Exhibit 22
EXECUTION COPY
CREDIT AGREEMENT
dated as of July 20, 2001,
among
CB XXXXXXX XXXXX SERVICES, INC.
CBRE HOLDING, INC.
THE LENDERS NAMED HEREIN
and
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
---------------------------
CREDIT SUISSE FIRST BOSTON,
as Sole Lead Arranger and Sole Bookrunner
CREDIT LYONNAIS NEW YORK BRANCH
and
HSBC BANK USA,
as Syndication Agents
SCOTIA CAPITAL,
as Documentation Agent
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.................................................1
SECTION 1.02. Terms Generally..............................................26
SECTION 1.03. Classification of Loans and Borrowings.......................26
SECTION 1.04. Pro Forma Calculations.......................................27
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments..................................................27
SECTION 2.02. Loans........................................................27
SECTION 2.03. Borrowing Procedure..........................................29
SECTION 2.04. Evidence of Debt; Repayment of Loans.........................30
SECTION 2.05. Fees.........................................................30
SECTION 2.06. Interest on Loans............................................31
SECTION 2.07. Default Interest.............................................32
SECTION 2.08. Alternate Rate of Interest...................................32
SECTION 2.09. Termination and Reduction of Commitments.....................32
SECTION 2.10. Conversion and Continuation of Borrowings....................33
SECTION 2.11. Repayment of Term Borrowings.................................34
SECTION 2.12. Prepayment...................................................36
SECTION 2.13. Mandatory Prepayments........................................37
SECTION 2.14. Reserve Requirements; Change in Circumstances................38
SECTION 2.15. Change in Legality...........................................40
SECTION 2.16. Indemnity....................................................40
SECTION 2.17. Pro Rata Treatment...........................................41
SECTION 2.18. Sharing of Setoffs...........................................41
SECTION 2.19. Payments.....................................................42
SECTION 2.20. Taxes........................................................42
SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to
Mitigate.....................................................43
SECTION 2.22. Swingline Loans..............................................45
SECTION 2.23. Letters of Credit............................................46
SECTION 2.24. Increase in Revolving Credit Commitments.....................50
SECTION 2.25. Increase in Term Loan Commitments............................51
ARTICLE III
REPRESENTATIONS AND WARRANTIES
i
TABLE OF CONTENTS
(continued)
PAGE
SECTION 3.01. Organization; Powers.........................................53
SECTION 3.02. Authorization................................................53
SECTION 3.03. Enforceability...............................................53
SECTION 3.04. Governmental Approvals.......................................54
SECTION 3.05. Financial Statements.........................................54
SECTION 3.06. No Material Adverse Change...................................54
SECTION 3.07. Title to Properties..........................................55
SECTION 3.08. Subsidiaries.................................................55
SECTION 3.09. Litigation; Compliance with Laws.............................55
SECTION 3.10. Agreements...................................................55
SECTION 3.11. Federal Reserve Regulations..................................55
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act...56
SECTION 3.13. Use of Proceeds..............................................56
SECTION 3.14. Tax Returns..................................................56
SECTION 3.15. No Material Misstatements....................................56
SECTION 3.16. Employee Benefit Plans.......................................56
SECTION 3.17. Environmental Matters........................................57
SECTION 3.18. Insurance....................................................57
SECTION 3.19. Labor Matters................................................57
SECTION 3.20. Solvency.....................................................58
SECTION 3.21. Representations and Warranties in Merger Agreement...........58
SECTION 3.22. Senior Indebtedness..........................................58
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01. All Credit Events............................................58
SECTION 4.02. First Credit Event. On the Closing Date......................59
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Existence; Businesses and Properties.........................62
SECTION 5.02. Insurance....................................................63
SECTION 5.03. Obligations and Taxes........................................63
SECTION 5.04. Financial Statements, Reports, etc...........................64
SECTION 5.05. Litigation and Other Notices.................................65
SECTION 5.06. Information Regarding Collateral.............................66
SECTION 5.07. Maintaining Records; Access to Properties and Inspections....66
SECTION 5.08. Use of Proceeds..............................................66
SECTION 5.09. Further Assurances...........................................66
ii
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Indebtedness.................................................67
SECTION 6.02. Liens........................................................69
SECTION 6.03. Sale and Lease-Back Transactions.............................70
SECTION 6.04. Investments, Loans and Advances..............................71
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions....72
SECTION 6.06. Restricted Payments; Restrictive Agreements..................73
SECTION 6.07. Transactions with Affiliates.................................75
SECTION 6.08. Business of Holdings, Borrower and Subsidiaries..............75
SECTION 6.09. Other Indebtedness and Agreements............................75
SECTION 6.10. Capital Expenditures.........................................75
SECTION 6.11. Interest Coverage Ratio......................................76
SECTION 6.12. Fixed Charge Coverage Ratio..................................76
SECTION 6.13. Maximum Leverage Ratio.......................................76
SECTION 6.14. Maximum Senior Leverage Ratio................................76
SECTION 6.15. Fiscal Year..................................................77
SECTION 6.16. Management Fees..............................................77
SECTION 6.17. Indebtedness of Co-investment Subsidiaries...................77
ARTICLE VII
EVENTS OF DEFAULT
ARTICLE VIII
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices......................................................82
SECTION 9.02. Survival of Agreement........................................82
SECTION 9.03. Binding Effect...............................................83
SECTION 9.04. Successors and Assigns.......................................83
SECTION 9.05. Expenses; Indemnity..........................................87
SECTION 9.06. Right of Setoff..............................................88
SECTION 9.07. Applicable Law...............................................88
SECTION 9.08. Waivers; Amendment...........................................88
iii
TABLE OF CONTENTS
(continued)
PAGE
SECTION 9.09. Interest Rate Limitation.....................................89
SECTION 9.11. WAIVER OF JURY TRIAL.........................................90
SECTION 9.12. Severability.................................................90
SECTION 9.13. Counterparts.................................................91
SECTION 9.14. Headings.....................................................91
SECTION 9.15. Jurisdiction; Consent to Service of Process..................91
SECTION 9.16. Confidentiality..............................................91
iv
EXHIBITS
Exhibit A- Form of Administrative Questionnaire
Exhibit B- Form of Assignment and Acceptance
Exhibit C- Form of Borrowing Request
Exhibit D- Form of Guarantee and Collateral Agreement
Exhibit E-1- Form of Opinion of General Counsel
Exhibit E-2- Form of Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx
Exhibit E-3- Form of Opinion of UK Counsel
SCHEDULES
Schedule 1.01(a) Subsidiary Guarantors
Schedule 1.01(b) Co-investment Subsidiaries
Schedule 1.01(c) Inactive Subsidiaries
Schedule 2.01 Lenders
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation; Compliance with Laws
Schedule 3.18 Insurance
Schedule 4.02(d) Accountants Closing Agreed Procedures - 2001 Cost
Reduction Plan Pro Forma Adjustments
Schedule 4.02(h) Post-closing Lien Searches
Schedule 5.04(d)(1) 2001 Cost Reduction Plan Pro Forma Adjustments
Schedule 5.04(d)(2) Accountants December 2001 Report - 2001 Cost
Reduction Plan Pro Forma Adjustments
Schedule 5.04(d)(3) Accountants December 2001 Agreed Procedures - 2001
Cost Reduction Plan Pro Forma Adjustments
Schedule 6.01 Indebtedness
Schedule 6.02 Liens
Schedule 6.04(a) Existing Investments, Loans and Advances to Foreign
Subsidiaries
Schedule 6.04(k) Existing Investments
Schedule 6.06(b) Certain Existing Restrictions
CREDIT AGREEMENT dated as of July 20, 2001, among CB XXXXXXX XXXXX
SERVICES, INC., a Delaware corporation (the "Borrower"), CBRE HOLDING, INC.,
a Delaware corporation ("Holdings"), the Lenders (as defined in Article I),
and CREDIT SUISSE FIRST BOSTON, a bank organized under the laws of
Switzerland, acting through its New York branch, as administrative agent (in
such capacity, the "ADMINISTRATIVE AGENT") and as collateral agent (in such
capacity, the "COLLATERAL AGENT") for the Lenders.
Pursuant to the Merger Agreement (such term and each other capitalized
term used but not defined herein having the meaning given it in Article I),
Merger Sub will merge (the "MERGER") with and into the Borrower, with the
Borrower surviving the Merger as a wholly owned subsidiary of Holdings. In
connection with the Merger, (a) the Cash Equity Contribution will be made,
(b) the existing stockholders of the Borrower will receive in cash (the "CASH
MERGER CONSIDERATION") and/or "rollover" equity of Holdings an aggregate
amount of approximately $325,000,000, (c) the Borrower will repay all amounts
outstanding under, and will terminate, the Existing Credit Agreement, (d) the
Borrower will consummate the Debt Tender Offer for the Existing Subordinated
Notes and the Consent Solicitation with respect thereto, (e) Holdings will
issue the Holdco Notes and (f) the Borrower will issue the Senior
Subordinated Notes.
The Borrower has requested the Lenders to extend credit in the form of
(a) Tranche A Term Loans on the Closing Date, in an aggregate principal
amount not in excess of $50,000,000, (b) Tranche B Term Loans on the Closing
Date, in an aggregate principal amount not in excess of $185,000,000, and (c)
Revolving Loans at any time and from time to time prior to the Revolving
Credit Maturity Date, in an aggregate principal amount at any time
outstanding not in excess of $90,000,000. The Borrower has requested the
Swingline Lender to extend credit, at any time and from time to time prior to
the Revolving Credit Maturity Date, in the form of Swingline Loans, in an
aggregate principal amount at any time outstanding not in excess of
$10,000,000. The Borrower has requested the Issuing Bank to issue Letters of
Credit, in an aggregate face amount at any time outstanding not in excess of
$30,000,000, to support payment obligations incurred in the ordinary course
of business by the Borrower and its Subsidiaries. The proceeds of the Term
Loans are to be used solely (a) to pay the Cash Merger Consideration, (b) to
repay amounts outstanding under the Existing Debt, (c) to pay related fees
and expenses and (d) for working capital and other general corporate
purposes. The proceeds of the Revolving Loans and the Swingline Loans are to
be used solely for working capital and other general corporate purposes.
The Lenders are willing to extend such credit to the Borrower and the
Issuing Bank is willing to issue Letters of Credit for the account of the
Borrower on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following
terms shall have the meanings specified below:
"2001 COST REDUCTION PLAN" shall mean that plan to restructure the
operations of the Borrower and its Subsidiaries to reduce costs described in
the "Recent Developments" section of the confidential offering circular dated
May 31, 2001, relating to the Senior Subordinated Notes.
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"ADDITIONAL L/C FACILITY" shall mean the letter of credit facility
provided to the Borrower by a financial institution, whether or not a Lender,
to be used solely (a) to replace the letters of credit issued under the
Existing Credit Agreement and outstanding on the Closing Date in respect of
(i) the seller notes issued to finance a portion of the acquisition by the
Borrower of REI Limited, (ii) the seller notes issued to finance a portion of
the acquisition by the Borrower of Westmark Realty Advisors, (iii) surety
bonds provided to the Borrower and its Subsidiaries in the ordinary course of
their business and (iv) the obligations of Melody to the Federal Home Loan
Mortgage Corporation, the Federal National Mortgage Association or any other
quasi-federal governmental entity in connection with commercial
mortgage-backed securities transactions and (b) for the purposes described in
the foregoing clauses (a)(i) through (iv) and any extensions, renewals or
replacements of such letters of credit to the extent the aggregate principal
amount of such facility is not increased.
"ADJUSTED LIBO RATE" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum equal to the
product of (a) the LIBO Rate in effect for such Interest Period and (b)
Statutory Reserves.
"ADMINISTRATIVE AGENT FEES" shall have the meaning assigned to such
term in Section 2.05(b).
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative
Questionnaire in the form of Exhibit A, or such other form as may be supplied
from time to time by the Administrative Agent.
"AFFILIATE" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the person specified; PROVIDED, HOWEVER, that, for purposes of Section 6.07,
the term "Affiliate" shall also include any person that directly or
indirectly owns 10% or more of any class of Equity Interests of the person
specified or that is an officer or director of the person specified.
"AGGREGATE REVOLVING CREDIT EXPOSURE" shall mean the aggregate amount
of the Lenders' Revolving Credit Exposures.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum equal
to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change
in the Alternate Base Rate due to a change in the Prime Rate or the Federal
Funds Effective Rate shall be effective on the effective date of such change
in the Prime Rate or the Federal Funds Effective Rate, respectively.
Page 2
"APPLICABLE PERCENTAGE" shall mean, for any day, subject to Section
2.07, (a) with respect to any Eurodollar Tranche B Term Loan, 3.75%, (b) with
respect to any ABR Tranche B Term Loan, 2.75%, and (c) with respect to any
Tranche A Term Loan or Revolving Loan, the applicable percentage set forth
below under the caption "Eurodollar Spread--Tranche A Term Loans and
Revolving Loans" or "ABR Spread--Tranche A Term Loans and Revolving Loans",
as the case may be, based upon the Leverage Ratio as of the relevant date of
determination:
================================================================================
Leverage Ratio Eurodollar ABR Spread-- Tranche A
Spread--Tranche A Term Term Loans and Revolving
Loans and Revolving Loans Loans
--------------------------------------------------------------------------------
CATEGORY 1 3.25% 2.25%
----------
Greater than 2.5 to 1.0
--------------------------------------------------------------------------------
CATEGORY 2 3.00% 2.00%
----------
Greater than 2.0 to 1.0
but less than or equal to
2.5 to 1.0
--------------------------------------------------------------------------------
CATEGORY 3 2.75% 1.75%
----------
Greater than 1.5 to 1.0
but less than or equal to
2.0 to 1.0
--------------------------------------------------------------------------------
CATEGORY 4 2.50% 1.50%
----------
Equal to or less than 1.5
to 1.0
================================================================================
Each change in the Applicable Percentage resulting from a change in the
Leverage Ratio shall be effective with respect to all Loans and Letters of
Credit outstanding on and after the date of delivery to the Administrative
Agent of the financial statements and certificates required by Section
5.04(a) or (b) and Section 5.04(c), respectively, indicating such change
until the date immediately preceding the next date of delivery of such
financial statements and certificates indicating another such change.
Notwithstanding the foregoing, until the Borrower shall have delivered the
financial statements and certificates required by Section 5.04(a) or (b) and
Section 5.04(c), respectively, for the period ended December 31, 2001, the
Leverage Ratio shall be deemed to be in Category 1 for purposes of
determining the Applicable Percentage. In addition, (a) at any time during
which the Borrower has failed to deliver the financial statements and
certificates required by Section 5.04(a) or (b) and Section 5.04(c),
respectively, or (b) at any time after the occurrence and during the
continuance of an Event of Default, the Leverage Ratio shall be deemed to be
in Category 1 for purposes of determining the Applicable Percentage.
"ASSET SALE" shall mean the sale, transfer or other disposition (by way
of merger, casualty, condemnation or otherwise) by the Borrower or any of the
Subsidiaries to any person other than the Borrower or any Subsidiary
Guarantor of any assets of the Borrower or any of the Subsidiaries (other
than (i) inventory, damaged, obsolete or worn out assets and Permitted
Investments, in each case disposed of in the ordinary course of business,
(ii) dispositions between or among Foreign Subsidiaries, (iii) the sale by
Melody of assets purchased and/or funded pursuant to the Melody Mortgage
Warehousing Facility or the Melody Loan Arbitrage Facility and (iv) the sale
by Melody of servicing rights in respect of mortgage portfolios in the
ordinary course of its business and consistent with past practice); PROVIDED
that any asset sale or
Page 3
series of related asset sales having a value (net of related assumed
liabilities) not in excess of $500,000 shall be deemed not to be an "Asset Sale"
for purposes of this Agreement.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B or such other form as shall be approved by
the Administrative Agent.
"AVAILABLE CASH" shall mean, on any date, the amount of cash and
Permitted Investments held by the Borrower and the Domestic Subsidiaries on
such date, less the amount thereof that is (a) reflected as "Cash Surrender
Value for Insurance Policy for Deferred Compensation Plan" and "Prepaid
Pension Costs" on the most recent balance sheet of the Borrower delivered
pursuant to this Agreement or (b) subject to restrictions, directly or
indirectly, on its use.
"BOARD" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"BORROWING" shall mean (a) Loans of the same Class and Type made,
converted or continued on the same date and, in the case of Eurodollar Loans,
as to which a single Interest Period is in effect, or (b) a Swingline Loan.
"BORROWING REQUEST" shall mean a request by the Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit C, or
such other form as shall be approved by the Administrative Agent.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or day
on which banks in New York City are authorized or required by law to close;
provided, however, that when used in connection with a Eurodollar Loan, the
term "BUSINESS DAY" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"CALPERS CO-INVESTMENT" shall mean a Co-investment by Global Innovation
Contributors, LLC (which shall be a Co-investment Subsidiary) in Global
Innovation Partners, LLC (which shall be a Co-investment Vehicle), pursuant
to the terms of such Co-investment contained in the organizational documents
of Global Innovation Contributors, LLC and Global Innovation Partners, LLC as
of the Closing Date.
"CAPITAL EXPENDITURES" shall mean, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of the Borrower
and its consolidated Subsidiaries that are set forth as such in a
consolidated statement of cash flows of the Borrower for such period prepared
in accordance with GAAP and (b) Capital Lease Obligations incurred by the
Borrower and its consolidated Subsidiaries during such period, but excluding
in each case (i) any such expenditure made to restore, replace or rebuild
property to the condition of such property immediately prior to any damage,
loss, destruction or condemnation of such property, to the extent such
expenditure is made with insurance proceeds, condemnation awards, damage
recovery proceeds or other indemnity payments relating to any such damage,
loss, destruction or condemnation within 270 days of receipt of such
proceeds, (ii) any such expenditure made at the request of, and for which the
Borrower or any consolidated Subsidiary receives reimbursement in cash from,
a person other than the Borrower or any Subsidiary in the ordinary course of
business,
Page 4
and (iii) expenditures which represent any part of the aggregate consideration
made in connection with any investment or Permitted Acquisition permitted under
Section 6.04.
"CAPITAL LEASE OBLIGATIONS" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CASH EQUITY CONTRIBUTION" shall mean (a) the contribution to Holdings
of not less than $98,800,000 in cash in the form of equity (it being
understood that (i) any contribution to Holdings by RCBA of shares of common
equity of the Borrower in excess of 2,345,900 shares will be considered a
cash contribution by RCBA in an amount equal to $16.00 multiplied by the
number of shares constituting such excess and a contribution of such amount
from Holdings to the Borrower and (ii) the transfer by designated managers of
an aggregate of up to $2.6 million of deferred compensation plan account
balances (currently reflected as cash surrender value of insurance policies,
deferred compensation plan in the financial statements of the Borrower) to
stock fund units shall be deemed to be a cash contribution to Holdings of the
amount of such transfer and a contribution of such amount from Holdings to
the Borrower to the extent (x) accounted for as equity of the Borrower and
(y) such transfer of an account balance results in a transfer to the Borrower
of cash from the trust relating to such deferred compensation plan) and (b)
the contribution by Holdings of the amount so received, together with the net
proceeds from its sale of the Holdco Notes, to the Borrower as common equity.
"CHANGE IN CONTROL" shall mean (a) the failure by RCBA to own, directly
or indirectly, beneficially and of record, Equity Interests in Holdings
representing at least 75% of the Equity Interests in Holdings owned by RCBA
on the Closing Date; (b) any person or "group" (within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934 as in effect on the
Closing Date) other than a group controlled by RCBA shall own, beneficially
or of record, Equity Interests of Holdings that represents a greater
percentage of the Equity Interests of Holdings then owned by RCBA; (c) RCBA
shall cease to have the right or ability, by voting power, contract or
otherwise, to elect or designate for election a majority of the seats on the
board of directors of Holdings; (d) occupation of a majority of the seats
(other than vacant seats) on the board of directors of Holdings by persons
who were neither (i) nominated by the board of directors of Holdings or any
Permitted Investor nor (ii) appointed by the directors so nominated; (e)
Holdings shall cease to directly own the greater of (i) 95% of the issued
and outstanding Equity Interests of the Borrower and (ii) that number of
outstanding shares of the Equity Interests of the Borrower owned by it on the
Closing Date; or (f) the occurrence of a "Change of Control" under and as
defined in the Holdco Note Documents or the Senior Subordinated Note
Documents. For purposes hereof, (i) RCBA shall not be deemed to beneficially
own any Equity Interests owned of record by any other person for purposes of
clause (a) and (ii) any person other than RCBA that is member of a group that
includes RCBA shall not be deemed to beneficially own any Equity Interests
owned of record by RCBA as a result of such ownership by RCBA.
"CHANGE IN LAW" shall mean (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule
or regulation or in the interpretation or
Page 5
application thereof by any Governmental Authority after the date of this
Agreement or (c) compliance by any Lender or the Issuing Bank (or, for purposes
of Section 2.14, by any lending office of such Lender or by such Lender's or
Issuing Bank's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving
Loans, Tranche A Term Loans, Tranche B Term Loans, Other Term Loans or
Swingline Loans and, when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Credit Commitment, Tranche A
Commitment, Tranche B Commitment, Incremental Term Loan Commitment in
respect of Other Term Loans or Swingline Commitment.
"CLOSING DATE" shall mean July 20, 2001.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"CO-INVESTMENT" shall mean any investment by a Co-investment Subsidiary
in up to 5% of the Equity Interests of a Co-investment Vehicle pursuant to
arrangements substantially similar to arrangements entered into by the
Borrower and the Subsidiaries prior to the Closing Date.
"CO-INVESTMENT SUBSIDIARY" shall mean (a) any Subsidiary of the
Borrower in which at least 66 2/3% of the Equity Interests is owned by the
Borrower or a wholly owned Subsidiary that is formed solely for the purpose
of, and engages in no business other than the business of, investing in or
managing Co-investment Vehicles and (b) the Co-investment Subsidiaries
existing on the Closing Date listed on Schedule 1.01(b).
"CO-INVESTMENT VEHICLE" shall mean an entity formed for the purpose of
investing principally in commercial real estate and managed by a
Co-investment Subsidiary pursuant to arrangements substantially similar to
arrangements entered into by the Borrower and the Subsidiaries prior to the
Closing Date.
"COLLATERAL" shall mean all the "Collateral" as defined in any Security
Document.
"COLLATERAL AGREEMENT" shall mean the Guarantee and Collateral
Agreement, substantially in the form of Exhibit D, among the Borrower,
Holdings, the Subsidiary Guarantors and the Collateral Agent for the benefit
of the Secured Parties.
"COMMITMENT" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment, Term Loan Commitment and Swingline Commitment.
"COMMITMENT FEE" shall have the meaning assigned to such term in
Section 2.05(a).
"CONFIDENTIAL INFORMATION MEMORANDUM" shall mean the Confidential
Information Memorandum of the Borrower dated April 2001, as revised by the
Confidential Information Memorandum of the Borrower dated May 2001.
Page 6
"CONSENT SOLICITATION" shall mean the solicitation of the holders of
the Existing Subordinated Notes to amend the indenture relating thereto to
remove, among other things, the covenants and restrictions therein that would
prevent the Merger and the related transactions.
"CONSOLIDATED EBITDA" shall mean, for any period, Consolidated Net
Income for such period plus (a) without duplication and to the extent
deducted in determining such Consolidated Net Income, the sum of (i)
Consolidated Interest Expense for such period (including deferred financing
costs), (ii) consolidated income tax expense for such period, (iii) all
amounts attributable to depreciation and amortization for such period, (iv)
any non-recurring fees, expenses or charges in connection with the
consummation of the Transactions, (v) any non-recurring fees, expenses or
charges related to any Equity Issuance, investment permitted under Section
6.04, Permitted Acquisition or incurrence of Indebtedness, in an amount not
exceeding $5,000,000 for all such non-recurring fees, expenses and charges,
(vi) any non-recurring charges that are associated with the 2001 Cost
Reduction Plan announced prior to the Closing Date and implemented within 90
days thereafter, in an aggregate amount not exceeding $4,000,000, and (vii)
all other non-cash losses, expenses and charges of the Borrower and its
consolidated Subsidiaries (excluding (x) the write-down of current assets and
(y) any such non-cash charge to the extent that it represents an accrual of
or reserve for cash expenditures in any future period) and minus (b) without
duplication (i) all cash payments made during such period on account of
reserves, restructuring charges and other noncash charges added to
Consolidated Net Income pursuant to clause (a)(vi) above in a previous period
and (ii) to the extent included in determining such Consolidated Net Income,
any extraordinary gains for such period, all determined on a consolidated
basis in accordance with GAAP. For purposes of calculating Consolidated
EBITDA for any period that includes the fiscal quarters ended March 31, 2001,
or June 30, 2001, pro forma effect shall be given to the 2001 Cost Reduction
Plan as described in Schedule 5.04(d)(1).
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period, the sum of
(a) the interest expense (including imputed interest expense in respect of
Capital Lease Obligations but excluding all non-cash interest expense in
respect of the Holdco Notes) of the Borrower and the Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP, plus (b)
any interest accrued during such period in respect of Indebtedness of the
Borrower or any Subsidiary that is required to be capitalized rather than
included in consolidated interest expense for such period in accordance with
GAAP, minus (c) deferred financing costs and (d) any premiums relating to the
Debt Tender Offer. For purposes of the foregoing, interest expense shall be
determined after giving effect to any net payments made or received by the
Borrower or any Subsidiary with respect to interest rate Hedging Agreements.
"CONSOLIDATED NET INCOME" shall mean, for any period, the net income or
loss of the Borrower and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; PROVIDED that there shall be
excluded (a) the income of any Subsidiary to the extent that the declaration
or payment of dividends or similar distributions by the Subsidiary of that
income is not at the time permitted by operation of the terms of its charter
or any agreement, instrument, judgment, decree, statute, rule or governmental
regulation applicable to such Subsidiary, (b) except as set forth in Section
1.04, the income or loss of any person accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with the Borrower or any
Subsidiary or the date that such person's assets are acquired by the Borrower
or any Subsidiary,
Page 7
(c) the income of any person in which any other person (other than the Borrower
or a Subsidiary of which at least 80% of the Equity Interests is owned by the
Borrower or a wholly owned Subsidiary or any director holding qualifying shares
in accordance with applicable law) has a joint interest, except to the extent of
the amount of dividends or other distributions actually received by the Borrower
or a wholly owned Subsidiary from such person during such period, and (d) any
gains attributable to sales of assets out of the ordinary course of business.
"CONTROL" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "CONTROLLING" and "CONTROLLED" shall have meanings
correlative thereto.
"CREDIT EVENT" shall have the meaning assigned to such term in Section
4.01.
"DEBT TENDER OFFER" shall mean the Borrower's tender offer to
repurchase all its outstanding Existing Subordinated Notes.
"DEFAULT" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"DEFERRED COMPENSATION PLAN" shall mean the Deferred Compensation Plan
for employees of the Borrower and the Subsidiaries and any successor plan
thereto.
"DOCUMENTS" shall mean the Loan Documents and the Transaction Documents.
"DOLLARS" or "$" shall mean lawful money of the United States of
America.
"DOMESTIC SUBSIDIARIES" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof
or the District of Columbia.
"EMPLOYEE OFFERING REGISTRATION STATEMENT" shall mean the Registration
Statement of Holdings on Form S-1 dated April 24, 2001, as amended.
"ENVIRONMENTAL LAWS" shall mean all former, current and future Federal,
state, local and foreign laws (including common law), treaties, regulations,
rules, ordinances, codes, decrees, judgments, directives, orders (including
consent orders), and agreements in each case, relating to protection of the
environment, natural resources, human health and safety or the presence,
Release of, or exposure to, Hazardous Materials, or the generation,
manufacture, processing, distribution, use, treatment, storage, transport,
recycling or handling of, or the arrangement for such activities with respect
to, Hazardous Materials.
