AMENDED AND RESTATED CREDIT AGREEMENT
among
OMNIQUIP INTERNATIONAL, INC.,
VARIOUS LENDING INSTITUTIONS,
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Syndication Agent and Co-Arranger,
and
FIRST UNION NATIONAL BANK,
as Administrative Agent and Co-Arranger
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Dated as of November 17, 1997 and Amended
and Restated as of February 26, 1999
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$211,574,468.09
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February
26, 1999, among OMNIQUIP INTERNATIONAL, INC., a Delaware corporation (the
"Borrower"), the Banks party hereto from time to time, XXXXXX XXXXXXX SENIOR
FUNDING, INC., as Syndication Agent and Co-Arranger, and FIRST UNION NATIONAL
BANK, as Administrative Agent and Co-Arranger (all capitalized terms used herein
and defined in Section 11 are used herein as therein defined).
W I T N E S S E T H :
WHEREAS, the Borrower, certain of the Banks, the Syndication
Agent and the Administrative Agent are parties to a certain Credit Agreement,
dated as of November 17, 1997 (as amended to the date hereof, the "Original
Credit Agreement"); and
WHEREAS, the parties hereto have agreed to amend and restate
in its entirety the Original Credit Agreement as provided herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and
conditions set forth herein, each Bank with a Term Loan Commitment severally
agrees to make, (x) on the Restatement Effective Date (in the case of Term Loans
other than Delayed-Draw Term Loans) and (y) on or before the Delayed-Draw
Commitment Expiration Date (in the case of Delayed-Draw Term Loans), a term loan
or term loans (each a "Term Loan" and, collectively, the "Term Loans") to the
Borrower, which Term Loans (i) shall, at the option of the Borrower, be incurred
and maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans,
provided that (A) except as otherwise specifically provided in Section 1.10(b),
all Term Loans comprising the same Borrowing shall at all times be of the same
Type and (B) no Term Loans maintained as Eurodollar Loans may be incurred prior
to the earlier of the fifth day after the Restatement Effective Date and the
date on which the initial syndication of the credit facilities provided for in
this Agreement is completed, as determined by the Agents (the "Syndication
Date"), (ii) if made on the Restatement Effective Date, shall not exceed for any
Bank that amount which equals the Term Loan Commitment of such Bank less the
Delayed Draw Commitment of such Bank, each as in effect on the Restatement
Effective Date (before giving effect to any reduction thereto on such date
pursuant to Section 3.03(a)(i) but after giving effect to any reductions thereto
on or prior to such date pursuant to Section 3.03(a)(ii)), and (iii) if made on
the Earnout Payment Date, shall not exceed (A) for any Bank that amount which
equals the Delayed-Draw Commitment of such Bank on the Earnout Payment Date
(before giving effect to any reduction thereto on such date pursuant to Section
3.03(b)(i) but after giving effect to any reductions thereto on or prior to such
date pursuant to Section 3.03(b)(ii)) and (B) for all Banks the amount of the
Earnout. The Delayed-Draw Term Loans may only be incurred on the date (the
"Earnout Payment Date") on which the Earnout is paid and shall not exceed the
amount of the Earnout. Once repaid, Term Loans incurred hereunder may not be
reborrowed.
(b) Subject to and upon the terms and conditions set forth
herein, each Bank with a Revolving Loan Commitment severally agrees, at any time
and from time to time on and after the Restatement Effective Date and prior to
the Revolving Loan Maturity Date, to make a revolving loan or revolving loans
(each a "Revolving Loan" and, collectively, the "Revolving Loans") to the
Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be
incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar
Loans, provided that (A) except as otherwise specifically provided in Section
1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be
of the same Type and (B) no Borrowings of Revolving Loans maintained as
Eurodollar Loans may be incurred prior to the earlier of the fifth day after the
Restatement Effective Date and the Syndication Date, (ii) may be repaid and
reborrowed in accordance with the provisions hereof, (iii) shall not exceed for
any such Bank at any time outstanding that aggregate principal amount which,
when added to the product of (x) such Bank's Adjusted RL Percentage and (y) the
sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive
of Unpaid Drawings which are repaid with the proceeds of, and simultaneously
with the incurrence of, the respective incurrence of Revolving Loans) at such
time and (II) the aggregate principal amount of all Swingline Loans (exclusive
of Swingline Loans which are repaid with the proceeds of, and simultaneously
with the incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals the Revolving Loan Commitment of such Bank at such time and
(iv) shall not exceed for all Banks at any time outstanding that aggregate
principal amount which, when added to (I) the amount of all Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time and (II) the aggregate principal amount of all
Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at
such time.
(c) Subject to and upon the terms and conditions set forth
herein, the Swingline Bank agrees to make, at any time and from time to time on
and after the Restatement Effective Date and prior to the Swingline Expiry Date,
a revolving loan or revolving loans (each a "Swingline Loan" and, collectively,
the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall be made
and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in
accordance with the provisions hereof, (iii) shall not exceed in aggregate
principal amount at any time outstanding, when combined with the aggregate
principal amount of all Revolving Loans made by Non-Defaulting Banks then
outstanding and the Letter of Credit Outstandings at such time, an amount equal
to the Adjusted Total Revolving Loan Commitment at such time (after giving
effect to any reductions to the Adjusted Total Revolving Loan Commitment on such
date), and (iv) shall not exceed in aggregate principal amount at any time
outstanding the Maximum Swingline Amount. Notwithstanding anything to the
contrary contained in this Section 1.01(c), the Swingline Bank shall not make
any Swingline Loan after it has received written notice from the Borrower or the
Required Banks stating that a Default or an Event of Default exists and is
continuing until such time as the Swingline Bank shall have received written
notice (i) of rescission of all such notices from the party or parties
originally delivering such notice, (ii) of the waiver of such Default or Event
of Default by the Required Banks or (iii) that the Agents in good faith believe
that such Default or Event of Default no longer exists.
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(d) On any Business Day, the Swingline Bank may, in its sole
discretion, give notice to the Banks that its outstanding Swingline Loans shall
be funded with one or more Borrowings of Revolving Loans (provided that such
notice shall be deemed to have been automatically given upon the occurrence of a
Default or an Event of Default under Section 10.05 or upon the exercise of any
of the remedies provided in the last paragraph of Section 10), in which case one
or more Borrowings of Revolving Loans constituting Base Rate Loans (each such
Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding
Business Day by all Banks with a Revolving Loan Commitment (without giving
effect to any reductions thereto pursuant to the last paragraph of Section 10)
pro rata based on each such Bank's Adjusted RL Percentage (determined before
giving effect to any termination of the Revolving Loan Commitments pursuant to
the last paragraph of Section 10) and the proceeds thereof shall be applied
directly by the Swingline Bank to repay the Swingline Bank for such outstanding
Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving
Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the
amount and in the manner specified in the preceding sentence and on the date
specified in writing by the Swingline Bank notwithstanding (i) that the amount
of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount
otherwise required hereunder, (ii) any failure to satisfy any conditions
specified in Section 6, (iii) any Default or Event of Default existing on such
date, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total
Revolving Loan Commitment or the Adjusted Total Revolving Loan Commitment at
such time. In the event that any Mandatory Borrowing cannot for any reason be
made on the date otherwise required above (including, without limitation, as a
result of the commencement of a proceeding under the Bankruptcy Code with
respect to the Borrower), then each such Bank hereby agrees that it shall
forthwith purchase (as of the date the Mandatory Borrowing would otherwise have
occurred, but adjusted for any payments received by the Swingline Bank from the
Borrower on or after such date and prior to such purchase) from the Swingline
Bank such participations in the outstanding Swingline Loans as shall be
necessary to cause such Banks to share in such Swingline Loans ratably based
upon their respective Adjusted RL Percentages (determined before giving effect
to any termination of the Revolving Loan Commitments pursuant to the last
paragraph of Section 10), provided that (x) all interest payable on the
Swingline Loans shall be for the account of the Swingline Bank until the date as
of which the respective participation is required to be purchased and, to the
extent attributable to the purchased participation, shall be payable to the
participant from and after such date and (y) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing Bank
shall be required to pay the Swingline Bank interest on the principal amount of
the participation purchased for each day from and including the day upon which
the Mandatory Borrowing would otherwise have occurred to but excluding the date
of payment for such participation, at the overnight Federal Funds Rate for the
first three days and at the rate otherwise applicable to Revolving Loans
maintained as Base Rate Loans hereunder for each day thereafter.
1.02 Minimum Amount of Each Borrowing. The aggregate principal
amount of each Borrowing of Loans under a respective Tranche shall not be less
than the Minimum Borrowing Amount for such Tranche and, if greater, shall be in
integral multiples of $100,000. More than one Borrowing may occur on the same
date, but at no time shall there be outstanding more than eight Borrowings of
Eurodollar Loans.
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1.03 Notice of Borrowing. Whenever the Borrower desires to
incur Loans hereunder (excluding Swingline Loans and Revolving Loans incurred
pursuant to a Mandatory Borrowing), the Borrower shall give the Administrative
Agent at its Notice Office at least one Business Day's prior notice of each Base
Rate Loan and at least three Business Days' prior notice of each Eurodollar Loan
to be incurred hereunder, provided that any such notice shall be deemed to have
been given on a certain day only if given before 12:00 Noon (Eastern time) on
such day. Each such notice (each a "Notice of Borrowing"), except as otherwise
expressly provided in Section 1.10, shall be irrevocable and shall be given by
the Borrower in writing, or by telephone promptly confirmed in writing, in the
form of Exhibit A, appropriately completed to specify the aggregate principal
amount of the Loans to be incurred pursuant to such Borrowing, the date of such
Borrowing (which shall be a Business Day), whether the Loans being incurred
pursuant to such Borrowing shall constitute Term Loans, or Revolving Loans and
whether the Loans being incurred pursuant to such Borrowing are to be initially
maintained as Base Rate Loans or Eurodollar Loans and, if Eurodollar Loans, the
initial Interest Period to be applicable thereto. The Administrative Agent shall
promptly give each Bank which is required to make Loans of the Tranche specified
in the respective Notice of Borrowing, notice of such proposed Borrowing, of
such Bank's proportionate share thereof and of the other matters required by the
immediately preceding sentence to be specified in the Notice of Borrowing.
(b)(i) Whenever the Borrower desires to incur Swingline Loans
hereunder, the Borrower shall give the Swingline Bank no later than 1:00 P.M.
(Eastern time) on the date that a Swingline Loan is to be incurred, written
notice or telephonic notice promptly confirmed in writing of each Swingline Loan
to be incurred hereunder. Each such notice shall be irrevocable and specify in
each case (A) the date of Borrowing (which shall be a Business Day) and (B) the
aggregate principal amount of the Swingline Loans to be incurred pursuant to
such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice
specified in Section 1.01(d), with the Borrower irrevocably agreeing, by its
incurrence of any Swingline Loan, to the making of the Mandatory Borrowings as
set forth in Section 1.01(d).
(c) Without in any way limiting the obligation of the Borrower
to confirm in writing any telephonic notice of any Borrowing or prepayment of
Loans, the Administrative Agent or the Swingline Bank, as the case may be, may
act without liability upon the basis of telephonic notice of such Borrowing or
prepayment, believed by the Administrative Agent or the Swingline Bank, as the
case may be, in good faith to be from the Chief Executive Officer, the
President, the Vice President-Finance, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer or the Controller of the Borrower, or from
any other authorized person of the Borrower designated in writing by the
Borrower to the Administrative Agent as being authorized to give such notices,
prior to receipt of written confirmation. In each such case, the Borrower hereby
waives the right, absent manifest error, to dispute the Administrative Agent's
or the Swingline Bank's record of the terms of such telephonic notice of such
Borrowing or prepayment of Loans.
1.04 Disbursement of Funds. No later than 12:00 Noon (Eastern
time) on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, no later than 3:00 P.M. (Eastern time) on the date specified
pursuant to Section 1.03(b)(i), or (y) in the case of
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Mandatory Borrowings, no later than 12:00 Noon (Eastern time) on the date
specified in Section 1.01(d)), each Bank with a Commitment of the respective
Tranche will make available its pro rata portion (determined in accordance with
Section 1.07) of each such Borrowing requested to be made on such date (or, in
the case of Swingline Loans, the Swingline Bank will make available the full
amount thereof). All such amounts will be made available in Dollars and in
immediately available funds at the Payment Office of the Administrative Agent,
and the Administrative Agent will make available to the Borrower at the Payment
Office the aggregate of the amounts so made available by the Banks (other than
in respect of Mandatory Borrowings) by delivery of such amounts to the
Borrower's Account. Unless the Administrative Agent shall have been notified by
any Bank prior to the date of Borrowing that such Bank does not intend to make
available to the Administrative Agent such Bank's portion of any Borrowing to be
made on such date, the Administrative Agent may assume that such Bank has made
such amount available to the Administrative Agent on such date of Borrowing and
the Administrative Agent may (but shall not be obligated to), in reliance upon
such assumption, make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Agent
by such Bank, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Bank. If such Bank does not pay such
corresponding amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent shall promptly notify the Borrower and the Borrower
shall immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover on demand from such Bank
or the Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
by the Administrative Agent to the Borrower until the date such corresponding
amount is recovered by the Administrative Agent, at a rate per annum equal to
(i) if recovered from such Bank, the Federal Funds Rate for each day during the
period consisting of the first three Business Days following such date of
availability and thereafter at the Base Rate as in effect from time to time and
(ii) if recovered from the Borrower, the rate of interest applicable to the
respective Borrowing, as determined pursuant to Section 1.08. Nothing in this
Section 1.04 shall be deemed to relieve any Bank from its obligation to make
Loans hereunder or to prejudice any rights which the Borrower may have against
any Bank as a result of any failure by such Bank to make Loans hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal
of, and interest on, the Loans made by each Bank shall be evidenced (i) if Term
Loans, by promissory notes duly executed and delivered by the Borrower
substantially in the form of Exhibits B-1 (each an "A Term Note" and,
collectively, the "A Term Notes") and B-2 (each a "B Term Note" and,
collectively, the "B Term Notes" and, together with the A Term Notes, each a
"Term Note" and, collectively, the "Term Notes"), in each case with blanks
appropriately completed in conformity herewith, (ii) if Revolving Loans, by a
promissory note duly executed and delivered by the Borrower substantially in the
form of Exhibit B-3, with blanks appropriately completed in conformity herewith
(each a "Revolving Note" and, collectively, the "Revolving Notes") and (iii) if
Swingline Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-4, with blanks appropriately
completed in conformity herewith (the "Swingline Note").
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(b) The Term Notes issued to each Bank that has a Term Loan
Commitment or outstanding Term Loans shall (i) be executed by the Borrower, (ii)
be payable to such Bank or its registered assigns and be dated the Restatement
Effective Date (or, if issued after the Restatement Effective Date, be dated the
date of the issuance thereof), (iii) be in a combined stated principal amount
equal to the Term Loan Commitment of such Bank on the Restatement Effective Date
(before giving effect to the making of any Term Loans on such date by such Bank)
(or, if issued after the Restatement Effective Date, be in a stated principal
amount equal to the outstanding principal amount of any Term Loans of such Bank
at such time) and be payable in the outstanding principal amount of Term Loans
evidenced thereby, provided that the combined stated principal amount of the B
Term Notes shall be $3,000,000 at all times during which the Term Loan
Commitments exist or Term Loans in excess of $3,000,000 remain outstanding, with
such B Term Notes to be issued to each Bank with a Term Loan Commitment or
outstanding Term Loans in amounts equal to such Bank's pro rata portion of the
Term Loan obligations represented by such B Term Notes, (iv) mature on the Term
Loan Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary prepayment as provided
in Section 4.01, and mandatory repayment as provided in Section 4.02 and (vii)
be entitled to the benefits of this Agreement and the other Credit Documents,
provided that the A Term Notes shall not be entitled to the benefits of the
Minnesota Mortgage.
(c) The Revolving Note issued to each Bank that has a
Revolving Loan Commitment or outstanding Revolving Loans shall (i) be executed
by the Borrower, (ii) be payable to such Bank or its registered assigns and be
dated the Restatement Effective Date (or, if issued after the Restatement
Effective Date, be dated the date of the issuance thereof), (iii) be in a stated
principal amount equal to the Revolving Loan Commitment of such Bank (or, if
issued after the termination thereof, be in a stated principal amount equal to
the outstanding Revolving Loans of such Bank at such time) and be payable in the
outstanding principal amount of the Revolving Loans evidenced thereby, (iv)
mature on the Revolving Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 4.01, and mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this Agreement
and the other Credit Documents.
(d) The Swingline Note issued to the Swingline Bank shall (i)
be executed by the Borrower, (ii) be payable to the Swingline Bank or its
registered assigns and be dated the Restatement Effective Date, (iii) be in a
stated principal amount equal to the Maximum Swingline Amount and be payable in
the outstanding principal amount of the Swingline Loans evidenced thereby from
time to time, (iv) mature on the Swingline Expiry Date, (v) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the Base Rate
Loans evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01, and mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(e) Each Bank will note on its internal records the amount of
each Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse
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on the reverse side thereof the outstanding principal amount of Loans evidenced
thereby. Failure to make any such notation or any error in such notation shall
not affect the Borrower's obligations in respect of such Loans.
1.06 Conversions. The Borrower shall have the option to
convert, on any Business Day occurring after the Restatement Effective Date, all
or a portion equal to at least the Minimum Borrowing Amount of the outstanding
principal amount of Loans (other than Swingline Loans, which may not be
converted pursuant to this Section 1.06) made pursuant to one or more Borrowings
(so long as of the same Tranche) of one or more Types of Loans into a Borrowing
(of the same Tranche) of another Type of Loan, provided that, (i) except as
otherwise provided in Section 1.10(b), Eurodollar Loans may be converted into
Base Rate Loans only on the last day of an Interest Period applicable to the
Loans being converted and no such partial conversion of Eurodollar Loans shall
reduce the outstanding principal amount of such Eurodollar Loans made pursuant
to a single Borrowing to less than the Minimum Borrowing Amount applicable
thereto, (ii) Base Rate Loans may only be converted into Eurodollar Loans if no
Default or Event of Default is in existence on the date of the conversion, and
(iii) no conversions of Base Rate Loans into Eurodollar Loans shall be permitted
prior to the earlier of (x) the fifth day after the Restatement Effective Date
and (y) the Syndication Date. Each such conversion shall be effected by the
Borrower by giving the Administrative Agent at its Notice Office prior to 12:00
Noon (Eastern time) at least three Business Days' prior notice (each a "Notice
of Conversion") specifying the Loans to be so converted, the Borrowing or
Borrowings pursuant to which such Loans were made and, if to be converted into
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Bank prompt notice of any such proposed
conversion affecting any of its Loans. Upon any such conversion the proceeds
thereof will be deemed to be applied directly on the day of such conversion to
prepay the outstanding principal amount of the Loans being converted.
1.07 Pro Rata Borrowings. All Borrowings of Term Loans and
Revolving Loans under this Agreement shall be incurred from the Banks pro rata
on the basis of their Term Loan Commitments or Revolving Loan Commitments, as
the case may be, provided, that all Borrowings of Revolving Loans made pursuant
to a Mandatory Borrowing shall be incurred from the Banks with Revolving Loan
Commitments pro rata on the basis of their Adjusted RL Percentages. No Bank
shall be responsible for any default by any other Bank of its obligation to make
Loans hereunder and each Bank shall be obligated to make the Loans provided to
be made by it hereunder, regardless of the failure of any other Bank to make its
Loans hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan from the date the
proceeds thereof are made available to the Borrower until the earlier of (i) the
maturity thereof (whether by acceleration or otherwise) and (ii) the conversion
of such Base Rate Loan into a Eurodollar Loan pursuant to Section 1.06, at a
rate per annum which shall be equal to the sum of the Applicable Base Rate
Margin plus the Base Rate in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan from the date the proceeds
thereof are made available to the Borrower
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until the earlier of (i) the maturity thereof (whether by acceleration or
otherwise) and (ii) the conversion of such Eurodollar Loan into a Base Rate Loan
pursuant to Section 1.06, 1.09 or 1.10, as applicable, at a rate per annum which
shall, during each Interest Period applicable thereto, be equal to the sum of
the Applicable Eurodollar Margin plus the Eurodollar Rate for such Interest
Period.
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall, in each case, bear interest at a rate per annum equal to 2% per
annum in excess of the rate otherwise applicable to Base Rate Loans of the
respective Tranche of Loans from time to time, provided that at no time shall
any Loan bear interest after maturity at a rate per annum which is less than 2%
in excess of the rate applicable thereto at maturity without the application of
the preceding provisions of this Section 1.08(c), with such interest to be
payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable
(i) in respect of each Base Rate Loan, quarterly in arrears on each Quarterly
Payment Date, (ii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and (iii) in respect of each Loan, on any
repayment or prepayment (on the amount repaid or prepaid), at maturity (whether
by acceleration or otherwise) and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the Administrative
Agent shall determine the Eurodollar Rate for each Interest Period applicable to
Eurodollar Loans and shall promptly notify the Borrower and the Banks thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
1.09 Interest Periods. At the time it gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, any Eurodollar Loan (in the case of the initial Interest Period applicable
thereto) or on the third Business Day prior to the expiration of an Interest
Period applicable to such Eurodollar Loan (in the case of any subsequent
Interest Period), the Borrower shall have the right to elect, by giving the
Administrative Agent notice thereof, the interest period (each an "Interest
Period") applicable to such Eurodollar Loan, which Interest Period shall, at the
option of the Borrower (but subject to the limitation set forth in clause (B) of
the proviso in each of Sections 1.01(a)(i), and 1.01(b)(i), be a one, two, three
or six-month period, provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at all
times have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including
the date of any conversion thereto from a Loan of a different Type) and
each Interest Period occurring thereafter in respect of such Eurodollar
Loan shall commence on the day on which the immediately preceding
Interest Period applicable thereto expires;
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(iii) if any Interest Period for a Eurodollar Loan begins on a
day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest Period shall
end on the last Business Day of such calendar month;
(iv) if any Interest Period for a Eurodollar Loan would
otherwise expire on a day which is not a Business Day, such Interest
Period shall expire on the next succeeding Business Day; provided,
however, that if any Interest Period for a Eurodollar Loan would
otherwise expire on a day which is not a Business Day but is a day of
the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business Day;
(v) no Interest Period may be selected at any time when a
Default or an Event of Default is then in existence;
(vi) no Interest Period in respect of any Borrowing of any
Tranche of Loans shall be selected which extends beyond the respective
Maturity Date for such Tranche of Loans; and
(vii) no Interest Period in respect of any Borrowing of Term
Loans shall be selected which extends beyond any date upon which a
mandatory repayment of such Term Loans will be required to be made
under Section 4.02(b), if the aggregate principal amount of Term Loans
which have Interest Periods which will expire after such date will be
in excess of the aggregate principal amount of Term Loans then
outstanding less the aggregate amount of such required repayment.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Borrower shall be deemed to have elected to convert
such Eurodollar Loans into Base Rate Loans effective as of the expiration date
of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that
any Bank shall have determined (which determination shall, absent manifest
error, be final and conclusive and binding upon all parties hereto but, with
respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the Restatement Effective Date affecting the
interbank Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in
the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs
or reductions in the amounts received or receivable hereunder with
respect to any Eurodollar Loan because of (x) any change since the date
of this Agreement in any applicable law or governmental rule,
regulation, order, guideline or request (whether or not having the
force of law) or in
-9-
the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, order,
guideline or request, such as, for example, but not limited to: (A) a
change in the basis of taxation of payment to any Bank of the principal
of or interest on the Notes or any other amounts payable hereunder
(except for changes in the rate of tax on, or determined by reference
to, the net income or profits of such Bank or any change in a tax
imposed solely on deposits or net assets of a Bank, in each case
pursuant to the laws of the jurisdiction in which it is organized or in
which its principal office or applicable lending office is located or
any subdivision thereof or therein) or (B) a change in official reserve
requirements, but, in all events, excluding reserves required under
Regulation D to the extent included in the computation of the
Eurodollar Rate and/or (y) other circumstances since the date of this
Agreement affecting the New York interbank Eurodollar market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or governmental
rule, regulation or order, (y) impossible by compliance by any Bank in
good faith with any governmental request (whether or not having force
of law) or (z) impracticable as a result of a contingency occurring
after the date of this Agreement which materially and adversely affects
the interbank Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent, in the case
of clause (i) above) shall promptly give notice (by telephone promptly confirmed
in writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Banks). Thereafter (x) in the
case of clause (i) above, Eurodollar Loans shall no longer be available until
such time as the Administrative Agent notifies the Borrower and the Banks that
the circumstances giving rise to such notice by the Administrative Agent no
longer exist, and any Notice of Borrowing or Notice of Conversion given by the
Borrower with respect to Eurodollar Loans which have not yet been incurred
(including by way of conversion) shall be deemed rescinded by the Borrower, (y)
in the case of clause (ii) above, the Borrower shall, subject to the provisions
of this Section 1.10(a) and Section 13.17 (to the extent applicable), pay to
such Bank, within ten Business Days after such Bank's written request therefor
and the delivery to the Borrower of the written notice described below in this
clause (y), such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Bank in its sole
discretion shall determine (but without duplication of any amounts that may be
payable to such Bank under Section 1.10(c) or 2.06) as shall be required to
compensate such Bank for such increased costs or reductions in amounts received
or receivable hereunder reasonably determined by such Bank in good faith (a
written notice as to the additional amounts owed to such Bank, showing in
reasonable detail the basis for the calculation thereof, submitted to the
Borrower by such Bank shall, absent manifest error, be final and conclusive and
binding on all the parties hereto) and (z) in the case of clause (iii) above,
the Borrower shall take one of the actions specified in Section 1.10(b) as
promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) shall) either (x) if the affected
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Eurodollar Loan is then being made initially or pursuant to a conversion, by
giving the Administrative Agent telephonic notice (confirmed in writing) as
promptly as practicable and in any event within one Business Day after the date
that the Borrower was notified by the affected Bank or the Administrative Agent
pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan
is then outstanding, upon at least three Business Days' written notice to the
Administrative Agent, require the affected Bank to convert such Eurodollar Loan
into a Base Rate Loan, provided that, if more than one Bank is affected at any
time, then all affected Banks must be treated the same pursuant to this Section
1.10(b).
(c) If at any time after the Restatement Effective Date any
Bank determines that the introduction of or any change (which introduction or
change shall have occurred after the Restatement Effective Date) in any
applicable law or governmental rule, regulation, order, guideline, directive or
request (whether or not having the force of law) concerning capital adequacy, or
any change in interpretation or administration thereof by any governmental
authority, central bank, the NAIC or comparable agency, will have the effect of
increasing the amount of capital required or expected to be maintained by such
Bank or any corporation controlling such Bank based on the existence of such
Bank's Commitments hereunder or its obligations hereunder, then the Borrower
shall, subject to the provisions of this Section 1.10(c) and Section 13.17 (to
the extent applicable), pay to such Bank, within ten Business Days after its
written demand therefor, such additional amounts as shall be required to
compensate such Bank or such other corporation for the increased cost to such
Bank or such other corporation or the reduction in the rate of return to such
Bank or such other corporation as a result of such increase of capital (but
without duplication of any amounts that may be payable to such Bank under
Section 1.10(a) or 2.06). In determining such additional amounts, each Bank will
act reasonably and in good faith and will use averaging and attribution methods
which are reasonable, provided that such Bank's determination of compensation
owing under this Section 1.10(c) shall, absent manifest error, be final and
conclusive and binding on all the parties hereto. Each Bank, upon determining
that any additional amounts will be payable pursuant to this Section 1.10(c),
will give prompt written notice thereof to the Borrower, which notice shall
describe in reasonable detail the introduction of or change in applicable law or
governmental rule, regulation, order, guideline, directive or request or change
in interpretation or administration and the basis for calculation of such
additional amounts.
1.11 Breakage. (a) The Borrower shall compensate each Bank,
within ten Business Days after its written request (which request shall set
forth in reasonable detail the basis for requesting such compensation), for all
reasonable losses, expenses and liabilities (including, without limitation, any
loss, expense or liability incurred by reason of the liquidation or reemployment
of deposits or other funds required by such Bank to fund its Eurodollar Loans
but excluding loss of anticipated profits) which such Bank may sustain: (i) if
for any reason (other than a default by such Bank or the Administrative Agent) a
Borrowing of, or conversion from or into, Eurodollar Loans does not occur on a
date specified therefor in a Notice of Borrowing or Notice of Conversion
(whether or not withdrawn by the Borrower or deemed withdrawn pursuant to
Section 1.10(a)); (ii) if any repayment (including any repayment made pursuant
to Section 4.01, 4.02 or as a result of an acceleration of the Loans pursuant to
Section 10) or conversion of any of its Eurodollar Loans occurs on a date which
is not the last day of an Interest Period with
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respect thereto; (iii) if any prepayment of any of its Eurodollar Loans is not
made on any date specified in a notice of prepayment given by the Borrower; or
(iv) as a consequence of (x) any other default by the Borrower to repay its
Loans when required by the terms of this Agreement or any Note held by such Bank
or (y) any election made pursuant to Section 1.10(b). Each Bank agrees to use
commercially reasonable efforts to minimize its losses, expenses and liabilities
described in this Section 1.11(a).
(b) In addition to any compensation owing pursuant to clause
(a) of this Section 1.11, on the Restatement Effective Date the Borrower shall
compensate each Bank with Eurodollar Loans outstanding under the Original Credit
Agreement for all reasonable losses, expenses and liabilities which such Bank
may sustain as a result of the refinancing or repayment of such Eurodollar Loans
on the Restatement Effective Date required pursuant to Section 5.07(b).
1.12 Change of Lending Office. Each Bank agrees that on the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect to such Bank,
it will (subject to overall policy considerations of such Bank), if requested by
the Borrower, designate another Lending Office for any Loans or Letters of
Credit affected by such event, provided that such designation is made on such
terms that such Bank and its Lending Office suffer no economic, legal or
regulatory disadvantage which such Bank determines, in its sole discretion, to
be adverse in any material respect, with the object of avoiding the consequence
of the event giving rise to the operation of such Section. Nothing in this
Section 1.12 shall affect or postpone any of the obligations of the Borrower or
the right of any Bank provided in Sections 1.10, 2.06 and 4.04.
1.13 Replacement of Banks. (a) If any Bank becomes a
Defaulting Bank or otherwise defaults in its obligations to make Loans or fund
Unpaid Drawings, (b) upon the occurrence of an event giving rise to the
operation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.06 or
Section 4.04 with respect to any Bank which results in such Bank charging to the
Borrower increased costs materially in excess of those being generally charged
by the other Banks or (c) in the case of a refusal by a Bank to consent to one
or more proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Banks as (and to the
extent) provided in Section 13.12(b), the Borrower shall have the right, if no
Default or Event of Default then exists (or, in the case of preceding clause
(c), no Default or Event of Default will exist immediately after giving effect
to such replacement), to either (i) replace such Bank (the "Replaced Bank") with
one or more other Eligible Transferees (it being acknowledged that the Replaced
Bank shall be under no obligation to identify or secure the commitment of such
Eligible Transferee or assist in identifying or securing the commitment of such
Eligible Transferee), none of whom shall constitute a Defaulting Bank at the
time of such replacement and each of whom shall be reasonably acceptable to the
Administrative Agent (collectively, the "Replacement Bank") or (ii) at the
option of the Borrower, replace only (x) the Revolving Loan Commitment (and
outstandings pursuant thereto) of the Replaced Bank with an identical Revolving
Loan Commitment provided by the Replacement Bank or (y) in the case of a
replacement as provided in Section 13.12(b) where the consent of the respective
Bank is required with respect to less than all Tranches of its Loans or
Commitments, the Commitments and/or
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outstanding Term Loans of such Bank in respect of each Tranche where the consent
of such Bank would otherwise be individually required, with identical
Commitments and/or Term Loans of the respective Tranche provided by the
Replacement Bank, provided that (1) at the time of any replacement pursuant to
this Section 1.13, the Replacement Bank shall enter into one or more Assignment
and Assumption Agreements pursuant to Section 13.04(b) (and with all fees
payable pursuant to said Section 13.04(b) to be paid by the Replacement Bank)
pursuant to which the Replacement Bank shall acquire all of the Commitments and
outstanding Loans (or, in the case of the replacement of only (I) the Revolving
Loan Commitment, the Revolving Loan Commitment and outstanding Revolving Loans
and participations in outstanding Letters of Credit and/or (II) the outstanding
Term Loans, the Term Loans) of, and in each case participations in Letters of
Credit by, the Replaced Bank and, in connection therewith, shall pay to (a) the
Replaced Bank in respect thereof an amount equal to the sum of (i) an amount
equal to the principal of, and all accrued interest on, all outstanding Loans
(or of the Loans of the respective Tranche being replaced) of the Replaced Bank,
(ii) an amount equal to all Unpaid Drawings that have been funded by (and not
reimbursed to) such Replaced Bank, together with all then unpaid interest with
respect thereto at such time and (iii) an amount equal to all accrued, but
theretofore unpaid, Fees owing to the Replaced Bank (but only with respect to
the relevant Tranche, in the case of the replacement of less than all Tranches
of Loans then held by the respective Replaced Bank) pursuant to Section 3.01,
(b) except in the case of the replacement of only the outstanding Term Loans of
a Replaced Bank, each Issuing Bank an amount equal to such Replaced Bank's
Adjusted RL Percentage (for this purpose, determined as if the adjustment
described in clause (i) of the immediately succeeding sentence had been made
with respect to such Replaced Bank) of any Unpaid Drawing (which at such time
remains an Unpaid Drawing) to the extent such amount was not theretofore funded
by such Replaced Bank to such Issuing Bank and (c) except in the case of the
replacement of only the outstanding Term Loans of a Replaced Bank, the Swingline
Bank an amount equal to such Replaced Bank's Adjusted RL Percentage of any
Mandatory Borrowing to the extent such amount was not theretofore funded by such
Replaced Bank, and (2) all obligations of the Borrower due and owing to the
Replaced Bank at such time (other than those specifically described in clause
(1) above in respect of which the assignment purchase price has been, or is
concurrently being, paid) shall be paid in full to such Replaced Bank
concurrently with such replacement. Upon the execution of the respective
Assignment and Assumption Agreement, the payment of amounts referred to in
clauses (1) and (2) above and, if so requested by the Replacement Bank, delivery
to the Replacement Bank of the appropriate Note or Notes executed by the
Borrower, (i) the Replacement Bank shall become a Bank hereunder and, unless the
respective Replaced Bank continues to have outstanding Term Loans or a
Commitment hereunder, the Replaced Bank shall cease to constitute a Bank
hereunder, except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 1.10, 1.11, 2.06, 4.04, 12.06
and 13.01), which shall survive as to such Replaced Bank and (ii) except in the
case of the replacement of only outstanding Term Loans of a Replaced Bank, the
Adjusted RL Percentages of the Banks shall be automatically adjusted at such
time to give effect to such replacement (and to give effect to the replacement
of a Defaulting Bank with one or more Non-Defaulting Banks). Replacements
pursuant to this Section 1.13 shall only be effected by assignments which
otherwise meet the applicable requirements of Section 13.04(b).
