documentation containing maturities,
amortization schedules, covenants, defaults, remedies, subordination provisions
and other material terms in form and substance satisfactory to Administrative
Agent and Requisite Lenders.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, association, joint venture or other business entity of which more
than 50% of the total voting power of shares of stock or other ownership
interests entitled (without regard to the occurrence of any contingency) to vote
in the election of the Person or Persons (whether directors, managers, trustees
or other Persons performing similar functions) having the power to direct or
cause the direction of the management and policies thereof is at the time owned
or controlled, directly or indirectly, by that Person or one or more of the
other Subsidiaries of that Person or a combination thereof.
"SUBSIDIARY GUARANTY" means each Guaranty executed and delivered
by Domestic Subsidiaries of Company (other than BHFS Group and the Inactive
Subsidiaries) on the Closing Date, substantially in the form of Exhibit XIII
annexed hereto, and any other guaranty substantially in the form of such
Guaranties executed from time to time thereafter in accordance with subsection
6.9, as any such Subsidiary Guaranty may be amended, supplemented or otherwise
modified from time to time, and "SUBSIDIARY GUARANTIES" means all such
Guaranties, collectively.
26
"SUBSIDIARY PLEDGE AGREEMENT" means each Pledge Agreement
executed and delivered by the Domestic Subsidiaries of Company (other than BHFS
Group and the Inactive Subsidiaries) on the Closing Date, substantially in the
form of Exhibit XII annexed hereto, and any other pledge agreement substantially
in the form of such Pledge Agreements executed from time to time thereafter in
accordance with subsection 6.9, as any such Subsidiary Pledge Agreement may be
amended, supplemented or otherwise modified from time to time, and "SUBSIDIARY
PLEDGE AGREEMENTS" means all such Pledge Agreements, collectively.
"SWINGLINE LENDER" means Bankers, in its capacity as Swingline
Lender hereunder.
"SWINGLINE LOAN COMMITMENT" means the commitment of Swingline
Lender to make Swingline Loans pursuant to subsection 2.1A(ii).
"SWINGLINE LOANS" means the Swingline Loans made by Swingline
Lender to Company pursuant to subsection 2.1A(ii).
"SWINGLINE NOTE" means the promissory note of Company issued
pursuant to subsection 2.1D on the Closing Date substantially in the form of
EXHIBIT V annexed hereto, as it may be amended, supplemented or otherwise
modified from time to time.
"TAX" or "TAXES" means any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature and whatever called,
by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld
or assessed; PROVIDED that "TAX ON THE OVERALL NET INCOME" of a Person shall be
construed as a reference to a tax imposed by the jurisdiction in which that
Person's principal office (and/or, in the case of a Lender, its lending office)
is located on all or part of the net income, profits or gains of that Person
(whether worldwide, or only insofar as such income, profits or gains are
considered to arise in or to relate to a particular jurisdiction, or otherwise).
"TOTAL UTILIZATION OF REVOLVING LOAN COMMITMENTS" means, as at
any date of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans PLUS (ii) the aggregate principal amount of all
outstanding Swingline Loans PLUS (iii) the Letter of Credit Usage.
"TRANSACTION COSTS" means the fees, costs and expenses payable by
Company pursuant hereto in connection with the execution and delivery of this
Agreement.
"TRANSACTIONS" has the meaning assigned to that term in the
recitals to this Agreement.
"WHOLLY-OWNED" means, with respect to any Subsidiary of a Person,
a Subsidiary to the extent all of the capital stock or other ownership interests
in such Subsidiary (except for directors' qualifying shares required by
applicable law) is owned
27
directly or indirectly by such Person; PROVIDED that Xxxx & Xxxxxx France, S.A.
shall also be a "Wholly-Owned" Subsidiary of Company.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS UNDER
AGREEMENT.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Company to Lenders pursuant to clauses (i), (ii),
(iii) and (xii) of subsection 6.1 shall be prepared in accordance with GAAP as
in effect at the time of such preparation; PROVIDED that the consolidated and
Consolidating financial statements and other information required to be
delivered pursuant to clauses (i) and (ii) of subsection 6.1 will not be
prepared in accordance with GAAP to the extent that GAAP requires that
information be provided in footnotes. Calculations in connection with the
definitions, covenants and other provisions of this Agreement shall utilize
accounting principles and policies in conformity with GAAP as in effect on the
Closing Date.
1.3 OTHER DEFINITIONAL PROVISIONS.
References to "Sections" and "subsections" shall be to Sections
and subsections, respectively, of this Agreement unless otherwise specifically
provided. Any of the terms defined in subsection 1.1 may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference. For the purposes of this Agreement, "amended, supplemented or
otherwise modified" shall mean amended, restated, extended, renewed,
supplemented or modified in any manner.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; LOANS.
A. COMMITMENTS. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Company
herein set forth, each Lender hereby severally agrees to make the Loans
described in this subsection 2.1A to the extent of its Commitment with respect
thereto.
(i) REVOLVING LOANS. Each Lender severally agrees, subject
to the limitations set forth below with respect to the maximum amount of
Revolving Loans permitted to be outstanding from time to time, to lend to
Company from time to time during the period from the Closing Date to but
excluding the Commitment Termination Date an aggregate amount not
exceeding its Pro Rata Share of the aggregate Revolving Loan Commitments
to be used for the purposes identified in subsection 2.5A. Each Lender's
commitment to make Revolving Loans to Company pursuant to this subsection
2.1A(i) is herein called its
28
"Revolving Loan Commitment" and such commitments of all Lenders in the
aggregate are herein called the "Revolving Loan Commitments". The
original amount of each Lender's Revolving Loan Commitment is set forth
opposite its name on SCHEDULE 2.1 annexed hereto and the aggregate amount
of the Revolving Loan Commitments as of the Closing Date is $600,000,000;
PROVIDED that (x) until July 15, 2000, $80,000,000 of such Revolving Loan
Commitments shall be available only for redemptions or repurchases of
Senior Notes permitted pursuant to subsection 7.5 (the "Senior Debt
Repurchase Facility") and (y) until February 1, 1998, $170,000,000 (less
the amount of Debt Repurchases made on or after the Closing Date in
excess of the first $95,000,000) of Revolving Loan Commitments shall be
available only for redemptions or repurchases of the 10 3/4% Subordinated
Notes, the Preferred Stock and/or the 11-1/2% Senior Discount Debentures
permitted pursuant to subsection 7.5 (the "Subordinated Debt Repurchase
Facility"); PROVIDED further that the Revolving Loan Commitments of
Lenders shall be adjusted to give effect to any assignments of the
Revolving Loan Commitments pursuant to subsection 11.1B; and PROVIDED
FURTHER that the amount of the Revolving Loan Commitments shall be
reduced from time to time by the amount of any reductions thereto made
pursuant to subsections 2.4A(ii) and 2.4A(iii). Each Lender's Revolving
Loan Commitment shall expire on the Commitment Termination Date and all
Revolving Loans and all other amounts owed hereunder with respect to the
Revolving Loans and the Revolving Loan Commitments shall be paid in full
no later than that date; PROVIDED that each Lender's Revolving Loan
Commitment shall expire immediately and without further action on October
15, 1997 if the initial Revolving Loans are not made on or before that
date. Amounts borrowed under this subsection 2.1A(i) may be repaid and
reborrowed to but excluding the Commitment Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Revolving Loans and the Revolving Loan Commitments
shall be subject to the following limitations in the amounts and during
the periods indicated:
(a) the amount otherwise available to be borrowed or
maintained as Revolving Loans under the Revolving Loan
Commitments as of any time of determination (other than to the
extent such borrowing will be used to repay Swingline Loans,
reimburse any Issuing Lender for the amount of any drawings under
any Letters of Credit honored by such Issuing Lender and not
theretofore reimbursed by Company) shall be reduced by (1) the
aggregate principal amount of Swingline Loans outstanding as of
such time of determination PLUS (2) the Letter of Credit Usage as
of such time of determination; and
(b) in no event shall the Total Utilization of
Revolving Loan Commitments at any time exceed the Revolving Loan
Commitments then in effect.
29
(ii) SWINGLINE LOANS. Swingline Lender hereby agrees, subject
to the limitations set forth below with respect to the maximum amount of
Swingline Loans permitted to be outstanding from time to time, to make a
portion of the Revolving Loan Commitments available to Company from time
to time during the period from the Closing Date to but excluding the
Commitment Termination Date by making Swingline Loans to Company in an
aggregate amount not exceeding the amount of the Swingline Loan
Commitment to be used for the purposes identified in subsection 2.5A,
notwithstanding the fact that such Swingline Loans, when aggregated with
Swingline Lender's outstanding Revolving Loans and Swingline Lender's Pro
Rata Share of the Letter of Credit Usage then in effect, may exceed
Swingline Lender's Revolving Loan Commitment. Swingline Lender's
commitment to make Swingline Loans to Company pursuant to this subsection
2.1A(ii) is herein called its "SWINGLINE LOAN COMMITMENT", and the
original amount of the Swingline Loan Commitment is $15,000,000. The
Swingline Loan Commitment shall expire on the Commitment Termination Date
and all Swingline Loans and all other amounts owed hereunder with respect
to the Swingline Loans shall be paid in full no later than that date;
PROVIDED that Swingline Lender's Swingline Loan Commitment shall expire
immediately and without further action on October 15, 1997 if the initial
Revolving Loans are not made on or before that date. Amounts borrowed
under this subsection 2.1A(ii) may be repaid and reborrowed to but
excluding the Commitment Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Swingline Loans and the Swingline Loan Commitment
shall be subject to the following limitations in the amounts and during
the periods indicated:
(a) in no event shall the Total Utilization of
Revolving Loan Commitments at any time exceed the Revolving Loan
Commitments then in effect; and
(b) any reduction of the Revolving Loan Commitments
made pursuant to subsection 2.4A which reduces the aggregate
Revolving Loan Commitments to an amount less than the then
current amount of the Swingline Loan Commitment shall result in
an automatic corresponding reduction of the Swingline Loan
Commitment to the amount of the Revolving Loan Commitments, as so
reduced, without any further action on the part of Administrative
Agent or Swingline Lender.
With respect to any Swingline Loans which have not been
voluntarily prepaid by Company pursuant to subsection 2.4A(i) within 14
days after the making thereof, Swingline Lender shall, and prior to such
time, may, in its sole and absolute discretion, deliver to Administrative
Agent (with a copy to Company), no later than 12:00 Noon (New York time)
at least one Business Day in advance of the proposed Funding Date, a
notice (which shall be deemed to be a Notice of Borrowing given by
Company) requesting Lenders having Revolving Loan
30
Commitments to make Revolving Loans that are Base Rate Loans on such
Funding Date in an amount equal to the amount of such Swingline Loans
(the "REFUNDED SWINGLINE LOANS") outstanding on the date such notice is
given which Swingline Lender requests Lenders to prepay. Anything
contained in this Agreement to the contrary notwithstanding, (i) the
proceeds of such Revolving Loans made by Lenders other than Swingline
Lender shall be immediately delivered by Administrative Agent to
Swingline Lender (and not to Company) and applied to repay a
corresponding portion of the Refunded Swingline Loans and (ii) on the day
such Revolving Loans are made, Swingline Lender's Pro Rata Share of the
Refunded Swingline Loans shall be deemed to be paid with the proceeds of
a Revolving Loan made by Swingline Lender and such portion of the
Swingline Loans deemed to be so paid shall no longer be outstanding as
Swingline Loans, shall no longer be due under the Swingline Note of
Swingline Lender, shall become a Revolving Loan of Swingline Lender and
shall be due under the Revolving Note of Swingline Lender. Company
hereby authorizes Administrative Agent and Swingline Lender to charge
Company's accounts with Administrative Agent and Swingline Lender (up to
the amount available in each such account) in order to immediately pay
Swingline Lender the amount of the Refunded Swingline Loans to the extent
the proceeds of such Revolving Loans made by Lenders, including the
Revolving Loan deemed to be made by Swingline Lender, are not sufficient
to repay in full the Refunded Swingline Loans. If any portion of any
such amount paid (or deemed to be paid) to Swingline Lender should be
recovered by or on behalf of Company from Swingline Lender in bankruptcy,
by assignment for the benefit of creditors or otherwise, the loss of the
amount so recovered shall be ratably shared among all Lenders having
Revolving Loan Commitments in the manner contemplated by subsection 11.5.
Immediately upon the funding of each Swingline Loan by Swingline
Lender, each Lender having a Revolving Loan Commitment shall be deemed
to, and hereby agrees to, have purchased a participation in such
outstanding Swingline Loans in an amount equal to its Pro Rata Share of
the unpaid amount together with accrued interest thereon. Upon one
Business Day's notice from Swingline Lender, each such Lender shall
deliver to Swingline Lender an amount equal to its respective
participation in same day funds at the office of Swingline Lender located
at One Bankers Trust Plaza, New York, New York. In order to evidence
such participation each such Lender agrees to enter into a participation
agreement at the request of Swingline Lender in form and substance
reasonably satisfactory to all parties. In the event any such Lender
fails to make available to Swingline Lender the amount of such Lender's
participation as provided in this paragraph, Swingline Lender shall be
entitled to recover such amount on demand from such Lender together with
interest thereon at the rate customarily used by Swingline Lender for the
correction of errors among banks for three Business Days after such
demand and thereafter at the Base Rate. In the event Swingline Lender
receives payment of any amount in which other Lenders have purchased
participations as provided in this paragraph,
31
Swingline Lender shall promptly distribute to each other Lender its Pro
Rata Share of such payment.
Anything contained herein to the contrary notwithstanding,
(i) each such Lender's obligation to make Revolving Loans for the purpose
of repaying any Refunded Swingline Loans pursuant to the second preceding
paragraph of this subsection 2.1A(ii) and each such Lender's obligation
to purchase a participation in any unpaid Swingline Loans pursuant to the
immediately preceding paragraph of this subsection 2.1A(ii) shall be
absolute and unconditional and shall not be affected by any circumstance,
including without limitation (a) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against Swingline
Lender, Company or any other Person for any reason whatsoever; (b) the
occurrence or continuance of an Event of Default or a Potential Event of
Default; (c) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any
of its Subsidiaries; (d) any breach of this Agreement or any other Loan
Document by any party thereto; or (e) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing;
PROVIDED that such obligations of each such Lender are subject to one of
the following: (X) Swingline Lender believed in good faith that all
conditions under Section 4 to the making of the applicable Refunded
Swingline Loans or other unpaid Swingline Loans, as the case may be, were
satisfied at the time such Refunded Swingline Loans or unpaid Swingline
Loans were made, (Y) such Lender had actual knowledge, by receipt of any
notices required to be delivered to Lenders pursuant to subsection
6.1(viii) or otherwise, that any such condition had not been satisfied
and such Lender failed to notify Swingline Lender and Administrative
Agent in writing that it had no obligation to make Revolving Loans until
such condition was satisfied (any such notice to be effective as of the
date of receipt thereof by Swingline Lender and Administrative Agent), or
(Z) the satisfaction of any such condition not satisfied had been waived
in accordance with subsection 11.6; and (ii) Swingline Lender shall not
be obligated to make any Swingline Loans if it has elected not to do so
after the occurrence and during the continuation of a Potential Event of
Default or Event of Default.
B. BORROWING MECHANICS. Revolving Loans made on any Funding Date
(other than Revolving Loans made pursuant to a request by Swingline Lender
pursuant to subsection 2.1A(ii) for the purposes of repaying any Refunded
Swingline Loans or Revolving Loans made pursuant to subsection 3.3B for the
purpose of reimbursing any Issuing Lender for the amount of a drawing under a
Letter of Credit issued by it) shall be in an aggregate minimum amount of
$1,000,000 and integral multiples of $500,000 in excess of that amount; PROVIDED
Revolving Loans made on any Funding Date as Eurodollar Rate Loans with a
particular Interest Period shall be in an aggregate minimum amount of $3,000,000
and integral multiples of $500,000 in excess of that amount. Swingline Loans
made on any Funding Date shall be in an aggregate minimum amount of $500,000 and
integral multiples of $100,000 in excess of that amount. Whenever Company
desires that Lenders make Revolving Loans it shall deliver to Administrative
Agent a Notice of
32
Borrowing no later than 12:00 noon (New York time) at least three Business Days
in advance of the proposed Funding Date (in the case of a Eurodollar Rate Loan),
or at least one Business Day in advance of the proposed Funding Date (in the
case of a Base Rate Loan). Whenever Company desires that Swingline Lender make
a Swingline Loan under subsection 2.1A(ii), it shall deliver to Administrative
Agent a Notice of Borrowing no later than 1:00 P.M. (New York time) on the
proposed Funding Date. The Notice of Borrowing shall specify (i) the proposed
Funding Date (which shall be a Business Day), (ii) the amount and type of Loans
requested, (iii) in the case of Swingline Loans, that such Loans shall be Base
Rate Loans, (iv) in the case of Loans made on the Closing Date, that such Loans
shall be Base Rate Loans, (v) in the case of Revolving Loans not made on the
Closing Date, whether such Loans shall be Base Rate Loans or Eurodollar Rate
Loans, and (vi) in the case of any Loans requested to be made as Eurodollar Rate
Loans, the initial Interest Period requested therefor. Revolving Loans may be
continued as or converted into Base Rate Loans and Eurodollar Rate Loans in the
manner provided in subsection 2.2D. In lieu of delivering the above-described
Notice of Borrowing, Company may give Administrative Agent telephonic notice by
the required time of any proposed borrowing under this subsection 2.1B; PROVIDED
that such notice shall be promptly confirmed in writing by delivery of a Notice
of Borrowing to Administrative Agent on or before the applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur any
liability to Company in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on behalf of Company or
for otherwise acting in good faith under this subsection 2.1B, and upon funding
of Loans by Lenders in accordance with this Agreement pursuant to any such
telephonic notice Company shall have effected Loans hereunder.
Company shall notify Administrative Agent prior to the funding of
any Loans in the event that any of the matters to which Company is required to
certify in the applicable Notice of Borrowing is no longer true and correct as
of the applicable Funding Date, and the acceptance by Company of the proceeds of
any Loans shall constitute a re-certification by Company, as of the applicable
Funding Date, as to the matters to which Company is required to certify in the
applicable Notice of Borrowing as modified pursuant to the notice provided for
in the first clause of this sentence (it being understood that the making of
such Loans by Lenders shall not in any way be construed as a waiver by Lenders
of any matter set forth in such notice).
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G,
a Notice of Borrowing for a Eurodollar Rate Loan (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and Company shall be bound to make a borrowing in accordance
therewith.
C. DISBURSEMENT OF FUNDS. All Revolving Loans under this Agreement
shall be made by Lenders simultaneously and proportionately to their respective
Pro Rata
33
Shares, it being understood that no Lender shall be responsible for any default
by any other Lender in that other Lender's obligation to make a Revolving Loan
requested hereunder nor shall the Revolving Loan Commitment of any Lender be
increased or decreased as a result of a default by any other Lender in that
other Lender's obligation to make a Revolving Loan requested hereunder.
Promptly after receipt by Administrative Agent of a Notice of Borrowing pursuant
to subsection 2.1B (or telephonic notice in lieu thereof), Administrative Agent
shall notify each Lender or Swingline Lender, as the case may be, of the
proposed borrowing. Each Lender shall make the amount of its Revolving Loan
available to Administrative Agent not later than 12:00 noon (New York time) on
the applicable Funding Date and Swingline Lender shall make the amount of its
Swingline Loan available to Administrative Agent not later than 2:00 P.M. (New
York time) on the applicable Funding Date, in each case in same day funds, at
the office of Administrative Agent located at One Bankers Trust Plaza, New York,
New York. Except as provided in subsection 2.1A(ii) or subsection 3.3B with
respect to Revolving Loans used to repay Swingline Loans or to reimburse any
Issuing Lender for the amount of a drawing under a Letter of Credit issued by
it, upon satisfaction or waiver of the conditions precedent specified in
subsections 4.1 (in the case of Loans made on the Closing Date) and 4.2 (in the
case of all Loans), Administrative Agent shall make the proceeds of such Loans
available to Company on the applicable Funding Date by causing an amount of same
day funds equal to the proceeds of all such Loans received by Administrative
Agent from Lenders to be credited to the account of Company at the office of
Administrative Agent specified in the preceding sentence.
Unless Administrative Agent shall have been notified by any
Lender prior to the Funding Date for any Loans that such Lender does not intend
to make available to Administrative Agent the amount of such Lender's Loan
requested on such Funding Date, Administrative Agent may assume that such Lender
has made such amount available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to Company a corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest thereon,
for each day from such Funding Date until the date such amount is paid to
Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three Business Days and thereafter at the
Base Rate. If such Lender does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent shall promptly
notify Company and Company shall immediately pay such corresponding amount to
Administrative Agent together with interest thereon, for each day from such
Funding Date until the date such amount is paid to Administrative Agent, at the
rate payable under this Agreement for Base Rate Loans; PROVIDED, HOWEVER, that
Company shall have no additional obligations to pay interest on such amount
hereunder. Nothing in this subsection 2.1C shall be deemed to relieve any
Lender from its obligation to fulfill its Commitments hereunder or to prejudice
any rights that Company may have against any Lender as a result of any default
by such Lender hereunder.
34
D. NOTES. Company shall execute and deliver on the Closing
Date (i) to each Lender (or to Administrative Agent for that Lender) a Revolving
Note substantially in the form of Exhibit IV annexed hereto to evidence that
Lender's Revolving Loans in the principal amount of that Lender's Revolving Loan
Commitment and with other appropriate insertions; and (ii) to Swingline Lender,
a Swingline Note substantially in the form of Exhibit V annexed hereto to
evidence Swingline Lender's Swingline Loans in the principal amount of the
Swingline Loan Commitment and with other appropriate insertions.
E. THE REGISTER.
(i) Administrative Agent shall maintain, at its
address set forth on its signature page hereto, a register for the
recordation of the name and addresses of Lenders and the
Commitments and Loans of each Lender from time to time (the
"REGISTER"). The Register shall be available for inspection by
Company or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(ii) Administrative Agent shall record in the Register
the Revolving Loan Commitment and Revolving Loans from time to
time of each Lender, the Swingline Loan Commitment and the
Swingline Loans from time to time of Swingline Lender, and each
repayment or prepayment in respect of the principal amount of the
Revolving Loans of each Lender or the Swingline Loans of Swingline
Lender. Any such recordation shall be conclusive and binding on
Company and each Lender, absent manifest error; PROVIDED that
failure to make any such recordation, or any error in such
recordation, shall not affect Company's Obligations in respect of
the applicable Loans.
(iii) Each Lender shall record on its internal records
(including, without limitation, the Notes held by such Lender) the
amount of each Revolving Loan made by it and each payment in
respect thereof. Any such recordation shall be conclusive and
binding on Company, absent manifest error; PROVIDED that failure
to make any such recordation, or any error in such recordation,
shall not affect Company's Obligations in respect of the
applicable Loans; and PROVIDED, FURTHER that in the event of any
inconsistency between the Register and any Lender's records, the
recordations in the Register shall govern.
(iv) Company, Administrative Agent and Lenders shall
deem and treat the Persons listed as Lenders in the Register as
the holders and owners of the corresponding Commitments and Loans
listed therein for all purposes hereof, and no assignment or
transfer of any such Commitment or Loan shall be effective, in
each case unless and until an Assignment Agreement effecting the
assignment or transfer thereof shall have been accepted by
Administrative Agent and recorded in the Register as provided in
subsection
35
11.1B(ii). Prior to such recordation, all amounts owed with respect to
the applicable Commitment or Loan shall be owed to the Lender listed in
the Register as the owner thereof, and any request, authority or consent
of any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee
of the corresponding Commitments or Loans.
(v) Company hereby designates Bankers to serve as
Company's agent solely for purposes of maintaining the Register as
provided in this subsection 2.1E, and Company hereby agrees that,
to the extent Bankers serves in such capacity, Bankers and its
officers, directors, employees, agents and affiliates shall
constitute Indemnitees for all purposes under subsection 11.3.
2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of subsections 2.6
and 2.7, each Revolving Loan shall bear interest on the unpaid principal amount
thereof from the date made up to, but not including, the date of maturity
(whether by acceleration or otherwise) at a rate determined by reference to the
Base Rate or the Adjusted Eurodollar Rate (computed as described in subsection
2.2F). Subject to the provisions of subsection 2.7, each Swingline Loan shall
bear interest on the unpaid principal amount thereof from the date made up to,
but not including, the date of maturity (whether by acceleration or otherwise)
at a rate determined by reference to the Base Rate (computed as described in
subsection 2.2F). The applicable basis for determining the rate of interest
with respect to any Loan shall be selected by Company initially at the time a
Notice of Borrowing is given with respect to such Loan pursuant to subsection
2.1B. The basis for determining the interest rate with respect to any Revolving
Loan may be changed from time to time pursuant to subsection 2.2D. If on any
day a Revolving Loan is outstanding with respect to which notice has not been
delivered to Administrative Agent in accordance with the terms of this Agreement
specifying the applicable basis for determining the rate of interest, then for
that day that Loan shall bear interest determined by reference to the Base Rate.
(i) Subject to the provisions of subsections 2.2E and 2.7,
the Revolving Loans shall bear interest through maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base
Rate PLUS the Base Rate Margin set forth in the table below
opposite Company's Leverage Ratio for the four-fiscal quarter
period for which the applicable Margin Determination Certificate
is being delivered pursuant to subsection 6.1(iv); or
(b) if a Eurodollar Rate Loan, then at the sum of the
Adjusted Eurodollar Rate PLUS the Eurodollar Rate Margin set
forth in the table below
36
opposite Company's Leverage Ratio for the four-fiscal quarter
period for which the applicable Margin Determination Certificate
is being delivered pursuant to subsection 6.1(iv):
Applicable Applicable
Leverage Eurodollar Rate Base Rate
Ratio Margin Margin
------------------------------------ ----------------- ----------
Greater than
or equal to 4.25:1.00 1.25% .25%
Greater than or
equal to 4.00:100
but less than 4.25:1.00 1.00% 0.00%
Greater than or
equal to 3.50:1.00
but less than 4.00:1.00 0.75% 0.00%
Greater than or
equal to 3.25:1.00
but less than 3.50:1.00 0.625% 0.00%
Greater than or
equal to 2.75:1.00
but less than 3.25:1.00 0.50% 0.00%
Greater than or
equal to 2.00:1.00
but less than 2.75:1.00 0.375% 0.00%
Less than 2.00:1.00 0.25% 0.00%
; PROVIDED that, for the period from the Closing Date through the fourth
quarter of Fiscal Year 1997, the applicable margin for Eurodollar Rate
Loans shall be 0.75% per annum and for Base Rate Loans shall be 0.00% per
annum.
Upon delivery of the Margin Determination Certificate by Company to
Administrative Agent pursuant to subsection 6.1(iv), the Applicable Base
Rate Margin and the Applicable Eurodollar Margin shall automatically be
adjusted in accordance with such Margin Determination Certificate, such
adjustment to become effective on the next succeeding Business Day
following the receipt by Administrative Agent of such Margin
Determination Certificate; PROVIDED that at any time a Margin
Determination Certificate is not delivered at the time required pursuant
to subsection 6.1(iv), from the time such Margin Determination
Certificate was required to be delivered until delivery of such Margin
Determination Certificate, the Applicable Eurodollar Rate Margin shall be
1.25% per annum and the Applicable Base Rate Margin shall be 0.25% per
annum; PROVIDED FURTHER that if
37
a Margin Determination Certificate erroneously indicates an applicable
margin more favorable to Company than would be afforded by the actual
calculation of the Leverage Ratio, Company shall promptly pay such
additional interest and letter of credit fees as shall correct for such
error.
(ii) Subject to the provisions of subsection 2.2E and 2.7, the
Swingline Loans shall bear interest (computed as described in subsection
2.2F) through maturity at the sum of the Base Rate plus the Applicable
Base Rate Margin less the commitment fee percentage applicable under
subsection 2.3A set forth in subsection 2.2A(i).
B. INTEREST PERIODS. In connection with each Eurodollar Rate Loan,
Company may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"INTEREST PERIOD") to be applicable to such Loan, which Interest Period shall
be, at Company's option, a one, two, three or six month period; PROVIDED that:
(i) the initial Interest Period for any Eurodollar Rate Loan
shall commence on the Funding Date of such Loan, in the case of a Loan
initially made as a Eurodollar Rate Loan, or on the date specified in the
applicable Notice of Conversion/Continuation, in the case of a Loan
converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods
applicable to a Eurodollar Rate Loan continued as such pursuant to a
Notice of Conversion/Continuation, each successive Interest Period shall
commence on the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; PROVIDED that if any Interest Period would
otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (v) of this subsection 2.2B, end on the
last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the
Revolving Loans shall extend beyond the Commitment Termination Date;
(vi) there shall be no more than 20 Interest Periods
outstanding at any time; and
38
(vii) in the event Company fails to specify an Interest Period
for any Eurodollar Rate Loan in the applicable Notice of Borrowing or
Notice of Conversion/Continuation, Company shall be deemed to have
selected an Interest Period of one month.
C. INTEREST PAYMENTS. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and up to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity of any Loan
(including final maturity) PROVIDED that in the event any Swingline Loans or any
Revolving Loans that are Base Rate Loans are prepaid pursuant to subsection
2.4A(i), interest accrued on such Swingline Loans or Revolving Loans up to the
date of such prepayment shall be payable on the next succeeding Interest Payment
Date applicable to Base Rate Loans (or, if earlier, at final maturity).
D. CONVERSION OR CONTINUATION. Subject to the provisions of
subsection 2.6, Company shall have the option (i) to convert at any time all or
any part of its outstanding Revolving Loans equal to $3,000,000 and integral
multiples of $500,000 in excess of that amount (or in the case of a conversion
to Base Rate Loans, $1,000,000 and integral multiples of $500,000 in excess
thereof) from Loans bearing interest at a rate determined by reference to one
basis to Loans bearing interest at a rate determined by reference to an
alternative basis or (ii) upon the expiration of any Interest Period applicable
to a Eurodollar Rate Loan, to continue all or any portion of such Loan equal to
$3,000,000 and integral multiples of $500,000 in excess of that amount as a
Eurodollar Rate Loan, as the case may be; PROVIDED, HOWEVER, that a Eurodollar
Rate Loan may only be converted into a Base Rate Loan on the expiration date of
an Interest Period applicable thereto; and PROVIDED, FURTHER that no Loan may be
made as or converted into a Base Rate Loan during the period from December 24 of
any year to and including January 7 of the immediately succeeding year for the
intended purpose of investing in Securities bearing interest at a rate
determined by reference to any other basis for the purpose of arbitrage or
speculation.
Company shall deliver a Notice of Conversion/Continuation to
Administrative Agent no later than 12:00 noon (New York time) at least one
Business Day in advance of the proposed conversion/continuation date (in the
case of a conversion to a Base Rate Loan), and at least three Business Days in
advance of the proposed conversion/continuation date (in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan). A Notice of
Conversion/Continuation shall specify (i) the proposed conversion/continuation
date (which shall be a Business Day), (ii) the amount of the Loan to be
converted/continued, (iii) the nature of the proposed conversion/continuation
and (iv) in the case of a conversion to, or a continuation of, a Eurodollar Rate
Loan, the requested Interest Period, and that no Potential Event of Default or
Event of Default has occurred and is continuing. In lieu of delivering the
above-described Notice of Conversion/Continuation, Company may give
Administrative Agent telephonic notice by the required time of any proposed
conversion/continuation under this subsection 2.2D; PROVIDED that such notice
shall be promptly confirmed in writing by delivery of a Notice of Conversion/
39
Continuation to Administrative Agent on or before the proposed conversion/
continuation date.
Neither Administrative Agent nor any Lender shall incur any
liability to Company in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to act on behalf of Company or for
otherwise acting in good faith under this subsection 2.2D, and upon conversion
or continuation of the applicable basis for determining the interest rate with
respect to any Loans in accordance with this Agreement pursuant to any such
telephonic notice Company shall have effected a conversion or continuation, as
the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G,
a Notice of Conversion/Continuation for conversion to, or continuation of, a
Eurodollar Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable
on and after the related Interest Rate Determination Date, and Company shall be
bound to effect a conversion or continuation in accordance therewith.
E. DEFAULT RATE. Upon the occurrence and during the continuation of
any Event of Default, the outstanding principal amount of all Loans and, to the
extent permitted by applicable law, any interest payments thereon not paid when
due and any fees and other amounts then due and payable hereunder, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable upon
demand at a rate that is 2% per annum in excess of the interest rate otherwise
payable under this Agreement (with fees and other amounts bearing interest at a
rate that is 2% per annum in excess of the rate payable with respect to Base
Rate Loans); PROVIDED that, in the case of Eurodollar Rate Loans, upon the
expiration of the Interest Period in effect at the time any such increase in
interest rate is effective such Eurodollar Rate Loans shall thereupon become
Base Rate Loans and shall thereafter bear interest payable upon demand at a rate
which is 2% per annum in excess of the interest rate otherwise payable under
this Agreement for Base Rate Loans; PROVIDED, FURTHER that with respect to an
Event of Default other than an Event of Default under subsection 8.1, such
increased interest rates shall not be applicable for 30 days after the
occurrence of such Event of Default. Payment or acceptance of the increased
rates of interest provided for in this subsection 2.2E is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of Administrative
Agent or any Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans shall be computed
on the basis of a 360-day year, for the actual number of days elapsed in the
period during which it accrues. In computing interest on any Loan, the date of
the making of such Loan or the first day of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted from a Eurodollar
Rate Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate
Loan shall be included, and the date of payment of such Loan or the expiration
date of an Interest Period applicable to such Loan or, with respect
40
to a Base Rate Loan being converted to a Eurodollar Rate Loan, the date of
conversion of such Base Rate Loan to such Eurodollar Rate Loan shall be
excluded; PROVIDED that if a Loan is repaid on the same day on which it is made,
one day's interest shall be paid on that Loan.