"ENVIRONMENTAL LIABILITY" shall mean all liabilities, obligations,
damages, losses, claims, actions, suits, judgments, orders, fines, penalties,
fees, expenses and costs (including administrative oversight costs, natural
resource damages and remediation costs), whether contingent or otherwise,
arising out of or relating to (a) compliance or non-compliance with any
Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to
any Hazardous Materials, (d) the Release of
Page 8
any Hazardous Materials or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
"EQUITY INTERESTS" shall mean shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity interests in any person.
"EQUITY ISSUANCE" shall mean any issuance or sale by Holdings, the
Borrower or any of their respective subsidiaries of any Equity Interests or
any obligations convertible into or exchangeable for, or giving any person a
right, option or warrant to acquire such Equity Interests or such convertible
or exchangeable obligations, as applicable, except in each case for (a) any
issuance or sale to any Sponsor, Holdings, the Borrower or any Subsidiary,
(b) any issuance of directors' qualifying shares, (c) sales or issuances of
common stock of Holdings or stock fund units in the Deferred Compensation
Plan to management, employees or consultants of Holdings, the Borrower or any
Subsidiary under the Deferred Compensation Plan or any employee stock option
or stock purchase plan or employee benefit plan in existence from time to
time and (d) sales or issuances of common stock of Holdings to management,
employees or consultants of Holdings, the Borrower or any Subsidiary pursuant
to the Employee Offering Registration Statement on or prior to August 3, 2001.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code, or solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or
not waived; (c) the filing pursuant to Section 412(d) of the Code or Section
303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence by the Borrower or any
of its ERISA Affiliates of any liability under Title IV of ERISA with respect
to the termination of any Plan (other than a standard termination pursuant to
Section 4041(b) of ERISA) or the withdrawal or partial withdrawal of the
Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan;
(e) the receipt by the Borrower or any of its ERISA Affiliates from the PBGC
or a plan administrator of any notice relating to the intention to terminate
any Plan or Plans or to appoint a trustee to administer any Plan; (f) the
adoption of any amendment to a Plan that would require the provision of
security pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA;
(g) the receipt by the Borrower or any of its ERISA Affiliates of any intent
to withdraw from a Multiemployer Plan, or the receipt by any Multiemployer
Plan from the Borrower or any of its ERISA Affiliates of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA; (h) the occurrence of a "prohibited
transaction" with respect to which the
Page 9
Borrower or any of the Subsidiaries is a "disqualified person" (within the
meaning of Section 4975 of the Code) or with respect to which the Borrower or
any such Subsidiary could otherwise be liable; (i) any other event or condition
with respect to a Plan or Multiemployer Plan that could result in liability of
the Borrower or any Subsidiary; or (j) any Foreign Benefit Event.
"EURODOLLAR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Article VII.
"EXCESS CASH FLOW" shall mean, for any period, the excess of
Consolidated EBITDA for such period minus the sum, without duplication, of
(i) the amount of any Taxes paid in cash by the Borrower and the Subsidiaries
with respect to such period, (ii) Consolidated Interest Expense for such
period paid in cash, (iii) Capital Expenditures made in cash in accordance
with Section 6.10 during such period, except to the extent financed with the
proceeds of Indebtedness, equity issuances, casualty proceeds, condemnation
proceeds or other proceeds that would not be included in Consolidated EBITDA,
(iv) permanent repayments of Indebtedness (other than mandatory prepayments
of Loans under Section 2.13) made by the Borrower and the subsidiaries during
such fiscal year, but only to the extent that such prepayments by their terms
cannot be reborrowed or redrawn and do not occur in connection with a
refinancing of all or any portion of such Indebtedness, (v) the amount of net
investments made in cash in accordance with Section 6.04(g) or (i) during
such period (vi) the amount of Restricted Payments made in cash by the
Borrower in accordance with Section 6.06 during such period, (vii) any
non-recurring fees, expenses or charges in connection with the consummation
of the Transactions to the extent included in Consolidated EBITDA with
respect to such period pursuant to clause (iv) of the definition of
Consolidated EBITDA, and (viii) any costs or charges associated with the 2001
Cost Reduction Plan to the extent included in Consolidated EBITDA with
respect to such period pursuant to clause (vi) of the definition of
Consolidated EBITDA.
"EXCLUDED TAXES" shall mean, with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made
by or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by (i) any
Governmental Authority of the United States of America (or any political
subdivision or taxing authority thereof or therein), or the jurisdiction
under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable
lending office is located, or (ii) as a result of a present or former
connection between the Administrative Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax (or any
political subdivision or taxing authority thereof or therein) other than a
connection arising solely as a result of entering into any Loan Document; (b)
any branch profits taxes imposed by any Governmental Authority of the United
States of America (or any political subdivision or taxing authority thereof
or therein) or any similar tax imposed by any other jurisdiction described in
clause (a) above, and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 2.21(a)), any
withholding tax that is imposed on amounts payable to such Foreign Lender at
the time such Foreign Lender becomes a party to this Agreement (or designates
a new lending office) or is attributable to such Foreign Lender's failure to
comply with Section 2.20(f), except
Page 10
to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.20(a).
"EXISTING CREDIT AGREEMENT" shall mean the Amended and Restated Credit
Agreement dated as of May 20, 1998, among the Borrower, Bank of America N.A.,
as agent, and the lenders named therein, among others, as amended.
"EXISTING DEBT" shall mean the Indebtedness outstanding under the
Existing Subordinated Notes and the indebtedness outstanding under the
Existing Credit Agreement.
"EXISTING SUBORDINATED NOTES" shall mean the Borrowers' 8- % senior
subordinated notes issued under the First Supplemental Indenture dated as of
May 26, 1998, between the Borrower and State Street Bank and Trust Company of
California, National Association, as trustee.
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the quotations for the day
for such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"FEES" shall mean the Commitment Fees, the Administrative Agent Fees,
the L/C Participation Fees and the Issuing Bank Fees.
"FINANCIAL OFFICER" of any person shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such person.
"FIXED CHARGE COVERAGE RATIO" shall mean, for any period, the ratio of
(a) Consolidated EBITDA for such period minus Capital Expenditures and
Co-investments for such period to (b) the sum of Consolidated Interest
Expense plus Restricted Payments made under Section 6.06(a)(ii) by the
Borrower for such period.
"FOREIGN BENEFIT EVENT" shall mean, with respect to any Foreign Pension
Plan, (a) the existence of unfunded liabilities in excess of the amount
permitted under any applicable law, or in excess of the amount that would be
permitted absent a waiver from a Governmental Authority, (b) the failure to
make the required contributions or payments, under any applicable law, on or
before the due date for such contributions or payments, (c) the receipt of a
notice by a Governmental Authority relating to the intention to terminate any
such Foreign Pension Plan or to appoint a trustee or similar official to
administer any such Foreign Pension Plan, or alleging the insolvency of any
such Foreign Pension Plan and (d) the incurrence of any liability in excess
of $2,500,000 (or the equivalent thereof in another currency) by Holdings,
the Borrower or any of its Subsidiaries under applicable law on account of
the complete or partial termination of such Foreign Pension Plan or the
complete or partial withdrawal of any participating employer therein, or (e)
the occurrence of any transaction that is prohibited under any applicable law
and could reasonably be expected to result in the incurrence of any liability
by Holdings, the
Page 11
Borrower or any of its Subsidiaries, or the imposition on Holdings, the Borrower
or any of its Subsidiaries of any fine, excise tax or penalty resulting from any
noncompliance with any applicable law, in each case in excess of $2,500,000 (or
the equivalent thereof in another currency).
"FOREIGN LENDER" shall mean any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"FOREIGN PENSION PLAN" shall mean any plan, fund (including any
superannuation fund) or other similar program established or maintained
outside the United States by Holdings, the Borrower or any one or more of its
Subsidiaries primarily for the benefit of employees of Holdings, the Borrower
or such Subsidiaries residing outside the United States, which plan, fund or
other similar program provides, or results in, retirement income, a deferral
of income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA or the Code.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean United States generally accepted accounting
principles applied on a consistent basis.
"GOVERNMENTAL AUTHORITY" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"GRANTING LENDER" shall have the meaning assigned to such term in
Section 9.04(i).
"GUARANTEE" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other person (the
"PRIMARY OBLIGOR") in any manner, whether directly or indirectly, and
including any obligation of such person, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply
funds for the purchase of) any security for the payment of such Indebtedness
or other obligation, (b) to purchase or lease property, securities or
services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment of such Indebtedness or other obligation or (c) to
maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation; PROVIDED, HOWEVER, that
the term "Guarantee" shall not include endorsements for collection or deposit
in the ordinary course of business.
"GUARANTORS" shall mean Holdings and the Subsidiary Guarantors.
"HAZARDOUS MATERIALS" shall mean (a) any petroleum products or
byproducts and all other hydrocarbons, coal ash, radon gas, asbestos, urea
formaldehyde foam insulation, polychlorinated biphenyls, chlorofluorocarbons
and all other ozone-depleting substances and (b)
Page 12
any chemical, material, substance or waste that is prohibited, limited or
regulated by or pursuant to any Environmental Law.
"HEDGING AGREEMENT" shall mean any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging
arrangement.
"HOLDCO NOTE DOCUMENTS" shall mean the Holdco Notes, the indenture
under which the Holdco Notes are issued and all other material instruments,
agreements and other documents evidencing or governing the Holdco Notes or
providing for any right in respect thereof.
"HOLDCO NOTES" shall mean Holdings' 16% Senior Unsecured Notes due
2011, in an initial aggregate principal amount of $65,000,000.
"INACTIVE SUBSIDIARY" shall mean (a) each Subsidiary that (i) has not
conducted any business during the 12-month period preceding the date of
determination, (ii) has no outstanding Indebtedness, (iii) has total
tangible assets of less than $50,000 and (b) each Subsidiary listed on
Schedule 1.01(c), so long as after the Closing Date such Subsidiary (i)
engages in no business, (ii) incurs no Indebtedness and (iii) acquires no
tangible assets.
"INCREMENTAL REVOLVING FACILITY AMOUNT" shall mean, at any time the
excess, if any, of (a) $25,000,000 over (b) the sum of (i) the aggregate
amount of all Incremental Term Loan Commitments established at or prior to
such time pursuant to Section 2.25 and (ii) the aggregate increase in the
Revolving Credit Commitments established prior to such time pursuant to
Section 2.24.
"INCREMENTAL TERM LENDER" shall mean a Lender with an Incremental Term
Loan Commitment or an outstanding Incremental Term Loan.
"INCREMENTAL TERM LOAN AMOUNT" shall mean, at any time, the excess, if
any, of (a) $25,000,000 over (b) the sum of (i) the aggregate increase in the
Revolving Credit Commitments established at or prior to such time pursuant to
Section 2.24 and (ii) the aggregate amount of all Incremental Term Loan
Commitments established prior to such time pursuant to Section 2.25.
"INCREMENTAL TERM LOAN ASSUMPTION AGREEMENT" shall mean an Incremental
Term Loan Assumption Agreement in form and substance reasonably satisfactory
to the Administrative Agent, among the Borrower, the Administrative Agent and
one or more Incremental Term Lenders.
"INCREMENTAL TERM LOAN COMMITMENT" shall mean the commitment of any
Lender, established pursuant to Section 2.25, to make Incremental Term Loans
to the Borrower.
"INCREMENTAL TERM LOAN MATURITY DATE" shall mean the final maturity
date of any Incremental Term Loan, as set forth in the applicable Incremental
Term Loan Assumption Agreement.
Page 13
"INCREMENTAL TERM LOAN REPAYMENT DATES" shall mean the dates scheduled
for the repayment of principal of any Incremental Term Loan, as set forth in
the applicable Incremental Term Loan Assumption Agreement.
"INCREMENTAL TERM LOANS" shall mean Term Loans made by one or more
Lenders to the Borrower pursuant to clause (c) of Section 2.01. Incremental
Term Loans may be made in the form of additional Tranche A Term Loans,
Tranche B Term Loans or, to the extent permitted by Section 2.25 and provided
for in the relevant Incremental Term Loan Assumption Agreement, Other Term
Loans.
"INDEBTEDNESS" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid, (d) all obligations of such
person under conditional sale or other title retention agreements relating to
property or assets purchased by such person, (e) all obligations of such
person issued or assumed as the deferred purchase price of property or
services (excluding (i) with respect to clause (e), trade accounts payable
and accrued obligations incurred in the ordinary course of business and (ii)
only with respect to clauses (a) through (e), accrued obligations in respect
of the Deferred Compensation Plan), (f) all Indebtedness of others secured by
(or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such person, whether or not the obligations secured thereby have
been assumed, (g) all Guarantees by such person of Indebtedness of others
(other than Guarantees by a Co-investment Subsidiary of any non-recourse
Indebtedness of any Co-investment Vehicle), (h) all Capital Lease Obligations
of such person, (i) all obligations of such person as an account party in
respect of letters of credit and (j) all obligations of such person in
respect of bankers' acceptances. The Indebtedness of any person shall
include all Indebtedness of any partnership, or other entity in which such
person is a general partner, or other equity holder with unlimited liability
other than (x) Indebtedness which by its terms is expressly non-recourse to
such person and (y) if such person is a Co-investment Subsidiary, the
Indebtedness of the related Co-investment Vehicle.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded Taxes.
"INTEREST COVERAGE RATIO" shall mean, for any period, the ratio of (a)
Consolidated EBITDA for such period to (b) the sum of Consolidated Interest
Expense plus Restricted Payments made under Section 6.06(a)(ii) by the
Borrower for such period.
"INTEREST PAYMENT DATE" shall mean (a) with respect to any ABR Loan,
the last Business Day of each March, June, September and December and (b)
with respect to any Eurodollar Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of
a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day that would have been an Interest Payment Date had
successive Interest Periods of three months' duration been applicable to such
Borrowing.
"INTEREST PERIOD" shall mean, with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day
Page 14
(or, if there is no numerically corresponding day, on the last day) in the
calendar month that is 1, 2, 3 or 6 months thereafter (or 9 or 12 months
thereafter if, at the time of the relevant Borrowing, all Lenders participating
therein agree to make an interest period of such duration available), as the
Borrower may elect; PROVIDED, HOWEVER, that if any Interest Period would end on
a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day. Interest shall accrue from and including the first
day of an Interest Period to but excluding the last day of such Interest Period.
For purposes hereof, the date of a Borrowing initially shall be the date on
which such Borrowing is made and thereafter shall be the effective date of the
most recent conversion or continuation of such Borrowing.
"ISSUING BANK" shall mean, as the context may require, (a) Credit
Suisse First Boston, in its capacity as the issuer of Letters of Credit
hereunder, and (b) any other Lender that may become an Issuing Bank pursuant
to Section 2.23(i) or (k), with respect to Letters of Credit issued by such
Lender. The Issuing Bank may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of the Issuing Bank, in which
case the term "Issuing Bank" shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate.
"ISSUING BANK FEES" shall have the meaning assigned to such term in
Section 2.05(c).
"JV SUBSIDIARY" shall mean a partially owned Subsidiary in which the
Borrower or any Subsidiary has contributed assets or otherwise made an
investment in (including of cash) with a fair market value (determined on the
date of such contribution or investment, as the case may be) of $250,000 or
less in the aggregate; PROVIDED, that the aggregate fair market value
(determined on the date of such contribution or investment, as the case may
be) of all assets contributed, indebtedness assumed or investments made by
the Borrower or Subsidiaries in all JV Subsidiaries shall not exceed in the
aggregate $2,000,000.
"L/C COMMITMENT" shall mean the commitment of the Issuing Bank to issue
Letters of Credit pursuant to Section 2.23.
"L/C DISBURSEMENT" shall mean a payment or disbursement made by the
Issuing Bank pursuant to a Letter of Credit.
"L/C EXPOSURE" shall mean at any time the sum of (a) the aggregate
undrawn and unexpired amount of all outstanding Letters of Credit at such
time and (b) the aggregate principal amount of all L/C Disbursements that
have not yet been reimbursed at such time. The L/C Exposure of any Revolving
Credit Lender at any time shall equal its Pro Rata Percentage of the
aggregate L/C Exposure at such time.
"L/C PARTICIPATION FEE" shall have the meaning assigned to such term in
Section 2.05(c).
"LENDERS" shall mean (a) the persons listed on Schedule 2.01 (other
than any such person that has ceased to be a party hereto pursuant to an
Assignment and Acceptance) and (b) any person that has become a party hereto
pursuant to an Assignment and Acceptance. Unless the context clearly
indicates otherwise, the term "Lenders" shall include the Swingline Lender.
Page 15
"LETTER OF CREDIT" shall mean any letter of credit issued pursuant to
Section 2.23.
"LEVERAGE RATIO" shall mean, on any date, the ratio of Total Debt less
Available Cash on such date to Consolidated EBITDA for the period of four
consecutive fiscal quarters most recently ended on or prior to such date.
"LIBO RATE" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate per annum determined by the Administrative
Agent at approximately 11:00 a.m., London time, on the date that is two
Business Days prior to the commencement of such Interest Period by reference
to the British Bankers' Association Interest Settlement Rates for deposits in
dollars (as set forth by the Bloomberg Information Service or any successor
thereto or any other service selected by the Administrative Agent which has
been nominated by the British Bankers' Association as an authorized
information vendor for the purpose of displaying such rates) for a period
equal to such Interest Period; PROVIDED that, to the extent that an interest
rate is not ascertainable pursuant to the foregoing provisions of this
definition, the "LIBO Rate" shall be the interest rate per annum determined
by the Administrative Agent to be the average of the rates per annum at which
deposits in dollars are offered for such relevant Interest Period to major
banks in the London interbank market in London, England by the Administrative
Agent at approximately 11:00 a.m. (London time) on the date that is two
Business Days prior to the beginning of such Interest Period.
"LIEN" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase
option, call or similar right of a third party with respect to such
securities.
"LOAN DOCUMENTS" shall mean this Agreement, the Letters of Credit, the
Collateral Agreement, the Security Documents and each Incremental Term Loan
Assumption Agreement.
"LOAN PARTIES" shall mean the Borrower and the Guarantors.
"LOANS" shall mean the Revolving Loans, the Term Loans and the
Swingline Loans.
"MARGIN STOCK" shall have the meaning assigned to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean a materially adverse effect on (a)
the business, assets, operations or condition (financial or otherwise) of the
Borrower and the Subsidiaries, taken as a whole, (b) the ability of the
Borrower or any other Loan Party to perform any of its obligations under any
Loan Document to which it is or will be a party or (c) the rights of or
benefits available to the Lenders under any Loan Document.
"MATERIAL INDEBTEDNESS" shall mean Indebtedness (other than the Loans
and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of Holdings, the Borrower and the Subsidiaries
in an aggregate principal amount exceeding $7,500,000. For purposes of
determining Material Indebtedness, the "principal amount" of the obligations
of Holdings, the Borrower or any Subsidiary in respect of any Hedging
Agreement at
Page 16
any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that Holdings, the Borrower or such Subsidiary would be required to
pay if such Hedging Agreement were terminated at such time.
"MELODY" shall mean X.X. Xxxxxx & Company, a Texas corporation.
"MELODY LOAN ARBITRAGE FACILITY" shall mean a credit facility provided
to Melody by any depository bank in which Melody deposits payments relating
to mortgage loans for which Melody is servicer or sub-servicer prior to
distribution of such payments to or for the benefit of the borrower of such
loans or the holders of such loans, so long as (i) Melody applies all
proceeds of loans made under such credit facility to purchase Permitted
Investments, and (ii) all such Permitted Investments purchased by Melody with
the proceeds of loans thereunder (and proceeds thereof and distributions
thereon) are pledged to the depository bank providing such credit facility,
and such bank has a first priority perfected security interest therein, to
secure loans made under such credit facility.
"MELODY MORTGAGE WAREHOUSING FACILITY" shall mean the credit facility
provided by Residential Funding Corporation ("RFC") or any substantially
similar facility extended to any Mortgage Banking Subsidiary in connection
with any Mortgage Banking Activities, pursuant to which RFC or another lender
makes loans to Melody, the proceeds of which loans are applied by Melody (or
any Mortgage Banking Subsidiary) to fund commercial mortgage loans originated
and owned by Melody (or any Mortgage Banking Subsidiary) subject to a
commitment (subject to customary exceptions) to purchase such mortgage loans
by the Federal Home Loan Mortgage Corporation, the Federal National Mortgage
Association or any other quasi-federal governmental entity so long as loans
made by RFC or such other lender to Melody (or any Mortgage Banking
Subsidiary) thereunder are secured by a pledge of commercial mortgage loans
made by Melody (or any Mortgage Banking Subsidiary) with the proceeds of such
loans, and RFC or such other lender has a perfected first priority security
interest therein, to secure loans made under such credit facility.
"MELODY PERMITTED INDEBTEDNESS" shall mean Indebtedness of Melody under
the Melody Loan Arbitrage Facility, the Melody Mortgage Warehousing Facility
and the Melody Working Capital Facility and Indebtedness of any Mortgage
Banking Subsidiary under the Melody Mortgage Warehousing Facility that is, in
all cases, non-recourse to the Borrower or any of the other Subsidiaries.
"MELODY WORKING CAPITAL FACILITY" shall mean a credit facility provided
by a financial institution to Melody, so long as (i) the proceeds of loans
thereunder are applied only to provide working capital to Melody, (ii) loans
under such credit facility are unsecured, and (iii) the aggregate principal
amount of loans outstanding under such credit facility at no time exceeds
$1,000,000.
"MERGER AGREEMENT" shall mean the amended and restated agreement and
plan of merger dated as of May 31, 2001, among the Borrower, Holdings and
Merger Sub and all other material documents entered into or delivered in
connection with the Merger Agreement.
Page 17
"MERGER SUB" shall mean XXXX XX Corp., a Delaware corporation and
wholly owned Subsidiary of Holdings.
"MORTGAGE BANKING ACTIVITIES" shall mean the origination by a Mortgage
Banking Subsidiary of mortgage loans in respect of commercial and
multi-family residential real property, and the sale or assignment of such
mortgage loans and the related mortgages to another person (other than the
Borrower or any other Subsidiary) within sixty days after the origination
thereof; PROVIDED, HOWEVER, that in each case prior to origination of any
mortgage loan, the Borrower or a Mortgage Banking Subsidiary, as the case may
be, shall have entered into a legally binding and enforceable purchase and
sale agreement with respect to such mortgage loan with a person that
purchases such loans in the ordinary course of business.
"MORTGAGE BANKING SUBSIDIARY" shall mean Melody and its subsidiaries
that are engaged in Mortgage Banking Activities.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"NET CASH PROCEEDS" shall mean (a) with respect to any Asset Sale, the
cash proceeds (including cash proceeds subsequently received (as and when
received) in respect of noncash consideration initially received), net of (i)
selling expenses (including reasonable broker's fees or commissions, legal
fees, transfer and similar taxes and the Borrower's good faith estimate of
taxes paid or reasonably estimated to be payable in connection with such
sale), (ii) amounts provided as a reserve, in accordance with GAAP, against
any liabilities under any indemnification obligations or purchase price
adjustment associated with such Asset Sale (PROVIDED that, to the extent and
at the time any such amounts are released from such reserve, such amounts
shall constitute Net Cash Proceeds) and (iii) the principal amount, premium
or penalty, if any, interest and other amounts on any Indebtedness for
borrowed money which is secured by the asset sold in such Asset Sale and
which is required to be repaid with such proceeds (other than any such
Indebtedness assumed by the purchaser of such asset); PROVIDED, HOWEVER,
that, if (x) the Borrower shall deliver a certificate of a Financial Officer
to the Administrative Agent at the time of receipt thereof setting forth the
Borrower's intent to reinvest such proceeds in assets of a kind then used or
usable in the business of the Borrower and its Subsidiaries or in the Equity
Interests of a person engaged in the same or related business as that of the
Borrower or any Subsidiary within 270 days of receipt of such proceeds and
(y) no Default or Event of Default shall have occurred and shall be
continuing at the time of such certificate or at the proposed time of the
application of such proceeds, such proceeds shall not constitute Net Cash
Proceeds except to the extent not so used or contractually committed to be
used at the end of such 270-day period, at which time such proceeds shall be
deemed to be Net Cash Proceeds; and (b) with respect to any incurrence or
disposition of Indebtedness or any Equity Issuance, the cash proceeds
thereof, net of all taxes and customary fees, commissions, costs and other
expenses incurred in connection therewith.
"OBLIGATIONS" shall have the meaning assigned to such term in the
Collateral Agreement.
"OTHER TAXES" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made
Page 18
under any Loan Document or from the execution, delivery or enforcement of, or
otherwise with respect to, any Loan Document.
"OTHER TERM LOANS" shall have the meaning assigned to such term in
Section 2.25(a).
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"PERFECTION CERTIFICATE" shall mean the Perfection Certificate
substantially in the form of Annex 2 to the Collateral Agreement.
"PERMITTED ACQUISITION" shall have the meaning assigned to such term in
Section 6.04(g).
"PERMITTED INVESTMENTS" shall mean:
(a) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States of America (or by any
agency thereof to the extent such obligations are backed by the full faith and
credit of the United States of America), in each case maturing within one year
from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date
of acquisition thereof and having, at such date of acquisition, the highest
credit rating obtainable from Standard & Poor's Ratings Service or from Xxxxx'x
Investors Service, Inc.;
(c) investments in certificates of deposit, banker's acceptances and time
deposits maturing within one year from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, the Administrative Agent or any domestic office of any commercial
bank organized under the laws of the United States of America or any State
thereof that has a combined capital and surplus and undivided profits of not
less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into with
a financial institution satisfying the criteria of clause (c) above;
(e) investments in "money market funds" within the meaning of Rule 2a-7 of
the Investment Company Act of 1940, as amended, substantially all of whose
assets are invested in investments of the type described in clauses (a) through
(d) above; and
(f) other short-term investments utilized by Foreign Subsidiaries in
accordance with normal investment practices for cash management in investments
of a type analogous to the foregoing.
"PERMITTED INVESTORS" shall mean (a) the Sponsors and any other person
who is an Affiliate of any of the foregoing and (b) any member of senior
management of the Borrower on the Closing Date.
Page 19
"PERSON" shall mean any natural person, corporation, business trust,
joint venture, association, company, limited liability company, partnership,
Governmental Authority or other entity.
"PLAN" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which the Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"PRIME RATE" shall mean the rate of interest per annum publicly
announced from time to time by Credit Suisse First Boston as its prime rate
in effect at its principal office in New York City; each change in the Prime
Rate shall be effective on the date such change is publicly announced as
being effective.
"PRO FORMA BASIS" shall mean, with respect to compliance with any test
or covenant hereunder, in connection with or after the occurrence of any
Permitted Acquisition or Restricted Payment permitted under Section
6.06(a)(ii), compliance with such covenant or test after giving effect to any
such proposed Permitted Acquisition (including pro forma adjustments arising
out of events which are directly attributable to the proposed Permitted
Acquisition, are factually supportable and are expected to have a continuing
impact, in each case determined on a basis consistent with Article 11 of
Regulation S-X of the Securities Act of 1933, as amended, and as interpreted
by the staff of the Securities and Exchange Commission using, for purposes of
determining such compliance, the historical financial statements of all
entities or assets so acquired or to be acquired and the consolidated
financial statements of the Borrower and the Subsidiaries which shall be
reformulated as if such Permitted Acquisition, and any other Permitted
Acquisitions or Asset Sales that have been consummated during or after the
end of the relevant period, and any Indebtedness or other liabilities
incurred in connection with any such Permitted Acquisitions or otherwise
after the end of the relevant period had been consummated or incurred,
respectively, at the beginning of such period and assuming that any such
Indebtedness bears interest during any portion of the applicable measurement
period prior to the relevant acquisition at the weighted average of the
interest rates applicable to outstanding Loans during such period) or such
proposed Restricted Payment.