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SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions set forth herein, the Borrower may request that any Issuing Bank
issue, at any time and from time to time on and after the Restatement Effective
Date and prior to the 30th day prior to the Revolving Loan Maturity Date, (x)
for the account of the Borrower and for the benefit of any holder (or any
trustee, agent or other similar representative for any such holders) of L/C
Supportable Obligations of the Borrower or any of its Subsidiaries, an
irrevocable standby letter of credit, in a form customarily used by such Issuing
Bank or in such other form as has been approved by such Issuing Bank (each such
standby letter of credit, a "Standby Letter of Credit") in support of such L/C
Supportable Obligations and (y) for the account of the Borrower and for the
benefit of sellers of goods and materials used in the ordinary course of
business of the Borrower or any of its Subsidiaries an irrevocable sight
commercial letter of credit in a form customarily used by such Issuing Bank or
in such other form as has been approved by such Issuing Bank (each such
commercial letter of credit, a "Trade Letter of Credit", and each such Trade
Letter of Credit and each Standby Letter of Credit, a "Letter of Credit") in
support of commercial transactions of the Borrower and its Subsidiaries. All
Letters of Credit shall be denominated in Dollars.
(b) Subject to and upon the terms and conditions set forth
herein, each Issuing Bank hereby agrees that it will, at any time and from time
to time on and after the Restatement Effective Date and prior to the 30th day
prior to the Revolving Loan Maturity Date, following its receipt of the
respective Letter of Credit Request, issue for the account of the Borrower, one
or more Letters of Credit (x) in the case of Standby Letters of Credit, in
support of such L/C Supportable Obligations of the Borrower or any of its
Subsidiaries as are permitted to remain outstanding without giving rise to a
Default or an Event of Default and (y) in the case of Trade Letters of Credit,
in support of sellers of goods or materials used in the ordinary course of
business of the Borrower or any of its Subsidiaries as referenced in Section
2.01(a), provided that the respective Issuing Bank shall be under no obligation
to issue any Letter of Credit of the types described above if at the time of
such issuance:
(i) any order, judgment or decree of any governmental
authority or arbitrator shall purport by its terms to enjoin or
restrain such Issuing Bank from issuing such Letter of Credit or any
requirement of law applicable to such Issuing Bank or any request or
directive (whether or not having the force of law) from any
governmental authority with jurisdiction over such Issuing Bank shall
prohibit, or request that such Issuing Bank refrain from, the issuance
of letters of credit generally or such Letter of Credit in particular
or shall impose upon such Issuing Bank with respect to such Letter of
Credit any restriction or reserve or capital requirement (for which
such Issuing Bank is not otherwise compensated) not in effect on the
date hereof, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Issuing Bank as of the date
hereof and which such Issuing Bank reasonably and in good xxxxx xxxxx
material to it; or
(ii) such Issuing Bank shall have received notice from the
Required Banks prior to the issuance of such Letter of Credit of the
type described in the penultimate
-15-
sentence of Section 2.03(b) and the matters identified in such notice
have not previously been waived or cured.
2.02 Maximum Letter of Credit Outstandings; Final Maturities.
Notwithstanding anything to the contrary contained in this Agreement, (i) no
Letter of Credit shall be issued the Stated Amount of which, when added to the
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid on
the date of, and prior to the issuance of, the respective Letter of Credit) at
such time would exceed either (x) $10,000,000 or (y) when added to the aggregate
principal amount of all Revolving Loans made by Non-Defaulting Banks then
outstanding and the aggregate principal amount of all Swingline Loans then
outstanding, an amount equal to the Adjusted Total Revolving Loan Commitment at
such time and (ii) each Letter of Credit shall by its terms terminate on or
before (x) in the case of Standby Letters of Credit, the earlier of (A) the date
which occurs one year after the date of the issuance thereof (although any such
Standby Letter of Credit may be extendible for successive periods of up to one
year, but not beyond the tenth Business Day prior to the Revolving Loan Maturity
Date, on terms acceptable to the Issuing Bank thereof) and (B) the tenth
Business Day prior to the Revolving Loan Maturity Date and (y) in the case of
Trade Letters of Credit, the earlier of (A) the date which occurs one year after
the date of issuance thereof and (B) 30 days prior to the Revolving Loan
Maturity Date.
2.03 Letter of Credit Requests. (a) Whenever the Borrower
desires that a Letter of Credit be issued for its account, the Borrower shall
give the Administrative Agent and the respective Issuing Bank at least five
Business Days' (or such shorter period as is acceptable to the respective
Issuing Bank) written notice thereof. Each notice shall be in the form of
Exhibit C (each a "Letter of Credit Request").
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the Borrower that such Letter of
Credit may be issued in accordance with, and will not violate the requirements
of, Section 2.02. Unless the respective Issuing Bank has received notice from
the Required Banks before it issues a Letter of Credit that one or more of the
conditions specified in Section 5 are not satisfied on the Restatement Effective
Date or Section 6 are not then satisfied, or that the issuance of such Letter of
Credit would violate Section 2.02, then, subject to the terms and conditions of
this Agreement, such Issuing Bank shall issue the requested Letter of Credit for
the account of the Borrower in accordance with such Issuing Bank's usual and
customary practices. Upon the issuance of or amendment or modification to a
Standby Letter of Credit, the respective Issuing Bank shall promptly notify the
Borrower and the Administrative Agent of such issuance, amendment or
modification and such notification shall be accompanied by a copy of the issued
Standby Letter of Credit or amendment or modification.
2.04 Letter of Credit Participations. (a) Immediately upon the
issuance by the respective Issuing Bank of any Letter of Credit, such Issuing
Bank shall be deemed to have sold and transferred to each Bank with a Revolving
Loan Commitment, other than such Issuing Bank (each such Bank, in its capacity
under this Section 2.04, a "Participant"), and each such Participant shall be
deemed irrevocably and unconditionally to have purchased and received from
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such Issuing Bank, without recourse or warranty, an undivided interest and
participation, to the extent of such Participant's Adjusted RL Percentage, in
such Letter of Credit, each drawing or payment made thereunder and the
obligations of the Borrower under this Agreement with respect thereto, and any
security therefor or guaranty pertaining thereto. Upon any change in the
Revolving Loan Commitments or Adjusted RL Percentages of the Banks pursuant to
Section 1.13 or 13.04, it is hereby agreed that, with respect to all outstanding
Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to
the participations pursuant to this Section 2.04 to reflect the new Adjusted RL
Percentages of the assignor and assignee Bank, as the case may be.
(b) In determining whether to pay under any Letter of Credit,
the respective Issuing Bank shall have no obligation relative to the other Banks
other than to confirm that any documents required to be delivered under such
Letter of Credit appear to have been delivered and that they appear to
substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by any Issuing Bank under or in
connection with any Letter of Credit if taken or omitted in the absence of gross
negligence or willful misconduct, shall not create for such Issuing Bank any
resulting liability to the Borrower, any other Credit Party, any Bank or any
other Person.
(c) In the event that any Issuing Bank makes any payment under
any Letter of Credit and the Borrower shall not have reimbursed such amount in
full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall
promptly notify the Administrative Agent, which shall promptly notify each
Participant of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Bank the amount of such Participant's
Adjusted RL Percentage of such unreimbursed payment in Dollars and in same day
funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Eastern
time) on any Business Day, any Participant required to fund a payment under a
Letter of Credit, such Participant shall make available to such Issuing Bank in
Dollars such Participant's Adjusted RL Percentage of the amount of such payment
on such Business Day in same day funds. If and to the extent such Participant
shall not have so made its Adjusted RL Percentage of the amount of such payment
available to such Issuing Bank, such Participant agrees to pay to such Issuing
Bank, forthwith on demand such amount, together with interest thereon, for each
day from such date until the date such amount is paid to such Issuing Bank at
the overnight Federal Funds Rate for the first three days and at the interest
rate applicable to Revolving Loans maintained as Base Rate Loans for each day
thereafter. The failure of any Participant to make available to such Issuing
Bank its Adjusted RL Percentage of any payment under any Letter of Credit shall
not relieve any other Participant of its obligation hereunder to make available
to such Issuing Bank its Adjusted RL Percentage of any Letter of Credit on the
date required, as specified above, but no Participant shall be responsible for
the failure of any other Participant to make available to such Issuing Bank such
other Participant's Adjusted RL Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a
reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, such Issuing Bank shall pay to each
Participant which has paid its Adjusted RL Percentage thereof, in Dollars and in
same day funds, an amount equal to such Participant's share
-17-
(based upon the proportionate aggregate amount originally funded by such
Participant to the aggregate amount funded by all Participants) of the principal
amount of such reimbursement obligation and interest thereon accruing after the
purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Bank
shall furnish to such Participant copies of any Letter of Credit issued by it
and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to
each Issuing Bank with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever (except
as otherwise expressly provided in the last sentence of Section 2.04(b)) and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower or any of its Subsidiaries may have at any
time against a beneficiary named in a Letter of Credit, any transferee
of any Letter of Credit (or any Person for whom any such transferee may
be acting), the Administrative Agent, any Participant, or any other
Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Borrower
or any Subsidiary of the Borrower and the beneficiary named in any such
Letter of Credit);
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 Agreement to Repay Letter of Credit Drawings. (a) The
Borrower hereby agrees to reimburse the respective Issuing Bank, by making
payment to the Administrative Agent in immediately available funds at the
Payment Office, for any payment or disbursement made by such Issuing Bank under
any Letter of Credit issued by it (each such amount, so paid until reimbursed,
an "Unpaid Drawing"), immediately after, and in any event on the date of, such
payment or disbursement, with interest on the amount so paid or disbursed by
such Issuing Bank, to the extent not reimbursed prior to 12:00 Noon (Eastern
time) on the date of such payment or disbursement, from and including the date
paid or disbursed to but excluding the date such Issuing Bank was reimbursed by
the Borrower therefor at a rate per annum which shall be the Base Rate in effect
from time to time plus the Applicable Base Rate Margin; provided, however,
-18-
to the extent such amounts are not reimbursed prior to 12:00 Noon (Eastern time)
on the third Business Day following the receipt by the Borrower of notice of
such payment or disbursement or following the occurrence of a Default or an
Event of Default under Section 10.05, interest shall thereafter accrue on the
amounts so paid or disbursed by such Issuing Bank (and until reimbursed by the
Borrower) at a rate per annum which shall be the Base Rate in effect from time
to time plus the Applicable Base Rate Margin plus 2%, in each such case, with
interest to be payable on demand. The respective Issuing Bank shall give the
Borrower prompt written notice of each Drawing under any Letter of Credit,
provided that the failure to give any such notice shall in no way affect, impair
or diminish the Borrower's obligations hereunder.
(b) The obligations of the Borrower under this Section 2.05 to
reimburse the respective Issuing Bank with respect to Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower may have or have had against any Bank
(including in its capacity as issuer of the Letter of Credit or as Participant),
including, without limitation, any defense based upon the failure of any drawing
under a Letter of Credit (each a "Drawing") to conform to the terms of the
Letter of Credit or any nonapplication or misapplication by the beneficiary of
the proceeds of such Drawing; provided, however, that the Borrower shall not be
obligated to reimburse any Issuing Bank for any wrongful payment made by such
Issuing Bank under a Letter of Credit as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of such Issuing
Bank.
2.06 Increased Costs. If at any time after the Restatement
Effective Date, the introduction of or any change in any applicable law, rule,
regulation, order, guideline or request or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Issuing Bank or
any Participant with any request or directive by any such authority (including
the NAIC) (whether or not having the force of law), shall either (i) impose,
modify or make applicable any reserve, deposit, capital adequacy or similar
requirement against letters of credit issued by any Issuing Bank or participated
in by any Participant, or (ii) impose on any Issuing Bank or any Participant any
other conditions relating, directly or indirectly, to this Agreement; and the
result of any of the foregoing is to increase the cost to any Issuing Bank or
any Participant of issuing, maintaining or participating in any Letter of
Credit, or reduce the amount of any sum received or receivable by any Issuing
Bank or any Participant hereunder or reduce the rate of return on its capital
with respect to Letters of Credit (except for changes in the rate of tax on, or
determined by reference to, the net income or profits of such Issuing Bank or
such Participant or any change in a tax imposed solely on deposits or net assets
of the Issuing Bank or such Participant, in each case pursuant to the laws of
the jurisdiction in which it is organized or in which its principal office or
applicable lending office is located or any subdivision thereof or therein),
then, within ten Business Days of the delivery of the certificate referred to
below to the Borrower by such Issuing Bank or any Participant (a copy of which
certificate shall be sent by such Issuing Bank or such Participant to the
Agent), the Borrower shall, subject to the provisions of this Section 2.06 and
Section 13.17 (to the extent applicable), pay to such Issuing Bank or such
Participant such additional amount or amounts as will compensate such Bank for
such increased cost or reduction in the amount receivable or reduction on the
rate of return on its capital. Any Issuing Bank or
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any Participant, upon determining that any additional amounts will be payable
pursuant to this Section 2.06, will give prompt written notice thereof to the
Borrower, which notice shall include a certificate submitted to the Borrower by
such Issuing Bank or such Participant (a copy of which certificate shall be sent
by such Issuing Bank or such Participant to the Agent), setting forth in
reasonable detail the introduction of or change in applicable law, rule,
regulation, order, guideline or request or in the interpretation or
administration thereof and the basis for the calculation of such additional
amount or amounts necessary to compensate such Issuing Bank or such Participant.
In determining such additional amounts, each Issuing Bank and each Participant
will act reasonably and in good faith, provided that the certificate required to
be delivered pursuant to this Section 2.06 shall, absent manifest error, be
final and conclusive and binding on the Borrower.
2.07 Existing Letters of Credit. Notwithstanding anything to
the contrary above in this Section 2, all letters of credit outstanding under
the Original Credit Agreement on the Restatement Effective Date shall continue
in effect in accordance with their terms, be deemed issued pursuant to this
Agreement on the Restatement Effective Date and constitute Letters of Credit for
all purposes hereunder.
SECTION 3. Commitment Commission; Fees; Reductions of
Commitment.
3.01 Fees. (a) The Borrower agrees to pay to the
Administrative Agent for distribution to each Non-Defaulting Bank with a
Revolving Loan Commitment a commitment commission (the "Revolving Loan
Commitment Commission") for the period from and including the Restatement
Effective Date to but excluding the Revolving Loan Maturity Date (or such
earlier date as the Total Revolving Loan Commitment shall have been terminated),
computed at a rate for each day equal to the Applicable Commitment Commission
Percentage on the daily average Unutilized Revolving Loan Commitment of such
Non-Defaulting Bank. Accrued Revolving Loan Commitment Commission shall be due
and payable quarterly in arrears on each Quarterly Payment Date and on the
Revolving Loan Maturity Date or such earlier date upon which the Total Revolving
Loan Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent for
distribution to each Non-Defaulting Bank with a Revolving Loan Commitment (based
on each such Non-Defaulting Bank's respective Adjusted RL Percentage) a fee in
respect of each Letter of Credit issued hereunder (the "Letter of Credit Fee"),
for the period from and including the date of issuance of such Letter of Credit
to and including the date of termination or expiration of such Letter of Credit,
computed at a rate per annum equal to the Applicable Eurodollar Margin on the
daily Stated Amount of such Letter of Credit. Accrued Letter of Credit Fees
shall be due and payable quarterly in arrears on each Quarterly Payment Date and
on the first day after the termination of the Total Revolving Loan Commitment
upon which no Letters of Credit remain outstanding.
(c) The Borrower agrees to pay to each Issuing Bank, for its
own account, a facing fee in respect of each Letter of Credit issued by such
Issuing Bank (the "Facing Fee"), for the period from and including the date of
issuance of such Letter of Credit to and including the date of the termination
of such Letter of Credit, computed at a rate equal to 1/4 of 1% per annum of the
daily Stated Amount of such Letter of Credit. Accrued Facing Fees shall be due
and
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payable quarterly in arrears on each Quarterly Payment Date and upon the first
day after the termination of the Total Revolving Loan Commitment upon which no
Letters of Credit remain outstanding.
(d) The Borrower agrees to pay, upon each drawing under,
issuance of, or amendment to, any Letter of Credit, such amount as shall at the
time of such event be the administrative charge which the applicable Issuing
Bank is generally imposing in connection with such occurrence with respect to
letters of credit.
(e) The Borrower agrees to pay to the Agents, for their own
account, such other fees as have been agreed to in writing by the Borrower and
the Agents.
(f) The Borrower agrees to pay to the Administrative Agent for
distribution to each Non-Defaulting Bank with a Term Loan Commitment a
commitment commission (the "Term Loan Commitment Commission") for the period
from and including the Restatement Effective Date to the earlier of: (i) the
Earnout Payment Date and (ii) the Delayed-Draw Commitment Expiration Date,
computed at a rate for each day equal to the Applicable Commitment Commission
Percentage on the daily average Unutilized Term Loan Commitment of such
Non-Defaulting Bank. Accrued Term Loan Commitment Commission shall be due and
payable quarterly in arrears on each Quarterly Payment Date and on the
Delayed-Draw Commitment Expiration Date or such earlier date upon which the
Total Term Loan Commitment is terminated.
3.02 Voluntary Termination of Unutilized Commitments. (a) Upon
at least one Business Day's prior written notice to the Administrative Agent at
its Notice Office (which notice the Administrative Agent shall promptly transmit
to each of the Banks), the Borrower shall have the right, at any time or from
time to time, without premium or penalty, to terminate the Total Unutilized
Revolving Loan Commitment, in whole or in part, in integral multiples of
$1,000,000 in the case of partial reductions to the Total Unutilized Revolving
Loan Commitment, provided that (i) each such reduction shall apply
proportionately to permanently reduce the Revolving Loan Commitment of each Bank
with such a Commitment and (ii) the reduction to the Total Unutilized Revolving
Loan Commitment shall in no case be in an amount which would cause the Revolving
Loan Commitment of any Bank to be reduced (as required by preceding clause (i))
by an amount which exceeds the remainder of (x) the Unutilized Revolving Loan
Commitment of such Bank as in effect immediately before giving effect to such
reduction minus (y) such Bank's Adjusted RL Percentage of the aggregate
principal amount of Swingline Loans then outstanding.
(b) Upon at least one Business Day's prior written notice to
the Administrative Agent at its Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Banks), the Borrower shall have the
right, at any time or from time to time, without premium or penalty, to
terminate the Total Unutilized Term Loan Commitment, in whole or in part, in
integral multiples of $1,000,000 in the case of partial reductions to the Total
Unutilized Term Loan Commitment, provided that each such reduction shall apply
proportionately to permanently reduce the Term Loan Commitment of each Bank with
such a Commitment.
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(c) In the event of a refusal by a Bank to consent to one or
more proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as (and to the extent)
provided in Section 13.12(b), the Borrower may, subject to its compliance with
the requirements of Section 13.12(b), upon 5 Business Days' prior written notice
to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Banks) terminate all
of the Revolving Loan Commitment and Term Loan Commitment of such Bank and, so
long as all Loans, together with accrued and unpaid interest, Fees and all other
amounts, owing to such Bank (other than amounts owing in respect of any Tranche
of Loans maintained by such Bank which are not being repaid pursuant to Section
13.12(b)) are repaid concurrently with the effectiveness of such termination
pursuant to Section 4.01(b) (at which time Schedule I shall be deemed modified
to reflect such changed amounts), and at such time, unless the respective Bank
continues to have outstanding Loans of one or more Tranches hereunder, such Bank
shall no longer constitute a "Bank" for purposes of this Agreement, except with
respect to indemnifications under this Agreement (including, without limitation,
Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 13.01), which shall survive as to
such repaid Bank.
3.03 Mandatory Reduction of Commitments. (a) The Total Term
Loan Commitment (other than the Total Delayed-Draw Commitment) shall (i)
terminate in its entirety on the Restatement Effective Date (immediately after
giving effect to the making of the Term Loans on such date) and (ii) be reduced
from time to time prior to such date to the extent required by Section 4.02.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Delayed Draw Commitment shall (i)
terminate in its entirety on the earlier of (x) the Delayed-Draw Commitment
Expiration Date and (y) the Earnout Payment Date (immediately after giving
effect to the making of the Term Loans on such date) and (ii) prior to the
termination of the Delayed-Draw Commitment, be reduced from time to time to the
extent required by Section 4.02.
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each Bank) shall terminate in its entirety on the
Revolving Loan Maturity Date.
(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date after the Restatement Effective Date
upon which a mandatory repayment of Term Loans or a mandatory reduction to the
Total Term Loan Commitment pursuant to any of Sections 4.02(c) through (f),
inclusive, is required (and exceeds in amount the sum of (i) the aggregate
principal amount of Term Loans then outstanding and (ii) the Total Term Loan
Commitment as then in effect) or would be required if Term Loans were then
outstanding or the Total Term Loan Commitment was then in effect, the Total
Revolving Loan Commitment shall be permanently reduced by the amount, if any, by
which the amount required to be applied pursuant to said Sections (determined as
if an unlimited amount of Term Loans were actually outstanding) exceeds the sum
of (x) the aggregate principal amount of Term Loans then outstanding and (y) the
Total Term Loan Commitment as then in effect.
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(e) Each reduction to the Total Term Loan Commitment and the
Total Revolving Loan Commitment pursuant to this Section 3.03 (or pursuant to
Section 4.02) shall be applied proportionately to permanently reduce the Term
Loan Commitment or the Revolving Loan Commitment, as the case may be, of each
Bank with such a Commitment.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. (a) The Borrower shall have the
right to prepay the Loans, without premium or penalty, in whole or in part at
any time and from time to time on the following terms and conditions:
(i) the Borrower shall give the Administrative Agent prior to
12:00 Noon (Eastern time) at its Notice Office (x) at least one
Business Day's prior written notice (or telephonic notice promptly
confirmed in writing) of its intent to prepay Base Rate Loans and (y)
at least three Business Days' prior written notice (or telephonic
notice promptly confirmed in writing) of its intent to prepay
Eurodollar Loans, whether Term Loans, Revolving Loans or Swingline
Loans shall be prepaid, the amount of such prepayment and the Types of
Loans to be prepaid and, in the case of Eurodollar Loans, the specific
Borrowing or Borrowings pursuant to which made, which notice the
Administrative Agent shall promptly transmit to each of the Banks;
(ii) each prepayment shall be in an aggregate principal amount
of at least (x) $1,000,000 in the case of Term Loans or Revolving Loans
or (y) $100,000 in the case of Swingline Loans, and, in each case, if
greater, in integral multiples of $100,000, provided that if any
partial prepayment of Eurodollar Loans made pursuant to any Borrowing
shall reduce the outstanding principal amount of Eurodollar Loans made
pursuant to such Borrowing to an amount less than the Minimum Borrowing
Amount applicable thereto, then such Borrowing may not be continued as
a Borrowing of Eurodollar Loans and any election of an Interest Period
with respect thereto given by the Borrower shall have no force or
effect;
(iii) prepayments of Eurodollar Loans made pursuant to this
Section 4.01(a) may only be made on the last day of an Interest Period
applicable thereto unless such prepayment is accompanied by any
breakage costs and any other amounts due such Bank in accordance with
Section 1.11;
(iv) each prepayment in respect of any Loans made pursuant to
a Borrowing shall be applied pro rata among such Loans, provided that,
at the Borrower's election, in connection with any prepayment of
Revolving Loans pursuant to this Section 4.01(a), such prepayment shall
not be applied to any Revolving Loans of a Defaulting Bank; and
(v) each voluntary prepayment of Term Loans pursuant to this
Section 4.01(a) shall be applied to reduce the then remaining Scheduled
Repayments pro rata based upon the then remaining amount of each
Scheduled Repayment after giving effect to all prior reductions
thereto.
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(b) In the event of a refusal by a Bank to consent to one or
more proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as (and to the extent)
provided in Section 13.12(b), the Borrower may, upon 5 Business Days' prior
written notice to the Administrative Agent at its Notice Office (which notice
the Administrative Agent shall promptly transmit to each of the Banks) repay all
Loans, together with accrued and unpaid interest, Fees, and other amounts owing
to such Bank (or owing to such Bank with respect to each Tranche which gave rise
to the need to obtain such Bank's individual consent) in accordance with, and
subject to the requirements of, said Section 13.12(b) so long as (i) in the case
of the repayment of Revolving Loans of any Bank pursuant to this clause (b) the
Revolving Loan Commitment of such Bank is terminated concurrently with such
repayment pursuant to Section 3.02(c) (at which time Schedule I shall be deemed
modified to reflect the changed Revolving Loan Commitments), (ii) in the case of
the repayment of Term Loans of any Bank pursuant to this clause (b) the Term
Loan Commitment (if any) of such Bank is terminated concurrently with such
repayment pursuant to Section 3.02(c) (at which time Schedule I shall be deemed
modified to reflect the changed Term Loan Commitments), and (iii) the consents,
if any, required by Section 13.12(b) in connection with the repayment pursuant
to this clause (b) have been obtained.
4.02 Mandatory Repayments and Commitment Reductions. (a) (i)
On any day on which the sum of the aggregate outstanding principal amount of the
Revolving Loans made by Non-Defaulting Banks, Swingline Loans and the Letter of
Credit Outstandings exceeds the Adjusted Total Revolving Loan Commitment as then
in effect, the Borrower shall prepay on such day principal of Swingline Loans in
an amount up to the amount of such excess and, after all Swingline Loans have
been repaid in full, Revolving Loans of Non-Defaulting Banks in an amount equal
to such excess minus the principal amount of Swingline Loans so prepaid. If,
after giving effect to the prepayment of all outstanding Swingline Loans and
Revolving Loans of Non-Defaulting Banks, the aggregate amount of the Letter of
Credit Outstandings exceeds the Adjusted Total Revolving Loan Commitment as then
in effect, the Borrower shall pay to the Administrative Agent at the Payment
Office on such day an amount of cash or Cash Equivalents equal to the amount of
such excess (up to a maximum amount equal to the Letter of Credit Outstandings
at such time), such cash or Cash Equivalents to be held as security for all
obligations of the Borrower to the Issuing Banks and the Non-Defaulting Banks
hereunder in a cash collateral account to be established by the Administrative
Agent.
(ii) On any day on which the aggregate outstanding principal
amount of the Revolving Loans made by any Defaulting Bank exceeds the Revolving
Loan Commitment of such Defaulting Bank, the Borrower shall prepay on such day
principal of Revolving Loans of such Defaulting Bank in an amount equal to such
excess.
(b) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date set forth
below, the Borrower shall be required to repay that principal amount of Term
Loans, to the extent then outstanding, as is set forth opposite such date (each
such repayment, as the same may be reduced as provided in Sections 4.01(a) and
4.02(h), a "Scheduled Repayment," and each such date, a "Scheduled Repayment
Date"):
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Scheduled Repayment Date Amount
------------------------ ------
February 28, 1999 $3,750,000
May 31, 1999 $5,250,000
August 31, 1999 $5,250,000
November 30, 1999 $5,250,000
February 28, 2000 $5,250,000
May 31, 2000 $5,500,000
August 31, 2000 $5,500,000
November 30, 2000 $5,500,000
February 28, 2001 $8,000,000
May 31, 2001 $8,000,000
August 31, 2001 $8,000,000
November 30, 2001 $8,000,000
February 28, 2002 $8,000,000
May 31, 2002 $8,000,000
August 31, 2002 $8,000,000
November 30, 2002 $8,000,000
February 28, 2003 $8,000,000
May 31, 2003 $9,000,000
August 31, 2003 $9,000,000
November 30, 2003 $9,000,000
February 28, 2004 $10,000,000
May 31,2004 $10,000,000
August 31, 2004 $10,000,000
Term Loan Maturity Date Balance
(c) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date on or after
the Restatement Effective Date upon which the Borrower or any of its
Wholly-Owned Subsidiaries receives any cash proceeds from any incurrence by the
Borrower or any of its Wholly-Owned Subsidiaries of Indebtedness for borrowed
money (other than Indebtedness for borrowed money permitted to be incurred
pursuant to Section 9.04 (except for the incurrence of New Subordinated Notes
pursuant to Section 9.04(vi), the proceeds of which are required to be applied
as set forth in such Section) as such Section is in effect on the Restatement
Effective Date), an amount equal to 100% of the Net Debt Proceeds of the
respective incurrence of Indebtedness shall be applied as a mandatory repayment
of principal of outstanding Term Loans (and/or, if the Total Term Loan
Commitment has not yet been terminated, as a mandatory reduction to the Total
Term Loan Commitment) in accordance with the requirements of Sections 4.02(g)
and (h).
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(d) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date on or after
the Restatement Effective Date upon which the Borrower or any of its
Wholly-Owned Subsidiaries receives cash proceeds from any Asset Sale, an amount
equal to 100% of the Net Sale Proceeds from the respective Asset Sale shall be
applied as a mandatory repayment of principal of outstanding Term Loans (and/or,
if the Total Term Loan Commitment has not yet been terminated, as a mandatory
reduction to the Total Term Loan Commitment) in accordance with the requirements
of Sections 4.02(g) and (h), provided that, so long as no Default or Event of
Default then exists, up to $2,000,000 in the aggregate in any fiscal year of the
Borrower of Net Sale Proceeds from Asset Sales may be used or contractually
committed to be used to purchase like assets pursuant to Section 9.07(b) within
180 days following the date of the respective Asset Sale (and the Net Sale
Proceeds therefrom shall not be required to be applied on the date of receipt of
such Net Sale Proceeds pursuant to this Section 4.02(d)) so long as the Borrower
delivers a certificate to the Administrative Agent on or prior to such date
stating that such Net Sale Proceeds shall be used or contractually committed to
be used to purchase like assets within 180 days following the date of such Asset
Sale (which certificate shall set forth the estimates of the proceeds to be so
expended) and provided further, that (1) if all or any portion of such Net Sale
Proceeds are not so reinvested in like assets within such 180 day period or
contractually committed to be so reinvested within such 180-day period, 100% of
such remaining portion shall be applied on the last day of such applicable
period as a mandatory repayment of principal of outstanding Term Loans as
provided above in this Section 4.02(d) without regard to the immediately
preceding proviso and (2) if all or any portion of such Net Sale Proceeds are
not required to be applied on the 180th day referred to in clause (1) above
because such amount is contractually committed to be used and subsequent to such
date such contract is terminated or expires without such portion being so used,
then such remaining portion shall be applied within ten days of the date of such
termination or expiration as a mandatory repayment of principal of outstanding
Term Loans as provided in this Section 4.02(d) without regard to the immediately
preceding proviso.