2.3 FEES.
A. COMMITMENT FEES. Company agrees to pay to Administrative Agent,
for distribution to each Lender in proportion to that Lender's Pro Rata Share of
the Revolving Loan Commitments, commitment fees for the period from and
including the Closing Date to and excluding the Commitment Termination Date
equal to the average of the daily excess of the Revolving Loan Commitments over
the sum of the aggregate principal amount of Revolving Loans outstanding (but
not any Swingline Loans outstanding) PLUS the Letter of Credit Usage then in
effect MULTIPLIED BY the commitment fee percentage set forth in the table below
opposite Company's Leverage Ratio for the four-fiscal quarter period for which
the applicable Margin Determination Certificate is being delivered pursuant to
subsection 6.1(iv):
Commitment
Leverage Ratio Fee Percentage
-------------------- --------------
Greater than or
equal to 4.25:1.00 0.30%
Greater than or
equal to 4.00:1.00
but less than 4.25:1.00 0.275%
Greater than or
equal to 3.50:1.00
but less than 4.00:1.00 0.25%
Greater than or
equal to 3.25:1.00
but less than 3.50:1.00 0.225%
Greater than or
equal to 2.75:1.00
but less than 3.25:1.00 0.20%
Greater than or
equal to 2.00:1.00
but less than 2.75:1.00 0.15%
less than 2:00:1.00 0.125%
41
such commitment fees to be calculated on the basis of a 360-day year and the
actual number of days elapsed and to be payable quarterly in arrears on
February 28 (or 29, as the case may be), May 31, August 31 and November 30 of
each year, commencing on the first such date to occur after the Closing Date,
and on the Commitment Termination Date; PROVIDED that for the period from the
Closing Date through the fourth quarter of Fiscal Year 1997, the commitment fee
shall be 0.25% per annum. Upon delivery of the Margin Determination Certificate
by Company to Administrative Agent pursuant to subsection 6.1(iv), the
applicable commitment fee percentage shall automatically be adjusted in
accordance with such Margin Determination Certificate, such adjustment to become
effective on the next succeeding Business Day following the receipt by
Administrative Agent of such Margin Determination Certificate; PROVIDED that in
the event that Company fails to deliver a Margin Determination Certificate
timely in accordance with the provisions of subsection 6.1(iv), from the time
such Margin Determination Certificate should have been delivered until such date
as such a Margin Determination Certificate is actually delivered, the applicable
commitment fee percentage shall be 0.30% per annum.
B. OTHER FEES. Company agrees to pay to Administrative Agent for
its own account such fees in the amounts and at the times separately agreed upon
between Company and Administrative Agent. Company agrees to pay to
Administrative Agent for the benefit of Lenders, and Administrative Agent
thereupon agrees to pay to Lenders, such other fees in the amounts and at the
times as have been agreed upon between Company and each Lender.
2.4 PREPAYMENTS AND REDUCTIONS IN COMMITMENTS; GENERAL PROVISIONS REGARDING
PAYMENTS.
A. PREPAYMENTS AND REDUCTIONS IN COMMITMENTS.
(i) VOLUNTARY PREPAYMENTS.
(a) Company may, upon written or telephonic notice to
Administrative Agent on or prior to 12:00 Noon (New York time) on the
date of prepayment, which notice, if telephonic, shall be promptly
confirmed in writing, at any time and from time to time prepay, without
premium or penalty, any Swingline Loan in whole or in part on any
Business Day in an aggregate minimum amount of $500,000 and integral
multiples of $100,000 in excess of that amount (or such lesser amount as
shall constitute the aggregate amount of all outstanding Swingline
Loans). Company may, upon one Business Day's prior written or telephonic
notice confirmed in writing to Administrative Agent (which notice
Administrative Agent will promptly transmit by telecopy, telegram, telex
or telephone to each Lender), at any time and from time to time prepay
any other Loans in whole or in part on any Business Day in an aggregate
minimum amount of $1,000,000 and integral multiples of $500,000 in excess
of that amount; PROVIDED, HOWEVER, that upon payment of breakage costs
pursuant to subsection 2.6D, Eurodollar Rate Loans may be prepaid on a
Business Day other than the date of the expiration of the Interest
42
Period applicable thereto. Notice of prepayment having been given as
aforesaid, the principal amount of the Loans specified in such notice
shall become due and payable on the prepayment date specified therein.
Any such voluntary prepayment shall be applied as specified in subsection
2.4A(iv).
(b) In the event of certain refusals by a Lender as
provided in subsection 11.6B to consent to certain proposed changes,
waivers, discharges or terminations with respect to this Agreement which
have been approved by Requisite Lenders, the Company may, subject to its
compliance with the requirements of said subsection 11.6B, upon five
Business Days' written notice to the Administrative Agent (which notice
the Administrative Agent shall promptly transmit to each of the Lenders)
terminate the Revolving Loan Commitment of such Lender so long as all
Loans, together with accrued and unpaid interest, fees and other amounts
owing to such Lender are repaid concurrently with the effectiveness of
such termination (at which time Schedule 2.1 shall be deemed modified to
reflect such changed amounts), and at such time such Lender shall no
longer constitute a "Lender" for purposes of this Agreement, except with
respect to indemnifications under this Agreement (including, without
limitation, subsections 2.6D, 2.7, 3.6, 11.2 and 11.3), which shall
survive as to such repaid Lender.
(ii) VOLUNTARY REDUCTIONS OF REVOLVING LOAN AND SWINGLINE LOAN
COMMITMENTS.
(a) Company may, upon not less than three Business
Days' prior written or telephonic notice confirmed in writing to
Administrative Agent (which notice Administrative Agent will promptly
transmit by telecopy, telegram, telex or telephone to each Lender), at
any time and from time to time terminate in whole or permanently reduce
in part, without premium or penalty, the Revolving Loan Commitments in an
amount up to the amount by which the Revolving Loan Commitments exceed
the Total Utilization of Revolving Loan Commitments at the time of such
proposed termination or reduction; PROVIDED that any such partial
reduction of the Revolving Loan Commitments shall be in an aggregate
minimum amount of $5,000,000 and integral multiples of $1,000,000 in
excess of that amount. Company may, upon same day prior written or
telephonic notice confirmed in writing to Administrative Agent (which
notice Administrative Agent will promptly transmit by telecopy, telegram,
telex or telephone to Swingline Lender), at any time and from time to
time terminate in whole or permanently reduce in part, without premium or
penalty, the Swingline Loan Commitment in an amount up to the amount by
which the Swingline Loan Commitment exceeds the Swingline Loans at the
time of such proposed termination or reduction; PROVIDED that any such
partial reduction of the Swingline Loan Commitment shall be in an
aggregate minimum amount of $500,000 and integral multiples of $100,000
in excess of that amount. Company's notice to Administrative Agent shall
designate (i) the date (which shall be a Business Day) of such
termination or reduction, (ii) the amount of any partial reduction, and
(iii) if Company desires to terminate or
43
reduce the Senior Debt Repurchase Facility or the Subordinated Debt
Repurchase Facility that such reduction applies to the Senior Debt
Repurchase Facility or the Subordinated Debt Repurchase Facility, as the
case may be, and such termination or reduction shall be effective on the
date specified in Company's notice, and in the case of Revolving Loan
Commitments, shall reduce the Revolving Loan Commitment of each Lender
proportionately to its Pro Rata Share thereof and, in the case of the
Swingline Loan Commitment, shall reduce the Swingline Loan Commitment of
the Swingline Loan Lender in the amount specified in Company's notice.
(b) In the event of certain refusals by a Lender as
provided in subsection 11.6B to consent to certain proposed changes,
waivers, discharges or terminations with respect to this Agreement which
have been approved by Requisite Lenders, the Company may, subject to its
compliance with the requirements of said subsection 11.6B, upon five
Business Days' written notice to the Administrative Agent (which notice
the Administrative Agent shall promptly transmit to each of the Lenders)
terminate the Revolving Loan Commitment of such Lender so long as all
Loans, together with accrued and unpaid interest, fees and other amounts
owing to such Lender are repaid concurrently with the effectiveness of
such termination (at which time Schedule 2.1 shall be deemed modified to
reflect such changed amounts), and at such time such Lender shall no
longer constitute a "Lender" for purposes of this Agreement, except with
respect to indemnifications under this Agreement (including, without
limitation, subsections 2.6D, 2.7, 3.6, 11.2 and 11.3), which shall
survive as to such repaid Lender.
(iii) MANDATORY PREPAYMENTS AND MANDATORY REDUCTIONS OF
REVOLVING LOAN COMMITMENTS. The Loans shall be prepaid and/or the
Revolving Loan Commitments shall be permanently reduced in the amounts
and under the circumstances set forth below, all such prepayments and/or
reductions to be applied as set forth below or as more specifically
provided in subsection 2.4A(iv):
(a) PREPAYMENTS AND REDUCTIONS FROM ASSET SALES.
Company shall prepay the Loans and/or the Revolving Loan
Commitments shall be permanently reduced in an amount equal to
Net Cash Proceeds of Asset Sales in any Fiscal Year in excess of
$10,000,000 (the "Excess Asset Sale Proceeds"); PROVIDED,
however, that so long as no Event of Default or Potential Event
of Default shall have occurred and be continuing, Excess Asset
Sale Proceeds which are reinvested as Acquisition Expenditures or
as Consolidated Capital Expenditures in the business of Company
and its Subsidiaries within twelve months of the date of such
Asset Sale, up to a maximum aggregate amount of $75,000,000 from
the Closing Date for such reinvested Excess Asset Sale Proceeds,
need not be applied to prepay the Loans and/or permanently reduce
the Revolving Loan Commitments. Any prepayment from such
unreinvested Excess Asset Sale Proceeds shall be made by Company
within one Business Day after the termination of such
44
twelve month period. If, following the receipt by Company or any
of its Subsidiaries of Net Cash Proceeds from Asset Sales,
Company is required to apply or cause to be applied any portion
of such Net Cash Proceeds to prepay any Indebtedness permitted
pursuant to subsections 7.1(v), (vii) or (xiii), then,
notwithstanding anything contained in this subsection
2.4A(iii)(a), Company shall prepay the Loans and/or reduce the
Revolving Loan Commitments as set forth in this subsection
2.4A(iii)(a) so as to eliminate any obligation to prepay such
Indebtedness.
(b) PREPAYMENTS AND REDUCTIONS OF DEBT REPURCHASE
FACILITIES.
(i) On February 1, 1998, the Revolving Loan
Commitments shall be permanently reduced by an amount equal to
the difference (if positive) between (1)(A) $170,000,000 MINUS
(B) any commitment reductions made to the Subordinated Debt
Repurchase Facility pursuant to subsection 2.4A(ii) and (2) the
aggregate amount of Debt Repurchases made of the 10 3/4%
Subordinated Notes and the 11-1/2% Senior Discount Debentures
(other than any such 11-1/2% Senior Discount Debentures
repurchased from up to $95,000,000 in proceeds of the Common
Stock Offering) from the Closing Date to and including
February 1, 1998; PROVIDED that if the amount of such Debt
Repurchases is $150,000,000 or greater, no such reduction need be
made.
(ii) On July 15, 2000, the Revolving Loan
Commitments shall be permanently reduced by an amount equal to
the difference between (1)(A) $80,000,000 MINUS (B) any
commitment reductions made to the Senior Debt Repurchase Facility
pursuant to subsection 2.4A(ii) and (2) the aggregate amount of
Debt Repurchases made of the Senior Notes from the Closing Date
to and including July 15, 2000.
(iii) On the date of the issuance of any
refinancing Senior Indebtedness pursuant to subsection 7.1(vii),
the Senior Debt Repurchase Facility shall be permanently reduced
by an amount equal to the principal amount of the refinancing
Senior Indebtedness so issued and the Revolving Loan Commitments
shall be permanently reduced to the same extent as the reduction
in the Senior Debt Repurchase Facility.
(iv) Notwithstanding the foregoing, in no event
shall the Revolving Loan Commitments be reduced below
$350,000,000 pursuant to the operation of this subsection
2.4A(iii)(b).
(c) PREPAYMENTS AND REDUCTIONS DUE TO ISSUANCE OF DEBT
SECURITIES. Within one Business Day of the date of receipt by
Parent or Company of the Cash proceeds (any such proceeds, net of
underwriting discounts and commissions and other reasonable costs
and expenses
45
associated therewith, being the "Net Debt Proceeds") from the
issuance or sale of any debt Securities of Company or Parent or
their respective Subsidiaries (other than the BHFS Group or
Foreign Subsidiaries) permitted pursuant to subsection 7.1(xiii),
Company shall prepay the Loans and/or the Revolving Loan
Commitments shall be permanently reduced in an aggregate amount
equal to 50% of such Net Debt Proceeds; PROVIDED that the
Company's pro forma Leverage Ratio is greater than or equal to
2.25:1.0. If the Company's pro forma Leverage Ratio is less than
2.25:1.0, the Company shall not be required to prepay the Loans
and/or permanently reduce the Revolving Loan Commitments.
(d) SCHEDULED MANDATORY COMMITMENT REDUCTIONS. On
December 31, 2002, the Revolving Loan Commitments shall be
permanently and automatically reduced by $100,000,000 and such
reduction shall reduce the Revolving Loan Commitment of each
Lender proportionately to its Pro Rata Share.
(e) PREPAYMENTS DUE TO RESTRICTIONS OF REVOLVING LOAN
COMMITMENTS. Company shall from time to time prepay FIRST the
Swingline Loans and SECOND the Revolving Loans to the extent
necessary so that the Total Utilization of Revolving Loan
Commitments shall not at any time exceed the Revolving Loan
Commitments then in effect. Any such mandatory prepayments shall
be applied as specified in subsection 2.4A(iv) and shall not
reduce the amount of the Revolving Loan Commitments then in
effect.
(f) CALCULATIONS OF NET CASH PROCEEDS AMOUNTS;
ADDITIONAL PREPAYMENTS AND REDUCTIONS BASED ON SUBSEQUENT
CALCULATIONS. Concurrently with any prepayment of the Loans
and/or reduction of the Revolving Loan Commitments pursuant to
subsections 2.4A(iii)(a)-(c), Company shall deliver to
Administrative Agent an Officer's Certificate demonstrating the
calculation of the amount of the applicable Excess Asset Sale
Proceeds or Net Debt Proceeds (as such terms are defined in
subsections 2.4A(iii)(a) and (c)) or of the amount of the unused
availability under the Subordinated Debt Repurchase Facility or
the Senior Debt Repurchase Facility, as the case may be, that
gave rise to such prepayment and/or reduction. In the event that
Company shall subsequently determine that the actual Excess Asset
Sale Proceeds, Net Debt Proceeds or such unused availability was
greater than the amount set forth in such Officer's Certificate,
Company shall promptly make an additional prepayment of the Loans
(and/or, if applicable, the Revolving Loan Commitments shall be
permanently reduced) in an amount equal to the amount of such
excess or additional portion, and Company shall concurrently
therewith deliver to Administrative Agent an Officer's
Certificate demonstrating the derivation of
46
the additional Excess Asset Sale Proceeds, Net Debt Proceeds or
such unused availability resulting in such excess or additional
portion.
(iv) APPLICATION OF PREPAYMENTS.
(a) APPLICATION OF VOLUNTARY PREPAYMENTS. Any
voluntary prepayments pursuant to subsection 2.4A(i) shall be
applied to the Loans specified by Company in the applicable
notice of prepayment; PROVIDED that in the event Company fails to
specify the Loans to which any such prepayment shall be applied,
such prepayment shall be applied FIRST to repay outstanding
Swingline Loans to the full extent thereof, and SECOND to repay
outstanding Revolving Loans to the full extent thereof.
(b) APPLICATION OF MANDATORY PREPAYMENTS. Any amount
(the "APPLIED AMOUNT") required to be applied as a mandatory
prepayment of the Loans and/or a reduction of the Revolving Loan
Commitments pursuant to subsections 2.4A(iii)(a)-(c) shall be
applied FIRST to prepay the Swingline Loans to the full extent
thereof and to permanently reduce the Revolving Loan Commitments
by the amount of any such prepayment or commitment reduction,
SECOND, to the extent of any remaining portion of the Applied
Amount, to prepay the Revolving Loans to the full extent thereof
and to further permanently reduce the Revolving Loan Commitments
by the amount of any such prepayment or commitment reduction, and
THIRD, to the extent of any remaining portion of the Applied
Amount, to further permanently reduce the Revolving Loan
Commitments to the full extent thereof.
(c) APPLICATION OF PREPAYMENTS TO BASE RATE LOANS AND
EURODOLLAR RATE LOANS. Considering Swingline Loans and Revolving
Loans being prepaid separately, any prepayment shall be applied
first to Base Rate Loans to the full extent thereof before
application to Eurodollar Rate Loans, in each case in a manner
which minimizes the amount of any payments required to be made by
Company pursuant to subsection 2.6D.
B. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) MANNER AND TIME OF PAYMENT. All payments by Company of
principal, interest, fees and other Obligations hereunder and under the
Notes shall be made in same day funds and without defense, setoff or
counterclaim, free of any restriction or condition, and delivered to
Administrative Agent not later than 12:00 Noon (New York time) on the
date due at its office located at One Bankers Trust Plaza, New York, New
York for the account of Lenders; funds received by Administrative Agent
after that time on such due date may, at Administrative Agent's
discretion, be deemed to have been paid by Company on the next succeeding
Business Day. Company hereby authorizes Administrative Agent to charge
its accounts with Administrative Agent in order to cause timely payment
to
47
be made to Administrative Agent of all principal, interest, fees and
expenses due hereunder (subject to sufficient funds being available in
its accounts for that purpose).
(ii) APPLICATION OF PAYMENTS TO PRINCIPAL AND INTEREST. All
payments in respect of the principal amount of any Loan shall include
payment of accrued interest on the principal amount being repaid or
prepaid, and all such payments shall be applied to the payment of
interest before application to principal; PROVIDED that accrued interest
on the principal amount of any Base Rate Loan being repaid or prepaid on
a date other than an Interest Payment Date shall be payable on the
earlier of the final maturity date of such Loan or the Interest Payment
Date next succeeding the date of such repayment or prepayment.
(iii) APPORTIONMENT OF PAYMENTS. Aggregate principal and
interest payments shall be apportioned among all outstanding Loans to
which such payments relate, in each case proportionately to Lenders'
respective Pro Rata Shares. Administrative Agent shall promptly
distribute to each Lender, at its primary address set forth below its
name on the appropriate signature page hereof or at such other address as
such Lender may request, its Pro Rata Share of all such payments received
by Administrative Agent and the commitment fees of such Lender, if any,
when received by Administrative Agent pursuant to subsection 2.3.
Notwithstanding the foregoing provisions of this subsection 2.4B(iii),
if, pursuant to the provisions of subsection 2.6C, any Notice of
Conversion/Continuation is withdrawn as to any Affected Lender or if any
Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of
any Eurodollar Rate Loans, Administrative Agent shall give effect thereto
in apportioning payments received thereafter.
(iv) PAYMENTS ON BUSINESS DAYS. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a Business
Day, such payment shall be made on the next succeeding Business Day and
such extension of time shall be included in the computation of the
payment of interest hereunder or of the commitment fees hereunder, as the
case may be.
(v) NOTATION OF PAYMENT. Each Lender agrees that before
disposing of any Note held by it, or any part thereof (other than by
granting participations therein), that Lender will make a notation
thereon (or on an allonge thereto) of all Loans evidenced by that Note
and all principal payments previously made thereon and of the date to
which interest thereon has been paid; PROVIDED that the failure to make
(or any error in the making of) a notation of any Loan made under such
Note shall not limit or otherwise affect the obligations of Company
hereunder or under such Note with respect to any Loan or any payments of
principal or interest on such Note.
48
2.5 USE OF PROCEEDS.
A. REVOLVING LOANS; SWINGLINE LOANS. The proceeds of any Revolving
Loans or of any Swingline Loans shall be applied by Company for working capital
or general corporate purposes of the Company and its Subsidiaries, including
without limitation (i) the financing of Acquisitions permitted by subsection 7.7
hereof, (ii) the repayment in full of all Indebtedness outstanding under the
Existing Credit Agreement, (iii) the repurchase or redemption of the aggregate
principal amount of the Company's outstanding 10-3/4% Subordinated Notes,
(iv) the repurchase or redemption of the outstanding shares of the Preferred
Stock and/or the 11-1/2% Senior Discount Debentures, (v) the issuance of Standby
and Commercial Letters of Credit up to a $20,000,000 sublimit, and (vi) the
payment of fees, premiums and expenses incurred as a result of the Transactions.
B. MARGIN REGULATIONS. No portion of the proceeds of any borrowing
under this Agreement shall be used by Company or any of its Subsidiaries in any
manner that might cause the borrowing or the application of such proceeds to
violate Regulation G, Regulation U, Regulation T or Regulation X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board or
to violate the Exchange Act, in each case as in effect on the date or dates of
such borrowing and such use of proceeds.
2.6 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS.
Notwithstanding any other provision of this Agreement to the
contrary, the following provisions shall govern with respect to Eurodollar Rate
Loans as to the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as
practicable after 10:00 A.M. (New York time) on each Interest Rate Determination
Date, Administrative Agent shall determine (which determination shall, absent
manifest error, be final, conclusive and binding upon all parties) the interest
rate that shall apply to the Eurodollar Rate Loans for which an interest rate is
then being determined for the applicable Interest Period and shall promptly give
notice thereof (in writing or by telephone confirmed in writing) to Company and
each Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event
that Administrative Agent shall have determined (which determination shall be
final and conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date with respect to any Eurodollar Rate Loans, that by reason of
circumstances affecting the interbank Eurodollar market, adequate and fair means
do not exist for ascertaining the interest rate applicable to such Loans on the
basis provided for in the definition of Adjusted Eurodollar Rate, Administrative
Agent shall on such date give notice (by telecopy or by telephone confirmed in
writing) to Company and each Lender of such determination, whereupon (i) no
Loans may be made as, or converted to, Eurodollar Rate Loans, as the case may
be, until such time as Administrative Agent notifies Company and Lenders that
the circumstances giving rise to such notice no longer exist and (ii) any
49
Notice of Borrowing or Notice of Conversion/Continuation given by Company with
respect to the Loans in respect of which such determination was made shall be
deemed to be a Notice of Borrowing requesting Base Rate Loans or a Notice of
Conversion/Continuation requesting conversion to or continuation as Base Rate
Loans, or at Company's option, shall be deemed to be of no force and effect.
C. ILLEGALITY OR IMPRACTICABILITY OF EURODOLLAR RATE LOANS. In the
event that on any date any Lender shall have determined (which determination
shall be final and conclusive and binding upon all parties hereto but shall be
made only after consultation with Company and Administrative Agent) that the
making, maintaining or continuation of its Eurodollar Rate Loans (i) has become
unlawful as a result of compliance by such Lender in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or would conflict
with any such treaty, governmental rule, regulation, guideline or order not
having the force of law even though the failure to comply therewith would not be
unlawful) or (ii) has become impracticable, or would cause such Lender material
hardship, as a result of contingencies occurring after the date of this
Agreement which materially and adversely affect the interbank Eurodollar market,
or the position of such Lender in that market, then, and in any such event, such
Lender shall be an "AFFECTED LENDER" and it shall on or promptly following that
day give notice (by telecopy or by telephone confirmed in writing) to Company
and Administrative Agent of such determination (which notice Administrative
Agent shall promptly transmit to each other Lender). Thereafter (a) the
obligation of the Affected Lender to make Loans as, or to convert Loans to,
Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by
the Affected Lender, (b) to the extent such determination by the Affected Lender
relates to a Eurodollar Rate Loan then being requested by Company pursuant to a
Notice of Borrowing or a Notice of Conversion/Continuation, the Affected Lender
shall make such Loan as (or convert such Loan to, as the case may be) a Base
Rate Loan, (c) the Affected Lender's obligation to maintain its outstanding
Eurodollar Rate Loans (the "AFFECTED LOANS"), shall be terminated at the earlier
to occur of the expiration of the Interest Period then in effect with respect to
the Affected Loans or when required by law, and (d) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such termination.
Once the conditions causing a Lender to be an Affected Lender no longer exist,
such Lender shall, promptly after it becomes aware thereof, withdraw the notice
that it is an Affected Lender by giving notice (by telecopy or by telephone
confirmed in writing) to Company and Administrative Agent and such Lender's
obligations to make Eurodollar Rate Loans hereunder shall be immediately
reinstated. Notwithstanding the foregoing, to the extent a determination by an
Affected Lender as described above relates to a Eurodollar Rate Loan then being
requested by Company pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, Company shall have the option, subject to the
provisions of subsection 2.6D, to rescind such Notice of Borrowing or Notice of
Conversion/Continuation as to all Lenders by giving notice (by telecopy or by
telephone confirmed in writing) to Administrative Agent of such rescission on
the date on which the Affected Lender gives notice of its determination as
described above (which notice of rescission Administrative Agent shall promptly
transmit to each other Lender). Except as provided in the immediately preceding
sentence, nothing in this subsection 2.6C shall affect the
50
obligation of any Lender other than an Affected Lender to make or maintain Loans
as, or to convert Loans to, Eurodollar Rate Loans in accordance with the terms
of this Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST
PERIODS. Company shall compensate each Lender, upon written request by that
Lender (which request shall be signed by an officer or employee of such Lender
with knowledge and responsibility for such matters and shall set forth in
reasonable detail the basis for requesting such amounts), for all reasonable
losses, expenses and liabilities (including, without limitation, any interest
paid by that Lender to lenders of funds borrowed by it to make or carry its
Eurodollar Rate Loans and any loss, expense or liability sustained by that
Lender in connection with the liquidation or re-employment of such funds in the
Eurodollar market) which that Lender may sustain: (i) if for any reason (other
than a default by that Lender) a borrowing of any Eurodollar Rate Loan does not
occur on a date specified therefor in a Notice of Borrowing or a telephonic
request for borrowing, or a conversion to or continuation of any Eurodollar Rate
Loan does not occur on a date specified therefor in a Notice of Conversion/
Continuation or a telephonic request for conversion or continuation, (ii) if any
prepayment or conversion of any of its Eurodollar Rate Loans occurs on a date
that is not the last day of an Interest Period applicable to that Loan, (iii) if
any prepayment of any of its Eurodollar Rate Loans is not made on any date
specified in a notice of prepayment given by Company, or (iv) as a consequence
of any other default by Company to repay its Eurodollar Rate Loans when required
by the terms of this Agreement.
E. BOOKING OF EURODOLLAR RATE LOANS. Any Lender may make, carry or
transfer Eurodollar Rate Loans at, to, or for the account of any of its branch
offices or the office of an Affiliate of that Lender.
F. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR RATE LOANS.
Calculation of all amounts payable to a Lender under this subsection 2.6 and
under subsection 2.7A shall be made as though that Lender had actually funded
each of its relevant Eurodollar Rate Loans through the purchase of a Eurodollar
deposit bearing interest at the rate obtained pursuant to clause (i) of the
definition of Adjusted Eurodollar Rate in an amount equal to the amount of such
Eurodollar Rate Loan and having a maturity comparable to the relevant Interest
Period and through the transfer of such Eurodollar deposit from an offshore
office of that Lender to a domestic office of that Lender in the United States
of America; PROVIDED, HOWEVER, that each Lender may fund each of its Eurodollar
Rate Loans in any manner it sees -fit and the foregoing assumptions shall be
utilized only for the purposes of calculating amounts payable under this
subsection 2.6 and under subsection 2.7A.
G. EURODOLLAR RATE LOANS AFTER DEFAULT. Unless Requisite Lenders
agree otherwise, after the occurrence of and during the continuation of a
Potential Event of Default or an Event of Default, (i) Company may not elect to
have a Loan be made or maintained as, or converted to, a Eurodollar Rate Loan
after the expiration of any Interest
51
Period then in effect for that Loan and (ii) subject to the provisions of
subsection 2.6D, any Notice of Borrowing or Notice of Conversion/Continuation
given by Company with respect to a requested borrowing or conversion/
continuation that has not yet occurred shall be deemed to be rescinded by
Company.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS AND TAXES. In the event that
any Lender shall determine (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto) that any law, treaty
or governmental rule, regulation or order, or any change therein or in the
interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority, in each case that
becomes effective after the date hereof, or compliance by such Lender with any
guideline, request or directive issued or made after the date hereof by any
central bank, the National Association of Insurance Commissioners ("NAIC") or
other governmental or quasi-governmental authority (whether or not having the
force of law):
(i) subjects such Lender (or its applicable lending office)
to any additional Tax (other than any Tax on the overall net income of
such Lender) with respect to this Agreement or any of the Loans or any of
its obligations hereunder, or changes the basis of taxation of payments
to such Lender (or its applicable lending office) of principal, interest,
fees or any other amount payable hereunder (except for changes in the
rate of Tax on the overall net income of such Lender or its applicable
lending office);
(ii) imposes, modifies or holds applicable any reserve
(including without limitation any marginal, emergency, supplemental,
special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement against assets held by, or deposits or
other liabilities in or for the account of, or advances or loans by, or
other credit extended by, or any other acquisition of funds by, any
office of such Lender (other than any such reserve or other requirements
with respect to Eurodollar Rate Loans that are reflected in the
definition of Adjusted Eurodollar Rate); or
(iii) imposes any other condition on or affecting such Lender
(or its applicable lending office), its obligations hereunder or the
interbank Eurodollar market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable lending office) with
respect thereto; then, in any such case, Company shall promptly pay to such
Lender, upon demand, such additional amount or amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its sole discretion shall determine) as
52
may be necessary to compensate such Lender on an after-tax basis for any such
increased cost or reduction in amounts received or receivable hereunder. Such
Lender shall deliver to Company a written statement, signed by an officer or
employee of such Lender with knowledge and responsibility for such matters
setting forth in reasonable detail the basis for calculating the additional
amounts owed to such Lender under this subsection 2.7A, which statement shall be
conclusive and binding upon all parties hereto absent manifest error.
B. WITHHOLDING OF TAXES.
(i) PAYMENTS TO BE FREE AND CLEAR. All sums payable by
Company under this Agreement and the other Loan Documents shall be paid
free and clear of and (except to the extent required by law) without any
deduction or withholding on account of any Tax imposed, levied,
collected, withheld or assessed by or within the United States of America
or any political subdivision in or of the United States of America or any
other jurisdiction from or to which a payment is made by or on behalf of
Company or by any federation or organization of which the United States
of America or any such jurisdiction is a member at the time of payment.
(ii) GROSSING-UP OF PAYMENTS. If Company or any other Person
is required by law to make any deduction or withholding on account of any
such Tax from any sum paid or payable by Company to Administrative Agent
or any Lender under any of the Loan Documents:
(a) Company shall notify Administrative Agent of any
such requirement or any change in any such requirement as soon as
Company becomes aware of it;
(b) Company shall pay any such Tax before the date on
which penalties attach thereto, such payment to be made (if the
liability to pay is imposed on Company) for its own account or
(if that liability is imposed on Administrative Agent or such
Lender, as the case may be) on behalf of and in the name of
Administrative Agent or such Lender;
(c) the sum payable by Company in respect of which the
relevant deduction, withholding or payment is required shall be
increased to the extent necessary to ensure that, after the
making of that deduction, withholding or payment, Administrative
Agent or such Lender, as the case may be, receives on the due
date and retains (free from any liability in respect of any such
deduction, withholding or payment) a net sum equal to what it
would have received and so retained had no such deduction,
withholding or payment been required or made; and
(d) within 30 days after paying any sum from which it
is required by law to make any deduction or withholding, and
within 30 days after the
53
due date of payment of any Tax which it is required by clause (b)
above to pay, Company shall deliver to Administrative Agent
evidence satisfactory to the other affected parties of such
deduction, withholding or payment and of the remittance thereof
to the relevant taxing or other authority;
PROVIDED that no such additional amount shall be required to be paid to
any Lender under clause (c) above except to the extent that any change
after the date hereof (in the case of each Lender listed on the signature
pages hereof) or after the date of the Assignment Agreement pursuant to
which such Lender became a Lender (in the case of each other Lender) in
any such requirement for a deduction, withholding or payment as is
mentioned therein shall result in an increase in the rate of such
deduction, withholding or payment from that in effect at the date of this
Agreement or at the date of such Assignment Agreement, as the case may
be, in respect of payments to such Lender.
(iii) EVIDENCE OF EXEMPTION FROM U.S. WITHHOLDING TAX.