"PRO FORMA COMPLIANCE" shall mean, at any date of determination, that
the Borrower shall be in pro forma compliance with the covenants set forth in
Sections 6.11, 6.12, 6.13 and 6.14 as of the last day of the most recent
fiscal quarter-end (computed on the basis of (a) balance sheet amounts as of
the most recently completed fiscal quarter, and (b) income statement amounts
for the most recently completed period of four consecutive fiscal quarters,
in each case, for which financial statements shall have been delivered to the
Administrative Agent and calculated on a Pro Forma Basis).
"PRO RATA PERCENTAGE" of any Revolving Credit Lender at any time shall
mean the percentage of the Total Revolving Credit Commitment represented by
such Lender's Revolving Credit Commitment. In the event the Revolving Credit
Commitments shall have expired or been terminated, the Pro Rata Percentages
shall be determined on the basis of the Revolving Credit Commitments most
recently in effect.
Page 20
"RCBA" shall mean (i) RCBA Strategic Partners, L.P. and its successors,
(ii) XXXX Capital Partners, L.P. and its successors and (iii) any investment
fund which is an Affiliate of Xxxx Capital Partners, L.P. or its successors.
"REGISTER" shall have the meaning assigned to such term in Section
9.04(d).
"REGULATION T" shall mean Regulation T of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"RELATED FUND" shall mean, with respect to any Lender, any other person
that (x) invests in bank loans and (y) is advised or managed by the same
investment advisor as such Lender, by an Affiliate of such investment advisor
or by such Lender.
"RELATED PARTIES" shall mean, with respect to any specified person,
such person's Affiliates and the respective directors, officers, employees,
agents and advisors of such person and such person's Affiliates.
"RELEASE" shall mean any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into or through the environment or within or upon any building,
structure, facility or fixture.
"REQUIRED LENDERS" shall mean, at any time, Lenders having Loans
(excluding Swingline Loans), L/C Exposure, Swingline Exposure and unused
Revolving Credit Commitments and Term Loan Commitments representing at least
a majority of the sum of all Loans outstanding (excluding Swingline Loans),
L/C Exposure, Swingline Exposure and unused Revolving Credit Commitments and
Term Loan Commitments at such time.
"RESPONSIBLE OFFICER" of any person shall mean any executive officer or
Financial Officer of such person and any other officer or similar official
thereof responsible for the administration of the obligations of such person
in respect of this Agreement.
"RESTRICTED INDEBTEDNESS" shall mean Indebtedness of Holdings, the
Borrower or any Subsidiary, the payment, prepayment, repurchase or defeasance
of which is restricted under Section 6.09(b).
"RESTRICTED PAYMENT" shall mean any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in Holdings, the Borrower or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund
or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Equity Interests in Holdings,
the Borrower or any Subsidiary or any option, warrant or other right to
acquire any such Equity Interests in Holdings, the Borrower or any Subsidiary.
Page 21
"REVOLVING CREDIT BORROWING" shall mean a Borrowing comprised of
Revolving Loans.
"REVOLVING CREDIT COMMITMENT" shall mean, with respect to each Lender,
the commitment of such Lender to make Revolving Loans hereunder as set forth
on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such
Lender assumed its Revolving Credit Commitment, as applicable, as the same
may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced
or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04.
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any Lender at
any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender, plus the aggregate amount at such time of
such Lender's L/C Exposure, plus the aggregate amount at such time of such
Lender's Swingline Exposure.
"REVOLVING CREDIT LENDER" shall mean a Lender with a Revolving Credit
Commitment or outstanding Revolving Credit Exposure.
"REVOLVING CREDIT MATURITY DATE" shall mean July 20, 2007.
"REVOLVING LOANS" shall mean the revolving loans made by the Lenders to
the Borrower pursuant to clause (d) of Section 2.01.
"SECURED PARTIES" shall have the meaning assigned to such term in the
Collateral Agreement.
"SECURITY DOCUMENTS" shall mean the Collateral Agreement and each of
the security agreements and other instruments and documents executed and
delivered pursuant to any of the foregoing or pursuant to Section 5.09.
"SENIOR LEVERAGE RATIO" shall mean, on any date, the ratio of Total
Debt less the sum of (a) the aggregate outstanding principal amount of the
Senior Subordinated Notes plus (b) Available Cash on such date to
Consolidated EBITDA for the period of four consecutive fiscal quarters most
recently ended on or prior to such date.
"SENIOR SUBORDINATED NOTE DOCUMENTS" shall mean the Senior Subordinated
Notes, the Senior Subordinated Note Indenture and all other material
instruments, agreements and other documents evidencing or governing the
Senior Subordinated Notes or providing for any right in respect thereof.
"SENIOR SUBORDINATED NOTE INDENTURE" shall mean the indenture dated as
of June 7, 2001, between the Borrower, Holdings and First State Street Bank,
as trustee, as in effect on the Closing Date and as thereafter amended from
time to time in accordance with the requirements thereof and of this
Agreement.
"SENIOR SUBORDINATED NOTES" shall mean the Borrower's 11 1/4% Senior
Subordinated Notes Due June 15, 2011 issued pursuant to the Senior
Subordinated Note Indenture and any notes issued by the Borrower in exchange
for, and as contemplated by, the Senior Subordinated Notes with substantially
identical terms as the Senior Subordinated Notes.
Page 22
"SPONSORS" shall mean RCBA and Xxxxxxx Xxxxxx & Co. Incorporated.
"SPC" shall have the meaning assigned to such term in Section 9.04(i).
"SPECIAL CO-INVESTMENT SUBSIDIARY" shall mean any wholly-owned
Co-investment Subsidiary that is or could become an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of
1940 as a result of becoming a Subsidiary Guarantor or a guarantor under the
Senior Subordinated Note Indenture.
"STATUTORY RESERVES" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including
any marginal, special, emergency or supplemental reserves) expressed as a
decimal established by the Board and any other banking authority, domestic or
foreign, to which the Administrative Agent or any Lender (including any
branch, Affiliate, or other fronting office making or holding a Loan) is
subject for Eurocurrency Liabilities (as defined in Regulation D of the
Board). Eurodollar Loans shall be deemed to constitute Eurocurrency
Liabilities as defined in Regulation D of the Board) and to be subject to
such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D. Statutory Reserves shall be adjusted automatically
on and as of the effective date of any change in any reserve percentage.
"SUBSIDIARY" shall mean, with respect to any person (herein referred to
as the "PARENT"), any corporation, partnership, association or other business
entity of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests (other than the general
partnership interests owned controlled or held by the Borrower or any
Subsidiary in any Co-investment Vehicle) are, at the time any determination
is being made, owned, controlled or held.
"SUBSIDIARY" shall mean any subsidiary of the Borrower.
"SUBSIDIARY GUARANTOR" shall mean each Domestic Subsidiary listed on
Schedule 1.01(a), and each other Subsidiary that is or becomes a party to a
Collateral Agreement.
"SWINGLINE COMMITMENT" shall mean the commitment of the Swingline
Lender to make loans pursuant to Section 2.22, as the same may be reduced
from time to time pursuant to Section 2.09 .
"SWINGLINE EXPOSURE" shall mean at any time the aggregate principal
amount at such time of all outstanding Swingline Loans. The Swingline
Exposure of any Revolving Credit Lender at any time shall equal its Pro Rata
Percentage of the aggregate Swingline Exposure at such time.
"SWINGLINE LENDER" shall mean Credit Suisse First Boston, in its
capacity as lender of Swingline Loans hereunder.
"SWINGLINE LOAN" shall mean any loan made by the Swingline Lender
pursuant to Section 2.22.
Page 23
"SYNTHETIC PURCHASE AGREEMENT" shall mean any swap, derivative or other
agreement or combination of agreements pursuant to which Holdings, the
Borrower or any Subsidiary is or may become obligated to make (a) any payment
in connection with a purchase by any third party from a person other than
Holdings, the Borrower or any Subsidiary of any Equity Interest or Restricted
Indebtedness or (b) any payment (other than on account of a permitted
purchase by it of any Equity Interest or Restricted Indebtedness) the amount
of which is determined by reference to the price or value at any time of any
Equity Interest or Restricted Indebtedness; PROVIDED that no phantom stock or
similar plan providing for payments only to current or former directors,
officers, employees or consultants of Holdings, the Borrower or the
Subsidiaries (or to their heirs or estates) shall be deemed to be a Synthetic
Purchase Agreement.
"TAXES" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges, liabilities or withholdings imposed by
any Governmental Authority.
"TERM BORROWING" shall mean a Borrowing comprised of Tranche A Term
Loans, Tranche B Term Loans or Incremental Term Loans.
"TERM LENDER" shall mean a Lender with a Term Loan Commitment or an
outstanding Term Loan.
"TERM LOAN COMMITMENTS" shall mean the Tranche A Commitments and the
Tranche B Commitments. Unless the context shall otherwise require, after the
effectiveness of any Incremental Term Loan Commitment the term "Term Loan
Commitments" shall include such Incremental Term Loan Commitment.
"TERM LOAN REPAYMENT DATES" shall mean the Tranche A Term Loan
Repayment Dates, the Tranche B Term Loan Repayment Dates and the Incremental
Term Loan Repayment Dates.
"TERM LOANS" shall mean the Tranche A Term Loans and the Tranche B Term
Loans. Unless the context shall otherwise require, the term "Term Loans"
shall include any Incremental Term Loans.
"TOTAL DEBT" shall mean, at any time, the total Indebtedness of the
Borrower and the Subsidiaries at such time (excluding (a) Melody Permitted
Indebtedness and (b) Indebtedness of the type described in clause (i) of the
definition of such term, except to the extent of any unreimbursed drawings
thereunder).
"TOTAL REVOLVING CREDIT COMMITMENT" shall mean, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such
time. The initial Total Revolving Credit Commitment is $90,000,000.
"TOTAL SENIOR DEBT" at any time shall mean the Total Debt at such time
less the aggregate amount outstanding of Senior Subordinated Notes.
"TRANCHE A COMMITMENT" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche A Term Loans hereunder as set forth
on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such
Lender assumed its Term Loan Commitment, as applicable, as the same may be
(a) reduced from time to time pursuant to
Page 24
Section 2.09 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount of
the aggregate Tranche A Commitments is $50,000,000.
"TRANCHE A MATURITY DATE" shall mean July 20, 2007.
"TRANCHE A TERM BORROWING" shall mean a Borrowing comprised of Tranche
A Term Loans.
"TRANCHE A TERM LOAN REPAYMENT DATE" shall have the meaning assigned to
such term in Section 2.11(a)(i).
"TRANCHE A TERM LOANS" shall mean the term loans made by the Lenders to
the Borrower pursuant to clause (a) of Section 2.01. Unless the context
shall otherwise require, the term "Tranche A Term Loans" shall include any
Incremental Term Loans that are designated as such in the applicable
Incremental Term Loan Assumption Agreement and that are made on terms
identical to the Tranche A Term Loans.
"TRANCHE B COMMITMENT" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche B Term Loans hereunder as set forth
on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such
Lender assumed its Term Loan Commitment, as applicable, as the same may be
(a) reduced from time to time pursuant to Section 2.09 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of the aggregate Tranche B
Commitments is $185,000,000.
"TRANCHE B MATURITY DATE" shall mean July 18, 2008.
"TRANCHE B TERM BORROWING" shall mean a Borrowing comprised of Tranche
B Term Loans.
"TRANCHE B TERM LOAN REPAYMENT DATE" shall have the meaning assigned to
such term in Section 2.11(a)(ii).
"TRANCHE B TERM LOANS" shall mean the term loans made by the Lenders to
the Borrower pursuant to clause (b) of Section 2.01. Unless the context
shall otherwise require, the term "Tranche B Term Loans" shall include any
Incremental Term Loans that are designated as such in the applicable
Incremental Term Loan Assumption Agreement and that are made on terms
identical to the Tranche B Term Loans.
"TRANSACTION DOCUMENTS" shall mean the (a) Merger Agreement, (b) the
Securities Purchase Agreement, Anti-Dilution Agreement, Registration Rights
Agreement, Warrant Agreement and Tax Sharing Agreement entered into in
connection with the Merger Agreement and the Cash Equity Contribution, (c)
the Holdco Note Documents and (d) the Senior Subordinated Note Documents.
"TRANSACTIONS" shall mean, collectively, the transactions to occur on
or prior to the Closing Date pursuant to the Documents, including (a) the
consummation of the Merger, (b) the
Page 25
execution and delivery of the Loan Documents and the initial borrowings
hereunder, (c) the execution and delivery of the Holdco Note Documents and the
issuance of the Holdco Notes, (d) the execution and delivery of the Senior
Subordinated Note Documents and the issuance of the Senior Subordinated Notes,
(e) the closing of the Debt Tender Offer and the related Consent Solicitation,
(f) the Cash Equity Contribution and (g) the payment of all fees and expenses to
be paid on or prior to the Closing Date and owing in connection with the
foregoing.
"TYPE", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, the term
"Rate" shall include the Adjusted LIBO Rate and the Alternate Base Rate.
"WHOLLY OWNED SUBSIDIARY" of any person shall mean a subsidiary of such
person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the Equity Interests are, at the
time any determination is being made, owned, controlled or held by such
person or one or more wholly owned Subsidiaries of such person or by such
person and one or more wholly owned Subsidiaries of such person.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. TERMS GENERALLY. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall"; and
the words "asset" and "property" shall be construed as having the same meaning
and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights. All
references herein to Articles, Sections, Exhibits and Schedules shall be deemed
references to Articles and Sections of, and Exhibits and Schedules to, this
Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; PROVIDED, HOWEVER, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Article
VI or any related definition to eliminate the effect of any change in GAAP
occurring after the date of this Agreement on the operation of such covenant (or
if the Administrative Agent notifies the Borrower that the Required Lenders wish
to amend Article VI or any related definition for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
SECTION 1.03. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of this
Agreement, Loans may be classified and referred to by Class (E.G., a "Revolving
Loan") or by
Page 26
Type (E.G., a "Eurodollar Loan") or by Class and Type (E.G., a "Eurodollar
Revolving Loan"). Borrowings also may be classified and referred to by Class
(E.G., a "Revolving Borrowing") or by Type (E.G., a "Eurodollar Borrowing") or
by Class and Type (E.G., a "Eurodollar Revolving Borrowing").
SECTION 1.04. PRO FORMA CALCULATIONS. With respect to any period during
which any Permitted Acquisition occurs as permitted pursuant to the terms
hereof, for purposes of determining compliance or Pro Forma Compliance with the
covenants set forth in Sections 6.11, 6.12, 6.13 and 6.14, the Interest Coverage
Ratio, Fixed Charge Coverage Ratio, Leverage Ratio and Senior Leverage Ratio
shall be calculated with respect to such periods and such Permitted Acquisition
on a Pro Forma Basis.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions and relying
upon the representations and warranties herein set forth, each Lender agrees,
severally and not jointly, (a) to make a Tranche A Term Loan to the Borrower on
the Closing Date in a principal amount not to exceed its Tranche A Commitment,
(b) to make a Tranche B Term Loan to the Borrower on the Closing Date in a
principal amount not to exceed its Tranche B Commitment, (c) if such Lender has
so committed pursuant to Section 2.25, to make Incremental Term Loans to the
Borrower, in an aggregate principal amount not to exceed its Incremental Term
Loan Commitment, and (d) to make Revolving Loans to the Borrower, at any time
and from time to time on or after the date hereof, and until the earlier of the
Revolving Credit Maturity Date and the termination of the Revolving Credit
Commitment of such Lender in accordance with the terms hereof, in an aggregate
principal amount at any time outstanding that will not result in such Lender's
Revolving Credit Exposure exceeding such Lender's Revolving Credit Commitment.
Within the limits set forth in clause (d) of the preceding sentence and subject
to the terms, conditions and limitations set forth herein, the Borrower may
borrow, pay or prepay and reborrow Revolving Loans. Amounts paid or prepaid in
respect of Term Loans may not be reborrowed.
SECTION 2.02. LOANS. (a) Each Loan (other than Swingline Loans) shall be
made as part of a Borrowing consisting of Loans made by the Lenders ratably in
accordance with their respective applicable Commitments; PROVIDED, HOWEVER, that
the failure of any Lender to make any Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to make any
Loan required to be made by such other Lender). Except for Loans deemed made
pursuant to Section 2.02(f), the Loans comprising any Borrowing shall be in an
aggregate principal amount that is (i) an integral multiple of $1,000,000 and
not less than $5,000,000 (except with respect to any Incremental Term Borrowing,
to the extent otherwise provided in the related Incremental Term Loan Assumption
Agreement) or (ii) equal to the remaining available balance of the applicable
Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request pursuant
to Section 2.03. Each
Page 27
Lender may at its option make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; PROVIDED that any
exercise of such option shall not affect the obligation of the Borrower to repay
such Loan in accordance with the terms of this Agreement. Borrowings of more
than one Type may be outstanding at the same time; provided, however, that the
Borrower shall not be entitled to request any Borrowing that, if made, would
result in more than 10 Eurodollar Borrowings outstanding hereunder at any time.
For purposes of the foregoing, Borrowings having different Interest Periods,
regardless of whether they commence on the same date, shall be considered
separate Borrowings.
(c) Except with respect to Loans deemed made pursuant to Section 2.02(f),
each Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to such account in New
York City as the Administrative Agent may designate not later than 2:00 p.m.,
New York City time, and the Administrative Agent shall promptly credit the
amounts so received to an account in the name of the Borrower, designated by the
Borrower in the applicable Borrowing Request, or, if a Borrowing shall not occur
on such date because any condition precedent herein specified shall not have
been met, return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, a rate determined by the Administrative Agent
to represent its cost of overnight or short-term funds (which determination
shall be conclusive absent manifest error). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such Borrowing for purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Revolving Credit Borrowing if (i) the
Interest Period requested with respect thereto would end after the Revolving
Credit Maturity Date or (ii) any Swingline Loan would be outstanding after
giving effect to the use of proceeds of such Borrowing.
(f) If the Issuing Bank shall not have received from the Borrower the
payment required to be made by Section 2.23(e) within the time specified in such
Section, the Issuing Bank will promptly notify the Administrative Agent of the
L/C Disbursement and the Administrative Agent will promptly notify each
Revolving Credit Lender of such L/C Disbursement and its Pro Rata Percentage
thereof. Each Revolving Credit Lender shall pay by wire transfer of immediately
available funds to the Administrative Agent not later than 2:00
Page 28
p.m., New York City time, on such date (or, if such Revolving Credit Lender
shall have received such notice later than 12:00 (noon), New York City time, on
any day, not later than 10:00 a.m., New York City time, on the immediately
following Business Day), an amount equal to such Lender's Pro Rata Percentage of
such L/C Disbursement (it being understood that such amount shall be deemed to
constitute an ABR Revolving Loan of such Lender and such payment shall be deemed
to have reduced the L/C Exposure), and the Administrative Agent will promptly
pay to the Issuing Bank amounts so received by it from the Revolving Credit
Lenders. The Administrative Agent will promptly pay to the Issuing Bank any
amounts received by it from the Borrower pursuant to Section 2.23(e) prior to
the time that any Revolving Credit Lender makes any payment pursuant to this
paragraph (f); any such amounts received by the Administrative Agent thereafter
will be promptly remitted by the Administrative Agent to the Revolving Credit
Lenders that shall have made such payments and to the Issuing Bank, as their
interests may appear. If any Revolving Credit Lender shall not have made its Pro
Rata Percentage of such L/C Disbursement available to the Administrative Agent
as provided above, such Lender and the Borrower severally agree to pay interest
on such amount, for each day from and including the date such amount is required
to be paid in accordance with this paragraph to but excluding the date such
amount is paid, to the Administrative Agent for the account of the Issuing Bank
at (i) in the case of the Borrower, a rate per annum equal to the interest rate
applicable to Revolving Loans pursuant to Section 2.06(a), and (ii) in the case
of such Lender, for the first such day, the Federal Funds Effective Rate, and
for each day thereafter, the Alternate Base Rate.
SECTION 2.03. BORROWING PROCEDURE. In order to request a Borrowing (other
than a Swingline Loan or a deemed Borrowing pursuant to Section 2.02(f), as to
which this Section 2.03 shall not apply), the Borrower shall hand deliver or fax
to the Administrative Agent a duly completed Borrowing Request (a) in the case
of a Eurodollar Borrowing, not later than 1:00 p.m., New York City time, three
Business Days before a proposed Borrowing, and (b) in the case of an ABR
Borrowing, not later than 12:00 noon, New York City time, on the Business Day of
a proposed Borrowing. Each Borrowing Request shall be irrevocable, shall be
signed by or on behalf of the Borrower and shall specify the following
information: (i) whether the Borrowing then being requested is to be a Tranche A
Term Borrowing, a Tranche B Term Borrowing, an Incremental Term Borrowing or a
Revolving Credit Borrowing, and whether such Borrowing is to be a Eurodollar
Borrowing or an ABR Borrowing (provided that until the Administrative Agent
shall have notified the Borrower that the primary syndication of the Commitments
and Loans has been completed (which notice shall be given as promptly as
practicable and, in any event, on or prior to July 27, 2001) the Borrower shall
not be permitted to request a Eurodollar Borrowing); (ii) the date of such
Borrowing (which shall be a Business Day); (iii) the number and location of the
account to which funds are to be disbursed (which shall be an account that
complies with the requirements of Section 2.02(c)); (iv) the amount of such
Borrowing; and (v) if such Borrowing is to be a Eurodollar Borrowing, the
Interest Period with respect thereto; provided, however, that, notwithstanding
any contrary specification in any Borrowing Request, each requested Borrowing
shall comply with the requirements set forth in Section 2.02. If no election as
to the Type of Borrowing is specified in any such notice, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period with respect to any
Eurodollar Borrowing is specified in any such notice, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. The
Administrative Agent shall promptly advise the applicable Lenders of any notice
given pursuant to this Section 2.03 (and the contents thereof), and of each
Lender's portion of the requested Borrowing.
Page 29
SECTION 2.04. EVIDENCE OF DEBT; REPAYMENT OF LOANS. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender (i) the principal amount of each Term Loan of such Lender
as provided in Section 2.11 and (ii) the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Credit Maturity Date. The
Borrower hereby promises to pay to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the Revolving Credit Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower or any Guarantor and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b)
and (c) above shall be prima facie evidence of the existence and amounts of the
obligations therein recorded; PROVIDED, HOWEVER, that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligations of the Borrower to repay the Loans in
accordance with their terms.
(e) Any Lender may request that Loans made by it hereunder be evidenced by
a promissory note. In such event, the Borrower shall execute and deliver to such
Lender a promissory note payable to such Lender and its registered assigns and
in a form and substance reasonably acceptable to the Administrative Agent and
the Borrower. Notwithstanding any other provision of this Agreement, in the
event any Lender shall request and receive such a promissory note, the interests
represented by such note shall at all times (including after any assignment of
all or part of such interests pursuant to Section 9.04) be represented by one or
more promissory notes payable to the payee named therein or its registered
assigns.
SECTION 2.05. FEES. (a) The Borrower agrees to pay to each Lender, through
the Administrative Agent, on the last Business Day of March, June, September and
December in each year and on each date on which any Commitment of such Lender
shall expire or be terminated as provided herein, a commitment fee (a
"COMMITMENT FEE") equal to 1/2 of 1% per annum on the daily unused amount of the
Commitments of such Lender (other than the Swingline Commitment) during the
preceding quarter (or other period commencing with the date hereof or ending
with the Revolving Credit Maturity Date or the date on which the Commitments of
such Lender shall expire or be terminated). All Commitment Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360
days. The Commitment Fee due to each Lender shall commence to accrue on the date
hereof and shall cease to accrue on the date on which the Commitment of such
Lender shall expire or be terminated as provided herein. For purposes of
calculating Commitment Fees only, no portion of the Revolving Credit
Page 30
Commitments shall be deemed utilized under Section 2.17 as a result of
outstanding Swingline Loans.
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the administrative fees at the times and in the amounts agreed to by
the Borrower and the Administrative Agent from time to time (the "ADMINISTRATIVE
AGENT FEES").
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender,
through the Administrative Agent, on the last Business Day of March, June,
September and December of each year and on the date on which the Revolving
Credit Commitment of such Lender shall be terminated as provided herein, a fee
(an "L/C PARTICIPATION FEE") calculated on such Lender's Pro Rata Percentage of
the daily aggregate L/C Exposure (excluding the portion thereof attributable to
unreimbursed L/C Disbursements) during the preceding quarter (or shorter period
commencing with the date hereof or ending with the Revolving Credit Maturity
Date or the date on which all Letters of Credit have been canceled or have
expired and the Revolving Credit Commitments of all Lenders shall have been
terminated) at a rate per annum equal to the Applicable Percentage from time to
time used to determine the interest rate on Revolving Credit Borrowings
comprised of Eurodollar Loans pursuant to Section 2.06, and (ii) to the Issuing
Bank with respect to each Letter of Credit the standard fronting, issuance and
drawing fees as agreed by the Issuing Bank and the Borrower (the "ISSUING BANK
FEES"). All L/C Participation Fees and Issuing Bank Fees shall be computed on
the basis of the actual number of days elapsed in a year of 360 days.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the Issuing Bank. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.06. INTEREST ON LOANS. (a) Subject to the provisions of Section
2.07, the Loans comprising each ABR Borrowing, including each Swingline Loan,
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 365 or 366 days, as the case may be, when the Alternate Base Rate
is determined by reference to the Prime Rate and over a year of 360 days at all
other times) at a rate per annum equal to the Alternate Base Rate plus the
Applicable Percentage in effect from time to time.
(b) Subject to the provisions of Section 2.07, the Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Percentage in effect from time to time.
(c) Interest on each Loan shall be payable on the Interest Payment Dates
applicable to such Loan except as otherwise provided in this Agreement. The
applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest Period or
day within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
Page 31
SECTION 2.07. DEFAULT INTEREST. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, or under any other Loan Document,
the Borrower shall on demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount to but excluding the date of actual
payment (after as well as before judgment) (a) in the case of overdue principal,
at the rate otherwise applicable to such Loan pursuant to Section 2.06 plus
2.00% per annum and (b) in all other cases, at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 365 or 366 days, as
the case may be, when determined by reference to the Prime Rate and over a year
of 360 days at all other times) equal to the rate that would be applicable to an
ABR Revolving Loan plus 2.00%.
SECTION 2.08. ALTERNATE RATE OF INTEREST. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that dollar deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to the Required Lenders of making or
maintaining its Eurodollar Loan during such Interest Period, or that reasonable
means do not exist for ascertaining the Adjusted LIBO Rate, the Administrative
Agent shall, as soon as practicable thereafter, give written or fax notice of
such determination to the Borrower and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a Eurodollar Borrowing pursuant to
Section 2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing. Each
determination by the Administrative Agent under this Section 2.08 shall be
conclusive absent manifest error.
SECTION 2.09. TERMINATION AND REDUCTION OF COMMITMENTS. (a) The Term Loan
Commitments (other than any Incremental Term Loan Commitments, which shall
terminate in accordance with the applicable Incremental Term Loan Assumption
Agreement) shall automatically terminate upon the making of the Term Loans to be
made on the Closing Date. The Revolving Credit Commitments, the Swingline
Commitment and the L/C Commitment shall automatically terminate on the Revolving
Credit Maturity Date. Notwithstanding the foregoing, all the Commitments shall
automatically terminate at 5:00 p.m., New York City time, on July 20, 2001, if
the initial Credit Event shall not have occurred by such time.