(e) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each Excess Cash Payment Date, an amount equal to 50% of
the Excess Cash Flow for the relevant Excess Cash Payment Period shall be
applied as a mandatory repayment of principal of outstanding Term Loans in
accordance with the requirements of Sections 4.02(g) and (h).
(f) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, within five days following
each date on or after the Restatement Effective Date upon which the Borrower or
any of its Wholly-Owned Subsidiaries receives any cash proceeds from any
Recovery Event in excess of $250,000 in the aggregate in any fiscal year of the
Borrower from all Recovery Events, an amount equal to 100% of the Net Insurance
Proceeds of such Recovery Event shall be applied as a mandatory repayment of
principal of outstanding Term Loans (and/or, if the Total Term Loan Commitment
has not yet been terminated, as a mandatory reduction to the Total Term Loan
Commitment) in accordance with the requirements of Sections 4.02(g) and (h),
provided that, so long as no Default or Event of Default then exists, such
proceeds shall not be required to be so applied on such date to the extent that
the Borrower has delivered a certificate to the Administrative Agent on or prior
to such date stating that such proceeds shall be used or shall be contractually
committed to be used
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to replace or restore any properties or assets in respect of which such proceeds
were paid within 180 days following the date of the receipt of such proceeds
(which certificate shall set forth the estimates of the proceeds to be so
expended), and provided further, that (1) if all or any portion of such proceeds
not required to be applied to the repayment of outstanding Term Loans (and/or as
a reduction to the Total Term Loan Commitment) are not so used or contractually
committed to be used within 180 days after the date of the receipt of such
proceeds, then such remaining portion not used or contractually committed to be
used shall be applied on the date which is the 180th day after the date of the
receipt of such proceeds as a mandatory repayment of principal of outstanding
Term Loans as provided above in this Section 4.02(f) without regard to the
immediately preceding proviso and (2) if all or any portion of such proceeds are
not required to be applied on the 180th day referred to in clause (1) above
because such amount is contractually committed to be used and subsequent to such
date such contract is terminated or expires without such portion being so used,
then such remaining portion shall be applied within ten days of the date of such
termination or expiration as a mandatory repayment of principal of outstanding
Term Loans as provided in this Section 4.02(f) without regard to the immediately
preceding proviso.
(g) With respect to each repayment of Loans required by this
Section 4.02, the Borrower may designate the Types of Loans of the respective
Tranche which are to be repaid and, in the case of Eurodollar Loans, the
specific Borrowing or Borrowings of the respective Tranche pursuant to which
made, provided that: (i) repayments of Eurodollar Loans pursuant to this Section
4.02 may only be made on the last day of an Interest Period applicable thereto
unless all Eurodollar Loans of the respective Tranche with Interest Periods
ending on such date of required repayment and all Base Rate Loans of the
respective Tranche have been paid in full; (ii) if any repayment of Eurodollar
Loans made pursuant to a single Borrowing shall reduce the outstanding
Eurodollar Loans made pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount applicable thereto, such Borrowing shall be converted
at the end of the then current Interest Period into a Borrowing of Base Rate
Loans; and (iii) each repayment of any Loans made pursuant to a Borrowing shall
be applied pro rata among such Loans. In the absence of a designation by the
Borrower as described in the preceding sentence, the Administrative Agent shall,
subject to the above, make such designation in its sole discretion.
Notwithstanding the foregoing provisions of this Section 4.02(g), if at any time
a mandatory repayment of Loans pursuant to this Section 4.02(g) would result,
after giving effect to the procedures set forth above in this Section 4.02(g),
in the Borrower incurring breakage costs under Section 1.11 as a result of
Eurodollar Loans being prepaid other than on the last day of an Interest Period
applicable thereto (the "Affected Eurodollar Loans"), then the Borrower may in
its sole discretion, and upon notice to the Administrative Agent, initially
deposit a portion (up to 100%) of the amount that otherwise would have been paid
in respect of the Affected Eurodollar Loans with the Administrative Agent (which
deposit must be equal in amount to the amount of the Affected Eurodollar Loans
not immediately repaid) to be held as security for the Obligations of the
Borrower pursuant to a cash collateral arrangement satisfactory to the
Administrative Agent and the Borrower which shall permit investments in Cash
Equivalents reasonably satisfactory to the Administrative Agent, with such cash
collateral to be directly applied upon the earlier of (x) the first occurrence
(or occurrences) thereafter of the last day of an Interest Period applicable to
the relevant Affected Eurodollar Loans of the respective Tranche or Tranches
that
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were initially required to be repaid (or such earlier date or dates as shall be
requested by the Borrower) and (y) the date which is 180 days after such initial
deposit, to repay an aggregate principal amount of such Loans equal to the
Affected Eurodollar Loans not initially repaid pursuant to this sentence.
Notwithstanding anything to the contrary contained in the immediately preceding
sentence, all amounts deposited as cash collateral pursuant to the immediately
preceding sentence shall be held first for the sole benefit of the Banks whose
Loans would otherwise have been immediately repaid with the amounts deposited
and upon the taking of any action by the Administrative Agent or the Banks
pursuant to the remedial provisions of Section 10, any amounts held as cash
collateral pursuant to this Section 4.02(g) shall first be immediately applied
to such Loans and thereafter to the other Obligations of the Borrower.
(h) Each amount required to be applied to repay Term Loans
pursuant to Sections 4.02(c) through (f), inclusive, shall be applied to repay
the outstanding principal amount of the Term Loans with all such repayments to
be deemed to apply first to repay Term Loans evidenced by the A Term Notes
before any obligations of the Borrower evidenced by the B Term Notes are so
reduced. The amount of each principal repayment of Term Loans (and the amount of
each reduction to the Term Loan Commitments) made as required by said Sections
4.02(c) through (f), inclusive, shall be applied to reduce the then remaining
Scheduled Repayments pro rata based upon the then remaining amount of each
Scheduled Repayment after giving effect to all prior reductions thereto. To the
extent the amount of any mandatory repayment exceeds the aggregate principal
amount of Term Loans then outstanding, such excess shall be applied (i) first,
to reduce the Total Revolving Loan Commitment and (ii) second, to reduce the
Total Delayed Draw Commitment.
(i) Notwithstanding anything to the contrary contained in this
Agreement or in any other Credit Document, all then outstanding Loans of any
Tranche shall be repaid in full on the respective Maturity Date for such Tranche
of Loans.
4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or under any
Note shall be made to the Administrative Agent for the account of the Bank or
Banks entitled thereto not later than 12:30 p.m. (Eastern time) on the date when
due and shall be made in Dollars in immediately available funds at the Payment
Office of the Administrative Agent. Whenever any payment to be made hereunder or
under any Note shall be stated to be due on a day which is not a Business Day,
the due date thereof shall be extended to the next succeeding Business Day and,
with respect to payments of principal, interest shall be payable during such
extension at the applicable rate immediately prior to such extension.
4.04 Net Payments. All payments made by the Borrower hereunder
or under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but
excluding, except as provided in the second succeeding sentence, any tax imposed
on or measured by the net
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income or net profits of a Bank and any taxes imposed solely on deposits or net
assets of a Bank, in each case pursuant to the laws of the jurisdiction in which
it is organized or the jurisdiction in which the principal office or applicable
lending office of such Bank is located or any subdivision thereof or therein)
and all interest, penalties or similar liabilities with respect to such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges
(all such non-excluded taxes, levies, imposts, duties, fees, assessments or
other charges being referred to collectively as "NonExcluded Taxes"). Except as
otherwise provided in Section 4.04(b), if any NonExcluded Taxes are so levied or
imposed, the Borrower agrees to pay the full amount of such NonExcluded Taxes,
and such additional amounts as may be necessary so that every payment of all
amounts due under this Agreement or under any Note, after withholding or
deduction for or on account of any NonExcluded Taxes, will not be less than the
amount provided for herein or in such Note. If any amounts are payable in
respect of Non-Excluded Taxes pursuant to the preceding sentence, the Borrower
agrees to reimburse each Bank, upon the written request of such Bank, for taxes
imposed on or measured by the net income or net profits of such Bank pursuant to
the laws of the jurisdiction in which such Bank is organized or in which the
principal office or applicable lending office of such Bank is located or under
the laws of any political subdivision or taxing authority of any such
jurisdiction in which such Bank is organized or in which the principal office or
applicable lending office of such Bank is located and for any withholding of
taxes as such Bank shall determine are payable by, or withheld from, such Bank,
in respect of such amounts so paid to or on behalf of such Bank pursuant to the
preceding sentence and in respect of any amounts paid to or on behalf of such
Bank pursuant to this sentence. The Borrower will furnish to the Administrative
Agent within 45 days after the date the payment of any NonExcluded Taxes is due
pursuant to applicable law certified copies of tax receipts evidencing such
payment by the Borrower. The Borrower agrees to indemnify and hold harmless each
Bank, and reimburse such Bank upon its written request, for the amount of any
NonExcluded Taxes so levied or imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax
purposes agrees to deliver to the Borrower and the Administrative Agent on or
prior to the Restatement Effective Date, or in the case of a Bank that is an
assignee or transferee of an interest under this Agreement pursuant to Section
1.13 or 13.04 (unless the respective Bank was already a Bank hereunder
immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Bank, (i) two accurate and complete original
signed copies of Internal Revenue Service Form 4224 or 1001 (or successor forms)
certifying to such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement and
under any Note, or (ii) if the Bank is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form 1001 or 4224 pursuant to clause (i) above, (x) a certificate
substantially in the form of Exhibit D (any such certificate, a "Section
4.04(b)(ii) Certificate") and (y) two accurate and complete original signed
copies of Internal Revenue Service Form W-8 (or successor form) certifying to
such Bank's entitlement to a complete exemption from United States withholding
tax with respect to payments of interest to be made under this Agreement and
under any Note. In addition, each Bank agrees that from time to time after the
Restatement Effective Date, when a lapse in time or change in circumstances
renders the previous certification obsolete or inaccurate in any material
respect, it will, promptly
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upon request by the Borrower, deliver to the Borrower and the Administrative
Agent two new accurate and complete original signed copies of Internal Revenue
Service Form 4224 or 1001, or Form W-8 and a Section 4.04(b)(ii) Certificate, as
the case may be, and such other forms as may be required in order to confirm or
establish the entitlement of such Bank to a continued exemption from or
reduction in United States withholding tax with respect to payments under this
Agreement and any Note, or it shall immediately notify the Borrower and the
Administrative Agent of its inability to deliver any such Form or Certificate
because a change in law or change in circumstance eliminates the availability to
the Bank of an exemption from United States withholding tax with respect to
payments to be made under this Agreement or any Note, in which case such Bank
shall not be required to deliver any such Form or Certificate pursuant to this
Section 4.04(b). Notwithstanding anything to the contrary contained in Section
4.04(a), but subject to Section 13.04(b), (x) the Borrower shall be entitled, to
the extent it is required to do so by law, to deduct or withhold income or
similar taxes imposed by the United States (or any political subdivision or
taxing authority thereof or therein) from interest, Fees or other amounts
payable hereunder for the account of any Bank which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for U.S.
Federal income tax purposes to the extent that such Bank has not provided to the
Borrower U.S. Internal Revenue Service Forms that establish a complete exemption
from such deduction or withholding and (y) the Borrower shall not be obligated
pursuant to Section 4.04(a) hereof to gross-up payments to be made to a Bank in
respect of income or similar taxes imposed by the United States if (I) such Bank
has not provided to the Borrower the Internal Revenue Service Forms required to
be provided to the Borrower pursuant to this Section 4.04(b) or (II) in the case
of a payment, other than interest, to a Bank described in clause (ii) above, to
the extent that such Forms do not establish a complete exemption from
withholding of such taxes.
SECTION 5. Conditions Precedent. The obligation of each Bank
to make Loans, and the obligation of any Issuing Bank to issue Letters of
Credit, on the Restatement Effective Date, is subject at the time of the making
of such Loans or the issuance of such Letters of Credit to the satisfaction of
the following conditions:
5.01 Execution of Agreement; Notes. The Restatement Effective
Date shall have occurred and there shall have been delivered to the Agents for
the account of each of the Banks the appropriate Term Notes and/or Revolving
Note executed by the Borrower and to the Swingline Bank, the Swingline Note
executed by the Borrower, in each case in the amount, maturity and otherwise as
provided herein.
5.02 Officer's Certificate. On the Restatement Effective Date,
the Agents shall have received a certificate, dated the Restatement Effective
Date and signed on behalf of the Borrower by the President or any Vice President
of the Borrower, stating that all of the conditions in Sections 5.06, 5.07, 5.08
and 6.01 have been satisfied on such date.
5.03 Opinions of Counsel. On the Restatement Effective Date,
the Agents shall have received from (i) Dickstein, Shapiro, Xxxxx & Xxxxxxxx
LLP, counsel to the Credit Parties, an opinion addressed to the Agents and each
of the Banks and dated the Restatement Effective Date, covering the matters set
forth in Exhibit E and such other matters incident to the
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transactions contemplated herein as any Agent may reasonably request and (ii)
local counsel (reasonably satisfactory to the Agents) opinions, each of which
shall (x) be addressed to the Agents and each of the Banks and dated the
Restatement Effective Date, (y) be in form and substance reasonably satisfactory
to the Agents and (z) cover the perfection of the security interests granted
pursuant to the Security Documents and such other matters incident to the
transactions contemplated hereby as any Agent may reasonably request.
5.04 Corporate Documents; Proceedings; etc. (a) On the
Restatement Effective Date, the Agents shall have received a certificate from
each Credit Party, dated the Restatement Effective Date, signed by the President
or any Vice President of such Credit Party, and attested to by the Secretary or
any Assistant Secretary of such Credit Party, in the form of Exhibit F with
appropriate insertions, together with copies of the certificate of incorporation
(or equivalent organizational document) and by-laws of such Credit Party and the
resolutions of such Credit Party referred to in such certificate, and each such
certificate of incorporation and by-laws shall be in the form provided to the
Agents prior to the Restatement Effective Date or in such other form as is
reasonably acceptable to the Agents, and the foregoing resolutions shall be in
form and substance reasonably acceptable to the Agents.
(b) All corporate and legal proceedings and all instruments
and agreements in connection with the transactions contemplated by this
Agreement and the other Documents shall be reasonably satisfactory in form and
substance to the Agents, and the Agents shall have received all information and
copies of all documents and papers, including records of corporate proceedings,
governmental approvals, good standing certificates and bring-down telegrams or
facsimiles, if any, which any Agent may have requested in connection therewith,
such documents and papers where appropriate to be certified by proper corporate
or governmental authorities.
5.05 Employee Benefit Plans; Shareholders' Agreements;
Management Agreements; Collective Bargaining Agreements; Existing Indebtedness
Agreements. On or prior to the Restatement Effective Date, there shall have been
made available for review by the Agents true and correct copies of the following
documents:
(i) all Plans (and for each Plan that is required to file an
annual report on Internal Revenue Service Form 5500-series, a copy of
the most recent such report (including, to the extent required, the
related financial and actuarial statements and opinions and other
supporting statements, certifications, schedules and information), and
for each Plan that is a "single-employer plan," as defined in Section
4001(a)(15) of ERISA, the most recently prepared actuarial valuation
therefor) and any other "employee benefit plans", as defined in Section
3(3) of ERISA, and any other material agreements, plans or
arrangements, with or for the benefit of current or former employees of
the Borrower or any of its Subsidiaries or any ERISA Affiliate
(collectively, the "Employee Benefit Plans");
(ii) all material agreements entered into by the Borrower or
any of its Subsidiaries governing the terms and relative rights of its
capital stock and any
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agreements entered into by shareholders relating to any such entity
with respect to its capital stock (collectively, the "Shareholders'
Agreements");
(iii) all material agreements with members of, or with respect
to, the senior management and management of the Borrower or any of its
Subsidiaries (collectively, the "Management Agreements");
(iv) all collective bargaining agreements applying or relating
to any employee of the Borrower or any of its Subsidiaries
(collectively, the "Collective Bargaining Agreements");
(v) all agreements evidencing or relating to Indebtedness of
the Borrower or any of its Subsidiaries which is to remain outstanding
after giving effect to the incurrence of Loans on the Restatement
Effective Date to the extent such Indebtedness exceeds (or upon the
utilization of any unused commitments may exceed) $250,000
(collectively, the "Existing Indebtedness Agreements"); and
(vi) all tax sharing, tax allocation and other similar
agreements entered into by the Borrower or any of its Subsidiaries
(collectively, the "Tax Sharing Agreements").
all of which Employee Benefit Plans, Shareholders' Agreements, Management
Agreements, Collective Bargaining Agreements, Existing Indebtedness Agreements
and Tax Sharing Agreements shall be in full force and effect on the Restatement
Effective Date.
5.06 Indebtedness; Original Credit Agreement. (a) On the
Restatement Effective Date and after giving effect to the Loans incurred on the
Restatement Effective Date, neither the Borrower nor any of its Subsidiaries
shall have any Indebtedness outstanding except for (x) the Obligations and (y)
the Existing Indebtedness. The Agents shall have received evidence, in form and
substance reasonably satisfactory to them, that the matters set forth in the
immediately preceding sentence have been satisfied as of the Restatement
Effective Date.
(b) On the Restatement Effective Date, all Loans under the
Original Credit Agreement shall have been repaid in full, together with interest
thereon and all accrued but unpaid Fees, in each case whether or not then due
and payable. In addition, the Borrower shall have reimbursed each Bank party to
the Original Credit Agreement for any amounts owing pursuant to Section 1.11(b).
5.07 Adverse Change, etc. (a) On or prior to the Restatement
Effective Date, nothing shall have occurred (and the Agents shall have become
aware of no facts or conditions not previously known) which is reasonably likely
to have a material adverse effect on the rights or remedies of the Banks or the
Agents, or on the ability of the Borrower or its Subsidiaries to perform their
obligations to the Banks or which is reasonably likely to have a materially
adverse effect on the business, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries taken
as a whole, in each case after giving effect to the consummation of the
Transaction.
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(b) All necessary governmental approvals and/or consents, all
necessary shareholder and board of director approvals and/or consents, in each
case in connection with the Transaction and the other transactions contemplated
by the Documents and otherwise referred to herein or therein shall have been
obtained and remain in effect, and all applicable waiting periods with respect
thereto shall have expired without any action being taken by any competent
authority which restrains, prevents or imposes materially adverse conditions
upon, the consummation of the Transaction or the other transactions contemplated
by the Credit Documents or otherwise referred to herein or therein.
Additionally, there shall not exist any judgment, order, injunction or other
restraint issued or filed or a hearing seeking injunctive relief or other
restraint pending or notified prohibiting or imposing materially adverse
conditions upon the Transaction or the other transactions contemplated by the
Credit Documents.
5.08 Litigation. On the Restatement Effective Date, no
litigation by any entity (private or governmental) shall be pending or
threatened (i) with respect to the Transaction or any Document or (ii) which is
reasonably likely to have a material adverse effect on the rights or remedies of
the Banks or the Agents, or on the ability of the Borrower or its Subsidiaries
to perform their obligations to the Banks or which is reasonably likely to have
a materially adverse effect on the business, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole, in each case after giving effect to the
consummation of the Transaction.
5.09 Pledge Agreement. On the Restatement Effective Date, each
Credit Party shall have duly authorized, executed and delivered the Pledge
Agreement in the form of Exhibit G (as amended, modified or supplemented from
time to time, the "Pledge Agreement") and shall have delivered to the Collateral
Agent, as Pledgee thereunder, all of the Pledged Securities, if any, referred to
therein then owned by such Credit Party, (x) endorsed in blank in the case of
promissory notes constituting Pledged Securities and (y) together with executed
and undated stock powers in the case of capital stock constituting Pledged
Securities.
5.10 Security Agreement. On the Restatement Effective Date,
each Credit Party shall have duly authorized, executed and delivered the
Security Agreement in the form of Exhibit H (as modified, supplemented or
amended from time to time, the "Security Agreement") covering all of such Credit
Party's present and future Security Agreement Collateral, together with:
(i) proper Financing Statements (Form UCC-1 or the equivalent)
fully executed for filing under the UCC or other appropriate filing
offices of each jurisdiction as may be necessary or, in the reasonable
opinion of the Collateral Agent, desirable to perfect the security
interests purported to be created by the Security Agreement;
(ii) copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, listing all effective financing
statements that name any Credit Party as debtor and that are filed in
the jurisdictions referred to in clause (i) above, together with copies
of such other financing statements that name any Credit Party as debtor
(none of which shall cover the Collateral except to the extent
evidencing Permitted Liens or in
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respect of which the Collateral Agent shall have received termination
statements (Form UCC-3) or such other termination statements as shall
be required by local law fully executed for filing); and
(iii) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect and
protect the security interests purported to be created by the Security
Agreement have been (or within 10 days following the Restatement
Effective Date will be) taken.
5.11 Subsidiaries Guaranty. On the Restatement Effective Date,
each Subsidiary Guarantor shall have duly authorized, executed and delivered the
Subsidiaries Guaranty in the form of Exhibit I (as amended, modified or
supplemented from time to time, the "Subsidiaries Guaranty").
5.12 Mortgages; Title Insurance; Survey; etc. On the
Restatement Effective Date, the Collateral Agent shall have received:
(i) fully executed counterparts of amendments to the
Mortgages, in form and substance reasonably satisfactory to the Agents,
which Mortgages shall cover the Mortgaged Properties owned by the
Credit Parties on the Restatement Effective Date as designated on
Schedule III, together with evidence that counterparts of such
Mortgages and amendments have been delivered to the title insurance
company insuring the Lien of such Mortgages for recording in all places
to the extent necessary or, in the reasonable opinion of the Collateral
Agent, desirable, to effectively create a valid and enforceable first
priority mortgage lien on each such Mortgaged Property in favor of the
Collateral Agent (or such other trustee as may be required or desired
under local law) for the benefit of the Secured Creditors;
(ii) a mortgagee title insurance policy on each such Mortgaged
Property issued by a title insurer reasonably satisfactory to the
Agents (the "Mortgage Policies") in amounts satisfactory to the Agents
assuring the Collateral Agent that the Mortgages (as amended) on such
Mortgaged Properties are valid and enforceable first priority mortgage
liens on the respective Mortgaged Properties, free and clear of all
defects and encumbrances except Permitted Encumbrances and such
Mortgage Policies shall otherwise be in form and substance reasonably
satisfactory to the Agents and shall include, as appropriate, an
endorsement for future advances under this Agreement and the Notes and
for any other matter that any Agent in its reasonable discretion may
reasonably request, shall not include (to the extent permissible under
applicable state law) an exception for mechanics' liens, and shall
provide for affirmative insurance and such reinsurance as any Agent in
its discretion may reasonably request;
(iii) a survey, in form and substance reasonably satisfactory
to the Agents, of each such Mortgaged Property, certified by a licensed
professional surveyor reasonably satisfactory to the Agents; and
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(iv) such landlord waivers and/or estoppel certificates as any
Agent may have reasonably required, which landlord waivers and/or
estoppel certificates shall be in form and substance reasonably
satisfactory to the Agents.
5.13 Projections; Pro Forma Balance Sheet. On or prior to the
Restatement Effective Date, the Agents shall have received copies of the
financial statements (including the pro forma financial statements) and
Projections referred to in Sections 7.05(a) and (d).
5.14 Solvency Certificate; Insurance Certificates. On the
Restatement Effective Date, the Borrower shall have delivered to the Agents:
(i) a solvency certificate from the Chief Financial Officer of
the Borrower in the form of Exhibit J; and
(ii) certificates of insurance complying with the requirements
of Section 8.03 for the business and properties of the Borrower and its
Subsidiaries, in form and substance satisfactory to the Agents and
naming the Collateral Agent as an additional insured and as loss payee,
and stating that such insurance shall not be cancelled without at least
30 days prior written notice by the insurer to the Collateral Agent (or
such shorter period of time as a particular insurance company generally
provides).
5.15 Fees, etc. On the Restatement Effective Date, the
Borrower shall have paid to the Agents and each Bank all costs, fees and
expenses (including, without limitation, legal fees and expenses) payable to the
Agents and such Bank to the extent then due.
SECTION 6. Conditions Precedent to All Credit Events. The
obligation of each Bank to make Loans (including Loans made on the Restatement
Effective Date), and the obligation of any Issuing Bank to issue any Letter of
Credit (including Letters of Credit issued on the Restatement Effective Date),
is subject, at the time of each such Credit Event (except as hereinafter
indicated), to the satisfaction of the following conditions:
6.01 No Default; Representations and Warranties. At the time
of each such Credit Event and also after giving effect thereto (i) there shall
exist no Default or Event of Default and (ii) all representations and warranties
contained herein or in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date).
6.02 Notice of Borrowing; Letter of Credit Request. Prior to
the making of each Loan (other than a Swingline Loan or a Revolving Loan made
pursuant to a Mandatory Borrowing), the Administrative Agent shall have received
a Notice of Borrowing meeting the requirements of Section 1.03(a). Prior to the
making of each Swingline Loan, the Swingline Bank shall have received the notice
referred to in Section 1.03(b)(i).
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(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Issuing Bank shall have received a
Letter of Credit Request meeting the requirements of Section 2.03.
The acceptance of the proceeds of each Loan and the making of
each Letter of Credit Request shall constitute a representation and warranty by
the Borrower to the Agents and each of the Banks that all the conditions
specified in Section 5 (with respect to Credit Events on the Restatement
Effective Date) and in this Section 6 (with respect to Credit Events on and
after the Restatement Effective Date) and applicable to such Credit Event exist
as of that time. All of the Notes, certificates, legal opinions and other
documents and papers referred to in Section 5 and in this Section 6, unless
otherwise specified, shall be delivered to the Administrative Agent at the
Notice Office for the account of each of the Banks and, except for the Notes, in
sufficient counterparts or copies for each of the Banks and shall be in form and
substance reasonably satisfactory to the Agents and the Required Banks.
SECTION 7. Representations, Warranties and Agreements. In
order to induce the Banks to enter into this Agreement and to make the Loans,
and issue (or participate in) the Letters of Credit as provided herein, the
Borrower makes the following representations, warranties and agreements, in each
case after giving effect to the Transaction, all of which shall survive the
execution and delivery of this Agreement and the Notes and the making of the
Loans and issuance of the Letters of Credit, with the occurrence of each Credit
Event on or after the Restatement Effective Date being deemed to constitute a
representation and warranty that the matters specified in this Section 7 are
true and correct in all material respects on and as of the Restatement Effective
Date and on the date of each such Credit Event (it being understood and agreed
that any representation or warranty which by its terms is made as of a specified
date shall be required to be true and correct only as of such specified date).
7.01 Corporate and Other Status. Each Credit Party and each of
its Subsidiaries (i) is a duly organized and validly existing corporation or
partnership, as the case may be, in good standing under the laws of the
jurisdiction of its organization, (ii) has the corporate or partnership power
and authority to own its property and assets and to transact the business in
which it is engaged and presently proposes to engage and (iii) is duly qualified
and is authorized to do business and is in good standing in each jurisdiction
where the ownership, leasing or operation of its property or the conduct of its
business requires such qualifications except for failures to be so qualified
which, individually or in the aggregate, could not reasonably be expected to
have a material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower or
the Borrower and its Subsidiaries taken as a whole.
7.02 Corporate and Other Power and Authority. Each Credit
Party has the corporate or partnership power and authority to execute, deliver
and perform the terms and provisions of each of the Documents to which it is
party and has taken all necessary corporate or partnership action to authorize
the execution, delivery and performance by it of each of such Documents. Each
Credit Party has duly executed and delivered each of the Documents to which it
is party, and each of such Documents constitutes its legal, valid and binding
obligation
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enforceable in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law).
7.03 No Violation. Neither the execution, delivery or
performance by any Credit Party of the Documents to which it is a party, nor
compliance by it with the terms and provisions thereof, (i) will contravene any
provision of any law, statute, rule or regulation or any order, writ, injunction
or decree of any court or governmental instrumentality, (ii) will conflict with
or result in any breach of any of the terms, covenants, conditions or provisions
of, or constitute a default under, or result in the creation or imposition of
(or the obligation to create or impose) any Lien (except pursuant to the
Security Documents) upon any of the property or assets of the Borrower or any of
its Subsidiaries pursuant to the terms of any indenture, mortgage, deed of
trust, credit agreement or loan agreement, or any other material agreement,
contract or instrument, to which the Borrower or any of its Subsidiaries is a
party or by which it or any of its property or assets is bound or to which it
may be subject or (iii) will violate any provision of the certificate of
incorporation, by-laws or partnership agreement (or equivalent organizational
documents) of the Borrower or any of its Subsidiaries.
7.04 Approvals. (a) No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except for those that have otherwise been obtained or made on or prior to the
Restatement Effective Date and which remain in full force and effect on the
Restatement Effective Date, or to the extent not required to be obtained or made
on or prior to the Restatement Effective Date, as will be obtained or made on or
prior to the required date therefor), or exemption by, any governmental or
public body or authority, or any subdivision thereof, is required to authorize,
or is required in connection with, (i) the execution, delivery and performance
of any Document or (ii) the legality, validity, binding effect or enforceability
of any such Document.
(b) All necessary shareholder and board of director approvals
and/or consents and all material third party non-governmental approvals and/or
consents required to be obtained by the Borrower, SKL or any Credit Party, in
each case in connection with the Transaction and the execution, delivery and
performance of any Document have been obtained by the Borrower, SKL and each
Credit Party and remain in full force and effect on the Restatement Effective
Date.
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. The consolidated balance sheet of the Borrower
and its Subsidiaries at September 30, 1997 and September 30, 1998 and the
related consolidated statements of operations, cash flows and shareholders'
equity of the Borrower and its Subsidiaries for the fiscal years ended on such
dates, respectively, copies of which have been furnished to the Banks prior to
the Restatement Effective Date, present fairly the financial position of the
Borrower and its Subsidiaries at the date of such balance sheets and the results
of the operations of the Borrower and its Subsidiaries for the periods covered
thereby. After giving effect to the Transaction (but for this purpose assuming
that the Transaction had occurred prior to September 30, 1998), since September
30, 1998, there has been no material adverse change in the business, operations,
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property, assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower or the Borrower and its Subsidiaries taken as a whole.
(b) (i) On and as of the Restatement Effective Date and after
giving effect to the Transaction and to all Indebtedness (including the Loans)
being incurred or assumed and Liens created by the Credit Parties in connection
therewith, (a) the sum of the assets, at a fair valuation, of each of the
Borrower on a stand alone basis and of the Borrower and its Subsidiaries taken
as a whole will exceed its debts; (b) each of the Borrower on a stand alone
basis and the Borrower and its Subsidiaries taken as a whole has not incurred
and does not intend to incur, and does not believe that they will incur, debts
beyond their ability to pay such debts as such debts mature; and (c) each of the
Borrower on a stand alone basis and the Borrower and its Subsidiaries taken as a
whole will have sufficient capital with which to conduct its business. For
purposes of this Section 7.05(b), "debt" means any liability on a claim, and
"claim" means (i) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured. The amount of contingent liabilities at any time shall be computed
as the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
(c) Except as fully disclosed in the financial statements
delivered pursuant to Section 7.05(a) there were as of the Restatement Effective
Date no liabilities or obligations with respect to the Borrower or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in aggregate,
could reasonably be expected to have a material and adverse effect on the
Borrower and its Subsidiaries taken as a whole. As of the Restatement Effective
Date, the Borrower does not know of any basis for the assertion against it or
any of its Subsidiaries of any liability or obligation of any nature whatsoever
that is not fully disclosed in the financial statements delivered pursuant to
Section 7.05(a) which, either individually or in the aggregate, could reasonably
be expected to be material to the Borrower or the Borrower and its Subsidiaries
taken as a whole.
(d) On and as of the Restatement Effective Date, the
Projections delivered to the Agents and the Banks prior to the Restatement
Effective Date have been prepared in good faith and are based on reasonable
assumptions. On the Restatement Effective Date, the Borrower believes that the
Projections are reasonable, it being understood that the Projections include
assumptions as to future events that are not to be viewed as facts and that
actual results may differ from the projected results and such differences may be
material.
7.06 Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of the Borrower, threatened (i) with respect
to any Document or (ii) that are reasonably likely to materially and adversely
affect the business, operations, property, assets,
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liabilities, condition (financial or otherwise) or prospects of the Borrower or
the Borrower and its Subsidiaries taken as a whole.
