Exhibit 10.1
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CREDIT AGREEMENT
Dated as of May 1, 2002
among
THE NEW YORK LAW PUBLISHING COMPANY,
as Borrower,
AMERICAN LAWYER MEDIA HOLDINGS, INC.
and AMERICAN LAWYER MEDIA, INC.,
as Credit Parties,
THE LENDERS SIGNATORY HERETO
FROM TIME TO TIME,
as Lenders,
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and Lender
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THIS CREDIT AGREEMENT (this "Agreement"), dated as of May 1, 2002,
among THE NEW YORK LAW PUBLISHING COMPANY, a New York corporation
("Borrower"); AMERICAN LAWYER MEDIA HOLDINGS, INC., a Delaware corporation
("Holdings"), AMERICAN LAWYER MEDIA, INC., a Delaware corporation
("Parent"); GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation
(in its individual capacity, "GE Capital"), for itself, as Lender, and as
Agent for Lenders, and the other Lenders signatory hereto from time to time.
RECITALS
WHEREAS, Borrower has requested that Lenders extend a revolving
credit facility to Borrower of up to Forty Million Dollars ($40,000,000) in
the aggregate for the purpose of refinancing certain indebtedness of
Parent, Borrower and certain other Subsidiaries of Parent and to provide
(a) working capital financing for Borrower, (b) funds for other general
corporate purposes of Borrower (including without limitation to finance
Permitted Acquisitions, Permitted Note Repurchases and Permitted Parent
Distributions) and (c) funds for other purposes permitted hereunder; and
for these purposes, Lenders are willing to make certain loans and other
extensions of credit to Borrower of up to such amount upon the terms and
conditions set forth herein; and
WHEREAS, capitalized terms used in this Agreement shall have the
meanings ascribed to them in Annex A and, for purposes of this Agreement
and the other Loan Documents, the rules of construction set forth in Annex
A shall govern. All Annexes, Disclosure Schedules, Exhibits and other
attachments (collectively, "Appendices") hereto, or expressly identified to
this Agreement, are incorporated herein by reference, and taken together
with this Agreement, shall constitute but a single agreement. These
Recitals shall be construed as part of the Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, and for other good and valuable
consideration, the parties hereto agree as follows:
1. AMOUNT AND TERMS OF CREDIT
1.1 Revolving Credit Facility.
(a) Revolving Credit Facility.
(i) Subject to the terms and conditions hereof, each
Revolving Lender agrees to make available to Borrower from time to time until
the Commitment Termination Date its Pro Rata Share of advances (each, a
"Revolving Credit Advance"). The Pro Rata Share of the Revolving Loan of any
Revolving Lender shall not at any time exceed its separate Revolving Loan
Commitment. The obligations of each Revolving Lender hereunder shall be several
and not joint. Until the Commitment Termination Date, Borrower may from time to
time borrow, repay and reborrow under this Section 1.1(a); provided that
the aggregate outstanding principal balance of the Revolving Credit
Advances at any one time shall not exceed the aggregate Revolving Loan
Commitments of the Lenders less the aggregate amount at such time of all
Letter of Credit Obligations then outstanding. Until the Commitment
Termination Date, Borrower may from time to time borrow, repay and reborrow
under this Section 1.1(a). Each Revolving Credit Advance shall be made on
notice by Borrower to the Agent and such notice must be given no later than
(1) 11:30 a.m. (New York time) on the Business Day of the proposed
Revolving Credit Advance, in the case of an Index Rate Loan, or (2) 11:30
a.m. (New York time) on the date which is 3 Business Days prior to the
proposed Revolving Credit Advance, in the case of a LIBOR Loan. Each such
notice (a "Notice of Revolving Credit Advance") must be given in writing
(by telecopy or overnight courier) substantially in the form of Exhibit
1.1(a)(i), shall reflect a request for a Revolving Credit Advance in an
aggregate minimum principal amount of not less than $1,000,000 or any
multiple of $100,000 in excess thereof, and shall include the information
required in such Exhibit and such other information as may be required by
Agent. If Borrower desires to have the Revolving Credit Advances bear
interest by reference to a LIBOR Rate, it must comply with Section 1.5(e).
(ii) Except as provided in Section 1.10, Borrower shall
execute and deliver to each Revolving Lender a note to evidence the
Revolving Loan Commitment of that Revolving Lender. Each note shall be in
the principal amount of the Revolving Loan Commitment of the applicable
Revolving Lender, dated the Closing Date and substantially in the form of
Exhibit 1.1(a)(ii) (each a "Revolving Note" and, collectively, the
"Revolving Notes"). Each Revolving Note shall represent the obligation of
Borrower to pay the amount of Revolving Lender's Revolving Loan Commitment
or, if less, such Revolving Lender's Pro Rata Share of the aggregate unpaid
principal amount of all Revolving Credit Advances to Borrower together with
interest thereon as prescribed in Section 1.5. The entire unpaid balance of
the Revolving Loan and all other non-contingent Obligations shall be
immediately due and payable in full in immediately available funds on the
Commitment Termination Date.
(b) Reliance on Notices. Agent shall be entitled to rely
upon, and shall be fully protected in relying upon, any Notice of Revolving
Credit Advance, Notice of Conversion/Continuation or similar notice
believed by Agent to be genuine. Agent may assume that each Person
executing and delivering any notice in accordance herewith was duly
authorized, unless the responsible individual acting thereon for Agent has
actual knowledge to the contrary.
1.2 Letters of Credit. Subject to and in accordance with the terms
and conditions contained herein and in Annex B, any Credit Party shall have
the right to request, and Revolving Lenders agree to incur, or purchase
participations in, Letter of Credit Obligations in respect of Borrower.
1.3 Prepayments.
(a) Voluntary Prepayments; Reductions in Revolving Loan
Commitments. Borrower may at any time on at least 3 days' prior written
notice to Agent (i) voluntarily prepay all or part of the Revolving Credit
Advances; provided that any such prepayment shall be in a minimum amount of
$100,000 and integral multiples of $25,000 in excess of such amount; and/or
(ii) permanently reduce (but not terminate) the Revolving Loan Commitment;
provided that (A) any such reduction shall be in a minimum amount of
$1,000,000 and integral multiples of $100,000 in excess of such amount, (B)
the Revolving Loan Commitment shall not be reduced to an amount less than
$30,000,000, and (C) after giving effect to such reductions, Borrower shall
comply with Section 1.3(b)(i). Borrower may at any time on at least ten 10
days' prior written notice to Agent terminate the Revolving Loan
Commitment, provided that upon such termination all Loans and other
Obligations shall be immediately due and payable in full and all Letter of
Credit Obligations shall be cash collateralized or otherwise satisfied in
accordance with Annex B hereto. Any voluntary prepayment and any reduction
or termination of the Revolving Loan Commitment must be accompanied by
payment of any Prepayment Premium required by Section 1.7(c), if any, plus
the payment of any LIBOR funding breakage costs in accordance with Section
1.11(b). Upon any such reduction or termination of the Revolving Loan
Commitment, Borrower's right to request Revolving Credit Advances, or
request that Letter of Credit Obligations be incurred on its behalf, shall
simultaneously be permanently reduced or terminated, as the case may be;
provided that a permanent reduction of the Revolving Loan Commitment shall
not require a corresponding pro rata reduction in the L/C Sublimit. Each
notice of partial prepayment shall designate the Loan or other Obligations
to which such prepayment is to be applied.
(b) Mandatory Prepayments.
(i) If at any time the outstanding balance of the
Revolving Loan exceeds the Maximum Amount, Borrower shall immediately repay
the aggregate outstanding Revolving Credit Advances to the extent required
to eliminate such excess. If any such excess remains after repayment in
full of the aggregate outstanding Revolving Credit Advances, Borrower shall
provide cash collateral for the Letter of Credit Obligations in the manner
set forth in Annex B to the extent required to eliminate such excess.
(ii) Immediately upon receipt by any Credit Party of
proceeds of (i) any asset disposition (excluding proceeds of asset
dispositions permitted by Sections 6.8(a)), (ii) insurance that are
required to be used under Section 5.4(c) to make a prepayment of the Loans,
(iii) the incurrence of any Indebtedness by any Credit Party (other than
Indebtedness permitted by Section 6.3) or (iv) any sale of Stock of any
Credit Party (except that proceeds resulting from Qualified Holdings Stock
Sales shall be excluded from the required prepayment provided for in this
Section 1.3(b)(ii) unless such Qualified Holdings Stock Sales is in
connection with an IPO, in which case, the Commitments shall be reduced by
an amount equal to the lesser of (x) fifty percent (50%) of the Commitments
in effect at such time and (y) the Net Proceeds (as defined below) of such
IPO), Borrower shall prepay the Loans in an amount equal to all such
proceeds, net of (A) underwriting commissions and discounts and other
reasonable and customary transaction costs, fees and expenses properly
attributable to such transaction and payable by any Credit Party in
connection therewith (in each case, paid to non-Affiliates), (B) transfer
taxes, (C) amounts payable to holders of senior Liens (to the extent such
Liens constitute Permitted Encumbrances hereunder), if any, and (D) an
appropriate reserve for income taxes in accordance with GAAP in connection
therewith (the "Net Proceeds"). Any such prepayment shall be applied in
accordance with Section 1.3(c). Nothing in this Section 1.3(b)(ii) shall be
deemed to permit any asset or Stock disposition or any incurrence of
Indebtedness not otherwise permitted under this Agreement.
(iii) Notwithstanding anything in Section 1.3(b)(ii) to
the contrary, if either Senior Note Indenture is in effect and has terms
requiring prepayments or commitment reductions from any asset disposition,
then no mandatory permanent reductions in Commitments or mandatory
prepayments of Loans with the Net Proceeds of such asset disposition (the
proceeds of such asset disposition referred to herein as the "Reinvestable
Proceeds") shall be required pursuant to Section 1.3(b)(ii) so long as such
Reinvestable Proceeds are used to purchase Replacement Assets within 365
days following such Credit Party's receipt of such Reinvestable Proceeds.
Upon the receipt of any Reinvestable Proceeds pursuant to the immediately
preceding sentence, the Borrower shall immediately upon such receipt cause
all Reinvestable Proceeds to be deposited into a Collateral Account. To the
extent that such Reinvestable Proceeds are not used to purchase Replacement
Assets within 365 days following such Credit Party's receipt of such
Reinvestable Proceeds, then such Reinvestable Proceeds shall immediately be
applied by Borrower to prepay the Loans and the Revolving Loan Commitment
shall be permanently reduced by the amount of any such prepayment.
(c) Application of Certain Mandatory Prepayments. Any
prepayments made by Borrower pursuant to Section 1.3(b)(ii) above shall be
applied as follows: first, to Fees and reimbursable expenses of Agent then
due and payable pursuant to any of the Loan Documents; second, to interest
then due and payable on the Revolving Credit Advances; third, to the
outstanding principal balance of Revolving Credit Advances until the same
has been paid in full; and fourth, to any Letter of Credit Obligations, to
provide cash collateral therefor in the manner set forth in Annex B, until
all such Letter of Credit Obligations have been fully cash collateralized
in the manner set forth in Annex B. The Revolving Loan Commitment shall not
be permanently reduced by the amount of any such prepayments.
(d) No Implied Consent. Nothing in this Section 1.3 shall be
construed to constitute Agent's or any Lender's consent to any transaction
that is not permitted by other provisions of this Agreement or the other
Loan Documents.
1.4 Use of Proceeds. Borrower shall utilize the proceeds of the
Revolving Loan solely for the Refinancing (and to pay any related
transaction expenses), and for the financing of Borrower's ordinary working
capital and general corporate needs (including without limitation to
finance Permitted Acquisitions, Permitted Note Repurchases and Permitted
Parent Distributions). Disclosure Schedule 1.4 contains a description of
Borrower's sources and uses of funds from a Revolving Loan as of the
Closing Date, including Loans and Letter of Credit Obligations to be made
or incurred on that date, and a funds flow memorandum detailing how funds
from each source are to be transferred to particular uses.
1.5 Interest and Applicable Margins.
(a) (i) Borrower shall pay interest to Agent, for the ratable
benefit of Lenders in accordance with the various Loans being made by each
Lender, in arrears on each applicable Interest Payment Date, at the
following rates with respect to the Revolving Credit Advances, the Index
Rate plus the Applicable Revolver Index Margin per annum or, at the
election of Borrower, the applicable LIBOR Rate plus the Applicable
Revolver LIBOR Margin per annum, based on the aggregate Revolving Credit
Advances outstanding from time to time.
As of the Closing Date, the Applicable Margins are as follows:
Applicable Revolver Index Margin 2.00%
Applicable Revolver LIBOR Margin 3.50%
Applicable L/C Margin 3.50%
(ii) The Applicable Margins shall be adjusted (up or
down) prospectively on a quarterly basis as determined by Holdings'
consolidated financial performance, commencing with the first day of the
first calendar month that occurs more than 5 days after delivery of
Holding's quarterly Financial Statements to Lenders for the Fiscal Quarter
ending June 30, 2002. Adjustments in Applicable Margins shall be determined
by reference to the following grids:
If the Total Leverage The Level of Applicable
Ratio is: Margins will be:
< 7.0x Level I
-
> 7.0x Level II
Applicable Margins
Level I Level II
Applicable Revolver Index Margin 1.50% 2.00%
Applicable Revolver LIBOR Margin 3.00% 3.50%
If there is a disparity between the financial tests described above, the
test resulting in the greater level of Applicable Margins will prevail.
(iii) All adjustments in the Applicable Margins after
June 30, 2002 shall be implemented quarterly on a prospective basis, for
each calendar month commencing at least 5 days after the date of delivery
to Lenders of the quarterly unaudited or annual audited (as applicable)
Financial Statements evidencing the need for an adjustment. Concurrently
with the delivery of those Financial Statements, Borrower shall deliver to
Agent and Lenders a certificate, signed by its chief financial officer,
setting forth in reasonable detail the basis for the continuance of, or any
change in, the Applicable Margins. Failure to timely deliver such Financial
Statements shall, in addition to any other remedy provided for in this
Agreement, result in an increase in the Applicable Margins to the highest
level set forth in the foregoing grid, until the first day of the first
calendar month following the delivery of those Financial Statements
demonstrating that such an increase is not required. If a Default or an
Event of Default has occurred and is continuing at the time any reduction
in the Applicable Margins is to be implemented, that reduction shall be
deferred until the first day of the first calendar month following the date
on which such Default or Event of Default is waived or cured.
(b) If any payment on any Loan becomes due and payable on a
day other than a Business Day, the maturity thereof will be extended to the
next succeeding Business Day (except as set forth in the definition of
LIBOR Period) and, with respect to payments of principal, interest thereon
shall be payable at the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum basis
and interest shall be made by Agent on the basis of a 360-day year, in each
case for the actual number of days occurring in the period for which such
interest and Fees are payable. The Index Rate is a floating rate determined
for each day. Each determination by Agent of an interest rate and Fees
hereunder shall be final, binding and conclusive on Borrower, absent
manifest error.
(d) So long as an Event of Default has occurred and is
continuing under Section 8.1(a), (h) or (i), or so long as any other
Default or Event of Default has occurred and is continuing and at the
election of Agent (or upon the written request of Requisite Lenders)
confirmed by written notice from Agent to Borrower, the interest rates
applicable to the Loans and the Letter of Credit Fees shall be increased by
two percentage points (2%) per annum above the rates of interest or the
rate of such Fees otherwise applicable hereunder ("Default Rate"), and all
outstanding Obligations shall bear interest at the Default Rate applicable
to such Obligations. Interest and Letter of Credit Fees at the Default Rate
shall accrue from the initial date of such Default or Event of Default
until that Default or Event of Default is cured or waived and shall be
payable upon demand.
(e) Subject to the conditions precedent set forth in Section
2.2, Borrower shall have the option to (i) request that any Revolving
Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any
part of outstanding Loans from Index Rate Loans to LIBOR Loans, (iii)
convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR
breakage costs in accordance with Section 1.11(b) if such conversion is
made prior to the expiration of the LIBOR Period applicable thereto, or
(iv) continue all or any portion of any Loan as a LIBOR Loan upon the
expiration of the applicable LIBOR Period and the succeeding LIBOR Period
of that continued Loan shall commence on the first day after the last day
of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans
having the same proposed LIBOR Period to be made or continued as, or
converted into, a LIBOR Loan must be in a minimum amount of $1,000,000 and
integral multiples of $100,000 in excess of such amount. Any such election
must be made by 11:30 a.m. (New York time) on the 3rd Business Day prior to
(1) the date of any proposed Advance which is to bear interest at the LIBOR
Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to
be continued as such, or (3) the date on which Borrower wishes to convert
any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by
Borrower in such election. If no election is received with respect to a
LIBOR Loan by 11:30 a.m. (New York time) on the 3rd Business Day prior to
the end of the LIBOR Period with respect thereto (or if a Default or an
Event of Default has occurred and is continuing or if the additional
conditions precedent set forth in Section 2.2 shall not have been
satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the
end of its LIBOR Period. Borrower must make such election by notice to
Agent in writing, by telecopy or overnight courier. In the case of any
conversion or continuation, such election must be made pursuant to a
written notice (a "Notice of Conversion/Continuation") in the form of
Exhibit 1.5(e).
(f) Notwithstanding anything to the contrary set forth in
this Section 1.5, if a court of competent jurisdiction determines in a
final order that the rate of interest payable hereunder exceeds the highest
rate of interest permissible under law (the "Maximum Lawful Rate"), then so
long as the Maximum Lawful Rate would be so exceeded, the rate of interest
payable hereunder shall be equal to the Maximum Lawful Rate; provided,
however, that if at any time thereafter the rate of interest payable
hereunder is less than the Maximum Lawful Rate, Borrower shall continue to
pay interest hereunder at the Maximum Lawful Rate until such time as the
total interest received by Agent, on behalf of Lenders, is equal to the
total interest that would have been received had the interest rate payable
hereunder been (but for the operation of this paragraph) the interest rate
payable since the Closing Date as otherwise provided in this Agreement.
Thereafter, interest hereunder shall be paid at the rate(s) of interest and
in the manner provided in Sections 1.5(a) through (e), unless and until the
rate of interest again exceeds the Maximum Lawful Rate, and at that time
this paragraph shall again apply. In no event shall the total interest
received by any Lender pursuant to the terms hereof exceed the amount that
such Lender could lawfully have received had the interest due hereunder
been calculated for the full term hereof at the Maximum Lawful Rate. If the
Maximum Lawful Rate is calculated pursuant to this paragraph, such interest
shall be calculated at a daily rate equal to the Maximum Lawful Rate
divided by the number of days in the year in which such calculation is
made. If, notwithstanding the provisions of this Section 1.5(f), a court of
competent jurisdiction shall finally determine that a Lender has received
interest hereunder in excess of the Maximum Lawful Rate, Agent shall, to
the extent permitted by applicable law, promptly apply such excess in the
order specified in Section 1.9 and thereafter shall refund any excess to
Borrower or as a court of competent jurisdiction may otherwise order.
1.6 Cash Management Systems.
(a) Within ten (10) days after the Closing Date, the Credit
Parties shall establish Blocked Accounts (as such term is defined in Annex C)
at each of the Credit Parties' banks listed on Schedule 1.6.
(b) On or within the 120th day after the Closing Date, the
Credit Parties will establish and will maintain until the Termination Date,
the Cash Management Systems described in Annex C (the "Cash Management
Systems").
1.7 Fees.
(a) Borrower shall pay to GE Capital, individually, the Fee
specified in that certain fee letter of even date herewith between Borrower
and GE Capital (the "GE Capital Fee Letter") at the time specified for
payment therein.
(b) As additional compensation for the Revolving Lenders,
Borrower shall pay to Agent, for the ratable benefit of such Lenders, in
arrears, on the first Business Day of each calendar quarter prior to the
Commitment Termination Date and on the Commitment Termination Date, a Fee
for Borrower's non-use of available funds in an amount equal to one-half of
one percent (0.50%) per annum (calculated on the basis of a 360 day year
for actual days elapsed) multiplied by the difference between (x) the
Maximum Amount (as it may be reduced from time to time) and (y) the average
for the period of the daily closing balance of the Revolving Loan
outstanding (including, without limitation, Letter of Credit Obligations)
during the period for which the such Fee is due.
(c) If Borrower terminates the Revolving Loan Commitment
prior to the first anniversary of the Closing Date, whether voluntarily or
involuntarily and whether before or after acceleration of the Obligations,
Borrower shall pay to Agent, for the benefit of Lenders as liquidated
damages and compensation for the costs of being prepared to make funds
available hereunder, an amount equal to two percent (2.00%) multiplied by
the amount of the Lenders' aggregate Revolving Loan Commitment (the
"Prepayment Premium"); provided that any prepayments made by the Borrower
for increased costs or additional amounts demanded by such Affected Lender
pursuant to Sections 1.14(a) and 1.14(b) shall not be subject to the
Prepayment Premium. The Credit Parties agree that the Prepayment Premium is
a reasonable calculation of the Lenders' lost profits in view of the
difficulties and impracticality of determining actual damages resulting
from an early termination of the Commitments and shall be the sole penalty
or premium payable in connection therewith.
(d) Borrower shall pay to Agent, for the ratable benefit of
Revolving Lenders, the Letter of Credit Fee as provided in Annex B.
1.8 Receipt of Payments. Borrower shall make each payment
under this Agreement not later than 2:00 p.m. (New York time) on the day
when due in immediately available funds in Dollars to the Collection
Account. For purposes of computing interest and Fees as of any date, all
payments shall be deemed received on the Business Day on which immediately
available funds therefor are received in the Collection Account prior to
2:00 p.m. New York time. Payments received after 2:00 p.m. New York time on
any Business Day or on a day that is not a Business Day shall be deemed to
have been received on the following Business Day.
1.9 Application and Allocation of Payments.
(a) So long as no Default or Event of Default has occurred
and is continuing, (i) payments matching specific scheduled payments then
due shall be applied to those scheduled payments; (ii) voluntary
prepayments shall be applied as determined by Borrower, subject to the
provisions of Section 1.3(a); and (iii) mandatory prepayments shall be
applied as set forth in Sections 1.3(c). All payments and prepayments
applied to a particular Loan shall be applied by the Agent ratably to the
portion thereof held by each Lender as determined by its Pro Rata Share. As
to any other payment, and as to all payments made when a Default or Event
or Default has occurred and is continuing or following the Commitment
Termination Date, Borrower hereby irrevocably waives the right to direct
the application of any and all payments received from or on behalf of
Borrower, and Borrower hereby irrevocably agrees that Agent shall have the
continuing exclusive right to apply any and all such payments against the
Obligations as Agent may deem advisable notwithstanding any previous entry
by Agent in the Loan Account or any other books and records. In the absence
of a specific determination by Agent with respect thereto, payments shall
be applied to amounts then due and payable in the following order: (1) to
Fees and Agent's expenses reimbursable hereunder; (2) to interest on the
other Loans, ratably in proportion to the interest accrued as to each Loan;
(3) to principal payments on the other Loans and to provide cash collateral
for Letter of Credit Obligations in the manner described in Annex B,
ratably to the aggregate, combined principal balance of the other Loans and
outstanding Letter of Credit Obligations; and (4) to all other Obligations
including expenses of Lenders to the extent reimbursable under Section 11.3.
(b) Agent is authorized to, and at its sole election may,
charge to the Revolving Loan balance on behalf of Borrower and cause to be
paid all Fees, expenses, Charges, costs (including insurance premiums in
accordance with Section 5.4(a)) and interest and principal, other than
principal of the Revolving Loan, owing by Borrower under this Agreement or
any of the other Loan Documents if and to the extent Borrower fails to pay
promptly any such amounts as and when due. At Agent's option and to the
extent permitted by law, any charges so made shall constitute part of the
Revolving Loan hereunder.
1.10 Loan Account and Accounting. Agent shall maintain a loan
account (the "Loan Account") on its books to record: all Advances, all
payments made by Borrower, and all other debits and credits as provided in
this Agreement with respect to the Loans or any other Obligations. All
entries in the Loan Account shall be made in accordance with Agent's
customary accounting practices as in effect from time to time. The balance
in the Loan Account, as recorded on Agent's most recent printout or other
written statement, shall, absent manifest error, be presumptive evidence of
the amounts due and owing to Agent and Lenders by Borrower; provided that
any failure to so record or any error in so recording shall not limit or
otherwise affect Borrower's duty to pay the Obligations. Agent shall render
to Borrower a monthly accounting of transactions with respect to the Loans
setting forth the balance of the Loan Account for the immediately preceding
month. Unless Borrower notifies Agent in writing of any objection to any
such accounting (specifically describing the basis for such objection),
within 30 days after the date thereof, each and every such accounting
shall, absent manifest error, be deemed final, binding and conclusive on
Borrower in all respects as to all matters reflected therein. Only those
items expressly objected to in such notice shall be deemed to be disputed
by Borrower. Notwithstanding any provision herein contained to the
contrary, any Lender may elect (which election may be revoked) to dispense
with the issuance of Notes to that Lender and may rely on the Loan Account
as evidence of the amount of Obligations from time to time owing to it.
1.11 Indemnity.
(a) Each Credit Party that is a signatory hereto shall
jointly and severally indemnify and hold harmless each of Agent, Lenders
and their respective Affiliates, and each such Person's respective
officers, directors, employees, attorneys, agents and representatives
(each, an "Indemnified Person"), from and against any and all suits,
actions, proceedings, claims, damages, losses, liabilities and expenses
(including reasonable attorneys' fees and disbursements and other costs of
investigation or defense, including those incurred upon any appeal) that
may be instituted or asserted against or incurred by any such Indemnified
Person as the result of credit having been extended, suspended or
terminated under this Agreement and the other Loan Documents and the
administration of such credit, and in connection with or arising out of the
transactions contemplated hereunder and thereunder and any actions or
failures to act in connection therewith, including any and all
Environmental Liabilities and reasonable attorney fees and expenses arising
out of or incurred in connection with disputes between or among any parties
to any of the Loan Documents (collectively, "Indemnified Liabilities");
provided that no such Credit Party shall be liable for any indemnification
to an Indemnified Person to the extent that any such suit, action,
proceeding, claim, damage, loss, liability or expense results from that
Indemnified Person's gross negligence or willful misconduct. NO INDEMNIFIED
PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO ANY LOAN
DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON
OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR
INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED
AS A RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER
ANY LOAN DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED
HEREUNDER OR THEREUNDER.
(b) To induce Lenders to provide the LIBOR Rate option on the
terms provided herein, if (i) any LIBOR Loans are repaid in whole or in
part prior to the last day of any applicable LIBOR Period (whether that
repayment is made pursuant to any provision of this Agreement or any other
Loan Document or occurs as a result of acceleration, by operation of law or
otherwise); (ii) Borrower shall default in payment when due of the
principal amount of or interest on any LIBOR Loan; (iii) Borrower shall
refuse to accept any borrowing of, or shall request a termination of any
borrowing, conversion into or continuation of LIBOR Loans after Borrower
has given notice requesting the same in accordance herewith; or (iv)
Borrower shall fail to make any prepayment of a LIBOR Loan after Borrower
has given a notice thereof in accordance herewith, then Borrower shall
indemnify and hold harmless each Lender from and against all losses, costs
and expenses resulting from or arising from any of the foregoing. Such
indemnification shall include any loss or expense arising from the
reemployment of funds obtained by it or from fees payable to terminate
deposits from which such funds were obtained. For the purpose of
calculating amounts payable to a Lender under this subsection, each Lender
shall be deemed to have actually funded its relevant LIBOR Loan through the
purchase of a deposit bearing interest at the LIBOR Rate in an amount equal
to the amount of that LIBOR Loan and having a maturity comparable to the
relevant LIBOR Period; provided, that each Lender may fund each of its
LIBOR Loans in any manner it sees fit, and the foregoing assumption shall
be utilized only for the calculation of amounts payable under this
subsection. This covenant shall survive the termination of this Agreement
and the payment of the Notes and all other amounts payable hereunder. As
promptly as practicable under the circumstances, each Lender shall provide
Borrower with its written calculation of all amounts payable pursuant to
this Section 1.11(b), and such calculation shall be binding on the parties
hereto unless Borrower shall object in writing within 10 Business Days of
receipt thereof, specifying the basis for such objection in detail.
1.12 Access. Each Credit Party that is a party hereto shall,
during normal business hours, from time to time upon 1 Business Day's prior
notice as frequently as Agent determines to be appropriate: (a) provide
Agent and any of its officers, employees and agents access to its
properties, facilities, advisors and employees (including officers) of each
Credit Party and to the Collateral, (b) permit Agent, and any of its
officers, employees and agents, to inspect, audit and make extracts from
any Credit Party's books and records, and (c) permit Agent, and its
officers, employees and agents, to inspect, review, evaluate and make test
verifications and counts of the Accounts, Inventory and other Collateral of
any Credit Party. If a Default or Event of Default has occurred and is
continuing or if access is necessary to preserve or protect the Collateral
as determined by the Agent, each such Credit Party shall provide such
access to Agent and to each Lender at all times and without advance notice.
Furthermore, so long as any Event of Default has occurred and is
continuing, Borrower shall provide Agent and each Lender with access to its
suppliers and customers. Each Credit Party shall make available to Agent
and its counsel, as quickly as is reasonably possible under the
circumstances, originals or copies of all books and records that Agent may
reasonably request. Each Credit Party shall deliver any document or
instrument necessary for Agent, as it may from time to time request, to
obtain records from any service bureau or other Person that maintains
records for such Credit Party, and shall maintain duplicate records or
supporting documentation on media, including computer tapes and discs owned
by such Credit Party. Agent will give Lenders at least 5 days' prior
written notice of regularly scheduled audits. Representatives of other
Lenders may accompany Agent's representatives on regularly scheduled audits
at no charge to Borrower.
1.13 Taxes.
(a) Any and all payments by Borrower hereunder or under the
Notes shall be made, in accordance with this Section 1.13, free and clear
of and without deduction for any and all present or future Taxes. If
Borrower shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder or under the Notes, (i) the sum payable shall be
increased as much as shall be necessary so that after making all required
deductions (including deductions applicable to additional sums payable
under this Section 1.13) Agent or Lenders, as applicable, receive an amount
equal to the sum they would have received had no such deductions been made,
(ii) Borrower shall make such deductions, and (iii) Borrower shall pay the
full amount deducted to the relevant taxing or other authority in
accordance with applicable law. Within 30 days after the date of any
payment of Taxes, Borrower shall furnish to Agent the original or a
certified copy of a receipt evidencing payment thereof.
(b) Each Credit Party that is a signatory hereto shall
indemnify and, within 10 days of demand therefor, pay Agent and each Lender
for the full amount of Taxes (including any Taxes imposed by any
jurisdiction on amounts payable under this Section 1.13) paid by Agent or
such Lender, as appropriate, and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, whether
or not such Taxes were correctly or legally asserted.
(c) Each Lender organized under the laws of a jurisdiction
outside the United States (a "Foreign Lender") as to which payments to be
made under this Agreement or under the Notes are exempt from United States
withholding tax under an applicable statute or tax treaty shall provide to
Borrower and Agent a properly completed and executed IRS Form W-8ECI or
Form W-8BEN or other applicable form, certificate or document prescribed by
the IRS or the United States certifying as to such Foreign Lender's
entitlement to such exemption (a "Certificate of Exemption"). Any foreign
Person that seeks to become a Lender under this Agreement shall provide a
Certificate of Exemption to Borrower and Agent prior to becoming a Lender
hereunder. No foreign Person may become a Lender hereunder if such Person
fails to deliver a Certificate of Exemption in advance of becoming a
Lender. Each Foreign Lender agrees to promptly notify Borrower and Agent of
any change in circumstances that would render invalid such exemption.
(d) To the extent that the payment of any Lender's or Agent's
Taxes by Borrower hereunder gives rise from time to time to a Tax Benefit
to such Lender or Agent in any jurisdiction other than the jurisdiction
which imposed such Taxes, such Lender or Agent shall pay to such Borrower
the amount of each such Tax Benefit so recognized or received. The amount
of each Tax Benefit and, therefore, payment to Borrower will be determined
from time to time by the relevant Lender or Agent in its good faith
discretion, which determination shall be binding and conclusive on all
parties hereto. Each such payment will be due and payable by such Lender or
Agent to such Borrower within a reasonable time after the filing of the tax
return in which such Tax Benefit is recognized or, in the case of any tax
refund, after the refund is received; provided, however, if at any time
thereafter such Lender or Agent is required to rescind such Tax Benefit or
such Tax Benefit is otherwise disallowed or nullified, the Borrower shall
promptly, after notice thereof from such Lender or Agent, repay to such
Lender or Agent the amount of such Tax Benefit previously paid to such
Lender or Agent and which has been rescinded, disallowed or nullified. For
purposes hereof, the term "Tax Benefit" shall mean the amount by which any
Lender's or Agent's income tax liability for the taxable period in question
is reduced below what would have been payable had the Borrower not been
required to pay such Lender's or Agent's Taxes hereunder.
1.14 Capital Adequacy; Increased Costs; Illegality.
(a) If any Lender shall have determined that any law, treaty,
governmental (or quasi-governmental) rule, regulation, guideline or order
regarding capital adequacy, reserve requirements or similar requirements or
compliance by any Lender with any request or directive regarding capital
adequacy, reserve requirements or similar requirements (whether or not
having the force of law), in each case, adopted after the Closing Date,
from any central bank or other Governmental Authority increases or would
have the effect of increasing the amount of capital, reserves or other
funds required to be maintained by such Lender and thereby reducing the
rate of return on such Lender's capital as a consequence of its obligations
hereunder, then Borrower shall from time to time upon demand by such Lender
(with a copy of such demand to Agent) pay to Agent, for the account of such
Lender, additional amounts sufficient to compensate such Lender for such
reduction. A certificate as to the amount of that reduction and showing the
basis of the computation thereof submitted by such Lender to Borrower and
to Agent shall, absent manifest error, be final, conclusive and binding for
all purposes.
(b) If, due to either (i) the introduction of or any change
in any law or regulation (or any change in the interpretation thereof) or
(ii) the compliance with any guideline or request from any central bank or
other Governmental Authority (whether or not having the force of law), in
each case adopted after the Closing Date, there shall be any increase in
the cost to any Lender of agreeing to make or making, funding or
maintaining any Loan, then Borrower shall from time to time, upon demand by
such Lender (with a copy of such demand to Agent), pay to Agent for the
account of such Lender additional amounts sufficient to compensate such
Lender for such increased cost. A certificate as to the amount of such
increased cost, submitted to Borrower and to Agent by such Lender, shall be
conclusive and binding on Borrower for all purposes, absent manifest error.
Each Lender agrees that, as promptly as practicable after it becomes aware
of any circumstances referred to above which would result in any such
increased cost, the affected Lender shall, to the extent not inconsistent
with such Lender's internal policies of general application, use reasonable
commercial efforts to minimize costs and expenses incurred by it and
payable to it by Borrower pursuant to this Section 1.14(b).
(c) Notwithstanding anything to the contrary contained
herein, if the introduction of or any change in any law or regulation (or
any change in the interpretation thereof) shall make it unlawful, or any
central bank or other Governmental Authority shall assert that it is
unlawful, for any Lender to agree to make or to make or to continue to fund
or maintain any LIBOR Loan, then, unless that Lender is able to make or to
continue to fund or to maintain such LIBOR Loan at another branch or office
of that Lender without, in that Lender's opinion, adversely affecting it or
its Loans or the income obtained therefrom, on notice thereof and demand
therefor by such Lender to Borrower through Agent, (i) the obligation of
such Lender to agree to make or to make or to continue to fund or maintain
LIBOR Loans shall terminate and (ii) Borrower shall forthwith prepay in
full all outstanding LIBOR Loans owing to such Lender, together with
interest accrued thereon, unless Borrower, within 5 Business Days after the
delivery of such notice and demand, converts all LIBOR Loans into Index
Rate Loans.