(a) Each Lender that is organized under the
laws of any jurisdiction other than the United States or
any state or other political subdivision thereof (for
purposes of this subsection 2.7B(iii), a "NON-US LENDER")
shall deliver to Administrative Agent for transmission to
Company, on or prior to the Closing Date (in the case of
each Lender listed on the signature pages hereof) or on
the date of the Assignment Agreement pursuant to which it
becomes a Lender (in the case of each other Lender), and
at such other times as may be necessary in the
determination of Company or Administrative Agent (each in
the reasonable exercise of its discretion), (1) two
original copies of Internal Revenue Service Form 1001 or
4224 (or any successor forms), properly completed and duly
executed by such Lender, together with any other
certificate or statement of exemption required under the
Internal Revenue Code or the regulations issued thereunder
to establish that such Lender is not subject to deduction
or withholding of United States federal income tax with
respect to any payments to such Lender of principal,
interest, fees or other amounts payable under any of the
Loan Documents or (2) if such Lender is not a "bank" or
other person described in Section 881(c)(3) of the
Internal Revenue Code and cannot deliver either Internal
Revenue Service Form 1001 or 4224 pursuant to clause (1)
above, a Certificate re Non-Bank Status together with two
original copies of Internal Revenue Service Form W-8 (or
any successor form), properly completed and duly executed
by such Lender, together with any other certificate or
statement of exemption required under the Internal Revenue
Code or the regulations issued thereunder to establish
that such Lender is not subject to deduction or
withholding of United
54
States federal income tax with respect to any payments to such
Lender of interest payable under any of the Loan Documents.
(b) Each Lender required to deliver any forms,
certificates or other evidence with respect to United
States federal income tax withholding matters pursuant to
subsection 2.7B(iii)(a)(2) hereby agrees, from time to
time after the initial delivery by such Lender of such
forms, certificates or other evidence, whenever a lapse in
time or change in circumstances renders such forms,
certificates or other evidence obsolete or inaccurate in
any material respect, such Lender shall (1) deliver to
Administrative Agent for transmission to Company a
Certificate re Non-Bank Status and two original copies of
Internal Revenue Service Form W-8, properly completed and
duly executed by such Lender, together with any other
certificate or statement of exemption required in order to
confirm or establish that such Lender is not subject to
deduction or withholding of United States federal income
tax with respect to payments to such Lender of interest
payable under the Loan Documents or (2) immediately notify
Administrative Agent and Company of its inability to
deliver any such forms, certificates or other evidence.
(c) Company shall not be required to pay any
additional amount to any Non-US Lender under clause (c) of
subsection 2.7B(ii) if such Lender shall have failed to
satisfy the requirements of subsection 2.7B(iii)(a);
PROVIDED that if such Lender shall have satisfied such
requirements on the Closing Date (in the case of each
Lender listed on the signature pages hereof) or on the
date of the Assignment Agreement pursuant to which it
became a Lender (in the case of each other Lender),
nothing in this subsection 2.7B(iii)(c) shall relieve
Company of its obligation to pay any additional amounts
pursuant to clause (c) of subsection 2.7B(ii) in the event
that, as a result of any change in any applicable law,
treaty or governmental rule, regulation or order, or any
change in the interpretation, administration or
application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence
at a subsequent date establishing the fact that such
Lender is not subject to withholding as described in
subsection 2.7B(iii)(a).
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have determined
that the adoption, effectiveness, phase-in or applicability of any law, rule or
regulation (or any provision thereof) after the date hereof regarding capital
adequacy, or any change therein or in the interpretation or administration
thereof by any governmental authority, central bank, NAIC or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender (or its applicable lending office) with any guideline, request or
directive regarding capital adequacy (whether or not having the force of law) of
55
any such governmental authority, central bank, NAIC or comparable agency, has or
would have the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of, or with
reference to, such Lender's Loans or Commitments or Letters of Credit or
participations therein or other obligations hereunder with respect to the Loans
or the Letters of Credit to a level below that which such Lender or such
controlling corporation could have achieved but for such adoption,
effectiveness, phase-in, applicability, change or compliance (taking into
consideration the policies of such Lender or such controlling corporation with
regard to capital adequacy), then from time to time, within five Business Days
after demand by such Lender (with a copy of such demand to Administrative
Agent), Company shall pay to such Lender such additional amount or amounts as
will compensate such Lender or such controlling corporation on an after-tax
basis for such reduction. Each Lender, upon determining in good faith that any
additional amounts will be payable pursuant to this subsection 2.7C, will give
prompt written notice thereof to Company, which notice shall be signed by an
officer or employee of such Lender with knowledge and responsibility for such
matters and shall set forth in reasonable detail the basis of the calculation of
such additional amounts, although the failure to give any such notice shall not
release or diminish any of Company's obligations to pay additional amounts under
this subsection 2.7C.
2.8 LENDERS' OBLIGATION TO MITIGATE.
Each Lender agrees that, as promptly as practicable after the
officer of such Lender responsible for administering the Loans or Letters of
Credit of such Lender under this Agreement becomes aware of the occurrence of an
event or the existence of a condition that would cause such Lender to become an
Affected Lender or that would entitle such Lender to receive payments under
subsection 2.7A, 2.7C or 3.6, it will, to the extent not inconsistent with such
Lender's internal policies, use reasonable efforts (i) to make, fund or maintain
the Commitments of such Lender or the affected Loans or Letters of Credit of
such Lender through another lending office of such Lender, or (ii) take such
other measures as such Lender may deem reasonable, if as a result thereof the
circumstances which would cause such Lender to be an Affected Lender would cease
to exist or the additional amounts which would otherwise be required to be paid
to such Lender pursuant to subsection 2.7A, 2.7C or 3.6 would be materially
reduced and if, as determined by such Lender in its sole discretion, the making,
funding or maintaining of such Commitments or Loans or Letters of Credit through
such other lending office or in accordance with such other measures, as the case
may be, would not otherwise materially adversely affect such Commitments or
Loans or Letters of Credit or the interests of such Lender; PROVIDED that such
Lender will not be obligated to utilize such other lending office pursuant to
this subsection 2.8 unless Company agrees to pay all incremental expenses
incurred by such Lender in utilizing such other lending office. A certificate
as to the amount of any such expenses payable by Company pursuant to this
subsection 2.8 (setting forth in reasonable detail the basis for requesting such
amount) submitted by such Lender to Company shall be conclusive absent manifest
error.
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2.9 REPLACEMENT OF A LENDER.
A. In the event that any Lender shall give notice to Company that
such Lender is an Affected Lender or that such Lender is entitled to receive
payments under subsection 2.7 or subsection 3.6 or in the event that any Lender
is unable to fund Loans as described in subsection 4.2B(iv), and unless the
circumstances which have caused such Lender to be an Affected Lender or which
entitle such Lender to receive such payments or which cause such Lender to be
unable to fund Loans are no longer in effect, Company may, if no Event of
Default or Potential Event of Default then exists, if such Lender is not then an
Issuing Lender and such Lender shall fail to withdraw such notice within 5
Business Days after Company's request for such withdrawal, upon ten days' prior
written notice by Company to Administrative Agent and such Lender, elect to
cause such Lender to assign its Loans and Commitments in full to an Eligible
Assignee in accordance with the provisions of subsection 11.1B.
B. In the event that any Lender is a Defaulting Lender, and unless
the Default Period for such Defaulting Lender is no longer continuing, Company
may, if no Event of Default or Potential Event of Default then exists, if such
Lender is not then an Issuing Lender and such Lender shall fail to cure the
default as a result of which it has become a Defaulting Lender within five
Business Days after Company's request that it cure such default, elect to cause
such Lender to assign its Loans and Commitments in full to an Eligible Assignee
in accordance with the provisions of subsection 11.1B.
C. In the event of certain refusals by a Lender as provided in
subsection 11.6B to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Requisite Lenders, the Company may, if no Event of Default or Potential Event of
Default then exists, upon five Business Days' written notice to the
Administrative Agent (which notice the Administrative Agent shall promptly
transmit to each of the Lenders) repay all Loans, together with accrued and
unpaid interest, fees and other amounts owing to such Lender (a "Replaced
Lender") in accordance with, and subject to the requirements of, said subsection
11.6B so long as (A) in the case of the repayment of Revolving Loans of any
Lender pursuant to this subsection 2.9C the Revolving Loan Commitment of such
Lender is terminated concurrently with such repayment (at which time Schedule
2.1 shall be deemed modified to reflect the changed Revolving Loan Commitments)
and (B) in the case of the repayment of Loans of any Lender the consents
required by subsection 11.6B in connection with the repayment pursuant to this
subsection 2.9C have been obtained.
(i) At the time of any replacement pursuant to this
subsection 2.9C, the lender replacing such Replaced Lender (the
"Replacement Lender") shall enter into one or more assignment agreements,
in form and substance satisfactory to the Administrative Agent, pursuant
to which the Replacement Lender shall acquire all of the Commitments and
outstanding Loans of, and participations in Letters of Credit by, the
Replaced Lender and, in connection therewith, shall pay to (x) the
Replaced Lender in respect thereof an amount equal to the sum of (A) an
amount
57
equal to the principal of, and all accrued interest on, all outstanding
Loans of the Replaced Lender, (B) an amount equal to all unpaid drawings
with respect to Letters of Credit that have been funded by (and not
reimbursed to) such Replaced Lender, together with all then unpaid
interest with respect thereto at such time and (C) an amount equal to all
accrued, but theretofore unpaid, fees owing to the Replaced Lender and
(y) the appropriate Issuing Lender an amount equal to such Replaced
Lender's Pro Rata Share of any unpaid drawings with respect to Letters of
Credit (which at such time remains an unpaid drawing), to the extent such
amount was not theretofore funded by such Replaced Lender; and
(ii) all obligations of the Company owing to the Replaced
Lender (excluding those specifically described in clause (i) above in
respect of which the assignment purchase price has been, or is
concurrently being, paid) shall be paid in full to such Replaced Lender
concurrently with such replacement.
Upon the execution of the respective assignment documentation,
the payment of amounts referred to in clauses (i) and (ii) above and, if so
requested by the Replacement Lender, delivery to the Replacement Lender of the
appropriate Note or Notes executed by the Company, the Replacement Lender shall
become a Lender hereunder and the Replaced Lender shall cease to constitute a
Lender hereunder, except with respect to Company's obligations regarding the
indemnification and clawback provisions under this Agreement, which shall
survive for the benefit of such Replaced Lender. Notwithstanding anything to
the contrary contained above, no Issuing Lender may be replaced hereunder at any
time while it has Letters of Credit outstanding hereunder unless arrangements
satisfactory to such Issuing Lender (including the furnishing of a standby
letter of credit in form and substance, and issued by an issuer satisfactory to
such Issuing Lender or the furnishing of cash collateral in amounts and pursuant
to arrangements satisfactory to such Issuing Lender) have been made with respect
to such outstanding Letters of Credit.
2.10 DEFAULTING LENDERS.
Anything contained herein to the contrary notwithstanding, in the
event that any Lender having a Revolving Loan Commitment (a "DEFAULTING LENDER")
defaults (a "FUNDING DEFAULT") in its obligation to fund any Revolving Loan (a
"DEFAULTED REVOLVING LOAN") in accordance with subsection 2.1, then (i) during
any Default Period (as defined below) with respect to such Defaulting Lender,
the Revolving Loan Exposure of such Defaulting Lender shall be determined as
though the Revolving Loan Commitments of such Lender have been terminated (but
such Commitments shall not actually be terminated) for purposes of voting on any
matters (including without limitation the granting of any consents or waivers)
with respect to any of the Loan Documents; (ii) until such time as the Default
Excess (as defined below) with respect to such Defaulting Lender shall have been
reduced to zero (a) any voluntary prepayment of the Revolving Loans pursuant to
subsection 2.4A(i) shall be applied to the Revolving Loans of other Lenders as
if such Defaulting Lender had no Revolving Loans outstanding and the Revolving
Loan Exposure of such Defaulting Lender were zero and (b) any mandatory
58
prepayment of the Revolving Loans pursuant to subsection 2.4A(iii) shall be
applied to the Revolving Loans of other Lenders (but not to the Revolving Loans
of such Defaulting Lender) as if such Defaulting Lender had funded all Defaulted
Revolving Loans of such Defaulting Lender, it being understood and agreed that
Company shall be entitled to retain any portion of any mandatory prepayment of
the Revolving Loans that is not paid to such Defaulting Lender solely as a
result of the operation of the provisions of this clause (b); PROVIDED that the
provisions of this clause (b) shall not affect any mandatory reductions of the
Revolving Loan Commitment of such Defaulting Lender pursuant to subsection
2.4A(iii); (iii) such Defaulting Lender's Revolving Loan Commitment and
outstanding Revolving Loans and such Defaulting Lender's Pro Rata Share of the
Letter of Credit Usage in respect of Letters of Credit shall be excluded for
purposes of calculating the commitment fee payable to Lenders having Revolving
Loan Commitments pursuant to subsection 2.3A in respect of any day during any
Default Period with respect to such Defaulting Lender, and such Defaulting
Lender shall not be entitled to receive any commitment fee pursuant to
subsection 2.3A with respect to such Defaulting Lender's Revolving Loan
Commitment in respect of any Default Period with respect to such Defaulting
Lender; and (iv) the Total Utilization of Revolving Loan Commitments as at any
date of determination shall be calculated as if such Defaulting Lender had
funded all Defaulted Revolving Loans of such Defaulting Lender.
For purposes of this Agreement (A) "DEFAULT PERIOD" means, with
respect to any Defaulting Lender, the period commencing on the date of the
applicable Funding Default and ending on the earliest of the following dates:
(a) the date on which all Revolving Loan Commitments are cancelled or terminated
and/or the Obligations are declared or become immediately due and payable,
(b) the date on which (1) the Default Excess with respect to such Defaulting
Lender shall have been reduced to zero (whether by the funding by such
Defaulting Lender of any Defaulted Revolving Loans of such Defaulting Lender or
by the non-pro rata application of any voluntary or mandatory prepayments of the
Revolving Loans in accordance with the terms of this subsection 2.10 or by a
combination thereof) and (2) such Defaulting Lender shall have delivered to
Company and Administrative Agent a written reaffirmation of its intention to
honor its obligations under this Agreement with respect to its Revolving Loan
Commitment, and (c) the date on which Company, Administrative Agent and
Requisite Lenders waive all Funding Defaults of such Defaulting Lender in
writing, and (B) "DEFAULT EXCESS" means, with respect to any Defaulting Lender,
the excess, if any, of such Defaulting Lender's Pro Rata Share of the aggregate
outstanding principal amount of Revolving Loans of all Lenders (calculated as if
all Defaulting Lenders (other than such Defaulting Lender) had funded all of
their respective Defaulting Revolving Loans) over the aggregate outstanding
principal amount of Revolving Loans of such Defaulting Lender.
No Commitment of any Lender shall be increased or otherwise
affected, and, except as otherwise expressly provided in this subsection 2.10,
performance by Company of its obligations under this Agreement and the other
Loan Documents shall not be excused or otherwise modified, as a result of any
Funding Default or the operation of this subsection 2.10.
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SECTION 3. LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF PARTICIPATIONS
THEREIN.
A. LETTERS OF CREDIT. In addition to Company requesting that
Lenders having Revolving Loan Commitments make Revolving Loans pursuant to
subsection 2.1A(i), Company may request, in accordance with the provisions of
this subsection 3.1, from time to time during the period from the Closing Date
to but excluding the Commitment Termination Date, that one or more of such
Lenders issue Letters of Credit for the account of Company or any Domestic
Subsidiary (other than BHFS Group or an Inactive Subsidiary) for the purposes
specified in the definition of Commercial Letters of Credit and Standby Letters
of Credit. Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of Company herein set forth,
any one or more of such Lenders may, but (except as provided in subsection
3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance
with the provisions of this subsection 3.1; PROVIDED that Company shall not
request that any Lender issue (and no Lender shall issue):
(i) any Letter of Credit if, after giving effect to such
issuance, the Total Utilization of Revolving Loan Commitments would
exceed the Revolving Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such
issuance, the Letter of Credit Usage would exceed $20,000,000;
(iii) any Standby Letter of Credit having an expiration date
later than the earlier of (a) the Commitment Termination Date and (b) the
date which is one year from the date of issuance of such Standby Letter
of Credit; PROVIDED that the immediately preceding clause (b) shall not
prevent any Issuing Lender from agreeing that a Standby Letter of Credit
will automatically be extended for a period not to exceed one year unless
such Issuing Lender elects not to extend for such additional period;
PROVIDED, FURTHER that, unless Requisite Lenders otherwise consent, such
Issuing Lender shall give notice that it will not extend such Standby
Letter of Credit if it has knowledge that an Event of Default has
occurred and is continuing on such Notification Date;
(iv) any Commercial Letter of Credit having an expiration date
(a) later than the earlier of (x) the date which is 30 days prior to the
Commitment Termination Date and (y) the date which is 270 days from the
date of issuance of such Commercial Letter of Credit or (b) that is
otherwise acceptable to the applicable Issuing Lender in its reasonable
discretion;
(v) any Letter of Credit denominated in a currency other than
Dollars if the maximum stated amount of such Letter of Credit, together
with the maximum
60
stated amount of all other Letters of Credit denominated in a currency
other than Dollars, exceeds $10,000,000, such valuation to be based on
the applicable Exchange Rate for such currency as of the applicable date
of determination; or
(vi) any Letter of Credit payable other than on a sight basis.
B. MECHANICS OF ISSUANCE.
(i) NOTICE OF ISSUANCE. Whenever Company desires the
issuance of a Letter of Credit, it shall deliver to the proposed Issuing
Lender (with a copy to Administrative Agent, if Administrative Agent is
not the proposed Issuing Lender) a Request For Issuance of Letter of
Credit in the form of Exhibit III no later than 10:00 A.M. (New York
time) at least three Business Days, or such shorter period as may be
agreed to by the Issuing Lender in any particular instance, in advance of
the proposed date of issuance. The Request For Issuance of Letter of
Credit shall specify (a) the Lender requested to issue the Letter of
Credit, (b) the proposed date of issuance (which shall be a Business
Day), (c) whether the Letter of Credit is to be a Standby Letter of
Credit or a Commercial Letter of Credit, (d) the face amount of the
Letter of Credit, (e) the expiration date of the Letter of Credit,
(f) the name and address of the beneficiary, and (g) the verbatim text of
the proposed Letter of Credit or the proposed terms and conditions
thereof, including a precise description of any documents and the
verbatim text of any certificates to be presented by the beneficiary
which, if presented by the beneficiary prior to the expiration date of
the Letter of Credit, would require the Issuing Lender to make payment
under the Letter of Credit; provided that the Issuing Lender, in its
reasonable discretion, may require changes in the text of the proposed
Letter of Credit or any such documents or certificates.
Company shall notify the applicable Issuing Lender (and
Administrative Agent, if Administrative Agent is not such Issuing Lender)
prior to the issuance of any Letter of Credit in the event that any of
the matters to which Company is required to certify in the applicable
Request For Issuance of Letter of Credit is no longer true and correct as
of the proposed date of issuance of such Letter of Credit, and upon the
issuance of any Letter of Credit Company shall be deemed to have
re-certified, as of the date of such issuance, as to the matters to which
Company is required to certify in the applicable Request For Issuance of
Letter of Credit.
(ii) DETERMINATION OF ISSUING LENDER. Upon receipt by
Administrative Agent of a Request For Issuance of Letter of Credit
pursuant to subsection 3.1B(i) requesting the issuance of a Letter of
Credit, if the Administrative Agent elects to issue such Letter of
Credit, Administrative Agent shall promptly so notify the Borrower, and
Administrative Agent shall be the Issuing Lender with respect thereto.
In the event that Administrative Agent, in its sole discretion elects not
to issue such Letter of Credit, Administrative Agent shall promptly so
notify Borrower whereupon Borrower may request any other Lender to issue
such Letter of Credit
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by delivering to such Lender a copy of the applicable Request For
Issuance of Letter of Credit. Any Lender so requested to issue such
Letter of Credit shall promptly notify Borrower and Administrative Agent
whether or not, in its sole discretion, it has elected to issue such
Letter of Credit, and any such Lender which so elects to issue such
Letter of Credit, shall be the Issuing Lender with respect thereto. In
the event that all other Lenders shall have declined to issue such Letter
of Credit, notwithstanding the prior election of Administrative Agent not
to issue such Letter of Credit, Administrative Agent shall be obligated
to issue such Letter of Credit and shall be the Issuing Lender with
respect thereto, notwithstanding the fact that the Letter of Credit Usage
with respect to such Letter of Credit and with respect to all other
Letters of Credit issued by Administrative Agent, when aggregated with
Administrative Agent's outstanding Revolving Loans and Swing Line Loans,
may exceed Administrative Agent's Revolving Loan Commitment then in
effect.
(iii) NOTIFICATION TO LENDERS. Promptly upon the issuance of
or amendments to a Standby Letter of Credit, the applicable Issuing
Lender shall notify the Administrative Agent and all participating
Lenders of such issuance or amendment and such notice shall be
accompanied by a copy of such Standby Letter of Credit or such
amendments.
(iv) ISSUANCE OF LETTER OF CREDIT. Upon satisfaction or
waiver (in accordance with subsection 11.6) of the conditions set forth
in subsection 4.3, the Issuing Lender shall issue the requested Letter of
Credit in accordance with the Issuing Lender's standard operating
procedures.
(v) COMMERCIAL LETTERS OF CREDIT. When the Administrative
Agent is not the Issuing Lender, the Issuing Lender shall send to the
Administrative Agent on the first Business Day of each month, by telefax,
its daily outstanding Commercial Letter of Credit balances for the
previous month. The Administrative Agent shall deliver to each Lender
upon each calendar month end and upon each payment of a Commercial Letter
of Credit fee payable to the Lenders a report setting forth for such
period the aggregate daily amount available to be drawn under Commercial
Letters of Credit issued by all Issuing Lenders that were outstanding
during such period.
C. LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF CREDIT.
Immediately upon the issuance of each Letter of Credit, each Lender having a
Revolving Loan Commitment shall be deemed to, and hereby agrees to, have
irrevocably purchased from the Issuing Lender a participation in such Letter of
Credit and drawings thereunder in an amount equal to such Lender's Pro Rata
Share of the maximum amount which is or at any time may become available to be
drawn thereunder. Upon satisfaction of the conditions set forth in Section 4.1,
the Existing Letters of Credit set forth on Schedule 3.1C shall, effective as of
such Closing Date, become letters of credit under this Agreement to the same
extent as if initially issued hereunder and each Lender having a Revolving Loan
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Commitment shall be deemed to have irrevocably purchased from the Issuing Lender
a participation in such Letters of Credit and drawings thereunder in an amount
equal to such Lender's Pro Rata Share of the maximum amount which is or at any
time may become available to be drawn thereunder.
3.2 LETTER OF CREDIT FEES.
Company agrees to pay the following amounts to Administrative
Agent or each Issuing Lender with respect to Letters of Credit issued by it, as
the case may be:
(i) with respect to each Letter of Credit (a) a fronting fee
equal to 0.25% per annum or, in the event that the applicable Eurodollar
Rate Margin set forth in subsection 2.2A hereof is 0.25% per annum, a
fronting fee equal to 0.125% per annum, of the daily amount available
from time to time to be drawn under such Letter of Credit but in any
event not less than $500 per year per Letter of Credit shall be payable
as a fronting fee to such Issuing Lender and (b) a letter of credit fee
equal to (x) the applicable Eurodollar Rate Margin set forth in
subsection 2.2A hereof for Eurodollar Rate Loans MINUS the applicable
fronting fee MULTIPLIED by (y) the daily amount available from time to
time to be drawn under such Letter of Credit shall be payable as a letter
of credit fee to Administrative Agent, in each case under clause (a) or
(b) payable in arrears on each February 28 (or 29, as the case may be),
May 31, August 31 and November 30 of each year and computed on the basis
of a 360-day year for the actual number of days elapsed;
(ii) with respect to the issuance, amendment, cancellation or
transfer of each Letter of Credit and each payment made thereunder
(without duplication of the fees payable under clauses (i) and (ii)
above), documentary and processing charges in accordance with such
Issuing Lender's standard schedule for such charges in effect at the time
of such issuance, amendment, transfer, cancellation or drawing, as the
case may be.
For purposes of calculating any fees payable under clause (i) of this subsection
3.2, (1) the daily amount available to be drawn under any Letter of Credit shall
be determined as of the close of business on any date of determination and (2)
any amount which is denominated in a currency other than Dollars shall be valued
based on the applicable Exchange Rate for such currency as of the applicable
date of determination. Promptly upon receipt by Administrative Agent of any
amount described in clause (i)(b) of this subsection 3.2, Administrative Agent
shall distribute to each Lender its Pro Rata Share of such amount. With respect
to Existing Letters of Credit, the fees described in clause (i) above shall
accrue from and including the Closing Date.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO REQUESTS FOR
DRAWINGS. In determining whether to honor any drawing under any Letter of
Credit by
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the beneficiary thereof, the Issuing Lender shall be responsible only to
determine that the documents and certificates required to be delivered under
such Letter of Credit have been delivered and that they substantially comply on
their face with the requirements of such Letter of Credit.
B. REIMBURSEMENT BY COMPANY OF AMOUNTS DRAWN UNDER LETTERS OF
CREDIT. As soon as reasonably practical after the beneficiary of a Letter of
Credit attempts to make a drawing under such Letter of Credit, the Issuing
Lender of such Letter of Credit shall use reasonable efforts to notify Company
thereof; PROVIDED, that the failure to provide such notice shall not in any way
affect Company's obligation to reimburse such Issuing Lender in accordance with
this subsection 3.3 nor shall such Issuing Lender incur any liability to Company
as a result of such failure. In the event an Issuing Lender has determined to
honor a drawing under a Letter of Credit issued by it, such Issuing Lender shall
immediately notify Company and Administrative Agent, and Company shall reimburse
such Issuing Lender on or before the Business Day immediately following the date
on which such drawing is honored (the "REIMBURSEMENT DATE") in an amount in
Dollars (which amount, in the case of a drawing under a Letter of Credit which
is denominated in a currency other than Dollars, shall be calculated by
reference to the applicable Exchange Rate) and in same day funds equal to the
amount of such drawing (whether or not Company is the account party under such
Letter of Credit); PROVIDED that, anything contained in this Agreement to the
contrary notwithstanding, (i) unless Company shall have notified Administrative
Agent and such Issuing Lender prior to 12:00 noon (New York time) on the date of
such drawing that Company intends to reimburse such Issuing Lender for the
amount of such drawing with funds other than the proceeds of Revolving Loans,
Company shall be deemed to have given a timely Notice of Borrowing to
Administrative Agent requesting Lenders to make Revolving Loans that are Base
Rate Loans on the Reimbursement Date in an amount in Dollars (which amount, in
the case of a drawing under a Letter of Credit which is denominated in a
currency other than Dollars, shall be calculated by reference to the applicable
Exchange Rate) equal to the amount of such drawing and (ii) subject to
satisfaction or waiver of the conditions specified in subsection 4.2B, Lenders
having Revolving Loan Commitments shall, on the Reimbursement Date, make
Revolving Loans that are Base Rate Loans in the amount of such drawing, the
proceeds of which shall be applied directly by Administrative Agent to reimburse
such Issuing Lender for the amount of such drawing; and PROVIDED, FURTHER that
if for any reason proceeds of Revolving Loans are not received by such Issuing
Lender on the Reimbursement Date in an amount equal to the amount of such
drawing, Company shall reimburse such Issuing Lender, on demand, in an amount in
same day funds equal to the excess of the amount of such drawing over the
aggregate amount of such Revolving Loans, if any, which are so received.
Nothing in this subsection 3.3B shall be deemed to relieve any Lender having a
Revolving Loan Commitment from its obligation to make Revolving Loans on the
terms and conditions set forth in this Agreement, and Company shall retain any
and all rights it may have against any Lender resulting from the failure of such
Lender to make such Revolving Loans under this subsection 3.3B.
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C. PAYMENT BY LENDERS OF UNREIMBURSED DRAWINGS UNDER LETTERS OF
CREDIT.
(i) PAYMENT BY LENDERS. In the event that Company shall fail
for any reason to reimburse any Issuing Lender as provided in subsection
3.3B in an amount (calculated, in the case of a drawing under a Letter of
Credit denominated in a currency other than Dollars, by reference to the
applicable Exchange Rate) equal to the amount of any drawing honored by
such Issuing Lender under a Letter of Credit issued by it, such Issuing
Lender shall promptly notify each other Lender having a Revolving Loan
Commitment of the unreimbursed amount of such drawing and of such other
Lender's respective participation therein based on such Lender's Pro Rata
Share. Each such Lender shall make available to such Issuing Lender an
amount equal to its respective participation, in same day funds, at the
office of such Issuing Lender specified in such notice, not later than
12:00 noon (New York time) on the first business day (under the laws of
the jurisdiction of such Issuing Lender) after the date notified by such
Issuing Lender. In the event that any such Lender fails to make
available to such Issuing Lender on such business day the amount of such
Lender's participation in such Letter of Credit as provided in this
subsection 3.3C, such Issuing Lender shall be entitled to recover such
amount on demand from such Lender together with interest thereon at the
rate customarily used by such Issuing Lender for the correction of errors
among banks for three Business Days and thereafter at the Base Rate.
Nothing in this subsection 3.3C shall be deemed to prejudice the right of
any Lender to recover from any Issuing Lender any amounts made available
by such Lender to such Issuing Lender pursuant to this subsection 3.3C in
the event that it is determined by the final judgment of a court of
competent jurisdiction that the payment with respect to a Letter of
Credit by such Issuing Lender in respect of which payment was made by
such Lender constituted gross negligence or willful misconduct on the
part of such Issuing Lender.
(ii) DISTRIBUTION TO LENDERS OF REIMBURSEMENTS RECEIVED FROM
COMPANY. In the event any Issuing Lender shall have been reimbursed by
other Lenders pursuant to subsection 3.3C(i) for all or any portion of
any drawing honored by such Issuing Lender under a Letter of Credit
issued by it, such Issuing Lender shall distribute to each other Lender
which has paid all amounts payable by it under subsection 3.3C(i) with
respect to such drawing such other Lender's Pro Rata Share of all
payments subsequently received by such Issuing Lender from Company in
reimbursement of such drawing when such payments are received. Any such
distribution shall be made to a Lender at its primary address set forth
below its name on the appropriate signature page hereof or at such other
address as such Lender may request.
D. INTEREST ON AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
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(i) PAYMENT OF INTEREST BY COMPANY. Company agrees to pay to
each Issuing Lender, with respect to drawings honored under any Letters
of Credit issued by it (whether or not Company is the account party
thereunder), interest on the amount paid by such Issuing Lender in
respect of each such drawing from the date of such drawing through the
date such amount is reimbursed by Company (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to
subsection 3.3B) at a rate equal to (a) for the period from the date of
such drawing to and including the Reimbursement Date, the rate then in
effect under this Agreement with respect to Revolving Loans that are Base
Rate Loans and (b) thereafter, a rate which is 2% per annum in excess of
the rate of interest otherwise payable under this Agreement with respect
to Revolving Loans that are Base Rate Loans (it being understood that no
interest shall be payable for amounts reimbursed on or before the date
the drawing is honored). Interest payable pursuant to this subsection
3.3D(i) shall be computed on the basis of a 360-day year for the actual
number of days elapsed in the period during which it accrues and shall be
payable on demand or, if no demand is made, on the date on which the
related drawing under a Letter of Credit is reimbursed in full.
(ii) DISTRIBUTION OF INTEREST PAYMENTS BY ISSUING LENDER.
Promptly upon receipt by any Issuing Lender of any payment of interest
pursuant to subsection 3.3D(i), (a) such Issuing Lender shall distribute
to each other Lender having a Revolving Loan Commitment, out of the
interest received by such Issuing Lender in respect of the period from
the date of the applicable drawing under a Letter of Credit issued by
such Issuing Lender to and including the date on which such Issuing
Lender is reimbursed for the amount of such drawing (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to
subsection 3.3B), the amount that such other Lender would have been
entitled to receive in respect of the letter of credit fee that would
have been payable in respect of such Letter of Credit for such period
pursuant to subsection 3.2 if no drawing had been made under such Letter
of Credit, and (b) in the event such Issuing Lender shall have been
reimbursed by other Lenders pursuant to subsection 3.3C(i) for all or any
portion of such drawing, such Issuing Lender shall distribute to each
other Lender which has paid all amounts payable by it under subsection
3.3C(i) with respect to such drawing such other Lender's Pro Rata Share
of any interest received by such Issuing Lender in respect of that
portion of such drawing so reimbursed by other Lenders for the period
from the date on which such Issuing Lender was so reimbursed by other
Lenders to and including the date on which such portion of such drawing
is reimbursed by Company. Any such distribution shall be made to a
Lender at its primary address set forth below its name on the appropriate
signature page hereof or at such other address as such Lender may
request.
3.4 OBLIGATIONS ABSOLUTE.
The obligation of Company to reimburse each Issuing Lender for
drawings honored under the Letters of Credit issued by it (whether or not
Company is the account
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party thereunder) and to repay any Revolving Loans made by Lenders pursuant to
subsection 3.3B and the obligations of Lenders under subsection 3.3C(i) shall be
unconditional and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances including, without limitation,
any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other
right which Company, any Domestic Subsidiary that is an account party
thereunder or any Lender may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), any Issuing Lender or other Lender or any
other Person or, in the case of a Lender, against Company or any Domestic
Subsidiary that is an account party under a Letter of Credit, whether in
connection with this Agreement, the transactions contemplated herein or
any unrelated transaction (including any underlying transaction between
Company or one of its Subsidiaries and the beneficiary for which any
Letter of Credit was procured);
(iii) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(iv) payment by the applicable Issuing Lender under any Letter
of Credit against presentation of a demand, draft or certificate or other
document which does not comply with the terms of such Letter of Credit;
provided that any such noncompliance was not material or was waived by
Company;
(v) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of
Company or any of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document
by any party thereto;
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing;
PROVIDED, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question
(as determined by a final judgment of a court of competent jurisdiction).