7.07 True and Complete Disclosure. All factual information
(taken as a whole) furnished by any Credit Party in writing to any Agent or any
Bank (including, without limitation, all information contained in the Documents)
for purposes of or in connection with this Agreement, the other Credit Documents
or any transaction contemplated herein or therein is, and all other such factual
information hereafter furnished by or on behalf of any Credit Party in writing
to any Agent or any Bank will be, true and accurate in all material respects on
the date as of which such information is dated or certified and not incomplete
by omitting to state any fact necessary to make such information not misleading
in any material respect at such time in light of the circumstances under which
such information was provided.
7.08 Use of Proceeds; Margin Regulations. (a) All proceeds of
the Term Loans will be used by the Borrower (i) to refinance Indebtedness of the
Borrower outstanding under the Original Credit Agreement, (ii) to finance
payment of the Earnout and (iii) to pay fees and expenses related to the
Transaction.
(b) The proceeds of all Revolving Loans and all Swingline
Loans will be used for the Borrower's and its Subsidiaries' general corporate
and working capital purposes.
(c) No part of any Credit Event (or the proceeds thereof) will
be used to purchase or carry any Margin Stock or to extend credit for the
purpose of purchasing or carrying any Margin Stock. Neither the making of any
Loan nor the use of the proceeds thereof nor the occurrence of any other Credit
Event will violate or be inconsistent with the provisions of Regulation G, T, U
or X of the Board of Governors of the Federal Reserve System.
7.09 Tax Returns and Payments. Each of the Borrower and each
of its Subsidiaries has filed all federal income tax returns and all other
material tax returns, domestic and foreign, required to be filed by it and has
paid all material taxes and assessments payable by it which have become due,
except for those contested in good faith and adequately disclosed and fully
provided for on the financial statements of the Borrower and its Subsidiaries in
accordance with generally accepted accounting principles. The Borrower and each
of its Subsidiaries have at all times paid, or have provided adequate reserves
(in the good faith judgment of the management of the Borrower) for the payment
of, all federal, state and foreign income taxes applicable for all prior fiscal
years and for the current fiscal year to date. There is no material action,
suit, proceeding, investigation, audit, or claim now pending or, to the
knowledge of the Borrower or any of its Subsidiaries, threatened by any
authority regarding any taxes relating to the Borrower or any of its
Subsidiaries. Neither the Borrower nor any of its Subsidiaries has entered into
an agreement or waiver or been requested to enter into an agreement or waiver
extending any statute of limitations relating to the payment or collection of
taxes of the Borrower or any of its Subsidiaries, or is aware of any
circumstances that would cause the taxable years or other taxable periods of the
Borrower or any of its Subsidiaries not to be subject to the normally applicable
statute of limitations.
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7.10 Compliance with ERISA. (i) Each Plan and to the knowledge
of the Borrower each Multiemployer Plan (and each related trust, insurance
contract or fund) is in substantial compliance with its terms and with all
applicable laws, including, without limitation, ERISA and the Code; each Plan
and to the knowledge of the Borrower each Multiemployer Plan (and each related
trust, if any) which is intended to be qualified under Section 401(a) of the
Code has received a determination letter from the Internal Revenue Service to
the effect that it meets the requirements of Sections 401(a) and 501(a) of the
Code; no Reportable Event has occurred with respect to a Plan; to the knowledge
of the Borrower, no Multiemployer Plan is insolvent or in reorganization; no
Plan has an Unfunded Current Liability; no Plan and to the knowledge of the
Borrower no Multiemployer Plan which is subject to Section 412 of the Code or
Section 302 of ERISA has an accumulated funding deficiency, within the meaning
of such sections of the Code or ERISA, or has applied for or received a waiver
of an accumulated funding deficiency or an extension of any amortization period,
within the meaning of Section 412 of the Code or Section 303 or 304 of ERISA;
all material contributions required to be made by the Borrower, any Subsidiary
of the Borrower or any ERISA Affiliate with respect to a Plan or a Multiemployer
Plan have been timely made; neither the Borrower nor any Subsidiary of the
Borrower nor any ERISA Affiliate has incurred any material liability (including
any indirect or secondary liability) to or on account of a Plan pursuant to
Section 409, 502(i), 502(l), 4062, 4063, 4064 or 4069 of ERISA or Section
401(a)(29), 4971 or 4975 of the Code or expects to incur any such material
liability under any of the foregoing sections with respect to any Plan; to the
knowledge of the Borrower and its Subsidiaries, no condition exists which
presents a material risk to the Borrower or any Subsidiary of the Borrower or
any ERISA Affiliate of incurring a material liability to or on account of a Plan
pursuant to the foregoing provisions of ERISA and the Code; no proceedings have
been instituted to terminate or appoint a trustee to administer any Plan which
is subject to Title IV of ERISA; no action, suit, proceeding, hearing, audit or
investigation with respect to the administration, operation or the investment of
assets of any Plan (other than routine claims for benefits) is pending or, to
the knowledge of the Borrower and its Subsidiaries, threatened; using actuarial
assumptions and computation methods consistent with Part 1 of subtitle E of
Title IV of ERISA, the aggregate liabilities of the Borrower and its
Subsidiaries and its ERISA Affiliates to all Multiemployer Plans in the event of
a complete withdrawal therefrom, as of the close of the most recent fiscal year
of each such Plan ended prior to the date of this Agreement and with respect to
fiscal years ended prior to the date of each Credit Event would not be material;
each group health plan (as defined in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) which covers or has covered employees or former
employees of the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
has at all times been operated in substantial compliance with the provisions of
Part 6 of subtitle B of Title I of ERISA and Section 4980B of the Code; no lien
imposed under the Code or ERISA on the assets of the Borrower or any Subsidiary
of the Borrower or any ERISA Affiliate exists or is likely to arise on account
of any Plan; neither the Borrower nor any Subsidiary of the Borrower nor any
ERISA Affiliate has incurred any material liability (including any indirect or
secondary liability) under Sections 515, 4201, 4202 or 4212 of ERISA with
respect to any Multiemployer Plan; to the knowledge of the Borrower, no
condition exists which presents a material risk to the Borrower or any
Subsidiary of the Borrower or any ERISA Affiliate of incurring a material
liability to or on account of a Multiemployer Plan pursuant to the foregoing
provisions of ERISA; to the knowledge of the Borrower and its Subsidiaries, no
action, suit, proceeding, hearing, audit or
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investigation with respect to the administration, operation or the investment of
assets of any Multiemployer Plan (other than routine claims for benefits) that
could reasonably be expected to be material to the Borrower or the Borrower and
its Subsidiaries taken as a whole is pending or threatened; and the Borrower and
its Subsidiaries do not maintain or contribute to any employee welfare benefit
plan (as defined in Section 3(1) of ERISA), which provides benefits to retired
employees or other former employees (other than as required by Section 601 of
ERISA) or any Plan or Multiemployer Plan, the obligations with respect to which
could reasonably be expected to have a material adverse effect on the ability of
the Borrower or any of its Subsidiaries to perform their respective obligations
under the Credit Documents.
(ii) To the knowledge of the Borrower and its Subsidiaries,
each Foreign Pension Plan has been maintained in substantial compliance with its
terms and with the requirements of any and all applicable laws, statutes, rules,
regulations and orders and has been maintained, where required, in good standing
with applicable regulatory authorities. All material contributions required to
be made with respect to a Foreign Pension Plan have been timely made. Neither
the Borrower nor any of its Subsidiaries has incurred any material obligation in
connection with the termination of or withdrawal from any Foreign Pension Plan.
The Borrower and its Subsidiaries do not maintain or contribute to any Foreign
Pension Plan the obligations with respect to which could reasonably be expected
to have a material adverse effect on the ability of the Borrower or the Borrower
and its Subsidiaries taken as a whole to perform their obligations under the
Credit Documents.
7.11 The Security Documents. (a) The provisions of the
Security Agreement are effective to create in favor of the Collateral Agent for
the benefit of the Secured Creditors a legal, valid and enforceable security
interest in all right, title and interest of the Credit Parties party thereto in
the Security Agreement Collateral described therein, and the Collateral Agent,
for the benefit of the Secured Creditors, has a fully perfected lien on, and
security interest in, all right, title and interest in all of the Security
Agreement Collateral described therein, subject to no other Liens other than
Permitted Liens. The recordation of the Assignment of Security Interest in U.S.
Patents and Trademarks in the form attached to the Security Agreement in the
United States Patent and Trademark Office together with filings on Form UCC-1
made pursuant to the Security Agreement will create, as may be perfected by such
filing and recordation, a perfected security interest granted to the Collateral
Agent in the trademarks and patents covered by the Security Agreement and the
recordation of the Assignment of Security Interest in U.S. Copyrights in the
form attached to the Security Agreement with the United States Copyright Office
together with filings on Form UCC-1 made pursuant to the Security Agreement will
create, as may be perfected by such filing and recordation, a perfected security
interest granted to the Collateral Agent in the copyrights covered by the
Security Agreement.
(b) The security interests created in favor of the Collateral
Agent, as Pledgee, for the benefit of the Secured Creditors, under the Pledge
Agreement constitute first priority perfected security interests in the Pledged
Securities described in the Pledge Agreement, subject to no security interests
of any other Person. No filings or recordings are required in order to perfect
(or maintain the perfection or priority of) the security interests created in
the Pledged Securities under the Pledge Agreement.
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(c) The Mortgages create, for the obligations purported to be
secured thereby, a valid and enforceable perfected security interest in and
mortgage lien on all of the Mortgaged Properties in favor of the Collateral
Agent (or such other trustee as may be required or desired under local law) for
the benefit of the Secured Creditors, superior to and prior to the rights of all
third persons (except that the security interest and mortgage lien created in
the Mortgaged Properties may be subject to the Permitted Encumbrances related
thereto) and subject to no other Liens (other than Liens permitted under Section
9.01). Schedule III contains a true and complete list of each parcel of Real
Property owned or leased by the Borrower and its Subsidiaries on the Restatement
Effective Date, and the type of interest therein held by the Borrower or such
Subsidiary. The Borrower and each of its Subsidiaries have (i) good and
marketable title to all fee-owned Real Property free and clear of all Liens
except those described in the first sentence of this subsection (c) and (ii)
valid leasehold title to all Leaseholds.
7.12 Representations and Warranties in Acquisition Documents.
All representations and warranties set forth in the Acquisition Documents were
true and correct at the time as of which such representations and warranties
were (or are) made (or deemed made), except for such inaccuracies which, either
individually or in the aggregate, are not reasonably likely to have a material
adverse effect on the business, operations, property, assets, condition
(financial or otherwise) or prospects of the Acquired Business.
7.13 Properties. The Borrower and each of its Subsidiaries
have good and marketable title to all material properties owned by them,
including all material property reflected in the balance sheets referred to in
Section 7.05(a), free and clear of all Liens, other than Liens permitted by
Section 9.01.
7.14 Capitalization. On the Restatement Effective Date, the
authorized capital stock of the Borrower shall consist of (i) 100,000,000 shares
of common stock, $.01 par value per share, of which 14,271,000 shares of such
common stock are issued and outstanding and (ii) 1,500,000 shares of preferred
stock, $.01 par value per value, none of which shares of such preferred stock
are issued or outstanding. All outstanding shares of capital stock of the
Borrower have been duly and validly issued, are fully paid and nonassessable.
Except for options or warrants to purchase shares of common stock of the
Borrower held by employees and directors of the Borrower or any of its
Subsidiaries, as of the Restatement Effective Date, the Borrower does not have
outstanding any securities convertible into or exchangeable for its capital
stock or outstanding any rights to subscribe for or to purchase, or any options
for the purchase of, or any agreement providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to,
its capital stock.
7.15 Subsidiaries. As of the Restatement Effective Date, the
Borrower has no Subsidiaries other than those Subsidiaries listed on Schedule V.
Schedule V correctly sets forth, as of the Restatement Effective Date, the
percentage ownership (direct or indirect) of the Borrower in each class of
capital stock or other equity of each of its Subsidiaries and also identifies
the direct owner thereof.
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7.16 Compliance with Statutes, etc. Each of the Borrower and
each of its Subsidiaries is in compliance with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such noncompliances as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole.
7.17 Investment Company Act. Neither the Borrower nor any of
its Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.18 Public Utility Holding Company Act. Neither the Borrower
nor any of its Subsidiaries is a "holding company," or a "subsidiary company" of
a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
7.19 Environmental Matters. (a) The Borrower and each of its
Subsidiaries have complied with, and on the date of such Credit Event are in
compliance with, all applicable Environmental Laws and the requirements of any
permits issued under such Environmental Laws. There are no pending or, to the
best knowledge of the Borrower, threatened Environmental Claims against the
Borrower or any of its Subsidiaries (including any such claim arising out of the
ownership or operation by the Borrower or any of its Subsidiaries of any Real
Property no longer owned or operated by the Borrower or any of its Subsidiaries)
or any Real Property owned or operated by the Borrower or any of its
Subsidiaries. There are no facts, circumstances, conditions or occurrences with
respect to any Real Property owned or operated by the Borrower or any of its
Subsidiaries (including any Real Property formerly owned or operated by the
Borrower or any of its Subsidiaries but no longer owned or operated by the
Borrower or any of its Subsidiaries) or, to the best knowledge of the Borrower,
any property adjoining or adjacent to any such Real Property that could
reasonably be expected (i) to form the basis of an Environmental Claim against
the Borrower or any of its Subsidiaries or any Real Property owned or operated
by the Borrower or any of its Subsidiaries, or (ii) to cause any Real Property
owned or operated by the Borrower or any of its Subsidiaries to be subject to
any restrictions on the ownership, occupancy or transferability of such Real
Property by the Borrower or any of its Subsidiaries under any applicable
Environmental Law.
(b) Hazardous Materials have not at any time been generated,
used, treated or stored on, or transported to or from, any Real Property owned
or operated by the Borrower or any of its Subsidiaries where such generation,
use, treatment or storage has violated or could reasonably be expected to
violate any Environmental Law. Hazardous Materials have not at any time been
Released on or from any Real Property owned or operated by the Borrower or any
of its Subsidiaries where such Release has violated or could reasonably be
expected to violate any applicable Environmental Law.
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(c) Notwithstanding anything to the contrary in this Section
7.19, the representations made in this Section 7.19 shall not be untrue unless
the aggregate effect of all violations, claims, restrictions, failures and
noncompliances of the types described above could reasonably be expected to have
a material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower or
the Borrower and its Subsidiaries taken as a whole.
7.20 Labor Relations. Neither the Borrower nor any of its
Subsidiaries is engaged in any unfair labor practice that could reasonably be
expected to have a material adverse effect on the Borrower or the Borrower and
its Subsidiaries taken as a whole. There is (i) no unfair labor practice
complaint pending against the Borrower or any of its Subsidiaries or, to the
best knowledge of the Borrower or any of its Subsidiaries, threatened against
any of them, before the National Labor Relations Board, and no grievance or
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against the Borrower or any of its Subsidiaries or, to
the best knowledge of the Borrower, threatened against any of them, (ii) no
strike, labor dispute, slowdown or stoppage pending against the Borrower or any
of its Subsidiaries or, to the best knowledge of the Borrower or any of its
Subsidiaries, threatened against the Borrower or any of its Subsidiaries and
(iii) no union representation question exists with respect to the employees of
the Borrower or any of its Subsidiaries, except (with respect to any matter
specified in clause (i), (ii) or (iii) above, either individually or in the
aggregate) such as could not reasonably be expected to have a material adverse
effect on the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower or any of its Subsidiaries
and its Subsidiaries taken as a whole.
7.21 Patents, Licenses, Franchises and Formulas. Each of the
Borrower and each of its Subsidiaries owns all the patents, trademarks, permits,
service marks, trade names, copyrights, licenses, franchises, proprietary
information (including but not limited to rights in computer programs and
databases) and formulas, or rights with respect to the foregoing, and has
obtained assignments of all leases and other rights of whatever nature,
necessary for the present conduct of its business, without any known conflict
with the rights of others which, or the failure to obtain which, as the case may
be, could reasonably be expected to result in a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole.
7.22 Indebtedness. Schedule VI sets forth a true and complete
list of all Indebtedness (including Contingent Obligations) of the Borrower and
its Subsidiaries as of the Restatement Effective Date and which is to remain
outstanding after giving effect to the Transaction (excluding the Loans, the
Letters of Credit and Indebtedness permitted under Section 9.04(iii), the
"Existing Indebtedness"), in each case showing the aggregate principal amount
thereof and the name of the respective borrower and any Credit Party or any of
its Subsidiaries which directly or indirectly guaranteed such debt.
7.23 Transaction. At the time of consummation thereof, the
Transaction shall have been consummated in accordance with the terms of the
respective Documents and all applicable laws. At the time of consummation
thereof, all material consents and approvals of,
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and filings and registrations with, and all other actions in respect of, all
governmental agencies, authorities or instrumentalities required in order to
make or consummate the Transaction to the extent then required have been
obtained, given, filed or taken and are or will be in full force and effect (or
effective judicial relief with respect thereto has been obtained). All
applicable waiting periods with respect thereto have or, prior to the time when
required, will have, expired without, in all such cases, any action being taken
by any competent authority which restrains, prevents, or imposes material
adverse conditions upon the Transaction. Additionally, there does not exist any
judgment, order or injunction prohibiting or imposing material adverse
conditions upon the Transaction, or the occurrence of any Credit Event or the
performance by any Credit Party of its obligations under the Documents to which
it is party. All actions taken by each Credit Party pursuant to or in
furtherance of the Transaction have been taken in compliance in all material
respects with the respective Documents and all applicable laws.
SECTION 8. Affirmative Covenants. The Borrower hereby
covenants and agrees that on and after the Restatement Effective Date and until
the Total Commitments and all Letters of Credit have terminated and the Loans,
Notes and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder and thereunder, are paid in full:
8.01 Information Covenants. The Borrower will furnish to each
Bank:
(a) Quarterly Financial Statements. Within 45 days after the
close of the first three quarterly accounting periods in each fiscal
year of the Borrower, (i) the consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such quarterly
accounting period and the related consolidated statements of income and
retained earnings and statement of cash flows for such quarterly
accounting period and for the elapsed portion of the fiscal year ended
with the last day of such quarterly accounting period, in each case
setting forth comparative figures for the related periods in the prior
fiscal year, all of which shall be certified by the Chief Financial
Officer of the Borrower or another senior financial officer of the
Borrower, subject to normal year-end audit adjustments and (ii)
management's discussion and analysis of the important operational and
financial developments during the quarterly and year-to-date periods,
it being understood that the delivery by the Borrower of its Form 10Q
as filed with the SEC shall satisfy the requirements of this Section
8.01(a).
(b) Annual Financial Statements. Within 90 days after the
close of each fiscal year of the Borrower, (i) the consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such fiscal
year and the related consolidated statements of income and retained
earnings and of cash flows for such fiscal year setting forth
comparative figures for the preceding fiscal year and certified by
Price Waterhouse LLP, any other "Big Six" independent certified public
accountants or such other independent certified public accountants of
recognized national standing reasonably acceptable to the Agents, in
each case to the effect that such statements fairly present in all
material respects the financial condition of the Borrower and its
Subsidiaries as of the dates indicated and the results of their
operations and changes in its financial position for the periods
indicated in conformity with generally accepted accounting principles
applied on
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a basis consistent with prior years, together with a certificate of
such accounting firm stating that in the course of its regular audit of
the business of the Borrower and its Subsidiaries, which audit was
conducted in accordance with generally accepted auditing standards, no
Default or Event of Default which has occurred and is continuing has
come to their attention or, if such a Default or an Event of Default
has come to their attention a statement as to the nature thereof.
(c) Management Letters. Promptly after the Borrower's or any
of its Subsidiaries' receipt thereof, a copy of any "management letter"
received from its certified public accountants.
(d) Budgets. No later than the 30th day following the start of
each fiscal year of the Borrower, a budget in form satisfactory to the
Agents (including budgeted statements of income and sources and uses of
cash and balance sheets, with such information to be set forth on a
quarterly basis) prepared by the Borrower for such fiscal year prepared
in detail, setting forth, with appropriate discussion, the principal
assumptions upon which such budget was based.
(e) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 8.01(a) and (b), a
certificate of the Chief Financial Officer of the Borrower or another
senior financial officer of the Borrower acceptable to the Agents to
the effect that, to the best of such officer's knowledge, no Default or
Event of Default has occurred and is continuing or, if any Default or
Event of Default has occurred and is continuing, specifying the nature
and extent thereof, which certificate shall (x) set forth in reasonable
detail the calculations required to establish whether the Borrower and
its Subsidiaries were in compliance with the provisions of Sections
9.08 through 9.10, inclusive, at the end of such fiscal quarter or
year, as the case may be and (y) if delivered with the financial
statements required by Section 8.01(b), set forth in reasonable detail
the calculations required to establish whether the Borrower and its
Subsidiaries were in compliance with the provisions of Sections 4.02(e)
and 9.07 as at the end of such fiscal year and the amount of (and the
calculations required to establish the amount of) Excess Cash Flow for
the respective Excess Cash Payment Period.
(f) Notice of Default or Litigation. Promptly upon, and in any
event within three Business Days after, an officer of the Borrower
obtains knowledge thereof, notice of (i) the occurrence of any event
which constitutes a Default or an Event of Default and (ii) any
litigation or governmental investigation or proceeding pending (x)
against the Borrower or any of its Subsidiaries which could reasonably
be expected to materially and adversely affect the business,
operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or the Borrower and its
Subsidiaries taken as a whole or (y) with respect to the Transaction or
any Document.
(g) Other Reports and Filings. Promptly after the filing or
delivery thereof, copies of all financial information, proxy materials
and reports, if any, which the Borrower or any of its Subsidiaries
shall publicly file with the Securities and Exchange
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Commission or any successor thereto (the "SEC") or deliver to holders
of its Indebtedness pursuant to the terms of the documentation
governing such Indebtedness (or any trustee, agent or other
representative therefor).
(h) Environmental Matters. Promptly upon, and in any event
within ten Business Days after, an officer of the Borrower obtains knowledge
thereof, notice of one or more of the following environmental matters, unless
such environmental matters could not, individually or when aggregated with all
other such environmental matters, be reasonably expected to materially and
adversely affect the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower or the Borrower
and its Subsidiaries taken as a whole:
(i) any pending or threatened Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Property owned or
operated by the Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real
Property owned or operated by the Borrower or any of its Subsidiaries
that (a) results in noncompliance by the Borrower or any of its
Subsidiaries with any applicable Environmental Law or (b) could
reasonably be expected to form the basis of an Environmental Claim
against the Borrower or any of its Subsidiaries or any such owned or
operated Real Property;
(iii) any condition or occurrence on any Real Property owned
or operated by the Borrower or any of its Subsidiaries that could
reasonably be expected to cause such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability by the
Borrower or any of its Subsidiaries of such Real Property under any
Environmental Law; and
(iv) the taking of any removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any Real
Property owned or operated by the Borrower or any of its Subsidiaries
as required by any Environmental Law or any governmental or other
administrative agency; provided, that in any event the Borrower shall
deliver to each Bank all notices received by the Borrower or any of its
Subsidiaries from any government or governmental agency under, or
pursuant to, CERCLA which identify the Borrower or any of its
Subsidiaries as potentially responsible parties for remediation costs
which reasonably could be expected to exceed $500,000 or which
otherwise notify the Borrower or any of its Subsidiaries of potential
liability which reasonably could be expected to exceed $500,000 under
CERCLA.
All such notices shall describe in reasonable detail the
nature of the claim, investigation, condition, occurrence or removal or remedial
action and the Borrower's or such Subsidiary's response thereto.
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(i) Other Information. From time to time, such other
information or documents (financial or otherwise) with respect to the Borrower
or any of its Subsidiaries as any Agent or any Bank may reasonably request.
8.02 Books, Records and Inspections. The Borrower will, and
will cause each of its Subsidiaries to, keep proper books of record and accounts
in which full, true and correct entries in conformity with generally accepted
accounting principles and all requirements of law shall be made of all dealings
and transactions in relation to its business and activities. Upon reasonable
notice to the Borrower, the Borrower will, and will cause each of its
Subsidiaries to, permit officers and designated representatives of any Agent or
any Bank to visit and inspect, under guidance of officers of the Borrower or
such Subsidiary, any of the properties owned or leased by the Borrower or such
Subsidiary, and to examine the books of account of the Borrower or such
Subsidiary and discuss the affairs, finances and accounts of the Borrower or
such Subsidiary with, and be advised as to the same by, its and their officers
and independent accountants, all at such reasonable times and intervals and to
such reasonable extent as such Agent or such Bank may request.
8.03 Maintenance of Property; Insurance. (a) Schedule VII sets
forth a true and complete listing of all insurance maintained by the Borrower
and its Subsidiaries as of the Restatement Effective Date. The Borrower will,
and will cause each of its Subsidiaries to, (i) keep all property owned or
leased by the Borrower and its Subsidiaries necessary to the business of the
Borrower and its Subsidiaries in reasonably good working order and condition,
ordinary wear and tear excepted, (ii) maintain, with financially sound and
reputable insurers, insurance on all such property (including, without
limitation, flood insurance to the extent applicable) in at least such amounts
and against at least such risks as is consistent and in accordance with industry
practice for companies similarly situated owning similar properties in the same
general areas in which the Borrower or any of its Subsidiaries operates, and
(iii) furnish to any Agent or any Bank, upon written request, full information
as to the insurance carried.
(b) The Borrower will, and will cause each of the other Credit
Parties to, at all times keep its property insured, with the Collateral Agent
named as loss payee or additional insured, and all policies (including Mortgage
Policies) or certificates (or certified copies thereof) with respect to such
insurance (and any other insurance maintained by the Borrower and/or such other
Credit Parties) shall (i) name the Collateral Agent as loss payee and/or
additional insured) and (ii) state that such insurance policies shall not be
cancelled without at least 30 days' prior written notice thereof by the
respective insurer to the Collateral Agent (or such shorter period of time as a
particular insurance company policy generally provides).
(c) If the Borrower or any of its Subsidiaries shall fail to
insure its property in accordance with this Section 8.03, or if the Borrower or
any of its Subsidiaries shall fail to so name the Collateral Agent as a loss
payee or additional insured with respect thereto, the Collateral Agent shall
have the right (but shall be under no obligation), after giving the Borrower
prior written notice, to procure such insurance and the Borrower agrees to
reimburse the Collateral Agent for all costs and expenses of procuring such
insurance or naming the Collateral Agent as a loss payee or additional insured
with respect thereto.
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8.04 Corporate Franchises. The Borrower will, and will cause
each of its Subsidiaries to, do or cause to be done, all things necessary to
preserve and keep in full force and effect its existence and its material
rights, franchises, licenses and patents; provided, however, that nothing in
this Section 8.04 shall prevent (i) sales of assets, mergers and other
transactions by the Borrower or any of its Subsidiaries in accordance with
Section 9.02 or (ii) the withdrawal by the Borrower or any of its Subsidiaries
of its qualification as a foreign corporation in any jurisdiction where such
withdrawal could not reasonably be expected to have a material adverse effect on
the business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole.
8.05 Compliance with Statutes, etc. The Borrower will, and
will cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such noncompliances as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole.
8.06 Compliance with Environmental Laws. (a) The Borrower will
comply, and will cause each of its Subsidiaries to comply, with all
Environmental Laws applicable to the ownership or use of its Real Property now
or hereafter owned or operated by the Borrower or any of its Subsidiaries
(except such noncompliances as could not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower or the Borrower and its Subsidiaries taken as a
whole), will promptly pay or cause to be paid all costs and expenses incurred in
connection with such compliance, and will keep or cause to be kept all such Real
Property free and clear of any Liens imposed pursuant to such Environmental
Laws. Neither the Borrower nor any of its Subsidiaries will generate, use,
treat, store, release or dispose of, or permit the generation, use, treatment,
storage, release or disposal of Hazardous Materials on any Real Property now or
hereafter owned or operated by the Borrower or any of its Subsidiaries, or
transport or permit the transportation of Hazardous Materials to or from any
such Real Property, except to the extent that any such generation, use,
treatment, storage, release or disposal could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole.
(b) At the written request of the Agents or the Required
Banks, which request shall specify in reasonable detail the basis therefor, at
any time and from time to time, the Borrower will provide, at the sole expense
of the Borrower, an environmental site assessment report concerning any Real
Property owned or operated by the Borrower or any of its Subsidiaries, prepared
by an environmental consulting firm reasonably approved by the Agents,
indicating the presence or absence of Hazardous Materials and the potential cost
of any removal or remedial action in connection with such Hazardous Materials on
such Real Property, provided that in no event shall
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such request be made more often than once every two years for any particular
Real Property unless either (i) the Obligations have been declared (or have
become) due and payable pursuant to Section 10 or (ii) the Banks receive notice
under Section 8.01(h) of any event for which notice is required to be delivered
for any such Real Property. If the Borrower fails to provide the same within 90
days after such request was made, the Agents may order the same, the cost of
which shall be borne by the Borrower, and the Borrower shall grant and hereby
grants to the Agents and the Banks and their agents access to such Real Property
and specifically grants the Agents and the Banks an irrevocable non-exclusive
license, subject to the rights of tenants, to undertake such an assessment at
any reasonable time upon reasonable notice to the Borrower, all at the sole and
reasonable expense of the Borrower.
8.07 ERISA. As soon as possible and, in any event, within
fifteen Business Days after the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate knows of the occurrence of any of the following, the Borrower
will deliver to each of the Banks a certificate of the Chief Financial Officer
of the Borrower setting forth the full details as to such occurrence and the
action, if any, that the Borrower, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or proposed to
be given to or filed with or by the Borrower, the Subsidiary, the ERISA
Affiliate, the PBGC, a Plan participant or the Plan administrator with respect
thereto: that a Reportable Event has occurred; that an accumulated funding
deficiency, within the meaning of Section 412 of the Code or Section 302 of
ERISA, has been incurred or an application may be or has been made for a waiver
or modification of the minimum funding standard (including any required
installment payments) or an extension of any amortization period under Section
412 of the Code or Section 303 or 304 of ERISA with respect to a Plan or a
Multiemployer Plan; that a contribution for a material amount required to be
made with respect to a Plan, a Multiemployer Plan or a Foreign Pension Plan has
not been timely made; that a Plan or a Multiemployer Plan has been or may be
terminated under Section 4041(c) or 4042 of ERISA, reorganized, partitioned or
declared insolvent under Title IV of ERISA; that a Plan has an Unfunded Current
Liability; that proceedings may be or have been instituted to terminate or
appoint a trustee to administer a Plan or a Multiemployer Plan which is subject
to Title IV of ERISA; that a proceeding has been instituted pursuant to Section
515 of ERISA to collect a delinquent contribution to a Multiemployer Plan; that
the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate will or may
incur any material liability (including any indirect or secondary liability) to
or on account of the termination of or withdrawal from a Plan under Section
4062, 4063, 4064 or 4069 of ERISA or with respect to a Plan under Section
401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or 502(i) or 502(l) of
ERISA or under Section 4980B(a) of the Code with respect to a group health plan
(as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under
Section 4980B of the Code or with respect to a Multiemployer Plan under Sections
4201, 4204 or 4212 of ERISA; or that the Borrower or any Subsidiary of the
Borrower may incur any material liability pursuant to any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to
retired employees or other former employees (other than as required by Section
601 of ERISA) or any Plan which is subject to Title IV of ERISA, any
Multiemployer Plan or any Foreign Pension Plan. Upon written request of any
Agent, the Borrower will deliver to each of the Banks a complete copy of the
annual report (on Internal Revenue Service Form 5500-series) of each Plan
(including, to the extent required, the related financial and actuarial
statements and opinions and other supporting
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statements, certifications, schedules and information) required to be filed with
the Internal Revenue Service or any other material financial information the
Borrower or any Subsidiary has with respect to any Plan. In addition to any
certificates or notices delivered to the Banks pursuant to the first sentence
hereof, copies of any material notices pertaining to the foregoing events
received by the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
with respect to any Plan, Multiemployer Plan or Foreign Pension Plan shall be
delivered to the Banks no later than ten Business Days after the date such
notice has been received by the Borrower, the Subsidiary or the ERISA Affiliate,
as applicable.
8.08 End of Fiscal Years; Fiscal Quarters. The Borrower will
cause (i) each of its, and each of its Subsidiaries', fiscal years to end on
September 30, and (ii) each of its, and each of its Subsidiaries', fiscal
quarters to end on December 31, March 31, June 30 and September 30.
8.09 Performance of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, perform all of its obligations under the
terms of each mortgage, indenture, security agreement, loan agreement or credit
agreement and each other material agreement, contract or instrument by which it
is bound, except such non-performances as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole.