(d) Within 15 days after receipt by Borrower of written
notice and demand from any Lender (an "Affected Lender") for payment of
additional amounts or increased costs as provided in Sections 1.13(a),
1.14(a) or 1.14(b), Borrower may, at its option, notify Agent and such
Affected Lender of its intention to replace the Affected Lender. So long as
no Default or Event of Default has occurred and is continuing, Borrower,
with the consent of Agent, may obtain, at Borrower's expense, a replacement
Lender ("Replacement Lender") for the Affected Lender, which Replacement
Lender must be reasonably satisfactory to Agent. If Borrower obtains a
Replacement Lender within 120 days following notice of its intention to do
so, the Affected Lender must sell and assign its Loans and Commitments to
such Replacement Lender for an amount equal to the principal balance of all
Loans held by the Affected Lender and all accrued interest and Fees with
respect thereto through the date of such sale; provided, that Borrower
shall have reimbursed such Affected Lender for the additional amounts or
increased costs that it is entitled to receive under this Agreement through
the date of such sale and assignment. Notwithstanding the foregoing,
Borrower shall not have the right to obtain a Replacement Lender if the
Affected Lender rescinds its demand for increased costs or additional
amounts within 15 days following its receipt of Borrower's notice of
intention to replace such Affected Lender. Furthermore, if Borrower gives a
notice of intention to replace and does not so replace such Affected Lender
within 90 days thereafter, Borrower's rights under this Section 1.14(d)
shall terminate and Borrower shall promptly pay all increased costs or
additional amounts demanded by such Affected Lender pursuant to Sections
1.13(a), 1.14(a) and 1.14(b).
1.15 Single Loan. All Loans to Borrower and all of the other
Obligations of Borrower arising under this Agreement and the other Loan
Documents shall constitute one general obligation of Borrower secured,
until the Termination Date, by all of the Collateral.
2. CONDITIONS PRECEDENT
2.1 Conditions to the Initial Loans. No Lender shall be
obligated to make any Loan or incur any Letter of Credit Obligations on the
Closing Date, or to take, fulfill, or perform any other action hereunder,
until the following conditions have been satisfied or provided for in a
manner satisfactory to Agent, or waived in writing by Agent and Lenders:
(a) Credit Agreement; Loan Documents. This Agreement or
counterparts hereof shall have been duly executed by, and delivered to,
Holdings, Parent, Borrower, Agent and Lenders; and Agent shall have
received such documents, instruments, agreements and legal opinions as
Agent shall reasonably request in connection with the transactions
contemplated by this Agreement and the other Loan Documents, including all
those listed in the Closing Checklist attached hereto as Annex D, each in
form and substance reasonably satisfactory to Agent.
(b) Repayment of Prior Lender Obligations; Satisfaction of
Outstanding L/Cs. (i) Agent shall have received a fully executed original
of a pay-off letter reasonably satisfactory to Agent confirming that all of
the Prior Lender Obligations (except the Credit Lyonnais Interest Rate
Swap) will be repaid in full from the proceeds of the initial Revolving
Credit Advance and all Liens upon any of the property of Holdings or any of
its Subsidiaries in favor of the Prior Lender Agent shall be terminated by
the Prior Lender Agent immediately upon such payment; (ii) all letters of
credit issued or guaranteed by Prior Lender Agent or any other Prior Lender
shall have been cash collateralized, supported by a guaranty of Agent or
supported by a Letter of Credit issued pursuant to Annex B, as mutually
agreed upon by Agent, Holdings, Parent, Borrower and the Prior Lender
Agent; and (iii) the Credit Lyonnais Interest Rate Swap shall have been
amended in writing on terms satisfactory to Parent and the Agent.
(c) Approvals. Agent shall have received (i) satisfactory
evidence that the Credit Parties have obtained all required consents and
approvals of all Persons including all requisite Governmental Authorities,
to the execution, delivery and performance of this Agreement and the other
Loan Documents and the consummation of the Related Transactions or (ii) an
officer's certificate in form and substance reasonably satisfactory to
Agent affirming that no such consents or approvals are required.
(d) Payment of Fees. Borrower shall have paid any and all
Fees required to be paid on the Closing Date in the respective amounts
specified in Section 1.7 (including the Fee specified in the GE Capital Fee
Letter), and shall have reimbursed Agent for all reasonable fees, costs and
expenses of closing presented as of the Closing Date.
(e) Capital Structure; Other Indebtedness. The corporate
structure, capital structure, material contracts and governing documents of
each Credit Party and the terms and conditions of all Indebtedness of each
Credit Party shall be acceptable to Agent in its sole discretion.
(f) Due Diligence. Agent shall have completed its business
and legal due diligence with respect to the Credit Parties, with results
reasonably satisfactory to Agent.
(g) Initial Adjusted EBITDA. The Agent and the Lenders shall
have received Holdings' consolidated audited Financial Statements for the
Fiscal Year ended December 31, 2001 meeting the requirements of Annex E and
such Financial Statements shall reflect that the Adjusted EBITDA for such
Fiscal Year was not less than $16,500,000.
2.2 Further Conditions to Each Loan. Except as otherwise
expressly provided herein, no Lender shall be obligated to fund any
Advance, convert or continue any Loan as a LIBOR Loan or incur any Letter
of Credit Obligation, if, as of the date thereof:
(a) any representation or warranty by any Credit Party
contained herein or in any other Loan Document is untrue or incorrect in
any material respect as of such date, except to the extent that such
representation or warranty expressly relates to an earlier date and except
for changes therein expressly permitted or expressly contemplated by this
Agreement;
(b) any event or circumstance having a Material Adverse
Effect has occurred since the date hereof;
(c) any Default or Event of Default has occurred and is
continuing or would result after giving effect to any Advance (or the
incurrence of any Letter of Credit Obligation); or
(d) after giving effect to any Advance (or the incurrence of
any Letter of Credit Obligations), the outstanding principal amount of the
Revolving Loan would exceed the Maximum Amount.
The request and acceptance by Borrower of the proceeds of any Advance, the
incurrence of any Letter of Credit Obligations or the conversion or
continuation of any Loan into, or as, a LIBOR Loan shall be deemed to
constitute, as of the date thereof, (i) a representation and warranty by
Borrower that the conditions in this Section 2.2 have been satisfied and
(ii) a reaffirmation by all of the Credit Parties of the granting and
continuance of Agent's Liens, on behalf of itself and Lenders, pursuant to
the Collateral Documents.
3. REPRESENTATIONS AND WARRANTIES
To induce Lenders to make the Loans and to incur Letter of Credit
Obligations, the Credit Parties executing this Agreement, jointly and
severally, make the following representations and warranties to Agent and
each Lender with respect to all Credit Parties, each and all of which shall
survive the execution and delivery of this Agreement:
3.1 Corporate Existence; Compliance with Law. Each Credit
Party (a) is a corporation, limited liability company or limited
partnership duly organized, validly existing and in good standing under the
laws of its respective jurisdiction of incorporation or organization set
forth in Disclosure Schedule 3.1; (b) is duly qualified to conduct business
and is in good standing in each other jurisdiction where its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified could not
reasonably be expected to result in a Material Adverse Effect; (c) has the
requisite power and authority and the legal right to own, pledge, mortgage
or otherwise encumber and operate its properties, to lease the property it
operates under lease and to conduct its business as now, heretofore and
proposed to be conducted; (d) except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect, subject to
specific representations regarding Environmental Laws, has all licenses,
permits, consents or approvals from or by, and has made all filings with,
and has given all notices to, all Governmental Authorities having
jurisdiction, to the extent required for such ownership, operation and
conduct; (e) is in compliance with its charter and bylaws or partnership or
operating agreement, as applicable; and (f) subject to specific
representations set forth herein regarding ERISA, Environmental Laws, tax
and other laws, is in compliance with all applicable provisions of law,
except where the failure to comply, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
3.2 [Reserved].
3.3 Power, Authorization, Enforceable Obligations. The
execution, delivery and performance by each Credit Party of the Loan
Documents to which it is a party and the creation of all Liens provided for
therein: (a) are within such Person's power; (b) have been duly authorized
by all necessary corporate, limited liability company or limited
partnership action; (c) do not contravene any provision of such Person's
charter, bylaws or partnership or operating agreement as applicable; (d) do
not violate any law or regulation, or any order or decree of any court or
Governmental Authority; (e) do not conflict with or result in the breach or
termination of, constitute a default under or accelerate or permit the
acceleration of any performance required by, any indenture, mortgage, deed
of trust, lease, agreement or other instrument to which such Person is a
party or by which such Person or any of its property is bound; (f) do not
result in the creation or imposition of any Lien upon any of the property
of such Person other than Permitted Encumbrances and those in favor of
Agent, on behalf of itself and Lenders, pursuant to the Loan Documents; and
(g) do not require the consent or approval of any Governmental Authority or
any other Person, except those referred to in Section 2.1(c), all of which
will havebeen duly obtained, made or complied with prior to the Closing
Date. Each of the Loan Documents shall be duly executed and delivered by
each Credit Party that is a party thereto and each such Loan Document shall
constitute a legal, valid and binding obligation of such Credit Party
enforceable against it in accordance with its terms.
3.4 Financial Statements and Projections. Except for the
Projections, all Financial Statements concerning Holdings and its
Subsidiaries that are referred to below have been prepared in accordance
with GAAP consistently applied throughout the periods covered (except as
disclosed therein and except, with respect to unaudited Financial
Statements, for the absence of footnotes and normal year-end audit
adjustments) and present fairly in all material respects the financial
position of the Persons covered thereby as at the dates thereof and the
results of their operations and cash flows for the periods then ended.
(a) Attached hereto as Disclosure Schedule 3.4(a) is a copy
of the audited consolidated and consolidating balance sheets at December
31, 2000 and 2001 and the related statements of income and cash flows of
Holdings and its Subsidiaries for the Fiscal Years then ended, certified by
Xxxxxx Xxxxxxxx LLP or other independent public accounting firm reasonably
acceptable to the Agent.
(b) The Pro Forma delivered on the date hereof and attached
hereto as Disclosure Schedule 3.4(b) was prepared by Holdings giving pro
forma effect to the Related Transactions, was based on the unaudited
consolidated and consolidating balance sheets of Holdings and its
Subsidiaries dated December 31, 2001, and was prepared in accordance with
GAAP, with only such adjustments thereto as would be required in accordance
with GAAP or pro forma adjustments expressly provided for herein.
(c) The Projections have been prepared by Holdings in light
of the past operations of its businesses, and reflect projections for the
five-year period beginning on January 1, 2002. The Projections are based
upon estimates and assumptions stated therein, all of which Holdings
believe to be reasonable and fair in light of current conditions and
current facts known to Holdings and, as of the Closing Date, reflect
Holdings' good faith and reasonable estimates of the future financial
performance of Holdings and the other Credit Parties and of the other
information projected therein for the period set forth therein, it being
recognized that such projections are not to be viewed as facts and do not
constitute a warranty as to the future performance of Holdings or its
Subsidiaries and that actual results may vary from projected results and
such variances may be material.
3.5 Material Adverse Effect. Except (i) as a result of the
consummation of the Xxx.xxx Acquisition or (ii) as set forth on Disclosure
Schedule 3.5, between December 31, 2001 and the Closing Date, (a) no Credit
Party has incurred any obligations, contingent or noncontingent
liabilities, liabilities for Charges, long-term leases or unusual forward
or long-term commitments that are not reflected in the Pro Forma and that,
alone or in the aggregate, could reasonably be expected to have a Material
Adverse Effect, (b) no contract, lease or other agreement or instrument has
been entered into by any Credit Party or has become binding upon any Credit
Party's assets that has had or could reasonably be expected to have a
Material Adverse Effect, and (c) no Credit Party is in default under any
material contract, lease or other agreement or instrument, that alone or in
the aggregate could reasonably be expected to have a Material Adverse
Effect. Between December 31, 2001 and the Closing Date, no event has
occurred, that alone or together with other events, could reasonably be
expected to have a Material Adverse Effect.
3.6 Ownership of Property; Liens. As of the Closing Date, the
real estate ("Real Estate") listed in Disclosure Schedule 3.6 constitutes
all of the real property owned, leased, subleased, or used by any Credit
Party. Each Credit Party owns good and marketable fee simple title to all
of its owned Real Estate, and valid and marketable leasehold interests in
all of its leased Real Estate, all as described on Disclosure Schedule 3.6,
and copies of all leases relating to such leased Real Estate or a summary
of terms thereof reasonably satisfactory to Agent have been delivered to
Agent. Disclosure Schedule 3.6 further describes any Real Estate with
respect to which any Credit Party is a lessor, sublessor or assignor as of
the Closing Date. Each Credit Party also has good and marketable title to,
or valid leasehold interests in, all of its personal property and assets
except for such assets having an aggregate book value at any time of not
more than $100,000. As of the Closing Date, none of the properties and
assets of any Credit Party are subject to any Liens other than Permitted
Encumbrances, and there are no facts, circumstances or conditions known to
any Credit Party that may result in any Liens (including Liens arising
under Environmental Laws) other than Permitted Encumbrances.
3.7 Labor Matters. As of the Closing Date, except as set
forth on Disclosure Schedule 3.7 and as could not reasonably be expected to
have a Material Adverse Effect, (a) no strikes or other material labor
disputes against any Credit Party are pending or, to any Credit Party's
knowledge, threatened; (b) hours worked by and payment made to employees of
each Credit Party comply with the Fair Labor Standards Act and each other
federal, state, local or foreign law applicable to such matters; (c) all
payments due from any Credit Party for employee health and welfare
insurance have been paid or accrued as a liability on the books of such
Credit Party; (d) no Credit Party is a party to or bound by any collective
bargaining agreement, management agreement, consulting agreement,
employment agreement, bonus, restricted stock, stock option, or stock
appreciation plan or agreement or any similar plan, agreement or
arrangement (and true and complete copies of any agreements or summaries
thereof have been delivered or made available to Agent); (e) there is no
organizing activity involving any Credit Party pending or, to any Credit
Party's knowledge, threatened by any labor union or group of employees; (f)
there are no representation proceedings pending or, to any Credit Party's
knowledge, threatened with the National Labor Relations Board, and no labor
organization or group of employees of any Credit Party has made a pending
demand for recognition; and (g) there are no material complaints or charges
against any Credit Party pending or, to the knowledge of any Credit Party,
threatened to be filed with any Governmental Authority or arbitrator based
on, arising out of, in connection with, or otherwise relating to the
employment or termination of employment by any Credit Party of any
individual.
3.8 Ventures, Subsidiaries and Affiliates; Outstanding Stock
and Indebtedness. Except as set forth in Disclosure Schedule 3.8, as of the
Closing Date, no Credit Party has any Subsidiaries, is engaged in any joint
venture or other partnership with any other Person, or is an Affiliate of
any other Person. After the Closing Date, no Credit Party shall have formed
any Subsidiaries or be engaged in any joint ventures or other partnerships
with any other Person except as set forth in Disclosure Schedule 3.8 or as
otherwise permitted by the terms of this Agreement. All of the issued and
outstanding Stock of each Subsidiary of Holdings is owned by each of the
Stockholders and in the amounts set forth in Disclosure Schedule 3.8.
Except as set forth in Disclosure Schedule 3.8, there are no outstanding
rights to purchase, options, warrants or similar rights or agreements
pursuant to which any Credit Party may be required to issue, sell,
repurchase or redeem any of its Stock or other equity securities or any
Stock or other equity securities of its Subsidiaries. All outstanding
Indebtedness and Guaranteed Indebtedness of each Credit Party as of the
Closing Date (except for the Obligations and the Senior Note Debt) is
described in Section 6.3 (including Disclosure Schedule 6.3).
3.9 Government Regulation. No Credit Party is an "investment
company" or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940. No Credit Party is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power
Act, or any other federal or state statute that restricts or limits its
ability to incur Indebtedness or to perform its obligations hereunder. The
making of the Loans by Lenders to Borrower, the incurrence of the Letter of
Credit Obligations on behalf of Borrower, the application of the proceeds
thereof and repayment thereof and the consummation of the Related
Transactions will not violate any provision of any such statute or any
rule, regulation or order issued by the Securities and Exchange Commission.
3.10 Margin Regulations. No Credit Party is engaged, nor will
it engage, principally or as one of its important activities, in the
business of extending credit for the purpose of "purchasing" or "carrying"
any "margin stock" as such terms are defined in Regulation U of the Federal
Reserve Board as now and from time to time hereafter in effect (such
securities being referred to herein as "Margin Stock"). No Credit Party
owns any Margin Stock except as set forth on Disclosure Schedule 3.10, and
none of the proceeds of the Loans or other extensions of credit under this
Agreement will be used, directly or indirectly, for the purpose of
purchasing or carrying any Margin Stock, for the purpose of reducing or
retiring any Indebtedness that was originally incurred to purchase or carry
any Margin Stock or for any other purpose that might cause any of the Loans
or other extensions of credit under this Agreement to be considered a
"purpose credit" within the meaning of Regulations U or X of the Federal
Reserve Board. No Credit Party will take or permit to be taken any action
that might cause any Loan Document to violate any regulation of the Federal
Reserve Board.
3.11 Taxes. All tax returns, reports and statements,
including information returns, required by any Governmental Authority to be
filed by any Credit Party have been filed with the appropriate Governmental
Authority and all Charges have been paid prior to the date on which any
fine, penalty, interest or late charge may be added thereto for nonpayment
thereof (or any such fine, penalty, interest, late charge or loss has been
paid), excluding (x) Charges or other amounts being contested in accordance
with Section 5.2(b) and (y) other Charges in an aggregate amount for all
Credit Parties of not more than $100,000 at any one time. Proper and
accurate amounts have been withheld by each Credit Party from its
respective employees for all periods in full and complete compliance with
all applicable federal, state, local and foreign laws and such withholdings
have been timely paid to the respective Governmental Authorities.
Disclosure Schedule 3.11 sets forth as of the Closing Date those taxable
years for which any Credit Party's tax returns are currently being audited
by the IRS or any other applicable Governmental Authority and any
assessments or threatened assessments in connection with such audit, or
otherwise currently outstanding. Except as described in Disclosure Schedule
3.11, no Credit Party has executed or filed with the IRS or any other
Governmental Authority any agreement or other document extending, or having
the effect of extending, the period for assessment or collection of any
Charges. None of the Credit Parties and their respective predecessors are
liable for any Charges: (a) under any agreement (including any tax sharing
agreements) or (b) to each Credit Party's knowledge, as a transferee. As of
the Closing Date, no Credit Party has agreed or been requested to make any
adjustment under IRC Section 481(a), by reason of a change in accounting
method or otherwise, which would have a Material Adverse Effect.
3.12 ERISA.
(a) Disclosure Schedule 3.12 lists (i) all ERISA Affiliates
and (ii) all Plans and separately identifies all Pension Plans, including
Title IV Plans, Multiemployer Plans, ESOPs and Welfare Plans, including all
Retiree Welfare Plans. Copies of all such listed Plans, together with a
copy of the latest IRS/DOL 5500-series form for each such Plan have been
delivered to Agent. Except with respect to Multiemployer Plans, each
Qualified Plan has been previously determined by the IRS to qualify under
Section 401 of the IRC, the trusts created thereunder have been determined
to be exempt from tax under the provisions of Section 501 of the IRC, and
nothing has occurred that would cause the loss of such qualification or
tax-exempt status. Each Plan is in material compliance with the applicable
provisions of ERISA and the IRC, including the timely filing of all reports
required under the IRC or ERISA, including the statement required by 29 CFR
Section 2520.104-23. Neither any Credit Party nor ERISA Affiliate has
failed to make any contribution or pay any amount due as required by either
Section 412 of the IRC or Section 302 of ERISA or the terms of any such
Plan except to the extent such failure could not reasonably be expected to
give rise to a liability of any Credit Party greater than $100,000
individually or $1,000,000 in the aggregate. Neither any Credit Party nor
ERISA Affiliate has engaged in a "prohibited transaction," as defined in
Section 406 of ERISA and Section 4975 of the IRC, in connection with any
Plan, that would subject any Credit Party to a material tax on prohibited
transactions imposed by Section 502(i) of ERISA or Section 4975 of the IRC.
(b) Except as set forth in Disclosure Schedule 3.12: (i) no
Title IV Plan has any Unfunded Pension Liability that is in an amount in
excess of $100,000 and the aggregate amount of Unfunded Pension Liability
with respect to all Plans does not exceed $1,000,000; (ii) no ERISA Event
or event described in Section 4062(e) of ERISA with respect to any Title IV
Plan has occurred or is reasonably expected to occur; (iii) there are no
pending, or to the knowledge of any Credit Party, threatened claims (other
than claims for benefits in the normal course), sanctions, actions or
lawsuits, asserted or instituted against any Plan or any Person as
fiduciary or sponsor of any Plan; (iv) no Credit Party or ERISA Affiliate
has incurred or reasonably expects to incur any liability as a result of a
complete or partial withdrawal from a Multiemployer Plan; (v) within the
last five years no Title IV Plan of any Credit Party or ERISA Affiliate has
been terminated, whether or not in a "standard termination" as that term is
used in Section 4041(b)(1) of ERISA, nor has any Title IV Plan of any
Credit Party or any ERISA Affiliate (determined at any time within the past
five years) with Unfunded Pension Liabilities been transferred outside of
the "controlled group" (within the meaning of Section 4001(a)(14) of ERISA)
of any Credit Party or ERISA Affiliate (determined at such time); (vi)
except in the case of any ESOP, Stock of all Credit Parties and their ERISA
Affiliates makes up, in the aggregate, no more than 10% of fair market
value of the assets of any Plan measured on the basis of fair market value
as of the latest valuation date of any Plan; and (vii) no liability under
any Title IV Plan has been satisfied with the purchase of a contract from
an insurance company that is not rated AAA by the Standard & Poor's
Corporation or an equivalent rating by another nationally recognized rating
agency.
3.13 No Litigation. No action, claim, lawsuit, demand,
investigation or proceeding is now pending or, to the knowledge of any
Credit Party, threatened against any Credit Party, before any Governmental
Authority or before any arbitrator or panel of arbitrators (collectively,
"Litigation"), (a) that challenges any Credit Party's right or power to
enter into or perform any of its obligations under the Loan Documents to
which it is a party, or the validity or enforceability of any Loan Document
or any action taken thereunder, or (b) except as set forth on Disclosure
Schedule 3.13, that has a reasonable risk of being determined adversely to
any Credit Party and that, if so determined, could be reasonably expected
to have a Material Adverse Effect. Except as set forth on Disclosure
Schedule 3.13, as of the Closing Date there is no Litigation pending or, to
any Credit Party's knowledge, threatened that could reasonably be expected
to result in damages in excess of $500,000 or injunctive relief against, or
alleges criminal misconduct of, any Credit Party.
3.14 Brokers. No broker or finder brought about the
obtaining, making or closing of the Loans or the Related Transactions, and
no Credit Party or Affiliate thereof has any obligation to any Person in
respect of any finder's or brokerage fees in connection therewith.
3.15 Intellectual Property. As of the Closing Date, each
Credit Party owns or has rights to use all Intellectual Property necessary
to continue to conduct its business, and each material U.S. registration of
and application for a Patent, Trademark, Copyright and License is listed,
together with application or registration numbers, as applicable, in
Disclosure Schedule 3.15. Each Credit Party conducts its business and
affairs without infringement of or interference with any Intellectual
Property of any other Person in any material respect, except to the extent
such infringement could not reasonably be expected to have a Material
Adverse Effect. Except as set forth in Disclosure Schedule 3.15, no Credit
Party has knowledge of any infringement claim by any other Person with
respect to any Intellectual Property which could reasonably be expected to
have a Material Adverse Effect. The Trademarks are subsisting and have not
been adjudged invalid or unenforceable, in whole or in part, except where
the failure of any of the foregoing to be true could not reasonably be
expected to have a Material Adverse Effect. Each of the Trademarks is valid
and enforceable, except where to failure of any of the foregoing to be true
could not be reasonably expected to have a Material Adverse Effect. The
Credit Parties are the sole and exclusive owner of the entire right, title
and interest in and to each of the material Trademarks set forth on
Disclosure Schedule 3.15, free and clear of any liens, charges, and
encumbrances, including without limitation licenses and covenants by any
Credit Party not to xxx third persons, except for any Permitted
Encumbrances.
3.16 Full Disclosure. No information contained in this
Agreement, any of the other Loan Documents, any Projections, Financial
Statements or Collateral Reports or other written reports from time to time
delivered hereunder or any written statement furnished by or on behalf of
any Credit Party to Agent or any Lender pursuant to the terms of this
Agreement contains or will contain any untrue statement of a material fact
or omits or will omit to state a material fact necessary to make the
statements contained herein or therein not misleading in light of the
circumstances under which they were made (it being recognized that any
Projections delivered by any Credit Party to the Agent or any Lender are
not to be viewed as facts and do not constitute a warranty as to the future
performance of Holdings or its Subsidiaries and that actual results may
vary from the projected results and such variances may be material).
3.17 Environmental Matters.
(a) Except as set forth in Disclosure Schedule 3.17, as of
the Closing Date: (i) the Real Estate is free of contamination from any
Hazardous Material except for such contamination that would not materially
and adversely impact the value or marketability of such Real Estate and
that would not result in Environmental Liabilities that could reasonably be
expected to have a Material Adverse Effect; (ii) the Credit Parties are and
have been in compliance with all applicable Environmental Laws, except for
such noncompliance that would not result in Environmental Liabilities which
could reasonably be expected to have a Material Adverse Effect; (iii) the
Credit Parties have obtained, and are in compliance with, all Environmental
Permits required by Environmental Laws for the operations of their
respective businesses as presently conducted or as proposed to be
conducted, except where the failure to so obtain or comply with such
Environmental Permits would not result in Environmental Liabilities that
could reasonably be expected to have a Material Adverse Effect, and all
such Environmental Permits are valid, uncontested and in good standing;
(iv) there is no Litigation arising under or related to any Environmental
Laws, Environmental Permits or Hazardous Material that seeks damages,
penalties, fines, costs or expenses or injunctive relief against, or that
alleges criminal misconduct by, any Credit Party that would reasonably be
expected to have a Material Adverse Effect; and (v) no notice has been
received by any Credit Party identifying it as a "potentially responsible
party" or requesting information under CERCLA or analogous state statutes,
except for such matter that would not reasonably be expected to have a
Material Adverse Effect.
(b) Each Credit Party hereby acknowledges and agrees that
Agent (i) is not now, and has not ever been, in control of any of the Real
Estate or any Credit Party's affairs, and (ii) does not have the capacity
through the provisions of the Loan Documents or otherwise to influence any
Credit Party's conduct with respect to the ownership, operation or
management of any of its Real Estate or compliance with Environmental Laws
or Environmental Permits.
3.18 Insurance. Disclosure Schedule 3.18 lists all insurance
policies of any nature maintained, as of the Closing Date, for current
occurrences by each Credit Party, as well as a summary of the terms of each
such policy.
3.19 Deposit and Disbursement Accounts. Disclosure Schedule 3.19
lists all banks and other financial institutions at which any Credit Party
maintains Deposit Accounts or other accounts as of the Closing Date,
including any Disbursement Accounts, and such Schedule correctly identifies
the name, address and telephone number of each depository, the name in
which the account is held, a description of the purpose of the account, and
the complete account number therefor.
3.20 Solvency. Both before and after giving effect to (a) the
Loans and Letter of Credit Obligations to be made or incurred on the
Closing Date or such other date as Loans and Letter of Credit Obligations
requested hereunder are made or incurred, (b) the disbursement of the
proceeds of such Loans pursuant to the instructions of Borrower, (c) the
Refinancing and the consummation of the other Related Transactions and (d)
the payment and accrual of all transaction costs in connection with the
foregoing, each Credit Party is and will be Solvent.
3.21 Senior Note Debt. As of the Closing Date, Holdings and Parent
have delivered to Agent (or have made available) a true, complete and
correct copy of the Holdings Senior Discount Note Documents and the Parent
Senior Note Documents (including all schedules, exhibits, amendments,
supplements, modifications and assignments.
3.22 Holdings Status. Holdings engages in no significant business
activities and each of Holdings and Parent has no significant assets (other
than the capital Stock of its direct Subsidiaries, immaterial assets used
for the performance of those activities permitted to be performed by such
Person pursuant to Section 6.5 and any obligations held by it to the extent
permitted by Section 6.2) or material liabilities (other than those
incurred under this Agreement, under the other Loan Documents to which such
Person is a party or under the Holdings Senior Discount Note Documents and
the Parent Senior Note Documents to which such Person is a party).
4. FINANCIAL STATEMENTS AND INFORMATION
4.1 Reports and Notices.
(a) Each Credit Party executing this Agreement hereby agrees that
from and after the Closing Date and until the Termination Date, it shall
deliver to Agent or to Agent and Lenders, as required, the Financial
Statements, notices, Projections and other information at the times, to the
Persons and in the manner set forth in Annex E.
(b) Each Credit Party executing this Agreement hereby further
agrees that from and after the Closing Date and until the Termination Date,
it shall deliver to Agent or to Agent and Lenders, as required, the various
Collateral Reports at the times, to the Persons and in the manner set forth
in Annex F.
4.2 Communication with Accountants. Each Credit Party executing
this Agreement authorizes (a) Agent upon prior notice to the Borrower (but
no such notice need be given if any Event of Default is then in existence)
and (b) so long as an Event of Default has occurred and is continuing, each
Lender, to communicate directly with its independent certified public
accountants, including Xxxxxx Xxxxxxxx LLP, and authorizes and, at Agent's
request, shall instruct those accountants and advisors to disclose and make
available to Agent and each Lender any and all Financial Statements and
other supporting financial documents, schedules and information relating to
any Credit Party (including copies of any issued management letters) with
respect to the business, financial condition and other affairs of any
Credit Party.
5. AFFIRMATIVE COVENANTS
Each Credit Party executing this Agreement jointly and severally
agrees as to all Credit Parties that from and after the date hereof and
until the Termination Date:
5.1 Maintenance of Existence and Conduct of Business. Each Credit
Party shall: (i) do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence and its rights
and franchises; (ii) continue to conduct its business substantially as now
conducted or as otherwise permitted hereunder; (iii) at all times maintain,
preserve and protect all of its assets and properties used or useful in the
conduct of its business, and keep the same in good repair, working order
and condition in all material respects (taking into consideration ordinary
wear and tear) and from time to time make, or cause to be made, all
necessary or appropriate repairs, replacements and improvements thereto
consistent with industry practices; and (iv) except as provided for in
Section 6.15 transact business only in such corporate and trade names as
are set forth in Disclosure Schedule 5.1 and as otherwise necessary in the
ordinary course of business.
5.2 Payment of Charges.
(a) Subject to Section 5.2(b), each Credit Party shall pay and
discharge or cause to be paid and discharged when due (or, in the case of
any Charges covered by clause (ii) or (iii) below, at such date thereafter
as such Credit Party pays Charges of such type in the ordinary course of
its business and consistent with its past practice for paying such Charges)
all Charges payable by it, including (i) Charges imposed upon it, its
income and profits, or any of its property (real, personal or mixed) and
all Charges with respect to tax, social security and unemployment
withholding with respect to its employees, (ii) lawful claims for labor,
materials, supplies and services or otherwise, and (iii) all storage or
rental charges payable to warehousemen or bailees, in each case, before any
thereof shall become past due except for any such Charges with respect to
clauses (ii) and (iii) in an aggregate amount at any time for all such
Charges of not more than $100,000.
(b) Each Credit Party may in good faith contest, by appropriate
proceedings, the validity or amount of any Charges, Taxes or claims
described in Section 5.2(a); provided that (i) adequate reserves with
respect to such contest are maintained on the books of such Credit Party,
in accordance with GAAP; (ii) no Lien shall be imposed to secure payment of
such Charges (other than payments to warehousemen and/or bailees) that is
superior to any of the Liens securing the Obligations and such contest is
maintained and prosecuted continuously and with diligence and operates to
suspend collection or enforcement of such Charges, (iii) none of the
Collateral becomes subject to forfeiture or loss as a result of such
contest, and (iv) such Credit Party shall promptly pay or discharge such
contested Charges, Taxes or claims and all additional charges, interest,
penalties and expenses, if any, and shall deliver to Agent evidence
reasonably acceptable to Agent of such compliance, payment or discharge, if
such contest is terminated or discontinued adversely to such Credit Party
or the conditions set forth in this Section 5.2(b) are no longer met.
5.3 Books and Records. Each Credit Party shall keep adequate books
and records with respect to its business activities in which proper
entries, reflecting all financial transactions, are made in accordance with
GAAP and on a basis consistent with the Financial Statements attached as
Disclosure Schedule 3.4(a).
5.4 Insurance; Damage to or Destruction of Collateral.
(a) The Credit Parties shall, at their sole cost and expense,
maintain the policies of insurance described on Disclosure Schedule 3.18 as
in effect on the date hereof or otherwise in form and amounts and with
insurers reasonably acceptable to Agent; provided that Agent shall give the
Credit Parties not less than 30 days' prior written notice of any change
required by the Agent in the type, form or amount of any Credit Party's
insurance or any insurer (but such prior notice requirement shall not apply
if any Event of Default is then in existence). Such policies of insurance
(or the loss payable and additional insured endorsements delivered to
Agent) shall contain provisions pursuant to which the insurer agrees to
provide 30 days' prior written notice to Agent in the event of any
non-renewal, cancellation or amendment of any such insurance policy (other
than amendments that do not adversely affect the insurance coverage
provided under such policy) . If any Credit Party at any time or times
hereafter shall fail to obtain or maintain any of the policies of insurance
required above or to pay all premiums relating thereto, Agent may at any
time or times thereafter obtain and maintain such policies of insurance and
pay such premiums and take any other action with respect thereto that Agent
deems advisable. Agent shall have no obligation to obtain insurance for any
Credit Party or pay any premiums therefor. By doing so, Agent shall not be
deemed to have waived any Default or Event of Default arising from any
Credit Party's failure to maintain such insurance or pay any premiums
therefor. All sums so disbursed, including reasonable attorneys' fees,
court costs and other charges related thereto, shall be payable on demand
by Borrower to Agent and shall be additional Obligations hereunder secured
by the Collateral.
(b) Agent reserves the right in its reasonable credit judgment at
any time upon any material change in any Credit Party's risk profile
(including any change in the type of goods or services sold or offered by
any Credit Party or any laws affecting the potential liability of such
Credit Party) to require additional forms and limits of insurance to, in
Agent's reasonable credit judgment, adequately protect both Agent's and
Lender's interests in all or any portion of the Collateral and to ensure
that each Credit Party is protected by insurance in amounts and with
coverage customary for its industry. If reasonably requested by Agent, each
Credit Party shall deliver to Agent from time to time a report of a
reputable insurance broker, reasonably satisfactory to Agent, with respect
to its insurance policies.