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3.5 INDEMNIFICATION; NATURE OF ISSUING LENDERS' DUTIES.
A. INDEMNIFICATION. In addition to amounts payable as provided in
subsection 3.6, Company hereby agrees to protect, indemnify, pay and save
harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which such Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit by such Issuing
Lender, other than as a result of (a) the gross negligence or willful misconduct
of such Issuing Lender as determined by a final judgment of a court of competent
jurisdiction or (b) subject to the following clause (ii), the wrongful dishonor
by such Issuing Lender of a proper demand for payment made under any Letter of
Credit issued by it or (ii) the failure of such Issuing Lender to honor a
drawing under any such Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or omissions herein called
"GOVERNMENTAL ACTS").
B. NATURE OF ISSUING LENDERS' DUTIES. As between Company and any
Issuing Lender, Company assumes all risks of the acts and omissions of, or
misuse of the Letters of Credit issued by such Issuing Lender by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation
of the foregoing, such Issuing Lender shall not be responsible for: (i) the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any such Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond the
control of such Issuing Lender, including without limitation any Governmental
Acts, and none of the above shall affect or impair, or prevent the vesting of,
any of such Issuing Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the
specific provisions set forth in the first paragraph of this subsection 3.5B,
any action taken or omitted by any Issuing Lender under or in connection with
the Letters of Credit issued by it or any documents and certificates delivered
thereunder, if taken or omitted in good faith and in
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the exercise of reasonable and customary care, shall not put such Issuing Lender
under any resulting liability to Company.
Notwithstanding anything to the contrary contained in this
subsection 3.5, Company shall retain any and all rights it may have against any
Issuing Lender for any liability arising solely out of the gross negligence or
willful misconduct of such Issuing Lender, as determined by a final judgment of
a court of competent jurisdiction.
3.6 INCREASED COSTS AND TAXES RELATING TO LETTERS OF CREDIT.
In the event that any Issuing Lender or Lender shall determine
(which determination shall, absent manifest error, be final and conclusive and
binding upon all parties hereto) that any law, treaty or governmental rule,
regulation or order, or any change therein or in the interpretation,
administration or application thereof (including the introduction of any new
law, treaty or governmental rule, regulation or order), or any determination of
a court or governmental authority, in each case that becomes effective after the
date hereof, or compliance by any Issuing Lender or Lender with any guideline,
request or directive issued or made after the date hereof by any central bank,
NAIC or other governmental or quasi-governmental authority (whether or not
having the force of law):
(i) subjects such Issuing Lender or Lender (or its applicable
lending or letter of credit office) to any additional Tax (other than any
Tax on the overall net income of such Issuing Lender or Lender) with
respect to the issuing or maintaining of any Letters of Credit or the
purchasing or maintaining of any participations therein or any other
obligations under this Section 3, whether directly or by such being
imposed on or suffered by any particular Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve
(including without limitation any marginal, emergency, supplemental,
special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement in respect of any Letters of Credit
issued by any Issuing Lender or participations therein purchased by any
Lender; or
(iii) imposes any other condition on or affecting such Issuing
Lender or Lender (or its applicable lending or letter of credit office)
regarding this Section 3 or any Letter of Credit or any participation
therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Lender of agreeing to issue, issuing or maintaining any Letter of
Credit or agreeing to purchase, purchasing or maintaining any participation
therein or to reduce any amount received or receivable by such Issuing Lender or
Lender (or its applicable lending or letter of credit office) with respect
thereto; then, in any case, Company shall promptly pay to such Issuing Lender or
Lender, upon demand, such additional amount or amounts as may be necessary to
compensate such Issuing Lender or Lender on an after-tax basis for any
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such increased cost or reduction in amounts received or receivable hereunder.
Such Issuing Lender or Lender shall deliver to Company a written statement,
setting forth in reasonable detail the basis for calculating the additional
amounts owed to such Issuing Lender or Lender under this subsection 3.6, which
statement shall be conclusive and binding upon all parties hereto absent
manifest error.
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The effectiveness of this Agreement is subject to the
satisfaction of the following conditions on or before the Closing Date.
4.1 CONDITIONS TO INITIAL REVOLVING LOANS.
The obligations of Lenders to make the initial Revolving Loans
and any Swingline Loans are, in addition to the conditions precedent specified
in subsection 4.2, subject to prior or concurrent satisfaction of the following
conditions:
A. LOAN PARTY DOCUMENTS. On or before the Closing Date, Company
shall deliver or cause to be delivered to Lenders (or to Administrative Agent
for Lenders with sufficient originally executed copies, where appropriate, for
each Lender and its counsel) the following with respect to each Loan Party,
each, unless otherwise noted, dated the Closing Date:
(i) Certified copies of its Articles or Certificate of
Incorporation certified by the Secretary of State of the jurisdiction of
its incorporation, together with a good standing certificate from the
Secretary of State of the jurisdiction of its incorporation, the
jurisdiction in which its principal place of business is located and each
other state in which it is qualified as a foreign corporation to do
business where the failure to so qualify could reasonably be expected to
have a Material Adverse Effect, each dated a recent date prior to the
Closing Date;
(ii) Copies of its Bylaws, certified as of the Closing Date by
its corporate secretary or an assistant secretary;
(iii) Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of the Loan Documents
to which it is a party and which are to be executed and delivered on the
Closing Date, certified as of the Closing Date by its corporate secretary
or an assistant secretary as being in full force and effect without
modification or amendment;
(iv) Signature and incumbency certificates of its officers
executing the Loan Documents to which it is a party;
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(v) Executed originals of this Agreement, the Notes (duly
executed in accordance with subsection 2.1D, drawn to the order of each
Lender as applicable and the Swingline Lender and with appropriate
insertions), the Company Pledge Agreement, the Subsidiary Pledge
Agreements, the Subsidiary Guarantees, the Collateral Account Agreement,
the Mortgages, the Auxiliary Pledge Agreements and the other Loan
Documents; and
(vi) an Officer's Certificate, in form and substance
satisfactory to Administrative Agent, to the effect that the Indebtedness
permitted under this Agreement is permitted under each of the Indentures
and that the incurrence of all Indebtedness under this Agreement will not
require equal and ratable security to be provided to the Senior Notes;
and
(vii) Such other documents as Administrative Agent may
reasonably request.
B. CORPORATE STRUCTURE. The corporate, capital and ownership
structure of the Parent, Company and Company's Subsidiaries after the
Transactions shall be satisfactory to the Administrative Agent and the Lenders.
Notwithstanding the foregoing, Administrative Agent and Lenders hereby agree
that the Company's existing corporate structure is satisfactory to
Administrative Agent and Lenders and the contemplated combination of Parent and
Company is satisfactory to Administrative Agent and Lenders.
C. DELIVERY OF MORTGAGES; MORTGAGE POLICIES. Administrative Agent
shall have received from Company (i) fully executed counterparts of Mortgages
encumbering the fee interest of Company in each Owned Real Property Asset
designated on SCHEDULE 4.1B annexed hereto (each a "Mortgaged Property" and
collectively, the "Mortgaged Properties"), together with evidence that
counterparts of such Mortgages have been recorded in all places to the extent
necessary or desirable, in the judgment of Administrative Agent, so as to
effectively create a valid and enforceable first priority Lien, subject only to
Permitted Encumbrances, on each Mortgaged Property in favor of Administrative
Agent (or such other trustee as may be required or desired under local law) for
the benefit of Lenders; (ii) an opinion of counsel (which counsel shall be
satisfactory to Administrative Agent) in the state in which each Mortgaged
Property is located with respect to the enforceability of the form of Mortgage
recorded in such state and such other matters as Administrative Agent may
request, in form and substance satisfactory to Administrative Agent;
(iii) Mortgage Policies with respect to the Mortgaged Properties constituting
Owned Real Property Assets, in amounts not less than the respective amounts
designated on SCHEDULE 4.1B annexed hereto with respect to any particular
Mortgaged Property; (iv) evidence, which may be in the form of a letter from an
insurance broker or a municipal engineer, as to whether (a) any Mortgaged
Property is in an area designated by the Federal Emergency Management Agency as
having special flood or mud slide hazards (a "Flood Hazard Property") and
(b) the community in which such Flood Hazard Property is located is
participating in the National Flood Insurance Program; and (v) if there are any
Flood Hazard Properties, Company's written acknowledgement of receipt of
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written notification from Administrative Agent (a) as to the existence of each
such Flood Hazard Property and (b) as to whether the community in which each
such Flood Hazard Property is located is participating in the National Flood
Insurance Program.
D. SECURITY INTERESTS. To the extent not otherwise satisfied
pursuant to subsection 4.1C, Company and its Subsidiaries shall have taken or
caused to be taken (and Administrative Agent shall have received satisfactory
evidence thereof) such actions in such a manner so that Administrative Agent has
a valid and perfected first priority security interest as of such date in the
entire Collateral (subject to Permitted Encumbrances and except to the extent
any such security interest cannot be granted under applicable laws). Such
actions shall include, without limitation, (i) delivery to Administrative Agent
of certificates (which certificates shall be properly endorsed in blank for
transfer or accompanied by irrevocable undated stock powers duly endorsed in
blank, all in form and substance satisfactory to Administrative Agent)
representing the capital stock pledged pursuant to the Company Pledge Agreement,
the applicable Auxiliary Pledge Agreement or the applicable Subsidiary Pledge
Agreement and delivery to Administrative Agent of all other instruments (duly
endorsed where appropriate) evidencing the Collateral; (ii) filing of Uniform
Commercial Code financing statements as to the Collateral for all jurisdictions
as may be necessary or desirable to perfect the security interests in the
Collateral; and (iii) delivery of evidence satisfactory to Administrative Agent
that all other filings, recordings and other actions that Administrative Agent
deems necessary or advisable to establish, preserve and perfect the first
priority Liens granted to Administrative Agent on behalf of Lenders under the
Collateral Documents shall have been made.
E. TERMINATION OF EXISTING CREDIT AGREEMENT. On or prior to the
Closing Date, Company shall have repaid in full all amounts outstanding under
the Existing Credit Agreement and shall have terminated any commitments to lend
or make other extensions of credit thereunder, and Company shall have made
arrangements satisfactory to Administrative Agent with respect to any
outstanding letters of credit issued pursuant to the Existing Credit Agreement
that will remain outstanding after the Closing Date, including payment of all
accrued and unpaid letter of credit fees. On the Closing Date, Administrative
Agent shall have received all terminations and releases requested by
Administrative Agent with respect to any collateral security for or guarantees
of Company's obligations under the Existing Credit Agreement, including, without
limitation, Uniform Commercial Code financing statement terminations and real
property releases, satisfaction of mortgages or similar release instruments.
F. ISSUANCE OF COMMON STOCK. On or prior to the Closing Date, the
Parent shall have received not less than $95,000,000 in cash proceeds from the
Common Stock Offering.
G. SOLVENCY ASSURANCES. On the Closing Date, Administrative Agent
and Lenders shall have received a Financial Condition Certificate dated the
Closing Date, substantially in the form of EXHIBIT XI annexed hereto and with
appropriate attachments, in
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each case demonstrating that, after giving effect to the Transactions and the
related transactions contemplated by the Loan Documents, the Company will be
Solvent.
H. OPINIONS OF COUNSEL TO LOAN PARTIES. Administrative Agent shall
have received on behalf of the Lenders and their respective counsel originally
executed copies of one or more favorable written opinions of XxXxxxxxx Will &
Xxxxx and Xxxx X. Xxxxx, counsel for the Loan Parties, in form and substance
reasonably satisfactory to Administrative Agent and its counsel, dated as of the
Closing Date and setting forth substantially the matters in the opinions
designated in EXHIBIT VII annexed hereto and as to such other matters as
Administrative Agent acting on behalf of Lenders may reasonably request.
I. OPINIONS OF ADMINISTRATIVE AGENT'S COUNSEL. Lenders shall have
received originally executed copies of one or more favorable written opinions of
O'Melveny & Xxxxx, counsel to Administrative Agent, dated as of the Closing
Date, substantially in the form of EXHIBIT VIII annexed hereto and as to such
other matters as Administrative Agent acting on behalf of Lenders may reasonably
request.
J. EXISTING INDEBTEDNESS. No Indebtedness of the Parent and its
Subsidiaries shall be existing other than the Indebtedness permitted in
subsection 7.1.
K. FEES. Company shall have paid to Administrative Agent, for
distribution (as appropriate) to Administrative Agent and Lenders under this
Agreement, the fees payable on the Closing Date referred to in subsection 2.3X.
X. NO MATERIAL ADVERSE EFFECT. Since December 28, 1996, no Material
Adverse Effect (in the sole opinion of Administrative Agent) shall have
occurred.
M. NO EVENT OF DEFAULT. Upon giving effect to this Agreement as of
the Closing Date, no "Event of Default" or "Potential Event of Default" shall
have occurred and be continuing and Company shall have delivered an Officer's
Certificate to such effect.
N. NECESSARY CONSENTS. On or before the Closing Date, each Loan
Party shall have obtained all consents to the transactions contemplated under
this Agreement and the other Loan Documents of any Person required under any
Contractual Obligation of any Loan Party, except for such consents, the failure
of which to obtain could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect, all of the foregoing in form and
substance reasonably satisfactory to Administrative Agent.
O. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS. On
the Closing Date, Company shall have delivered to Administrative Agent an
Officer's Certificate dated as of the Closing Date, in form and substance
satisfactory to Administrative Agent, to the effect that the representations and
warranties in Section 5 hereof are true, correct and complete in all material
respects on and as of the Closing Date
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to the same extent as though made on and as of that date and that Company shall
have performed in all material respects all agreements and satisfied all
conditions which this Agreement provides shall be performed or satisfied by it
on or before the Closing Date except as otherwise disclosed to and agreed to in
writing by Administrative Agent and Requisite Lenders.
P. COMPLETION OF PROCEEDINGS. All corporate and other proceedings
taken or to be taken on or before the Closing Date in connection with the
transactions contemplated hereby and all documents incidental thereto not
previously found acceptable by Administrative Agent, acting on behalf of
Lenders, and its counsel shall be satisfactory in form and substance to
Administrative Agent and such counsel, and Administrative Agent and such counsel
shall have received all such counterpart originals or certified copies of such
documents as Administrative Agent may reasonably request.
4.2 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding Date are
subject to the following further conditions precedent:
A. Administrative Agent shall have received before that Funding
Date, in accordance with the provisions of subsection 2.1B, an originally
executed Notice of Borrowing, in each case signed by the chief executive
officer, the chief financial officer, the chief accounting officer, the
treasurer or the assistant treasurer of Company or by any officer of Company
designated by any of the above-described officers on behalf of Company in a
writing delivered to Administrative Agent.
B. As of that Funding Date:
(i) The representations and warranties contained herein and
in the other Loan Documents shall be true, correct and complete in all
material respects on and as of that Funding Date to the same extent as
though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in
which case such representations and warranties shall have been true,
correct and complete in all material respects on and as of such earlier
date;
(ii) No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated by such Notice
of Borrowing that would constitute an Event of Default or a Potential
Event of Default;
(iii) Each Loan Party shall have performed in all material
respects all agreements and satisfied all conditions which this Agreement
provides shall be performed or satisfied by it on or before that Funding
Date;
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(iv) No order, judgment or decree of any court, arbitrator or
governmental authority shall purport to enjoin or restrain any Lender
from making the Loans to be made by it on that Funding Date;
(v) The making of the Loans requested on such Funding Date
shall not violate any law including, without limitation, Regulation G,
Regulation T, Regulation U or Regulation X of the Board of Governors of
the Federal Reserve System; and
(vi) There shall not be pending or, to the knowledge of
Company, threatened, any action, suit, proceeding, governmental
investigation or arbitration against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries that
has not been disclosed by Company in writing pursuant to subsection 5.6
or 6.1(x) prior to the making of the last preceding Loans (or, in the
case of the initial Loans, prior to the execution of this Agreement), and
there shall have occurred no development not so disclosed in any such
action, suit, proceeding, governmental investigation or arbitration so
disclosed, that, in either event, could reasonably be expected to have a
Material Adverse Effect; and no injunction or other restraining order
shall have been issued and no hearing to cause an injunction or other
restraining order to be issued shall be pending or noticed with respect
to any action, suit or proceeding seeking to enjoin or otherwise prevent
the consummation of, or to recover any damages or obtain relief as a
result of, the transactions contemplated by this Agreement or the making
of Loans hereunder.
4.3 CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder (whether or not
the applicable Issuing Bank is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
A. On or before the date of issuance of the initial Letter of Credit
pursuant to this Agreement, each of the conditions set forth in subsection 4.1
shall have been satisfied.
B. On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions of
subsection 3.1B(i), an originally executed Request For Issuance of Letter of
Credit, in each case signed by the chief executive officer, the chief financial
officer, the chief accounting officer or the treasurer of Company or by any
officer of Company designated by any of the above-described officers on behalf
of Company in a writing delivered to Administrative Agent, together with all
other information specified in subsection 3.1B(i) and such other documents or
information as the applicable Issuing Lender may reasonably require in
connection with the issuance of such Letter of Credit.
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C. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.2B shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Loan and the date
of issuance of such Letter of Credit were a Funding Date.
SECTION 5. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to
make the Loans, to induce Issuing Lenders to issue Letters of Credit and to
induce other Lenders to purchase participations therein, Parent and Company
represent and warrant to each Lender, on the date of this Agreement, on each
Funding Date and on the date of issuance of each Letter of Credit, that the
following statements are true, correct and complete:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Each Loan Party is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation. Each Loan Party has all requisite corporate
power and authority to own and operate its properties, to carry on its business
as now conducted and as proposed to be conducted, to enter into and perform its
obligations under the Loan Documents, to carry out the transactions contemplated
thereby and to issue and pay the Notes, in each case to the extent it is a party
thereto.
B. QUALIFICATION AND GOOD STANDING. Each Loan Party is qualified to
do business and in good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its business and operations, except
in jurisdictions where the failure to be so qualified or in good standing could
not reasonably be expected to have a Material Adverse Effect.
C. CONDUCT OF BUSINESS. Company and its Subsidiaries are engaged
only in the businesses permitted to be engaged in pursuant to subsection 7.14.
D. SUBSIDIARIES. All of the Subsidiaries of Company are identified
in SCHEDULE 5.1 annexed hereto, as said SCHEDULE 5.1 may be supplemented from
time to time pursuant to the provisions of subsection 6.1(xvi). The capital
stock of each of the Subsidiaries of Company identified in SCHEDULE 5.1 is duly
authorized, validly issued, fully paid and nonassessable and none of such
capital stock constitutes Margin Stock. Each of the Subsidiaries of Company
identified in SCHEDULE 5.1 is validly existing and in good standing under the
laws of its respective jurisdiction of incorporation set forth therein, has full
corporate power and authority to own its assets and properties and to operate
its business as presently owned and conducted, and is qualified to do business
and in good standing in every jurisdiction where its assets are located and
wherever necessary to carry out its business and operations, in each case except
where failure to be so qualified or in good standing or a lack of such corporate
power and authority could not reasonably be
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expected to have a Material Adverse Effect. SCHEDULE 5.1 correctly sets forth
the ownership interest of Company in each of its Subsidiaries identified
therein.
5.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and
performance of the Loan Documents and the issuance, delivery and payment of the
Notes have been duly authorized by all necessary corporate action on the part of
each Loan Party that is a party thereto.
B. NO CONFLICT. The execution, delivery and performance by Parent,
Company and its Subsidiaries of the Loan Documents, the issuance, delivery and
payment of the Notes and the consummation of the transactions contemplated by
the Loan Documents do not and will not (i) violate any provision of any law or
any written governmental rule or regulation then in existence and applicable to
Parent, Company or any of its Subsidiaries, the Certificate or Articles of
Incorporation or Bylaws of Parent, Company or any of its Subsidiaries or any
order, judgment or decree of any court or other agency of government binding on
Parent, Company or any of its Subsidiaries, (ii) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any Contractual Obligation of Parent, Company or any of its Subsidiaries,
(iii) result in or require the creation or imposition of any Lien upon any of
the properties or assets of Parent, Company or any of its Subsidiaries (other
than any Liens created under any of the Loan Documents in favor of
Administrative Agent on behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any Contractual
Obligation of Parent, Company or any of its Subsidiaries, except for such
approvals or consents which will be obtained on or before the Closing Date and
disclosed in writing to Lenders.
C. GOVERNMENTAL CONSENTS. The execution, delivery and performance
by Parent, Company and its Subsidiaries of the Loan Documents, the issuance,
delivery and payment of the Notes and the consummation of the transactions
contemplated by the Loan Documents do not and, as of the date of this
representation, will not require any registration with, consent or approval of,
or notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body, EXCEPT for filings and recordings
required in connection with the perfection of the security interests and Liens
granted pursuant to the Loan Documents.
D. BINDING OBLIGATION. Each of the Loan Documents to which any Loan
Party is a party has been duly executed and delivered by each Loan Party that is
a party thereto and is the legally valid and binding obligation of such Loan
Party, enforceable against such Loan Party in accordance with its respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability.
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E. VALID ISSUANCE OF COMPANY COMMON STOCK, PARENT COMMON STOCK,
PREFERRED STOCK AND SUBORDINATED INDEBTEDNESS; 11-1/2% SENIOR DISCOUNT
DEBENTURES.
(i) COMPANY COMMON STOCK; PARENT COMMON STOCK; PREFERRED
STOCK. The Company Common Stock has been duly and validly issued, and is fully
paid and nonassessable. The Parent common stock has been duly and validly
issued and is fully paid and nonassessable. The Preferred Stock has been duly
and validly issued, and is fully paid and non-assessable. No stockholder of
Company has or will have any preemptive rights to subscribe for any additional
equity Securities of Company. The issuance and sale of such Company Common
Stock, Parent common stock and Preferred Stock have been registered or qualified
under applicable federal and state securities laws or are exempt therefrom.
(ii) 10-3/4% SUBORDINATED NOTES; SENIOR NOTES. The 10-3/4%
Subordinated Notes if outstanding at the Closing, and Senior Notes are the
legally valid and binding obligations of Company, enforceable against Company in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability. The subordination provisions of the 10-3/4% Subordinated Notes
and Senior Notes are enforceable against the holders thereof and the Loans and
all other monetary Obligations hereunder are and will be within the definition
of "Senior Debt" included in such provisions. The 10-3/4% Subordinated Notes
and the Senior Notes either (a) have been registered or qualified under
applicable federal and state securities laws or (b) are exempt therefrom.
(iii) 11-1/2% SENIOR DISCOUNT DEBENTURES. The 11-1/2% Senior
Discount Debentures are the legally valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors rights generally or by equitable principles
relating to enforceability. Upon the occurrence of a Subordination Event (as
defined in the 11-1/2% Senior Discount Debentures), the subordination provisions
of the 11-1/2% Senior Discount Debentures will be enforceable against the
holders thereof and Parent obligations with respect to its guaranty of the Loans
and all other monetary Obligations hereunder will be within the definition of
"Senior Debt" included in such provisions. The 11-1/2% Senior Discount
Debentures either (a) have been duly registered or qualified under applicable
federal and state securities law or (b) are exempt therefrom.
5.3 FINANCIAL CONDITION.
Company has heretofore delivered to Lenders, at Lenders' request,
the following financial statements and information: (i) the audited
consolidated balance sheet of Company and its Subsidiaries as at December 28,
1996 and the related consolidated statements of income, stockholders' equity and
cash flows of Company and its Subsidiaries
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for the Fiscal Year then ended and (ii) the unaudited consolidated and
Consolidating balance sheets of Company and its Subsidiaries as at June 28, 1997
and the related unaudited consolidated statement of income and cash flows of
Company and its Subsidiaries for the fiscal month then ended (with respect to
statements of income only) and for the six months then ended. All such
statements were prepared in conformity with GAAP and fairly present the
financial position (on a consolidated basis) of the entities described in such
financial statements as at the respective dates thereof and the results of
operations and cash flows (on a consolidated basis) of the entities described
therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal year-
end adjustments. Company does not (and will not following the funding of the
initial Loans) have any Contingent Obligation, contingent liability or liability
for taxes, long-term lease or unusual forward or long-term commitment that is
not reflected in the foregoing financial statements or the notes thereto and
which in any such case is material in relation to the business, operations,
properties, assets, condition (financial or otherwise) or prospects of Company
and its Subsidiaries, taken as a whole.
5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR PAYMENTS.
Since December 28, 1996, no event or change has occurred that has
caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect. Since the Closing Date, neither Company nor any of its Subsidiaries has
directly or indirectly declared, ordered, paid or made, or set apart any sum or
property for, any Restricted Junior Payment or agreed to do so except as
permitted by subsection 7.5.
5.5 TITLE TO PROPERTIES; LIENS.
Company and its Subsidiaries have (i) good, marketable and legal
title, to (in the case of fee interests in real property), (ii) valid leasehold
interests in (in the case of leasehold interests in real or personal property),
or (iii) good title to (in the case of all other personal property) all of their
respective material properties and assets reflected in the financial statements
referred to in subsection 5.3 or in the most recent financial statements
delivered pursuant to subsection 6.1, except for assets disposed of since the
date of such financial statements in the ordinary course of business or as
otherwise permitted under subsection 7.7. Except as permitted by this Agreement
(including without limitation Permitted Encumbrances), all such properties and
assets are free and clear of Liens. SCHEDULE 5.5 sets forth a complete and
accurate list of all real property owned by Company and its Subsidiaries as of
the Closing Date identifying the owner thereof, the street address, city or
other relevant jurisdiction, and state thereof, and further identifying those
properties subject to a Mortgage in favor of Administrative Agent for the
benefit of Lenders. Any properties not so subject to a Mortgage have been
excluded in compliance with the provisions of subsection 6.10.
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5.6 LITIGATION; ADVERSE FACTS.
There is no action, suit, proceeding, arbitration or governmental
investigation (whether or not purportedly on behalf of Parent, Company or any of
its Subsidiaries) at law or in equity or before or by any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, pending or, to the knowledge of Company or
Parent, threatened against or affecting Parent, Company or any of its
Subsidiaries or any property of Parent, Company or any of its Subsidiaries that
could reasonably be expected to result in, a Material Adverse Effect. Neither
Parent, Company nor any of its Subsidiaries is (i) in violation of any
applicable law that could reasonably be expected to result in, a Material
Adverse Effect or (ii) subject to or in default with respect to any final
judgment, writ, injunction, decree, rule or regulation of any court or any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, that could reasonably be
expected to result in a Material Adverse Effect.
5.7 PAYMENT OF TAXES.
Except to the extent permitted by subsection 6.3, all material
tax returns and reports of Parent, Company and its Subsidiaries required to be
filed by any of them have been timely filed, and all material taxes,
assessments, fees and other governmental charges upon Parent, Company and its
Subsidiaries and upon their respective properties, assets, income, businesses
and franchises which are due and payable have been paid when due and payable.
Neither Parent nor Company knows of any proposed tax assessment against Parent,
Company or any of its Subsidiaries which is not being actively contested by
Parent, Company or such Subsidiary in good faith and by appropriate proceedings;
PROVIDED that such reserves or other appropriate provisions, if any, as shall be
required in conformity with GAAP shall have been made or provided therefor.
5.8 PERFORMANCE OF AGREEMENTS; MATERIALLY ADVERSE AGREEMENTS.
A. Neither Parent, Company nor any of its Subsidiaries is in
default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any of its Contractual Obligations, and no
condition exists that, with the giving of notice or the lapse of time or both,
would constitute such a default, except where the consequences, direct or
indirect, of such default or defaults, if any, could not reasonably be expected
to have a Material Adverse Effect.
B. Neither Parent, Company nor any of its Subsidiaries is a
party to or is otherwise subject to any agreement or instrument or any charter
or other internal restriction which could reasonably be expected to result in,
individually or in the aggregate, a Material Adverse Effect.
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5.9 GOVERNMENTAL REGULATION.
Neither Parent, Company nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act or the Investment Company Act of 1940 or
under any other federal or state statute or regulation which may limit its
ability to incur Indebtedness or which may otherwise render all or any portion
of the Obligations unenforceable.
5.10 SECURITIES ACTIVITIES.
Neither Parent, Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock.
5.11 EMPLOYEE BENEFIT PLANS.
A. Parent, Company and each of their respective ERISA
Affiliates are in compliance with all applicable material provisions and
requirements of ERISA and the regulations and published interpretations
thereunder with respect to each Employee Benefit Plan, and have performed all
their material obligations under each Employee Benefit Plan. Each Employee
Benefit Plan which is intended to qualify under Section 401(a) of the Internal
Revenue Code is so qualified.
B. No ERISA Event has occurred within the three years
preceding the Closing Date (excluding ERISA Events occurring after Parent or
Company ceased to maintain the applicable Employee Benefit Plan, unless Parent
or Company is potentially liable with respect to such ERISA Event) or for which
there is an outstanding liability or obligation. No ERISA Event is reasonably
expected to occur.
C. Except to the extent required under Section 4980B of the
Internal Revenue Code or except for such Employee Benefit Plans the payment of
benefits under which, individually or in the aggregate for all such Employee
Benefit Plans, could not reasonably be expected to have a Material Adverse
Effect, no Employee Benefit Plan provides health or welfare benefits (through
the purchase of insurance or otherwise) for any retired or former employees of
Parent, Company or any of their respective ERISA Affiliates.
D. As of the most recent valuation date for any Pension
Plan, the amount of unfunded benefit liabilities (as defined in Section
4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans
(excluding for purposes of such computation any Pension Plans with respect to
which assets exceed benefit liabilities), does not exceed $2,000,000.
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5.12 CERTAIN FEES.
No broker's or finder's fee or commission will be payable with
respect to this Agreement and Company hereby indemnifies Lenders against, and
agrees that it will hold Lenders harmless from, any claim, demand or liability
for any such broker's or finder's fees alleged to have been incurred in
connection herewith or any of the transactions contemplated hereby, and any
expenses (including reasonable fees, expenses and disbursements of counsel)
arising in connection with any such claim, demand or liability.
5.13 ENVIRONMENTAL PROTECTION.
Except as set forth in SCHEDULE 5.13 annexed hereto:
(i) to the best knowledge of Company and its Subsidiaries
after reasonable investigation, the operations of Company and each of its
Subsidiaries (including, without limitation, all operations and
conditions at or in the Facilities) comply in all material respects with
all Environmental Laws;
(ii) Company and each of its Subsidiaries have obtained all
Governmental Authorizations under Environmental Laws necessary to their
respective operations, and all such Governmental Authorizations are in
good standing, and Company and each of its Subsidiaries are in compliance
with all material terms and conditions of such Governmental
Authorizations;
(iii) neither Company nor any of its Subsidiaries has received
(a) any written notice or claim to the effect that it is or may be liable
with respect to any material liability to any Person as a result of or in
connection with any Hazardous Materials or (b) any letter or request for
information under Section 104 of the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. Section 9604) or
comparable state laws, and, to the best of Company's knowledge, none of
the operations of Company or any of its Subsidiaries is the subject of
any federal or state investigation relating to or in connection with any
Hazardous Materials at any Facility or at any other location;
(iv) none of the operations of Company or any of its
Subsidiaries is subject to any pending judicial or administrative
proceeding alleging the violation of or liability under any Environmental
Laws which if adversely determined is reasonably likely to have a
Material Adverse Effect;
(v) neither Company nor any of its Subsidiaries nor any of
their respective Facilities or operations are subject to any outstanding
written order or agreement with any governmental authority or private
party relating to (a) any Environmental Laws or (b) any Environmental
Claims where such order or agreement provides for pending or continuing
obligations;
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(vi) neither Company nor any of its Subsidiaries has any
material contingent liability in connection with any Release of any
Hazardous Materials by Company or any of its Subsidiaries;
(vii) neither Company nor any of its Subsidiaries nor, to the
best knowledge of Company, any predecessor of Company or any of its
Subsidiaries has filed any notice under any Environmental Law indicating
past or present treatment or Release of Hazardous Materials at any
Facility;
(viii) to the best knowledge of Company and its Subsidiaries
after reasonable investigation, no Hazardous Materials exist on, under or
about any Facility in a manner that has a reasonable possibility of
giving rise to an Environmental Claim having a Material Adverse Effect,
and neither Company nor any of its Subsidiaries has filed any notice or
report of a Release of any Hazardous Materials that has a reasonable
possibility of giving rise to an Environmental Claim having a Material
Adverse Effect;
(ix) neither Company nor any of its Subsidiaries nor, to the
best knowledge of Company, any of their respective predecessors has
disposed of any Hazardous Materials in a manner that has a reasonable
possibility of giving rise to an Environmental Claim having a Material
Adverse Effect;
(x) to the best knowledge of Company and its Subsidiaries
after reasonable investigation, no underground storage tanks or surface
impoundments are on or at any Facility; and
(xi) no Lien in favor of any Person relating to or in
connection with any Environmental Claim has been filed or has been
attached to any Facility.
5.14 EMPLOYEE MATTERS.
There is no strike or work stoppage in existence or threatened
involving Company or any of its Subsidiaries that could reasonably be expected
to have a Material Adverse Effect.
5.15 SOLVENCY.
Each Loan Party is and, upon the incurrence of any Obligations by
each Loan Party on any date on which this representation is made, will be,
Solvent.