8.10 Payment of Taxes. The Borrower will pay and discharge,
and will cause each of its Subsidiaries to pay and discharge, all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims for sums that have become
due and payable which, if unpaid, might become a Lien not otherwise permitted
under Section 9.01(i); provided, that neither the Borrower nor any of its
Subsidiaries shall be required to pay any such tax, assessment, charge, levy or
claim which is being contested in good faith and by proper proceedings if it has
maintained adequate reserves with respect thereto in accordance with generally
accepted accounting principles.
8.11 Interest Rate Protection. Within 90 days following the
Restatement Effective Date, the Borrower will enter into and thereafter
maintain, Interest Rate Protection Agreements acceptable to the Agents
establishing a fixed or maximum interest rate acceptable to the Agents for an
aggregate amount equal to at least 50% of the aggregate principal amount of all
Term Loans then outstanding.
8.12 Additional Security; Further Assurances. (a) The Borrower
will, and will cause each of the Subsidiary Guarantors to, grant to the
Collateral Agent security interests and mortgages in such assets and properties
(including Real Property) of the Borrower and such Subsidiary Guarantors which
are of the type required to be pledged or assigned pursuant to the original
Security Documents and as are not covered by such original Security Documents,
and as may be requested from time to time by the Agents or the Required Banks
(collectively, the "Additional Security Documents"). All such security interests
and mortgages shall be granted
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pursuant to documentation reasonably satisfactory in form and substance to the
Agents and shall constitute valid and enforceable perfected security interests
and mortgages superior to and prior to the rights of all third Persons and
subject to no other Liens except for Permitted Liens. The Additional Security
Documents or instruments related thereto shall have been duly recorded or filed
in such manner and in such places as are required by law to establish, perfect,
preserve and protect the Liens in favor of the Collateral Agent required to be
granted pursuant to the Additional Security Documents and all taxes, fees and
other charges payable in connection therewith shall have been paid in full.
(b) The Borrower will, and will cause each of the Subsidiary
Guarantors to, at the expense of the Borrower, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral Agent from time to time such
vouchers, invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports and other assurances or instruments and take such
further steps relating to the collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require. Furthermore, the
Borrower will cause to be delivered to the Collateral Agent such opinions of
counsel, title insurance and other related documents as may be reasonably
requested by the Agents to assure itself that this Section 8.12 has been
complied with.
(c) On the Earnout Payment Date, the Borrower will provide to
the Agents evidence of payment by the Borrower of the Earnout.
(d) The Borrower agrees that, unless specified otherwise, each
action required above by this Section 8.12 shall be completed within 90 days
after such action is either requested to be taken by the Agents or the Required
Banks or required to be taken by the Borrower and the Subsidiary Guarantors
pursuant to the terms of this Section 8.12.
8.13 Foreign Subsidiaries Security. If following a change in
the relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for the
Borrower reasonably acceptable to the Agents does not within 30 days after a
request from the Agents or the Required Banks deliver evidence, in form and
substance mutually satisfactory to the Agents and the Borrower, with respect to
any Foreign Subsidiary of the Borrower which has not already had all of its
stock pledged pursuant to the Pledge Agreement that (i) a pledge of 662/3% or
more of the total combined voting power of all classes of capital stock of such
Foreign Subsidiary entitled to vote, (ii) the entering into by such Foreign
Subsidiary of a security agreement in substantially the form of the Security
Agreement and (iii) the entering into by such Foreign Subsidiary of a guaranty
in substantially the form of the Subsidiaries Guaranty, in any such case would
cause the undistributed earnings of such Foreign Subsidiary as determined for
Federal income tax purposes to be treated as a deemed dividend to such Foreign
Subsidiary's United States parent for Federal income tax purposes, then in the
case of a failure to deliver the evidence described in clause (i) above, unless
the Borrower determines in good faith and notifies the Agents that such action
will result in material negative tax implications to the Borrower or any of its
Subsidiaries, that portion of such Foreign Subsidiary's outstanding capital
stock not theretofore pledged pursuant to the Pledge Agreement shall be pledged
to the Collateral Agent for the benefit of the Secured Creditors pursuant to the
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Pledge Agreement (or another pledge agreement in substantially similar form, if
needed), and in the case of a failure to deliver the evidence described in
clause (ii) above unless the Borrower determines in good faith and notifies the
Agents that such action will result in material negative tax implications to the
Borrower or any of its Subsidiaries, such Foreign Subsidiary (to the extent that
same is a Wholly-Owned Foreign Subsidiary and would otherwise constitute a
Subsidiary Guarantor) will execute and deliver the Security Agreement (or
another security agreement in substantially similar form, if needed), granting
the Collateral Agent for the benefit of the Secured Creditors a security
interest in all of such Foreign Subsidiary's assets and securing the Obligations
of the Borrower under the Credit Documents and under any Interest Rate
Protection Agreement or Other Hedging Agreement and, in the event the
Subsidiaries Guaranty shall have been executed by such Foreign Subsidiary, the
obligations of such Foreign Subsidiary thereunder, and in the case of a failure
to deliver the evidence described in clause (iii) above unless the Borrower
determines in good faith and notifies the Agents that such action will result in
material negative tax implications to the Borrower or any of its Subsidiaries,
such Foreign Subsidiary (to the extent that same is a Wholly-Owned Foreign
Subsidiary and would otherwise constitute a Subsidiary Guarantor) will execute
and deliver the Subsidiaries Guaranty (or another guaranty in substantially
similar form, if needed), guaranteeing the Obligations of the Borrower under the
Credit Documents and under any Interest Rate Protection Agreement or Other
Hedging Agreement, in each case to the extent that the entering into such
Security Agreement or Subsidiaries Guaranty is permitted by the laws of the
respective foreign jurisdiction and with all documents delivered pursuant to
this Section 8.13 to be in form and substance reasonably satisfactory to the
Agents.
SECTION 9. Negative Covenants. The Borrower hereby covenants
and agrees that on and after the Restatement Effective Date and until the Total
Commitments and all Letters of Credit have terminated and the Loans, Notes and
Unpaid Drawings, together with interest, Fees and all other Obligations incurred
hereunder and thereunder, are paid in full:
9.01 Liens. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or
with respect to any property or assets (real or personal, tangible or
intangible) of the Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable with recourse to the Borrower
or any of its Subsidiaries), or assign any right to receive income or permit the
filing of any financing statement under the UCC or any other similar notice of
Lien under any similar recording or notice statute; provided that the provisions
of this Section 9.01 shall not prevent the creation, incurrence, assumption or
existence of the following (Liens described below are herein referred to as
"Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been
established in accordance with generally accepted accounting
principles;
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(ii) Liens in respect of property or assets of the Borrower or
any of its Subsidiaries imposed by law, which were incurred in the
ordinary course of business and do not secure Indebtedness for borrowed
money, such as carriers', warehousemen's, materialmen's and mechanics'
liens and other similar Liens arising in the ordinary course of
business, and which (x) do not in the aggregate materially detract from
the value of the Borrower's or such Subsidiary's property or assets or
materially impair the use thereof in the operation of the business of
the Borrower or such Subsidiary or (y) are being contested in good
faith by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or assets subject to
any such Lien;
(iii) Liens in existence on the Restatement Effective Date
which are listed, and the property subject thereto described, in
Schedule VIII, without giving effect to any extensions or renewals
thereof;
(iv) Permitted Encumbrances;
(v) Liens created pursuant to this Agreement and the Security
Documents;
(vi) Liens upon assets of the Borrower or any of its
Subsidiaries subject to Capitalized Lease Obligations to the extent
such Capitalized Lease Obligations are permitted by Section 9.04(iii),
provided that (x) such Liens only serve to secure the payment of
Indebtedness arising under such Capitalized Lease Obligation and (y)
the Lien encumbering the asset giving rise to the Capitalized Lease
Obligation does not encumber any other asset of the Borrower or any
Subsidiary of the Borrower;
(vii) Liens placed upon equipment or machinery used in the
ordinary course of business of the Borrower or any of its Subsidiaries
at the time of acquisition thereof by the Borrower or any such
Subsidiary to secure Indebtedness incurred to pay all or a portion of
the purchase price thereof or to secure Indebtedness incurred solely
for the purpose of financing the acquisition of any such equipment or
machinery or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, provided that (x) the
aggregate outstanding principal amount of all Indebtedness secured by
Liens permitted by this clause (vii), when added to the amount
outstanding under clause 9.04(iii), shall not at any time exceed
$10,000,000 and (y) in all events, the Lien encumbering the equipment
or machinery so acquired does not encumber any other asset of the
Borrower or such Subsidiary;
(viii) easements, rights-of-way, restrictions, encroachments
and other similar charges or encumbrances, and minor title
deficiencies, in each case not securing Indebtedness and not materially
interfering with the conduct of the business of the Borrower or any of
its Subsidiaries;
(ix) Liens arising from precautionary UCC financing statement
filings regarding operating leases;
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(x) Liens arising out of judgments, decrees or attachments not
constituting an Event of Default under Section 10.09, provided that no
cash or other property shall be pledged by the Borrower or any
Subsidiary as security therefor;
(xi) statutory and common law landlords' liens under leases to
which the Borrower or any of its Subsidiaries is a party;
(xii) Liens (other than Liens imposed under ERISA) incurred in
the ordinary course of business in connection with workers compensation
claims, unemployment insurance and social security benefits and Liens
securing the performance of bids, tenders, leases and contracts in the
ordinary course of business, statutory obligations, surety bonds,
performance bonds and other obligations of a like nature incurred in
the ordinary course of business (exclusive of obligations in respect of
the payment for borrowed money), provided that the aggregate value of
all cash and property encumbered by consensual Liens permitted pursuant
to this clause (xii) shall not at any time exceed $750,000;
(xiii) Liens on property or assets acquired pursuant to a
Permitted Acquisition, or on property or assets of a Subsidiary of the
Borrower in existence at the time such Subsidiary is acquired pursuant
to a Permitted Acquisition, provided that (x) any Indebtedness that is
secured by such Liens is permitted to exist under Section 9.04(vii) and
(y) such Liens are not incurred in connection with, or in contemplation
or anticipation of, such Permitted Acquisition and do not attach to any
other asset of the Borrower or any of its Subsidiaries; and
(xiv) Liens in existence on the Restatement Effective Date
securing the IDB Financing to the extent such financing is permitted by
Section 9.04.
In connection with the granting of Liens of the type described
in clauses (vi), (vii) and (xiii) of this Section 9.01 by the Borrower or any of
its Subsidiaries, the Administrative Agent and the Collateral Agent shall be
authorized to take any actions deemed appropriate by it in connection therewith
(including, without limitation, by executing appropriate lien releases or lien
subordination agreements in favor of the holder or holders of such Liens, in
either case solely with respect to the item or items of equipment or other
assets subject to such Liens).
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc.
The Borrower will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of all or any part of
its property or assets, or enter into any sale-leaseback transactions, or
purchase or otherwise acquire (in one or a series of related transactions) any
part of the property or assets (other than purchases or other acquisitions of
inventory, materials and equipment in the ordinary course of business) of any
Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries
shall be permitted to the extent permitted by Section 9.07;
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(ii) each of the Borrower and its Subsidiaries may in the
ordinary course of business sell, lease or otherwise dispose of any
equipment or materials which, in the reasonable judgment of such
Person, are obsolete, unusable or worn out;
(iii) each of the Borrower and its Subsidiaries may sell
assets (other than the capital stock of any Subsidiary Guarantor), so
long as (w) no Default or Event of Default then exists or would result
therefrom, (x) each such sale is in an arms-length transaction and the
Borrower or the respective Subsidiary receives at least fair market
value (as determined in good faith by the Borrower or such Subsidiary,
as the case may be), (y) at least 80% of the total consideration
received by the Borrower or such Subsidiary is cash and paid at the
time of the closing of such sale and (z) the aggregate amount of the
proceeds received from all assets sold pursuant to this clause (iii)
shall not exceed $400,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell assets
(other than the capital stock of any Subsidiary Guarantor), so long as
(v) no Default or Event of Default then exists or would result
therefrom, (w) each such sale is in an arm's-length transaction and the
Borrower or the respective Subsidiary receives at least fair market
value (as determined in good faith by the Borrower or such Subsidiary,
as the case may be), (x) at least 80% of the total consideration
received by the Borrower or such Subsidiary is cash and is paid at the
time of the closing of such sale, (y) the Net Sale Proceeds therefrom
are applied as (and to the extent) required by Section 4.02(d) and (z)
the aggregate amount of the proceeds received from all assets sold
pursuant to this clause (iv) shall not exceed $10,000,000 in any fiscal
year of the Borrower;
(v) Investments may be made to the extent permitted by Section
9.05;
(vi) each of the Borrower and its Subsidiaries may lease (as
lessee) real or personal property in the ordinary course of business
(so long as any such lease does not create a Capitalized Lease
Obligation except to the extent permitted by Section 9.04(iv));
(vii) each of the Borrower and its Subsidiaries may make sales
of inventory in the ordinary course of business;
(viii) the Transaction shall be permitted;
(ix) the Borrower and each of its Subsidiaries may acquire
assets or the capital stock of any Person, including by merger, so long
as the survivor of such merger is, or becomes at such time, a
Subsidiary Guarantor (any such acquisition, a "Permitted Acquisition"
and the date of consummation of any such acquisition, an "Acquisition
Date"), provided that (i) the sum of the aggregate cash and Cash
Equivalents plus the aggregate market value of all other consideration
paid by the Borrower and its Subsidiaries (including any Indebtedness
assumed by the Borrower or any Subsidiary) in connection with (x) any
one such Permitted Acquisition shall not exceed $40,000,000 and (y) all
such Permitted Acquisitions shall not exceed $60,000,000; (ii) no
Default or Event of Default exists at the time of such acquisition or
will exist as a result thereof; (iii) in
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respect of each Permitted Acquisition (or of all Permitted Acquisitions
closing on the same date), the Borrower shall have delivered to the
Agents an officer's certificate executed by an authorized officer of
the Borrower demonstrating that on a Pro Forma Basis determined as if
such Permitted Acquisition (or Acquisitions) had been consummated (and
any Indebtedness to be incurred to finance such Permitted Acquisition
had been incurred) on the first day of the last Test Period of the
Borrower then last ended, the Borrower would have been in compliance
with Sections 9.08 through 9.10, inclusive, for such Test Period; and
(iv) the principal place of business of, and at least 80% of the assets
of, each such Acquired Business shall be located in the United States;
(x) the Borrower may transfer any assets to a Subsidiary
Guarantor, and any Subsidiary of the Borrower may merge or consolidate
with and into, or be liquidated into, or transfer any of its assets to,
the Borrower or any Subsidiary Guarantor, in each case, so long as (i)
the Borrower or the respective Subsidiary Guarantor is the surviving
corporation of any such transaction, (ii) in the case of any such
transaction involving a non-Wholly-Owned Subsidiary, the only
consideration paid to third parties in connection therewith are shares
of common stock of the Borrower and (iii) in the case of any
transaction between or among the Borrower and the Subsidiary
Guarantors, all Liens granted pursuant to the Security Documents on any
property or assets involved shall remain in full force and effect (with
at least the same priority as such Lien would have had if such transfer
pursuant to this clause (x) had not occurred);
(xi) any Foreign Subsidiary of the Borrower may merge or
consolidate with and into, or be liquidated into, or transfer any of
its assets to, the Borrower or any Foreign Subsidiary so long as in the
case of any such merger or consolidation, the Borrower or any Foreign
Subsidiary is the surviving corporation of any such transaction; and
(xii) each of the Borrower and its Subsidiaries may sell Cash
Equivalents permitted to be held by them pursuant to Section 9.05(ii)
so long as each such sale is for cash and at fair market value (as
determined in good faith by the Borrower or such Subsidiary, as the
case may be).
To the extent the Required Banks waive the provisions of this
Section 9.02 with respect to the sale of any Collateral, or any Collateral is
sold as permitted by this Section 9.02 (other than to the Borrower or a
Subsidiary thereof), such Collateral shall be sold free and clear of the Liens
created by the Security Documents, and the Administrative Agent and the
Collateral Agent shall be authorized to take any actions deemed appropriate in
order to effect the foregoing.
9.03 Dividends. The Borrower will not, and will not permit any
of its Subsidiaries to, authorize, declare or pay any Dividends with respect to
the Borrower or any of its Subsidiaries, except that:
(i) any Subsidiary of the Borrower may pay cash Dividends to
the Borrower or any Subsidiary Guarantor;
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(ii) so long as there shall exist no Default or Event of
Default (both before and after giving effect to the payment thereof),
the Borrower may repurchase outstanding shares of its common stock (or
options to purchase such common stock) following the death, disability
or termination of employment of employees of the Borrower or any of its
Subsidiaries, provided that the aggregate amount of Dividends paid by
the Borrower pursuant to this clause (ii) shall not exceed $250,000 in
any fiscal year of the Borrower; and
(iii) so long as there shall be no Default or Event of Default
(both before and after giving effect to the payment thereof), the
Borrower may pay cash Dividends to its shareholders in an amount not to
exceed in the aggregate for all such Dividends, the then applicable
Cumulative Net Income Amount.
9.04 Indebtedness. The Borrower will not, and will not permit
any of its Subsidiaries to, contract, create, incur, assume or suffer to exist
any Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
(ii) Existing Indebtedness outstanding on the Restatement
Effective Date and listed on Schedule VI, without giving effect to any
subsequent extension, renewal or refinancing thereof;
(iii) Indebtedness of the Borrower and its Subsidiaries
evidenced by Capitalized Lease Obligations to the extent permitted
pursuant to Section 9.07, provided that in no event shall the aggregate
principal amount of Capitalized Lease Obligations permitted by this
clause (iii), when added to the amount outstanding under clause
9.01(vii), exceed $10,000,000 at any time outstanding;
(iv) Indebtedness subject to Liens permitted under Section
9.01(vii);
(v) intercompany Indebtedness to the extent permitted by
Sections 9.05;
(vi) a single issuance of one or more tranches of unsecured
subordinated Indebtedness of the Borrower (the "New Subordinated
Notes"), so long as (i) the aggregate outstanding principal amount
thereof does not exceed $100,000,000 (less any repayments of principal
thereof), (ii) at least 10 Business Days prior to the issuance thereof,
the Borrower shall have delivered to the Agents and each of the Banks
substantially final drafts of the documents pursuant to which the New
Subordinated Notes are to be issued and with any changes thereto made
after the initial delivery of such documents to be delivered to the
Agents and with any significant changes thereto made after such initial
delivery to be delivered to each of the Banks at least three days prior
to the issuance of such New Subordinated Notes, (iii) the final
maturity date thereof is at least one year beyond the Term Loan
Maturity Date, (iv) there are no required amortization, mandatory
redemption or sinking fund or similar provisions prior to the date
which is one year after the Term Loan Maturity Date, (v) all other
terms and
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conditions thereof (including, without limitation, interest rates,
covenants, defaults, remedies and subordination provisions) are
reasonably satisfactory to the Agents, (vi) no Default or Event of
Default then exists or would result therefrom and (vii) the Net Debt
Proceeds from such New Subordinated Notes shall be applied to repay
Term Loans to the extent outstanding at the time of such issuance (or,
if prior to the termination of the Term Loan Commitment, to reduce the
Total Term Loan Commitment) with any remaining amount of such Net Debt
Proceeds to be applied to reduce any outstanding Revolving Loans (with
no reduction in the respective commitments thereunder); and
(vii) Indebtedness assumed by the Borrower or any Subsidiary
in connection with a Permitted Acquisition, provided that (x) such
Indebtedness was not incurred in connection with or in contemplation of
such Permitted Acquisition and (y) such Indebtedness does not exceed
20% of the aggregate consideration paid by the Borrower and/or its
Subsidiaries in connection with such Permitted Acquisition;
(viii) Indebtedness of the Borrower and its Subsidiaries
consisting of guaranty and repurchase obligations entered into in the
ordinary course of business in connection with their dealer floor plan
and rental fleet financing arrangements;
(ix) the IDB Financing in an aggregate principal amount not to
exceed $4,700,000 at any time outstanding, less all repayments of
principal made thereon;
(x) Indebtedness of the Borrower and its Subsidiaries
consisting of contingent obligations entered into in the ordinary
course of business in connection with customers' lease financing
arrangements, provided that in no event shall the aggregate amount of
such contingent obligations permitted by this clause (x) exceed, at any
time, $20,000,000; and
(xi) additional unsecured Indebtedness of the Borrower and its
Subsidiaries not to exceed $10,000,000 in aggregate principal amount at
any time outstanding.
9.05 Advances, Investments and Loans. The Borrower will not,
and will not permit any of its Subsidiaries to, directly or indirectly, lend
money or credit or make advances to any Person, or purchase or acquire any
stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any other Person, or purchase or own a futures contract
or otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any
cash or Cash Equivalents (each of the foregoing an "Investment" and,
collectively, "Investments"), except that the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold
accounts receivables owing to any of them, if created or acquired in
the ordinary course of business and payable or dischargeable in
accordance with customary terms, and the Borrower and its Subsidiaries
may own Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of
delinquent obligations of,
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and other disputes with, customers and suppliers arising in the
ordinary course of business;
(ii) the Borrower and its Subsidiaries may acquire and hold or
invest in cash and Cash Equivalents;
(iii) the Borrower and its Subsidiaries may hold the
Investments held by them on the Restatement Effective Date and
described on Schedule IX, provided that any additional Investments made
with respect thereto shall be permitted only if independently permitted
under the other provisions of this Section 9.05;
(iv) the Borrower and its Subsidiaries may make loans and
advances in the ordinary course of business to their respective
employees so long as the aggregate principal amount thereof at any time
outstanding (determined without regard to any write-downs or write-offs
of such loans and advances) shall not exceed $1,000,000;
(v) the Borrower may enter into Interest Protection Agreements
in respect of the Obligations;
(vi) the Borrower and the Subsidiary Guarantors may make
intercompany loans and advances between or among one another
(collectively, "Intercompany Loans"), so long as each Intercompany Loan
shall be evidenced by an Intercompany Note that is pledged to the
Collateral Agent pursuant to the Pledge Agreement;
(vii) the Borrower and its Subsidiaries may hold promissory
notes issued by a purchaser in connection with an asset sale permitted
under Section 9.02(iii) and (iv);
(viii) the Borrower and the Subsidiary Guarantors may make
Investments in addition to the loans and advances described in Section
9.05(vi) between or among one another;
(ix) the Borrower and its Subsidiaries may make Permitted
Acquisitions effected in accordance with the requirements of Section
9.02(ix); and
(x) the Borrower and its Subsidiaries may make Investments in
addition to the Investments described above in this Section 9.05 not to
exceed $2,000,000 in aggregate amount at any time outstanding.
9.06 Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any transaction or series
of related transactions, whether or not in the ordinary course of business, with
any Affiliate of the Borrower or any of its Subsidiaries, other than in the
ordinary course of business and on terms and conditions substantially as
favorable to the Borrower or such Subsidiary as would reasonably be obtained by
the Borrower or such Subsidiary at that time in a comparable arm's-length
transaction with a Person other than an Affiliate, except that the following in
any event shall be permitted: (i) Dividends may be paid to the extent provided
in Section 9.03, (ii) loans may be made and other
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transactions may be entered into by the Borrower and its Subsidiaries to the
extent permitted by Sections 9.02, 9.04, 9.05 and 9.07, (iii) customary fees may
be paid to non-officer directors of the Borrower and (iv) the Borrower and its
Subsidiaries may pay management, advisory, consulting and similar fees to the
Borrower, any WhollyOwned Subsidiary of the Borrower and Harbor Group
Industries, Inc. and its Affiliates.
9.07 Capital Expenditures. (a) The Borrower will not, and will
not permit any of its Subsidiaries to, make any Capital Expenditures, except
that during any fiscal year of the Borrower (taken as one accounting period),
the Borrower and its Subsidiaries may make Capital Expenditures so long as the
aggregate amount of such Capital Expenditures does not exceed $20,000,000 for
any such fiscal year, provided that any such amount not utilized in any fiscal
year may be applied to Capital Expenditures in the next succeeding fiscal year,
provided further that any amounts so carried forward shall not be considered in
the determination of amounts available to be carried forward to any succeeding
year.
(b) Notwithstanding the foregoing paragraph (a), for the
Borrower's fiscal year 1999, the Borrower and its Subsidiaries shall be
permitted to make Capital Expenditures in an aggregate amount not to exceed
$25,000,000 for such fiscal year, provided that any amounts not utilized in the
1998 fiscal year may not be carried forward and applied to Capital Expenditures
in the 1999 fiscal year.
(c) Notwithstanding the foregoing, the Borrower and its
Subsidiaries may make additional Capital Expenditures (which Capital
Expenditures will not be included in any determination under Section 9.07(a))
with the Net Sale Proceeds of Asset Sales to the extent such proceeds are not
required to be applied to repay Term Loans (or reduce the Total Revolving Loan
Commitment) pursuant to Section 4.02(d) and such proceeds are reinvested as
required by Section 4.02(d).
(d) Notwithstanding the foregoing, the Borrower and its
Subsidiaries may make additional Capital Expenditures (which Capital
Expenditures will not be included in any determination under Section 9.07(a))
with the insurance proceeds received by the Borrower or any of its Subsidiaries
from any Recovery Event so long as such Capital Expenditures are to replace or
restore any properties or assets in respect of which such proceeds were paid or
contractually committed to be paid within 180 days following the date of the
receipt of such insurance proceeds to the extent such insurance proceeds are not
required to be applied to repay Term Loans (or reduce the Total Revolving Loan
Commitment) pursuant to Section 4.02(f).
(e) Notwithstanding the foregoing, the Borrower may make
additional Capital Expenditures (which Capital Expenditures will not be included
in any determination under Section 9.07(a)) constituting Permitted Acquisitions
effected in accordance with the requirements of Section 9.02(viii).
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9.08 Consolidated Fixed Charge Coverage Ratio. The Borrower
will not permit the Consolidated Fixed Charge Coverage Ratio for any Test Period
ending on the last day of a fiscal quarter set forth below to be less than the
ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ratio
-------------- -----
March 31, 1999 3.00:1.00
June 30, 1999 3.00:1.00
September 30, 1999 3.00:1.00
December 31, 1999 3.50:1.00
March 31, 2000 3.50:1.00
June 30, 2000 4.00:1.00
Thereafter 4.00:1.00
9.09 Consolidated Interest Coverage Ratio. The Borrower will
not permit the Consolidated Interest Coverage Ratio for any Test Period ending
on the last day of a fiscal quarter set forth below to be less than the ratio
set forth opposite such fiscal quarter below:
Fiscal Quarter Ratio
-------------- -----
March 31, 1999 4.50:1.00
June 30, 1999 4.50:1.00
September 30, 1999 4.50:1.00
December 31, 1999 4.50:1.00
March 31, 2000 5.00:1.00
Thereafter 5.00:1.00
9.10 Maximum Leverage Ratio. The Borrower will not permit the
Leverage Ratio at any time during a period set forth below to be greater than
the ratio set forth opposite such period below:
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Fiscal Quarter Ratio
-------------- -----
March 31, 1999 3.25:1.00
June 30, 1999 3.25:1.00
September 30, 1999 3.25:1.00
December 31, 1999 3.00:1.00
March 31, 2000 3.00:1.00
June 30, 2000 2.75:1.00
September 30, 2000 2.75:1.00
December 31, 2000 2.50:1.00
March 31, 2001 2.50:1.00
June 30, 2001 2.25:1.00
September 30, 2001 2.25:1.00
December 31, 2001 2.00:1.00
March 31, 2002 2.00:1.00
June 30, 2002 1.75:1.00
Thereafter 1.75:1.00
9.11 Limitation on Voluntary Payments and Modifications of
Subordinated Indebtedness; Modifications of Certificate of Incorporation and
Certain Other Agreements; etc. The Borrower will not, and will not permit any of
its Subsidiaries to, (i) make (or give any notice in respect of) any voluntary
or optional payment or prepayment on or redemption or acquisition for value of,
or make any prepayment or redemption as a result of any asset sale, change of
control or similar event of (including, in each case, without limitation, by way
of depositing with the trustee with respect thereto or any other Person, money
or securities before due for the purpose of paying when due) any New
Subordinated Notes (after the issuance thereof) or the IDB Financing, (ii) amend
or modify, or permit the amendment or modification of, any provision of the New
Subordinated Notes or any New Subordinated Note Documents, in each case after
the issuance thereof, (iii) amend, modify or change any IDB Financing Documents
or its certificate of incorporation (including, without limitation, by the
filing or modification of any certificate of designation) (or the equivalent
organizational documents) or any agreement entered into by it with respect to
its capital stock (including any Shareholders' Agreement), or enter into any new
agreement with respect to its capital stock, unless such amendment,
modification, change or
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other action contemplated by this clause (iii) could not reasonably be expected
to be adverse to the interests of the Banks in any material respect, and (iv)
amend, modify or change any provision of any Tax Sharing Agreement or enter into
any new tax sharing agreement, tax allocation agreement or similar agreement,
unless such amendment, modification, change or other action contemplated by this
clause (iv) cannot reasonably be expected to be adverse to the interests of the
Banks in any material respect.
9.12 Limitation on Certain Restrictions on Subsidiaries. The
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any Subsidiary
the Borrower, or pay any Indebtedness owed to the Borrower or any Subsidiary of
the Borrower, (b) make loans or advances to the Borrower or any Subsidiary of
the Borrower or (c) transfer any of its properties or assets to the Borrower or
any Subsidiary of the Borrower, except for such encumbrances or restrictions
existing under or by reason of (i) applicable law, (ii) this Agreement and the
other Credit Documents and (iii) restrictions on the transfer of any asset
subject to a Lien permitted by this Agreement.
9.13 Limitation on Issuance of Capital Stock. (a) The Borrower
will not, and will not permit any of its Subsidiaries to, issue (i) any
preferred stock or (ii) any common stock redeemable at the option of the holder
thereof.
(b) The Borrower will not permit any of its Subsidiaries to
issue any capital stock (including by way of sales of treasury stock) or any
options or warrants to purchase, or securities convertible into, capital stock,
except (i) for transfers and replacements of then outstanding shares of capital
stock, (ii) for stock splits, stock dividends and issuances which do not
decrease the percentage ownership of the Borrower or any of its Subsidiaries in
any class of the capital stock of such Subsidiary, (iii) to qualify directors to
the extent required by applicable law and (iv) for issuances by newly created or
acquired Subsidiaries in accordance with the terms of this Agreement.
9.14 Business. The Borrower will not, and will not permit any
of its Subsidiaries to, engage (directly or indirectly) in any business other
than the businesses in which the Borrower and its Subsidiaries are engaged on
the Restatement Effective Date (after giving effect to the Transaction) and
reasonable extensions thereof and those reasonably related or complementary
thereto.
9.15 Limitation on Creation of Subsidiaries. Notwithstanding
anything to the contrary contained in this Agreement, the Borrower will not, and
will not permit any of its Subsidiaries to, establish, create or acquire after
the Restatement Effective Date any Subsidiary; provided that, the (A) Borrower
and its Wholly-Owned Subsidiaries shall be permitted to establish or create
Wholly-Owned Subsidiaries so long as, in each case, (i) at least 15 days' prior
written notice thereof is given to the Agents (or such shorter period of time as
is acceptable to the Agents), (ii) the capital stock of such new Subsidiary (or
65% of the outstanding capital stock of
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a Foreign Subsidiary) is promptly pledged pursuant to, and to the extent
required by, this Agreement and the Pledge Agreement and the certificates, if
any, representing such stock, together with stock powers duly executed in blank,
are delivered to the Collateral Agent, (iii) such new Subsidiary (other than a
Foreign Subsidiary except to the extent otherwise required pursuant to Section
8.13) promptly executes a counterpart of the Subsidiaries Guaranty, the Pledge
Agreement and the Security Agreement, and (iv) to the extent requested by the
Agents or the Required Banks, takes all actions required pursuant to Section
8.12 and (B) Subsidiaries may be acquired pursuant to Permitted Acquisitions so
long as, in each such case the actions specified in preceding clause (A) shall
be taken. In addition, each new Subsidiary that is required to execute any
Credit Document shall execute and deliver, or cause to be executed and
delivered, all other relevant documentation of the type described in Section 5
as such new Subsidiary would have had to deliver if such new Subsidiary were a
Credit Party on the Restatement Effective Date.