(c) Each Credit Party shall deliver to Agent, in form and
substance reasonably satisfactory to Agent, endorsements to (i) all "All
Risk" and business interruption insurance naming the Agent, on behalf of
itself and Lenders, as loss payee, and (ii) all general liability and other
liability policies naming the Agent, on behalf of itself and Lenders, as
additional insured. Each Credit Party irrevocably makes, constitutes and
appoints the Agent (and all officers, employees or agents designated by the
Agent), so long as any Event of Default has occurred and is continuing as
such Credit Party's true and lawful agent and attorney-in-fact for the
purpose of making, settling and adjusting claims under such "All Risk"
policies of insurance, endorsing the name of such Credit Party on any check
or other item of payment for the proceeds of such "All Risk" policies of
insurance and for making all determinations and decisions with respect to
such "All Risk" policies of insurance. Agent shall have no duty to exercise
any rights or powers granted to it pursuant to the foregoing
power-of-attorney. Borrower shall promptly notify the Agent of any loss,
damage, or destruction to the Collateral in the amount of $1,000,000 or
more, whether or not covered by insurance. All proceeds of any claim under
any such "All Risk" policy of insurance shall be used by the Credit Parties
to replace, repair, restore or rebuild the Collateral or make a mandatory
prepayment pursuant to Section 1.3(b)(ii); provided, however, that if
either (x) an Event of Default exists at the time of the Credit Parties'
receipt of any such proceeds or (y) such proceeds are in the amount of
$1,000,000 or more, Borrower shall use all such proceeds to make a
mandatory prepayment of the Loans pursuant to Section 1.3(b)(ii)).
5.5 Compliance with Laws. Each Credit Party shall comply with all
federal, state, local and foreign laws and regulations applicable to it,
including those relating to ERISA and labor matters and Environmental Laws
and Environmental Permits, except to the extent that the failure to comply,
individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect.
5.6 Supplemental Disclosure. From time to time as may be
reasonably requested by Agent (which request will not be made more
frequently than once each year absent the occurrence and continuance of an
Event of Default), the Credit Parties shall supplement each Disclosure
Schedule hereto, or any representation herein or in any other Loan
Document, with respect to any matter hereafter arising that, if existing or
occurring at the date of this Agreement, would have been required to be set
forth or described in such Disclosure Schedule or as an exception to such
representation or that is necessary to correct any information in such
Disclosure Schedule or representation which has been rendered inaccurate
thereby (and, in the case of any supplements to any Disclosure Schedule,
such Disclosure Schedule shall be appropriately marked to show the changes
made therein); provided that (a) no such supplement to any such Disclosure
Schedule or representation shall amend, supplement or otherwise modify any
Disclosure Schedule or representation, or be or be deemed a waiver of any
Default or Event of Default resulting from the matters disclosed therein,
except as consented to by Agent and Requisite Lenders in writing, and (b)
no supplement shall be required or permitted as to representations and
warranties that relate solely to the Closing Date.
5.7 Intellectual Property. Each Credit Party will conduct its
business and affairs without infringement of or interference with any
Intellectual Property of any other Person except for any such infringement
or interference that, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
5.8 Environmental Matters. Each Credit Party shall and shall cause
each Person within its control to: (a) conduct its operations and keep and
maintain its Real Estate in compliance with all Environmental Laws and
Environmental Permits other than noncompliance that could not reasonably be
expected to have a Material Adverse Effect; (b) implement any and all
investigation, remediation, removal and response actions that are required
to comply with applicable Environmental Laws and Environmental Permits
pertaining to the presence, generation, treatment, storage, use, disposal,
transportation or Release of any Hazardous Material on, at, in, under,
above, to, from or about any of its Real Estate; (c) notify Agent promptly
after such Credit Party becomes aware of any violation of Environmental
Laws or Environmental Permits or any Release on, at, in, under, above, to,
from or about any Real Estate that is reasonably likely to result in
Environmental Liabilities that have a Material Adverse Effect; and (d)
promptly forward to Agent a copy of any order, notice, request for
information or any communication or report received by such Credit Party in
connection with any such violation or Release or any other matter relating
to any Environmental Laws or Environmental Permits that could reasonably be
expected to result in Environmental Liabilities that have a Material
Adverse Effect, in each case whether or not the Environmental Protection
Agency or any Governmental Authority has taken or threatened any action in
connection with any such violation, Release or other matter. If Agent at
any time has a reasonable basis to believe that there may be a violation of
any Environmental Laws or Environmental Permits by any Credit Party or any
Environmental Liability arising thereunder, or a Release of Hazardous
Materials on, at, in, under, above, to, from or about any of its Real
Estate, that, in each case, could reasonably be expected to have a Material
Adverse Effect, then each Credit Party shall, upon Agent's written request
(i) cause the performance of such environmental audits including subsurface
sampling of soil and groundwater, and preparation of such environmental
reports, at Borrower's expense, as Agent may from time to time reasonably
request, which shall be conducted by reputable environmental consulting
firms reasonably acceptable to Agent and shall be in form and substance
reasonably acceptable to Agent, and (ii) permit Agent or its
representatives to have access to all Real Estate for the purpose of
conducting such environmental audits and testing as Agent reasonably deems
appropriate, including subsurface sampling of soil and groundwater.
Borrower shall reimburse Agent for the costs of such reasonable audits and
tests and the same will constitute a part of the Obligations secured
hereunder.
5.9 Landlords' Agreements and Real Estate Purchases. Each Credit
Party shall obtain a landlord's agreement from the lessor of each Material
Leased Real Estate Facility, which agreement or letter shall contain a
waiver or subordination of all Liens or claims that the landlord, mortgagee
or bailee may assert against the Collateral at that location, and shall
otherwise be reasonably satisfactory in form and substance to Agent;
provided that any landlord agreement relating to any Material Leased Real
Estate Facility shall not need to be obtained until 10 days after the
Closing Date. To the extent otherwise permitted hereunder and if requested
by Agent, if any Credit Party proposes to acquire a fee ownership interest
in Real Estate with a value (based on the higher of book value or fair
market value) greater than $200,000 after the Closing Date, it shall first
provide to Agent a mortgage, security deed or deed of trust granting Agent
a first priority Lien on such Real Estate (subject to Permitted
Encumbrances), together with environmental audits, mortgage title insurance
commitment, real property survey, local counsel opinion(s), and, if
required by Agent, supplemental casualty insurance and flood insurance, and
such other documents, instruments or agreements reasonably requested by
Agent, in each case, in form and substance reasonably satisfactory to
Agent.
5.10 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 Holdings reasonably acceptable to the Agent does not within 30 days
after a written request from the Agent or the Requisite Lenders deliver
evidence, in form and substance mutually satisfactory to the Agent,
Holdings and the Borrower, with respect to any Foreign Subsidiary which has
not already had all of its Stock pledged pursuant to the Pledge Agreements
that (i) a pledge (x) of more than 65% of the total combined voting power
of all classes of Stock of such Foreign Subsidiary entitled to vote, and
(y) of any promissory note issued by such Foreign Subsidiary to Holdings or
any of its Domestic Subsidiaries, (ii) the entering into by such Foreign
Subsidiary of an Additional Grantor Acknowledgment in the form of Exhibit B
to the Security Agreement and (iii) the entering into by such Foreign
Subsidiary of an Additional Guarantor Supplement in the form of Schedule 1
to the Subsidiary Guaranty, in any such case could reasonably be expected
to 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, that portion of such Foreign Subsidiary's
outstanding Stock or any promissory notes so issued by such Foreign
Subsidiary, in each case not theretofore pledged pursuant to a Pledge
Agreement shall be pledged to the Agent for the benefit of the Lenders
pursuant to a 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, such Foreign
Subsidiary shall execute and deliver an Additional Grantor Acknowledgment
in the form of Exhibit B to the Security Agreement (or another security
agreement in substantially similar form, if needed), granting the Agent for
the benefit of the Lenders a security interest in all of such Foreign
Subsidiary's assets and securing the Obligations of the Borrower under the
Loan Documents and, in the event and Additional Guarantor Supplement in the
form of Schedule 1 to the Subsidiary 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, such Foreign Subsidiary shall execute and deliver an
Additional Guarantor Supplement in the form of Schedule 1 to the Subsidiary
Guaranty (or another guaranty agreement in substantially similar form, if
needed), guaranteeing the Obligations of the Borrower under the Loan
Documents, in each case to the extent that the entering into such
Additional Grantor Acknowledgment (or alternative security agreement) or
such Additional Guarantor Supplement (or alternative guaranty agreement) is
permitted by the laws of the respective foreign jurisdiction, and with all
documents delivered pursuant to this Section 5.10 to be in form and
substance reasonably satisfactory to the Agent and to be accompanied by
closing documentation (including, without limitation, opinions of counsel
for such Foreign Subsidiary) of the type described in Section 2 and the
Closing Checklist as such Foreign Subsidiary would have had to deliver if
such Foreign Subsidiary were a Domestic Subsidiary as of the Closing Date.
5.11 Further Assurances. Each Credit Party executing this
Agreement agrees that it shall and shall cause each other Credit Party to,
at such Credit Party's expense and upon request of Agent, duly execute and
deliver, or cause to be duly executed and delivered, to Agent such further
instruments and do and cause to be done such further acts as may be
reasonably necessary or proper in the opinion of Agent to carry out more
effectively the provisions and purposes of this Agreement or any other Loan
Document.
6. NEGATIVE COVENANTS
Each Credit Party executing this Agreement jointly and severally
agrees as to all Credit Parties that from and after the date hereof until
the Termination Date:
6.1 Mergers, Acquisitions, Etc.
(a) No Credit Party shall directly or indirectly, by operation of
law or otherwise, merge with, consolidate with, acquire all or
substantially all of the assets or Stock of or otherwise combine with or
acquire, any Person, except (i) as permitted by Sections 6.1(b) or (c)
below, (ii) any Subsidiary of Holdings (other than the Borrower or the
Parent) may merge or consolidate with or convey all or substantially all of
its assets to Borrower or another Subsidiary of Holdings that is a
Guarantor provided that the Borrower or such Guarantor is the surviving
entity from any such merger or consolidation, (iii) any Subsidiary of
Holdings (other than the Borrower or the Parent) that is a Guarantor may
merge or consolidate with or convey all or substantially all of its assets
to another Subsidiary of Holdings, that is a Guarantor, and (iv) any
Subsidiary of Holdings that is not a Guarantor may merge or consolidate
with or convey all or substantially all of its assets to another Subsidiary
of Holdings that is not a Guarantor.
(b) Notwithstanding the foregoing, Borrower or any Subsidiary of
Borrower (or Holdings or the Parent, so long as all assets or Stock so
acquired are transferred to Borrower or any Subsidiary of Borrower
contemporaneously therewith), may acquire all or substantially all of the
assets or Stock of any Person (the "Target") (in each case, a "Permitted
Acquisition"), if the sum of all amounts payable in connection with such
Permitted Acquisition (including the fair market value of any
non-redeemable Stock issued or exchanged in connection with such
acquisition and all Indebtedness, liabilities to the extent that such
liabilities exceed assets, and contingent obligations (including, without
limitation any earn-out obligations) incurred or assumed in connection
therewith and required to be recognized in accordance with GAAP or
otherwise reflected on a consolidated balance sheet of any of the Credit
Parties and the Target) shall not exceed, individually and in the aggregate
for all such Permitted Acquisitions consummated in any Fiscal Year within
each of the following three tiers, (x) $100,000 and $500,000, respectively
(each Permitted Acquisition covered by this clause (x) herein called a
"First Tier Acquisition"), (y) $2,000,000 and $5,000,000, respectively, and
(z) $5,000,000 and $15,000,000, respectively (each Permitted Acquisition
covered by this clause (z) herein called a "Third Tier Acquisition"),
subject to the satisfaction of each of the following conditions if and to
the extent applicable:
(i) except in the case of a First Tier Acquisition (in
which case Agent shall receive from Borrower written notice of such First
Tier Acquisition that otherwise satisfies the conditions set forth in this
clause (i) not more than 10 Business Days after its consummation), Agent
shall receive at least 10 Business Days' prior written notice of such
proposed Permitted Acquisition from Borrower, which notice shall include a
reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall involve assets of
which not less than 95% are located in the United States or Canada and
comprising a business, or those assets of a business, of the type engaged
in by Borrower as of the Closing Date and reasonable extensions thereof and
activities incidental thereto, and which business would not subject Agent
or any Lender to regulatory or third party approvals in connection with the
exercise of its rights and remedies under this Agreement or any other Loan
Documents other than approvals applicable to the exercise of such rights
and remedies with respect to Borrower prior to such Permitted Acquisition;
provided that such Permitted Acquisitions may involve foreign assets
located outside of the United States or Canada so long as the sum of (A)
the aggregate value (based upon the greater of book value or fair market
value ) of all such foreign assets acquired and (B) the aggregate amount of
all additional investments made pursuant to Section 6.2(xvii) shall not
exceed $1,000,000 in any Fiscal Year;
(iii) such Permitted Acquisition shall be consensual and
shall have been approved by the Target's board of directors (or other
governing body);
(iv) no additional Indebtedness, Guaranteed
Indebtedness, contingent obligations or other liabilities shall be
incurred, assumed or otherwise be reflected on a consolidated balance sheet
of Borrower and Target after giving effect to such Permitted Acquisition,
except (A) Loans made hereunder, (B) Indebtedness secured by purchase money
security interests and Capital Leases, in each case to the extent permitted
in Section 6.3(a)(i), (C) unsecured Indebtedness to the extent permitted in
Section 6.3(a)(xi) and (D) ordinary course trade payables, accrued expenses
and unsecured Indebtedness of the Target;
(v) the business and assets acquired in such Permitted
Acquisition shall be free and clear of all Liens (other than Permitted
Encumbrances);
(vi) at or prior to the closing of any Permitted
Acquisition, Agent will be granted a first priority perfected Lien (subject
to Permitted Encumbrances) in all assets acquired pursuant thereto or in
the assets and Stock of the Target, and Holdings and Borrower and the
Target shall have executed such documents and taken such actions as may be
required by Agent in connection therewith;
(vii) Except in the case of a First Tier Acquisition,
concurrently with delivery of any notice required to be delivered pursuant
to Section 6.1(b)(i), Borrower shall have delivered to Agent, in form and
substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income
statement and cash flow statement of Holdings and its
Subsidiaries (the "Acquisition Pro Forma"), based on recent
financial statements, which shall be complete and shall
fairly present in all material respects the assets,
liabilities, financial condition and results of operations of
Holdings and its Subsidiaries in accordance with GAAP
consistently applied, but taking into account such Permitted
Acquisition, and such Acquisition Pro Forma shall reflect
that on a pro forma basis, no Event of Default has occurred
and is continuing or would result after giving effect to such
Permitted Acquisition and Holdings and its Subsidiaries would
have been in compliance with the Financial Covenants for the
four quarter period reflected in the Compliance Certificate
most recently delivered to Agent pursuant to Annex E prior to
the consummation of such Permitted Acquisition and after
giving effect to such Permitted Acquisition as if made
on the first day of such period (or, if such Permitted
Acquisition is consummated prior to the delivery to Agent of
the initial Compliance Certificate required under Annex E,
such Acquisition Pro Forma shall reflect that, on a pro
forma basis, Holdings and its Subsidiaries would have been
in compliance with the Financial Covenants applicable to the
Fiscal Quarter ending June 30, 2003 for the most recently
completed four Fiscal Quarters prior to the consummation of
such Permitted Acquisition and after giving effect to such
Permitted Acquisition as if made on the first day of such period);
(B) updated versions of the most recently
delivered Projections covering the remainder of the Fiscal
Year during which such Permitted Acquisition occurs and
otherwise prepared in accordance with the Projections (the
"Acquisition Projections") and based upon historical
financial data of a recent date reasonably satisfactory to
Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer
of Holdings and Borrower to the effect that: (w) Borrower
will be Solvent upon the consummation of the Permitted
Acquisition; (x) the Acquisition Pro Forma fairly presents
the financial condition of Holdings and its Subsidiaries (on
a consolidated basis) as of the date thereof after giving
effect to the Permitted Acquisition; (y) the Acquisition
Projections are reasonable estimates of the future financial
performance of Holdings and its Subsidiaries subsequent to
the date thereof based upon the historical performance of
Holdings and its Subsidiaries and the Target and show that
Holdings and its Subsidiaries shall continue to be in
compliance with the financial covenants set forth in Annex G
after giving effect to such Permitted Acquisition; and (z)
Holdings and its Subsidiaries have completed their due
diligence investigation with respect to the Target and such
Permitted Acquisition;
(viii) except in the case of a First Tier Acquisition,
on or prior to the date of such Permitted Acquisition, Agent shall have
received, in form and substance reasonably satisfactory to Agent, copies of
the acquisition agreement and related agreements and instruments, and all
opinions, certificates, lien search results and other documents reasonably
requested by Agent, including those specified in the last sentence of
Section 5.9;
(ix) at the time of such Permitted Acquisition and after
giving effect thereto, no Default or Event of Default has occurred and is
continuing;
(x) except in the case of a First Tier Acquisition,
Borrower has established and is maintaining the Cash Management System
satisfactory to Agent; and
(xi) in the case of a Third Tier Acquisition, after
giving effect to such Permitted Acquisition, the product of (A) Adjusted
EBITDA for the most recently completed Fiscal Quarter times (B) four (4)
must be greater than $28,000,000.
(c) Also notwithstanding anything herein to the contrary,
Holdings or any of its Subsidiaries may consummate the Xxx.xxx Acquisition
so long as it is consummated in accordance with the terms and conditions
described on Disclosure Schedule 6.1(c) and no Default or Event of Default
shall exist before or after giving effect to such transaction.
6.2 Investments; Loans and Advances. Except as otherwise expressly
permitted by this Section 6, no Credit Party shall make or permit to exist
any investment in, or make, accrue or permit to exist loans or advances of
money to, any Person, through the direct or indirect lending of money,
holding of securities or otherwise, except that:
(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 trade terms of the Borrower or such Subsidiary;
(ii) the Borrower and its Subsidiaries may acquire and
hold cash and Cash Equivalents, provided that during any time that
Revolving Credit Advances are outstanding the aggregate amount of cash and
Cash Equivalents permitted to be held by the Borrower and its Subsidiaries
shall not exceed $5,000,000 for any period of 5 consecutive Business Days;
(iii) Holdings and its Subsidiaries may hold the
investments held by them on the Closing Date and described on Disclosure
Schedule 6.2, provided that any additional Investments made with respect
thereto shall be permitted only if independently justified under the other
provisions of this Section 6.2;
(iv) the Borrower and its Subsidiaries may acquire and
own investments (including debt obligations) received in connection with
the bankruptcy or reorganization of suppliers and customers and in good
faith settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
(v) the Borrower and its Subsidiaries may make loans and
advances in the ordinary course of business to their respective officers
and 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 $250,000;
(vi) Holdings may acquire and hold obligations of one or
more officers or employees of Holdings or any of its Subsidiaries in
connection with such officers' or employees' acquisition of shares of
capital stock of Holdings so long as no cash is paid by Holdings or any of
its Subsidiaries to such officers or employees in connection with the
acquisition of any such obligations;
(vii) the Borrower and its Subsidiaries may acquire and
hold promissory notes issued by the purchaser of assets in connection with
a sale of such assets to the extent permitted by Section 6.8;
(viii) Holdings and its wholly-owned Subsidiaries may
make acquisitions to the extent permitted by Section 6.1(b) or (c);
(ix) Holdings may make cash contributions to the capital
of the Parent, Parent may make cash contributions to the capital of
Borrower, and the Borrower and the Subsidiary Guarantors may make cash
contributions to the capital of their respective Subsidiaries which are
Subsidiary Guarantors;
(x) the Borrower and the Subsidiary Guarantors may make
intercompany loans and advances between or among one another to the extent
permitted by Section 6.3(a)(xii);
(xi) the Borrower and the Subsidiary Guarantors may make
additional loans and cash contributions to their respective Subsidiaries
which are not Subsidiary Guarantors in an aggregate amount not to exceed
$500,000 at any time outstanding (determined without regard to any
write-downs or write-offs thereof) so long as any such loans that are made
by a Credit Party are evidenced by an Intercompany Note that is pledged
pursuant to, and to the extent required by, the applicable Pledge Agreement
or the Security Agreement; and
(xii) the Borrower may make Permitted Parent
Distributions.
(xiii) 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;
(xiv) the Parent may make Permitted Note Repurchases;
(xv) the Credit Parties may participate in such
transactions contemplated by the Credit Lyonnais Interest Rate Swap;
(xvi) the Borrower and its Subsidiaries may acquire
Stock of advertisers in AFE Transactions; and
(xvii) the Borrower and its Subsidiaries may make
additional investments in an aggregate amount in any Fiscal Year not to
exceed an amount equal to (A) $1,000,000 less (B) the aggregate value
(based upon the greater of book value or fair market value) of all assets
located outside of the United States and Canada that are acquired in
accordance with Section 6.1(b)(ii) in such Fiscal Year.
6.3 Indebtedness.
(a) No Credit Party shall create, incur, assume or permit to
exist any Indebtedness, except (without duplication) (i) Indebtedness
secured by purchase money security interests and Capital Leases permitted
in Section 6.7(c), (ii) the Loans and the other Obligations, (iii) unfunded
pension fund and other employee benefit plan obligations and liabilities to
the extent they are permitted to remain unfunded under applicable law, (iv)
existing Indebtedness (other than the Holdings Senior Discount Notes and
the Parent Senior Notes) described in Disclosure Schedule 6.3 and
refinancings thereof or amendments or modifications thereof that do not
have the effect of increasing the principal amount thereof or changing the
amortization thereof (other than to extend the same) and that are otherwise
on terms and conditions no less favorable to any Credit Party, Agent or any
Lender, as determined by Agent, than the terms of the Indebtedness being
refinanced, amended or modified, (v) Indebtedness permitted under Section
6.1, (vi) Indebtedness permitted under Section 6.18, (vii) Indebtedness of
the Parent and the Subsidiary Guarantors incurred under the Parent Senior
Note Documents in an aggregate principal amount not to exceed $175,000,000
(which amount may be increased to $210,000,000 so long as no Default or
Event of Default then exists or would result therefrom), in each case
reduced by any repayments of principal thereof, (viii) Indebtedness of
Holdings under the Holdings Senior Discount Note Documents in an initial
aggregate principal amount not to exceed $35,000,000, which amount may be
increased to $63,275,000 solely through accretion (as reduced by any
repayments of principal thereof), (ix) additional unsecured Indebtedness
incurred by Holdings or any of its Subsidiaries (including any unsecured
Indebtedness assumed by Holdings or any of its Subsidiaries in connection
with any Permitted Acquisition) in an aggregate principal amount not to
exceed $5,000,000 at any one time outstanding for all such Persons taken
together, (x) indebtedness under the Credit Lyonnais Interest Rate Swap,
(xi) additional secured Indebtedness assumed by Holdings or any of its
Subsidiaries in connection with any Permitted Acquisition so long as the
aggregate principal amount of all such secured Indebtedness of the Credit
Parties permitted under this Section 6.3(a)(xi) and Section 6.7(c) does not
exceed $1,500,000 at any one time outstanding for all such Persons taken
together, and (xii) Indebtedness consisting of intercompany loans and
advances made by Borrower to any other Credit Party that is a Guarantor or
by any such Guarantor to Borrower; provided, that: (A) Borrower shall have
executed and delivered to each such Guarantor, and each such Guarantor
shall have executed and delivered to Borrower, on the Closing Date, a
demand note (collectively, the "Intercompany Notes") to evidence any such
intercompany Indebtedness owing at any time by Borrower to such Guarantor
or by such Guarantor to Borrower, which Intercompany Notes shall be in form
and substance reasonably satisfactory to Agent and shall be pledged and
delivered to Agent pursuant to the applicable Pledge Agreement or Security
Agreement as additional collateral security for the Obligations; (B)
Borrower shall record all intercompany transactions on its books and
records in a manner reasonably satisfactory to Agent; (C) the obligations
of Borrower under any such Intercompany Notes shall be subordinated to the
Obligations of Borrower hereunder in a manner reasonably satisfactory to
Agent; (D) at the time any such intercompany loan or advance is made by
Borrower and after giving effect thereto, Borrower shall be Solvent; and
(E) no Default or Event of Default would occur and be continuing after
giving effect to any such proposed intercompany loan.
(b) No Credit Party shall, directly or indirectly,
voluntarily purchase, redeem, defease or prepay any principal of, premium,
if any, interest or other amount payable in respect of any Indebtedness,
other than (i) the Obligations; (ii) Indebtedness secured by a Permitted
Encumbrance if the asset securing such Indebtedness has been sold or
otherwise disposed of in accordance with Sections 6.8(b) or (c); (iii)
Indebtedness permitted by Section 6.3(a)(iv) upon any refinancing thereof
in accordance with Section 6.3(a)(iv); (iv) Permitted Note Repurchases; and
(v) as otherwise permitted in Section 6.14.
6.4 Employee Loans and Affiliate Transactions.
(a) Except (i) as set forth on Disclosure Schedule 6.4 or
(ii) as otherwise expressly permitted in this Section 6 with respect to
Affiliates, no Credit Party shall enter into or be a party to any
transaction with any other Credit Party or any Affiliate thereof except in
the ordinary course of and pursuant to the reasonable requirements of such
Credit Party's business and upon fair and reasonable terms that are no less
favorable to such Credit Party than would be obtained in a comparable arm's
length transaction with a Person not an Affiliate of such Credit Party
except that the following in any event shall be permitted:
(i) Restricted Payments may be paid to the extent
permitted by Section 6.14;
(ii) loans may be made and other transactions may be
entered into by Holdings and its Subsidiaries to the extent permitted by
Sections 6.2 and 6.3; and
(iii) customary fees may be paid to non-officer
directors of Holdings and its Subsidiaries.
All such transactions existing as of the Closing Date are described in
Disclosure Schedule 6.4(a).
(b) No Credit Party shall enter into any lending or borrowing
transaction with any employees of any Credit Party, except loans to its
officers and employees in the ordinary course of business to the extent
permitted under Section 6.2(v).
6.5 Capital Structure and Business.
(a) No Credit Party shall (i) make any changes in any of its
business objectives, purposes or operations that could reasonably be
expected to adversely affect the repayment of the Loans or any of the other
Obligations or could reasonably be expected to have or result in a Material
Adverse Effect, (ii) except as expressly permitted elsewhere in this
Agreement, make any change in its capital structure as described in
Disclosure Schedule 3.8, including the issuance or sale of any shares of
Stock, warrants or other securities convertible into Stock or any revision
of the terms of its outstanding Stock; provided that Holdings may issue or
sell shares (including Qualified Holdings Stock Sales) of its
non-redeemable common Stock and shares of Qualified Holdings Preferred
Stock for cash so long as (x) the proceeds thereof are applied in
prepayment of the Obligations as required by Section 1.3(b)(ii), and (y) no
Change of Control occurs after giving effect thereto, or (iii) amend its
charter or bylaws in a manner that would adversely affect Agent or Lenders
or such Credit Party's duty or ability to repay the Obligations.
(b) Holdings and its Subsidiaries will not engage in any
business other than the businesses engaged in by Holdings and its
Subsidiaries as of the Closing Date and reasonable extensions thereof and
activities incidental thereto (including the Xxx.xxx business).
(c) Notwithstanding the foregoing or anything in this
Agreement, Holdings will not engage in any business and will not own any
significant assets or have any material liabilities other than its
ownership of the Stock of the Parent, and having those liabilities which it
is responsible for under this Agreement, the other Loan Documents to which
it is a party and the Holdings Senior Discount Note Documents, provided
that Holdings may engage in those activities that are incidental to (x) the
maintenance of its corporate existence in compliance with applicable law,
(y) legal, tax and accounting matters in connection with any of the
foregoing activities and (z) the entering into, and performing its
obligations under, this Agreement, the other Transaction Documents to which
it is a party and the Holdings Senior Discount Note Documents to which it
is a party.
6.6 Guaranteed Indebtedness. No Credit Party shall create, incur,
assume or permit to exist any Guaranteed Indebtedness except (a) by
endorsement of instruments or items of payment for deposit to the general
account of any Credit Party, (b) for Guaranteed Indebtedness incurred for
the benefit of any other Credit Party if the primary obligation is
expressly permitted by this Agreement, and (c) indemnification obligations
incurred in the ordinary course of business in connection with transactions
that are otherwise permitted by this Agreement.
6.7 Liens. No Credit Party shall create, incur, assume or permit
to exist any Lien on or with respect to any of its properties or assets
(whether now owned or hereafter acquired) except for (a) Permitted
Encumbrances; (b) Liens in existence on the date hereof and summarized on
Disclosure Schedule 6.7 securing the Indebtedness described on Disclosure
Schedule 6.3 and permitted refinancings, extensions and renewals thereof,
including extensions or renewals of any such Liens; provided that the
principal amount of the Indebtedness so secured is not increased and the
Lien does not attach to any other property; (c) Liens created after the
date hereof by conditional sale or other title retention agreements
(including Capital Leases) or in connection with purchase money
Indebtedness with respect to Equipment and Fixtures acquired by any Credit
Party in the ordinary course of business (including any such Liens arising,
created, incurred or existing in connection with any additional secured
Indebtedness assumed by Holdings or any of its Subsidiaries in connection
with any Permitted Acquisition in accordance with Section 6.3(a)(xi)),
involving the incurrence (or the assumption) of an aggregate amount of
purchase money Indebtedness and Capital Lease Obligations of not more than
$1,500,000 outstanding at any one time for all such Liens (provided that
such Liens attach only to the assets subject to such purchase money debt
and such Indebtedness is incurred within 20 days following such purchase
and does not exceed 100% of the purchase price of the subject assets); (d)
Liens arising from precautionary UCC financing statement filings regarding
operating leases which do not constitute Indebtedness; and (e) statutory or
common law landlords' Liens under leases to which Holdings or any of its
Subsidiaries are a party; provided that such Liens only secure real estate
lease liabilities incurred by such Credit Party in the ordinary course of
its business. In addition, no Credit Party shall become a party to any
agreement, note, indenture or instrument (other than the Holdings Senior
Discount Note Documents or the Parent Senior Note Documents), or take any
other action, that would prohibit the creation of a Lien on any of its
properties or other assets in favor of Agent, on behalf of itself and
Lenders, as additional collateral for the Obligations, except operating
leases, Capital Leases or Licenses which prohibit Liens upon the assets
that are subject thereto.
6.8 Sale of Stock and Assets.
(a) No Credit Party shall sell, transfer, convey, assign or
otherwise dispose of any of its properties or other assets, including the
Stock of any of its Subsidiaries (whether in a public or a private offering
or otherwise) or any of its Accounts, other than (i) the sale of Inventory
in the ordinary course of business; (ii) the sale, transfer, conveyance or
other disposition by a Credit Party of any other property or assets
(excluding Stock of any Credit Party) having a value (based on the greater
of book value or fair market value) not exceeding $500,000 in any single
transaction or $1,000,000 in the aggregate in any Fiscal Year; and (iii)
any sale of Stock permitted under Section 6.5(a)(ii). With respect to any
disposition of assets or other properties permitted pursuant to this
Section 6.8 which is made at a time when no Default or Event of Default
then exists, and subject to Section 1.3(b), Agent agrees on reasonable
prior written notice to release its Lien on such assets or other properties
in order to permit the applicable Credit Party to effect such disposition
and shall execute and deliver to Borrower, at Borrower's expense,
appropriate UCC-3 termination statements and other releases as reasonably
requested by Borrower.
(b) Notwithstanding anything contained in Section 6.8(a)
above, any Credit Party shall be permitted to sell, transfer, convey,
assign or otherwise dispose of any of its properties or other assets (each
a "Permitted Disposition") having a value (based on the greater of book
value and fair market value) not exceeding, individually and in the
aggregate for all such Permitted Dispositions consummated in any Fiscal
Year within each of the following two tiers, (x) $2,000,000 and $5,000,000,
respectively (in each case, a "First Tier Disposition"), and (y) $5,000,000
and $15,000,000, respectively, subject to the satisfaction of each of the
following conditions if and to the extent applicable:
(i) Agent shall receive at least 10 Business Days' prior
written notice of such proposed Permitted Disposition, which notice shall
include a reasonably detailed description of such proposed Permitted
Disposition;
(ii) concurrently with delivery of any notice required
to be delivered pursuant to Section 6.8(b)(i), Borrower shall have
delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income
statement and cash flow statement of Holdings and its
Subsidiaries (the "Disposition Pro Forma"), based on recent
financial statements, which shall be complete and shall
fairly present in all material respects the assets,
liabilities, financial condition and results of operations of
Holdings and its Subsidiaries in accordance with GAAP
consistently applied, but taking into account such Permitted
Disposition, and such Disposition Pro Forma shall reflect
that on a pro forma basis, no Event of Default has occurred
and is continuing or would result after giving effect to such
Permitted Disposition and Holdings and its Subsidiaries would
have been in compliance with the Financial Covenants for the
four quarter period reflected in the Compliance Certificate
most recently delivered to Agent pursuant to Annex E prior to
the consummation of such Permitted Disposition and after
giving effect to such Permitted Disposition as if made on the
first day of such period (or, if such Permitted Disposition
is consummated prior to the delivery to Agent of the initial
Compliance Certificate required under Annex E, such
Acquisition Pro Forma shall reflect that, on a pro forma
basis, Holdings and its Subsidiaries would have been in
compliance with the Financial Covenants applicable to the
Fiscal Quarter ending June 30, 2003 for the most recently
completed four Fiscal Quarters prior to the consummation of
such Permitted Disposition and after giving effect to such
Permitted Disposition as if made on the first day of such
period);
(B) updated versions of the most recently
delivered Projections covering the remainder of the Fiscal
Year during which such Permitted Disposition occurs and
otherwise prepared in accordance with the Projections (the
"Disposition Projections") and based upon historical
financial data of a recent date reasonably satisfactory to
Agent, taking into account such Permitted Disposition; and
(C) a certificate of the chief financial officer
of Holdings and Borrower to the effect that: (x) Borrower
will be Solvent upon the consummation of the Permitted
Disposition; (y) the Disposition Pro Forma fairly presents
the financial condition of Holdings and its Subsidiaries (on
a consolidated basis) as of the date thereof after giving
effect to the Permitted Disposition; and (z) the Disposition
Projections are reasonable estimates of the future financial
performance of Holdings and its Subsidiaries subsequent to
the date thereof based upon the historical performance of
Holdings and its Subsidiaries and the Target and show that
Holdings and its Subsidiaries shall continue to be in
compliance with the financial covenants set forth in Annex G
after giving effect to such Permitted Disposition;
(iii) on or prior to the date of such Permitted
Disposition, Agent shall have received, in form and substance reasonably
satisfactory to Agent, copies of the disposition agreement and related
agreements and instruments, and all opinions, certificates and other
documents reasonably requested by Agent;
(iv) at the time of such Permitted Disposition and after
giving effect thereto, no Default or Event of Default has occurred and is
continuing;
(v) Borrower has established and is maintaining the Cash
Management System satisfactory to Agent;
(vi) except in the case of a First Tier Disposition,
after giving effect to such Permitted Disposition, the product of (A)
Adjusted EBITDA for the most recently completed Fiscal Quarter times (B)
four (4) must be greater than $28,000,000; and
(vii) all of the proceeds from any Permitted
Dispositions shall be used to purchase Replacement Assets and/or prepay the
Loans as required pursuant to Sections 1.3(b)(ii) and 1.3(b)(iii) or shall
be held in a Collateral Account in accordance with Section 1.3(b)(iii)
prior to any prepayment of Loans or purchase of Replacement Assets.