(b) Upon at least three Business Days' prior irrevocable written or fax
notice to the Administrative Agent, the Borrower may, without premium or
penalty, at any time in whole permanently terminate, or from time to time in
part permanently reduce, the Term Loan Commitments or the Revolving Credit
Commitments; provided, however, that (i) each partial reduction of the Term Loan
Commitments or the Revolving Credit Commitments shall be in an integral multiple
of $1,000,000 and in a minimum amount of $5,000,000 and (ii) the Total Revolving
Credit Commitment shall not be reduced to an amount that is less than the sum of
the Aggregate Revolving Credit Exposure at the time.
(c) Each reduction in the Term Loan Commitments or the Revolving Credit
Commitments hereunder shall be made ratably among the Lenders in accordance with
their respective applicable Commitments. The Borrower shall pay to the
Administrative Agent for the
Page 32
account of the applicable Lenders, on the date of
each termination or reduction, the Commitment Fees on the amount of the
Commitments so terminated or reduced accrued to but excluding the date of such
termination or reduction.
SECTION 2.10. CONVERSION AND CONTINUATION OF BORROWINGS. The Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 12:00 noon, New York City time, two
Business Days prior to conversion, to convert any Eurodollar Borrowing into an
ABR Borrowing, (b) not later than 1:00 p.m., New York City time, three Business
Days prior to conversion or continuation, to convert any ABR Borrowing into a
Eurodollar Borrowing or to continue any Eurodollar Borrowing as a Eurodollar
Borrowing for an additional Interest Period, and (c) not later than 1:00 p.m.,
New York City time, three Business Days prior to conversion, to convert the
Interest Period with respect to any Eurodollar Borrowing to another permissible
Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting Borrowing
shall satisfy the limitations specified in Sections 2.02(a) and 2.02(b)
regarding the principal amount and maximum number of Borrowings of the
relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the new
Loan of such Lender resulting from such conversion and reducing the Loan
(or portion thereof) of such Lender being converted by an equivalent
principal amount; accrued interest on any Eurodollar Loan (or portion
thereof) being converted shall be paid by the Borrower at the time of
conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than
the end of the Interest Period applicable thereto, the Borrower shall pay,
upon demand, any amounts due to the Lenders pursuant to Section 2.16;
(v) any portion of a Borrowing maturing or required to be repaid in
less than one month may not be converted into or continued as a Eurodollar
Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be converted
into or continued as a Eurodollar Borrowing by reason of the immediately
preceding clause shall be automatically converted at the end of the
Interest Period in effect for such Borrowing into an ABR Borrowing;
(vii) no Interest Period may be selected for any Eurodollar Term
Borrowing that would end later than a Term Loan Repayment Date occurring
on or after the first day of such Interest Period if, after giving effect
to such selection, the aggregate outstanding amount of (A) the Eurodollar
Term Borrowings comprised of Tranche A Term Loans, Tranche B Term Loans or
Incremental Term Loans, as applicable, with Interest Periods ending on or
prior to such Term Loan Repayment Date and (B) the ABR Term Borrowings
comprised of Tranche A Term Loans, Tranche B Term Loans or Incremental
Page 33
Term Loans, as applicable, would not be at least equal to the principal
amount of Term Borrowings to be paid on such Term Loan Repayment Date; and
(viii) upon notice to the Borrower from the Administrative Agent
given at the request of the Required Lenders, after the occurrence and
during the continuance of a Default or Event of Default, no outstanding
Loan may be converted into, or continued as, a Eurodollar Loan and any
outstanding Eurodollar Borrowing shall, at the end of the Interest Period
applicable thereto (unless repaid pursuant to the terms hereof),
automatically be converted to an ABR Borrowing.
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the Borrower requests be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a Eurodollar Borrowing
or an ABR Borrowing, (iii) if such notice requests a conversion, the date of
such conversion (which shall be a Business Day) and (iv) if such Borrowing is
to be converted to or continued as a Eurodollar Borrowing, the Interest
Period with respect thereto. If no Interest Period is specified in any such
notice with respect to any conversion to or continuation as a Eurodollar
Borrowing, the Borrower shall be deemed to have selected an Interest Period
of one month's duration. The Administrative Agent shall advise the Lenders
of any notice given pursuant to this Section 2.10 and of each Lender's
portion of any converted or continued Borrowing. If the Borrower shall not
have given notice in accordance with this Section 2.10 to continue any
Borrowing into a subsequent Interest Period (and shall not otherwise have
given notice in accordance with this Section 2.10 to convert such Borrowing),
such Borrowing shall, at the end of the Interest Period applicable thereto
(unless repaid pursuant to the terms hereof), automatically be converted to
an ABR Borrowing.
SECTION 2.11. REPAYMENT OF TERM BORROWINGS. (a) (i) The Borrower shall pay
to the Administrative Agent, for the account of the Lenders, on the dates set
forth below, or if any such date is not a Business Day, on the next preceding
Business Day (each such date being a "TRANCHE A TERM LOAN REPAYMENT DATE"), a
principal amount of the Tranche A Term Loans (as adjusted from time to time
pursuant to Sections 2.11(b), 2.12, 2.13(f) and 2.25(d)) equal to the amount set
forth below for such date, together in each case with accrued and unpaid
interest on the principal amount to be paid to but excluding the date of such
payment:
DATE AMOUNT
---- ------
September 30, 2001 $1,875,000
December 31, 2001 $1,875,000
March 31, 2002 $1,875,000
June 30, 2002 $1,875,000
September 30, 2002 $1,875,000
December 31, 2002 $1,875,000
March 31, 2003 $1,875,000
June 30, 2003 $1,875,000
September 30, 2003 $2,187,500
December 31, 2003 $2,187,500
Page 34
DATE AMOUNT
---- ------
March 31, 2004 $2,187,500
June 30, 2004 $2,187,500
September 30, 2004 $2,187,500
December 31, 2004 $2,187,500
March 31, 2005 $2,187,500
June 30, 2005 $2,187,500
September 30, 2005 $2,187,500
December 31, 2005 $2,187,500
March 31, 2006 $2,187,500
June 30, 2006 $2,187,500
September 30, 2006 $2,187,500
December 31, 2006 $2,187,500
March 31, 2007 $2,187,500
Tranche A Maturity Date $2,187,500
(ii) The Borrower shall pay to the Administrative Agent, for the
account of the Lenders, on the dates set forth below, or if any such date
is not a Business Day, on the next preceding Business Day (each such date
being a "Tranche B Term Loan Repayment Date"), a principal amount of the
Tranche B Term Loans (as adjusted from time to time pursuant to Sections
2.11(b), 2.12, 2.13(f) and 2.25(d)) equal to the amount set forth below
for such date, together in each case with accrued and unpaid interest on
the principal amount to be paid to but excluding the date of such payment:
DATE AMOUNT
---- ------
September 30, 2001 $462,500
December 31, 2001 $462,500
March 31, 2002 $462,500
June 30, 2002 $462,500
September 30, 2002 $462,500
December 31, 2002 $462,500
March 31, 2003 $462,500
June 30, 2003 $462,500
September 30, 2003 $462,500
December 31, 2003 $462,500
March 31, 2004 $462,500
June 30, 2004 $462,500
September 30, 2004 $462,500
December 31, 2004 $462,500
March 31, 2005 $462,500
June 30, 2005 $462,500
September 30, 2005 $462,500
December 31, 2005 $462,500
March 31, 2006 $462,500
June 30, 2006 $462,500
September 30, 2006 $462,500
December 31, 2006 $462,500
Page 35
DATE AMOUNT
---- ------
March 31, 2007 $462,500
June 30, 2007 $462,500
September 30, 2007 $462,500
December 31, 2007 $462,500
March 31, 2008 $462,500
Tranche B Maturity Date $172,512,500
(iii) The Borrower shall pay to the Administrative Agent, for the
account of the Lenders, on each Incremental Term Loan Repayment Date, a
principal amount of the Other Term Loans (as adjusted from time to time
pursuant to Sections 2.11(b), 2.12 and 2.13(f)) equal to the amount set
forth for such date in the applicable Incremental Term Loan Assumption
Agreement, together in each case with accrued and unpaid interest on the
principal amount to be paid to but excluding the date of such payment.
(b) In the event and on each occasion that any Term Loan Commitments shall
be reduced or shall expire or terminate other than as a result of the making of
a Term Loan, the installments payable on each Term Loan Repayment Date shall be
reduced pro rata by an aggregate amount equal to the amount of such reduction,
expiration or termination.
(c) To the extent not previously paid, all Tranche A Term Loans, Tranche B
Term Loans and Incremental Term Loans shall be due and payable on the Tranche A
Maturity Date, Tranche B Maturity Date and Incremental Term Loan Maturity Date,
respectively, together with accrued and unpaid interest on the principal amount
to be paid to but excluding the date of payment.
(d) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. PREPAYMENT. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, upon at
least three Business Days' prior written or fax notice (or telephone notice
promptly confirmed by written or fax notice) in the case of Eurodollar Loans, or
written or fax notice (or telephone notice promptly confirmed by written or fax
notice) on the Business Day of prepayment in the case of ABR Loans, to the
Administrative Agent before 1:00 p.m., New York City time; PROVIDED, HOWEVER,
that each partial prepayment shall be in an amount that is an integral multiple
of $1,000,000 and not less than $5,000,000.
(b) Optional prepayments of Term Loans shall be allocated pro rata among
the then outstanding Tranche A Term Loans, Tranche B Term Loans and Other Term
Loans and applied, first, to the scheduled installments of principal due in
respect of the Tranche A Term Loans, Tranche B Terms Loans and Other Term Loans
within the 12 months following such prepayment, then pro rata against the
remaining scheduled installments of principal due in respect of the Tranche A
Term Loans, Tranche B Term Loans and Other Term Loans under Sections 2.11(a)(i),
(ii) and (iii), respectively.
Page 36
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.12 shall be subject to Section 2.16 but otherwise without premium or penalty,
except as provided in paragraph (d) below. All prepayments under this Section
2.12 shall be accompanied by accrued and unpaid interest on the principal amount
to be prepaid to but excluding the date of payment.
(d) Any optional prepayment of Tranche B Term Loans made at any time (i)
from the Closing Date to and including the first anniversary thereof will be in
an amount equal to 102% of the principal amount of such Loans prepaid, (ii)
after the first anniversary of the Closing Date to and including the second
anniversary of the Closing Date will be in an amount equal to 101% of the
principal amount of such Loans prepaid and (iii) after the second anniversary of
the Closing Date will be in an amount equal to 100% of the principal amount of
such Loans prepaid.
SECTION 2.13. MANDATORY PREPAYMENTS. (a) In the event of any termination
of all the Revolving Credit Commitments, the Borrower shall, on the date of such
termination, repay or prepay all its outstanding Revolving Credit Borrowings and
all outstanding Swingline Loans and replace all outstanding Letters of Credit
and/or deposit an amount equal to the L/C Exposure in cash in a cash collateral
account established with the Collateral Agent for the benefit of the Secured
Parties. If as a result of any partial reduction of the Revolving Credit
Commitments the Aggregate Revolving Credit Exposure would exceed the Total
Revolving Credit Commitment after giving effect thereto, then the Borrower
shall, on the date of such reduction, repay or prepay Revolving Credit
Borrowings or Swingline Loans (or a combination thereof) and/or cash
collateralize Letters of Credit in an amount sufficient to eliminate such
excess.
(b) Not later than the third Business Day following the completion of any
Asset Sale, the Borrower shall apply 100% of the Net Cash Proceeds received with
respect thereto to prepay (i) outstanding Term Loans in accordance with Section
2.13(f) and (ii) after the payment in full of the outstanding Term Loans,
outstanding Revolving Loans (without any reduction in Revolving Credit
Commitments).
(c) In the event and on each occasion that an Equity Issuance occurs, the
Borrower shall, substantially simultaneously with (and in any event not later
than the third Business Day next following) the occurrence of such Equity
Issuance, apply 100% of the Net Cash Proceeds therefrom to prepay outstanding
Term Loans in accordance with Section 2.13(f).
(d) No later than the earlier of (i) 45 days after the end of the second
fiscal quarter of each fiscal year of the Borrower, commencing with the fiscal
quarter ending on June 30, 2002, and (ii) the date on which the financial
statements with respect to such fiscal quarter are delivered pursuant to Section
5.04(b), the Borrower shall prepay outstanding Term Loans in accordance with
Section 2.13(f) in an aggregate principal amount equal to (A) 75% of Excess Cash
Flow for the period of twelve consecutive months then ended if the Leverage
Ratio at the end of such period shall have been greater than or equal to 2.0 to
1.0, or (B) 50% of Excess Cash Flow for the period of twelve consecutive months
then ended if the Leverage Ratio at the end of such period of twelve consecutive
months shall have been less than 2.0 to 1.0.
Page 37
(e) In the event that any Loan Party or any subsidiary of a Loan Party
shall receive Net Cash Proceeds from the incurrence or disposition of
Indebtedness (other than Indebtedness permitted pursuant to Section 6.01), the
Borrower shall, substantially simultaneously with (and in any event not later
than the third Business Day next following) the receipt of such Net Cash
Proceeds by such Loan Party or such subsidiary, apply an amount equal to 100% of
such Net Cash Proceeds to prepay outstanding Term Loans in accordance with
Section 2.13(f).
(f) Mandatory prepayments of outstanding Term Loans under this Agreement
shall be allocated pro rata among the then outstanding Tranche A Term Loans,
Tranche B Term Loans and Other Term Loans, and, subject to paragraph (h) below,
applied pro rata against the remaining scheduled installments of principal due
in respect of Tranche A Term Loans, Tranche B Term Loans and Other Term Loans
under Sections 2.11(a)(i), (ii) and (iii), respectively.
(g) The Borrower shall deliver to the Administrative Agent, at the time of
each prepayment required under this Section 2.13, (i) a certificate signed by a
Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment and (ii) to the extent practicable,
at least three days' prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date, the Type of each Loan being
prepaid and the principal amount of each Loan (or portion thereof) to be
prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject
to Section 2.16, but shall otherwise be without premium or penalty.
(h) So long as any Tranche A Term Loans shall remain outstanding, any
Tranche B Lender or, to the extent so provided in the applicable Incremental
Term Loan Assumption Agreement, any Incremental Term Lender, may elect, by
notice to the Administrative Agent in writing no later than 3:00 p.m., New York
City time, at least three Business Days prior to any prepayment of Tranche B
Term Loans or Incremental Term Loans required to be made by the Borrower for the
account of such Lender pursuant to this Section 2.13, to cause all or a portion
of such prepayment to be applied instead to prepay Tranche A Term Loans in
accordance with paragraph (f) above.
(i) For a period of 45 consecutive days (the "CLEANUP PERIOD") commencing
on any day in the month of December of each year, chosen at the option of the
Borrower, the Borrower shall ensure that no Revolving Loans or Swingline Loans
are outstanding under this Agreement. In order to comply with the previous
sentence, the Borrower shall, if necessary, prepay in full the aggregate
principal amount of all Revolving Loans and Swingline Loans outstanding at the
commencement of the Cleanup Period and shall not during the Cleanup Period
request any Revolving Loans or Swingline Loans; PROVIDED that such limitation
shall not affect the ability of the Borrower to request a Letter of Credit
during the Cleanup Period. The obligations of the Borrower under this paragraph
are in addition to, and shall not in any manner limit, any other obligation of
the Borrower hereunder to prepay or repay Revolving Loans and Swingline Loans.
SECTION 2.14. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES. (a)
Notwithstanding any other provision of this Agreement, if any Change in Law
shall impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of or credit
extended by any Lender or the Issuing Bank (except any such reserve requirement
which is reflected in the Adjusted LIBO Rate) or shall impose on
Page 38
such Lender or the Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or
any Letter of Credit or participation therein (other than any change to the
basis or rate of taxation applicable to any Lender), and the result of any of
the foregoing shall be to increase the cost to such Lender or the Issuing Bank
of making or maintaining any Eurodollar Loan or increase the cost to any Lender
of issuing or maintaining any Letter of Credit or purchasing or maintaining a
participation therein or to reduce the amount of any sum received or receivable
by such Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise) by an amount deemed by such Lender or the Issuing Bank to be
material, then the Borrower will pay to such Lender or the Issuing Bank, as the
case may be, upon demand such additional amount or amounts (without duplication
of amounts paid by the Borrower pursuant to Section 2.20) as will compensate
such Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that any
Change in Law regarding capital adequacy has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Bank's capital or on
the capital of such Lender's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made or participations in Letters of
Credit purchased by such Lender pursuant hereto or the Letters of Credit issued
by the Issuing Bank pursuant hereto to a level below that which such Lender or
the Issuing Bank or such Lender's or the Issuing Bank's holding company could
have achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Bank's policies and the policies of such Lender's or the
Issuing Bank's holding company with respect to capital adequacy) by an amount
deemed by such Lender or the Issuing Bank to be material, then from time to time
the Borrower shall pay to such Lender or the Issuing Bank, as the case may be,
such additional amount or amounts as will compensate such Lender or the Issuing
Bank or such Lender's or the Issuing Bank's holding company for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as applicable, as specified in paragraph (a) or (b) above, and
setting forth in reasonable detail the basis on which such amount or amounts
were calculated shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender or the Issuing Bank
the amount shown as due on any such certificate delivered by it within 20 days
after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be under any obligation to compensate any Lender or
the Issuing Bank under paragraph (a) or (b) above with respect to increased
costs or reductions with respect to any period prior to the date that is 120
days prior to such request if such Lender or the Issuing Bank knew or could
reasonably have been expected to know of the circumstances giving rise to such
increased costs or reductions and of the fact that such circumstances would
result in a claim for increased compensation by reason of such increased costs
or reductions; provided further that the foregoing limitation shall not apply to
any increased costs or reductions arising out of the retroactive application of
any Change in Law within such 120-day period. The protection of this Section
shall be available to each Lender and
Page 39
the Issuing Bank regardless of any possible contention of the invalidity or
inapplicability of the Change in Law that shall have occurred or been imposed.
SECTION 2.15. CHANGE IN LEGALITY. (a) Notwithstanding any other provision
of this Agreement, if any Change in Law shall make it unlawful for any Lender to
make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written notice
to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by such Lender
hereunder (or be continued for additional Interest Periods and ABR Loans
will not thereafter (for such duration) be converted into Eurodollar
Loans), whereupon any request for a Eurodollar Borrowing (or to convert an
ABR Borrowing to a Eurodollar Borrowing or to continue a Eurodollar
Borrowing for an additional Interest Period) shall, as to such Lender
only, be deemed a request for an ABR Loan (or a request to continue an ABR
Loan as such or to convert a Eurodollar Loan into an ABR Loan, as the case
may be), unless such declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar Loans
made by it be converted to ABR Loans, in which event all such Eurodollar
Loans shall be automatically converted to ABR Loans as of the effective
date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above,
all payments and prepayments of principal that would otherwise have been
applied to repay the Eurodollar Loans that would have been made by such
Lender or the converted Eurodollar Loans of such Lender shall instead be
applied to repay the ABR Loans made by such Lender in lieu of, or resulting
from the conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period then applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. INDEMNITY. The Borrower shall indemnify each Lender against
any loss or expense that such Lender may sustain or incur as a consequence of
(a) any event, other than a default by such Lender in the performance of its
obligations hereunder, which results in (i) such Lender receiving or being
deemed to receive any amount on account of the principal of any Eurodollar Loan
prior to the end of the Interest Period in effect therefor, (ii) the conversion
of any Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period
with respect to any Eurodollar Loan, in each case other than on the last day of
the Interest Period in effect therefor, or (iii) any Eurodollar Loan to be made
by such Lender (including any Eurodollar Loan to be made pursuant to a
conversion or continuation under Section 2.10) not being made after notice of
such Loan shall have been given by the Borrower hereunder (any of the events
referred to in this clause (a) being called a "BREAKAGE EVENT") or (b) any
default in the making of any payment or prepayment of any Eurodollar Loan
required to be made hereunder. In the case of any Breakage Event, such loss
shall include an amount equal to the excess, as reasonably
Page 40
determined by such Lender, of (i) its cost of obtaining funds for the Eurodollar
Loan that is the subject of such Breakage Event for the period from the date of
such Breakage Event to the last day of the Interest Period in effect (or that
would have been in effect) for such Loan over (ii) the amount of interest likely
to be realized by such Lender in redeploying the funds released or not utilized
by reason of such Breakage Event for such period. A certificate of any Lender
setting forth any amount or amounts which such Lender is entitled to receive
pursuant to this Section 2.16, and setting forth in reasonable detail the basis
on which such amount or amounts were calculated, shall be delivered to the
Borrower and shall be conclusive absent manifest error.
SECTION 2.17. PRO RATA TREATMENT. Except as provided below in this Section
2.17 with respect to Swingline Loans and as required under Sections 2.13(h) and
2.15, each Borrowing, each payment or prepayment of principal of any Borrowing,
each payment of interest on the Loans, each payment of the Commitment Fees, each
reduction of the Term Loan Commitments or the Revolving Credit Commitments and
each conversion of any Borrowing to or continuation of any Borrowing as a
Borrowing of any Type shall be allocated pro rata among the Lenders in
accordance with their respective applicable Commitments (or, if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of their outstanding Loans). For purposes of determining the
available Revolving Credit Commitments of the Lenders at any time, each
outstanding Swingline Loan shall be deemed to have utilized the Revolving Credit
Commitments of the Lenders (including those Lenders which shall not have made
Swingline Loans) pro rata in accordance with such respective Revolving Credit
Commitments. Each Lender agrees that in computing such Lender's portion of any
Borrowing to be made hereunder, the Administrative Agent may, in its discretion,
round each Lender's percentage of such Borrowing to the next higher or lower
whole dollar amount.
SECTION 2.18. SHARING OF SETOFFS. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or Loans or L/C Disbursement as a result of which the unpaid principal
portion of its Loans and participations in L/C Disbursements shall be
proportionately less than the unpaid principal portion of the Loans and
participations in L/C Disbursements of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and shall
promptly pay to such other Lender the purchase price for, a participation in the
Loans and L/C Exposure of such other Lender, so that the aggregate unpaid
principal amount of the Loans and L/C Exposure and participations in Loans and
L/C Exposure held by each Lender shall be in the same proportion to the
aggregate unpaid principal amount of all Loans and L/C Exposure then outstanding
as the principal amount of its Loans and L/C Exposure prior to such exercise of
banker's lien, setoff or counterclaim or other event was to the principal amount
of all Loans and L/C Exposure outstanding prior to such exercise of banker's
lien, setoff or counterclaim or other event; provided, however, that if any such
purchase or purchases or adjustments shall be made pursuant to this Section 2.18
and the payment giving rise thereto shall thereafter be recovered, such purchase
or purchases or adjustments shall be rescinded to the extent of such recovery
and the purchase price or prices or adjustment restored without interest. The
Borrower and Holdings expressly consent to the foregoing arrangements and agree
that any Lender holding a
Page 41
participation in a Loan or L/C Disbursement deemed to have been so purchased may
exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrower and Holdings to such Lender
by reason thereof as fully as if such Lender had made a Loan directly to the
Borrower in the amount of such participation.
SECTION 2.19. PAYMENTS. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document not later
than 2:00 p.m., New York City time, on the date when due in immediately
available dollars, without setoff, defense or counterclaim. Each such payment
(other than (i) Issuing Bank Fees, which shall be paid directly to the Issuing
Bank, and (ii) principal of and interest on Swingline Loans, which shall be paid
directly to the Swingline Lender except as otherwise provided in Section
2.22(e)) shall be made to the Administrative Agent at its offices at Eleven
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000.
(b) Except as otherwise expressly provided herein, whenever any payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder or under any other Loan Document shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest or Fees, if applicable.
SECTION 2.20. TAXES. (a) Any and all payments by or on account of any
obligation of the Borrower or any Loan Party hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower or any Loan
Party shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to Indemnified
Taxes and Other Taxes payable under this Section) the Administrative Agent or
such Lender (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower or such Loan
Party shall make such deductions and (iii) the Borrower or such Loan Party shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each Lender,
within 15 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower or any Loan Party hereunder or under any other
Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender,
or by the Administrative Agent on its behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
Page 42
(d) If the Borrower determines in good faith that a reasonable basis
exists for contesting a Tax, the relevant Lender (or participant), or the
Administrative Agent, as applicable, shall cooperate with the Borrower in
challenging such Tax at the Borrower's expense if requested by the Borrower. If
a Lender (or participant) or the Administrative Agent receives a refund
(including pursuant to a claim for refund made pursuant to the preceding
sentence) in respect of any Indemnified Taxes or Other Taxes as to which it has
been indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.20, it shall within 30 days from
the date of such receipt pay over such refund to the Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrower
under this Section 2.20 with respect to the Indemnified Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of such Lender
(or participant) or the Administrative Agent (together with any interest paid by
the relevant Governmental Authority with respect to such refund); PROVIDED,
HOWEVER, that the Borrower, upon the request of such Lender (or participant) or
the Administrative Agent, agrees to repay the amount paid over to the Borrower
(plus penalties, interest or other charges) to such Lender (or participant) or
the Administrative Agent in the event such Lender (or participant) or the
Administrative Agent is required to repay such refund to such Governmental
Authority.
(e) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower or any other Loan Party to a Governmental Authority, the
Borrower shall deliver to the Administrative Agent the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such payment,
a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(f) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the Borrower is
located, or pursuant to any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate and shall deliver to the Borrower
and the Administrative Agent two further copies of any such form or
certification (or any applicable successor form) on or before the date that any
such form or certification expires or becomes obsolete and after the occurrence
of any event requiring a change in the most recent form previously delivered by
it to the Borrower. Each Lender that shall become a participant or a Lender
pursuant to Section 9.04 shall, upon the effectiveness of the related transfer,
be required to provide all the forms and statements required pursuant to this
Section 2.20(f) provided that in the case of a participant such participant
shall furnish all such required forms and statements to the Lender from which
the related participation shall have been purchased.