SECTION 10. Events of Default. Upon the occurrence of any of
the following specified events (each an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment
when due of any principal of any Loan or any Note, or (ii) default, and such
default shall continue for more than two Business Days, in the payment when due
of any interest on any Loan or Note, any Unpaid Drawing or any Fees or any other
amounts owing hereunder or thereunder; or
10.02 Representations, etc. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or in
any certificate delivered to any Agent or any Bank pursuant hereto or thereto
shall prove to be untrue in any material respect on the date as of which made or
deemed made; or
10.03 Covenants. Any Credit Party shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(f)(i), 8.08 or 8.11 or Section 9 or (ii) default in the due
performance or observance by it of any other term, covenant or agreement
contained in this Agreement or any other Credit Document (other than those set
forth in Sections 10.01 and 10.02) and such default shall continue unremedied
for a period of 30 days after written notice thereof to the defaulting party by
any Agent or the Required Banks; or
10.04 Default Under Other Agreements. (i) The Borrower or any
of its Subsidiaries shall (x) default in any payment of any Indebtedness (other
than the Notes) beyond the period of grace or cure, if any, provided in the
instrument or agreement under which such Indebtedness was created or (y) default
in the observance or performance of any agreement or condition relating to any
Indebtedness (other than the Notes) or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause (determined without regard
to whether any notice is required, but beyond the period of grace or cure, if
any, provided in the instrument or agreement under which such Indebtedness was
created), any such Indebtedness to become due prior to its stated maturity, or
(ii) any
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Indebtedness (other than the Notes) of the Borrower or any of its Subsidiaries
shall be declared to be (or shall become) due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment, prior to the
stated maturity thereof, provided that it shall not be a Default or an Event of
Default under this Section 10.04 unless the aggregate principal amount of all
Indebtedness as described in preceding clauses (i) and (ii) is at least
$2,000,000; or
10.05 Bankruptcy, etc. The Borrower or any of its Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced
against the Borrower or any of its Subsidiaries, and the petition is not
controverted within 15 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
the Borrower or any of its Subsidiaries, or the Borrower or any of its
Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to the Borrower or any of its Subsidiaries, or there is
commenced against the Borrower or any of its Subsidiaries any such proceeding
which remains undismissed for a period of 60 days, or the Borrower or any of its
Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or the Borrower or
any of its Subsidiaries suffers any appointment of any custodian or the like for
it or any substantial part of its property to continue undischarged or unstayed
for a period of 60 days; or the Borrower or any of its Subsidiaries makes a
general assignment for the benefit of creditors; or any corporate action is
taken by the Borrower or any of its Subsidiaries for the purpose of effecting
any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section 412 of
the Code or Section 302 of ERISA or a waiver of such standard or extension of
any amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, any Plan or
Multiemployer Plan which is subject to Title IV of ERISA shall have had or is
likely to have a trustee appointed to administer such Plan or Multiemployer
Plan, any Plan or Multiemployer Plan which is subject to Title IV of ERISA is,
shall have been or is likely to be terminated or to be the subject of
termination proceedings under ERISA, any Plan or Multiemployer Plan shall have
an Unfunded Current Liability, a contribution required to be made with respect
to a Plan, a Multiemployer Plan or a Foreign Pension Plan has not been timely
made, the Borrower or any Subsidiary of the Borrower or any ERISA Affiliate has
incurred or is likely to incur any liability to or on account of a Plan or
Multiemployer Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the
Code or on account of a group health plan (as defined in Section 607(1) of ERISA
or Section 4980B(g)(2) of the Code) under Section 4980B(a) of the Code, or the
Borrower or any Subsidiary of the Borrower has incurred or is likely to incur
liabilities pursuant to one or more employee welfare benefit plans (as defined
in Section 3(1) of ERISA) that provide benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA) or Plans or
Foreign Pension Plans; (b) there shall result from any such
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event or events the imposition of a lien, the granting of a security interest,
or a liability or a material risk of incurring a liability; and (c) such lien,
security interest or liability, individually, and/or in the aggregate, has had,
or could reasonably be expected to have, a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole; or
10.07 Security Documents. At any time after the execution and
delivery thereof, any of the Security Documents shall cease to be in full force
and effect, or shall cease to give the Collateral Agent for the benefit of the
Secured Creditors the Liens, rights, powers and privileges purported to be
created thereby (including, without limitation, a perfected security interest
in, and Lien on, all of the Collateral, in favor of the Collateral Agent,
superior to and prior to the rights of all third Persons (except as permitted by
Section 9.01), and subject to no other Liens (except as permitted by Section
9.01); or
10.08 Subsidiaries Guaranty. At any time after the execution
and delivery thereof, the Subsidiaries Guaranty or any provision thereof shall
cease to be in full force or effect as to any Subsidiary Guarantor, or any
Subsidiary Guarantor or any Person acting by or on behalf of such Subsidiary
Guarantor shall deny or disaffirm such Subsidiary Guarantor's obligations under
the Subsidiaries Guaranty or any Subsidiary Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to the Subsidiaries Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be
entered against the Borrower or any Subsidiary of the Borrower involving in the
aggregate for the Borrower and its Subsidiaries a liability (not paid or fully
covered by a reputable and solvent insurance company) and such judgments and
decrees either shall be final and non-appealable or shall not be vacated,
discharged or stayed or bonded pending appeal for any period of 30 consecutive
days, and the aggregate amount of all such judgments exceeds $2,000,000; or
10.10 Change of Control. A Change of Control shall occur:
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, upon the written request of
the Required Banks, shall by written notice to the Borrower, take any or all of
the following actions, without prejudice to the rights of any Agent, any Bank or
the holder of any Note to enforce its claims against any Credit Party (provided,
that, if an Event of Default specified in Section 10.05 shall occur with respect
to the Borrower, the result which would occur upon the giving of written notice
by the Administrative Agent as specified in clauses (i) and (ii) below shall
occur automatically without the giving of any such notice): (i) declare the
Total Commitments terminated, whereupon all Commitments of each Bank shall
forthwith terminate immediately and any Commitment Commission shall forthwith
become due and payable without any other notice of any kind; (ii) declare the
principal of and any accrued interest in respect of all Loans and the Notes and
all Obligations owing hereunder and thereunder to be, whereupon the same shall
become, forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by each Credit Party; (iii)
terminate any Letter of Credit which may be terminated in accordance with its
terms; (iv) direct the Borrower to pay (and the Borrower agrees that upon
receipt of such notice, or upon the
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occurrence of an Event of Default specified in Section 10.05 with respect to the
Borrower, it will pay) to the Collateral Agent at the Payment Office such
additional amount of cash, to be held as security by the Collateral Agent, as is
equal to the aggregate Stated Amount of all Letters of Credit issued for the
account of the Borrower and then outstanding; (v) enforce, as Collateral Agent,
all of the Liens and security interests created pursuant to the Security
Documents; and (vi) apply any cash collateral held by the Administrative Agent
pursuant to Section 4.02 to the repayment of the Obligations.
SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"A Term Note" shall have the meaning provided in Section
1.05(a).
"Additional Security Documents" shall have the meaning
provided in Section 8.12.
"Adjusted Consolidated Cash Income" shall mean, for any
period, Consolidated Net Income for such period plus, without duplication, the
sum of the amount of all net non-cash charges (including, without limitation,
depreciation, amortization, deferred tax expense, non-cash interest expense) and
net non-cash losses which were included in arriving at Consolidated Net Income
for such period less the sum of the amount of all net non-cash gains which were
included in arriving at Consolidated Net Income for such period.
"Adjusted Consolidated Working Capital" at any time shall mean
Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities at such time.
"Adjusted RL Percentage" shall mean (x) at a time when no Bank
Default exists, for each Bank, such Bank's RL Percentage and (y) at a time when
a Bank Default exists, (i) for each Bank that is a Defaulting Bank, zero and
(ii) for each Bank that is a Non-Defaulting Bank, the percentage determined by
dividing such Bank's Revolving Loan Commitment at such time by the Adjusted
Total Revolving Loan Commitment at such time, it being understood that all
references herein to Revolving Loan Commitments and the Adjusted Total Revolving
Loan Commitment at a time when the Total Revolving Loan Commitment or Adjusted
Total Revolving Loan Commitment, as the case may be, has been terminated shall
be references to the Revolving Loan Commitments or Adjusted Total Revolving Loan
Commitment, as the case may be, in effect immediately prior to such termination,
provided that (A) a Bank's Adjusted RL Percentage shall only change upon the
occurrence of a Bank Default from that in effect immediately prior to such Bank
Default to the extent that after giving effect to such Bank Default, and any
repayment of Revolving Loans and Swingline Loans at such time pursuant to
Section 4.02(a) or otherwise, the sum of (i) the aggregate outstanding principal
amount of Revolving Loans of such Bank plus (ii) such Bank's new Adjusted RL
Percentage of the aggregate outstanding principal amount of Swingline Loans and
the Letter of Credit
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Outstandings, would not exceed the Revolving Loan Commitment of such Bank at
such time; (B) the changes to the Adjusted RL Percentage that would have become
effective upon the occurrence of a Bank Default but that did not become
effective as a result of the preceding clause (A) shall become effective on the
first date after the occurrence of the relevant Bank Default on which the sum of
(i) the aggregate outstanding principal amount of the Revolving Loans of all
Non-Defaulting Banks, plus (ii) the aggregate outstanding principal amount of
Swingline Loans, plus (iii) the Letter of Credit Outstandings, is equal to or
less than the Adjusted Total Revolving Loan Commitment; and (C) if (i) a
Non-Defaulting Bank's Adjusted RL Percentage is changed pursuant to the
preceding clause (B) and (ii) any repayment of such Bank's Revolving Loans or of
Unpaid Drawings or of Swingline Loans that were made during the period
commencing after the date of the relevant Bank Default and ending on the date of
such change to its Adjusted RL Percentage must be returned to the Borrower as a
preferential or similar payment in any bankruptcy or similar proceeding of the
Borrower, then the change to such Non-Defaulting Bank's Adjusted RL Percentage
effected pursuant to said clause (B) shall be reduced to that positive change,
if any, as would have been made to its Adjusted RL Percentage if (x) such
repayments had not been made and (y) the maximum change to its Adjusted RL
Percentage would have resulted in the sum of the outstanding principal of
Revolving Loans made by such Bank plus such Bank's new Adjusted RL Percentage of
the outstanding principal amount of Swingline Loans and of Letter of Credit
Outstandings equaling such Bank's Revolving Loan Commitment at such time.
"Adjusted Total Revolving Loan Commitment" shall mean at any
time the Total Revolving Loan Commitment less the aggregate Revolving Loan
Commitments of all Defaulting Banks.
"Administrative Agent" shall mean First Union National Bank,
in its capacity as Administrative Agent for the Banks hereunder and Co-Arranger,
and shall include any successor to the Administrative Agent appointed pursuant
to Section 12.09.
"Affected Eurodollar Loans" shall have the meaning provided in
Section 4.02(g).
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. A Person shall be deemed to control
another Person if such Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of such other
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agent" shall mean and include the Administrative Agent and
the Syndication Agent.
"Agreement" shall mean this Amended and Restated Credit
Agreement, as modified, supplemented, amended, restated (including any amendment
and restatement hereof), extended, renewed, refinanced or replaced from time to
time.
"Applicable Base Rate Margin" from and after the first day of
any Applicable Pricing Period (the "Start Date") to and including the last day
of such Applicable Pricing Period
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(the "End Date"), shall mean the respective percentage per annum set forth in
clause (A) or (B) below if, but only if, as of the last day of the most recent
fiscal quarter of the Borrower ended immediately prior to such Start Date (the
"Test Date") the condition in clause (A) or (B) below is met:
(A) 0.625% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be greater than 2.5:1.0; or
(B) 0.500% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 2.50:1.0 but greater than 2.25:1.0; or
(C) 0.375% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 2.25:1.0 but greater than 2.00:1.0; or
(D) 0.250% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 2.00:1.0 but greater than 1.75:1.0; or
(E) 0.125% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 1.75:1.0 but greater than 1.50:1.0; or
(F) 0.000% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 1.5:1.0.
Notwithstanding anything to the contrary contained above in
this definition, (a) the Applicable Base Rate Margin shall be 0.625% at all
times when financial statements have not been delivered when required pursuant
to Section 8.01(a) or (b), as the case may be, and (b) on and after the date on
which the Borrower has issued New Subordinated Notes in an aggregate principal
amount of at least $100,000,000, each of the percentage margins set forth above
shall be reduced by 0.125% (but not below 0%).
"Applicable Commitment Commission Percentage" (i) for any
calculation of the Commitment Commission payable in respect of Term Loans, shall
mean 0.375%, and (ii) for any calculation of the Commitment Commission payable
in respect of Loans other than Term Loans, after any Start Date to and including
the corresponding End Date, shall mean the respective percentage per annum set
forth in clause (A) or (B) below if, but only if, as of the Test Date for such
Start Date the condition set forth in clause (A) or (B) below is met:
(A) 0.375% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be greater than 2.00:1.00; or
(B) 0.250% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 2.00:1.00.
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Notwithstanding anything to the contrary contained above in
this definition, the Applicable Commitment Commission Percentage shall be 0.375%
at all times when financial statements have not been delivered when required
pursuant to Section 8.01(a) or (b), as the case may be.
"Applicable Eurodollar Margin" from and after any Start Date
to and including the corresponding End Date, shall mean the respective
percentage per annum set forth in clause (A)-(F) below if, but only if, as of
the Test Date for such Start Date the condition in clause (A)-(F) below is met:
(A) 1.625% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be greater than 2.5:1.0; or
(B) 1.500% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 2.50:1.0 but greater than 2.25:1.0; or
(C) 1.375% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 2.25:1.0 but greater than 2.00:1.0; or
(D) 1.250% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 2.00:1.0 but greater than 1.75:1.0; or
(E) 1.125% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 1.75:1.0 but greater than 1.50:1.0; or
(F) 1.000% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 1.5:1.0.
Notwithstanding anything to the contrary contained above in
this definition, (a) the Applicable Eurodollar Margin shall be 1.625% at all
times when financial statements have not been delivered when required pursuant
to Section 8.01(a) or (b), as the case may be, and (b) on and after the date on
which the Borrower has issued New Subordinated Notes in an aggregate principal
amount of at least $100,000,000, each of the percentage margins set forth above
shall be reduced by 0.125%.
"Applicable Pricing Period" shall mean each period which shall
commence on a date five Business Days after the date on which the financial
statements are delivered pursuant to Section 8.01(a) or (b) and which shall end
on the earlier of (i) the date five Business Days after the date of actual
delivery of the next financial statements pursuant to Section 8.01(a) or (b) and
(ii) the latest date on which the next financial statements are required to be
delivered pursuant to Section 8.01(a) or (b) if such financial statements have
not been delivered on or prior to such date.
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"Asset Sale" shall mean any sale, transfer or other
disposition by the Borrower or any of its Subsidiaries to any Person (including
by way of redemption by such Person) other than to the Borrower or a
Wholly-Owned Subsidiary of the Borrower of any asset (including, without
limitation, any capital stock or other securities of, or equity interests in,
another Person) of the Borrower or any of its Subsidiaries, other than any sale,
transfer or disposition permitted by Sections 9.02(ii), (iii), (v), (vii), (xi)
and (xii).
"Assignment and Assumption Agreement" shall mean an Assignment
and Assumption Agreement substantially in the form of Exhibit K (appropriately
completed).
"B Term Note" shall have the meaning provided in Section
1.05(a).
"Bank" shall mean each Person listed on Schedule I, as well as
any Person which becomes a "Bank" hereunder pursuant to Section 1.13 or
13.04(b).
"Bank Default" shall mean (i) the refusal (which has not been
retracted) or the failure of a Bank to make available its portion of any
Borrowing (including any Mandatory Borrowing) or to fund its portion of any
unreimbursed payment under Section 2.04(c) or (ii) a Bank having notified in
writing the Borrower and/or the Administrative Agent that such Bank does not
intend to comply with its obligations under Section 1.01(a), 1.01(b), 1.01(c),
1.04 or 2, in the case of either clause (i) or (ii) as a result of any takeover
or control (including, without limitation, as a result of the occurrence of any
event of the type described in Section 10.05 with respect to such Bank) of such
Bank by any regulatory authority or agency.
"Bankruptcy Code" shall have the meaning provided in Section
10.05.
"Base Rate" at any time shall mean the higher of (i) 1/2 of 1%
in excess of the Federal Funds Rate and (ii) the Prime Lending Rate.
"Base Rate Loan" shall mean (i) each Swingline Loan and (ii)
each other Loan designated or deemed designated as such by the Borrower at the
time of the incurrence thereof or conversion thereto.
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrower's Account" shall mean a deposit account of the
Borrower maintained with the Payment Office of the Administrative Agent, which
is identified by the Borrower in the most recent Notice of Account Designation,
substantially in the form of Exhibit M hereto delivered by the Borrower to the
Administrative Agent as the Borrower's Account for receipt of proceeds of Loans
to the Borrower.
"Borrowing" shall mean the borrowing of one Type of Loan of a
single Tranche from all the Banks having Commitments of the respective Tranche
(or from the Swingline Bank in the case of Swingline Loans) on a given date (or
resulting from a conversion or conversions on such date) having in the case of
Eurodollar Loans the same Interest Period, provided that Base
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Rate Loans incurred pursuant to Section 1.10(b) shall be considered part of the
related Borrowing of Eurodollar Loans.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in New York City, New York or Charlotte, North Carolina a legal holiday
or a day on which banking institutions are authorized or required by law or
other government action to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Loans, any day which is a Business Day described in clause (i) above
and which is also a day for trading by and between banks in the London interbank
Eurodollar market.
"Calculation Period" shall mean the period of four consecutive
fiscal quarters of the Borrower last ended before the date of the respective
Permitted Acquisition which requires calculations to be made on a Pro Forma
Basis.
"Capital Expenditures" shall mean, with respect to any Person,
all expenditures by such Person which should be capitalized in accordance with
generally accepted accounting principles and, without duplication, the amount of
Capitalized Lease Obligations incurred by such Person.
"Capitalized Lease Obligations" of any Person shall mean all
rental obligations which, under generally accepted accounting principles, are or
will be required to be capitalized on the books of such Person, in each case
taken at the amount thereof accounted for as indebtedness in accordance with
such principles.
"Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof) having maturities
of not more than one year from the date of acquisition, (ii) Dollar denominated
time deposits and certificates of deposit of any commercial bank having, or
which is the principal banking subsidiary of a bank holding company having, a
long-term unsecured debt rating of at least "A" or the equivalent thereof from
Standard & Poor's Ratings Services or "A2" or the equivalent thereof from
Xxxxx'x Investors Service, Inc. with maturities of not more than one year from
the date of acquisition by such Person, (iii) repurchase obligations with a term
of not more than seven days for underlying securities of the types described in
clause (i) above entered into with any bank meeting the qualifications specified
in clause (ii) above, (iv) commercial paper issued by any Person incorporated in
the United States rated at least A-1 or the equivalent thereof by Standard &
Poor's Ratings Services or at least P1 or the equivalent thereof by Xxxxx'x
Investors Service, Inc. and in each case maturing not more than 270 days after
the date of acquisition by such Person, (v) asset-backed certificates of
participation representing a fractional undivided interest in the assets of a
trust, which certificates are rated at least A-1 or the equivalent thereof by
Standard & Poor's Rating Services or at least P-1 or the equivalent thereof by
Xxxxx'x Investors Service, Inc., and (vi) investments in money market funds
substantially all of whose assets are comprised of securities of the types
described in clauses (i) through (v) above.
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"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. ss. 9601 et seq.
"Change of Control" shall mean (i) any Person or "group"
(within the meaning of Rules 13d-3 or 13d-5 under the Securities Exchange Act
(as in effect on the Restatement Effective Date)), other than the Permitted
Holders, shall (A) have acquired beneficial ownership of 25% or more on a fully
diluted basis of the voting and/or economic interest in the Borrower's capital
stock or (B) have obtained the power (whether or not exercised) to elect a
majority of the Borrower's directors or (ii) the Board of Directors of the
Borrower shall cease to consist of a majority of Continuing Directors.
"Co-Arrangers" shall mean each of First Union National Bank
and Xxxxxx Xxxxxxx Senior Funding, Inc. in their respective capacities as
Co-Arrangers. The Co-Arrangers shall incur no liabilities and shall have no
duties or responsibilities under this Agreement or any other Credit Document in
such capacity.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in effect at the
date of this Agreement and any subsequent provisions of the Code, amendatory
thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or
personal) with respect to which any security interests have been granted (or
purport to be granted) pursuant to any Security Document, including, without
limitation, all Pledge Agreement Collateral, all Security Agreement Collateral,
the Mortgaged Properties, and all cash and Cash Equivalents delivered as
collateral pursuant to Section 4.02 or 10.
"Collateral Agent" shall mean the Administrative Agent acting
as collateral agent for the Secured Creditors pursuant to the Security
Documents.
"Collective Bargaining Agreements" shall have the meaning
provided in Section 5.05.
"Commitment" shall mean any of the commitments of any Bank,
i.e., whether the Term Loan Commitment or the Revolving Loan Commitment.
"Commitment Commission" shall mean the Revolving Loan
Commitment Commission.
"Consolidated Current Assets" shall mean, at any time, the
consolidated current assets of the Borrower and its Subsidiaries at such time.
"Consolidated Current Liabilities" shall mean, at any time,
the consolidated current liabilities of the Borrower and its Subsidiaries at
such time, but excluding the current
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portion of and accrued but unpaid interest on any Indebtedness under this
Agreement and any other long-term Indebtedness which would otherwise be included
therein.
"Consolidated EBIT" shall mean, for any period, Consolidated
Net Income before Consolidated Interest Expense and before provision for taxes
for such period and without giving effect (w) to any extraordinary gains or
losses, (x) to any gains or losses from sales of assets other than from sales of
inventory sold in the ordinary course of business and (y) to any expenses
related to or incurred by the Borrower in connection with the Transaction or any
Permitted Acquisition, provided, however, that with respect to any Permitted
Acquisition which is accounted for as a "purchase," for the Calculation Period
following such acquisition Consolidated EBIT shall include results of operations
of the company or assets so acquired which amounts shall be determined on a Pro
Forma Basis.
"Consolidated EBITDA" shall mean, for any period, Consolidated
EBIT for such period, adjusted by adding thereto the amount of all amortization
and depreciation expense of the Borrower and its Subsidiaries that was deducted
in arriving at Consolidated EBIT for such period.
"Consolidated Fixed Charge Coverage Ratio" shall mean, for any
period the ratio of (x) Consolidated EBITDA for such period less the amount of
all Capital Expenditures made by Borrower and its Subsidiaries during such
period pursuant to Section 9.07(a) to (y) Consolidated Interest Expense for such
period.
"Consolidated Fixed Charges" for any period shall mean the
sum, without duplication, of (i) Consolidated Interest Expense for such period,
(ii) the amount of all cash payments made by the Borrower and its Subsidiaries
in respect of taxes or tax liabilities during such period (net of any cash
refunds actually received during such period), (iii) the scheduled principal
amount (after giving effect to any refinancing thereof other than with proceeds
of Loans) of all amortization payments made (or required to be made and not
made) on all Indebtedness (including, without limitation, the principal
component of all Capitalized Lease Obligations) of the Borrower and its
Subsidiaries for such period plus the amount of all voluntary repayments of such
Indebtedness during such period to the extent that any such repayment reduced
the amount of any such scheduled amortization payment and (iv) the amount of all
cash Dividends paid by the Borrower during such period.
"Consolidated Indebtedness" shall mean, at any time, the
principal amount of all Indebtedness of the Borrower and its Subsidiaries at
such time determined on a consolidated basis to the extent that such
Indebtedness would be accounted for as debt in accordance with generally
accepted accounting principles plus, without duplication, (i) the maximum amount
available to be drawn under all letters of credit (including any Letters of
Credit) issued for the account of the Borrower and its Subsidiaries and all
unpaid drawings (including any Unpaid Drawings) in respect of such letters of
credit, (ii) the principal amount of all bonds issued by the Borrower and its
Subsidiaries in connection with workers' compensation obligations, lease
obligations and similar obligations, (iii) all Indebtedness set forth on
Schedule VI to the extent outstanding at such time and (iv) the amount of all
Contingent Obligations of the Borrower and
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its Subsidiaries determined on a consolidated basis in respect of Indebtedness
of other Persons of the type described above in this definition.
"Consolidated Interest Coverage Ratio" shall mean, for any
period, the ratio of (x) Consolidated EBITDA for such period to (y) Consolidated
Interest Expense for such Test Period.
"Consolidated Interest Expense" shall mean, for any period,
the total consolidated interest expense of the Borrower and its Subsidiaries for
such period (calculated without regard to any limitations on the payment
thereof) plus, without duplication, that portion of Capitalized Lease
Obligations of the Borrower and its Subsidiaries representing the interest
factor for such period; provided that the amortization of fees and expenses with
respect to this Agreement, the Indebtedness incurred hereunder and any
Indebtedness incurred under Section 9.04(vi) or (vii) shall be excluded from
Consolidated Interest Expense to the extent same would otherwise have been
included therein.
"Consolidated Net Income" shall mean, for any Person and
period, the net income (or loss) of such Person and its Subsidiaries for such
period, determined on a consolidated basis (after deduction for minority
interests) in accordance with generally accepted accounting principles, provided
that (i) in determining Consolidated Net Income of the Borrower, the net income
(or loss) of any other Person which is not a Subsidiary of the Borrower or is
accounted for by the Borrower by the equity method of accounting shall be
included only to the extent of the payment of dividends or distributions by such
other Person to the Borrower or a Subsidiary thereof during such period and (ii)
the net income (or loss) of any other Person acquired by such specified Person
or a Subsidiary of such Person in a pooling of interests transaction for any
period prior to the date of such acquisition shall be excluded.
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person as a result of such Person being a general partner of
the other Person, unless the underlying obligation is expressly made
non-recourse as to such general partner, and any obligation of such Person
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or
other obligations ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (x) for the purchase
or payment of any such primary obligation or (y) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the holder of such
primary obligation against loss in respect thereof; provided, however, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
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reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Continuing Directors" shall mean the directors of the
Borrower on the Restatement Effective Date and each other director, if such
other director's nomination for election to the Board of Directors of the
Borrower is recommended by a majority of the then Continuing Directors or is
recommended by a committee of the Board of Directors a majority of which is
composed of the then Continuing Directors.
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note, the Subsidiaries Guaranty and each Security Document.
"Credit Event" shall mean the making of any Loan or the
issuance of any Letter of Credit.
"Credit Party" shall mean the Borrower and each Subsidiary
Guarantor.
"Cumulative Net Income Amount" shall mean, on any date of
determination, an amount equal to (i) 50% of Consolidated Net Income (determined
on a cumulative basis) for all Cumulative Net Income Periods ending prior to
such date of determination for which Consolidated Net Income was a positive
number, minus (ii) 100% of Consolidated Net Income (determined on a cumulative
basis) for all Cumulative Net Income Periods ending prior to such date of
determination for which Consolidated Net Income was a negative number.
"Cumulative Net Income Period" shall mean each period
consisting of a fiscal quarter of the Borrower ending after October 1, 1997.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a
Bank Default is in effect.
"Delayed-Draw Commitment" shall mean for each Bank, such Banks
pro-rata share of the Total Delayed-Draw Commitment calculated according to such
Bank's pro-rata share of the Total Term Loan Commitment.
"Delayed-Draw Commitment Expiration Date" shall mean June 30,
1999.
"Delayed-Draw Term Loans" shall mean a portion of the Term
Loans that may be borrowed by the Borrower on the Earnout Payment Date in an
aggregate amount not to exceed $40,000,000.
"Determination Date" shall have the meaning provided in the
definition of "Pro Forma Basis."
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"Dividend" with respect to any Person shall mean that such
Person has declared or paid a dividend or returned any equity capital to its
stockholders or partners or authorized or made any other distribution, payment
or delivery of property (other than common stock of such Person) or cash to its
stockholders or partners as such, or redeemed, retired, purchased or otherwise
acquired, directly or indirectly, for a consideration any shares of any class of
its capital stock or any partnership interests outstanding on or after the
Restatement Effective Date (or any options or warrants issued by such Person
with respect to its capital stock), or set aside any funds for any of the
foregoing purposes, or shall have permitted any of its Subsidiaries to purchase
or otherwise acquire for a consideration any shares of any class of the capital
stock or any partnership interests of such Person outstanding on or after the
Restatement Effective Date (or any options or warrants issued by such Person
with respect to its capital stock). Without limiting the foregoing, "Dividends"
with respect to any Person shall also include all payments made or required to
be made by such Person with respect to any stock appreciation rights, plans,
equity incentive or achievement plans or any similar plans or setting aside of
any funds for the foregoing purposes.
"Documents" shall mean the Credit Documents, the Acquisition
Documents and the Refinancing Documents.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Domestic Subsidiary" shall mean each Subsidiary of the
Borrower incorporated or organized in the United States or any State or
territory thereof.
"Drawing" shall have the meaning provided in Section 2.05(b).
"Earnout" shall mean the amounts due to Figgie pursuant to
Section 1.4(b) of the Figgie Asset Purchase Agreement.
"Earnout Payment Date" shall have the meaning provided in
Section 1.01.
"Effective Date" shall mean the effective date of the Original
Credit Agreement (i.e., November 17, 1997).
"Eligible Transferee" shall mean and include a commercial
bank, insurance company, financial institution, fund or other Person which
regularly purchases interests in loans or extensions of credit of the types made
pursuant to this Agreement, any other Person which would constitute a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act as
in effect on the Restatement Effective Date or other "accredited investor" (as
defined in Regulation D of the Securities Act).
"Employee Benefit Plans" shall have the meaning provided in
Section 5.05.
"End Date" shall have the meaning provided in the definition
of Applicable Base Rate Margin.
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"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment due
to the presence of Hazardous Materials.
"Environmental Law" shall mean any Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, guideline, written policy
and rule of common law now or hereafter in effect and in each case as amended,
and any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decree or judgment, relating to the
environment, employee health and safety or Hazardous Materials, including,
without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33
U.S.C. ss. 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. ss. 2601 et
seq.; the Clean Air Act, 42 U.S.C. ss. 7401 et seq.; the Safe Drinking Water
Act, 42 U.S.C. ss. 3803 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. ss.
2701 et seq.; the Emergency Planning and the Community Right-to-Know Act of
1986, 42 U.S.C. ss. 11001 et seq.; the Hazardous Material Transportation Act, 49
U.S.C. ss. 1801 et seq. and the Occupational Safety and Health Act, 29 U.S.C.
ss. 651 et seq.; and any state and local or foreign counterparts or equivalents,
in each case as amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with the Borrower or a Subsidiary of the
Borrower would be deemed to be a "single employer" within the meaning of Section
414(b), (c), (m) or (o) of the Code.
"Eurodollar Loan" shall mean each Loan designated as such by
the Borrower at the time of the incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean, with respect to each Interest
Period for a Eurodollar Loan, the London Interbank Offered Rate for borrowings
(rounded upward to the nearest 1/16 of one percent) for deposits of Dollars in
minimum amounts of at least the Minimum Borrowing Amount applicable to such
Eurodollar Loan for a period equivalent to such period at or about 11:00 A.M.
(London time) on the second Business Day before the first day of such period as
is displayed on Telerate page 3750 (British Bankers' Association Interest
Settlement Rates) (or such other page as may replace such page 3750 on such
system, provided that if on such date no such rate is so displayed, the
Eurodollar Rate for such period shall be the rate determined by the
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Administrative Agent to be the arithmetic average (rounded upward, if necessary,
to the nearest 1/16 of one percent) of the rate per annum at which deposits of
Dollars in an amount approximately equal to the amount in relation to which the
Eurodollar Rate is to be determined for a period equivalent to such period are
being offered by first class banks in the London Interbank Market at or about
11:00 A.M. (London time) on the second Business Day before the first day of such
period, provided further that in each case the rate obtained above shall be
adjusted to take account of reserve requirements by dividing such rate by the
Eurodollar Reserve Percentage (with such resulting rate to be rounded upward, if
necessary, to the nearest 1/100 of one percent).
"Eurodollar Reserve Percentage" shall mean for any day, the
remainder of one minus the percentage (expressed as a decimal and rounded
upwards, if necessary, to the next higher 1/100th of 1%) which is in effect for
such day as prescribed by the Federal Reserve Board (or any successor) for
determining the maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) in respect of Eurocurrency
liabilities or any similar category of liabilities for a member bank of the
Federal Reserve System in New York City.
"Event of Default" shall have the meaning provided in Section
10.
"Excess Cash Flow" shall mean, for any period, the remainder
of (i) the sum of (a) Adjusted Consolidated Cash Income for such period and (b)
the decrease, if any, in Adjusted Consolidated Working Capital from the first
day of such period to the last day of such period, minus (ii) the sum of (a) the
amount of all Capital Expenditures, made by the Borrower and its Subsidiaries
pursuant to Section 9.07(a) during such period, (b) the aggregate principal
amount of permanent principal payments of Indebtedness for borrowed money of the
Borrower and its Subsidiaries (other than repayments pursuant to which any other
Indebtedness is being refinanced with proceeds of Indebtedness, equity
issuances, asset sales or insurance proceeds, and repayments of Loans, provided
that repayments of Loans shall be deducted in determining Excess Cash Flow if
such repayments were (x) required as a result of a Scheduled Repayment under
Section 4.02(b) or (y) made as a voluntary prepayment (but in the case of a
voluntary prepayment of Revolving Loans or Swingline Loans, only to the extent
accompanied by a voluntary reduction to the Total Revolving Loan Commitment))
during such period and (c) the increase, if any, in Adjusted Consolidated
Working Capital from the first day of such period to the last day of such
period.