5.16 DISCLOSURE.
No representation or warranty of Parent, Company or any of its
Subsidiaries contained in any Loan Document or in any other document,
certificate or written statement furnished to Lenders by or on behalf of Parent,
Company or any of its Subsidiaries for use
83
in connection with the transactions contemplated by this Agreement contains any
untrue statement of a material fact or omits to state a material fact (known to
Parent or Company, in the case of any document not furnished by it) necessary in
order to make the statements contained herein or therein not misleading in light
of the circumstances in which the same were made. Any projections and pro forma
financial information contained in such materials are based upon good faith
estimates and assumptions believed by Parent and Company to be reasonable at the
time made, it being recognized by Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ from the projected
results. There is no fact known to Parent or Company (other than matters of a
general economic nature) that has had, or could reasonably be expected to result
in, a Material Adverse Effect and that has not been disclosed herein or in such
other documents, certificates and statements furnished to Lenders for use in
connection with the transactions contemplated hereby.
5.17 INTELLECTUAL PROPERTY.
A. Company and its Subsidiaries own, or are licensed (to the
extent required to be so licensed) to use, the Intellectual Property and all
such Intellectual Property, title to which can be protected by registration, is
duly and properly registered, filed or issued in the appropriate office in all
material jurisdictions for such registrations, filing or issuances, and with
respect to such owned Intellectual Property Company owns all of the right, title
and interest in and to such Intellectual Property under the applicable laws of
the United States and with respect to such licensed Intellectual Property
Company owns valid title in and to such Intellectual Property, in each case free
and clear of any Lien other than Permitted Encumbrances.
B. No material claim has been asserted by any Person with
respect to the use of any such Intellectual Property, or challenging or
questioning the validity or effectiveness of any such Intellectual Property.
The use of such Intellectual Property by Company or any of its Subsidiaries does
not infringe on the rights of any Person, subject to such claims and
infringements as do not, in the aggregate, give rise to any liabilities on the
part of Company or any of its Subsidiaries that are material to Company and its
Subsidiaries, taken as a whole. The consummation of the transactions
contemplated by this Agreement will not in any material manner or to any
material extent impair the ownership of (or the license to use, as the case may
be) any of such Intellectual Property by Company or any of its Subsidiaries.
SECTION 6. AFFIRMATIVE COVENANTS
Parent and Company covenant and agree that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, Parent and Company shall
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perform, and shall cause each of Company's Subsidiaries to perform, all
covenants in this Section 6.
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Company will maintain, and cause each of its Subsidiaries to
maintain, a system of accounting established and administered in accordance with
sound business practices to permit preparation of financial statements in
conformity with GAAP. Company will deliver to Administrative Agent and Lenders:
(i) MONTHLY FINANCIALS: as soon as available and in any
event within 25 days after the end of each month ending after the Closing
Date, the consolidated balance sheets of Company and its Subsidiaries as
at the end of such month and the related consolidated statements of
income and cash flows of Company and its Subsidiaries for such month and
for the period from the beginning of the then current Fiscal Year to the
end of such month and a breakdown by major business line of sales,
Consolidated Capital Expenditures and Consolidated EBITDA figures for
such period, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous
Fiscal Year, all in reasonable detail and a summary of any Debt
Repurchases or Acquisition Expenditures during such month, together with
the total of all such Debt Repurchases or Acquisition Expenditures since
the Closing Date;
(ii) QUARTERLY FINANCIALS: as soon as available and in any
event within 50 days after the end of the first three fiscal quarters of
each Fiscal Year, (a) the consolidated and Consolidating balance sheets
of Company and its Subsidiaries as at the end of such fiscal quarter and
the related consolidated and Consolidating statements of income and cash
flows of Company and its Subsidiaries for the period from the beginning
of the then current Fiscal Year to the end of such fiscal quarter and for
the fiscal quarter then ended (with respect to statements of income
only), a breakdown by major business line of sales, Consolidated Capital
Expenditures and Consolidated EBITDA figures for such period, setting
forth in each case in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year and the corresponding
figures from the consolidated plan for the current Fiscal Year delivered
pursuant to subsection 6.1(xii) for consolidated sales, Consolidated
EBITDA and Consolidated Capital Expenditures, all in reasonable detail
and certified by the chief financial officer or chief accounting officer
of Company that they fairly present the financial condition of Company
and its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, subject to
changes resulting from audit and normal year-end adjustments, and (b) a
narrative report setting forth "Management's Discussion and Analysis of
Financial Conditions and Results of Operations" for the fiscal quarter
then ended and for the period from the beginning of the then current
Fiscal Year to the end of such fiscal quarter;
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(iii) YEAR-END FINANCIALS: as soon as available and in any
event within 95 days after the end of each Fiscal Year, (a) the
consolidated balance sheet of Company and its Subsidiaries as at the end
of such Fiscal Year and the related consolidated statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for
such Fiscal Year, a breakdown by major business line of sales,
Consolidated Capital Expenditures and Consolidated EBITDA figures for
such period, setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year and the corresponding
figures from the consolidated plan and financial forecast for the current
Fiscal Year delivered pursuant to subsection 6.1(xii), and within 120
days after the end of each Fiscal Year, a Consolidating balance sheet of
Company and its Subsidiaries as at the end of such Fiscal Year and the
related Consolidating statement of income of Company and its Subsidiaries
for such Fiscal Year, all in reasonable detail and certified by the chief
financial officer or chief accounting officer of Company that they fairly
present the financial condition of Company and its Subsidiaries as at the
dates indicated and the results of their operations and their cash flows
for the periods indicated, (b) a narrative report setting forth
"Management's Discussion and Analysis of Financial Conditions and Results
of Operations" for such Fiscal Year, and (c) in the case of such
consolidated financial statements, a report thereon of KMPG Peat Marwick
or other independent certified public accountants of recognized national
standing selected by Company and reasonably satisfactory to
Administrative Agent, which report shall be unqualified, shall express no
doubts about the ability of Company and its Subsidiaries to continue as a
going concern, and shall state that such consolidated financial
statements fairly present the consolidated financial position of Company
and its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated in conformity
with GAAP applied on a basis consistent with prior years (except as
otherwise disclosed in such financial statements) and that the
examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally accepted
auditing standards;
(iv) OFFICER'S AND COMPLIANCE CERTIFICATES: together with
each delivery of financial statements of Company and its Subsidiaries
pursuant to subdivisions (ii) and (iii) above, (1) an Officer's
Certificate of Company stating that the signer has reviewed the terms of
this Agreement and has made, or caused to be made under his supervision,
a review in reasonable detail of the transactions and condition of
Company and its Subsidiaries during the accounting period covered by such
financial statements and that such review has not disclosed the existence
during or at the end of such accounting period, and that the signer does
not have knowledge of the existence as at the date of such Officer's
Certificate, of any condition or event that constitutes an Event of
Default or Potential Event of Default, or, if any such condition or event
existed or exists, specifying the nature and period of existence thereof
and what action Company has taken, is taking and proposes to take with
respect thereto, (2) a Margin Determination Certificate demonstrating in
reasonable detail the Leverage Ratio for the four consecutive fiscal
quarters ending
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on the last day of the accounting period covered by such financial
statements and (3) a Compliance Certificate demonstrating in reasonable
detail compliance during and at the end of the applicable accounting
periods with the restrictions contained in Section 7, including without
limitation the amount of Debt Repurchases and Acquisition Expenditures;
(v) RECONCILIATION STATEMENTS: if, as a result of any change
in accounting principles from those in effect on the Closing Date, the
consolidated financial statements of Company and its Subsidiaries
delivered pursuant to subdivisions (ii), (iii) or (xii) of this
subsection 6.1 will differ in any material respect from the consolidated
financial statements that would have been delivered pursuant to such
subdivisions had no such change in accounting principles been made, then
together with the first delivery of a Compliance Certificate pursuant to
subdivision (iv)(3) above following such change and each subsequent
delivery of a Compliance Certificate, a written statement of the chief
accounting officer or chief financial officer of Company setting forth
the differences in the calculations contained therein which would have
resulted if such Compliance Certificates had been prepared after giving
effect to such change; notwithstanding any such change in accounting
principles and practices, calculations made in connection with the
definitions, covenants and other provisions of this Agreement shall be
made in accordance with GAAP as in effect on the Closing Date;
(vi) ACCOUNTANTS' CERTIFICATION: together with each delivery
of consolidated financial statements of Company and its Subsidiaries
pursuant to subdivision (iii) above, a written statement by the
independent certified public accountants giving the report thereon (a)
stating that their audit examination has included a review of the terms
of this Agreement and the other Loan Documents as they relate to
accounting matters, (b) stating whether, in connection with their audit
examination, any condition or event that constitutes an Event of Default
or Potential Event of Default has come to their attention and, if such a
condition or event has come to their attention, specifying the nature and
period of existence thereof; PROVIDED that such accountants shall not be
liable by reason of any failure to obtain knowledge of any such Event of
Default or Potential Event of Default that would not be disclosed in the
course of their audit examination, and (c) stating that based on their
audit examination nothing has come to their attention that causes them to
believe either or both that the information contained in the certificates
delivered therewith pursuant to subdivision (iv) above is not correct or
that the matters set forth in the Compliance Certificate delivered
therewith pursuant to clause (3) of subdivision (iv) above for the
applicable Fiscal Year are not stated in accordance with the terms of
this Agreement;
(vii) SEC FILINGS AND PRESS RELEASES: promptly upon their
becoming available, copies of (a) all financial statements, reports,
notices and proxy statements sent or made available generally by Parent
or Company to their respective public security holders or by any
Subsidiary of Company to its security
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holders other than Company, another Subsidiary of Company, or an
Affiliate of Company, (b) all regular and periodic reports and all
registration statements (other than on Form S-8 or a similar form) and
prospectuses, if any, filed by Parent, Company or any of Company's
Subsidiaries with any securities exchange or with the Securities and
Exchange Commission or any governmental or private regulatory authority,
and (c) all press releases and other statements made available generally
by Parent, Company or any of Company's Subsidiaries to the public
concerning material developments in the business of Parent, Company and
Company's Subsidiaries, taken as a whole;
(viii) EVENTS OF DEFAULT, ETC.: promptly upon any officer of
Parent or Company obtaining knowledge (a) of any condition or event that
constitutes an Event of Default or Potential Event of Default, or
becoming aware that any Lender or Administrative Agent has given any
notice or taken any other action with respect to a claimed Event of
Default or Potential Event of Default, (b) that any Person has given any
notice to Parent or Company or any of Company's Subsidiaries or taken any
other action with respect to a claimed default or event or condition of
the type referred to in subsection 8.2, or (c) of the occurrence of any
event or change that has caused or evidences, either in any case or in
the aggregate, a Material Adverse Effect, an Officer's Certificate
specifying the nature and period of existence of such condition, event or
change, or specifying the notice given or action taken by any such Person
and the nature of such claimed Event of Default, Potential Event of
Default, default, event or condition, and what action Parent or Company
has taken, is taking and proposes to take with respect thereto;
(ix) LITIGATION: promptly upon any officer of Parent or
Company obtaining knowledge of (a) the institution of, or non-frivolous
threat of, any action, suit, proceeding, governmental investigation or
arbitration against or affecting Company or any of its Subsidiaries or
any property of Parent or Company or any of Company's Subsidiaries
(collectively, "PROCEEDINGS") or (b) any material development in any
Proceeding that, in any case was not previously disclosed in writing by
Company to Administrative Agent and:
(1) if adversely determined, is reasonably likely to
cause a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a
result of, the transactions contemplated hereby;
written notice thereof together with such other information as may be
reasonably available to Parent or Company to enable Lenders and their
counsel to evaluate such matters;
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(x) ERISA EVENTS: promptly upon becoming aware of the
occurrence of any ERISA Event, a written notice specifying the nature
thereof, what action Parent, Company or any of their respective ERISA
Affiliates has taken, is taking or proposes to take with respect thereto
and, when known, any action taken or threatened by the Internal Revenue
Service, the Department of Labor or the PBGC with respect thereto;
(xi) ERISA NOTICES: with reasonable promptness, upon request
of Administrative Agent, copies of (a) each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed by Parent,
Company or any of their respective ERISA Affiliates with the Internal
Revenue Service with respect to each Pension Plan; (b) all notices
received by Parent, Company or any of their respective ERISA Affiliates
from a Multiemployer Plan sponsor concerning an ERISA Event; and (c) such
other documents or governmental reports or filings relating to any
Employee Benefit Plan as Administrative Agent shall reasonably request;
(xii) BUDGETS AND FORECASTS: within 120 days after the
beginning of each Fiscal Year, a consolidated plan and financial forecast
for the then current Fiscal Year and the next succeeding four Fiscal
Years, including, without limitation, forecasted consolidated balance
sheets and forecasted consolidated statements of income and cash flows of
Company and its Subsidiaries for such Fiscal Years, in each case in the
form provided to Lenders prior to the Closing Date, together with (a) an
explanation of the assumptions on which such forecasts are based and
(b) a breakdown by major business line of sales, Consolidated Capital
Expenditures and Consolidated EBITDA figures for such periods;
(xiii) INSURANCE: within 120 days after the last day of each
Fiscal Year, a report in form and substance satisfactory to
Administrative Agent outlining all material insurance coverage maintained
as of the date of such report by Company and its Subsidiaries and all
material planned changes for insurance coverage by Company and its
Subsidiaries in the immediately succeeding Fiscal Year;
(xiv) ENVIRONMENTAL AUDITS AND REPORTS: as soon as practicable
following receipt thereof, copies of all environmental audits and
reports, whether prepared by personnel of Company or any of its
Subsidiaries or by independent consultants, with respect to significant
environmental matters at any Facility or which relate to an Environmental
Claim, in each case which could result in a Material Adverse Effect;
(xv) BOARD OF DIRECTORS: with reasonable promptness, written
notice of any change in the Board of Directors of Parent or Company;
(xvi) NEW SUBSIDIARIES: with respect to each Person becoming a
Subsidiary of Company, a written notice setting forth with respect to
such Person (a) the date on which such Person became a Subsidiary of
Company and (b) all of
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the data required to be set forth in SCHEDULE 5.1 annexed hereto with
respect to all Subsidiaries of Company (it being understood that such
written notice shall be deemed to supplement SCHEDULE 5.1 annexed hereto
for all purposes of this Agreement), which notice shall be delivered with
each delivery of the financial statements required pursuant to subsection
6.1(ii) hereof; and
(xvii) OTHER INFORMATION: with reasonable promptness, such
other information and data with respect to Parent, Company or any of
Company's Subsidiaries as from time to time may be reasonably requested
by any Lender.
6.2 CORPORATE EXISTENCE, ETC.
Except as permitted under subsection 7.7, Parent and Company
will, and will cause each of Company's Subsidiaries other than any Inactive
Subsidiary to, at all times preserve and keep in full force and effect its
corporate existence and all rights and franchises material to its business.
6.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
A. Parent and Company will, and will cause each of Company's
Subsidiaries to, pay all material taxes, assessments and other governmental
charges imposed upon it or any of its properties or assets or in respect of any
of its income, businesses or franchises before any material penalty accrues
thereon, and all material claims (including, without limitation, claims for
labor, services, materials and supplies) for sums that have become due and
payable and that by law have or may become a Lien upon any of its properties or
assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; PROVIDED that no such tax, assessment, penalty, other charge or
claim need be paid if being contested in good faith by appropriate proceedings
instituted in a timely manner, and diligently conducted and if such reserve or
other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made therefor.
B. Neither Parent nor Company will, nor will they permit any
of Company's Subsidiaries to, file or consent to the filing of any consolidated
income tax return with any Person (other than Parent, Company or any of
Company's Subsidiaries).
6.4 MAINTENANCE OF PROPERTIES; INSURANCE.
Parent and Company will, and will cause each of Company's
Subsidiaries to, maintain or cause to be maintained in good repair, working
order and condition, ordinary wear and tear excepted, all material properties
owned or leased by Company or any of its Subsidiaries and used in the business
of Company and its Subsidiaries and from time to time will make or cause to be
made all appropriate repairs, renewals and replacements thereof. Company will
maintain or cause to be maintained, with financially sound and reputable
insurers, insurance (with appropriate deductibles) with respect to its
properties and business and the properties and businesses of its Subsidiaries
against loss or damage of
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the kinds customarily carried or maintained under similar circumstances by
corporations of established reputation engaged in similar businesses. Each such
policy of insurance that insures against loss or damage with respect to any
Collateral shall name Administrative Agent for the benefit of Lenders as the
loss payee thereunder for amounts payable under such policy in excess of
$500,000 and shall provide for at least 30 days prior written notice to
Administrative Agent of any modification or cancellation of such policy.
6.5 INSPECTION; LENDER MEETING.
Parent and Company shall, and shall cause each of Company's
Subsidiaries to, permit any authorized representatives designated by any Lender
to visit and inspect any of the properties of Parent, Company or any of
Company's Subsidiaries, including its and their financial and accounting
records, and to make copies and take extracts therefrom, and to discuss its and
their affairs, finances and accounts with its and their officers and independent
public accountants (provided that Parent or Company may, if it so chooses, be
present at or participate in any such discussion), all as reasonably requested,
upon reasonable notice and at such reasonable times during normal business hours
and as often as may be reasonably requested. Without in any way limiting the
foregoing, Company will, upon the request of Administrative Agent or Requisite
Lenders, participate in a meeting of Administrative Agent and Lenders once
during each Fiscal Year to be held at Company's corporate offices (or such other
location as may be agreed to by Company and Administrative Agent) at such time
as may be agreed to by Company and Administrative Agent.
6.6 COMPLIANCE WITH LAWS, ETC.
Parent and Company shall, and shall cause each of Company's
Subsidiaries to, comply with the requirements of all applicable laws, rules,
regulations and orders of any governmental authority, noncompliance with which
is reasonably likely to cause a Material Adverse Effect.
6.7 ENVIRONMENTAL DISCLOSURE AND INSPECTION.
A. Company shall, and shall cause each of its Subsidiaries
to, exercise reasonable due diligence in order to comply and cause (i) all
tenants under any leases or occupancy agreements affecting any portion of the
Facilities and (ii) all other Persons on or occupying such Facilities, to comply
with all Environmental Laws.
B. Company agrees that Administrative Agent may, from time
to time and in its discretion, retain, at Company's expense, an independent
professional consultant to review any report relating to Hazardous Materials
prepared by or for Company and to conduct its own investigation of any Facility
with respect to which the Administrative Agent and Requisite Lenders have cause
to believe that there is a reasonable possibility of an Environmental Claim
having a Material Adverse Effect and that is currently owned, leased, operated
or used by Company or any of its Subsidiaries, and Company agrees to
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use its best efforts to obtain permission for Administrative Agent's
professional consultant to conduct its own investigation of any Facility
previously owned, leased, operated or used by Company or any of its
Subsidiaries. Company hereby grants to Administrative Agent and its agents,
employees, consultants and contractors upon reasonable notice to Company the
right to enter into or on to the Facilities to perform such tests on such
property as are reasonably necessary to conduct such a review and/or
investigation. Any such investigation of any Facility shall be conducted,
unless otherwise agreed to by Company and Administrative Agent, during normal
business hours and, to the extent reasonably practicable, shall be conducted so
as not to interfere with the ongoing operations at any such Facility or to cause
any damage or loss to any property at such Facility. Company and Administrative
Agent hereby acknowledge and agree that any report of any investigation
conducted at the request of Administrative Agent pursuant to this subsection
6.7B will be obtained and shall be used by Administrative Agent and Lenders for
the purposes of Lenders' internal credit decisions, to monitor and police the
Loans and to protect Lenders' security interests, if any, created by the Loan
Documents. Administrative Agent agrees to deliver a copy of any such report to
Company with the understanding that Company acknowledges and agrees that (i) it
will indemnify and hold harmless Administrative Agent and each Lender from any
costs, losses or liabilities relating to Company's use of or reliance on such
report, (ii) neither Administrative Agent nor any Lender makes any
representation or warranty with respect to such report, and (iii) by delivering
such report to Company, neither Administrative Agent nor any Lender is requiring
or recommending the implementation of any suggestions or recommendations
contained in such report.
C. Company shall promptly advise Lenders in writing and in
reasonable detail of (i) any Release of any Hazardous Materials required to be
reported to any federal, state or local governmental or regulatory agency under
any Environmental Laws, (ii) any and all written communications with respect to
any Environmental Claims that have a reasonable possibility of giving rise to a
Material Adverse Effect or with respect to any Release of Hazardous Materials
required to be reported to any federal, state or local governmental or
regulatory agency, (iii) any remedial action taken by Company or any other
Person in response to (x) any Hazardous Materials on, under or about any
Facility, the existence of which has a reasonable possibility of resulting in an
Environmental Claim having a Material Adverse Effect, or (y) any Environmental
Claim that could have a Material Adverse Effect, (iv) Company's discovery of any
occurrence or condition on any real property adjoining or in the vicinity of any
Facility that could cause such Facility or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use thereof under
any Environmental Laws, and (v) any request for information from any
governmental agency that suggests such agency is investigating whether Company
or any of its Subsidiaries may be potentially responsible for a Release of
Hazardous Materials.
D. Company shall promptly notify Lenders of (i) any proposed
acquisition of stock, assets, or property by Company or any of its Subsidiaries
that could reasonably be expected to expose Company or any of its Subsidiaries
to, or result in,
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Environmental Claims that could have a Material Adverse Effect or that could
reasonably be expected to have a material adverse effect on any Governmental
Authorization then held by Company or any of its Subsidiaries and (ii) any
proposed action to be taken by Company or any of its Subsidiaries to commence
manufacturing, industrial or other operations that could reasonably be expected
to subject Company or any of its Subsidiaries to additional laws, rules or
regulations, including, without limitation, laws, rules and regulations
requiring additional environmental permits or licenses.
E. Company shall, at its own expense, provide copies of such
documents or information as Administrative Agent may reasonably request in
relation to any matters disclosed pursuant to this subsection 6.7.
6.8 COMPANY'S REMEDIAL ACTION REGARDING HAZARDOUS MATERIALS.
Company shall promptly take, and shall cause each of its
Subsidiaries promptly to take, conduct and complete, any and all necessary
remedial action in connection with the presence, storage, use, disposal,
transportation or Release of any Hazardous Materials on, under or about any
Facility in order to comply with all applicable Environmental Laws and
Governmental Authorizations. In the event Company or any of its Subsidiaries
undertakes any remedial action with respect to any Hazardous Materials on, under
or about any Facility, Company or such Subsidiary shall conduct and complete
such remedial action in compliance with all applicable Environmental Laws, and
in accordance with the policies, orders and directives of all federal, state and
local governmental authorities except when, and only to the extent that, either
Company's or such Subsidiary's liability for such presence, storage, use,
disposal, transportation or discharge of any Hazardous Materials or the
applicability of certain Environmental Laws is being contested in good faith by
Company or such Subsidiary.
6.9 EXECUTION OF SUBSIDIARY GUARANTY AND COLLATERAL DOCUMENTS BY FUTURE
SUBSIDIARIES; AUXILIARY PLEDGE AGREEMENTS; RELEASE OF LIENS AND
GUARANTEES.
A. In the event that any Person becomes a Subsidiary of
Company after the Closing Date, Company will promptly notify Administrative
Agent of that fact and cause such Subsidiary, if such Subsidiary is a Domestic
Subsidiary (other than a Subsidiary of BHFS or an Inactive Subsidiary), to
execute and deliver to Administrative Agent a counterpart of the Subsidiary
Guaranty, and prior to the Collateral Release Date, a Subsidiary Pledge
Agreement. Company shall deliver to Administrative Agent, together with such
Subsidiary Pledge Agreement and Guaranty and the pledge amendment described
below, (i) certified copies of such Domestic Subsidiary's Articles or
Certificate of Incorporation, together with a good standing certificate from the
Secretary of State of the jurisdiction of its incorporation, each to be dated a
recent date prior to their delivery to Administrative Agent, (ii) a copy of such
Domestic Subsidiary's Bylaws, certified by its corporate secretary or an
assistant corporate secretary as of a recent date prior to their delivery to
Administrative Agent, (iii) a certificate executed by the secretary or an
assistant secretary of such Domestic Subsidiary as to (a) the incumbency and
signatures of the
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officers of such Domestic Subsidiary executing the Subsidiary Guaranty and the
Subsidiary Pledge Agreement to which such Domestic Subsidiary is a party and (b)
the fact that the attached resolutions of the Board of Directors of such
Domestic Subsidiary authorizing the execution, delivery and performance of the
Subsidiary Guaranty and such Subsidiary Pledge Agreement are in full force and
effect and have not been modified or rescinded, and (iv) if required by
Administrative Agent, a favorable opinion of counsel to such Domestic
Subsidiary, in form and substance satisfactory to Administrative Agent and its
counsel, as to (a) the valid existence and good standing of such Domestic
Subsidiary, (b) the due authorization, execution and delivery by such Domestic
Subsidiary of the Subsidiary Guaranty and such Subsidiary Pledge Agreement, (c)
the enforceability of the Subsidiary Guaranty and such Subsidiary Pledge
Agreement against such Domestic Subsidiary, and (d) such other matters as
Administrative Agent may reasonably request, all of the foregoing to be
satisfactory in form and substance to Administrative Agent and its counsel.
With respect to any such Domestic Subsidiary prior to the Collateral Release
Date, Company shall also deliver to Administrative Agent a pledge amendment to
the Company Pledge Agreement or the applicable Subsidiary Pledge Agreement, as
appropriate, granting to Administrative Agent on behalf of Lenders a first
priority security interest in 100% of the capital stock of such Domestic
Subsidiary, and with respect to any such Foreign Subsidiary (other than an
Inactive Subsidiary or a Foreign Subsidiary acquired in accordance with clause
(d) of subsection 7.7(iv)) prior to the Collateral Release Date, Company shall
deliver to Administrative Agent an Auxiliary Pledge Agreement granting to
Administrative Agent on behalf of Lenders a first priority security interest in
66% of the capital stock of such Foreign Subsidiary, and, in each case, Company
shall take, or cause to be taken, all such other actions as Administrative Agent
shall deem necessary or desirable to perfect such security interest.
B. Anything contained in this Agreement or any of the other
Loan Documents to the contrary notwithstanding, in the event that, as a result
of any changes in United States tax laws after the date hereof, (i) the
continuation of any pledges of any shares of stock of any Foreign Subsidiaries
pursuant to any of the Collateral Documents would cause Company and its
Subsidiaries on a consolidated basis to incur net tax liabilities in an
aggregate amount that is $1,000,000 or more in excess of the aggregate net
consolidated tax liabilities that Company and its Subsidiaries would incur in
the absence of such stock pledges, then, so long as no Event of Default or
Potential Event of Default has occurred and is continuing and upon the consent
of Administrative Agent, which consents shall not be unreasonably withheld, such
pledges of shares of stock shall terminate, and no further pledges of shares of
stock of any Foreign Subsidiaries shall be required under any of the Collateral
Documents, in each case to the extent, and only to the extent, necessary so that
the aggregate net consolidated tax liabilities of Company and its Subsidiaries
are no more than $1,000,000 in excess of the aggregate net consolidated tax
liabilities that Company and its Subsidiaries would incur if no shares of stock
of any Foreign Subsidiaries were pledged pursuant to any of the Collateral
Documents; provided that if less than all of the shares of stock of Foreign
Subsidiaries pledged under the Collateral Documents are required to be released
from such pledges pursuant to the terms of this sentence, Administrative Agent
shall be entitled to select which of such shares shall be
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released so long as the required reduction in the aggregate net consolidated tax
liabilities of Company and its Subsidiaries is achieved as a result thereof, or
(ii) the pledge of any additional shares of stock of any Foreign Subsidiaries
pursuant to any of the Collateral Documents would not result in an increase in
the aggregate net consolidated tax liabilities of Company and its Subsidiaries,
then prior to the Collateral Release Date, Company shall, or Company shall cause
its relevant Subsidiary to, promptly pledge such additional shares of stock
under the applicable Collateral Document. Further, notwithstanding anything to
the contrary herein contained, upon the consummation of any sale of assets,
including an Asset Sale, permitted by this Agreement or consented to by the
Requisite Lenders, the Liens under the Collateral Documents with respect to such
assets will be released in accordance with the terms of the Collateral Documents
and, if such asset sale involves the sale of a Subsidiary that has executed a
Subsidiary Guaranty, such Subsidiary Guaranty will terminate and be of no
further force and effect with respect to such Subsidiary in accordance with the
terms of such Subsidiary Guaranty. Administrative Agent and Lenders agree to
take all actions necessary to effectuate the releases of Liens and guarantors
under the Subsidiary Guaranties contemplated by this subsection 6.9, in each
case in accordance with the terms of the applicable Collateral Documents and
Guaranties.
C. In the event that Company and Parent have not combined in
a combination permitted pursuant to subsection 7.7 on or prior to February 1,
1998, Parent shall as soon as practicable after such date execute and deliver to
Administrative Agent the Parent Pledge Agreement, substantially in the form of
Exhibit XI annexed hereto, and shall deliver to Administrative Agent
certificates (which certificates shall be properly endorsed in blank for
transfer or accompanied by irrevocable undated stock powers duly endorsed in
blank, all in form and substance satisfactory to Administrative Agent)
representing all of the Company Common Stock, and shall take all such other
actions as may be necessary or desirable to create in favor of Administrative
Agent for the benefit of Lenders a first priority perfected security interest in
all shares of the Company Common Stock; PROVIDED that the granting of such Lien
shall not be in violation of the 11-1/2% Senior Discount Debenture Indenture.
D. Anything contained in this Agreement or any of the other
Loan Documents to the contrary notwithstanding, in the event that: (i) as of
the first day of any fiscal quarter, the actual or implied rating established
and publicly announced or provided in a private letter with respect to senior,
unsecured non-credit enhanced long term debt of the Company (a "RATING") from
either Standard & Poor's Rating Group or Xxxxx'x Investors Service, Inc.
(collectively, the "RATING AGENCIES") is BBB or Baa2, as applicable, or higher
as of such date or, in the event that the Ratings assigned by the Rating
Agencies are not equivalent, the lower of such two Ratings shall be equal to or
better than BBB- or Baa3, as applicable, or higher as of such date, (ii) such
Rating has, or Ratings have, as the case may be continuously been BBB or Baa2,
or BBB- or Baa3, as applicable, or higher during the two consecutive fiscal
quarters immediately preceding such date, (iii) the Company is not and shall not
have been on credit watch with negative implications by the Rating Agencies, and
(iv) no Event of Default or Potential Event of Default has occurred and is
continuing, the Company may request that the Administrative
95
Agent shall, at the Company's expense, release the Liens under the Collateral
Documents with respect to the Collateral in accordance with the terms of the
Collateral Documents and, on a date (the "Collateral Release Date") as soon as
practicable thereafter, Administrative Agent shall release all Liens under the
Collateral Documents.
E. To the extent actions required to be taken and documents
required to be delivered under subsection 4.1D with respect to the Auxiliary
Pledge Agreements or under subsection 4.1C with respect to the Mortgages have
not been so taken or delivered on the Closing Date, in each case as may be
approved by Administrative Agent on the Closing Date, Company shall take such
actions or shall deliver such documents by a date which is no later than 60 days
after the Closing Date, all such actions and documents to be in form and
substance satisfactory to Administrative Agent.
6.10 ADDITIONAL MORTGAGES.
On and after the Closing Date and prior to the Collateral Release
Date, Company shall, excluding Owned Real Property Assets with an aggregate
value for all such excluded assets of $2,000,000 or less, with respect to Owned
Real Property Assets hereafter acquired by Company or any of its Domestic
Subsidiaries (including any Domestic Subsidiary formed or acquired after the
date hereof), deliver (a) fully executed counterparts of Mortgages (each an
"ADDITIONAL MORTGAGE" and collectively the "ADDITIONAL MORTGAGES") encumbering
such fee interest, together with evidence that counterparts of such Additional
Mortgages have been recorded in all places to the extent necessary or desirable,
in the judgment of Administrative Agent, so as to effectively create a valid and
enforceable first priority Lien, subject only to Permitted Encumbrances, on such
Owned Real Property Asset in favor of Administrative Agent (or such other
trustee as may be required or desired under local law) for the benefit of
Lenders; (b) a title report obtained by Company in respect of any such Owned
Real Property Asset; (c) if required by Administrative Agent, an opinion of
counsel (which counsel shall be satisfactory to Administrative Agent) in the
state in which such Owned Real Property Asset is located with respect to the
enforceability of the form of Additional Mortgage recorded in such state and
such other matters as Administrative Agent may request, in form and substance
satisfactory to Administrative Agent; (d) if required by Administrative Agent,
in the case of each such Owned Real Property Asset, an environmental audit
prepared by professional consultants mutually acceptable to Company and
Administrative Agent, in form, scope and substance satisfactory to
Administrative Agent; (e) if required by Administrative Agent, in the case of
each such Owned Real Property Asset, a Mortgage Policy in an amount satisfactory
to Administrative Agent with respect to such Additional Mortgage; and (f)
evidence, which may be in the form of a letter from an insurance broker or a
municipal engineer, as to whether (1) any such Owned Real Property Asset
("ADDITIONAL FLOOD HAZARD PROPERTY") is in an area designated by the Federal
Emergency Management Agency as having special flood or mud slide hazards and (2)
the community in which each Additional Flood Hazard Property is located is
participating in the National Flood Insurance Program; and (h) if there are any
Additional Flood Hazard Properties, Company's written acknowledgment of receipt
of written notification from Administrative
96
Agent (1) as to the existence of each such Additional Flood Hazard Property and
(2) as to whether the community in which each such Flood Hazard Property is
located is participating in the National Flood Insurance Program.