6.9 ERISA. No Credit Party shall, or shall cause or
permit any ERISA Affiliate to, cause or permit to occur an event that could
result in the imposition of a Lien in an amount in excess of $100,000 under
Section 412 of the IRC or Section 302 or 4068 of ERISA or cause or permit
to occur an ERISA Event to the extent such ERISA Event could reasonably be
expected to have a Material Adverse Effect.
6.10 Financial Covenants. Borrower shall not breach or fail to
comply with any of the Financial Covenants set forth on Annex G.
6.11 Hazardous Materials. No Credit Party shall cause or permit a
Release of any Hazardous Material on, at, in, under, above, to, from or
about any of the Real Estate where such Release would (a) violate in any
respect any Environmental Laws or Environmental Permits or (b) otherwise
adversely impact the value or marketability of any of the Real Estate or
any of the Collateral, other than such violations or Environmental
Liabilities that could not reasonably be expected to have a Material
Adverse Effect.
6.12 Sale-Leasebacks. No Credit Party shall engage in any
sale-leaseback, synthetic lease or similar transaction involving any of its
assets.
6.13 Cancellation of Indebtedness. Except in connection with the
Xxx.xxx Acquisition, no Credit Party shall cancel any claim or debt owing
to it, except for reasonable consideration negotiated on an arm's-length
basis and in the ordinary course of its business consistent with past
practices.
6.14 Restricted Payments.
(a) No Credit Party shall make any Restricted Payment, except
for following: (i) intercompany loans and advances between Credit Parties
to the extent permitted by Section 6.3(a)(x); (ii) any Subsidiary of the
Borrower may pay cash Restricted Payments to the Borrower or any
wholly-owned Subsidiary of the Borrower; (iii) the Borrower may pay cash
Restricted Payments to Parent (which may in turn may pay cash Restricted
Payments to Holdings) so long as the proceeds thereof are promptly used by
Holdings to pay operating and corporate overhead costs and expenses in the
ordinary course of business (including, without limitation, outside
directors and professional fees, expenses and indemnities); provided that
the aggregate amount of cash Restricted Payments paid pursuant to this
clause (iii) shall not exceed $250,000 in any Fiscal Year of Holdings; (iv)
the Borrower may pay cash Restricted Payments to Parent (which may in turn
pay cash Restricted Payments to Holdings) in connection with any amounts
actually owing by Parent or Holdings in respect of taxes; provided that any
refunds thereof received by Holdings or Parent are promptly returned to the
Borrower; (v) the Borrower may pay cash Restricted Payments to Parent
(which in turn may pay cash Restricted Payments to Holdings) to enable
Parent or Holdings to pay scheduled payments of accrued interest on the
Senior Note Debt; (vi) the Borrower may pay cash Restricted Payments to
Parent (which in turn may pay cash Restricted Payments to Holdings) to
enable Parent or Holdings to make Permitted Note Repurchases and Parent and
Holdings may make Permitted Note Repurchases to the extent permitted under
Section 6.14(b); and (vii) the Borrower may pay management fees of up to an
aggregate amount of $1,000,000 in any one Fiscal Year; provided that (x) no
Default or Event of Default has occurred and is continuing or would result
after giving effect to any Restricted Payment expressly permitted under any
of clauses (iii) through ( vii) above (any and all such Restricted Payments
being herein called the "Permitted Parent Distributions"), and (y) with
respect to any Restricted Payments made pursuant to clause (vii) above, the
Senior Leverage Ratio of Holdings and its Subsidiaries on a consolidated
basis for the most recently completed Fiscal Quarter for which Holdings has
provided the Agent and the Lenders with Financial Statements meeting the
requirements of Annex E is equal to or less than 1.00 to 1.00.
(b) Notwithstanding anything contained in this Agreement to
the contrary, Parent may repurchase Parent Senior Notes (including related
expenses and taxes) and Holdings may repurchase Holdings Senior Discount
Notes (including related expenses and taxes) if each and every of the
following conditions are satisfied with respect to each such repurchase
(any and all such repurchases being herein called the "Permitted Note
Repurchases"): (i) the product of (x) Adjusted EBITDA for the most recently
completed Fiscal Quarter and (y) four (4) is greater than $28,000,000; and
(ii) no Default or Event of Default then exists or would result after
giving effect to such repurchase.
6.15 Change of Corporate Name or Location; Change of Fiscal Year.
No Credit Party shall (a) change its name as it appears on official filings
in the state of its incorporation or other organization, (b) change its
chief executive office or principal place of business, (c) change the type
of entity that it is, (d) change its organization identification number, if
any, issued by its state of incorporation or other organization, or (e)
change its state of incorporation or other organization, in each case
without at least 30 days prior written notice to Agent and after Agent's
written acknowledgment that any reasonable action requested by Agent in
connection therewith, including to continue the perfection of any Liens in
favor of Agent, on behalf of Lenders, in any Collateral, has been completed
or taken, and provided that any such new location shall be in the
continental United States. Without limiting the foregoing, no Credit Party
shall change its name, identity or corporate structure in any manner that
might make any financing or continuation statement filed in connection
herewith seriously misleading within the meaning of Section 9-503 of the
Code or any other then applicable provision of the Code except upon prior
written notice to Agent and Lenders and after Agent's written
acknowledgment that any reasonable action requested by Agent in connection
therewith, including to continue the perfection of any Liens in favor of
Agent, on behalf of Lenders, in any Collateral, has been completed or
taken. No Credit Party shall change its Fiscal Year or its Fiscal Quarters.
6.16 No Impairment of Intercompany Transfers. No Credit Party
shall directly or indirectly enter into or become bound by any agreement,
instrument, indenture or other obligation (other than this Agreement, the
other Loan Documents, the Parent Senior Note Documents and the Holdings
Senior Discount Note Documents) that could directly or indirectly restrict,
prohibit or require the consent of any Person with respect to the payment
of dividends or distributions or the making or repayment of intercompany
loans by a Subsidiary of Borrower to Borrower.
6.17 No Speculative Transactions. No Credit Party shall engage in
any transaction involving commodity options, futures contracts or similar
transactions, except solely to hedge against fluctuations in the prices of
commodities owned or purchased by it and the values of foreign currencies
receivable or payable by it and interest swaps, caps or collars.
6.18 Leases; Real Estate Purchases. Except for any Real Estate
leases entered into or assumed in connection with the Xxx.xxx Acquisition
and so long as the aggregate net amount of lease payments made with respect
to such leases is not more than $1,400,000 in any Fiscal Year, no Credit
Party shall enter into any operating lease for Equipment or Real Estate, if
the aggregate of all such operating lease payments payable (excluding
payments for any Real Estate leases entered into or assumed in connection
with the Xxx.xxx Acquisition to the extent such net lease payments do not
exceed $1,400,000 in any Fiscal Year) in any Fiscal Year for all Credit
Parties on a consolidated basis would exceed $500,000. Except as otherwise
permitted under Section 6.1 in connection with a Permitted Acquisition, no
Credit Party shall purchase a fee simple ownership interest in Real Estate
with an aggregate purchase price in excess of 1,000,000. Except for any
Equipment Leases entered into or assumed in connection with the Xxx.xxx
Acquisition, no Credit Party shall enter into any operating lease for
Equipment if the sum of all such operating lease payments payable in any
Fiscal Year in connection with such lease could exceed $250,000.
6.19 Limitation on Voluntary Payments and Modification of Certain
Senior Note Debt. Holdings 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 (including, 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 of the Senior Note Debt (other
than Permitted Note Repurchases);
(ii) make (or give any notice in respect of) any
prepayment or redemption of any of the Senior Note Debt as a result of any
asset sale, change of control or similar event (including, 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 Senior Note) to the extent any of the foregoing is adverse to
a Lender, other than permitting an increase in the principal amount of the
Parent Senior Notes from $175,000,000 to $210,000,00 to the extent
permitted in Section 6.3(a)(vii); or
(iii) amend or modify, or permit the amendment or
modification of, any provision of any of the Parent Senior Note Documents
or any of the Holdings Senior Discount Note Documents.
6.20 Limitation on Creation of Subsidiaries. Notwithstanding
anything to the contrary contained in this Agreement, Holdings will not,
and will not permit any of its Subsidiaries to, establish, create or
acquire after the Closing Date any Subsidiary, provided that Holdings and
its Subsidiaries shall be permitted to establish, create and, to the extent
permitted by Section 6.1 of this Agreement, acquire Subsidiaries so long as
(i) all of the Stock of each such new Subsidiary if it is a Domestic
Subsidiary and 65% of the Stock of such Subsidiary if it is a Foreign
Subsidiary (or all of the Stock of such Foreign Subsidiary to the extent
required under Section 5.10) is pledged pursuant to, and to the extent
required by, the applicable Pledge Agreements and the certificates (if any)
representing such stock or other equity interests, together with stock or
other powers duly executed in blank, are delivered to the Agent for the
benefit of the Lenders, and (ii) each such new Domestic Subsidiary
(including without limitation any such new Domestic Subsidiary resulting
from the Xxx.xxx Acquisition), and to the extent required by Section 5.10,
each such new Foreign Subsidiary, executes a Additional Guarantor
Supplement in the form of Schedule 1 to the Subsidiary Guaranty and an
Additional Grantor Acknowledgment in the form of Exhibit B to the Security
Agreement . In addition, each new Domestic Subsidiary, and to the extent
required by Section 5.10 each such new Foreign Subsidiary, shall execute
and deliver, or cause to be executed and delivered, if and to the extent
requested by the Agent, all other relevant documentation of the type
described in Section 2 and the Closing Checklist as such new Subsidiary
would have had to deliver if such new Subsidiary were a Credit Party on the
Closing Date.
7. TERM
7.1 Termination. The financing arrangements contemplated hereby
shall be in effect until the Commitment Termination Date, and the Loans and
all other Obligations shall be automatically due and payable in full on
such date.
7.2 Survival of Obligations Upon Termination of Financing
Arrangements. Except as otherwise expressly provided for in the Loan
Documents, no termination or cancellation (regardless of cause or
procedure) of any financing arrangement under this Agreement shall in any
way affect or impair the obligations, duties and liabilities of the Credit
Parties or the rights of Agent and Lenders relating to any unpaid portion
of the Loans or any other Obligations, due or not due, liquidated,
contingent or unliquidated or any transaction or event occurring prior to
such termination, or any transaction or event, the performance of which is
required after the Commitment Termination Date. Except as otherwise
expressly provided herein or in any other Loan Document, all undertakings,
agreements, covenants, warranties and representations of or binding upon
the Credit Parties, and all rights of Agent and each Lender, all as
contained in the Loan Documents, shall not terminate or expire, but rather
shall survive any such termination or cancellation and shall continue in
full force and effect until the Termination Date; provided, that the
provisions of Section 11, the payment obligations under Sections 1.13 and
1.14, and all indemnity obligations contained in the Loan Documents shall
survive the Termination Date.
8. EVENTS OF DEFAULT; RIGHTS AND REMEDIES
8.1 Events of Default. The occurrence of any one or more of the
following events (regardless of the reason therefor) shall constitute an
"Event of Default" hereunder:
(a) Borrower (i) fails to make any payment of principal of,
or interest on, or fees owing in respect of, the Loans when due and
payable, or (ii) fails to pay or reimburse Agent or Lenders for any other
Obligation or expense reimbursable hereunder or under any other Loan
Document within 5 Business Days following Agent's demand for such
reimbursement or payment of expenses.
(b) Any Credit Party fails or neglects to perform, keep or
observe any of the provisions of Sections 1.4, 1.6, 5.4(a), 5.10 or 6
(other than Section 6.15), or any of the provisions set forth in Annex C or
G.
(c) Borrower fails or neglects to perform, keep or observe
any of the provisions of Sections 4 or 6.15 or any provisions set forth in
Annex E or F, respectively, and the same shall remain unremedied for 5 days
or more after the earlier of a Responsible Officer becoming aware of the
same or written notice of the same has been given to the Borrower by the
Agent.
(d) Any Credit Party fails or neglects to perform, keep or
observe any other provision of this Agreement or of any of the other Loan
Documents (other than any provision embodied in or covered by any other
clause of this Section 8.1) and the same shall remain unremedied for 30
days or more after the earlier of a Responsible Officer becoming aware of
the same or written notice of the same has been given to the Borrower by
the Agent.
(e) A default or breach occurs under any other agreement,
document or instrument to which any Credit Party is a party that is not
cured within any applicable grace period therefor, and such default or
breach (i) involves the failure to make any payment when due in respect of
any Indebtedness or Guaranteed Indebtedness (other than the Obligations) of
any Credit Party in excess of $5,000,000 in the aggregate (including (x)
undrawn committed or available amounts and (y) amounts owing to all
creditors under any combined or syndicated credit arrangements), or (ii)
causes, or permits any holder of such Indebtedness or Guaranteed
Indebtedness or a trustee to cause, Indebtedness or Guaranteed Indebtedness
or a portion thereof in excess of $5,000,000 in the aggregate to become due
prior to its stated maturity or prior to its regularly scheduled dates of
payment, or cash collateral in respect thereof to be demanded, in each
case, regardless of whether such default is waived, or such right is
exercised, by such holder or trustee.
(f) Any representation or warranty herein or in any other
Loan Document or in any written statement, report, financial statement or
certificate made or delivered to Agent or any Lender by any Credit Party is
untrue or incorrect in any material respect as of the date when made or
deemed made.
(g) Assets of any Credit Party with a fair market value of
$5,000,000 or more are attached, seized, levied upon or subjected to a writ
or distress warrant, or come within the possession of any receiver,
trustee, custodian or assignee for the benefit of creditors of any Credit
Party and such condition continues for 30 days or more.
(h) A case or proceeding is commenced against any Credit
Party seeking a decree or order in respect of such Credit Party (i) under
the Bankruptcy Code or any other applicable federal, state or foreign
bankruptcy or other similar law, (ii) appointing a custodian, receiver,
liquidator, assignee, trustee or sequestrator (or similar official) for
such Credit Party or for any substantial part of any such Credit Party's
assets, or (iii) ordering the winding-up or liquidation of the affairs of
such Credit Party, and such case or proceeding shall remain undismissed or
unstayed for 60 days or more or a decree or order granting the relief
sought in such case or proceeding shall be entered by a court of competent
jurisdiction.
(i) Any Credit Party (i) files a petition seeking relief
under the Bankruptcy Code or any other applicable federal, state or foreign
bankruptcy or other similar law, (ii) consents to or fails to contest in a
timely and appropriate manner to the institution of proceedings thereunder
or the filing of any such petition or the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee or
sequestrator (or similar official) for such Credit Party or for any
substantial part of any such Credit Party's assets, (iii) makes an
assignment for the benefit of creditors, (iv) takes any action in
furtherance of any of the foregoing, or (v) admits in writing its inability
to, or is generally unable to, pay its debts as such debts become due.
(j) A final judgment or judgments for the payment of money in
excess of $5,000,000 in the aggregate at any time are outstanding against
one or more of the Credit Parties and the same are not, within 30 days
after the entry thereof, discharged or execution thereof stayed or bonded
pending appeal, or such judgments are not discharged prior to the
expiration of any such stay.
(k) Any material provision of any Loan Document for any
reason ceases to be valid, binding and enforceable in accordance with its
terms (or any Credit Party shall challenge the enforceability of any Loan
Document or shall assert in writing, or engage in any action or inaction
based on any such assertion, that any provision of any of the Loan
Documents has ceased to be or otherwise is not valid, binding and
enforceable in accordance with its terms), or any Lien created under any
Loan Document ceases to be a valid and perfected first priority Lien
(except as otherwise permitted herein or therein) in any of the Collateral
purported to be covered thereby.
(l) Any Change of Control occurs.
(m) Any event occurs, whether or not insured or insurable, as
a result of which revenue-producing activities cease or are substantially
curtailed at any facility or publication of Borrower generating more that
20% of Borrower's revenues for the Fiscal Year preceding such event and
such cessation or curtailment continues for more than 30 days.
(n) Any Event of Default occurs under (and such term is
defined in) either or both of the Holdings Senior Discount Note Indenture
or the Parent Senior Note Indenture.
8.2 Remedies.
(a) If any Default or Event of Default has occurred and is
continuing, Agent may (and at the written request of the Requisite Lenders
shall), without notice, suspend the Lenders' Revolving Loan Commitment with
respect to additional Advances and/or the incurrence of additional Letter
of Credit Obligations, whereupon any additional Advances and additional
Letter of Credit Obligations shall be made or incurred in Agent's sole
discretion (or in the sole discretion of the Requisite Lenders, if such
suspension occurred at their direction) so long as such Default or Event of
Default is continuing. If any Event of Default has occurred and is
continuing, Agent may (and at the written request of Requisite Lenders
shall), without notice except as otherwise expressly provided herein,
increase the rate of interest applicable to the Loans and the Letter of
Credit Fees to the Default Rate.
(b) If any Event of Default has occurred and is continuing,
Agent may (and at the written request of the Requisite Lenders shall),
without notice: (i) terminate the Lenders' Revolving Loan Commitment with
respect to further Advances or the incurrence of further Letter of Credit
Obligations; (ii) declare all or any portion of the Obligations, including
all or any portion of any Loan to be forthwith due and payable, and require
that the Letter of Credit Obligations be cash collateralized as provided in
Annex B, all without presentment, demand, protest or further notice of any
kind, all of which are expressly waived by Borrower and each other Credit
Party; or (iii) exercise any rights and remedies provided to Agent under
the Loan Documents or at law or equity, including all remedies provided
under the Code; provided that upon the occurrence of an Event of Default
specified in Sections 8.1(h) or (i), the Lenders' Revolving Loan Commitment
shall be immediately terminated and all of the Obligations, including the
Revolving Loan, shall become immediately due and payable without
declaration, notice or demand by any Person.
8.3 Waivers by Credit Parties. Except as otherwise provided
for in this Agreement or by applicable law, each Credit Party waives (a)
presentment, demand and protest and notice of presentment, dishonor, notice
of intent to accelerate, notice of acceleration, protest, default,
nonpayment, maturity, release, compromise, settlement, extension or renewal
of any or all commercial paper, accounts, contract rights, documents,
instruments, chattel paper and guaranties at any time held by Agent on
which any Credit Party may in any way be liable, and hereby ratifies and
confirms whatever Agent may do in this regard, (b) all rights to notice and
a hearing prior to Agent's taking possession or control of, or to Agent's
replevy, attachment or levy upon, the Collateral or any bond or security
that might be required by any court prior to allowing Agent to exercise any
of its remedies, and (c) the benefit of all valuation, appraisal,
marshaling and exemption laws.
9. ASSIGNMENT AND PARTICIPATIONS; APPOINTMENT OF AGENT
9.1 Assignment and Participations.
(a) Subject to the terms of this Section 9.1 and Section
1.13(c), any Lender may make an assignment to a Qualified Assignee of, or
sell participations in, at any time or times, the Loan Documents, Loans,
Letter of Credit Obligations and any Commitment or any portion thereof or
interest therein, including any Lender's rights, title, interests,
remedies, powers or duties thereunder. Any assignment by a Lender shall:
(i) require the consent of Agent and Borrower (which consent shall not be
unreasonably withheld or delayed with respect to a Qualified Assignee) and
the execution of an assignment agreement (an "Assignment Agreement",
substantially in the form attached hereto as Exhibit 9.1(a) and otherwise
in form and substance reasonably satisfactory to, and acknowledged by,
Agent; (ii) be conditioned on such assignee Lender representing to the
assigning Lender and Agent that it is purchasing the applicable Loans to be
assigned to it for its own account, for investment purposes and not with a
view to the distribution thereof; (iii) after giving effect to any such
partial assignment, the assignee Lender shall have Commitments in an amount
at least equal to $5,000,000 and the assigning Lender shall have retained
Commitments in an amount at least equal to $5,000,000; (iv) include a
payment to Agent of an assignment fee of $3,500; and (v) so long as no
Event of Default has occurred and is then continuing, require the consent
of Borrower, which shall not be unreasonably withheld or delayed. In the
case of an assignment by a Lender under this Section 9.1, the assignee
shall have, to the extent of such assignment, the same rights, benefits and
obligations as all other Lenders hereunder. The assigning Lender shall be
relieved of its obligations hereunder with respect to its Commitments or
assigned portion thereof from and after the date of such assignment.
Borrower hereby acknowledges and agrees that any assignment shall give rise
to a direct obligation of Borrower to the assignee and that the assignee
shall be considered to be a "Lender". In all instances, each Lender's
liability to make Loans hereunder shall be several and not joint and shall
be limited to such Lender's Pro Rata Share of the applicable Commitment. In
the event Agent or any Lender assigns or otherwise transfers all or any
part of the Obligations, Agent or any such Lender shall so notify Borrower
and Borrower shall, upon the request of Agent or such Lender, execute new
Notes in exchange for the Notes, if any, being assigned. Notwithstanding
the foregoing provisions of this Section 9.1(a), any Lender may at any time
pledge the Obligations held by it and such Lender's rights under this
Agreement and the other Loan Documents to a Federal Reserve Bank, and any
lender that is an investment fund may assign the Obligations held by it and
such Lender's rights under this Agreement and the other Loan Documents to
another investment fund managed by the same investment advisor; provided,
that no such pledge to a Federal Reserve Bank shall release such Lender
from such Lender's obligations hereunder or under any other Loan Document.
(b) Any participation by a Lender of all or any part of its
Commitments shall be made with the understanding that all amounts payable
by Borrower hereunder shall be determined as if that Lender had not sold
such participation, and that the holder of any such participation shall not
be entitled to require such Lender to take or omit to take any action
hereunder except actions directly affecting (i) any reduction in the
principal amount of, or interest rate or Fees payable with respect to, any
Loan in which such holder participates, (ii) any extension of the scheduled
amortization of the principal amount of any Loan in which such holder
participates or the final maturity date thereof, and (iii) any release of
all or substantially all of the Collateral (other than in accordance with
the terms of this Agreement, the Collateral Documents or the other Loan
Documents). Solely for purposes of Sections 1.11, 1.13, 1.14 and 9.8,
Borrower acknowledges and agrees that a participation shall give rise to a
direct obligation of Borrower to the participant and the participant shall
be considered to be a "Lender"; provided that a participant shall not be
entitled to receive any greater payment under Sections 1.11, 1.13, 1.14 and
9.8 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such participant. Except as set forth
in the preceding sentence neither Borrower nor any other Credit Party shall
have any obligation or duty to any participant. Neither Agent nor any
Lender (other than the Lender selling a participation) shall have any duty
to any participant and may continue to deal solely with the Lender selling
a participation as if no such sale had occurred.
(c) Except as expressly provided in this Section 9.1, no
Lender shall, as between Borrower and that Lender, or Agent and that
Lender, be relieved of any of its obligations hereunder as a result of any
sale, assignment, transfer or negotiation of, or granting of participation
in, all or any part of the Loans, the Notes or other Obligations owed to
such Lender.
(d) Each Credit Party executing this Agreement shall assist
any Lender permitted to sell assignments or participations under this
Section 9.1 as reasonably required to enable the assigning or selling
Lender to effect any such assignment or participation, including the
execution and delivery of any and all agreements, notes and other documents
and instruments as shall be requested and the preparation of informational
materials for, and the participation of management in meetings with,
potential assignees or participants. Each Credit Party executing this
Agreement shall certify the correctness, completeness and accuracy of all
descriptions of the Credit Parties and their respective affairs contained
in any selling materials provided by it and all other information provided
by it and included in such materials, except that any Projections delivered
by Borrower shall only be certified by Borrower as having been prepared by
Borrower in compliance with the representations contained in Section
3.4(c).
(e) A Lender may furnish any information concerning Credit
Parties in the possession of such Lender from time to time to assignees and
participants (including prospective assignees and participants); provided
that such Lender shall obtain from assignees or participants
confidentiality covenants substantially equivalent to those contained in
Section 11.8.
(f) So long as no Event of Default has occurred and is
continuing, no Lender shall assign or sell participations in any portion of
its Loans or Commitments to a potential Lender or participant, if, as of
the date of the proposed assignment or sale, the assignee Lender or
participant would be subject to capital adequacy or similar requirements
under Section 1.14(a), increased costs under Section 1.14(b), an inability
to fund LIBOR Loans under Section 1.14(c), or withholding taxes in
accordance with Section 1.13(a).
(g) Notwithstanding anything to the contrary contained
herein, any Lender (a "Granting Lender"), may grant to a special purpose
funding vehicle (an "SPC"), identified as such in writing by the Granting
Lender to Agent and Borrower, the option to provide to Borrower all or any
part of any Loans that such Granting Lender would otherwise be obligated to
make to Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan; and (ii)
if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Lender shall be obligated to
make such Loan pursuant to the terms hereof. The making of a Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if such Loan were made by such Granting Lender. No SPC shall
be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting Lender).
Any SPC may (i) with notice to, but without the prior written consent of,
Borrower and Agent and assign all or a portion of its interests in any
Loans to the Granting Lender or to any financial institutions (consented to
by Borrower and Agent) providing liquidity and/or credit support to or for
the account of such SPC to support the funding or maintenance of Loans and
(ii) disclose on a confidential basis any non-public information relating
to its Loans to any rating agency, commercial paper dealer or provider of
any surety, guarantee or credit or liquidity enhancement to such SPC. This
Section 9.1(g) may not be amended without the prior written consent of each
Granting Lender, all or any of whose Loans are being funded by an SPC at
the time of such amendment. For the avoidance of doubt, the Granting Lender
shall for all purposes, including without limitation, the approval of any
amendment or waiver of any provision of any Loan Document or the obligation
to pay any amount otherwise payable by the Granting Lender under the Loan
Documents, continue to be the Lender of record hereunder.
9.2 Appointment of Agent. GE Capital is hereby appointed to
act on behalf of all Lenders as Agent under this Agreement and the other
Loan Documents. The provisions of this Section 9.2 are solely for the
benefit of Agent and Lenders and no Credit Party nor any other Person shall
have any rights as a third party beneficiary of any of the provisions
hereof. In performing its functions and duties under this Agreement and the
other Loan Documents, Agent shall act solely as an agent of Lenders and
does not assume and shall not be deemed to have assumed any obligation
toward or relationship of agency or trust with or for any Credit Party or
any other Person. Agent shall have no duties or responsibilities except for
those expressly set forth in this Agreement and the other Loan Documents.
The duties of Agent shall be mechanical and administrative in nature and
Agent shall not have, or be deemed to have, by reason of this Agreement,
any other Loan Document or otherwise a fiduciary relationship in respect of
any Lender. Except as expressly set forth in this Agreement and the other
Loan Documents, Agent shall not have any duty to disclose, and shall not be
liable for failure to disclose, any information relating to any Credit
Party or any of their respective Subsidiaries or any Account Debtor that is
communicated to or obtained by GE Capital or any of its Affiliates in any
capacity. Neither Agent nor any of its Affiliates nor any of their
respective officers, directors, employees, agents or representatives shall
be liable to any Lender for any action taken or omitted to be taken by it
hereunder or under any other Loan Document, or in connection herewith or
therewith, except for damages caused by its or their own gross negligence
or willful misconduct.
If Agent shall request instructions from Requisite Lenders or all
affected Lenders with respect to any act or action (including failure to
act) in connection with this Agreement or any other Loan Document, then
Agent shall be entitled to refrain from such act or taking such action
unless and until Agent shall have received instructions from Requisite
Lenders or all affected Lenders, as the case may be, and Agent shall not
incur liability to any Person by reason of so refraining. Agent shall be
fully justified in failing or refusing to take any action hereunder or
under any other Loan Document (a) if such action would, in the opinion of
Agent, be contrary to law or the terms of this Agreement or any other Loan
Document, (b) if such action would, in the opinion of Agent, expose Agent
to Environmental Liabilities or (c) if Agent shall not first be indemnified
to its satisfaction against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against Agent as a result of Agent acting or refraining from
acting hereunder or under any other Loan Document in accordance with the
instructions of Requisite Lenders or all affected Lenders, as applicable.
9.3 Agent's Reliance, Etc. Neither Agent nor any of its Affiliates
nor any of their respective directors, officers, agents or employees shall
be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement or the other Loan Documents, except
for damages caused by its or their own gross negligence or willful
misconduct. Without limiting the generality of the foregoing, Agent: (a)
may treat the payee of any Note as the holder thereof until Agent receives
written notice of the assignment or transfer thereof signed by such payee
and in form reasonably satisfactory to Agent; (b) may consult with legal
counsel, independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken by it
in good faith in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender and shall
not be responsible to any Lender for any statements, warranties or
representations made in or in connection with this Agreement or the other
Loan Documents; (d) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants or
conditions of this Agreement or the other Loan Documents on the part of any
Credit Party or to inspect the Collateral (including the books and records)
of any Credit Party; (e) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or the other Loan Documents or any other instrument
or document furnished pursuant hereto or thereto; and (f) shall incur no
liability under or in respect of this Agreement or the other Loan Documents
by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telecopy, telegram, cable or telex) believed by it
to be genuine and signed or sent by the proper party or parties.
9.4 GE Capital and Affiliates. With respect to its Commitments
hereunder, GE Capital shall have the same rights and powers under this
Agreement and the other Loan Documents as any other Lender and may exercise
the same as though it were not Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include GE Capital in its
individual capacity. GE Capital and its Affiliates may lend money to,
invest in, and generally engage in any kind of business with, any Credit
Party, any of their Affiliates and any Person who may do business with or
own securities of any Credit Party or any such Affiliate, all as if GE
Capital were not Agent and without any duty to account therefor to Lenders.
GE Capital and its Affiliates may accept fees and other consideration from
any Credit Party for services in connection with this Agreement or
otherwise without having to account for the same to Lenders. Each Lender
acknowledges the potential conflict of interest between GE Capital as a
Lender holding disproportionate interests in the Loans and GE Capital as Agent.
9.5 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon Agent or any other Lender and based
on the Financial Statements referred to in Section 3.4(a) and such other
documents and information as it has deemed appropriate, made its own credit
and financial analysis of the Credit Parties and its own decision to enter
into this Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement. Each Lender acknowledges the potential conflict of
interest of each other Lender as a result of Lenders holding
disproportionate interests in the Loans, and expressly consents to, and
waives any claim based upon, such conflict of interest.
9.6 Indemnification. Lenders agree to indemnify Agent (to the
extent not reimbursed by Credit Parties and without limiting the
obligations of Borrower hereunder), ratably according to their respective
Pro Rata Shares, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against Agent in any way relating to or arising
out of this Agreement or any other Loan Document or any action taken or
omitted to be taken by Agent in connection therewith; provided, that no
Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from Agent's gross negligence or willful
misconduct. Without limiting the foregoing, each Lender agrees to reimburse
Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including reasonable counsel fees) incurred by Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement and each other Loan Document, to the
extent that Agent is not reimbursed for such expenses by Credit Parties.
9.7 Successor Agent. Agent may resign at any time by giving not
less than 30 days' prior written notice thereof to Lenders and Borrower.
Upon any such resignation, the Requisite Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so
appointed by the Requisite Lenders and shall have accepted such appointment
within 30 days after the resigning Agent's giving notice of resignation,
then the resigning Agent may, on behalf of Lenders, appoint a successor
Agent, which shall be a Lender, if a Lender is willing to accept such
appointment, or otherwise shall be a commercial bank or financial
institution or a subsidiary of a commercial bank or financial institution
if such commercial bank or financial institution is organized under the
laws of the United States of America or of any State thereof and has a
combined capital and surplus of at least $300,000,000. If no successor
Agent has been appointed pursuant to the foregoing, within 30 days after
the date such notice of resignation was given by the resigning Agent, such
resignation shall become effective and the Requisite Lenders shall
thereafter perform all the duties of Agent hereunder until such time, if
any, as the Requisite Lenders appoint a successor Agent as provided above.
Any successor Agent appointed by Requisite Lenders hereunder shall be
subject to the approval of Borrower, such approval not to be unreasonably
withheld or delayed; provided that such approval shall not be required if a
Default or an Event of Default has occurred and is continuing. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall succeed to and become vested with all the rights,
powers, privileges and duties of the resigning Agent. Upon the earlier of
the acceptance of any appointment as Agent hereunder by a successor Agent
or the effective date of the resigning Agent's resignation, the resigning
Agent shall be discharged from its duties and obligations under this
Agreement and the other Loan Documents, except that any indemnity rights or
other rights in favor of such resigning Agent shall continue. After any
resigning Agent's resignation hereunder, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was acting as Agent under this Agreement and the other Loan
Documents.
9.8 Setoff and Sharing of Payments. In addition to any rights now
or hereafter granted under applicable law and not by way of limitation of
any such rights, upon the occurrence and during the continuance of any
Event of Default and subject to Section 9.9(f), each Lender is hereby
authorized at any time or from time to time, without notice to any Credit
Party or to any other Person, any such notice being hereby expressly
waived, to offset and to appropriate and to apply any and all balances held
by it at any of its offices for the account of Borrower or any Guarantor
(regardless of whether such balances are then due to Borrower or any
Guarantor) and any other properties or assets at any time held or owing by
that Lender or that holder to or for the credit or for the account of
Borrower or any Guarantor against and on account of any of the Obligations
that are not paid when due. Any Lender exercising a right of setoff or
otherwise receiving any payment on account of the Obligations in excess of
its Pro Rata Share thereof shall purchase for cash (and the other Lenders
or holders shall sell) such participations in each such other Lender's or
holder's Pro Rata Share of the Obligations as would be necessary to cause
such Lender to share the amount so offset or otherwise received with each
other Lender or holder in accordance with their respective Pro Rata Shares,
(other than offset rights exercised by any Lender with respect to Sections
1.11, 1.13 or 1.14). Borrower and each Guarantor agrees, to the fullest
extent permitted by law, that (a) any Lender may exercise its right to
offset with respect to amounts in excess of its Pro Rata Share of the
Obligations and may sell participations in such amounts so offset to other
Lenders and holders and (b) any Lender so purchasing a participation in the
Loans made or other Obligations held by other Lenders or holders may
exercise all rights of offset, bankers' lien, counterclaim or similar
rights with respect to such participation as fully as if such Lender or
holder were a direct holder of the Loans and the other Obligations in the
amount of such participation. Notwithstanding the foregoing, if all or any
portion of the offset amount or payment otherwise received is thereafter
recovered from the Lender that has exercised the right of offset, the
purchase of participations by that Lender shall be rescinded and the
purchase price restored without interest.
9.9 Advances; Payments; Non-Funding Lenders; Information; Actions
in Concert.
(a) Advances; Payments.
(i) Agent shall notify Revolving Lenders, promptly after
receipt of a Notice of Revolving Advance and in any event prior to 1:00
p.m. (New York time) on the date such Notice of Revolving Advance is
received, by telecopy, telephone or other similar form of transmission.
Each Revolving Lender shall make the amount of such Lender's Pro Rata Share
of such Revolving Credit Advance available to Agent in same day funds by
wire transfer to Agent's account as set forth in Annex H not later than
3:00 p.m. (New York time) on the requested funding date, in the case of an
Index Rate Loan and not later than 11:00 a.m. (New York time) on the
requested funding date in the case of a LIBOR Loan. After receipt of such
wire transfers (or, in the Agent's sole discretion, before receipt of such
wire transfers), subject to the terms hereof, Agent shall make the
requested Revolving Credit Advance to Borrower. All payments by each
Revolving Lender shall be made without setoff, counterclaim or deduction of
any kind.