"Excess Cash Payment Date" shall mean the date occurring 90
days after the last day of each fiscal year of the Borrower (beginning with its
fiscal year ending September 30, 1998).
"Excess Cash Payment Period" shall mean, with respect to the
repayment required on each Excess Cash Payment Date, the immediately preceding
fiscal year of the Borrower.
"Existing Indebtedness" shall have the meaning provided in
Section 7.22.
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"Existing Indebtedness Agreements" shall have the meaning
provided in Section 5.05.
"Facing Fee" shall have the meaning provided in Section
3.01(c).
"Federal Funds Rate" shall mean for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 3.01.
"Figgie" shall mean Figgie International Inc., a Delaware
corporation.
"Figgie Asset Purchase Agreement" shall mean the Asset
Purchase Agreement, dated as of July 19, 1997, by and among Figgie, various
subsidiaries of Figgie and SKL and the amendment thereto dated as of November 9,
1997.
"Foreign Pension Plan" shall mean any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States of America by the Borrower
or any one or more of its Subsidiaries primarily for the benefit of employees of
the Borrower or such Subsidiaries residing outside the United States of America,
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 each Subsidiary of the
Borrower other than a Domestic Subsidiary.
"Hazardous Materials" shall mean (a) any petroleum or
petroleum products, radioactive materials, asbestos in any form that is friable,
urea formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls, and radon gas;
(b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "hazardous waste," "hazardous materials,"
"extremely hazardous substances," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, the Release of which is prohibited, limited or
regulated by any governmental authority.
"IDB Financing" shall mean the City of Xxxxx, North Dakota
Industrial Development Revenue Bonds Series 1999 (Omniquip International, Inc.
Project) dated February 25, 1999 in the aggregate amount of $4,500,000.
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"IDB Financing Documents" shall mean the Indenture of Trust
dated as of February 25, 1999 between the City of Xxxxx, North Dakota and
Norwest Bank Minnesota, National Association; the Lease Agreement dated as of
February 25, 1999 between the City of Xxxxx, North Dakota and Xxxxx Enhancement,
Inc.; the Sublease Agreement dated as of February 25, 1999 between Oakes
Enhancement, Inc. and the Borrower; the Mortgage, Security Agreement and Fixture
Financing dated as of February 25, 1999 between Norwest Bank Minnesota, National
Association, the City of Xxxxx, North Dakota and Xxxxx Enhancement, Inc.; the
Assignment of Leases and Rents dated as of February 25, 1999 between Norwest
Bank Minnesota, National Association, the City of Xxxxx, North Dakota and Xxxxx
Enhancement, Inc.; and all other agreements and documents entered into in
connection with the IDB Financing.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money or for the deferred purchase price of
property or services, (ii) the maximum amount available to be drawn under all
letters of credit issued for the account of such Person and all unpaid drawings
in respect of such letters of credit, (iii) all Indebtedness of the types
described in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition
secured by any Lien on any property owned by such Person, whether or not such
Indebtedness has been assumed by such Person (provided, that, if the Person has
not assumed or otherwise become liable in respect of such Indebtedness, such
Indebtedness shall be deemed to be in an amount equal to the fair market value
of the property to which such Lien relates as determined in good faith by such
Person), (iv) the aggregate amount required to be capitalized under leases under
which such Person is the lessee, (v) all obligations of such person to pay a
specified purchase price for goods or services, whether or not delivered or
accepted, i.e., take-or-pay and similar obligations, (vi) all Contingent
Obligations of such Person and (vii) all obligations under any Interest Rate
Protection Agreement, any Other Hedging Agreement or under any similar type of
agreement. Notwithstanding the foregoing, Indebtedness shall not include (x)
trade payables and accrued expenses incurred by any Person in accordance with
customary practices and in the ordinary course of business of such Person and
(y) deferred compensation obligations of any Person.
"Indebtedness to be Refinanced" shall mean all Indebtedness
set forth on Schedule IV.
"Initial Borrowing Date" shall mean the date occurring on or
after the Restatement Effective Date on which the initial Borrowing of Loans or
issuance of a Letter of Credit occurs.
"Intercompany Loan" shall have the meaning provided in Section
9.05(vi).
"Intercompany Note" shall mean a promissory note, in the form
of Exhibit L, evidencing Intercompany Loans.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
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"Interest Period" shall have the meaning provided in Section
1.09.
"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, interest rate cap agreement, interest collar agreement,
interest rate hedging agreement or other similar agreement or arrangement.
"Investments" shall have the meaning provided in Section 9.05.
"Issuing Bank" shall mean First Union National Bank and any
other Bank which at the request of the Borrower and with the consent of the
Agents (which consent shall not be unreasonably withheld) agrees, in such Bank's
sole discretion, to become an Issuing Bank for the purpose of issuing Letters of
Credit pursuant to Section 2. The sole Issuing Bank on the Restatement Effective
Date is First Union National Bank.
"Leaseholds" of any Person shall mean all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"L/C Supportable Obligations" shall mean (i) obligations of
the Borrower or any of its Subsidiaries with respect to workers compensation,
surety bonds and other similar statutory obligations and (ii) such other
obligations of the Borrower or any of its Subsidiaries as are otherwise
permitted to exist pursuant to (or otherwise not restricted by) the terms of
this Agreement, other than any Indebtedness for borrowed money unless consented
to by the Agents and the Issuing Bank.
"Lending Office" shall mean, with respect to any Bank, any
office, branch, subsidiary or affiliate of such Bank.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(c).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of (i) the aggregate Stated Amount of all outstanding Letters of Credit and
(ii) the amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
"Leverage Ratio" shall mean, at any time, the ratio of (x)
Consolidated Indebtedness at such time to (y) Consolidated EBITDA for the then
most recently ended Test Period.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the
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UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall mean each Term Loan, each Revolving Loan and each
Swingline Loan.
"Majority Banks" of any Tranche shall mean those
Non-Defaulting Banks which would constitute the Required Banks under, and as
defined in, this Agreement if all outstanding Obligations of the other Tranches
under this Agreement were repaid in full and all Commitments with respect
thereto were terminated.
"Management Agreements" shall have the meaning provided in
Section 5.05.
"Mandatory Borrowing" shall have the meaning provided in
Section 1.01(d).
"Margin Stock" shall have the meaning provided in Regulation
U.
"Maturity Date" shall mean, with respect to any Tranche of
Loans, the Term Loan Maturity Date, the Revolving Loan Maturity Date or the
Swingline Expiry Date, as the case may be.
"Maximum Swingline Amount" shall mean $5,000,000.
"Minimum Borrowing Amount" shall mean (i) for Term Loans,
$5,000,000, (ii) for Revolving Loans, $1,000,000 and (iii) for Swingline Loans,
$250,000.
"Minnesota Mortgage" shall mean the Mortgage granted by Lull
International, Inc. with respect to its real property and fixtures in the state
of Minnesota.
"Mortgage" shall mean each mortgage, deed to secure debt or
deed of trust pursuant to which any Credit Party shall have granted to the
Collateral Agent a mortgage lien on such Credit Party's Mortgaged Property.
"Mortgage Policy" shall have the meaning provided in Section
5.12.
"Mortgaged Property" shall mean (i) each Real Property owned
by any Credit Party and designated as a Mortgaged Property on Schedule III and
(ii) each Real Property owned or leased by any Credit Party and designated as a
Mortgaged Property pursuant to Section 8.12.
"MSSF" shall mean Xxxxxx Xxxxxxx Senior Funding, Inc., in its
individual capacity.
"Multiemployer Plan" shall mean a plan as defined in Section
4001(a)(3) of ERISA with respect to which the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate has an obligation to contribute to or any
liability.
"NAIC" shall mean the National Association of Insurance
Commissioners.
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"Net Debt Proceeds" shall mean, with respect to any incurrence
of Indebtedness for borrowed money, the cash proceeds (net of underwriting
discounts and commissions, commitment and other financing fees and other costs
associated therewith) received by the respective Person from the respective
incurrence of such Indebtedness for borrowed money.
"Net Insurance Proceeds" shall mean, with respect to any
Recovery Event, the cash proceeds (net of costs and taxes incurred in connection
with such Recovery Event) received by the respective Person in connection with
the respective Recovery Event.
"Net Sale Proceeds" shall mean, for any Asset Sale, the gross
cash proceeds (including any cash received by way of deferred payment pursuant
to a promissory note, receivable or otherwise, but only as and when received)
received from such sale of assets, net of the costs of such sale (including fees
and commissions, payments of unassumed liabilities relating to the assets sold
and required payments of any Indebtedness (other than Indebtedness secured
pursuant to the Security Documents or any Indebtedness owed to the Borrower or a
Subsidiary thereof) which is secured by the respective assets which were sold),
and the taxes paid or payable as a result of such Asset Sale.
"New Subordinated Note Documents" shall mean the New
Subordinated Notes, any indenture or purchase agreement related thereto and each
of the other documents entered into in connection therewith.
"New Subordinated Notes" shall have the meaning provided in
Section 9.04(vi).
"Non-Defaulting Bank" shall mean and include each Bank other
than a Defaulting Bank.
"Non-Excluded Taxes" shall have the meaning provided in
Section 4.04(a).
"Note" shall mean each Term Note, each Revolving Note and the
Swingline Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03(a).
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative
Agent located at One First Union Center, 000 Xxxxx Xxxxxxx Xxxxxx, XX-00,
Xxxxxxxxx, XX 00000-0000, Attention: Syndication Services, with copies to 000
Xxxxx Xxxxxxx Xxxxxx, XX-0, Xxxxxxxxx, XX 00000-0000, Attention: Leveraged
Finance, or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto. "Obligations" shall
mean all amounts owing to any Agent, the Collateral Agent or any Bank pursuant
to the terms of this Agreement or any other Credit Document.
"Original Credit Agreement" shall have the meaning provided in
the preamble to this Agreement.
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"Other Creditor" shall have the meaning provided in the
Security Documents.
"Other Hedging Agreement" shall mean any foreign exchange
contracts, currency swap agreements, commodity agreements or other similar
agreements or arrangements designed to protect against the fluctuations in
currency values.
"Participant" shall have the meaning provided in Section
2.04(a).
"Payment Office" shall mean the office of the Administrative
Agent located at One First Union Center, 000 Xxxxx Xxxxxxx Xxxxxx, XX-00,
Xxxxxxxxx, XX 00000-0000, Attention: Syndication Services, or such other office
as the Administrative Agent may hereafter designate in writing as such to the
other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition" shall have the meaning provided in
Section 9.02(ix).
"Permitted Encumbrance" shall mean, with respect to any
Mortgaged Property, such exceptions to title as are set forth in the title
insurance policy or title commitment delivered with respect thereto and accepted
by the Agents.
"Permitted Holders" shall mean Harbor Group Investments III,
L.P., Uniquip-HGI Associates, L.P., X. Xxxxx Stiff, Xxxxxx Xxxxx, Xxxxx Xxxx,
Xxxxxx Xxxxxxxx, Xxxx Xxxxxx and Xxxxxx Xxxxx.
"Permitted Liens" shall have the meaning provided in Section
9.01.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, association, limited liability company, trust or
other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2)
of ERISA, other than a multiemployer plan as defined in Section 4001(a)(3) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Borrower or a Subsidiary of the Borrower or an
ERISA Affiliate or with respect to which any such entity has liability.
"Pledge Agreement" shall have the meaning provided in Section
5.09.
"Pledge Agreement Collateral" shall mean all "Collateral" as
defined in the Pledge Agreement.
"Pledged Notes" shall have the meaning provided in the Pledge
Agreement.
"Pledged Securities" shall mean all "Pledged Securities" as
defined in the Pledge Agreement.
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"Prime Lending Rate" shall mean the rate which the
Administrative Agent announces from time to time as its prime lending rate, the
Prime Lending Rate to change when and as such prime lending rate changes. The
Prime Lending Rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer. The Administrative Agent
may make commercial loans or other loans at rates of interest at, above or below
the Prime Lending Rate.
"Pro Forma Basis" shall mean, with respect to any Permitted
Acquisition, the calculation of the consolidated results of the Borrower and its
Subsidiaries otherwise determined in accordance with this Agreement as if the
respective Permitted Acquisition (and all Indebtedness incurred to finance such
Permitted Acquisition, and all other Permitted Acquisitions, effected during the
respective Calculation Period or thereafter and on or prior to the date of
determination) (each such date, a "Determination Date") had been effected on the
first day of the respective Calculation Period; provided that all such
calculations shall be made on a basis consistent with the requirements of
Regulation S-X under the Securities Act and the Securities Exchange Act and
shall take into account the following assumptions:
(i) interest expense attributable to interest on any
Indebtedness (whether existing or being incurred) bearing a floating
interest rate shall be computed as if the rate in effect on the date of
computation (taking into account any Interest Rate Protection Agreement
applicable to such Indebtedness if such Interest Rate Protection
Agreement has a remaining term in excess of 12 months) had been the
applicable rate for the entire period; and
(ii) pro forma effect shall be given to all Permitted
Acquisitions (by excluding or including, as the case may be, the
historical financial results for the respective properties) that occur
during such Calculation Period or thereafter and on or prior to the
Determination Date (including any Indebtedness assumed or acquired in
connection therewith) as if they had occurred on the first day of such
Calculation Period, in each case to the extent that the occurrence of
any such event required the financial covenants contained in Sections
9.08 through 9.10, inclusive, to be recalculated on a Pro Forma Basis.
"Projections" shall mean the projections prepared by the
Borrower relating to the Transaction and delivered to the Agents prior to the
Restatement Effective Date.
"Quarterly Payment Date" shall mean each March 31, June 30,
September 30 and December 31 occurring after the Restatement Effective Date.
"RCRA" shall mean the Resource Conservation and Recovery Act,
as the same may be amended from time to time, 42 X.X.X.xx. 6901 et seq.
"Real Property" of any Person shall mean all the right, title
and interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
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"Recovery Event" shall mean the receipt by the Borrower or any
of its Subsidiaries of any cash insurance proceeds or condemnation awards
payable (i) by reason of theft, loss, physical destruction, damage, taking or
any other similar event with respect to any property or assets of the Borrower
or any of its Subsidiaries and (ii) under any policy of insurance required to be
maintained under Section 8.03.
"Refinancing" shall mean the repayment in full of, and the
termination of all commitments in respect of, the Indebtedness to be Refinanced.
"Refinancing Documents" shall mean all of the documents and
agreements entered into in connection with the Refinancing.
"Register" shall have the meaning provided in Section 13.15.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Regulation G" shall mean Regulation G of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Release" shall mean the disposing, discharging, injecting,
spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying,
pouring or migrating, into or upon any land or water or air, or otherwise
entering into the environment.
"Replaced Bank" shall have the meaning provided in Section
1.13.
"Replacement Bank" shall have the meaning provided in Section
1.13.
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA
other than those events as to which the 30-day notice period is waived under
subsection .13, .14, .16, .18, .19 or .20 of PBGC Regulation Section 4043.
"Required Banks" shall mean Non-Defaulting Banks the sum of
whose outstanding Term Loans (and, if prior to the termination thereof, Term
Loan Commitments), and Revolving Loan Commitments (or after the termination
thereof, outstanding Revolving Loans and Adjusted RL Percentage of Swingline
Loans and Letter of Credit Outstandings) represent an
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amount greater than 50% of the sum of all outstanding Term Loans (and, if prior
to the termination thereof, the Term Loan Commitments) of Non-Defaulting Banks,
and the Adjusted Total Revolving Loan Commitment (or after the termination
thereof, the sum of the then total outstanding Revolving Loans of Non-Defaulting
Banks, and the aggregate Adjusted RL Percentages of all Non-Defaulting Banks of
the total outstanding Swingline Loans and Letter of Credit Outstandings at such
time).
"Restatement Effective Date" shall have the meaning provided
in Section 13.10.
"Revolving Loan" shall have the meaning provided in Section
1.01(b).
"Revolving Loan Commitment" shall mean, for each Bank, the
amount set forth opposite such Bank's name in Schedule I directly below the
column entitled "Revolving Loan Commitment," as same may be (x) reduced from
time to time pursuant to Sections 3.02, 3.03 and/or 10 or (y) adjusted from time
to time as a result of assignments to or from such Bank pursuant to Section 1.13
or 13.04(b).
"Revolving Loan Commitment Commission" shall have the meaning
provided in Section 3.01(a).
"Revolving Loan Maturity Date" shall mean November 17, 2004.
"Revolving Note" shall have the meaning provided in Section
1.05(a).
"RL Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that if the RL Percentage of
any Bank is to be determined after the Total Revolving Loan Commitment has been
terminated, then the RL Percentages of the Banks shall be determined immediately
prior (and without giving effect) to such termination.
"Scheduled Repayments" shall have the meaning provided in
Section 4.02(b).
"SEC" shall have the meaning provided in Section 8.01(g).
"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning assigned that term
in the respective Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Securities Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
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"Security Agreement" shall have the meaning provided in
Section 5.10.
"Security Agreement Collateral" shall mean all "Collateral" as
defined in the Security Agreement.
"Security Document" shall mean and include each of the
Security Agreement, the Pledge Agreement and each Mortgage and, after the
execution and delivery thereof, each Additional Security Document.
"Shareholders' Agreements" shall have the meaning provided in
Section 5.05.
"SKL" shall mean Snorkel International, Inc., a Delaware
corporation, formerly known as SKL Lift, Inc.
"Standby Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Start Date" shall have the meaning provided in the definition
of Applicable Base Rate Margin.
"Stated Amount" of each Letter of Credit shall, at any time,
mean the maximum amount available to be drawn thereunder (in each case
determined without regard to whether any conditions to drawing could then be
met).
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Subsidiaries of
such Person has more than a 50% equity interest at the time.
"Subsidiajry Guarantor" shall mean each Wholly-Owned Domestic
Subsidiary of the Borrower and, to the extent required by Section 8.13, each
Wholly-Owned Foreign Subsidiary of the Borrower.
"Subsidiaries Guaranty" shall have the meaning provided in
Section 5.11.
"Supermajority Banks" of any Tranche shall mean those
Non-Defaulting Banks which would constitute the Required Banks under, and as
defined in, this Agreement if (x) all outstanding Obligations of the other
Tranches under this Agreement were repaid in full and all Commitments with
respect thereto were terminated and (y) the percentage "50%" contained therein
were changed to "66-2/3%."
"Swingline Bank" shall mean First Union National Bank.
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"Swingline Expiry Date" shall mean the date which is five
Business Days prior to the Revolving Loan Maturity Date.
"Swingline Loan" shall have the meaning provided in Section
1.01(c).
"Swingline Note" shall have the meaning provided in Section
1.05(a).
"Syndication Agent" shall mean MSSF, in its capacity as
Syndication Agent and Co-Arranger for the Banks hereunder.
"Syndication Date" shall have the meaning provided in Section
1.01(a).
"Tax Sharing Agreements" shall have the meaning provided in
Section 5.05.
"Term Loan" shall have the meaning provided in Section
1.01(a).
"Term Loan Commitment" shall mean, for each Bank, the amount
set forth opposite such Bank's name in Schedule I directly below the column
entitled "Term Loan Commitment," as same may be (x) reduced from time to time
pursuant to Sections 3.02, 3.03, 4.02 and/or 10 or (y) adjusted from time to
time as a result of assignments to or from such Bank pursuant to Section 1.13 or
13.04(b).
"Term Loan Commitment Commission" shall have the meaning
provided in Section 3.01(f).
"Term Loan Maturity Date" shall mean November 17, 2004.
"Term Loan Percentage" shall mean, at any time, a fraction
(expressed as a percentage) the numerator of which is equal to the sum of the
aggregate principal amount of all Term Loans outstanding at such time plus the
Total Term Loan Commitment at such time and the denominator of which is equal to
the sum of the aggregate principal amount of all Term Loans outstanding at such
time plus the Total Term Loan Commitment at such time.
"Term Note" shall have the meaning provided in Section
1.05(a).
"Test Period" shall mean the period of four consecutive fiscal
quarters of the Borrower then last ended (in each case taken as one accounting
period).
"Total Delayed Draw Commitment" shall mean a portion of the
Total Term Loan Commitment equal to $40,000,000, which shall only be permitted
to be borrowed on the Earnout Payment Date.
"Total Commitments" shall mean, at any time, the sum of the
Commitments of each of the Banks.
"Total Revolving Loan Commitment" shall mean, at any time, the
sum of the Revolving Loan Commitments of each of the Banks.
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"Total Term Loan Commitment" shall mean, at any time, the sum
of the Term Loan Commitments of each of the Banks.
"Total Unutilized Revolving Loan Commitment" shall mean, at
any time, an amount equal to the remainder of (x) the Total Revolving Loan
Commitment then in effect, less (y) the sum of the aggregate principal amount of
Revolving Loans and Swingline Loans then outstanding plus the then aggregate
amount of Letter of Credit Outstandings.
"Total Unutilized Term Loan Commitment" shall mean, at any
time, an amount equal to the remainder of (x) the Total Term Loan Commitment
then in effect, less (y) the sum of the aggregate principal amount of Term Loans
then outstanding.
"Trade Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being three separate Tranches,
i.e., Term Loans, Revolving Loans and Swingline Loans.
"Transaction" shall mean, collectively, (i) payment of the
Earnout, (ii) the refinancing of all Indebtedness (including letters of credit)
outstanding under the Original Credit Agreement, (iii) the incurrence of Loans
on the Restatement Effective Date, and (iv) the payment of fees and expenses
owing in connection with the foregoing.
"Type" shall mean the type of Loan determined with regard to
the interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the
amount, if any, by which the actuarial present value of the accumulated plan
benefits under the Plan as of the close of its most recent plan year exceeds the
fair market value of the assets allocable thereto, each determined in accordance
with Statement of Financial Accounting Standards No. 87, based upon the
actuarial assumptions used by the Plan's actuary in the most recent annual
valuation of the Plan.
"United States" and "U.S." shall each mean the United States
of America.
"Unpaid Drawing" shall have the meaning provided for in
Section 2.05(a).
"Unutilized Revolving Loan Commitment" with respect to any
Bank, at any time, shall mean such Bank's Revolving Loan Commitment at such time
less the sum of (i) the aggregate outstanding principal amount of Revolving
Loans made by such Bank and (ii) such Bank's Adjusted RL Percentage of the
Letter of Credit Outstandings.
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"Unutilized Term Loan Commitment" with respect to any Bank, at
any time, shall mean such Bank's Term Loan Commitment at such time less the
aggregate outstanding principal amount of Term Loans made by such Bank.
"U.S. Internal Revenue Service Forms" shall have the meaning
provided in Section 4.04(b).
"Wholly-Owned Domestic Subsidiary" shall mean, as to any
Person, any Wholly-Owned Subsidiary of such Person which is a Domestic
Subsidiary.
"Wholly-Owned Foreign Subsidiary" shall mean, as to any
Person, any Wholly-Owned Subsidiary of such Person which is a Foreign
Subsidiary.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, association, joint venture
or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% equity interest at such time.
SECTION 12. The Administrative Agent and the Syndication
Agent.
12.01 Appointment. The Banks hereby designate First Union
National Bank as Administrative Agent (for purposes of this Section 12, the term
"Administrative Agent" also shall include First Union National Bank in its
capacity as Co-Arranger hereunder and as Collateral Agent pursuant to the
Security Documents) to act as specified herein and in the other Credit
Documents. The Banks hereby designate MSSF as Syndication Agent (for purposes of
this Section 12, the term "Syndication Agent" also shall include MSSF in its
capacity as Co-Arranger) to act as specified herein and in the other Credit
Documents. Each Bank hereby irrevocably authorizes, and each holder of any Note
by the acceptance of such Note shall be deemed irrevocably to authorize, the
Administrative Agent and the Syndication Agent to take such action on its behalf
under the provisions of this Agreement, the other Credit Documents and any other
instruments and agreements referred to herein or therein and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Administrative Agent and the Syndication Agent
by the terms hereof and thereof and such other powers as are reasonably
incidental thereto. The Administrative Agent and the Syndication Agent may
perform any of their duties hereunder by or through its respective officers,
directors, agents, employees or affiliates.
12.02 Nature of Duties. Neither the Administrative Agent nor
the Syndication Agent in their capacity as such shall have any duties or
responsibilities except those expressly set forth in this Agreement and in the
other Credit Documents. Neither the Administrative Agent, the Syndication Agent
in their capacity as such nor any of their respective officers, directors,
agents, employees or affiliates shall be liable for any action taken or omitted
by it or them hereunder or under any other Credit Document or in connection
herewith or therewith, unless caused by its or their gross negligence or willful
misconduct. The duties of the Administrative Agent and the Syndication Agent
shall be mechanical and administrative in nature; neither the
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Administrative Agent nor the Syndication Agent shall have by reason of this
Agreement or any other Credit Document a fiduciary relationship in respect of
any Bank or the holder of any Note; and nothing in this Agreement or any other
Credit Document, expressed or implied, is intended to or shall be so construed
as to impose upon the Administrative Agent or the Syndication Agent any
obligations in respect of this Agreement or any other Credit Document except as
expressly set forth herein or therein.
12.03 Lack of Reliance on the Administrative Agent and the
Syndication Agent. Independently and without reliance upon the Administrative
Agent or the Syndication Agent, each Bank and the holder of each Note, to the
extent it deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of the Borrower
and its Subsidiaries in connection with the making and the continuance of the
Loans and the taking or not taking of any action in connection herewith and (ii)
its own appraisal of the creditworthiness of the Borrower and its Subsidiaries
and, except as expressly provided in this Agreement, neither the Administrative
Agent nor the Syndication Agent shall have any duty or responsibility, either
initially or on a continuing basis, to provide any Bank or the holder of any
Note with any credit or other information with respect thereto, whether coming
into its possession before the making of the Loans or at any time or times
thereafter. Neither the Administrative Agent nor the Syndication Agent shall be
responsible to any Bank or the holder of any Note for any recitals, statements,
information, representations or warranties herein or in any document,
certificate or other writing delivered in connection herewith or for the
execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of the Borrower or any of its Subsidiaries
or be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement or
any other Credit Document, or the financial condition of the Borrower or any of
its Subsidiaries or the existence or possible existence of any Default or Event
of Default.
12.04 Certain Rights of the Agents. If any Agent shall request
instructions from the Required Banks with respect to any act or action
(including failure to act) in connection with this Agreement or any other Credit
Document, such Agent shall be entitled to refrain from such act or taking such
action unless and until such Agent shall have received instructions from the
Required Banks; and such Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Bank or the holder of any
Note shall have any right of action whatsoever against any Agent as a result of
such Agent acting or refraining from acting hereunder or under any other Credit
Document in accordance with the instructions of the Required Banks.
12.05 Reliance. The Administrative Agent and the Syndication
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any note, writing, resolution, notice, statement, certificate, telex, teletype
or telecopier message, cablegram, radiogram, order or other document or
telephone message signed, sent or made by any Person that the Administrative
Agent or the Syndication Agent believed to be the proper Person, and, with
respect to all legal matters pertaining to this Agreement and any other Credit
Document and its duties hereunder and
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thereunder, upon advice of counsel selected by the Administrative Agent or the
Syndication Agent, as the case may be.
12.06 Indemnification. To the extent the Administrative Agent
or the Syndication Agent is not reimbursed and indemnified by the Borrower or
any of its Subsidiaries, the Banks will reimburse and indemnify the
Administrative Agent and the Syndication Agent, in proportion to their
respective "percentages" as used in determining the Required Banks, for and
against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, costs, expenses or disbursements of whatsoever kind
or nature which may be imposed on, asserted against or incurred by the
Administrative Agent or the Syndication Agent in performing its respective
duties hereunder or under any other Credit Document, in any way relating to or
arising out of this Agreement or any other Credit Document; provided that no
Bank shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's or the Syndication Agent's gross
negligence or willful misconduct.
12.07 The Administrative Agent and the Syndication Agent in
Their Individual Capacity. With respect to its obligation to make Loans, or
issue or participate in Letters of Credit, under this Agreement, the
Administrative Agent and the Syndication Agent shall have the rights and powers
specified herein for a "Bank" and may exercise the same rights and powers as
though it were not performing the duties specified herein; and the term "Banks,"
"Required Banks," "Majority Banks," "Supermajority Banks," "holders of Notes" or
any similar terms shall, unless the context clearly otherwise indicates, include
the Administrative Agent and the Syndication Agent in their individual capacity.
The Administrative Agent and the Syndication Agent and their affiliates may
accept deposits from, lend money to, and generally engage in any kind of
banking, investment banking, trust or other business with, or provide debt
financing, equity capital or other services (including financial advisory
services) to, any Credit Party or any Affiliate of any Credit Party (or any
Person engaged in a similar business with any Credit Party or any Affiliate
thereof) as if they were not performing the duties specified herein, and may
accept fees and other consideration from any Credit Party or any Affiliate of
any Credit Party for services in connection with this Agreement and otherwise
without having to account for the same to the Banks.
12.08 Holders. Any Agent may deem and treat the payee of any
Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with the Administrative Agent. Any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee, assignee or endorsee, as the case may be,
of such Note or of any Note or Notes issued in exchange therefor.
12.09 Resignation by the Administrative Agent and the
Syndication Agent. (a) The Administrative Agent and/or the Syndication Agent may
resign from the performance of all their respective functions and duties
hereunder and/or under the other Credit Documents at any time by giving 15
Business Days' prior written notice to the Banks and the Borrower (provided
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that no such notice shall be required to be given to the Borrower if a Default
or an Event of Default of the type described in Section 10.05 exists with
respect to the Borrower). Such resignation, in the case of the Administrative
Agent, shall take effect upon the appointment of a successor Administrative
Agent pursuant to clauses (b) and (c) below or as otherwise provided below, and
such resignation, in the case of the Syndication Agent, shall take effect
immediately.
(b) Upon any such notice of resignation by the Administrative
Agent, the Required Banks shall appoint a successor Administrative Agent
hereunder or thereunder who shall be a commercial bank or trust company
reasonably acceptable to the Borrower (it being understood and agreed that any
Non-Defaulting Bank is deemed to be acceptable to the Borrower).
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent with the
consent of the Borrower (which consent shall not be unreasonably withheld or
delayed), shall then appoint a successor Administrative Agent who shall serve as
Administrative Agent hereunder or thereunder until such time, if any, as the
Required Banks appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 60th day after the date such notice
of resignation was given by the Administrative Agent, Administrative Agent's
resignation shall become effective and the Required Banks shall thereafter
perform all the duties of the Administrative Agent hereunder and/or under any
other Credit Document until such time, if any, as the Required Banks appoint a
successor Administrative Agent as provided above.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. The Borrower shall: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses (w) of the Agents (including,
without limitation, the reasonable fees and disbursements of White & Case
(subject to the limitations agreed to by the Agents and the Borrower) and of the
Agents' local counsel and consultants) in connection with the preparation,
execution and delivery of this Agreement and the other Credit Documents and the
documents and instruments referred to herein and therein, (x) of the Agents
(including, without limitation, the reasonable fees and expenses of White & Case
or any other single law firm retained by the Agents) with respect to any
amendment, waiver or consent relating to this Agreement and/or the other Credit
Documents, (y) of the Agents in connection with their syndication efforts with
respect to this Agreement and (z) of the Agents and, after the occurrence of an
Event of Default, each of the Banks in connection with the enforcement of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein (including, without limitation, the reasonable
fees and disbursements of counsel for the Agents and, after the occurrence of an
Event of Default, for each of the Banks); (ii) pay and hold each of the Banks
harmless from and against any and all present and future stamp, excise and other
similar documentary taxes with respect to the foregoing matters and save each of
the Banks harmless from and against any and
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all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to such Bank) to pay such taxes; and (iii)
indemnify each Agent and each Bank, and each of their respective officers,
directors, employees, representatives and agents from and hold each of them
harmless against any and all liabilities, obligations (including removal or
remedial actions), losses, damages, penalties, claims, actions, judgments,
suits, costs, expenses and disbursements (including reasonable attorneys' and
consultants' fees and disbursements) incurred by, imposed on or assessed against
any of them as a result of, or arising out of, or in any way related to, or by
reason of, (a) any investigation, litigation or other proceeding (whether or not
any Agent or any Bank is a party thereto) related to the entering into and/or
performance of this Agreement or any other Credit Document or the use of any
Letter of Credit or the proceeds of any Loans hereunder or the consummation of
the Transaction or any other transactions contemplated herein or in any other
Credit Document or the exercise of any of their rights or remedies provided
herein or in the other Credit Documents, or (b) the actual or alleged presence
of Hazardous Materials in the air, surface water or groundwater or on the
surface or subsurface of any Real Property owned or at any time operated by the
Borrower or any of its Subsidiaries, the generation, storage, transportation,
handling or disposal of Hazardous Materials at any location, whether or not
owned or operated by the Borrower or any of its Subsidiaries, the non-compliance
of any Real Property with foreign, federal, state and local laws, regulations,
and ordinances (including applicable permits thereunder) applicable to any Real
Property, or any Environmental Claim asserted against the Borrower, any of its
Subsidiaries or any Real Property owned or at any time operated by the Borrower
or any of its Subsidiaries, including, in each case, without limitation, the
reasonable fees and disbursements of counsel and other consultants incurred in
connection with any such investigation, litigation or other proceeding (but
excluding any losses, liabilities, claims, damages or expenses to the extent
incurred by reason of the gross negligence, bad faith or willful misconduct of
the Person to be indemnified). To the extent that the undertaking to indemnify,
pay or hold harmless any Agent or any Bank set forth in the preceding sentence
may be unenforceable because it is violative of any law or public policy, the
Borrower shall make the maximum contribution to the payment and satisfaction of
each of the indemnified liabilities which is permissible under applicable law.