Company shall, permit authorized representatives designated by
Administrative Agent, upon reasonable notice, to visit and inspect any Owned
Real Property Assets to be subject to the Lien of an Additional Mortgage, for
the purpose of obtaining an appraisal of value, conducted by consultants
retained by Administrative Agent in compliance with all applicable banking
regulations, with respect to such real property fee interest.
6.11 BHFS ADVANCES TO COMPANY.
Periodically, BHFS Group shall make available its cash to
Company, and the Canadian Receivable Division shall make available its cash to
Xxxx & Xxxxxx Ltd., each in accordance with the past practices of BHFS Group.
SECTION 7. NEGATIVE COVENANTS
Parent and Company covenant and agree that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, Parent and Company shall perform, and shall cause each of Company's
Subsidiaries to perform, all covenants in this Section 7.
7.1 INDEBTEDNESS.
Parent and Company shall not, and shall not permit any of
Company's Subsidiaries to, directly or indirectly, create, incur, assume or
guaranty, or otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness, except:
(i) Company may become and remain liable with respect to the
Obligations;
(ii) Parent, Company and Company's Subsidiaries may become and
remain liable with respect to Contingent Obligations permitted by
subsection 7.4 and, upon any matured obligations actually arising
pursuant thereto, the Indebtedness corresponding to the Contingent
Obligations so extinguished;
(iii) (a) Company may become and remain liable with respect to
Indebtedness to any of its Wholly-Owned Subsidiaries; (b) any Wholly-
Owned Subsidiary of Company (other than BHFS Group) that prior to the
Collateral Release Date is a Pledged Subsidiary or after the Collateral
Release Date is a
97
Wholly-Owned Domestic Subsidiary may become and remain liable with
respect to Indebtedness to Company or any other Wholly-Owned Domestic
Subsidiary of Company; (c) any Wholly-Owned Foreign Subsidiary that prior
to the Collateral Release Date is a Pledged Subsidiary or after the
Collateral Release Date is a Wholly-Owned Foreign Subsidiary of the
Company may become and remain liable with respect to Indebtedness to any
other Foreign Subsidiary of the Company; and (d) Persons in the BHFS
Group may become and remain liable with respect to Indebtedness to
Company in an aggregate principal amount which does not exceed $5,000,000
outstanding at any one time and to any other Person in the BHFS Group;
PROVIDED that (1) all such intercompany Indebtedness shall be evidenced
by promissory notes which notes (other than notes issued and payable to
Foreign Subsidiaries) prior to the Collateral Release Date shall be
pledged to Administrative Agent, on behalf of Lenders, as security for
the Obligations, (2) all such intercompany Indebtedness owed by Company
to any of its Subsidiaries or by any of such Subsidiaries to Company
shall be subordinated in right of payment to the payment in full of the
Obligations pursuant to the terms of the applicable promissory notes or
an intercompany subordination agreement, in each case in form and
substance satisfactory to Administrative Agent and its counsel, and
(3) any payment by any Domestic Subsidiary of Company under the
Subsidiary Guaranty shall result in a PRO TANTO reduction of the amount
of any intercompany Indebtedness owed by such Subsidiary to Company or to
any of its Subsidiaries for whose benefit such payment is made; PROVIDED
further that the aggregate amount of all outstanding Indebtedness of
Foreign Subsidiaries to Company and its Wholly-Owned Domestic
Subsidiaries shall not exceed $25,000,000 at any time;
(iv) Company and its Domestic Subsidiaries (other than BHFS
Group), as applicable, may remain liable with respect to unsecured
Indebtedness described in SCHEDULE 7.1 annexed hereto;
(v) Parent may remain liable with respect to the Indebtedness
evidenced by the 11-1/2% Senior Discount Debentures; PROVIDED that Parent
within the time period permitted by the 11-1/2% Senior Discount Debenture
Indenture shall have called for redemption and shall have redeemed
11-1/2% Senior Discount Debentures from not less than $95,000,000 in
proceeds from the Common Stock Offering and Parent shall commence a
tender offer for its 11-1/2% Senior Discount Debentures in accordance
with the provisions of subsection 7.13D;
(vi) Company and its Wholly-Owned Subsidiaries (other than
BHFS Group) may become and remain liable with respect to Indebtedness
incurred or assumed in connection with an Acquisition permitted under
subsection 7.7(iv) PROVIDED that the proceeds of any such incurred
Indebtedness are applied to make Acquisition Expenditures permitted under
subsection 7.7(iv);
(vii) Company may remain liable with respect to the Indebtedness
evidenced by the Senior Notes and the 10-3/4% Subordinated Notes PROVIDED
that
98
Company calls its 10 3/4% Subordinated Notes for redemption in accordance
with the provisions of subsection 7.13A; and the Company may incur and
remain liable with respect to unsecured Indebtedness incurred to
refinance the Senior Notes and/or the outstanding amount of any Debt
Repurchases related to redemptions or repurchases of Senior Notes;
PROVIDED that (a) the aggregate principal amount of such refinancing
Indebtedness and any outstanding Senior Notes shall not exceed
$100,000,000; (b) the weighted average life to maturity of such
refinancing Indebtedness shall be no shorter than 180 days after the
Commitment Termination Date; and (c) the terms and conditions of any such
refinancing Indebtedness and any guarantees of such refinancing
Indebtedness are no less favorable to the Lenders than the terms and
conditions of the Senior Notes or are as otherwise approved by Requisite
Lenders;
(viii) Company's Foreign Subsidiaries may become and remain
liable with respect to Foreign Financial Accommodations in an aggregate
amount which, together with the aggregate outstanding amount of
receivables sold by Foreign Subsidiaries permitted under subsection
7.9(a), the aggregate amount of assumed Indebtedness outstanding which
Company elects under the proviso to clause (vi)(c) hereof to apply
against this clause (viii) and the aggregate amount of outstanding
Contingent Obligations permitted under subsection 7.4(xi), shall not
exceed $80,000,000 at any time outstanding;
(ix) BHFS Group may become and remain liable with respect to
Indebtedness that is Non-Recourse Debt;
(x) Company and its Domestic Subsidiaries (other than BHFS
Group) may become and remain liable with respect to other Indebtedness in
an aggregate principal amount, which together with outstanding Contingent
Obligations permitted under subsection 7.4(xiii), does not exceed
$25,000,000 at any time outstanding;
(xi) Company and its Subsidiaries may become and remain liable
with respect to Capital Leases in an amount not exceeding $10,000,000 and
other Capital Leases permitted under clauses (vi) or (x) of this
subsection 7.1;
(xii) the Canadian Receivables Division may become and remain
liable with respect to Indebtedness that is Non-Recourse Debt in an
aggregate amount which, together with the aggregate outstanding
receivables sold as permitted under subsection 7.9(c) by the Canadian
Receivables Division, does not exceed $15,000,000 at any time
outstanding; and
(xiii) Company may become and remain liable with respect to
Subordinated Indebtedness up to a maximum aggregate principal amount of
$200,000,000, the terms and conditions of such Subordinated Indebtedness
and of any guarantees of such Subordinated Indebtedness to be subject to
the approval of the Requisite Lenders which approval shall not be
unreasonably withheld; PROVIDED that after
99
giving effect to the incurrence of such Indebtedness, Company's total
Indebtedness shall not exceed the permitted Leverage Ratio pursuant to
subsection 7.6B.
7.2 LIENS AND RELATED MATTERS.
A. PROHIBITION ON LIENS. Parent and Company shall not, and shall
not permit any of Company's Subsidiaries to, directly or indirectly, create,
incur, assume or permit to exist any Lien on or with respect to any property or
asset of any kind (including any document or instrument in respect of goods or
accounts receivable) of Parent, Company or any of Company's Subsidiaries,
whether now owned or hereafter acquired, or any income or profits therefrom, or
file or permit the filing of, or permit to remain in effect, any financing
statement or other similar notice of any Lien with respect to any such property,
asset, income or profits under the Uniform Commercial Code of any State or under
any similar recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) (a) Liens on the assets of Company's Foreign Subsidiaries
(other than the Canadian Receivables Division) and Liens on the
Friedberg, Germany, plant owned by Xxxx & Xxxxxx GmbH, in each case
securing Indebtedness permitted under subsection 7.1 (viii) and (b) Liens
on the accounts receivable, inventory and proceeds thereof of the
Canadian Receivables Division securing Indebtedness permitted under
subsection 7.1 (xii);
(iii) Liens on the receivables, inventory and proceeds thereof
of BHFS Group securing Indebtedness permitted under subsection 7.1(ix);
(iv) Liens described in SCHEDULE 7.2 annexed hereto;
(v) Liens securing the Contingent Obligations of Company or
BHFS with respect to Interest Rate Agreements and Currency Agreements
with any Lender or any Affiliates of any Lender that are permitted under
subsections 7.4(v) or (vii), as the case may be;
(vi) Liens granted pursuant to the Collateral Documents;
(vii) Liens securing Indebtedness permitted under subsection
7.1(vi) so long as such Liens do not encumber any asset other than the
assets acquired in such Acquisition;
(viii) Any Liens on receivables of Foreign Subsidiaries, the
Canadian Receivables Division or BHFS Group arising in connection with
the sale or pledge of such receivables permitted under subsection 7.9 in
the ordinary course of business;
100
(ix) Additional Liens which do not in the aggregate secure
liabilities in excess of $10,000,000; and
(x) Liens securing Indebtedness under Capital Leases
permitted under subsection 7.1(xi).
B. EQUITABLE LIEN IN FAVOR OF LENDERS. If Parent, Company or any of
its Subsidiaries shall create or assume any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, other than Liens excepted by
the provisions of subsection 7.2A, it shall make or cause to be made effective
provision whereby the Obligations will be secured by such Lien equally and
ratably with any and all other Indebtedness secured thereby as long as any such
Indebtedness shall be so secured; PROVIDED that, notwithstanding the foregoing,
this covenant shall not be construed as a consent by Requisite Lenders to the
creation or assumption of any such Lien not permitted by the provisions of
subsection 7.2A.
C. NO FURTHER NEGATIVE PLEDGES. Except with respect to specific
property encumbered to secure payment of particular Indebtedness or to be sold
pursuant to an executed agreement with respect to any sale of assets (including
without limitation, an Asset Sale) or as set forth in the Indentures or any
other indenture governing Indebtedness permitted pursuant to subsection 7.1(vii)
or 7.1(xiii), neither Parent, Company nor any of its Subsidiaries shall enter
into any agreement prohibiting the creation or assumption of any Lien upon any
of its properties or assets, whether now owned or hereafter acquired.
D. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO COMPANY OR OTHER
SUBSIDIARIES. Except as provided herein and in the Indentures or any other
indenture governing Indebtedness permitted pursuant to subsection 7.1(vii) or
7.1(xiii), Company will not, and will not permit any of its Subsidiaries to,
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction (other than a prior notice requirement) of any kind
on the ability of any such Subsidiary to (i) pay dividends or make any other
distributions on any of such Subsidiary's capital stock owned by Company or any
other Subsidiary of Company, (ii) repay or prepay any Indebtedness owed by such
Subsidiary to Company or any other Subsidiary of Company (other than BHFS
Group), (iii) make loans or advances to Company or any other Subsidiary of
Company (other than BHFS Group), or (iv) transfer any of its property or assets
to Company or any other Subsidiary of Company (other than BHFS Group).
7.3 INVESTMENTS; JOINT VENTURES.
Parent and Company shall not, and shall not permit any of
Company's Subsidiaries to, directly or indirectly, make or own any Investment in
any Person, including any Joint Venture, except:
(i) Company and its Subsidiaries may make and own Investments
in Cash Equivalents;
101
(ii) Company and its Subsidiaries may make intercompany loans
to the entities and to the extent permitted under subsection 7.1(iii);
(iii) Company and its Subsidiaries may continue to own their
existing Investments in their respective Subsidiaries as of the Closing
Date and may make additional Investments in their respective Wholly-Owned
Domestic Subsidiaries as of the Closing Date (other than BHFS Group);
PROVIDED that Persons in BHFS Group may make additional Investments in
other Persons in BHFS Group;
(iv) Company and its Wholly-Owned Domestic Subsidiaries may
make additional Investments in their respective Wholly-Owned Foreign
Subsidiaries that (a) prior to the Collateral Release Date such Wholly-
Owned Foreign Subsidiaries are Pledged Subsidiaries and (b) the aggregate
of all such Investments consisting of equity contributions do not exceed
$15,000,000 in the aggregate for all such Investments since the Closing
Date;
(v) Company and its Wholly-Owned Domestic Subsidiaries (other
than BHFS Group) may make and own Investments in Persons that, as a
result of such Investments, become additional Wholly-Owned Domestic
Subsidiaries and Company may make and own Investments in Persons that, as
a result of such Investments become additional direct Wholly-Owned
Foreign Subsidiaries, in each case to the extent such Investments are
permitted under subsection 7.7(iv); PROVIDED, that Company shall, and
shall cause its Subsidiaries to comply with the requirements of
subsections 6.9 and 6.10 with respect to each such additional Subsidiary;
(vi) Company and its Subsidiaries may make loans and advances
to employees that constitute Investments in an aggregate amount not to
exceed at any time outstanding $2,500,000 in addition to other
Investments otherwise permitted hereunder;
(vii) Company and its Subsidiaries may continue to own the
Investments owned by them and described in SCHEDULE 7.3 annexed hereto;
(viii) Parent may continue to own and make Investments in
Company;
(ix) Parent and Company may purchase shares of Parent common
stock from management of Company and Parent, in each case as permitted
under subsection 7.5;
(x) Parent and Company may make loans to employees of Parent,
Company or any of its Subsidiaries for the purchase of shares of capital
stock of Parent issued by Parent; PROVIDED that the aggregate amount of
all such loans does not exceed $12,000,000 at any time outstanding;
102
(xi) Company and its Wholly-Owned Domestic Subsidiaries (other
than BHFS Group) may make and own an Investment in a Person that is
engaged in businesses that are similar, related or complementary to the
business engaged in by the Company or its direct and indirect
Subsidiaries as of the Closing Date, including providing facilities,
equipment or services to them; PROVIDED that the amount of such
Investment does not exceed $15,000,000 for any single such Investment or
$40,000,000 in the aggregate at any time outstanding for all such
Investments; and
(xii) Company and its Wholly-Owned Domestic Subsidiaries and
its Foreign Subsidiaries may make Investments of up to a maximum
aggregate amount of $10,000,000 with respect to funds being held for the
account of employees pursuant to deferred compensation or employee
benefit or retirement plans.
7.4 CONTINGENT OBLIGATIONS.
Parent and Company shall not, and shall not permit any of
Company's Subsidiaries to, directly or indirectly, create or become or remain
liable with respect to any Contingent Obligation, except:
(i) Company and its Domestic Subsidiaries (other than BHFS
Group and Inactive Subsidiaries) may become and remain liable with
respect to Contingent Obligations in respect of Letters of Credit;
(ii) Loan Parties may become and remain liable with respect to
Contingent Obligations under the Guaranties;
(iii) Company may become and remain liable with respect to
Contingent Obligations of up to $25,000,000 in respect of Foreign
Financial Accommodations permitted under subsection 7.1(viii); PROVIDED
the Company shall notify Administrative Agent upon the incurrence,
satisfaction or other change with respect to such Contingent Obligations;
(iv) Company's Domestic Subsidiaries (other than BHFS Group)
may become and remain liable with respect to guaranties of the Senior
Notes and the 10-3/4% Subordinated Notes and other guarantees to the
extent permitted pursuant to subsection 7.1(viii) or 7.1(xiii);
(v) Company may become and remain liable with respect to
Contingent Obligations under Interest Rate Agreements with respect to
permitted Indebtedness of Company and its Subsidiaries (other than BHFS
Group), PROVIDED that the aggregate notional principal amount under all
such Interest Rate Agreements of Company does not exceed at any time the
amount of the Commitments; and BHFS may become and remain liable with
respect to Contingent Obligations under Interest
103
Rate Agreements with respect to permitted Indebtedness of BHFS Group and
the Canadian Receivable Division;
(vi) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations in respect of customary
indemnification and purchase price adjustment obligations incurred in
connection with Asset Sales or other sales of assets;
(vii) Company and its Domestic Subsidiaries may become and
remain liable with respect to Contingent Obligations under Currency
Agreements with respect to an aggregate notional amount not to exceed at
any time $150,000,000 and the Foreign Subsidiaries may become and remain
liable with respect to Contingent Obligations under Currency Agreements
with respect to an aggregate notional amount not to exceed at any time
$50,000,000 and BHFS may become and remain liable with respect to
Contingent Obligations under Currency Agreements with respect to an
aggregate notional amount not to exceed at any time $10,000,000; PROVIDED
that no more than $100,000,000 in aggregate notional amount of Currency
Agreements with a term greater than 12 months shall be outstanding at any
time;
(viii) Persons in BHFS Group may become and remain liable with
respect to guarantees of Indebtedness of other Persons in BHFS Group
permitted under subsection 7.1(ix) and BHFS may become and remain liable
with respect to guarantees of up to $15,000,000 in Indebtedness of the
Canadian Receivables Division permitted under subsection 7.1(xii);
(ix) Company and its Subsidiaries, as applicable, may remain
liable with respect to Contingent Obligations described in SCHEDULE 7.4
annexed hereto;
(x) Company may become and remain liable with respect to
Contingent Obligations in respect of tax indemnity payments to management
of Company owning Company Common Stock or common stock of Parent to the
extent permitted under subsection 7.5;
(xi) Foreign Subsidiaries may become and remain liable with
respect to Contingent Obligations in respect of Commercial Letters of
Credit obtained in the ordinary course of business to the extent such
Contingent Obligations are permitted under subsection 7.1(viii);
(xii) Company and its Domestic Subsidiaries may become and
remain liable with respect to Contingent Obligations in an aggregate
amount of up to $15,000,000; PROVIDED that all such outstanding
Contingent Obligations together with the Indebtedness outstanding under
subsection 7.1(x) does not exceed the maximum amount permitted under
subsection 7.1(x);
104
(xiii) Company and its Domestic Subsidiaries may become and
remain liable with respect to Contingent Obligations of up to $10,000,000
with respect to obligations and liabilities of suppliers incurred in the
ordinary course of business; and
(xiv) Parent and Company may become and remain liable with
respect to Contingent Obligations relating to Indebtedness and other
obligations of its direct and indirect Domestic Subsidiaries (other than
BHFS Group) permitted under this Agreement.
7.5 RESTRICTED JUNIOR PAYMENTS; CERTAIN OTHER PAYMENTS.
A. Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart
any sum for any Restricted Junior Payment; PROVIDED that so long as no Event of
Default or Potential Event of Default shall have occurred and be continuing or
would result therefrom:
(i) Company may make payments of regularly scheduled interest
in respect of the 10-3/4% Subordinated Notes and any other Subordinated
Indebtedness permitted pursuant to subsection 7.1(xiii), in each case in
accordance with the terms of, and to the extent required by, and subject
to the subordination provisions contained in, the 10-3/4% Subordinated
Note Indenture and the indenture governing any such other Subordinated
Indebtedness;
(ii) Company may repurchase or redeem its outstanding 10-3/4%
Subordinated Notes in accordance with the terms of and to the extent not
prohibited under the Indentures;
(iii) on and after September 1, 2000, Company may pay Cash
dividends on its Preferred Stock to Parent to the extent required to
permit Parent to pay Cash interest on the 11-1/2% Senior Discount
Debentures, and Parent shall use such Cash dividends to make regularly
scheduled interest payments on the 11-1/2% Senior Discount Debentures in
accordance with the terms of, and to the extent required by, the 11-1/2%
Senior Discount Debenture Indenture;
(iv) Company may redeem its Preferred Stock to the extent
required to permit Parent to purchase or redeem outstanding 11-1/2%
Senior Discount Debentures, and Parent shall use such redemption payments
to repurchase or redeem the 11-1/2% Senior Discount Debentures, and
Company or Parent may redeem or repurchase 11-1/2% Senior Discount
Debentures, in each case in accordance with the terms of and to the
extent not prohibited under the Indentures;
(v) Company may make Cash payments to Parent in an amount not
to exceed $600,000 in the aggregate annually for the purpose of paying
Parent's general operating expenses and franchise tax obligations;
105
(vi) If no Event of Default or Potential Event of Default then
exists or would occur as a result thereof, Company may pay cash dividends
to stockholders and may repurchase shares of capital stock from
stockholders so long as the aggregate amount of the cash dividends so
paid or repurchases so made do not exceed the sum of (x) $10,000,000 plus
(y); PROVIDED that the Company's Leverage Ratio on a pro forma basis
after giving effect to such dividends or repurchases and to any
Indebtedness incurred therewith is less than 3.0:1, 25% of cumulative
Consolidated Net Income from June 29, 1997; and
(vii) Company may make tax indemnification payments under the
Shareholders Agreement in accordance with Section 8(c) thereof as in
effect on the Closing Date in an aggregate amount not to exceed
$4,000,000 after the Closing Date.
Neither Company nor any of its Subsidiaries will directly or
indirectly declare, order, pay or make, or set apart any sum or property for,
any Restricted Junior Payment or agree to do so except as permitted by this
subsection 7.5.
B. Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, declare, order, pay, make or set
apart any sum for any payment or prepayment of principal of, premium, if
any, or interest on, or redemption, purchase, retirement, defeasance
(including in-substance or legal defeasance), sinking fund or other
similar payment with respect to, its Senior Notes or any other Senior
Indebtedness permitted pursuant to subsection 7.1(vii); PROVIDED that, so
long as no Event of Default or Potential Event of Default shall have
occurred and be continuing or occurs as a result thereof, (1) Company may
make payments of regularly scheduled interest in respect of its Senior
Notes and any other Senior Indebtedness permitted pursuant to subsection
7.1(vii), in each case in accordance with the terms of, and to the extent
required by, the Senior Note Indenture or any other indenture governing
such other Senior Indebtedness and (2) Company may repurchase or redeem
its outstanding Senior Notes in accordance with the terms of and to the
extent not prohibited under the Indentures.
7.6 FINANCIAL COVENANTS.
A. MINIMUM CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Company shall
not permit the Consolidated Fixed Charge Coverage Ratio for any four-fiscal
quarter period ending as of the last day of any fiscal quarter of Company
occurring during any of the periods set forth below to be less than the
correlative amount indicated:
MINIMUM CONSOLIDATED FIXED
PERIOD CHARGE COVERAGE RATIO
------------------------ ---------------------
1997
----
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Third Fiscal Quarter 1.85:1.00
Fourth Fiscal Quarter 1.85:1.00
1998
----
First Fiscal Quarter 1.85:1.00
Second Fiscal Quarter 1.85:1.00
Third Fiscal Quarter 1.85:1.00
Fourth Fiscal Quarter 2.00:1.00
1999
----
First Fiscal Quarter 2.00:1.00
Second Fiscal Quarter 2.00:1.00
Third Fiscal Quarter 2.00:1.00
Fourth Fiscal Quarter 2.15:1.00
2000
----
First Fiscal Quarter 2.15:1.00
Second Fiscal Quarter 2.15:1.00
Third Fiscal Quarter 2.15:1.00
Fourth Fiscal Quarter 2.25:1.00
2001
----
First Fiscal Quarter 2.25:1.00
Second Fiscal Quarter 2.25:1.00
Third Fiscal Quarter 2.25:1.00
Fourth Fiscal Quarter 2.50:1.00
and thereafter
B. MAXIMUM LEVERAGE RATIO. Company shall not permit its Leverage
Ratio as of the last day of any fiscal quarter occurring during the periods set
forth below to exceed the correlative ratio set forth below:
PERIOD MAXIMUM LEVERAGE RATIO
-------------------------- ----------------------
1997
----
Third Fiscal Quarter 4.25:1.00
Fourth Fiscal Quarter 4.00:1.00
1998
----
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First Fiscal Quarter 4.00:1.00
Second Fiscal Quarter 3.75:1.00
Third Fiscal Quarter 3.75:1.00
Fourth Fiscal Quarter 3.50:1.00
1999
----
First Fiscal Quarter 3.50:1.00
Second Fiscal Quarter 3.50:1.00
Third Fiscal Quarter 3.35:1.00
Fourth Fiscal Quarter 3.10:1.00
2000
----
First Fiscal Quarter 3.10:1.00
Second Fiscal Quarter 3.10:1.00
Third Fiscal Quarter 3.10:1.00
Fourth Fiscal Quarter 2.85:1.00
and thereafter
C. MINIMUM CONSOLIDATED NET WORTH. The Company shall not permit
Consolidated Net Worth at any time to be less than the sum of (i) 75% of the sum
of Consolidated Net Worth on December 28, 1996 PLUS $95,000,000 PLUS (ii) 75% of
positive Consolidated Net Income as of the last day of each fiscal quarter after
December 28, 1996.
7.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES; ACQUISITIONS.
Neither Parent nor Company shall, and shall not permit any of
Company's Subsidiaries to, alter the corporate, capital or legal structure of
Parent, Company or any of Company's Subsidiaries, or enter into any transaction
of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer
any liquidation or dissolution), or convey, sell, lease, sub-lease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all or any
part of its business, property or fixed assets, whether now owned or hereafter
acquired, or make an Acquisition, except:
(i) (a) any Subsidiary of Company may be merged or
consolidated with or into Company or any Wholly-Owned Domestic Subsidiary
of Company (other than BHFS Group), or be liquidated, wound up or
dissolved, or all or any part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed of, in one
transaction or a series of transactions, to Company or any Wholly-Owned
Domestic Subsidiary of Company (other than BHFS Group); PROVIDED that, in
the case of such a merger or consolidation, Company or such Wholly-Owned
Domestic Subsidiary shall be the continuing or surviving corporation;
(b) any Foreign Subsidiary may be merged or consolidated with or into
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Company, any Wholly-Owned Domestic Subsidiary or any Wholly-Owned Foreign
Subsidiary that prior to the Collateral Release Date is a Pledged
Subsidiary, or be liquidated, wound up or dissolved, or all or any part
of its business, property or assets may be conveyed, sold, leased,
transferred or otherwise disposed of, in one transaction or a series of
related transactions, to Company any Wholly-Owned Domestic Subsidiary or
any Wholly-Owned Foreign Subsidiary that prior to the Collateral Release
Date is a Pledged Subsidiary; PROVIDED that in the case of such a merger
or consolidation Company, such Wholly-Owned Domestic Subsidiary, or
Wholly-Owned Foreign Subsidiary that prior to the Collateral Release Date
is a Pledged Subsidiary shall be the continuing or surviving corporation;
and (c) any Person in BHFS Group may be merged or consolidated with or
into any other Person in BHFS Group, or be liquidated, wound up or
dissolved, or all or any part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed of, in one
transaction or a series of related transactions, to any other Person in
BHFS Group;
(ii) subject to subsection 7.11, Company and its Subsidiaries
may sell or otherwise dispose of assets in transactions that do not
constitute Asset Sales; PROVIDED that the consideration received for such
assets shall be in an amount at least equal to the fair market value
thereof;
(iii) Company and its Subsidiaries may make Asset Sales;
PROVIDED that (w) the consideration received for such assets shall be in
an amount at least equal to the fair market value thereof; (x) for Asset
Sales in excess of $5,000,000, not less than 85% of the total
consideration received in connection with such Asset Sales shall be Cash;
and (y) the proceeds of such Asset Sales shall be applied as required by
subsection 2.4A(iii)(a).
(iv) Company and its Wholly-Owned Domestic Subsidiaries (other
than BHFS Group) may make non-hostile Acquisitions of the capital stock
of or of the assets of a Person located in the United States, (b) Company
and its Wholly-Owned Domestic Subsidiaries (other than the BHFS Group)
may make non-hostile Acquisitions of all of the capital stock of a
foreign Person so long as prior to the Collateral Release Date such
foreign Person becomes a Pledged Subsidiary, (c) Company and its
Subsidiaries that prior to the Collateral Release Date are Pledged
Subsidiaries may make non-hostile Acquisitions of the assets of a Person
that is located outside of the United States and (d) Company's Foreign
Subsidiaries may make non-hostile Acquisitions of all of the capital
stock of a foreign Person up to an aggregate amount for all such
Investments of not greater than $15,000,000, PROVIDED that each
Acquisition permitted in (a) - (d) above is useful in, complementary to
or related to the businesses of the Company and its Subsidiaries (other
than BHFS Group) existing on the Closing Date; PROVIDED FURTHER that with
respect to Acquisition Expenditures of $20,000,000 or more, the Company
shall submit to Administrative Agent an Officer's Certificate
demonstrating that Company and its Subsidiaries will comply on a pro
forma basis (including any
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synergies which are not objected to by Administrative Agent) with the
covenants set forth in subsection 7.6 and evidencing such synergies, and
with respect to any Acquisition Expenditures of $100,000,000 or more for
any single acquisition or series of related acquisitions, Company shall
obtain the prior written consent of Administrative Agent and Requisite
Lenders;
(v) Company and its Subsidiaries may sell receivables to the
extent permitted under subsection 7.9;
(vi) Company and its Subsidiaries may sell equipment,
equipment leases, use agreements, service agreements, subscription
agreements, installment sales contracts and any other long-term
receivables to BHFS Group and the Canadian Receivables Division on a non-
recourse basis and in accordance with past practices of Company and its
Subsidiaries; and
(vii) Parent and Company may combine with and into each other;
PROVIDED that in the event that Parent is the surviving corporation,
Parent shall assume all obligations of Company under this Agreement and
Parent shall execute and deliver to Administrative Agent such
documentation, and shall take such other actions, as Administrative Agent
may deem necessary or desirable to effect such assumption.
7.8 SALES AND LEASE-BACKS.
Neither Parent nor Company shall, and shall not permit any of
Company's Subsidiaries to, directly or indirectly, become or remain liable as
lessee or as a guarantor or other surety with respect to any lease, whether an
Operating Lease or a Capital Lease, of any property (whether real, personal or
mixed), whether now owned or hereafter acquired, (i) which Parent, Company or
any of Company's Subsidiaries has sold or transferred or is to sell or transfer
to any other Person (other than Company or any of its Domestic Subsidiaries
(other than BHFS Group)) or (ii) which Parent, Company or any of Company's
Subsidiaries intends to use for substantially the same purpose as any other
property which has been or is to be sold or transferred by Parent, Company or
any of Company's Subsidiaries to any Person (other than Company or any of its
Domestic Subsidiaries (other than BHFS Group)) in connection with such lease;
PROVIDED that the foregoing shall not prohibit sale and lease back transactions
to the extent that the Net Cash Proceeds are applied in accordance with the
provisions of subsection 2.4A(iii)(a).
7.9 SALE OR DISCOUNT OF RECEIVABLES.
Neither Parent nor Company shall, and shall not permit any of
Company's Subsidiaries to, directly or indirectly, sell with recourse, or
discount or otherwise sell for less than the face value thereof, any of its
notes or accounts receivable except: (a) Company's Foreign Subsidiaries (other
than the Canadian Receivables Division) may sell with recourse or discount
receivables in the ordinary course of business in accordance with past practices
so long as the aggregate outstanding amount of sold receivables,
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together with the other Indebtedness described under subsection 7.1(viii), does
not exceed the aggregate amount of Indebtedness permitted under subsection
7.1(viii); (b) BHFS Group may sell or discount receivables in the ordinary
course of business in accordance with past practices; and (c) the Canadian
Receivables Division may sell with recourse or discount receivables in the
ordinary course of business in accordance with past practices so long as the
aggregate outstanding amount of sold receivables, together with the other
Indebtedness described under subsection 7.1 (xii), does not exceed the aggregate
amount of Indebtedness permitted under subsection 7.1 (xii).
7.10 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
Neither Parent nor Company shall, and shall not permit any of
Company's Subsidiaries to, directly or indirectly, enter into or permit to exist
any transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any holder of 5%
or more of any class of equity Securities of Parent or Company or with any
Affiliate of Company or Parent or of any such holder, on terms that are less
favorable to Company or that Subsidiary, as the case may be, than those that
might be obtained at the time from Persons who are not such a holder or
Affiliate; PROVIDED that the foregoing restriction shall not apply to (i) any
transaction between Company and any of its Wholly-Owned Subsidiaries (other than
BHFS Group) or between any of its Wholly-Owned Subsidiaries (other than BHFS
Group), or between Persons in BHFS Group; (ii) reasonable and customary fees
paid to members of the Boards of Directors of Company and its Subsidiaries;
(iii) the Shareholders Agreement; or (iv) transactions permitted under
subsections 7.3(ix) and (x).
7.11 DISPOSAL OF SUBSIDIARY STOCK.
Except for any sale of 100% of the capital stock or other equity
Securities of any of its Subsidiaries in compliance with the provisions of
subsection 7.7(iii), Company shall not:
(i) directly or indirectly sell, assign, pledge or otherwise
encumber or dispose of any shares of capital stock or other equity
Securities of any of its Subsidiaries, except to qualify directors if
required by applicable law; or
(ii) permit any of its Subsidiaries directly or indirectly to
sell, assign, pledge or otherwise encumber or dispose of any shares of
capital stock or other equity Securities of it or any of its
Subsidiaries, except to Company, another Wholly-Owned Domestic Subsidiary
of Company (other than BHFS Group), or to qualify directors if required
by applicable law; PROVIDED that Foreign Subsidiaries may so sell,
assign, pledge or otherwise encumber or dispose of any shares of capital
stock or other Securities of it or any of its Subsidiaries to any other
Wholly-Owned Foreign Subsidiary that prior to the Collateral Release Date
is a Pledged Subsidiary; and PROVIDED, FURTHER, that a person in BHFS
Group may so sell, assign,
111
pledge or otherwise encumber or dispose of any shares of capital stock or
other Securities of it or any of its Subsidiaries to any other Person in
BHFS Group.