(ii) On the 2nd Business Day of each calendar week or
more frequently at Agent's election (each, a "Settlement Date"), Agent
shall advise each Lender by telephone, or telecopy of the amount of such
Lender's Pro Rata Share of principal, interest and Fees paid for the
benefit of Lenders with respect to each applicable Loan. Provided that each
Lender has funded all payments and Advances required to be made by it and
purchased all participations required to be purchased by it under this
Agreement and the other Loan Documents as of such Settlement Date, Agent
shall pay to each Lender such Lender's Pro Rata Share of principal,
interest and Fees paid by Borrower since the previous Settlement Date for
the benefit of such Lender on the Loans held by it. To the extent that any
Lender (a "Non-Funding Lender") has failed to fund all such payments and
Advances or failed to fund the purchase of all such participations, Agent
shall be entitled to set off the funding short-fall against that
Non-Funding Lender's Pro Rata Share of all payments received from Borrower.
Such payments shall be made by wire transfer to such Lender's account (as
specified by such Lender in Annex H or the applicable Assignment Agreement)
not later than 2:00 p.m. (New York time) on the next Business Day following
each Settlement Date.
(b) Availability of Lender's Pro Rata Share. Agent may assume
that each Revolving Lender will make its Pro Rata Share of each Revolving
Credit Advance available to Agent on each funding date. If such Pro Rata
Share is not, in fact, paid to Agent by such Revolving Lender when due,
Agent will be entitled to recover such amount on demand from such Revolving
Lender without setoff, counterclaim or deduction of any kind. If any
Revolving Lender fails to pay the amount of its Pro Rata Share forthwith
upon Agent's demand, Agent shall promptly notify Borrower and Borrower
shall immediately repay such amount to Agent. Nothing in this Section
9.9(b) or elsewhere in this Agreement or the other Loan Documents shall be
deemed to require Agent to advance funds on behalf of any Revolving Lender
or to relieve any Revolving Lender from its obligation to fulfill its
Commitments hereunder or to prejudice any rights that Borrower may have
against any Revolving Lender as a result of any default by such Revolving
Lender hereunder. To the extent that Agent advances funds to Borrower on
behalf of any Revolving Lender and is not reimbursed therefor on the same
Business Day as such Advance is made, Agent shall be entitled to retain for
its account all interest accrued on such Advance until reimbursed by the
applicable Revolving Lender.
(c) Return of Payments.
(i) If Agent pays an amount to a Lender under this Agreement
in the belief or expectation that a related payment has been or will be
received by Agent from Borrower and such related payment is not received by
Agent, then Agent will be entitled to recover such amount from such Lender
on demand without setoff, counterclaim or deduction of any kind.
(ii) If Agent determines at any time that any amount received
by Agent under this Agreement must be returned to Borrower or paid to any
other Person pursuant to any insolvency law or otherwise, then,
notwithstanding any other term or condition of this Agreement or any other
Loan Document, Agent will not be required to distribute any portion thereof
to any Lender. In addition, each Lender will repay to Agent on demand any
portion of such amount that Agent has distributed to such Lender, together
with interest at such rate, if any, as Agent is required to pay to Borrower
or such other Person, without setoff, counterclaim or deduction of any
kind.
(d) Non-Funding Lenders. The failure of any Non-Funding
Lender to make any Revolving Credit Advance or any payment required by it
hereunder, by it on the date specified therefor shall not relieve any other
Lender (each such other Revolving Lender, an "Other Lender") of its
obligations to make such Advance or purchase such participation on such
date, but neither any Other Lender nor Agent shall be responsible for the
failure of any Non-Funding Lender to make an Advance, purchase a
participation or make any other payment required hereunder. Notwithstanding
anything set forth herein to the contrary, a Non-Funding Lender shall not
have any voting or consent rights under or with respect to any Loan
Document or constitute a "Lender" or a "Revolving Lender" (or be included
in the calculation of "Requisite Lenders" hereunder) for any voting or
consent rights under or with respect to any Loan Document. At Borrower's
request, Agent or a Person acceptable to Agent shall have the right with
Agent's consent and in Agent's sole discretion (but shall have no
obligation) to purchase from any Non-Funding Lender, and each Non-Funding
Lender agrees that it shall, at Agent's request, sell and assign to Agent
or such Person, all of the Commitments of that Non-Funding Lender for an
amount equal to the principal balance of all Loans held by such Non-Funding
Lender and all accrued interest and fees with respect thereto through the
date of sale, such purchase and sale to be consummated pursuant to an
executed Assignment Agreement.
(e) Dissemination of Information. Agent shall use reasonable
efforts to provide Lenders with any notice of Default or Event of Default
received by Agent from, or delivered by Agent to, any Credit Party, with
notice of any Event of Default of which Agent has actually become aware and
with notice of any action taken by Agent following any Event of Default;
provided, that Agent shall not be liable to any Lender for any failure to
do so, except to the extent that such failure is attributable to Agent's
gross negligence or willful misconduct. Lenders acknowledge that Borrower
is required to provide Financial Statements and Collateral Reports to
Lenders in accordance with Annexes E and F hereto and agree that Agent
shall have no duty to provide the same to Lenders.
(f) Actions in Concert. Anything in this Agreement to the
contrary notwithstanding, each Lender hereby agrees with each other Lender
that no Lender shall take any action to protect or enforce its rights
arising out of this Agreement or the Notes (including exercising any rights
of setoff) without first obtaining the prior written consent of Agent and
Requisite Lenders, it being the intent of Lenders that any such action to
protect or enforce rights under this Agreement and the Notes shall be taken
in concert and at the direction or with the consent of Agent or Requisite
Lenders.
10. SUCCESSORS AND ASSIGNS
10.1 Successors and Assigns. This Agreement and the other
Loan Documents shall be binding on and shall inure to the benefit of each
Credit Party, Agent, Lenders and their respective successors and assigns
(including, in the case of any Credit Party, a debtor-in-possession on
behalf of such Credit Party), except as otherwise provided herein or
therein. No Credit Party may assign, transfer, hypothecate or otherwise
convey its rights, benefits, obligations or duties hereunder or under any
of the other Loan Documents without the prior express written consent of
Agent and Lenders. Any such purported assignment, transfer, hypothecation
or other conveyance by any Credit Party without the prior express written
consent of Agent and Lenders shall be void. The terms and provisions of
this Agreement are for the purpose of defining the relative rights and
obligations of each Credit Party, Agent and Lenders with respect to the
transactions contemplated hereby and no Person shall be a third party
beneficiary of any of the terms and provisions of this Agreement or any of
the other Loan Documents.
11. MISCELLANEOUS
11.1 Complete Agreement; Modification of Agreement. The Loan
Documents constitute the complete agreement between the parties with
respect to the subject matter thereof and may not be modified, altered or
amended except as set forth in Section 11.2. Any letter of interest,
commitment letter or fee letter (including the Commitment Letter and the
Prior Letter, but excluding the GE Capital Fee Letter) between any Credit
Party and Agent or any Lender or any of their respective Affiliates,
predating this Agreement and relating to a financing of substantially
similar form, purpose or effect shall be superseded by this Agreement.
11.2 Amendments and Waivers.
(a) Except for actions expressly permitted to be taken by
Agent, no amendment, modification, termination or waiver of any provision
of this Agreement or any other Loan Document, or any consent to any
departure by any Credit Party therefrom, shall in any event be effective
unless the same shall be in writing and signed by Agent and Holdings,
Parent, and Borrower, and by Requisite Lenders or all affected Lenders, as
applicable. Except as set forth in clauses (b) and (c) below, all such
amendments, modifications, terminations or waivers requiring the consent of
any Lenders shall require the written consent of Requisite Lenders.
(b) No amendment, modification, termination or waiver of or
consent with respect to any provision of this Agreement that waives
compliance with the conditions precedent set forth in Section 2.2 to the
making of any Loan or the incurrence of any Letter of Credit Obligations
shall be effective unless the same shall be in writing and signed by Agent,
Requisite Lenders, Holdings, Parent, and Borrower. Notwithstanding anything
contained in this Agreement to the contrary, no waiver or consent with
respect to any Default or any Event of Default shall be effective for
purposes of the conditions precedent to the making of Loans or the
incurrence of Letter of Credit Obligations set forth in Section 2.2 unless
the same shall be in writing and signed by Agent, Requisite Lenders and
Borrower.
(c) No amendment, modification, termination or waiver shall,
unless in writing and signed by Agent and each Lender directly affected
thereby: (i) increase the principal amount of any Lender's Commitment
(which action shall be deemed to directly affect all Lenders); (ii) reduce
the principal of, rate of interest on or Fees payable with respect to any
Loan or Letter of Credit Obligations of any affected Lender; (iii) extend
any scheduled payment date (other than payment dates of mandatory
prepayments under Section 1.3(b)(ii)) or final maturity date of the
principal amount of any Loan of any affected Lender; (iv) waive, forgive,
defer, extend or postpone any payment of interest or Fees as to any
affected Lender; (v) release any Guaranty or, except as otherwise permitted
herein or in the other Loan Documents, release, or permit any Credit Party
to sell or otherwise dispose of, any Collateral with a value exceeding
$1,000,000 in the aggregate (which action shall be deemed to directly
affect all Lenders); (vi) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Loans that shall be required
for Lenders or any of them to take any action hereunder; and (vii) amend or
waive this Section 11.2 or the definitions of the term "Requisite Lenders"
insofar as such definition affects the substance of this Section 11.2.
Furthermore, no amendment, modification, termination or waiver affecting
the rights or duties of Agent or L/C Issuer under this Agreement or any
other Loan Document shall be effective unless in writing and signed by
Agent or L/C Issuer, as the case may be, in addition to Lenders required
hereinabove to take such action. Each amendment, modification, termination
or waiver shall be effective only in the specific instance and for the
specific purpose for which it was given. No amendment, modification,
termination or waiver shall be required for Agent to take additional
Collateral pursuant to any Loan Document. No amendment, modification,
termination or waiver of any provision of any Note shall be effective
without the written concurrence of the holder of that Note. No notice to or
demand on any Credit Party in any case shall entitle such Credit Party or
any other Credit Party to any other or further notice or demand in similar
or other circumstances. Any amendment, modification, termination, waiver or
consent effected in accordance with this Section 11.2 shall be binding upon
each holder of the Notes at the time outstanding and each future holder of
the Notes.
(d) If, in connection with any proposed amendment,
modification, waiver or termination (a "Proposed Change") requiring the
consent of all affected Lenders, the consent of Requisite Lenders is
obtained, but the consent of other Lenders is not obtained (any such Lender
whose consent is not obtained being referred to as a "Non-Consenting
Lender") then, so long as Agent is not a Non-Consenting Lender, at
Borrower's request Agent, or a Person reasonably acceptable to Agent, shall
have the right with Agent's consent and in Agent's sole discretion (but
shall have no obligation) to purchase from such Non-Consenting Lenders, and
such Non-Consenting Lenders agree that they shall, upon Agent's request,
sell and assign to Agent or such Person, all of the Commitments of such
Non-Consenting Lenders for an amount equal to the principal balance of all
Loans held by the Non-Consenting Lenders and all accrued interest and Fees
with respect thereto through the date of sale, such purchase and sale to be
consummated pursuant to an executed Assignment Agreement.
(e) Upon payment in full in cash and performance of all of
the Obligations (other than indemnification Obligations), termination of
the Commitments and a release of all claims against Agent and Lenders, and
so long as no suits, actions proceedings, or claims are pending or
threatened against any Indemnified Person asserting any damages, losses or
liabilities that are Indemnified Liabilities, Agent shall deliver to
Borrower termination statements, mortgage releases and other documents
necessary or appropriate to evidence the termination of the Liens securing
payment of the Obligations.
11.3 Fees and Expenses. Borrower shall reimburse (i) Agent
for all fees, costs and expenses (including the reasonable fees and
expenses of all of its counsel, advisors, consultants and auditors) and
(ii) Agent (and, with respect to clauses (c) and (d) below, all Lenders)
for all fees, costs and expenses, including the reasonable fees, costs and
expenses of counsel or other advisors (including environmental and
management consultants and appraisers) incurred in connection with the
negotiation and preparation of the Loan Documents and incurred in
connection with:
(a) the forwarding to Borrower or any other Person on behalf
of Borrower by Agent of the proceeds of any Loan (including a wire transfer
fee of $25 per wire transfer);
(b) any amendment, modification or waiver of, or consent with
respect to, or termination of, any of the Loan Documents or Related
Transactions Documents or advice in connection with the syndication and
administration of the Loans made pursuant hereto or its rights hereunder or
thereunder;
(c) any litigation, contest, dispute, suit, proceeding or
action (whether instituted by Agent, any Lender, Borrower or any other
Person and whether as a party, witness or otherwise) in any way relating to
the Collateral, any of the Loan Documents or any other agreement to be
executed or delivered in connection herewith or therewith, including any
litigation, contest, dispute, suit, case, proceeding or action, and any
appeal or review thereof, in connection with a case commenced by or against
Borrower or any other Person that may be obligated to Agent by virtue of
the Loan Documents, including any such litigation, contest, dispute, suit,
proceeding or action arising in connection with any work-out or
restructuring of the Loans during the pendency of one or more Events of
Default; provided that in the case of reimbursement of counsel for Lenders
other than Agent, such reimbursement shall be limited to one counsel for
all such Lenders; provided, further, that no Person shall be entitled to
reimbursement under this clause (c) in respect of any litigation, contest,
dispute, suit, proceeding or action to the extent any of the foregoing
results from such Person's gross negligence or willful misconduct;
(d) any attempt to enforce any remedies of Agent or any
Lender against any or all of the Credit Parties or any other Person that
may be obligated to Agent or any Lender by virtue of any of the Loan
Documents, including any such attempt to enforce any such remedies in the
course of any work-out or restructuring of the Loans during the pendency of
one or more Events of Default; provided, that in the case of reimbursement
of counsel for Lenders other than Agent, such reimbursement shall be
limited to one counsel for all such Lenders;
(e) any workout or restructuring of the Loans during the
pendency of one or more Events of Default; and
(f) efforts to (i) monitor the Loans or any of the other
Obligations, (ii) evaluate, observe or assess any of the Credit Parties or
their respective affairs, and (iii) verify, protect, evaluate, assess,
appraise, collect, sell, liquidate or otherwise dispose of any of the
Collateral;
including, as to each of clauses (a) through (f) above, all reasonable
attorneys' and other professional and service providers' fees arising from
such services and other advice, assistance or other representation,
including those in connection with any appellate proceedings, and all
expenses, costs, charges and other fees incurred by such counsel and others
in connection with or relating to any of the events or actions described in
this Section 11.3, all of which shall be payable, on demand, by Borrower to
Agent. Without limiting the generality of the foregoing, such expenses,
costs, charges and fees may include: fees, costs and expenses of
accountants, environmental advisors, appraisers, investment bankers,
management and other consultants and paralegals; court costs and expenses;
photocopying and duplication expenses; court reporter fees, costs and
expenses; long distance telephone charges; air express charges; telegram or
telecopy charges; secretarial overtime charges; and expenses for travel,
lodging and food paid or incurred in connection with the performance of
such legal or other advisory services.
11.4 No Waiver. Agent's or any Lender's failure, at any time
or times, to require strict performance by the Credit Parties of any
provision of this Agreement or any other Loan Document shall not waive,
affect or diminish any right of Agent or such Lender thereafter to demand
strict compliance and performance herewith or therewith. Any suspension or
waiver of an Event of Default shall not suspend, waive or affect any other
Event of Default whether the same is prior or subsequent thereto and
whether the same or of a different type. Subject to the provisions of
Section 11.2, none of the undertakings, agreements, warranties, covenants
and representations of any Credit Party contained in this Agreement or any
of the other Loan Documents and no Default or Event of Default by any
Credit Party shall be deemed to have been suspended or waived by Agent or
any Lender, unless such waiver or suspension is by an instrument in writing
signed by an officer of or other authorized employee of Agent and the
applicable Requisite Lenders and directed to Borrower specifying such
suspension or waiver.
11.5 Remedies. Agent's and Lenders' rights and remedies under
this Agreement shall be cumulative and nonexclusive of any other rights and
remedies that Agent or any Lender may have under any other agreement,
including the other Loan Documents, by operation of law or otherwise.
Recourse to the Collateral shall not be required.
11.6 Severability. Wherever possible, each provision of this
Agreement and the other Loan Documents shall be interpreted in such a
manner as to be effective and valid under applicable law, but if any
provision of this Agreement or any other Loan Document shall be prohibited
by or invalid under applicable law, such provision shall be ineffective
only to the extent of such prohibition or invalidity, without invalidating
the remainder of such provision or the remaining provisions of this
Agreement or such other Loan Document.
11.7 Conflict of Terms. Except as otherwise provided in this
Agreement or any of the other Loan Documents by specific reference to the
applicable provisions of this Agreement, if any provision contained in this
Agreement conflicts with any provision in any of the other Loan Documents,
the provision contained in this Agreement shall govern and control.
11.8 Confidentiality. Agent and each Lender agree to use
commercially reasonable efforts (equivalent to the efforts Agent or such
Lender applies to maintain the confidentiality of its own confidential
information) to maintain as confidential all confidential information
provided to them by the Credit Parties and designated as confidential for a
period of 2 years following receipt thereof, except that Agent and each
Lender may disclose such information (a) to Persons employed or engaged by
Agent or such Lender in evaluating, approving, structuring or administering
the Loans and the Commitments; (b) to any bona fide assignee or participant
or potential assignee or participant that has agreed to comply with the
covenant contained in this Section 11.8 (and any such bona fide assignee or
participant or potential assignee or participant may disclose such
information to Persons employed or engaged by them as described in clause
(a) above); (c) as required or requested by any Governmental Authority or
reasonably believed by Agent or such Lender to be compelled by any court
decree, subpoena or legal or administrative order or process; (d) as, on
the advise of Agent's or such Lender's counsel, is required by law; (e) in
connection with the exercise of any right or remedy under the Loan
Documents or in connection with any Litigation to which Agent or such
Lender is a party; or (f) that ceases to be confidential through no fault
of Agent or any Lender.
11.9 GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY
OF THE LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THE LOAN DOCUMENTS AND THE
OBLIGATIONS SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND PERFORMED IN THAT STATE AND ANY APPLICABLE LAWS OF THE UNITED
STATES OF AMERICA. EACH CREDIT PARTY HEREBY CONSENTS AND AGREES THAT THE
STATE OR FEDERAL COURTS LOCATED IN XXX XXXX XXXXXX, XXXX XX XXX XXXX, XXX
XXXX SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR
DISPUTES BETWEEN THE CREDIT PARTIES, AGENT AND LENDERS PERTAINING TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY MATTER ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS;
PROVIDED, THAT AGENT, LENDERS AND THE CREDIT PARTIES ACKNOWLEDGE THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE
OF NEW YORK COUNTY AND; PROVIDED, FURTHER THAT NOTHING IN THIS AGREEMENT
SHALL BE DEEMED OR OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT OR TAKING
OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL
OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER IN FAVOR OF AGENT. EACH CREDIT PARTY EXPRESSLY SUBMITS
AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT
COMMENCED IN ANY SUCH COURT, AND EACH CREDIT PARTY HEREBY WAIVES ANY
OBJECTION THAT SUCH CREDIT PARTY MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO
THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY
SUCH COURT. EACH CREDIT PARTY HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH CREDIT PARTY AT THE
ADDRESS SET FORTH IN ANNEX I OF THIS AGREEMENT AND THAT SERVICE SO MADE
SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH CREDIT PARTY'S ACTUAL
RECEIPT THEREOF OR 3 BUSINESS DAYS AFTER DEPOSIT IN THE UNITED STATES
MAILS, PROPER POSTAGE PREPAID.
11.10 Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval,
declaration or other communication shall or may be given to or served upon
any of the parties by any other parties, or whenever any of the parties
desires to give or serve upon any other parties any communication with
respect to this Agreement, each such notice, demand, request, consent,
approval, declaration or other communication shall be in writing and shall
be deemed to have been validly served, given or delivered (a) upon the
earlier of actual receipt and 3 Business Days after deposit in the United
States Mail, registered or certified mail, return receipt requested, with
proper postage prepaid, (b) upon transmission, when sent by telecopy or
other similar facsimile transmission (with such telecopy or facsimile
promptly confirmed by delivery of a copy by personal delivery or United
States Mail as otherwise provided in this Section 11.10); (c) 1 Business
Day after deposit with a reputable overnight courier with all charges
prepaid or (d) when delivered, if hand-delivered by messenger, all of which
shall be addressed to the party to be notified and sent to the address or
facsimile number indicated in Annex I or to such other address (or
facsimile number) as may be substituted by notice given as herein provided.
The giving of any notice required hereunder may be waived in writing by the
party entitled to receive such notice. Failure or delay in delivering
copies of any notice, demand, request, consent, approval, declaration or
other communication to any Person (other than Borrower or Agent) designated
in Annex I to receive copies shall in no way adversely affect the
effectiveness of such notice, demand, request, consent, approval,
declaration or other communication.
11.11 Section Titles. The Section titles and Table of Contents
contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between
the parties hereto.
11.12 Counterparts. This Agreement may be executed in any number
of separate counterparts, each of which shall collectively and separately
constitute one agreement.
11.13 WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION
WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY
RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH
APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES),
THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS
OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO
RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG
AGENT, LENDERS AND ANY CREDIT PARTY ARISING OUT OF, CONNECTED WITH, RELATED
TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION
WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
RELATED THERETO.
11.14 Press Releases and Related Matters. Each Credit Party
executing this Agreement agrees that neither it nor its Affiliates will in
the future issue any press releases or other public disclosure using the
name of GE Capital or its affiliates (except for the appearance of the name
GE Capital or any of its affiliates in the text of any publications or
articles produced by any Credit Party in the ordinary course of business
and unrelated to the Loan Documents or the transactions contemplated
thereby) referring to this Agreement, the other Loan Documents or the
Related Transactions Documents without at least 2 Business Days' prior
notice to GE Capital and without the prior written consent of GE Capital
unless (and only to the extent that) such Credit Party or Affiliate is
required to do so under law and then, in any event, such Credit Party or
Affiliate will consult with GE Capital before issuing such press release or
other public disclosure. Each Credit Party consents to the publication by
Agent or any Lender of a tombstone or similar advertising material relating
to the financing transactions contemplated by this Agreement. Agent or such
Lender shall provide a draft of any such tombstone or similar advertising
material to each Credit Party for review and comment prior to the
publication thereof. Agent reserves the right to provide to industry trade
organizations information necessary and customary for inclusion in league
table measurements.
11.15 Reinstatement. This Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or
against Borrower for liquidation or reorganization, should Borrower become
insolvent or make an assignment for the benefit of any creditor or
creditors or should a receiver or trustee be appointed for all or any
significant part of Borrower's assets, and shall continue to be effective
or to be reinstated, as the case may be, if at any time payment and
performance of the Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee of the Obligations, whether as a
"voidable preference," "fraudulent conveyance," or otherwise, all as though
such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned,
the Obligations shall be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
11.16 Advice of Counsel. Each of the parties represents to each
other party hereto that it has discussed this Agreement and, specifically,
the provisions of Sections 11.9 and 11.13, with its counsel.
11.17 No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement
shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any provisions of this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed as of
the date first written above.
THE NEW YORK LAW PUBLISHING COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
AMERICAN LAWYER MEDIA HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
AMERICAN LAWYER MEDIA, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Duly Authorized Signatory
ANNEX A (Recitals)
to
CREDIT AGREEMENT
DEFINITIONS
Capitalized terms used in the Loan Documents shall have (unless
otherwise provided elsewhere in the Loan Documents) the following
respective meanings and all references to Sections, Exhibits, Schedules or
Annexes in the following definitions shall refer to Sections, Exhibits,
Schedules or Annexes of or to the Agreement:
"Account Debtor" means any Person who may become obligated to any
Credit Party under, with respect to, or on account of, an Account, Chattel
Paper or General Intangibles (including a Payment Intangible).
"Accounting Changes" has the meaning ascribed thereto in Annex G.
"Accounts" means all "accounts," as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, including (a)
all accounts receivable, other receivables, book debts and other forms of
obligations (other than forms of obligations evidenced by Chattel Paper or
Instruments)(including any such obligations that may be characterized as an
account or contract right under the Code), (b) all of each Credit Party's
rights in, to and under all purchase orders or receipts for goods or
services, (c) all of each Credit Party's rights to any goods represented by
any of the foregoing (including unpaid sellers' rights of rescission,
replevin, reclamation and stoppage in transit and rights to returned,
reclaimed or repossessed goods), (d) all rights to payment due to any
Credit Party for property sold, leased, licensed, assigned or otherwise
disposed of, for a policy of insurance issued or to be issued, for a
secondary obligation incurred or to be incurred, for energy provided or to
be provided, for the use or hire of a vessel under a charter or other
contract, arising out of the use of a credit card or charge card, or for
services rendered or to be rendered by such Credit Party or in connection
with any other transaction (whether or not yet earned by performance on the
part of such Credit Party), (e) all health care insurance receivables and
(f) all collateral security of any kind, given by any Account Debtor or any
other Person with respect to any of the foregoing.
"Adjusted EBITDA" means, with respect to any fiscal period, the
consolidated EBITDA of Holdings and its Subsidiaries for such period less
such portion of such EBITDA that is attributable to (i) any transactions
between any Credit Party and Xxx.xxx in the amounts set forth on Disclosure
Schedule 6.1(c) or (ii) AFE Revenue.
"Advance" means any Revolving Credit Advance.
"AFE Revenue" shall mean, with respect to any fiscal period, the
consolidated revenue of the Credit Parties for such period to the extent
such revenue arose from any AFE Transactions.
"AFE Transactions" shall mean any transaction in which a Credit
Party exchanges advertising services for Stock of an advertiser.
"Affiliate" means, with respect to any Person, (a) each Person
that, directly or indirectly, owns or controls, whether beneficially, or as
a trustee, guardian or other fiduciary, 10% or more of the Stock having
ordinary voting power in the election of directors of such Person, and (b)
each Person that controls, is controlled by or is under common control with
such Person. For the purposes of this definition, "control" of a Person
shall mean the possession, directly or indirectly, of the power to direct
or cause the direction of its management or policies, whether through the
ownership of voting securities, by contract or otherwise; provided,
however, that the term "Affiliate" shall specifically exclude Agent and
each Lender.
"Agent" means GE Capital in its capacity as Agent for Lenders or
its successor appointed pursuant to Section 9.7.
"Agreement" means the Credit Agreement by and among Borrower, the
other Credit Parties party thereto, GE Capital, as Agent and Lender and the
other Lenders from time to time party thereto, as the same may be amended,
supplemented, restated or otherwise modified from time to time.
"Appendices" has the meaning ascribed to it in the recitals to the
Agreement.
"Applicable Margins" means collectively the Applicable Revolver
Index Margin, and the Applicable Revolver LIBOR Margin.
"Applicable Revolver Index Margin" means the per annum interest
rate margin from time to time in effect and payable in addition to the
Index Rate applicable to the Revolving Loan, as determined by reference to
Section 1.5(a).
"Applicable Revolver LIBOR Margin" means the per annum interest
rate from time to time in effect and payable in addition to the LIBOR Rate
applicable to the Revolving Loan, as determined by reference to Section
1.5(a).
"Assignment Agreement" has the meaning ascribed to it in Section
9.1(a).
"Bankruptcy Code" means the provisions of Title 11 of the United
States Code, 11 X.X.X.xx.xx. 101 et seq.
"Blocked Accounts" has the meaning ascribed to it in Annex C.
"Borrower" has the meaning ascribed thereto in the preamble to the
Agreement.
"Borrower Pledge Agreement" means the Borrower Pledge and Security
Agreement of even date herewith executed by Borrower in favor of Agent, on
behalf of itself and Lenders, pledging all Stock of its first-tier Domestic
Subsidiaries and 65% of the Stock of its first-tier Foreign Subsidiaries,
if any, and all Intercompany Notes owing to or held by it.
"Business Day" means any day that is not a Saturday, a Sunday or a
day on which banks are required or permitted to be closed in the State of
New York and in reference to LIBOR Loans shall mean any such day that is
also a LIBOR Business Day.
"Capital Expenditures" means, with respect to any Person, all
expenditures (by the expenditure of cash or the incurrence of Indebtedness)
by such Person during any measuring period for any fixed assets or
improvements or for replacements, substitutions or additions thereto, that
have a useful life of more than one year and that are required to be or may
be capitalized under GAAP.
"Capital Lease" means, with respect to any Person, any lease of
any property (whether real, personal or mixed) by such Person as lessee
that, in accordance with GAAP, would be required to be classified and
accounted for as a capital lease on a balance sheet of such Person.
"Capital Lease Obligation" means, with respect to any Capital
Lease of any Person, the amount of the obligation of the lessee thereunder
that, in accordance with GAAP, would appear on a balance sheet of such
lessee in respect of such Capital Lease.
"Cash Collateral Account" has the meaning ascribed to it Annex B.
"Cash Equivalents" has the meaning ascribed to it in Annex B.
"Cash Management Systems" has the meaning ascribed to it in
Section 1.6.
"Change of Control" means (a) the Permitted Holders shall cease to
own on a fully diluted basis in the aggregate at least 51% of the economic
and voting interest in Holdings' Stock of all classes, (b) the Parent shall
cease to be a direct wholly-owned Subsidiary of Holdings, (c) Borrower
shall cease to be a direct wholly-owned Subsidiary of Parent, or (d) a
"change of control" or similar event shall occur under any of the Parent
Senior Note Documents or the Holdings Senior Discount Note Documents.
"Charges" means all federal, state, county, city, municipal,
local, foreign or other governmental taxes (including taxes owed to the
PBGC at the time due and payable), levies, assessments, charges, liens,
claims or encumbrances upon or relating to (a) the Collateral, (b) the
Obligations, (c) the employees, payroll, income or gross receipts of any
Credit Party, (d) any Credit Party's ownership or use of any properties or
other assets, or (e) any other aspect of any Credit Party's business.
"Chattel Paper" means any "chattel paper," as such term is defined
in the Code, including electronic chattel paper, now owned or hereafter
acquired by any Credit Party, wherever located.
"Closing Date" means May 1, 2002.
"Closing Checklist" means the schedule, including all appendices,
exhibits or schedules thereto, listing certain documents and information to
be delivered in connection with the Agreement, the other Loan Documents and
the transactions contemplated thereunder, substantially in the form
attached hereto as Annex D.
"Code" means the Uniform Commercial Code as the same may, from
time to time, be enacted and in effect in the State of New York; provided
that to the extent that the Code is used to define any term herein or in
any other Loan Document and such term is defined differently in different
Articles or Divisions of the Code, the definition of such term contained in
Article 9 shall govern; provided further that in the event that, by reason
of mandatory provisions of law, any or all of the attachment, perfection or
priority of, or remedies with respect to, Agent's or any Lender's Lien on
any Collateral is governed by the Uniform Commercial Code as enacted and in
effect in a jurisdiction other than the State of New York, the term "Code"
shall mean the Uniform Commercial Code as enacted and in effect in such
other jurisdiction solely for purposes of the provisions thereof relating
to such attachment, perfection, priority or remedies and for purposes of
definitions related to such provisions.
"Collateral" means the property covered by the Security Agreement,
and the other Collateral Documents and any other property, real or
personal, tangible or intangible, now existing or hereafter acquired, that
may at any time be or become subject to a security interest or Lien in
favor of Agent, on behalf of itself and Lenders, to secure the Obligations.
"Collateral Account" means an account established by Borrower in
its name at a bank reasonably satisfactory to Agent, which account shall be
subject to a cash collateral account agreement, in form and substance
satisfactory to Agent, providing, among other things, that (i) Agent shall
have sole dominion and control over such account and the funds on deposit
therein, (ii) all amounts on deposit in such account are subject to a first
priority and perfected security interest granted by Borrower in favor of
Agent for the benefit of itself and the Lenders to secure the Obligations,
and (iii) all amounts on deposit in such account shall be used in
accordance with Section 1.3(b)(iii).
"Collateral Documents" means the Security Agreement, the Pledge
Agreements, the Guaranties, the Trademark Security Agreement, the Copyright
Security Agreement and all similar agreements entered into guaranteeing
payment of, or granting a Lien upon property as security for payment of,
the Obligations.
"Collateral Reports" means the reports with respect to the
Collateral referred to in Annex F.
"Collection Account" means that certain account of Agent, account
number 000-000-00 in the name of Agent at Bankers Trust Company in New
York, New York ABA No. 021 001 033, or such other account as may be
specified in writing by Agent as the "Collection Account."
"Commitment Letter" means the commitment letter, dated March 28,
2002, issued by GE Capital with respect to its Revolving Loan Commitment
and accepted by Borrower.
"Commitment Termination Date" means the earliest of (a) May 1,
2007, (b) the date of termination of Lenders' obligations to make Advances
and to incur Letter of Credit Obligations or permit existing Loans to
remain outstanding pursuant to Section 8.2(b), and (c) the date of
indefeasible prepayment in full by Borrower of the Loans and the
cancellation and return (or stand-by guarantee) of all Letters of Credit or
the cash collateralization of all Letter of Credit Obligations pursuant to
Annex B, and the permanent reduction of the Commitments to zero dollars
($0).
"Commitments" means (a) as to any Lender, the aggregate of such
Lender's Revolving Loan Commitment as set forth on Annex J to the Agreement
or in the most recent Assignment Agreement executed by such Lender and (b)
as to all Lenders, the aggregate of all Lenders' Revolving Loan Commitments
which aggregate commitment shall be Forty Million Dollars ($40,000,000) on
the Closing Date, as to each of clauses (a) and (b), as such Commitments
may be reduced, amortized or adjusted from time to time in accordance with
the Agreement.
"Compliance Certificate" has the meaning ascribed to it in Annex E.
"Concentration Account" has the meaning ascribed to it in Annex C.
"Contracts" means all "contracts," as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, in any event,
including all contracts, undertakings, or agreements (other than rights
evidenced by Chattel Paper, Documents or Instruments) in or under which any
Credit Party may now or hereafter have any right, title or interest,
including any agreement relating to the terms of payment or the terms of
performance of any Account.
"Control Letter" means a letter agreement between Agent and (i)
the issuer of uncertificated securities with respect to uncertificated
securities in the name of any Credit Party, (ii) a securities intermediary
with respect to securities, whether certificated or uncertificated,
securities entitlements and other financial assets held in a securities
account in the name of any Credit Party, (iii) a futures commission
merchant or clearing house, as applicable, with respect to commodity
accounts and commodity contracts held by any Credit Party, whereby, among
other things, the issuer, securities intermediary or futures commission
merchant disclaims any security interest in the applicable financial
assets, acknowledges the Lien of Agent, on behalf of itself and Lenders, on
such financial assets, and agrees to follow the instructions or entitlement
orders of Agent without further consent by the affected Credit Party.
"Copyright License" means any and all rights now owned or
hereafter acquired by any Credit Party under any written agreement granting
any right to use any Copyright or Copyright registration.
"Copyright Security Agreements" means the Copyright Security
Agreements made in favor of Agent, on behalf of itself and Lenders, by each
applicable Credit Party.
"Copyrights" means all of the following now owned or hereafter
adopted or acquired by any Credit Party: (a) all copyrights and intangibles
of like nature (whether registered or unregistered), all registrations and
recordings thereof, and all applications in connection therewith, including
all registrations, recordings and applications in the United States
Copyright Office or in any similar office or agency of the United States,
any state or territory thereof, or any other country or any political
subdivision thereof, and (b) all reissues, extensions or renewals thereof.