SECTION 2.21. ASSIGNMENT OF COMMITMENTS UNDER CERTAIN CIRCUMSTANCES; DUTY
TO MITIGATE. (a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
the Issuing Bank delivers a notice described in Section 2.15, (iii) the Borrower
is required to pay any additional amount to any Lender or the Issuing Bank or
any Governmental Authority on account of any Lender or the Issuing Bank pursuant
to Section 2.20 or (iv) any Lender refuses to consent to a proposed amendment,
waiver, consent or other modification of this Agreement or any other Loan
Page 43
Document which has been approved by the Required Lenders and which additionally
requires the consent of such Lender for approval pursuant to Section 9.08(b),
the Borrower may, at its sole expense and effort, upon notice to such Lender or
the Issuing Bank and the Administrative Agent, require such Lender or the
Issuing Bank to transfer and assign, without recourse (in accordance with and
subject to the restrictions contained in Section 9.04), all of its interests,
rights and obligations under this Agreement to an assignee that shall assume
such assigned obligations (which assignee may be another Lender, if a Lender
accepts such assignment); PROVIDED that (x) such assignment shall not conflict
with any law, rule or regulation or order of any court or other Governmental
Authority having jurisdiction, (y) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Credit
Commitment is being assigned, of the Issuing Bank and the Swingline Lender),
which consent shall not unreasonably be withheld, and (z) the Borrower or such
assignee shall have paid to the affected Lender or the Issuing Bank in
immediately available funds an amount equal to the sum of the principal of and
interest accrued to the date of such payment on the outstanding Loans or L/C
Disbursements of such Lender or the Issuing Bank, respectively, plus all Fees
and other amounts accrued for the account of such Lender or the Issuing Bank
hereunder (including any amounts under Section 2.14 and Section 2.16); PROVIDED
FURTHER that, if prior to any such transfer and assignment the circumstances or
event that resulted in such Lender's or the Issuing Bank's claim for
compensation under Section 2.14 or notice under Section 2.15 or the amounts paid
pursuant to Section 2.20, as the case may be, cease to cause such Lender or the
Issuing Bank to suffer increased costs or reductions in amounts received or
receivable or reduction in return on capital, or cease to have the consequences
specified in Section 2.15, or cease to result in amounts being payable under
Section 2.20, as the case may be (including as a result of any action taken by
such Lender or the Issuing Bank pursuant to paragraph (b) below), or if such
Lender or the Issuing Bank shall waive its right to claim further compensation
under Section 2.14 in respect of such circumstances or event or shall withdraw
its notice under Section 2.15 or shall waive its right to further payments under
Section 2.20 in respect of such circumstances or event or shall consent to the
proposed amendment, waiver, consent or other modification, as the case may be,
then such Lender or the Issuing Bank shall not thereafter be required to make
any such transfer and assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request compensation under
Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice described in
Section 2.15 or (iii) the Borrower is required to pay any additional amount to
any Lender or the Issuing Bank or any Governmental Authority on account of any
Lender or the Issuing Bank, pursuant to Section 2.20, then such Lender or the
Issuing Bank shall use reasonable efforts (which shall not require such Lender
or the Issuing Bank to incur an unreimbursed loss or unreimbursed cost or
expense or otherwise take any action inconsistent with its internal policies or
legal or regulatory restrictions or suffer any disadvantage or burden deemed by
it to be significant) (x) to file any certificate or document reasonably
requested in writing by the Borrower or (y) to assign its rights and delegate
and transfer its obligations hereunder to another of its offices, branches or
affiliates, if such filing or assignment would reduce its claims for
compensation under Section 2.14 or enable it to withdraw its notice pursuant to
Section 2.15 or would reduce amounts payable pursuant to Section 2.20, as the
case may be, in the future. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender or the Issuing Bank in connection with
any such filing or assignment, delegation and transfer.
Page 44
SECTION 2.22. SWINGLINE LOANS. (a) SWINGLINE COMMITMENT. Subject to the
terms and conditions and relying upon the representations and warranties herein
set forth, the Swingline Lender agrees to make loans to the Borrower at any time
and from time to time on and after the Closing Date and until the earlier of the
Revolving Credit Maturity Date and the termination of the Revolving Credit
Commitments in accordance with the terms hereof, in an aggregate principal
amount at any time outstanding that will not result in (i) the aggregate
principal amount of all Swingline Loans exceeding $10,000,000 in the aggregate
or (ii) the Aggregate Revolving Credit Exposure, after giving effect to any
Swingline Loan, exceeding the Total Revolving Credit Commitment. Each Swingline
Loan shall be in a principal amount that is an integral multiple of $250,000.
The Swingline Commitment may be terminated or reduced from time to time as
provided herein. Within the foregoing limits, the Borrower may borrow, pay or
prepay and reborrow Swingline Loans hereunder, subject to the terms, conditions
and limitations set forth herein.
(b) SWINGLINE LOANS. The Borrower shall notify the Administrative Agent by
fax, or by telephone (confirmed by fax), not later than 12:00 noon, New York
City time, on the day of a proposed Swingline Loan. Such notice shall be
delivered on a Business Day, shall be irrevocable and shall refer to this
Agreement and shall specify the requested date (which shall be a Business Day)
and amount of such Swingline Loan. The Administrative Agent will promptly advise
the Swingline Lender of any notice received from the Borrower pursuant to this
paragraph (b). The Swingline Lender shall make each Swingline Loan available to
the Borrower by means of a credit to an account in the name of the Borrower as
designated by the Borrower in such notice by 3:00 p.m., New York City time, on
the date such Swingline Loan is so requested.
(c) PREPAYMENT. The Borrower shall have the right at any time and from
time to time to prepay any Swingline Loan, in whole or in part, upon giving
written or fax notice (or telephone notice promptly confirmed by written, or fax
notice) to the Swingline Lender and to the Administrative Agent before 2:00
p.m., New York City time, on the date of prepayment at the Swingline Lender's
address for notices specified on Schedule 2.01. All principal payments of
Swingline Loans shall be accompanied by accrued interest on the principal amount
being repaid to the date of payment.
(d) INTEREST. Each Swingline Loan shall be an ABR Loan and, subject to the
provisions of Section 2.07, shall bear interest as provided in Section 2.06(a).
(e) PARTICIPATIONS. The Swingline Lender may by written notice given to
the Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Revolving Credit Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Revolving
Credit Lenders will participate. The Administrative Agent will, promptly upon
receipt of such notice, give notice to each Revolving Credit Lender, specifying
in such notice such Lender's Pro Rata Percentage of such Swingline Loan or
Loans. In furtherance of the foregoing, each Revolving Credit Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Revolving Credit Lender's Pro Rata Percentage of such Swingline Loan or
Loans. Each Revolving Credit Lender acknowledges and agrees that its obligation
to acquire participations in Swingline Loans pursuant to this paragraph
Page 45
is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or an Event of
Default, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Revolving Credit Lender shall comply
with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.02(c) with respect
to Loans made by such Lender (and Section 2.02(c) shall apply, MUTATIS MUTANDIS,
to the payment obligations of the Lenders) and the Administrative Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the
Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders that
shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear. The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve the Borrower (or
other party liable for obligations of the Borrower) of any default in the
payment thereof.
SECTION 2.23. LETTERS OF CREDIT. (a) GENERAL. The Borrower may request the
issuance of a Letter of Credit for its own account or for the account of any of
its wholly owned Subsidiaries (in which case the Borrower and such wholly owned
Subsidiary shall be co-applicants with respect to such Letter of Credit), in a
form reasonably acceptable to the Administrative Agent and the Issuing Bank, at
any time and from time to time while the Revolving Credit Commitments remain in
effect. This Section shall not be construed to impose an obligation upon the
Issuing Bank to issue any Letter of Credit that is inconsistent with the terms
and conditions of this Agreement.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN CONDITIONS.
In order to request the issuance of a Letter of Credit (or to amend, renew or
extend an existing Letter of Credit), the Borrower shall hand deliver or fax to
the Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, the date of issuance, amendment, renewal or
extension, the date on which such Letter of Credit is to expire (which shall
comply with paragraph (c) below), the amount of such Letter of Credit, the name
and address of the beneficiary thereof and such other information as shall be
necessary to prepare such Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if, and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that, after giving effect to such issuance, amendment, renewal or
extension (i) the L/C Exposure shall not exceed $30,000,000 and (ii) the
Aggregate Revolving Credit Exposure shall not exceed the Total Revolving Credit
Commitment.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at the close of
business on the earlier of the date that is one year after the date of the
issuance of such Letter of Credit and the date that is five Business Days prior
to the Revolving Credit Maturity Date, unless such Letter of
Page 46
Credit expires by its terms on an earlier date; provided, however, that a Letter
of Credit may, upon the request of the Borrower, include a provision whereby
such Letter of Credit shall be renewed automatically for additional consecutive
periods of 12 months or less (but not beyond the date that is five Business Days
prior to the Revolving Credit Maturity Date) unless the Issuing Bank notifies
the beneficiary thereof at least 30 days prior to the then applicable expiration
date that such Letter of Credit will not be renewed.
(d) PARTICIPATIONS. By the issuance of a Letter of Credit and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Credit Lender, and each such Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Pro Rata Percentage of the aggregate amount available to be
drawn under such Letter of Credit, effective upon the issuance of such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving
Credit Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such Lender's Pro
Rata Percentage of each L/C Disbursement made by the Issuing Bank and not
reimbursed by the Borrower (or, if applicable, another party pursuant to its
obligations under any other Loan Document) forthwith on the date due as provided
in Section 2.02(f). Each Revolving Credit Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this paragraph in respect
of Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including the occurrence and continuance of a
Default or an Event of Default, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) REIMBURSEMENT. If the Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, the Borrower shall pay to the Issuing Bank an
amount equal to such L/C Disbursement on the same Business Day on which the
Borrower shall have received notice from the Issuing Bank that payment of such
draft will be made, or, if the Borrower shall have received such notice later
than 1:00 p.m., New York City time, on any Business Day, not later than 1:00
p.m., New York City time, on the immediately following Business Day; PROVIDED
that to satisfy its reimbursement obligation under this paragraph (e), the
Borrower may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.03 or 2.22 an ABR Revolving Loan or Swingline Loan
to be made by the Revolving Credit Lenders or the Swingline Lender,
respectively, in the aggregate amount of any such L/C Disbursement.
(f) OBLIGATIONS ABSOLUTE. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit
or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all
or any of the provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, setoff, defense or other right
that the Borrower, any other party guaranteeing, or otherwise obligated
with, the Borrower, any Subsidiary
Page 47
or other Affiliate thereof or any other person may at any time have
against the beneficiary under any Letter of Credit, the Issuing Bank, the
Administrative Agent or any Lender or any other person, whether in
connection with this Agreement, any other Loan Document or any other
related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect;
(v) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of the
Issuing Bank, the Lenders, the Administrative Agent or any other person or
any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of the Borrower's obligations
hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of the Issuing Bank. However, the
foregoing shall not be construed to excuse the Issuing Bank from liability to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused
by the Issuing Bank's gross negligence or wilful misconduct in determining
whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof; it is understood that the Issuing Bank may accept
documents that appear on their face to be in order, without responsibility
for further investigation, regardless of any notice or information to the
contrary and, in making any payment under any Letter of Credit (i) the
Issuing Bank's exclusive reliance on the documents presented to it under such
Letter of Credit as to any and all matters set forth therein, including
reliance on the amount of any draft presented under such Letter of Credit,
whether or not the amount due to the beneficiary thereunder equals the amount
of such draft and whether or not any document presented pursuant to such
Letter of Credit proves to be insufficient in any respect, if such document
on its face appears to be in order, and whether or not any other statement or
any other document presented pursuant to such Letter of Credit proves to be
forged or invalid or any statement therein proves to be inaccurate or untrue
in any respect whatsoever and (ii) any noncompliance in any immaterial
respect of the documents presented under such Letter of Credit with the terms
thereof shall, in each case, be deemed not to constitute wilful misconduct or
gross negligence of the Issuing Bank.
(g) DISBURSEMENT PROCEDURES. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall as promptly as possible
give telephonic notification, confirmed by fax, to the Administrative Agent and
the Borrower of such demand for payment and whether the Issuing Bank has made or
will make an L/C Disbursement thereunder; provided that any
Page 48
failure to give or delay in giving such notice shall not relieve the Borrower of
its obligation to reimburse the Issuing Bank and the Revolving Credit Lenders
with respect to any such L/C Disbursement. The Administrative Agent shall
promptly give each Revolving Credit Lender notice thereof.
(h) INTERIM INTEREST. If the Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, then, unless the Borrower shall reimburse such
L/C Disbursement in full on such date, the unpaid amount thereof shall bear
interest for the account of the Issuing Bank, for each day from and including
the date of such L/C Disbursement, to but excluding the earlier of the date of
payment by the Borrower or the date on which interest shall commence to accrue
thereon as provided in Section 2.02(f), at the rate per annum that would apply
to such amount if such amount were an ABR Revolving Loan.
(i) RESIGNATION OR REMOVAL OF THE ISSUING BANK. The Issuing Bank may
resign at any time by giving 30 days' prior written notice to the Administrative
Agent, the Lenders and the Borrower, and may be removed at any time by the
Borrower by notice to the Issuing Bank, the Administrative Agent and the
Lenders. Subject to the next succeeding paragraph, upon the acceptance of any
appointment as the Issuing Bank hereunder by a Lender that shall agree to serve
as successor Issuing Bank, such successor shall succeed to and become vested
with all the interests, rights and obligations of the retiring Issuing Bank and
the retiring Issuing Bank shall be discharged from its obligations to issue
additional Letters of Credit hereunder. At the time such removal or resignation
shall become effective, the Borrower shall pay all accrued and unpaid fees
pursuant to Section 2.05(c)(ii). The acceptance of any appointment as the
Issuing Bank hereunder by a successor Lender shall be evidenced by an agreement
entered into by such successor, in a form satisfactory to the Borrower and the
Administrative Agent, and, from and after the effective date of such agreement,
(i) such successor Lender shall have all the rights and obligations of the
previous Issuing Bank under this Agreement and the other Loan Documents and (ii)
references herein and in the other Loan Documents to the term "Issuing Bank"
shall be deemed to refer to such successor or to any previous Issuing Bank, or
to such successor and all previous Issuing Banks, as the context shall require.
After the resignation or removal of the Issuing Bank hereunder, the retiring
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement and the other
Loan Documents with respect to Letters of Credit issued by it prior to such
resignation or removal, but shall not be required to issue additional Letters of
Credit.
(j) CASH COLLATERALIZATION. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Credit Lenders holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit) thereof and of the amount
to be deposited, deposit in an account with the Collateral Agent, for the
benefit of the Revolving Credit Lenders, an amount in cash equal to the L/C
Exposure as of such date. Such deposit shall be held by the Collateral Agent as
collateral for the payment and performance of the Obligations. The Collateral
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits in Permitted Investments, which investments shall be
made at the option and sole discretion of the Collateral Agent, such deposits
shall not bear interest. Interest or profits, if any,
Page 49
on such investments shall accumulate in such account. Moneys in such account
shall (i) automatically be applied by the Administrative Agent to reimburse the
Issuing Bank for L/C Disbursements for which it has not been reimbursed, (ii) be
held for the satisfaction of the reimbursement obligations of the Borrower for
the L/C Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Credit Lenders holding
participations in outstanding Letters of Credit representing greater than 50% of
the aggregate undrawn amount of all outstanding Letters of Credit), be applied
to satisfy the Obligations. If the Borrower is required to provide an amount of
cash collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been cured
or waived.
(k) ADDITIONAL ISSUING BANKS. The Borrower may, at any time and from time
to time with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld) and such Lender, designate one or more additional Lenders
to act as an issuing bank under the terms of this Agreement. Any Lender
designated as an issuing bank pursuant to this paragraph (k) shall be deemed (in
addition to being a Lender) to be the Issuing Bank with respect to Letters of
Credit issued or to be issued by such Lender, and all references herein and in
the other Loan Documents to the term "Issuing Bank" shall, with respect to such
Letters of Credit, be deemed to refer to such Lender in its capacity as Issuing
Bank, as the context shall require.
SECTION 2.24. INCREASE IN REVOLVING CREDIT COMMITMENTS. (a) The Borrower
may, by written notice to the Administrative Agent from time to time, request
that the Total Revolving Credit Commitment be increased by an amount not to
exceed the Incremental Revolving Facility Amount at such time. Upon the approval
of such request by the Administrative Agent (which approval shall not be
unreasonably withheld), the Administrative Agent shall deliver a copy thereof to
each Revolving Credit Lender. Such notice shall set forth the amount of the
requested increase in the Total Revolving Credit Commitment (which shall be in
minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to
the remaining Incremental Revolving Facility Amount) and the date on which such
increase is requested to become effective (which shall be not less than 10
Business Days nor more than 60 days after the date of such notice and which, in
any event, must be on or prior to the Revolving Credit Maturity Date), and shall
offer each Revolving Credit Lender the opportunity to increase its Revolving
Credit Commitment by its Pro Rata Percentage of the proposed increased amount.
Each Revolving Credit Lender shall, by notice to the Borrower and the
Administrative Agent given not more than 10 days after the date of the
Administrative Agent's notice, either agree to increase its Revolving Credit
Commitment by all or a portion of the offered amount (each Revolving Credit
Lender so agreeing being an "INCREASING REVOLVING LENDER") or decline to
increase its Revolving Credit Commitment (and any Revolving Credit Lender that
does not deliver such a notice within such period of 10 days shall be deemed to
have declined to increase its Revolving Credit Commitment) (each Revolving
Credit Lender so declining or being deemed to have declined being a
"NON-INCREASING REVOLVING LENDER"). In the event that, on the 10th day after the
Administrative Agent shall have delivered a notice pursuant to the second
sentence of this paragraph, the Revolving Credit Lenders shall have agreed
pursuant to the preceding sentence to increase their Revolving Credit
Commitments by an aggregate amount less than the increase in the Total Revolving
Credit Commitment requested by the Borrower, the Borrower may arrange for one or
more banks or other entities (any such bank or other entity referred to in this
clause (a)
Page 50
being called an "AUGMENTING REVOLVING LENDER"), which may include any Lender, to
extend Revolving Credit Commitments or increase their existing Revolving Credit
Commitments in an aggregate amount equal to the unsubscribed amount; PROVIDED
that each Augmenting Revolving Lender, if not already a Revolving Credit Lender
hereunder, shall be subject to the approval of the Administrative Agent, the
Swingline Lender and the Issuing Bank (which approvals shall not be unreasonably
withheld) and the Borrower and each Augmenting Revolving Lender shall execute
all such documentation as the Administrative Agent shall reasonably specify to
evidence its Revolving Credit Commitment and/or its status as a Revolving Credit
Lender hereunder. Any increase in the Total Revolving Credit Commitment may be
made in an amount which is less than the increase requested by the Borrower if
the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting
Revolving Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent
may take any and all actions as may be reasonably necessary to ensure that,
after giving effect to any increase in the Total Revolving Credit Commitment
pursuant to this Section 2.24, the outstanding Revolving Loans (if any) are held
by the Revolving Credit Lenders in accordance with their new Pro Rata
Percentages. This may be accomplished at the discretion of the Administrative
Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the
proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing
Revolving Lenders to assign portions of their outstanding Revolving Loans to
Increasing Revolving Lenders and Augmenting Revolving Lenders, (iii) by
permitting the Revolving Credit Borrowings outstanding at the time of any
increase in the Total Revolving Credit Commitment pursuant to this Section 2.24
to remain outstanding until the last days of the respective Interest Periods
therefor, even though the Revolving Credit Lenders would hold such Revolving
Credit Borrowings other than in accordance with their new Pro Rata Percentages,
or (iv) by any combination of the foregoing. Any prepayment or assignment
described in this paragraph (b) shall be subject to Section 2.16, but otherwise
without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving
Credit Commitment (or in the Revolving Credit Commitment of any Revolving Credit
Lender) or addition of a new Revolving Credit Lender shall become effective
under this Section 2.24 unless, (i) on the date of such increase, the conditions
set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the
Administrative Agent shall have received a certificate to that effect dated such
date and executed by a Financial Officer of the Borrower, and (ii) the
Administrative Agent shall have received (with sufficient copies for each of the
Revolving Credit Lenders) legal opinions, board resolutions and an officer's
certificate consistent with those delivered on the Closing Date under clauses
(a)(i), (a)(ii), (c)(ii)(B) and (d) of Section 4.02.
SECTION 2.25. INCREASE IN TERM LOAN COMMITMENTS. (a) The Borrower may, by
written notice to the Administrative Agent from time to time, request
Incremental Term Loan Commitments in an amount not to exceed the Incremental
Term Loan Amount from one or more Incremental Term Lenders, which may include
any existing Lender; provided that each Incremental Term Lender, if not already
a Lender hereunder, shall be subject to the approval of the Administrative Agent
(which approval shall not be unreasonably withheld). Such notice shall set forth
(i) the amount of the Incremental Term Loan Commitments being requested (which
shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000
or equal to the remaining Incremental Term Loan Amount), (ii) the date on which
such Incremental
Page 51
Term Loan Commitments are requested to become effective (which shall not be less
than 10 Business Days nor more than 60 days after the date of such notice), and
(iii) whether such Incremental Term Loan Commitments are to be Tranche A
Commitments, Tranche B Commitments or commitments to make Term Loans with terms
different from the Tranche A Term Loans and Tranche B Term Loans ("OTHER TERM
LOANS").
(b) The Borrower and each Incremental Term Lender shall execute and
deliver to the Administrative Agent an Incremental Term Loan Assumption
Agreement and such other documentation as the Administrative Agent shall
reasonably specify to evidence the Incremental Term Loan Commitment of such
Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall
specify the terms of the Incremental Term Loans to be made thereunder; PROVIDED
that, without the prior written consent of the Required Lenders, (i) the
interest rate spreads in respect of any Other Term Loans shall not exceed by
more than 1/2 of 1% the Applicable Percentage for the Tranche B Term Loans, (ii)
the final maturity date of any Other Term Loans shall be no earlier than the
Tranche B Maturity Date and (iii) the average life to maturity of any Other Term
Loans shall be no shorter than the average life to maturity of the Tranche B
Term Loans. The Administrative Agent shall promptly notify each Lender as to the
effectiveness of each Incremental Term Loan Assumption Agreement. Each of the
parties hereto hereby agrees that, upon the effectiveness of any Incremental
Term Loan Assumption Agreement, this Agreement shall be deemed amended to the
extent (but only to the extent) necessary to reflect the existence and terms of
the Incremental Term Loan Commitment evidenced thereby.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment
shall become effective under this Section 2.25 unless (i) on the date of such
effectiveness, the conditions set forth in paragraphs (b) and (c) of Section
4.01 shall be satisfied and the Administrative Agent shall have received a
certificate to that effect dated such date and executed by a Financial Officer
of the Borrower, and (ii) the Administrative Agent shall have received (with
sufficient copies for each of the Incremental Term Lenders) legal opinions,
board resolutions and an officer's certificate consistent with those delivered
on the Closing Date under clauses (a)(i), (a)(ii), (c)(ii)(B) and (d) of Section
4.02.
(d) Each of the parties hereto hereby agrees that the Administrative Agent
may take any and all action as may be reasonably necessary to ensure that all
Incremental Term Loans (other than Other Term Loans), when originally made, are
included in each Borrowing of outstanding Tranche A Term Loans or Tranche B Term
Loans, as the case may be, on a pro rata basis. This may be accomplished at the
discretion of the Administrative Agent by requiring each outstanding Eurodollar
Tranche A Term Borrowing or Eurodollar Tranche B Term Borrowing, as the case may
be, to be converted into an ABR Term Borrowing on the date of each Incremental
Term Loan, or by allocating a portion of each Incremental Term Loan to each
outstanding Eurodollar Tranche A Term Borrowing or Eurodollar Tranche B Term
Borrowing, as the case may be, on a pro rata basis, even though as a result
thereof such Incremental Term Loan may effectively have a shorter Interest
Period than the Term Loans included in the Borrowing of which they are a part
(and notwithstanding any other provision of this Agreement that would prohibit
such an initial Interest Period). Any conversion of Eurodollar Term Loans to ABR
Term Loans required by the preceding sentence shall be subject to Section 2.16.
If any Incremental Term Loan is to be allocated to an existing Interest Period
for a Eurodollar Term
Page 52
Borrowing then, subject to Section 2.07, the interest rate applicable to such
Incremental Term Loan for the remainder of such Interest Period shall equal the
Adjusted LIBO Rate for a period approximately equal to the remainder of such
Interest Period (as determined by the Administrative Agent two Business Days
before the date such Incremental Term Loan is made) plus the Applicable
Percentage. In addition, to the extent any Incremental Term Loans are the
Tranche A Term Loans or Tranche B Term Loans, the scheduled amortization
payments under Sections 2.11(a)(i) or 2.11(a)(ii), as the case may be, required
to be made after the making of such Incremental Term Loans shall be ratably
increased by the aggregate principal amount of such Incremental Term Loans.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower, with respect to itself and its
Subsidiaries, represents and warrants to the Administrative Agent, the
Collateral Agent, the Issuing Bank and each of the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of Holdings, the Borrower and the
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has all requisite power
and authority to own its property and assets and to carry on its business as now
conducted and as proposed to be conducted, (c) is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required, except where the failure so to qualify could not reasonably be
expected to result in a Material Adverse Effect, and (d) has the power and
authority to execute, deliver and perform its obligations under each of the
Transaction Documents and each other agreement or instrument contemplated
thereby to which it is or will be a party and, in the case of the Borrower, to
borrow hereunder.
SECTION 3.02. AUTHORIZATION. The execution, delivery and performance by
the Loan Parties of the Documents to which each will be a party and the
consummation by the Loan Parties of the Transactions (including the borrowings
hereunder) (a) have been duly authorized by all requisite corporate and, if
required, stockholder action and (b) will not (i) violate (A) any provision of
law, statute, rule or regulation in any material respect, or of the certificate
or articles of incorporation or other constitutive documents or by-laws of
Holdings, the Borrower or any Subsidiary, (B) any order of any Governmental
Authority or (C) any provision of any indenture, agreement or other instrument
to which Holdings, the Borrower or any Subsidiary is a party or by which any of
them or any of their property is or may be bound in any material respect, (ii)
or give rise to any right to accelerate or to require the prepayment, repurchase
or redemption of any obligation under any such indenture, agreement or other
instrument or (iii) result in the creation or imposition of any Lien upon or
with respect to any property or assets now owned or hereafter acquired by
Holdings, the Borrower or any Subsidiary (other than any Lien created hereunder
or under the Security Documents).
SECTION 3.03. ENFORCEABILITY. This Agreement has been duly executed and
delivered by Holdings and the Borrower and constitutes, and each other Loan
Document when executed and delivered by the each Loan Party thereto will
constitute, a legal, valid and binding obligation
Page 53
of such Loan Party enforceable against such Loan Party in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
moratorium and other similar laws relating to or affecting creditors' rights
generally and to general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
SECTION 3.04. GOVERNMENTAL APPROVALS. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the Transactions, except for (a) the
filing of Uniform Commercial Code financing statements and filings with the
United States Patent and Trademark Office and the United States Copyright Office
and (b) such as have been made or obtained and are in full force and effect, and
except where the failure to obtain such consent or approval to make such
registration or filing or other action, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
SECTION 3.05. FINANCIAL STATEMENTS. (a) The Borrower has heretofore
furnished to the Lenders its consolidated balance sheets and statements of
income, stockholder's equity and cash flows (i) as of and for the fiscal year
ended December 31, 2000, audited by and accompanied by the opinion of Xxxxxx
Xxxxxxxx LLP, independent public accountants, and (ii) as of and for the fiscal
quarter and the portion of the fiscal year ended March 31, 2001, certified by
its chief financial officer. Such financial statements present fairly the
financial condition and results of operations and cash flows of the Borrower and
its consolidated Subsidiaries as of such dates and for such periods. Such
balance sheets and the notes thereto disclose all material liabilities, direct
or contingent, of the Borrower and its consolidated Subsidiaries as of the dates
thereof. Such financial statements were prepared in accordance with GAAP applied
on a consistent basis.
(b) The Borrower has heretofore delivered to the Lenders its unaudited pro
forma consolidated balance sheet and statements of income, stockholder's equity
and cash flows as of December 31, 2000 and March 31, 2001, prepared giving
effect to the Transactions as if they had occurred, with respect to such balance
sheets, on such dates and, with respect to such other financial statements, on
the first day of the 12-month and 3-month period, respectively, ending on such
date. Such pro forma financial statements have been prepared in good faith by
the Borrower, based on the assumptions used to prepare the pro forma financial
information contained in the Employee Offering Registration Statement (which
assumptions are believed by the Borrower on the date hereof and on the Closing
Date to be reasonable), accurately reflect all adjustments required to be made
to give effect to the Transactions and present fairly on a pro forma basis the
estimated consolidated financial position of the Borrower and its consolidated
Subsidiaries as of such date and for such period, assuming that the Transactions
had actually occurred at such date or at the beginning of such period, as the
case may be.
SECTION 3.06. NO MATERIAL ADVERSE CHANGE. No event, change or condition
has occurred that has had, or could reasonably be expected to have, a material
adverse effect on the business, assets, operations or condition, financial or
otherwise, of Holdings, the Borrower and the Subsidiaries, taken as a whole,
since December 31, 2000.