13.02 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence of an Event of Default, each
Bank is hereby authorized (to the extent not prohibited by applicable law) at
any time or from time to time, without presentment, demand, protest or other
notice of any kind to the Borrower or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and apply any and all
deposits (general or special) and any other Indebtedness at any time held or
owing by such Bank (including, without limitation, by branches and agencies of
such Bank wherever located) to or for the credit or the account of any Credit
Party against and on account of the Obligations and liabilities of the Credit
Parties to such Bank under this Agreement or under any of the other Credit
Documents, including, without limitation, all interests in Obligations purchased
by such Bank pursuant to Section 13.06(b), and all other claims of any nature or
description arising out of or connected with this Agreement or any other Credit
Document, irrespective of whether or not such Bank shall have made any demand
hereunder and although said Obligations, liabilities or claims, or any of them,
shall be contingent or unmatured. Notwithstanding anything to the contrary
contained in this Section 13.02, no
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Bank shall exercise any such right of set-off without the prior consent of the
Agents or the Required Banks so long as the Obligations shall be secured by any
Real Property located in the State of California, it being understood and
agreed, however, that this sentence is for the sole benefit of the Banks and
(notwithstanding anything to the contrary contained in Section 13.12) may be
amended, modified or waived in any respect by the Required Banks without the
requirement of prior notice to or consent by any Credit Party and does not
constitute a waiver of any right against any Credit Party or against any
Collateral.
13.03 Notices. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to any Credit Party,
at the address specified opposite its signature below or in the other relevant
Credit Documents; if to any Bank, at its address specified on Schedule II; if to
the Syndication Agent, at the address specified on Schedule II; and if to the
Administrative Agent, at its Notice Office; or, as to any Credit Party or any
Agent, at such other address as shall be designated by such party in a written
notice to the other parties hereto and, as to each Bank, at such other address
as shall be designated by such Bank in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by overnight courier, be
effective when deposited in the mails, delivered to the telegraph company, cable
company or overnight courier, as the case may be, or sent by telex or
telecopier, except that notices and communications to any Agent or any Credit
Party shall not be effective until received by such Agent or such Credit Party.
13.04 Benefit of Agreement; Assignments; Participations. (a)
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto;
provided, however, the Borrower may not assign or transfer any of its rights,
obligations or interest hereunder without the prior written consent of the Banks
and, provided further, that, although any Bank may transfer, assign or grant
participations in its rights hereunder, such Bank shall remain a "Bank" for all
purposes hereunder (and may not transfer or assign all or any portion of its
Commitments hereunder except as provided in Sections 1.13 and 13.04(b)) and the
transferee, assignee or participant, as the case may be, shall not constitute a
"Bank" hereunder and, provided further, that no Bank shall transfer or grant any
participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the Revolving Loan Maturity Date) in which such participant
is participating, or reduce the rate or extend the time of payment of interest
or Fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof,
or increase the amount of the participant's participation over the amount
thereof then in effect (it being understood that a waiver of any Default or
Event of Default or of a mandatory reduction in the Total Commitment, shall not
constitute a change in the terms of such participation, and that an increase in
any Commitment or Loan shall be permitted without the consent of any participant
if the participant's participation is not increased as a result thereof), (ii)
consent to the assignment or transfer by the Borrower of any of its rights
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and obligations under this Agreement or (iii) release all or substantially all
of the Collateral under all of the Security Documents (except as expressly
provided in the Credit Documents) supporting the Loans hereunder in which such
participant is participating. In the case of any such participation, the
participant shall not have any rights under this Agreement or any of the other
Credit Documents (the participant's rights against such Bank in respect of such
participation to be those set forth in the agreement executed by such Bank in
favor of the participant relating thereto) and all amounts payable by the
Borrower hereunder shall be determined as if such Bank had not sold such
participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank
together with one or more other Banks) may (x) assign all or a portion of its
Commitments and related outstanding Obligations hereunder to its parent company
and/or any affiliate of such Bank which is at least 50% owned by such Bank or
its parent company or to one or more Banks or (y) assign all, or if less than
all, a portion equal to at least $5,000,000 in the aggregate for the assigning
Bank or assigning Banks, of such Commitments and related outstanding Obligations
hereunder to one or more Eligible Transferees, each of which assignees shall
become a party to this Agreement as a Bank by execution of an Assignment and
Assumption Agreement, provided that, (i) at such time Schedule I shall be deemed
modified to reflect the Commitments (or outstanding Term Loans, as the case may
be) of such new Bank and of the existing Banks, (ii) upon the surrender of the
relevant Notes by the assigning Bank (or, upon such assigning Bank's
indemnifying the Borrower for any lost Note pursuant to a customary
indemnification agreement) new Notes will be issued, at the Borrower's expense,
to such new Bank and to the assigning Bank upon the request of such new Bank or
assigning Bank, such new Notes to be in conformity with the requirements of
Section 1.05 (with appropriate modifications) to the extent needed to reflect
the revised Commitments (or outstanding Term Loans, as the case may be), (iii)
the consent of the Agents shall be required in connection with any assignment to
an Eligible Transferee pursuant to clause (y) above (which consent shall not be
unreasonably withheld or delayed), (iv) so long as no Default or Event of
Default exists, the consent of the Borrower shall be required in connection with
any assignment to an Eligible Transferee pursuant to clause (y) above (which
consent shall not be unreasonably withheld or delayed, provided that the
Borrower may withhold its consent to a proposed assignment if such assignment
would result in increased costs to the Borrower under Section 1.10, 2.06 or
4.04), (v) the Administrative Agent shall receive at the time of each such
assignment, from the assigning or assignee Bank, the payment of a non-refundable
assignment fee of $3,500 and (vi) no such transfer or assignment will be
effective until recorded by the Administrative Agent on the Register pursuant to
Section 13.15. To the extent of any assignment pursuant to this Section
13.04(b), the assigning Bank shall be relieved of its obligations hereunder with
respect to its assigned Commitments. At the time of each assignment pursuant to
this Section 13.04(b) to a Person which is not already a Bank hereunder and
which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for Federal income tax purposes, the respective
assignee Bank shall, to the extent legally entitled to do so, provide to the
Borrower the appropriate Internal Revenue Service Forms (and, if applicable, a
Section 4.04(b) (ii) Certificate) described in Section 4.04(b). To the extent
that an assignment of all or any portion of a Bank's Commitments and related
outstanding Obligations pursuant to Section 1.13 or this Section 13.04(b) would,
at the time of such assignment, result in increased costs under Section 1.10,
2.06 or 4.04 from those being charged by the respective assigning Bank
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prior to such assignment, then the Borrower shall not be obligated to pay such
increased costs (although the Borrower, in accordance with and pursuant to the
other provisions of this Agreement, shall be obligated to pay any other
increased costs of the type described above resulting from changes after the
date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any
Bank from pledging its Loans and Notes hereunder to a Federal Reserve Bank in
support of borrowings made by such Bank from such Federal Reserve Bank.
13.05 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Administrative Agent or the Syndication Agent or any Bank in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower or any other Credit Party
and the Administrative Agent, the Syndication Agent or any Bank shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights, powers and remedies herein or in any other
Credit Document expressly provided are cumulative and not exclusive of any
rights, powers or remedies which the Administrative Agent, the Syndication Agent
or any Bank would otherwise have. No notice to or demand on any Credit Party in
any case shall entitle any Credit Party to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent, the Syndication Agent or any Bank to any other or further
action in any circumstances without notice or demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided in
this Agreement, the Administrative Agent agrees that promptly after its receipt
of each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Banks (other than any Bank
that has consented in writing to waive its pro rata share of any such payment)
pro rata based upon their respective shares, if any, of the Obligations with
respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security, by
the exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Commitment Commission or Letter of Credit Fees,
of a sum which with respect to the related sum or sums received by other Banks
is in a greater proportion than the total of such Obligation then owed and due
to such Bank bears to the total of such Obligation then owed and due to all of
the Banks immediately prior to such receipt, then such Bank receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Banks an interest in the Obligations of the respective Credit Party to
such Banks in such amount as shall result in a proportional participation by all
the Banks in such amount; provided that if all or any portion of such excess
amount is thereafter recovered from such Bank, such purchase shall be rescinded
and the purchase price restored to the extent of such recovery, but without
interest.
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(c) Notwithstanding anything to the contrary contained herein,
the provisions of the preceding Sections 13.06(a) and (b) shall be subject to
the express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
13.07 Calculations; Computations; Accounting Terms. The
financial statements to be furnished to the Banks pursuant hereto shall be made
and prepared in accordance with generally accepted accounting principles in the
United States consistently applied throughout the periods involved (except (i)
as set forth in the notes thereto, (ii) for year-end adjustments in the case of
interim financial statements and (iii) as otherwise disclosed in writing by the
Borrower to the Banks) and consistent with those used to prepare the historical
financial statements of the Borrower delivered to the Banks pursuant to Section
7.05(a).
(b) All computations of interest, Commitment Commission and
other Fees hereunder, shall be made on the basis of a year of 360 days for the
actual number of days elapsed.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS
OTHERWISE PROVIDED IN THE MORTGAGES, BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT, THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. THE BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT
ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER THE BORROWER, AND AGREES NOT TO
PLEAD OR CLAIM, IN ANY LEGAL ACTION PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER CREDIT DOCUMENTS BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT
SUCH COURTS LACK PERSONAL JURISDICTION OVER THE BORROWER. THE BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS
SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS
AFTER SUCH MAILING. THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH
SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT
DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR
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INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY AGENT, ANY BANK OR THE
HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER IN ANY
OTHER JURISDICTION.
(b) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID
ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE
AND HEREBY FURTHER IRREVOCABLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective on
the date (the "Restatement Effective Date") on which the Borrower, the
Administrative Agent, the Syndication Agent and each of the Banks shall have
signed a counterpart hereof (whether the same or different counterparts) and
shall have delivered the same to the Administrative Agent at its Notice Office
or, in the case of the Banks, shall have given to the Administrative Agent
telephonic (confirmed in writing), written or telex notice (actually received)
at such office that the same has been signed and mailed to it. The
Administrative Agent will give the Borrower and each Bank prompt written notice
of the occurrence of the Restatement Effective Date.
13.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
13.12 Amendment or Waiver; etc. Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Banks, provided that no such change, waiver, discharge or termination
shall, without the consent of each Bank (other than a Defaulting Bank) (with
Obligations being directly affected in the case of following clause (i)), (i)
extend the
-102-
final scheduled maturity of any Loan or Note or extend the stated expiration
date of any Letter of Credit beyond the Revolving Loan Maturity Date, or reduce
the rate of interest or Fees or extend the time of payment of interest or Fees,
or reduce the principal amount thereof (except to the extent repaid in cash) (it
being understood that any amendment or modification to the financial definitions
in this Agreement or to Section 13.07(a) shall not constitute a reduction in the
rate of interest or any Fees for purposes of this clause (i)), (ii) release all
or substantially all of the Collateral (except as expressly provided in the
Credit Documents) under all the Security Documents, (iii) release a Subsidiary
Guarantor from the Subsidiaries Guaranty (except as expressly provided in the
Subsidiaries Guaranty or in connection with the sale of such Subsidiary
Guarantor in accordance with the terms of this Agreement), (iv) amend, modify or
waive any provision of this Section 13.12, (v) reduce the percentage specified
in the definition of Required Banks (it being understood that, with the consent
of the Required Banks, additional extensions of credit pursuant to this
Agreement may be included in the determination of the Required Banks on
substantially the same basis as the extensions of Term Loans and Revolving Loan
Commitments are included on the Restatement Effective Date) or (vi) consent to
the assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement; provided further, that no such change, waiver, discharge
or termination shall (u) increase the Commitments of any Bank over the amount
thereof then in effect without the consent of such Bank (it being understood
that waivers or modifications of conditions precedent, covenants, Defaults or
Events of Default or of a mandatory reduction in the Total Commitments shall not
constitute an increase of the Commitment of any Bank, and that an increase in
the available portion of any Commitment of any Bank shall not constitute an
increase of the Commitment of such Bank), (v) without the consent of each
Issuing Bank, amend, modify or waive any provision of Section 2 or alter its
rights or obligations with respect to Letters of Credit, (w) without the consent
of each Agent, amend, modify or waive any provision of Section 12 or any other
provision as same relates to the rights or obligations of the Agents, (x)
without the consent of the Collateral Agent, amend, modify or waive any
provision relating to the rights or obligations of the Collateral Agent, (y)
without the consent of the Majority Banks of each Tranche which is being
allocated a lesser prepayment, repayment or commitment reduction as a result of
the actions described below (or without the consent of the Majority Banks of
each Tranche in the case of an amendment to the definition of Majority Banks),
amend the definition of Majority Banks (it being understood that, with the
consent of the Required Banks, additional extensions of credit pursuant to this
Agreement may be included in the determination of the Majority Banks on
substantially the same basis as the extensions of Term Loans and Revolving Loan
Commitments are included on the Restatement Effective Date) or alter the
required application of any prepayments or repayments (or commitment
reductions), as between the various Tranches, pursuant to Section 4.01(a) or
4.02 (excluding Section 4.02(b)) (although the Required Banks may waive, in
whole or in part, any such prepayment, repayment or commitment reduction, so
long as the application, as amongst the various Tranches, of any such
prepayment, repayment or commitment reduction which is still required to be made
is not altered) or (z) without the consent of the Supermajority Banks of the
respective Tranche, reduce the amount of, or extend the date of, any Scheduled
Repayment or without the consent of the Supermajority Banks of each Tranche,
amend the definition of Supermajority Banks (it being understood that, with the
consent of the Required Banks, additional extensions of credit pursuant to this
Agreement may be included in the
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determination of the Supermajority Banks on substantially the same basis as the
extensions of Term Loans and Revolving Loan Commitments are included on the
Restatement Effective Date).
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (i) through (vi), inclusive, of the first proviso to
Section 13.12(a), the consent of the Required Banks is obtained but the consent
of one or more of such other Banks whose consent is required is not obtained,
then the Borrower shall have the right, so long as all non-consenting Banks
whose individual consent is required are treated as described in either clauses
(A) or (B) below, to either (A) replace each such non-consenting Bank or Banks
(or, at the option of the Borrower if the respective Bank's consent is required
with respect to less than all Tranches of Loans (or related Commitments), to
replace only the respective Tranche or Tranches of Commitments and/or Loans of
the respective non-consenting Bank which gave rise to the need to obtain such
Bank's individual consent) with one or more Replacement Banks pursuant to
Section 1.13 so long as at the time of such replacement, each such Replacement
Bank consents to the proposed change, waiver, discharge or termination or (B)
terminate such non-consenting Bank's Commitments (if such Bank's consent is
required as a result of its Commitments) and/or repay outstanding Term Loans of
such Bank which gave rise to the need to obtain such Bank's consent, in
accordance with Sections 3.02(b) and/or 4.01(b), provided that, unless the
Commitments that are terminated, and Loans repaid, pursuant to preceding clause
(B) are immediately replaced in full at such time through the addition of new
Banks or the increase of the Commitments and/or outstanding Loans of existing
Banks (who in each case must specifically consent thereto), then in the case of
any action pursuant to preceding clause (B) the Required Banks (determined after
giving effect to the proposed action) shall specifically consent thereto,
provided further, that in any event the Borrower shall not have the right to
replace a Bank, terminate its Commitments or repay its Loans solely as a result
of the exercise of such Bank's rights (and the withholding of any required
consent by such Bank) pursuant to the second proviso to Section 13.12(a).
13.13 Survival. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 13.01 shall
survive the execution, delivery and termination of this Agreement and the Notes
and the making and repayment of the Obligations.
13.14 Domicile of Loans. Each Bank may transfer and carry its
Loans at, to or for the account of any of its Lending Offices. Notwithstanding
anything to the contrary contained herein, to the extent that a transfer of
Loans pursuant to this Section 13.14 would, at the time of such transfer, result
in increased costs under Section 1.10, 1.11, 2.06 or 4.04 from those being
charged by the respective Bank prior to such transfer, then the Borrower shall
not be obligated to pay such increased costs (although the Borrower shall be
obligated to pay any other increased costs of the type described above resulting
from changes after the date of the respective transfer).
13.15 Register. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for purposes of
this Section 13.15, to maintain a register (the "Register") on which it will
record the name and address of each Bank, the Commitments from time to time of
each of the Banks, the Loans made by each of the Banks and each
-104-
repayment in respect of the principal amount of the Loans of each Bank. Failure
to make any such recordation, or any error in such recordation shall not affect
the Borrower's obligations in respect of such Loans. With respect to any Bank,
the transfer of the Commitments of such Bank and the rights to the principal of,
and interest on, any Loan made pursuant to such Commitments shall not be
effective until such transfer is recorded on the Register maintained by the
Administrative Agent with respect to ownership of such Commitments and Loans and
prior to such recordation all amounts owing to the transferor with respect to
such Commitments and Loans shall remain owing to the transferor. The
registration of assignment or transfer of all or part of any Commitments and
Loans shall be recorded by the Administrative Agent on the Register only upon
the acceptance by the Administrative Agent of a properly executed and delivered
Assignment and Assumption Agreement pursuant to Section 13.04(b). Coincident
with the delivery of such an Assignment and Assumption Agreement to the
Administrative Agent for acceptance and registration of assignment or transfer
of all or part of a Loan, or as soon thereafter as practicable, the assigning or
transferor Bank shall surrender the Note evidencing such Loan, and thereupon one
or more new Notes in the same aggregate principal amount shall be issued to the
assigning or transferor Bank and/or the new Bank. The Borrower agrees to
indemnify the Administrative Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Agent in performing its duties under this Section
13.15.
13.16 Confidentiality. (a) Subject to the provisions of clause
(b) of this Section 13.16, each Bank agrees that it will not disclose without
the prior consent of the Borrower (other than to its employees, auditors,
advisors or counsel or to another Bank if the Bank or such Bank's holding or
parent company in its sole discretion determines that any such party should have
access to such information, provided such Persons shall be subject to the
provisions of this Section 13.16 to the same extent as such Bank) any
information with respect to the Borrower or any of its Subsidiaries which is now
or in the future furnished pursuant to this Agreement or any other Credit
Document and which is designated by the Borrower to the Banks in writing as
confidential, provided that any Bank may disclose any such information (a) as
has become generally available to the public other than by virtue of a breach of
this Section 13.16(a) by the respective Bank, (b) as may be required or
reasonably appropriate in any report, statement or testimony submitted to any
municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Bank or to the Federal Reserve Board, the Federal Deposit
Insurance Corporation, the NAIC or similar organizations (whether in the United
States or elsewhere) or their successors, (c) as may be required or reasonably
appropriate in respect to any summons or subpoena or in connection with any
litigation, (d) in order to comply with any law, order, regulation or ruling
applicable to such Bank, (e) to the Agents and (f) to any prospective or actual
transferee or participant in connection with any contemplated transfer or
participation of any of the Notes or Commitments or any interest therein by such
Bank and to any direct or indirect contractual counterparties in Interest Rate
Protection Agreements or Other Hedging Agreements entered into by any Bank,
provided that such prospective transferee and each such contractual counterparty
agrees to be bound by the confidentiality provisions contained in this Section
13.16.
(b) The Borrower hereby acknowledges and agrees that each Bank
may share with any of its affiliates any information related to the Borrower or
any of its Subsidiaries
-105-
(including, without limitation, any nonpublic customer information regarding the
creditworthiness of the Borrower and its Subsidiaries, provided such Persons
shall be subject to the provisions of this Section 13.16 to the same extent as
such Bank).
13.17 Limitation on Increased Costs. Notwithstanding anything
to the contrary contained in Section 1.10, 1.11, 2.06 or 4.04, unless a Bank
gives notice to the Borrower that it is obligated to pay an amount under any
such Section within 180 days after the later of (x) the date such Bank incurs
the respective increased costs, Taxes, loss, expense or liability, or reduction
in amounts received or receivable or reduction in return on capital or (y) the
date such Bank has actual knowledge of its incurrence of the respective
increased costs, Taxes, loss, expense or liability, or reductions in amounts
received or receivable or reduction in return on capital, then such Bank shall
only be entitled to be compensated for such amount by the Borrower pursuant to
said Section 1.10, 1.11, 2.06 or 4.04, as the case may be, to the extent the
costs, Taxes, loss, expense or liability, or reduction in amounts received or
receivable or reduction in return on capital are incurred or suffered on or
after the date which occurs 180 days prior to such Bank giving notice to the
Borrower that it is obligated to pay the respective amounts pursuant to said
Section 1.10, 1.11, 2.06 or 4.04, as the case may be. This Section 13.17 shall
have no applicability to any Section of this Agreement or any other Credit
Document other than said Sections 1.10, 1.11, 2.06 and 4.04.
-106-
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
000 Xxxx Xxxx Xxxxxx XXXXXXXX INTERNATIONAL, INC.
Xxxx Xxxxxxxxxx, Xxxxxxxxx
00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000 By /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Attention: Vice President Finance and Title: Assistant Treasurer
Chief Financial Officer
XXXXXX XXXXXXX SENIOR FUNDING,
INC., Individually and as Syndication
Agent and Co-Arranger
By /s/ Xxxxxxx Xxxx
------------------------------------
Title: Principal
FIRST UNION NATIONAL BANK,
Individually and as Administrative
Agent and Co-Arranger
By /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Title: Vice President
BANK OF SCOTLAND
By /s/Xxxxx Xxxx Tat
------------------------------------
Title: Senior Vice President
CREDIT AGRICOLE INDOSUEZ
By /s/ Xxxxxx X. Xxxxxx
------------------------------------
Title: Senior Vice President
By /s/ Xxxxx Xxxxx
------------------------------------
Title: Head of Corporate Banking
Chicago
FIRST BANK
By /s/ Xxx Xxxxxxx
------------------------------------
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxxx X. Xxxxxx
------------------------------------
Title: Vice President
FIRSTAR BANK MILWAUKEE, N.A.
By /s/ Xxxx Xxxxx
------------------------------------
Title: Assistant Vice President
FLEET CAPITAL CORPORATION
By /s/ Xxxxx X. Xxxxx
------------------------------------
Title: Vice President
THE FUJI BANK, LIMITED
By /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Title: Joint General Manager
XXXXXX TRUST AND SAVINGS BANK
By /s/ Xxxxxx Dluby
------------------------------------
Title: Vice President
M&I XXXXXXXX AND ILSLEY BANK
By /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By /s/ Xxxxx Xxxxxxxx
------------------------------------
Title: Chief Manager
NATIONAL CITY BANK
By /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Title: Vice President
WACHOVIA BANK, N.A.
By /s/ Xxxxx X. Xxxxxxx
------------------------------------
Title: Senior Vice President
RZB FINANCE LLC
By /s/ Xxxx X. Xxxxxxx /s/ Xxxxxxxxxxx Xxxxx
---------------------------------------------------
Xxxx X. Xxxxxxx, Xxxxxxxxxxx Xxxxx
Vice President Assistant Vice President
TABLE OF CONTENTS
-----------------
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SECTION 1. Amount and Terms of Credit......................................2
1.01 The Commitments.................................................2
1.02 Minimum Amount of Each Borrowing................................4
1.03 Notice of Borrowing.............................................4
1.04 Disbursement of Funds...........................................5
1.05 Notes...........................................................6
1.06 Conversions.....................................................8
1.07 Pro Rata Borrowings.............................................8
1.08 Interest........................................................8
1.09 Interest Periods................................................9
1.10 Increased Costs, Illegality, etc...............................10
1.11 Breakage.......................................................12
1.12 Change of Lending Office.......................................13
1.13 Replacement of Banks...........................................13
SECTION 2. Letters of Credit..............................................14
2.01 Letters of Credit..............................................14
2.02 Maximum Letter of Credit Outstandings; Final Maturities........15
2.03 Letter of Credit Requests......................................16
2.04 Letter of Credit Participations................................16
2.05 Agreement to Repay Letter of Credit Drawings...................18
2.06 Increased Costs................................................19
2.07 Existing Letters of Credit.....................................19
SECTION 3. Commitment Commission; Fees; Reductions of Commitment..........19
3.01 Fees...........................................................20
3.02 Voluntary Termination of Unutilized Commitments................21
3.03 Mandatory Reduction of Commitments.............................21
SECTION 4. Prepayments; Payments; Taxes...................................22
4.01 Voluntary Prepayments..........................................22
4.02 Mandatory Repayments and Commitment Reductions.................23
4.03 Method and Place of Payment....................................28
4.04 Net Payments...................................................28
SECTION 5. Conditions Precedent...........................................30
5.01 Execution of Agreement; Notes..................................30
(i)
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5.02 Officer's Certificate..........................................30
5.03 Opinions of Counsel............................................30
5.04 Corporate Documents; Proceedings; etc..........................30
5.05 Employee Benefit Plans; Shareholders' Agreements; Management
Agreements; Collective Bargaining Agreements; Existing
Indebtedness Agreements........................................31
5.06 Indebtedness; Original Credit Agreement........................31
5.07 Adverse Change, etc. ..........................................32
5.08 Litigation.....................................................32
5.09 Pledge Agreement...............................................32
5.10 Security Agreement.............................................33
5.11 Subsidiaries Guaranty..........................................33
5.12 Mortgages; Title Insurance; Survey, etc. ......................33
5.13 Projections; Pro Forma Balance Sheet...........................34
5.14 Solvency Certificate; Insurance Certificates...................34
5.15 Fees, etc......................................................34
SECTION 6. Conditions Precedent to All Credit Events......................34
6.01 No Default; Representations and Warranties.....................34
6.02 Notice of Borrowing; Letter of Credit Request..................35
SECTION 7. Representations, Warranties and Agreements.....................35
7.01 Corporate and Other Status.....................................35
7.02 Corporate and Other Power and Authority........................36
7.03 No Violation...................................................36
7.04 Approvals......................................................36
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections, etc. ................................37
7.06 Litigation.....................................................38
7.07 True and Complete Disclosure...................................38
7.08 Use of Proceeds; Margin Regulations............................38
7.09 Tax Returns and Payments.......................................38
7.10 Compliance with ERISA..........................................39
7.11 The Security Documents.........................................40
7.12 Representations and Warranties in Acquisition Documents........41
7.13 Properties.....................................................41
7.14 Capitalization.................................................41
7.15 Subsidiaries...................................................42
7.16 Compliance with Statutes, etc. ................................42
7.17 Investment Company Act.........................................42
7.18 Public Utility Holding Company Act.............................42
7.19 Environmental Matters..........................................42
7.20 Labor Relations................................................43
7.21 Patents, Licenses, Franchises and Formulas.....................43
(ii)
Page
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7.22 Indebtedness...................................................43
7.23 Transaction....................................................44
SECTION 8. Affirmative Covenants..........................................44
8.01 Information Covenants..........................................44
8.02 Books, Records and Inspections.................................47
8.03 Maintenance of Property; Insurance.............................47
8.04 Corporate Franchises...........................................48
8.05 Compliance with Statutes, etc. ................................48
8.06 Compliance with Environmental Laws.............................48
8.07 ERISA..........................................................49
8.08 End of Fiscal Years; Fiscal Quarters...........................50
8.09 Performance of Obligations.....................................50
8.10 Payment of Taxes...............................................50
8.11 Interest Rate Protection.......................................50
8.12 Additional Security; Further Assurances........................50
8.13 Foreign Subsidiaries Security..................................51
SECTION 9. Negative Comments..............................................52
9.01 Liens..........................................................52
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc. .......54
9.03 Dividends......................................................56
9.04 Indebtedness...................................................56
9.05 Advances, Investments and Loans................................58
9.06 Transactions with Affiliates...................................59
9.07 Capital Expenditures...........................................59
9.08 Consolidated Fixed Charge Coverage Ratio.......................61
9.09 Consolidated Interest Coverage Ratio...........................61
9.10 Maximum Leverage Ratio.........................................61
9.11 Limitation on Voluntary Payments and Modifications of
Subordinated Indebtedness; Modifications of Certificate
of Incorporation and Certain Other Agreements, etc. ...........62
9.12 Limitation on Certain Restrictions on Subsidiaries.............63
9.13 Limitation on Issuance of Capital Stock........................63
9.14 Business.......................................................63
9.15 Limitation on Creation of Subsidiaries.........................63
SECTION 10. Events of Default..............................................64
10.01 Payments.......................................................64
10.02 Representations, etc. .........................................64
10.03 Covenants......................................................64
10.04 Default Under Other Agreements.................................64
10.05 Bankruptcy, etc. ..............................................65
10.06 ERISA..........................................................65
(iii)
Page
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10.07 Security Documents.............................................66
10.08 Subsidiaries Guaranty..........................................66
10.09 Judgments......................................................66
10.10 Change of Control..............................................66
SECTION 11. Definitions and Accounting Terms...............................67
11.01 Defined Terms..................................................67
SECTION 12. The Administrative Agent and the Syndication Agent.............91
12.01 Appointment....................................................91
12.02 Nature of Duties...............................................92
12.03 Lack of Reliance on the Administrative Agent and the
Syndication Agent..............................................92
12.04 Certain Rights of the Agents...................................92
12.05 Reliance.......................................................93
12.06 Indemnification................................................93
12.07 The Administrative Agent and the Syndication Agent in
Their Individual Capacity......................................93
12.08 Holders........................................................94
12.09 Resignation by the Administrative Agent and the
Syndication Agent..............................................94
SECTION 13. Miscellaneous..................................................94
13.01 Payment of Expenses, etc. .....................................94
13.02 Right to Setoff................................................95
13.03 Notices........................................................96
13.04 Benefit of Agreement; Assignments; Participations..............96
13.05 No Waiver; Remedies Cumulative.................................98
13.06 Payments Pro Rata..............................................98
13.07 Calculations; Computations; Accounting Terms...................99
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL...........................................99
13.09 Counterparts..................................................100
13.10 Effectiveness.................................................100
13.11 Headings Descriptive..........................................100
13.12 Amendment or Waiver, etc. ....................................100
13.13 Survival......................................................102
13.14 Domicile of Loans.............................................102
13.15 Register......................................................102
13.16 Confidentiality...............................................103
13.17 Limitation on Increased Costs.................................104
SCHEDULE I Commitments
SCHEDULE II Bank Addresses
SCHEDULE III Real Property
SCHEDULE IV Indebtedness to be Refinanced
(iv)
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SCHEDULE V Subsidiaries
SCHEDULE VI Existing Indebtedness
SCHEDULE VII Insurance
SCHEDULE VIII Existing Liens
SCHEDULE IX Existing Investments
EXHIBIT A Notice of Borrowing
EXHIBIT B-1 Form of A Term Note
EXHIBIT B-2 Form of B Term Note
EXHIBIT B-3 Form of Revolving Note
EXHIBIT B-4 Form of Swingline Note
EXHIBIT C Form of Credit Request
EXHIBIT D Section 4.04(b)(ii) Certificate
EXHIBIT E Opinion of Dickstein, Shapiro, Xxxxx &
Xxxxxxxx LLP, counsel to the Credit
Parties
EXHIBIT F Officers' Certificate
EXHIBIT G Form of Pledge Agreement
EXHIBIT H Form of Security Agreement
EXHIBIT I Form of Subsidiaries Agreement
EXHIBIT J Solvency Certificate
EXHIBIT K Assignment and Assumption Agreement
EXHIBIT L Intercompany Note
EXHIBIT M Notice of Account Designation
(v)