7.12 CONDUCT OF BUSINESS.
A. Prior to the consummation of a merger of Parent and Company
permitted by subsection 7.7(vii), Parent shall not engage in any business, and
shall not own any assets other than (1) the Company Common Stock, (2) the
Preferred Stock, (3) the loans to employees permitted under subsection 7.3(x)
and any subsequent Investments made in Company permitted under subsection 7.3(x)
with the cash proceeds received by Parent from employees in connection with the
purchase of capital stock of Parent by such employees, (4) prepaid director and
officer insurance in an amount not to exceed $600,000 at any time, (5) deferred
organization costs in an amount not to exceed $15,000 at any time, (6) deferred
financing fees in an amount not to exceed $6,200,000 at any time, (7) up to
$500,000 in Cash at any one time for the purposes of paying general operating
expenses and franchise tax obligations and (8) temporary cash advances made to
Company.
B. The Inactive Subsidiaries shall not engage in any significant
business, own or hold any assets not held or owned on the Closing Date, or incur
any Indebtedness, Contingent Obligations or other obligations or liabilities
whatsoever. Neither Company nor any of its Subsidiaries shall incur any
Indebtedness, Contingent Obligations or other obligations or liabilities
whatsoever on behalf of, or with respect to, the Inactive Subsidiaries.
Company's and its Subsidiaries' aggregate Investments in the Inactive
Subsidiaries shall not exceed $250,000.
7.13 AMENDMENTS OF CERTAIN DOCUMENTS; OTHER MATTERS RELATED TO INDENTURES.
A. Within five Business Days of the Closing Date, Company shall not
have failed to deliver to the trustee for the 10-3/4% Subordinated Notes an
irrevocable notice of redemption to be distributed to all holders of 10-3/4%
Subordinated Notes in accordance with the terms of the Indenture pursuant to
which such 10-3/4% Subordinated Notes were issued, calling for the redemption of
all outstanding 10-3/4% Subordinated Notes which notice shall be satisfactory in
form and substance to Administrative Agent. Other than with respect to the
redemption required by the preceding sentence with respect to the 10-3/4%
Subordinated Notes, Company shall not, and shall not permit any of its
Subsidiaries to, amend or otherwise change the terms of any Subordinated
Indebtedness or any Indenture in respect thereof, or make any payment consistent
with an amendment thereof or change thereof; PROVIDED that Company may agree to
amend the provisions of the Subordinated Indebtedness or any Indenture in
respect thereof (i) to cure any ambiguity, to correct or supplement any
provision therein which may be defective or inconsistent with any other
provision of such Subordinated Indebtedness or any Indenture in respect thereof,
(ii) to comply with the Trust Indenture Act of 1939 or (iii) to make
modifications of a technical or clarifying nature which are no less favorable to
Lenders than the provisions of the Subordinated Indebtedness and any Indentures
in respect thereof as in effect on the Closing Date.
112
B. Other than as may be expressly permitted hereunder with respect
to repurchases of the Preferred Stock, Company shall not amend or otherwise
change the terms of its Certificate of Designations as in effect on the Closing
Date or make any payment consistent with an amendment thereof or change thereto.
C. Other than repurchases or redemptions of the Senior Notes made
with the proceeds of Revolving Loans under the Senior Debt Repurchase Facility,
Company shall not amend or otherwise change the terms of the Senior Notes or the
Senior Note Indenture or any indenture in respect of Senior Indebtedness
permitted pursuant to subsection 7.1(vii) or make any payment consistent with an
amendment thereof or change thereto; PROVIDED that Company may agree to amend
the provisions of the Senior Notes and the Senior Note Indenture or any
indenture in respect of Senior Indebtedness permitted pursuant to subsection
7.1(vii) (i) to cure any ambiguity, to correct or supplement any provision
therein which may be defective or inconsistent with any other provision of such
Senior Notes or the Senior Note Indenture, (ii) to comply with the Trust
Indenture Act of 1939 or (iii) to make modifications of a technical or
clarifying nature which are no less favorable to Lenders than the provisions of
the Senior Notes and the Senior Note Indenture or any indenture in respect of
Senior Indebtedness permitted pursuant to subsection 7.1(vii) as in effect on
the Closing Date.
D. Within five Business Days of the Closing Date, Parent shall not
have failed to commence a tender offer for all of its outstanding 11-1/2% Senior
Discount Debentures in accordance with the Indenture pursuant to which such
11-1/2% Senior Discount Debentures were issued which tender offer materials
shall be reasonably satisfactory in form and substance to Administrative Agent
and Parent shall not have failed to seek the consent of the holders of the
11-1/2% Senior Discount Debentures to the amendment of certain covenants under
such Indenture, including without limitation the deletion of any covenant
prohibiting Parent from granting a Lien with respect to any of its assets.
Other than with respect to the tender offer required pursuant to the preceding
sentence and the redemption of the 11-1/2% Senior Discount Debentures from the
proceeds of the Common Stock Offering, Parent shall not amend or otherwise
change the terms of the 11-1/2% Senior Discount Debentures or the 11-1/2% Senior
Discount Debenture Indenture or make any payment consistent with an amendment
thereof or change thereto; PROVIDED that Parent may agree to amend the
provisions of the 11-1/2% Senior Discount Debentures and the 11-1/2% Senior
Discount Debenture Indenture, (i) to cure any ambiguity, to correct or
supplement any provision therein which may be defective or inconsistent with any
other provision of such 11-1/2% Senior Discount Debentures or the 11-1/2% Senior
Discount Debenture Indenture, (ii) to comply with the Trust Indenture Act of
1939 or (iii) to make modifications of a technical or clarifying nature which
are no less favorable to Lenders than the provisions of the 11-1/2% Senior
Discount Indentures and the 11-1/2% Senior Discount Debenture Indenture as in
effect on the Closing Date.
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7.14 FISCAL YEAR.
Other than any change to a Fiscal Year ending on December 31 of
each year, Company shall not change its Fiscal Year-end from the Saturday
nearest to December 31.
7.15 SEPARATE IDENTITY OF PARENT AND COMPANY.
Until the consummation of any merger of Company and Parent
permitted under subsection 7.7(vii): Parent shall not appoint or elect as a
director or officer of Parent any Person who is simultaneously an officer or
director of Company; PROVIDED, that Parent and Company may have overlapping
directors so long as (i) such directors constitute 50% or less of each of the
boards of directors of Parent and Company and (ii) the non-overlapping directors
are not employees of Parent or Company; PROVIDED, FURTHER that Parent and
Company may have overlapping officers so long as at least 2 of the officers of
each of Parent and Company are not also officers of the other; and Parent shall
not commingle any assets, offices or business functions of Parent with any
assets, offices or business functions of Company.
SECTION 8. EVENTS OF DEFAULT
If any of the following conditions or events ("Events of
Default") shall occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure to pay any installment of principal of any Loan when due,
whether at stated maturity, by acceleration, by notice of prepayment or
otherwise; failure to pay when due any amount payable to an Issuing Lender in
reimbursement of any drawing under a Letter of Credit; or failure to pay any
interest on any Loan or any fee or any other amount due under this Agreement
within five days after the date due; or
8.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of Parent, Company or any of Company's
Subsidiaries to pay when due (a) any principal of or interest on any
Indebtedness (other than Indebtedness referred to in subsection 8.1) in an
individual principal amount of $5,000,000 or more or any items of Indebtedness
with an aggregate principal amount of $7,500,000 or more or (b) any Contingent
Obligation in an individual principal amount of $5,000,000 or more or any
Contingent Obligations with an aggregate principal amount of $7,500,000 or
more, in each case beyond the end of any grace period provided therefor; or
(ii) breach or default by Parent, Company or any of Company's Subsidiaries with
respect to any other material term of (a) any evidence of any Indebtedness in an
individual principal amount of $5,000,000 or more or any items of Indebtedness
with an aggregate principal amount of
114
$7,500,000 or more or any Contingent Obligation in an individual principal
amount of $5,000,000 or more or any Contingent Obligations with an aggregate
principal amount of $7,500,000 or more or (b) any loan agreement, mortgage,
indenture or other agreement relating to such Indebtedness or Contingent
Obligation(s), if the effect of such breach or default is to cause, or to permit
the holder or holders of that Indebtedness or Contingent Obligation(s) (or a
trustee on behalf of such holder or holders) to cause, that Indebtedness or
Contingent Obligation(s) to become or be declared due and payable prior to its
stated maturity or the stated maturity of any underlying obligation, as the case
may be (upon the giving or receiving of notice, lapse of time, both, or
otherwise); or
8.3 BREACH OF CERTAIN COVENANTS.
Failure of Parent, Company or any of Company's Subsidiaries to
perform or comply with any term or condition contained in subsection 2.5,
6.1(ix) or 6.2, or Section 7 of this Agreement; or
8.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement
made by Parent, Company or any of Company's Subsidiaries in any Loan Document or
in any statement or certificate at any time given by Parent, Company or any of
Company's Subsidiaries in writing pursuant hereto or thereto or in connection
herewith or therewith shall be false in any material respect on the date as of
which made; or
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Parent, Company or any of Company's Subsidiaries shall default in
the performance of or compliance with any term contained in this Agreement or
any of the other Loan Documents, other than any such term referred to in any
other subsection of this Section 8, and such default shall not have been
remedied or waived within 30 days after the earlier of (i) an officer of Company
becoming aware of such default or (ii) receipt by Company of notice from
Administrative Agent or any Lender of such default; or
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of Parent, Company or any of Company's
Subsidiaries (other than an Inactive Subsidiary) in an involuntary case under
the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, which decree or order is not stayed; or
any other similar relief shall be granted under any applicable federal or state
law; or (ii) an involuntary case shall be commenced against Parent, Company or
any of Company's Subsidiaries (other than an Inactive Subsidiary) under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian
115
or other officer having similar powers over Parent, Company or any of Company's
Subsidiaries (other than an Inactive Subsidiary), or over all or a substantial
part of its property, shall have been entered; or there shall have occurred the
involuntary appointment of an interim receiver, trustee or other custodian of
Parent, Company or any of Company's Subsidiaries (other than an Inactive
Subsidiary) for all or a substantial part of its property; or a warrant of
attachment, execution or similar process shall have been issued against any
substantial part of the property of Company or any of its Subsidiaries (other
than an Inactive Subsidiary), and any such event described in this clause (ii)
shall continue for 60 days unless dismissed, bonded or discharged; or
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Parent, Company or any of Company's Subsidiaries (other
than an Inactive Subsidiary) shall have an order for relief entered with respect
to it or commence a voluntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in an involuntary case, or to
the conversion of an involuntary case to a voluntary case, under any such law,
or shall consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property; or
Parent, Company or any of Company's Subsidiaries (other than an Inactive
Subsidiary) shall make any assignment for the benefit of creditors; or
(ii) Parent, Company or any of Company's Subsidiaries (other than an Inactive
Subsidiary) shall be unable or shall fail, or shall admit in writing its
inability, to pay its debts as such debts become due; or the Board of Directors
of Parent, Company or any of Company's Subsidiaries (other than an Inactive
Subsidiary) (or any committee thereof) shall adopt any resolution or otherwise
authorize any action to approve any of the actions referred to in clause (i)
above or this clause (ii); or
8.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment or similar
process involving (i) in any individual case an amount in excess of $5,000,000
or (ii) in the aggregate at any time an amount in excess of $7,500,000 (in
either case not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be entered or
filed against Parent, Company or any of Company's Subsidiaries or any of their
respective assets and shall remain undischarged, unvacated, unbonded or unstayed
for a period of 60 days (or in any event later than five days prior to the date
of any proposed sale thereunder); or
8.9 DISSOLUTION.
Any order, judgment or decree shall be entered against Parent,
Company or any of Company's Subsidiaries decreeing the dissolution or split up
of Parent, Company or that Subsidiary and such order shall remain undischarged
or unstayed for a period in excess of 30 days; or
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8.10 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events which individually or
in the aggregate results in or might reasonably be expected to result in
liability of Parent, Company or any of their respective ERISA Affiliates in
excess of $2,000,000 during the term of this Agreement; or there shall exist an
amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), which exceeds $4,000,000; or
8.11 CHANGE IN CONTROL.
(i) Any Person or any two or more Persons acting in concert
(other than Keystone or its Affiliates) shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Exchange Act), directly or indirectly, of Securities of Company and/or
Parent (or other Securities convertible into such Securities) representing
directly or indirectly 30% or more of the combined voting power of all
Securities of Company and/or Parent entitled to vote in the election of
directors, managers or trustees of Company or Parent, as the case may be (other
than Securities having such power only by reason of the failure of Company
and/or Parent to pay dividends on any series of its preferred stock); or (ii)
there shall have occurred any "Change of Control" as defined in any of the
Indentures other than any "Change of Control" under the 11-1/2% Senior Discount
Debenture Indenture arising in connection with any combination of Company and
Parent permitted pursuant to subsection 7.7(vii); in making any determination
hereunder with respect to the beneficial ownership of any such Person of
Securities of Company, such determination shall take into account not only the
shares of Company Securities directly or indirectly owned by such Person but
also the proportionate ownership interest in Company Securities represented by
any shares of Parent Securities directly or indirectly owned by any such Person;
or
8.12 INVALIDITY OF GUARANTIES.
Any of the Guaranties for any reason, other than the satisfaction
in full of all Obligations, ceases to be in full force and effect (other than in
accordance with its terms) or is declared to be null and void, or any Loan Party
denies in writing that it has any further liability, including without
limitation with respect to future advances by Lenders, under any Loan Document
to which it is a party; or
8.13 FAILURE OF SECURITY.
Any Collateral Document shall, at any time, cease to be in full
force and effect (other than by reason of a release of Collateral thereunder in
accordance with the terms hereof or thereof, the satisfaction in full of the
Obligations or any other termination of such Collateral Document in accordance
with the terms hereof or thereof) or shall be declared null and void, or the
validity or enforceability thereof shall be contested in
117
writing by any Loan Party, or Administrative Agent shall not have or shall cease
to have a valid and perfected first priority security interest (subject to
Permitted Encumbrances) in all Collateral purported to be covered (excluding
Collateral having a fair market value in the aggregate of up to $2,000,000).
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7, each of (a) the unpaid principal amount of and accrued interest on the
Loans, (b) an amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding (whether or not any beneficiary
under any such Letter of Credit shall have presented, or shall be entitled at
such time to present, the drafts or other documents or certificates required to
draw under such Letter of Credit), and (c) all other Obligations shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by Company, and the obligation of each Lender to make any Loan (including
the obligation of Swingline Lender to make any Swingline Loan), the obligation
of Administrative Agent to issue any Letter of Credit and the right of any
Lender to issue any Letter of Credit hereunder shall thereupon terminate, and
(ii) upon the occurrence and during the continuation of any other Event of
Default, Administrative Agent shall, upon the written request of Requisite
Lenders, by written notice to Company, declare all or any portion of the amounts
described in clauses (a) through (c) above to be, and the same shall forthwith
become, immediately due and payable, and the obligation of each Lender to make
any Loan (including the obligation of Swingline Lender to make any Swingline
Loan), the obligation of Administrative Agent to issue any Letter of Credit and
the right of any Lender to issue any Letter of Credit hereunder shall thereupon
terminate; PROVIDED that the foregoing shall not affect in any way the
obligations of Lenders under subsection 3.3C(i) or the obligations of Lenders to
repay Swingline Loans or purchase participations therein as provided in
subsection 2.1A(ii). Any amounts described in clause (b) above, when received
by Administrative Agent, shall be held by Administrative Agent in the Collateral
Account pursuant to the terms of the Collateral Account Agreement and shall be
applied as therein provided.
Notwithstanding anything contained in the preceding paragraph, if
at any time within 60 days after an acceleration of the Loans pursuant to such
paragraph Company shall pay all arrears of interest and all payments on account
of principal which shall have become due otherwise than as a result of such
acceleration (with interest on principal and, to the extent permitted by law, on
overdue interest, at the rates specified in this Agreement) and all Events of
Default and Potential Events of Default (other than non-payment of the principal
of and accrued interest on the Loans, in each case which is due and payable
solely by virtue of acceleration) shall be remedied or waived pursuant to
subsection 11.6, then Requisite Lenders, by written notice to Company, may at
their option rescind and annul such acceleration and its consequences; but such
action shall not affect any subsequent Event of Default or Potential Event of
Default or impair any right consequent thereon. The provisions of this
paragraph are intended merely to bind Lenders to a decision which may be made at
the election of Requisite Lenders and are not intended
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to benefit Company and do not grant Company the right to require Lenders to
rescind or annul any acceleration hereunder, even if the conditions set forth
herein are met.
SECTION 9. ADMINISTRATIVE AGENT
9.1 APPOINTMENT.
Bankers is hereby appointed Administrative Agent hereunder and
under the other Loan Documents by each Lender. Each Lender hereby authorizes
Administrative Agent to act as its agent in accordance with the terms of this
Agreement and the other Loan Documents. Administrative Agent agrees to act upon
the express conditions contained in this Agreement and the other Loan Documents,
as applicable. The provisions of this Section 9 are solely for the benefit of
Administrative Agent and Lenders and neither Parent nor Company shall have any
rights as a third party beneficiary of any of the provisions thereof. In
performing its functions and duties under this Agreement, Administrative Agent
shall act solely as an agent of Lenders and does not assume and shall not be
deemed to have assumed any obligation towards or relationship of agency or trust
with or for Parent, Company or any of Company's Subsidiaries. Parent and
Company hereby acknowledge that neither the Administrative Agent nor any Lender
has any fiduciary relationship with or fiduciary duty toward Parent or Company
arising out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Administrative Agent and the
Lenders, on the one hand, and the Company and Parent, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor.
9.2 POWERS; GENERAL IMMUNITY.
A. DUTIES SPECIFIED. Each Lender irrevocably authorizes
Administrative Agent to take such action on such Lender's behalf and to exercise
such powers hereunder and under the other Loan Documents as are specifically
delegated to Administrative Agent, as the case may be, by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto.
Administrative Agent shall have only those duties and responsibilities that are
expressly specified in this Agreement and the other Loan Documents and it may
perform such duties by or through its agents or employees. Administrative Agent
shall not have, by reason of this Agreement or any of the other Loan Documents,
a fiduciary relationship in respect of any Lender; and nothing in this Agreement
or any of the other Loan Documents, expressed or implied, is intended to or
shall be so construed as to impose upon Administrative Agent any obligations in
respect of this Agreement or any of the other Loan Documents except as expressly
set forth herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. Administrative Agent
shall not be responsible to any Lender for the execution, effectiveness,
genuineness, validity, enforceability, collectibility or sufficiency of this
Agreement or any other Loan Document
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or for any representations, warranties, recitals or statements made herein or
therein or made in any written or oral statement or in any financial or other
statements, instruments, reports or certificates or any other documents
furnished or made by Administrative Agent to Lenders or by or on behalf of
Parent or Company to Administrative Agent or any Lender in connection with the
Loan Documents and the transactions contemplated thereby or for the financial
condition or business affairs of Parent or Company or any other Person liable
for the payment of any Obligations, nor shall Administrative Agent be required
to ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Loan
Documents or as to the use of the proceeds of the Loans or the use of the
Letters of Credit or as to the existence or possible existence of any Event of
Default or Potential Event of Default. Anything contained in this Agreement to
the contrary notwithstanding, Administrative Agent shall not have any liability
arising from confirmations of the amount of outstanding Loans or the Letter of
Credit Usage or the component amounts thereof.
C. EXCULPATORY PROVISIONS. Neither Administrative Agent nor any of
its respective officers, directors, employees or agents shall be liable to
Lenders for any action taken or omitted by Administrative Agent hereunder or in
connection herewith except to the extent caused by Administrative Agent's gross
negligence or willful misconduct. If Administrative Agent shall request
instructions from Lenders with respect to any act or action (including the
failure to take an action) in connection with this Agreement or any of the other
Loan Documents, Administrative Agent shall be entitled to refrain from such act
or taking such action unless and until Administrative Agent shall have received
instructions from Requisite Lenders (or if required pursuant to subsection 11.6,
all Lenders). Without prejudice to the generality of the foregoing,
(i) Administrative Agent shall be entitled to rely, and shall be fully protected
in relying, upon any communication, instrument or document believed by it to be
genuine and correct and to have been signed or sent by the proper person or
persons, and shall be entitled to rely and shall be protected in relying on
opinions and judgments of attorneys (who may be attorneys for Parent, or Company
and its Subsidiaries), accountants, experts and other professional advisors
selected by it; and (ii) no Lender shall have any right of action whatsoever
against Administrative Agent as a result of Administrative Agent acting or
(where so instructed) refraining from acting under this Agreement or any of the
other Loan Documents in accordance with the instructions of Requisite Lenders
(or if required pursuant to subsection 11.6, all Lenders). Administrative Agent
shall be entitled to refrain from exercising any power, discretion or authority
vested in it under this Agreement or any of the other Loan Documents unless and
until it has obtained the instructions of Requisite Lenders (or if required
pursuant to subsection 11.6, all Lenders).
D. ADMINISTRATIVE AGENT ENTITLED TO ACT AS LENDER. The agency
hereby created shall in no way impair or affect any of the rights and powers of,
or impose any duties or obligations upon, Administrative Agent in its individual
capacity as a Lender hereunder. With respect to its participation in the Loans
and the Letters of Credit, Administrative Agent shall have the same rights and
powers hereunder as any other Lender and may exercise the same as though it were
not performing the duties and functions
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delegated to it hereunder, and the term "Lender" or "Lenders" or any similar
term shall, unless the context clearly otherwise indicates, include
Administrative Agent in its individual capacity. Administrative Agent and its
respective Affiliates may accept deposits from, lend money to and generally
engage in any kind of banking, trust, financial advisory or other business with
Company or any of its Affiliates as if it were not performing the duties
specified herein, and may accept fees and other consideration from Company for
services in connection with this Agreement and otherwise without having to
account for the same to Lenders.
9.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR APPRAISAL OF
CREDITWORTHINESS.
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Parent,
Company and Company's Subsidiaries in connection with the making of the Loans
and the issuance of Letters of Credit hereunder and that it has made and shall
continue to make its own appraisal of the creditworthiness of Company.
Administrative Agent shall not have any duty or responsibility, either initially
or on a continuing basis, to make any such investigation or any such appraisal
on behalf of Lenders or to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter, and Administrative Agent
shall not have any responsibility with respect to the accuracy of or the
completeness of any information provided to Lenders.
9.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally
agrees to indemnify Administrative Agent, to the extent that Administrative
Agent shall not have been reimbursed by Company, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including, without limitation, counsel fees and disbursements)
or disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against Administrative Agent in performing its duties
hereunder or under the other Loan Documents or otherwise in its capacity as
Administrative Agent in any way relating to or arising out of this Agreement or
the other Loan Documents; PROVIDED that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from Administrative
Agent's gross negligence or willful misconduct. If any indemnity furnished to
Administrative Agent for any purpose shall, in the opinion of Administrative
Agent be insufficient or become impaired, Administrative Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished.
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9.5 SUCCESSOR ADMINISTRATIVE AGENT AND SWING LINE LENDER.
A. SUCCESSOR ADMINISTRATIVE AGENT. Administrative Agent may resign
at any time by giving 30 days' prior written notice thereof to Lenders and
Company. Upon any such notice of resignation, with respect to Administrative
Agent, Requisite Lenders shall have the right, upon five Business Days' notice
to Company, to appoint a successor Administrative Agent from among the Lenders
who shall be reasonably acceptable to Company; PROVIDED that if Requisite
Lenders do not appoint such successor Administrative Agent within 30 days or
Company fails to accept any such successor Administrative Agent appointed by
Requisite Lenders, the resigning Administrative Agent may appoint a successor
Administrative Agent which shall be a commercial bank organized or licensed
under the laws of the United States or any State thereof and having a combined
capital and surplus of at least $250,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, that successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Section 8 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement.
B. SUCCESSOR SWINGLINE LENDER. Any resignation of Administrative
Agent pursuant to subsection 9.5A shall also constitute the resignation of
Bankers or its successor as Swingline Lender, and any successor Administrative
Agent appointed pursuant to subsection 9.5A shall, upon its acceptance of such
appointment, become the successor Swingline Lender for all purposes hereunder.
In such event (i) Company shall prepay any outstanding Swingline Loans made by
the retiring Administrative Agent in its capacity as Swingline Lender, (ii) upon
such prepayment, the retiring Administrative Agent and Swingline Lender shall
surrender the Swingline Note held by it to Company for cancellation, and
(iii) Company shall issue a new Swingline Note to the successor Administrative
Agent and Swingline Lender substantially in the form of EXHIBIT V annexed
hereto, in the principal amount of the Swingline Loan Commitment then in effect
and with other appropriate insertions.
9.6 COLLATERAL DOCUMENTS AND GUARANTIES.
Each Lender hereby further authorizes Administrative Agent to
enter into the Collateral Documents as secured party on behalf of and for the
benefit of Lenders and agrees to be bound by the terms of the Collateral
Documents; PROVIDED that Administrative Agent shall not (i) enter into or
consent to any amendment, modification, termination or waiver of any provision
contained in the Collateral Documents or (ii) release any Collateral (except as
expressly permitted or required pursuant to the terms of this Agreement or the
applicable Collateral Document), in each case without the prior consent of
Requisite Lenders (or if required pursuant to subsection 11.6, all Lenders).
Each
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Lender agrees that no Lender shall have any right individually to realize upon
any of the Guaranties or any of the collateral under any Collateral Document, it
being understood and agreed that all rights and remedies under the Collateral
Documents may be exercised solely by Administrative Agent for the benefit of
Lenders in accordance with the terms thereof.
SECTION 10. GUARANTY OF PARENT
10.1 GUARANTY BY PARENT.
As consideration for Lenders agreeing to enter into this
Agreement and extend the Commitments hereunder, Parent hereby unconditionally
and irrevocably guaranties the due and punctual payment when due (whether by
required prepayment, declaration, demand or otherwise) (including amounts that
would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a)) of all Obligations of
Company (including, without limitation, interest which, but for the filing of a
petition in bankruptcy with respect to Company, would accrue on such Obligations
whether or not such interest would be an allowable claim in such proceeding).
For purposes of this Section 10, Parent, as party to this Agreement, is referred
to as a "GUARANTOR" and the obligations of Parent under this Section 10 are
referred to as the "GUARANTY".
10.2 TERMS OF GUARANTY.
Guarantor agrees that the Obligations of Company may be extended
or renewed, and the Loans repaid and reborrowed in whole or in part, without
notice or further assent from it, and that it will remain bound upon this
Guaranty notwithstanding any extension, renewal or other alteration of any such
Obligation or repayment and reborrowing of the Loans.
Guarantor waives presentation of, demand of, payment from and
protest of any Obligation of Company and also waives notice of protest for
nonpayment. The obligations of the Guarantor under this Guaranty shall not be
affected by, and the Guarantor hereby waives its rights (to the extent permitted
by law) in connection with:
(a) the failure of Administrative Agent or any Lender to
assert any claim or demand or to enforce any right or remedy against
Company under the provisions of this Agreement or any other agreement or
otherwise,
(b) any extension or renewal of any provision thereof,
(c) any rescission, waiver, amendment or modification of any
of the terms or provisions of this Agreement or any instrument executed
pursuant hereto,
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(d) the release of any of the security held by Administrative
Agent, or any Lender for the Obligations of Company,
(e) the failure of Administrative Agent or any Lender to
exercise any right or remedy against any other guarantor of the
Obligations of Company,
(f) Administrative Agent or any Lender taking and holding
security or collateral for the payment of this Guaranty, any other
guaranties of the Obligations or other liabilities of Company and the
Obligations guarantied hereby, and exchanging, enforcing, waiving and
releasing any such security or collateral,
(g) Administrative Agent or any Lender applying any such
security or collateral and directing the order or manner of sale thereof
as Administrative Agent in its discretion may determine, or
(h) Administrative Agent or any Lender settling, releasing,
compromising, collecting or otherwise liquidating the Obligations and any
security or collateral therefor in any manner determined by
Administrative Agent or such Lender.
Guarantor further agrees that this Guaranty constitutes a
guaranty of payment when due and not of collection and waives any right to
require that any resort be had by Administrative Agent or any other Person to
any of the security held for payment of the Obligations of Company or to any
balance of any deposit account or credit on the books of Administrative Agent or
any other Person in favor of Company or any other Person.
The obligations of Guarantor under this Guaranty shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including, without limitation, any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Obligations, discharge of Company from the
Obligations in a bankruptcy or similar proceeding or otherwise. Without
limiting the generality of the foregoing, the obligations of Guarantor under
this Guaranty shall not be discharged or impaired or otherwise affected by the
failure of Administrative Agent or any Lender to assert any claim or demand or
to enforce any remedy under this Agreement or any other agreement, by any waiver
or modification of any provision thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Obligations of Company, or by
any other act or thing or omission or delay to do any other act or thing that
may or might in any manner or to any extent vary the risk of Guarantor or would
otherwise operate as a discharge of Guarantor as a matter of law or equity.
Guarantor acknowledges that all or a portion of the Obligations
are secured by deeds of trust, deeds to secure debt or mortgages covering
certain interests in real property (including, but not limited, to the
Mortgages) and authorizes Administrative
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Agent, at its sole option, without notice or demand and without affecting the
liability of Guarantor under this Guaranty, to foreclose pursuant to the terms
thereof or the deeds of trust and mortgages and the interests in real property
secured thereby (including, but not limited to the Mortgages) by non-judicial or
other sale. Guarantor understands that the exercise by Lenders or
Administrative Agent, or any of them, of certain rights and remedies contained
in this Agreement and such deeds of trust and mortgages may affect or eliminate
Guarantor's right of subrogation against Company and that Guarantor may
therefore incur a partially or totally nonreimbursable liability hereunder.
Nevertheless, Guarantor hereby authorizes and empowers Administrative Agent and
any Lender to exercise, in its sole discretion, any rights and remedies, or any
combination thereof, which may then be available, since it is the intent and
purpose of Guarantor that the obligations hereunder shall be absolute,
independent and unconditional under any and all circumstances. To the extent
permitted by law, without limiting the generality of the foregoing, Guarantor
hereby expressly waives any and all benefits under California Code of Civil
Procedure Sections 580a, 580d and 726. Notwithstanding any foreclosure of the
lien of any such deeds of trust and mortgages with respect to any or all real or
personal property secured thereby, whether by the exercise of the power of sale
contained therein, by an action for judicial foreclosure or by an acceptance of
a deed in lieu of foreclosure, Guarantor shall remain bound under this Guaranty,
including its obligation to pay any deficiency after a nonjudicial foreclosure.
Guarantor hereby waives any defense to the recovery by Administrative Agent or
any Lender against Guarantor of any deficiency after such sale, and Guarantor
expressly waives any defense or benefits that may be derived from statutes and
laws relating thereto.
Administrative Agent may, at its election, foreclose on any
security held by Administrative Agent by one or more judicial or nonjudicial
sales, whether or not every aspect of any such sale is commercially reasonable,
or exercise any other right or remedy Administrative Agent may have against
Company or any security without affecting or impairing in any way the liability
of the Guarantor hereunder except to the extent the Obligations have been paid.
Guarantor waives any defense arising out of such election by Administrative
Agent, even though such election operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of Guarantor against
Company or any security.
Guarantor further agrees that, to the extent that any Loan Party
makes a payment or payments to Administrative Agent or any Lender, or
Administrative Agent or any Lender receives any proceeds of Collateral, which
payment or payments or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside or otherwise required to be repaid
to any Loan Party, its estate, trustee, receiver or any other party, including,
without limitation, under any bankruptcy law, state or federal law, common law
or equitable cause, then to the extent of such payment or repayment, the
obligation or part thereof which has been paid, reduced or satisfied by such
amount and this Guaranty shall be reinstated and continued in full force and
effect as of the date such initial payment, reduction or satisfaction occurred.
Guarantor shall defend and indemnify Administrative Agent and each Lender from
and against any claim or loss hereunder
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(including reasonable attorneys' fees and expenses) or in the defense of any
action or suit relating to the foregoing matters.
Guarantor further agrees, in furtherance of the foregoing and not
in limitation of any other right that Administrative Agent or any Lender may
have at law or in equity against the Guarantor by virtue hereof, upon the
failure of Company to pay any of its Obligations when and as the same shall
become due (whether by required prepayment, declaration, demand or otherwise),
Guarantor will forthwith pay, or cause to be paid, in cash, to Administrative
Agent an amount equal to the sum of the unpaid principal amount of such
Obligations, accrued and unpaid interest on such Obligations and all other
Obligations of Company to Administrative Agent or such Lender.