Page 54
SECTION 3.07. TITLE TO PROPERTIES. Each of Holdings, the Borrower and the
Subsidiaries has good and marketable title to, or valid leasehold interests in,
all its material properties and assets necessary for the conduct of its
business, except for minor defects in title that do not interfere in any
material respect with its ability to conduct its business as currently conducted
or to utilize such properties and assets for their intended purposes. All such
material properties and assets are free and clear of Liens, other than Liens
expressly permitted by Section 6.02.
SECTION 3.08. SUBSIDIARIES. Schedule 3.08 sets forth as of the Closing
Date a list of all Subsidiaries, the percentage ownership interest of Holdings,
the Borrower or other Subsidiaries therein and whether such Subsidiary is an
Inactive Subsidiary. The shares of capital stock or other ownership interests so
indicated on Schedule 3.08 are fully paid and non-assessable and are owned by
Holdings or the Borrower, directly or indirectly, free and clear of all Liens
(other than Liens created under the Security Documents).
SECTION 3.09. LITIGATION; COMPLIANCE WITH LAWS. (a) Except as set forth on
Schedule 3.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of Holdings or the Borrower, threatened against or affecting Holdings
or the Borrower or any Subsidiary or any business, property or rights of any
such person (i) that involve any Loan Document or the Transactions or (ii) that
could reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
(b) Since the date of this Agreement, there has been no change in the
status of the matters disclosed on Schedule 3.09 that, individually or in the
aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
(c) None of Holdings, the Borrower or any of the Subsidiaries or any of
their respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation, or is in default with respect to
any judgment, writ, injunction, decree or order of any Governmental Authority,
where such violation or default could reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. AGREEMENTS. (a) None of Holdings, the Borrower or any of the
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(b) None of Holdings, the Borrower or any of the Subsidiaries is in
default in any manner under any provision of any indenture or other agreement or
instrument evidencing Material Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. FEDERAL RESERVE REGULATIONS. (a) None of Holdings, the
Borrower or any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
buying or carrying Margin Stock.
Page 55
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of the provisions of
Regulation T, U or X.
SECTION 3.12. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY Act.
None of Holdings, the Borrower or any Subsidiary (other than any Co-investment
Subsidiary) is (a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935.
SECTION 3.13. USE OF PROCEEDS. The Borrower will use the proceeds of the
Loans and will request the issuance of Letters of Credit only for the purposes
specified in the preamble to this Agreement (or, in the case of Incremental Term
Loans, as set forth in the applicable Incremental Term Loan Assumption
Agreement).
SECTION 3.14. TAX RETURNS. Each of the Holdings, the Borrower and the
Subsidiaries has filed or caused to be filed all Federal and all material state,
local and foreign tax returns or materials required to have been filed by it and
has paid or caused to be paid all material taxes due and payable by it and all
assessments received by it, except taxes that are being contested in good faith
by appropriate proceedings and for which Holdings, the Borrower or such
Subsidiary, as applicable, shall have set aside on its books adequate reserves.
SECTION 3.15. NO MATERIAL MISSTATEMENTS. None of (a) the Confidential
Information Memorandum (other than changes relating solely to a change in the
amount of the Tranche B Commitment, the Total Revolving Credit Commitment or the
amount of the Senior Subordinated Notes as reflected in this Agreement) or (b)
any other information, report, financial statement, exhibit or schedule
furnished by or on behalf of Holdings or the Borrower to the Administrative
Agent or any Lender in connection with the negotiation of any Loan Document or
included therein or delivered pursuant thereto contained, contains or will
contain any material misstatement of fact or omitted, omits or will omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were, are or will be made, not misleading
as of the time when made or delivered; PROVIDED that to the extent any such
information, report, financial statement, exhibit or schedule was based upon or
constitutes a forecast or projection, each of Holdings and the Borrower
represents only that it acted in good faith and utilized reasonable assumptions
and due care in the preparation of such information, report, financial
statement, exhibit or schedule.
SECTION 3.16. EMPLOYEE BENEFIT PLANS. (a) Each of the Borrower and its
ERISA Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder except for such non-compliance as could not
reasonably be expected to result in a Material Adverse Effect. No ERISA Event
has occurred or is reasonably expected to occur that, when taken together with
all other such ERISA Events, could reasonably be expected to result in a
Material Adverse Effect. The present value of all benefit liabilities under all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the last annual valuation
dates applicable thereto, exceed the fair market value of the assets of all such
Page 56
underfunded Plans by an amount that could reasonably be expected to result in a
Material Adverse Effect.
(b) Each Foreign Pension Plan is in compliance in all material respects
with all requirements of law applicable thereto and the respective requirements
of the governing documents for such plan except to the extent such
non-compliance could not reasonably be expected to result in a Material Adverse
Effect. With respect to each Foreign Pension Plan, none of the Holdings, its
Subsidiaries or any of its directors, officers, employees or agents has engaged
in a transaction that subject Holdings or any of its Subsidiaries, directly or
indirectly, to a tax or civil penalty that could reasonably be expected to have
a Material Adverse Effect. With respect to each Foreign Pension Plan, reserves
have been established in the financial statements furnished to Lenders in
respect of any unfunded liabilities in accordance with applicable law and
prudent business practice or, where required, in accordance with ordinary
accounting practices in the jurisdiction in which such Foreign Pension Plan is
maintained, except for such failure as could not reasonably be expected to
result in a Material Adverse Effect The aggregate unfunded liabilities, with
respect to such Foreign Pension Plans could not reasonably be expected to result
in a Material Adverse Effect. There are no actions, suits or claims (other than
routine claims for benefits) pending or threatened against the Holdings or any
of its Affiliates with respect to any Foreign Pension Plan which could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect. SECTION 3.17. ENVIRONMENTAL MATTERS. Except with
respect to any matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, none of Holdings,
the Borrower or any of the Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
SECTION 3.18. INSURANCE. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by the Borrower or by the
Borrower for its Subsidiaries as of the date hereof and the Closing Date. As of
each such date, such insurance is in full force and effect and all premiums have
been duly paid. The Borrower and its Subsidiaries have insurance in such amounts
and covering such risks and liabilities as are in accordance with normal
industry practice.
SECTION 3.19. LABOR MATTERS. As of the date hereof and the Closing Date,
there are no material strikes, lockouts or slowdowns against Holdings, the
Borrower or any Subsidiary pending or, to the knowledge of Holdings or the
Borrower, threatened. The hours worked by and payments made to employees of
Holdings, the Borrower and the Subsidiaries have not been in violation of the
Fair Labor Standards Act or any other applicable Federal, state, local or
foreign law dealing with such matters, except to the extent that such
violations, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. All payments due from Holdings, the Borrower or any
Subsidiary, or for which any claim may be made against Holdings, the Borrower or
any Subsidiary, on account of wages and employee health and welfare insurance
and other benefits, have been paid or accrued as a liability on the books of
Holdings, the Borrower or such Subsidiary, except to the extent that non-payment
or non-accrual could not, in
Page 57
the aggregate, reasonably be expected to have a Material Adverse Effect. The
consummation of the Transactions will not give rise to any right of termination
or right of renegotiation on the part of any union under any collective
bargaining agreement to which Holdings, the Borrower or any Subsidiary is bound.
SECTION 3.20. SOLVENCY. Immediately after the consummation of the
Transactions to occur on the Closing Date and immediately following the making
of each Loan and after giving effect to the application of the proceeds of each
Loan, (a) the fair value of the assets of Holdings and its subsidiaries, on a
consolidated basis, and the assets of the Borrower and its subsidiaries, on a
consolidated basis, at a fair valuation, will exceed their debts and
liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of Holdings and its subsidiaries, on a
consolidated basis, will be greater than the amount that will be required to pay
the probable liability of their debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities become absolute and
matured; (c) Holdings and its subsidiaries, on a consolidated basis, will be
able to pay their debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured; and (d) Holdings and
its subsidiaries, on a consolidated basis, will not have unreasonably small
capital with which to conduct the business in which they are engaged as such
business is now conducted and is proposed to be conducted following the Closing
Date.
SECTION 3.21. REPRESENTATIONS AND WARRANTIES IN MERGER AGREEMENT. All
representations and warranties of the Borrower set forth in the Merger Agreement
were true and correct in all material respects at the time as of which such
representations and warranties were made (or deemed made).
SECTION 3.22. SENIOR INDEBTEDNESS. The Obligations constitute "Senior
Indebtedness" under and as defined in the Senior Subordinated Note Indenture and
the indenture relating to the Existing Subordinated Notes.
ARTICLE IV
CONDITIONS OF LENDING
The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
SECTION 4.01. ALL CREDIT EVENTS. On the date of each Borrowing, including
each Borrowing of a Swingline Loan and on the date of each issuance, amendment,
extension or renewal of a Letter of Credit (each such event being called a
"CREDIT EVENT"):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 (or such notice shall have been deemed
given in accordance with Section 2.03) or, in the case of the issuance,
amendment, extension or renewal of a Letter of Credit, the Issuing Bank and the
Administrative Agent shall have received a notice requesting the issuance,
amendment, extension or renewal of such Letter of Credit as required by Section
2.23(b) or, in the case of the Borrowing of a Swingline Loan, the Swingline
Lender and the
Page 58
Administrative Agent shall have received a notice requesting such Swingline Loan
as required by Section 2.22(b).
(b) The representations and warranties set forth in Article III hereof and
in each other Loan Document shall be true and correct in all material respects
on and as of the date of such Credit Event with the same effect as though made
on and as of such date, except to the extent such representations and warranties
expressly relate to an earlier date.
(c) At the time of and immediately after such Credit Event, no Event of
Default or Default shall have occurred and be continuing.
Each Credit Event shall be deemed to constitute a representation and
warranty by the Borrower and Holdings on the date of such Credit Event as to
the matters specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. FIRST CREDIT EVENT. ON THE CLOSING DATE:
(a) The Administrative Agent shall have received, on behalf of itself, the
Lenders and the Issuing Bank, a favorable written opinion of (i) Xxxxxx X.
Xxxxxxxx, Esq., General Counsel of the Borrower, substantially to the effect set
forth in Exhibit E-1, (ii) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for Holdings and
the Borrower, substantially to the effect set forth in Exhibit E-2, and (iii)
the opinion of UK counsel, substantially to the effect set forth in Exhibit E-3,
in each case (A) dated the Closing Date, (B) addressed to the Issuing Bank, the
Administrative Agent and the Lenders, and (C) covering such other matters
relating to the Loan Documents and the Transactions as the Administrative Agent
shall reasonably request, and Holdings and the Borrower hereby request such
counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the Borrowings and
extensions of credit hereunder and the other Loan Documents shall be reasonably
satisfactory to the Lenders, to the Issuing Bank and to the Administrative
Agent.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments thereto, of
each Loan Party, certified as of a recent date by the Secretary of State of the
state of its organization, and a certificate as to the good standing of each
Loan Party (other than Holdpar A or Holdpar B which are not required to be
registered with the Secretary of State of their state of organization) as of a
recent date, from such Secretary of State; (ii) a certificate of the Secretary
or Assistant Secretary of each Loan Party dated the Closing Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws of such
Loan Party as in effect on the Closing Date and at all times since a date prior
to the date of the resolutions described in clause (B) below, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the Board of
Directors of such Loan Party authorizing the execution, delivery and performance
of the Loan Documents to which such person is a party and, in the case of the
Borrower, the borrowings hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, (C) that the
certificate or articles of incorporation of such Loan Party have not been
amended since the date of the last amendment thereto shown on the certificate of
good standing furnished pursuant to clause (i) above, and (D) as to the
incumbency and specimen signature of each
Page 59
officer executing any Loan Document or any other document delivered in
connection herewith on behalf of such Loan Party; (iii) a certificate of another
officer as to the incumbency and specimen signature of the Secretary or
Assistant Secretary executing the certificate pursuant to (ii) above; and (iv)
such other documents as the Lenders, the Issuing Bank or the Administrative
Agent may reasonably request.
(d) The Administrative Agent shall have received a certificate, dated the
Closing Date and signed by a Financial Officer of the Borrower, confirming
compliance with the conditions precedent set forth in paragraphs (b) and (c) of
Section 4.01. Such certificate shall include a reasonably detailed schedule
showing the pro forma adjustments made to calculate Consolidated EBITDA as of
and for the fiscal quarters ended March 31, 2001 and June 30, 2001, as
contemplated by the last sentence of the definition of Consolidated EBITDA, and
which shall be accompanied by the report of Xxxxxx Xxxxxxxx LLP substantially in
the form of Schedule 4.02(d).
(e) The Administrative Agent shall have received all Fees and other
amounts due and payable on or prior to the Closing Date, including, to the
extent invoiced prior to the Closing Date, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder or under any other Loan Document.
(f) The Collateral Agreement shall have been duly executed by the parties
thereto and delivered to the Collateral Agent and shall be in full force and
effect, and all the outstanding Equity Interests of the Borrower and the
Subsidiaries shall have been duly and validly pledged thereunder to the extent
required thereby to the Collateral Agent for the ratable benefit of the Secured
Parties and certificates representing such Equity Interests to the extent such
Equity Interests are evidenced by certificated securities, accompanied by
instruments of transfer and stock powers endorsed in blank, shall be in the
actual possession of the Collateral Agent; provided that to the extent to do so
would cause adverse tax consequences to the Borrower, (i) neither the Borrower
nor any Domestic Subsidiary shall be required to pledge more than 65% of the
voting stock of any Foreign Subsidiary and (ii) no Foreign Subsidiary shall be
required to pledge the Equity Interests of any of its Subsidiaries.
(g) Each document (including each Uniform Commercial Code financing
statement) required by law or reasonably requested by the Administrative Agent
to be filed, registered or recorded in order to create in favor of the
Collateral Agent for the benefit of the Secured Parties a valid, legal and
perfected first-priority (except to the extent otherwise provided therein)
security interest in and lien on the Collateral (subject to any Lien expressly
permitted by Section 6.02) described in the Collateral Agreement shall have been
delivered to the Collateral Agent.
(h) Except as stated on Schedule 4.02(h), the Collateral Agent shall have
received the results of a search of the Uniform Commercial Code filings (or
equivalent filings) made with respect to the Loan Parties in the jurisdictions
contemplated by the Perfection Certificate, together with copies of the
financing statements (or similar documents) disclosed by such search, and
accompanied by evidence reasonably satisfactory to the Collateral Agent that the
Liens indicated in any such financing statement (or similar document) would be
permitted under Section 6.02 or have been released.
Page 60
(i) The Collateral Agent shall have received a Perfection Certificate with
respect to the Loan Parties dated the Closing Date and duly executed by a
Responsible Officer and the General Counsel of the Borrower.
(j) The Transactions shall have been consummated or shall be consummated
simultaneously on the Closing Date, in each case in all material respects in
accordance with the terms hereof, the terms of the Documents and applicable law;
the Cash Equity Contribution shall have been made; the Senior Subordinated Notes
shall have been issued and the Lenders shall be reasonably satisfied with the
capitalization structure and equity ownership of Holdings and the Borrower after
giving effect to the Transactions.
(k) The Lenders shall be reasonably satisfied as to the amount and nature
of any environmental and employee health and safety exposures to which the
Borrower and its Subsidiaries may be subject after giving effect to the
Transactions, and with the plans of the Borrower or such Subsidiaries with
respect thereto.
(l) All requisite Governmental Authorities and third parties shall have
approved or consented to the Transactions and the other transactions
contemplated hereby to the extent the failure to obtain such consent or approval
could, individually or in the aggregate, reasonably be expected to restrain,
prevent or impose materially burdensome conditions on the Transactions or the
other transactions contemplated hereby, and there shall be no litigation,
governmental, administrative or judicial action, actual or threatened, that
could reasonably be expected to restrain, prevent or impose materially
burdensome conditions on the Transactions or the other transactions contemplated
hereby.
(m) The Administrative Agent shall have received a copy of, or a
certificate as to coverage under, the insurance policies required by Section
5.02 and the applicable provisions of the Security Documents, each of which
shall be endorsed or otherwise amended to include a customary lender's loss
payable endorsement and to name the Collateral Agent as additional insured, in
form and substance reasonably satisfactory to the Administrative Agent.
(n) The Lenders shall have received the audited, unaudited and pro forma
financial statements referred to in Section 3.05.
(o) Holdings shall have issued not less than $65,000,000 of Holdco Notes
and the Borrower shall have received net cash proceeds of not less than
$62,700,000 from the issuance of the Holdco Notes. The terms and conditions of
the Holdco Notes (including terms and conditions relating to the interest rate,
fees, amortization, maturity, covenants, pay-in-kind provisions, events of
default and remedies) shall be reasonably satisfactory in all respects to the
Lenders. Without limiting the foregoing, the Notes shall provide that, at any
time during which the Borrower's ability to pay cash dividends to Holdings is
restricted under the terms of this Agreement, Holdings may, in lieu of paying
interest on the Holdco Notes in cash and without causing a default thereunder,
satisfy its obligation to pay interest on the Holdco Notes by issuing to the
holders thereof additional Holdco Notes.
(p) The Borrower shall have repurchased all Existing Subordinated Notes
tendered and not withdrawn pursuant to the Debt Tender Offer; if less than all
the outstanding Existing
Page 61
Subordinated Notes shall have been tendered and so purchased, the Consent
Solicitation shall have become effective.
(q) The Lenders shall have received a solvency letter from Houlihan,
Lokey, Xxxxxx & Xxxxx, Inc., in form and substance reasonably satisfactory to
the Lenders, as to the solvency of the Borrower and its subsidiaries on a
consolidated basis after giving effect to the Transactions and the consummation
of the other transactions contemplated hereby.
(r) All principal, premium, if any, interest, fees and other amounts due
and owing under the Existing Credit Agreement shall have been paid in full, the
commitments thereunder terminated and all guarantees and security in support
thereof released, and the Administrative Agent shall have received reasonably
satisfactory evidence thereof, and after giving effect to the Transactions and
the other transactions contemplated hereby, Holdings, the Borrower and its
subsidiaries shall have outstanding no Indebtedness or preferred stock other
than (i) the Loans and Letters of Credit hereunder, (ii) the Holdco Notes, (iii)
the Senior Subordinated Notes, (iv) Existing Subordinated Notes not tendered (or
tendered and subsequently withdrawn) in the Debt Tender Offer and (v) the
Indebtedness listed on Schedule 6.01.
(s) Immediately after giving effect to the Transactions and the other
transactions contemplated hereby to occur on or about the Closing Date, no more
than $50,000,000 of Revolving Loans shall have been borrowed (excluding the
aggregate undrawn and unexpired amount of all outstanding Letters of Credit).
ARTICLE V
AFFIRMATIVE COVENANTS
Each of Holdings and the Borrower covenants and agrees with each Lender
that so long as this Agreement shall remain in effect and until the
Commitments have been terminated and the principal of and interest on each
Loan, all Fees and all other expenses or amounts payable under any Loan
Document shall have been paid in full and all Letters of Credit have been
canceled or have expired and all amounts drawn thereunder have been
reimbursed in full, unless the Required Lenders shall otherwise consent in
writing, each of Holdings and the Borrower will, and will cause each of the
Subsidiaries to:
SECTION 5.01. EXISTENCE; BUSINESSES AND PROPERTIES. (a) Do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence, except as otherwise expressly permitted under Section 6.05.
(b) Except as could not reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect: (i) do or cause to be done
all things necessary to obtain, preserve, renew, extend and keep in full force
and effect the rights, licenses, permits, franchises, authorizations, patents,
copyrights, trademarks and trade names necessary to the conduct of its business;
(ii) comply in all material respects with all applicable laws, rules,
regulations and decrees and orders of any Governmental Authority, including
Environmental Laws, whether now in effect or hereafter enacted; and (iii) at all
times maintain and preserve all property necessary to the conduct of such
business and keep such property in good repair, working order
Page 62
and condition and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be
properly conducted at all times.
SECTION 5.02. INSURANCE. (a) Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance, to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies in
the same or similar businesses operating in the same or similar locations,
including public liability insurance against claims for personal injury or death
or property damage occurring upon, in, about or in connection with the use of
any properties owned, occupied or controlled by it; and maintain such other
insurance as may be required by law.
(b) Cause all such policies covering any Collateral to be endorsed or
otherwise amended to include a customary lender's loss payable endorsement, in
form and substance reasonably satisfactory to the Administrative Agent and the
Collateral Agent, which endorsement shall provide that, from and after the
Closing Date, if the insurance carrier shall have received written notice from
the Administrative Agent or the Collateral Agent of the occurrence of an Event
of Default, the insurance carrier shall pay all proceeds otherwise payable to
the Borrower or the Loan Parties under such policies directly to the Collateral
Agent; cause all such policies to provide that neither the Borrower, the
Administrative Agent, the Collateral Agent nor any other party shall be a
coinsurer thereunder and to contain a "Replacement Cost Endorsement", without
any deduction for depreciation, and such other provisions as the Administrative
Agent or the Collateral Agent may reasonably require from time to time to
protect their interests; deliver original or certified copies of all such
policies to the Collateral Agent; cause each such policy to provide that it
shall not be canceled, modified or not renewed (i) by reason of nonpayment of
premium upon not less than 10 days' prior written notice thereof by the insurer
to the Administrative Agent and the Collateral Agent (giving the Administrative
Agent and the Collateral Agent the right to cure defaults in the payment of
premiums) or (ii) for any other reason upon not less than 30 days' prior written
notice thereof by the insurer to the Administrative Agent and the Collateral
Agent; deliver to the Administrative Agent and the Collateral Agent, prior to
the cancellation, modification or nonrenewal of any such policy of insurance, a
copy of a renewal or replacement policy (or other evidence of renewal of a
policy previously delivered to the Administrative Agent and the Collateral
Agent) together with evidence reasonably satisfactory to the Administrative
Agent and the Collateral Agent of payment of the premium therefor.
SECTION 5.03. OBLIGATIONS AND TAXES. Pay its Material Indebtedness and
other material obligations promptly and in accordance with their terms and pay
and discharge promptly when due all material taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or in respect of
its property, before the same shall become delinquent or in default, as well as
all lawful material claims for labor, materials and supplies or otherwise that,
if unpaid, might give rise to a Lien upon such properties or any part thereof;
provided, however, that such payment and discharge shall not be required with
respect to any such tax, assessment, charge, levy or claim so long as the
validity or amount thereof shall be contested in good faith by appropriate
proceedings and the Borrower shall have set aside on its books adequate reserves
with respect thereto in accordance with GAAP and such contest
Page 63
operates to suspend collection of the contested obligation, tax, assessment or
charge and enforcement of a Lien.
SECTION 5.04. FINANCIAL STATEMENTS, REPORTS, ETC. In the case of the
Borrower, furnish to the Administrative Agent (which shall furnish such
statements, certificates or other documents received pursuant to this Section
5.04 to each Lender and Issuing Bank):
(a) within 90 days after the end of each fiscal year, its consolidated
balance sheet and related statements of income, stockholders' equity and cash
flows showing the financial condition of the Borrower and its consolidated
Subsidiaries as of the close of such fiscal year and the results of its
operations and the operations of such Subsidiaries during such year, together
with comparative figures for the immediately preceding fiscal year, all audited
by Xxxxxx Xxxxxxxx LLP or other independent public accountants of recognized
national standing and accompanied by an opinion of such accountants (which shall
not be qualified in any material respect) to the effect that such consolidated
financial statements fairly present the financial condition and results of
operations of the Borrower and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated balance sheet and related
statements of income, stockholders' equity and cash flows showing the financial
condition of the Borrower and its consolidated Subsidiaries as of the close of
such fiscal quarter and the results of its operations and the operations of such
Subsidiaries during such fiscal quarter and the then elapsed portion of the
fiscal year, and comparative figures for the same periods in the immediately
preceding fiscal year, all certified by one of its Financial Officers as fairly
presenting the financial condition and results of operations of the Borrower and
its consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph
(a) or (b) above, a certificate of a Financial Officer opining on or certifying
such statements (i) certifying that no Event of Default or Default has occurred
or, if such an Event of Default or Default has occurred, specifying the nature
and extent thereof and any corrective action taken or proposed to be taken with
respect thereto and (ii) setting forth computations in reasonable detail
satisfactory to the Administrative Agent demonstrating compliance with the
covenants contained in Sections 6.11, 6.12, 6.13 and 6.14 and (x) in the case of
a certificate delivered with the financial statements required by paragraph (b)
above for the second fiscal quarter of each year, setting forth the Borrower's
calculation of Excess Cash Flow, and (y) in the case of the certificate
delivered pursuant to this paragraph (c) with the financial statements under
paragraph (a) above for the fiscal year ended December 31, 2001, a reasonably
detailed schedule showing the pro forma adjustments made to calculate
Consolidated EBITDA for the fiscal quarters ended March 31, 2001 and June 30,
2001, as contemplated by the last sentence of the definition of Consolidated
EBITDA (which shall include all pro forma adjustments resulting from the 2001
Cost Reduction Plan calculated as contemplated pursuant to Schedule 5.04(d)(1)),
(d) concurrently with any delivery of financial statements under clause
(a) above, a certificate of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of their
examination of such financial statements of any
Page 64
Default or Event of Default (which certificate may be limited to the extent
required by accounting rules or guidelines); and in the case of the certificate
delivered pursuant to this paragraph (d) with the financial statements under
paragraph (a) above for the fiscal year ended December 31, 2001, such report of
such accounting firm shall be substantially in the form of Schedule 5.04(d)(2)
and shall be accompanied by the additional report of such accounting firm in the
form of 5.04(d)(3).
(e) no later than 45 days after the end of each fiscal year of the
Borrower, a detailed consolidated budget for the then current fiscal year
(including a projected consolidated balance sheet and related statements of
projected operations and cash flows as of the end of and for such fiscal year
and setting forth the assumptions used for purposes of preparing such budget)
and, promptly when available, any significant revisions of such budget;
(f) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
Holdings, the Borrower or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed to its shareholders, as the case may be;
(g) promptly after the receipt thereof by Holdings or the Borrower or any
of their respective subsidiaries, a copy of any "management letter" received by
any such person from its certified public accountants and the management's
response thereto; and
(h) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of Holdings, the Borrower
or any Subsidiary, or compliance with the terms of any Loan Document, as the
Administrative Agent or any Lender may reasonably request.
SECTION 5.05. LITIGATION AND OTHER NOTICES. Furnish to the Administrative
Agent (which shall furnish such notice to each Lender and Issuing Bank) prompt
written notice of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) taken or proposed to be taken with
respect thereto;
(b) the filing or commencement of, or any threat or notice of intention of
any person to file or commence, any action, suit or proceeding, whether at law
or in equity or by or before any Governmental Authority, against Holdings, the
Borrower or any Subsidiary that could reasonably be expected to result in a
Material Adverse Effect; and
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of Holdings, the Borrower and the Subsidiaries in an aggregate amount
exceeding $5,000,000; and
(d) any other development that has resulted in, or could reasonably be
expected to result in, a Material Adverse Effect.
Page 65
SECTION 5.06. INFORMATION REGARDING COLLATERAL. (a) Furnish to the
Administrative Agent prompt written notice of any change (i) in any Loan Party's
corporate name or in any trade name used to identify it in the conduct of its
business or in the ownership of its properties, (ii) in the location of any Loan
Party's chief executive office, its principal place of business, any office in
which it maintains books or records relating to Collateral owned by it to the
extent that such collateral has an aggregate fair market value in excess of
$1,000,000 or any office or facility at which Collateral owned by it is located
(including the establishment of any such new office or facility), (iii) in any
Loan Party's identity or corporate structure or (iv) in any Loan Party's Federal
Taxpayer Identification Number. Holdings and the Borrower agree not to effect or
permit any change referred to in the preceding sentence unless all filings have
been made under the Uniform Commercial Code or otherwise that are required in
order for the Collateral Agent to continue at all times following such change to
have a valid, legal and perfected security interest in all the Collateral.