"Credit Lyonnais Interest Rate Swap" means the $175,000,000
notional amount interest rate swap transaction between Parent, as floating
rate payer, and Credit Lyonnais New York Branch, as fixed rate payer,
entered into pursuant to that certain Confirmation, dated December 7, 2001,
between such parties and the ISDA Master Agreement, dated December 7, 2001,
between such parties, but such term shall exclude any amendment, extension,
renewal, refinancing or replacement of such transaction that has the effect
of increasing the notional amount of such transaction, extending the
expiration date for such transaction, reducing the fixed rate specified for
such transaction, increasing the floating rate spread for such transaction
or otherwise materially and adversely effects the Parent's rights,
obligations or remedies thereunder.
"Credit Lyonnais Letter of Credit" shall mean the Letter of Credit
issued by the L/C Issuer on or about the Closing Date to Credit Lyonnais
New York Branch to secure Parent's obligations under the Credit Lyonnais
Interest Rate Swap.
"Credit Parties" means Holdings and its Subsidiaries.
"Default" means any event that, with the passage of time or notice
or both, would, unless cured or waived, become an Event of Default.
"Default Rate" has the meaning ascribed to it in Section 1.5(d).
"Deposit Accounts" means all "deposit accounts" as such term is
defined in the Code, now or hereinafter held in the name of any Credit Party.
"Disbursement Accounts" has the meaning ascribed to it in Annex C.
"Disclosure Schedules" means the Schedules prepared by Borrower
and denominated as Disclosure Schedules 1.4 through 6.7 in the Index to the
Agreement.
"Documents" means all "documents," as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, wherever
located.
"Dollars" or "$" means lawful currency of the United States of America.
"Domestic Subsidiary" means each Subsidiary of Holdings that is
incorporated under the laws of the United States or any State or territory
thereof or the District of Columbia.
"EBITDA" means, with respect to any Person for any fiscal period,
without duplication, an amount equal to (a) consolidated net income of such
Person for such period, determined in accordance with GAAP, minus (b) to
the extent deducted in computing such net income, the sum of (i) income tax
credits, (ii) interest income, (iii) gain from extraordinary items for such
period, (iv) any aggregate net gain (but not any aggregate net loss) during
such period arising from the sale, exchange or other disposition of capital
assets by such Person (including any fixed assets, whether tangible or
intangible, all inventory sold in conjunction with the disposition of fixed
assets and all securities), (v) any other non-cash gains that have been
added in determining consolidated net income, and (vi) Foreign EBITDA, in
each case to the extent included in the calculation of consolidated net
income of such Person for such period in accordance with GAAP, but without
duplication, plus (c) the sum of (i) any provision for income taxes, (ii)
Interest Expense, (iii) loss from extraordinary items for such period, (iv)
the amount of non-cash charges (including depreciation and amortization)
for such period, (v) amortized debt discount for such period, (vi) the
fees, costs and expenses associated with the Revolving Loan, the
Refinancing and the Xxx.xxx Acquisition, and (vii) the amount of any
deduction to consolidated net income as the result of any grant to any
members of the management of such Person of any Stock, in each case to the
extent included in the calculation of consolidated net income of such
Person for such period in accordance with GAAP, but without duplication.
For purposes of this definition, the following items shall be excluded in
determining consolidated net income of a Person: (1) the income (or
deficit) of any other Person accrued prior to the date it became a
Subsidiary of, or was merged or consolidated into, such Person or any of
such Person's Subsidiaries; (2) the income (or deficit) of any other Person
(other than a Subsidiary) in which such Person has an ownership interest,
except to the extent any such income has actually been received by such
Person in the form of cash dividends or distributions; (3) the
undistributed earnings of any Subsidiary of such Person to the extent that
the declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any contractual
obligation or requirement of law applicable to such Subsidiary; (4) any
restoration to income of any contingency reserve, except to the extent that
(x) provision for such reserve was made out of income accrued during such
Testing Period or (y) up to an aggregate amount of $1,000,000 of reserves
restored in any Testing Period relating to reserves recorded in any other
Testing Period (provided that all such reserves restored are disclosed with
a reasonably detailed description in each compliance certification provided
in connection with the provisions of Annex E of this Agreement); (5) any
write-up of any asset; (6) any net gain from the collection of the proceeds
of life insurance policies; (7) any net gain arising from the acquisition
of any securities, or the extinguishment, under GAAP, of any Indebtedness,
of such Person, (8) in the case of a successor to such Person by
consolidation or merger or as a transferee of its assets, any earnings of
such successor prior to such consolidation, merger or transfer of assets,
and (9) any deferred credit representing the excess of equity in any
Subsidiary of such Person at the date of acquisition of such Subsidiary
over the cost to such Person of the investment in such Subsidiary; provided
that, for purposes of determining compliance with the requirements set
forth in the definition of "Permitted Acquisition" and the financial
covenants contained in Annex G as of any date, if Holdings or any
Subsidiary of Holdings has made any Permitted Acquisition during the
applicable period for determining EBITDA, EBITDA for such applicable period
shall be calculated after giving pro forma effect to such acquisition as if
such acquisition (and any related incurrence, repayment or assumption of
Indebtedness with any new Indebtedness being deemed to be amortized over
such applicable period for determining EBITDA in accordance with its terms)
had occurred on the first day of such applicable period for determining
EBITDA.
"Environmental Laws" means all applicable federal, state, local
and foreign laws, statutes, ordinances, codes, rules, standards and
regulations, now or hereafter in effect, and any applicable judicial or
administrative decisions related thereto, including any applicable judicial
or administrative order, consent decree, judgment, imposing liability or
standards of conduct for or relating to the regulation and protection of
human health, safety, the environment and natural resources (including
ambient air, surface water, groundwater, wetlands, land surface or
subsurface strata, wildlife, aquatic species and vegetation). Environmental
Laws include the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C.ss.ss.9601 et seq.) ("CERCLA"); the
Hazardous Materials Transportation Authorization Act of 1994 (49
U.S.C.ss.ss.5101 et seq.); the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C.ss.ss.136 et seq.); the Solid Waste Disposal Act
(42 X.X.X.xx.xx. 6901 et seq.); the Toxic Substance Control Act (15
U.S.C.ss.ss.2601 et seq.); the Clean Air Act (42 U.S.C.ss.ss.7401 et seq.);
the Federal Water Pollution Control Act (33 U.S.C.ss.ss.1251 et seq.); the
Occupational Safety and Health Act (29 U.S.C.ss.ss.651 et seq.); and the
Safe Drinking Water Act (42 X.X.X.xx.xx. 300(f) et seq.), and any and all
regulations promulgated thereunder, and all analogous state, local and
foreign counterparts or equivalents and any transfer of ownership
notification or approval statutes.
"Environmental Liabilities" means, with respect to any Person, all
liabilities, obligations, responsibilities, response, remedial and removal
costs, investigation and feasibility study costs, capital costs, operation
and maintenance costs, losses, damages, punitive damages, property damages,
natural resource damages, consequential damages, treble damages, costs and
expenses (including all reasonable fees, disbursements and expenses of
counsel, experts and consultants), fines, penalties, sanctions and interest
incurred as a result of or related to any claim, suit, action,
investigation, proceeding or demand by any Person arising under or related
to any Environmental Laws, Environmental Permits, or in connection with any
Release or threatened Release or presence of a Hazardous Material whether
on, at, in, under, from or about or in the vicinity of any real or personal
property.
"Environmental Permits" means all permits, licenses,
authorizations, certificates, approvals or registrations required by any
Governmental Authority under any Environmental Laws.
"Equipment" means all "equipment," as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, wherever located
and, in any event, including all such Credit Party's machinery and
equipment, including processing equipment, conveyors, machine tools, data
processing and computer equipment, including embedded software and
peripheral equipment and all engineering, processing and manufacturing
equipment, office machinery, furniture, materials handling equipment,
tools, attachments, accessories, automotive equipment, trailers, trucks,
forklifts, molds, dies, stamps, motor vehicles, rolling stock and other
equipment of every kind and nature, trade fixtures and fixtures not forming
a part of real property, together with all additions and accessions
thereto, replacements therefor, all parts therefor, all substitutes for any
of the foregoing, fuel therefor, and all manuals, drawings, instructions,
warranties and rights with respect thereto, and all products and proceeds
thereof and condemnation awards and insurance proceeds with respect thereto.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any regulations promulgated thereunder.
"ERISA Affiliate" means, with respect to any Credit Party, any
trade or business (whether or not incorporated) that, together with such
Credit Party, are treated as a single employer within the meaning of
Sections 414(b), (c), (m) or (o) of the IRC.
"ERISA Event" means, with respect to any Credit Party or any ERISA
Affiliate, (a) any event described in Section 4043(c) of ERISA with respect
to a Title IV Plan; (b) the withdrawal of any Credit Party or ERISA
Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a
plan year in which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (c) the complete or partial withdrawal of any Credit
Party or any ERISA Affiliate from any Multiemployer Plan; (d) the filing of
a notice of intent to terminate a Title IV Plan or the treatment of a plan
amendment as a termination under Section 4041 of ERISA; (e) the institution
of proceedings to terminate a Title IV Plan or Multiemployer Plan by the
PBGC; (f) the failure by any Credit Party or ERISA Affiliate to make when
due required contributions to a Multiemployer Plan or Title IV Plan unless
such failure is cured within 30 days; (g) any other event or condition that
might reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Title IV Plan or Multiemployer Plan or for the imposition
of liability under Section 4069 or 4212(c) of ERISA; (h) the termination of
a Multiemployer Plan under Section 4041A of ERISA or the reorganization or
insolvency of a Multiemployer Plan under Section 4241 or 4245 of ERISA; or
(i) the loss of a Qualified Plan's qualification or tax exempt status; or
(j) the termination of a Plan described in Section 4064 of ERISA.
"ESOP" means a Plan that is intended to satisfy the requirements
of Section 4975(e)(7) of the IRC.
"Event of Default" has the meaning ascribed to it in Section 8.1.
"Fair Labor Standards Act" means the Fair Labor Standards Act, 29
U.S.C.ss.201 et seq.
"Federal Funds Rate" means, for any day, a floating rate equal to
the weighted average of the rates on overnight Federal funds transactions
among members of the Federal Reserve System, as determined by Agent in its
sole discretion, which determination shall be final, binding and conclusive
(absent manifest error).
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System.
"Fees" means any and all fees payable to Agent or any Lender
pursuant to the Agreement or any of the other Loan Documents.
"Financial Covenants" means the financial covenants set forth in
Annex G.
"Financial Statements" means the consolidated and consolidating
income statements, and balance sheets and if applicable statements of cash
flows of Borrower delivered in accordance with Section 3.4 or Annex E.
"First Tier Acquisition" has the meaning ascribed to it in Section
6.1(b).
"First Tier Disposition" has the meaning ascribed to it in Section
6.8(b).
"Fiscal Month" means any of the monthly accounting periods of
Borrower.
"Fiscal Quarter" means any of the quarterly accounting periods of
Borrower, ending on March 31st, June 30th, September 30th and December 31st
of each year.
"Fiscal Year" means any of the annual accounting periods of
Borrower ending on December 31st of each year.
"Fixed Charges" means, with respect to any Person for any Testing
Period, (a) the aggregate of all Interest Expense paid or accrued during
such period, plus (b) cash Taxes paid during such period.
"Fixed Charge Coverage Ratio" means, with respect to any Fiscal
Quarter, the ratio of (a) the sum of (i) Adjusted EBITDA for the Testing
Period ending with such Fiscal Quarter (or, if greater for any Fiscal
Quarter ending on or prior to December 31, 2003, Adjusted EBITDA for the
period of six (6) consecutive Fiscal Months ending with such Fiscal Quarter
times two (2)) minus (ii) the consolidated Capital Expenditures of Holdings
and its Subsidiaries for such Testing Period to (b) Fixed Charges for such
Testing Period.
"Fixtures" means all "fixtures" as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party.
"Foreign EBITDA" means, with respect to any Fiscal Period, the
consolidated EBITDA of Holding and its Subsidiaries for such period that is
attributable to any assets of such Person located outside of the United
States or Canada that are acquired pursuant to a Permitted Acquisition
after the Closing Date.
"Foreign Subsidiary" means each Subsidiary of Holdings which is
not a Domestic Subsidiary.
"GAAP" means generally accepted accounting principles in the
United States of America, consistently applied, as such term is further
defined in Annex G to the Agreement.
"GE Capital" means General Electric Capital Corporation, a
Delaware corporation.
"GE Capital Fee Letter" has the meaning ascribed to such term in
Section 1.7(a).
"General Intangibles" means all "general intangibles," as such
term is defined in the Code, now owned or hereafter acquired by any Credit
Party, including all right, title and interest that such Credit Party may
now or hereafter have in or under any Contract, all payment intangibles,
customer lists, Licenses, Copyrights, Trademarks, Patents, and all
applications therefor and reissues, extensions or renewals thereof, rights
in Intellectual Property, interests in partnerships, joint ventures and
other business associations, licenses, permits, trade secrets, proprietary
or confidential information, inventions (whether or not patented or
patentable), technical information, procedures, designs, knowledge,
know-how, Software, data bases, data, processes, models, drawings,
materials and records, goodwill (including the goodwill associated with any
Trademark or Trademark License), all rights and claims in or under
insurance policies (including insurance for fire, damage, loss and
casualty, whether covering personal property, real property, tangible
rights or intangible rights, all liability, life, key man and business
interruption insurance, and all unearned premiums), choses in action,
rights to receive tax refunds and other payments, rights to receive
dividends, distributions, cash, Instruments and other property in respect
of or in exchange for pledged Stock and Investment Property, rights of
indemnification, all books and records, correspondence, credit files,
invoices and other papers, including without limitation all tapes, cards,
computer runs and other papers and documents in the possession or under the
control of such Credit Party or any computer bureau or service company from
time to time acting for such Credit Party.
"Goods" means all "goods" as defined in the Code, now owned or
hereafter acquired by any Credit Party, wherever located, including
embedded software to the extent included in "goods" as defined in the Code,
manufactured homes and standing timber that is cut and removed for sale.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof, and any agency, department or other
entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guaranteed Indebtedness" means as to any Person, any obligation
of such Person guaranteeing, providing comfort or otherwise supporting any
Indebtedness, lease, dividend, or other obligation ("primary obligation")
of any other Person (the "primary obligor") in any manner, including any
obligation or arrangement of such Person to (a) purchase or repurchase any
such primary obligation, (b) advance or supply funds (i) for the purchase
or payment of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain
the net worth or solvency or any balance sheet condition of the primary
obligor, (c) 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, (d)
protect the beneficiary of such arrangement from loss (other than product
warranties given in the ordinary course of business) or (e) indemnify the
owner of such primary obligation against loss in respect thereof. The
amount of any Guaranteed Indebtedness at any time shall be deemed to be an
amount equal to the lesser at such time of (x) the stated or determinable
amount of the primary obligation in respect of which such Guaranteed
Indebtedness is incurred and (y) the maximum amount for which such Person
may be liable pursuant to the terms of the instrument embodying such
Guaranteed Indebtedness, or, if not stated or determinable, the maximum
reasonably anticipated liability (assuming full performance) in respect
thereof.
"Guaranties" means, collectively, the Holdings Guaranty, the
Parent Guaranty, the Subsidiary Guaranty (and any and all Additional
Guarantor Supplements executed and delivered pursuant thereto) and any
other guaranty executed by any Guarantor in favor of Agent and Lenders in
respect of the Obligations.
"Guarantors" means (i) Holdings, (ii) Parent, (iii) each Domestic
Subsidiary of Borrower, (iv) any Foreign Subsidiary to the extent required
under Section 5.10, and (v) any other Person, if any, that executes a
guaranty or other similar agreement in favor of Agent, for itself and the
ratable benefit of Lenders, in connection with the transactions
contemplated by the Agreement and the other Loan Documents.
"Hazardous Material" means any substance, material or waste that
is regulated by, or forms the basis of liability now or hereafter under,
any Environmental Laws, including any material or substance that is (a)
defined as a "solid waste," "hazardous waste," "hazardous material,"
"hazardous substance," "extremely hazardous waste," "restricted hazardous
waste," "pollutant," "contaminant," "hazardous constituent," "special
waste," "toxic substance" or other similar term or phrase under any
Environmental Laws, or (b) petroleum or any fraction or by-product thereof,
asbestos, polychlorinated biphenyls (PCB's), or any radioactive substance.
"Holdings" has the meaning ascribed thereto in the recitals to the
Agreement.
"Holdings Guaranty" means the Holdings Guaranty Agreement of even
date herewith executed by Holdings in favor of Agent and Lenders.
"Holdings Pledge Agreement" means the Holdings Pledge and Security
Agreement of even date herewith executed by Holdings in favor of Agent, on
behalf of itself and Lenders, pledging all of the Stock of Parent.
"Holdings Senior Discount Note Documents" means the Holdings
Senior Discount Note Indenture, the Holdings Senior Discount Notes and all
other documents and agreements executed and delivered pursuant to the
Holdings Senior Discount Note Indenture.
"Holdings Senior Discount Note Indenture" means the Indenture,
dated as of December 22, 1997, between Holdings and The Bank of New York,
as trustee, as amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Holdings Senior Discount Notes" means Holdings' 12-1/4% senior
discount notes due 2008.
"Indebtedness" means, with respect to any Person, without
duplication, (a) all indebtedness of such Person for borrowed money or for
the deferred purchase price of property payment, (b) all reimbursement and
other obligations with respect to letters of credit, bankers' acceptances
and surety bonds, whether or not matured, (c) all obligations evidenced by
notes, bonds, debentures or similar instruments, (d) all indebtedness
created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), (e)
all Capital Lease Obligations and the present value (discounted at the
Index Rate as in effect on the Closing Date) of future rental payments
under all synthetic leases, (f) all obligations of such Person under
commodity purchase or option agreements or other commodity price hedging
arrangements, in each case whether contingent or matured, (g) all
obligations of such Person under any foreign exchange contract, currency
swap agreement, interest rate swap, cap or collar agreement or other
similar agreement or arrangement designed to alter the risks of that Person
arising from fluctuations in currency values or interest rates, in each
case whether contingent or matured (including without limitation the Credit
Lyonnais Interest Rate Swap), (h) all Indebtedness referred to above
secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien upon or in
property or other assets (including accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for
the payment of such Indebtedness, and (i) the Obligations. Notwithstanding
the foregoing, Indebtedness shall not include trade payables and accrued
expenses incurred by any Person in accordance with customary practices and
in the ordinary course of business of such Person.
"Indemnified Liabilities" has the meaning ascribed to it in
Section 1.11.
"Indemnified Person" has the meaning ascribed to it in Section 1.11.
"Index Rate" means, for any day, a floating rate equal to the
higher of (i) the rate publicly quoted from time to time by The Wall Street
Journal as the "base rate on corporate loans posted by at least 75% of the
nation's 30 largest banks" (or, if The Wall Street Journal ceases quoting a
base rate of the type described, the highest per annum rate of interest
published by the Federal Reserve Board in Federal Reserve statistical
release H.15(519) entitled "Selected Interest Rates" as the Bank prime loan
rate or its equivalent), and (ii) the Federal Funds Rate plus 50 basis
points per annum. Each change in any interest rate provided for in the
Agreement based upon the Index Rate shall take effect at the time of such
change in the Index Rate.
"Index Rate Loan" means a Loan or portion thereof bearing interest
by reference to the Index Rate.
"Instruments" means all "instruments," as such term is defined in
the Code, now owned or hereafter acquired by any Credit Party, wherever
located, and, in any event, including all certificates of deposit, and all
promissory notes and other evidences of indebtedness, other than
instruments that constitute, or are a part of a group of writings that
constitute, Chattel Paper.
"Intellectual Property" means any and all Licenses, Patents,
Copyrights, Trademarks, and the goodwill associated with such Trademarks.
"Intercompany Notes" has the meaning ascribed to it in Section 6.3.
"Interest Coverage Ratio" means, with respect to any Fiscal
Quarter, the ratio of (i) Adjusted EBITDA for the Testing Period ending
with such Fiscal Quarter (or, if greater for any Fiscal Quarter ending on
or prior to December 31, 2003, Adjusted EBITDA for the period of six (6)
consecutive Fiscal Months ending with such Fiscal Quarter times two (2)) to
(ii) Interest Expense for the Testing Period ending with such Fiscal
Quarter.
"Interest Expense" means, with respect to any Fiscal Quarter,
interest expense (whether cash or non-cash, and including accreted
interest) of Holdings and its Subsidiaries as determined on a consolidated
basis in accordance with GAAP for the Testing Period ending with such
Fiscal Quarter.
"Interest Payment Date" means (a) as to any Index Rate Loan, the
first Business Day of each month to occur while such Loan is outstanding,
and (b) as to any LIBOR Loan, the last day of the applicable LIBOR Period;
provided, that in the case of any LIBOR Period greater than three months in
duration, interest shall be payable at three-month intervals and on the
last day of such LIBOR Period; and provided further that, in addition to
the foregoing, each of (x) the date upon which all of the Commitments have
been terminated and the Loans have been paid in full and (y) the Commitment
Termination Date shall be deemed to be an "Interest Payment Date" with
respect to any interest that has then accrued under the Agreement.
"Inventory" means all "inventory," as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, wherever
located, and in any event including inventory, merchandise, goods and other
personal property that are held by or on behalf of any Credit Party for
sale or lease or are furnished or are to be furnished under a contract of
service, or that constitute raw materials, work in process, finished goods,
returned goods, or materials or supplies of any kind, nature or description
used or consumed or to be used or consumed in such Credit Party's business
or in the processing, production, packaging, promotion, delivery or
shipping of the same, including all supplies and embedded software.
"Investment Property" means all "investment property" as such term
is defined in the Code now owned or hereafter acquired by any Credit Party,
wherever located, including (i) all securities, whether certificated or
uncertificated, including stocks, bonds, interests in limited liability
companies, partnership interests, treasuries, certificates of deposit, and
mutual fund shares; (ii) all securities entitlements of any Credit Party,
including the rights of any Credit Party to any securities account and the
financial assets held by a securities intermediary in such securities
account and any free credit balance or other money owing by any securities
intermediary with respect to that account; (iii) all securities accounts of
any Credit Party; (iv) all commodity contracts of any Credit Party; and (v)
all commodity accounts held by any Credit Party.
"IPO" means an initial public offering of greater than 5% of the
issued and outstanding shares of the common Stock of Holdings.
"IRC" means the Internal Revenue Code of 1986, as amended, and all
regulations promulgated thereunder.
"IRS" means the Internal Revenue Service.
"L/C Issuer" has the meaning ascribed to it in Annex B, provided
Credit Lyonnais New York Branch or its Affiliates shall not be considered a
L/C Issuer with respect to the Credit Lyonnais Interest Rate Swap.
"L/C Sublimit" has the meaning ascribed to it in Annex B.
"Xxx.xxx" means Xxx.xxx Holdings, Inc., a Delaware corporation.
"Xxx.xxx Acquisition" means the acquisition of Xxx.xxx by Holdings
on the terms disclosed on Disclosure Schedule 6.1(c).
"Lenders" means GE Capital, the other Lenders named on the
signature pages of the Agreement, and, if any such Lender shall decide to
assign all or any portion of the Obligations, such term shall include any
assignee of such Lender.
"Letter of Credit Fee" has the meaning ascribed to it in Annex B.
"Letter of Credit Obligations" means all outstanding obligations
incurred by Agent and Lenders at the request of Borrower, whether direct or
indirect, contingent or otherwise, due or not due, in connection with the
issuance of Letters of Credit by Agent or another L/C Issuer or the
purchase of a participation as set forth in Annex B with respect to any
Letter of Credit. The amount of such Letter of Credit Obligations shall
equal the maximum amount that may be payable at such time or at any time
thereafter by Agent or Lenders thereupon or pursuant thereto.
"Letters of Credit" means any and all standby letters of credit
issued for the account of Borrower by any L/C Issuer, and bankers'
acceptances issued by Borrower, for which Agent and Lenders have incurred
Letter of Credit Obligations.
"Letter-of-Credit Rights" means documentary or standby
"letter-of-credit rights" as such term is defined in the Code, now owned or
hereinafter acquired by any Credit Party, including rights to payment or
performance under a letter of credit, whether or not such Credit Party, as
beneficiary, has demanded or is entitled to demand payment or performance.
"LIBOR Business Day" means a Business Day on which banks in the
City of London are generally open for interbank or foreign exchange
transactions.
"LIBOR Loan" means a Loan or any portion thereof bearing interest
by reference to the LIBOR Rate.
"LIBOR Period" means, with respect to any LIBOR Loan, each period
commencing on a LIBOR Business Day selected by Borrower pursuant to the
Agreement and ending one, two, three or six months thereafter, as selected
by Borrower's irrevocable notice to Agent as set forth in Section 1.5(e);
provided, that the foregoing provision relating to LIBOR Periods is subject
to the following:
(a) if any LIBOR Period would otherwise end on a day that
is not a LIBOR Business Day, such LIBOR Period shall be extended
to the next succeeding LIBOR Business Day unless the result of
such extension would be to carry such LIBOR Period into another
calendar month in which event such LIBOR Period shall end on the
immediately preceding LIBOR Business Day;
(b) any LIBOR Period that would otherwise extend beyond
the Commitment Termination Date shall end 2 LIBOR Business Days
prior to such date;
(c) any LIBOR Period that begins on the last LIBOR
Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end
of such LIBOR Period) shall end on the last LIBOR Business Day of
a calendar month;
(d) Borrower shall select LIBOR Periods so as not to require
a payment or prepayment of any LIBOR Loan during a LIBOR Period for
such Loan; and
(e) Borrower shall select LIBOR Periods so that there
shall be no more than 8 separate LIBOR Loans in existence at any
one time.
"LIBOR Rate" means for each LIBOR Period, a rate of interest
determined by Agent equal to:
(a) the offered rate for deposits in United States
Dollars for the applicable LIBOR Period that appears on Telerate
Page 3750 as of 11:00 a.m. (London time), on the second full LIBOR
Business Day next preceding the first day of such LIBOR Period
(unless such date is not a Business Day, in which event the next
succeeding Business Day will be used); divided by
(b) a number equal to 1.0 minus the aggregate (but
without duplication) of the rates (expressed as a decimal
fraction) of reserve requirements in effect on the day that is 2
LIBOR Business Days prior to the beginning of such LIBOR Period
(including basic, supplemental, marginal and emergency reserves
under any regulations of the Federal Reserve Board or other
Governmental Authority having jurisdiction with respect thereto,
as now and from time to time in effect) for Eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation
D of the Federal Reserve Board that are required to be maintained
by a member bank of the Federal Reserve System.
If such interest rates shall cease to be available from
Telerate News Service, the LIBOR Rate shall be determined from
such financial reporting service or other information as shall be
mutually acceptable to Agent and Borrower.
"License" means any Copyright License, Patent License, Trademark
License or other license of intellectual property rights under any written
agreement now held or hereafter acquired by any Credit Party.
"Lien" means any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including any lease or title retention agreement, any financing lease
having substantially the same economic effect as any of the foregoing, and
the filing of, or agreement to give, any financing statement perfecting a
security interest under the Code or comparable law of any jurisdiction).
"Litigation" has the meaning ascribed to it in Section 3.13.
"Loan Account" has the meaning ascribed to it in Section 1.10.
"Loan Documents" means the Agreement, the Notes, the GE Capital
Fee Letter, the Collateral Documents, the Master Standby Agreement, and all
other agreements, instruments, documents and certificates identified in the
Closing Checklist executed and delivered to, or in favor of, Agent or any
Lenders and including all other pledges, powers of attorney, consents,
assignments, contracts, notices, and all other written matter whether
heretofore, now or hereafter executed by or on behalf of any Credit Party,
or any employee of any Credit Party, and delivered to Agent or any Lender
in connection with the Agreement or the transactions contemplated thereby.
Any reference in the Agreement or any other Loan Document to a Loan
Document shall include all appendices, exhibits or schedules thereto, and
all amendments, restatements, supplements or other modifications thereto,
and shall refer to the Agreement or such Loan Document as the same may be
in effect at any and all times such reference becomes operative.
"Loans" means the Revolving Loan.
"Lock Boxes" has the meaning ascribed to it in Annex C.
"Margin Stock" has the meaning ascribed to it in Section 3.10.
"Master Standby Agreement" means the Master Agreement for Standby
Letters of Credit entered into between Borrower, as Applicant, and GE
Capital, as Issuer, pursuant to Annex B.
"Material Adverse Effect" means a material adverse effect on (a)
the business, assets, operations, prospects or financial or other condition
of the Credit Parties considered as a whole, (b) Borrower's ability to pay
any of the Loans or any of the other Obligations in accordance with the
terms of the Agreement, (c) the Collateral or Agent's Liens, on behalf of
itself and Lenders, on the Collateral or the priority of such Liens, or (d)
Agent's or any Lender's rights and remedies under the Agreement and the
other Loan Documents.
"Material Leased Real Estate Facility" means Borrower's leased
premises located at 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx and at 000
Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx.
"Maximum Amount" means, as of any date of determination, an amount
equal to the Revolving Loan Commitment of all Lenders as of that date.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA, and to which any Credit Party or ERISA
Affiliate is making, is obligated to make or has made or been obligated to
make, contributions on behalf of participants who are or were employed by
any of them.
"Net Proceeds" has the meaning ascribed to it in Section
1.3(b)(ii).
"Non-Funding Lender" has the meaning ascribed to it in Section
9.9(a)(ii).
"Notes" means the Revolving Notes.
"Notice of Conversion/Continuation" has the meaning ascribed to it
in Section 1.5(e).
"Notice of Revolving Credit Advance" has the meaning ascribed to
it in Section 1.1(a).
"Obligations" means all loans, advances, debts, liabilities and
obligations for the performance of covenants, tasks or duties or for
payment of monetary amounts (whether or not such performance is then
required or contingent, or such amounts are liquidated or determinable)
owing by any Credit Party to Agent or any Lender, and all covenants and
duties regarding such amounts, of any kind or nature, present or future,
whether or not evidenced by any note, agreement or other instrument,
arising under the Agreement or any of the other Loan Documents. This term
includes all principal, interest (including all interest that accrues after
the commencement of any case or proceeding by or against any Credit Party
in bankruptcy, whether or not allowed in such case or proceeding), Fees,
expenses, reasonable attorneys' fees and any other sum chargeable to any
Credit Party under the Agreement or any of the other Loan Documents.
"Parent Guaranty" means the Parent Guaranty Agreement of even date
herewith executed by Parent in favor of Agent and Lenders.
"Parent Pledge Agreement" means the Parent Pledge and Security
Agreement of even date herewith executed by the Parent in favor of Agent,
on behalf of itself and Lenders, pledging all of the Stock of Borrower and
Xxx.xxx.
"Parent Senior Note Documents" means the Parent Senior Note
Indenture, the Parent Senior Notes and all other documents and agreements
executed and delivered pursuant to the Parent Senior Note Indenture.
"Parent Senior Note Indenture" means the Indenture, dated as
December 22, 1997, among the Parent, the Borrower, certain of the
Subsidiary Guarantors and The Bank of New York, as trustee, as amended,
modified or supplemented from time to time in accordance with the terms
hereof and thereof.
"Parent Senior Notes" means the Parent's 9-3/4% senior notes due 2007.
"Patent License" means rights under any written agreement now
owned or hereafter acquired by any Credit Party granting any right with
respect to any invention on which a Patent is in existence.
"Patents" means all of the following in which any Credit Party now
owned or hereafter acquired by any Credit Party: (a) all letters patent of
the United States or of any other country, all registrations and recordings
thereof, and all applications for letters patent of the United States or of
any other country, including registrations, recordings and applications in
the United States Patent and Trademark Office or in any similar office or
agency of the United States, any State, or any other country, and (b) all
reissues, continuations, continuations-in-part or extensions thereof.
"Payment Intangibles" means all "payment intangibles", as such
term is defined in the Code.
"PBGC" means the Pension Benefit Guaranty Corporation as
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Pension Plan" means a Plan described in Section 3(2) of ERISA.
"Permitted Acquisitions" has the meaning ascribed to such term in
Section 6.1(b).
"Permitted Dispositions" has the meaning ascribed to such term in
Section 6.8(b).
"Permitted Encumbrances" means the following encumbrances: (a)
Liens for taxes or assessments or other governmental Charges not yet due
and payable or which are being contested in accordance with Section 5.2(b);
(b) pledges or deposits of money securing statutory obligations under
workmen's compensation, unemployment insurance, social security or public
liability laws or similar legislation (excluding Liens under ERISA); (c)
pledges or deposits of money securing bids, tenders, contracts (other than
contracts for the payment of money) or leases to which any Credit Party is
a party as lessee made in the ordinary course of business; (d) inchoate and
unperfected workers', mechanics', carriers', warehousemen's, suppliers' or
other similar liens or possessory liens arising in the ordinary course of
business and securing liabilities in an outstanding aggregate amount not in
excess of $1,000,000 at any time; (e) deposits securing, or in lieu of,
surety, appeal or customs bonds in proceedings to which any Credit Party is
a party; (f) any attachment or judgment lien not constituting an Event of
Default under Section 8.1(j); (g) zoning restrictions, easements, licenses,
or other restrictions on the use of any Real Estate or other minor
irregularities in title (including leasehold title) thereto, so long as the
same do not materially impair the use, value, or marketability of such Real
Estate; (h) presently existing or hereafter created Liens in favor of
Agent, on behalf of Lenders; and (i) Liens expressly permitted under
clauses (b) and (c) of Section 6.7 of the Agreement.
"Permitted Holders" means Xxxxxxxxxxx and its Affiliates.
"Permitted Note Repurchases" has the meaning ascribed to such term
in Section 6.14(b).
"Permitted Parent Distributions" has the meaning ascribed to such
term in Section 6.14(a).
"Person" means any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association,
corporation, limited liability company, institution, public benefit
corporation, other entity or government (whether federal, state, county,
city, municipal, local, foreign, or otherwise, including any
instrumentality, division, agency, body or department thereof).
"Plan" means, at any time, an "employee benefit plan," as defined
in Section 3(3) of ERISA, that any Credit Party or ERISA Affiliate
maintains, contributes to or has an obligation to contribute to or has
maintained, contributed to or had an obligation to contribute to at any
time within the past 7 years on behalf of participants who are or were
employed by any Credit Party or any ERISA Affiliate.
"Pledge Agreements" means the Borrower Pledge Agreement, the
Holdings Pledge Agreement, the Parent Pledge Agreement, and any other
pledge agreement entered into after the Closing Date by any Credit Party
(as required by the Agreement or any other Loan Document).
"Prepayment Premium" has the meaning ascribed to it in Section 1.7(c).
"Prior Credit Agreement" means that certain Credit Agreement among
Holdings, Parent, the Prior Lenders, the Prior Lender Agent, and BancBoston
Securities, Inc., as Syndication Agent, and BancAmerica Xxxxxxxxx Xxxxxxxx
and BancBoston Securities, Inc., as Arrangers, dated as of March 25, 1998,
as amended.
"Prior Lender Agent" means Bank of America, N.A. (formerly known
as Bank of America National Trust and Savings Association), as agent for
the Prior Lenders under the Prior Credit Agreement.
"Prior Lender Obligations" means all obligations of Parent and the
other Credit Parties to the Prior Lenders and the Prior Lender Agent under
the Prior Credit Agreement.
"Prior Lenders" means the various lenders parties to the Prior
Credit Agreement.
"Prior Letter" means the letter of interest dated January 17,
2002, issued by GE Capital to Parent with respect to its Revolving Loan
Commitment.