Guarantor hereby irrevocably waives any claim or other rights
which it may now or hereafter acquire against any Loan Party that arise from the
existence, payment, performance or enforcement of such Guarantor's obligations
under this Guaranty or any other Loan Document, including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution,
indemnification or any right to participate in any claim or remedy of any Lender
against any Loan Party or any Collateral which Administrative Agent or any
Lender now has or hereafter acquires, 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 any Loan Party, 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 or other rights. If any amount
shall be paid to Guarantor in violation of the preceding sentence and the
Obligations shall not have been paid in full in cash, such amount shall be
deemed to have been paid to Guarantor for the benefit of, and held in trust for
the benefit of, Lenders, and shall forthwith be paid to Administrative Agent for
the benefit of Lenders to be applied (in the case of cash) to, or held as
collateral (in the case of non-cash property or securities, or in the case of
any assets to the extent of Obligations in respect of Letters of Credit to the
extent not drawn upon) for the payment or prepayment of the Obligations of
Guarantor in accordance with the terms of this Agreement or the other Loan
Documents. Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by the Loan Documents and
that the waiver set forth herein is knowingly made in contemplation of such
benefits.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon any failure
of Company to pay its Obligations when due (whether by required prepayment,
declaration, demand or otherwise), each Lender, or Administrative Agent with
respect to any Obligation owed under the Letters of Credit and any Affiliate of
any of them is hereby authorized by Guarantor at any time or from time to time,
without notice to Guarantor or to any other Person, any such notice being hereby
expressly waived (provided that any such Lender shall use reasonable efforts to
notify Company promptly after any such setoff; PROVIDED, FURTHER, HOWEVER, that
failure to give such notice shall not be a defense of any kind to Guarantor's
liability under this Guaranty nor shall such Lender incur any liability of any
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kind to Guarantor for failure to provide such notice), to set off and to
appropriate and to apply any and all deposits (general or special, including,
not limited to, Indebtedness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts) and any other
Indebtedness at any time owing by any Lender or any subsequent holder of any
Note or Administrative Agent with respect to any Obligation owed under the
Letters of Credit, or any Affiliate of any of them to or for the credit or the
account of Guarantor against and on account of the obligations and liabilities
of Guarantor to any Lender or Administrative Agent with respect to any
Obligation owed under the Letters of Credit, or any Affiliate of any of them
under this Agreement, this Guaranty or the Letters of Credit including but not
limited to, all claims of any nature or description arising out of or connected
with this Agreement, this Guaranty or the Letters of Credit or any of the other
Loan Documents irrespective of whether or not (a) Lenders or Administrative
Agent with respect to any Obligation owed under the Letters of Credit, or any
Affiliate of any of them shall have made any demand hereunder or (b) Lenders or
Administrative Agent with respect to any Obligation owed under the Letters of
Credit, or any Affiliate of any of them shall have declared the principal of and
interest on the Loans or the Letters of Credit and other amounts due hereunder
or under the other Loan Documents to be due and payable as permitted by Section
8.
SECTION 11. MISCELLANEOUS
11.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND LETTERS OF CREDIT.
A. GENERAL. Subject to subsection 11.1B, each Lender shall have the
right at any time to (i) sell, assign, transfer to any Eligible Assignee, or
(ii) sell participations to any Person in, all or any part of any Loan or Loans
made by it or its Commitments or its Letters of Credit or participations therein
or any other interest herein or in any other Obligations owed to it; PROVIDED
that (1) no such assignment or participation shall, without the consent of
Company, require Company to file a registration statement with the Securities
and Exchange Commission or apply to qualify such assignment or participation of
the Loans, the Letters of Credit or participations therein or the other
Obligations under the securities laws of any state; (2) no such sale,
assignment, transfer or participation of any Letter of Credit or any
participation therein may be made separately from a sale, assignment, transfer
or participation of a corresponding interest in the Revolving Loan Commitment
and the Revolving Loans of the Lender effecting such sale, assignment, transfer
or participation; (3) anything contained herein to the contrary notwithstanding,
the Swing Line Loan Commitment and the Swing Line Loans of Swing Line Lender may
not be sold, assigned or transferred as described in clause (1) above to any
Person other than a successor Administrative Agent and Swing Line Lender; and
(4) no such sale, assignment or transfer described in clause (i) above shall be
effective unless and until an Assignment Agreement effecting such sale,
assignment or transfer shall have been accepted by Administrative Agent and
recorded in the Register as provided in subsection 11.1B(ii) and notice thereof
shall have been duly given to Company. Except as otherwise provided in this
subsection 11.1, no Lender shall, as between Company and such Lender, be
relieved
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of any of its obligations hereunder as a result of any sale, assignment,
transfer of, or any granting of participations in, all or any part of the Loans,
the Commitments, the Letters of Credit or participations therein or the other
Obligations owed to such Lender.
B. ASSIGNMENTS.
(i) AMOUNTS AND TERMS OF ASSIGNMENTS. Each Loan, Commitment,
Letter of Credit or participation therein or other Obligation may (a) be
assigned in any amount to another Lender, or to an Affiliate of the
assigning Lender or another Lender, with the giving of notice to Company
and Administrative Agent or (b) be assigned in an amount of not less than
$5,000,000 (or such lesser amount as shall constitute the aggregate
amount of all Loans, Commitments, Letters of Credit and participations
therein and other Obligations of the assigning Lender) to any other
Eligible Assignee with the giving of notice to Company and Administrative
Agent and with the consent of Administrative Agent and except during the
continuance of an Event of Default, in the case of assigning Lenders
other than Bankers, Company (which consent of Administrative Agent and
Company shall not be unreasonably withheld or delayed). To the extent of
any such assignment in accordance with either clause (a) or (b) above,
the assigning Lender shall be relieved of its obligations with respect to
its Loans, Commitments, Letters of Credit or participations therein or
other Obligations or the portion thereof so assigned. The parties to
each such assignment shall execute and deliver to Administrative Agent
for its acceptance and recording in the Register an Assignment Agreement,
together with, except in connection with an assignment pursuant to
subsection 2.9C, a processing fee of $1,000 with respect to an assignment
in accordance with clause (a) above or $3,500 with respect to an
assignment in accordance with clause (b) above and such certificates,
documents or other evidence, if any, with respect to United States
federal income tax withholding matters as the assignee under such
Assignment Agreement may be required to deliver to Administrative Agent
pursuant to subsection 2.7B(iii). Upon such execution, delivery and
acceptance and recordation, from and after the effective date specified
in such Assignment Agreement, (y) 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 Agreement, shall
have the rights and obligations of a Lender hereunder and (z) the
assigning Lender thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such
Assignment Agreement, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment
Agreement covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to
be a party hereto); PROVIDED that the assigning Lender shall retain its
rights (concurrently with such assignee) under subsections 2.6D, 2.7,
3.5A, 3.6, 11.2, 11.3 and 11.4. The Commitments hereunder shall be
modified to reflect the Commitment of such assignee and any remaining
Commitment of such assigning Lender and, if any such assignment occurs
after the issuance of the Notes hereunder, the assigning Lender shall,
upon the effectiveness
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of such assignment or as promptly thereafter as practicable, surrender
its applicable Notes to Administrative Agent for cancellation, and
thereupon new Notes shall be issued to the assignee and to the assigning
Lender, substantially in the form of EXHIBIT IV annexed hereto, with
appropriate insertions, to reflect the new Commitments of the assignee
and the assigning Lender.
(ii) ACCEPTANCE BY ADMINISTRATIVE AGENT; RECORDATION IN
REGISTER. Upon its receipt of an Assignment Agreement executed by an
assigning Lender and an assignee representing that it is an Eligible
Assignee, together with the processing fee referred to in subsection
11.1B(i) and any certificates, documents or other evidence with respect
to United States federal income tax withholding matters that such
assignee may be required to deliver to Administrative Agent pursuant to
subsection 2.7B(iii), Administrative Agent shall, if such Assignment
Agreement has been completed and is in substantially the form of EXHIBIT
IX hereto and if Administrative Agent and Company have consented to the
assignment evidenced thereby (to the extent such consent is required
pursuant to subsection 11.1B(i)), (a) accept such Assignment Agreement by
executing a counterpart thereof as provided therein (which acceptance
shall evidence any required consent of Administrative Agent to such
assignment) and (b) record the information contained therein in the
Register, and (c) give prompt notice thereof to Company, the assigning
Lender and the assignee. Administrative Agent shall maintain a copy of
each Assignment Agreement delivered to and accepted by it as provided in
this subsection 11.1B(ii).
C. PARTICIPATIONS. The holder of any participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the scheduled final maturity date of any
Loan allocated to such participation or the extension of the stated expiration
date beyond the Commitment Termination Date of any Letter of Credit allocated to
such participation or (ii) a reduction of the principal amount of or the rate of
interest payable on or fees payable with respect to any Loan allocated to such
participation (other than any waiver of any increase in the interest rate
applicable to the Loans pursuant to subsection 2.2E), and all amounts payable by
Company hereunder shall be determined as if such Lender had not sold such
participation. Company hereby acknowledges and agrees that any participation
will give rise to a direct obligation of Company to the participant and the
participant shall, for purposes of subsections 2.6D, 2.7, 3.6, 11.4 and 11.5, be
considered to be a "Lender"; PROVIDED that no participant shall be entitled to
receive any greater amount pursuant to subsection 2.6D, 2.7 or 3.6 than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation effected by such transferor Lender to such participant had
no such participation occurred.
D. ASSIGNMENTS TO FEDERAL RESERVE BANKS. In addition to the
assignments and participations permitted under the foregoing provisions of this
subsection 11.1, any Lender may assign and pledge all or any portion of its
Loans, the other Obligations owed
129
to such Lender, and its Notes to any Federal Reserve Bank as collateral security
pursuant to Regulation A of the Board of Governors of the Federal Reserve System
and any operating circular issued by such Federal Reserve Bank and with the
consent of Company and Administrative Agent, any Lender which is a fund may
pledge all or any portion of its Notes or Loans to its trustee in support of its
obligations to its trustee; PROVIDED that (i) no Lender shall, as between
Company and such Lender, be relieved of any of its obligations hereunder as a
result of any such assignment and pledge and (ii) in no event shall such Federal
Reserve Bank be considered to be a "Lender" or be entitled to require the
assigning Lender to take or omit to take any action hereunder.
E. INFORMATION. Each Lender may furnish any information concerning
Parent, Company and Company's Subsidiaries in the possession of that Lender from
time to time to assignees and participants (including prospective assignees and
participants), subject to subsection 11.19; PROVIDED that any such prospective
assignees and participants will agree to be bound by the terms of subsection
11.19.
11.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, Company agrees to pay promptly (i) all the actual and reasonable
costs and expenses of preparation of the Loan Documents; (ii) all the costs of
furnishing all opinions by counsel for Company (including without limitation any
opinions requested by Lenders as to any legal matters arising hereunder) and of
Company's performance of and compliance with all agreements and conditions on
its part to be performed or complied with under this Agreement and the other
Loan Documents including, without limitation, with respect to confirming
compliance with environmental and insurance requirements; (iii) the reasonable
fees, expenses and disbursements of counsel to Administrative Agent (including
allocated costs of internal counsel) in connection with the negotiation,
preparation, execution and syndication of the Loan Documents and the Loans and
any consents, amendments, waivers or other modifications hereto or thereto and
any other documents or matters requested by Company; (iv) all other actual and
reasonable costs and expenses incurred by Administrative Agent in connection
with the negotiation, preparation, execution, syndication and administration of
the Loan Documents and the transactions contemplated hereby and thereby; and
(v) after the occurrence of an Event of Default, all costs and expenses,
including reasonable attorneys' fees (including allocated costs of internal
counsel) and costs of settlement, incurred by Administrative Agent and Lenders
in enforcing any Obligations of or in collecting any payments due from Company
hereunder or under the other Loan Documents by reason of such Event of Default
or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or
pursuant to any insolvency or bankruptcy proceedings.
130
11.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection
11.2, whether or not the transactions contemplated hereby shall be consummated,
Company agrees to defend, indemnify, pay and hold harmless Administrative Agent
and Lenders and any holder of any of the Notes, and the officers, directors,
employees, agents and affiliates of Administrative Agent, Lenders and such
holders (collectively called the "INDEMNITEES") from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, costs, expenses and disbursements of any kind or nature
whatsoever including without limitation the reasonable fees and disbursements of
inside or outside counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnitee shall be designated as a party or
a potential party thereto, whether direct, indirect or consequential and whether
based on any federal, state or foreign laws, statutes, rules or regulations
(including without limitation securities and commercial laws, statutes, rules or
regulations and Environmental Laws), on common law or equitable cause or on
contract or otherwise, that may be imposed on, incurred by, or asserted against
any such Indemnitee, in response to or as a result of any such legal, judicial,
administrative, regulatory or other process, directive or request, in any manner
relating to or arising out of this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby (including without limitation any
Environmental Claims, Lenders' agreement to make the Loans hereunder or the use
or intended use of the proceeds of any of the Loans or the issuance of Letters
of Credit hereunder or the use or intended use of any of the Letters of Credit)
or the statements contained in the commitment letter delivered by any Lender to
Company with respect thereto (collectively called the "INDEMNIFIED
LIABILITIES"); PROVIDED that Company shall not have any obligation to any
Indemnitee hereunder with respect to any Indemnified Liabilities to the extent
such Indemnified Liabilities arise solely from the gross negligence or willful
misconduct of that Indemnitee as determined by a final judgment of a court of
competent jurisdiction; PROVIDED FURTHER that the indemnity contained herein
shall not apply to the extent that such losses, claims, damages, liabilities or
other expenses arise out of litigation between the Company and such indemnified
person in which the Company is the prevailing party as finally determined by a
court of competent jurisdiction. To the extent that the undertaking to defend,
indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, Company shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by the Indemnitees or any of them.
11.4 SET OFF; SECURITY INTEREST IN DEPOSIT ACCOUNTS.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Lender and each subsequent holder of any
Note is hereby authorized by Company at any time or from time to time, without
notice to Company or to any other Person, any such notice being hereby expressly
waived (provided that such Lender or subsequent
131
holder shall use reasonable efforts to notify Company promptly after any such
setoff; PROVIDED, FURTHER, HOWEVER, that failure to give such notice shall not
in any way affect Company's Obligations nor shall such Lender or subsequent
holder incur any liability of any kind to Company for failure to provide such
notice), to set off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, Indebtedness evidenced by
certificates of deposit, whether matured or unmatured, but not including trust
accounts) and any other Indebtedness at any time held or owing by that Lender or
that subsequent holder to or for the credit or the account of Company against
and on account of the obligations and liabilities of Company to that Lender or
that subsequent holder under this Agreement, the Notes, the Letters of Credit
and participations therein, including, but not limited to, all claims of any
nature or description arising out of or connected with this Agreement, the
Notes, the Letters of Credit and participations therein or any other Loan
Document, irrespective of whether or not (i) that Lender or that subsequent
holder shall have made any demand hereunder or (ii) the principal of or the
interest on the Loans or any amounts in respect of the Letters of Credit or any
other amounts due hereunder shall have become due and payable pursuant to
Section 8 and although said obligations and liabilities, or any of them, may be
contingent or unmatured. Company hereby further grants to Administrative Agent
and each Lender a security interest in all deposits and accounts maintained with
Administrative Agent or such Lender as security for the Obligations.
11.5 RATABLE SHARING.
Lenders and each subsequent holder by acceptance of a Note hereby
agree among themselves that if any of them shall, whether by voluntary payment,
by realization upon security, through the exercise of any right of set-off or
banker's lien, by counterclaim or cross action or by the enforcement of any
right under the Loan Documents or otherwise, or as adequate protection of a
deposit treated as cash collateral under the Bankruptcy Code, receive payment or
reduction of a proportion of the aggregate amount of principal, interest,
amounts payable in respect of Letters of Credit, fees and other amounts then due
and owing to that Lender or holder hereunder or under the other Loan Documents
(collectively, the "AGGREGATE AMOUNTS DUE" to such Lender or holder) which is
greater than the proportion received by any other Lender or holder of the Notes
in respect of the Aggregate Amounts Due to such other Lender or holder, then the
Lender or holder of the Notes receiving such proportionately greater payment
shall (i) notify Administrative Agent and each other Lender of the receipt of
such payment and (ii) apply a portion of such payment to purchase participations
(which it shall be deemed to have purchased from each seller of a participation
simultaneously upon the receipt by such seller of its portion of such payment)
in the Aggregate Amounts Due to the other Lenders and holders so that all such
recoveries of Aggregate Amounts Due shall be shared by all Lenders and holders
of the Notes in proportion to the Aggregate Amounts Due to them; PROVIDED that
if all or part of such proportionately greater payment received by such
purchasing Lender or holder is thereafter recovered from such Lender or holder
upon the bankruptcy or reorganization of Company or otherwise, those purchases
shall be rescinded and the purchase prices paid for such participations shall be
returned to such purchasing Lender or holder ratably to the extent of such
recovery, but without interest. Company expressly consents to the
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foregoing arrangement and agrees that any holder of a participation so purchased
may exercise any and all rights of banker's lien, set-off or counterclaim with
respect to any and all monies owing by Company to that holder with respect
thereto as fully as if that holder were owed the amount of the participation
held by that holder.
11.6 AMENDMENTS AND WAIVERS.
A. No amendment, modification, termination or waiver of any
provision of this Agreement or of the Notes, or consent to any departure by
Company therefrom, shall in any event be effective without the written
concurrence of Requisite Lenders; PROVIDED that no such amendment, modification,
termination, waiver or consent shall, without the consent of each Lender (other
than a Defaulting Lender) with obligations directly affected in the case of the
following clause (a): (a) extend the scheduled final maturity date of any Loan
or any Note; reduce the amount payable in respect of, or extend beyond the
Commitment Termination Date the stated expiration date of, any Letter of Credit;
postpone the dates on which any interest or any fees are payable; decrease the
interest rate borne by any of the Loans (other than any waiver of any increase
in the interest rate applicable to any of the Loans pursuant to subsection 2.2E)
or the amount of any fees payable hereunder; reduce the principal amount of any
Loan or any Note; (b) release all or substantially all of the Collateral or
release all or substantially all of the Subsidiary Guarantors from their
obligations under the Subsidiary Guaranty or, prior to a combination of Parent
and Company pursuant to subsection 7.7(vii), the Parent from its obligations
under its Guaranty, in each case other than in accordance with the terms of the
Loan Documents; (c) amend, modify, terminate or waive the provisions contained
in this subsection 11.6A; (d) reduce the percentage specified in the definition
of "Requisite Lenders" (it being understood that, with the consent of the
"Requisite Lenders" additional extensions of credit pursuant to this Agreement
may be made on substantially the same basis as the extensions of the Revolving
Loan Commitments); or (e) amend, modify, terminate or waive any provision
expressly requiring the approval or concurrence of all Lenders; PROVIDED FURTHER
that no such amendment, modification, termination or waiver shall increase the
Commitment of any Lender over the amount thereof then in effect without the
consent of such Lender (it being understood that amendments, modifications,
terminations or waivers of conditions precedent, covenants, defaults or events
of default or of a mandatory reduction in the aggregate Commitments shall not
constitute an increase of the Commitment of any Lender and that an increase in
the available portion of any Commitment of any Lender shall not constitute an
increase in Commitment of such Lender). In addition, (i) no amendment,
modification, termination or waiver of any provision of Section 9 or of any
other provision of this Agreement expressly requiring the approval or
concurrence of Administrative Agent shall be effective without the written
concurrence of Administrative Agent, (ii) no amendment, modification,
termination or waiver of provision of subsection 2.1A(ii) or any other provision
of this Agreement relating to the Swingline Loan Commitment or the Swingline
Loans shall be effective without the written concurrence of Swingline Lender,
and (iii) no amendment, modification, termination or waiver of any obligations
of Lenders relating to the purchase of participations in Letters of Credit shall
be effective without the written concurrence of
133
each Issuing Lender having a Letter of Credit then outstanding or which has not
been reimbursed for a drawing under a Letter of Credit issued by it and of
Administrative Agent. Administrative Agent may, but shall have no obligation
to, with the concurrence of any Lender execute amendments, modifications,
waivers or consents on behalf of that Lender. Any waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it was given. No notice to or demand on Company in any case shall entitle
Company to any other or further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this subsection 11.6 shall be binding upon each
holder of the Notes at the time outstanding, each future holder of the Notes
and, if signed by Company, on Company.
B. If in connection with any proposed amendment,
modification, termination or waiver to any of the provisions of this Agreement
as contemplated by clauses (a) through (e) of the first proviso of subsection
11.6A, the consent of the Requisite Lenders is obtained but the consent of one
or more of such other Lenders whose consent is required is not obtained, then
the Company shall have the right, so long as all non-consenting Lenders whose
individual consent is required are treated as described in either clause (A) or
(B) below, to either (A) replace each such non-consenting Lender or Lenders with
one or more Replacement Lenders pursuant to subsection 2.9C so long as at the
time of such replacement, each such Replacement Lender consents to the proposed
amendment, modification, termination or waiver, or (B) terminate such non-
consenting Lender's Revolving Loan Commitment and repay each outstanding
Revolving Loan of such Lender, in accordance with subsections 2.4A(ii)(b) and
2.4A(i)(b) PROVIDED that unless the Commitments that are terminated, and the
Loans that are repaid pursuant to the preceding clause (B) are immediately
replaced in full at such time through the addition of new Lenders or the
increase of the Commitments and/or outstanding Loans of existing Lenders (who in
each case must specifically consent thereto), then in the case of any action
pursuant to the preceding clause (B) the Requisite Lenders (determined before
giving effect to the proposed action) shall specifically consent thereto;
PROVIDED FURTHER that in any event the Company shall not have the right to
replace a Lender, terminate its Revolving Loan Commitment or repay its Loans
solely as a result of the exercise of such Lender's rights (and the withholding
of any required consent by such Lender) pursuant to the second proviso to
subsection 11.6A.
11.7 INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so that
if a particular action or condition is not permitted by any of such covenants,
the fact that it would be permitted by an exception to, or would otherwise be
within the limitations of, another covenant shall not avoid the occurrence of an
Event of Default or Potential Event of Default if such action is taken or
condition exists.
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11.8 NOTICES.
Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, telecopied or sent by United States mail or
courier service and shall be deemed to have been given when delivered in person
or by courier service, upon receipt of telecopy, or four Business Days after
depositing it in the United States mail, registered or certified, with postage
prepaid and properly addressed; PROVIDED that notices to Administrative Agent
shall not be effective until received. For the purposes hereof, the address of
each party hereto shall be as set forth under such party's name on the signature
pages hereof or (i) as to Parent, Company and Administrative Agent, such other
address as shall be designated by such Person in a written notice delivered to
the other parties hereto and (ii) as to each other party, such other address as
shall be designated by such party in a written notice delivered to
Administrative Agent.
11.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made
herein shall survive the execution and delivery of this Agreement and the making
of the Loans and the issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by
law to the contrary, the agreements of Company set forth in subsections 2.6D,
2.7, 3.6, 11.2 and 11.3 and the agreements of Lenders set forth in subsections
9.2C, 9.4, 11.4 and 11.5 shall survive the payment of the Loans, the
cancellation or expiration of the Letters of Credit and the reimbursement of any
amounts drawn thereunder, and the termination of this Agreement.
11.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of any Lender or any holder of
any Note or any interest in any Letter of Credit in the exercise of any power,
right or privilege hereunder or under such Note or Letter of Credit shall impair
such power, right or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise thereof or of any
other power, right or privilege. All rights and remedies existing under this
Agreement, the Notes, the Letters of Credit and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
11.11 MARSHALLING; PAYMENTS SET ASIDE.
Neither Administrative Agent nor any Lender shall be under any
obligation to marshal any assets in favor of Company or any other party or
against or in payment of any or all of the Obligations. To the extent that
Company makes a payment or payments
135
to Administrative Agent or Lenders (or to Administrative Agent for the benefit
of Lenders), or Administrative Agent or Lenders enforce any security interests
or exercise their rights of setoff, and such payment or payments or the proceeds
of such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law, any
other state or federal law, common law or any equitable cause, then, to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all Liens, rights and remedies therefor or related thereto,
shall be revived and continued in full force and effect as if such payment or
payments had not been made or such enforcement or setoff had not occurred.
11.12 SEVERABILITY.
In case any provision in or obligation under this Agreement or
the Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
11.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.
The obligations of Lenders hereunder are several and no Lender
shall be responsible for the obligations or Commitments of any other Lender
hereunder. Nothing contained herein or in any other Loan Document, and no
action taken by Lenders pursuant hereto or thereto, shall be deemed to
constitute Lenders as a partnership, an association, a joint venture or any
other kind of entity. The amounts payable at any time hereunder to each Lender
shall be a separate and independent debt, and each Lender shall be entitled to
protect and enforce its rights arising out of this Agreement and it shall not be
necessary for any other Lender to be joined as an additional party in any
proceeding for such purpose.
11.14 HEADINGS.
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
11.15 APPLICABLE LAW.
THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
136
11.16 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders. The terms and provisions of
this Agreement shall inure to the benefit of any assignee or transferee of any
of the Loans, and in the event of any such transfer or assignment the rights and
privileges herein conferred upon Lenders shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and conditions
hereof. Neither Company's nor Parent's rights or obligations hereunder nor any
interest therein may be assigned or delegated by Company or Parent without the
prior written consent of all Lenders. Lenders' rights of assignment are subject
to subsection 11.1.
11.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY OR PARENT
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY
OBLIGATION MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT EACH OF PARENT AND COMPANY ACCEPTS FOR ITSELF AND IN CONNECTION WITH
ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF
THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS AGREEMENT, SUCH OTHER LOAN DOCUMENT OR SUCH OBLIGATION. Each of the
Parent and Company designates and appoints CT Corporation System, and such other
Persons as may hereafter be selected by Parent or Company, as the case may be,
irrevocably agreeing in writing to so serve, as its agent to receive on its
behalf service of all process in any such proceedings in any such court, such
service being hereby acknowledged by Company and Parent to be effective and
binding service in every respect. A copy of any such process so served shall be
mailed by registered mail to Company and at their respective addresses provided
in subsection 11.8; PROVIDED that, unless otherwise provided by applicable law,
any failure to mail such copy shall not affect the validity of service of such
process. If any agent appointed by Company or Parent refuses to accept service,
each of Parent and Company hereby agrees that service of process sufficient for
personal jurisdiction in any action against Parent or Company, as the case may
be, in the State of New York may be made by registered or certified mail, return
receipt requested, to Company at its address provided in subsection 11.8, and
each of Parent and Company hereby acknowledges that such service shall be
effective and binding in every respect. Nothing herein shall affect the right
to serve process in any other manner permitted by law or shall limit the right
of any Lender to bring proceedings against Parent or Company, as the case may
be, in the courts of any other jurisdiction.
137
11.18 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this transaction,
including without limitation contract claims, tort claims, breach of duty claims
and all other common law and statutory claims. Each party hereto acknowledges
that this waiver is a material inducement to enter into a business relationship,
that each has already relied on this waiver in entering into this Agreement, and
that each will continue to rely on this waiver in their related future dealings.
Each party hereto further warrants and represents that it has reviewed this
waiver with its legal counsel and that it knowingly and voluntarily waives its
jury trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the
event of litigation, this Agreement may be filed as a written consent to a trial
by the court.
11.19 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained
pursuant to the requirements of this Agreement or any Collateral Document which
has been identified as confidential by Parent or Company in accordance with such
Lender's customary procedures for handling confidential information of this
nature and in accordance with safe and sound banking practices, and shall not
use such information except in connection with matters relating to (a) the
extension of credit to Company under this Agreement, (b) the provision of other
services or products to Parent, Company and any of Company's Subsidiaries or (c)
the exercise of any right, power or remedy available to such Lender under the
Loan Documents, it being understood and agreed by Parent and Company that in any
event a Lender may make disclosures to any of its Affiliates (who shall agree to
be bound by the terms of this subsection 11.19 and who agree not to use such
information for the purpose of buying, selling or holding any securities or
advising others in connection with buying, selling or holding such securities
issued by Parent or Company), outside auditors and counsel or as reasonably
required by any bona fide assignee, transferee or participant in connection with
the contemplated assignment or transfer by such Lender of any Loans or any
participation therein or to any direct or indirect contractual counterparties in
swap agreements or such contractual counterparties' professional advisors
provided that such contractual counterparties or their professional advisors
agree to handle
138
the above-described confidential information in accordance with safe and sound
practices which are substantially the same as those followed by banking
institutions or as required or requested by any governmental agency (including,
without limitation, any regulatory body having jurisdiction over such Lender) or
representative thereof or the NAIC or pursuant to legal process; PROVIDED that,
unless specifically prohibited by applicable law or court order, each Lender
shall notify Parent and Company of any request by any governmental agency or
representative thereof (other than any such request in connection with any
examination of the financial condition of such Lender by such governmental
agency) for disclosure of any such non-public information prior to disclosure of
such information; and PROVIDED, FURTHER that in no event shall any Lender be
obligated or required to return any materials furnished by Parent, Company or
any of Company's Subsidiaries.
11.20 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Agreement shall become effective upon the execution of
a counterpart hereof by each of the parties hereto and receipt by Company and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY:
XXXX & XXXXXX OPERATING COMPANY
By:
----------------------------------
Title:
----------------------------------
Notice Address:
0000 Xxx Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attn: Law Department
PARENT:
XXXX & XXXXXX COMPANY
By:
----------------------------------
Title:
----------------------------------
Notice Address:
0000 Xxx Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attn: Law Department
S-1
LENDERS:
BANKERS TRUST COMPANY,
individually and as Administrative Agent
By:
----------------------------------
Title:
----------------------------------
Notice Address:
BANKERS TRUST COMPANY
One Bankers Trust Plaza
14th Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xx Xxxxx
With a copy to:
BT Alex. Xxxxx Incorporated
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxx
S-2
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
individually and as Co-Agent
By:
----------------------------------
Title:
----------------------------------
Notice Address:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
000 Xxxxx XxXxxxx Xx.
0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Mr. Xxxxx Xxxxxxx
S-3
THE BANK OF NOVA SCOTIA,
individually and as Co-Agent
By:
----------------------------------
Title:
----------------------------------
Notice Address:
THE BANK OF NOVA SCOTIA
000 Xxxxxxxxx Xxxxxx XX
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
S-4
THE CHASE MANHATTAN BANK
By:
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Title:
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Notice Address:
CHASE MANHATTAN BANK
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxx
With a copy to:
CHASE SECURITIES INC.
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Xxxx Xxxxx
S-5
CREDIT LYONNAIS CHICAGO BRANCH
By:
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Title:
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Notice Address:
CREDIT LYONNAIS CHICAGO BRANCH
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
S-6
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By:
----------------------------------
Title:
----------------------------------
By:
----------------------------------
Title:
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Notice Address:
DRESDNER BANK
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxx
S-7
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Co-Agent
By:
----------------------------------
Title:
----------------------------------
Notice Address:
THE FIRST NATIONAL BANK OF CHICAGO
One First National Plaza,
00xx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
S-8
LLOYDS BANK PLC
By:
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Title:
----------------------------------
By:
----------------------------------
Title:
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Notice Address:
LLOYDS BANK PLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Windsor X. Xxxxxx
S-9
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
individually and as Co-Agent
By:
----------------------------------
Title:
----------------------------------
Notice Address:
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Tetsuya Xxxxx
Xxxxx Place
S-10
ABN AMRO BANK N.V.
By:
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Title:
----------------------------------
By:
----------------------------------
Title:
----------------------------------
Notice Address:
ABN AMRO BANK N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx Xxxxxx
X-00
XXX XXXX XX XXX XXXX
By:
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Title:
----------------------------------
Notice Address:
THE BANK OF NEW YORK
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
S-12
THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
By:
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Title:
----------------------------------
Notice Address:
THE DAI-ICHI KANGYO BANK, LTD.
CHICAGO BRANCH
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx
S-13
DLJ CAPITAL FUNDING, INC.
By:
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Title:
----------------------------------
Notice Address:
DLJ CAPITAL FUNDING, INC.
XXXXXXXXX, LUFKIN & XXXXXXXX
0000 Xxxxxx xx xxx Xxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
S-14
FIRST UNION NATIONAL BANK
By:
----------------------------------
Title:
----------------------------------
Notice Address:
FIRST UNION NATIONAL BANK
One First Union Center
000 X. Xxxxxxx Xxxxxx
Xxxxx XX-00
Xxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxx
S-15
XXXXXX TRUST & SAVINGS BANK
By:
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Title:
----------------------------------
Notice Address:
XXXXXX TRUST & SAVINGS BANK
000 Xxxx Xxxxxx Xxxxxx
0xx Xxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. XxXxxxxxx
S-16
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:
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Title:
----------------------------------
Notice Address:
THE MITSUBISHI TRUST AND BANKING
CORPORATION
000 Xxxxx Xxxxxx Xxxxx
Xxxxx #0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Page, Jr.
S-17
THE SANWA BANK, LIMITED, CHICAGO BRANCH
By:
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Title:
----------------------------------
Notice Address:
THE SANWA BANK, LIMITED,
CHICAGO BRANCH
00 Xxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx
S-18
UNION BANK OF CALIFORNIA, N.A.
By:
----------------------------------
Title:
----------------------------------
Notice Address:
UNION BANK OF CALIFORNIA, N.A.
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
S-19
U.S. BANK NATIONAL ASSOCIATION D/B/A AND
F/K/A FIRST BANK NATIONAL ASSOCIATION
By:
----------------------------------
Title:
----------------------------------
Notice Address:
U.S. BANK NATIONAL ASSOCIATION
D/B/A AND F/K/A FIRST BANK
NATIONAL ASSOCIATION
First Bank Place
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx MPFP0905
S-20