(b) In the case of the Borrower, each year, at the time of delivery of the
annual financial statements with respect to the preceding fiscal year pursuant
to Section 5.04(a), deliver to the Administrative Agent a certificate of a
Financial Officer setting forth the information required pursuant to Section 2
of the Perfection Certificate or confirming that there has been no change in
such information since the date of the Perfection Certificate delivered on the
Closing Date or the date of the most recent certificate delivered pursuant to
this Section 5.06.
SECTION 5.07. MAINTAINING RECORDS; ACCESS TO PROPERTIES AND INSPECTIONS.
Keep proper books of record and account in which full, true and correct entries
in conformity with GAAP and all material requirements of law are made of all
dealings and transactions in relation to its business and activities. Each Loan
Party will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender to visit
and inspect the financial records and the properties of Holdings, the Borrower
or any Subsidiary at reasonable times and as often as reasonably requested and
to make extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent or any Lender to discuss
the affairs, finances and condition of Holdings, the Borrower or any Subsidiary
with the officers thereof and independent accountants therefor. Without limiting
the foregoing, Holdings and the Borrower agree to discuss their affairs,
finances and condition in conference calls with Lenders within one week after
the date of delivery of the financial statements required by Sections 5.04(a)
and (b) for the fiscal periods ending September 2001, December 2001 and March
2002, and at such times and at such intervals thereafter (but no more frequently
than on a quarterly basis within one week after the date of delivery of
financial statements required by Sections 5.04(a) and (b)) as shall be requested
in writing by the Administrative Agent or the Required Lenders.
SECTION 5.08. USE OF PROCEEDS. Use the proceeds of the Loans and request
the issuance of Letters of Credit only for the purposes set forth in the
preamble to this Agreement (or, in the case of the Incremental Term Loans, as
set forth in the applicable Incremental Term Loan Assumption Agreement).
SECTION 5.09. FURTHER ASSURANCES. Execute any and all further documents,
financing statements, agreements and instruments, and take all further action
(including filing Uniform Commercial Code and other financing statements) that
may be required under applicable law, or
66
that the Required Lenders, the Administrative Agent or the Collateral Agent may
reasonably request, in order to effectuate the transactions contemplated by the
Loan Documents and in order to grant, preserve, protect and perfect the validity
and priority of the security interests created or intended to be created by the
Security Documents. The Borrower will cause any subsequently acquired or
organized Domestic Subsidiary (other than an Inactive Subsidiary, a
Co-investment Subsidiary which is not a wholly owned Subsidiary, a Special
Co-investment Subsidiary or a JV Subsidiary), or any Domestic Subsidiary that
ceases to be an Inactive Subsidiary, a Special Co-investment Subsidiary or a JV
Subsidiary or that becomes a wholly owned Co-investment Subsidiary (other than a
Special Co-investment Subsidiary), to become party to the Collateral Agreement
and each other applicable Security Document in favor of the Collateral Agent. In
addition, from time to time, the Borrower will, at its cost and expense,
promptly secure the Obligations by pledging or creating, or causing to be
pledged or created, perfected security interests with respect to such of its
material assets and properties as the Administrative Agent or the Required
Lenders shall designate (it being understood that it is the intent of the
parties that the Obligations shall be secured by, among other things,
substantially all the assets of the Borrower and its Domestic Subsidiaries
(other than Inactive Subsidiaries, partially owned Co-investment Subsidiaries,
Special Co-investment Subsidiaries, JV Subsidiaries and any assets consisting of
Co-investment Vehicles) (including material real property, properties of the
types which constitute collateral under the Security Documents on the Closing
Date which are acquired subsequent to the Closing Date and such other property
that may be so pledged without imposing undue burden or cost on the Borrower and
its Subsidiaries)). Such security interests and Liens will be created under the
Security Documents and other security agreements and other instruments and
documents in form and substance reasonably satisfactory to the Collateral Agent,
and the Borrower shall deliver or cause to be delivered to the Lenders all such
instruments and documents (including legal opinions, title insurance policies
and lien searches) as the Collateral Agent shall reasonably request to evidence
compliance with this Section. In addition, within 15 days after the Closing
Date, Holdings and the Borrower shall deliver to the Administrative Agent the
documents contemplated by Section 4.02(h) with respect to the matters set forth
on Schedules 4.02(h), respectively, and such related documentation as the
Administrative Agent may reasonably request.
ARTICLE VI
NEGATIVE COVENANTS
Each of Holdings and the Borrower covenants and agrees with each Lender
that, so long as this Agreement shall remain in effect and until the
Commitments have been terminated and the principal of and interest on each
Loan, all Fees and all other expenses or amounts payable under any Loan
Document have been paid in full and all Letters of Credit have been cancelled
or have expired and all amounts drawn thereunder have been reimbursed in
full, unless the Required Lenders shall otherwise consent in writing, neither
Holdings nor the Borrower will, nor will they cause or permit any of the
Subsidiaries to:
SECTION 6.01. INDEBTEDNESS. Incur, create, assume or permit to exist any
Indebtedness, except:
67
(a) Indebtedness existing on the date hereof and set forth in Schedule
6.01 and any extensions, renewals or replacements of such Indebtedness to the
extent the principal amount of such Indebtedness is not increased, neither the
final maturity nor the weighted average life to maturity of such Indebtedness is
decreased, such Indebtedness, if subordinated to the Obligations, remains so
subordinated on terms no less favorable to the Lenders, and the obligors in
respect of such Indebtedness at the time of such refinancing remain the only
obligors thereon;
(b) Indebtedness created hereunder and under the other Loan Documents;
(c) intercompany Indebtedness of the Borrower and the Subsidiaries to the
extent permitted by Section 6.04(c);
(d) Indebtedness of the Borrower or any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets, and
extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof; PROVIDED that (i) such
Indebtedness is incurred prior to or within 90 days after such acquisition or
the completion of such construction or improvement and (ii) the aggregate
principal amount of Indebtedness permitted by this Section 6.01(d), when
combined with the aggregate principal amount of all Capital Lease Obligations
incurred pursuant to Section 6.01(e) shall not exceed $20,000,000 at any time
outstanding;
(e) Capital Lease Obligations in an aggregate principal amount, when
combined with the aggregate principal amount of all Indebtedness incurred
pursuant to Section 6.01(d), not in excess of $20,000,000 at any time
outstanding;
(f) Indebtedness under performance bonds or with respect to workers'
compensation claims, in each case incurred in the ordinary course of business;
(g) Melody Permitted Indebtedness;
(h) Indebtedness incurred by Foreign Subsidiaries for working capital in
an aggregate principal amount not exceeding $25,000,000 at any time outstanding,
up to $10,000,000 of which may be Guaranteed on an unsecured basis by the
Borrower and/or one or more Domestic Subsidiaries;
(i) Indebtedness of any Subsidiary that exists at the time such person
becomes a Subsidiary and that was not incurred in contemplation of or in
connection with the acquisition by the Borrower or a Subsidiary of such person,
in an aggregate principal amount not to exceed $10,000,000 at any time
outstanding;
(j) Guarantees by the Borrower or any Subsidiary of any Indebtedness
permitted under this Section 6.01; provided, however, that (i) no Indebtedness
of Holdings may be Guaranteed under this paragraph (j) and (ii) Indebtedness of
Foreign Subsidiaries may be Guaranteed by the Borrower and the Domestic
Subsidiaries only to the extent provided for in paragraph (h) above;
(k) Indebtedness in respect of the Additional L/C Facility in an aggregate
amount outstanding at any time not to exceed $10,000,000; and
68
(l) other unsecured Indebtedness of the Borrower or the Subsidiaries in an
aggregate principal amount not exceeding $30,000,000 at any time outstanding.
SECTION 6.02. LIENS. Create, incur, assume or permit to exist any Lien on
any property or assets (including Equity Interests or other securities of any
person, including any Subsidiary) now owned or hereafter acquired by it or on
any income or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its Subsidiaries
existing on the date hereof and set forth in Schedule 6.02; provided that such
Liens shall secure only those obligations which they secure on the date hereof
and extensions, renewals and replacements thereof permitted hereunder;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Subsidiary; PROVIDED that (i) such Lien is not
created in contemplation of or in connection with such acquisition, and (ii)
such Lien does not apply to any other property or assets of the Borrower or any
Subsidiary
(d) Liens for taxes, fees, assessments or other governmental charges not
yet due or which are being contested in compliance with Section 5.03;
(e) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business and securing
obligations that are not due and payable or which are being contested in
compliance with Section 5.03;
(f) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other social
security laws or regulations;
(g) deposits to secure the performance of bids, trade contracts (other
than for Indebtedness), leases (other than Capital Lease Obligations), statutory
obligations, surety and appeal bonds, performance bonds and other obligations of
a like nature incurred in the ordinary course of business;
(h) zoning restrictions, easements, rights-of-way, restrictions on use of
real property and other similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount and do not
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of the Borrower or any of its
Subsidiaries;
(i) purchase money security interests in real property, improvements
thereto or equipment hereafter acquired (or, in the case of improvements,
constructed) by the Borrower or any Subsidiary; PROVIDED that (i) such security
interests secure Indebtedness permitted by Section 6.01(d), (ii) such security
interests are incurred, and the Indebtedness secured thereby is created, within
90 days after such acquisition (or construction), (iii) the Indebtedness secured
thereby does not exceed 100% of the cost of such real property, improvements or
equipment at the time
69
of such acquisition (or construction) and (iv) such security interests do not
apply to any other property or assets of the Borrower or any Subsidiary;
(j) Liens arising out of judgments or awards in respect of which Holdings,
the Borrower or any of the Subsidiaries shall in good faith be prosecuting an
appeal or proceedings for review in respect of which there shall be secured a
subsisting stay of execution pending such appeal or proceedings; PROVIDED that
the aggregate amount of all such judgments or awards (and any cash and the fair
market value of any property subject to such Liens) does not exceed $7,500,000
at any time outstanding;
(k) Liens on assets of Foreign Subsidiaries; provided that (i) such Liens
do not extend to, or encumber, assets which constitute Collateral or the Equity
Interests of the Borrower or any of the Subsidiaries, and (ii) such Liens secure
only Indebtedness incurred by such Foreign Subsidiary pursuant to Section
6.01(h);
(l) Liens on investments made by Melody in connection with the Melody Loan
Arbitrage Facility or the Melody Mortgage Warehousing Facility to secure
Indebtedness under the Melody Loan Arbitrage Facility, if such investments were
acquired by Melody with the proceeds of such Indebtedness;
(m) Liens on commercial mortgage loans originated and owned by Melody or
any Mortgage Banking Subsidiary pursuant to the Melody Mortgage Warehousing
Facility;
(n) any Lien existing on any property or asset of any person that exists
at the time such person becomes a Subsidiary and that secured Indebtedness
permitted by Section 6.01(i); PROVIDED that (i) such Lien was not created in
contemplation of or in connection with such acquisition and (ii) such Lien does
not apply to any property or assets of the Borrower or any other Subsidiary;
(o) Liens arising solely by virtue of any statutory or common law
provision relating to bankers' liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided, that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Borrower or any Subsidiary in excess of those set forth by
regulations promulgated by the Board and (ii) such deposit account is not
intended by the Borrower or any Subsidiary to provide collateral to such
depository institution; and
(p) other Liens in respect of obligations (other than Indebtedness) on
property with a fair market value not in excess of $2,000,000.
SECTION 6.03. SALE AND LEASE-BACK TRANSACTIONS. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred unless (a) the sale of such
property is permitted by Section 6.05 and (b) any Capital Lease Obligations or
Liens arising in connection therewith are permitted by Sections 6.01 and 6.02,
respectively.
70
SECTION 6.04. INVESTMENTS, LOANS AND ADVANCES. Purchase, hold or acquire
any Equity Interests, evidences of indebtedness or other securities of, make or
permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person (other than investments in
insurance contracts pursuant to the Deferred Compensation Plan), except:
(a) (i) investments by Holdings, the Borrower and the Subsidiaries
existing on the date hereof in the Equity Interests of the Borrower and the
Subsidiaries and (ii) additional investments by Holdings, the Borrower and the
Subsidiaries in the Equity Interests of the Borrower and the Subsidiaries;
PROVIDED that (A) any such Equity Interests held by a Loan Party shall be
pledged pursuant to the Collateral Agreement (subject to the limitations
applicable to voting stock of a Foreign Subsidiary referred to in Section
4.02(f)) and (B) the aggregate amount of investments by Loan Parties in, and
loans and advances by Loan Parties to, Subsidiaries that are not Loan Parties
(other than investments in Co-investment Subsidiaries to implement
Co-investments pursuant to clause (i) below) shall not exceed at any time
outstanding the sum of (x) the aggregate amount of the investments, loans and
advances indicated on Schedule 6.04(a) and (y) $10,000,000;
(b) Permitted Investments;
(c) loans or advances made by the Borrower to any Subsidiary and made by
any Subsidiary to the Borrower or any other Subsidiary; PROVIDED that (i) any
such loans and advances made by a Loan Party shall be evidenced by a promissory
note pledged to the Collateral Agent for the ratable benefit of the Secured
Parties pursuant to the Collateral Agreement and (ii) the amount of such loans
and advances made by Loan Parties to Subsidiaries that are not Loan Parties
shall be subject to the limitation set forth in clause (a) above;
(d) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(e) the Borrower and the Subsidiaries may make loans and advances in the
ordinary course of business consistent with past practice to their respective
employees so long as the aggregate principal amount (determined without regard
to any write-downs or write-offs of such loans and advances, other than
write-downs or write-offs for which the total amount of such write-down or
write-off is included as a charge in Consolidated EBITDA) does not exceed
$15,000,000 in the aggregate outstanding at any time;
(f) the Borrower may enter into Hedging Agreements that are not
speculative in nature and are related to income derived from operations of the
Borrower or any Subsidiary or otherwise related to purchases from suppliers;
(g) the Borrower or any Subsidiary may acquire all or substantially all
the assets of a person or line of business of such person, or all or
substantially all of the Equity Interests of a person that as a result becomes a
wholly owned Subsidiary (referred to herein as the "Acquired Entity"); PROVIDED
that (i) such acquisition was not preceded by an unsolicited tender offer for
such Equity Interests by, or proxy contest initiated by, Holdings, the Borrower
or any Subsidiary;
71
(ii) the Acquired Entity shall be a going concern and shall be in a similar line
of business as that of the Borrower and the Subsidiaries as conducted during the
current and most recent calendar year; and (iii) at the time of such transaction
(A) both before and after giving effect thereto, no Event of Default or Default
shall have occurred and be continuing; (B) the Borrower would be in Pro Forma
Compliance, as evidenced by a certificate of a Financial Officer of the Borrower
which shall have been prepared in good faith and based on reasonably detailed
written assumptions; (C) after giving effect to such acquisition, there must be
at least $40,000,000 of unused and available Revolving Credit Commitments; and
(D) the aggregate consideration paid in connection with such acquisition and any
related acquisitions pursuant to this Section 6.04(g) (including any
Indebtedness of the Acquired Entity that is assumed by the Borrower or any
Subsidiary following such acquisition) shall not exceed (x) $20,000,000 for such
acquisition and (y) $60,000,000 for all such acquisitions pursuant to this
Section 6.04(g) (any acquisition of an Acquired Entity meeting all the criteria
of this Section 6.04(g) being referred to herein as a "Permitted Acquisition");
(h) investments made by Melody in connection with the Melody Loan
Arbitrage Facility or the Melody Mortgage Warehousing Facility;
(i) Co-investments (other than with respect to the Calpers Co-investment)
not to exceed $20,000,000 in any fiscal year of the Borrower and Co-investments
pursuant to the Calpers Co-investment not to exceed $26,000,000 in the aggregate
outstanding at any time; PROVIDED, HOWEVER, that the aggregate amount of
Co-investments in each fiscal year made in Co-investment Vehicles that are
organized in, or the principal real estate investments of which are located in,
countries that are not members of the Organization for Economic Co-operation and
Development, shall not exceed $5,000,000;
(j) investments to the extent consisting of noncash consideration received
in connection with a sale of assets permitted by Section 6.05;
(k) investments by Holdings, the Borrower and the Subsidiaries existing on
the Closing Date and listed on Schedule 6.04(k);
(l) extensions of credit in the nature of accounts receivable or notes
receivable arising from the sale or lease of goods and services in the ordinary
course of business; and
(m) in addition to investments permitted by paragraphs (a) through (l)
above, additional investments, loans and advances by the Borrower and the
Subsidiaries so long as the aggregate amount invested, loaned or advanced
pursuant to this paragraph (m) (determined without regard to any write-downs or
write-offs of such investments, loans and advances) does not exceed $25,000,000
in the aggregate outstanding at any time.
SECTION 6.05. MERGERS, CONSOLIDATIONS, SALES OF ASSETS AND ACQUISITIONS.
(a) Merge into or consolidate with any other person, or permit any other person
to merge into or consolidate with it, or sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of transactions) all or
substantially all the assets (whether now owned or hereafter acquired) of the
Borrower, or purchase, lease or otherwise acquire (in one transaction or a
series of transactions) all or any substantial part of the assets of any other
person, except that if at the time thereof and
72
immediately after giving effect thereto no Event of Default or Default shall
have occurred and be continuing (i) any wholly owned Subsidiary may merge into
the Borrower in a transaction in which the Borrower is the surviving
corporation, (ii) any wholly owned Subsidiary may merge into or consolidate with
any other wholly owned Subsidiary in a transaction in which the surviving entity
is a wholly owned Subsidiary and no person other than the Borrower or a wholly
owned Subsidiary receives any consideration (provided that if any party to any
such transaction is a Loan Party, the surviving entity of such transaction shall
be a Loan Party) and (z) the Borrower and the Subsidiaries may make Permitted
Acquisitions.
(b) Engage in any other Asset Sale except:
(i) (A) any such Asset Sale the consideration for which is at least
80% cash, (B) such consideration is at least equal to the fair market
value of the assets being sold, transferred, leased or disposed of, (C)
the fair market value of all assets sold, transferred, leased or disposed
of pursuant to this clause (i) (other than sales of Equity Interests by
Foreign Subsidiaries to investors) shall not exceed in any fiscal year the
sum of $5,000,000 plus, with respect to each fiscal year commencing on or
after January 1, 2002, the excess, if any, of $5,000,000 over the amount
of Asset Sales made by the Borrower and the Subsidiaries during the
preceding fiscal year and (D) sales of Equity Interests by Foreign
Subsidiaries to investors shall not exceed $10,000,000 in any fiscal year;
and
(ii) sales by the Borrower or the Subsidiaries of brokerage offices,
or transfers of the assets of brokerage offices and related assets, to
joint ventures in the ordinary course of business.
SECTION 6.06. RESTRICTED PAYMENTS; RESTRICTIVE AGREEMENTS. (a) Declare or
make, or agree to declare or make, directly or indirectly, any Restricted
Payment (including pursuant to any Synthetic Purchase Agreement), or incur any
obligation (contingent or otherwise) to do so; provided, however, that (i) any
Subsidiary may declare and pay dividends or make other distributions ratably to
its equity holders, (ii) so long as (x) no Event of Default shall have occurred
and be continuing and (y) the Borrower shall be in Pro Forma Compliance after
giving effect thereto, the Borrower may make Restricted Payments to Holdings in
the amounts and at the times necessary to enable Holdings to pay interest in
cash on the Holdco Notes, (iii) so long as no Event of Default or Default shall
have occurred and be continuing or would result therefrom, the Borrower may, or
the Borrower may make distributions to Holdings so that Holdings may, repurchase
its Equity Interests owned by employees of Holdings, the Borrower or the
Subsidiaries or make payments to employees of Holdings, the Borrower or the
Subsidiaries upon termination of employment in connection with the exercise of
stock options, stock appreciation rights or similar equity incentives or equity
based incentives pursuant to management incentive plans or in connection with
the death or disability of such employees in an aggregate amount (excluding any
amount of any such repurchase paid for with the cancellation of Indebtedness of
such employee to the Borrower or Holdings, as the case may be) not to exceed
$3,000,000 in any fiscal year, (iv) the Borrower may, or the Borrower may make
distributions to Holdings, so that Holdings may, repurchase or redeem shares of
its Equity Interests pursuant to the Borrower's 401(k) plan as in effect on the
Closing Date and to the extent required by law, (v) so long as no Event of
Default shall have occurred and be continuing or would result therefrom, the
Borrower may, or the Borrower may make distributions to
73
Holdings, so the Holdings may, repurchase or redeem shares (including any
repurchase or redemption paid for with the cancellation of Indebtedness of the
applicable employee to the Borrower or Holdings, as the case may be) of its
Equity Interests issued or granted by Holdings to employees (including
substantially full-time independent contractors) and held by such employees in
an aggregate amount not to exceed $2,500,000 during any fiscal year of the
Borrower, provided that any such purchases or redemptions paid for with the
cancellation of Indebtedness of employees to the Borrower or Holdings, as the
case may be, shall not be limited in amount, (vi) the Borrower may make
Restricted Payments to Holdings (x) in an amount not to exceed $500,000 in any
fiscal year, to the extent necessary to pay actual out-of-pocket general
corporate and overhead expenses incurred by Holdings in the ordinary course of
business and (y) in an amount necessary to pay Tax liabilities directly
attributable to (or arising as a result of) the Borrower and the Subsidiaries,
(vii) Holdings may issue common stock of Holdings in exchange for stock fund
units in the Deferred Compensation Plan pursuant to the Deferred Compensation
Plan and (viii) to the extent the Cash Equity Contribution exceeds $98,800,000
then on or prior to August 31, 2001, Holdings may redeem its Equity Interests
from RCBA and other stockholders party to a securityholders agreement with RCBA
entered into on or prior to the Closing Date in an amount not greater than the
Net Cash Proceeds received by Holdings after the Closing Date and prior to
August 3, 2001 from Equity Issuances pursuant to the Employee Offering
Registration Statement to the extent such Net Cash Proceeds were not included in
calculating the Cash Equity Contribution. Notwithstanding the foregoing, all
Restricted Payments made to Holdings pursuant to clause (ii), (v) or (vi) above
will be used by Holdings for the purposes specified herein within 10 Business
Days of the receipt thereof or returned to the Borrower.
(b) Enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (i) the
ability of Holdings, the Borrower or any Subsidiary to create, incur or permit
to exist any Lien upon any of its property or assets, or (ii) the ability of any
Subsidiary to pay dividends or other distributions with respect to any of its
Equity Interests or to make or repay loans or advances to the Borrower or any
other Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary; PROVIDED that (A) the foregoing shall not apply to restrictions and
conditions imposed by law or by any Loan Document or Senior Subordinated Note
Document, (B) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, PROVIDED such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (C) the
foregoing shall not apply to restrictions and conditions imposed on any Foreign
Subsidiary by the terms of any Indebtedness of such Foreign Subsidiary permitted
to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness, (E) the
foregoing shall not apply to restrictions and conditions existing on the date
hereof and identified on Schedule 6.06(b), (F) the foregoing shall not apply to
customary restrictions on or customary conditions to the payment of dividends or
other distributions on, or the creation of Liens on, Equity Interests owned by
the Borrower or any Subsidiary in any joint venture or similar enterprise that
is not a Subsidiary contained in the constitutive documents of such joint
venture or enterprise, and (G) clause (i) of the foregoing shall not apply to
customary provisions in leases and other contracts restricting the assignment
thereof.
74
SECTION 6.07. TRANSACTIONS WITH AFFILIATES. Except for transactions by or
among Loan Parties, sell or transfer any property or assets to, or purchase or
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except that (x) the Borrower or any
Subsidiary may engage in any of the foregoing transactions at prices and on
terms and conditions not less favorable to the Borrower or such Subsidiary than
could be obtained on an arm's-length basis from unrelated third parties, (y) on
or prior to October 1, 2001, Holdings and the Borrower may pay fees in
connection with the Transactions in the aggregate amount not to exceed
$5,000,000 to the Sponsors or their Affiliates and (z) Holdings and/or the
Borrower, as applicable, may enter into, and perform their obligations under,
the Transaction Documents.
SECTION 6.08. BUSINESS OF HOLDINGS, BORROWER AND SUBSIDIARIES. (a) With
respect to Holdings, engage in any business activities or have any assets or
liabilities other than (i) its ownership of the Equity Interests of the Borrower
and liabilities incidental thereto, including its liabilities pursuant to the
Collateral Agreement, and (ii) its liabilities pursuant to the Holdco Note
Documents and the Senior Subordinated Note Documents.
(b) With respect to the Borrower and its Subsidiaries, engage at any time
in any business or business activity other than the business currently conducted
by the Borrower or any of the Subsidiaries and business activities reasonably
incidental thereto.
SECTION 6.09. OTHER INDEBTEDNESS AND AGREEMENTS. (a) (i) Permit any
waiver, supplement, modification, amendment, termination or release of any
indenture, instrument or agreement pursuant to which any Material Indebtedness
of Holdings, the Borrower or any of the Subsidiaries is outstanding if the
effect of such waiver, supplement, modification, amendment, termination or
release would materially increase the obligations of the obligor or confer
additional material rights on the holder of such Indebtedness in a manner
adverse to Holdings, the Borrower, any of the Subsidiaries or the Lenders or
(ii) modify its charter or by-laws to the extent that any such modification
would be adverse to the Lenders in any material respect.
(b) (i) Make any distribution, whether in cash, property, securities or a
combination thereof, other than regular scheduled payments of principal and
interest as and when due (to the extent not prohibited by applicable
subordination provisions), in respect of, or pay, or offer or commit to pay, or
directly or indirectly (including pursuant to any Synthetic Purchase Agreement)
redeem, repurchase, retire or otherwise acquire for consideration, or set apart
any sum for the aforesaid purposes, the Holdco Notes or any subordinated
Indebtedness, or (ii) pay in cash any amount in respect of any Indebtedness
(other than the Holdco Notes, to the extent permitted by Section 6.06(a)) or
preferred Equity Interests that may at the obligor's option be paid in kind or
in other securities.
SECTION 6.10. CAPITAL EXPENDITURES. Permit the aggregate amount of Capital
Expenditures made by the Borrower and the Subsidiaries in any year to exceed
$30,000,000. The amount of permitted Capital Expenditures set forth above in
respect of any fiscal year commencing with the fiscal year ending on December
31, 2002, shall be increased (but not decreased) by (a) the amount of unused
permitted Capital Expenditures for the immediately preceding fiscal year less
(b) an amount equal to unused Capital Expenditures carried forward to such
preceding fiscal year.