"Proceeds" means "proceeds," as such term is defined in the Code,
including (a) any and all proceeds of any insurance, indemnity, warranty or
guaranty payable to any Credit Party from time to time with respect to any
of the Collateral, (b) any and all payments (in any form whatsoever) made
or due and payable to any Credit Party from time to time in connection with
any requisition, confiscation, condemnation, seizure or forfeiture of all
or any part of the Collateral by any Governmental Authority (or any Person
acting under color of governmental authority), (c) any claim of any Credit
Party against third parties (i) for past, present or future infringement of
any Patent or Patent License, or (ii) for past, present or future
infringement or dilution of any Copyright, Copyright License, Trademark or
Trademark License, or for injury to the goodwill associated with any
Trademark or Trademark License, (d) any recoveries by any Credit Party
against third parties with respect to any litigation or dispute concerning
any of the Collateral including claims arising out of the loss or
nonconformity of, interference with the use of, defects in, or infringement
of rights in, or damage to, Collateral, (e) all amounts collected on, or
distributed on account of, other Collateral, including dividends, interest,
distributions and Instruments with respect to Investment Property and
pledged Stock, and (f) any and all other amounts, rights to payment or
other property acquired upon the sale, lease, license, exchange or other
disposition of Collateral and all rights arising out of Collateral.
"Pro Forma" means the unaudited consolidated and consolidating
balance sheet of Holdings and its Subsidiaries as of December 31, 2001
after giving pro forma effect to the Related Transactions.
"Projections" means Holdings' forecasted consolidated and
consolidating: (a) profit and loss statements; and (b) capitalization
statements, all prepared consistent with the historical Financial
Statements of Borrower, together with appropriate supporting details and a
statement of underlying assumptions.
"Pro Rata Share" means with respect to all matters relating to any
Lender (a) with respect to the Revolving Loan prior to the Commitment
Termination Date, the percentage obtained by dividing (i) the Revolving
Loan Commitment of that Lender by (ii) the aggregate Revolving Loan
Commitments of all Lenders, and (b) with respect to the Revolving Loan on
and after the Commitment Termination Date, the percentage obtained by
dividing (i) the aggregate outstanding principal balance of the Loans held
by that Lender, by (ii) the outstanding principal balance of the Loans held
by all Lenders.
"Qualified Plan" means a Pension Plan that is intended to be
tax-qualified under Section 401(a) of the IRC.
"Qualified Assignee" means (a) any Lender, any Affiliate of any
Lender and, with respect to any Lender that is an investment fund that
invests in commercial loans, any other investment fund that invests in
commercial loans and that is managed or advised by the same investment
advisor as such Lender or by an Affiliate of such investment advisor, and
(b) any commercial bank, savings and loan association or savings bank or
any other entity which is an "accredited investor" (as defined in
Regulation D under the Securities Act of 1933, as amended) which extends
credit or buys loans as one of its businesses, including insurance
companies, mutual funds, lease financing companies and commercial finance
companies, in each case, which has a rating of BBB or higher from S&P and a
rating of Baa2 or higher from Xxxxx'x at the date that it becomes a Lender
and which, through its applicable lending office, is capable of lending to
Borrower without the imposition of any withholding or similar taxes;
provided that no Person determined by Agent to be acting in the capacity of
a vulture fund or distressed debt purchaser shall be a Qualified Assignee,
and no Person or Affiliate of such Person (other than a Person that is
already a Lender) holding Senior Note Debt or Stock issued by any Credit
Party shall be a Qualified Assignee.
"Qualified Holdings Preferred Stock" means any preferred Stock of
Holdings so long as the terms of any such preferred Stock (i) do not
contain any mandatory put, redemption, repayment, sinking fund or other
similar provision, (ii) do not require the cash payment of dividends, (iii)
do not contain any covenants, (iv) do not grant the holders thereof any
voting rights except for (x) voting rights required to be granted to such
holders under applicable law and (y) limited customary voting rights on
fundamental matters such as mergers, consolidations, sales of all or
substantially all of the assets of Holdings, or liquidations involving
Holdings, and (v) are otherwise reasonably satisfactory to the Agent.
"Qualified Holdings Stock Sales" means (i) any issuance or sale of
shares by Holdings of its non-redeemable common Stock and shares of
Qualified Holdings Preferred Stock for cash in a transaction that does not
result in a Change of Control (provided; however, if any such sale of
shares constitutes an IPO, the amount of the Commitments at such time shall
reduced simultaneously with such IPO by an amount equal to the lesser of
(x) 50% of the Commitments then in effect and (y) the Net Proceeds of such
IPO) or (ii) that certain American Lawyer Media Holdings, Inc. First
Amended and Restated 1999 Stock Option Plan or such other employee stock
option plan of Holdings approved by its Board of Directors.
"Ratable Share" has the meaning ascribed to it in Section 1.1(b).
"Real Estate" has the meaning ascribed to it in Section 3.6.
"Refinancing" means the repayment in full by the Credit Parties of
the Prior Lender Obligations on the Closing Date.
"Reinvestable Proceeds" has the meaning ascribed to it in Section
1.3(b)(iii).
"Related Transactions" means the initial borrowing under the
Revolving Loan on the Closing Date, the Refinancing, the payment of all
fees, costs and expenses associated with all of the foregoing and the
execution and delivery of all of the Related Transactions Documents.
"Related Transactions Documents" means the Loan Documents, and all
other agreements or instruments executed in connection with the Related
Transactions.
"Release" means any release, spill, emission, leaking, pumping,
pouring, emitting, emptying, escape, injection, deposit, disposal,
discharge, dispersal, dumping, leaching or migration of Hazardous Material
in the indoor or outdoor environment, including the movement of Hazardous
Material through or in the air, soil, surface water, ground water or
property.
"Replacement Assets" means any properties or assets (other than
Stock) used or useful in the business of the Credit Parties that are
purchased or acquired (but not related to any development or research) by a
Credit Party to replace the properties or assets of the Credit Parties that
were the subject of any asset disposition.
"Requisite Lenders" means Lenders having (a) more than 50% of the
Commitments of all Lenders, or (b) if the Commitments have been terminated,
more than 50% of the aggregate outstanding amount of all Loans.
"Responsible Officer" means, for Holdings, the Parent, the
Borrower or any Subsidiary thereof, its chief executive officer, its
president, any of its vice presidents, its chief financial officer, but in
any event, with respect to financial matters, the president or the chief
financial officer of Holdings or the Vice President of Finance of Holdings.
"Restricted Payment" means, with respect to any Credit Party (a)
the declaration or payment of any dividend or the incurrence of any
liability to make any other payment or distribution of cash or other
property or assets in respect of such Credit Party's Stock; (b) any payment
on account of the purchase, redemption, defeasance, sinking fund or other
retirement of such Credit Party's Stock or any other payment or
distribution made in respect thereof, either directly or indirectly; (c)
any payment or prepayment of principal of, premium, if any, or interest,
fees or other charges on or with respect to, and any redemption, purchase,
retirement, defeasance, sinking fund or similar payment and any claim for
rescission with respect to, any Subordinated Debt or Senior Note Debt; (d)
any payment made to redeem, purchase, repurchase or retire, or to obtain
the surrender of, any outstanding warrants, options or other rights to
acquire Stock of such Credit Party now or hereafter outstanding; (e) any
payment of a claim for the rescission of the purchase or sale of, or for
material damages arising from the purchase or sale of, any shares of such
Credit Party's Stock or of a claim for reimbursement, indemnification or
contribution arising out of or related to any such claim for damages or
rescission; (f) any payment, loan, contribution, or other transfer of funds
or other property to any Affiliate of such Credit Party other than payment
of compensation in the ordinary course of business to Affiliates who are
employees of such Person; and (g) any payment of management, consulting,
advisory , investment banking or professional fees (or other fees of a
similar nature) by such Credit Party to its Affiliates.
"Retiree Welfare Plan" means, at any time, a Welfare Plan that
provides for continuing coverage or benefits for any participant or any
beneficiary of a participant after such participant's termination of
employment, other than continuation coverage provided pursuant to Section
4980B of the IRC and at the sole expense of the participant or the
beneficiary of the participant.
"Revolving Credit Advance" has the meaning ascribed to it in
Section 1.1(a)(i).
"Revolving Lenders" means, as of any date of determination,
Lenders having a Revolving Loan Commitment.
"Revolving Loan" means, at any time, the sum of (i) the aggregate
amount of Revolving Credit Advances outstanding to Borrower plus (ii) the
aggregate Letter of Credit Obligations incurred on behalf of Borrower.
Unless the context otherwise requires, references to the outstanding
principal balance of the Revolving Loan shall include the outstanding
balance of Letter of Credit Obligations.
"Revolving Loan Commitment" means (a) as to any Revolving Lender,
the aggregate commitment of such Revolving Lender to make Revolving Credit
Advances or incur Letter of Credit Obligations as set forth on Annex J to
the Agreement or in the most recent Assignment Agreement executed by such
Revolving Lender and (b) as to all Revolving Lenders, the aggregate
commitment of all Revolving Lenders to make Revolving Credit Advances or
incur Letter of Credit Obligations, which aggregate commitment shall be
Forty Million Dollars ($40,000,000) on the Closing Date, as such amount may
be adjusted, if at all, from time to time in accordance with the Agreement.
"Revolving Note" has the meaning ascribed to it in Section 1.1(a)(ii).
"Security Agreement" means the Security Agreement of even date
herewith entered into by and among Agent, on behalf of itself and Lenders,
and each Credit Party that is a signatory thereto and any Additional
Grantor Acknowledgment entered into by any Credit Party pursuant thereto
and hereto
"Senior Note Debt" means any and all Indebtedness of the Credit
Parties under the Senior Notes.
"Senior Note Indentures" means the Holdings Senior Discount Note
Indenture and the Parent Senior Note Indenture.
"Senior Notes" means the Holdings Senior Discount Notes and the
Parent Senior Notes.
"Senior Secured Debt" means (i) all Obligations and (ii) any other
Indebtedness of any or all of the Credit Parties that is secured by a Lien
on any assets of any or all of the Credit Parties (other than Subordinated
Debt).
"Senior Secured Leverage Ratio" means, with respect to any Fiscal
Quarter, the ratio of (i) the total consolidated Senior Secured Debt of
Holdings and its Subsidiaries as of the end of such Fiscal Quarter to (ii)
Adjusted EBITDA for the Testing Period ending with such Fiscal Quarter.
"Software" means all "software" as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party (other than
software embedded in any category of Goods), including all computer
programs and all supporting information provided in connection with a
transaction related to any program.
"Solvent" means, with respect to any Person on a particular date,
that on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including contingent
liabilities, of such Person; (b) the present fair salable value of the
assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become
absolute and matured; (c) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature; and (d) such Person is
not engaged in a business or transaction, and is not about to engage in a
business or transaction, for which such Person's property would constitute
an unreasonably small capital. The amount of contingent liabilities (such
as litigation, guaranties and pension plan liabilities) at any time shall
be computed as the amount that, in light of all the facts and circumstances
existing at the time, represents the amount that can be reasonably be
expected to become an actual or matured liability.
"Stock" means all shares, options, warrants, general or limited
partnership interests, membership interests or other equivalents
(regardless of how designated) of or in a corporation, partnership, limited
liability company or equivalent entity whether voting or nonvoting,
including common stock, preferred stock or any other "equity security" (as
such term is defined in Rule 3a11-1 of the General Rules and Regulations
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended).
"Stockholder" means, with respect to any Person, each holder of
Stock of such Person.
"Subordinated Debt" means any Indebtedness of any Credit Party
subordinated in right of payment to the Obligations in a manner and form
satisfactory to Agent and Lenders in their sole discretion, as to right and
time of payment and as to any other rights and remedies thereunder.
"Subsidiary" means, with respect to any Person, (a) any
corporation of which an aggregate of more than 50% of the outstanding Stock
having ordinary voting power to elect a majority of the board of directors
of such corporation (irrespective of whether, at the time, Stock of any
other 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,
directly or indirectly, owned legally or beneficially by such Person or one
or more Subsidiaries of such Person, or with respect to which any such
Person has the right to vote or designate the vote of 50% or more of such
Stock whether by proxy, agreement, operation of law or otherwise, and (b)
any partnership or limited liability company in which such Person and/or
one or more Subsidiaries of such Person shall have an interest (whether in
the form of voting or participation in profits or capital contribution) of
more than 50% or of which any such Person is a general partner or may
exercise the powers of a general partner. Unless the context otherwise
requires, each reference to a Subsidiary shall be a reference to a
Subsidiary of the Borrower.
"Subsidiary Guaranty" means the Subsidiary Guaranty Agreement of
even date herewith executed by certain Subsidiaries of Borrower in favor of
Agent, on behalf of itself and Lenders and any Additional Guarantor
Supplement that may be entered into by any Subsidiary pursuant thereto and
hereto.
"Supporting Obligations" means all "supporting obligations" as
such term is defined in the Code, including letters of credit and
guaranties issued in support of Accounts, Chattel Paper, Documents, General
Intangibles, Instruments or Investment Property.
"Tax Benefit" has the meaning ascribed to it in Section 1.13(d).
"Taxes" means taxes, levies, imposts, deductions, Charges or
withholdings, and all liabilities imposed by any Governmental Authority (or
taxing authority thereof) with respect to the Obligations (or any payment
with respect thereto), the Loan Documents or the Collateral, excluding
taxes imposed on or measured by the net income of Agent or a Lender by the
jurisdictions under the laws of which Agent and Lenders are organized or
conduct business or any political subdivision thereof.
"Termination Date" means the date on which (a) the Loans have been
indefeasibly repaid in full, (b) all other Obligations under the Agreement
and the other Loan Documents have been completely discharged, (c) all
Letter of Credit Obligations have been cash collateralized, cancelled or
backed by standby letters of credit in accordance with Annex B, and (d)
Borrower shall not have any further right to borrow any monies under the
Agreement.
"Testing Period" means, with respect to any Fiscal Quarter, the
period of twelve (12) consecutive Fiscal Months that ends with such Fiscal
Quarter.
"Third Tier Acquisition" has the meaning ascribed to it in Section
6.1(b).
"Title IV Plan" means a Pension Plan (other than a Multiemployer
Plan), that is covered by Title IV of ERISA, and that any Credit Party or
ERISA Affiliate maintains, contributes to or has an obligation to
contribute to on behalf of participants who are or were employed by any of
them.
"Total Leverage Ratio" means, with respect to any Fiscal Quarter,
the ratio of (i) the total consolidated Indebtedness of Holdings and its
Subsidiaries as of the end of such Fiscal Quarter to (ii) Adjusted EBITDA
for the Testing Period ending with such Fiscal Quarter.
"Trademark Security Agreements" means the Trademark Security
Agreements made in favor of Agent, on behalf of Lenders, by each applicable
Credit Party.
"Trademark License" means rights under any written agreement now
owned or hereafter acquired by any Credit Party granting any right to use
any Trademark.
"Trademarks" means all of the following now owned or hereafter
existing or adopted or acquired by any Credit Party: (a) all trademarks,
trade names, corporate names, business names, trade styles, service marks,
logos, other source or business identifiers, prints and labels on which any
of the foregoing have appeared or appear, designs and intangibles of like
nature (whether registered or unregistered), all registrations and
recordings thereof, and all applications in connection therewith, including
registrations, recordings and applications in the United States Patent and
Trademark Office or in any similar office or agency of the United States,
any state or territory thereof, or any other country or any political
subdivision thereof; (b) all reissues, extensions or renewals thereof; and
(c) all goodwill associated with or symbolized by any of the foregoing.
"Unfunded Pension Liability" means, at any time, the aggregate
amount, if any, of the sum of (a) the amount by which the present value of
all accrued benefits under each Title IV Plan exceeds the fair market value
of all assets of such Title IV Plan allocable to such benefits in
accordance with Title IV of ERISA, all determined as of the most recent
valuation date for each such Title IV Plan using the actuarial assumptions
for funding purposes in effect under such Title IV Plan, and (b) for a
period of 5 years following a transaction which might reasonably be
expected to be covered by Section 4069 of ERISA, the liabilities (whether
or not accrued) that could be avoided by any Credit Party or any ERISA
Affiliate as a result of such transaction.
"Xxxxxxxxxxx" means Xxxxxxxxxxx & Co., LP, a Delaware limited
partnership.
"Welfare Plan" means a Plan described in Section 3(i) of ERISA.
"WP Management" means WP Management Partners, L.L.C., a Delaware
limited liability company.
Rules of construction with respect to accounting terms used in the
Agreement or the other Loan Documents shall be as set forth in Annex G. All
other undefined terms contained in any of the Loan Documents shall, unless
the context indicates otherwise, have the meanings provided for by the Code
as in effect in the State of New York to the extent the same are used or
defined therein; in the event that any term is defined differently in
different Articles or Divisions of the Code, the definition contained in
Article or Division 9 shall control. Unless otherwise specified, references
in the Agreement or any of the Appendices to a Section, subsection or
clause refer to such Section, subsection or clause as contained in the
Agreement. The words "herein," "hereof" and "hereunder" and other words of
similar import refer to the Agreement as a whole, including all Annexes,
Exhibits and Schedules, as the same may from time to time be amended,
restated, modified or supplemented, and not to any particular section,
subsection or clause contained in the Agreement or any such Annex, Exhibit
or Schedule.
Wherever from the context it appears appropriate, each term stated
in either the singular or plural shall include the singular and the plural,
and pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, feminine and neuter genders. The words "including",
"includes" and "include" shall be deemed to be followed by the words
"without limitation"; the word "or" is not exclusive; references to Persons
include their respective successors and assigns (to the extent and only to
the extent permitted by the Loan Documents) or, in the case of governmental
Persons, Persons succeeding to the relevant functions of such Persons; and
all references to statutes and related regulations shall include any
amendments of the same and any successor statutes and regulations. Whenever
any provision in any Loan Document refers to the knowledge (or an analogous
phrase) of any Credit Party, such words are intended to signify that such
Credit Party has actual knowledge or awareness of a particular fact or
circumstance or that such Credit Party, if it had exercised reasonable
diligence, would have known or been aware of such fact or circumstance.
ANNEX B (Section 1.2)
to
CREDIT AGREEMENT
LETTERS OF CREDIT
(a) Issuance. Subject to the terms and conditions of the
Agreement, Agent and Revolving Lenders agree to incur, from time to time
prior to the Commitment Termination Date, upon the request of Borrower and
for Borrower's account, Letter of Credit Obligations by causing Letters of
Credit to be issued by GE Capital or a Subsidiary thereof or a bank or
other legally authorized Person selected by or acceptable to Agent in its
sole discretion (each, an "L/C Issuer") for Borrower's account and
guaranteed by Agent; provided, that if the L/C Issuer is a Revolving
Lender, then such Letters of Credit shall not be guaranteed by Agent but
rather each Revolving Lender shall, subject to the terms and conditions
hereinafter set forth, purchase (or be deemed to have purchased) risk
participations in all such Letters of Credit issued with the written
consent of Agent, as more fully described in paragraph (b)(ii) below. The
aggregate amount of all such Letter of Credit Obligations shall not at any
time exceed the lesser of (i) $4,000,000 plus, if and for so long as the
Credit Lyonnais Letter of Credit is outstanding, the face amount of the
Credit Lyonnais Letter of Credit (the "L/C Sublimit") and (ii) the Maximum
Amount less the aggregate outstanding principal balance of the Revolving
Credit Advances. No such Letter of Credit shall have an expiry date that is
more than one year following the date of issuance thereof, unless otherwise
determined by Agent in its sole discretion, and neither Agent nor Revolving
Lenders shall be under any obligation to incur Letter of Credit Obligations
in respect of, or purchase risk participations in, any Letter of Credit
having an expiry date that is later than the Commitment Termination Date.
(b)(i) Advances Automatic; Participations. In the event that Agent
or any Revolving Lender shall make any payment on or pursuant to any Letter
of Credit Obligation, such payment shall then be deemed automatically to
constitute a Revolving Credit Advance under Section 1.1(a) of the Agreement
regardless of whether a Default or Event of Default has occurred and is
continuing and notwithstanding Borrower's failure to satisfy the conditions
precedent set forth in Section 2, and each Revolving Lender shall be
obligated to pay its Pro Rata Share thereof in accordance with the
Agreement. The failure of any Revolving Lender to make available to Agent
for Agent's own account its Pro Rata Share of any such Revolving Credit
Advance or payment by Agent under or in respect of a Letter of Credit shall
not relieve any other Revolving Lender of its obligation hereunder to make
available to Agent its Pro Rata Share thereof, but no Revolving Lender
shall be responsible for the failure of any other Revolving Lender to make
available such other Revolving Lender's Pro Rata Share of any such payment.
(ii) If it shall be illegal or unlawful for Borrower to
incur Revolving Credit Advances as contemplated by paragraph (b)(i) above
because of an Event of Default described in Sections 8.1(h) or (i) or
otherwise or if it shall be illegal or unlawful for any Revolving Lender to
be deemed to have assumed a ratable share of the reimbursement obligations
owed to an L/C Issuer, or if the L/C Issuer is a Revolving Lender, then (i)
immediately and without further action whatsoever, each Revolving Lender
shall be deemed to have irrevocably and unconditionally purchased from
Agent (or such L/C Issuer, as the case may be) an undivided interest and
participation equal to such Revolving Lender's Pro Rata Share (based on the
Revolving Loan Commitments) of the Letter of Credit Obligations in respect
of all Letters of Credit then outstanding and (ii) thereafter, immediately
upon issuance of any Letter of Credit, each Revolving Lender shall be
deemed to have irrevocably and unconditionally purchased from Agent (or
such L/C Issuer, as the case may be) an undivided interest and
participation in such Revolving Lender's Pro Rata Share (based on the
Revolving Loan Commitments) of the Letter of Credit Obligations with
respect to such Letter of Credit on the date of such issuance. Each
Revolving Lender shall fund its participation in all payments or
disbursements made under the Letters of Credit in the same manner as
provided in the Agreement with respect to Revolving Credit Advances.
(c) Cash Collateral. (i) If Borrower is required to provide cash
collateral for any Letter of Credit Obligations pursuant to the Agreement
prior to the Commitment Termination Date, Borrower will pay to Agent for
the ratable benefit of itself and Revolving Lenders cash or cash
equivalents acceptable to Agent ("Cash Equivalents") in an amount equal to
105% of the maximum amount then available to be drawn under each applicable
Letter of Credit outstanding. Such funds or Cash Equivalents shall be held
by Agent in a cash collateral account (the "Cash Collateral Account")
maintained at a bank or financial institution acceptable to Agent. The Cash
Collateral Account shall be in the name of Borrower and shall be pledged
to, and subject to the control of, Agent, for the benefit of Agent and
Lenders, in a manner satisfactory to Agent. Borrower hereby pledges and
grants to Agent, on behalf of itself and Lenders, a security interest in
all such funds and Cash Equivalents held in the Cash Collateral Account
from time to time and all proceeds thereof, as security for the payment of
all amounts due in respect of the Letter of Credit Obligations and other
Obligations, whether or not then due. The Agreement, including this Annex
B, shall constitute a security agreement under applicable law.
(ii) If any Letter of Credit Obligations, whether or not then due
and payable, shall for any reason be outstanding on the Commitment
Termination Date, Borrower shall either (A) provide cash collateral
therefor in the manner described above, or (B) cause all such Letters of
Credit and guaranties thereof, if any, to be canceled and returned, or (C)
deliver a stand-by letter (or letters) of credit in guarantee of such
Letter of Credit Obligations, which stand-by letter (or letters) of credit
shall be of like tenor and duration (plus 30 additional days) as, and in an
amount equal to 105% of the aggregate maximum amount then available to be
drawn under, the Letters of Credit to which such outstanding Letter of
Credit Obligations relate and shall be issued by a Person, and shall be
subject to such terms and conditions, as are be satisfactory to Agent in
its sole discretion.
(iii) From time to time after funds are deposited in the Cash
Collateral Account by Borrower, whether before or after the Commitment
Termination Date, Agent may apply such funds or Cash Equivalents then held
in the Cash Collateral Account to the payment of any amounts, and in such
order as Agent may elect, as shall be or shall become due and payable by
Borrower to Agent and Lenders with respect to such Letter of Credit
Obligations of Borrower and, upon the satisfaction in full of all Letter of
Credit Obligations of Borrower, to any other Obligations then due and
payable.
(iv) Neither Borrower nor any Person claiming on behalf of or
through Borrower shall have any right to withdraw any of the funds or Cash
Equivalents held in the Cash Collateral Account, except that upon the
termination of all Letter of Credit Obligations and the payment of all
amounts payable by Borrower to Agent and Lenders in respect thereof, any
funds remaining in the Cash Collateral Account shall be applied to other
Obligations then due and owing and upon payment in full of such
Obligations, any remaining amount shall be paid to Borrower or as otherwise
required by law. Interest earned on deposits in the Cash Collateral Account
shall be for the account of Agent.
(d) Fees and Expenses. Borrower agrees to pay to Agent for the
benefit of Revolving Lenders, as compensation to such Lenders for Letter of
Credit Obligations incurred hereunder, (i) all costs and expenses incurred
by Agent or any Lender on account of such Letter of Credit Obligations, and
(ii) for each month during which any Letter of Credit Obligation shall
remain outstanding, a fee (the "Letter of Credit Fee") in an amount equal
to the Applicable Revolver LIBOR Margin from time to time in effect
multiplied by the maximum amount available from time to time to be drawn
under the applicable Letter of Credit. Such fee shall be paid to Agent for
the benefit of the Revolving Lenders in arrears, on the first day of each
month and on the Commitment Termination Date. In addition, Borrower shall
pay to any L/C Issuer, on demand, such fees (including all per annum fees),
charges and expenses of such L/C Issuer in respect of the issuance,
negotiation, acceptance, amendment, transfer and payment of such Letter of
Credit or otherwise payable pursuant to the application and related
documentation under which such Letter of Credit is issued.
(e) Request for Incurrence of Letter of Credit Obligations.
Borrower shall give Agent at least 2 Business Days' prior written notice
requesting the incurrence of any Letter of Credit Obligation. The notice
shall be accompanied by the form of the Letter of Credit (which shall be
acceptable to the L/C Issuer) and a completed Application for Standby
Letter of Credit or Application in the form Exhibit B attached hereto.
Notwithstanding anything contained herein to the contrary, Letter of Credit
applications by Borrower and approvals by Agent and the L/C Issuer may be
made and transmitted pursuant to electronic codes and security measures
mutually agreed upon and established by and among Borrower, Agent and the
L/C Issuer.
(f) Obligation Absolute. The obligation of Borrower to reimburse
Agent and Revolving Lenders for payments made with respect to any Letter of
Credit Obligation shall be absolute, unconditional and irrevocable, without
necessity of presentment, demand, protest or other formalities, and the
obligations of each Revolving Lender to make payments to Agent with respect
to Letters of Credit shall be unconditional and irrevocable. Such
obligations of Borrower and Revolving Lenders shall be paid strictly in
accordance with the terms hereof under all circumstances including the
following:
(i) any lack of validity or enforceability of any Letter
of Credit or the Agreement or the other Loan Documents or any
other agreement;
(ii) the existence of any claim, setoff, defense or other
right that Borrower or any of its Affiliates or any Lender may at
any time have against a beneficiary or any transferee of any
Letter of Credit (or any Persons or entities for whom any such
transferee may be acting), Agent, any Lender, or any other Person,
whether in connection with the Agreement, the Letter of Credit,
the transactions contemplated herein or therein or any unrelated
transaction (including any underlying transaction between Borrower
or any of its Affiliates and the beneficiary for which the Letter
of Credit was procured);
(iii) any draft, demand, 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) payment by Agent (except as otherwise expressly
provided in paragraph (g)(ii)(C) below) or any L/C Issuer under
any Letter of Credit or guaranty thereof against presentation of a
demand, draft or certificate or other document that does not
comply with the terms of such Letter of Credit or such guaranty;
(v) any other circumstance or event whatsoever, that is
similar to any of the foregoing; or
(vi) the fact that a Default or an Event of Default has
occurred and is continuing.
(g) Indemnification; Nature of Lenders' Duties. (i) In addition to
amounts payable as elsewhere provided in the Agreement, Borrower hereby
agrees to pay and to protect, indemnify, and save harmless Agent and each
Lender from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable attorneys' fees
and allocated costs of internal counsel) that Agent or any Lender may incur
or be subject to as a consequence, direct or indirect, of (A) the issuance
of any Letter of Credit or guaranty thereof, or (B) the failure of Agent or
any Lender seeking indemnification or of any L/C Issuer to honor a demand
for payment under any Letter of Credit or guaranty thereof as a result of
any act or omission, whether rightful or wrongful, of any present or future
de jure or de facto government or Governmental Authority, in each case
other than to the extent solely as a result of the gross negligence or
willful misconduct of Agent or such Lender (as finally determined by a
court of competent jurisdiction).
(ii) As between Agent and any Lender and Borrower, Borrower
assumes all risks of the acts and omissions of, or misuse of any Letter of
Credit by beneficiaries of any Letter of Credit. In furtherance and not in
limitation of the foregoing, to the fullest extent permitted by law neither
Agent nor any Lender shall be responsible for: (A) the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document issued
by any party in connection with the application for and issuance of any
Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, that may
prove to be invalid or ineffective for any reason; (C) failure of the
beneficiary of any Letter of Credit to comply fully with conditions
required in order to demand payment under such Letter of Credit; provided,
that in the case of any payment by Agent under any Letter of Credit or
guaranty thereof, Agent shall be liable to the extent such payment was made
solely as a result of its gross negligence or willful misconduct (as
finally determined by a court of competent jurisdiction) in determining
that the demand for payment under such Letter of Credit or guaranty thereof
complies on its face with any applicable requirements for a demand for
payment under such Letter of Credit or guaranty thereof; (D) errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not
they may be in cipher; (E) errors in interpretation of technical terms; (F)
any loss or delay in the transmission or otherwise of any document required
in order to make a payment under any Letter of Credit or guaranty thereof
or of the proceeds thereof; (G) the credit of the proceeds of any drawing
under any Letter of Credit or guaranty thereof; and (H) any consequences
arising from causes beyond the control of Agent or any Lender. None of the
above shall affect, impair, or prevent the vesting of any of Agent's or any
Lender's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to
expand any waivers, covenants or indemnities made by Borrower in favor of
any L/C Issuer in any letter of credit application, reimbursement agreement
or similar document, instrument or agreement between Borrower and such L/C
Issuer, including an Application for Standby Letter of Credit or a Master
Standby Agreement entered into with Agent.
ANNEX C (Section 1.6)
to
CREDIT AGREEMENT
CASH MANAGEMENT SYSTEM
Subject to Section 1.6 of the Agreement, Holdings shall, and shall
cause its Subsidiaries to, establish and maintain the Cash Management
Systems described below:
(a) The Credit Parties shall (i) establish lock boxes ("Lock
Boxes") or, at Agent's discretion, blocked accounts ("Blocked Accounts") at
one or more of the banks set forth in Disclosure Schedule 3.19, and shall
request in writing and otherwise take such reasonable steps to ensure that
all Account Debtors forward payment directly to such Lock Boxes, and (ii)
deposit and cause its Subsidiaries to deposit or cause to be deposited
promptly, and in any event no later than the first Business Day after the
date of receipt thereof, all cash, checks, drafts or other similar items of
payment relating to or constituting payments made in respect of any and all
Collateral (whether or not otherwise delivered to a Lock Box) into one or
more Blocked Accounts in Holdings' name or any such Subsidiary's name and
at a bank identified in Disclosure Schedule 3.19 (each, a "Relationship
Bank"). Borrower shall have established a concentration account in its name
(the "Concentration Account") at the bank that shall be designated as the
Concentration Account bank for the Credit Parties in Disclosure Schedule
3.19 (the "Concentration Account Bank") which bank shall be reasonably
satisfactory to Agent.
(b) The Credit Parties may maintain, in their name, an account
(each a "Disbursement Account" and collectively, the "Disbursement
Accounts") at a bank reasonably acceptable to Agent into which Agent shall,
from time to time, deposit proceeds of Revolving Credit Advances made to
the Credit Parties pursuant to Section 1.1 for use by the Credit Parties in
accordance with the provisions of Section 1.4.
(c) The Concentration Account Bank, each bank where a Disbursement
Account is maintained and all other Relationship Banks, shall have entered
into tri-party blocked account agreements with Agent, for the benefit of
itself and Lenders, and the Credit Parties, as applicable, in form and
substance reasonably acceptable to Agent. Each such Blocked Account
agreement shall provide, among other things, that (i) all items of payment
deposited in such account and proceeds thereof deposited in the
Concentration Account are held by such bank as agent or
bailee-in-possession for Agent, on behalf of itself and Lenders, (ii) the
bank executing such agreement has no rights of setoff or recoupment or any
other claim against such account, as the case may be, other than for
payment of its service fees and other charges directly related to the
administration of such account and for returned checks or other items of
payment, and (iii) after the period set forth in Section 1.6 of the
Agreement (A) with respect to banks at which a Blocked Account is
maintained, such bank agrees, from and after the receipt of a notice (an
"Activation Notice") from Agent (which Activation Notice may be given by
Agent at any time at which an Event of Default has occurred and is
continuing), to forward immediately all amounts in each Blocked Account to
the Concentration Account Bank and to commence the process of daily sweeps
from such Blocked Account into the Concentration Account and (B) with
respect to the Concentration Account Bank, such bank agrees from and after
the receipt of an Activation Notice from Agent upon the occurrence of an
Event of Default, to immediately forward all amounts received in the
Concentration Account to the Collection Account through daily sweeps from
such Concentration Account into the Collection Account. From and after the
date Agent has delivered an Activation Notice to any bank with respect to
any Blocked Account(s), Holdings shall not, and shall not cause or permit
any Subsidiary thereof to, accumulate or maintain cash in Disbursement
Accounts or payroll accounts as of any date of determination in excess of
checks outstanding against such accounts as of that date and amounts
necessary to meet minimum balance requirements.
(d) So long as no Default or Event of Default has occurred and is
continuing, Holdings may amend Disclosure Schedule 3.19 by written notice
to Agent to add or replace a Relationship Bank, Lock Box or Blocked Account
or to replace any Concentration Account or any Disbursement Account;
provided that (i) in the case of a new Relationship Bank, such Replacement
Bank is reasonably acceptable to Agent and (ii) prior to the time of the
opening of such account or Lock Box, Holdings or its Subsidiaries, as
applicable, and such bank shall have executed and delivered to Agent a
tri-party blocked account agreement, in form and substance reasonably
satisfactory to Agent. Holdings shall, and shall cause any of its
Subsidiaries to, close any of its accounts (and establish replacement
accounts in accordance with the foregoing sentence) promptly and in any
event within 30 days following notice from Agent that the creditworthiness
of any bank holding an account is no longer acceptable in Agent's
reasonable judgment, or as promptly as practicable and in any event within
60 days following notice from Agent that the operating performance, funds
transfer or availability procedures or performance with respect to accounts
or Lock Boxes of the bank holding such accounts or Agent's liability under
any tri-party blocked account agreement with such bank is no longer
acceptable in Agent's reasonable judgment.
(e) The Lock Boxes, Blocked Accounts, Disbursement Accounts and
the Concentration Account shall be cash collateral accounts, with all cash,
checks and other similar items of payment in such accounts securing payment
of the Loans and all other Obligations, and in which Holdings and each
Subsidiary thereof shall have granted a Lien to Agent, on behalf of itself
and Lenders, pursuant to the Security Agreement.
(f) All amounts deposited in the Collection Account shall be
deemed received by Agent in accordance with Section 1.8 and shall be
applied (and allocated) by Agent in accordance with Section 1.9. In no
event shall any amount be so applied unless and until such amount shall
have been credited in immediately available funds to the Collection
Account.
(g) Holdings shall and shall cause its officers, employees,
agents, directors or other Persons acting for or in concert with Borrower
(each a "Related Person") to (i) hold in trust for Agent, for the benefit
of itself and Lenders, all checks, cash and other items of payment received
by any Credit Party or any such Related Person, and (ii) within 1 Business
Day after receipt by any Credit Party or any such Related Person of any
checks, cash or other items of payment, deposit the same into a Blocked
Account. Each Credit Party and each Related Person thereof acknowledges and
agrees that all cash, checks or other items of payment constituting
proceeds of Collateral are part of the Collateral. All proceeds of the sale
or other disposition of any Collateral, shall be deposited directly into
Blocked Accounts except as provided in the Agreement.
ANNEX D (Section 2.1(a))
to
CREDIT AGREEMENT
CLOSING CHECKLIST
In addition to, and not in limitation of, the conditions described
in Section 2.1 of the Agreement, pursuant to Section 2.1(a), the following
items must be received by Agent in form and substance satisfactory to Agent
on or prior to the Closing Date (each capitalized term used but not
otherwise defined herein shall have the meaning ascribed thereto in Annex A
to the Agreement):
A. Appendices. All Appendices to the Agreement, in form and
substance satisfactory to Agent.
B. Revolving Notes. Duly executed originals of the Revolving Notes
for each applicable Lender, dated the Closing Date.
C. Security Agreement. Duly executed originals of the Security
Agreement, dated the Closing Date, and all instruments, documents and
agreements executed pursuant thereto.
D. Insurance. Satisfactory evidence that the insurance policies
required by Section 5.4 are in full force and effect, together with
appropriate evidence showing loss payable and/or additional insured clauses
or endorsements, as requested by Agent, in favor of Agent, on behalf of
Lenders.
E. Security Interests and Code Filings. (a) Evidence satisfactory
to Agent that Agent (for the benefit of itself and Lenders) has a valid and
perfected first priority security interest in the Collateral, including (i)
such documents duly executed by each Credit Party (including financing
statements under the Code and other applicable documents under the laws of
any jurisdiction with respect to the perfection of Liens) as Agent may
request in order to perfect its security interests in the Collateral and
(ii) copies of Code search reports listing all effective financing
statements that name any Credit Party as debtor, together with copies of
such financing statements, none of which shall cover the Collateral, except
for those relating to the Prior Lender Obligations (all of which shall be
terminated on the Closing Date) and Permitted Encumbrances.
(b) Evidence satisfactory to Agent, including copies, of all UCC-1
and other financing statements filed in favor of any Credit Party with
respect to each location, if any, at which Inventory may be consigned.
F. Payoff Letter; Termination Statements. Copies of a duly
executed payoff letter, in form and substance reasonably satisfactory to
Agent, executed by the Prior Lender Agent evidencing repayment in full of
all Prior Lender Obligations, together with (a) UCC-3 or other appropriate
termination statements, in form and substance satisfactory to Agent,
manually signed by the Prior Lender Agent releasing all liens of the Prior
Lender Agent upon any of the personal property of each Credit Party, and
(b) termination of all blocked account agreements, bank agency agreements
or other similar agreements or arrangements or arrangements in favor of the
Prior Lender Agent or relating to the Prior Lender Obligations.
G. Intellectual Property Security Agreements. Duly executed
originals of Trademark Security Agreements and Copyright Security
Agreements, each dated the Closing Date and signed by each Credit Party
which owns Trademarks or Copyrights, as applicable, all in form and
substance reasonably satisfactory to Agent, together with all instruments,
documents and agreements executed pursuant thereto.
H. Holdings Guaranty and Parent Guaranty. Duly executed originals
of the Holdings Guaranty and Parent Guaranty, each dated the Closing Date.
I. Subsidiary Guaranty. The Subsidiary Guaranty dated the Closing
Date and duly executed by and each direct and indirect Domestic Subsidiary
of Holdings in favor of Agent, for the benefit of Lenders.
J. Initial Notice of Revolving Credit Advance. Duly executed
originals of a Notice of Revolving Credit Advance, dated the Closing Date,
with respect to the initial Revolving Credit Advance to be requested by
Borrower on the Closing Date.
K. Pay Proceeds Letter. Duly executed originals of a letter from
Borrower addressed to Agent, on behalf of itself and Lenders, with respect
to the disbursement on the Closing Date of the proceeds of the initial
Revolving Credit Advance.
L. Charter and Good Standing. For each Credit Party that is
executing any Loan Document, such Person's (a) charter and all amendments
thereto, (b) good standing certificates (including verification of tax
status) in its state of incorporation and (c) good standing certificates
(including verification of tax status) and certificates of qualification to
conduct business in each jurisdiction where its ownership or lease of
property or the conduct of its business requires such qualification, each
dated a recent date prior to the Closing Date and certified by the
applicable Secretary of State or other authorized Governmental Authority
except for instances where the lack of such good standings, tax status or
certificate of qualification to conduct business could not reasonably be
expected to have a Material Adverse Effect.
M. Bylaws and Resolutions. For each Credit Party that is executing
any Loan Document, (a) such Person's bylaws, together with all amendments
thereto and (b) resolutions of such Person's Board of Directors, approving
and authorizing the execution, delivery and performance of the Loan
Documents to which such Person is a party and the transactions to be
consummated in connection therewith, each certified as of the Closing Date
by such Person's corporate secretary or an assistant secretary as being in
full force and effect without any modification or amendment.
N. Incumbency Certificates. For each Credit Party that is
executing any Loan Document, signature and incumbency certificates of the
officers of each such Person executing any of the Loan Documents, certified
as of the Closing Date by such Person's corporate secretary or an assistant
secretary as being true, accurate, correct and complete.
O. Opinions of Counsel. Duly executed originals of opinions of
counsel for the Credit Parties, together with any local counsel opinions
reasonably requested by Agent, each in form and substance reasonably
satisfactory to Agent and its counsel, dated the Closing Date and including
in such opinion an express statement to the effect that Agent and Lenders
are authorized to rely on such opinion.
P. Pledge Agreements. Duly executed originals of each of the
Pledge Agreements accompanied by (as applicable) (a) share certificates
representing all of the outstanding Stock being pledged pursuant to such
Pledge Agreement and stock powers for such share certificates executed in
blank and (b) the original Intercompany Notes and other instruments
evidencing Indebtedness being pledged pursuant to such Pledge Agreement,
duly endorsed in blank.
Q. Accountants' Letters. A letter from Holdings to its independent
auditors authorizing the independent certified public accountants of the
Credit Parties to communicate with Agent and Lenders in accordance with
Section 4.2.
R. [Intentionally omitted].
S. Fee Letter. Duly executed originals of the GE Capital Fee Letter.
T. Officer's Certificate. Agent shall have received duly executed
originals of a certificate of the Chief Executive Officer or Chief
Financial Officer of each of Holdings, Parent, and Borrower, dated the
Closing Date, stating that, since December 31, 2001, (a) no event or
condition has occurred or is existing which could reasonably be expected to
have a Material Adverse Effect; (b) no Litigation has been commenced which
could reasonably be expected to have a Material Adverse Effect or could
challenge any of the transactions contemplated by the Agreement and the
other Loan Documents; (c) except for the Xxx.xxx Acquisition, there has
been no material increase in liabilities, liquidated or contingent, of
Holdings and its Subsidiaries and no material decrease in the assets of
Holdings and its Subsidiaries; and (d) there has been no material change in
the management personnel of Holdings, Parent and Borrower.
U. Landlord Agreements. Agent, on behalf of Lenders, shall have
received landlord agreements in form and substance satisfactory to Agent,
in each case as required pursuant to Section 5.9.
V. Audited Financials; Financial Condition. Agent shall have
received the Financial Statements, Projections and other materials set
forth in Section 3.4, certified by Holdings' Chief Financial Officer, in
each case in form and substance satisfactory to Agent, and Agent shall be
satisfied, in its sole discretion, with all of the foregoing.
W. Master Standby Agreement. A Master Agreement for Standby
Letters of Credit between Borrower and GE Capital.
X. Intercompany Notes. Delivery to Agent of all intercompany notes
in accordance with Section 6.3 (a)(xi) of the Agreement.
Y. Other Documents. Such other certificates, documents and
agreements respecting any Credit Party as Agent may, in its sole
discretion, request.
ANNEX E (Section 4.1(a))
to
CREDIT AGREEMENT
FINANCIAL STATEMENTS AND PROJECTIONS -- REPORTING
Holdings shall deliver or cause to be delivered to Agent or to
Agent and Lenders, as indicated, the following:
(a) Monthly Financials. To Agent and Lenders, within 30 days after
the end of each Fiscal Month that is not the end of a Fiscal Quarter or
Fiscal Year and within 45 days after the end of each Fiscal Month that is
the end of a Fiscal Quarter or Fiscal Year, financial information regarding
Holdings and its Subsidiaries, certified by the Chief Financial Officer or
Vice President of Finance of Holdings, consisting of consolidated and
consolidating (i) unaudited balance sheets as of the close of such Fiscal
Month and the related statements of income as of the close of such Fiscal
Month; (ii) unaudited statements of income and capital expenditures for
such Fiscal Month, setting forth in comparative form the figures for the
corresponding period in the prior year and the figures contained in the
Projections for such Fiscal Year, all prepared in accordance with GAAP
(subject to normal year-end adjustments); and (iii) a summary of the
outstanding balance of all Intercompany Notes as of the last day of that
Fiscal Month. Such financial information shall be accompanied by the
certification of the Chief Financial Officer or Vice President of Finance
of Holdings (i) that such financial information presents fairly in all
material respects and in accordance with GAAP (subject to normal year-end
adjustments) the financial position and results of operations of Holdings
and its Subsidiaries, on a consolidated and consolidating basis, in each
case as at the end of such Fiscal Month and for that portion of the Fiscal
Year then ended, (ii) that any other information presented is true, correct
and complete in all material respects and that there was no Default or
Event of Default in existence as of such time or, if a Default or Event of
Default shall have occurred and be continuing, describing the nature
thereof and all efforts undertaken to cure such Default or Event of
Default, and (iii) as to the amount of any reserves restored to EBITDA with
a reasonably detailed description thereof. The financial statements and
certificates required by this paragraph (a) may be delivered by Holdings to
the Agent and Lenders in electronic form.
(b) Quarterly Financials. To Agent and Lenders, within 45 days
after the end of each Fiscal Quarter, consolidated and consolidating
financial information regarding Holdings and its Subsidiaries, certified by
the Chief Financial Officer or Vice President of Finance of Holdings,
including (i) unaudited balance sheets as of the close of such Fiscal
Quarter and the related statements of income and cash flow for that portion
of the Fiscal Year ending as of the close of such Fiscal Quarter and (ii)
unaudited statements of income and cash flows for such Fiscal Quarter, in
each case setting forth in comparative form the figures for the
corresponding period in the prior year, all prepared in accordance with
GAAP (subject to normal year-end adjustments). Such financial information
shall be accompanied by (A) a statement in reasonable detail (each, a
"Compliance Certificate") showing the calculations used in determining
compliance with a Compliance Certificate in respect of each of the
Financial Covenants that is tested on a quarterly basis and (B) the
certification of the Chief Financial Officer or Vice President of Finance
of Holdings (i) that such financial information presents fairly in all
material respects and in accordance with GAAP (subject to normal year-end
adjustments) the financial position, results of operations and statements
of cash flows of Holdings and its Subsidiaries, on both a consolidated and
consolidating basis, as at the end of such Fiscal Quarter and for that
portion of the Fiscal Year then ended, (ii) that any other information
presented is true, correct and complete in all material respects and that
there was no Default or Event of Default in existence as of such time or,
if a Default or Event of Default has occurred and is continuing, describing
the nature thereof and all efforts undertaken to cure such Default or Event
of Default, and (iii) as to the amount of any reserves restored to EBITDA
with a reasonably detailed description thereof. In addition, Holdings shall
deliver to Agent and Lenders, within 45 days after the end of each Fiscal
Quarter, a management's discussion and analysis that includes a comparison
to budget for that Fiscal Quarter and a comparison of performance for that
Fiscal Quarter to the corresponding period in the prior year; provided that
the requirement of this sentence shall be deemed to be satisfied by
Holdings' management's discussion and analysis as contained in Holdings'
Quarterly Report on Form 10-Q for such Fiscal Quarter as filed with the
Securities and Exchange Commission.
(c) Operating Plan. To Agent and Lenders, as soon as available,
but not later than 45 days after the end of each Fiscal Year, an annual
consolidated operating plan for Holdings, approved by the Board of
Directors of Holdings, for the following Fiscal Year, which (i) includes a
statement of all of the material assumptions on which such plan is based,
(ii) includes consolidated income statements by month, and (iii) integrates
sales, gross profits, operating expenses and operating profit projections,
all prepared on the same basis and in similar detail as that on which
operating results are reported (and in the case of cash flow projections,
representing management's good faith estimates of future financial
performance based on historical performance), and including plans for
personnel, Capital Expenditures and facilities.
(d) Annual Audited Financials. To Agent and Lenders, within 90
days after the end of each Fiscal Year, audited Financial Statements for
Holdings and its Subsidiaries on a consolidated and (unaudited)
consolidating basis, consisting of balance sheets and statements of income
and retained earnings and cash flows, setting forth in comparative form in
each case the figures for the previous Fiscal Year, which Financial
Statements shall be prepared in accordance with GAAP and certified without
qualification, by an independent certified public accounting firm of
national standing or otherwise acceptable to Agent. Such Financial
Statements shall be accompanied by (i) a statement prepared in reasonable
detail showing the calculations used in determining compliance with each of
the Financial Covenants, (ii) if and to the extent requested by the Agent,
a report from such accounting firm to the effect that, in connection with
their audit examination, nothing has come to their attention to cause them
to believe that a Default or Event of Default has occurred (or specifying
those Defaults and Events of Default that they became aware of), it being
understood that such audit examination extended only to accounting matters
and that no special investigation was made with respect to the existence of
Defaults or Events of Default, (iii) the annual letters to such accountants
in connection with their audit examination detailing contingent liabilities
and material litigation matters, and (iv) the certification of the Chief
Executive Officer, Chief Financial Officer or Vice President of Finance of
Holdings that all such Financial Statements present fairly in all material
respects and in accordance with GAAP the financial position, results of
operations and statements of cash flows of Holdings and its Subsidiaries on
a consolidated and consolidating basis, as at the end of such Fiscal Year
and for the period then ended, and that there was no Default or Event of
Default in existence as of such time or, if a Default or Event of Default
has occurred and is continuing, describing the nature thereof and all
efforts undertaken to cure such Default or Event of Default, and the amount
of any reserves restored to EBITDA with a reasonably detailed description
thereof.
(e) Management Letters. To Agent and Lenders, promptly after
receipt thereof by any Credit Party, copies of all management letters,
exception reports or similar letters or reports received by such Credit
Party from its independent certified public accountants.
(f) Default Notices. To Agent and Lenders, as soon as practicable,
and in any event within 5 Business Days after an executive officer of
Holdings or any other Credit Party has actual knowledge of the existence of
any Default, Event of Default or other event that has had a Material
Adverse Effect, telephonic or telecopied notice specifying the nature of
such Default or Event of Default or other event, including the anticipated
effect thereof, which notice, if given telephonically, shall be promptly
confirmed in writing on the next Business Day.
(g) SEC Filings and Press Releases. To Agent and Lenders, promptly
upon their becoming available, copies of: (i) all Financial Statements,
reports, notices and proxy statements made publicly available by any Credit
Party to its security holders; (ii) all regular and periodic reports and
all registration statements and prospectuses, if any, filed by any Credit
Party with any securities exchange or with the Securities and Exchange
Commission or any governmental or private regulatory authority; and (iii)
all press releases and other statements made available by any Credit Party
to the public concerning material changes or developments in the business
of any such Person (all of the documents required under this paragraph (g)
shall be deemed delivered to the Agent and Lenders to the extent such
documents are available for review and reprinting by the Agent and Lenders
on the "Press Release" page of the Parent's Internet site, which can be
accessed at xxx.xxxxxxxxxxxxxxxxxxx.xxx or other Internet address as Parent
may designate by written notice to the Agent and Lenders).
(h) Senior Note Debt and Equity Notices. To Agent, as soon as
practicable, copies of all material written notices given or received by
any Credit Party with respect to any of the Senior Note Debt or any Stock
of such Person, and, within 5 Business Days after any Credit Party obtains
knowledge of any event of default with respect to any of the Senior Note
Debt, notice of such event of default.
(i) Supplemental Schedules. To Agent, supplemental disclosures, if
any, required by Section 5.6.
(j) Litigation. To Agent in writing, promptly upon learning
thereof, notice of any Litigation commenced or threatened in writing
against any Credit Party that (i) could reasonably be expected to result in
a liability of at least $500,000, (ii) seeks injunctive relief that could
reasonable be expected to result in a Material Adverse Effect, (iii) is
asserted or instituted against any Plan, its fiduciaries or its assets or
against any Credit Party or ERISA Affiliate in connection with any Plan, or
(iv) alleges criminal misconduct by any Credit Party. Agent also shall be
provided with a copy of the Credit Parties' internal periodic report of
pending and threatened litigation.
(k) Insurance Notices. To Agent, disclosure of losses or
casualties required by Section 5.4 that could reasonably be expected to
have a Material Adverse Effect.
(l) Lease Default Notices. To Agent, within 5 Business Days after
receipt thereof, copies of (i) any and all default notices received under
or with respect to any leased location or public warehouse where Collateral
is located, and (ii) such other notices or documents as Agent may
reasonably request.
(m) Lease Amendments. To Agent, within 5 Business Days after
receipt thereof, copies of all material amendments to any lease for any of
the Material Leased Real Estate.
(n) Other Documents. To Agent and Lenders, such other financial
and other information respecting any Credit Party's business or financial
condition as Agent or any Lender shall, from time to time, reasonably
request.
(o) Good Standing Certificates. To Agent (unless Agent shall
otherwise consent in writing), not less frequently than once during each
calendar quarter, a certificate of good standing for each Credit Party that
is a party to the Security Agreement from its state of incorporation or
organization.
ANNEX F (Section 4.1(b))
to
CREDIT AGREEMENT
COLLATERAL REPORTS
Borrower shall deliver or cause to be delivered the following if
and to the extent requested from time to time by the Agent, but in no event
more than once per calendar year (but such limitation shall not apply
during the continuation of any Default or Event of Default):
(a) To Agent, (i) a listing of government contracts of Borrower
subject to the Federal Assignment of Claims Act of 1940; and (ii) a list of
any applications for the registration of any Patent, Trademark or Copyright
filed by any Credit Party with the United States Patent and Trademark
Office, the United States Copyright Office or any similar office or agency
since the last such list was provided to the Agent;
(b) Borrower, at its own expense, shall deliver to Agent the
results of each physical verification, if any, that Borrower or any of its
Subsidiaries may in their discretion have made, or caused any other Person
to have made on their behalf, of all or any portion of their Inventory
(and, if a Default or an Event of Default has occurred and be continuing,
Borrower shall, upon the request of Agent, conduct, and deliver the results
of, such physical verifications as Agent may require);
(c) Borrower, at its own expense, shall deliver to Agent such
appraisals of its assets as Agent may request at any time after the
occurrence and during the continuance of a Default or an Event of Default,
such appraisals to be conducted by an appraiser, and in form and substance
reasonably satisfactory to Agent; and
(d) Such other reports, statements and reconciliations with
respect to the Collateral or Obligations of any or all Credit Parties as
Agent shall from time to time request in its reasonable discretion.
ANNEX G (Section 6.10)
to
CREDIT AGREEMENT
FINANCIAL COVENANTS
Holdings and its Subsidiaries shall not breach or fail to comply
with any of the following financial covenants, each of which shall be
calculated in accordance with GAAP consistently applied:
(a) Maximum Senior Secured Leverage Ratio. Holdings and its
Subsidiaries on a consolidated basis shall have, with respect to each
Fiscal Quarter ending after the Closing Date, a ratio of (i) Senior Secured
Debt as of the end of such Fiscal Quarter to (ii) Adjusted EBITDA for the
Testing Period ending with such Fiscal Quarter of not more than 2.00 to
1.00.
(b) Maximum Total Leverage Ratio. Holdings and its Subsidiaries on
a consolidated basis shall have, for each Fiscal Quarter ending during each
period set forth below, a Total Leverage Ratio of not more than the ratio
shown below for such Fiscal Quarter:
-------------------------------------------------------------------------------------------
Any Fiscal Quarter Ending During the Period of: Maximum Total Leverage Ratio:
-------------------------------------------------------------------------------------------
Closing Date through September 29, 2002 16.00 to 1.00
-------------------------------------------------------------------------------------------
September 30, 2002 through December 30, 2002 14.00 to 1.00
-------------------------------------------------------------------------------------------
December 31, 2002 through March 30, 2003 12.00 to 1.00
-------------------------------------------------------------------------------------------
March 31, 2003 through December 30, 2003 11.00 to 1.00
-------------------------------------------------------------------------------------------
December 31, 2003 through June 29, 2004 10.00 to 1.00
-------------------------------------------------------------------------------------------
June 30, 2004 through December 30, 2004 9.25 to 1.00
-------------------------------------------------------------------------------------------
December 31, 2004 through June 29, 2005 8.50 to 1.00
-------------------------------------------------------------------------------------------
June 30, 2005 through December 30, 2005 8.00 to 1.00
-------------------------------------------------------------------------------------------
December 31, 2005 through June 29, 2006 8.00 to 1.00
-------------------------------------------------------------------------------------------
June 30, 2006 through December 30, 2006 7.50 to 1.00
-------------------------------------------------------------------------------------------
December 31, 2006 and thereafter 7.00 to 1.00
-------------------------------------------------------------------------------------------
(c) Minimum Interest Coverage Ratio. Holdings and its Subsidiaries
on a consolidated basis shall have, for each Fiscal Quarter ending during
each period set forth below, an Interest Coverage Ratio of not less than
the ratio shown below for such Fiscal Quarter:
---------------------------------------------------------------------------------------------
Any Fiscal Quarter Ending During the Period of: Minimum Interest Coverage Ratio:
---------------------------------------------------------------------------------------------
Closing Date through September 29, 2002 0.60 to 1.00
---------------------------------------------------------------------------------------------
September 30, 2002 through December 30, 2002 0.70 to 1.00
---------------------------------------------------------------------------------------------
December 31, 2002 through March 30, 2003 0.85 to 1.00
---------------------------------------------------------------------------------------------
March 31, 2003 through December 30, 2003 1.00 to 1.00
---------------------------------------------------------------------------------------------
December 31, 2003 through December 30, 2004 1.05 to 1.00
---------------------------------------------------------------------------------------------
December 31, 2004 through December 30, 2005 1.15 to 1.00
---------------------------------------------------------------------------------------------
December 31, 2005 and thereafter 1.30 to 1.00
---------------------------------------------------------------------------------------------
(d) Minimum Fixed Charge Coverage Ratio. Holdings and its
Subsidiaries on a consolidated basis shall have, for each Fiscal Quarter
ending during each period set forth below, a Fixed Charge Coverage Ratio of
not less than the ratio shown below for such Fiscal Quarter:
------------------------------------------------------------------------------------------
Minimum Fixed Charge
Any Fiscal Quarter Ending During the Period of: Coverage Ratio:
------------------------------------------------------------------------------------------
Closing Date through September 29, 2002 0.50 to 1.00
------------------------------------------------------------------------------------------
September 30, 2002 through December 30, 2002 0.60 to 1.00
------------------------------------------------------------------------------------------
December 31, 2002 through March 30, 2003 0.70 to 1.00
------------------------------------------------------------------------------------------
March 31, 2003 through December 30, 2003 0.80 to 1.00
------------------------------------------------------------------------------------------
December 31, 2003 through December 30, 2004 0.95 to 1.00
------------------------------------------------------------------------------------------
December 31, 2004 through December 30, 2005 1.05 to 1.00
------------------------------------------------------------------------------------------
December 31, 2005 and thereafter 1.15 to 1.00
------------------------------------------------------------------------------------------
Unless otherwise specifically provided herein, any accounting term
used in the Agreement shall have the meaning customarily given such term in
accordance with GAAP, and all financial computations hereunder shall be
computed in accordance with GAAP consistently applied. That certain items
or computations are explicitly modified by the phrase "in accordance with
GAAP" shall in no way be construed to limit the foregoing. If any
Accounting Changes (as defined below) occur and such changes result in a
change in the calculation of the financial covenants, standards or terms
used in the Agreement or any other Loan Document, then Borrower, Agent and
Lenders agree to enter into negotiations in order to amend such provisions
of the Agreement so as to equitably reflect such Accounting Changes with
the desired result that the criteria for evaluating Borrower's and its
Subsidiaries' financial condition shall be the same after such Accounting
Changes as if such Accounting Changes had not been made; provided, however,
that the agreement of Requisite Lenders to any required amendments of such
provisions shall be sufficient to bind all Lenders. "Accounting Changes"
means (i) changes in accounting principles required by the promulgation of
any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants
(or successor thereto or any agency with similar functions), (ii) changes
in accounting principles concurred in by Borrower's certified public
accountants; (iii) purchase accounting adjustments under A.P.B. 16 or 17
and EITF 88-16, and the application of the accounting principles set forth
in FASB 109, including the establishment of reserves pursuant thereto and
any subsequent reversal (in whole or in part) of such reserves; and (iv)
the reversal of any reserves established as a result of purchase accounting
adjustments. All such adjustments resulting from expenditures made
subsequent to the Closing Date (including capitalization of costs and
expenses or payment of pre-Closing Date liabilities) shall be treated as
expenses in the period the expenditures are made and deducted as part of
the calculation of EBITDA in such period. If Agent, Borrower and Requisite
Lenders agree upon the required amendments, then after appropriate
amendments have been executed and the underlying Accounting Change with
respect thereto has been implemented, any reference to GAAP contained in
the Agreement or in any other Loan Document shall, only to the extent of
such Accounting Change, refer to GAAP, consistently applied after giving
effect to the implementation of such Accounting Change. If Agent, Borrower
and Requisite Lenders cannot agree upon the required amendments within 30
days following the date of implementation of any Accounting Change, then
all Financial Statements delivered and all calculations of financial
covenants and other standards and terms in accordance with the Agreement
and the other Loan Documents shall be prepared, delivered and made without
regard to the underlying Accounting Change. For purposes of Section 8.1, a
breach of a Financial Covenant contained in this Annex G shall be deemed to
have occurred as of any date of determination by Agent or as of the last
day of any specified measurement period, regardless of when the Financial
Statements reflecting such breach are delivered to Agent.
ANNEX I (Section 11.10)
to
CREDIT AGREEMENT
NOTICE ADDRESSES
(A) If to Agent or GE Capital, at
General Electric Capital Corporation
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: The New York Law Publishing Company Account Manager
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
with copies to:
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
and
General Electric Capital Corporation
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Corporate Counsel-Commercial Finance
Telecopier No.: (000)000-0000
Telephone No.: (000)000-0000
(B) If to Holdings, Parent, or Borrower, at
The New York Law Publishing Company
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
With copy to:
Attention: Chief Financial Officer
Telecopier No: 000-000-0000
Telephone No: 000-000-0000
With copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
ANNEX J (from Annex A - Commitments definition)
to
CREDIT AGREEMENT
Lender(s): Revolving Loan Commitment:
---------- -------------------------
General Electric Capital Corporation $40,000,000
Table of Contents
Page
----
1. AMOUNT AND TERMS OF CREDIT.........................................1
1.1 Revolving Credit Facility.................................1
1.2 Letters of Credit.........................................2
1.3 Prepayments...............................................2
1.4 Use of Proceeds...........................................4
1.5 Interest and Applicable Margins...........................4
1.6 Cash Management Systems...................................7
1.7 Fees......................................................7
1.8 Receipt of Payments.......................................8
1.9 Application and Allocation of Payments....................8
1.10 Loan Account and Accounting...............................9
1.11 Indemnity.................................................9
1.12 Access...................................................10
1.13 Taxes....................................................11
1.14 Capital Adequacy; Increased Costs; Illegality............12
1.15 Single Loan..............................................13
2. CONDITIONS PRECEDENT..............................................13
2.1 Conditions to the Initial Loans..........................13
2.2 Further Conditions to Each Loan..........................14
3. REPRESENTATIONS AND WARRANTIES....................................15
3.1 Corporate Existence; Compliance with Law.................15
3.2 [Reserved]...............................................15
3.3 Power, Authorization, Enforceable Obligations............15
3.4 Financial Statements and Projections.....................16
3.5 Material Adverse Effect..................................17
3.6 Ownership of Property; Liens.............................17
3.7 Labor Matters............................................17
3.8 Ventures, Subsidiaries and Affiliates;
Outstanding Stock and Indebtedness.....................18
3.9 Government Regulation....................................18
3.10 Margin Regulations.......................................18
3.11 Taxes....................................................18
3.12 ERISA....................................................19
3.13 No Litigation............................................20
3.14 Brokers..................................................20
3.15 Intellectual Property....................................20
3.16 Full Disclosure..........................................21
3.17 Environmental Matters....................................21
3.18 Insurance................................................21
3.19 Deposit and Disbursement Accounts........................22
3.20 Solvency.................................................22
3.21 Senior Note Debt.........................................22
3.22 Holdings Status..........................................22
4. FINANCIAL STATEMENTS AND INFORMATION..............................22
4.1 Reports and Notices......................................22
4.2 Communication with Accountants...........................22
5. AFFIRMATIVE COVENANTS.............................................23
5.1 Maintenance of Existence and Conduct of Business.........23
5.2 Payment of Charges.......................................23
5.3 Books and Records........................................24
5.4 Insurance; Damage to or Destruction of Collateral........24
5.5 Compliance with Laws.....................................25
5.6 Supplemental Disclosure..................................25
5.7 Intellectual Property....................................25
5.8 Environmental Matters....................................25
5.9 Landlords' Agreements and Real Estate Purchases..........26
5.10 Foreign Subsidiaries Security............................26
5.11 Further Assurances.......................................27
6. NEGATIVE COVENANTS................................................27
6.1 Mergers, Acquisitions, Etc...............................28
6.2 Investments; Loans and Advances..........................31
6.3 Indebtedness.............................................32
6.4 Employee Loans and Affiliate Transactions................33
6.5 Capital Structure and Business...........................34
6.6 Guaranteed Indebtedness..................................35
6.7 Liens....................................................35
6.8 Sale of Stock and Assets.................................35
6.9 ERISA....................................................37
6.10 Financial Covenants......................................37
6.11 Hazardous Materials......................................38
6.12 Sale-Leasebacks..........................................38
6.13 Cancellation of Indebtedness.............................38
6.14 Restricted Payments......................................38
6.15 Change of Corporate Name or Location; Change of
Fiscal Year............................................39
6.16 No Impairment of Intercompany Transfers..................39
6.17 No Speculative Transactions..............................39
6.18 Leases; Real Estate Purchases............................39
6.19 Limitation on Voluntary Payments and Modification
of Certain Senior Note Debt............................40
6.20 Limitation on Creation of Subsidiaries...................40
7. TERM..............................................................41
7.1 Termination..............................................41
7.2 Survival of Obligations Upon Termination of
Financing Arrangements.................................41
8. EVENTS OF DEFAULT; RIGHTS AND REMEDIES............................41
8.1 Events of Default........................................41
8.2 Remedies.................................................43
8.3 Waivers by Credit Parties................................44
9. ASSIGNMENT AND PARTICIPATIONS; APPOINTMENT OF AGENT...............44
9.1 Assignment and Participations............................44
9.2 Appointment of Agent.....................................46
9.3 Agent's Reliance, Etc....................................47
9.4 GE Capital and Affiliates................................47
9.5 Lender Credit Decision...................................48
9.6 Indemnification..........................................48
9.7 Successor Agent..........................................48
9.8 Setoff and Sharing of Payments...........................49
9.9 Advances; Payments; Non-Funding Lenders;
Information; Actions in Concert........................49
10. SUCCESSORS AND ASSIGNS............................................52
10.1 Successors and Assigns...................................52
11. MISCELLANEOUS.....................................................52
11.1 Complete Agreement; Modification of Agreement............52
11.2 Amendments and Waivers...................................52
11.3 Fees and Expenses........................................54
11.4 No Waiver................................................55
11.5 Remedies.................................................55
11.6 Severability.............................................55
11.7 Conflict of Terms........................................55
11.8 Confidentiality..........................................56
11.9 GOVERNING LAW............................................56
11.10 Notices..................................................57
11.11 Section Titles...........................................57
11.12 Counterparts.............................................57
11.13 WAIVER OF JURY TRIAL.....................................57
11.14 Press Releases and Related Matters.......................58
11.15 Reinstatement............................................58
11.16 Advice of Counsel........................................58
11.17 No Strict Construction...................................58
INDEX OF APPENDICES
Annex A (Recitals) - Definitions
Annex B (Section 1.2) - Letters of Credit
Annex C (Section 1.6) - Initial Blocked Account Banks
Annex D (Section 2.1(a)) - Closing Checklist
Annex E (Section 4.1(a)) - Financial Statements and Projections -- Reporting
Annex F (Section 4.1(b)) - Collateral Reports
Annex G (Section 6.10) - Financial Covenants
Annex H (Section 9.9(a)) - Lenders' Wire Transfer Information
Annex I (Section 11.10) - Notice Addresses
Annex J (from Annex A-
Commitments definition) - Commitments as of Closing Date
Exhibit 1.1(a)(i) - Form of Notice of Revolving Credit Advance
Exhibit 1.1(a)(ii) - Form of Revolving Note
Exhibit 1.5(e) - Form of Notice of Conversion/Continuation
Exhibit 9.1(a) - Form of Assignment Agreement
Exhibit B - Application for Standby Letter of Credit
Disclosure Schedule 1.4 - Sources and Uses; Funds Flow Memorandum
Disclosure Schedule 3.1 - Type of Entity; State of Organization
Disclosure Schedule 3.4(a) - Financial Statements
Disclosure Schedule 3.4(b) - Pro Forma
Disclosure Schedule 3.5 - Material Adverse Effect
Disclosure Schedule 3.6 - Real Estate and Leases
Disclosure Schedule 3.7 - Labor Matters
Disclosure Schedule 3.8 - Ventures, Subsidiaries and Affiliates; Outstanding Stock
Disclosure Schedule 3.10 - Margin Stock
Disclosure Schedule 3.11 - Tax Matters
Disclosure Schedule 3.12 - ERISA Plans
Disclosure Schedule 3.13 - Litigation
Disclosure Schedule 3.15 - Intellectual Property
Disclosure Schedule 3.17 - Hazardous Materials
Disclosure Schedule 3.18 - Insurance
Disclosure Schedule 3.19 - Deposit and Disbursement Accounts
Disclosure Schedule 5.1 - Trade Names
Disclosure Schedule 6.1(c) Xxx.xxx Acquisition Terms
Disclosure Schedule 6.1(d)
(Annex A - Definition of
Adjusted EBITDA) Excluded Xxx.xxx EBITDA
Disclosure Schedule 6.2 - Investments
Disclosure Schedule 6.3 - Indebtedness
Disclosure Schedule 6.4(a) - Transactions with Affiliates
Disclosure Schedule 6.7 - Existing Liens