75
SECTION 6.11. INTEREST COVERAGE RATIO. Permit the Interest Coverage Ratio
for any period of four consecutive fiscal quarters, in each case taken as one
accounting period, ending on the last day of any fiscal quarter during any
period set forth below to be less than the ratio set forth opposite such period
below:
DATE OR PERIOD RATIO
-------------- -----
September 30, 2001 through December 31, 2002 2.50:1.0
March 31, 2003 and thereafter 2.75:1.0
SECTION 6.12. FIXED CHARGE COVERAGE RATIO. Permit the Fixed Charge
Coverage Ratio for any period of four consecutive fiscal quarters, in each case
taken as one accounting period, ending on the last day of any fiscal quarter
during any period set forth below to be the less than the ratio set forth
opposite such date or period below:
DATE OR PERIOD RATIO
-------------- -----
September 30, 2001 through March 31, 2002 1.50:1.0
June 30, 2002 through December 31, 2002 1.75:1.0
March 31, 2003 through June 30, 2003 2.00:1.0
September 30, 2003 through December 31, 2003 2.25:1.0
March 31, 2004 and thereafter 2.50:1.0
SECTION 6.13. MAXIMUM LEVERAGE RATIO. Permit the Leverage Ratio on the
last day of any fiscal quarter during any period set forth below to be greater
than the ratio set forth opposite such date or period below:
PERIOD RATIO
------ -----
September 30, 2001 through December 31, 2001 3.50:1.0
March 31, 2002 through June 30, 2002 4.00:1.0
September 30, 2002 3.75:1.0
December 31, 2002 3.00:1.0
March 31, 2003 through June 30, 2003 3.50:1.0
September 30, 2003 3.00:1.0
December 31, 2003 2.50:1.0
March 31, 2004 through June 30, 2004 3.00:1.0
September 30, 2004 and thereafter 2.25:1.0
SECTION 6.14. MAXIMUM SENIOR LEVERAGE RATIO. Permit the Senior Leverage
Ratio on the last day of any fiscal quarter during any period set forth below to
be greater than the ratio set forth opposite such date or period below:
PERIOD RATIO
------ -----
September 30, 2001 2.50:1.0
December 31, 2001 2.00:1.0
March 31, 2002 through June 30, 2002 2.50:1.0
September 30, 2002 2.00:1.0
December 31, 2002 1.50:1.0
March 31, 2003 through June 30, 2003 2.00:1.0
76
PERIOD RATIO
------ -----
September 30, 2003 1.50:1.0
December 31, 2003 and thereafter 1.25:1.0
SECTION 6.15. FISCAL YEAR. With respect to Holdings and the Borrower,
change their fiscal year-end to a date other than December 31.
SECTION 6.16. MANAGEMENT FEES. With respect to Holdings and the Borrower,
pay or agree to pay to any Sponsor any management fees, transaction fees or
similar charges, other than fees in connection with the Transactions in the
aggregate amount not to exceed $5,000,000 payable to the Sponsors or their
Affiliates on or prior to October 1, 2001.
SECTION 6.17. INDEBTEDNESS OF CO-INVESTMENT SUBSIDIARIES. (a) Incur,
create, assume or permit to exist any Indebtedness of any Co-investment
Subsidiary; or (b) permit any JV Subsidiary to incur, create, assume or permit
to exist any Indebtedness of such JV Subsidiary in an aggregate amount
outstanding at any time not to exceed $2,000,000; PROVIDED that the debt
permitted pursuant to this clause (b) shall not be in addition to any
Indebtedness permitted to be incurred, created, assumed or permitted to exist
pursuant to Section 6.01.
ARTICLE VII
EVENTS OF DEFAULT
In case of the happening of any of the following events ("EVENTS OF
DEFAULT"):
(a) any representation or warranty made or deemed made in or in connection
with any Loan Document or the borrowings or issuances of Letters of Credit
hereunder, or any representation, warranty, statement or information contained
in any report, certificate, financial statement or other instrument furnished in
connection with or pursuant to any Loan Document, shall prove to have been false
or misleading in any material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any Loan or
the reimbursement with respect to any L/C Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or
L/C Disbursement or any Fee or any other amount (other than an amount referred
to in (b) above) due under any Loan Document, when and as the same shall become
due and payable, and such default shall continue unremedied for a period of
three Business Days;
(d) default shall be made in the due observance or performance by
Holdings, the Borrower or any Subsidiary of any covenant, condition or agreement
contained in Section 2.13(i), 5.01(a), 5.05(a) or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by
Holdings, the Borrower or any Subsidiary of any covenant, condition or agreement
contained in any Loan
77
Document (other than those specified in (b), (c) or (d) above) and such default
shall continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent or any Lender to the Borrower;
(f) (i) Holdings, the Borrower or any Subsidiary shall fail to pay any
principal or interest, regardless of amount, due in respect of any Material
Indebtedness, when and as the same shall become due and payable, or (ii) any
other event or condition occurs that results in any Material Indebtedness
becoming due prior to its scheduled maturity or that enables or permits (with or
without the giving of notice, the lapse of time or both) the holder or holders
of any Material Indebtedness or any trustee or agent on its or their behalf to
cause any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (ii) shall not apply to (x) secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness and (y) Indebtedness existing on the Closing
Date which by its terms provides for an option by the payee thereof to require
repayment prior to the scheduled maturity thereof;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of Holdings, the Borrower or any Subsidiary, or of a substantial part
of the property or assets of Holdings, the Borrower or a Subsidiary, under Title
11 of the United States Code, as now constituted or hereafter amended, or any
other Federal, state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any Subsidiary or
for a substantial part of the property or assets of Holdings, the Borrower or a
Subsidiary or (iii) the winding-up or liquidation of Holdings, the Borrower or
any Subsidiary; and such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the foregoing shall
be entered;
(h) Holdings, the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11 of
the United States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described in
(g) above, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings, the
Borrower or any Subsidiary or for a substantial part of the property or assets
of Holdings, the Borrower or any Subsidiary, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its debts as they become
due or (vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate amount
in excess of $7,500,000 shall be rendered against Holdings, the Borrower, any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to levy upon
assets or properties of Holdings, the Borrower or any Subsidiary to enforce any
such judgment;
78
(j) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other such ERISA Events, could
reasonably be expected to result in a Material Adverse Effect;
(k) any Guarantee under the Collateral Agreement for any reason shall
cease to be in full force and effect (other than in accordance with its terms),
or any Guarantor shall deny in writing that it has any further liability under
the Collateral Agreement (other than as a result of the discharge of such
Guarantor in accordance with the terms of the Loan Documents);
(l) any security interest purported to be created by any Security Document
shall cease to be, or shall be asserted by the Borrower or any other Loan Party
not to be, a valid, perfected, first priority (except as otherwise expressly
provided in this Agreement or such Security Document) security interest in the
securities, assets or properties covered thereby, except to the extent that any
such loss of perfection or priority results from (i) the sale or other
disposition of the applicable Collateral in a transaction permitted by any Loan
Document, (ii) any action taken by the Collateral Agent to release any such Lien
in compliance with the provisions of this Agreement or any other Loan Document,
(iii) the Collateral Agent's failure to properly file (A) Uniform Commercial
Code financing statements or comparable filings delivered to it for filing under
the Security Documents or (B) Uniform Commercial Code continuation statements or
comparable filings necessary to maintain perfection or (iv) the failure of the
Collateral Agent to maintain possession of certificates representing securities
pledged and delivered to it under the Collateral Agreement;
(m) any of the Obligations shall cease to constitute "Senior Indebtedness"
under and as defined in the Senior Subordinated Note Indenture; or
(n) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to Holdings
or the Borrower described in paragraph (g) or (h) above), and at any time
thereafter during the continuance of such event, the Administrative Agent
may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or
different times: (i) terminate forthwith the Commitments and (ii) declare
the Loans then outstanding to be forthwith due and payable in whole or in
part, whereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and any unpaid accrued Fees and all
other liabilities of the Borrower accrued hereunder and under any other Loan
Document, shall become forthwith due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein or in any other
Loan Document to the contrary notwithstanding; and in any event with respect
to Holdings or the Borrower described in paragraph (g) or (h) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued
Fees and all other liabilities of the Borrower accrued hereunder and under
any other Loan Document, shall automatically become due and payable, without
presentment, demand, protest or any other notice of any kind, all of which
are hereby expressly waived by the Borrower, anything contained herein or in
any other Loan Document to the contrary notwithstanding.
79
ARTICLE VIII
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent and the Collateral Agent (for purposes of this
Article VIII, the Administrative Agent and the Collateral Agent are referred
to collectively as the "Agents") its agent and authorizes the Agents to take
such actions on its behalf and to exercise such powers as are delegated to
such Agent by the terms of the Loan Documents, together with such actions and
powers as are reasonably incidental thereto. Without limiting the generality
of the foregoing, the Agents are hereby expressly authorized to execute any
and all documents (including releases) with respect to the Collateral and the
rights of the Secured Parties with respect thereto, as contemplated by and in
accordance with the provisions of this Agreement and the Security Documents.
The bank serving as the Administrative Agent and/or the Collateral
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not an
Agent, and such bank and its Affiliates may accept deposits from, lend money
to and generally engage in any kind of business with Holdings, the Borrower
or any Subsidiary or other Affiliate thereof as if it were not an Agent
hereunder.
Neither Agent shall have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality
of the foregoing, (a) neither Agent shall be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) neither Agent shall have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby that such Agent is required to exercise
in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.08), and (c) except as expressly set forth in the Loan Documents, neither
Agent shall have any duty to disclose, nor shall it be liable for the failure
to disclose, any information relating to Holdings, the Borrower or any of the
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent and/or Collateral Agent or any of its Affiliates in any
capacity. Neither Agent shall be liable for any action taken or not taken by
it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.08) or in the absence of its own gross
negligence or wilful misconduct. Neither Agent shall be deemed to have
knowledge of any Default unless and until written notice thereof is given to
such Agent by Holdings, the Borrower or a Lender, and neither Agent shall be
responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions
set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt
of items expressly required to be delivered to such Agent.
80
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper person. Each Agent may also
rely upon any statement made to it orally or by telephone and believed by it
to have been made by the proper person, and shall not incur any liability for
relying thereon. Each Agent may consult with legal counsel (who may be
counsel for the Borrower), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by it. Each
Agent and any such sub-agent may perform any and all its duties and exercise
its rights and powers by or through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of each Agent and any such sub-agent,
and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as
activities as Agent.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders,
the Issuing Bank and the Borrower. Upon any such resignation, the Required
Lenders shall have the right, in consultation with the Borrower and, unless
an Event of Default shall have occurred and be continuing, with the consent
of the Borrower (which shall not be unreasonably withheld), to appoint a
successor. If no successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders and the Issuing Bank, appoint a successor Agent
which shall be a bank with an office in New York, New York, or an Affiliate
of any such bank. Upon the acceptance of its appointment as Agent hereunder
by a successor, such successor shall succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Agent shall be
the same as those payable to its predecessor unless otherwise agreed between
the Borrower and such successor. After an Agent's resignation hereunder, the
provisions of this Article and Section 9.05 shall continue in effect for the
benefit of such retiring Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while acting as Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender
and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Agreement or any other Loan Document, any
related agreement or any document furnished hereunder or thereunder.
81
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by fax, as
follows:
(a) if to the Borrower or Holdings, to it at CB Xxxxxxx Xxxxx Services,
Inc., 000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xx Xxxxxxx, XX 00000-0000, Attention of
Chief Financial Officer (Fax No. (000) 000-0000) and at CB Xxxxxxx Xxxxx
Services, Inc., 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000,
Attention of General Counsel (Fax No. (000) 000-0000);
(b) if to the Administrative Agent, to Credit Suisse First Boston, Eleven
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention of Syndicated Finance/Agency
Department Manager (Fax No. (000) 000-0000, with a copy to Credit Suisse First
Boston, at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention of Xxxx X.
Xxxxxxx (Fax No. (000) 000-0000); and
(c) if to a Lender, to it at its address (or fax number or e-mail address)
set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to which
such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier
service or sent by fax or on the date five Business Days after dispatch by
certified or registered mail if mailed, in each case delivered, sent or
mailed (properly addressed) to such party as provided in this Section 9.01 or
in accordance with the latest unrevoked direction from such party given in
accordance with this Section 9.01.
SECTION 9.02. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Borrower or Holdings herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Bank and shall survive the
making by the Lenders of the Loans and the issuance of Letters of Credit by the
Issuing Bank, regardless of any investigation made by the Lenders or the Issuing
Bank or on their behalf, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any Fee or any other
amount payable under this Agreement or any other Loan Document is outstanding
and unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not been terminated. The provisions of Sections 2.14, 2.16, 2.20 and 9.05
shall remain operative and in full force and effect regardless of the expiration
of the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the expiration of the Commitments,
the expiration of any Letter of Credit, the invalidity or unenforceability of
any term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the Collateral
Agent, any Lender or the Issuing Bank.
82
SECTION 9.03. BINDING EFFECT. This Agreement shall become effective when
it shall have been executed by the Borrower, Holdings and the Administrative
Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties
hereto.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the permitted successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the Borrower, Holdings, the Administrative
Agent, the Collateral Agent, the Issuing Bank or the Lenders that are contained
in this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate or Related Fund of a Lender which does not result in any increased
costs or other additional amounts being paid by the Borrower, (x) the Borrower
and the Administrative Agent (and, in the case of any assignment of a Revolving
Credit Commitment, the Issuing Bank and the Swingline Lender) must give their
prior written consent to such assignment (which consent shall not be
unreasonably withheld); PROVIDED, HOWEVER, that the consent of the Borrower
shall not be required to any such assignment during the continuance of any Event
of Default, and (y) the amount of the Commitment of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $1,000,000 (or, if less, the entire remaining amount of such
Lender's Commitment), (ii) subject to paragraph (l) below, the parties to each
such assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500, and (iii) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire. Upon acceptance and
recording pursuant to paragraph (e) of this Section 9.04, from and after the
effective date specified in each Assignment and Acceptance, (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.16,
2.20 and 9.05, as well as to any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Term Loan Commitment and Revolving Credit Commitment, and the outstanding
balances of its Term Loans and Revolving Loans, in each case without giving
effect to assignments thereof which have not become effective, are as set forth
in such Assignment and Acceptance, (ii) except as set forth in (i) above, such
assigning Lender makes no representation
83
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto, or the financial condition of the Holdings,
the Borrower or any Subsidiary or the performance or observance by Holdings, the
Borrower or any Subsidiary of any of its obligations under this Agreement, any
other Loan Document or any other instrument or document furnished pursuant
hereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the most recent financial statements referred to in Section 3.05(a) or delivered
pursuant to Section 5.04 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, the Collateral Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (vi) such assignee appoints
and authorizes the Administrative Agent and the Collateral Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Administrative Agent and the Collateral Agent,
respectively, by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in The City of New York a copy of
each Assignment and Acceptance delivered to it (and shall promptly provide the
Borrower with a copy thereof) and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
"REGISTER"). The entries in the Register shall be conclusive and the Borrower,
the Administrative Agent, the Issuing Bank, the Collateral Agent and the Lenders
may treat each person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, the Issuing Bank, the Collateral Agent and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
(including any tax documentation required therein) completed in respect of the
assignee (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) above, if any, and,
if required, the written consent of the Borrower, the Swingline Lender, the
Issuing Bank and the Administrative Agent to such assignment, the Administrative
Agent shall (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower, the Issuing Bank and the Swingline Lender. No
assignment shall be effective unless it has been recorded in the Register as
provided in this paragraph (e), and it shall be the sole responsibility of each
assignee to confirm such recordation.
84
(f) Each Lender may without the consent of the Borrower, the Swingline
Lender, the Issuing Bank or the Administrative Agent sell participations to one
or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); PROVIDED, HOWEVER, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.14, 2.16 and 2.20 to the same extent as if they were Lenders (but, with
respect to any particular participant, to no greater extent than the Lender that
sold the participation to such participant and solely to the extent that such
participant agrees to comply with the requirements of Section 2.20(f) as though
it were a Lender) and (iv) the Borrower, the Administrative Agent, the Issuing
Bank and the Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement,
and such Lender shall retain the sole right to enforce the obligations of the
Borrower relating to the Loans or L/C Disbursements and to approve any
amendment, modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing any fees payable hereunder or
the amount of principal of or the rate at which interest is payable on the
Loans, extending any scheduled principal payment date or date fixed for the
payment of interest on the Loans, increasing or extending the Commitments or
releasing any Guarantor or all or any substantial part of the Collateral).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; PROVIDED that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.16.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to secure extensions of credit to such Lender or in support
of obligations owed by such Lender; PROVIDED that no such assignment shall
release a Lender from any of its obligations hereunder or substitute any such
assignee for such Lender as a party hereto.
(i) Notwithstanding anything to the contrary contained herein, any Lender
(a "GRANTING LENDER") may grant to a special purpose funding vehicle (an "SPC"),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower all
or any part of any Loan that such Granting Lender would otherwise be obligated
to make to the Borrower pursuant to this Agreement; PROVIDED that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan and (ii) if an
SPC elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment
85
obligation under this Agreement (all liability for which shall remain with the
Granting Lender). In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPC, it will
not institute against, or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section
9.04, any SPC may (i) with notice to, but without the prior written consent of,
the Borrower and the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to the Granting
Lender or to any financial institutions (consented to by the Borrower and
Administrative Agent) providing liquidity and/or credit support to or for the
account of such SPC to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPC, subject to an
agreement to preserve the confidentiality of such non-public information.
(j) Neither Holdings nor the Borrower shall assign or delegate any of its
rights or duties hereunder without the prior written consent of the
Administrative Agent, the Issuing Bank and each Lender, and any attempted
assignment without such consent shall be null and void.
(k) In the event that Standard & Poor's Ratings Service, Xxxxx'x Investors
Service, Inc., and Xxxxxxxx'x Bank Watch (or Insurance Watch Ratings Service, in
the case of Lenders that are insurance companies (or Best's Insurance Reports,
if such insurance company is not rated by Insurance Watch Ratings Service))
shall, after the date that any Lender becomes a Revolving Credit Lender,
downgrade the long-term certificate of deposit ratings of such Lender, and the
resulting ratings shall be below BBB-, Baa3 and C (or BB, in the case of a
Lender that is an insurance company (or B, in the case of an insurance company
not rated by Insurance Watch Ratings Service)), then the Issuing Bank shall have
the right, but not the obligation, at its own expense, upon notice to such
Lender and the Administrative Agent, to replace (or to request the Borrower to
use its reasonable efforts to replace) such Lender with an assignee (in
accordance with and subject to the restrictions contained in paragraph (b)
above), and such Lender hereby agrees to transfer and assign without recourse
(in accordance with and subject to the restrictions contained in paragraph (b)
above) all its interests, rights and obligations in respect of its Revolving
Credit Commitment to such assignee; PROVIDED, HOWEVER, that (i) no such
assignment shall conflict with any law, rule and regulation or order of any
Governmental Authority and (ii) the Issuing Bank or such assignee, as the case
may be, shall pay to such Lender in immediately available funds on the date of
such assignment the principal of and interest accrued to the date of payment on
the Loans made by such Lender hereunder and all other amounts accrued for such
Lender's account or owed to it hereunder.
(l) Notwithstanding the foregoing, the processing and recordation fee
payable to the Administrative Agent pursuant to paragraph (b) above shall be
waived in connection with any assignment made to either (i) a person that is not
a bank, an investment bank or an Affiliate of a bank or an investment bank or
(ii) a bank, an investment bank or an Affiliate of a bank or an investment bank
(a "FINANCIAL INSTITUTION") which has, to the satisfaction of the Administrative
Agent, announced and adopted a general policy that (x) is in effect on the date
of the proposed
86
assignment, (y) is binding on such Financial Institution, and (z) provides that
such Financial Institution has agreed to waive its rights to receive all similar
processing, recordation or assignment fees which would be payable as a result of
an assignment by any person of any commitments, loans or other extensions of
credit under a syndicated leveraged credit facility.
SECTION 9.05. EXPENSES; INDEMNITY. (a) The Borrower and Holdings agree,
jointly and severally, to pay all reasonable out-of-pocket expenses incurred by
the Administrative Agent, the Collateral Agent, the Issuing Bank and the
Swingline Lender in connection with the syndication of the credit facilities
provided for herein and the preparation and administration of this Agreement and
the other Loan Documents or in connection with any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
hereby or thereby contemplated shall be consummated) or incurred by the
Administrative Agent, the Collateral Agent or any Lender in connection with the
enforcement or protection of its rights in connection with this Agreement and
the other Loan Documents or in connection with the Loans made or Letters of
Credit issued hereunder, including the reasonable fees, charges and
disbursements of Cravath, Swaine & Xxxxx, counsel for the Administrative Agent
and the Collateral Agent, and, in connection with any such enforcement or
protection, the reasonable fees, charges and disbursements of any other counsel
for the Administrative Agent, the Collateral Agent or any Lender.
(b) The Borrower and Holdings agree, jointly and severally, to indemnify
the Administrative Agent, the Collateral Agent, each Lender, the Issuing Bank
and each Related Party of any of the foregoing persons (each such person being
called an "INDEMNITEE") against, and to hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses (other than
Excluded Taxes), including reasonable counsel fees, charges and disbursements,
incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations
thereunder or the consummation of the Transactions and the other transactions
contemplated thereby, (ii) the use of the proceeds of the Loans or issuance of
Letters of Credit, (iii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a party
thereto, or (iv) any actual or alleged presence or Release of Hazardous
Materials on any property owned or operated by the Borrower or any of the
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or the Subsidiaries; PROVIDED that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) To the extent that Holdings and the Borrower fail to pay any amount
required to be paid by them to the Administrative Agent, the Collateral Agent,
the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the
Collateral Agent, the Issuing Bank or the Swingline Lender, as the case may be,
such Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
PROVIDED that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, the Collateral Agent,
87
the Issuing Bank or the Swingline Lender in its capacity as such. For purposes
hereof, a Lender's "pro rata share" shall be determined based upon its share of
the sum of the Aggregate Revolving Credit Exposure, outstanding Term Loans and
unused Commitments at the time.
(d) To the extent permitted by applicable law, neither Holdings nor the
Borrower shall assert, and each hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or Letter of Credit or the use
of the proceeds thereof.
(e) The provisions of this Section 9.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the expiration of the Commitments, the expiration of any Letter of
Credit, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on behalf
of the Administrative Agent, the Collateral Agent, any Lender or the Issuing
Bank. All amounts due under this Section 9.05 shall be payable on written demand
therefor.
SECTION 9.06. RIGHT OF SETOFF. If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time to
time, except to the extent prohibited by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower or Holdings against any of and all the
obligations of the Borrower or Holdings now or hereafter existing under this
Agreement and other Loan Documents (to the extent such obligations of Holdings
or the Borrower are then due and payable (by acceleration or otherwise)) held by
such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement or such other Loan Document and although such
obligations may be unmatured. The rights of each Lender under this Section 9.06
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.07. APPLICABLE LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE
DATE SUCH LETTER OF CREDIT WAS ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE
(THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS,
THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. WAIVERS; AMENDMENT. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank in
exercising any power or right
88
hereunder or under any other Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the
Collateral Agent, the Issuing Bank and the Lenders hereunder and under the other
Loan Documents are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or
any other Loan Document or consent to any departure by the Borrower or any other
Loan Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on the Borrower or Holdings in any case shall entitle the
Borrower or Holdings to any other or further notice or demand in similar or
other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower, Holdings and the Required Lenders; PROVIDED, HOWEVER, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan or any date for reimbursement of an L/C Disbursement,
or waive or excuse any such payment or any part thereof, or decrease the rate of
interest on any Loan or L/C Disbursement, without the prior written consent of
each Lender affected thereby, (ii) increase or extend the Commitment or decrease
or extend the date for payment of any Fees of any Lender without the prior
written consent of such Lender, (iii) amend or modify the pro rata requirements
of Section 2.17, the provisions of Section 9.04(j) or the provisions of this
Section, or release any Guarantor or all or substantially all of the Collateral,
without the prior written consent of each Lender, (iv) change the provisions of
any Loan Document in a manner that by its terms adversely affects the rights in
respect of payments due to Lenders holding Loans of one Class differently from
the rights of Lenders holding Loans of any other Class without the prior written
consent of Lenders holding a majority in interest of the outstanding Loans and
unused Commitments of each adversely affected Class, (v) change the rights of
Lenders holding Tranche B Term Loans to reject prepayments under Section 2.13(h)
without the prior written consent of the Lenders holding a majority of the
aggregate outstanding principal amount of the Tranche B Term Loans, (vi) modify
the protections afforded to an SPC pursuant to the provisions of Section 9.04(i)
without the written consent of such SPC or (vii) reduce the percentage contained
in the definition of the term "Required Lenders" without the consent of each
Lender affected thereby (it being understood that with the consent of the
Required Lenders, additional extensions of credit pursuant to this Agreement may
be included in the determination of the Required Lenders on substantially the
same basis as the Term Loan Commitments and Revolving Credit Commitments are
included on the date hereof); PROVIDED FURTHER that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender hereunder
or under any other Loan Document without the prior written consent of the
Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline
Lender, as the case may be.
SECTION 9.09. INTEREST RATE LIMITATION. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in such L/C
Disbursement under applicable law (collectively the
89
"CHARGES"), shall exceed the maximum lawful rate (the "MAXIMUM RATE") which may
be contracted for, charged, taken, received or reserved by the Lender holding
such Loan or participation in accordance with applicable law, the rate of
interest payable in respect of such Loan or participation hereunder, together
with all Charges payable in respect thereof, shall be limited to the Maximum
Rate and, to the extent lawful, the interest and Charges that would have been
payable in respect of such Loan or participation but were not payable as a
result of the operation of this Section 9.09 shall be cumulated and the interest
and Charges payable to such Lender in respect of other Loans or participations
or periods shall be increased (but not above the Maximum Rate therefor) until
such cumulated amount, together with interest thereon at the Federal Funds
Effective Rate to the date of repayment, shall have been received by such
Lender.
SECTION 9.10. ENTIRE AGREEMENT. This Agreement, the Fee Letter dated
February 23, 2001, as amended, between Merger Sub and the Administrative Agent,
and the other Loan Documents constitute the entire contract between the parties
relative to the subject matter hereof. Any other previous agreement among the
parties with respect to the subject matter hereof is superseded by this
Agreement and the other Loan Documents. Nothing in this Agreement or in the
other Loan Documents, expressed or implied, is intended to confer upon any
person (other than the parties hereto and thereto, their respective successors
and assigns permitted hereunder (including any Affiliate of the Issuing Bank
that issues any Letter of Credit) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Collateral
Agent, the Issuing Bank and the Lenders) any rights, remedies, obligations or
liabilities under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. SEVERABILITY. In the event any one or more of the provisions
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
90
SECTION 9.13. COUNTERPARTS. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original but all of which when taken together shall constitute a
single contract, and shall become effective as provided in Section 9.03.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each of
Holdings and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, the Collateral Agent, the Issuing Bank or
any Lender may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against the Borrower, Holdings or their
respective properties in the courts of any jurisdiction.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.16. CONFIDENTIALITY. Each of the Administrative Agent, the
Collateral Agent, the Issuing Bank and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' officers, directors, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested or required by any
regulatory authority or quasi-regulatory authority (such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
91
(d) in connection with the exercise of any remedies hereunder or under the other
Loan Documents or any suit, action or proceeding relating to the enforcement of
its rights hereunder or thereunder, (e) subject to an agreement containing
provisions substantially the same as those of this Section 9.16, to (i) any
actual or prospective assignee of or participant in any of its rights or
obligations under this Agreement and the other Loan Documents or (ii) any actual
or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower or any Subsidiary or any of their
respective obligations, (f) with the consent of the Borrower, (g) to any
nationally recognized rating agency that requires access to information about a
Lender's investment portfolio in connection with ratings issued with respect to
such Lender or (h) to the extent such Information becomes publicly available
other than as a result of a breach of this Section 9.16. For the purposes of
this Section, "INFORMATION" shall mean all information received from the
Borrower or Holdings and related to the Borrower or Holdings or their business,
other than any such information that was available to the Administrative Agent,
the Collateral Agent, the Issuing Bank or any Lender on a nonconfidential basis
prior to its disclosure by the Borrower or Holdings. Any person required to
maintain the confidentiality of Information as provided in this Section 9.16
shall be considered to have complied with its obligation to do so if such person
has exercised the same degree of care to maintain the confidentiality of such
Information as such person would accord its own confidential information.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
CB XXXXXXX XXXXX SERVICES, INC.,
by: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
CBRE HOLDING, INC.,
by: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Secretary
92
CREDIT SUISSE FIRST BOSTON, individually
and as Administrative Agent, Collateral
Agent, Swingline Lender and Issuing Bank,
by: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director
by: /s/ Xxxxx Xxxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
